Queensland Parliamentary Library

Police ‘Move-on’ Powers A ‘move-on’ power is a power that a police officer has to direct a person to move from a particular public area or place in certain circumstances, even if the person has not committed any offence. The idea behind such a power is that it may prevent an offence being committed or unacceptable behaviour occurring. An example of when a move-on power might come into play is where a gang of people gather in a mall and use obscene language or conduct which appears to be escalating towards violence and causing distress to shoppers.

Current move-on powers in Queensland are located in Chapter 2, Part 4 of the Police Powers and Responsibilities Act 2000 (Qld) (directions to move-on). As is the case in most other jurisdictions, the powers do not apply to all public areas. On 23 January 2006, the Minister for Police and Corrective Services released a Ministerial Statement stating that the Government proposed to extend the powers given to police officers to direct members of the public to move-on to cover all public areas in Queensland.

Nicolee Dixon

Research Brief No 2006/16

Queensland Parliamentary Library Research Publications and Resources Section

Ms Karen Sampford, Director (07) 3406 7116 Mrs Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Ms Renee Giskes, Parliamentary Research Officer (07) 3406 7241

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ISSN 1443-7902 ISBN 1 921056 32 0 APRIL 2006

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CONTENTS

EXECUTIVE SUMMARY .......................................................................................

1 BACKGROUND................................................................................................1

2 CURRENT LEGISLATION ............................................................................3

2.1 DIRECTION TO ‘MOVE-ON’........................................................................... 3

2.1.1 ‘Relevant Act’........................................................................................3

2.1.2 Prescribed Places ...................................................................................4

2.1.3 Examples of a Direction to Move-On....................................................8

2.1.4 Disobeying a Direction ..........................................................................9

2.2 OTHER POLICE POWERS AND RESPONSIBILITIES ACT 2000 POWERS TO DEAL WITH BREACH OF THE PEACE AND SIMILAR CONDUCT ....................... 9

3 ARGUMENTS FOR AND AGAINST MOVE-ON POWERS....................10

3.1 OPPOSITION TO MOVE-ON POWERS............................................................ 10

3.2 SUPPORT FOR MOVE-ON POWERS............................................................... 12

3.3 RECENT ISSUES REGARDING SAFETY AND PUBLIC ORDER ......................... 13

4 RECENT DEVELOPMENTS........................................................................16

5 MOVE-ON POWERS OTHER JURISDICTIONS.....................................17

5.1 NEW SOUTH WALES ................................................................................... 17

5.2 TASMANIA .................................................................................................. 20

5.3 WESTERN AUSTRALIA ................................................................................ 21

5.4 SOUTH AUSTRALIA ..................................................................................... 22

5.5 NORTHERN TERRITORY .............................................................................. 23

5.6 AUSTRALIAN CAPITAL TERRITORY............................................................. 23

5.7 VICTORIA.................................................................................................... 24

RECENT QPL RESEARCH PUBLICATIONS 2006 .......................................25

Police Move-On Powers

EXECUTIVE SUMMARY

A ‘move-on’ power is a power that a police officer has to direct a person to move from a particular public area or place in certain circumstances, even if the person has not committed any offence. The idea behind such a power is that it may prevent an offence being committed or unacceptable behaviour occurring. An example of when a move-on power might come into play is where a gang of people gather in a mall and use obscene language or conduct which appears to be escalating towards violence and causing distress to shoppers: page 1. The Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) completed the process begun by the 1997 PPR Act to consolidate most police powers, including safeguards thereon, into one Act as well as providing new police powers. The enactment of the PPR Act occurred following the Queensland Criminal Justice Commission’s Report on a Review of Police Powers in Queensland, Volume III: Arrest Without Warrant, Demand Name and Address and Move-On Powers in 1993 and the Queensland Parliamentary Criminal Justice Committee’s (PCJC) Review of the Criminal Justice Commission’s Report on Police Powers in Queensland: Volumes I-III, Report 23B recommending against general police move-on powers. However, the PCJC did recommend that police should have move-on powers in specified circumstances, as appears to be reflected in the move-on provisions contained in Chapter 2, Part 4 of the PPR Act: page 2. The circumstances in which police officers can give a direction under s 39 of the PPR Act to members of the public to move-on are set out in ss 36 and 37 of the PPR Act. There must be a ‘relevant act’ and it must occur in a ‘prescribed place’ as defined in Sch 4 of the PPR Act: pages 3-5. The exercise of move-on powers can be widened if a government entity or local government successfully applies for a certain area to be declared a ‘notified area’, as has recently occurred in relation to areas in and around the Brisbane Central Business District: pages 5-8. Examples of ‘move-on’ directions and the consequences of non-compliance are set out on pages 8-9. Other PPR Act powers (contained in Part 5 (ss 42-44A)) to deal with breach of the peace and similar conduct are discussed on pages 9-10. Opponents of ‘move-on’ powers claim that the police already have enough authority to deal with the type of situations in which the powers are used and that minority groups, the young and the homeless are the targets of such powers. On the other hand, advocates of move-on powers argue that the public should be entitled to use public spaces, such as malls and parks, without fear of disruptive elements and unruly conduct and that those who interfere with such use should be moved on. The various viewpoints are discussed on pages 10-13. Some recent issues regarding safety and public order, particularly relating to the Brisbane CBD, and the various legislative and other measures to deal with emerging problems, are considered on pages 13-16.

Queensland Parliamentary Library

There has been a proposal by the Queensland Government to extend the PPR Act move-on powers to all public places in Queensland, not just those places specified in the Act or declared to be a ‘notified area’: pages 16-17. Most other states and territories have laws allowing police officers to move-on members of the public from public places in certain circumstances, as discussed on pages 17-24.

Police Move-On Powers Page 1

1 BACKGROUND

A ‘move-on’ power is a power that a police officer has to direct a person to move from a particular public area or place in certain circumstances, even if the person has not committed any offence. The idea behind such a power is that it may prevent an offence being committed or unacceptable behaviour occurring. An example of when a move-on power might come into play is where a gang of people gather in a mall and use obscene language or conduct which appears to be escalating towards violence and causing distress to shoppers, or where people gather on the footpath outside a nightclub and attempt to provoke a fight. A further situation is a person loitering in a railway station late at night or hanging around outside a school causing anxiety to late night commuters or to parents of children at the school, as the case may be.1

Those who advocate the need for the police to possess a ‘move-on’ power argue that such a power could prevent crimes, maintain public order and enable the police to deal with situations without needing to charge or arrest anyone.2

Consolidated move-on powers were conferred on police in 1998 by the original Police Powers and Responsibilities Act 1997 (Qld), since repealed by the current Police Powers and Responsibilities Act 2000 (Qld) (PPR Act), which commenced in July 2000. Prior to this time, move-on powers of various types were found in a myriad of laws. More than 10 statutes contained provisions that allowed police to direct people to leave a place or to remove them from a place. In addition, considerable subordinate legislation, such as the Traffic Regulation 1962, allows the police to give directions to stop the obstruction of traffic. Many of the laws focussed on problems in specific locations. In a report published in 1994, the Queensland Parliamentary Criminal Justice Committee (PCJC) commented that the consequence was ‘… often obscure, and overlapping powers, [that] require police to deal with common situations in a piecemeal way.’3 The PCJC pointed out that police could not have been expected to be ‘well versed in all of these powers/offences because the provisions [were] simply too numerous and often obscure.’4 The laws also tended to

1 Queensland Parliamentary Criminal Justice Committee (PCJC), Review of the Criminal Justice

Commission’s Report on Police Powers in Queensland: Volumes I-III, Report 23B, 30 August 1994, pp 213-214.

2 PCJC, Report 23B, pp 225-228, quoting submissions from bodies including the Police Union of Employees.

3 PCJC, Report 23B, p 228.

4 PCJC, Report 23B, p 241.

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create offences rather than enabling police to take any action apart from arresting or charging a person. A move-on power allows a police officer to warn a person or a group of people to move elsewhere or else they will be charged with failing to obey a direction.5

The PPR Act, passed in 2000, completed the process begun by the 1997 PPR Act to consolidate most police powers, including safeguards thereon, into one Act as well as providing new police powers.

At present, apart from move-on powers under the PPR Act, police can also look to provisions of the Criminal Code, Summary Offences Act 2005 and the Liquor Act 1992 to provide authority to deal with public place or ‘street type’ situations.

In 1993, the Queensland Criminal Justice Commission (CJC) – the forerunner of the Crime and Misconduct Commission – released the Report on a Review of Police Powers in Queensland, Volume III: Arrest Without Warrant, Demand Name and Address and Move-On Powers in which it warned that any potential move-on power could be used to target young people, the homeless and Aboriginal people and raised doubts about whether the power would have any real effect on crime prevention. Recommendation 15.1 was that the police not be given a general move-on power.

The Parliamentary Criminal Justice Committee (PCJC) reviewed the CJC Report and its Review of the Criminal Justice Commission’s Report on Police Powers in Queensland: Volumes I-III, Report 23B recommended that, while the police should not have a general move-on power, it should be able to exercise such a power in defined circumstances. The PCJC Report then defined those circumstances. Those were that the persons against whom the power was to be exercised are unnecessarily obstructing, hindering or impeding the flow of traffic; or are suspected on reasonable grounds of loitering with intent to commit an offence; or that a breach of the peace is occurring, or has occurred, or is likely to occur; or the persons are acting in an offensive manner or using offensive language; or it is necessary to ensure safety of others in the vicinity. The Report said that the power should also be exercisable if a person is loitering near a school, kindergarten, child-care centre or children’s playground, or public toilets. A number of safeguards were also recommended, including that the police keep a record of the move-on directions for a period of two years.6

5 PCJC, Report 23B, pp 228, 241.

6 PCJC Report 23B, pp 241-242.

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2 CURRENT LEGISLATION

Current move-on powers in Queensland are located in Chapter 2, Part 4 of the Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) (directions to move-on).

2.1 DIRECTION TO ‘MOVE-ON’

The power of police officers to direct members of the public to move-on is restricted to situations that are specified in the PPR Act and is not a general authority to be exercised at will.7 Nor does it apply in all public areas as is the case in most other Australian jurisdictions. Moreover, move-on directions do not apply to an authorised public assembly under the Peaceful Assembly Act 1992: PPR Act, s 36.

A police officer may give a person(s) a reasonable direction requiring the person(s) to leave a prescribed place for a maximum of 24 hours or to move from a particular location for a stated reasonable distance in a stated direction for a maximum of 24 hours: PPR Act, s 39. However, the person(s) must be doing a ‘relevant act’ to trigger the power.

2.1.1 ‘Relevant Act’

A ‘relevant act’ is described in ss 37 and 38 of the PPR Act. Those are where the police officer reasonably suspects that the person’s behaviour or presence at or near a ‘prescribed place’ (explained below) is, or has been, –

• causing anxiety to others entering, at, or leaving the prescribed place, reasonably arising in all the circumstances (an example being a group of youths harassing passers-by in the Queen Street Mall); or

• interfering with trade or business by unnecessarily obstructing, hindering or impeding someone entering or leaving the prescribed place (but only where the occupier of the premises used for trade or business complains); or

• disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the prescribed place (such as a person disrupting live entertainment at a shopping centre).8

7 S Keim, ‘Heading in the Right Direction?, Queensland Bar News, December 2002, pp 31-34,

p 31.

8 Police Powers and Responsibilities Bill 2000 (Qld), Explanatory Notes, p 25.

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In the case where the ‘relevant act’ is someone’s behaviour, a further situation triggering the power is where the police officer reasonably suspects the person’s behaviour is, or has been, disorderly, indecent, offensive or threatening to someone entering, at, or leaving the prescribed place. An example of this is a husband yelling at his estranged spouse who is attempting to leave a school yard after collecting their child.9

The direction to move-on may also be given if a police officer reasonably suspects that a person in a prescribed place is soliciting for prostitution.

The police officer must ‘reasonably suspect’ that the person’s behaviour or presence is having the abovementioned relevant impacts. The concept of ‘reasonable suspicion’ is common to many coercive powers. It is a lesser requirement than ‘reasonable belief’ but a factual basis for the suspicion has to exist.10

2.1.2 Prescribed Places

A ‘prescribed place’ has the meanings ascribed by Schedule 4 of the PPR Act –

• a shop;

• a child-care centre or pre-school centre;

• a primary, secondary or special school premises;

• premises licensed under the Liquor Act 1992;

• a railway station and land around it;

• a mall (such as the Queen Street Mall);

• South Bank Parklands;

• a racing venue under the Racing and Betting Act 1990;

• an Automatic Teller Machine;

• a war memorial; or

• a place declared under s 41 to be a ‘notified area’.

9 Police Powers and Responsibilities Bill 2000 (Qld), Explanatory Notes, p 25.

10 Queensland Criminal Justice Commission, Report on a Review of Police Powers in Queensland – Volume 1: An Overview, May 1993, p 44.

Police Move-On Powers Page 5

In the context of soliciting for prostitution, a ‘prescribed place’ means any public place to which the public has access, whether on payment of a fee or otherwise, but does not include any area in a licensed brothel that can not be viewed from outside the brothel.

A ‘Notified Area’

A ‘notified area’ under s 41 of the PPR Act is an area declared by Regulation. The area can only be a notified area for a maximum of 2 years, unless it is extended in certain circumstances.

A government entity or local government may apply to the Minister for Police and Corrective Services for a declaration that a stated area become a notified area: s 40. The declaration can be long term (up to 2 years) or temporary (up to 14 days).

A situation may arise where the Brisbane City Council (BCC), for instance, realises that there are ongoing problems being created by gangs of people congregating around certain nightclubs in the CBD. The BCC may wish to apply to the Minister to have the nightclub vicinity declared to be a ‘notified area’.

The Local Government Association of Queensland (LGAQ) advises councils that when considering whether or not to make an application for a notified move-on area, they should first consider a number of questions to make sure that the declaration is the best option. Those questions include whether sufficient stakeholder consultation has occurred to ensure that the problem is one commonly believed to be a problem and whether there are alternative legislative measures or responses that are more appropriate. Another important issue is whether the effect of the declaration will be merely to shift the problem from one area to another – for example, from King George Square to the City Botanic Gardens. A further crucial point is whether the declaration can be effectively policed.11

Part 2 of the Police Powers and Responsibilities Regulation 2000 (the Regulation) sets out what is required to be in the application for a notified area declaration. The application must be accompanied by a plan of the location and copies of submissions received; and must describe any criminal conduct or public order problems that are relied upon for making the application. Verifying information, such as crime statistics or a local district police officer’s statement, has to be included.

As part of the 17-point Brisbane City Safety Action Plan (explained later), the Queensland Police Service (QPS) has a designated senior officer to act as a link

11 Local Government Association of Queensland (LGAQ), ‘Declaration of a Notified ‘Move-On’

Area: Information and Application Guidelines’, Section 5, http://www.lgaq.asn.au/lgaq/resources/Publications/CreatingSafeSection5.pdf.

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with the BCC to help it in researching and preparing applications for notified area declarations in appropriate areas.12

The applicant for the declaration (usually a council) must publish a public notice of the intention to apply for the declaration; engage in consultation about the proposal with the district officer of the relevant police service in the area; the local government (if the local government is not the applicant) and any businesses in the area. It must then receive submissions from interested persons supporting or opposing the declaration. In practice, the applicant should consult with all relevant stakeholders that may be affected so that their views can be obtained. In particular, it might be worthwhile for the applicant to engage in consultation with representatives of groups which tend to frequent the area such as youth representatives so that the groups’ views can be dealt with in the application.13

The application for a declaration of a notified area can also apply to an event. Usually the declaration will be for a short time but an extended declaration can be applied for. Examples of such events are Anzac Day marches or concerts at a park.

The LGAQ advises that the council should monitor and evaluate the effects of the declaration of the move-on area to ensure that the aims of the application are being achieved (such as whether people using the area are feeling safer and thereby use the area more often) and whether there have been any unforeseen consequences (such as merely moving the problem to another place). Whether the objects of the declaration are being met could be measured in various ways. If the aim was to increase the public perception of safety, a survey could be used to ask people using the area about their feelings of safety or crime statistics could be obtained. The ‘after’ effects should be compared with those ‘before’ the declaration, with the latter providing a baseline against which changes can be measured.14

The following areas, set out in Schedule 11 of the Regulation, are currently ‘notified areas’ for the purposes of the PPR Act –

• Boyne Island, Bray Park;

• The Goodwill Bridge and area at South Bank end;

• John Laws Park and Justin Park at Burleigh Heads;

12 Hon Judy Spence MP, Minister for Police & Corrective Services, ‘Brisbane City Council Gets

Extended Move-On Areas’, Queensland Media Statement, 17 February 2006, http://statements.cabinet.qld.gov.au/MMS/StatementDisplaySingle.aspx?id=44574.

13 LGAQ, ‘Declaration of a Notified ‘Move-On’ Area: Information and Application Guidelines’.

14 LGAQ, ‘Declaration of a Notified ‘Move-On’ Area: Information and Application Guidelines’.

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• Cairns library and the Esplanade vicinity;

• Kingaroy bus terminal, civic centre and O’Neil Square;

• Mount Isa CBD;

• Rockhampton – Alexandra Bridge vicinity; Bencke Park; CBD; Central Park; Kershaw Gardens

• Surfer Paradise Esplanade;

• Tannum Sands Millennium Esplanade Recreation Area;

• Townsville – Dean Park; Echlin Street and West End Quarry Reserve; Flinders Street; Palmer Street; Perfume Gardens and Old Magistrates Court; The Strand; Victoria Bridge; West End Park.

As will be discussed below, some areas in the Brisbane CBD have recently become ‘notified areas’.

Police have long had move-on powers in the Brisbane Queen Street Mall and a ‘mall’ is a ‘prescribed place’ under the PPR Act.

On 24 September 2005, the BCC gave notice of its intention to apply for a declaration of a notified area over New Farm Park, Kurilpa Point and King George Square. It is reported that the BCC received 248 submissions in response to the notice of intent and 212 of these were opposed the move.15 In May 2005, two young people were bashed in Kurilpa Park. This followed the murder of a man in the same park in January 2005.16 The Brisbane Lord Mayor, Campbell Newman, is reported to have commented that he acted to make the application after a long string of violent events and that he had also been working with the police to understand the nature of the problems in those areas.17

In February 2006, the Minister for Police and Corrective Services, the Hon Judy Spence MP, approved the application from the BCC to have New Farm Park, Kurilpa Point and King George Square declared ‘notified areas’.18

In relation to the recent notified area declaration covering New Farm Park, Kurilpa Point and King George Square, it has been argued by the Queensland Anti-

15 Jennifer Dudley, ‘Move-on laws to go ahead, Courier Mail, 21 November 2005, p 5.

16 Margaret Wenham, ‘Mayor seeks police move-on action’, Courier Mail, 6 May 2005, p 3.

17 Margaret Wenham.

18 Hon Judy Spence MP, ‘Brisbane City Council Gets Extended Move-On Areas’.

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Discrimination Commission (ADCQ) that there is potential for discrimination to occur against Aboriginal people, young homeless people and people with mental health problems who use those areas. Aboriginal people, in particular, have unique cultural connections with the South Brisbane area.19 More generally, in relation to move-on powers, the ADCQ has argued that those powers encourage the community to exclude people on the basis of race, poverty and/or homelessness. It observed that the conferral of move-on powers was an attempt to turn an essentially social issue that was the responsibility of the whole community into a law and order issue, placing an unfair burden on the police.20

Another opponent lobby group, the Homeless Person’s Legal Clinic, is reported to have claimed that the BCC and the police had not produced statistics indicating an increase in public order offences to justify the declaration.21

2.1.3 Examples of a Direction to Move-On

The direction to move-on must not be given if it interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of public safety, or public order; or the protection of rights and freedoms of other persons (e.g. to enjoy the public place): PPR Act, s 39(2).

Section 39 contains examples of the type of direction to a person by a police officer that may be reasonable in the circumstances –

• if the occupier of a shop complains that a person is sitting in a shop doorway stopping people from entering or leaving during business hours – directing the person to move away from the doorway;

• directing a group of people fighting in a night club car park to leave the premises in opposite directions in order to separate the aggressors;

• directing a person near a primary school, whose presence may cause anxiety to a reasonable parent, to leave the school area.

In all cases, the police officer must tell the person(s) the reasons for giving the direction: s 39(4).

19 Anti-Discrimination Commission Queensland, Submission to the BCC regarding its application

for declarations of notified areas at New Farm Park, Kurilpa Point and King George Square, October 2005, http://www.adcq.qld.gov.au/docs/Move_on_Powers.rtf.

20 Anti-Discrimination Commission Queensland, p 9.

21 Julian Kennedy, ‘Council powers ahead on move-on’, City News, 24 November 2005, p 11.

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2.1.4 Disobeying a Direction

An offence is committed if a person contravenes a direction given by a police officer and the person is liable to a fine unless the person has a reasonable excuse: PPR Act s 445. Before a person is arrested for failing to obey a direction to move-on, the police officer must warn the person that it is an offence to disobey a direction unless they have a reasonable excuse and provide the person with a reasonable opportunity to comply: PPR Act, s 391.

Note also that ‘enforcement acts’, which (according to the Schedule 4 Dictionary) include the giving of a s 39 direction must be entered into an ‘enforcement register’ pursuant to ss 412-413 of the PPR Act.22 At any time within three years after the enforcement act is done, the person against whom it was done can ask the police officer who is entitled to inspect the register to give the person a copy of the information recorded in it about the act: s 415. The request has to be complied with unless disclosure of the information is restricted for any reason set out in s 416 of the PPR Act (e.g. doing so may cause prejudice to an investigation).

2.2 OTHER POLICE POWERS AND RESPONSIBILITIES ACT 2000 POWERS TO DEAL WITH BREACH OF THE PEACE AND SIMILAR CONDUCT

Part 5 of the PPR Act (ss 42-44A) also gives the police powers to deal with breaches of the peace, riots and the prevention of offences generally. If a police officer reasonably suspects that a breach of the peace is happening, has happened, or will happen or there is a threatened breach of the peace, the police officer may take reasonably necessary steps to prevent it even though the conduct prevented might otherwise be lawful. One of the examples provided is that property that could be used for breaching the peace can be seized. A person can also be detained in custody for a reasonable time. If a police officer reasonably suspects an offence has been, is being, or is about to be, committed, the police officer may lawfully take those steps reasonably necessary to prevent this. One example provided is the removal of an obscene placard if it contravenes a law because it is visible to the public. It is also lawful for a police officer to take reasonably necessary steps to suppress a riot.

In 2000, a provision (s 44A) was inserted to empower a police officer to seize and dispose of liquor if the officer reasonably suspects that certain public offences under the Liquor Act 1992 or ‘dry place’ laws under the Aboriginal Communities (Justice and Land Matters) Act 1984 or the Community Services (Torres Strait) Act 1984 is being, or is about to be, committed.

22 Section 65 of the Police Powers and Responsibilities Regulation 2000 (Qld) sets out the

information that must be recorded regarding the move-on direction.

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It has been claimed that the Part 5 powers, while seeming broad, are somewhat limited by the fact that the powers arise in relation to breaches of the peace; commission of an offence, or commission of a liquor offence only where there the police officer concerns holds a ‘reasonable suspicion’ about such.23 Moreover, a ‘breach of the peace’ has a meaning at common law which tends to connote behaviour that causes other persons to fear being harmed by that behaviour or behaviour that has harmed, or is causing harm, to another person.24 Similarly, at common law, a ‘riot’ occurs only if at least three people are involved; if they have a common purpose; if that purpose is being carried out; if they will, if necessary, use force to carry it out; and if the force used or displayed is such as to alarm at least one person of reasonable firmness and courage.25

3 ARGUMENTS FOR AND AGAINST MOVE-ON POWERS

3.1 OPPOSITION TO MOVE-ON POWERS

At the time that the move-on powers under the Police Powers and Responsibilities Act 2000 came into force, Legal Aid Queensland and the Youth Advocacy Centre shared concerns about the impact of the laws on young people. It was feared that the powers might be targeted unfairly at them because young people tend to use public spaces, such as malls, more than adults do in order to socialise or wait for a bus.26

A Youth Advocacy Centre survey conducted with Queensland young people indicated that 10% of them were moved on from areas not covered by the legislation and one in three young people moved on were from an Indigenous background.27 The Director of the Centre, Mr Paul Spooner, argued that there were already laws to deal with offensive behaviour in public places and what was

23 S Keim, p 31.

24 Halsbury’s Laws of England, para 108; R v Howell [1982] 1 QB 416.

25 Field v Receiver of Metropolitan Police [1907] 2 KB 853 at 860.

26 Legal Aid Queensland, ‘Youth lawyers concerned about police move-on laws’, Media Release, 30 June 2000.

27 Legal Aid Queensland, ‘Youth lawyers concerned about police move-on laws’.

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needed was more creative thinking by policy makers to cater for the recreational and social needs of young people.28

It has been observed that while there are legislative constraints on the exercise of the move-on powers under the PPR Act, the powers could still be misused, particularly by a police officer purporting to give a move-on direction in a situation where there is no legal authority to do so. This may not be deliberate but could arise from confusion about the extent of the power. The concern is that the move-on powers are ones that may tend to be used against people – such as the homeless and/or young people – who may not be aware of their rights or know how to defend any charges brought against them for breach of a direction.29

Opponents of ‘move-on’ powers claim that the police already have enough authority to deal with the type of situations in which the power could be used and that the power is directed at minority groups, the young and the homeless. The Aboriginal Legal Aid Service has submitted that Indigenous people are more open and public in their lifestyle and that the creation and use of move-on powers would be in ignorance of cultural differences.30 The PCJC, in its Review of the CJC Report, agreed that there was little doubt that the power would most often be used against those who make the most use of the streets – the young, the homeless and Aboriginal people. However, the PCJC went on to say that the solution was to better train police officers in the use of the powers rather than not have the powers at all.31

In a submission to the CJC during its 1993 Review, the Queensland Council for Civil Liberties expressed the fear that move-on powers would be used to counter political protests. It commented that the move-on power in the Traffic Act, which was intended for traffic regulation purposes, had been used for political purposes during the ‘march ban’ era of the late 1970s to move on protesters who were not blocking vehicular or pedestrian traffic.32 However, s 36 of the PPR Act may address this concern. The provision states that the move-on powers are not permitted to be used in relation to lawful public assembly under the Peaceful Assemblies Act 1992. The inclusion of this provision was recommended by the PCJC.

28 Legal Aid Queensland, ‘Youth lawyers concerned about police move-on laws’.

29 S Keim, p 34.

30 PCJC, Report 23B, p 235, quoting a submission from the Aboriginal Legal Aid Service.

31 PCJC, Report 23B, p 235.

32 PCJC, Report 23B, p 237, quoting from the Queensland Council for Civil Liberties submission to the CJC.

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Another reason for various representative bodies opposing the introduction of move-on powers that was given to the CJC Review was that those powers will not prevent crime from occurring, it would just be moved to another location. It has been argued that potential offenders are moved on to less affluent areas that are more ‘appropriate’ for offensive conduct, and away from public gaze.33

3.2 SUPPORT FOR MOVE-ON POWERS

On the other hand, advocates of move-on powers argue that the public should be entitled to use public spaces, such as malls and parks, without fear of disruptive elements and unruly conduct and that those who interfere with such use should be moved on. The Queensland PCJC regarded this argument as possibly the strongest one favouring the introduction of a move-on power. It considered that the Parliament should always try to strike an appropriate balance between giving additional powers to police to enforce and maintain the law and the rights and liberties of individuals. 34

The PCJC also noted the emphasis that society places on freedom of movement in public spaces and observed that there was much anecdotal evidence suggesting that a great number of ordinary people’s freedom of movement was being hampered by those who have no regard for the rights of others. Thus, the movement of ordinary citizens was not hampered by police powers but, rather, by the fear of people who congregate and harass and intimidate passers-by. Therefore, a move-on power might be viewed as a power that enforces the right of people to enjoy freedom of movement in public areas without fear of harm or harassment.35

Of special concern, according to the PCJC, was the fact that before the creation of the move-on powers in the PPR Act, there were no laws dealing with persons loitering around areas that children frequent.36

33 PCJC, Report 23B, pp 239-240, drawing upon submissions by bodies including the Council for

Civil Liberties and the Juvenile Advocacy Service to the CJC.

34 PCJC, Report 23B, pp 226-227.

35 PCJC, Report 23B, pp 226-227.

36 PCJC, Report 23B, p 233.

Police Move-On Powers Page 13

3.3 RECENT ISSUES REGARDING SAFETY AND PUBLIC ORDER

In June 2004, a violent incident occurred in the Queen Street Mall involving up to 60 youths brawling with police. A number of shoppers and businesses were affected by the incident which provided impetus for a safety summit to discuss Mall safety. The safety summit took place on 29 June 2004 and was followed up with a $1.1 million BCC security plan including more police patrols in the Mall.37 Then, in November 2004 another drug and alcohol-fuelled incident occurred in Edward Street in Brisbane when teenagers threw glass and other objects from a building.38 Within days, a man was killed after an assault following a ‘queue-jumping’ incident at a taxi rank at Petrie Terrace. The public was shocked further when, in February 2005, a 23 year old man died from severe head injuries he received during an assault outside a hotel in Brisbane’s CBD, apparently for his running shoes.39

On 21 February 2005, Lord Mayor Campbell Newman announced a four-point plan aimed at dealing with violence in the CBD. The plan addressed matters such as improved street lighting, security cameras and patrols and police beat, more emphasis on prosecuting anti-social conduct, and social support for the homeless and people suffering from mental illness or drug addiction.40

On 25 February 2005, the Premier, the Hon Peter Beattie MP, convened a summit to discuss public order and safety in the Brisbane CBD which was attended by a number of Government Ministers, the Police Commissioner, the Lord Mayor, the Gold Coast City Council Mayor, night club owners, the Queensland Hotels Association, the taxi industry and Drug Arm. The public was also invited to make submissions. Several issues were raised and suggestions made including the need for more responsible alcohol service practices by liquor licensees and a 3 am lock-out at nightclubs which was then in place at the Gold Coast and in Cairns.41 The foregoing culminated in the 17-point Brisbane City Safety Action Plan released by

37 Darrell Giles, ‘$1.1 million to beat city violence and crime – plea for more police patrols after

mall brawl’, Sunday Mail, 11 July 2004, p 20.

38 Chris Griffith, ‘police seek riot gear to fight violence’, Courier Mail,, 6 November 2004, p 6.

39 Editorial, ‘Taxi death raises night safety issues’, Courier Mail, 11 January 2005, p 18.

40 Stefanie Balogh, ‘Lord mayor on mission to clean up the streets’, Courier Mail, 21 February 2005, p 6.

41 Malcolm Cole & Rosemary Odgers, ‘City forced to sober up – Beattie to curb alcohol’, Courier Mail, 26 February 2005, p 1. The 3 am lock-out is no longer in place in Cairns (see later).

Page 14 Queensland Parliamentary Library

the Premier on 1 March 2005.42 A 10 member taskforce was established to monitor the implementation of the Safety Action Plan.

The main features of the Safety Action Plan are –

• a 3 am lock-out from night clubs in the Brisbane CBD;

• more stringent licence conditions for licensed premises that trade after 1 am;

• bans on promotions of free drinks, multiple drinks and the like with a plan to comprehensively review the Liquor Act 1992;

• greater police presence in Brisbane, including a focus on alcohol and drug issues;

• improving security at taxi ranks and late night public transport;

• a review of the Bail Act 1990 and the PPR Act.

Also, in March 2005, the Summary Offences Act 2005 (Qld) came into force which contains powers enabling police officers to take immediate action to deal with various public order offences, including those fuelled by alcohol.

Subsequent to the above developments, amendments were made to the Liquor Act 1992 in April 2005 to give legislative effect to two matters in the Safety Action Plan. These were, firstly, a 12 month trial of a 3 am lock out in the Brisbane City local government area and a statewide ban on the external advertising of free drinks, multiple drinks, and/or discounted liquor.43

This was followed by further amendments to the Liquor Act 1992 that commenced on 1 December 2005. The changes apply only to the Brisbane City Council area. The new Part 5 Division 6 of the Act imposes new licence conditions on all licensed premises in the BCC area that sell or supply liquor after 1 am. Those new conditions require licensed premises to have a prescribed minimum number of crowd controllers while open and for at least one hour after closing; the licensee, nominee and staff have to undertake a Responsible Service of Alcohol Training Program; CCTV must be located at each entrance and exit; an incident register has to be maintained; and a House Policy must be displayed which deals with issues such as unacceptable behaviour of patrons. In addition, games, competitions and the similar activities that encourage binge drinking are not permitted and certain

42 At http://www.thepremier.qld.gov.au/library/pdf/bc_safety_action_plan.pdf.

43 These amendments and the background thereto are discussed in the Queensland Parliamentary Library publication ‘Liquor Amendment Bill 2005 (Qld): A 3 am Lock Out for Brisbane’s Licensed Premises and Statewide Restrictions on Alcohol Advertising’, RBR 2005/09, http://www.parliament.qld.gov.au/ConcordDocs/Q05/Q050412LA01.PDF.

Police Move-On Powers Page 15

‘restricted activities’ such as ‘happy hours’ will be allowed only after certain times and for certain periods.

In January 2006, the Queensland Commercial and Consumer Tribunal decided to overturn the 3 am lockout that had been operating in Cairns nightclubs and hotels for some time. On 20 January 2006, the Queensland Minister for Police and Corrective Services expressed her disappointment about the decision, saying that it was a step backward for community safety. Ms Spence said that the Tribunal’s consideration that the lockout was now unnecessary given the recent level of cooperation between nightclub and hotel licensees and the Police and Government failed to acknowledge that it was the proposal of the lockout that brought licensees into cooperation with Government in the first place. The Minister believed that issues such as this could be overcome by statewide legislation imposing 3 am lockouts of a similar type to that imposed on pubs and clubs in the Brisbane CBD under recent amendments to the Liquor Act 1992.44

On 20 January 2006, the Queensland Minister for Police and Corrective Services and the BCC Lord Mayor signed a two-year Memorandum of Understanding (MOU) setting out a framework for collaboration on prevention of crime in the Brisbane CBD and surrounding areas. The BCC will work in partnership with police to share information and ideas to facilitate the best response to crime and to help to reduce people’s fear of crime. One example of this is the CitySafe CCTV system which monitors city trouble spots. Regular meetings will be held to develop strategies for mutual assistance in carrying out operational duties and responding to anti-social conduct and criminal activity. Councillor Newman noted that the BCC will maintain the Council’s Crime Prevention Through Environmental Design Planning Scheme Policy to street and built environments to ensure that opportunities for crime are minimised. The police also have a number of responsibilities under the MOU including maintaining prompt and effective policing responses to incidents in the CBD and surrounds and notifying the BCC of any insecure building so that the BCC can tell the building owner to secure it.45

In addition, the Safe Youth Parties Taskforce, chaired by Member for Mt Ommaney, Julie Attwood MP, was established in response to problems created over the past few years by ‘gatecrashing’ teen partygoers. The Taskforce’s ‘Safe Celebrations – Report into out-of-control youth parties’ was tabled by the Minister for Police and Corrective Services on 28 March 2006. The Report made 14 recommendations. Those included expanded move-on powers for police; making

44 Hon Judy Spence, Minister for Police and Corrective Services, ‘3 am Lockout Laws Should

Apply Statewide’, Queensland Media Statement, 20 January 2006.

45 Hon Judy Spence MP, Minister for Police & Corrective Services, ‘Landmark Agreement Signed to Improve Brisbane Safety and Security’, Queensland Media Statement, 20 January 2006.

Page 16 Queensland Parliamentary Library

parents pay their child’s unpaid fines for underage drinking offences; requiring police to report any issues of parental neglect of children who are repeatedly engaging in underage drinking to the Department of Child Safety; and specific campaigns to target school-based alcohol and drug abuse. The Government delivered its response on 28 March 2006, accepting all of the Taskforce’s recommendations. The Minister for Police and Corrective Services said that gatecrashing was a secondary issue with the police data used by the Taskforce showing that 82% of parties attended by police did not involve gatecrashing. The Minister stated that the Taskforce had found that the main issue causing parties to become uncontrollable was excessive alcohol consumption.46 The Premier stated that statewide move-on powers had already been canvassed and these powers will assist in resolving problems caused when gatecrashers respond violently to attempts to eject them from parties.47

4 RECENT DEVELOPMENTS

In January 2006, the Premier, the Hon Peter Beattie MP, announced that he would be bringing a submission to Cabinet for statewide move-on powers to be given to police. Mr Beattie is reported to have said that he did not want to see anything similar to Sydney’s Cronulla Beach riots and violence in Queensland.48 Provision for statewide move-on powers would eliminate the need for councils to apply for declared notified areas under ss 40 and 41 of the PPR Act. As shown earlier, it is mainly the larger councils such as the BCC, Gold Coast City Council, Townsville City Council and Cairns City Council that have used these application provisions.

The Premier’s proposal was subsequently supported by the Minister for Police and Corrective Services, Judy Spence MP, in the context of her visit to Gold Coast trouble spots and in the wake of violence by gangs of up to 200 youths on the southern end of the Gold Coast. The Minister considered that extending the move-on powers to all public places in Queensland would remove the time consuming application process for councils which also involves having to engage in public

46 Hon Peter Beattie MP, Premier of Queensland and Hon Judy Spence MP, Minister for Police &

Corrective Services, ‘Safe Youth Parties Taskforce Delivers it Report’, Queensland Media Statement, 28 March 2006.

47 Hon Peter Beattie MP & Hon Judy Spence MP, ‘Safe Youth Parties Taskforce Delivers it Report’.

48 Darrell Giles, ‘Beattie wants move-on powers to avoid race riots’, Sunday Mail, 1 January 2006, p 24.

Police Move-On Powers Page 17

advertising and receiving and making submissions. Safeguards would remain such as requiring police officers to record their use of the power, as currently occurs.49

The moves have been opposed by groups such as the Queensland Council for Civil Liberties whose spokesperson, Mr Terry O’Gorman, is reported to have commented that the new powers could be abused as they tend to target the poor, the young, Indigenous persons and the homeless, all of whom are unable to make an effective complaint about a misuse of powers.50

5 MOVE-ON POWERS OTHER JURISDICTIONS

5.1 NEW SOUTH WALES

General Move-On Powers

Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 allows a police officer to give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence is obstructing another person(s) or traffic; or constitutes harassment or intimidation of another person(s); or is causing or likely to cause fear to another person(s) (so long as such would cause fear to a person of reasonable firmness); or is for purposes related to dealing with prohibited drugs (e.g. purchasing or supplying of such). The ‘another person(s)’ need not be in the public place but must be near to it.

A ‘public place’ has a broad meaning and includes –

• a place (whether or not covered by water), or part of premises, that is open to, or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, and

• a road or road related area.

49 Hon Judy Spence, Minister for Police & Corrective Services, ‘Spence Supports Move-On

Powers for Police in All Public Spaces’, Media Statement, 23 January 2006.

50 ‘Spence pushes for uniform move-on laws’ ABC News Online – Regional, 23 January 2006, p 1.

Page 18 Queensland Parliamentary Library

However, a ‘public place’ does not include a school.51

The direction given must be reasonable in the circumstances and accompanied by a warning that non-compliance may constitute an offence. If the direction is to a group, it need not be repeated for every member of the group. Under Part 15 of the Act, if the direction given is in compliance with the Act and the person does not comply, the direction may be given again along with the warning that non-compliance may be an offence. If a person does not comply with the direction and has no reasonable excuse for refusing or failing to comply, the person can be fined.

Directions must not be given in relation to an industrial dispute; an apparently genuine demonstration or protest, a procession, or an organised assembly.

Move-On Powers Applying to Children

Part 3 of the Children (Protection and Parental Responsibility) Act 1997 allows local councils to ask the Attorney-General to declare areas to be operational areas for a specified time, enabling the police to remove children from public places in those areas. It appears that the criteria upon which a decision to make a declaration is determined are similar to the criteria for declaring a ‘notified area’ under the Queensland PPR Act (e.g. consultation with local community, extent and nature of crime in the area, impact on young people in terms of recreational facilities etc.). If a child whom a police officer believes on reasonable grounds to be under 16 years of age is in a public place in an operational area, the police officer may remove the child if the police officer believes on reasonable grounds that the child is not under adult supervision or control and is in circumstances that place the child at risk. An example of being at risk would be if that child is in danger of physical harm or abuse, or is about to commit an offence.

The police officer may escort, or ask another police officer to escort, the child to the child’s home but must not leave the child there unless the parent or carer or other responsible adult is present and able to care for the child, or the police officer is satisfied that the child can be left even if no responsible adult is there. If neither of these alternatives applies, the child can be taken to a close relative’s home. Failing this, the police officer may place the child in the care of the Department of Community Services or of an approved person (designated by the Director-General of the Department) for up to 24 hours. The police officer must take into account the child’s wishes and feelings volunteered by the child, having regard to the child’s age and understanding.

51 The Summary Offences Act 1988 (NSW), s 11G, makes it an offence for a convicted child

sexual offender to loiter near schools or public places frequented by children.

Police Move-On Powers Page 19

The police officer is empowered to request that the child give their name, age and address and may use reasonable force to remove the child and take them to their home. If the police officer believes on reasonable grounds that the child may be carrying a concealed weapon, the child may be frisk searched and any weapon found on the child seized.

Guiding principles apply when a police officer removes a child in these circumstances. Best endeavours must be used to escort the person home to parents or other carer and the paramount duty is to ensure that any action taken is in the best interests of the child.

It has been observed that in the first six months of 1999, 145 young people were removed from public places in the four local areas where the Act applied and 90% of these were Aboriginal children.52

Police Emergency Powers

In December 2005, the New South Wales Government passed laws to increase police powers in response to fears of continued racial violence in the wake of riots at Cronulla Beach earlier that month.53 The Parliament was recalled for a special sitting on 15 December 2005 to introduce and pass the Law Enforcement Legislation Amendment (Public Safety) Act 2005. One of the main features of the legislation was the insertion of a new Part 6A into the Law Enforcement (Powers and Responsibilities) Act.

Part 6A provides the police with a number of emergency powers to deal with riots or other civil disturbances that give rise to a serious risk to public safety. If a senior police officer has reasonable grounds for belief that there is a large scale public disorder occurring, or there is a threat of such, in the vicinity of a licensed premises, the police officer may authorise the premises to close for up to 48 hours (unless extended) or prohibit the sale of liquor on the premises if doing so will reasonably assist in controlling or preventing the public disorder. An emergency alcohol-free zone can also be established in such circumstances for up to 48 hours (unless extended) and drinking liquor in that zone is an offence, provided that a police officer has given a warning to anyone found with liquor in the zone.

52 R White, ‘Police and Community Responses to Youth Gangs’, Trends and Issues in Crime and

Criminal Justice, Australian Institute of Criminology (AIC), March 2004, citing C Chan & C Cunneen, Evaluation of the Implementation of the New South Wales Police Service Aboriginal Strategic Plan, Sydney Institute of Criminology, 2000.

53 Mr M Iemma MP, Premier, Treasurer and Minister for Citizenship, Law Enforcement Legislation Amendment (Public Safety) Bill 2005 (NSW), Second Reading Debate, New South Wales Legislative Assembly Hansard, 15 December 2005, p 20620, http://www.parliament.nsw.gov.au/prod/parlment/hanstrans.nsf/V3ByKey/LA20051215

Page 20 Queensland Parliamentary Library

Where large scale public disorder is occurring or there is a threat of such occurring, the police can authorise a ‘lockdown’ to control or prevent the disorder in a specified area or to stop vehicles travelling into it to participate in the disorder. The initial lockdown cannot exceed 48 hours but can be extended in certain circumstances. To give effect to the ‘lockdown’, a cordon or road block can be set up to stop and search persons or vehicles or stop people freely entering or leaving. The police also have the power, during the ‘lockdown’, to ask for a person’s identity and to seize and detain a vehicle or mobile phone or other communication device that may prevent or control the disorder, or a thing that may provide evidence of a serious offence.

In addition, the police can exercise these emergency powers in relation to a vehicle and its occupants where the ‘lockdown’ has not been formally imposed but the circumstances are sufficiently urgent to warrant the exercise of the powers.

Safeguards apply regarding exercise of powers conferred by Part 6A, including monitoring by the Ombudsmen. A sunset provision is included to repeal the provisions on the second anniversary of their commencement.

The Law Enforcement Legislation Amendment (Public Safety) Act 2005 also amended the Crimes Act 1900, primarily by inserting a new s 59A which states that a person who assaults another person during a large scale public disorder, although not occasioning actual bodily harm, is liable to imprisonment for 5 years. The term increases to 7 years if the assault occasions actual bodily harm. In addition, amendments to the Bail Act 1978 ensure that if a person is accused of an offence that is punishable by imprisonment for 2 years or more that is alleged to have been committed during participation in large scale public disorder or in connection with the exercise of police power to prevent or control such disorder, bail is not to be granted unless the accused can satisfy the police or the court that bail should not be refused. Thus there is a presumption against bail for such an offence. This amendment addressed the situation that arose when 23 people charged over the Cronulla riots were granted bail.54

5.2 TASMANIA

Section 15B of the Police Offences Act 1935 allows a police officer to direct a person in a public place to leave and not return for a specified period of not less than 4 hours if the police officer believes on reasonable grounds that the person –

• has committed, or is likely to commit, an offence; or

54 Mr M Iemma MP, Law Enforcement Legislation Amendment (Public Safety) Bill 2005

(NSW), Second Reading Speech, p 20620.

Police Move-On Powers Page 21

• is obstructing, or is likely to obstruct, the movement of pedestrians or vehicles; or

• is endangering, or is likely to endanger, the safety of others; or

• has committed, or is likely to commit, a breach of the peace.

A ‘public place’ is given a very wide inclusive definition in s 3 and covers areas such as parks and other public recreation areas; railways and rail infrastructure; churches; public halls and places of public entertainment; markets; liquor premises; sporting venues; streets; schools; cemeteries and so on. Thus, there are many venues and areas open to the public where the power may be exercised.

A person must comply with the police officer’s direction or is liable to be fined.

5.3 WESTERN AUSTRALIA

A new provision was inserted into the Police Act 1892 and came into effect in mid 2005. The new s 50 provides that a police officer may order a person who is in a public place or in a vehicle, vessel or aircraft used for public transport to leave it or part of it as specified by the officer. However, this power may only be used if the police officer reasonably suspects that the person is –

• doing an act that involves the use of violence against a person, or will cause a person to use violence against another person, or that will cause a person to fear violence will be used;

• is just about to do an act that is likely to have the abovementioned effects;

• is committing any other breach of the peace;

• is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person;

• intends to commit an offence, or has just committed, or is committing an offence.

The term ‘public place’ is not defined.

A police officer giving the order may, in addition, order the person to go beyond a reasonable distance from a place or part thereof and/or order the person to obey the order for a set period lasting up to 24 hours. The order must be in writing in an approved form. If the person does not comply with the order to move-on, they can be charged with an offence.

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The new section partially replaced older offences in the Police Act: ‘being suspected of being about to commit an offence’, ‘loitering’, ‘evil designs’ and ‘hindering a lawful activity’.

In May 2005, just before the new powers came into effect, the WA Council for Civil Liberties expressed concern that the law gave too much power to individual police officers and it could be misused. This fear was countered by the WA police with one Superintendent reported to have stated that the power would be used sparingly and that police officers had been trained in the use of that power. The police were reported as seeing the greatest benefit of the new law as enabling them to direct groups of people sitting around the streets drinking to move on.55

5.4 SOUTH AUSTRALIA

Section 18 of the Summary Offences Act 1953 forms part of the ‘offences against public order’ provisions in Part 3 of the Act. The section provides that where a person is loitering in a public place or a group of persons is assembled in a public place, a police officer may request that person to cease loitering, or request those persons in the group to disperse in certain circumstances. Those circumstances exist if the police officer believes or apprehends on reasonable grounds –

• that an offence has been, or is about to be, committed by that person or by one or more of the persons in the group or by another in the vicinity; or

• that a breach of the peace has occurred, or is occurring, or is about to occur in the vicinity of that person or group; or

• that the movement of pedestrians or vehicular traffic is or is about to be obstructed by the presence of the person or group or of others in the vicinity; or

• that the safety of a person in the vicinity is in danger,

A ‘public place’ is defined in s 3 as place to which free access is permitted to the public; a place to which the public are admitted on payment of money, the test of admittance being the payment of money only; and a road, street, footway, court, alley or thoroughfare which the public are allowed to use, notwithstanding that that these things are on private property.

The person to whom the request is made must leave the place and vicinity or face a fine of up to $1,250 or 3 months imprisonment.

55 ‘Police defend ‘move on’ powers’, ABC Western Australia Online, 25 May 2005,

http://www.avc.gov.au/news.

Police Move-On Powers Page 23

5.5 NORTHERN TERRITORY

The power given to the police in this context in the Northern Territory is found in s 47A of the Summary Offences Act which concerns loitering in public places. If a person is so loitering and a police officer believes on reasonable grounds –

• that an offence is likely to be, or has been, committed by that person or by another person loitering in the vicinity; or

• that the movement of pedestrian or vehicular traffic is obstructed, or is about to be obstructed, by that person or by another person loitering in the vicinity; or

• that the safety of persons in the vicinity is in danger; or

• that the person is interfering with the reasonable enjoyment of other persons using the public place,

the police officer may require the person so loitering to cease loitering and to remove any article under his or her control from the public place.

A ‘public place’ includes places to which access is permitted to the public and roads, streets, footways, courts, alleys or thoroughfares which the public are allowed to use even if on private property. If the person does not comply then they risk a fine or imprisonment for 6 months.

5.6 AUSTRALIAN CAPITAL TERRITORY

Section 4 of the Crime Prevention Powers Act 1998 applies if there are reasonable grounds for a police officer to believe that a person in a public place has engaged, or is likely to engage, in violent conduct in that place. ‘Violent conduct’ means violence to, or intimidation of, another person; or property damage. In such a situation, the police officer may direct the person to leave the vicinity of the public place. If the police officer has reasonable grounds for believing that the person is likely to engage in violent conduct while, or immediately after, leaving by a certain route, the person can be directed to leave via a different route. The person may also be directed not to return for a period of up to 6 hours. Non-compliance, without reasonable excuse, is an offence.

Given that a ‘public place’ is defined to mean any street, road, public park or reserve or any building open to the public, the areas in which the move-on powers can be used are quite broad. Non-compliance can result in a fine being imposed.

The foregoing power does not apply in relation to persons picketing a place of employment; or holding a demonstration or protest; or speaking, bearing or identifying with a banner, placard or sign intended to publicise a viewpoint about an issue.

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5.7 VICTORIA

There do not appear to be any specific move-on powers conferred on the Victorian police. Apart from Part 1 of the Summary Offences Act 1966 providing that certain types of conduct, such as engaging in threatening or offensive behaviour in public or obstructing a footpath, are offences carrying fines of varying amounts, there is no actual power given to police officers to direct those engaging in such conduct to move-on.

As part of its 2006 State Election campaign, the Victorian Liberal Party has committed to a policy of immediate introduction of move-on powers that will allow police officers to direct people acting in an anti-social manner (such as a manner likely to cause offence, harassment or fear) to leave an area and not return. Failure to comply with the direction would be an offence. However, the legislation would make it clear that any direction so given could not relate to a genuine demonstration, protest or organised assembly. A commitment was also made to introduce laws that would give the police power to return children under the age of 15 to their home if they are in a public place after midnight and are acting in an anti-social manner.56

Under s 60B of the Crimes Act 1958, sexual offenders and certain other offenders must not loiter in or near a school, kindergarten or child care centre or a public place frequented by children or an offence is committed.

56 Liberal Party of Victoria, ‘Combating Anti-Social Behaviour’, State Policy Information for the

2006 State Election, http://www.vic.liberal.org.au/Policies/Index.htm.

RECENT PARLIAMENTARY LIBRARY RESEARCH PUBLICATIONS 2006 RESEARCH BRIEFS 2006/01 The Food Bill 2005 (Qld) Feb 2006 2006/02 Disability Services Review- The Disability Services Bill 2005 (Qld) Feb 2006 2006/03 Industrial Manslaughter Feb 2006 2006/04 Majority Jury Verdicts in Criminal Trials Feb 2006 2006/05 Child Employment Feb 2006 2006/06 Retirement Villages Amendment Bill 2006 Feb 2006 2006/07 Workers’ Compensation and Rehabilitation Amendment Bill 2006 Mar 2006 2006/08 Foster Carers’ Transfer to Blue Card Regime by the Child Safety (Carers) Amendment Bill 2006

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RBR 2006/16 Police Move-On Powers (QPL, April, 2006)

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Reform of Vagrancy Laws in Queensland: The Summary Offences Bill 2004 (Qld) (QPL February 2005)

RBR 2005/06