Summary Offences and Sentencing Amendment Bill 2013

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EXPLANATORY MEMORANDUM

General

This Bill changes two areas of the law—

It amends the Summary Offences Act 1966 to provide for additional circumstances in which police members and protective services officers (PSOs) may direct a person to move on from a public place and clarifies the operation of those powers. The Bill also creates a new move-on-related exclusion order scheme within the Summary Offences Act 1966. The scheme will permit police members to apply to a court for an exclusion order in circumstances where a person has repeatedly been directed to move on from a particular public place. The order would have the effect of banning that person from the specified public place for up to 12 months.

The Bill creates an alcohol exclusion order scheme within the Sentencing Act 1991. Under the scheme, a court must make an alcohol exclusion order where a person has been convicted of a relevant offence and the court is satisfied that the person was intoxicated at the time, and that the person's intoxication significantly contributed to the offending.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the main purposes of the Bill, which are to amend the Summary Offences Act 1966 in relation to directions to move on and to provide for the making of exclusion orders from public places, and to amend the Sentencing Act 1991 to provide for the

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making of alcohol exclusion orders in relation to offenders who commit relevant offences.

Clause 2 provides that the Bill will come into operation on a day or days to be proclaimed, with a default commencement date of 1 September 2014.

PART 2—AMENDMENTS TO THE SUMMARY OFFENCES ACT 1966

Clause 3 inserts a range of new circumstances in which police members and PSOs may direct a person to move on from a public place under section 6 of the Summary Offences Act 1966.

Clause 3 adds the following five grounds to the list of circumstances in which a move-on direction can be given—

the person has or persons have committed, within the last 12 hours, an offence in the public place; or

the conduct of the person or persons is causing a reasonable apprehension of violence in another person; or

the person is or persons are causing, or likely to cause, an undue obstruction to another person or persons or traffic; or

the person is or persons are present for the purpose of unlawfully procuring or supplying, or intending to unlawfully procure or supply, a drug of dependence; or

the person is or persons are impeding or attempting to impede another person from lawfully entering or leaving premises or part of premises.

These new grounds are intended to provide greater certainty for police members and PSOs exercising their move-on powers and expand the range of circumstances in which a move-on direction may be given.

As with the existing grounds in section 6 of the Summary Offences Act 1966, PSOs will only be able to use these powers in designated places such as train stations.

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Subclause (3) provides further guidance for police members and PSOs in determining whether an obstruction is undue. Specifically, police members and PSOs must have regard to—

the duration of the obstruction; and

the conduct that is causing the obstruction.

Section 6 of the Summary Offences Act 1966 provides that police members and PSOs may give a move-on direction to "a person or persons". Subclause (4) clarifies that police members and PSOs may give one direction to a group rather than having to individually direct each person in the group to move on.

Subclause (5) amends section 6(5) of the Summary Offences Act 1966 to exclude the use of move-on powers in relation to protests and other demonstrations on the basis of the existing ground in section 6(1)(a) as well as the new ground in section 6(1)(f) covering circumstances where a person is or persons are causing, or likely to cause, an undue obstruction.

Subclause (6) provides that subsection 6(5) of the Summary Offences Act 1966 does not prevent police members and PSOs from directing a person, who is picketing, demonstrating, protesting or publicising his or her views, to move on in accordance with the existing grounds in section 6(1)(b) and (c) or the new grounds other than section 6(1)(f). Police members and PSOs may rely on subsection (1)(b), (c), (d), (e), (g) or (h) as the basis for giving a move-on direction even if the circumstances involved could also have justified a move-on direction under subsection (1)(a) and (f) if those subsections had not been excluded by subsection 6(5). For example, police may use move-on directions in relation to a group of protesters who are blocking the entrance to a building that others are trying to lawfully enter because that conduct amounts to impeding lawful entrance to a building described in new section 6(1)(h). The fact the protesters may also be causing an undue obstruction to others does not prevent the use of move-on powers in those circumstances.

Clause 4 inserts two new provision into the Summary Offences Act 1966 giving police members and PSOs new powers incidental to the use of move-on powers.

New section 6A enables police members and PSOs to arrest a person they reasonably believe has failed to comply with a move-on direction without a reasonable excuse.

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The new arrest power is consistent with the more general arrest power in section 458 of the Crimes Act 1958. However, it is intended to be slightly broader than section 458 in so far as it applies to the contravention of a move-on direction. Section 6A enables a police member or PSO to arrest a person who they reasonably believe has previously contravened a move-on direction even where the person was not caught "in the act" of contravening the exclusion order.

The new arrest power includes the same safeguards provided in section 458 of the Crimes Act 1958. These include requiring that a PSO who arrests a person must hand the person into the custody of a police member as soon as practicable. Similarly, an arrested person must not be detained unless the detention is necessary to ensure the attendance of the arrested person before court, to preserve public order, to prevent the continuation or repetition of the contravention of a move-on direction, or for the safety or welfare of members of the public.

New section 6B enables a police member to request a person to state their name and address where the member intends to direct the person to move on. It is an offence to comply such a request without a reasonable excuse. However, subsection (8) provides that the offence does not apply where a person who is requested to provide their name and address is not told that it is an offence to fail to comply with the request.

A person requested by a police member to state his or her name and address may request that member to state his or her name, rank and place of duty. It is an offence for the police member to fail to comply with such a request or to gives false details.

If a police member suspects on reasonable grounds that a person has provided a false name or address to them in response to a request made under section 6B(1), the member may request the person to produce evidence of their name or address. Subsection (7) makes it an offence to fail to comply with such a request without a reasonable excuse. The exception in subsection (8) also applies to this offence.

Clause 5 inserts a new Division 1B into Part I of the Summary Offences Act 1966. The new Division creates a new move-on-related exclusion order scheme.

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Section 6C defines terms used in the new division including Court, which means the Magistrates' Court.

Section 6D provides that a member of the police force may apply to the Court for an exclusion order. The section includes requirements as to the form of the application. The application must be served on the respondent as soon as practicable after the application is filed with the Court. Service of the application is intended to be by ordinary service consistent with section 394 of the Criminal Procedure Act 2009.

Section 6E provides that the Court may make an exclusion order in respect of a person if it is satisfied on the balance of probabilities that—

the person has repeatedly been directed to move on from the same public place or part of that place; and

an exclusion order has not previously been made in respect of the person in relation to the specific directions relied upon in the application; and

an exclusion order may be a reasonable means of preventing the person from engaging in further conduct in the public place, or part of the public place, that could form the basis for another move-on direction.

In determining whether an exclusion order may be reasonable, the Court may take into account—

the nature and gravity of the person's conduct that formed the basis for any of the previous directions to move on;

whether the person has previously been the subject of an exclusion order;

the likely impact of the exclusion order on the person, any other person affected by the conduct that formed the basis of any of the previous directions to move on, and public safety and order; and

any other matter that the Court considers relevant.

An exclusion order made under section 6E must state the name of the person to whom the order applies, the ground on which it was made, a description of the public place or part of the public place which the person must not enter, when the order takes effect, the period of the order and any conditions imposed.

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An exclusion order prohibits the subject of the order from entering the public place, or a part of a public place, specified in the order for a period of up to 12 months. However, section 6E(5) enables the court to allow a person to enter such a place for a specified purpose if—

the Court considers that there is a good reason why the person should be allowed to enter the place; and

the Court considers that it is appropriate in all the circumstances.

This discretion to make conditions ensures that the operation of the orders do not have unintended consequences. For example, it may be appropriate to allow a person subject to an order to pass through an area if he or she would otherwise be prevented from entering their home, or to enter an area to visit family, or for work. It is also intended that the Court could limit the times that the person could enter the public place for such a purpose, such as by only allowing the person to enter on specific days, during specific times in the day or a certain number of times in a given period. The person would still be prohibited from entering the public place for any other purpose.

Section 6F provides that an exclusion order takes effect either at the time it is made (if the person subject to the order is present in court at that time) or, in any other case, 7 days after the day on which a copy of the order is served on the person. This is aimed at ensuring the person subject to the order is aware that the order has been made.

Section 6G makes it an offence for a person in respect of whom an exclusion order is effect to contravene the exclusion order while knowing that the order is in effect or being reckless as to whether the order is in effect. The maximum penalty for the offence is two years imprisonment. However, it is an exception to the offence if the conduct contravening the order was caused by circumstances beyond the control of the accused and the accused had taken reasonable precautions to avoid contravening the order. Such circumstances may arise where a person must pass through the public place specified in the order to get to work because the alternative route is temporarily blocked and there are no other reasonable options. For the purposes of proving that a person knows an order is in effect, section 6G(3) clarifies that proof that the person was in court when the order is made, or proof of service of the exclusion order is admissible and is, in the absence of proof to the contrary, proof of that fact.

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Section 6H provides that the applicant for an exclusion order or the person to whom the order applies may apply for variation of the order. The Court may vary an exclusion order where it—

is satisfied that new facts or circumstances have arisen since the making or last variation of the order; and

considers that it is appropriate to do so.

In determining whether it is appropriate to vary an exclusion order, the Court may consider—

the likely impact of the order as varied on any of the previous directions to move on, public safety and order, and

any other matter that the Court considers relevant.

Variations to exclusion orders take effect on a time and date specified by the Court.

Section 6I provides that the applicant for an exclusion order or the person to whom the order applies may also apply for revocation of the order. The Court may revoke an exclusion order where it is satisfied that—

new facts or circumstances have arisen since the making or last variation of the order; and

the exclusion order is no longer a reasonable means of preventing the person to whom the order applies from engaging in conduct in the public place, or part of the public place, that could form the basis for a direction to move on.

In determining whether an exclusion order is no longer reasonable the Court may take into account the same circumstances it was required to consider when determining whether the order was reasonable in the first place.

Section 6J provides that the Chief Commissioner of Police must prepare a report for inclusion in Victoria Police's annual report of operations under the Financial Management Act 1994. The report is intended to provide a guide as to the extent to which the move-on related exclusion orders are being used. To that end, a range of information is required to be included in the report, such as—

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the number of applications made for exclusion orders in the financial year;

the number of exclusion orders made in the financial year; and

the number of persons found guilty of the offence of contravening an exclusion order in the financial year.

Clause 6 is a transitional provision which clarifies that the amendments in clause 5 do not have any retrospective effect. Specifically, an exclusion order may only be made on the basis of move-on directions made on or after the commencement of the Bill. Thus, move-on directions given prior to the commencement of the Bill may not be used as grounds for the making of an exclusion order.

PART 3—AMENDMENTS TO THE SENTENCING ACT 1991

Clause 7 inserts a new Division 4 into Part 4 of the Sentencing Act 1991. The new Division creates a new alcohol exclusion order scheme.

New section 89DC defines terms used in the new division including—

bar area which means an area within a licensed premises that is set aside for the service of liquor for consumption on those premises;

intoxicated which, in relation to a person, means the person's speech, balance, co-ordination or behaviour is noticeably affected as a result of the consumption of liquor (this definition is modelled on the definition of intoxication in the Liquor Control Reform Act 1998);

licensed premises which has the same meaning as in the Liquor Control Reform Act 1998;

major event which also has the same meaning as in the Liquor Control Reform Act 1998; and

relevant offence which means any of a range of listed offences, including the common law offences of murder and manslaughter, and a range of offences in the Crimes Act 1958 such as causing serious injury intentionally, threats to kill, assaulting police, indecent assault and rape.

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New section 89DD outlines how an alcohol exclusion order may be made. The Director of Public Prosecutions or a member of the police force may make an application for an alcohol exclusion order if a person has been charged with a relevant offence. The written application must be filed and then served on the accused person who is the subject of it—

in the case of a proceeding listed for a summary hearing in the Magistrates' Court, before the first mention hearing or later with the leave of the court; or

in the case of a committal proceeding, before the committal mention hearing, or later with the leave of the court; or

in any other case, before the first directions hearing, or later with the leave of the court.

The application is required to be made early in the case to ensure that all parties are aware that the order will be sought well before any sentencing hearing. This will also enable any relevant factual disputes to be raised as part of criminal proceedings.

Service of the application is intended to be by ordinary service consistent with section 394 of the Criminal Procedure Act 2009.

Subsection (3) provides that such an application may be withdrawn at any time before it is determined.

Subsection (4) provides that even where an application has not been made, a court may still make an alcohol exclusion order on its own motion in accordance with section 89DE.

New section 89DE provides that a court must make an alcohol exclusion order in respect of an offender if—

the court records a conviction against the offender for a relevant offence; and

the court is satisfied on the balance of probabilities that—

at the time of the relevant offence the offender was intoxicated; and

the offender's intoxication significantly contributed to the commission of the relevant offence; and

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the offender is not, or has not been, the subject of a previous alcohol exclusion order in relation to the circumstances that gave rise to the relevant offence.

The test is intended to ensure that there is a clear connection between a person having consumed liquor and the commission of a relevant offence that would justify the making of an alcohol exclusion orders. The test also provides that a person may only be subject to one alcohol exclusion order arising from a single set of circumstances, even where the person might be convicted of two or more offences.

Section 89DE(2) provides that a court is not required to call further evidence when satisfying itself of the matters set out in new subsection (1)(b).

Subsection 89DE(3) provides that alcohol exclusion orders have a duration of two years.

Section 89DE(4) provides that a person subject to an alcohol exclusion order is—

completely prohibited from entering or remaining in a licensed premises that is a nightclub, bar, restaurant, cafe, or reception or function centre;

completely prohibited from entering or remaining in the location of a major event;

allowed to enter other types of licensed premises on the conditions that the offender does not enter the bar area and does not consume liquor on the premises.

The prohibitions apply across Victoria and mirror the list of premises that an alcohol exclusion condition applies to under section 48J of the Sentencing Act 1991 (which provides that an alcohol exclusion condition can be applied as a condition of a community corrections order). Whether a particular licensed premises is, for example, a "nightclub" or "bar", is to be determined according to the ordinary meaning of those terms. It is intended that a pub would be covered by the list of licensed premises, either as a bar, nightclub or restaurant depending on the nature of the pub. In other licensed premises, the alcohol exclusion order will only prohibit the person from entering the "bar area" of the premises. For example, persons subject to an alcohol exclusion order will be banned from entering the bar area of a sporting club that holds a liquor licence but would still be permitted to enter and remain in the other parts of the premises.

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However, they could not drink alcohol anywhere within the sporting club.

Other licensed premises that are not covered by section 89DE(4)(a) or (b) may not have an identifiable bar area. This might include many workplaces that are licensed for catering purposes. In such cases, the person subject to the order may enter the premises but is prohibited from consuming liquor on the premises. Offenders are not excluded from licensed premises selling packaged liquor for consumption off the premises.

If it considers appropriate, a court may create exemptions allowing an offender to enter or remain in premises that he or she would otherwise be prohibited from entering if—

the Court considers that there is a good reason why the person should be allowed to enter or remain in the place; and

the Court considers that it is appropriate in all the circumstances.

For example, the court could permit the offender to enter and remain in a licensed premises or bar area for the purposes of employment. Similarly, the court may create an exemption permitting a person to enter a particular venue for a specified time for the purposes of attending a meeting of a local club. However, an exemption may not permit a person to consume liquor on the premises.

A court may also refuse to create an exemption if the order will not take effect until the offender's release from prison and the appropriateness of the exemption cannot reasonably be ascertained at the time of making the order.

The date from which an alcohol exclusion order takes effect is dependent on whether the person subject to the order receives or is already serving a custodial sentence. If a person will not be serving a custodial sentence, then the order takes effect at the time it is made. However, if the person will be serving a custodial sentence, either because they are currently serving a custodial sentence for another offence or because the order is made in combination with a custodial sentence, the order takes effect on the offender's release from prison either on parole or at the conclusion of the person's custodial sentence.

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Subsection 89DE(8) provides that where an alcohol exclusion order is required to be made, a court may not impose—

an exclusion order under Part 8A of the Liquor Control Reform Act 1998 unless the order is framed to exclude an offender from a designated area; or

an alcohol exclusion condition as a condition of a community corrections order.

Section 89DF deals with contraventions of alcohol exclusion orders. Subsection (1) creates an offence where a person contravenes an exclusion order by entering a place prohibited under the order. The offence only applies where—

the order is in effect;

the person subject to the order knows that the order is in effect or is reckless as to whether it is in effect; and

the person knows or is reckless as to whether the place they entered or remained in was a place they were prohibited from being in under the order.

Subsection (2) creates an equivalent offence where a person contravenes an exclusion order by consuming liquor in a place prohibited under the order. The maximum penalty for both offences is level 7 imprisonment.

It is an exception to the offence if the conduct contravening the order was caused by circumstances beyond the control of the accused and the accused had taken reasonable precautions to avoid contravening the order. For the purposes of proving that a person knows an order is in effect, subsection (4) clarifies that proof that the person was in court when the order is made, or proof of service of the exclusion order is admissible and is, in the absence of proof to the contrary, proof of that fact.

Section 89DG provides that a person subject to an alcohol exclusion order or a member of the police force may apply for variation of the order. An application must be made to the same court that made the order. The court may vary an exclusion order where it—

is satisfied that new facts or circumstances have arisen since the making or last variation of the order that make it appropriate for the order to be varied; and

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is satisfied that there is a good reason why the person to whom the order applies should, or should not, be allowed to enter specified licensed premises; and

considers that it is appropriate to do so.

However, a court may only vary an exclusion order by imposing a new exemption on an alcohol exclusion order consistent with section 89DE(5) or varying or removing an existing exemption made.

Variations to exclusion orders take effect on a time and date specified by the court.

Section 89DH provides that the Chief Commissioner of Police must provide a report for inclusion in Victoria Police's annual report of operations under the Financial Management Act 1994. The report is intended to provide a guide as to the extent to which alcohol exclusion orders are being used. To that end, a range of information is required to be included in the annual report, such as—

the number of applications made for alcohol exclusion orders in the financial year;

the number of alcohol exclusion orders made in the financial year; and

the number of persons found guilty of the offence of contravening an alcohol exclusion order in the financial year.

Clause 8 inserts a new transitional provision in the Sentencing Act 1991. The new section clarifies that an alcohol exclusion order may only be made in respect of a relevant offence committed after all of the provisions in Part 3 of the Bill have come into operation. To this end, subsection (2) provides where an offence is alleged to have been committed between two dates, both those dates must be after the commencement date for the Bill for an alcohol exclusion order to be made.

PART 4—REPEAL OF AMENDING ACT

Clause 9 provides for the repeal of this amending Bill on the first anniversary of the day after the day on which all of its provisions have come into operation. The repeal of this Bill does not affect in any way the operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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