Page 866 - Week 03 - Tuesday, 20 March 2012
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a concern about this section. It asked, “Why would it not be reasonable to make the requirement in subsection 58B(3) mandatory and subject to dispute?” It pointed out that to preclude challenge to an exercise of the power on the basis that a limitation has not been observed removes the point of creating the limitation. Or, in other words, why create an obligation for police to comply with reasonable requests if their reasonableness cannot then be challenged?
The reason the government has given is that it would prevent vexatious challenges. The Greens do not believe this is a good reason. I find it highly unlikely that there would be many challenges to whether the police took reasonable steps in accommodating someone asked to remove a head garment they wore for religious or cultural reasons. In fact, as the government informed my office, there are very few people in Canberra who would fit into the category of wearing face coverings for religious or cultural reasons. It is unlikely then that there will be any, let alone many, vexatious challenges.
The Greens do not believe it is appropriate in these circumstances to add an explicit clause which defeats the requirement for the police to comply with reasonable requests. The word “reasonable” is itself a protection for the police. They do not have to comply with anything that is unreasonable.
It is also important to note that challenging the reasonableness of the police behaviour would not mean the person challenging could escape responsibility for the driving offence they were originally pulled over for, such as speeding or dangerous driving. The only issue in question is whether they complied with a direction to remove a head covering or not—an offence that is minor and is not a public safety offence.
I want to point out that there are no equivalent exemptions to subsection 52B(5) for police in other ACT statutes. It appears that the proposed subsection 58B(5) is a unique limitation in relation to police powers. However, it is easy to find equivalent powers that do not have an exemption for police actions. Section 13 of the Road Transport (Alcohol and Drugs) Act, for example, requires a police officer to take reasonable steps to provide privacy when administering a breath test. However, it does not go the extra step and deny the opportunity to challenge the police actions if they were not reasonable.
The government provided my office with some examples of comparable provisions from other statutes, but these are all about administrative matters. For example, there are examples from the Planning and Development Act concerning the renotification of development applications. The amendment in this bill is quite different from the provisions in these other statutes. It concerns coercive powers over individuals with criminal penalties attached and is distinct from administrative processes for which there are usually other methods of challenge and redress.
I would ask members to consider whether it is appropriate in these circumstances to explicitly deny a person the right to challenge whether a police officer’s actions were reasonable. I urge members to support my amendment and remove this section of the bill.
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