Page 2300 - Week 07 - Thursday, 4 August 2016
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leave the public place if they have a reasonable belief that the person is engaged in or is likely to engage in conduct that involves violence towards or intimidation of a person, involves damage to property or would cause a reasonable person to fear for their safety.
This broadens the existing powers considerably. Previously the powers applied only to violent conduct. The additions of “damaging property” or “causing a reasonable person to fear for their safety” could encompass a wide range of behaviour, well beyond the existing definition of “violent conduct”. For example, a person who is homeless or sleeping rough and is behaving erratically might be judged likely to damage property or to cause a reasonable person to fear for their safety. Even by residing in a public place a person who is homeless or sleeping rough might even be judged to be “damaging property”. In fact, I believe that to help allay this concern it may be appropriate to tighten the existing move-on powers by replacing “violent conduct”, which could be interpreted broadly, with a narrower definition such as “violence towards, or intimidation of, a person”.
My concerns are not unfounded. I have formally raised concerns, and the government is aware, that move-on powers in Australia have been broadly exercised in a way that disproportionately impacts on people who are already vulnerable, in particular Aboriginal and Torres Strait Islander people, people who are sleeping rough or homeless, and young people. I remain very concerned that broadening these powers so considerably provides more scope for the powers to be used in this fashion regardless of the intent of the amendment.
Empirical research supports this concern about disproportionate use. The New South Wales Ombudsman’s report on the New South Wales law identified exactly the issues I am concerned about. It found they were disproportionately used against young people and Indigenous people. Move-on powers were also being used to deal with behaviour associated with homelessness. The same occurred in Queensland. In Queensland, Indigenous youth received 37 per cent of the move-on directions although they are only four per cent of the population. This is bolstered by anecdotal evidence from service providers and peak bodies. A number of government inquiries and reports have similarly expressed concerns about not only the introduction of move-on powers but also their expansion—exactly what is proposed here today.
I am sympathetic to the position put forward by Professor Simon Bronitt from Griffith University who, in his analysis of move-on laws in Australia, wrote that the aims of the architects of move-on powers are admirable and are intended to de-escalate situations and enhance community safety. He then wrote:
In practice, however, move-on powers operate as merely another pathway into the criminal justice system.
As his article sadly concludes, the wide scope and inherently discretionary nature of move-on powers pose significant risks of both arbitrariness and unfairness in the administration of criminal justice. It is also the case that the politically unpopular can be the target of move-on powers or exclusion orders.
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