Hansard | NSW Legislative Council | 25 May 2011
Mr DAVID SHOEBRIDGE [11.25 a.m.]: I speak on behalf of The Greens against this retrograde piece of legislation introduced by the new Coalition Government. The Law Enforcement (Powers and Responsibilities) Amendment (Move On Directions) Bill 2011 will amend the Law Enforcement (Powers and Responsibilities) Act 2002 in relation to move-on directions to intoxicated persons in public places. The bill is of modest compass—with only one effective clause—but the bill will change the move-on powers for police in respect of intoxicated persons. As members know, currently these only apply to groups of three or more people who are in a public place and where a police officer believes on reasonable grounds that their behaviour as a result of intoxication is likely to cause injury or otherwise be a risk to public safety. The substantive amendment in this bill is to authorise police to move on a single intoxicated person by themselves rather than in a group.
It is said by the Coalition that this is the first part of its plan to tackle alcohol-related violence and antisocial behaviour. It is claimed by the Government that it intends to use new ways to address this complex issue. Well, nothing could be further from the truth. This is in fact a throwback to the 1970s, to a failed method of policing and a failed method of dealing with drunkenness in public places. We had some quite insightful contributions by the Hon. Marie Ficarra dealing with the effect of alcohol in our community and dealing quite openly with the impact of drunkenness on our streets and the need for any government to be mindful of ways to deal with public drunkenness and to deal in an effective but also a tolerant and careful manner with the people that the police confront on the streets.
Anyone who goes out in some of our country towns and parts of the central business district of Sydney realises what a tough job the police have dealing with people who are intoxicated on the streets—often groups of people intoxicated on the streets. It is clearly a difficult job for police officers when faced with people who are intoxicated on the streets, but this bill will make the job for the police more difficult. This bill will effectively require the police, because they have the power, to move on individuals who are intoxicated when they run into them on the streets.
The Hon. Amanda Fazio pointed out the history of legislation of this type, which has predominantly been used against marginalised groups in society. It is the single intoxicated homeless person who will be moved on by the police; it is members of the Aboriginal community, who have traditionally been targeted by the police using these kinds of powers in the 1960s and 1970s; it is people who are mentally ill and are often found to be of social difficulty on the streets that will be subject of these move-on powers. That has been the history in the past. This is not a new way forward by the Coalition; this is a throwback to the 1970s.
It is unclear that the Government has looked at the balance of powers found for the police in the Law Enforcement (Powers and Responsibilities) Act before taking this step, because there is already power under section 197 for a police officer to give a direction to a single person in a public place if that person is obstructing another person or persons, or traffic; if that person is undertaking conduct which constitutes harassment or intimidation; if that person is causing or is likely to cause fear to another person or persons, provided that is reasonable; or if that person is, for example, unlawfully supplying or intending to unlawfully supply or solicit from another person a prohibited drug, or if that person is in a public place for the purpose of obtaining, procuring or purchasing a prohibited drug.
Those powers already lie with the police when someone is obstructionist, harassing or intimidating.
The Hon. Dr Peter Phelps: What about drunks sitting outside at 12 o'clock at night? Where is the power to remove a drunk at midnight?
Mr DAVID SHOEBRIDGE: I acknowledge the interjection from that great libertarian Mr Phelps, who likes to give police power over individuals, provided they are not the types of people he identifies with. He is a great economic libertarian but he is one of the most retrograde social members—
The Hon. Dr Peter Phelps: Point of order: The allegation has been made that I am not a libertarian across all sorts. I am, and if the member wishes to debate this further I am happy to do so.
The PRESIDENT: Order! The Hon. Dr Peter Phelps is making a debating point, not taking a point of order. Mr David Shoebridge has the call.
Mr DAVID SHOEBRIDGE: The great libertarian rises, just by himself, and places himself—
The Hon. Dr Peter Phelps: The power of one.
Mr DAVID SHOEBRIDGE: As we know, the power of one. That is the concern: this will give police the power to move on people they determine to be unpleasant and remove them from a public street. We might call this the "Law Enforcement (Phelps Responsibilities) Act 2002". The concern is, and it is a very real concern, that the bill gives enormous discretionary power to the police to target individuals who are seen to be in a socially inappropriate place. The truth of the matter is that this is the power that traditionally has been used in an unfair manner against marginalised groups. There is already sufficient power under section 197 if someone is harassing, intimidating or obstructing. This amendment allows the police to say to an Aboriginal member of the community, a mentally ill person or a homeless person sitting under a bridge drinking from a long neck, "Sorry, you're the kind of person we don't want in public", and to give a move-on direction.
That will then set up a cascade of consequences because often these people, understandably, take such directions from the police negatively. That leads to confrontation between these marginalised groups and the police and they will then find themselves being charged with a breach under section 199. It will go from being a minor issue in a public place to one of criminalised conduct. That criminalised conduct will then lead to confrontation if they refuse to comply with the police order. To be honest, homeless people often have nowhere other than a public place in which to be. If they fail to comply with the direction they then become involved in confrontation with police, assault police and resist arrest. We find that traditional trifecta with respect to these marginalised groups: the matter goes from a relatively innocuous issue involving an intoxicated individual to criminalising the behaviour and dragging marginal people into the criminal justice system. Often they are unable to make bail because they have no fixed abode and have no home at which the police can check on them. If they have no fixed abode and fail to get bail, they will go from a public place directly into our prison system. They become a major impost on the budget and we do not advance social goals one iota. We go straight back to the 1970s.
The Coalition claims that police will use this power to encourage intoxicated individuals to go home. The Hon. Matthew Mason-Cox says there is a protocol in place that police will comply with. The protocol will not overcome those broad powers of the police. To suggest there is a protocol in place that we can all rely upon when we are giving these broad discretionary powers to the police is to fail to comply with our duty as lawmakers to ensure that the law constrains our police officers and that the law produces good outcomes. We should not rely upon a departmental protocol that softens the very negative impacts of a law that this House is about to pass. This law will likely operate unfairly. This is a law that will further marginalise police officers. This is another example of the Coalition—
The PRESIDENT: Order! I call the Hon. Matthew Mason-Cox to order for the first time.
Mr DAVID SHOEBRIDGE: If the Coalition is serious about giving police extra duties and extra powers that they must enforce, one would think they would be serious about giving them a decent wage rise to match those increased powers. We hear a lot of rhetoric about law and order and the great libertarians speaking about increased police powers, but when it comes to the things that really matter, when it comes to standing up for the wages and conditions of the people who will be enforcing these unjust laws, the Coalition backs away. They are happy to give police the power; to make them go out, do a really difficult job and have confrontation with marginalised groups. The Coalition continues to foster the difficult relationship between marginal groups and the police; it makes the jobs of police and social workers harder, but when it comes to paying the police a proper wage for what they do the Coalition backs away. Again there is the hypocrisy, the mock libertarianism and mock support for the police that we get from the Coalition time and again. This matter should be the subject of further consideration before it is passed in a hurried fashion by this House. I move:That the question be amended by omitting "now read a second time" and inserting instead "referred to the Law and Justice Committee for inquiry and report".
I seek to know why the Coalition will not support referring the bill to the Standing Committee on Law and Justice. It is a matter that would clearly benefit from some further consideration. It should not be a knee-jerk reaction by the Government that pleases perhaps the far right of its constituency but that it knows full well will harm marginal groups in our society.
The Hon. MICK VEITCH [11.36 a.m.]: I speak on the Law Enforcement (Powers and Responsibilities) Amendment (Move On Directions) Bill 2011. As indicated by the Hon. Penny Sharpe, the Opposition will not be opposing the bill. Presently, section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 provides a police officer with the power to give a direction to an intoxicated person in a group of three or more to move on if they are likely to cause injury to themselves, another person or property. The proposal presumably is to alter this number from three to one. However, section 197 of the Act already allows move-on powers to be exercised by police against one person if that person's presence is harassing or intimidating someone or causing fear to another person, or for more specific reasons.
This proposal does not seem to go substantially beyond current provisions in section 197. However, I have a number of concerns about this bill that I would like to place on record. I believe there is potential for the bill to have a disproportionately negative impact on certain sections of the community. I draw the House's attention to a recent brief published by the New South Wales Bureau of Crime Statistics and Research in April 2011 entitled "Trends in assaults after midnight". This report found that:
The upward trend in assault between midnight and 5.00 a.m. in NSW between 2004 and 2008 reversed following changes to liquor licensing policy after March 2008 and the NSW Liquor Act in October 2008. Assaults on licensed premises have fallen by about one per cent a month since March 2008. The fall is not restricted to licensed premises but was found to affect all location categories other than non-licensed business/commercial premises.
While supporting this bill, Scott Weber, President of the Police Association of New South Wales, said in an article in the Sydney Morning Herald—
The Hon. Penny Sharpe: He had some wonderful things to say this morning.
The Hon. MICK VEITCH: He had some wonderful things to say this morning on Adam Spencer's program. The article is dated 20 May 2011 in which he stated that it is "more important to impose licensing restrictions to combat alcohol-fuelled violence". Some members of this Chamber know that prior to coming into this place I worked in the disability area of the not-for-profit sector. In this role I interacted with a large number of people living with disabilities. Some people with disabilities, most notably people with cerebral palsy or acquired brain injury, may have similar symptoms to those described in the current definition of an intoxicated person. Their speech, balance, coordination or behaviour is noticeably affected by their disability.
Additionally, people living with a mental illness when medicated may also manifest some of those characteristics. The nature of the bill means that there is potential to target people with a disability who exhibit symptoms that are similar to those of an intoxicated person and result in their being unfairly treated. Of further concern is the potential for this bill to target the homeless community.
Similar move-on laws that were implemented in Queensland were studied at the Homeless Person's Legal Clinic by the Public Interest Law Clearing House [PILCH] in a 2006 joint research project with the TC Beirne School of Law at the University of Queensland. The survey gathered information from 132 people who were either experiencing or were at risk of homelessness. The survey asked respondents to comment on the use of move-on powers against them including the frequency of their use, the circumstances surrounding their use and the efficacy of their use.
The key findings of the survey were that 76.5 per cent of homeless people surveyed had been told to move on one or more times in the last six months; homeless people who were sleeping rough or in squats were most susceptible to being moved on; 77.9 per cent of respondents who received a move-on direction indicated their behaviour or presence when directed to move on was innocuous and unlikely to meet the threshold requirements for lawfully issuing a move-on direction; 85 per cent of respondents who had been told to move on one or more times in the last six months were given nowhere in particular to go upon being issued with a move-on direction; 71 per cent of homeless people who were given a move-on direction complied with the direction when issued, without question or argument; homeless people surveyed had little knowledge about what constitutes a lawful police move-on direction, indicating their vulnerability to abuse of power by police; and homeless people occupying public spaces out of necessity are disproportionately impacted by move-on powers, due to their lack of secure housing. Finally, the study found:
It is well-recognised that Indigenous Australians and young people comprise a large proportion of Australia's homeless population. Consequently, commentators agree that young people and Indigenous Australians are most likely to be moved on compared to other community members.
People with a mental illness make up a disproportionate percentage of the homeless community. I indicate that the Opposition will support the Greens motion moved by Mr David Shoebridge to refer this bill to the Standing Committee on Law and Justice. I look forward to that part of the debate.
The Hon. MICHAEL GALLACHER (Minister for Police and Emergency Services, Minister for the Hunter, and Vice-President of the Executive Council) [11.42 p.m.], in reply: I thank all members who contributed to the debate. In particular, I thank my colleagues the Hon. Marie Ficarra, the Hon. Dr Peter Phelps and the Hon. Matthew Mason-Cox. I recognise contributions made by other members. In addressing some matters raised by members opposite, at the outset I will examine some of the hypocrisy that has been stated by them. The contribution to debate by the Hon. Penny Sharpe commenced with her suggestion that the bill was much ado about nothing.
The Hon. Penny Sharpe: "... about not much".
The Hon. MICHAEL GALLACHER: The Hon. Penny Sharpe said "... the bill is much ado about not much", and followed that with the suggestion that there is no need for the legislation. Later in an interjection she used the words, "This replicates what is already there." Her suggestions are completely at odds with what has been presented by the Hon. Amanda Fazio on behalf of the Opposition. The Hon. Amanda Fazio contends that this bill represents an abuse of power in some manner by police when dealing with people to whom the legislation will apply. In the Chicken Littleapproach adopted by the Hon. Amanda Fazio, the sky is going to fall in because of the position police will take when dealing with homeless people, Aboriginals and other disadvantaged groups. The Opposition seeks to cover both bases: to be able to say there is nothing in the legislation in the event that the media comments on the bill with approval and the public begins to welcome it—at the same time the Hon. Amanda Fazio is saying it is all doom; it is the end of the world as we know it—in case it is revealed at a later time there are some difficulties with this legislation or, indeed, any legislation, the Opposition can say, "We told you that; we had that covered; we've got both bowers covered."
With all due respect to Mr David Shoebridge, all three members failed to recognise that the Ombudsman oversights the exercise of the powers in the bill. What all three members have done by sleight of hand is deliver a backhander to the Ombudsman by suggesting that he or she into the future will be incapable of exercising oversighting powers properly. Interestingly enough, as recently as yesterday the Ombudsman published a report on domestic violence and congratulated the police on their approach. While realising that not everything is perfect, the Government has confidence in checks and balances. When difficulties in this bill or in any legislation are identified in the future, we will take remedial steps, but the criticism expressed in this debate really is a cheap shot at the New South Wales Police Force and other agencies which do their darnedest to ensure that disadvantaged people are protected and cared for. I will deal with that in greater detail during my concluding comments.
The Greens and the Opposition also suggest that the changes proposed to section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 are not needed. Australian Labor Party members, the Hon. Penny Sharpe and the Hon. Amanda Fazio, claimed that section 197 of the Law Enforcement (Powers and Responsibilities) Act already gives police the power to move on individuals, and their suggestion was endorsed somewhat by comments made by Mr David Shoebridge. The Hon. Penny Sharpe stated, "This amendment, dressed up as a crackdown on intoxicated persons, ignores the reality that police already have these powers under section 197 of the Act." I point out that section 197 and section 198 address different situations. The first part of section 197 deals with people causing obstruction or behaving in a threatening manner in a public place. Even the contribution of Mr David Shoebridge pointed out that the bill provides something different from the current provisions of section 197. He would know that section 197 on its face does not mention intoxication and behaving in a disorderly manner but rather deals with behaviour, for example, of someone who is blocking a footpath or road being asked to move to another place, which may be only a few feet away or only for a few minutes, or police dealing with an angry person in a taxi queue who is bullying people ahead of them.
Section 197 covers countless potential situations, but not situations involving people who are affected by drugs or alcohol. Section 197 also deals with people who are reasonably suspected of being involved in street level drug purchases or sales. While some of those people may be intoxicated by drugs or alcohol, there is no requirement for them to be so affected before the move-on direction can be given. I understand that some years ago police made very good use of the current section 197 power when cleaning up the street level drug trade in and around Cabramatta. In contrast to that, section 198 move-on powers are targeted specifically to people who are both intoxicated and behaving dangerously in public places. There are potential situations in which the same conduct could fall under section 197 or section 198, but it is simply wrong to suggest that both sections cover the same range of behaviour as those covered by amendments to section 198.
I reiterate that intoxication is not a relevant factor for the general and drug dealing move-on powers in section 197 whereas it is a prerequisite for exercise of the powers proposed to be exercised under section 198. Move-on directions under section 197 can be given to individuals as well as groups and the same powers will apply to intoxicated people when the bill is passed. What we have here is an evolvement of current legislation that the former Government enacted, with the support of members of the House. At that stage the Coalition criticised the legislation, and I stand by the criticisms we made. However, the point must be made that the Hon. Mick Veitch, the Hon. Amanda Fazio and the Hon. Penny Sharpe did not contribute to that debate; rather they voted in favour of it. It seems that they now have found their voices. Their interest is in playing the margins.
Sadly, it has been exposed. Of course, we propose simply an adaptation—an evolvement, if you like—of pre-existing laws under section 198 to ensure that where alcohol or intoxication and disorderly behaviour are factors, police have greater flexibility. I cannot understand how anyone could object to such a sensible and obvious harmonisation of the two provisions. Concern has been expressed that these expanded powers will be used to target homeless people, including those with a mental illness. The interactions of New South Wales police officers with homeless people and so-called rough sleepers—the Hon. Mick Veitch used that expression—are guided by the protocol for homeless people in public places. This provides a code of conduct for officials of all participating agencies, not just the New South Wales Police Force, when encountering homeless people in public places.
Originally developed during the Sydney 2000 Olympic Games—under the former Labor Government—this protocol's aim is to ensure that homeless people are treated sensitively and appropriately, and to facilitate their access to housing and support services. It must remembered that the protocol, which applies to police officers, states that homeless people should be left alone unless they require assistance, they appear to be distressed or in need of assistance, their behaviour threatens their safety or the safety and security of people around them or where their behaviour is likely to result in damage to property or the environment. In effect, those opposite are having a two-way bet. The Greens always go down the path that the power will be abused. But they are saying that if the police are not following the protocol they are abusing their power. On the one hand, they talk about supporting the New South Wales Police Force and, on the other, they backhand the police by saying, "We don't trust you. We think you will abuse these powers." We see their crocodile tears when they talk about a host of issues and how we should do this and that. It is a disgrace that they play this game.
The Hon. Penny Sharpe: At least we pay them.
The Hon. Amanda Fazio: We are not going to cut back their death and disability scheme like you.
The Hon. MICHAEL GALLACHER: When they are exposed they interject and do all the rest, but my comments will stand when members of the public ask in the future: What was the Opposition's position in dealing with these matters, in supporting New South Wales police and recognising the work they do? Police are trained to be equally sensitive when dealing with people who suffer from some mental illness. The role of police in managing the mentally ill in our community is based on risk assessment and on the premise of safety for all concerned. The New South Wales Police Force policy position is outlined in the New South Wales Emergency Mental Health Memorandum of Understanding—a memorandum that, surprise, surprise, was developed under the previous Government's reign. Labor members developed the policy, but now they say it will be abused and police will start locking up people who need help. That is a scurrilous attack on our police. At the same time the Opposition is sinking the slipper in about the Ombudsman not being able to monitor things. It is a disgraceful play.
Supporting the memorandum of understanding, the New South Wales Police Force has a network of 80 active mental health contact officers and one inspector per local area command across New South Wales. These officers help to ensure the streamlined implementation of the memorandum of understanding and legislation at a local level. The changes to move-on powers contained in this bill will make no difference to these policies and practices. Police interactions with Indigenous people also have been raised during debate on this bill. These matters have been problematic in the past but the current and past few commissioners and their teams have worked hard to overcome this unhappy legacy. As with the protocol for homeless people and the mental health memorandum of understanding, New South Wales police officers are given careful instructions on how to interact with Indigenous people, whether they are victims, possible offenders or witnesses. For the benefit of Opposition members and The Greens I am more than happy to table some documents issued by the New South Wales Police Force entitled, "Let's work in partnership to keep our mob out of custody."
The Hon. Amanda Fazio again wants to attack the integrity of these documents, which were prepared under the previous Government's regime. These documents were written so that, in this case, young offenders from the Aboriginal community understood cautioning and interaction with police regarding warnings. They were designed also to explain why police ask them whether they are of Aboriginal or Torres Strait Islander origin. These three easy-to-get documents show that the New South Wales Police Force has come a long way in dealing with people with mental health and homeless issues, and of Aboriginal background. The Greens talk about the 1970s as if they were familiar with that decade. I suspect that the contribution of the member either was from what he read and is unlikely to be from what he recalled happening firsthand with policing in that decade or he looks much younger than he is.
Government dealings with disadvantaged groups have changed dramatically in the health or education sectors. That process must continue because we still have a way to go. When The Greens play their political games and demonstrate their little bit of marginality, we have to say that they are wrong and I shall explain why. Changes to the move-on powers will not alter any of the protocols I referred to earlier. Being merely intoxicated is not grounds for a move-on direction; the intoxicated person or persons must be behaving in a dangerous manner to themselves, to other people or to property. The legislation does not cover someone who is drunk but sleeping harmlessly on a bench or who is sitting talking to friends in a park who could be Aboriginal or someone recovering from a Bachelors and Spinsters Ball, as we heard yesterday, or both. The Labor Party knows this because it set up the protocols when it was in government. In 2007 the former Attorney General when introducing the original powers stated:
The police will develop standard operational procedures on the new powers before they come into effect in order to ensure they are exercised appropriately in accordance with the intended purpose.
We will continue that intended purpose and those operational procedures except for the modification presented in the bill. This bill provides police with an effective enforcement tool to deal with intoxicated persons engaging in antisocial behaviour. The bill represents the first step in honouring the Government's election commitment to make the streets of New South Wales safer. I commend the bill to the House.
Question—That the amendment be agreed to—put.
The House divided.
Question resolved in the negative. Amendment negatived.
Question—That this bill be now read a second time—put.
Division called for and Standing Order 114 (4) applied.
The House divided.
Question resolved in the affirmative. Motion agreed to. Bill read a second time.
Leave granted to proceed to the third reading of the bill forthwith.
Motion by the Hon. Michael Gallacher agreed to: That this bill be now read a third time.
Bill read a third time and transmitted to the Legislative Assembly with a message seeking its concurrence in the bill.