‘YOU’RE NOT WELCOME HERE’: POLICE MOVE-ON …

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`YOU'RE NOT WELCOME HERE': POLICE MOVE-ON POWERS AND DISCRIMINATION LAW

TAMARA WALSH* AND MONICA TAYLOR**

I INTRODUCTION

Police move-on powers exist in most Australian States and Territories. They enable police to issue a direction to individuals and groups to move away from a certain public place for a certain period of time, in circumstances where they are about to commit an offence, are creating an obstruction, or are causing `anxiety' to those around them. These powers are generally justified by police and government as being necessary to enable public spaces to be `enjoyed peacefully by everyone' and to act as an alternative to arrest in circumstances where the situation could be effectively diffused without charges being laid.1

Whilst there have been few empirical investigations undertaken on the topic of move-on powers, those that have, have invariably found that certain groups are more adversely affected by the exercise of police move-on powers than others.2 As Robert Reiner has said:

In a society which is divided on class, ethnicity, gender and other dimensions of inequality, the impact of laws even if they are formulated and enforced quite impartially and universalistically will reproduce those social divisions.3 Empirical research has also demonstrated that the use of move-on powers does not result in fewer arrests for public space offences, despite police claims to the contrary. The most significant investigation of the use of police move-on powers in Australia was conducted by the New South Wales Ombudsman in 1999.

* LLB, BSW (Hons1), PhD. Lecturer in Law, TC Beirne School of Law, University of Queensland. ** BA, LLB. Coordinator of the Queensland Public Interest Law Clearing House Inc. Homeless Persons'

Legal Clinic, Brisbane. The authors wish to thank students from the TC Beirne School of Law, University of Queensland, for their research work throughout the course of this project: Megan Breen, Aroshana de Saram, Lindsay Nicholson, Hillary Nye, Marianna O'Gorman and Davina Wadley. The substantial report in which the results of this research are analysed, No Where to Go: The Impact of Police Move-On Powers on Homeless People in Queensland, 2006, is available at at 14 May 2007. 1 Judy Spence MP, `Move-on Powers for all Public Spaces in Queensland' (Press Release, 21 April 2006); Judy Spence MP, `Police Move-on Directions Explained' (Paper presented at the ALP Forum, 22 March 2006); Russell Cooper MP, Queensland Parliamentary Hansard, 19 November 1997, 4393. 2 See generally New South Wales Ombudsman, Policing Public Safety, 1999; Paul Spooner, `Moving in the Wrong Direction: An Analysis of Police Move-on Powers in Queensland' (2001) 20(1) Youth Studies Australia 27. 3 Robert Reiner, The Politics of the Police (2nd ed, 1992) 3.

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Combining statistical evidence and data obtained through interviews and focus

groups, the report concluded that young people and Indigenous people are more

likely to be moved on than other community members. Indeed, of the 14 455

move-on directions issued over the one year review period, 22 per cent were

issued to Indigenous people (an over-representation of 11 times) and just over half were issued to young people aged 14 to 19 years.4 The New South Wales

Ombudsman also noted that in a number of instances, the move-on power was

being used to deal with behaviours associated with homelessness, such as begging and sleeping out.5 Further, it was found that as the use of the move-on

power increased in frequency, so did the number of charges for public space offences.6

Similarly, in his study on the use of move-on powers amongst young people in

Queensland, Paul Spooner found that Indigenous young people were significantly more likely to be moved on than non-Indigenous young people.7

In addition to these empirical findings, there is a significant body of anecdotal

evidence from service providers and peak bodies suggesting that young people,

Indigenous people and people who are homeless are more likely to be moved on than other community members.8 A number of government inquiries and reports

have found such observations to be reliable, and have expressed grave concerns

regarding the introduction, retention or expansion of move-on powers on this basis.9

The differential impact of police move-on powers on certain vulnerable groups

would appear to represent a serious human rights violation, however, Australia

does not have a Bill of Rights and therefore vulnerable people are not entitled to

the types of protection that one might afford. The only recourse such persons

might have is through anti-discrimination legislation; indeed, the right to freedom

from discrimination (under certain circumstances) is one of the only statutory rights Australians have the benefit of.10

4 See New South Wales Ombudsman, above n 2, 225, 227-28. 5 Ibid 252, 258-59. 6 Ibid 238. 7 Spooner, above n 2, 30. 8 ACT Council of Social Service, Comment on the Standing Committee on Legal Affairs' Inquiry into

Police Powers and Crowd Control (2005); Victorian Aboriginal Legal Service Co-operative Ltd, Submission to Crime Prevention Victoria in response to: `A Good Night for All' ? Options for Improving Safety and Amenity in Inner City Entertainment Precincts Discussion Paper (3 May 2005); Monica Taylor, `Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60; Rights in Public Space Action Group (`RIPS'), `Beattie Shoots Labor in the Foot: Legislation Introducing Statewide Move-on Powers Condemned By Community Legal Groups' (Press Release, 21 April 2006). 9 See, eg, Queensland Criminal Justice Commission, Report on a Review of Police Powers in Queensland Volume III (1993) 650; Parliamentary Criminal Justice Committee, Parliament of Queensland, Review of the Criminal Justice Commission's Report on Police Powers in Queensland Volumes I-III (1994) 284; Australian Capital Territory Community Law Reform Committee, Street Offences, Report No 15 (1997) 24. 10 The right to administrative justice or procedural fairness in the course of executive decision-making may be an exception, although recent history has shown that even this right is capable of being trumped; see Corrective Services Act 2006 (Qld) ss 17, 71 which explicitly remove from prisoners the right to judicial review of transfer and classification decisions.

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This paper will analyse recent trends in police powers and practices related to move-on, and will examine the differences between the move-on powers that exist in the various Australian jurisdictions. It will report on the results of an empirical study undertaken in inner-city Brisbane which examined the impact of police move-on powers on people who are homeless. It will then examine whether the powers themselves, or their enforcement against certain groups, might amount to a contravention of anti-discrimination law.

II TRENDS IN POLICING: THE CRIMINALISATION OF HOMELESSNESS

Police regularly request people to move away from particular places, or to abstain from engaging in certain activities. Sometimes, these orders are given in an informal manner, in the course of their `beat' duties, without resort to any particular legislative power.11 Statistics on just how frequently such informal directions are given are unavailable, however empirical research conducted amongst people experiencing poverty in Queensland in 2006 suggested that police officers often direct people in public space to do certain things, or to refrain from engaging in certain activities, without resort to any particular police power.12 In that study, respondents alleged that they regularly received a range of informal directions from police; for example, some respondents were ordered not to sleep in certain places, not to return to certain areas of the city, and even not to wear particular items of clothing in the city.13

On other occasions, police officers make use of their formal powers to issue move-on directions, as a means of giving the order some `teeth' and ensuring that it is complied with.14 In Queensland, the key provisions are ss 46, 47 and 48 of the Police Powers and Responsibilities Act 2000 (Qld). They state (inter alia):

46 When power applies to behaviour

(1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person's behaviour is or has been ?

(a) causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or

(b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

(c) disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or

(d) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place ...

11 Spooner, above n 2, 27; New South Wales Ombudsman, above n 2, 241. For a reflective examination of this, see Reiner, above n 3, 107-09.

12 See Tamara Walsh, No Vagrancy: An Examination of the Impact of the Criminal Justice System on People Living in Poverty in Queensland (2007).

13 Ibid. 14 See Spooner, above n 2; NSW Ombudsman, above n 2, 241.

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47 When power applies to a person's presence

(1) A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person's presence is or has been ?

(a) causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or

(b) interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

(c) disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place ...

48 Direction may be given to person

(1) A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.

(2) However, a police officer must not give a direction under subsection (1) that interferes with a person's right of peaceful assembly unless it is reasonably necessary in the interests of ?

(a) public safety; or

(b) public order; or

(c) the protection of the rights and freedoms of other persons.

(3) Without limiting subsection (1), a direction may require a person to do 1 of the following ?

(a) leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;

(b) leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;

(c) move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours.

(4) The police officer must tell the person or group of persons the reasons for giving the direction.

Recent research suggests that move-on powers are frequently used by police in tandem with other police powers; particularly their powers to conduct a personal search and to seize certain items of property.15 A move-on direction is often accompanied by an arrest for obstructing or assaulting police, public nuisance, or failing to follow the direction.16

In April 2006, the Queensland Police Minister announced the tabling of a Bill in Parliament to expand move-on powers to all public places in Queensland.17 At that time, under the Police Powers and Responsibilities Act 2000 (Qld), police

15 Walsh, above n 12. 16 Ibid. 17 See Spence, `Move-on Powers for all Public Spaces in Queensland', above n 1.

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officers could only issue move-on directions at specified locations: shops, malls, childcare centres, preschools, schools, licensed premises, railway stations, ATMs and other `notified areas' which were those areas that local councils had applied to have added to the list, and had been approved by the Minister.18 An application from the Brisbane City Council in early 2006 to add significantly to Brisbane's existing notified areas sparked the reforms. The Ministerial approval process was perceived by those involved to be inordinately bureaucratic and time consuming, with its requirements for community consultation, acceptance of external submissions and cumbersome report writing. It seemed easier for all concerned if the process was abolished, and so it was, without any formal community consultation.19 This is despite the fact that the approval process was incorporated into the legislation in the first instance as a deliberate safeguard for public space users.20

At the time, it was generally agreed amongst those working in the community and community legal sectors that the expansion of move-on powers throughout Queensland would result in an increase in the number of marginalised public space users being moved away from areas frequented by them, and subsequently that more marginalised people would be liable to be charged with failing to follow a police direction.21 Further, this expansion of the move-on powers represented the latest in a growing trend towards the broadening of police powers generally in Queensland. In 2003, police powers to search individuals suspected of being in possession of volatile substances, and to seize items used for volatile substance misuse, were expanded.22 In 2003, the offence of `public nuisance' was introduced, which effectively made it unlawful to engage in any conduct that could possibly be construed as annoying or undesirable; indeed, people charged with this new offence have included those who were waving their arms around in public, shouting in public, and even vomiting in public.23 In 2006, the powers of police to search both persons and vehicles without a warrant in cases of

18 See Police Powers and Responsibilities Act 2000 (Qld) sch 4; Police Powers and Responsibilities Regulation 2000 (Qld) pt 2, now repealed.

19 Notably, despite the fact that the majority of public submissions received in relation to the Brisbane City Council application were opposed to the proposed expansion of the move-on powers, the Minister provided her approval; see Jennifer Dudley, `Move-on laws to go ahead', Courier Mail, (Brisbane), 21 November 2005, 5.

20 Indeed, in its review on police powers prior to the introduction of the move-on power, the Criminal Justice Commission recommended against a general move-on power (see Queensland Criminal Justice Commission, above n 9, 649). The Parliamentary Criminal Justice Committee also recommended against a general move-on power, but supported the introduction of a restricted power that could only be used under certain circumstances and in certain places (see Queensland Criminal Justice Committee, above n 9, 285-86).

21 See, eg, Taylor, above n 8; RIPS, above n 8. It should be noted, however, that one community service provider spoke out in support of police move-on powers on the basis that they allow for violent and threatening behaviour perpetrated on people who are homeless to be curbed. This hints at the level of disagreement that exists amongst homeless people themselves on the topic of move-on powers, a theme which emerged from the study reported on here.

22 Police Powers and Responsibilities and Other Legislation Amendment Act 2003 (Qld). 23 Police Powers and Responsibilities and Other Legislation Amendment Act 2003 (Qld); see Tamara

Walsh, `Offensive Language, Offensive Behaviour and Public Nuisance: Empirical and Theoretical Analyses' (2005) 24(1) University of Queensland Law Journal 123.

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suspected wilful damage were increased.24 Empirical research over the past three years has shown that people experiencing homelessness are more likely than other members of the population to be impacted by these laws.25

Of course, the prolific nature of the `tough on crime, tough on the causes of crime' approach to law and order is well-documented,26 and the associated trend towards increasing police powers on the street is clearly observable at an international level. For example, in the UK, police were given the power to make `anti-social behaviour orders' (`ASBOs') in 1999, to deter anti-social behaviour and to prevent its escalation into more serious criminal behaviour.27 These orders can be given to anyone over the age of 10 who acts in `a manner that caused, or was likely to cause, harassment, alarm or distress to one or more persons'. As is often the case with police move-on powers, the Home Office claims that ASBOs were designed to complement existing police powers to deal with `undesirable' behaviour; that they were not intended to act as a criminal penalty but rather to prevent offences from being committed.28 Yet, it is well-established that ASBOs are more likely to be issued to disadvantaged people, particularly those who are young and/or homeless, and are ultimately likely to eventuate in charges being laid.29

Further, in the US, the National Law Centre on Homelessness and Poverty recently observed that the number of city ordinances targeted at reducing loitering, sleeping and sitting in public spaces has increased by up to 14 per cent since 2002.30 This is despite the fact that some US courts have found such laws to contravene homeless persons' Eighth Amendment right to be free from cruel and unusual punishment; courts have reasoned that if a homeless person is sleeping outside because they have no other shelter to retreat to, arresting them for such conduct is a serious violation of their civil rights.31 Further, US courts have found such laws to be in violation of the due process clause of the Fourteenth

24 Police Powers and Responsibilities and Other Legislation Amendment Act 2006 (Qld) ss 5, 6, 7. 25 See Walsh, above n 23; Tamara Walsh, `Won't Pay or can't Pay? Exploring the Use of Fines as a

Sentencing Alternative for Public Nuisance Type Offences in Queensland' (2005) 17(2) Current Issues in Criminal Justice 217; Legal Aid Queensland, Homelessness and Street Offences Project: Final Report (2005). 26 See Robert Reiner, `Crime and Control in Britain' (2000) 34 Sociology 71 in the UK; Michael Tonry and David Farrington (eds), Building a Safer Society: Strategic Approaches to Crime Prevention (1995) in the US; Russell Hogg and David Brown, Rethinking Law and Order (1998) in Australia. 27 Crime and Disorder Act 1998 (UK); Anti-social Behaviour Act 2003 (UK); Criminal Justice Act 2003 (UK). 28 Siobhan Campbell, A Review of Anti-social Behaviour Orders: Home Office Research Study 236 (2002). 29 See Lesley McAra and Susan McVie, `The Usual Suspects? Street-life, Young People and the Police' (2005) 5(1) Criminal Justice, 5, 11; Stuart MacDonald, `A Suicidal Woman, Roaming Pigs and a Noisy Trampolinist: Refining the ASBO's Definition of "Anti-social Behaviour"' (2006) 69(2) Modern Law Review 183, 201; Andrew Ashworth, John Gardner, Rod Morgan, Tony Smith, Andrew von Hirsch and Martin Wasik, `Neighbouring on the Oppressive: The Government's "Anti-Social Behaviour Order" Proposals' (1998) 16(1) Criminal Justice 7. 30 The National Coalition for the Homeless and the National Law Centre, `A Dream Denied: The Criminalization of Homelessness in US Cities' (2006) 9. 31 See, eg, Pottinger v Miami 810 F Supp 1551 (1992).

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Amendment for being unconstitutionally vague.32 The US Supreme Court has held that a law is unconstitutional due to vagueness if it does not give a person sufficient notice of prohibited conduct and encourages arbitrary police enforcement. Arguably, many US laws similar to the Queensland move-on power are unconstitutional under this reasoning.33

The trend both in Australia and overseas is towards police powers being continually expanded. This provides extraordinary scope for `police culture to shape police practice'34 and allows for the `dominant conceptions of public order' to be enforced,35 even if that ultimately results in the criminalisation of certain disadvantaged groups.

III MOVE-ON POWERS IN AUSTRALIA

Formal move-on powers, and their equivalents, exist in all Australian States and Territories, with the exception of Victoria.36 While each of the powers has a different name, their purpose is the same: to allow police to issue enforceable directions to persons (both individuals and groups) in public places to move away, or `disperse', from a particular area. Yet, the antecedent circumstances required before the power can be used, the degree of discretion provided to police officers, and the types of directions that can be given, vary between jurisdictions. Ultimately, the various powers differ on three key bases: the degree of seriousness of conduct required before the power can be used, including whether a person's mere presence is sufficient to justify the use of the power; the nature of the direction that may be given; and the consequences of contravening the order, including the maximum penalty that can be imposed for contravention, whether a defence of reasonable excuse is available, and whether any additional safeguards against arbitrariness exist.

A Nature of Conduct that can Trigger a Move-on Direction

There is a broad spectrum of conduct that can trigger the use of move-on powers across Australia. At the most restrictive end of this spectrum, the Australian Capital Territory move-on power can only be used by police when a person has engaged, or is likely to engage, in violent conduct in a public place.

32 See, eg, Papachristou v City of Jacksonville 405 US 156 (1972); Ledford v State 652 So 2d 1254 (Fla Dist Ct App, 1995).

33 See Helen Hershkoff and Adam Cohen, `Begging to Differ: The First Amendment and the Right to Beg' (1991) 104 Harvard Law Review 896; Donald Baker, `"Anti-Homeless" Legislation: Unconstitutional Efforts to Punish the Homeless' (1990-1991) 45 University of Miami Law Review 417; Maria Foscarinis, `Homelessness, Litigation and Law Reform Strategies: A United States Perspective' (2004) 10(2) Australian Journal of Human Rights 105.

34 Reiner, above n 3, 107-08. 35 Ibid 2. 36 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) pt 14 (power to give reasonable

directions in public places); Police Powers and Responsibilities Act 2000 (Qld) pt 5 (power to give a direction to move-on); Summary Offences Act 1953 (SA) s 18 (power to give an order to move-on or disperse); Police Act 1892 (WA) s 50 (power to order suspects and others to move-on); Summary Offences Act (NT) s 47A (powers to direct a person to cease loitering); Police Offences Act 1935 (Tas) s 15B (power to disperse); Crime Prevention Powers Act 1998 (ACT) s 4 (move-on power).

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At the middle of the spectrum sit South Australia, Western Australia and Tasmania, where a move-on direction can be given in circumstances where an offence has been or is likely to be committed, or where the safety of a person in the vicinity is threatened, but also where a person is causing an obstruction and where a breach of the peace is likely to occur. At the most permissive end of the spectrum, police in New South Wales, Queensland and the Northern Territory can issue a move-on direction in an extremely wide range of circumstances, including where a person's mere presence could cause anxiety to another person, or interfere with another's `reasonable enjoyment' of the space. Further, in New South Wales, the powers are explicitly stated to apply to persons who are reasonably believed to be unlawfully supplying or purchasing a prohibited drug (or are intending to do so).37 And in Queensland, the power is said specifically to apply to persons reasonably suspected of soliciting for prostitution.38

B The Kinds of Directions That Can Be Given

Some jurisdictions specify that only certain move-on options are available to police officers. While most jurisdictions provide a general power to order people to move away from or leave a particular area, cease loitering, or disperse,39 some prescribe an amount of time that a person can be moved away from an area for. In Queensland and Western Australia, a person can be moved away from an area for up to 24 hours,40 while in the Australian Capital Territory, a person can only be moved away from an area for a maximum of six hours.41 In Tasmania, a minimum period of four hours is prescribed.42

In addition to this, some jurisdictions specify the nature of the direction that may be given. For example, in New South Wales, any direction given must be reasonable in the circumstances to achieve a particular legislative aim, that is, to reduce or eliminate the obstruction, harassment, intimidation or fear, or to prevent the person from supplying or obtaining a prohibited drug.43 In Queensland, the legislation states that the direction must be reasonable in the circumstances, but provides no further guidance apart from some (non-binding) examples in the notes.44

37 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 197(1)(d) and (e). 38 It has been observed that police officers in NSW move-on persons suspected of soliciting for prostitution

as well as suspected clients, despite the lack of an explicit power to do so; NSW Ombudsman, above n 2, 269. 39 Summary Offences Act 1953 (SA) s 18(1); Police Act 1892 (WA) s 50(2)(a); Summary Offences Act (NT) s 47A(1); Police Offences Act 1935 (Tas) s 15B(1); Crime Prevention Powers Act 1998 (ACT) s 4(2). 40 Police Powers and Responsibilities Act 2000 (Qld) s 48(3); Police Act 1892 (WA) s 50(2)(b). 41 Crime Prevention Powers Act 1998 (ACT) s 4(3)(b). 42 Police Offences Act 1935 (Tas) s 15B(1). 43 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 198(1). 44 Police Powers and Responsibilities Act 2000 (Qld) s 48(1).

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