Queensland police 'move-on' powers are over the top

Recent changes to the law, and to the powers of police, mean that you need to think twice next time you stroll home after a night at the pub, climb a tree in your local park or question why a police officer has asked you to do something. Your right to free use of public spaces is not as clear and unmitigated as it once was and if you are someone who enjoys the freedom that Queensland offers then you need to read the following very carefully.

The two legal pillars of most concern are the police move-on powers located in the Police Powers and Responsibilities Act 2000 and public nuisance law as set out in the Summary Offences Act 2005. These are separate arms of the law, but both have the effect of greatly increasing the number of people coming into contact with the criminal justice system.

If you are reading this thinking that as a peaceful citizen these laws aren’t going to affect you, then think again. The recent, poorly defined expansion of the law in this state means that you, Honest John or Jane Citizen, just might be causing “anxiety” to someone else in a “public place”. And in causing that “anxiety,” you just might have committed an offence.

Move-on powers were originally recommended by the Criminal Justice Commission in 1993. In 2000, the law was amended to cover all shopping centres in QLD and more recently has been extended to all public spaces throughout the state.

Under s6 of the Summary Offences Act 2005 a person commits a public nuisance offence if they behave in a disorderly, offensive, threatening or violent way; and their behaviour interferes with the peaceful passage through, or enjoyment of, a public place by a member of the public. A public nuisance, in its most obvious form, is someone using offensive, obscene, indecent or abusive language or behaving in a threatening way.

But be warned. If your favourite Slayer T-Shirt makes frail old Mrs Dodson anxious, then potentially, the police have the power to move you on. If the Egyptian guy at the airport is making other passengers a little “anxious” then surely he too could be requested by police to move on? And if you’re doing or being something that is likely to make someone cross the road to avoid you - then you’re a potential public nuisance.

As a solicitor at Caxton Legal Centre, Bridget Burton sees first-hand the impact of public nuisance law.

Caxton Legal Centre has seen a recent rise in the number of people seeking assistance with public nuisance offences and Bridget is unconvinced that the laws are being reasonably applied:

“Unfortunately, what we are seeing is a high number of public nuisance offences which are based on extremely trivial factual scenarios. These offences are arising without complaint from other members of the public and are largely being applied because the person’s conduct is being interpreted by police as ‘likely to interfere’ with other people’s enjoyment of a public space.

“The offence of public nuisance is incredibly broad. The range of things which can potentially be construed as an illegal interference with the enjoyment by other people of a public space is enormous. The situation is exacerbated by the fact that there is no defence of, for example, reasonableness or necessity, to a charge of public nuisance so many people choose to plead guilty even where their behaviour was reasonable or necessary in the circumstances.”

Dr Tamara Walsh, law lecturer at the University of Queensland and a member of the Rights in Public Space Action Group (RIPS), supports this. “Because many of those being affected by these laws are either too poor or too ill-informed to adequately defend themselves, there are an alarming number of guilty pleas being submitted. People are choosing to plead guilty, take a fine and get it over and done with rather than properly defend themselves. The other complicating factor is that you don’t get duty lawyer representation if you plead not guilty so the situation as it stands for many people is that you can plead guilty with representation, or plead not guilty and not be represented.”

Lars Falcongreen is a lawyer for the Aboriginal and Torres Strait Islander Legal Service. The public nuisance he sees “range from the typical kinds, which the legislation was intended to cover, like drunk and aggressive behaviour, people throwing their arms around and abusing the public and the police, right through to the simplest kind of matters like cheekiness towards the police. Unfortunately, some police prosecutors still seem to be proceeding with such trivial matters. In my experience, it seems that the public nuisance laws are almost always used by police as a control mechanism without actually being implemented at the request of other members of the public.”

Move-on powers are mitigated only by the requirement that the move-on direction must be reasonable and not interfere with the person’s right of peaceful assembly. Policemen and women are also required to give reasons for the direction and to ensure there is no reasonable excuse for the behaviour. The bottom line is that increases in police powers need to be accompanied by proportionate increases in police accountability. Current measures to this end, like the requirement that every move on direction be recorded in the Register of Enforcement Acts, have proven largely ineffectual.

These laws do serve a legitimate purpose. Police perform a valuable public service by moving people who have been fighting in a public space in separate directions or removing a person near a primary school whose presence causes anxiety to reasonable parents. We need law enforcement that deters people from being abusive and offensive in public places.

Ross Musgrove, Media and Government Relations Officer for the Queensland Police Union, puts it plainly: “Police do not make the laws. They are employed by the state to enforce the law as it is legislated. Police are opposed to public nuisance. If they see someone creating a public nuisance then that person will be subject to the law. People committing a public nuisance ought to be dealt with in the way the law requires. If you are going to be critical, be critical of the laws, not the police. If you have a problem, go to your local member and get the government to change the law.”

Dr Walsh understands the view of Mr Musgrove, with one limitation: “I’ve had conversations with police prosecutors and they seem to say that these powers are important because they give police the capacity to intervene in situations where no other power exists to protect the public and to stop a situation from escalating. I support that, so long as that’s all the police are doing. So long as there isn’t interference in situations where there is no real reason that things are going to escalate, then I think the power is justified.”

Representing RIPS at this year’s ALP forum, Scott McDougall, Director of Caxton Legal Centre made clear the disproportionate impact of these laws on marginalised members of society. In his speech he highlighted groups particularly at risk: the homeless or very poor, young people, those with cognitive impairment and Indigenous people. Young people made up 60 per cent of people charged with public nuisance offences in Brisbane and a majority of those charged with public nuisance offences could be classified as very poor or homeless.

In a survey in 2005, Dr Walsh found that Indigenous services rated the operation of police move-on powers as the most common legal difficulty faced by their clients.

Dr Walsh believes “by increasing the scope of the move-on powers you’re facilitating more interaction between the marginalised members of the public and police officers. We’re worried that facilitating that initial contact gives rise to the possibility that people will be charged with contravening a police direction to move on and that the number of public nuisance offences will go up as a result of that initial interaction.”

In Lars’ view, “a major problem with the law is that charges of public nuisance can lead on to other more serious charges. Without police diplomacy, interactions with drunk, homeless or mentally ill people can easily escalate. When you consider the situation for Indigenous people, who maintain an uneasy relationship with police at the best of times, you can understand why these things flare up. Many Aboriginal people see the interference by police as racially motivated and when that is added to the mix, we sometimes see cases of serious assaults and consequent severe punishments.”

So how were these discriminatory, ill-defined laws allowed to pass? It is interesting to note that the government has pushed through this legislation without much widespread, candid debate on the matter. The issue of ensuring public safety is paramount to good governance. But when does the need for public safety outweigh the value of individual liberty? The timing of the government’s legislative reform was suspicious. The expansion to move-on powers law was introduced shortly after the Cronulla riots when the public was gripped by fear of street violence. Only the bravest politician would have been likely, at that time, to show their disapproval to reform which bolstered the ability for strict enforcement of law and order within this fine state.

Lars encapsulates the need for reform neatly. “When we look at disorderly offences, I think we need to be mindful that they need to be of such a level that they deserve to come under the scrutiny of the criminal justice system. We need to ask, are these laws really worth it and are they really dealing out a necessary punishment?”

More than that, we need to ask whether an active democratic state should leave its government to legislate with such reckless ambiguity. Protecting individual liberty is at the core of keeping Queensland a successful, healthy society. It would be wrong to let that liberty slip in the face of some vaguely worded law and order legislation.