Scrutiny
of Acts and Regulations Committee
Review of Redundant and Unclear Legislation
Review of the Vagrancy Act 1966,
Discussion Paper, April 2002
Introduction
Inquiry
The Scrutiny of Acts and Regulations Committee
("SARC") has been requested to review the Vagrancy Act 1966
(Vic) ("the Act"). This inquiry was referred to SARC by the
Legislative Assembly on 14 March 2000. The purpose of the review is to
consider the content and relevance of the Act, and whether it contains
provisions that are unclear, redundant or ambiguous that require repeal,
amendment or revision. SARC is required to report to Parliament by the
Autumn Session of Parliament 2002.
Aim of the Discussion Paper
The aim of this Discussion Paper is to provide
interested parties with the opportunity to consider the recommendations
on a clause-by-clause basis. This approach is necessary when considering
the broad scope of the Act and the contentious issues raised by certain
provisions contained in the Act.
During the process of preparing this Discussion
Paper, the Committee has had discussions with a variety of individuals,
organisations and public bodies. The Committee analysed and evaluated
the recommendations and comments made by the Law Reform Commission of
Victoria in Discussion Paper No.26, which was tabled in Parliament
in 1992. The Committee also made extensive use of a number of primary
and secondary legal resources while conducting background research.
Background of the Act
(a) Vagrants and the Law of Vagrancy
It was once said that ‘vagrants’
are persons that "wake on the night and sleep on the day, and haunt
customable taverns and ale-houses, and routs about; and no man wot from
whence they come, ne wither they go."[1]
Traditionally, ‘vagrants’ were
divided into three classes: idle and disorderly persons, rogues and vagabonds,
and incorrigible rogues.[2] These terms operated
as part of the criminal law in Victoria for many years, and were only
abandoned with the enactment of the Vagrancy Act in 1966.[3]
Taking into account the historical background
in relation to vagrants and the law of vagrancy, the Vagrancy Act 1966
was enacted to regulate the same type of behaviour described as ‘vagrancy’,
through creating substantive offences out of acts of vagrancy.[4]
(b) Vagrancy Act
The Vagrancy Act 1966 (Vic) commenced
operation on 21 December 1966. The Vagrancy Act 1966 repealed Part
III of the Police Offences Act 1958 (Vic), which until then had
regulated acts of vagrancy in Victoria.
While the Vagrancy Act 1966 no longer
referred to idle and disorderly persons, rogues and vagabonds and incorrigible
rogues, it did- and continues to- regulate and punish persons considered
to be ‘vagrants’ (through, for example, prohibiting begging
under s.6(1)(d) and witchcraft under section 13) and conduct amounting
to acts of vagrancy (such as habitually consorting with reputed thieves
under s.6(1)(c), and loitering with intent to commit an indictable offence,
under s.7(1)(f)). In this respect, the Vagrancy Act 1966 is similar
to general criminal law statutes in other states in Australia, as well
as the English Vagrant Act which was enacted as long ago as 1824.[5]
The actual need for separate ‘general’
legislation covering acts of vagrancy, such as the Vagrancy Act 1966,
is questionable, considering that many of the offences covered by such
legislation could sit comfortably in other ‘general’ criminal
law statutes. In Victoria, for example, there is the Summary Offences
Act 1966 which deals with a variety of minor offences, and the Crimes
Act 1958 which covers a broad range of more serious ‘indictable’
offences. Indeed, in both the Summary Offences Act 1966 and the
Crimes Act 1958, there already exist a number of offences which
are very similar to, and could arguably act as a sufficient substitute
for, offences under the Vagrancy Act 1966.[6]
Moreover, contemporary legislation regulating
the law of vagrancy is based on antiquated English legislation dating
back hundreds of years, formulated when societal attitudes and the nature
of criminal law was very different.[7]
(c) The Committee’s Approach
When analysing the Vagrancy Act 1966
and reaching the preliminary recommendations contained in this Discussion
Paper, the Committee was guided by the following principles.
A number of offences presently contained
in the Vagrancy Act 1966 are now also regulated by other legislation,
some of which is subject-specific. For example, the Control of Weapons
Act 1990 (Vic) and the Firearms Act 1996 (Vic) are subject-specific
legislation dealing with firearms and other weapons. Both already provide
for offences relating to the use of firearms and other weapons,[8]
and are a more appropriate location for such offences than s.8(a) of the
Vagrancy Act 1966 which also establishes offences relating to firearms.
In dealing with situations where a provision
in the Vagrancy Act duplicates, or significantly overlaps with,
a provision existing in subject-specific legislation, the Committee recommends
that the Vagrancy Act provision should be considered redundant,
and repealed.
In
its Final Report on its inquiry into the Summary Offences Act 1966,
the Committee recommended that the Summary Offences Act 1966 should
be retained, though in a substantially reduced form.[9]
The Committee recognises the importance and usefulness of the Summary
Offences Act 1966 as a ‘general’ criminal law statute dealing
with minor offences.[10]
The Committee continues its support for
this position. Furthermore, it is the view of the Committee that, to ensure
the efficient and effective operation of the criminal justice system in
Victoria, there should be only one ‘general’ criminal law statute
dealing with minor offences. Due to this, the Committee considers that,
not only should the Vagrancy Act 1966 be repealed in its entirety,
but that any useful provisions in the Vagrancy Act 1966 which are
not otherwise covered by subject specific legislation, or by generic,
broader provisions in the Crimes Act 1958, should be alternatively
housed in the Summary Offences Act 1966 and remain minor offences.
For example, the Committee recommends in this Discussion Paper that the
offence of wilful and obscene exposure, which is presently covered under
s.7(1)(c) of the Vagrancy Act 1966 and for which the fourth largest
number of charges under the Vagrancy Act 1966 were made in 1999/2000,[11]
should be retained and moved to the Summary Offences Act 1966.
Many of the offences
created by the Vagrancy Act 1966 are based on anachronistic notions
derived from archaic English law of what constitutes acts of vagrancy.
The table in Appendix 1 reveals that a number of provisions in the Act
were not invoked during the period 1999/2000. Further examination confirms
that many of the provisions are rarely, if ever used. For example, during
the period 1999/2000 there was only one charge for the offence of fortune-telling
under s.13. The Committee considers that the frequency of utilisation
of a provision is an important factor to consider in making any recommendations
as to the continuing relevancy of a provision. However, at the same time,
the Committee recognises other factors must also be considered in making
such decisions.
It follows that if the substantive offences
under the Vagrancy Act 1966 are to repealed, then the corresponding
procedural provisions under the Act become redundant and therefore must
also be repealed. For example, there is no point in retaining a provision
such as section 18 of the Vagrancy Act 1966 providing that: "[u]nless
otherwise expressly provided all charges for or in respect of an offence
against this Act shall be heard and determined by the Magistrates’
Court", if there are no substantive offences retained in the Act.
Structure of Discussion Paper
TABLE OF RECOMMENDATIONS
In preparing this Discussion Paper, the
Committee has adopted the approach of producing a Table of Recommendations
and comments. The Table is divided according to the sections and sub-sections
of the Act, with each given particular consideration. The Table is structured
as follows:
Vagrancy Act 1966
This column of the table reproduces the
provisions of the Act as enacted at the time when the Discussion Paper
went to print.
Proposals
This column contains the recommendations
of the Committee for each provision of the Act. The recommendation is
expressed as either "Repeal" or "Repeal and re-enact".
A recommendation for the repeal or repeal and re-enactment of a provision
may have been given for a number of reasons. The reasoning behind each
particular recommendation is provided in the corresponding column.
Reasons for Proposal
This column contains the reasons for the
Committee’s recommendation to repeal, and at times to re-enact and
relocate, a provision. There are a number of reasons why the Committee
may have recommended the repeal of a provision, including: the conduct
penalised by the provision is such that it no longer warrants criminal
penalty; there is a suitable provision in another Act to regulate the
conduct; the provision is under-utilised and no longer necessary; and
the provision is procedural in nature and thus unnecessary if the substantive
provisions under the Act are to be repealed.
There are only two substantive provisions
that the Committee recommends should be retained through re-enactment,
possibly in amended form, in another Act. These are section 7(1)(c), which
deals with wilful and obscene exposure in a public place, and section
7(1)(f), which deals with loitering with intent to commit an indictable
offence.
Other/Proposed Legislation
This column lists Acts and/or provisions
of Acts that are considered to either adequately cover the subject matter
of a provision in the Vagrancy Act 1966, or that have the potential
to do so if amended.
Comments
This column contains additional comments
by the Committee relevant to the particular provision.
Appendices
This Discussion Paper also includes statistics
from the Magistrates’ Court of Victoria relating to the number of
charges for each particular provision of the Vagrancy Act 1966
in the period between 1/7/1999 and 30/6/2000 (see Appendix 1), and also
the number of offences under the Vagrancy Act 1966 which were in
the Top 100 most common offences (on a charge-based count) for 1998/99
(see Appendix 2).
Reference is made to these statistics by
the Committee in the Table below to justify its recommendations, and will
also be useful for interested parties when reading the Committee’s
recommendations or when preparing a submission to the Committee.
What is the role of the Redundant Legislation Subcommittee?
The Scrutiny of Acts and Regulations Committee
is a joint investigatory Committee of the Parliament of Victoria with
members drawn from both houses and from the Government and Opposition.
The role of SARC is primarily to scrutinise bills and regulations and
to review redundant, unclear or ambiguous legislation. SARC also examines
matters specifically referred to it by reference from Parliament or by
the Governor-in-Council.
While all members of SARC are involved in
the scrutiny of bills, other SARC functions are carried out by subcommittees
consisting of various members of the Full Committee. All Parliamentary
Committees have power to appoint subcommittees of not less than four members.
As such, SARC has appointed a subcommittee of five members to review redundant,
unclear and ambiguous legislation – the Redundant Legislation
Subcommittee, who will be responsible for this inquiry.
The additional scrutiny responsibility of
reviewing redundant, unclear and ambiguous legislation was given to SARC
in 1994 by Governor-in-Council Order. At the expiration of each Parliament
the responsibility for reviewing redundant legislation ceases and these
terms of reference must be renewed with the commencement of each new Parliament.
The renewed terms of reference for the 54th Parliament are
as follows—
1. The Committee is requested, in conjunction
with the Chief Parliamentary Counsel, to inquire into, to consider and
make recommendations as to:
Acts of Parliament and provisions of Acts
of Parliament which are unnecessary or redundant;
Legislative instruments made under an
Act of Parliament and provisions of legislative instruments made under
an Act of Parliament which are unnecessary or redundant.
2. The Committee is requested, in conjunction
with the Chief Parliamentary Counsel, to inquire into, consider and
make recommendations as to:
Acts of Parliament and provisions of Acts
of Parliament which are unclear, ambiguous or should be re-drafted;
Legislative instruments made under an
Act of Parliament and provisions of legislative instruments made under
an Act of Parliament which are unclear, ambiguous or should be re-drafted;
3. In the conduct of this reference, the Committee is
requested to pursue the primary objects of reducing the number and complexity
of Victorian Acts and legislative instruments, and ensuring that Acts
and instruments are clearly expressed in accordance with modern drafting
practices.
4. This reference shall continue unless revoked by the
Governor-in-Council.
Terms of Reference
The specific terms of reference for this
inquiry are as follows:
8 PARLIAMENTARY COMMITTEES
REFERENCES — Motion made and question — That under the powers
found in s 4F of the Parliamentary Committees Act 1968, the following
matters are referred to the following Joint Investigatory Committees:
8. To the Scrutiny of Acts and Regulations Committee --
for inquiry, consideration and report by 31 December 2000 on:
…
(b) the Vagrancy Act 1966, giving recommendations as
to:
(i) the content of the Act;
(ii) its relevance;
(iii) whether it contains provisions
that are unclear, redundant or ambiguous that require repeal, amendment
or revision.
Footnotes |
[1] |
4 Blac. Com. 170. |
[2] |
See A J Goran and R P Vine-Hall, Bignold’s
Police Offences and Vagrancy Acts, ninth edition (1962), p.
245. |
[3] |
See Vagrancy Act 1966 (Vic),
s.23. |
[4] |
See H Storey et al, Paul’s
Summary and Traffic Offences, fifth edition (loose-leaf service),
p. 905. |
[5] |
See Great Britain Home Office, Working
Party on Vagrancy and Street Offences Working Paper, London,
1974, pp 100-101; also J S Adler, ‘A historical analysis of
the law of vagrancy’ (1989) 27(2) Criminology 209. |
[6] |
Consider, for example, s.479C of the
Crimes Act 1958 (Vic), creating the offence of escape or
attempted escape, which is virtually identical to s.8(b) of the
Vagrancy Act 1966 (Vic), that also regulates escape and attempted
escape. |
[7] |
See generally C J Ribton-Turner, A
History of Vagrants and Vagrancy and Beggars and Begging (1972).
Consider, for example, the offence of using witchcraft under s.13
of the Vagrancy Act 1966 (Vic). According to research undertaken
by the Committee, there has not been a conviction for witchcraft
since 1712 in England. |
[8] |
See Control of Weapons Act 1990
(Vic), s5; Firearms Act 1996 (Vic), ss. 5 and 6. |
[9] |
See generally Victorian Scrutiny of
Acts of Regulations Committee, Final Report: Inquiry into the
Summary Offences Act 1966, November 2001. |
[10] |
To this extent, the Committee departs
somewhat from the opinion expressed by the Victorian Law Reform
Commission in its 1992 Discussion Paper that the Summary Offences
Act 1966 should be reduced to near "vanishing point":
see Law Reform Commission of Victoria, Discussion Paper No. 26:
Inquiry into Summary Offences Act 1966 and Vagrancy Act 1966,
1992, p. 9. |
[11] |
See Appendix 1 to this Discussion
Paper. |
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria |