Scrutiny of Acts and Regulations Committee

Review of Redundant and Unclear Legislation
Review of the Vagrancy Act 1966

Transcript of Evidence - 31 May 2002

Committee Members:
The Hon. C.A. Strong MLC (Chairman)
Mrs E.J. Beattie MLA
Mr C. Carli MP
The Hon. R.R.C. Maclellan MLA
The Hon. A.P. Olexander MLC

Staff:
Dr David Blumenthal, Consultant
Mr Simon Dinsbergs, Assistant Executive Officer

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Victoria Police
Acting Commander P. Ditchburn, Corporate Policy Division;
Detective Inspector B. Sitlington, Tactical Response Squad;
Detective Senior Sergeant P. Chidgey, Tactical Response Squad; and
Acting Inspector A. O’Connor, Legislative Review and Proposals

The CHAIRMAN — I will start proceedings by declaring this meeting of the Redundant Legislation Subcommittee of the Scrutiny of Acts and Regulations Committee open. Today we are holding an inquiry into the Vagrancy Act 1966 and we are taking submissions from various witnesses. I would like to welcome our first witnesses from Victoria Police.

I need to make a few preliminary comments. This is a public hearing of a parliamentary committee and as such the normal privileges of Parliament are in place — that is, anything that is said in here is covered by parliamentary privilege. However, once you go outside it is the same as for all of us and that privilege no longer applies. Hansard are here today to take down the transcript of your evidence to the committee. That will be forwarded to you in due course just to ensure that to the extent they are normally very accurate they remain accurate today. With those few introductory comments I wonder if you would mind each introducing yourselves and swearing an oath or affirmation.

Thank you for coming and talking to us this morning and thank you also for your submission which has, as we expected, homed in on a couple of key issues. I wonder if you would like to make some introductory comments before we start asking some questions?

Acting Cmdr DITCHBURN — I would like to thank you for the opportunity to address the committee. The review's aim of clarifying the relevance of current legislation and allowing interested parties to comment is appreciated. At the outset I would like to explain my role and introduce Acting Inspector Tony O'Connor, Detective Inspector Bob Sitlington and Detective Senior Sergeant Peter Chidgey. I am currently the manager of the corporate policy division. It includes legislative review and proposals, research and development, policy development procedures, project management coordination and drug and alcohol policy coordination. Acting Inspector Tony O'Connor is attached to legislative review and proposals. He has been responsible for coordinating the submission we forwarded to the committee. Detective Inspector Sitlington and Detective Senior Sergeant Chidgey are attached to the tactical response squad. I have asked them to accompany me to provide a practical perspective and insight into the operation of the consorting provisions in particular.

The Vagrancy Act contains provisions which Victoria Police consider to be important tools to assist in creating a safer society. The act is important because it collates legislation aimed at preventing offences before they are committed. It also directly links them to important provisions such as section 9, which allows evidence of bad character to be alleged and section 17, which protects those acting under instructions from the police such as those in an undercover situation. We would also like to caution that where provisions are relocated the impact of this linked legislation is not lost.

As we indicate in our submission, the value of an existing provision should not be established totally on the basis of the number of prosecutions launched. Detective Inspector Sitlington will be able to provide a particular example of this principle, how it works in practice and why the numbers may not be very large. Victoria Police agrees that the act needs to be updated and modernised and that certain offences may no longer be relevant and should be repealed. However, we urge the committee to take the opportunity to increase the relevance of certain offences in response to the changing dynamics of crime in the community. In particular, we urge that offences relating to loitering and consorting be retained and expanded to include drug traffickers.

In view of these issues and without iterating our original submission, our key recommendations are that those offences relating to consorting should be retained and expanded to include drug traffickers; begging or gathering of alms should be retained as this behaviour remains a significant concern, particularly in the Melbourne central business district, and police have the resources to deal with these sorts of issues; and that provisions relating to ‘article of disguise’ and ‘found disguise’ should be retained as this sort of behaviour is not adequately covered by the law of attempt and is an important justification for police intervention, and the onus still remains with police to prove intent.

In relation to loitering, Victoria Police agrees with the committee’s proposal to simplify the definition regarding where an offence may occur but suggests that, as with consorting, the provisions should be extended to include drug traffickers. The additional requirement of the performance of an act with the intent to commit an offence in furtherance of an indictable offence is considered overly onerous given that the proof of loiter already places — quite properly — substantial demands on the prosecution to prove its case. There is a substantial body of law in relation to loiter; it is not a matter of a simple dictionary definition as some people perhaps view it. We suggest possession of implement of housebreaking under the Vagrancy Act should be retained as it has a broader application than the analogous offences under the Crimes Act.

They are my overall views of the aspects of the Vagrancy Act which Victoria Police would like to highlight. Acting Inspector O’Connor can provide more detail on the legal specifics and Detective Inspector Sitlington can provide you with a detailed explanation of how these sorts of provisions in relation to consorting are applied.

The CHAIRMAN — Thank you. One of the things that has come through from some of the other submissions that perhaps you could touch on is this ‘consorting report’, if that is the right word, where you require a significant history of consorting to proceed. Are you going to explain that?

Acting Cmdr DITCHBURN — Consorting is an offence that is used in a very strategic way. Perhaps I can ask Inspector Sitlington to explain how it is applied.

Det. Insp. SITLINGTON — Victoria Police has its own internal controls in relation to consorting which stem from the legislative statements made. These internal controls mean that certain numbers of consorting reports have to occur over a specific period of time for it to be available. They are: 9 reports within one month, or 12 reports within three months. Maybe I should explain where the tactical response squad comes in. The squad and the officer in charge of it are responsible for the authorisation under these internal controls of each brief. That provides a consistency throughout the state and ensures that the legislation has been applied in a consistent manner. We explore every brief as it is produced and go through each and every consorting report and ensure that it is a fair and just prosecution before it is authorised.

Acting Insp. O'CONNOR — If I can interrupt for a moment: is the committee aware of what we mean by a consorting report as such? Perhaps I should explain that.

The CHAIRMAN — We have heard it referred to and seen statistics in terms of 9 per month or 12 in three months, but we are not aware of exactly what is in it and what it says.

Acting Insp. O'CONNOR — It comes from the fact that the usual offence — —

The CHAIRMAN — Not wishing to cut you off, but if you have some examples that you could leave with us, that would be very helpful.

Acting Insp. O'CONNOR — Habitual consorting requires consorting on more than occasion — it is not an offence from the first instance that a person is seen to be consorting — therefore the prosecution must prove that the consorting is habitual. We prove that by taking reports of instances when people are consorting. We make a report, which is a consorting report, and we consolidate those reports. We have an internal measure whereby once a certain number of reports are made we will then consider a prosecution — consider laying the charge that the person is habitually consorting — and put it before the courts. The consorting report is an internal mechanism that Victoria Police uses to build a case so a person can be charged with habitually consorting.

The CHAIRMAN — Thank you for that. In my reading of that particular provision, section 6(1)(b) is where somebody is consorting if they are found in a house or place in the company of reputed thieves et cetera and does not give a satisfactory account of why they are there to the court, and subsection (1)(c) is the habitual consorting — and you use these consorting reports to establish the proof that it is habitual?

Acting Cmdr DITCHBURN  — I think I am right in saying that the offence we use is habitual, which is subsection (1)(c).

The CHAIRMAN — So you do not use subsection (1)(b), which is just being found in a place.

Det. Insp. SITLINGTON — Predominantly the offences of habitual consorting are usually with operations such Operation Leader in the Melbourne central business district, where people are consorting together and we believe it is a preliminary step before the crime; they are committing crimes. It is those types of street offences.

The CHAIRMAN — So it is that subsection (1)(c), the habitual consorting, that to you is important?

Acting Cmdr DITCHBURN — That is the one we are referring to when we talk about consorting.

The CHAIRMAN — So if we were talking about consorting and subsection (1)(b) you would be less concerned about that. If you are able to tell us today that would be useful, but if you would like to think about it and come back — —

Acting Cmdr DITCHBURN — Perhaps we could take that on notice as to the frequency of it. My instinct is that it is used infrequently. Certainly 6(1)(c) is the one that is considered to be consorting, but I can’t say that (b) is never used.

The CHAIRMAN — Perhaps you might be able to give us your considered opinion on the other 6(1)(b)? That would be useful to us.

Mr CARLI — The Police Association’s submission suggests that the internal requirements in terms of consorting are actually too onerous, and basically I suppose it leads to the under-utilisation of consorting. What are your feelings about that, about your internal requirements in terms of establishing consorting?

Acting Cmdr DITCHBURN — Our internal requirements are about ensuring there are guidelines and safeguards, and that they are applied in a strategic way across the whole of the state. I don’t know, maybe Inspector Sitlington has further comments.

Det. Insp. SITLINGTON — Did you want to say something?

Det. Sr Sgt CHIDGEY — If I can, Sir. I have been wearing two hats during my career: one, I spent 23 years on the street as an operational policeman, a detective; the second one now is that I have the responsibility of authorising all things for the charging of habitually consorting. Apart from the factor of the guidelines that the operational police members have — a minimum of 9 reports within one month consorting with reputed thieves, and hopefully in the future drug trafficking, and 12 reports in three months — as a scrutineer, if you like, of the quality of briefs of evidence it is my responsibility to treat these charges and the brief of evidence like I treat every other brief of evidence. Not only is it my responsibility to establish the points of proof that the events have occurred, but it is also to reinforce the spirit of the legislation.

In other words, if a brief for prosecution comes in to me I am likely to — bearing in mind the spirit of the legislation — send the brief back if it does not over-cater for those minimal requirements, if you like — in other words, not just on the threshold here, I am talking about not only consorting well in excess of the minimum that is required but also the quality, if you like, of the people with whom we are consorting. Of course consideration is given in relation to these briefs like it is to any other brief, to as I said points of proof and the spirit of the legislation — in other words, I want to make sure that it is in the public interest. There are endless demands of me — like anybody else — in the authorisation of the brief to make sure there are no costs against the department and we in fact well and truly substantiate the charge. They are basically the checks and balances we have in place for the authorisation of habitual consorting.

Mr CARLI — We have had a number of submissions that have said we should repeal consorting. I suppose it is fundamentally based on guilt by association, and I suppose I am very keen to hear how important it is on the beat. How does it actually affect you and how is it utilising the policing? It is easy, I suppose, to stand aside and say maybe it is outdated or it might be unfair on individuals to suggest that they might be guilty by association, but what does it actually mean in terms of your actual ability to police and to have an effect?

Acting Cmdr DITCHBURN — Peter will be able to give more detail from his operational experience, but certainly we see it as a proactive and preventative tool. In order to take consorting bookings at the pre-collation stage, at the booking level it means police are going to be seen as being very active in speaking to these sorts of people, especially in public places, and it can only aid and improve the community’s perception of safety to see police interacting with these sorts of people, but it is primarily about prevention and interaction.

Det. Insp. SITLINGTON — Some of these people we deal with — without going into the names of people; maybe if I could just use a factual case without using the name of the person — this is the type of person who has been charged with consorting: this person has prior offences going back to 1983 and right up to March this year — there are 11 pages of them — but they are all-rounders, things such as receiving stolen goods, possession of weapons with intent, theft of motor car, theft, burglary, again theft of motor car, traffic drug of dependence, possess money being the proceeds of a crime, breach of sentence, again breach of sentence, theft of motor car, handle, receive, possess, traffic heroin — I am cutting all these short, too, they go on and on and on — fail to answer bail.

The CHAIRMAN — We get the point.

Det. Insp. SITLINGTON — And I only got up to page 2.

The CHAIRMAN — So it is fair to say that most of the people who you charge under habitual consorting are people with very extensive criminal records; is that true?

Det. Insp, SITLINGTON — Sometimes they are the very key person for causing crime in specific areas.

Det. Sr Sgt CHIDGEY — In real terms to say that we are going to be consorting, following up a person who has a cigarette or a latte with another person who has a prior conviction for shoplifting is just a nonsense — practically it does not work like that. It was raised by the offences unit — bearing in mind the main underlying theme is guilt by association — that i somebody were to say that that is old-fashioned I would say that is also nonsense because you have legislation in relation to known sex offenders loitering, which is designed to prevent offences. Purely by a person having a prior conviction for a wilful obscene or a sex offence, he has paid his price, his time to society, but the fact that he has that prior conviction means he is then prevented from going to certain places. With the latest drink-driving legislation some people might say they are being disadvantaged by not being able to start their car unless they supply a breath test because of a prior conviction, and it could be said that that is going to prevent another fatality on the roads. The point I am getting at here is that it is not archaic legislation, it is something that is keeping up with the times in relation to prevention of crime.

Mr CARLI — What about the other criticism, that the offence is under-utilised and therefore not necessary, which is what we put in the report; what about that criticism?

Det. Sr Sgt CHIDGEY — There is a history of the internal mechanisms of the police system. In 1992 they brought in a system known as LEAP — law enforcement assistance package — which is a computer program, which is basically statistical but which also doubles as an intelligence computer program. In that LEAP system the operational police were required to put in what they call field contacts — in other words, very much akin to, ‘I saw that person who is a known crook talking to this fellow who is a known crook in an area that has had a lot of thefts of motor cars’. But that was only an administrative procedure; that did not have any legislative follow-up. For some reason this psyche got together with the operational police and they thought if we put in the field contacts it may replace the need for extra paperwork in relation to consorting, but there was no legislative follow-up. That served two purposes. First of all the operational police got a little bit complacent, and also the people who thought they were being originally consorted weren’t, so that legislation was not being enacted.

Now it has been more and more realised by the regions and places like Springvale, Frankston — and all sorts of places — that the police have their hands tied in preventative measures. They have to allow these drug dealers to talk to the housebreaker to organise a swap over of goods. Like a housebreaker will take a video to a drug dealer, and he will give him a cap of heroin or whatever. We are very limited as to what measures we can take to prevent this sort of communication and these conspiracies.

Acting Cmdr DITCHBURN — In relation to under-utilisation, I suppose we should add that it is not simply a matter of the number of briefs that are submitted. The stages leading up to the development of a brief mean that police are interacting to quite a significant level, albeit we may not be able to provide the data of how many people are booked for consorting.

The CHAIRMAN — We have heard from others that these consorting reports are overly onerous and inhibit the effective use of the consorting provision; do you share that view?

Det. Insp. SITLINGTON — I emphasise the point that Senior Sergeant Chidgey made in relation to the fears that some people have that the legislation is used willy-nilly. It gets back to those internal controls that some people say are onerous provisions placed upon us internally, but it ensures that it is this type of person with those 11 pages of prior convictions, it is the key person that we believe is responsible in certain areas for causing crime, for organising and coordinating different things that we can get to. In relation to that I don’t see anything wrong at all with the consorting reports. To clarify the point that Peter was making earlier, he spoke about LEAP, and it was that people thought by doing those field contacts on LEAP there was then no need to put in a consorting report. That is what the guts of it was, that the consorting report is no longer required; and of course it is, because that is the mechanism the force has for registering all the reports against the person.

Acting Cmdr DITCHBURN — I think it is fair to concede that it is a complex provision to implement and that we do have ongoing training issues with how it evolves, and obviously LEAP has been a factor in that as well.

Mr CARLI — I want to ask quickly about the issue of loitering and extend that to drug trafficking and how important that may be and why do we need do that. Why do people need to keep loitering, and why do we need to extend it to potential drug traffickers?

Acting Cmdr DITCHBURN — I think Inspector Sitlington can extend it to the practical, but I will make the observation from my role as a former Manager, Drug and Alcohol Policy — that this has been an issue over many years in drug dealing on the streets, and the most naive of observers can see what is occurring. However, when it comes to police intervention to act on traffickers often a minimum requirement is to find the drugs. Now offenders have all sorts of strategies to conceal these drugs and to use other people as a conduit. The inclusion of a loitering provision in relation to drug traffickers would be a useful tool for police to break up the street market. It would also allow police to intervene when the community asks for their intervention, and give them a tool to use for that purpose. Obviously drugs are becoming and are an increasing issue in the community. When the provisions were originally established obviously they were not the problem they are now. But we see a loiter provision in relation to drug traffickers as being a very valuable addition to that provision.

The CHAIRMAN — How would you make that work? Currently the loitering provision says ‘being a suspected person or a known or reputed thief, cheat, who loiters’; so you would say ‘if you loiter around an already convicted drug dealer’?

Acting Cmdr DITCHBURN — It might well be a known or reputed drug trafficker. Perhaps Bob could add from his experience.

Det. Insp. SITLINGTON — In response to community concerns in the central business district, the Footscray, Dandenong and Springvale regions have conducted operations in which the tactical response squad has played a key part. Mainly those concerns that the public had — and they were really well documented, or recorded on talkback radio and other forms of media — were about the blatant open drug dealing that anybody could identify. These types of things occurred even after uniform foot patrols had walked past the area; right behind their back there would be some drug dealing. People would probably ask, ‘Why don’t the police just go up and grab these people?’, but it is not quite as simple as that because these people have methods of communicating with each other. As an example, it might be that you talk to a person, the deal is done there and the drugs are collected from another place, or they have a person who is a carrier who carries the drugs and they go around and see these people later on.

In response to that we had to become slightly more sophisticated. Without going into the operation of the way we combat the problem, we take away some of our very limited resources in specialist areas and saturate the area a couple of weeks prior and gather some evidence, because at the moment the only offence we have there is the actual offence. Once the offence is committed it is not conceivable to actually get into a conspiracy where we would have to use something like telephone intercepts or listening devices and that type of thing because it is out in the open, in the street. We collect all that information and then we might run an operation a fortnight or three weeks later when we know exactly who we are dealing with, and we try to catch drugs on those people; or we might have some other evidence that we have collect in the fortnight prior to. I hope I am not being too ambiguous about this — I don’t want to go into exactly how we do it — but we will target those people.

First of all we modernise it, because going back into the 60s, around those times, they are ‘consorting with thieves’, because that was the way people did it — they were burglars, they were armed robbers, and all those types of straight out crooks. Now we have the drug factor. If we had a reputed or known drug dealer it wouldn’t matter whether we got the drugs off the person or not. Most of the time you only get a very limited sample of the drug or you get nothing at all. What we could do is then go ahead and over a period of a month or three months, or whatever the time is, we could use that legislation as a preventative tool to stop the offence and the dealing on the street, which would in turn show an increase in the security of people and the public. These people complain to everybody and there are very limited things we can do about it.

The CHAIRMAN — I understand that. One of the things we were suggesting in our draft report was that this provision could be perhaps enhanced by extending it to say that the loitering had to be, in the performance of an act, an intent to commit a crime — in other words just sort of loitering round, you had to actually establish that there was in the drug dealing case an intent for them to do a drug transaction. Would you see that as a problem — in other words, it just wouldn’t be a whole lot of drug people loitering around talking to each other, you would have to establish that they were doing that with an intent to make an exchange or carry out a transaction?

Det. Insp. SITLINGTON — I think as soon as you get the word ‘intent’ it makes it very difficult. I would ask others, but my opinion is that it makes it very difficult to prove that intent. I don’t know how you are going to go about proving intent unless you get an admission from the person. The overt acts may provide some type of evidence, but — —

Acting Cmdr DITCHBURN — The body of law in relation to loiter, too, is very complex, and it has to go a lot further than just hanging around in a group in any case. Once the actual loiter is established you have really gone a long way from what I suggest you are saying in relation to the person’s intent.

The CHAIRMAN — I wonder if we can work through this in some sort of logical order. Begging is another key issue. We have had quite a few submissions along the lines that begging is a fundamental social problem and any form of criminal sanction is therefore not appropriate. Would you care to elaborate or give us some examples of why begging should be retained as you are proposing?

Acting Cmdr DITCHBURN — I will ask Tony to respond to that, but I suppose in general terms many aspects of begging do involve criminality and there is a danger with the way provisions are framed with limiting the ability to respond, but I will pass on to Acting Inspector O’Connor.

Acting Insp. O’CONNOR — There is certainly a social or a welfare side to begging, and those instances are not the instances that would come to the attention of the police, or probably not the instances that would come anywhere near this law. There are people who beg who perhaps are not within the social or welfare situation. We have had complaints. It has been in the paper in recent times, and I don’t need to go into instances, but there needs to be an offence, in our submission, to apply to a person who is begging who may not necessarily be a beggar — a person who is short of money — but a person who is in a public place approaching people and aggressively asking for money. A person who is not aggressive or not of any concern to a member of the public will usually be supported by a member of the public, but a person who causes concern, causes fright, causes police to be called, is a problem. It is not necessarily that that person is a social problem; they may be a police problem. If there is no offence in existence then there is no opportunity for the police to respond.

Acting Cmdr DITCHBURN — Another aspect is, of course, we are a 24-hour service so where these instances occur late at night or during the night the police can respond. If options of looking at others who might be able to intervene in that area are looked at, that might need to be a consideration.

The CHAIRMAN — Having looked at this issue in overseas jurisdictions there is a great deal of cooperation and coordination between the police forces and the social welfare agencies; in many cases they actually work together on these sorts of issues. Do you have relationships with any of the homeless groups like that here? What sort of relations do you have?

Acting Insp. O’CONNOR — Rather than the specifics I know in general that certainly we are part of a community approach to problems. We are only part of it, and I feel comfortable in saying that in an instant where the police come across a person who is in need of assistance we are certainly able to access those other resources. In this day and age we are also going with alternative enforcement measures — diversion and different measures — away from traditional law enforcement. What starts off as a police attendance in many instances does not result in a prosecution; it will result in a diversion to another authority or another agency. We are able to funnel people to different areas, certainly.

The CHAIRMAN — Can I also ask you: one of the most interesting statistics I heard when I was looking at this issue overseas was the amount of people who were arrested for begging but who when they were actually brought in were found to have significant convictions outstanding, they had skipped bail somewhere else or were wanted for some other crime or the like. Do you have any statistics of that nature?

Acting Insp. O’CONNOR — No, but we can make those inquiries if you wish.

Mr CARLI — On the idea of aggressive begging, it was suggested to us that you could restrict or rewrite the begging element to take into account aggressive begging; is that what you see as appropriate or acceptable?

Acting Cmdr DITCHBURN — Tony will elaborate, but we feel it could limit it in some ways.

Acting Insp. O’CONNOR — One of the difficulties is that if you do define a situation, you restrict it. Unfortunately you may cut off options in future that you have not envisaged. At the moment I would consider that police apply the offence in appropriate situations — they may be aggressive, they may be persons of erratic behaviour, apparently drug affected or affronting. There are a lot of different ways in which behaviour can be disconcerting, some will be aggressive and some may perhaps not be aggressive. In that instance, if a person who appeared to be drug affected were begging the police should be able to attend and take some action. Perhaps the person wouldn’t come within their definition of an aggressive beggar and therefore your option would be lost.

The CHAIRMAN — I have heard it said that the selling of the Big Issue magazine is often a front for begging. Is that something that you have experience or any knowledge of?

Det. Insp. SITLINGTON — It is a little bit different from someone standing up there with an article for sale and maybe harassing people into a sale. The perception of a person and their security — well, it is totally different to meeting someone maybe down Russell Street or around Little Bourke Street and those areas where there may not be as many people around, and the person is quite aggressive about it to the point where it literally scares people. I have friends and relatives who have come to me who actually live in the city and have said that they go for their walks around the city because it is now the city they live in, and every couple of blocks, all the time, they are confronted and some of the people are very, very frightening. I think they are the ones you have to distinguish between. I do not really think you need legislation to do it. It is similar to the consorting; it is not going to be a poor, destitute person who just happens to ask someone that the police are going to be attracted to; it is going to be the more aggressive person in the sole circumstances that is taken into consideration, and the time, the day, the location of the offence and the manner in which it is put.

Acting Cmdr DITCHBURN — It is not about aggression, either. I was recounting to Bob earlier how one night coming back late, walking from the city from Spring Street to the Victoria Police Centre, I was approached by four different people for money, all with very plausible stories, none aggressive. But the sum total of four different approaches for money would lead you to believe that there is a lot more to begging than just destitute and aggressive people.

The CHAIRMAN — We have touched on the begging and the loitering and the consorting in issues that the committee in its deliberations saw as enormously serious and warrant a lot of discussion and took some time to reach a conclusion. However, disguises we saw as quite clearly outdated and could easily be repealed. You are advocating that there is still some value in maintaining that?

Acting Cmdr DITCHBURN — Many of these offences at first blush look like they might be inappropriate — and certainly looking at it in that way you might think we would be fairly busy during Halloween — but in the practical application it is not really like that, and perhaps Tony again could explain it in a little more detail.

Acting Insp. O’CONNOR — In most instances they certainly will be totally innocent. However, as I think we have said in our submission, there is a clear link between disguise and, say, an armed robbery that has to be addressed. Many instances of armed robbery will feature disguises and clearly we would submit that there needs to be some offence or some control over disguises. Offence applies a control. It also provides a very wide opportunity for people to explain why they have a disguise and to excuse their behaviour. The offence applies only to a person who has a disguise without lawful excuse, the proof of which excuse shall be on such person. It allows police to challenge someone who perhaps is standing out the front of a bank with a balaclava on with, ‘What are you doing with that balaclava?’. If the person can come up with a lawful excuse, there is no offence. I expect the community would expect that a person in that situation would be challenged and be required to explain that possession. An innocent possession will not come to the attention of police in the first place. A possession that is concerning is worthy of an explanation. Once the explanation is given and the offence is not complete the person will go on their way.

The CHAIRMAN — But there is a school of thought, as you can imagine, that quite clearly says that in that instance, that example of somebody standing in the street near a bank with a balaclava on, a policeman comes up and says, ‘What are you doing wearing a balaclava?’ — that sort of thing — people would say that is tantamount to harassment, as it were, and there are certainly people who hold that view quite strongly.

Acting Cmdr DITCHBURN — It may not be a view they share if they are a bank teller.

Acting Insp. O’CONNOR — I would imagine the community would wonder why people would stand outside a bank with a balaclava on, and I do not know whether they would see there is a need to facilitate that.

The CHAIRMAN — They would probably argue that any half-respectable thief would more than likely have a balaclava in his pocket rather than on his head, but that is a separate issue. But you are strongly of the view that this is an offence or provision that is still required?

Acting Cmdr DITCHBURN — It is a preventative tool.

Det. Insp. SITLINGTON — The application of that does not have to be something as high-powered as an armed robbery or something as significant as that. It may be protesters down at the botanic gardens, and people breaking in late at night ruining some of the plants in protest of something — like the bats or something like that. These people are found in the preparatory stage outside the gardens; they are stopped by police and we can stop those types of offences. So it does not have to be something like an armed robbery; it can be something more subtle.

Acting Insp. O’CONNOR — There is the facet to an article of disguise that it allows a person to disguise their identity, and there is a perception there that there is an unlawful purpose that can be connected to the first step if you are there for an unlawful purpose is to disguise yourself. It is concerning behaviour in many instances. In many instances it is entirely innocent, but there is that connection between offences and disguising yourself.

Acting Cmdr DITCHBURN — I suppose the first thing we learn in the police academy is that the first point of proof is identity, so anything that allows people to conceal that identity is certainly placing a barrier in front of police. However, the way the provision currently is still allows that police must prove their case, so innocent circumstances will be eliminated.

The CHAIRMAN — One of the other suggestions that has come to us on this disguise issue is that the Crimes Act — perhaps I will ask David to address you. It is a bit unusual to get our adviser to address you, however —

Dr BLUMENTHAL — The question is some people submitted that section 91 of the Crimes Act, going equipped for stealing, deals with this sort of thing in a consolidated modernised version of section 91, which deals with disguise and anything like that, could be used because it is already stated to be a summary offence, and then perhaps relocate that offence to the Summary Offences Act.

Acting Insp. O’CONNOR — Going equipped for stealing, perhaps the disguise may not be for stealing — it could be for an assault.

Det. Sr Sgt CHIDGEY — Or damage.

Acting Insp. O’CONNOR — Say a person who is disguising themselves is about to assault, that would not be covered by section 91.

Det. Insp. SITLINGTON — And I think it says ‘burglary, theft or cheat’, section 91.

Dr BLUMENTHAL — Yes. We thought one of the suggestions was to simply modernise that to any indictable offence, so if you go ‘equip’ and include the word ‘disguise’, because there was also the issue of the face-blackening provision of the Vagrancy Act.

Det. Insp. SITLINGTON — You do not want to limit it to just indictable offences, though. I am just thinking about wilful damage as a summary offence. It might substantiate a criminal offence such as — I know I am getting hooked on protesters — protesters damaging a window or graffiti-ing a window. That might be a summary offence where that article or possession of an article for disguise would then cover that. If it was opened up a little bit to include some of those other offences, absolutely no problems.

The CHAIRMAN — Thank you. Unfortunately time is always a problem. We may call your evidence to a halt. You have given us a fairly detailed written submission, for which I thank you, and thank you for making the time available to come to see us. It is very useful to have a verbal explanation of how these things work and how you would use these provisions. Copies of today’s Hansard will be forwarded to you in due course for you to check over to see that there is nothing that is glaringly wrong. The idea is not to allow you to change items of fact, but just to correct anything else. Thank you very much for your attendance.

Witnesses withdrew.

Police Association Victoria

Senior Sergeant P. R. Mullett, Secretary; and
Inspector B. I. McKenzie, Assistant Secretary

The CHAIRMAN — Thank you very much for coming to see us today, and also for your submission on the Vagrancy Act inquiry. As you can see, these proceedings are being recorded by Hansard. In due course a copy of that will be forwarded to you to make sure that your statements have been factually recorded for us. Would you like to make some preliminary statements? I think it would be helpful before we go into questions.

Sr Sgt MULLETT — Our submission is outlined in correspondence to you dated 24 May 2002. We certainly thank you for the opportunity to provide verbal submissions in support of our documented position. In general terms, the Police Association is not as much concerned at the repealing of the Vagrancy Act but wishes to ensure that certain provisions contained in that act are preserved and placed in other legislation. Again, in responding in general terms to some assertions that some offences have been under-utilised, it is the Police Association’s view — and a strong view — that one of the main reasons for that being the case is the fact that police resources have been very low over the last four or five years. In fact the previous government slashed police resources by approximately 1000. The present government is restoring those resources, to its credit.

Some of the offences the committee is considering repealing altogether are very much preventative offences. When you do have a properly resourced force, you find the offences in terms of clearance rates would be higher because our members would have the opportunity to exercise a proactive arm in policing and arresting suspects or offenders charged with the types of offences that your committee is considering repealing.

We use as an example of that possession of articles of disguise, section 7(1)(f) of the Vagrancy Act — although one of the further arguments is that there is other legislation in terms of ‘attempt’. It provides our members with the legislative authority. Again, given a properly resourced force, you can actually apprehend offenders or suspects a fair time prior to the commission of a serious offence. By way of example, you may question a suspect walking along the street with a bag containing balaclavas. Now, that person may be en route to meeting other potential offenders who are about to embark on perhaps a major armed robbery or the commission of an armed robbery on a bank. So with that offence being retained, it allows police officers to arrest a person well prior to the commission of that very serious offence if that person had, for example, a number of balaclavas in his possession. It does provide our members — police officers — with the necessary authority to stop the commission of a very serious offence well before it would in fact be committed. That again, in general terms, is the thrust of our submission; it is as much about proper resourcing.

When you have proper police resources you find these things would be utilised. It is very much about preventing serious crimes from occurring. A real issue at the moment is community safety or community security, particularly with the federal government at present throwing its weight behind that very high-profile issue of community security as a result of the events of September 11 in the United States of America. Even using that — without being over the top — as an example, if those types of people were pulled up in either a car or in the street with certain articles of disguise or certain equipment, it gives our members the legislative authority to stop what was or what could be the commission of an atrocious offence in that set of circumstances. Again, it all revolves around a properly resourced police force.

In 1997–98 in particular we saw a very reactive police force, where they were providing limited police service in going from job to job. When you’ve got a sufficiently resourced force, there is very much a proactive arm of our profession of patrolling either in marked patrol police cars, unmarked cars, and even our members on foot patrols or bicycle patrols where they are — again in a properly resourced force — consistently checking suspects in the street. If those suspects have particular items on them, and if the legislation is retained, it gives our members a power of arrest and allows for more culpable or serious offences to not occur, so it is very much a deterrent.

The CHAIRMAN — Thank you. If we could go through some of the key issues which have attracted the most attention of the committee. Perhaps if we could start with consorting and loitering offences. There was a belief that some of those were a little bit onerous. We have heard from the police that with ‘consorting’ they really use only section 6(1)(c), which is ‘habitual consorting’ and they require these consorting reports, et cetera, to be produced. I note from your submission that you are saying that that is a fairly onerous requirement; would you like to elaborate on that? Obviously the police are saying that this is a necessary safeguard, et cetera.

Sr Sgt MULLETT — Sure. The onerous issue is probably more to do with Victoria Police Force policy than necessarily a judicial requirement. Obviously, to present a person on an offence or to charge a person with an offence of consorting, one has to compile a fairly comprehensive brief of evidence. We do not have any problem in terms of the judicial accountabilities as far as that is concerned, but perhaps a less onerous policy from police management in terms of the number of required bookings before a person is presented on a charge of consorting could be looked at.

Again, consorting is all about preventative measures and the legislative requirements in terms of a person’s criminal history. We have no difficulty there. There should be certain onuses placed on our members to prove certain points of proof in evidence, but it is all about reducing the number of actual bookings. From a personal point of view, when I was in the armed robbery squad, there was a certain hotel in North Fitzroy where every armed robber known to police at that time would frequent consistently. With this provision — again from a preventative perspective — you can stop those types of people meeting. There is only one purpose for their meeting on a regular basis and that is, in our view, to plan and ultimately commit crimes, most of them serious.

The CHAIRMAN — There is an argument mounted that says if you do that, then they will just meet somewhere else, so to what extent is this just harassment, as it were? You have mounted the case, and Victoria Police I think likewise, that this is a good tool because it allows them to identify where criminals are meeting, to sort of plan their operations, but in your view to arrest half of them for consorting. But next time they do it in someone’s cellar or somewhere less obvious. I am wondering what does it achieve for you in real terms. That is my question: does it really achieve anything for you?

Sr Sgt MULLETT — It is a real preventative tool. In terms of harassment, our members are more accountable — and rightly so — than they ever have been. They have to act professionally. It is not a matter of arresting people for consorting. It is about criminals habitually consorting with each other; it is about going through a proper professional process. At present we have no problem in the retention of certain policy accountabilities from a management perspective within the Victoria Police force. We would like to think our members these days act extremely professionally and are absolutely accountable. If it comes down to using a provision from an harassment perspective, quite obviously that criminal has recourse to avenues such as ethical standards, and the government’s Deputy Ombudsman (Police Complaints), but if professionally approached it is a tremendous preventative tool.

The CHAIRMAN — I know Carlo wants to ask some questions on this, but before he does, could I touch on a further point? There are basically two provisions under consorting. One says that you are found in a house or place in the company of reputed thieves, which is section (1)(b). The other is section (1)(c), which says ‘habitually consorts with reputed thieves’. The Police Force clearly indicated it is section (1)(c) which is the provision they fundamentally use, and we have asked them whether they would have a view about the repealing of section (1)(b), and they are going to get back to us. I guess I would give you the same opportunity. If you have a view on the habitually consorting — which they saw as the most important one — perhaps you could repeal section (1)(b). They are going to get back to us, and if you could do the same we would appreciate it.

Sr Sgt MULLETT — In terms of section (1)(b), we would want that repealed on the basis that, for example, known drug traffickers who have a criminal history for drug trafficking — and I use an example of a certain cafe in Fitzroy Street, St Kilda, which has been known over the years to have, in terms of their custom, a substantial number of people visiting, some of whom have a significant criminal history for drug trafficking. So, again, with a properly resourced force that provision, in our view, should be retained. There are numerous other examples across the state. We could use other examples in Footscray. There are other types of places — card game facilities — where known or reputed thieves attend regularly. Such places still remain in metropolitan areas such as Richmond and St Kilda. Again, it is a significant preventative tool to stop these people from meeting in such places to not only potentially commit crimes but plan those crimes.

Mr CARLI — One of the reasons we gave in our discussion paper for repealing the consorting provision was the fact that it was under-utilised. The Victoria Police made the case that the issue of utilisation is not a fair measure of the importance of the consorting element. I just want to hear your view about that.

Sr Sgt MULLETT — We would support that view, because there is a certain process that you have to go through before you place a person before the judicial process, and there is a certain onus which we do not have great difficulty with. Our main argument is one of resourcing. The Victoria Police force, particularly for the last four or five years, has been a very reactive service. There is the proactive element to policing. With a properly resourced force — and we are heading in the right direction as far as that is concerned; to the credit of this government they are replenishing police resources — our members can return to the proactive element of policing. Consorting is an excellent way of proactively policing and ensuring that people with a particular criminal history are not meeting in regular places on a regular basis to plan or manage their future crimes.

Mr CARLI — We have had a number of submissions that basically set out that the consorting provision is predicated on guilt by association, and therefore at the very least it is archaic and should be repealed. What is your view about that in terms of policing on the ground?

Sr Sgt MULLETT — Again, it is about community safety and ensuring community security. The points of proof are quite onerous. One known criminal has to have knowledge that the person he is accompanying at any given time is in fact a known criminal. So that is one of a number of elements of what is a very accountable process. At the end of the day our view is that it is about protecting the community.

Mr CARLI — On begging, it has been put to us that the provision could be retained by simply making a distinction between aggressive begging and just begging. What is your view about that? I am talking about aggressive begging in the sense that someone demands money.

Sr Sgt MULLETT — It is a difficult offence to address because in a lot of respects it is a social welfare issue as much as being an offence in legislation at the moment. Certainly we would like to see it retained and retained with our members. We see it as a core function of policing. It should not be passed on to any other authorities, such as councils, but we tend to agree with you, Mr Carli, on aggressive begging with a power of arrest. You have to feel sorry for the majority of these people who find themselves in unfortunate homeless circumstances where it is more a social welfare issue.

With the Commonwealth Games not that far away, we should be thinking proactively. It was a major problem during the Los Angeles Olympic Games. Victoria naturally will want to see itself as a showpiece from an international perspective. If you have a significant amount of beggars in and around the central business district, in particular, the necessary authority should be there from a preventative point of view as well as ensuring that the necessary measures are taken from a social welfare perspective.

Mr CARLI — The other issue I was interested in is loitering with intent, and again you have argued that it should be retained and also broadened. Can you elaborate on why it should be broadened to apply to any indictable offence and also make any comments you have about whether it should be extended to the issue of drug traffickers and drug dealers?

Sr Sgt MULLETT — With any indictable offence that would naturally occur, and it follows that drug trafficking is an indictable offence.

Mr CARLI — Do you intend to target drug traffickers in particular through loitering?

Sr Sgt MULLETT — There is specific legislation in the Drugs, Poisons and Controlled Substances Act that in some way caters for that, but if you have a general provision it does again give police that necessary legislative authority hopefully to stop drug trafficking before it actually occurs. Again, it is a preventative provision that members can use in a properly resourced force where you can apprehend offenders or suspects way before the commission of the actual offence.

Dr BLUMENTHAL — I have a couple of questions. With wilful and obscene exposure you were recommending that it be altered by deleting ‘in a public place or in view thereof’ and prohibiting that in private as well. At the moment if you are in your own space but people in the public can see you, it is an offence. How would it impact on citizens’ rights to privacy if that were to apply in private? At an extreme level that would mean you would have to be dressed in the shower, wouldn’t it?

Sr Sgt MULLETT — There is the common-law provision, which is quite cumbersome, and ultimately as far as a common-law offence is concerned that offence would have to go to trial. It is again all about prevention. If our members, and they do, get called to a suspicious set of circumstances — a female may be, not about to be raped because quite obviously there is an offence of attempted rape, but at some point prior to that — and a suspect or offender is exposing himself, that gives our members the power of arrest to act immediately, arrest that person and prevent the substantial crime of rape in that example.

Dr BLUMENTHAL — So they might be in a hotel or something of that nature?

Sr Sgt MULLETT — Yes.

Insp. McKENZIE — With that particular offence it has traditionally been the case that if someone is in a private place but can be seen from a public place, that is where, as Paul has mentioned, we have had to rely on the common law. It is our view that we should not have to rely on common law in those circumstances. That is our reasoning for extending it, so that the person who is suspected of committing the offence can be in any place provided that there is someone in a public place who is offended by that behaviour.

The CHAIRMAN — One of the concerns we had was the possession of housebreaking implements. We saw that the way the current provisions were drawn was very broad, in the sense that somebody walking down the street with a screwdriver could be in trouble. It goes to the general principle that you were espousing in terms of disguises as well as the power of the police to apprehend somebody for carrying a screwdriver as distinct from the person’s civil liberty to carry a screwdriver for whatever reason. It is the same with a disguise. I think the committee would accept your general premise that there certainly is a need today to be very much more aware and preventative in the approach to crime. But how do you see that balancing against civil liberties, which is the other major group that will be arguing in support of the repeal of these provisions?

Sr Sgt MULLETT — If you have a lawful excuse, you have nothing to worry about. If you are walking down the street with a bag, a balaclava, a screwdriver, various other implements of housebreaking and a sawn-off shotgun, then you’ve got problems. Again if you combine that with the professional approach of our members and the accountabilities placed on police — even if a person’s explanation that they did have a lawful excuse was not accepted, they have recourse to the ethical standards department and the Deputy Ombudsman (Police Complaints). If you are a plumber walking down the street with a boxload of tools, quite obviously you have that lawful excuse. Our members have the training and the skills we would normally suggest that allow them to judge whether that person has that lawful excuse or not. Of course then there is the judicial process of proving those matters before the courts. A person can put all forms of defences before the courts, so the legislation, it goes without saying, has accountability before the courts as well.

The CHAIRMAN — I accept that, but because we have these other people making submissions on this when they raise their issues our response is to say, ‘We believe the police training is sufficient to ensure that there will be no instances, or very minor instances, of these provisions being misused’.

Sr Sgt MULLETT — It goes beyond police training and skills. It also goes to lawful excuse and the other processes of the ethical standards department, the deputy ombudsman and then ultimately the courts. Our members are as accountable to the courts as anyone. Then you have to balance that in terms of overall community safety.

The CHAIRMAN — I think we have covered most of the issues that we want to. There is a call I simply must take, so I will ask Carlo Carli to take over.

Mr CARLI — It was very helpful. Obviously we have a wide number of submissions and views. It was very useful to get your views — along with those of the police they are a view from the beat. Thank you very much for your contribution and for the submission.

Sr Sgt MULLETT — Thanks for allowing us the time to come here today.

Witnesses withdrew.

Public Interest Law Clearing House

Mr P. Lynch, Coordinator, Homeless Persons Legal Clinic

The CHAIRMAN — I would like welcome our next witness, Mr Philip Lynch, and congratulate whoever was responsible for the very comprehensive submission his organisation has put in to the committee.

Mr LYNCH  — The organisation I represent is the homeless persons legal clinic, which is a project of the Public Interest Law Clearing House.

The CHAIRMAN — Would you like to make some preliminary statements?

Mr LYNCH — I would appreciate the opportunity to speak for, say, 10 minutes or so, and speak to the paper ‘Decriminalising disadvantage’, which is the submission of the clinic. As you will be aware, the submission examines the impact of three principal provisions, being those that relate to begging, consorting and loitering, looking specifically at the impact of those provisions on the homeless and those at risk of homelessness. It argues that the criminalisation of begging, consorting and loitering tends towards the perpetuation of marginalisation and of underlying causes of those behaviours. It further argues that the criminalisation of these conducts is inconsistent with very fundamental human rights principles. This is something that is being increasingly recognised in Europe, Canada and the United States of America.

Our submission concludes that the act disproportionately and very discriminately impacts upon homeless people, and it makes certain recommendations in relation to addressing underlying causes and as to responses that are more appropriate than the current criminalisation of the conduct.

I would like to speak briefly to each of the three offences in turn. First, begging, which is an offence under section 6(1)(d) of the act. There is quite extensive research being produced in Australia, Canada, the United States of America and Europe which demonstrates clearly that begging is most often a manifestation of chronic poverty and need. The notion that people who beg somehow misrepresent their circumstances as some kind of scam is quite a myth. Certainly clients of our service who beg report that it is very time consuming, degrading, demeaning and frustrating, and it is engaged in for income supplementation purposes as a last resort activity for the purpose of meeting basic subsistence needs like accommodation and health and supporting addictions. Our experience, and overseas research also, demonstrates that for many people begging is a more acceptable last-resort activity than other criminal conduct like theft, drug dealing and prostitution.

It is the clinic’s view that anti-begging laws infringe fundamental human rights. They do this in the following ways: they infringe the right to freedom of expression and political communication, in that in many cases begging is an expression of the way society treats its most impoverished and disadvantaged; they also infringe the right to life, liberty and security of person in that they deny some people basic economic rights necessary to survival; and, finally, they infringe the right to equality before the law and freedom from discrimination in that these offences really disproportionately impact upon the very people who need to beg.

Anti-begging provisions in the United States and Canada have been struck down on the basis of their incompatibility with these fundamental human rights. It is the clinic’s clear view that the current laws in Victoria and Australia more generally are susceptible to similar challenge. Increasingly there is an international trend towards the decriminalisation of begging wholesale, or in some instances the criminalisation of aggressive begging only.

The research conducted by Hanover Welfare Services over about a four-month period found no instances of aggressive begging, so our view is that it is not a common occurrence. Moreover, our view is that conduct that would constitute aggressive begging is currently, as I think the committee articulated in its discussion paper, sufficiently proscribed by division 1 of the Crimes Act, which renders unlawful certain crimes against the person.

The clinic’s view is that begging should be decriminalised. The public nuisance or affront caused by responding to begging requests certainly does not justify the criminalisation of the conduct, particularly having regard to the underlying causes of begging and the ramifications of penalties on those people who beg. So we certainly think section 6(1)(d) should be repealed.

I should like to touch briefly on soliciting alms by cheating, which is a separate offence under subsections 7(1)(a) and (b) of the act. As I have already mentioned, the research in Australia and overseas demonstrates quite conclusively that the notion that people who beg misrepresent their circumstances or use begging as some sort of primary income is a myth. I think subsections 7(1)(a) and (b) of the act perpetuate this myth, and they do this by associating begging and cheating.

The clinic certainly acknowledges that there is a public interest in protecting people from misleading and deceptive conduct and ensuring that philanthropic individuals and organisations do not misdirect their resources as a result of misrepresentations, but our view is that this kind of conduct is already sufficiently proscribed by the Crimes Act and also the Fundraising Appeals Act, and neither of those acts succumbs to the danger of linking cheating and begging.

Finally on begging, our view is that begging — and I think the Police Association also articulated this — should be conceived of as a societal and economic issue rather than as a criminal issue, and our responses should really seek to address underlying causes of begging rather than to criminalise people for manifestations of those underlying causes. Our view is that subsections 6(1)(d), 7(1)(a) and (b) should be repealed and, although it is beyond the current scope of this inquiry, the other provisions which currently proscribe begging which are included in the regulations to the Transport Act and also various local laws should be repealed.

Turning to consorting, it is an offence under subsections 6(1)(a), (b) and (c) of the act to occupy a place frequented by thieves, to be found in the company of reputed thieves or to habitually consort with reputed thieves. Judicially the term ‘consorts’ has been held to mean ‘associates’ or ‘keeps company’. The provisions therefore proscribe association with a certain class of persons, and they are predicated on the notion that this class of persons is undesirable or discreditable and that they may tempt otherwise innocent people to criminal activity. It is not necessary that the association be for an unlawful or criminal purpose. The consorting provisions of the act, in our view, are incompatible with a number of fundamental human rights principles — namely, the right to be free from guilt by association, the right to be presumed innocent until proven guilty and also the right to freedom of association.

Looking first at guilt by association, the clinic certainly agrees with the committee that the provisions are predicated on a notion that is quite at odds with contemporary standards of justice. In particular the clinic submits that consorting offences which deem it to be a crime to be in the company of or consorting with reputed thieves have a disproportionate impact upon homeless people. The reason is this: many homeless people suffer from drug or alcohol addictions; many have psychological illnesses or mental disorders and are preyed upon; some resort or have resorted to petty crime to satisfy basic subsistence needs; and some have spent time in prison and are struggling to reconnect with or reintegrate into the community. Each of these classes of person is substantially more likely to associate with reputed thieves than those who are not in such a position of disadvantage.

It is a defence under paragraphs (b) and (c) of subsection 6(1) of the act to give to the satisfaction of the court a good account of being in the company of or consorting with reputed thieves. In our view this offends the notion of the right to a presumption of innocence and the associated burden of proving guilt. First of all, the defendant bears the onus of giving the good account. Secondly, a good account requires more than a mere reason for the association, even if the reason given for the association is innocent or lawful.

Turning now to the issue of freedom of association, the clinic considers the consorting provisions of the act seriously infringe this right. They are intended to inhibit people from associating with people of a designated class, being reputed thieves. This not only offends the right to freedom of association but may also ostracise and isolate people in that designated class, thereby cutting them off from companionship, support and in many cases the links which would enable them to lift themselves out of the class.

The extent to which the provisions offend the right to freedom of association is exacerbated by the extent to which the provisions vest what the clinic would consider very broad arbitrary and discretionary powers in law enforcement officers. The provisions allow a law enforcement officer to make a determination as to a person’s reputation and on the basis of that determination to charge associates of the person with a criminal offence. That notion is very vague and potentially susceptible to abuse. The clinic is clearly of the view that subsections 6(1)(a), (b) and (c), being the consorting provisions of the act, should be repealed.

Loitering is an offence under section 7(1)(f) of the act. It provides that it is an offence for designated classes of persons to loiter with intent to commit an indictable offence in places including a public space. For the purpose of sustaining a charge under section 7(1)(f) it is sufficient pursuant to section 7(2) of the act for the Crown to establish from the circumstances of the case, and importantly from the known character of the accused, the requisite intention to commit the indictable offence.

It is also an offence under section 7(1)(i) of the act to be found without lawful excuse in certain places including buildings, structures, gardens or enclosures. I would like to discuss these provisions in the context of human rights principles, in particular the principle of the right to be presumed innocent until proven guilty, the right to freedom from discrimination and also the right to freedom of movement.

Turning first to the right to a presumption of innocence, section 7(2) of the act enables the Crown to establish the requisite intention to commit an indictable offence on the basis of the known character of the accused. The provision targets three designated classes of persons, being suspected persons, reputed thieves and cheats. In our view these provisions are quite vague and arbitrary and potentially liable to abuse. Again they afford a very wide discretion to law enforcement officers.

The clinic importantly considers that the capacity to establish guilt by reference to past conduct is a transgression of the principle of the presumption of innocence. The clinic considers that in many instances this provision is likely to render it difficult for people to move on from past conduct, and the association of past conduct with present guilt may make it difficult for people who are from marginalised or disadvantaged backgrounds to start, I guess, with a clean slate.

Section 7(1)(i) of the act also offends the burden of proof principle, and it does this by placing the onus on a person using spaces such as buildings, structures, gardens or enclosures to provide a lawful excuse for the use of those places. The clinic is concerned that in many instances the necessity to inhabit certain of these places may not be regarded by law enforcement officers as a lawful excuse. An instance may be a person squatting in an abandoned warehouse.

I would like now to touch briefly on freedom from discrimination and the incompatibility of the loitering provisions with that principle. The clinic is concerned that subsections 7(1)(f) and (i) of the act infringe the right to freedom from discrimination on the basis that they discriminate amongst people on the basis of those people’s social origin. Many homeless people rely on public space for basic needs such as accommodation and a sense of community. The profile of such people, many of whom, as I have already mentioned, suffer from addictions, mental illnesses and the like, are such that they are more likely than the broader population to be reliant upon public spaces and they are more likely than the broader population to be suspected by law enforcement officers. Requiring such persons to justify their occupancy or use of public space imposes, in practice, a condition on the use of that space that is not imposed on the broader population.

The clinic also considers that the loitering provisions are inconsistent with the fundamental right to freedom of movement. They do this by requiring people to justify their use of public space, in many instances notwithstanding the reliance of homeless people upon such space for basic needs such as accommodation. The clinic considers that many people who inhabit squats, warehouses, abandoned buildings and even parks may not be considered by law enforcement officers to be in such places with lawful excuse, notwithstanding the necessity of occupying those places having regard to acute shortages of affordable accommodation, particularly in inner-city areas. As the committee will see from the written submission, the necessity to loiter in these circumstances has been recognised and upheld in both the United States and Canada.

The clinic submits that the conduct sought to be proscribed by the loitering provisions under the act is already sufficiently proscribed by existing criminal laws, such as drug offence laws, the law of attempt, the law of trespass and other indictable offence laws. Unlike the general loitering provisions, they are not vague, they are not susceptible to the same degree to abuse or misuse, and they are certainly not susceptible to being used as a street-sweeping mechanism. It concerned me somewhat to hear the reference to the Commonwealth Games in the earlier submission. Having regard to this the clinic is of the clear view that paragraphs (f) and (i) of section 7(1) and the associated section 7(2) of the act should be repealed.

I would like to talk briefly about penalties under the act. As the committee will be aware, the act prescribes maximum penalties for offences which range from imprisonment in some instances through to fines. In addition to these penalties the court obviously retains a discretion under the Sentencing Act to impose other conditions such as community-based orders. In the clinic’s view the imposition of a fine, incarceration or a community-based order is unlikely to address the underlying causes of the offence which is sought to be penalised, whether it is begging, consorting or loitering. In fact, in many instances, these penalties may exacerbate underlying causes. Incarceration, for example, may further entrench a sense of isolation and alienation.

Community-based orders, breach of which may render someone punishable by imprisonment, impose very numerous onerous conditions upon homeless people with which they may not be able to comply. Fines also obviously very disproportionately impact on homeless people, many of whom live at or near the poverty line. In these circumstances payment of a fine or even the imposition of a fine can occasion very severe financial, social and psychological hardship, which in many cases can endure beyond the issue of homelessness.

The clinic has mentioned in its submission the case of Kylie, a client of the clinic, who was a heroin addict. Over a period of about three or four months Kylie received over $4000 worth of fines for begging. She has now overcome her addiction, addressed her addiction, and she has a stable partner and a six-month old baby, but she still has $4000 worth of fines hanging over her head, which is a very significant impediment to her moving on and specifically to obtaining stable accommodation. The clinic has made numerous recommendations about addressing underlying causes, which I think it is most appropriate for the committee to consider in the written submission, but effectively those responses seek to address underlying causes, eliminate inequality and promote human dignity.