Scrutiny of Acts and Regulations Committee

Review of Redundant and Unclear Legislation
Review of the Vagrancy Act 1966
Final Report, September 2002

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Inquiry

The Scrutiny of Acts and Regulations Committee (“SARC”) has been requested to review the Vagrancy Act 1966 (Vic) (“the Vagrancy 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.

The Conduct of the Inquiry

The Committee undertook research into the history and purpose of the Vagrancy Act, and reviewed the earlier work done by the Victorian Law Reform Commission in 1992. Following a review of this research, the Committee resolved to publish a Discussion Paper outlining the Committee’s general approach, reasoning, and preliminary recommendations with respect to reform of the Vagrancy Act. The purpose of this Discussion Paper was to seek input from the public and interested organisations on the Committee’s preliminary recommendations in order to assist the Committee in reaching its final recommendations. To this end, the Discussion Paper contained a table explaining the Committee’s proposals concerning the Vagrancy Act on a clause-by-clause basis.

The Discussion Paper was published in April 2002, and was sent directly to approximately 180 persons and organisations that the Committee considered might have an interest in its recommendations. In late April 2002 the Committee placed newspaper advertisements in The Age, The Herald Sun, and primary Victorian regional newspapers, advising of the publication of the Discussion Paper and public hearings, and seeking submissions on the inquiry from interested organisations and members of the public.

Twenty-eight written submissions were received commenting on the proposals contained in the Discussion Paper. Many of these submissions have been extremely helpful to the Committee in its deliberations on the Vagrancy Act, and the Committee thanks all those who made submissions for their contribution. Some written submissions also contained recommendations for legislative and social reform that were beyond the scope of this Committee’s Terms of Reference. A list of written submissions received is contained in Appendix 3.

In addition to receiving written submissions, the Committee also conducted informal consultations with a number of interested parties.

On 31 May 2002 the Committee held public hearings on the Vagrancy Act. Six organisations appeared as witnesses at these public hearings. A list of those organisations is contained in Appendix 4. Once again, the Committee found the evidence presented to it at these public hearings to be extremely useful, and thanks the witnesses for their valuable input.

Background to the Vagrancy 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 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 commenced operation on 21 December 1966. The Vagrancy Act repealed Part III of the Police Offences Act 1958 (Vic), which until then had regulated acts of vagrancy in Victoria.

While the Vagrancy Act no longer refers to idle and disorderly persons, rogues and vagabonds and incorrigible rogues, it nevertheless 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 Vagrancy 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, 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 that are very similar to, and could arguably act as a sufficient substitute for, certain offences under the Vagrancy Act.

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.[6]

The Committee’s Approach

When considering the submissions and evidence received in response to the Committee’s Discussion Paper and its final recommendations in relation to the Vagrancy Act, the Committee was guided by the four general principles noted in the Discussion Paper, and which are outlined again below. This approach was commended in several submissions.

i. Where applicable, subject-specific legislation should operate

A number of offences presently contained in the Vagrancy Act 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,[7] and are a more appropriate location for such offences than s.8(a) of the Vagrancy Act 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.

ii. Certain offences may no longer be desirable in a modern society

Many of the offences created by the Vagrancy Act 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 relevance of a provision. However, at the same time, the Committee recognises that other factors must also be considered in making such decisions.

iii. Procedural provisions follow substantive provisions.

It follows that if the substantive offences under the Vagrancy Act are to repealed, then the corresponding procedural provisions under the Act become redundant and therefore must also be repealed.

iv. One ‘general’ statute should deal with minor offences in Victoria

In its Final Report on its inquiry into the Summary Offences Act 1966, the Committee recognised the utility and importance of having a single piece of legislation that comprehensively dealt with most minor criminal offences in Victoria.[8] For this reason the Committee recommended that the Summary Offences Act 1966 be retained, though in a substantially reduced form.[9]

The Committee continues to support the above principle, and for this reason believes that the Vagrancy Act should be repealed, and that any useful provisions contained in that act be re-located to the Summary Offences Act 1966.

Repeal of the Vagrancy Act 1966

The Committee considers that the Vagrancy Act should be repealed in its entirety, and that any useful provisions in the Vagrancy Act that are not otherwise covered by subject specific legislation, or by generic, broader provisions in the Crimes Act 1958, should be housed in the Summary Offences Act 1966 and remain minor offences.

For example, the Committee recommends in this Report that the offence of wilful and obscene exposure, which is presently proscribed by s.7(1)(c) of the Vagrancy Act and for which the fourth largest number of charges under the Vagrancy Act were made in 1999/2000[10] , should be relocated to the Summary Offences Act 1966.

There was a general consensus from all who made submissions and provided evidence to the Committee that the Vagrancy Act should be repealed, subject to certain key provisions being re-enacted, possibly in amended form, in more appropriate legislation. In most cases it was suggested that useful provisions of the Vagrancy Act be re-enacted in the Summary Offences Act 1966.

Key findings of the Report

Consorting, begging and loitering provisions

Much of the evidence received by the Committee indicated a reasonably broad consensus in favour of most of the preliminary recommendations contained in its Discussion Paper. However, the following three provisions were contentious, and attracted a diverse range of responses from the public:

• Section 6(1)(a) – (c) Consorting offences

• Section 6(1)(d) – Begging offences

• Section 7(1)(f) – Loitering offences

A discussion of the issues relating to these provisions, and of the Committee’s reasons for its final recommendations in relation to each provision, appears below.

Section 6(1)(a) - (c) – Consorting offences

Section 6(1)(c) makes it an offence to “habitually consort with reputed thieves unless such person, on being thereto required by the court, gives to the satisfaction of the court a good account of his so consorting.” Section 6(1)(a) and (b) create similar offences based on consorting (see Table).

In its Discussion Paper, the Committee recommended that these provisions be repealed.

Arguments in favour of retention of consorting offences

Victoria Police and the Police Association strongly disagreed with the Committee’s preliminary recommendation that the consorting provisions be repealed. Their submissions argued in favour of retention of at least section 6(1)(c) (habitually consorting with reputed thieves) on the basis that this provision was useful as a ‘strategic’ tool for crime prevention.

Victoria Police also recommended the broadening of this offence to apply to drug trafficking, in addition to property offences.

Victoria Police also submitted that internal police procedures ensured that persons were only charged with consorting if formally reported on numerous occasions within a defined time-frame, and that while rare, such prosecutions were generally successful.

The Police Association argued in favour of retention of section 6(1)(c) only, and in contrast to the Victoria Police, suggested that the internal police procedure requiring multiple reports of consorting before charging an individual for this offence was unnecessary and was responsible for the under-utilisation of the provision.

Victoria Police and the Police Association gave evidence to the Committee that the consorting provisions are used by police to intervene in situations where known criminals are meeting in a public environment for the purpose of planning criminal activities.

The following are extracts from the evidence presented to the Committee by the Police Association in relation to consorting:

Snr Sgt MULLETT — … 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 the police I think likewise, that this is a good tool because it allows them to identify where criminals are meeting, to plan their operations, but if you arrest half of them for consorting, next time they do it in someone’s cellar or somewhere less obvious. I am wondering, in real terms, what does it achieve for you?

Snr 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.

The following is an extract of the evidence presented to the Committee by Victoria Police in relation to the consorting provision:

Acting Cmdr DITCHBURN — … we see it as a proactive and preventative tool. In order to take consorting bookings 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 community perception of safety to see police interacting with these sorts of people. But it is primarily about prevention and interaction.

Evidence was then given by the Police as to the type of persons who were generally dealt with under the consorting provisions:

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 things such as receiving stolen goods — and they are all rounders …

…

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.

Arguments in favour of repeal of consorting offences

The Criminal Bar Association, the Law Institute of Victoria, Victoria Legal Aid, and the Public Interest Law Clearing House all agreed strongly with the Committee’s recommendation to repeal the consorting provisions. The reasons for repeal given by these organisations include that the consorting provisions:

• Are predicated on the principle of guilt by association (in breach of community belief in the principle of freedom of association);

• Confer an undesirably wide power to charge individuals in the absence of a substantive offence;

• Apply a reverse onus of proof in breach of modern legislative practice and the right to remain silent;

• May require an inappropriate allocation of police resources to enforce;

• Very rarely forms the basis of a charge;

• May have a negative impact on police/community relations;

• May unfairly discriminate against certain already marginalised individuals, in that the provisions are most likely to be used against young persons and petty criminals that are forced to congregate in pubic spaces where they may be observed to be ‘consorting’; and

• Are based on spurious logic that is generally at odds with contemporary principles of jurisprudence and criminal justice.[11]

In contrast to the evidence regarding use of consorting provisions given by Victoria Police and the Police Association, following is an extract of the evidence in relation to consorting presented to the Committee by Victoria Legal Aid:

Mr STOJCEVSKI — … On 13 May 2002 a police prosecution under subsection 6(1)(c) of the Vagrancy Act, which is a consorting provision, commenced in the Bendigo Magistrates Court. The defendant was 17 years and 3 months old at the commencement of the four month period of the alleged consorting, which finished on 2 June 2001. The charge was laid on 4 July 2001 and the first mention heard was on 10 August 2001… there was a year between the actual charge and the court hearing.

At the conclusion of the three day case which involved the calling of some 10 police officers, the defendant was found guilty of the one charge of consorting … and fined $600, with $35 in court costs.

Further evidence was then provided as to the types of person against whom the consorting provisions appeared to be used:

Mr STOJCEVSKI — It seems there has been a concerted effort by police to enforce the consorting provisions of the Vagrancy Act in Bendigo by ‘booking’ young people for consorting over the past 12 to 18 months. One clear target group is the young so-called ‘undesirables’ in the local mall and CBD areas who, so it is said, hang around together doing nothing but cause trouble and bring the area into disrepute.

It seems unlikely to the Committee that the consorting provisions would have great utility as a measure to prevent persons with extensive criminal records from meeting to plan further crimes, in part because such meetings must be ‘habitual’ in nature and documented by police on numerous occasions to constitute an actionable offence.

In addition, Police evidence suggested that the consorting provisions were generally used to respond to consorting in public, and it appears likely to the Committee that groups of persons planning criminal activities could avoid being observed consorting by simply choosing to meet in private.

The Committee is concerned that the consorting provisions may be used to put pressure on individuals and groups which the police want to ‘move along’, rather than as a tool for preventing the planning of serious crimes.

After considering the submissions of all parties on this matter, the Committee is persuaded that while the consorting offences may have some limited utility in crime prevention, this benefit is outweighed by the numerous problems with these provisions noted above.

The Committee also notes that the police have access to a broad range of tools to deter or prevent criminal activity other than the offence of consorting. For example, in its evidence Victoria Police said that:

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... It is those types of street offences.

In such circumstances, the Committee believes that the offence of ‘loitering with intent to commit an indictable offence’ (as amended) may form a more appropriate basis for police to take action against groups which police suspect are likely to engage in criminal conduct.

Accordingly, the Committee reiterates in this Final Report its recommendation for repeal of sections 6(1)(a) - (c).

Section 6(1)(d) – Begging offences

Section 6(1)(d) relevantly makes it an offence for a person to ‘beg of gather alms’.

In its Discussion Paper, the Committee made a preliminary recommendation in favour of repeal of this provision, but called for submissions on this recommendation in particular. A large number of submissions were received on this issue, many of which were of an extremely high standard.

Many submissions received by the Committee were opposed to the decriminalisation of begging, largely on the basis that begging continues to be a serious problem in many communities, and that local councils are not equipped to deal with this problem.

Those agreeing with the Committee’s preliminary recommendation in favour of the decriminalisation of begging include Mildura Prosecutions Unit, Hanover Welfare Services, the Criminal Bar Association, West Heidelberg Legal Centre, the Law Institute of Victoria and the Public Interest Law Clearing House. The reasons given include that:

• Begging is a complex social and economic problem, and that the criminal law is not the appropriate means to deal with it;

• Begging is usually carried out by those in chronic poverty, and imposing a fine on those in a desperate financial position is likely to exacerbate their poverty and may lead them toward committing serious crime, such as shoplifting and prostitution;

• Begging is closely linked to long-term unemployment, homelessness, mental illness, and substance addictions;

• The real number of people begging is much less than media reports would indicate;

• The overwhelming majority of beggars are not aggressive toward members of the public;

• Improved welfare services and police training is the appropriate means to deal with begging;

• Begging (of a passive kind) has been decriminalised in many overseas common law jurisdictions.

Evidence was submitted by the Public Interest Law Clearing House (PILCH) and Hanover Welfare Services of a study conducted by Michael Horn and Michelle Cooke (of Hanover) which found that of the persons observed to be engaged in begging behaviours in Melbourne’s CBD over a four month period in 2000:

• 93 per cent were long term unemployed

• 71 per cent were sleeping rough or in squats and a further 28 per cent were living in crisis accommodation or with family or friends;

• 43 per cent were long term homeless;

• 71 per cent suffered from substance addictions;

• 93 per cent were receiving social security payments. However, 29 per cent of persons had payments reduced or terminated as a result of Centrelink ‘breaches’.

  The main reasons given for engaging in begging behaviours included:

• The inadequacy of social security payments having regard to the costs of housing, clothing, food and medical treatment;

• Psychiatric disabilities and disorders; and

• Heroin, alcohol and gambling addictions.[12]

It was also found that:

43 per cent of persons who beg adopt ‘passive’ begging techniques (that is, sit or stand in one spot with a sign alerting passers-by that they need money) while 57 percent adopt ‘active’ begging techniques (that is, follow passers-by and ask for money)

In conclusion, PILCH submitted that “a complex relationship exists between poverty, begging, drug use, psychiatric and physical disability and homelessness”, and noted that the research and its conclusions were supported by studies conducted in England and the United States.

The Chairman of the Subcommittee noted in evidence of his research conducted in England that with respect of relationship between begging and drugs:

Estimates by police in London are that the number of rough sleepers and beggars using class A drugs range from 75 per cent to 90 per cent. It is usually heroin, but significant numbers are using crack as a top up or a bit of a treat.

…

Some research was done on what sort of drugs they used. The majority had used cannabis — 86 per cent; amphetamines — 75 per cent; crack — 73 per cent; heroin — 73 per cent; cocaine — 67 per cent; LSD and other hallucinogenic drugs — 65 per cent; and nearly half had used solvents.

Regarding the relationship between begging and crime, the Chairman gave the following evidence of his research in England:

The Westminster police gave a quite interesting statistic. In the UK — as is the case here, no doubt — all the police forces have to put out a sort of performance plan which states that they are going to reduce house thefts by X per cent, car thefts by Y per cent and so on... The Metropolitan Police said that when they came in very hard on the beggars in the area … without any work at all and as if by magic their stats on car thefts, for instance, where they were looking for a 5 per cent reduction, were reduced by 60 per cent, and they got a huge reduction in low level larceny, simply because these people were off the streets. When you have been begging and you need a little bit of extra money for your hit of cocaine or your rough sleeping, you break a car window and steal something. So they said that cleaning these people off the streets has had a quite dramatic effect on all their other crime stats.

By way of reinforcing that, I spoke to the Oxford council and the police there... In the six months from July to December 2001 they had 347 arrests for rough sleeping and begging. Of those arrested, 36 per cent were found to be wanted for other offences — murder, fraud, drugs possession, theft, indecent assault — and 26 per cent were found to be come under what they call their Mental Health Act requirements, which deal with people who have mental problems.

The Committee notes that the United Kingdom Vagrancy Act 1824, as distinct from the Victorian Act, deals with a broader range of conduct related to homelessness, including what is now generally described as ‘sleeping rough’. Evidence presented to this Committee showed clearly that a relationship exists between begging, homelessness and drug addiction.

Conclusions

The Committee notes that there has been relatively little research conducted into the issue of begging in Victoria,[13] and believes that further research is necessary before a just and comprehensive solution to the problem of begging can be formulated that deals with the complex relationship between begging and homelessness, drug and alcohol dependence, long term unemployment, gambling, crime, and psychiatric and physical disability.

Although the Committee is cognisant of the arguments in favour of the decriminalisation of begging, the complexity of the issues involved and the lack of research conducted in relation to begging in Victoria have led the Committee to conclude that it does not have sufficient evidence before it to make a properly informed recommendation in relation to the decriminalisation of begging.

Accordingly, the Committee recommends:

1. That a reference for a comprehensive investigation into the causes of begging, and the linkages between begging, homelessness, poverty, drugs and crime, be given to the appropriate parliamentary committee.

2. That pending the outcome of such investigations, the offence of begging (as it relates to adults) be re-enacted in the Summary Offences Act 1966 (Vic).

The Committee also notes that it considered an amended offence of begging that would criminalise only what would be defined in legislation as ‘aggressive’ begging. In this way, ‘passive’ begging would no longer be a criminal offence, but the public would continue to be protected from harassment or threatening behaviour by beggars.

Although the Committee saw some merit in this proposal, the lack of research noted above led the Committee to conclude that it did not have sufficient evidence before it to make such a recommendation for statutory reform.

Section 7(1)(f) – Loitering offences

Section 7(1)(f) makes it an offence for “a suspected person or a known or reputed thief or cheat” to “loiter in or about or frequent… a public place… with intent to commit an indictable offence.”

The Committee recommended in its Discussion Paper that the offence of loitering be retained in the Summary Offences Act 1966, and that this new loitering provision should define the offence to require, in addition to loitering, the performance of an act with the intent to commit, and in furtherance of, an indictable offence.

The Committee has received a wide range of responses to this recommendation. While a number of organisations agreed with the Committee’s proposal, others suggested that amending the provision to require the prosecution to show some overt act in addition to loitering would blur the line between this offence and attempt offences.

Victoria Police made no comment in relation to the requiring of an overt act in addition to loitering, and the Police Association submitted that:

There is case law to suggest that in addition to loitering, the performance of an act with intent to commit and in furtherance of an indictable offence is already a requirement before charges can be made under this section.

The Committee acknowledges the potential difficulty of re-drafting section 7(1)(f) in a manner that does not create a confusing degree of overlap with the law of attempt. However, the Committee is nevertheless convinced that in its present form the loitering provision may be open to misuse. Evidence was presented to the Committee that in its present form, the loitering provision may be used disproportionately against the homeless because of their need to use public space, and that this application is incompatible with certain fundamental human rights, such as the presumption of innocence.

The Committee also notes that it was submitted by some organisations that the loitering offence should be broadened to apply explicitly to drug trafficking offences. The Committee strongly supports this position.

After much deliberation, the Committee recommends that:

1. Section 7(1)(f) should be re-enacted in the Summary Offences Act 1966;

2. The new loitering with intent provision should be simplified with respect to defining the areas in which the offence may occur;

3. The new offence of loitering with intent should require, in addition to loitering, the performance of an act with the intent to commit, and in furtherance of, an indictable offence;

4. The new offence should refer explicitly to loitering in relation to drug trafficking offences.

The Committee also acknowledges that section 9 of the Vagrancy Act 1966 will need to be retained and re-enacted if the loitering offence is transferred to the Summary Offences Act 1966, as this procedural provision is necessary to proving the offence.

Structure of this Report

TABLE OF RECOMMENDATIONS

In preparing this Report, 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 this Report 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” (in some cases, in amended form). 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; the provision is based on principles at odds with contemporary jurisprudence; and the provision is procedural in nature and thus unnecessary if the substantive provisions under the Act are to be repealed.

There are a number of substantive provisions that the Committee recommends should be retained through re-enactment, possibly in amended form, in another Act. These are:

• Section 6(1)(d) – Begging

• Section 6(1)(f) – Has without lawful excuse any article of disguise

• Section 7(1)(c) – Wilful obscene exposure

• Section 7(1)(f) – Loitering with intent to commit an indictable offence

• Section 7(1)(g) – In custody or possession of implements of housebreaking

• Section 7(1)(h) – Disguised or face blackened with unlawful intent

• Section 8(a) – Firearms offences (armed with criminal intent)

• Section 8(b) – Escape from lawful custody

In all cases except section 8(a), the Committee recommends re-enactment of the provision in the Summary Offences Act 1966 (Vic). In some cases the procedural provisions relevant to these offences will also need to be re-enacted.

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, 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 Final Report contains the following appendices:

1. Statistics from the Magistrates’ Court of Victoria detailing the number of charges for each particular provision of the Vagrancy Act 1966 in the period between 1/7/1999 and 30/6/2000.

2. Statistics from the Magistrates’ Court of Victoria detailing 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.

3. List of written submissions received.

4. List of witnesses appearing at the public hearings held on 31 May 2002.

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.

Scrutiny of Acts and Regulations Committee
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