Thursday, 20 November 2025

 The PRESIDENT (22:17): I have received a further message from the Legislative Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Confiscation Act 1997, the Control of Weapons Act 1990, the Crimes Act 1958, the Crimes (Assumed Identities) Act 2004, the Drugs, Poisons and Controlled Substances Act 1981, the Firearms Act 1996, the Interpretation of Legislation Act 1984, the Sex Offenders Registration Act 2004, the Summary Offences Act 1966, the Surveillance Devices Act 1999 and the Victoria Police Act 2013 and to make related amendments to other Acts and for other purposes.’

 Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (22:17): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Lizzie BLANDTHORN: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (22:18): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Justice Legislation Amendment (Police and Other Matters) Bill 2025 (the Bill).

Overview of the Bill

The Justice Legislation Amendment (Police and Other Matters) Bill 2025 includes a number of reforms to the Police and Attorney-General portfolios. The reforms broadly target four key objectives: addressing dangerous and radical conduct; improving community safety; enabling effective and efficient policing; and broader justice system reforms.

This Statement of Compatibility is in two parts. Part A discusses the majority of the Bill; Part B discusses reforms relating to addressing dangerous and radical conduct.

In respect of Part A, the Bill includes the following reforms:

1. Amendments to the Victoria Police Act 2013 (VPA) to: empower Victorian police officers to transport people in police custody, care or control into or through NSW and SA in certain circumstances; expand Protective Services Officers’ (PSO) duties to include hospital and crime scene guarding duties; provide the Chief Commissioner of Police (CCP) with discretion to determine the appropriate probation period for an appointee who was a former police officer with Victoria Police or a law enforcement agency in another jurisdiction; clarify the consequences of compliance or non-compliance with conditions of good behaviour in internal Victoria Police disciplinary proceedings; and to require the CCP to consult with the Minister for Police before issuing a code of conduct under section 61A of the VPA;

2. Amendments to the Control of Weapons Act 1990 (Control of Weapons Act) to further improve the designated area weapons search scheme;

3. Amendments to the Firearms Act 1996 (Firearms Act) to introduce new offences relating to a document that can be used to instruct a machine to manufacture a firearm;

4. Amendments to the Drugs, Poisons and Controlled Substances Act 1981 (DPCS Act) to provide Victoria Police with authority to destroy drugs and drug-related equipment without a court order;

5. Amendments to the Sex Offenders Registration Act 2004 (SORA) to clarify that the CCP can consult with victims on administrative actions under the SORA; to realign the jurisdiction for applications to suspend registrable offenders’ reporting obligations; and to make other improvements to the administration and operation of the SORA;

6. Amendment to the Confiscation Act 1997 to strengthen investigative and enforcement powers for recently enacted unexplained wealth powers;

7. Minor amendments to the Crimes (Assumed Identities) Act 2004 to clarify its operation;

8. Technical amendments to the Interpretation of Legislation Act 1984 (ILA), including addressing issues with the eligibility of non-citizens to hold public office;

9. Amendment to the Crimes Act 1958 (Crimes Act) to allow respondents to attend the hearing of compulsory procedure order applications by audio visual link;

10. Amendment to the DPCS Act and Firearms Act to empower the CCP to display a thing seized under a search warrant issued pursuant to those Acts; and

11. Amendments to the Surveillance Devices Act 1999 (SD Act) to promote flexibility and the timely making and determination of applications for surveillance device warrants and retrieval warrants.

In my opinion, the Justice Legislation Amendment (Police and Other Matters) Bill 2025, as introduced to the Legislative Council, may be partially incompatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement. In particular, the designated area scheme under the Control of Weapons Act has previously been considered to be partially incompatible with the right to protection of children and families (section 17). I accept that the amendments made to the scheme by this Bill maintain, if not exacerbate, this incompatibility, which was identified when the scheme was first introduced, and again when further amended in early 2025.

The remainder of the Bill engages various rights but, in my opinion, is compatible with the human rights protected under the Charter.

Overview of human rights issues

The parts of the Bill discussed in Part A of this Statement of Compatibility engage the following human rights under the Charter:

• The right to recognition and equality before the law (section 8)

• The right to freedom of movement (section 12)

• The right to privacy and reputation (section 13)

• The right to freedom of thought, conscience, religion and belief (section 14)

• The right to freedom of expression (section 15)

• Protection of families and children (section 17)

• Property rights (section 20)

• The right to liberty and security of the person (section 21)

• The right to a fair hearing (section 24)

• Rights in criminal proceedings (section 25)

Recognition and equality before the law (section 8)

Section 8(3) of the Charter relevantly provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act 2010 on the basis of an attribute protected by that Act.

Discrimination includes direct and indirect discrimination. Direct discrimination occurs if a person treats, or proposes to treat, a person with a protected attribute unfavourably because of that protected attribute. Indirect discrimination occurs if a person imposes, or proposes to impose, an unreasonable requirement, condition or practice that either has or is likely to have a disadvantageous effect on persons with a protected attribute.

These concepts are incorporated into section 8(3) of the Charter, whether or not the discrimination in question is unlawful under the separate legislative framework of the Equal Opportunity Act 2010.

Proposed amendments

Designated areas

The reforms relating to designated areas may engage the right to equality due to the potential for the reforms to have the effect of disadvantaging, or having a more burdensome impact on, certain cohorts with protected attributes. While this may constitute indirect discrimination, this will only limit the right if it is not reasonable in the circumstances. For the reasons set out below, I consider these reforms to be reasonable for public order and community safety purposes.

As the right to recognition and equality before the law is the first Charter right in this Statement that is engaged by the amendments to the Control of Weapons Act, I will first explain the operation of the designated area provisions in that Act and provide detail about the amendments to that Act that are contained in the Bill.

Existing sections 10C to 10L and Schedule 1 of the Control of Weapons Act operate to empower police to stop and search persons and vehicles in public places that are within areas that have been declared to be designated areas on the basis of a likelihood of weapons-related violence or disorder occurring in that area. Designated area search powers do not require police to have first formed a reasonable suspicion that the person to be searched is carrying a weapon, nor do police require a warrant to search a person for a weapon in a designated area.

Under section 10D, the CCP (or delegate, limited to an officer of or above the rank of Assistant Commissioner) may declare an area to be a planned designated area for up to 24 hours where there has already been more than one incident of weapons-related violence or disorder in the proposed area over the last 12 months and there is a likelihood that violence or disorder will recur. A longer duration for up to 6 months can be declared where there has already been more than one incident of weapons-related violence or disorder in the proposed area over the last 12 months and it is necessary to designate the area for searches to be conducted to prevent or deter the occurrence of violence or disorder. A final category of planned designated area is for an event in relation to which weapons-related violence or disorder has occurred previously or where the CCP has information that there is a likelihood that violence or disorder involving weapons will occur at the event. Planned declarations of designated areas for events operate during the event and during any time before and after the event that the CCP considers reasonable and may operate for more than one period, for example for each day of a multi-day event.

Under section 10E, the CCP (or delegate) may declare an area to be an unplanned designated area where the officer is satisfied that it is likely that violence or disorder involving weapons will occur in the area and that it is necessary to designate the area for the purposes of enabling the police force to exercise search powers to prevent or deter the occurrence of that violence or disorder.

Sections 10G to 10L of the Control of Weapons Act authorise the police and PSOs on duty in a designated place, to stop and search for weapons in public places that fall within a designated area, including persons and things in their possession or control (section 10G) and vehicles (section 10H). The police and PSOs are empowered to seize any item detected during the search that they reasonably suspect is a weapon (section 10J).

A police officer or PSO who detains a person or vehicle under section 10G or 10H of the Control of Weapons Act in order to conduct a search must, if requested by the person, inform them of their name, rank and place of duty and provide that information in writing, and, if not in uniform, produce their identification for inspection, inform the person that they intend to search the person or vehicle for weapons and are empowered to do so under the Control of Weapons Act and give the person a search notice unless one has been offered and the person refuses to take it.

A search notice provides the person to be subject to a search with the following information: that the person or vehicle is in a public place that is within a designated area, a declaration is in force under section 10D (planned designation) or 10E (unplanned designation) of the Control of Weapons Act, that police officers and PSOs on duty at a designated place are empowered to search the person and any thing in the possession or control of the person or the vehicle (if applicable) for weapons, and it is an offence for the person to obstruct or hinder a police officer or PSO in the exercise of these stop and search powers.

Schedule 1 to the Control of Weapons Act sets out detailed requirements that police and PSOs must comply with in conducting weapons searches. The search powers that may be exercised by police are graduated to ensure that initial searches may only be conducted by way of an electronic metal detection device. The initial electronic device search is a search of a person or thing by passing an electronic device over, or in close proximity to, the person’s outer clothing or thing. It is the least intrusive form of search designed to fulfil the objective of the scheme to address the likelihood of violence and disorder involving the use of weapons in a designated area.

Only after an electronic metal detection device search has been conducted and, as a result of that search, a police officer considers that a person may be concealing a weapon can the police officer conduct a pat down search, search of outer clothing and search of any thing in the person’s possession, such as a bag (clauses 4 and 5 to Schedule 1 to the Control of Weapons Act).

Clause 6 of Schedule 1 to the Control of Weapons Act sets out safeguards that police must, so far as reasonably practicable, comply with to preserve dignity during an outer search.

Strip searches are permitted under the search scheme but may only be conducted after an examination of things and outer search of the person has been conducted, the police officer reasonably suspects that the person has a weapon concealed on their person, and the police officer believes on reasonable grounds that it is necessary to conduct a strip search and the seriousness and urgency of the circumstances require the strip search to be carried out. Clauses 8 to 10 of Schedule 1 to the Control of Weapons Act set out detailed requirements that apply to the conduct of strip searches.

A police officer may request a person who is to be subject to a strip search under Schedule 1 to disclose their identity if that is unknown to the police officer (section 10K). It is an offence for a person to, without reasonable excuse, fail or refuse to comply with a request to disclose their identity, provide a false name or an address that is not the full and correct address.

Special rules apply to searches that are to be conducted on children and persons with impaired intellectual functioning to ensure that, as far as possible, outer searches and strip searches are conducted in the presence of a parent, guardian or independent person, or in the case of unplanned designated areas, or other person who may be a police officer.

The designated area provisions of the Control of Weapons Act also empower police and PSOs to seize and detain any item detected during a search that is reasonably suspected to be a weapon (section 10J). If, after examining the item, the police officer or PSO determines that the item is not a weapon, the item must be returned to the person without delay.

Section 10KA provides for other powers that may be exercised in relation to a designated area. These powers, which were inserted into the Control of Weapons Act by the Crimes Legislation Amendment (Public Order) Act 2017, permit a police officer to direct a person wearing a face covering to leave a designated area if the officer reasonably believes the person is wearing the face covering to conceal their identity or to protect themselves from the effects of crowd controlling substances (for example, oleoresin capsicum spray) and the person refuses to remove the face covering when requested to do so. A police officer may also direct a person to leave the designated area if they reasonably believe the person intends to engage in conduct that would constitute an affray or violent disorder offence under sections 195H or 195I of the Crimes Act 1958.

Earlier this year, amendments to the designated area provisions of the Control of Weapons Act, which were included in the Terrorism (Community Protection) and Control of Weapons Amendment Act 2025, came into force to significantly improve the operation of this longstanding scheme. This included extending the maximum duration of designated area declarations for 12 to 24 hours, inserting a new ground for declarations to be in force for up to 6 months, enabling event declarations to include additional time before and after the event, and reducing the minimum time that must elapse from the end of a planned designation before another declaration can take effect in the same area, from 10 days to 12 hours thereby permitting more frequent designations of areas to be declared.

This Bill will make three more changes to the designated area scheme to further improve its operation.

The first amendment will allow a planned designated area for an event to include a ‘key transit point’, which is defined to mean a bus stop, railway premises or tram stop that is in the public transport system, if the key transit point is in the vicinity of the event and persons attending the event are likely to access it for the purpose of travelling directly to or from the event. A notice of the declaration that is published in the Government Gazette and on the Victoria Police website must include a map of the designated area that sets out any key transit points that are included in the declaration.

This amendment will extend the geographical scope of designated areas for events, where the CCP considers it appropriate within the grounds for making the declaration, to include those public transport points to enable police and PSOs to search for weapons that may be brought into the event or taken out from it. I believe that this amendment will add to the overall safety of events by enabling the detection of weapons before people enter the event as well as reducing weapons carriage outside the event venue after the event’s conclusion. For example, Victoria Police has identified instances where weapons have been secreted in locations around platforms and other parts of railway stations to be picked up and taken to events or collected afterwards¬ – in circumstances where such weapons have fallen outside the scope of a declared designated area. In order for the scheme’s overall purpose of preventing weapon-related disorder or violence to be realised, the scheme must be able to apply to, and effectively target, such practices.

The second amendment will allow search notices that must be given to persons to be searched in a designated area to be given in an electronic form in accordance with the Electronic Transactions (Victoria) Act 2000. Although that Act already operates to enable these notices to be provided electronically, this amendment will put the power beyond doubt. It is anticipated that the provision of search notices by way of QR code or other electronic means will make it easier for many people to access and retain the notices, should they decide to receive the notice.

The third amendment will modify the requirements in clauses 11 and 12 of Schedule 1 to the Control of Weapons Act that apply specifically to outer searches (for example, pat downs) of children and persons with impaired intellectual functioning in planned designated areas.

In relation to the rules for searching children, the amendments will retain the existing requirement that an outer or a strip search of a child must be conducted in the presence of a parent or guardian or, if the child is mature enough to express an opinion and indicates that a parent or guardian is not acceptable to the child, in the presence on an independent person who is capable of representing the interests of the child and who is acceptable to the child. Existing provisions will also be retained to provide for an outer or strip search to be conducted in the presence of an independent person who is capable of representing the interests of the child and who, as far as is practicable in the circumstances, is acceptable to the child when a parent or guardian is not then present and the seriousness or urgency of the circumstances require the search to be conducted without delay. However, the Bill will insert new provisions to allow an outer (but not strip) search to be conducted in the presence of any person, other than the police officer conducting the search, when it is not practicable in the circumstances for the search to be conducted in the presence of a parent, a guardian or an independent person in the case of children aged 15 to 17 years without further criteria and in the case of children under 15 years of age, provided additional criteria is satisfied.

In relation to the rules for searching persons with impaired intellectual functioning, the amendments will retain the existing requirement that an outer or a strip search of the person must be conducted in the presence of a parent or guardian of the person being searched and if that is not acceptable to the person, in the presence on an independent person who is capable of representing the interests of the person and who is acceptable to the person. Existing provisions will also be retained to provide for an outer or strip search to be conducted in the presence of an independent person who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person when a parent or guardian is not then present and the seriousness or urgency of the circumstances require the search to be conducted without delay. However, as is the case in relation to children under 15 years of age, the Bill will insert new provisions to allow an outer (but not strip) search to be conducted in the presence of any person, other than the police officer conducting the search when it is not practicable in the circumstances for the search to be conducted in the presence of a parent, a guardian or an independent person, provided additional criteria is satisfied.

The additional criteria that will apply to a child under the age or 15 years and all persons with impaired intellectual functioning (regardless of age) to permit an outer search to be conducted in the presence of any person (who may be another police member) when a parent, a guardian or an independent person is not available, are the same. In these circumstances, the search may proceed in the presence of any person if the police officer conducting the search reasonably believes that the seriousness and urgency of the circumstances require the search to be conducted without delay, including, but not limited to, the police officer having reasonable grounds to suspect that delaying the search is likely to result in evidence being concealed or destroyed, or an immediate search is necessary to protect the safety of a person.

I am aware that searches of children and impaired persons engage a number of Charter rights. In respect of children, the existing search powers of the Control of Weapons Act have been previously stated to be incompatible with the right to protection of children and families, for permitting potentially arbitrary interferences with a young person’s privacy through a warrantless search for a weapon without reasonable suspicion that the person possesses a weapon, and where such searches could be conducted on children without any minimum age.

I accept that the amendments in this Bill, which expand the potential scope of areas in which such powers can be exercised, and amend some of the safeguards that apply to searching a child or persons with impaired intellectual functioning, are likely to disadvantage persons with the protected attributes of age and disability.

However, I am of the view that these amendments are reasonable, so as to not constitute indirect discrimination. Firstly, the amendments to the conditions of searches do serve dual purposes, including a beneficial purpose. A consequence of a child or person with impaired intellectual functioning refusing to cooperate or produce a suspected weapon following a metal detection device search or a search of things, such as of a person’s bags or their pockets, is that the child or person may be detained by police for prolonged periods of time for police to facilitate the attendance of a parent, guardian or suitable person to be present for further searches. As a last resort, police may on occasion arrest and transport the child or intellectually impaired person to a police station to engage support from relevant agencies for an independent person. This process necessarily leads to greater interferences with the rights of the child or intellectually impaired person through a longer duration of temporary detention, and raises associated safety and welfare risks. The additional criteria to enable police to conduct outer searches within the designated area will reduce unduly delaying or prolonging the duration in which children and intellectually impaired persons are detained by police.

To the extent that the modified requirements otherwise disadvantage persons with the protected attribute of age and disability, I consider that they are reasonable and strike the right balance by ensuring weapons searches can be undertaken in a designated area for the safety and security of the community with appropriate safeguards. I note that additional safeguards are provided for in relation to children under the age of 15 and persons with impaired intellectual functioning, being that the officer must reasonably believe the seriousness and urgency of the circumstances require the outer search to be conducted without delay. The circumstances included in the amendments, such as to prevent evidence being concealed or destroyed due to a delay, or whether an immediate search is necessary to protect the safety of a person – are commonly accepted criteria in other contexts for justifying an urgent search that waives procedural protections.

The amendments may also affect the protected attribute of religious belief or activity, and/or race. I note that knives are an important religious symbol for certain faiths, for example, baptised Sikhs who carry a kirpan, an object which resembles a sword or dagger. While an exemption operates under the Control of Weapons Act to permit the carrying of kirpans for religious observance, the use of the search powers within designated areas may have particularly intrusive impact on people who carry knives for religious reasons.

While the Bill will extend the circumstances in which this intrusion may occur, I consider any limitations placed on the right of a person to demonstrate their religion are reasonable and justified (and therefore compatible with relevant rights) in view of the importance of detecting and deterring weapons offending.

This right is also relevant to the power of a police officer in a designated area to order a person to remove a face covering where the officer reasonably believes the person is wearing it to conceal their identity or shield themselves from capsicum spray, under section 10KA of the Control of Weapons Act. If the main purpose of wearing the face covering is for cultural or medical reasons, the power should not be used and police receive guidelines and training on the appropriate use of this power.

Further, while the amendments contained in this Bill to allow planned designated areas for an events to include key transit points will extend the circumstances in which the power to require the removal of face coverings, the amendments do not remove any of the safeguards in place, including that a police officer cannot direct a person to remove a face covering for cultural or medical reasons, and that a person can choose to continue wearing their face coverings if they leave a designated area. I therefore consider that any limitations placed on the right of a person to demonstrate their own religion are reasonable and justified.

The amendments to the designated area search scheme complement significant changes made to the scheme in March 2025 to improve the operation of the designated area weapons search scheme in the context of the significant public safety objectives the scheme seeks to address. There is no doubt that the Victorian community continues to be shocked by the persistence of extreme weapons violence in public places that they have seen regularly reported in the media. In the 2024–25 financial year, 820 prohibited, dangerous and controlled weapons were found in public places during with suspicion weapons searches under sections 10 and 10AA of the Control of Weapons Act by police and PSOs on duty in designated places. More broadly, a record number of knives were seized from Victorian streets in 2024, with almost 40 blades found and destroyed each day. Police seized a record 14,797 knives, swords, daggers, and machetes in 2024 – the most at any time over the past decade. The total number of edged weapon seizures jumped to 14,797 in 2024 from 13,063 in 2023 and 11,331 a decade earlier, in 2015. From 1 July 2022 to 31 October 2024, in planned designated areas alone, 216 weapons were seized. Designated area searches are an effective means of both detecting weapons and deterring their illegal possession. In this context, there is an imperative to progress these further legislative changes without delay to ensure police have the tools they need to address persistent and pervasive weapons carriage and use.

Freedom of movement (section 12)

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, the right to enter and leave Victoria, and the right to choose where to live in Victoria. It provides protection from unnecessary restrictions upon a person’s freedom of movement and extends, generally, to movement without impediment throughout the State and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest.

The right to freedom of movement is directed at restrictions that fall short of physical detention.

The right to freedom of movement may be limited where it is reasonable and justified in accordance with s 7(2) of the Charter. In some circumstances this can include where a limitation is necessary to protect public health (see for example, art 12(3) of the International Covenant on Civil and Political Rights, which provides an indication of the purposes for which freedom of movement may be justifiably restricted, including public health). The right to freedom of movement is one of the most commonly qualified rights that may be reasonably limited under section 7(2) of the Charter.

Proposed amendments

Designated areas

The reforms to designated areas to allow declarations to include key transit points impact the right to freedom of movement because people’s ability to move freely within those designated areas may be limited by the power of police to detain people to conduct a search and through powers to direct a person to leave a designated area. More broadly, the amendments may impact the right to freedom of movement to the extent that the provided powers may impair a person’s willingness or freedom to move through a designated area.

While I recognise that extending the geographical scope of designated areas to key transit points such as bus stops, railway premises or tram stops does constitute a significant increase in existing limits on freedom of movement (as the right has been interpreted to extend to protecting unfettered access to means of public movement, such as public transport) given the time-limited and restricted application of these powers and the need to protect the safety of all persons within designated areas, I consider any limitations placed on a person’s right to freedom of movement are reasonable and justified (and therefore compatible with this right) on the grounds of public safety and that there are no less restrictive measures available. As I outlined above, the scope of the existing scheme does not adequately protect against current safety risks (such as weapons hidden in transport hubs) and such expansion is considered necessary.

Privacy and reputation (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought to be achieved by the limitation.

Section 13(b) of the Charter relevantly provides that a person has the right not to have their reputation unlawfully attacked. An ‘attack’ on reputation will be lawful if it is permitted by a precise and appropriately circumscribed law.

Proposed amendments

The reforms relating to designated areas, PSO expanded duties, the SORA, unexplained wealth and surveillance engage the right to privacy and reputation.

Designated areas

Amendments to the designated area provisions in the Control of Weapons Act interfere with the right to privacy as they extend and modify police powers to conduct searches of people and vehicles in those areas.

The internal limitations on the right to privacy mean that an interference does not amount to a limitation on the right if the interference is lawful and is not arbitrary. An interference will be lawful if it is permitted by a law which is adequately accessible and formulated with sufficient precision to enable a person to regulate their conduct by it. An interference will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

A key feature of the designated area search powers is that they are deliberately designed to be exercised unpredictably and in being exercised in this manner, operate as a significant deterrent to the unlawful possession and carriage of weapons. The powers enable the removal of weapons from public places that would otherwise remain undetected because, if well concealed on a person or in their bag, police would be unlikely to form a suspicion in the absence of other factors.

As I identified in my Statement of Compatibility for the Terrorism (Community Protection) and Control of Weapons Amendment Act 2025 (the Terrorism and Weapons Act), the view of the Minister who introduced the designated area search scheme in the Control of Weapons Actin 2009 was that the very unpredictability of the application of the search powers for the outer searches gave rise to an incompatibility with the right to privacy.

Having regard to more contemporary case law to that which was available to the Minister in 2009, in my Statement of Compatibility for the Terrorism and Weapons Act I concluded that the designated area scheme is subject to sufficient limits and safeguards to curtail any arbitrary interference with the right to privacy. I am comfortable that this will continue to be the case when considering the scheme as it will operate when amended by the amendments in this Bill. In particular, I refer to the European Court of Human Rights case of Beghal v the United Kingdom [2019] (28 February 2018), which dealt with UK border agency stop and search powers under terrorism legislation where the European Court noted that while a requirement of reasonable suspicion is an important consideration in assessing the lawfulness of a stop and search power, there was nothing in that case to suggest that that existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, arbitrariness is an assessment to make with regard to the operation of the search scheme as a whole, including with regards to the specific facts and circumstances that go to its justification.

Considering the designated area weapons search scheme as a whole, including the intended operation of the proposed amendments within the existing scheme, I am satisfied that it remains carefully tailored and subject to such limits and safeguards to be compatible with the right to privacy, for the following reasons.

The amendments in the Bill that will enable a police officer to conduct an outer search of a child or a person with impaired intellectual functioning in the presence of any person when a parent, a guardian or an independent person are not available will still require police to endeavour to secure the attendance of a parent, a guardian or independent person before the search may be conducted in the presence of any other person. Further, for children aged under 15 years and for all impaired persons, a police officer will only be permitted to progress to an outer search when a parent, guardian or independent person is not available when the police officer conducting the search reasonably believes that the seriousness and urgency of the circumstances require the search to be conducted without delay, including but not limited to the police officer having reasonable grounds to suspect that delaying the search is likely to result in evidence being concealed or destroyed or an immediate search is necessary to protect the safety of a person.

While the additional test set out above will not apply to older children, being those aged 15 to 17, it remains the case that outer searches of any person can only be conducted if an initial electronic device (or ‘wand’) search has already been conducted and as a result of that search the police officer considers that the person may be concealing a weapon.

The provisions governing the conduct of searches under Schedule 1 to the Control of Weapons Act deliberately establish a graduated search regime. In respect of all outer searches, clause 6 of Schedule 1 requires police to preserve the dignity of all persons searched including through providing certain information, seeking the person’s cooperation, conducting the least invasive search reasonably necessary, conducting the search quickly and in a way that provides reasonable privacy and, if practicable, by the search being conducted by a police officer who is of the same sex as the person being searched if the search involves running hands over the outer clothing of the person.

In addition to these statutory requirements, Victora Police manuals give clear guidance on conducting searches in a manner that is compatible with human rights, advising that officers must always consider and act compatibly with the Charter; persons must not be selected for a search based solely on their race, religious belief or activity or physical features; and searches must be appropriately recorded, which extends to recording the factors considered in deciding to conduct a search, including proper consideration of human rights. Victoria Police manuals also provide additional detailed guidance for police members when considering whether to progress to strip searches of younger children requiring a careful balancing of impact, risk and protective factors.

Finally, the conduct of any search by a police officer or PSO is subject to s 38(1) of the Charter, and the requirement to act in a way that is compatible with human rights.

All of the requirements and safeguards that apply to searches conducted in designated areas will apply to those searches as they may be conducted in key transit points which may be included in planned designated areas declared in respect of events.

Accordingly, I consider the designated area amendments to be compatible with the right to privacy under section 13(a) of the Charter as any interference is not arbitrary as the search powers in designated areas are designed to be exercised unpredictably and in being exercised in this manner, operate as a significant deterrent to the unlawful possession and carriage of weapons. In this way the powers are not disproportionate to the aim sought, because it is sufficiently circumscribed and subject to adequate safeguards.

The amendments serve an important public purpose which is to reduce the risk of serious weapons-related violence to the public. The reforms address the community’s concern about the level of weapons related violence that has been occurring in public places as I referred to earlier in my statement, and are necessary to ensure that police officers and PSOs are empowered to stop and search people without suspicion because of the ready concealability of so many weapons. The amendments will support the operational effectiveness of these critical police powers.

PSO expanded duties

The Bill empowers a PSO to request the name and address of a person when performing their new duties of guarding a person at hospital or guarding a crime scene. The power to request personal information aims to support PSOs to keep good order and maintain security at hospitals and crime scenes.

The power of a PSO to compel a person to provide their name and address for these expanded duties may constitute an interference with the person’s privacy as protected by section 13(a) of the Charter. However, I am satisfied that any interference with privacy would be neither unlawful nor arbitrary.

The new section 200Q of the VPA is similar to section 59A of the VPA which also allows PSOs to request personal information in order to assess security risks, to keep good order and maintain the environment where they are undertaking their duties, in that case police premises. In this way, PSOs are enabled to inquire about information which may assist them to understand the security risk, for example if the person is of interest to police, or to follow up with the person if a security risk eventuates. In the Statement of Compatibility that accompanied those amendments in Justice Legislation Amendment (Police and Other Matters) Act 2022, they were considered to be compatible with the right to privacy.

The new section 200Q of the VPA also mirrors the provisions of section 456AA(2) of the Crimes Act which provide for police or a PSO to be able to request the name and address of a person suspected of having committed, or about to commit an offence. The human rights issues associated with those powers were considered in detail in the statement of compatibility accompanying the Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017 which extended the power to PSOs. Those powers serve an important purpose of enabling PSOs to obtain basic investigative information to give to investigating police officers. That Statement of Compatibility concluded that the powers were compatible with the human rights protected by the Charter.

In the context of this Bill, these powers are necessary to support PSOs to effectively carry out their functions to guard persons in hospitals, and crime scenes. When hospital guarding, a PSO may request name and address for reasons including when the PSO believes on reasonable grounds that the person: has committed or is about to commit an offence against, or in connection with, the person being guarded or protected; may be able to assist in the investigation of such an offence, or is visiting or interfering with the person under guard/protection. When guarding a crime scene, a PSO may request the name and address of a person who the PSO reasonably believes has committed or is about to commit an offence, or may be able to assist in the investigation of an indictable offence. This information is vital to ensure that where PSOs are the first officers at a crime scene they able to quickly identify persons who may be able to assist with an investigation.

I am satisfied that any interference with the right to privacy will not be unlawful or arbitrary as it will occur in limited circumstances and for the purpose of assisting police and ensuring community safety.

Amendments permitting disclosure of information to victims under the SORA

The Bill will insert new provisions into the SORA to authorise disclosure of specified information from the Victorian Register of Sex Offenders. New section 70Y provides that the CCP may disclose certain information to affected persons in circumstances broadly related to the performance of functions and powers under the SORA. Affected person includes victims, and if they are a child or child victim, their parents. New section 70Z specifies considerations that regard must be had to in deciding whether to disclose the information, relating to the welfare and preferences of the affected person proposed to be receiving the information. New section 70ZA sets out the type of information that may be disclosed, which includes a range of personal information about a registrable offender relating to applications or events under the SORA, such as the details and listings of upcoming applications and corresponding decisions of the court or the CCP (such as the making of orders and applicable reporting periods). Any affected person who receives information under these provisions is subject to an obligation to maintain confidentiality in accordance with new section 70ZE. New Section 70ZG imposes criminal penalties for the publication of information disclosed under this new Part.

The new power to disclose information about a registrable offender will interfere with the right of a registrable offender to privacy and reputation protected by the Charter. However, I consider any interference to be compatible with the right, as it will be lawful and not arbitrary. The information that may be disclosed and the circumstances in which that information may be disclosed are precisely expressed so that any disclosure authorised is for a specified purpose and is limited to specified information. The sharing of such information serves an important purpose relating to promoting victim’s rights, including restoring victim’s sense of security, facilitating their participation and understanding of the registration scheme, empowering victims to take the necessary precautions to avoid future contact with registrable offenders, and promoting transparency about the registrable status of an offender and the decisions of the court and police.

In deciding whether to disclose information, the CCP is subject to the public authority obligation in the Charter and obliged to ensure that any disclosure is proportionate to the statutory function being performed and not exceed that which is necessary to perform the function. In addition, the Bill provides for a number of safeguards to prevent against further unauthorised disclosure, such as the obligation of confidentiality and restrictions on publication.

Enabling determination of surveillance warrant applications without an oral hearing

The Bill amends the SD Act to clarify that judicial officers may decide applications for warrants under the Act remotely or by electronic means, or without an oral hearing and entirely on the basis of written submissions if the applicant and the Public Interest Monitor so consent. The SD Act engages the right to privacy by authorising the covert placement, use, maintenance and retrieval of surveillance devices in private settings, for the purpose of obtaining information or evidence for criminal investigations. Any amendment to the procedure and means of issuing a warrant will be relevant to the right to privacy, as the circumstances of judicial oversight and scrutiny of a warrant application is a critical part of ensuring any subsequent interferences with privacy authorised by the warrant are not arbitrary.

The interference with the right is lawful, as it is authorised by the SD Act, and not arbitrary, as it is not capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim of detecting, investigating and prosecuting crime. Proportionality is supported by the inclusion of clear safeguards within the SD Act.

The Bill amends the procedure for applying for warrants, to reflect modern court practice by allowing some warrant applications to be heard remotely or on the papers. While this will make it easier to apply for a warrant in appropriate cases, the Bill does not impact on the important safeguards set out in the SD Act, including: requiring that warrant applications may only be determined by a judge or magistrate; the role of the Public Interest Monitor to test applications in the public interest; restrictions on the use, communication and publication of information obtained from the use of surveillance devices; obligations on law enforcement to keep records and report on the details of the use of surveillance devices; and oversight by Integrity Oversight Victoria through periodic inspections and reports on compliance with the Act. The amendment does not alter the express and implied substantive requirements that a judge or magistrate must be satisfied of in order to issue a warrant, including having regard to the extent to which the privacy of any person is likely to be affected.

I am therefore satisfied that this procedural amendment in the Bill does not significantly impact on the scheme governing the use of surveillance devices and does not constitute an interference with the right to privacy.

Unexplained wealth information gathering powers

The Bill strengthens information-gathering provisions under Part 13 of the Confiscation Act 1997, by:

• expanding the grounds on which authorised police officers may issue information notices to financial institutions, so that a notice can be used to obtain information where the officer reasonably believes a person who holds an account with the financial institution (or an interest in that account) has an interest in unlawfully acquired property, or has wealth that exceeds the person’s lawfully acquired wealth;

• expanding the grounds on which prescribed persons may issue information notices to financial institutions, so that a notice may be issued where it is required to satisfy an unexplained wealth order; and

• introducing a power for a prescribed person to request documents be produced by any person, where it is necessary to enforce an unexplained wealth order.

The amendments to the existing information gathering powers engage the right to privacy. However, I consider that any interference with privacy rights is lawful and not arbitrary.

The reforms serve an important purpose, which is to operationalise the recent unexplained wealth reforms which commenced on 20 March 2025 and introduced a new unexplained wealth pathway to better target unlawfully acquired wealth. Specifically, the amendments provide law enforcement agencies with the necessary investigative tools required to pursue targets under the new unexplained wealth confiscation pathway.

The Confiscation Act 1997 specifies in detail the limited circumstances in which information-gathering powers may be exercised, ensuring that the information gathering powers cannot be used arbitrarily. For example, the Act requires that an authorised police officer reasonably believes that a person who holds an account with the financial institution, or has an interest in that account, has an interest in property that was not lawfully acquired, or that an unexplained wealth order had been made. The reforms comprise a modest expansion of existing powers under the Confiscation Act 1997 that will address gaps in the current provisions, without which the capacity of law enforcement agencies to pursue targets would be seriously hampered.

Freedom of thought, conscience, religion and belief (section 14)

Section 14(1) of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to have or adopt a religion or belief of one’s choice (s 14(1)(a)), and to demonstrate one’s religion or belief individually or as part of a community, whether in public or private, through worship, observance, practice and teaching (s 14(1)(b)).

The concept of ‘belief’ is not limited to religious or theistic beliefs; it extends to non-religious beliefs as long as they possess a certain level of cogency, seriousness, cohesion and importance. While the freedom to hold a belief is considered absolute, the freedom to manifest that belief may be subject to reasonable limitations.

Section 14(2) provides that a person must not be restrained or coerced in a way that limits their freedom to have a belief. Coercion in this context includes both direct and indirect forms of compulsion, such as penal sanctions and restrictions on access to employment (UN HRC, General Comment No 22, [5]).

Proposed amendments

Designated areas

Reforms relating to designated areas may incidentally engage this right, but any limitation is proportionate to the respective statutory aims of protecting the community.

As I have already stated, knives are an important religious symbol for certain faiths such as baptised Sikhs who carry a kirpan, an object which resembles a dagger. While an exemption operates under the Control of Weapons Act to permit the carrying of kirpans for religious observance, the use of the search powers within designated areas may have particularly intrusive impact on people who carry knives for religious reasons.

I note that other Charter rights may also be relevant to this scenario, including section 19 which provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language and section 8, which provides that every person has the right to enjoy their human rights without discrimination, including on the basis of religious belief or activity (which I have already discussed above).

Insofar as the Bill extends the geographical scope of planned designated areas to include key transit points if so declared by the CCP, and therefore will extend the circumstances in which intrusions may occur, I nonetheless consider any limitations placed on the right of a person to demonstrate their religion are reasonable and justified (and therefore compatible with relevant rights) in view of the importance of detecting and deterring weapons offending, drawing on the reasons already expressed earlier in this Statement.

Freedom of opinion and freedom of expression (section 15)

Section 15(1) of the Charter provides that every person has the right to hold an opinion without interference. Section 15(2) provides that a person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, through various mediums. The freedom extends not only to political discourse, debate and protest but also to artistic, commercial and cultural expression, news and information.

Section 15(3) of the Charter provides that special duties and responsibilities are attached to the right to freedom of expression and that the right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons or for the protection of national security, public order, public health or public morality.

Proposed amendments

The reforms relating to designated areas and instructions for manufacture of a firearm engage the right of freedom of expression.

Designated areas

As the reforms of this Bill extend the geographical scope of designated areas for events, they are relevant to the right to freedom of expression in relation to the existing powers police have in designated areas under section 10KA of the Control of Weapons Act to issue directions to leave the designated area, particularly where a direction is to leave an area in which a person is expressing ideas. However, to the extent that the existing limitations on these rights are maintained or extended by the amendments contained in the Bill which will allow for key transit points to be included in declarations of planned designated areas for events, I consider that those limitations are reasonable and justified, for the reasons already discussed above. When the direction to leave powers were introduced in 2017, the scheme was considered compatible with this right, and my view is that the amendments contained in this Bill, to the extent they extend the operation of the powers, are also compatible.

Instructions for manufacture of a firearm

The Bill amends the Firearms Act to, amongst other things, insert offences to prohibit possessing or distributing instructions for manufacture of a firearm, without reasonable excuse, unless the person does so in accordance with a firearms dealer’s licence issued under Part 3 of the Firearms Act. These proposed offences will impose restrictions on, but are not incompatible with, a person’s right to freedom of expression.

By restricting possession and distribution of instructions for manufacture of a firearm (being a document that can be used to instruct a machine to manufacture a firearm), the Bill is designed to place lawful restrictions on this conduct which are reasonably necessary to protect public order and public health. The lawful restrictions are the regulation of the possession and distribution of instructions for manufacture of a firearm, without reasonable excuse, and without a license, through the new offence provision. Police seizures of improvised firearms show an increase in experimentation with computer controlled additive manufacturing processes, which ultimately threaten the integrity and efficacy of existing laws regulating the manufacture, dealing, acquisition, carriage and use of firearms. Accordingly, in my opinion, the restrictions imposed on freedom of expression by the new offences are reasonably necessary to reduce the availability and therefore the likelihood that such instructions will be used to unlawfully manufacture a firearm. This is particularly the case in circumstances in which unlawfully manufactured firearms are reasonably likely to cause harm to public health or to public order.

Protection of families and children (section 17)

Section 17(1) of the Charter recognises that families are the fundamental group unit of society and are entitled to be protected by society and by the state. Section 17(1) is related to the s 13(a) right and an act or decision that unlawfully or arbitrarily interferes with a family is also likely to limit that family’s entitlement to protection under section 17(1).

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This section recognises the particular vulnerability of children due to their age and confers additional rights on them.

Proposed amendments

Designated areas

The amendments in this Bill do not alter the form of the existing stop, search or move on powers in the Control of Weapons Act. Rather, they alter the accompanying procedure for searches of children and people with intellectual impairments in planned designated areas and expand the geographic scope of planned designated areas for events.

The designated area weapons search scheme can apply to a child below 18 years of age who is within a designated area during the period that a declaration is in force.

While the amendments provide that outer searches of children must always occur in the presence of a parent or guardian, an independent person, or another person (whether or not they are another police officer), it has previously been accepted that the search powers are incompatible with section 17(2) because of the particular vulnerability of children. The Bill retains requirements to seek the attendance of a parent, a guardian or an independent person for outer searches of all children but will modify the rules for outer searches of children aged 15 to 17 so that where a parent or guardian or an independent person is not available police will be able to proceed to conduct the search in the presence of any person (provided that person is not the police officer conducting the search) without any additional criteria being applicable. For the younger cohort of children, being any child under the age of 15 years, the Bill will only permit outer searches of younger children in the designated area in the absence of a parent, a guardian or an independent person when the seriousness and urgency of the circumstances require the search to be conducted without delay, including but not limited to, the police officer having reasonable grounds to suspect that delaying the search is likely to result in evidence being concealed or destroyed or an immediate search is necessary to protect the safety of a person.

I accept that the modification to allow these searches to be conducted in the presence of another person, who may be another police officer, in serious and urgent circumstances when a parent, guardian or independent person is unavailable compounds the existing incompatibility with section 17 because of the particular vulnerability of children.

Further, I also accept that to the extent that the amendments expand the geographical area of planned designated areas for events to include key transit points that are in the vicinity of the event and that are likely to be used by event attendees and will affect a greater number of people external to the event venue itself (and children are not excluded from the scope of the expansion), the incompatibility with section 17 of the Charter is increased.

However, as was the case when the powers were introduced in 2009 and subsequently amended in 2010 and 2025, the government strongly believes that random search powers are important to prevent and deter acts of violence, and to support the protection of children. This is especially the case given the prevalence of weapons being possessed by people in public places, as I have discussed earlier, and the vulnerability of children if they are subjected to weapons violence.

Amendments permitting disclosure of information to victims under the SORA

Reforms outlined earlier to provide for specified information disclosure and to preserve the confidential nature of that information and prohibit its publication have been prepared with regard to the welfare of a child and the child’s family affected by sexual violence. The discretion to disclose specified information first requires the CCP to have regard to the welfare of the child, any preferences expressed by the child, and the child’s capacity to express those preferences. The CCP must also have regard to the welfare of the affected person and any other affected person. The meaning of affected person is broad, so that the CCP may lawfully consider the entire circumstance and the best interests of the child within the context of the family. These discretions have been designed to promote a trauma-informed victim-led scheme that takes account of the welfare of the family as a whole, and recognises that a child’s welfare and capacity will change as they grow and develop. Accordingly, I consider the right to protection of children is promoted by these amendments.

Property rights (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

The right to property under section 20 of the Charter will be limited when all three of the following criteria are met: the interest interfered with must be “property”, the interference must amount to a “deprivation” of property, and the deprivation must not be “in accordance with law”.

Proposed amendments

The amendments enabling the destruction of drug exhibits and the offence of possessing digital blueprints for firearms engage property rights.

Destruction or disposal of drugs and drug related equipment

The amendments to the DPCS Act that will provide Victoria Police with legislative authority to destroy ‘illicit things’ engage property rights under section 20 of the Charter.

‘Illicit thing’ is defined in new section 96A of the DPCS Act. ‘Illicit things’ include drugs of dependence, category 1 and 2 precursor chemicals, an instrument, device or substance for the cultivation, manufacture, sale or use (or preparation for these actions) of a drug of dependence or precursor chemical, a psychoactive substance or instrument, device or substance for the production, sale or commercial supply (or preparation for these actions) of a psychoactive substance, a Schedule 4, 8 or 9 poison or a category 3 pre-cursor apparatus.

The Bill will empower the CCP to issue a destruction direction authorising the destruction of an illicit thing if specific circumstances detailed in the new provisions are satisfied.

New section 96B sets out the requirements for issuing a destruction direction if an offence is not to be charged, including that:

•   the thing is an illicit thing;

•   at least 3 months has elapsed since an illicit thing was seized or found by or given to a member of Victoria Police;

•   no offence has been charged in respect of the illicit thing;

•   the CCP certifies that no offence will be charged;

•   the CCP is satisfied that the thing is not to be returned.

In relation to after an offence has been charged (see new section 96C), the direction may be given where:

•   the thing is an illicit thing;

•   the CCP is satisfied thing is not to be returned;

•   the affected person is deceased;

•   the proceeding on the charge has concluded, the person has been convicted and the appeal period has elapsed and the person has not been charged with any other offence in relation to the thing;

•   a warrant to arrest a person who has absconded has been issued; or

•   the proceeding on the charge has not concluded and the offences in relation to the thing are offences against the law of Victoria only, the person has been served with a ‘destruction warning’ which has been filed at the relevant court, and the applicable thing was seized on or after the commencement of the relevant section.

If there are any extant relevant applications or orders, for example under section 95A of the Confiscation Act 1997 or a declaration under section 95C of that Act for the retention of property seized under section 81 of the DPCS Act, those provisions will operate to preclude the destruction of the thing.

For the CCP to be satisfied that a thing is not to be returned, the CCP must be either satisfied that reasonable efforts have been made to identify potential recipients to whom it would be lawful and appropriate to return the thing and no such potential recipient has been identified or one of more such potential recipients have been identified but reasonable efforts to return the thing have not been successful.

If the destruction or disposal is in relation to one of the latter two circumstances after an offence has been charged listed above, then the following evidentiary requirements must also be met under new section 96C:

•   if thing is of a kind from which a sample can be taken either a sample has been taken or an analyst or botanist has issued a ‘no sample certificate’ in respect of it;

•   there is evidence of the aspects of the thing that are relevant to the offences that relate to the thing (i.e. photographs, fingerprints); and

•   the CCP is satisfied that a member of Victoria Police personnel has arranged for the retention of the evidence of the relevant aspects of the thing.

If a destruction direction is given by the CCP, the thing can be lawfully destroyed or disposed of in accordance with the new provisions.

A person charged with an offence in relation to an illicit thing may, in accordance with the new provisions and the information that they must be provided in a destruction warning (see new sections 96EA-96G), apply to CCP for a direction in writing that provides for the supply of a sample of the thing for independent testing (see new section 96H). This will not be granted if a no sample certificate has been issued (which is expected to occur only in limited circumstances such as when the thing is of a kind that it cannot provide a sufficient sample for testing) (see new section 96D). The right of an accused to seek independent testing of samples applies throughout the course of proceedings.

The Bill also makes provision for the destruction or disposal of the retained samples on specific grounds, including that all proceedings and possible appeals have been finalised (see new sections 81AA, 81AAB, 81AAC, 91A, 91B, 91C).

As set out above, the new drug destruction and disposal provisions are tightly confined and all requirements for managing illicit items or things to the point of destruction or disposal are clearly articulated, including that a destructions direction will only be available when the thing is not to be returned to the person or persons with a lawful claim or right to the thing and that Victoria Police must make reasonable efforts to find and/or return the thing to a person where it would be lawful and appropriate. In addition, people who believe they have a lawful right to property seized or found will continue to have other avenues of redress including through civil claims and ex gratia payments.

In the context of Victoria Police’s law enforcement role in relation to many illicit things, such as drugs of dependence that are the subject of use, possession, cultivation and trafficking offences, it is expected that no person will have a lawful right to the illicit thing.

The Bill engages property rights in that the regime for the destruction and disposal of illicit things will result in a deprivation of property. However, any deprivation of property under the new provisions will be in accordance with the legislative regime that is confined, structured, accessible and precisely formulated. Consequently, I do not consider that these amendments limit the right to property. However, to the extent that there may be any limitation on the right to property resulting from the amendments, that limitation will be reasonably justified in accordance with section 7(2) of the Charter. The reforms relate to a pressing concern: the storage of drugs and drug-related equipment at Victoria Police property holding facilities regularly surpasses capacity, and has created a significant resourcing burden posing security, safety and integrity risks. The expending of these police resources does not serve a public interest, as there is no necessity for, or benefit that can be derived through, the extended storage of bulk drugs and equipment (I will discuss this further below in relation to the impacts on the fair hearing rights of accused persons). There is a significant public interest in protecting the community from drug related harms, reducing the burden and cost of storing and regularly auditing illicit things for extended periods of time and reducing security and safety concerns associated with that storage.

Instructions for manufacture of a firearms

The amendment to the Firearms Act that adds offences to prohibit possessing or distributing instructions for manufacture of a firearm, without reasonable excuse, unless the person does so under and in accordance with a licence, may engage the right to property under section 20 of the Charter. However, to the extent that a person may have any property rights in relation to instructions for manufacture of a firearm, the breadth of the exceptions that apply to the new offences means that, if an exception does not apply, the inference can be drawn that the person exercising the right does so intending to participate in unlicensed firearms manufacture. To the extent that the Bill imposes a restriction on any property rights, any limitation is therefore both imposed by law and justified by the important public safety purpose of limiting the authority to manufacture firearms and firearms parts to persons licensed to do so. In my opinion, the broad exceptions provide for any limitations on property rights to be reasonable, justified and proportionate to the important public safety purpose of regulating the manufacture of firearms and firearms parts.

Right to liberty and security of person (section 21)

Section 21 of the Charter provides that every person has the right to liberty and security, including the right not to be subject to arbitrary arrest or detention. This right is concerned with the physical detention of the individual, not mere restrictions on freedom of movement. Detention or deprivation of liberty does not necessarily require physical restraint. In particular, section 21(2) prohibits a person from being subjected to arbitrary detention, whilst section 21(3) prohibits a person from being deprived of their liberty except on grounds, and in accordance with procedures, established by law.

What constitutes detention or deprivation of liberty will depend on all the facts of the case, including the type, duration, effects and manner of implementation of the measures concerned. A person’s liberty may legitimately be constrained only in circumstances where the relevant arrest or detention is lawful, in the sense that it is specifically authorised and sufficiently circumscribed by law, and not arbitrary, in that it must not be disproportionate or unjust.

Proposed amendments

Designated areas

Given the main reforms of this Bill extend the scope of designated areas and the circumstances in which police may perform searches on children or persons with an intellectual impairment, it follows that the Bill will be relevant to the right to liberty.

The right to liberty and security of the person is engaged through the existing powers under the Control of Weapons Act to detain a person for as long as reasonably necessary to conduct the search.

Because the powers of detention are strictly confined to what is reasonably necessary to conduct an authorised search, no separate question of incompatibility with section 21 of the Charter arises. Accordingly, I consider the amendments to be compatible with the right to liberty and security of the person under s 21 of the Charter. I also refer to my discussion above that the reforms to the circumstances of outer searches are actually intended to reduce the potential duration that a child or person is temporarily detained to conduct a search, including where they are taken to a police station in order to satisfy the conditions for conducting a search.

Moreover, I consider that these critical police powers necessary to enhance Victoria

Police’s ability to detect and deter weapons offending in public places. As was the case when these powers were first introduced and subsequently amended, I consider the powers as an appropriate and measured response to persistent and concerning unlawful weapons possession, carriage and use in public places in Victoria. The concerning figures I provided earlier in this statement make it an imperative to ensure police have the appropriate powers they need to conduct weapons searches in designated areas.

Fair hearing (section 24)

Section 24(1) provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The requirements of a ‘fair hearing’ will vary depending on the nature and circumstances of the proceedings (Russell v Yarra Ranges Shire Council [2009] VSC 486, [18]–[23]; see also Secretary to the Department of Human Services v Sanding (2011) 36 VR 221; [211]).

The rights in section 25 (rights in criminal proceedings) are also elements of the right to a fair hearing in section 24 and inform the contents of a fair hearing to some extent (Re an application under the Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415, [40]; R v Williams (2007) 16 VR 168, [54]). This relevantly includes that an accused person have adequate time and facilities to prepare their defence, and to examine, or have examined, witnesses against that person. Implicit in this is the right of an accused to be able to test the evidence led by the prosecution.

Proposed amendments

Destruction or disposal of drugs and drug related equipment and the public display of seized things engage this right.

Destruction or disposal of drugs and drug related equipment

Disposal or destruction of drug exhibits before conviction engages the right to a fair hearing, in so far as it may be relevant to an accused’s capacity to prepare their defence or respond to the case against them.

In my view, these amendments will not limit the fair trial of an accused. The Bill will only permit the destruction of a sample or illicit thing pretrial and after an offence has been charged in tightly circumscribed circumstances (see new section 96C of the DPCS Act). The CCP will only be empowered to make a destruction direction when there are no extant applications or orders that would preclude destruction, the accused is deceased or has absconded, the proceeding on the charge has concluded and the appeal period has expired, or the illicit thing has been sampled and analysed and a sufficient sample has been retained and can be independently tested by the accused at any point during the proceedings. Accredited analysts and botanists take the samples and may be called by the prosecution or accused to give evidence in the proceedings and be cross examined. Where a sample cannot be taken, an accredited analyst or botanist will issue a no sample certificate and this too will form part of the evidence that may be challenged. Other evidence relevant to the offences that relate to the thing must also be taken regarding the illicit thing that is the subject of the charge, for example photographs, fingerprints and the like.

Importantly, the accused will be served with a destruction warning regarding the illicit thing so that they are fully appraised of their right to seek independent analysis of the illicit thing sample, will be encouraged to obtain their own legal advice and will be provided with the contact details for Victoria Legal Aid (see new section 96EA of the DPCS Act).

I consider that the robust regime the Bill puts in place for the sampling and independent testing of illicit things, the provisions requiring the accused to be fully informed of their rights and the fact that if Victoria Police fails to comply with the requirements this will jeopardise successful prosecutions is sufficient to safeguard a fair hearing.

If the contrary view is taken, and fair hearing is considered to be limited by these amendments, I am of the view that is justified as a reasonable limit pursuant to section 7(2). As I discussed above, these reforms serve an important and pressing purpose arising from the surpassed capacity of police property holding facilities, which give rise to security, safety and integrity risks, as well as a significant resourcing burden. This resourcing burden and associated risks are avoidable and not in the public interest to be maintained.

Any impact on fair hearing is confined and subject to safeguards. The amendments clearly outline the circumstances in which, and the process by which, illicit things may be destroyed. The amendments provide for a notification process, an entitlement to obtain independent analysis of the illicit thing(s) and the retention of samples (where practicable) as well as secondary evidence for the duration of any court proceedings. Illicit things will only be destroyed pretrial in very circumscribed circumstances, and not without the outlined notification process first taking place. These circumstances in which illicit things may be destroyed pretrial are appropriately and narrowly tailored to achieving the purposes of the amendments while maintaining fair hearing rights. There are no less restrictive means available to achieve these purposes of reducing the cost and burden of storage, ensuring safety of staff and alleviating security concerns. Consequently, it is my opinion that to the extent the amendments potentially limit the right to fair hearing, this is reasonable and justified in accordance with section 7(2) of the Charter.

Public display of things seized under warrant

The Bill adds new provisions to the DPCS Act and the Firearms Act providing that the CCP may display to the public a thing at a conference attended by the media or publish photos or videos of a thing where the things were seized under a search warrant issued pursuant to the DPCS Act or the Firearms Act. These provisions may impact the right to a fair hearing by potentially influencing opinions about an alleged offence.

I consider that any limitation of the right to a fair hearing is demonstrably justified as a reasonable limit within the meaning of section 7(2) of the Charter. The power will deter offending and will provide public reassurance of community safety by demonstrating the outcomes of police investigations into serious and organised crime. It also aligns with current practice in relation to items seized under warrants issued pursuant to the Crimes Act. I am confident police will make these decisions responsibly and appropriately, and note police are accustomed to making such decisions in the context of releasing investigation details to the media. Finally, any potential limit to the right can be mitigated by the courts’ broad and inherent powers to ensure that criminal proceedings are conducted fairly and impartially, which extend to staying a criminal proceeding where a fair hearing cannot be provided. For example, any potential unfairness caused by pre-trial publicity may be alleviated through appropriate jury directions.

Rights in criminal proceedings (section 25)

Section 25 relates to rights in criminal proceedings. Section 25 includes protection of the right to be presumed innocent and details a range of minimum guarantees, such as to be informed about the nature and reason for a charge in a language or type of communication the person understands, to be tried without unreasonable delay and the right to not be compelled to testify against him or herself.

Courts and tribunals must apply and give effect to human rights which relate to court and tribunal proceedings irrespective of whether they are acting in an administrative or judicial capacity. This includes the rights under section 25 of the Charter.

Proposed amendments

Destruction or disposal of drugs and drug related equipment

Destruction or disposal of drugs and drug related equipment may engage this right as it relates to destruction of exhibits prior to resolution of criminal proceedings. However, drawing on my above discussion of fair hearing rights, I am of the view that the illicit things destruction scheme in the Bill does not interfere with any rights protected under section 25 because it will not impede the accused from challenging any evidence presented in proceedings and does not affect other aspects to the right. I consider the reforms are compatible with rights in criminal proceedings but to the extent that it may be found to engage these rights, the amendments are justified for the purpose outlined above of ensuring health and safety of the staff managing the seized illicit things, reducing unnecessary storage burdens, auditing costs associated with retaining bulk drugs and equipment for an extended period of time and security concerns associated with storing these illicit things.

Instructions for manufacture of a firearm

The Bill adds indictable offences (new sections 59B and 59C) to the Firearms Act which make it an offence for a person to possess or distribute instructions for manufacture of a firearm, without reasonable excuse, without a licence to do so.

As discussed above, section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

By creating a ‘reasonable excuse’ exception, the offences may be viewed as placing an evidential burden on the accused, in that they require the accused to raise evidence as a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence. I note the Supreme Court has taken the approach that an evidential onus of this nature does not limit the right to be presumed innocent.

For these reasons, in my opinion, these amendments are compatible with the right to be presumed innocent.

Facilitating remote court attendance for compulsory procedure applications

The Bill gives courts the flexibility to hear compulsory procedure applications with the respondent appearing by audio visual link in appropriate cases. If the application is granted, a court may direct a forensic procedure is undertaken on a child, or an adult who lacks mental capacity to consent, to collect a sample or conduct a physical examination, as part of a criminal investigation.

This reform engages the rights in criminal proceedings in section 25 of the Charter, and for similar reasons, the rights of children in the criminal process in section 23 of the Charter, and the right to a fair hearing in section 24 of the Charter. To the extent that the reforms limit those rights, I am satisfied that the limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.

Section 25(2)(d) of the Charter provides that an accused has the right to be ‘tried in person’ and to defend themselves personally or through legal assistance. The purpose of this provision is to ensure an accused is not tried in their absence and has the right to fully participate in criminal proceedings.

I accept that enabling a respondent to appear via audio visual link in criminal matters may, in some cases, have the potential to negatively impact on the respondent’s ability to effectively participate in, or understand, the proceeding and to communicate with their legal practitioner. There is also a risk of influencing a proceeding through the appearance of ‘presumptive guilt’, where a respondent appears from a detention or custodial facility, clothed in a facility’s uniform. However, I consider that the reform ensures that the courts can appropriately manage and mitigate those risks on a case-by-case basis. In particular, the courts will retain the ability to hear the application with the respondent present in court, while enabling matters to be heard remotely in appropriate cases. In those cases, the respondent is still able to participate in the hearing ‘in person’ when they appear by audio visual link. In addition, the potential impacts outlined above can be appropriately managed through the courts’ exercise of inherent powers to ensure fairness in proceedings, which can be used to ensure the respondent comprehends the proceedings and can communicate with their legal representative. In addition, by enabling remote attendance in appropriate cases, the Bill will increase court efficiency, allowing a court to proceed with more matters than would otherwise be possible. This facilitates an accused’s right to be tried without unreasonable delay under section 25(2)(c) and an accused child’s right to be brought to trial as quickly as possible under section 23(2) of the Charter.

Similarly, section 24(1) of the Charter provides that a person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. As outlined above, any potential limitation on this right can be managed by the courts’ use of inherent powers. In addition, the Bill upholds this right by ensuring that a court may order physical attendance at hearings where it is appropriate to do so.

PART B: amendments to the Summary Offences Act 1966

Overview

In respect of Part B of this Statement of Compatibility, the Bill amends the Summary Offences Act 1966 (SOA) by:

• empowering police to direct a person to cease and not resume wearing a face covering where the police officer reasonably believes that the person has committed or intends to commit an offence at a public protest

• introducing a new offence prohibiting a person from using a thing or substance to lock on or secure any person (including themselves) to another person, surface or other thing where the usage or removal is likely to cause injury to another person or otherwise present a serious risk to public safety (with accompanying powers to enforce this offence)

• introducing an offence criminalising the public display of symbols of terrorist organisations (with accompanying powers to enforce this offence)

• modernising and expanding protections for religious worship, including by broadening existing offences to capture conduct that intimidates, menaces or harasses, or obstructs or hinders a person attending a religious worship meeting, and extending offences to conduct that occurs before, during or after a religious worship meeting.

The purpose of these reforms is to respond to a small number of agitators at public protests and places of worship that engage in dangerous, extreme and radical conduct that poses a risk to public safety, undermines police functions and interferes with the right of people to gather to pray, free from fear, harassment and intimidation.

Human Rights Issues

The parts of the Bill discussed in Part B of this Statement of Compatibility engage the following rights under the Charter:

• right to recognition and equality before the law (section 8);

• right to freedom of movement (section 12);

• right to privacy and reputation (section 13);

• right to freedom of thought, conscience, religion and belief (section 14);

• right to freedom of expression (section 15);

• right to peaceful assembly and freedom of association (section 16);

• right to culture (section 19);

• right to property (section 20);

• right to security of person (section 21); and

• right to presumption of innocence (s 25(1)).

In accordance with section 7(2) of the Charter, rights can be subject under law to limits that are reasonable and demonstrably justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited in order to protect other rights.

For the reasons discussed below, any limitations on rights resulting from the amendments made to the SOA under this Bill are reasonable and demonstrably justified in accordance with section 7(2) of the Charter.

Right to recognition and equality before the law (section 8)

Addressing face coverings worn by agitators at public protests

New section 6D of the SOA empowers police to direct a person to cease wearing a face covering if the police officer reasonably believes that the person has committed or intends to commit an offence at a public protest. A direction may also be given within a reasonable time to a person who has left the public protest or to a person who is at a place where a public protest was occurring but is no longer occurring (e.g. because the protest has ended or moved on from the place where the person is at). This provision engages the right to equality under section 8(3) of the Charter because the requirement to remove face coverings may have the effect of indirectly disadvantaging persons who wear face coverings for religious, cultural or medical purposes.

That being so, I am of the view that the requirement is reasonable so as to not constitute indirect discrimination. The requirement is directed at pursuing the pressing and legitimate objective of maintaining public order and to ensure community safety. There has been an increase in agitators – including neo-Nazi groups during recent public demonstrations – using face coverings such as balaclavas to anonymously engage in acts of vilification and other potentially criminal acts. The Bill addresses this conduct by empowering police to direct a person to cease wearing a face covering where they reasonably believe a person has committed or intends to commit an offence at a public protest. This will help deter people that are emboldened to vilify others and engage in other criminal acts under the guise of anonymity. I set out in further detail below, under the right to peaceful assembly, why these new provisions are necessary to respond to incidents which have directly prevented police from apprehending offenders or laying charges in relation to criminal offences at public protests.

New section 6D(6) of the Bill safeguards the rights of persons with protected attributes who may be disadvantaged by this power by including a ‘reasonable excuse’ exception for failing to comply with a direction.

Accordingly, I am of the view that the right to equality is not limited by new section 6D and even if the power to direct a person to cease wearing a face covering would limit this right, it would only be limited to the extent that is reasonably necessary to ensure that police can effectively investigate criminal conduct at public protests by identifying alleged offenders and, in turn, promote public safety and protect persons from harms that flow from hateful views espoused at public protests under the cover of anonymity. Further, any limitations on a person’s right not to be discriminated against is confined to what is reasonably necessary by:

• narrowing the exercise of the direction power to circumstances where a police officer reasonably believes that a person wearing a face covering has committed or intends to commit an offence;

• limiting the scope of when a direction may be given to a person to when they are at a public protest, or within a reasonable time after the person has left the public protest or the protest is no longer occurring (e.g. because the protest has ended or moved on from the place where the person is at);

• including a broad ‘reasonable excuse’ exception including for genuine religious, cultural or medical purposes for failing to comply with the direction to ensure that legitimate reasons for wearing a face covering are not captured; and

• providing for a penalty of a fine of low magnitude.

I note further that the provision of a ‘reasonable excuse’ exception which includes where a person wears the face covering for a genuine religious, cultural or medical purpose is intended to ensure that any discriminatory impact is not more restrictive than necessary to fulfill the purpose of new section 6D. I therefore consider new section 6D compatible with the right to equality.

Prohibiting the public display of symbols of terrorist organisations

New section 41Q creates an offence for the public display of a symbol of a terrorist organisation. The new offence is accompanied by enforcement powers in new section 41R which allows police to direct the removal of a symbol from public display, new section 41S which permits seizure of a thing bearing the symbol of a terrorist organisation, and new section 41T, which provides for the issue of a search warrant by a magistrate in relation to the new offence. This new offence and the accompanying powers engage the right to equality. This is because of the propensity for terrorist organisations to use religious symbols and the potential for this offence provision to indirectly discriminate against religious communities who legitimately use these symbols, in particular, the Muslim community.

Section 41Q(2)(a) provides that a person does not commit an offence if the display of a symbol of a terrorist organisation was engaged in reasonably and in good faith for a genuine cultural or religious purpose. However, the purpose for the display will not always be immediately apparent to law enforcement and therefore has the potential to increase police interaction with the Muslim community and other Victorians that legitimately use these symbols to, for example, express their nationality or their faith.

However, any limitation on the right to equality under section 8(3) is reasonable and can be demonstrably justified to empower police to effectively prevent the harm and risk of incitement (including incitement to violence) caused by the display of these symbols. These provisions serve an important and pressing purpose. There have been reported incidents of symbols of terrorist organisations – such as the Hezbollah flag – being displayed during protests in Victoria. The symbols used by terrorist organisations represent racist, hateful and violent ideologies, and their public display may cause distress, fear and harm to members of targeted groups in Victoria. The public display of these symbols can also incite others, including those who are susceptible to radicalisation, to engage in acts of violence and vilification.

Further, section 41Q is narrow in scope, applying only to symbols of terrorist organisations that have been prescribed as terrorist organisations by the Commonwealth Government. To be prescribed as a terrorist organisation, the Commonwealth must be satisfied on reasonable grounds that an organisation is directly or indirectly engaged in, prepares, plans, assists in, or fosters the doing of, or advocates for the doing of, a terrorist act. The offence does not extend to symbols that closely resemble those used by terrorist organisations, in recognition of the fact that terrorist organisations have coopted and adapted legitimate religious symbols.

The enforcement powers under new section 41R and section 41S are also appropriately confined to circumstances where a police officer believes on reasonable grounds that an offence against new section 41Q is being committed. New section 41T is also confined by requiring a magistrate to be satisfied that there are reasonable grounds for believing that the new offence has been committed or will be committed within the next 72 hours. By limiting application of the offence provision to such instances, and thereby protecting the display of these symbols when done reasonably and in good faith to genuinely demonstrate a person’s nationality or faith, the legislation has adopted the least restrictive means reasonably available to achieve the purpose that any limitation on a person’s right against discrimination seeks to achieve.

Right to freedom of movement (section 12)

Stop and seizure of container or other thing

The Bill inserts new Division 1C, subdivision 3 which deals with the new offence of locking or securing a person to another person, thing or surface at public protests. New section 6G provides that a police officer may seize a thing or container of a substance if the officer believes on reasonable grounds that a person will imminently commit, or is committing, a ‘lock on’ offence against new section 6F using the thing or substance. A police officer is empowered under section 6G(4) to use reasonable force to seize the container or other thing where necessary. This may incidentally involve briefly stopping a person to execute the seizure, so as to limit their freedom of movement.

However, any limits on the right to freedom of movement are incidental and reasonably justified. New section 6G will only permit police to incidentally stop a person in order to request or seize (if they fail to comply with the request) a thing or container of a substance if the item is wholly or partially visible to the officer and the officer has formed the necessary reasonable belief that the item is being used or will be imminently used to commit the new lock on offence. The seizure power is only enlivened after the police officer has asked the person to hand the item over, and warned them that the item may be seized with reasonable force if they fail to comply. This approach ensures that the new power is not more restrictive than necessary to fulfill its purpose and is compatible with the right to freedom of movement.

Right to privacy (section 13)

As outlined above, section 13(a) of the Charter provides a right to privacy, stating that a person has the right not to have their ‘privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. Relevant to this discussion, section 13(a) contains internal limitations that permits lawful and non-arbitrary interferences with a person’s privacy. Interference with privacy will be arbitrary if it is capricious, unpredictable, unjust or unreasonable (Minogue v Thompson [2021] VSCA 358, [55]).

The right to privacy protects a person’s interest in the freedom of their personal and social sphere, which includes their right to individual identity and personal development, to establish and develop meaningful social relations and to physical and psychological integrity, including personal security and mental stability (Kracke v Mental Health Review Board (General) (2009) 29 VAR 1, [619]–[620]). Justice Bell has emphasised the ‘fundamental importance’ of the right to privacy in ensuring that ‘people can develop individually, socially and spiritually’ in their private sphere and thereby providing the foundation for participation in democratic society.

Addressing face coverings worn by agitators at public protests

New section 6D of the SOA may limit the right to privacy by empowering police to direct a person who is at a public protest, or within a reasonable time after the person has left a public protest or the protest is no longer occurring, to cease wearing their face covering if the police officer believes on reasonable grounds that the person committed or intends to commit an offence. The direction to remove the face covering may impact a person’s ability to participate in protest anonymously by requiring them to reveal their identity. This can interfere with certain facets of the broad right to privacy, including the right to maintain anonymity and control over one’s informational privacy, such as by not being identified when participating in public life.

The new power in section 6D is confined to persons that are reasonably believed to be engaging or that are intending to engage in criminal conduct and is not designed to apply to the wearing of face coverings generally. Moreover, section 6D(6) provides that a person may refuse to remove their face covering if they have a reasonable excuse, which includes, as discussed earlier, genuine religious, cultural or medical purposes. The exception in section 6D(6) ensures that the power to direct a person to cease wearing their face covering is sufficiently circumscribed and subject to adequate safeguards to ensure that any interference with the right to privacy is not arbitrary, unpredictable or unreasonable within the internal limitations contained under section 13(a) of the Charter.

Further, new section 6D is intended to ensure that police can effectively identify persons that use face coverings to shield their identity to commit criminal acts at public protests, which can have the potential to escalate peaceful protests into extreme and dangerous demonstrations. The police being able to effectively identify persons that engage in criminal behaviour at public protests supports the purposes of the Bill to prevent frustration of police functions, maintain public order and promote public safety. Alternative approaches such as directing a person to leave a protest area would not adequately prevent a person from returning to the protest area with their face covering on to engage in further criminal activity. This approach would also fail to address operational challenges experienced by Victoria Police in identifying and charging persons who have committed a criminal offence at a protest.

Empowering police to direct a person to cease wearing their face covering is therefore the most appropriate means to achieve the purpose of the Bill and ensures that any interference with privacy is not arbitrary, and thus compatible, with the right privacy.

Offence to lock on at public protests

As discussed above, new section 6F provides for the new offence of locking or securing one person to another person, thing or surface at a public protest.

To the extent the new offence would apply to acts likely to be protected by the right to privacy (such as persons engaging in private or employment-related activities where a protest is occurring), new section 6F provides a broad reasonable excuse exception to protect people that have a legitimate reason to use a thing or substance in a way that may present a risk to the public. For example, a tradesperson who uses a thing to attach themselves (such as a suspension device) to another thing to carry out necessary works in a public place, at a time that coincides with a public protest.

To the extent the offence provision interferes with privacy where the reasonable excuse exception would not apply, I consider it would not be arbitrary as the provision is limited in scope to targeting legitimate harms, being lock on acts at a public protest that are likely to cause injury to a person or present a serious risk to public safety. The need for the prosecution to prove that a lock on is ‘likely’ to cause injury to ‘another person’ or presents a ‘serious risk to public safety’ are high threshold conditions which further contain the scope of this provision. Therefore, I consider new section 6F to be compatible with the privacy right. I outline the justification for this provision in more detail under my consideration of its impact on freedom of expression.

Search warrants for lock on offences

New section 6H(1) of the SOA relates to search warrants and provides that section 465 of the Crimes Act 1958 (Crimes Act) applies to, and in respect of, an offence against section 6F as if it were an indictable offence. This provision empowers a police officer to apply for a warrant to search and seize from a building, place or a vehicle, property in relation to an offence under section 6F that has been committed or might be committed in the next 72 hours, and engages the right to privacy.

I consider these search powers to be compatible with section 13(a) of the Charter on the basis that they can only be exercised with prior authorisation in the form of a valid warrant issued by a magistrate under section 465 of the Crimes Act. Further the magistrate must be satisfied that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in a building, place or in a vehicle, something that is connected with the offence.

Accordingly, any limitation on a person’s right to privacy is lawful and does not arbitrarily or unreasonably limit the right to privacy. To the extent of any limitation, new section 6H is intended to support the purpose of the Bill to protect public safety by empowering police to proactively and pre-emptively remove things or containers of substances that may be used to lock on at public protests, and thereby prevent the dangerous use of these items. It will also allow police to investigate lock on offences that have already occurred.

Prohibiting the public display of symbols of terrorist organisations

New sections 41R, 41S and 41T may limit the right to privacy by empowering police to:

• direct a person to remove a symbol of a terrorist organisation from public display whether that display is occurring in public or on private property (section 41R)

• seize property bearing a symbol of a terrorist organisation without a warrant where a police officer reasonably believes the offence against section 41Q(1) is being committed (section 41S), and

• apply to the Magistrates’ Court for a warrant to search premises and seize property that displays a symbol of a terrorist organisation (section 41T).

These powers may engage the right to privacy, to the extent that interfering with a person’s display of a terrorist symbol intrudes into areas protected by the right, such as private property, the expression of personal identity or the integrity of a person’s personal or social sphere.

However, these powers are designed to limit the right to privacy only to the extent that is reasonably necessary to enforce the offence provision and to empower police to effectively prevent vilification, harm and the risk of incitement (including incitement to violence) caused by the display of these symbols. The Bill does this by:

• targeting symbols of terrorist organisations that are displayed in a public place, a non-Government school or a post-secondary education institution or in sight of a person who is in one of those places, which does not prevent a person from owning or displaying these symbols in private where they cannot be viewed by the public

• limiting the offence to symbols of terrorist organisations prescribed by the Commonwealth and not symbols which merely resemble those used by terrorist organisations

• providing a list of exceptions to the offence which ensure that the display of symbols of a terrorist organisation for legitimate reasons is protected, and

• excluding tattoos or other like processes that depict a symbol of a terrorist organisation to preserve rights to bodily integrity.

The power under new section 41S to seize a thing bearing a symbol of a terrorist organisation without a warrant is appropriately confined and may only be exercised where a police officer forms the requisite reasonable belief on reasonable grounds that an offence against new section 41Q(1) is being committed by that display. The Bill also clarifies that exercising the new seizure power without a warrant will not authorise a police officer to search a person.

Additionally, police officers can only obtain a warrant from the Magistrates’ Court to search and seize property in relation to the new offence if the magistrate is satisfied by evidence that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in a building, place or in a vehicle, something that is connected with the offence that has been committed or might be committed in the next 72 hours.

The approach adopted in the Bill ensures that the search powers are sufficiently circumscribed and subject to adequate safeguards to ensure that any interference with the right to privacy is not arbitrary, unpredictable or unreasonable. Given the above limits on the scope of the accompanying enforcement powers, and the harm that criminalising this act is seeking to prevent, any resulting interference with the right to privacy is considered to not be arbitrary in the circumstances and thus compatible with the Charter.

Right to freedom of thought, conscience, religion and belief (section 14) andright to culture (section 19)

As noted above, section 14 of the Charter protects the right to freedom of religion and belief. This includes the right to hold a religion or belief and to demonstrate one’s religion or belief in worship, observance, practice and teaching. The right promotes respect for different religious faiths and beliefs, including the right to not hold religious beliefs, as an integral part of an equal and democratic society based on human dignity.

While the right to have or adopt a religion and belief is a matter of individual thought and is absolute, the right to demonstrate religion and belief may impact others and may therefore be subject to reasonable limitations. The Victorian Court of Appeal has noted that the right to freedom of religion may need to be limited to protect the rights of others. The balancing of these rights does not involve privileging one right over the other, but a recognition that rights coexist.

The right to culture in section 19(1) ensures individuals, in community with others that share their background, can enjoy their culture, declare and practise their religion and use their language. It protects people of all cultural, religious, racial and linguistic backgrounds.

Addressing face coverings worn by agitators at public protests

New section 6D of the SOA has the potential of engaging both the right to freedom of religion and the right to culture if a person who wears a face covering for religious and/or cultural reasons is directed by a police officer to cease wearing their face covering. While the provision provides a reasonable excuse to not comply where the covering is worn reasonably and in good faith for a genuine religious or cultural purpose – I accept, given the close connection between face coverings and religious and cultural practices, that this provision has the potential to interfere with a person’s right to freedom of religion and their right to culture, or deter the wearing of a religious or cultural face covering at a place where a public protest is occurring. I also note that if prosecuted, the provision places an evidential onus on a person to establish the religious or cultural practice exception.

However, as I have already outlined in relation to the right to equality, this provision serves a pressing and important objective. There has been an increase in agitators using face coverings such as balaclavas at protests to anonymously engage in acts of vilification and other criminal conduct. The Bill addresses this conduct by empowering police to direct a person to cease wearing a face covering where they reasonably believe a person has committed or intends to commit an offence at a public protest. This will help deter people that are emboldened to vilify others and engage in other criminal acts under the guise of anonymity.

As discussed above, the requirement that a police officer reasonably believes that a person has committed or intends to commit a criminal offence ensures that any limitation on this right is only to the extent reasonably necessary to ensure that police can effectively investigate criminal conduct at public protests by identifying alleged offenders, promote public safety, protect people’s ability to exercise the right to engage in peaceful protest without fear of violence, and protect persons from harms that flow from espousing hateful views at public protests under the cover of anonymity. Further, by inserting a reasonable excuse for failing to comply with a direction, including where a face covering is being worn reasonably and in good faith for a genuine religious or cultural purpose, the Bill adopts the least restrictive means reasonably available to achieve the purpose that section 6D seeks to achieve.

Prohibiting the public display of symbols of terrorist organisations

By making it an offence to intentionally display a symbol of a terrorist organisation in the places specified in section 41Q(1)(d), this provision may engage the right to freedom of religion and cultural rights – particularly of the Muslim community – if the terrorist symbol is also a religious symbol that has been coopted by a terrorist organisation (for example the ‘Shahada’, being the Islamic declaration of faith). Although section 41Q(2)(a) provides that a person does not commit an offence if the display of the symbol was engaged in reasonably and in good faith for a genuine cultural or religious purpose, the new offence may, in instances where police under section 41R(1) have formed a belief that a person is committing an offence against section 41Q(1) and directs the person to remove the symbol from display, or under section 41S, seizes the symbol, limit the person’s right to freedom of religion and/or their cultural rights.

However, any limitations on the rights protected under sections 14 and 19 of the Charter are consistent with the purpose of the Bill to protect people from harm caused by the public display of symbols of terrorist organisations and the risk of inciting others to engage in violence and vilification. As I outlined above, the offence is narrow in scope. It only applies to symbols of terrorist organisations prescribed by the Commonwealth, and it does not capture symbols which only closely resemble those used by terrorist organisations. The exceptions in the Bill for religious and cultural purposes are also intended to ensure that any limitation placed on religious or cultural rights is the least restrictive possible. Together, these ensure the offence does not capture the legitimate use of symbols. For completeness, I note the exception places an evidential onus on an accused, and I will discuss the appropriateness of this below under criminal process rights.

On balance, I consider this approach to be the most appropriate option to achieve the purpose of the Bill and is reasonable and justified in accordance with section 7(2) of the Charter.

Protecting religious assembly

The Bill substitutes existing section 21 of the SOA which deals with the disturbance of religious assembly. New section 21 provides that a person must not intentionally, without lawful excuse, engage in conduct that disturbs a meeting of persons assembled for religious worship. The Bill inserts new sections 21A, 21B and 21C into the SOA. These provisions make it an offence to: assault a person arriving at, attending or leaving a place of religious worship; engage in conduct to intimidate, menace or harass persons arriving at, attending or leaving a religious assembly; and, engage in conduct to hinder or obstruct persons arriving at, attending or leaving a religious assembly. A defence of ‘lawful excuse’ is provided for in each of the new sections.

By protecting people from being assaulted, disturbed, obstructed, hindered, intimidated, menaced or harassed when congregating with others to engage in religious worship, the Bill promotes the right to freedom of religion, particularly, section 14(2) of the Charter which provides that a person must not be coerced or restrained in a way that limits their freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

In terms of the issue of competing religious beliefs, I note that section 14 of the Charter does not protect an individual’s right to demonstrate their belief by restraining a religious gathering of others. For completeness, to the extent that these new provisions may be found to restrict the expression of competing religious beliefs, such as conduct that criticises another faith during a religious worship service, any such limit is intentional and justified under s 7(2) of the Charter to achieve the purpose of safeguarding lawful religious gatherings. It will not be a lawful excuse to contravene this provision on the grounds of expressing a religious, or other, belief. The limitation is narrow, targeted and proportionate. It applies only to conduct that is directed at persons attending a religious assembly, or conduct that is intended to intimidate, menace or harass a person attending a religious assembly or obstruct their attendance (meaning it does not target conduct that occurs merely in proximity to a religious gathering). It provides for a lawful excuse defence. The limitation is justified and a proportionate response to disturbances of religious gatherings that have menaced and intimidated attendees and resulted in the mass evacuation of a religious congregation, impacting the freedom of Victorians to gather and practice their faith in peace. Accordingly, I consider these amendments demonstrably justified under section 7(2) of the Charter to achieve the purpose of safeguarding lawful religious gatherings.

Right to freedom of expression (section 15)

As noted above, section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds through a variety of mediums.

It is somewhat unsettled as to whether there are any implied limits on what constitutes protected expression in the Charter. In comparative jurisprudence, the right has been found to protect criticism and protest as well as offensive, disturbing or shocking information or ideas, rather than merely favourable or popular expressions (see, e.g., Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123. However, Victorian Courts have observed that the term ‘expression’ in section 15 of the Charter should not be regarded as unqualified or absolute, and what is protected expression must be informed by public policy considerations inherent in the nature of a free and democratic society (Magee v Delaney (2012) 39 VR 50, [86]).

Irrespective of the debate about the definitional limits of expression, section 15(3) makes clear that the right to freedom of expression as a whole is conditional and qualified. Section 15(3) contains an internal limitation which provides that the right may be subject to lawful restrictions reasonable and necessary to respect the rights and reputation of other persons, or for the protection of national security, public order, public health or public morality. Relevantly, the protection of public order means, in broad terms, giving effect to rights or obligations that facilitate the proper functioning of the rule of law, including measures for ‘peace and good order, public safety and prevention of disorder and crime’ (Magee v Delaney (2012) 39 VR 50, [151].

Addressing face coverings worn by agitators at public protests

It is acknowledged that the wearing of a face covering may itself serve as a symbolic form of political expression and may facilitate political expression by allowing a person to protest anonymously while protecting their privacy.

New section 6D of the SOA therefore engages the right to freedom of expression to the extent that it empowers police to direct a person that the police officer reasonably believes has committed, or is intending to commit an offence, to cease wearing their face covering. However, new section 6D does not provide an outright ban on face coverings at protests nor provide police the power to direct the removal of face coverings in the absence of a reasonable belief that a person has committed, or intends to commit, an offence. For these reasons I am of the view that the powers provided under new section 6D, which are designed to target persons using face coverings to criminally vilify others or engage in other criminal conduct, do not constitute a limitation on the freedom of expression. This is because it does not seek to restrict any form of expression protected by s 15 (as it is directed towards expression that is facilitating criminal conduct).

Alternatively, if it is considered to restrict protected expression, I consider that new section 6D falls within the internal limit of s 15(3) as reasonable and necessary to protect the right of others as well as uphold public order.

This power is necessary to protect public order as it will:

• assist police to identify those engaging in criminal activities at protests, prevent the frustration of police functions and facilitate law enforcement at public protests and prevent the escalation of peaceful protests into dangerous and violent demonstrations;

• promote public safety and prevent violence at public demonstrations, thereby protecting the ability of others to engage in political protest without fear of violence;

• deter agitators at public protests that may be emboldened to commit criminal conduct because their identity is concealed by face coverings and protect people from harms that occur under the cover of anonymity; and

• address existing operational challenges currently experienced by Victoria Police (which I discuss further below).

The power is reasonable as:

• it is only exercisable by police in relation to a place where a public protest is occurring, or if the person has left that place or the protest is no longer occurring, no more than a reasonable amount of time afterwards;

• it is preconditioned on a police officer having reasonable belief that the person committed or intends to commit an offence while the protest is or was occurring;

• the offence of failing to comply is only enlivened after a warning is given;

• the Bill provides a reasonable excuse exception, including for genuine religious, cultural or medical purposes, for failing to comply with a direction to remove a face covering; and

• the penalty is limited to a fine of low magnitude.

I further note that Victorian legislation already targets the wearing of face coverings in certain circumstances. For example, section 10KA of the Control of Weapons Act 1990 empowers a police officer to direct a person wearing a face covering to leave a designated area if the person refuses to remove the covering when requested, and the officer ‘reasonably believes the person is using the face covering primarily to conceal the person’s identity or to protect the person from the effects of crowd-controlling substances’. As this existing provision only provides police with the power to issue an enforceable direction to a person to leave a designated area (following a request to cease wearing a face covering), new section 6D of the SOA will address the operational challenges currently experienced by Victoria Police in identifying and charging persons who are wearing face coverings to engage in criminal conduct at a public protest. I outline a specific incident of such operational challenges arising from protest action at the Land Forces Exposition, in my discussion below in relation to the right to freedom of assembly. Moreover, while protests may occur in a designated area, this is not always the case, and the utility of the designated area scheme is limited where protests are spontaneous and unplanned.

Other powers such as section 456AA of the Crimes Act allow a police officer to require that a person state their name and address if the officer believes on reasonable grounds that the person has committed or is about to commit an offence or may otherwise be able to assist in the investigation of an indictable offence. However, this does not achieve the same deterrent effect that the direction power in new section 6D will have on protestors that wear a face covering to engage in criminal offending.

The approach in new section 6D is therefore the most appropriate option to achieve the purpose of the Bill, including that it addresses existing issues with enforcement of the law where less restrictive means have been ineffective.

Accordingly, for the reasons above, any restriction on the right to freedom of expression caused by new section 6D is lawful and reasonably necessary to protect the rights of others and public order.

Offence to lock on at public protests

New section 6F of the SOA may limit the right to freedom of expression by restricting the ability of people to freely express their views or ideologies by locking or securing any person, including themselves, at a public protest using a thing or substance.

The powers in new sections 6G and 6H may also limit the right to freedom of expression by enabling police to pre-emptively remove items from protesters that would otherwise be used to express their views and opinions in public.

While it is an open question as to whether a ‘lock on’ action that is likely to cause injury to another person, or that presents a serious risk to public safety, would constitute protected expression within the scope of section 15, to the extent that it does – accepting that such actions are likely to be done in the context of an expression of political views – I consider any limitations imposed on this right by new section 6F to be reasonable and necessary to protect the safety of others and public order. In this respect, these provisions also promote the ability of people to safely attend a public protest and express their views without the risk of harm that may arise from the dangerous use of things or substances to lock on, or their subsequent removal in close proximity to others at the protest.

Moreover, new section 6F does not impose an outright ban on the use of lock on devices but only a prohibition on their use where they are likely to cause injury to another person or present a serious risk to public safety. That is, new section 6F is designed to not target disruptive peaceful protestors where the use or removal of a thing or substance being used to lock on does not present a risk of injury to another person or a serious risk to public safety. For example, it is not intended that new section 6F will capture conduct that is peaceful but merely disruptive, inconvenient or results in economic loss, such as the actions of women’s rights pioneer Zelda D’Aprano who chained herself to the Commonwealth Bank Building in 1969 to fight for equal pay. The scope has been carefully tailored to not target the risk that a protestor’s action may pose for themselves alone. The provision also provides a reasonable excuse exception.

It is acknowledged that protestors who lock on may already be subject to existing offences, such as obstruction, trespass or common law offences such as public nuisance depending on the circumstances. However, the new offence is specifically tailored to target the use of things or substances to lock on, where doing so may endanger the safety of the community. The approach adopted in the new lock on provisions is therefore the most appropriate to achieve the purpose of the Bill and for the reasons above, any restriction on the right to freedom of expression is, in my view, lawful and reasonably necessary for the protection of public order in accordance with section 15(3) of the Charter. I am therefore of the view that new section 6F does not limit the right to freedom of expression in section 15 of the Charter.

Seizure of lock on substances or other things

The seizure powers in new sections 6G and 6H are subject to appropriate limitations and may only be exercised where a police officer reasonably believes that an offence against new section 6F is being or will imminently be committed or where a magistrate is otherwise satisfied that the preconditions for a warrant to search and seize property in relation to the offence has been satisfied. To the extent that the seizure powers affect freedom of expression, I consider them reasonable and necessary in order to operationalise and enforce new section 6F at public protests. For dangerous lock on activities to be effectively targeted and deterred, it is necessary that police have proactive tools to prevent the commission or continuation of this offence.

Prohibiting the public display of symbols of terrorist organisations

New section 41Q of the SOA may engage the right to freedom of expression by restricting a person’s ability to communicate or impart information and ideas through the public display of a symbol of a terrorist organisation.

However, the new offence provision is carefully tailored with a number of exceptions and conditions, such that it only targets the display of symbols that cause harm to members of the community and are capable of inciting others to engage in vilification and violence.

As above, the offence is limited to symbols of terrorist organisations that have been prescribed by the Commonwealth and will not apply more broadly to symbols that closely resemble a symbol of a terrorist organisation. Further, the application of the offence does not extend to circumstances where a terrorist organisation symbol is being displayed for a legitimate reason set out in section 41Q(2)–(5), such as for genuine academic, artistic, education or scientific, cultural or religious purposes.

Additionally, persons who support the ideology communicated through these symbols will remain free to express their opinions in public via other means, subject to existing laws, and may continue to own or display these symbols in private. Further, the offence will not prohibit the display of terrorist organisation symbols by means of tattooing or other like processes (such as branding), even in instances where the tattoo is visible on a person’s body while in public.

I note that this provision could be less restrictive by including an additional requirement similar to section 80.2HA of the Commonwealth Criminal Code that the symbol was displayed in a way that a reasonable person would consider involves spreading ideas based on racial superiority or hatred, advocates hatred of a person, constitutes incitement or is likely to offend, insult or intimidate a person because of their protected attribute.

However, I do not consider this less restrictive option to be reasonably available as, in my view, it would not adequately respond to the existing operational challenges faced by Victoria Police, namely that proving these circumstance elements beyond reasonable doubt in a dynamic protest environment is difficult in the absence of direct evidence. The proposed penalty for an offence against new section 41Q is also substantially lower than the penalty for a contravention of section 80.2HA of the Criminal Code. This further ensures that a lower threshold for the proposed offence is proportionate to the severity of the conduct.

The approach taken in this Bill is therefore the least restrictive means reasonably available to achieve the purpose of the Bill and, for the reasons outlined above, any restriction on the right to freedom of expression are, in my view, lawful and reasonably necessary to protect people’s right to not be vilified or subjected to violence, and to maintain public order in accordance with section 15(3). I am therefore of the view that new section 41Q does not limit the right to freedom of expression in section 15 of the Charter.

Protecting religious assembly

Substituted section 21 and new sections 21A, 21B and 21C of the SOA, particularly the new offence at section 21B prohibiting conduct that menaces, intimidates or harasses persons attending religious worship meetings, may impose limitations on the way people communicate or impart certain information and ideas near religious assemblies and therefore engages the right to freedom of expression.

As I have discussed above, the case law does not provide a definitive consensus on the breadth of expressive conduct that is protected by the right to freedom of expression, and it would be strongly arguable that conduct capable of reaching the legislative threshold of these offences would not constitute protected expression. The purpose of substituted section 21 and new sections 21A, 21B and 21C is to provide further protection for persons who assemble for religious worship, which is a cornerstone of a free and democratic society.

To any extent that the new offence provisions may restrict the right to freedom of expression, these restrictions are lawful, narrow and reasonably necessary to promote the rights of people to practice their faith and congregate with others to engage in religious assembly without disturbance, hindrance or obstruction, and free from fear of assault, intimidation, menacing behaviour or harassment. I am therefore of the view that substituted section 21 and new sections 21A, 21B and 21C do not limit the right to freedom of expression in section 15 of the Charter, for the same reasons advanced above for why these provisions are compatible with the right to freedom of religion.

Right to peaceful assembly and freedom of association (section 16)

Section 16(1) of the Charter protects every person’s right to peaceful assembly. This right is one of the cornerstones of a free and democratic society, and is considered essential to facilitate public expression of a person’s views and opinions. However, it will not protect assemblies if they are violent or forceful, such as riots and affrays, and reasonable restrictions may be imposed on assemblies to prevent a breach of the peace.

Addressing face coverings worn by agitators at public protests

While the new provisions do not specifically seek to prevent public assembly, I accept that powers which regulate the conduct of persons engaging in public protest, and empower police to take certain actions against persons engaged in specified behaviour, may incidentally impact on the willingness of persons to gather in public and express their views. In other words, restrictions on protest behaviour are capable of having a chilling effect on the freedom to assemble. I accept that the United Nations Human Rights Committee has commented that the wearing of face coverings ‘may form part of the expressive element of a peaceful assembly’ (United Nations Human Rights Committee, General Comment No. 37 on the Right of Peaceful Assembly (Article 21), 129th Sess, UN Doc CCPR/C/GC/37 (17 September 2020). The UN Human Rights Committee also acknowledged that limitations may be placed on the ability of people to anonymously participate at protest where their conduct presents reasonable grounds for arrest.

As clearly set out in new section 6C, the underlying objectives of these powers are, relevantly, to maintain the fundamental right to engage in peaceful protest, to protect the ability of persons to exercise that right without fear of violence, to promote public safety and to prevent violence at public protests, and protect persons from harms that arise from the commission of offences involving conduct that is likely to incite hatred, contempt, revulsion or ridicule. The power bestowed on police in new section 6D will promote the objectives in new section 6C by enabling police to maintain public order, ensure public safety and to protect people from harms that occur under the guise of anonymity.

Importantly, new section 6D of the SOA does not prevent persons wearing face coverings from gathering in peaceful assembly to partake in a public protest. As I have outlined above, the power of the police to, in accordance with new section 6D, direct a person who is wearing a face covering to cease wearing that face covering is limited and does not compel a person who has a reasonable excuse for wearing a face covering, including for a genuine religious, cultural or medical purposes, to comply with the direction to remove their face covering. Additionally, new section 6D does not empower police to direct a person wearing a face covering to leave the area. However, this does not prevent police from exercising their existing powers of arrest to remove a person from the area if the person is committing an offence and apprehension is necessary. It follows that I do not consider new section 6D to engage the right to peaceful assembly.

By targeting persons that are reasonably believed by police to either be committing or intending to commit an offence at a public protest, the Bill seeks to ensure that police can effectively investigate criminal conduct at public protests by identifying alleged offenders. This will likely have the effect of preventing persons emboldened by their anonymity from engaging in conduct that may escalate peaceful protests into violent or extreme demonstrations. For example, during the Land Forces Exposition in Melbourne in September 2024, many masked protestors carried out unlawful acts including throwing faeces, acid and other projectiles at police, setting rubbish bins on fire and damaging property of surrounding businesses. Victoria Police reported that the wearing of masks during this event hampered police efforts to protect those attending the event and restore public order and to identify and charge persons who behaved criminally. Victoria Police also reported that extensive work had to be undertaken after the event to identify and charge individuals who had committed offences during the protest but who police were unable to arrest at the time due to operational or safety reasons.

New section 6D expressly addresses these challenges by empowering police to identify persons who are reasonably believed to be engaging in, or intending to engage in, criminal conduct at a public protest, supporting both the immediate police response and any subsequent investigation. Allowing police to direct a person within a reasonable time after the person has left the protest or the protest is no longer occurring also allows police to identify a person where it was not operationally safe for them to do so at the time the person was believed to have committed a criminal offence at the protest.

Additionally, the narrow scope of the power means that individuals who are peacefully protesting can continue to do so while wearing face coverings. In this respect, the new power protects the rights of all other protestors to demonstrate peacefully.

This approach ensures that new section 6D does not provide further restrictions than what is necessary to fulfill the purpose of the Bill, and if the right under section 16 of the Charter were considered to be engaged and limited, it would be reasonable and justified in accordance with section 7(2) of the Charter.

Offence to lock on at public protests

As above, while new section 6F of the SOA does not directly prevent peaceful assembly, it may indirectly interfere with the right by restricting the way in which people may gather in public to express their views and opinions or impact the willingness of persons to exercise such rights.

The express objectives of new section 6F, outlined in new section 6E, are to maintain the fundamental right to engage in peaceful protest, to protect the ability of persons to exercise that right without risk of injury, and to promote public safety and prevent injury and serious risks to public safety at public protests.

While it may be open to argue that the conduct prohibited by this provision – that is, conduct likely to cause injury to another person or pose a serious risk to public safety – would come within the ambit of ‘peaceful assembly’, to the extent that it does, I consider any limitation on peaceful assembly to be necessary in order to assist police to effectively respond to conduct that may injure others, including bystanders, other protestors or emergency workers, and prevent conduct that presents serious risks to public safety. Such a limitation would also protect the right of other people to peacefully protest by preventing dangerous conduct that risks their personal safety and the safety of the public.

It is acknowledged that an alternative formulation of the offence could be restricted to actual harm being experienced by individuals or the community. However, such formulation of the offence would require harm to be experienced and would not enable police to proactively intervene and prevent harm and injury to the community. Alternatively, the offence could be restricted to the use of certain lock on devices, but this approach may be too narrow to ensure all harms to the community are prevented. Therefore, I am of the view that the adopted approach is the least restrictive means to address the dangerous use of things or substances to lock on at public protests.

As noted, new section 6F is confined to where the use or removal of a thing or substance used to lock on at a public protest poses a risk of injury to others who are not locked on or secured or a serious risk to public safety. It is not intended to prohibit the ability of protestors to engage peacefully in conduct that merely causes disruption or temporary inconvenience. Additionally, the provision contains a reasonable excuse exception so that people who have a legitimate reason to use these items will not commit an offence.

This approach ensures that the Bill does not provide further restrictions than what is necessary to fulfill its purpose. To the extent that there are direct or indirect limits on this right, I consider them to be reasonable and justified in accordance with section 7(2) of the Charter.

Prohibiting the public display of symbols of terrorist organisations

In a similar vein, new section 41Q of the SOA could be said to interfere with, or chill the willingness of, people who wish to display a symbol of a terrorist organisation to express their views and opinions in public, including at protests.

As above, the new offence is designed to only target the public display of symbols of a terrorist organisation prescribed by the Commonwealth and will not apply more broadly to symbols that closely resemble a symbol of a terrorist organisation. As noted, the offence is also subject to a range of exceptions where a symbol of a terrorist organisation may be displayed for legitimate reasons.

Individuals that support the ideology communicated by these symbols may still gather to protest or express their views publicly by other means, subject to other laws.

This approach ensures the Bill does not provide further restrictions than what is necessary to fulfill its purpose and is reasonable and justified in accordance with section 7(2) of the Charter.

Protecting religious assembly

The offences created in Part 10, Division 3 of the Bill, particularly new section 21B of the SOA which prohibits conduct intended to intimidate, menace or harass persons arriving at, attending or leaving religious worship, may impose limitations on the right to peaceful assembly by restricting the ways in which people publicly gather to express views or opinions near religious assemblies.

To the extent that new sections 21, 21A, 21B and 21C limit the right in section 16 of the Charter, the limitation is necessary to facilitate the right to freedom of religion and belief by protecting a person’s right to gather, pray and practice their faith at religious meetings without being disturbed, hindered or obstructed, and free from the fear of assault, intimidation, menacing behaviour or harassment.

The new offences are not intended to prevent people from participating in peaceful political protests or demonstrations. For example, the new offences will not affect peaceful assemblies at places where religious worship takes place, such as the practice of gathering to tie ribbons outside churches to show support for survivors of rape and sexual assault.

The Bill provides for a defence of lawful excuse to these offences, which provides courts with the necessary discretion to determine whether the accused person had a valid excuse supported by law for their actions. An example of a lawful excuse could include construction workers who hinder access to a religious worship meeting to ensure public safety while carrying out works.

This approach ensures the Bill does not provide further restrictions than what is necessary to fulfill its purpose and is reasonable and justified in accordance with section 7(2) of the Charter.

Right to property (section 20)

Addressing face coverings worn by agitators at public protests

New section 6D of the SOA engages the right to property by empowering a police officer to direct a person to cease wearing their face covering if the police officer reasonably believes that the person has committed or intends to commit an offence at a public protest. A direction may also be given within a reasonable time after the person has left the public protest or the protest is no longer occurring (e.g. because the protest has ended or moved on from the place where the person is at).

The right to property characteristically entails rights of use, control, transfer and exclusivity. Therefore, placing restrictions on the use of face coverings arguably deprive a person of their property to the extent that the restrictions interfere with a person’s enjoyment of their face covering and restricts how a person may use their face coverings.

However, any interference with a person’s property right that results from new section 6D, is authorised by this provision which sets out a clear and accessible framework on the use of face coverings at public protests. It will not function arbitrarily for the same detailed reasons I have advanced above regarding the proportionality of the provision with regards to its limited scope, necessary purpose and broadly framed ‘reasonable excuse’ exception. As such, I consider that the right to property is not limited by new section 6D.

Offence to lock on at public protests

New section 6G of the SOA engages the right to property by empowering a police officer to seize a thing or container of a substance without a warrant where the police officer reasonably believes that the item is being used or will be imminently used to commit an offence against new section 6F. New section 6H enables police to apply to the Magistrates’ Court for a warrant to search and seize property that is in connection to, or evidence of commissioning the offence against new section 6F.

The above powers to seize things or containers of substances from protesters that may be used to lock on at public protests may limit the right to property. That being so, I consider that deprivation of a person’s property pursuant to the seizure authorisations in new sections 6G and 6H would be in accordance with law because the legal authorisation for the deprivation is publicly accessible, and governed by a clear and accessible process.

Moreover, the seizure power in new section 6G is a rational means to prevent offences under new section 6F and to bring an end to offences already committed, and thereby achieve the purposes of preventing injury to other persons and protecting public safety. The power in new section 6G is appropriately confined and may only be exercised where a police officer forms the requisite reasonable belief and the thing or container of substance is wholly or partially visible to the officer. The Bill also clarifies that exercising the seizure power in section 6G will not authorise a police officer to search a person.

As it relates to new section 6H, police can only obtain a warrant from the Magistrates’ Court to search and seize property if the magistrate is satisfied by evidence that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in a building, place or in a vehicle, something that is connected with the offence that has been committed or might be committed in the next 72 hours.

As such, I consider that the right to property is not limited by new sections 6G and 6H of the SOA.

Prohibiting the public display of terrorist organisation symbols

New section 41S of the SOA may limit the right to property by empowering a police officer to seize property bearing the symbol of a terrorist organisation without a warrant where the police officer reasonably believes the offence of displaying a symbol of a terrorist organisation is being committed. Similarly, new section 41T, which enables police to apply to the Magistrates’ Court for a warrant to search premises and seize property that displays a symbol of a terrorist organisation or evidence of the commission of an offence of displaying a symbol of a terrorist organisation, may limit the right to property.

However, I consider that deprivation of a person’s property pursuant to the seizure authorisations in new sections 41S and 41T would be in accordance with law because the legal authorisation for the deprivation is publicly accessible, and governed by a clear and accessible process.

The power in new section 41S to seize an item bearing a symbol of a terrorist organisation may only be exercised where a police officer forms the requisite reasonable belief that the display constitutes an offence against section 41Q and the item bearing the symbol of a terrorist organisation is displayed in a way or place prohibited in section 41Q. The Bill also clarifies that exercising the seizure power in section 41S will not authorise a police officer to search a person.

As it relates to new section 41T, police may only obtain a warrant from the Magistrates’ Court to search and seize property in relation to the new offence if the magistrate is satisfied, by evidence, that there are reasonable grounds to believe that there is, or will be within the next 72 hours, in a building, place or in a vehicle, something that is connected with the offence that has been committed or might be committed in the next 72 hours.

Victoria Police has advised that without the power to seize items, the practical enforcement of new section 41Q would likely be undermined. In particular, there would be no practical and operationally workable means of preventing a person who police find publicly displaying a symbol of a terrorist organisation from continuing to display that symbol after police leave. I therefore consider the seizure powers to be necessary in order to achieve the purpose of section 41N and give Victoria Police adequate powers to respond to, and where necessary, remove the symbols of terrorist organisations from display when they appear in dynamic environments, such as protests.

As such, I consider that the right to property is not limited by new sections 41S and 41T of the SOA.

Forfeiture of property seized under Part 10

The Bill inserts new section 60B in the SOA which deals with when certain things are seized under new sections 6G and 41S, or under a search warrant issued under s 465 of the Crimes Act as applied by sections 6H and 41T, become eligible to be collected, and by whom. New section 60D deals with the forfeiture of things seized under the above provisions when not collected. New section 60E deals with the forfeiture of things seized under the above provisions for other reasons. Section 60E(2) provides that if a court finds a person guilty, or not guilty by reason of mental impairment, of an offence against sections 6F, 41Q(1) or 41R(5), the seized thing is forfeited to the Crown unless the court orders otherwise.

The forfeiture powers are clearly prescribed in sections 60D and 60E and do not operate arbitrarily. Although forfeiture of seized things not collected within a specified period operates automatically by force of law, the power to forfeit items not collected is subject to notice requirements set out in sections 60C and 60D.

The power to forfeit seized items where a person is found guilty, or not guilty by reason of mental impairment of an offence in respect of the seized thing, supports the purpose of the Bill by preventing persons from using seized property to recommit an offence against sections 6F or 41Q(1) and further, to deter others from engaging in such conduct.

Accordingly, any limitation on property rights caused by the new forfeiture powers under new sections 60D and 60E are appropriately confined and are reasonable and demonstrably justified in accordance with section 7(2) of the Charter.

Right to security of person (section 21)

Section 21 of the Charter protects the right to liberty and security of a person. Under international law, the right to security is recognised as separate to the right to liberty, and applies to persons regardless of whether they have been deprived of liberty. That is, it imposes a positive obligation on public authorities to take reasonable and appropriate measures to protect the security of persons under their jurisdiction irrespective of whether their right to liberty has been engaged and limited. In Victoria, the courts have generally dealt with the right in section 21(1) as a single right to ‘liberty and security’. However, as the scope of the right to security, separate from the right to liberty, has not been directly considered by the courts, it remains unclear.

Offence to lock on at public protests

New section 6G(4) and (5) provides that police may use reasonable force to seize a thing. If a broad application was adopted in relation to section 21(1) of the Charter, new section 6G(4) and (5) of the SOA may engage the right to security of a person insofar as it enables a police officer to use reasonable force to seize a thing, including where a person is locked on, and where doing so would involve breaking the thing. This will naturally bring into existence a risk of injury to the person who is locked on or secured. However, as the use of force must be ‘reasonable’ and would be confined to circumstances where the police officer has a reasonable belief that there is a risk of injury being caused to another person, or there is a serious risk to public safety, and a police officer must first ask the person to hand the thing or container over (including where this may require breaking, unlocking or otherwise modifying or operating the thing), and issue a warning that reasonable force may be used to seize the thing or container, it is my view that any limitation on the right to security is demonstrably justified under section 7(2) of the Charter.

Prohibiting the public display of terrorist organisation symbols

If a broad application of section 21 was adopted, new section 41S(2) of the SOA may engage the right to security of a person by empowering police to use reasonable force when seizing things displaying a symbol of a terrorist organisation.

However, the use of force exercised by a police officer during seizure must be reasonable and is conditional on the police officer having first requested that the person hand over the thing displaying the symbol of a terrorist organisation and having warned the person that reasonable force may be used to effect seizure. It is my view that any limitation on the right to security is demonstrably justified under section 7(2) of the Charter.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Bill introduces a number of reasonable excuse exceptions in relation to the following new offences:

• contravening a police direction to cease wearing a face covering worn at a public protest (new section 6D);

• locking or securing one person to another person, thing or surface at a public protest (new section 6F); and

• contravening a police direction to remove a terrorist organisation symbol from public display (new section 41R).

As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘reasonable excuse’ exception/defence to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse.

In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidential onus falls short of imposing any burden of persuasion on an accused. Once the accused has pointed to evidence of a reasonable excuse, the burden shifts back to the prosecution who must prove the elements of the offence. Additionally, the subject matter to which these excuse or exception provisions apply are matters within the knowledge of the accused and in regards to which the accused is best placed to lead evidence. Requiring the prosecution to prove an absence of such excuse in these circumstances would be too onerous and lead to these offence provisions being unenforceable.

Accordingly, I do not consider that the above ‘reasonable excuse’ offence provisions in the Bill limit the right to be presumed innocent in section 25(1) of the Charter.

Enver Erdogan

Minister for Casino, Gaming and Liquor Regulation

Minister for Corrections

Minister for Youth Justice

 Lizzie BLANDTHORN (Western Metropolitan – Minister for Children, Minister for Disability) (22:18): I move:

That the bill be now read a second time.

Ordered that second-reading speech be incorporated into Hansard:

The Victorian Government is committed to continuing to address concerns about community safety and social cohesion, and improving police and justice system powers and processes for the benefit of all Victorians.

The Justice Legislation Amendment (Police and Other Matters) Bill 2025 demonstrates this commitment with the introduction of a broad range of reforms under the Police and Attorney-General portfolios.

Specifically, this suite of reforms has four important objectives.

Firstly, it is aimed at stamping out dangerous and hateful conduct at public protests, and protecting the rights of Victorians to engage in religious worship without fear.

Secondly, it introduces amendments to increase community safety, by improving the existing powers of police to stop and search people for weapons, and by introducing new offences relating to new kinds of weapons like 3D printed guns.

Thirdly, it makes changes in the interests of effective and efficient policing by streamlining cross-border policing, expanding the duties our PSOs can perform, and reducing the need for police to retain all seized drugs and drug-related equipment in their entirety before trials.

Fourthly, this Bill provides for a range of broader justice system reforms and technical amendments.

I will speak now to the amendments that fall within each of these four categories.

Addressing extreme, dangerous and hateful protest activity and protecting religious worship

The Bill fulfils a Victorian Government commitment to introduce tough new laws to prevent extreme, dangerous and hateful conduct at public protests and strengthen protections for religious worship.

We have recently seen shocking examples of racist and hateful demonstrations by far-right extremists who hide behind masks to generate fear and engage in deeply abhorrent behaviour. There is no place for such hatred in our state. While recent protests in Victoria have largely been peaceful, incidents of violent and disruptive conduct by some protestors have highlighted the need for new laws to be introduced to strengthen powers available to police in protests. We have seen examples of the actions and behaviours of a small group of agitators jeopardising public safety, endangering the community and causing individuals to feel unsafe. These reforms will give police powers to respond to this unacceptable conduct.

The government recognises that the right to protest is a critical part of our democracy and supports the rights of Victorians to engage in peaceful protest. However, unsafe behaviours that endanger our community cannot and will not be tolerated.

The Bill amends the Summary Offences Act 1966 to empower Victoria Police to issue a direction to a person wearing a face covering in certain circumstances, introduce a new offence to lock-on at a public protest, and prohibit the public display of symbols of terrorist organisations.

These new laws have been developed in consultation with a range of stakeholders, including key religious, legal and human rights organisations. We have listened to their important feedback to ensure these laws strike the right balance between upholding the rights of Victorians to engage in peaceful protest, whilst ensuring that Victoria Police has the power to proactively prevent risks to public safety before they arise.

The government is committed to protecting the right of all Victorians to gather and pray, free from fear, harassment and intimidation. That is why, in addition to measures focused on public protests, the Bill strengthens the existing offence for disturbing religious worship in the Summary Offences Act 1966 to provide greater protections to people attending religious assemblies.

New powers to address face coverings in relation to public protests

The Bill introduces new powers for Victoria Police to unmask people who wear face coverings while engaging in criminal conduct at protests.

The reform responds to an increase in right wing extremists and other agitators using face coverings at protests to conceal their identities while engaging in criminal conduct. This includes the use of balaclavas by neo-Nazi groups during recent demonstrations that have emboldened these agitators to anonymously participate in acts of hatred and intimidation and make it difficult for police to identify them.

The new powers will enable police to better maintain public order, ensure public safety by taking action before peaceful protests escalate into violent or extreme demonstrations and to protect people from harm that occurs under the guise of anonymity.

In combination with the government’s recently commenced anti-vilification offences, this Bill will enable police to unmask and identify those who attend a protest anonymously to incite hatred, and ensure they are accountable for their behaviour.

Police know all about the neo-Nazis and others who have a proven track record of anonymously attending protests to spread hate and threaten certain groups, simply for being who they are. Now, police will be able to engage those individuals, who cowardly hide behind masks, as soon as they attend a public protest, and have them show their face.

The Bill empowers a police officer to direct a person to cease wearing their face covering where the police officer reasonably believes that the person has committed or intends to commit an offence at a public protest. The direction can be given while a person is at a public protest or within a reasonable time after the person leaves the public protest or after the public protest has ended. This approach gives police the flexibility to approach protestors that have been observed as having committed or intending to commit an offence when it is operationally safe for them to do so.

The Bill provides that if a person fails to comply with a direction to cease wearing their face covering without a reasonable excuse, that person commits an offence punishable by 5 penalty units. Without limiting the scope of what a reasonable excuse may be, the Bill expressly provides that a reasonable excuse includes the wearing of a face covering for a genuine religious, cultural or medical purpose. This exception will protect protestors who have a legitimate reason for wearing a face covering from being inadvertently captured by the new offence.

These new powers complement existing identification powers by enabling police to more effectively target the use of face coverings at protests outside of the designated area scheme under the Control of Weapons Act 1990 (including where the protest is unplanned or weapons-related criteria are not met).

New offence to lock-on at a public protest

The Bill introduces a new offence to prohibit the use of things or substances to lock-on at a public protest.

Locking-on is a tactic used by protestors to affix themselves or others in place and resist being moved, inhibiting the ability of Victoria Police to do their job. A broad range of things or substances may be used by a protestor to lock-on. Colloquially known as ‘attachment devices’, these may include everyday household items such as glue, rope, locks and chains to bespoke devices. Another example is a ‘sleeping dragon’ which is a custom device commonly consisting of a metal pipe which covers a person’s hand with an anchor point to secure the individual.

The use of things and substances to lock-on by protestors, and the subsequent removal of protestors from these devices, has the potential to create safety risks for the community, law enforcement, first responders and other protestors. For example, specialist tools such as angle grinders and hydraulic machinery can be required to remove protestors, and it is possible that complications in the removal process could endanger others.

Currently, Victorian legislation does not expressly address the use of things or substances to lock-on where doing so may endanger the safety of others. Whilst existing laws such as obstruction, trespass or public nuisance might apply to the use of attachment devices by protestors depending on the circumstances, a tailored offence which specifically targets the use of such things or substances will give police an additional tool to keep the community safe.

The Bill provides that it is an offence for a person to intentionally use a thing or substance at a public protest, to lock or secure any person (including themselves) to another person, surface or other thing where locking on or removal of the thing or substance, is either likely to cause injury to a person who is not locked or secured or presents a serious risk to public safety. The offence is punishable by a fine of up to 120 penalty units or 1 year imprisonment or both. The offence is confined to the dangerous use of things and substances to lock-on and will only apply where use or removal is likely to cause injury to a person who is not locked-on or poses serious risks to public safety. This recognises that attachment devices are not inherently unlawful to possess, and in some circumstances may continue to be used as a form of peaceful protest but provides a mechanism for police to intervene to prevent harm to the community.

A person will not commit the offence where they have a ‘reasonable excuse’, in recognition that there may be legitimate reasons for a person to use things or substances to lock-on, even where doing so may pose risks to another person or the public. For example, where a person uses an attachment device (such as a suspension device) in connection with their employment to complete works at a time that coincides with a public protest.

The Bill empowers Victoria Police to seize without warrant, a visible thing or a container of a substance where a police officer reasonably believes that it is being used, or will imminently be used, to commit the locking-on offence. Where the power to seize without a warrant does not apply, the Bill enables police to apply to the Magistrates’ Court for a warrant to search premises and seize property. These powers will assist Victoria Police to enforce the new offence by proactively preventing dangerous conduct before it occurs.

Prohibition on the public display of terrorist organisation symbols

Symbols of terrorist organisations have no place in Victoria. These symbols represent racist, violent and hateful ideologies and their public display can cause profound distress, fear and harm to members of targeted groups in Victoria. The display of these symbols can also encourage others to engage in acts of violence and vilification.

Whilst a Commonwealth offence to publicly display a symbol of a terrorist organisation was introduced under section 80.2HA of the Criminal Code Act 1995 (Cth) in January 2024, there is currently no equivalent offence in Victoria.

The Bill will close this gap by introducing a new offence to prohibit the public display of symbols of terrorist organisations in Victoria. The elements of the new offence will be simpler to prove than the Commonwealth offence, and will be modelled on existing laws, namely the prohibition of the public display of Nazi symbols under the Summary Offences Act 1966 and the prohibition of the public display of insignia of certain organisations under the Criminal Organisations Control Act 2012. The new offence will therefore provide an effective prevention and enforcement framework for Victoria Police to address the public display of symbols of terrorist organisations in Victoria.

A person will commit an offence if they display a symbol that they know is used to identify an organisation, and that organisation is a terrorist organisation. The offence will be committed if the display of the symbol occurs in a public place, at a non-government school or post-secondary education institution, or where the display occurs on private premises but is visible from one of those places. The offence is punishable by a fine of up to 120 penalty units or 1 year imprisonment or both.

The Bill defines ‘terrorist organisation’ as an organisation prescribed as such by the Commonwealth in regulations made under the Criminal Code Act 1995 (Cth). It also defines ‘symbol’ as any symbol that an organisation, or its members, use to identify that organisation. In contrast to the definition of ‘prohibited terrorist organisation symbol’ under the Commonwealth offence, the Bill will not capture symbols which ‘nearly resemble’ a symbol used by a terrorist organisation. The limited definition ensures legitimate symbols such as certain national flags which may resemble those used by terrorist organisations, are not unintentionally caught within the scope of the definition.

To ensure legitimate reasons for the display of symbols are protected, the Bill contains several exceptions based on the exceptions available under the Commonwealth offence and the Victorian Nazi symbol offence. For example, exceptions include the public display of terrorist organisation symbols for genuine academic, artistic, education or scientific, cultural or religious purposes. The exception for religious or cultural purpose acknowledges that some terrorist organisations may coopt legitimate religious or cultural symbols. For example, the Shahada is the Islamic declaration of faith but has been coopted by some terrorist organisations and used in flags.

The Bill empowers a police officer to direct a person to remove a symbol of a terrorist organisation from display, if the display occurs in a public place, at a non-government school or post-secondary education institution, or where the display occurs on private premises but is visible from one of those places. It will be an offence to fail to comply with this direction without a reasonable excuse, punishable by a fine of up to 10 penalty units. This will allow police to direct the removal of flags displayed in windows or on balconies, or murals or other displays on the exterior of a property that is in public view.

Victoria Police will also be able to seize with or without a warrant, property bearing the symbol of a terrorist organisation. This equips police with effective enforcement powers to appropriately respond to harm that may flow from the continuing public display of a terrorist organisation symbol.

Protecting religious assembly

Harmful behaviours that prevent or disrupt people from practicing their faith have no place in Victoria. In a multicultural and multi-faith society, the right of individuals and communities to safely and peacefully gather to practice their faith free from intimidation and harassment must be protected.

The Bill replaces the existing offence of disturbing religious worship in section 21 of the Summary Offences Act 1966 with two separate, modernised offences prohibiting conduct that disturbs a religious assembly, and the assault of persons arriving at, attending or leaving a meeting of persons assembled for religious worship. These offences will also be updated to ensure the language, burden of proof and limitation period are modernised and apply the standard approach applicable to equivalent Victorian offences.

The first new offence will capture conduct that is intended to intimidate, menace or harass a person arriving at, attending or leaving a meeting of persons assembled for religious worship. The second new offence will capture conduct that is intended to hinder or obstruct a person from arriving at, attending or leaving a meeting of persons assembled for religious worship. Each of these offences will be punishable by a fine of up to 15 penalty units, or 3 months imprisonment.

These reforms respond directly to the government’s commitment to introduce new laws to protect the right of people to gather and pray, free from fear, harassment and intimidation. They are an important step in strengthening religious worship protections and upholding the values of respect, inclusion and safety for all Victorians.

Improving community safety

The Bill improves community safety through amendments to the Control of Weapons Act and the Firearms Act. These amendments are aimed at deterring and detecting the unlawful carriage of weapons in public places, and criminalising the possession and distribution of information to make new kinds of weapons.

Police powers to stop and search people for weapons in public places

I turn first to the amendments that relate to police powers to stop and search people for weapons in public places.

The government acknowledges the community’s ongoing concerns about knife crime. For over 15 years now, the Chief Commissioner of Police has had the power to declare certain public places or events to be ‘designated areas’. In these designated areas, police can stop and search people for weapons, without a warrant and without suspicion. The point of this is to reduce the unlawful carriage of weapons in our community. If you can be stopped and searched at random, you are less likely to go around carrying a weapon. And if you choose to carry a weapon, you will be caught. This is an important tool that police have to keep our community safe and is as important as ever now.

This bill builds on enhancements made to the scheme earlier this year. It further improves these police powers to ensure that where an event is declared to be a designated area, the key transit points that people use to get to and leave those events may be included in the declaration. If police can stop and search people at the main bus stop or train station people are using, then it will decrease the chances of weapons getting into those events.

The amendments will also mean that instead of having to carry around and give out hard copy notices to everyone they stop and search in designated areas, police will be able to provide these notices electronically.

Lastly, the Bill will also amend the search provisions relating to children and persons with an intellectual impairment. At the moment, if a person in one of these groups is scanned with a metal detector ‘wand’ and it activates, police have to take that person back to a police station in order to progress to an outer search or strip search if it is not possible to secure the attendance of a parent, a guardian or an independent person to be present for the search in the designated area. This means more time in police custody than may be necessary for that person, and a drain on police resources. The Bill will allow outer body searches – but not strip searches – to proceed in the designated area for children 15 years and older, and for younger children and people with intellectual impairments where additional criteria have been met. In all cases, this will only happen where no parent, guardian or other independent person is available. The Bill will preserve safeguards to ensure that the outer search is conducted in the presence of another person (who may or may not be a police officer) other than the officer conducting the search.

Together, these amendments will contribute to community safety by streamlining and expanding the powers police have to get weapons off our streets.

Digital blueprint offences

I turn next to Victoria Police’s capacity to regulate firearms.

The Firearms Act provides a robust scheme to regulate the acquisition, possession and manufacture of firearms. The Bill amends the Firearms Act to prohibit possession or distribution of a document that can be used to instruct a machine to manufacture a firearm, also known as a ‘digital blueprint’, unless the person has a reasonable excuse or has a firearms dealers’ licence.

Existing offences prohibit the possession of parts or equipment for the purposes of manufacturing a firearm. However, a digital blueprint is more properly characterised as information, not equipment. Recognising this distinction, the Bill establishes technology-neutral information offences to regulate possession and distribution of a digital blueprint on the basis that it is a document that functions as an essential component in a computer-aided-manufacturing process.

We know that technology is rapidly advancing, and that there are many legitimate uses for digital models of firearms in fields like the arts, film and television, computer game development, education, engineering, and industrial and scientific research. The Bill does not prohibit the possession or distribution of digital models. It only prohibits documents that also contain digital instructions for manufacture.

Possession of a digital blueprint includes conduct such as reducing it to material form, or reproducing a design by conversion to a set of machine instructions. Distribution of a digital blueprint includes publishing the instructions, exhibiting, communicating, sending, supplying or transmitting the instructions to any other person and making the instructions available for any other person to access.

The Bill provides for a lawful means to possess or distribute a digital blueprint if done so with a reasonable excuse or under and in accordance with a firearms dealer’s licence.

The Bill provides for a licensed firearms dealer to possess or distribute a digital blueprint but they must keep the document secure, and prevent the use of the document to manufacture a firearm in contravention of the Firearms Act.

The Bill includes appropriate exceptions so that innocent conduct is not impugned. In my view, a person who intentionally possesses a digital blueprint, other than as provided for by the Firearms Act, also intends to manufacture a firearm. In the same way, a person who intentionally distributes a digital blueprint, other than as provided for by the Firearms Act, clearly intends to be a person involved in the manufacture of a firearm. The risk to community safety presented by the intention and the capacity to manufacture a firearm justifies the indictable offences introduced in this Bill.

Effective and efficient policing

The Bill also includes reforms to enable Victoria Police to respond to crime and exercise their powers more efficiently and effectively. These reforms will amend the Victoria Police Act 2013, Drugs, Poisons and Controlled Substances Act 1991, Confiscation Act 1997, Control of Weapons Act 1990, Sex Offenders Registration Act 2004 (SOR Act) and the Summary Offences Act 1966. In summary, the reforms provide carefully circumscribed police powers with appropriate safeguards to:

• enable police officers to transport persons in their custody, care or control into New South Wales or South Australia in specified circumstances

• enable the destruction of drug exhibits pre-trial

• allow consultation with victims of sexual offences in relation to administrative actions under the SOR Act, and

• expand the powers of Protective Services Officers to alleviate sworn officers and free them up to perform front line duties.

I will outline each of these proposals in turn.

Cross-border policing

The Bill will amend the Victoria Police Act to enable Victorian police officers who are lawfully transporting persons in their custody, care or control in Victoria for various reasons to continue the transport into or through NSW or SA in specific circumstances.

The first circumstance is to obtain medical care for the person when, for example, the closest suitable medical services are in New South Wales (NSW) or South Australia (SA). This prioritises timely provision of healthcare for persons being transported by police in border regions, such as in Wodonga, where the closest suitable service may be in Albury, as compared with travelling an hour back to Wangaratta.

The second circumstance is to reach another Victorian destination via a safer or more direct route. For example, the most direct route from Robinvale in Victoria to Mildura is through NSW. Empowering police to take this route means people spend less time in police custody. Further, it enables police to transit interstate where local roads may be dangerous or closed due to bushfire or flood risks.

The third circumstance is to carry out a specified statutory function. This includes placing a child in emergency care under the Youth Justice Act 2024 or the Children Youth and Families Act 2005, when the most suitable emergency carer for the child (such as a close relative) is located in NSW or SA. This is particularly relevant in border communities when families may commonly be dispersed across State borders. It also empowers police to take persons interstate to receive specified mental health services under the Mental Health and Wellbeing Act 2022. As with general medical services, enabling police to take persons to the nearest service minimises time in police care for this vulnerable cohort. Finally, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 authorises persons subject to supervision orders to be taken to ‘designated mental health services’ in specified circumstances. As Albury Wodonga Health (which has campuses in Albury) is so designated, the Bill confers a power on police to transport persons interstate for this purpose. Finally, there is a power to prescribe further circumstances permitting travel into NSW or SA.

Currently, Victorian police officers may be appointed as de facto police officers in NSW or SA under that State’s legislation. When appointed this way, Victorian officers can use their powers under the receiving State’s legislation to transport a person in that State in limited circumstances.

This approach to interstate policing has significant drawbacks. These include, for persons in custody, needing to rearrest the person under interstate law and then formally extradite them back to Victoria, thereby extending the time the person spends in police custody. In contrast, the Bill provides a clear framework to enable police to transport persons into or through NSW or SA in confined circumstances. This limits the time spent in police custody, care or control, allowing police to take the safest roads, and facilitating prompt access to medical care.

The Bill provides that Victoria Police officers retain the same powers, obligations, immunities and responsibilities as if they were in Victoria. Victoria Police officers will also be subject to the same oversights and controls, ensuring effective and responsible policing.

Enabling destruction of bulk drug and drug equipment exhibits

The Bill also includes amendments that streamline drug and drug-equipment destruction procedures while maintaining fair trial rights, including through a notification process so that an accused is given notice that seized drugs and equipment are to be destroyed and that the accused may seek an independent analysis of samples retained of the seized drugs, and the bill requires the taking and retention of sufficient samples where practicable for forensic evidence for the duration of any court proceedings or appeal periods. These reforms expand upon existing provisions enabling drugs and equipment to be destroyed without a court order on health and safety grounds.

The reform will significantly reduce the large stockpile of drug exhibits and drug related equipment. This will reduce health and safety risks, free up storage space, reduce resource burden on Victoria Police and reduce security concerns associated with these stockpiles.

Consultation with victims of sexual offences about matters under the Sex Offender Registration Act

The Bill amends the SOR Act to authorise the Chief Commissioner of Police to engage in trauma-informed consultation with victims of a registrable offender. For this purpose, the Bill will authorise the Chief Commissioner of Police in specified circumstances to disclose specified information about a registrable offender to a victim, their parent, or their representative. The confidentiality of that information is preserved, and significant offences apply to a person who publishes or who solicits that information for publication.

Authorising the Chief Commissioner of Police to engage in victim-led trauma-informed consultation will provide additional information to the Chief Commissioner in decision-making and limit the scope for a registrable offender to secure an outcome that would not otherwise have been available were police able to consult with and rely on the input of a victim. To achieve these outcomes, the Bill will authorise the Chief Commissioner of Police to make certain limited disclosures in relation to administrative actions proposed to be taken under the SOR Act such as applying for a registration order or registration exemption order, applications relating to the suspension of reporting obligations, and applications for an approval to apply for a change of name including when made in combination with an application for an acknowledgement of sex.

The amendments to the SOR Act include measures to preserve the confidential nature of any information disclosed. This includes new offences to prohibit the publication of information disclosed by the Chief Commissioner of Police, and to prohibit a person from soliciting that information from a victim for the purposes of publication. These offences are based on provisions in the Corrections Act 1986 designed to protect a person included in the Victim’s Register.

Preserving the confidential nature of information disclosed by the Chief Commissioner of Police when engaged in trauma-informed victim-led consultation is consistent with the purposes of the SOR Act, the function of the Register as a tool to reduce the likelihood that a registrable offender will re-offend, and to facilitate the investigation and prosecution of any offences that a registrable offender may commit.

The Bill will align section 39 with 39A of the SOR Act so that, for an order to suspend a registrable offenders’ reporting obligations, a registrable offender may apply to the court of the highest jurisdiction that imposed a sentence for the registrable offence at first instance. These amendments include an extended commencement period to provide time to update court rules and automated case management systems to assure strict procedural compliance for this cohort of application.

Expanding PSO powers to relieve frontline policing resources

The Bill expands Protective Services Officers’ (PSOs) functions to perform hospital and crime scene guarding duties. This will free up police officers to carry out frontline policing where they are most needed.

Currently, if a person in police custody requires medical care, a police officer will usually take them to a hospital emergency department for treatment, and guard them while there. The Bill confers new, confined functions on PSOs to carry out this guarding function, as well as a function to protect persons at-risk persons, such as witnesses or victims, in medical settings when this is required.

The Bill also empowers on-duty PSOs, when directed by a police officer, to establish and guard crime scenes. Again, empowering PSOs to perform these functions will increase operational flexibility and allow police officers to be deployed to frontline duties.

Broader justice reforms

The Bill makes a number of minor but important amendments to update and clarify the law and support procedural improvements.

I turn now to the detail of these reforms in the Bill:

Operationalising recent unexplained wealth reforms in the Confiscation Act 1997

The Confiscation Amendment (Unexplained Wealth) Act 2024 strengthened and improved Victoria’s existing unexplained wealth laws by introducing a new unexplained wealth order to better target unlawfully acquired wealth. The new order disrupts serious and organised crime by providing a mechanism to target senior figures, who distance themselves from offending, and deprive them of their unlawfully acquired wealth.

The Bill makes technical amendments to the Confiscation Act 1997 to enable law enforcement agencies to issue information notices to financial institutions to aid investigations under the new unexplained wealth pathway, and request documents required to enforce the new order. In addition, the amendments will ensure the Attorney-General can effectively deal with, and dispose of, property that is forfeited under the new order.

Remote attendance for compulsory procedure applications under the Crimes Act 1958

The Crimes Act 1958 empowers the Magistrates’ Court and Children’s Court to make orders directing that suspects undergo forensic procedures for investigative purposes.

The Bill removes a requirement for suspects to be physically present in court, facilitating remote court attendance. The reform will promote efficiency and flexibility, supporting the functioning of our courts, while ensuring courts retain discretion to require physical attendance in appropriate matters.

Clarifying the duration of authorisations under the Crimes (Assumed identities) Act 2004

The Bill makes technical amendments to the Crimes (Assumed identities) Act 2004 to clarify the duration of assumed identity authorities for Victoria Police employees.

The Major Crime and Community Safety Legislation Amendment Act 2022 sought to extend the duration of assumed identity authorisations for Victoria Police employees from 3 months to 12 months, aligning with the timeframe to review assumed identity authorisations for law enforcement officers under the Assumed Identities Act. However, it has become clear that a further technical amendment is required to avoid any doubt about the validity of authorities issued to Victoria Police employees that purported to have a duration of more than 3 months. The Bill therefore clarifies that an authority to acquire and use an assumed identity, made in relation to a Victoria Police employee, may remain in effect for 12 months. To provide certainty regarding the validity of these authorities, the amendments will apply to authorities issued on or after 3 April 2023, when the 2022 reforms commenced.

Updating warrant application procedures under the Surveillance Devices Act 1999

The Bill updates and modernises the application procedures for surveillance device and retrieval warrants by removing the requirement that the application must be made in person. The current requirement that the application is made in person is dated and does not reflect advancements in court practices that have been able to improve efficiency in dealing with such matters. The Bill removes the concept of remote applications, enabling flexibility around how applications are made, which may include applications via electronic filing. In addition, the Bill expressly clarifies that a judge or magistrate may determine the application following an in-person hearing, a remote hearing, or on the basis of written submissions (commonly referred to as ‘on the papers’).

Display of things seized under certain search warrants

The Bill provides the Chief Commissioner of Police with the power to publicly display things seized during the execution of search warrants issued pursuant to the Drugs, Poisons and Controlled Substances Act 1981 and the Firearms Act 1996. This is consistent with the power to display things seized under the Crimes Act 1958, and will enable things such as quantities of drugs and firearms, to be displayed openly in the media. This power will help deter offending and provide public reassurance of community safety by demonstrating the outcomes of police investigations into serious and organised crime.

Interpretation of Legislation Act 1984 amendments

The Bill will also make minor amendments to the Interpretation of Legislation Act 1984 to address an ambiguity arising from the potential operation of an antiquated common law rule concerning the appointment of non-citizens to public office. The amendments address any uncertainty by putting beyond doubt that unless there is a specific statutory requirement, citizenship is not, of itself, a disqualifying factor for public appointment. Out of an abundance of caution, the amendments will also validate historical and current appointments and things done pursuant to those appointments, to remove any unnecessary uncertainty about the validity of these appointments.

The Bill will make additional minor and technical amendments to the Interpretation of Legislation Act 1984 including bringing the delegation provisions in the Act in line with current practice and the Commonwealth, by providing that an instrument of delegation includes subsequently enacted powers.

New discretion for the CCP to shorten probation periods for some police officers

The Bill introduces amendments to the Victoria Police Act to provide that the Chief Commissioner of Police has the discretion to impose shorter periods of probation for police officers returning to Victoria Police and for those from law enforcement agencies in other jurisdictions.

Currently, re-appointees and appointees from other jurisdictions must serve the same probation period as new appointees, either one or two years regardless of their experience and service history. The operation of the probation period has some practical impacts, such as ineligibility for transfer or promotion, further probation after prior probation periods, and also because probation is form of employment insecurity.

Under the amendments, the Chief Commissioner could impose between three months to one or two years, depending on the re-appointment or appointment rank. In determining the appropriate probation period, the Chief Commissioner may consider matters such as the person’s former or equivalent rank, history and length of service, retraining needs, employment during absence and other relevant matters.

The amendments will remove a barrier for experienced police officers by recognising their prior service and career history when setting probation periods.

There are clear public benefits if police officers can utilise their policing skills in a variety of public and private sector roles. It is also beneficial for Victoria Police if people with a valuable breadth of experience and exposure to other employers return to Victoria Police or join from other law enforcement agencies. 

Compliance with conditions to be considered when adjourning disciplinary charges against police officers

The Bill also makes a technical amendment to clarify that compliance or non-compliance with conditions attached to discipline proceedings for police officers should be considered in further hearings to resolve that matter.

Currently the Victoria Police Act provides that if a discipline charge is proved during an inquiry stage, the formal hearing of the charge can be adjourned on the condition that the officer be of good behaviour alongside any other conditions.

If at the hearing of the charge it is found that the officer has been of good behaviour, the charge can be dismissed. If not, the hearing must continue as if it had not been adjourned. There are not currently any direct consequences for compliance or non-compliance with the other conditions imposed.

This amendment therefore aims to ensure the Victoria Police discipline framework is operating effectively by ensuring compliance or non-compliance with conditions is considered during the disciplinary process.

Victoria Police Code of Conduct – improving consultation

Finally, the Bill inserts a new requirement in the Victoria Police Act for the Chief Commissioner of Police to consult with the Minister for Police, and consider the Minister’s feedback, before issuing a Code of Conduct for police personnel.

A breach of the Code of Conduct by a police or protective services officer may constitute a breach of discipline under the Victoria Police Act. Such a breach could be grounds to reprimand, fine, dismiss, or reduce the rank or renumeration of the officer involved.

Given the scope for significant disciplinary outcomes arising from a breach of the Code of Conduct, this important amendment will allow the Minister to give feedback to the Chief Commissioner on the Code before it is issued. Given the importance of the Code, it is expected that future Ministers will respond to any request for consultation in a reasonable timeframe. The Chief Commissioner must consider, but is not bound to incorporate, any such feedback. This protects the independence and discretion of the Chief Commissioner of Police.

In summary, this Bill contains a suite of reforms across multiple Acts to crack down on dangerous and radical behaviour at protests and to protect the rights and safety of religious worshippers. It also increases community safety by improving the powers police have to stop and search people for weapons in public places, and by introducing new offences to address emerging technologies used in firearms manufacture. The Bill also introduces amendments to improve effective and efficient policing, freeing up our frontline police to do their jobs. The Bill does this by streamlining cross-border policing to make it faster and safer for police transporting people across State lines, giving PSOs the power to take on additional duties, and assisting police to manage bulk drug exhibits without affecting trial rights.

Finally, the Bill provides for a range of broader justice system reforms and technical amendments to be responsive to emerging issues, improve clarity of legal processes, and refine legal processes.

I commend the Bill to the house.

 Evan MULHOLLAND (Northern Metropolitan) (22:19): I move:

That debate be adjourned for one week.

Motion agreed to and debate adjourned for one week.