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Wednesday, 3 February 2010

Legislation Watch: Random stop and search

The Summary Offences and Control of Weapons Acts Amendment Bill 2009 had a trouble-free passage through parliament.



On 10 November it had its First Reading in the lower house. Its Second Reading was moved two days later and was completed by the 26 November. It was introduced to the Legislative Council that same day, and was passed without amendment on 12 December. It received Royal Assent on 15 December and consequently was enacted a day later. The powers to randomly search were first exercised at Footscray on 7th January.



A very speedy birth for what is a remarkable piece of legislation. As pointed out at the Human Rights Portal that Elucubrator referred to last year, it is the first piece of legislation whose Statement of Compatibility provides that some of the provisions in it are not compatible with the Charter of Human Rights and Responsibilities Act 2006.



Amendments to the Summary Offences Act 1966 include the creation of a new offence of disorderly conduct, empowers the police to arrest and lodge in safe custody a person who is found drunk and disorderly in a public place, and expands the list of offences for which infringement notices can be issued. In the Statement of Compatability these are described as justifiable limitations on human rights.



Sections 10A - 10L permits the police to search anyone in a designated area. Failure to comply with a direction is an offence.



Section 10G provides,



10G. Power to search persons in designated area



(1) A member of the police force may, without a warrant, stop and search a
person, and search any thing in the possession of or under the control of the
person for weapons, if the person and, if applicable, the thing are in a
public place that is within a designated area.



(2) Schedule 1 applies to the search of a person or thing under this section.



(3) A member of the police force must conduct the least invasive search that
is practicable in the circumstances.



(4) A member of the police force may detain a person for so long as is
reasonably necessary to conduct a search under this section.




In the Statement of Compatability, Minister for Police and Emergency Services Bob Cameron said,



The government intends to proceed with this legislation notwithstanding the conclusion that it is incompatible with section 13(a) of the charter. There is considerable concern in the community about the pattern of weapons-related offending with which this legislation is concerned. I am unwilling to reduce further the operational scope of the legislative response to that threat. In particular, the government is very concerned that the carriage and use of weapons by people in public places should be prevented, or at the very least, deterred.



As I am entitled to do, I make this statement indicating that the legislation is partially incompatible with the charter to the extent that it provides powers for police to randomly search persons and vehicles in public places within the designated areas, even if the police have not formed a reasonable suspicion that the person or vehicle is carrying a weapon. The government intends to proceed with the legislation in its current form.



...



I have already determined that sections 10G and 10H of the Control of Weapons Act 1990 are incompatible with the charter in relation to section 13(a). Similarly, I have determined that they are incompatible with section 17(2).



However, the government believes this legislation is important for preventative and deterrent reasons, including the protection of children.



...



I consider that the majority of the bill is compatible with the charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.



However, I consider that the bill is incompatible with the charter to the extent that it limits rights under sections 13(a) and 17(2) in providing powers for police to randomly search persons (including children) and vehicles in public places within designated areas, even if the police have not formed a reasonable suspicion that the person or vehicle is carrying a weapon. The government intends to proceed with the legislation in its current form as there is considerable concern in the community about the pattern of weapons-related offending with which this legislation is concerned.




The declaration poses a challenge for the judiciary, who will at some stage be called upon in the future to interpret the legislation. Does this prevent courts from trying to interpret the legislation consistently with human rights?

3 comments:

Jeremy Gans said...

"Does this prevent courts from trying to interpret the legislation consistently with human rights?"

No, the courts aren't bound by an SoC (Charter s. 28(4)) and the interpretative rule applies to all Victorian legislation, compatible or otherwise. The only limit is that any new interpretation must be compatible with the law's 'purpose' (whatever that might be.)

But the statement of incompatibility probably means that Victoria Police doing searches won't be bound by the Charter's obligation for public authorities to act compatibly with human rights or give proper consideration to them (s38(1)). That's because s38(2) lifts that obligation if another law makes it unreasonable to comply, and the given example is where the public authority is acting under a rights-incompatible law. (The risk is that a court may decide that the new sections are rights-compatible.)

Dr Manhattan said...

Yes, courts won't be bound by the Minister's statement of incompatability. But, in any practical sense, can a court interpret a provision consistently with human rights and also with its purpose, if its purpose (or perhaps effect) has been stated expressly by its authors to be incompatible with human rights?

Like Portsea Back Beach, this question is too deep for me.

At the time it was handed down, I described Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 as the ultimate showdown between coercive executive power and the minimum safeguards that the Charter is supposed to provide. On reflection, that wasn't right. That legislation is actually subject to a series of checks and balances (the independence of the office of Examiner, the fact that individual applications have to be made to the Supreme Court, etc.) that lend itself to be regarded as a reasonable limitation (with perhaps a tweak here or there).

Challenges to these new police powers are more likely to give a clear indication of how seriously the Charter is going to be taken in the short- to medium-term.

Jeremy Gans said...

I wouldn't be so sure about the unreasonableness of the Control of Weapons amendments. The UK House of Lords unanimously rejected a HRA challenge to narrower (terrorism-focused) but much less protective random search powers in the UK, even though it had been revealed that the entire Greater London area had been continuously declared a random search zone since 2005.

The European Court of Human Rights recently upheld a challenge to those same powers, but largely because of the absence of protective features - the necessity of the declaration and publication of it - that are in Victoria's law.

Sure, Vic courts won't be able to interpret the random search powers away. But the meaning of terms that trigger the declaration power are ripe for narrow Charter-focussed interpretations...