What rights? Police powers and the Charter

Dr Alice de Jonge

When the Charter of Human Rights and Responsibilities Act was enacted in 2006 it appeared that a new era had arrived in the relationship between government and citizens in Victoria. The Act was described by Professor George Williams as marking ‘a decisive departure, at least in Victoria, from the long-held notion that the best protection for human rights is the good sense of our parliamentary representatives’.

When the Summary Offences and Control of Weapons Acts Amendment (SOCW) Bill was passed during a late-night sitting of the upper house of the Victorian Parliament earlier this month, it became obvious how weak Victoria’s proud new Human Rights Charter really is. In particular, it became obvious how ready our elected representatives are to ignore the Charter altogether.

The SOCW Act has now given police in Victoria increased powers to search any person including a child in a designated area, even when there is no reasonable suspicion that the person is carrying a weapon. The government itself, in a statement put together by the minister for the purposes of review by the Scrutiny of Acts and Regulations Committee, admits that this new power is a breach of the Charter of Human Rights.

In the minister’s own words, the SOCW Act is ‘incompatible with the charter to the extent that it limits rights … 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’. Moreover, there is no exemption for peaceful protests applying to the random search powers. Accordingly, these powers breach the rights of freedom of association and freedom of expression contained in the Charter.

Under the Act, the police may conduct pre-arrest strip searches of any person, including children, in certain circumstances. The government has sought to justify this in the interests of community safety, but this is a grossly insufficient justification for a law that disregards fundamental human rights.

The police also have increased powers to move people on. These new ‘move-on’ powers are distressingly broad. For example, under the new laws the police have power to give directions to a person to ‘move on’ whenever an officer believes the person ‘is likely to breach the peace’ or ‘is likely to endanger the safety of other persons’.

As the Federation of Community Legal Centres noted in its letter to the Scrutiny of Acts and Regulations Committee of November 20, such broad move-on powers involve ‘granting police powers based on subjective predictions of future behaviour by individual police officers’. Such powers are inevitably ‘prone to be applied in a discriminatory and disproportionate way against some of our most vulnerable community members, including people who are homeless, young people, Aboriginal people and people experiencing mental health issues’.

A motion by Greens MLC Sue Pennicuik that would have seen the SOWC Act submitted to a process of public consultation, including a round table with the many social service and social justice organisations that have expressed concern at the new legislation, was voted down by both government and coalition members. In refusing to allow the SOWC to see the light of public consultation, the government has ignored the clear recommendation of the Victorian Privacy Commissioner.

In her submission to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee, she said that she was ‘concerned with the lack of public consultation, including the lack of consultation with her office, regarding a proposal with such an adverse impact on the rights of Victorians’. Referring to the SOWC Bill, the Privacy Commissioner then went on to recommend ‘that the Bill not proceed until such time as proper consultation is undertaken necessary for a proposal of this kind’.

The Government is clearly prepared to pass into effect a new law which is incompatible with the Human Rights Charter. At least the government has been prepared to admit that parts of the new law are not compatible with the Charter. This admission includes an acceptance that limitations on human rights in the SOWC Act are not necessary, reasonable or demonstrably justified. As a Victorian-born citizen, I am no longer proud of our state’s new Human Rights Charter.

Dr Alice de Jonge is a Liberty Victoria volunteer.