The Echo – 15.04.14

EROSION OF LIBERTIES MARCHES ON – Adam van Kempen

Since the anti-Vietnam War protests in Brisbane in 1966, which lead to the enactment of the Traffic Act as an effective  means of outlawing protests, various Queensland governments have been especially good at crushing dissent, or at least attempting to, usually by force.

The Traffic Act and consequent regulations gave the police the power to stop any sort of demonstration.  Permits were required, and any attempt to march without one was deemed illegal.  Police were under no obligation to give reasons for the decision to refuse a permit.   Premier Joh Bjelke-Petersen summed it up in 1977 by declaring that the days of street marches in Queensland were over. “Don’t bother applying for a march permit. You won’t get one. That’s Government policy now”, he said.

I recall, as a 15 year old, walking with friends down the Queen Street Mall in Brisbane.  Suddenly accosted by members of the Queensland Police Force, we were required to remove our leather belts and hand them over.  Could they have taken exception to the fashionable decorative studs on some of the belts?  Perhaps they took a fancy to them.  However, as there were more than 4 of us together without a permit, we thought it wise to comply rather than risk being charged with illegal assembly.

The current Queensland Premier, Campbell Newman, has continued this fine tradition with the enactment of various laws that severely restrict rights of association and dramatically increase mandatory prison terms for those deemed to be associated with ‘criminal associations’ – or even so-called ‘out-of-control’ parties.  The host of a gathering of 12 or more people can be held liable for the behavior of invitees who, having left the party, engage in out-of–control conduct that results in substantial interference with someone’s enjoyment of a public place.  ‘Substantial interference’ is undefined.

Vague, rushed laws to deal with perceived law and order issues frequently descend into farce.   Three motorcycle club members, attending Court on the Sunshine Coast to give evidence, were ordered by police to disperse or face a mandatory minimum 6 month jail term for association in a public place.

The O’Farrell Government, in late 2013, made changes to the Law Enforcement Powers and Responsibilities Act (LEPRA) that were allegedly designed to clarify police powers and prevent police being sued by ‘criminals’.  These changes fundamentally changed the arrest powers of police in New South Wales.

The laws of arrest have been developed over centuries by governments and the courts and have recognised that arrest, and therefore the deprivation of a person’s liberty, should only be used as a last resort.  Many other avenues are available to police, such as the issue of a Court Attendance Notice, to bring a person before a court.  The actions of the O’Farrell Government, as an exercise of government and therefore police powers, have meant that some of the fundamental civil protections have been removed from LEPRA: the requirement that an arrest should only be used as a last resort to bring someone before a court, and the requirement that police should hold a reasonable suspicion before making an arrest.

This is particularly concerning as there was no public or legal industry consultation over the changes.  They were recommended by two politicians handpicked by the then premier, with the stated policy objective of reducing crime by making the prospect of being arrested a ‘deterrent’.  It is not surprising that this has the effect of eroding the presumption of innocence by making arrest a proactive policing tool, rather than a power of last resort.

Formerly, the legislation provided that police must not arrest…unless reasonably necessary to achieve certain purposes as set out in the legislation.  Now, however, police may arrest if they are satisfied it is reasonably necessary.  This is another important erosion of the limitations on arrest powers, and arguably removes much of the subjective element previously required.

Prominent lawyers such as the former DPP Nicholas Cowdery and Senior Law Lecturer Vicki Sentas have condemned these changes as creating ambiguity within the law, and for being enacted under pressure to introduce ‘proactive’ policing rather than to equip police, who frequently have difficult tasks to carry out, with better training and resources.

The Byron Shire Echo
Volume 28 #44 April 15, 2014