Friday, 14 October 2022
The Law Society recently received a briefing from the Government regarding the amendments to the Liquor Licensing Act that will create five entertainment precincts that will prohibit certain categories of people with convictions from entering. The current proposed precincts are Northbridge, Mandurah, Fremantle, Hillarys and Scarborough. However, the Bill provides that other precincts can be prescribed in regulations. The government had only consulted with the five local government authorities where the initial protected entertainment precincts have been proposed and the family of Guiseppe Raco.
The new laws are proposed to be in place by Christmas with no formal process for submissions or commentary having occurred to date. The Law Society expresses its concerns about the introduction of new laws in this manner particularly as:
- there is existing legislation in place that already precludes people from certain areas and with consequences of imprisonment;
- the laws impose an additional punishment on offenders who have served their sentence and then become subject to these orders post-sentence for up to five years (by the mandatory orders); and
- the exclusion orders are to be issued by police officers for up to six months with no court oversight at all. It is unclear if this will be exercised when a person is charged, or whether police do not have to rely on any offence/conviction at all.
The new laws propose the exclusion of offenders, who have been convicted of committing violent type offences, within a prescribed precinct for up to a period of five years. Of note, it appears that there will not be provision for a banned individual to seek an exemption to an order for matters like being required to enter a prescribed precinct for work or accommodation but will instead require a person to apply for a defence. Applications will be considered by the Liquor Licensing Commission.
There is also a second part to the proposed laws that have received little attention and will authorise police to impose short term exclusion orders (of up to six months) for people behaving in an offensive (including antisocial behaviour) or violent manner if it is deemed to be in the public interest. The Law Society is concerned that such orders may be liberally employed by Police and may unduly affect the homeless, people with mental illness, vulnerable or marginalised groups. In addition, the new laws provide that the Police Commissioner has the power to make guidelines (with no Parliamentary oversight) on how the police will apply the powers.
With the penalty for breaching “a move on” order a fine of up to $12,000, or imprisonment for up to 12 months, this law has the potential to undermine the State Government’s commitment to the Closing the Gap target to reduce overrepresentation of Aboriginal people in the adult and youth justice systems. It is also inconsistent with recommendations in the Law Council of Australia’s Justice Project Report, chaired by The Hon Robert French AC, Former Chief Justice, High Court of Australia. “For many disadvantaged people, ‘justice’ is inextricably linked with the police, corrections, immigration, child protection, social security and housing departments, and other ‘broader justice system players’”, and the role of government and policy makers is critical.
This legislation is a new concept in Australia and globally. Given the absence of a formal consultation process, the Law Society seeks the urgent review of the Government’s priority for these laws and that all community stakeholders be provided with appropriate time to comment. This legislation is not to be rushed through the Parliament in time for the Christmas holiday period. At the very least in the interests of fairness and impartiality in exercise of this power the orders should always be subject to judicial consideration particularly to ensure procedural fairness is afforded to a person affected. The Liquor Licensing Commission is not resourced appropriately to be making decisions of this nature.
Law Society President Rebecca Lee said, “It is concerning that there has been limited consultation given the extent to which the new laws will impact the community. The apparent appropriate intent to promote public safety and encourage families to frequent these precincts may be negatively outweighed by the impact of unconscious bias and the lack of judicial oversight. As a matter of principle, there is no increase in public safety if power is unchecked.
“The new laws are untested anywhere in the world and no assurance has been provided that the principles of administrative and procedural fairness will be available under the new powers. The police should not be able to make guidelines for their own purpose. The making of guidelines should be used in limited circumstances and be subject to Parliamentary oversight. Policing decisions should be amenable to judicial scrutiny. With respect, the Government needs to stop rushing legislation into Parliament, which is becoming the norm and not the exception.”
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The Law Society of Western Australia is the peak professional association for lawyers in the State. The Society is a not-for-profit association dedicated to the representation of its more than 4,000 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia.