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.
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?