Crimes Legislation Amendment (Public Order) Bill 2017

 Ms PENNICUIK (Southern Metropolitan) — I rise to speak on the Crimes Legislation Amendment (Public Order) Bill 2017. This bill does the following: it amends the Control of Weapons Act 1990 to provide police with additional powers so as to direct people wearing masks in certain circumstances to leave a designated area, it amends the Crimes Act 1958 to introduce new public order offences to replace existing common-law offences and it amends the Summary Offences Act 1966 to impose on local government a requirement to consult with Victoria Police when considering applications for permits that relate to proposed protests.

At the outset I have to say that while we understand that it is important for the police to have enough powers to deal with unruly behaviour in the public sphere, we do not actually see the need for the anti-mask provisions that are in this bill. What they do is permit police officers to direct a person to leave a designated area if the officer holds a reasonable belief the person is wearing a mask to conceal their identity or to protect themselves from crowd-control substances and the person has refused to remove the mask. The government says it is aimed at protesters who are wearing balaclavas and other face coverings for an unlawful purpose. What I would say in response to that is that this is already not allowed; it is already illegal under the Summary Offences Act. Under the Summary Offences Act:

A person must not with unlawful intent—

(a)    be disguised or have a blackened face; or

(b)   have an article of disguise in his or her custody or possession.

The penalty for that is two years maximum imprisonment. It is already against the law under the Summary Offences Act to wear a face covering or to have one in your possession for an unlawful purpose. Only yesterday I was speaking about the introduction by way of a private members bill of an unnecessary offence — of an offence that already exists — and again I am speaking about it now. The government is putting forward another offence which is already illegal under the Summary Offences Act. That is the first point — that we already have an offence with regard to unlawful behaviour while wearing a mask or wearing a disguise under the Summary Offences Act.

The other issue with this particular provision in the bill is that it gives police the power to ask a person to leave a designated area if they are wearing a face covering with the intention of concealing their identity or with the intention of avoiding breathing in fumes from substances that may be deployed by the police, such as capsicum spray.

I listened to Mr Somyurek's contribution, and he made two comments. One was that if persons are in a designated area or, as he said, at a protest — and in Australia people have the right to protest — and they are wearing a face covering, 'we know what they are up to'. People could be wearing a face covering at a protest for any number of reasons. For example, they may be wearing a mask of a famous politician to make their political point or they could be wearing a fun mask to make a lighthearted point about their protest. There is no way that the intent can be reasonably understood by the police.

The other point which is of great concern to the Greens, and again Mr Somyurek mentioned this in his contribution, is that the bill does not allow the police to ask someone who was wearing a face covering for a religious or cultural reason to actually do that. There is nothing in the bill that says that; there is nothing in the bill to safeguard that. It says 'if the person is wearing the mask to conceal their identity or protect themselves from crowd-control substances'; that is what the police officer has to form the reasonable belief about. But there is no guidance as to what type of face coverings can and cannot be worn, so this infringes on political expression. People may be wearing masks for medical reasons. They may be wearing face coverings for cultural or religious reasons, for political expression reasons or for entertainment purposes. As I said, it is already an offence to be disguised for an unlawful purpose. There is already an offence under the law for this, so there is no need for this particular provision in the bill.

The Greens have some amendments which I circulated just a couple of minutes ago because I had indicated to the leaders of the various parties and the crossbench that I would circulate new amendments this morning ahead of debate on this bill this afternoon, but the bill has come on very quickly, so I am happy to have my amendments to the bill circulated.

Mr Ramsay — On a point of order, Acting President, I might just be predetermining that outcome, but I have not seen the amendments. Ms Pennicuik indicated to us that they had been circulated.

The ACTING PRESIDENT (Mr Morris) — Thank you, Mr Ramsay, said amendments are being circulated as we speak, I understand at this point, so hopefully they will be in your hot little hands in the not-too-distant future. Ms Pennicuik, do you want to continue?

Greens amendments circulated by Ms Pennicuik (South Eastern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — Thank you. To continue, the first amendment that we wish to move will be to remove this new provision from the bill. Given this is the government's bill I presume they will not support the amendment. However, I hope others in the chamber will be persuaded by what I am saying — that is, that this is already illegal and there is no need for this particular provision in the bill. Should the amendment not be supported, then my colleague Ms Hartland will move a subsequent or alternate amendment to that provision. Following on from the ability of a police officer to direct a person to leave a designated area if they are wearing a mask to conceal their identity, the amendment to be moved by Ms Hartland reads:

To avoid doubt, a police officer must not give a direction to a person under subsection (1) if the police officer is satisfied that the person is wearing a face covering, primarily—

(a)    for cultural or religious reasons; or

(b)   for medical reasons; or

(c)    the purpose of political expression; or

(d)   for entertainment purposes; or

(e)    because the person is engaged in trade or employment where a face covering is required to ensure the physical safety of the person.

There are no provisions similar to this anywhere else in Australia but there are in other parts of the world. Wherever they exist in other jurisdictions they are qualified by similar provisions to that contained in the amendment that will be moved by Ms Hartland. In the United States, Canada and other places where they have this type of provision in their law they qualify it, allowing particularly for political expression, religious and cultural reasons — that is, police are not permitted to ask people to remove those face coverings.

Of course, ipso facto, if you have a face covering on, your identity is disguised, but if the reason you are wearing a face covering is a cultural or religious reason or if the motivation for wearing it is for a political expression reason or for entertainment or for something like that, it does not follow that the motivation is nefarious or unlawful. There is very little guidance in this bill for the protection of peaceful protest and protest involving costumes or face coverings of a political nature.

Turning to the other parts of the bill, the bill amends the Crimes Act to introduce new public order offences to replace certain common-law offences. The new offence will be the offence of affray, and there is a new statutory definition of 'affray' under clause 8, which would read:

A person who uses or threatens unlawful violence and whose conduct would cause a person of reasonable firmness present at the scene to be terrified commits an offence and is liable to—

(a)    level 6 imprisonment (5 years maximum); or

(b)   imprisonment for 7 years if, at the time … the person is wearing a face covering used primarily—

(i)    to conceal the person's identity …

Again, this is unnecessary because a court would decide whether that was an aggravating circumstance, and it is not necessary to put it in the offence.

A new statutory offence of violent disorder will be inserted by the bill. I did have some concerns about these new offences, but I take the point that Victoria is the only jurisdiction that has not converted those common-law offences into statutory offences. I had some discussions with the Attorney-General about these new offences, and on balance the Greens are not going to be opposing those.

With regard to the other main provision of the bill, which is the amendment to the Summary Offences Act 1966 to impose on local councils the requirement to consult with police when they are considering applications for permits that relate to proposed protests, it is a good idea. I am not sure that it necessarily has to be put into the Summary Offences Act. I would have thought in many cases local councils and police do work together on protests that are planned for the area whereby a council has to issue a permit. It is my understanding that that just generally happens, and I would have thought you could actually acquit this via a protocol between the police and local councils or a memorandum of understanding. I do not necessarily think you have to put it in the act. Nevertheless, we will not be opposing that particular provision.

In conclusion, the Greens have concerns with the main provision of the bill. Basically it is unnecessary and ill-defined, and it will capture people who should not be captured in terms of wearing legitimate face coverings in what is deemed a designated area by the police for what in many cases, probably in most cases, will be a political protest.

In Committee:

Clauses 1 to 5 agreed to.

Clause 6

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 6, lines 24 to 30 and page 6, lines 1 to 6, omit all words and expressions on these lines.

This is an amendment to clause 6 which would remove new section 10KA from the act. New section 10KA(1) provides that:

A police officer may direct a person wearing a face covering to leave a designated area if—

(a)    the police officer reasonably believes the person is using the face covering primarily—

(i)    to conceal the person's identity; or

(ii)   to protect the person from the effects of crowd-controlling substances; and

(b)   the person refuses to remove the face covering when requested by the police officer to do so.

I will just briefly reiterate the comments I made in my contribution. The Greens do not believe this section is needed, because it is already illegal under the Summary Offences Act 1966 for a person to be wearing a disguise or to have in their possession a disguise for an unlawful purpose. Despite the comments made in the second-reading debate by Mr Somyurek and just recently by Ms Patten with regard to this provision being a different provision, I would say that this provision is unnecessary because of that one. Also I would say that it should not be implied in any law that to disguise your identity is an unlawful act. An unlawful act would be assault, affray or violent disorder, but when it comes to participating in a protest with a face covering on, it should not be the default position that that action is motivated by nefarious or unlawful intentions.

As I said — and this has been raised with us by the Law Institute of Victoria and Liberty Victoria as well — we believe very strongly in political expression and political protest. Some of that may involve the use of face coverings for political expression or as an amusing way of making a political point, but also people may be participating in a protest and wearing the normal face coverings that they wear for cultural or religious reasons. I do not see anything in this bill that prevents a police officer from removing a face covering for those reasons. I think the main point is that we are introducing law that is unnecessary, and therefore the amendment is to remove that provision.

The DEPUTY PRESIDENT — Ms Pennicuik, I ask you to move your amendments 2 and 3, as they are consequential.

Ms PENNICUIK — Thank you, Deputy President. Amendments 2 and 3 are consequential to amendment 1. I move:

2.        Clause 6, page 6, line 7, omit “(2)” and insert “(1)”.

3.        Clause 6, page 6, line 13, omit “(3)” and insert “(2)”.

Mr RICH-PHILLIPS (South Eastern Metropolitan) — Minister, I would like to take you to Ms Pennicuik's argument that the use of a face covering for an illegal purpose is already covered in, I think, the Summary Offences Act. I would like to ask you therefore whether the purposes which are listed in clause 6, where a police officer may act if they reasonable believe that a person is using a face covering for those listed purposes of concealing identity, avoiding the effects of a crowd-controlling substance et cetera, are illegal purposes?

Ms TIERNEY (Minister for Training and Skills) — I thank the members for their contributions so far. Can I specifically deal with Ms Pennicuik's amendments first in response and then as part of that deal with the issue raised by Mr Rich-Phillips.

Essentially in relation to Ms Pennicuik's amendment, we do not support the amendment. This amendment would remove the provisions of the bill relating to police powers to give directions as to the removal of a face covering in designated areas — I think that is important, it is designated areas. Violent behaviour committed by masked individuals can induce additional fear in members of the public and create significant issues for police in identifying offenders and controlling crowds in situations such as the Moomba riot and indeed what we saw at the protest in Coburg in 2016.

The existing offence of being disguised with unlawful intent, in the Summary Offences Act 1966, does not provide police with the necessary and appropriate powers to deal with masked protesters within a designated area, Mr Rich-Phillips, in terms of partially addressing your question. The offence requires police to establish that the person is not only wearing a disguise but has the intention of committing an unlawful act. In a fast-moving protest or other disturbance of public order this intention can be difficult for police to ascertain, and I think we would all recognise that.

In a large public gathering the power in the bill to direct a person to remove the face covering has a simpler test. If the officer reasonably believes the person is wearing a face covering for the primary purpose of concealing their identity or shielding themselves from capsicum spray, the officer can ask the person to remove their face covering or leave the area. If the person chooses to keep wearing the face covering and leaves the area as directed, they will not have committed an offence; hence a person can choose to continue wearing their face covering if they leave the designated area immediately. Alternatively, the person can remove their face covering and remain in the designated area. Only a person who refuses to comply with either option after having them properly explained by the police officer can be charged with the offence, which is punishable by 5 penalty units.

These powers will only be available in an area designated by the Chief Commissioner of Police under the Control of Weapons Act 1990 and for a maximum of 12 hours. Obviously the police will receive guidelines and training on the appropriate use of this power.

Mr RICH-PHILLIPS — Thank you, Minister. Can you clarify, Minister, whether the provisions in proposed section 10KA(1)(a)(i) — that is, to conceal the person's identity, which is the first element, and to protect the person from the effects of crowd-controlling substances, being the second element — are unlawful acts for the purposes of the summary offences provision?

Ms TIERNEY — The provisions in proposed section 10KA are not in themselves illegal — that is, they would not amount to unlawful acts by themselves. The offence in the bill is only committed where the person refuses to either remove the face covering or leave the area. The Summary Offences Act offence is directed at people who are disguised with the intent of committing further offences such as theft or robbery et cetera.

Mr RICH-PHILLIPS — Thank you, Minister, that is a helpful clarification. In respect of the application of this provision requiring the police officer to form an opinion, a reasonable belief, that the purpose of the face covering is one of those two elements as listed, how will the police officer determine that the face covering is for the purpose of concealing identity or for avoiding capsicum spray? What guidance is being provided?

Ms TIERNEY — Obviously that is covered off in relation to the last comment that I made in response to Ms Pennicuik's amendment, and that is that police will receive guidelines and training on the appropriate use of the power. The advisers have advised me that those guidelines are being developed.

Mr RICH-PHILLIPS — Thank you, Minister. Are you able to give the chamber any understanding of the directions those guidelines are headed, as to how this will be applied? For example, is a face covering for this purpose a medical mask, a breathing mask? Someone on a day of high pollution may choose to wear one of those medical masks. How will that be considered in the context of this provision?

Ms TIERNEY — As I said, it is in relation to those that police believe are about to commit an offence. If there is a reasonable assessment to that, then they will be spoken to. If they refuse to leave or refuse the direction, then that is when issues become clear.

Ms PENNICUIK — Thank you, Minister, for your answer. You started out your answer by saying violent behaviour needs to be addressed in designated areas. Of course, violent behaviour is already illegal. The police can arrest anyone in a designated area who is engaging in violent behaviour, whether or not they have a face covering on. We do not need further legislation, such as what is being put here, to do that. The Summary Offences Act would cover that. You mentioned that the Summary Offences Act is designed to catch a person who is wearing a disguise or has a disguise in their possession who has the intent of committing theft. That is not actually what the provision says. It says 'unlawful intent', which would include a violent act. It does not specify theft. Of course it would include theft, and I can understand that, for example, cat burglars with a disguise breaking into people's houses would be covered by that provision, but so would somebody who is wearing a disguise or has a disguise in their possession and is involved in or is intending to be involved in a violent activity. My point is they would also be covered by that provision.

The problem with this provision is that in your answer, Minister, you said that in a fast-moving protest the police would need to be able to establish whether the people were wearing their face covering for the purposes of concealing their identity or to not be overcome by capsicum spray. It is implying that they are unlawful activities — that you should not be allowed to conceal your identity. Ipso facto, I said in my contribution that if you are wearing a face covering, you are concealing your identity, but that might not be the motivation.

Minister, it would seem to me that in a fast-moving protest what the police should be concentrating on are the people who are involved in unlawful activities, such as violent behaviour, not whether or not they are wearing face coverings. That is what the police, I think in a practical sense, should be doing. If there was a peaceful protest with no unlawful activity happening — nobody causing a disruption, no affray or violent disorder, as the new offences introduced by this act define them, but everybody standing around being peaceful — why would there be any need for the police to ask people to remove face coverings for those reasons outlined in the bill? That is the problem that this particular provision raises.

Ms TIERNEY — It is not just the matter of wearing a disguise or hiding one's identity. It is also about the intention of committing an unlawful act. The fact of the matter is, particularly after the riots that we saw in relation to Moomba and in Coburg, the real question in a lot of people's minds from the community was: how did it get to this point, how was this allowed to happen? This is essentially one of the prime principles behind this bill, in that there needs to be clarity for police in particular for them to be able to know when they can intervene. They thought that when it came to a large group and it seemed that things could get out of hand, there were grey areas.

Ms PENNICUIK — With respect, Minister, the provision does not mention anything about violent behaviour. It just mentions concealing the person's identity or protecting the person from the effects of a crowd-controlling substance. The crux of the issue I am talking about is that we already have an offence under the Summary Offences Act which is about disguises and unlawful behaviour. Unlawful behaviour, be it violent behaviour, is already illegal; the police can already arrest people who are engaging in violent behaviour.

With both of the examples that have been raised in terms of this debate, as concerning as they are, there is nothing in the law to stop people being arrested, whether or not they were wearing a face covering for being involved in violent behaviour. That is already illegal; police can already arrest people. What you are introducing with this bill is the ability for police to ask people to leave a protest just because they may be concealing their identity or they may not want to be overcome by capsicum spray. They may not be doing anything else that could possibly be construed as unlawful.

Ms TIERNEY — I have put the government's position on this matter. There is nothing further to add on this point.

Mr RICH-PHILLIPS — I place on the record that while I appreciate the arguments Ms Pennicuik is making and the ambiguity that exists around this provision, which certainly highlights the need for there to be clear guidance provided to Victoria Police as to how this provision will be used, on balance the coalition believes this is a reasonable power to be given to Victoria Police. I note the minister referred to difficulties which arose at the Moomba riots. The coalition would say that it is largely because of the government's repeal of the move-on laws that Victoria Police did not have the powers it needed on that occasion. We will not support Ms Pennicuik's amendment to remove this provision. We do think it is a reasonable provision to be given to Victoria Police but are conscious that appropriate guidance will be required.

Ms TIERNEY — Just for clarity, a point made by Ms Pennicuik was in terms of a peaceful protest. If it is an entirely peaceful protest and there is no anticipation of violence with weapons, then police simply cannot use their powers.

(Given Ms Pennicuik's amendment was not supported by the government her alternate amendment was moved by her colleague Ms Hartland)

Ms HARTLAND (Western Metropolitan) — I move:

1.     Clause 6, page 6, after line 6 insert—

(2)   To avoid doubt, a police officer must not give a direction to a person under subsection (1) if the police officer is satisfied that the person is wearing a face covering primarily—

(a)    for cultural or religious reasons; or

(b)   for medical reasons; or

(c)    for the purpose of political expression; or

(d)   for entertainment purposes; or

(e)    because the person is engaged in trade or employment where a face covering is required to ensure the physical safety of the person.”.

2.     Clause 6, page 6, line 7, omit “(2)” and insert “(3)”.

3.     Clause 6, page 6, line 13, omit “(3)” and insert “(4)”.

Clearly the reason for moving this is that we want to make absolutely clear what a police officer needs to do to be satisfied.

Ms PENNICUIK — In support of the amendment moved by Ms Hartland, where these laws exist overseas, they are qualified by similar provisions. For example, in Georgia in the USA a person cannot wear a mask or hood to conceal their identity in a public setting like a designated area unless it is part of a traditional holiday costume or the person needs it for lawful trade, employment, sport, a professional reason, a theatrical production like Mardi Gras, masquerade balls or a gas mask for emergency drills. In Washington, for example, there is a requirement not to wear a mask or a hood in a public meeting if the person wearing it has the intent to commit unlawful behaviour. The act then lists the type of behaviour that is unlawful, including to instil fear in others for their personal safety. The reason the Greens are moving this amendment is to make it clear that, for persons who are wearing a face covering for the reasons outlined in our amendment, it would not be legal or permissible for the police officer to ask them to do that.

Why I raise the issue of where these laws exist elsewhere is to note that they are qualified by similar provisions to what we are putting in and that the provision that I tried to remove by my first amendment is more robustly outlined, as in the Washington example that the person wearing it has the intention to commit unlawful behaviour, which is missing from the provision in this bill. The provision in this bill is too vague and broad and does not have any qualification whatsoever. Whether or not there is guidance given to the police, there is no protection for people in the act, and that is why the Greens are moving these provisions similar to ones that exist in other jurisdictions.

Mr RICH-PHILLIPS — The amendment proposed by Ms Hartland in the coalition's view is largely redundant given the structure of the principal clause, which provides that a police officer may direct a person to remove a face mask if they reasonably believe the primary purpose of wearing a face mask is to hide their identity or to avoid the impact of capsicum spray. The amendment that Ms Hartland is proposing states the police officer must not issue a direction if they believe the primary purpose of the face mask is one of the things that are listed in Ms Hartland's amendment. So the two provisions are effectively complementary, but the second one is redundant because if the police officer primarily believes that the purpose for issuing the order is because a person is hiding their identity or is seeking to avoid capsicum spray, they have already determined that the primary purpose is hiding their identity or avoiding capsicum spray. Therefore the qualifiers that Ms Hartland is seeking to engage in fact would not be engaged, so the coalition while recognising the intent of Ms Hartland in moving this amendment believes it is largely redundant because the primary purpose will have already been determined to be one of those which are set down in the act. So for that reason we will not support the addition of those ones in Ms Hartland's amendment.

Ms TIERNEY — Again the government does not support this amendment. The term 'face covering' is not explicitly defined to ensure that makeshift face coverings such as scarves and bandanas are captured if they are used as face coverings. The power to remove a face covering can be directed at any item covering the face so long as it is being used for the primary purpose of concealing the wearer's identity or for shielding the wearer from capsicum spray, as we covered off in dealing with Ms Pennicuik's amendment.

People who wear face coverings for legitimate religious, cultural and other purposes will not be affected by these new powers. The powers in this bill only apply to face coverings worn for the primary purpose of concealing the wearer's identity or shielding the wearer from capsicum spray. The government did make it clear in its second-reading speech for the bill that these powers will not apply to people wearing face coverings for another purpose, such as religious reasons or medical reasons. They are not affected. The government does not support spelling out specific exemptions in the avoidance of doubt provision that violent protesters could seek to rely on to avoid being directed to leave by the police. The bill will allow police to require removal of religious face coverings or direct a person to leave the area where they have clearly been worn for the purposes specified rather than any genuine religious or cultural reasons, and again Victoria Police will receive guidance and training on the appropriate use of these powers.

Ms PENNICUIK — Thank you, Minister, for your answer, although your answer does not fill me with any more reassurance. In fact it confirms the reason for needing these qualifications. As I pointed out in my earlier remarks, wherever these types of provisions exist anywhere else in the world they are qualified such that the primary provision is stronger about why a police officer would ask for the removal of a face covering, and that is with unlawful intent, which this provision does not say, so it is very broad and open. The statement made in the second-reading speech that these provisions could not be used against someone who was wearing a face covering for a medical, cultural or religious reason is all well and good, but that is not what the provision says.

Picking up on Mr Rich-Phillips's point, it is also not unusual for a provision such as this to be qualified by another provision. In many instances it will say 'to avoid doubt this does not apply'. It is very common around the statute book, which I know my way around fairly well now, so it is not an uncommon provision to make it very clear and to assist I think in the type of guidance that would be provided to the police on the use of these powers. So I do not take Mr Rich-Phillips's point at all, because it is not an unusual type of qualification to put in and it does strengthen this I think. If you are going to have this provision, it needs to be clearer as to how it can be used, and it is not at the moment.