Clause Notes

Clause 1 sets out the main purpose of the Bill, which is to repeal certain amendments made to the Summary Offences Act 1966 by the Summary Offences and Sentencing Amendment Act 2014 in relation to move-on powers and related exclusion orders.

Clause 2 provides that the Bill will come into operation on the day after the day on which it receives Royal Assent.

Clause 3 provides that, for the purposes of the Bill, Principal Act means the Summary Offences Act 1966.

Clause 4 repeals several amendments made to section 6 of the Summary Offences Act 1966 by the Summary Offences and Sentencing Amendment Act 2014.

Subclauses (1) and (2) restrict the circumstances in which police officers and protective services officers may direct a person to leave a public place under section 6(1) of the Summary Offences Act 1966.  Under the changes set out in this Bill, a police officer or protective services officer on duty at a designated place may only direct a person or persons in a public place to leave the public place, or part of the public place, if the officer suspects on reasonable grounds that—

• the person is or persons are breaching, or likely to breach the peace; or
• the person is or persons are endangering, or likely to endanger, the safety of any other person; or
• the behaviour of the person or persons is likely to cause injury to a person or damage to property or is otherwise a risk to public safety.

Sections 6(1)(d), (e), (f), (g) and (h), which were inserted by the Summary Offences and Sentencing Amendment Act 2014 are repealed.  Those subsections expressly provide that police officers and protective services officers may direct a person or persons in a public place to leave the public place if the officer suspects on reasonable grounds that—

• the person has or persons have committed, within the last 12 hours, an offence in the public place; or
• the conduct of the person or persons is causing a reasonable apprehension of violence in another person; or
• the person is or persons are causing, or likely to cause, an undue obstruction to another person or persons or traffic; or
• the person is or persons are present for the purpose of unlawfully procuring or supplying, or intending to unlawfully procure or supply, a drug of dependence; or
• the person is or persons are impeding or attempting to impede another person from lawfully entering or leaving premises or part of premises.

These circumstances will no longer form a basis for giving a move-on direction in their own right.  However, such conduct may still provide the basis for issuing a move-on direction where it also satisfies one of the three remaining grounds in sections 6(1)(a), (b) or (c).  For example, a police officer may still be able to give a move-on direction to a person causing a reasonable apprehension of violence in another person if the officer suspects on reasonable grounds that the person is breaching the peace, or is likely to endanger the safety of another person.  

Consistent with section 14 of the Interpretation of Legislation Act 1984,it is intended that a move-on direction issued prior to the commencement of the Summary Offences Amendment (Move-on Laws) Act 2015 will remain in effect for its stated duration regardless of whether the ground the direction was issued on is subsequently repealed.  

Subclause (3) repeals section 6(1A) of the Summary Offences Act 1996.  Section 6(1A) had provided further guidance for determining whether an obstruction is undue for the purposes of section 6(1)(f) of the Summary Offences Act 1966.  Subclause (2) repeals section 6(1)(f), making section 6(1A) redundant.

Subclause (4) substitutes the words "This section does" for "and may apply to an individual person or a group of persons" in section 6(2) of the Summary Offences Act 1966.  It is unnecessary to expressly provide that a move-on direction may apply to an individual person or a group of persons because section 6(1) already demonstrates this intention.  Section 6(1) of the Summary Offences Act 1966 makes it clear that a police officer or protective services officer may give a move-on direction to a person or persons.  

Subclauses (5) and (6) repeal the changes made to sections 6(5) by the Summary Offences and Sentencing Amendment Act 2014.  Subclause (5) amends section 6(5) and subclause (6) repeals section 6(6) of the Summary Offences Act 1966 to provide that police officers and protective services officers will not have any power to give a move-on direction to a person who, whether in the company of other persons or not, is—

• picketing a place of employment; or
• demonstrating or protesting about a particular issue; or
• speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue.

Clause 5 repeals section 6A of the Summary Offences Act 1966.  Section 6A was inserted by the Summary Offences and Sentencing Amendment Act 2014 and provides police officers and protective services officers with a specific arrest power where they reasonably believe a person has failed to comply with a move-on direction without a reasonable excuse.  

It is intended that police officers and protective services officers will now rely on the general arrest power in section 458 of the Crimes Act 1958 to arrest a person contravening a move-on direction.  Specifically, section 458(1)(a) empowers any person to apprehend a person who he or she finds committing an offence where the arresting person believes on reasonable grounds that the apprehension of the other person is necessary—

• to ensure the attendance of the offender before a court of competent jurisdiction; or
• to preserve public order; or
• to prevent the continuation or repetition of the offence or the commission of a further offence; or 
• for the safety or welfare of members of the public or of the offender.

This change means that the arrest powers applying to the offence of contravening a move-on direction under section 6(4) of the Summary Offences Act 1966 are the same as those that apply to the majority of other summary offences in that Act.  

Clause 6 repeals section 6B of the Summary Offences Act 1966.  Section 6B was inserted by the Summary Offences and Sentencing Amendment Act 2014 (and subsequently further expanded by the Criminal Organisations Control and Other Acts Amendment Act 2014).  Itempowers a police officer or protective services officer to request a person to state their name and address where the officer intends to direct the person to move on.

The main reason for creating this power was to enable police officers and protective services officers to keep a record of who they give move-on directions to for the purposes of making an application for a related exclusion order under Division 1B of Part I of the Summary Offences Act 1966.  Clause 7 repeals that Division, making the main purpose of section 6B redundant.  

Consequently, the fact that a police officer or protective services officer intends to direct a person to move on will not, of itself, form an express basis for any power to request a person to state their name and address.  However, the repeal of section 6B does not affect any other powers a police officer or protective services officer may have to require a person to state their name and address.  For example, under section 456AA of the Crimes Act 1958, a police officer may request a person to state their name address where the officer believes on reasonable grounds that the person—

• has committed or is about to commit an offence; or
• may be able to assist in the investigation of an indictable offence which has been committed or is suspected of being committed.

Similarly, under section 218B(2) of the Transport (Compliance and Miscellaneous) Act 1983 a police officer or a protective services officer on duty at a designated place may request a person to state their name and address if the officer believes on reasonable grounds that the person has committed or is about to commit an offence against specified Acts or regulations.

Clause 7 repeals Division 1B of Part I of the Summary Offences Act 1966.  That Division created a new move-on related exclusion order scheme and its repeal means that police officers will no longer be able to apply to the Magistrates' Court for an exclusion order where a person has repeatedly been directed to move on from a particular public place.

Clause 8 sets out three transitional provisions inserted after section 62(9) of the Summary Offences Act 1966.  New section 62(10) is inserted into the Summary Offences Act 1966 to provide that section 6A of the Summary Offences Act 1966 continues to apply in respect of an arrest made under that section before the commencement of the Summary Offences Amendment (Moveon Laws) Act 2015.  The purpose of this provision is to ensure that the safeguards in sections 6A(2), (3) and (4), which limit how long an arrested person can be detained, continue to apply to a person arrested under section 6A where that section is repealed while the person is still being detained.

New section 62(11) provides that any exclusion orders made under Division 1B of Part I and currently in place immediately before that Division's repeal will cease to have effect after the commencement of the Summary Offences Amendment (Moveon Laws) Act 2015.

New section 62(12) clarifies that the Chief Commissioner of Police does not need to provide a report to the Attorney-General on the use of move-on exclusion orders for the period in which the move-on related exclusion order scheme in Division 1B of Part I was in effect.  

Clause 9 provides for the repeal of this amending Bill on the first anniversary of the day on which it comes into operation. 
The repeal of this Bill does not affect in any way the continuing operation of the amendments made by this Bill (see section 15(1) of the Interpretation of Legislation Act 1984).