Wednesday, 27 November 2024

Terrorism (Community Protection) and Control of Weapons Amendment Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:11): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Terrorism (Community Protection) and Control of Weapons Amendment Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Terrorism (Community Protection) and Control of Weapons Amendment Bill 2024.

In my opinion, the Terrorism (Community Protection) and Control of Weapons Amendment Bill 2024, as introduced to the Legislative Assembly, is partially incompatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

1. Overview

The Bill makes multiple amendments to Part 2AA and Part 4A of the Terrorism (Community Protection) Act 2003. Amendments to Part 2AA are technical only, arising consequentially from amendments made to the Australian Security Intelligence Organisation Act 1979 (Cth).

Amendments to Part 4A of the Terrorism (Community Protection) Act 2003 include:

• refining the Voluntary Case Management (VCM) program eligibility criteria to service individuals who are ‘vulnerable to violent extremism’ rather than those ‘at risk of radicalising’

• enabling the provision of programs and services to ‘key persons’, such as family members of a participant on the VCM scheme, and

• various amendments to the functions of the Secretary to the Department of Justice and Community Safety under Part 4A to promote end-to-end oversight and accountability of the VCM scheme.

The Bill also amends the designated area planned and unplanned without warrant or suspicion weapons search provisions of the Control of Weapons Act 1990 by:

a. modifying the advertising requirements for planned designations (for events and non-events) to remove the requirement to publish notices of planned designations of areas in newspapers and, instead, to require publication on a website maintained by Victoria Police

b. increasing the time for which the operation of a planned designation for an event can apply, including time either side of an event

c. reducing the minimum time that must elapse from the end of a planned designation before another declaration can take effect in the same area, from 10 days to 12 hours

d. reducing the threshold for planned designations so that they can operate in relation to new and emerging events where there is intelligence of a likelihood of weapons-related violence or disorder occurring at those events

e. increasing the duration of planned and unplanned designations from 12 hours to 24 hours to enable Victoria Police to better respond to prolonged community safety risks

f. providing a penalty of two penalty units for the offence of obstructing or hindering a protective services officer exercising powers to stop and search a person or vehicle or seize and detain a thing in a designated area.

The purpose of the amendments to the Control of Weapons Act 1990 is to enable Victoria Police to exercise current significant powers to conduct planned and unplanned weapons search operations in designated areas more easily, for longer periods and in expanded circumstances. I consider these amendments necessary to enhance Victoria Police’s ability to detect and deter weapons offending in public places in light of recent and very concerning incidents of weapons offending and community fear about the misuse of weapons.

Victoria’s scheme has been operational and effective for 15 years with very little change and the amendments in this Bill arise out of a consideration of the scheme with a view to making some meaningful improvements based on years of operational experience. The amendments are necessary to respond to persistent and concerning weapons carriage in the community.

2. Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The amendments to both Acts raise a number of issues in terms of compatibility with the Charter. In this statement, I deal first with the issues raised in respect of the Terrorism (Community Protection) Act 2003 because that conforms with the structure of the Bill; however, the most significant Charter issues arise in relation to the amendments to the Control of Weapons Act 1990.

Terrorism (Community Protection) Act 2003

The right to protection of families and children (section 17) are relevant to these reforms.

This reform promotes the right to protection of the family (section 17 of the Charter). The government is obliged to protect families as the fundamental group unit of society. The Bill advances this obligation, by amending the Terrorism (Community Protection) Act 2003 to allow parents, guardians, caregivers or other key persons in relation to young people (under the age of 18) on a VCM plan to be eligible for services and programs. Such services and programs may include parental support and family counselling, which ultimately promote a resilient and cohesive family unit. The Bill further advances this right by enabling the Secretary to disclose information to a parent or guardian about the reason for a child’s referral to the Secretary, and the content of their VCM plan, where a child cannot provide informed consent to participate in the VCM program.

This reform additionally promotes the right to protection of children (section 17 of the Charter). The government is obliged to treat children and young people in a way that takes their best interests into account. The Terrorism (Community Protection) Act 2003 currently provides that, in the case of a person under the age of 15, informed consent to participate in the VCM program must be provided by one of the person’s parents or guardians. The Bill reforms this, providing that informed consent to participate in the VCM program for a person under the age of 18 can be solely provided by the person if they demonstrate capacity to provide informed consent (as determined by the Secretary). This recognises the agency of people younger than 18 years old, whilst protecting those who are incapable of providing informed consent from making decisions they do not fully understand.

However, the amendments discussed above do interfere with the right to privacy under section 13 of the Charter, which provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Importantly, interferences with privacy do not amount to a limitation on that right if the interference is lawful and is not arbitrary. An interference will be lawful if it is permitted by a law which is adequately accessible and precise. An interference will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. An interference may be arbitrary even if it is not unlawful.

As noted above, the Bill enables the Secretary to disclose information relating to the reason for a child’s referral to the VCM program or the content of a child’s VCM plan to the child’s parent/s or guardian/s. The ability to disclose information is necessary in cases wherein a child does not have the capacity to give informed consent to participate in a VCM program. In this case, it is necessary for the child’s parent/s or guardian/s to understand why the child was referred to the VCM program. Should they provide consent for their child to be involved, the child’s parent/s or guardian/s will need to be involved in the co-development of a VCM plan; for this to occur, the Secretary needs to be able to disclose the content of the VCM plan.

Furthermore, the ability to disclose information to a child’s parent/s or guardian/s ultimately supports the efficacy of the VCM program. Parent/s and/or guardian/s are key enablers to the success of CVE early intervention. It is important to bring them on board at the outset of engagement, given that they usually have the closest and most impactful relationship with their child. Disclosing information about the nature of the referral and the content of the VCM plan also helps build trust between the parent/s and/or guardian/s of child referrals or participants on the VCM program. This trust further bolsters the efficacy of early intervention.

This reform therefore interferes with the right to privacy in a clear, justified and proportionate manner.

In conclusion, the amendments contained within the Bill to Part 4A and Part 2AA of the Terrorism (Community Protection) Act 2003 do not limit any Charter rights.

Control of Weapons Act 1990

Overview of the designated area weapons search scheme

The Summary Offences and Control of Weapons Acts Amendment Act 2009 introduced sections 10C to 10L and Schedule 1 into the Control of Weapons Act 1990 to empower police to stop and search persons and vehicles in public places that fall within areas that have been temporarily designated on the basis of a likelihood of weapons-related violence or disorder occurring in the designated area. The designated area search powers do not require police to have first formed a reasonable suspicion that the person to be searched is carrying a weapon, nor do police require a warrant to search a person for a weapon in a designated area.

I note that police officers and protective services officers on duty in designated places also have powers to search people in all public places if they have reasonable grounds for suspecting that a person is carrying or has in their possession a weapon contrary to the Control of Weapons Act 1990 under sections 10 and 10AA respectively of the Act. These are the powers that are properly utilised when those circumstances arise.

Sections 10D to 10F of the Control of Weapons Act 1990 empower a senior police officer (ranked Assistant Commissioner or above) to declare an area to be a designated area for a maximum period of 12 hours. There are two forms of designation - ‘planned designations’ and ‘unplanned designations’. Planned designations may be made where there has already been more than one incident of weapons-related violence or disorder in the proposed area over the last 12 months, or where weapons-related violence or disorder has been associated with a particular event on previous occasions (section 10D). Additionally, the officer making the designation must be satisfied that there is a likelihood that such violence will recur.

Unplanned designations are to deal with the situation where the police receive intelligence that an incident involving weapons-related violence has occurred or is about to occur. An unplanned designation can be made where the officer is satisfied that it is likely that violence or disorder involving weapons will occur in the area and that it is necessary to designate the area for the purposes of enabling the police force to exercise search powers to prevent or deter the occurrence of that violence or disorder (section 10E).

Sections 10G to 10L of the Control of Weapons Act 1990 authorise the police and protective services officers on duty in a designated place, in public places that fall within a designated area, to stop and search for weapons: persons and things in their possession or control (section 10G), and vehicles (section 10H). The police and protective services officers are empowered to seize any item detected during the search that they reasonably suspect is a weapon (section 10J).

A police officer or protective services officer who detains a person or vehicle under section 10G or 10H of the Control of Weapons Act 1990 in order to conduct a search must, if requested by the person, inform them of their name, rank and place of duty and provide that information in writing, and, if not in uniform, produce their identification for inspection, inform the person that they intend to search the person or vehicle for weapons and are empowered to do so under the Control of Weapons Act 1990 and give the person a search notice unless one has been offered and the person refuses to take it.

A search notice provides the person to be subject to a search with the following information: that the person or vehicle is in a public place that is within a designated area, a declaration is in force under section 10D (planned designation) or 10E (unplanned designation) of the Control of Weapons Act 1990, that police officers and protective services officers on duty at a designated place are empowered to search the person and any thing in the possession or control of the person or the vehicle (if applicable) for weapons and it is an offence for the person to obstruct or hinder a police officer or protective services officer in the exercise of these stop and search powers.

Schedule 1 to the Control of Weapons Act 1990 sets out detailed requirements that police and protective services officers must comply with in conducting weapons searches. The search powers that may be exercised by police without any reasonable suspicion that a person or vehicle has a weapon in designated areas are graduated to ensure that initial searches may only be conducted by way of an electronic metal detection device which is capable of detecting the presence of metallic objects. The initial electronic device search is a search of a person or thing by passing an electronic device over or in close proximity to the person’s outer clothing or thing. It is the least intrusive form of search designed to fulfil the objective of the scheme to address the likelihood of violence and disorder involving the use of weapons in a designated area.

Only after an electronic metal detection device search has been conducted and, as a result of that search, a police officer considers that a person may be concealing a weapon can the police officer conduct a pat down search, search of outer clothing and search of any thing in the person’s possession, such as a bag (clauses 4 and 5 to Schedule 1 to the Control of Weapons Act 1990).

Clause 6 of Schedule 1 to the Control of Weapons Act 1990 sets out safeguards that police must, so far as reasonably practicable, comply with to preserve dignity during an outer search.

Strip searches are permitted under the search scheme but may only be conducted after an examination of things and outer search of the person has been conducted and the police officer reasonably suspects that the person has a weapon concealed on their person and the police officer believes on reasonable grounds that it is necessary to conduct a strip search of the person and the seriousness and urgency of the circumstances require the strip search to be carried out. Clauses 8 to 10 of Schedule 1 to the Control of Weapons Act 1990 set out detailed requirements that apply to the conduct of strip searches.

A police officer may request a person who is to be subject to a strip search under Schedule 1 to disclose their identity if that is unknown to the police officer (section 10K). It is an offence for a person to, without reasonable excuse, fail or refuse to comply with a request to disclose their identity, provide a false name or an address that is not the full and correct address.

Special rules apply to searches that are to be conducted on children and persons with impaired intellectual functioning to ensure that, as far as possible, outer searches and strip searches are conducted in the presence of a parent, guardian or independent person, or in the case of unplanned designated areas, or other person who may be a police officer in the case of searches conducted in unplanned designated areas.

The designated area provisions of the Control of Weapons Act 1990 (section 10J) also empower police and protective services officers to seize and detain any item detected during a search that is reasonably suspected to be a weapon. If after examining the item the police officer or protective services officer determines that the item is not a weapon, the item must be returned to the person without delay.

Section 10KA provides for other powers that may be exercised in relation to a designated area. These powers, which were inserted into the Control of Weapons Act 1990 by the Crimes Legislation Amendment (Public Order) Act 2017, permit a police officer to direct a person wearing a face covering to leave a designated area if the officer reasonably believes the person is wearing the face covering to conceal their identity or to protect themselves from the effects of crowd controlling substances (for example, oleoresin capsicum spray) and the person refuses to remove the face covering when requested to do so. A police officer may also direct a person to leave the designated area if they reasonably believe the person intends to engage in conduct that would constitute an affray or violent disorder offence under sections 195H or 195I of the Crimes Act 1958.

Extension of powers within designated areas

As I explained earlier, Part 3 of the Bill makes six substantive amendments to the planned and unplanned designated area weapons search provisions of the Control of Weapons Act 1990:

• modifying the advertising requirements for planned designations (for events and non-events) to remove the requirement to publish notices of planned designations of areas in newspapers and, instead, to require publication on a website maintained by Victoria Police

• increasing the time for which the operation of a planned designation for an event can apply to include a reasonable additional period, as determined by the Chief Commissioner, either side of the event

• reducing the minimum time that must elapse from the end of a planned designation before another declaration can take effect in the same area, from 10 days to 12 hours thereby permitting more frequent designations of areas to be declared

• reducing the threshold for planned designations so that they can operate in relation to new and emerging events where there is intelligence of a likelihood of weapons-related violence or disorder occurring at those events rather than a past history of incidents of violence or disorder involving weapons having occurred at the event

• increasing the duration of planned and unplanned designations from 12 hours to 24 hours to enable Victoria Police to better respond to prolonged community safety risks by doubling the maximum period of time during which weapons searches can be conducted in a designated area.

• providing a penalty of two penalty units for the offence of obstructing or hindering a protective services officer exercising powers to stop and search a person or vehicle or seize and detain a thing in a designated area.

Accordingly, the amendments have the effect of firstly, broadening the time and circumstances in which police and protective services officers will be able to conduct random searches in designated areas; and secondly, broadening the time and circumstances in which police officers will be able will be able to manage public safety issues in respect of those who conceal their faces and who intend to engage in violent conduct.

I will deal first with the human rights issues arising from the conduct of random searches.

Conduct of random searches

The extended operation of the search powers is relevant to the following rights:

• privacy (section 13(a))

• liberty and security of person (section 22)

• protection of children (section 17)

• freedom of religion and cultural rights (sections 14 and 19)

• freedom of movement (section 12)

• equality before the law (section 8)

When the designated area search scheme was introduced by the Summary Offences and Control of Weapons Acts Amendment Act 2009, the relevant Minister noted that, while the power to conduct an initial electronic device search may not amount to a sufficiently seriously intrusion to engage the right to privacy, the power to conduct pat down searches and search outer clothing and belongings does amount to a serious intrusion. The Minister concluded that this outer search power was incompatible with the right to privacy because it empowered police to interfere with a person’s privacy in way that was arbitrary, although not unlawful. The power to conduct a strip search was not considered incompatible because such searches can only be conducted on grounds of reasonable suspicion and in accordance with the necessity principle.

Subsequent amendments relaxing constraints on the use of the search powers, introduced by the Control of Weapons Amendment Act 2010, were considered to exacerbate the identified incompatibility. For those amendments, the Minister acknowledged that to the extent the random search powers are themselves arbitrary (and therefore incompatible with section 13(a) of the Charter) it must follow that any attendant deprivation of liberty is also arbitrary.

However, my view is that on balance, the scheme and the present amendments are arguably compatible with the right to privacy and the right to liberty and security. I have reached this view because since the previous Statements of Compatibility, there has been further consideration by the United Kingdom Supreme Court and the European Court of Human Rights of the proportionality of interferences with the right to privacy occasioned by stop and search powers, and the reasoning in those cases supports re-evaluation of the initial assessment of incompatibility.

In addition, while not addressed when the scheme was first introduced, I consider that the scheme and the amendments contained in this bill are compatible with the rights to freedom of religion and belief, cultural rights, equality before the law and freedom of movement.

Importantly, however, I consider that the amendments contained in this Bill are incompatible with the right to protection of children and families (section 17). I accept that the amendments maintain, if not exacerbate, the incompatibility identified when the scheme was first introduced.

Despite this incompatibility – and in the event that the scheme is also not compatible with the rights to privacy and liberty and security – I consider that these search powers remain necessary, and the amendments to extend the scheme are in the best interests of the community as violent incidents involving the use of weapons in public places has not abated and is of grave concern to the general public.

It is imperative that Victoria Police has the powers it needs to prevent and deter weapons offending in public places, especially in areas that people regularly traverse and where people congregate in significant numbers, such as public transport hubs and shopping complexes. I am satisfied that the amendments in this Bill will enhance Victoria Police’s ability to detect and deter weapons offending in public places and have a positive effect on community safety by enabling police to conduct weapons searches in planned and unplanned designated areas more easily, for longer periods and in expanded circumstances.

Right to privacy and reputation (section 13)

As noted above, section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. In addition to protecting to the privacy of information, this is a very broad right concerned with upholding personal physical and psychological autonomy. The internal limitations on the right apply so that an interference with the right to privacy does not amount to a limitation on that right if the interference is lawful and is not arbitrary. An interference will be lawful if it is permitted by a law which is adequately accessible and formulated with sufficient precision to enable a person to regulate their conduct by it. An interference will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The search powers in designated areas are designed to be exercised unpredictably and in being exercised in this manner, operate as a significant deterrent to the unlawful possession and carriage of weapons. The powers enable the removal of weapons from public places that would otherwise remain undetected because, if well concealed on a person or in their bag, police would be unlikely to form a suspicion in the absence of other factors.

This unpredictability was initially considered to give rise to incompatibility, with regard to power to conduct pat down searches and search outer clothing and belongings. To the extent the exercise of the power is expanded by the amendments, the amendments would exacerbate this incompatibility.

However, with reference to more recent international authorities than those considered in 2009 and 2010, I am of the view that the interference with a person’s privacy occasioned by the expanded power is not arbitrary, in the sense of being disproportionate to the aim sought, because it is sufficiently circumscribed and subject to adequate safeguards.

In 2010, the assessment of incompatibility was informed by the decision of the European Court of Human Rights (ECtHR) in Gillan and Quinton v United Kingdom [2009] ECHR28 (12 January 2010). In that case, the Court considered the use of police stop and search powers under terrorism legislation, which were exercisable without any reasonable suspicion of unlawful behaviour in a defined public area and permitted pat down and outer clothing searches for any articles which could be used in connection with terrorism. The authorisation for use of the powers could be given for reasons of expediency rather than necessity, and once given was renewable indefinitely. There was no prior notice of the authorisation, meaning that a member of the public would not be aware until they were stopped for a search by a police officer. The Court found that the powers violated Article 8 of the European Convention on Human Rights (ECHR), which protects people’s right to respect for their private life, family life and correspondence. The Court considered that the search powers lacked sufficient safeguards to constrain the discretion of the police officers executing the searches and protect individuals against arbitrary interference.

Since that decision was handed down, there have been two further decisions that inform the approach that should be taken when assessing the adequacy of safeguards against arbitrary interferences with privacy occasioned by stop and search powers.

In the case of Roberts v Commissioner of Police of the Metropolis and Another [2015] UKSC 79 (17 December 2015), the United Kingdom Supreme Court unanimously ruled that a legislative scheme which permits police to stop and search people and vehicles without suspicion in a defined public area, and conduct searches for dangerous weapons, did not constitute a breach of Article 8 of the ECHR regarding respect for private and family life. Authorisation for use of the powers could only be given where a senior officer reasonably believed there were a risk that dangerous weapons were being carried in the area or serious violence may take place, and the authorisation would last for 24-48 hours. The Court found that there were numerous safeguards in place to sufficiently limit the search power, including the grounds for making an authorisation (more tightly framed than in Gillan) and the controls on any searches undertaken, which were limited to searches for offensive weapons and not other articles. The Court emphasised the importance of Codes of Practice which directed police to use stop and search powers fairly, responsibly and without unlawful discrimination. Further, the Court observed that while random powers of stop and search carry with them the risk that they may be used in an arbitrary manner, those powers must be read in conjunction what the obligation to act compatibility with the Convention rights of any individual, equivalent to s 38(1) of the Charter.

Most recently, the ECtHR considered the case of Beghal v the United Kingdom [2019] (28 February 2018), which dealt with UK border agency stop and search powers under terrorism legislation. Those powers enabled the search and interrogation of a person at a border, without reasonable suspicion, to determine if they have been involved in the commission or preparation of acts of terrorism. Detailed and invasive searches and interrogation for up to 9 hours, without access to lawyer, were permitted, and the relevant Code of Practice did not require officers to keep to a minimum all interferences with fundamental rights. Referring directly to Gillan, the Court noted that while a requirement of reasonable suspicion is an important consideration in assessing the lawfulness of a stop and search power, there was nothing in that case to suggest that that existence of reasonable suspicion is, in itself, necessary to avoid arbitrariness. Rather, arbitrariness is an assessment to make with regard to the operation of the search scheme as a whole. Considering the search scheme in this case, the Court concluded that there was a violation of Article 8, emphasising that extended interrogation could occur in the absence of a solicitor and an individual could be compelled to answer questions.

Applying the approach in Beghal and considering the operation of the amended designated area search scheme as a whole, I am comfortable that there are there are sufficient limits and safeguards to curtail any arbitrary interference with the right to privacy.

While the amendments extend certain limits on the operation of designations, the grounds for making a designation are still tightly framed. A designation is available only where there is a likelihood that violence or disorder will occur and it is reasonably necessary to enable use of the search powers in that particular area. The maximum duration is limited to 24 hours or to the duration of a specific event and notice of every designation is publicly advertised.

Moreover, the amendments will not impact the operation of the existing robust statutory safeguards that apply to the conduct of searches within designated areas. Only after an electronic device search has been completed and, as a result of that search, a police officer considers that a person may be concealing a weapon, can a pat down and outer search be conducted. The least invasive search practicable must always be conducted, in a manner that affords appropriate dignity and privacy. A record of the search must be completed, including the grounds relied upon for conduct of the search, and a search notice provided to the person.

In addition to the statutory requirements, Victora Police manuals give clear guidance on conducting searches in a manner that is compatible with human rights, advising that officers must always consider and act compatibly with the Charter; persons must not be selected for a search based solely on their race, religious belief or activity or physical features; and searches must be appropriately recorded, which extends to recording the factors considered in deciding to conduct a search, including proper consideration of human rights.

Finally, the conduct of any search by a police officer or protective services officer is subject to s 38(1) of the Charter, and the requirement to act in a way that is compatible with human rights.

Accordingly, I consider the amendments to compatible with the right to privacy under s 13(a) of the Charter.

Even if the search scheme as extended by the amendments were incompatible with the right to privacy, this government would nevertheless wish to proceed with the amendments. To address the community’s concern about violence in public places, it is necessary to ensure that police officers and protective services officers are empowered to stop and search people without suspicion because of the ready concealability of so many weapons. The amendments will support the operational effectiveness of these critical police powers.

Right to liberty and security of person (section 21)

Section 21(1) of the Charter provides that every person has the right to liberty and security and section 21(2) provides that a person must not be subjected to arbitrary arrest or detention.

Police officers and protective service officers may detain a person for so long as is reasonably necessary to a conduct a search in designated area, and so the amendments extend the time and circumstances in which a person may be detained for this purpose.

As I have considered that the search powers are not arbitrary, my view is that any attendant detention that follows exercise of the search powers does not provide for arbitrary deprivation of liberty, since the power to detain is limited to what is reasonably necessary and police officers and protective service officers are obliged by s 38(1) of the Charter to act compatibly with human rights when conducting a search.

Because the powers of detention are strictly confined to what is reasonably necessary to conduct an authorised search, no separate question of incompatibility with section 21 of the Charter arises.

Accordingly, I consider the amendments to be compatible with the right to liberty and security of the person under s 21 of the Charter.

If I am not correct on this point, I still consider that these critical police powers necessary to enhance Victoria Police’s ability to detect and deter weapons offending in public places.

Protection of families and children (section 17)

Section 17 provides that families are the fundamental group unit of society and are entitled to be protected by society and the State. Section 17(2) provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child. This section recognises that children and young people can be particularly vulnerable because of their age.

The applicability of the designated area weapons search scheme is not limited to adults but can apply to a child below 18 years of age who is within a designated area during the period that a declaration is in force.

While additional safeguards operate for outer searches and strip searches of children, which must always occur in the presence of another person, it has previously been accepted that the search powers are incompatible with section 17(2). I accept that when the search powers are exercised in relation to children in the expanded ways that this Bill will allow, the existing incompatibility with section 17 is compounded because of the particular vulnerability of children.

However, as was the case when the powers were introduced and subsequently amended,

the government strongly believes that random search powers are important to prevent and deter acts of violence, and to support the protection of children.

Freedom of religion and belief (section 14), cultural rights (section 19) and equality before the law (section 8)

Section 14 of the Charter protects the right of a person to demonstrate their religion or belief in public. Section 19 provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language. Section 8 provides that every person has the right to enjoy their human rights without discrimination, including on the basis of religious belief or activity.

Knives are an important religious symbol for certain faiths, for example, baptised Sikhs who carry a kirpan, an object which resembles a dagger. While an exemption operates under the Control of Weapons Act 1990 to permit the carrying of kirpans for religious observance, the

the use of the search powers within designated areas may have particularly intrusive impact on people who carry knives for religious reasons.

However, although the Bill will extend the circumstances in which this intrusion may occur, I consider any limitations placed on the right of a person to demonstrate their religion are reasonable and justified (and therefore compatible with relevant rights) in view of the importance of detecting and deterring weapons offending.

Freedom of movement (section 12)

Section 12 provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it. People’s ability to move freely within designated areas may be limited if they are subject to a search, including under the broader circumstances permitted by this Bill.

Given the temporary and restricted application of these powers and the need to protect the safety of all persons within designated areas, I consider any limitations placed on a person’s right to freedom of movement are reasonable and justified (and therefore compatible with this right) on the grounds of public safety and that there are no less restrictive measures available.

I will now deal with the human rights issues arising in relation to the powers to manage public safety.

Powers to manage public safety

The Bill broadens the time and circumstances in which police officers may use existing powers to issue a direction to leave a designated area in two situations. In the first situation, a police officer who reasonably believes a person is wearing a face covering to conceal their identity or shield themselves from capsicum spray may issue the person a direction to leave. In the second situation, a police officer who reasonably believes a person intends to engage in violence that would constitute the offences of affray or violent disorder may issue the person a direction to leave. If a person refuses to comply with either direction they may be charged with an offence punishable by 5 penalty units.

The rights engaged by these powers are:

• freedom of movement (section 12)

• freedom of religion and belief (section 14)

• cultural rights (section 19)

• equality before the law (section 8)

• freedom of expression (section 15) and right to peaceful assembly (section 16)

• protection of families and children (section 17)

When the direction to leave powers were introduced in 2017, the scheme was considered compatible with these rights, and my view is that the amendments contained in this Bill, to the extent they extend the operation of the powers, are also compatible.

Freedom of movement (section 12)

People’s ability to move freely within designated areas may be limited by the extended operation of the powers to issue directions to leave. As with the limitation imposed by the search powers, I consider any limitations placed on a person’s right to freedom of movement are reasonable and justified on the grounds of public safety and that there are no less restrictive measures available.

Freedom of religion and belief (section 14), cultural rights (section 19) and equality before the law (section 8)

These rights are relevant to the power of a police officer, in a designated area, to order a person to remove a face covering. This power is only available if the officer reasonably believes the person is wearing it to conceal their identity or shield themselves from capsicum spray, and if the main purpose of wearing the face covering is for cultural or medical reasons, the power should not be used. Police receive guidelines and training on the appropriate use of this power.

While the amendments contained in this Bill will extend the circumstances in which this power can be used, the amendments do not remove any of the safeguards in place, including that a police officer cannot direct a person to remove a face covering for cultural or medical reasons, and that a person can choose to continue wearing their face coverings if they leave a designated area. I therefore consider that any limitations placed on the right of a person to demonstrate their own religion are reasonable and justified.

Freedom of expression (setion15) and right to peaceful assembly (section 16)

Section 15 provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 16 provides that every person has the right of peaceful assembly and the right to freedom of association with others.

These rights are relevant to the powers to issue directions to leave, particularly where a direction is to leave a protest. However, police can only use these powers to address public safety issues in the two situations I have described, and it is important to note that the powers will protect the rights of all other protestors to demonstrate peacefully.

To extent that the existing limitations on these rights are maintained or extended by the amendments contained in the Bill, I consider that those limitations are reasonable and justified.

Protection of families and children (section 17)

While the powers to issue directions apply to all persons, including children, while present in a designated area, those powers also protect children who are present in a designated area. To the extent that the operation of these powers limits the rights of children, I consider that those limitations are reasonable and justified.

I consider the amendments to the Control of Weapons Act 1990 in this Bill to be an appropriate and measured response to persistent and concerning unlawful weapons possession, carriage and use in public places in Victoria. The amendments are informed by 15 years of Victoria Police operational experience in managing these risks, and I trust will better protect Victoria’s citizens by further deterring and detecting unlawful behaviour.

The Hon. Anthony Carbines MP – Minister for Police

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:11): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill before the House introduces a range of reforms which are designed to strengthen both the Terrorism (Community Protection) Act 2003 (Vic) and the Control of Weapons Act 1990 (Vic).

Strengthening the operation of the Voluntary Case Management scheme and the Countering Violent Extremism Multi-Agency Panel

The Terrorism (Community Protection) Act 2003 (TCPA) provides for two therapeutic intervention pathways for Victorians who are at risk of radicalising towards violent extremism. These intervention pathways are the Voluntary Case Management (VCM) scheme and the Support and Engagement Order (SEO). The TCPA also establishes the Countering Violent Extremism Multi-Agency Panel (CVE MAP) which currently provides advice and case management oversight to the Secretary of the Department of Justice and Community Safety regarding coordinated services and case management of individuals subject to the VCM scheme. The CVE MAP, SEO and VCM scheme have been operational since September 2022. The Bill makes important changes to ensure that the operation of the VCM scheme aligns with best-practice approaches to similar therapeutic CVE programs

The Victorian Government recognises the need for therapeutic intervention to address the vulnerabilities that underpin an individual’s trajectory towards violent extremism. The current eligibility criteria for the VCM scheme prevent individuals who may benefit from a therapeutic CVE intervention from being eligible for and participating in the program. This includes individuals who are at an early stage in their trajectory towards violent extremism through to those who may have previously engaged in CVE programs. The Bill notably expands the eligibility criteria to enable the VCM scheme to service a wider cohort of individuals.

The purpose of a VCM plan is to reduce the extent to which a person is vulnerable to violent extremism by addressing their underlying needs through tailored interventions. A holistic approach is recommended to address these needs. Another important change the Bill makes is to allow programs and services to be provided to a key person of a participant of the VCM scheme. Examples of these key persons include immediate family members or caregivers. The introduction of this concept is important, as family and friends can have a protective impact on an individual, by lessening their susceptibility to violent extremism, or helping them disengage from a pathway to violent extremism. It is therefore important that these key persons have the adequate tools and knowledge to best support their loved ones to disengage from violent extremism.

The provision of services and programs to key persons will be determined on a case-by-case by the DJCS Secretary, if the Secretary determines that the provision of services or programs to these people will have a therapeutic benefit on the participant. An example of services or programs provided to a family member might include parent support regarding neurodiversity where neurodiversity has been found to influence a participant’s vulnerability. This is an important step in a holistic approach to addressing an individual’s underpinning vulnerabilities.

When providing an individual with therapeutic intervention, it is best practice to involve them in any decisions regarding their wellbeing. The Bill amends the legislation to ensure that in developing a voluntary case management plan, the Secretary must do so in collaboration with the participant.

The reforms in the Bill ensure that the legislative requirements of the CVE MAP and VCM scheme reflect the dynamic and evolving nature of violent extremism. In particular, the Bill reforms the functions of the DJCS Secretary to allow the Secretary to ask the CVE MAP for advice at any time, rather than at set intervals. This will ensure that the advice provision can be agile and flexible, and that requests for information by the Secretary are proactive. It is important for the Secretary to be able to consult the CVE MAP at any stage during the end-to-end case management process, rather than just when deciding whether to accept a referral, developing or varying case management plans. It will also allow the Secretary to ask for generalised advice regarding best-practice case management, or specific violent extremist cohorts, rather than individualised advice regarding a participant.

These reforms build on previous reforms to Part4A of the TCPA via the Justice Legislation Amendment (Police and Other Matters Bill) 2023, which introduced reforms to address limitations around information sharing by the CVE MAP, provided flexibility and efficiency around appointments to the CVE MAP, and clarified procedures for CVE MAP meetings. The reforms also enabled a court, hearing a matter regarding an SEO, to direct a person to give evidence.

The provision of holistic, therapeutic intervention ensures that Victorians who are vulnerable to radicalising towards violent extremism receive bespoke and impactful intervention as early as possible. The therapeutic nature of these interventions is demonstrated by its cache of support services including, mental health treatment, alcohol and drug treatment, and pro-social activities such as sporting clubs. By intervening early for these individuals, and reducing their vulnerability of radicalisation, the Victorian community is safer from the threat of terrorism and violent extremism.

The Bill also makes minor technical amendments to the TCPA to replace outdated references to questioning warrants under the Australian Security Intelligence Organisation Act 1979 (Cth).

Making further improvements to combat weapons offending

I turn now to some very important amendments that this Bill will make to the Control of Weapons Act 1990. Earlier this year the Government brought a Bill which amended the Control of Weapons Act 1990 to make it very clear that Victoria will not tolerate the possession, carriage and use of machetes in public places without a lawful excuse. There can be no doubt in anyone’s mind that while machetes may have a legitimate use in various horticultural, agricultural and similar settings, they have no place in the hands of people who wish to do harm, nor can they be carried on our streets by anyone in self-defence. They absolutely cannot be purchased by children or sold to children. The government, Victoria Police and the vast majority of Victorians who are law abiding will not tolerate weapons violence. However, and very unfortunately, weapons violence persists in our public spaces.

This Bill introduces further measures that will build on our already robust planned and unplanned designated area weapons search scheme to give police greater flexibility to combat weapons offending when and where there is heightened risk to community safety.

It is important to appreciate that Victoria was the first jurisdiction in Australia with the foresight to develop a legislative scheme giving its police force significant powers to search people and vehicles for weapons in at risk areas known to police to be weapons offending hotspots.

Almost fifteen years ago, on 16 December 2009, provisions of the Control of Weapons Act 1990 commenced operation empowering the Chief Commissioner of Police to declare areas as planned or unplanned designated areas if the Chief Commissioner is satisfied there is a likelihood that violence or disorder involving weapons will occur in the area because of one or more previous occurrences of such violence or disorder in that area. Events, such as music or other festivals, can also be designated where there is a likelihood of violence or disorder involving weapons occurring at the event if this has occurred at previous instances of the event. During the operation of a declaration, police officers, and to a more limited extent, protective services officers, have the power to search persons and vehicles for weapons and to seize those weapons, removing them from circulation in the community. These powers operate to both detect the unlawful carriage of weapons and deter people from having weapons in the public arena in the first place. Police have used these intelligence driven powers to great effect since that time.

Only in very recent years have some other Australian jurisdictions taken steps to introduce their own weapons search schemes, similar to Victoria’s, to combat concerning levels of weapons offending in their public places.

It is timely then to introduce this Bill, which builds on our existing scheme, to make meaningful improvements which will ensure that police powers to respond effectively to unlawful weapons possession, carriage and use is best suited to contemporary weapons trends and community safety needs.

The Bill amends the planned and unplanned designated area scheme in six distinct ways to improve operational flexibility and police responsiveness to weapons offending risk. I will briefly explain each of these amendments in turn.

The Bill removes the requirement to publish a notice of a declaration of a planned designated area in a daily newspaper circulating throughout Victoria and in a daily newspaper circulating outside of the metropolitan area, if applicable, and instead requires publication of the notice on the Victoria Police website. This is consistent with the approach taken by some other jurisdictions and recognises a shift from the popularity of hardcopy newspapers 15 years ago to a more online world today. The Bill will not alter the additional requirement to publish a notice of a planned declaration in the Government Gazette as this is the standard legislative approach for providing notice of this type of declaration and provides legal certainty for the exercise of search powers in designated areas.

The Bill amends the provisions that currently exist for planned event declarations to provide that each period of an event declaration operates during the event and during any time before and after the event that the Chief Commissioner considers reasonable. At present, event declarations may only operate strictly during the exact timing of the event itself. This amendment will allow for the Chief Commissioner to determine an appropriate period of time before and after an event for an event declaration to additionally operate to maximise community safety.

For example, significant crowd numbers may congregate before an event or linger afterwards or it may be important to provide a safe environment for the ingress and egress of events with high attendance numbers or where the event occurs at a remote location with limited entry and exit points, which is not uncommon with rural music festivals. The Bill gives the Chief Commissioner the flexibility to tailor the duration of a declaration based on the unique characteristics of each event and its particular risk profile.

Another amendment in this Bill will enable planned event declarations to be made for new and emerging events based on intelligence information of a high identified risk. At present planned event declarations may be made for events that have been marred by violence or disorder involving weapons at previous occasions. The Bill retains that still very effective ground and adds a new ground, enabling the Chief Commissioner to declare an area where an event is to be held if the Chief Commissioner is satisfied that, by information known to the Chief Commissioner, there is a likelihood that violence or disorder involving the use of weapons will occur in that area during the period of intended operation of the declaration. This is an intelligence led approach placing Victoria Police on the front foot to combat the threat of weapons related violence or disorder.

The Bill also promotes sustained efforts to detect and deter weapons related violence or disorder in areas of high risk through reducing the time that must elapse between declarations of planned designated areas. At present, police are unable to conduct a planned operation in an area until a minimum of 10 days has elapsed from the end of a previous planned operation in the same area. The Bill reduces this minimum 10-day gap to a minimum of 12 hours. The reduced timeframe is more aligned with some weapons search schemes introduced in other Australian jurisdictions and is intended to improve community safety in high risk areas and for periods of heightened risk. For example, a more consistent police presence and random weapons searching activity may have considerable benefits during school holidays or long weekends in certain areas. As is currently the case, police will still be able to conduct an unplanned designated area operation in the area during the gap period if circumstances require such an operational response.

Also consistent with some other jurisdictions and to enhance operational flexibility, the maximum duration of both planned and unplanned designations of areas will increase from 12 to 24 hours. Within an available maximum 24-hour window, the Chief Commissioner must continue to limit the period for each designation to no longer than is reasonably necessary to enable police and protective services officers to effectively respond to the threat of violence or disorder involving the use of weapons. This change will provide greater public safety and reassurance in circumstances where there is a risk of a significant event of violence or disorder, including where there is a critical incident or high-profile crime committed and there is a risk of retaliation. Victoria Police will also be in a better position to tailor both planned and unplanned operations to the intelligence it has on hand.

Finally, the Bill rectifies an anomaly whereby section 10L(3) currently has no specified penalty for the purported offence of a person without reasonable excuse obstructing or hindering a protective services officer in the exercise of powers to stop and search a person or vehicle or to seize and detain a thing. The Justice Legislation Amendment (Protective Services Officers and Other Matters) Act 2017 gave protective services officers limited powers to participate in the designated area weapons search scheme alongside police officers, and inserted the offence in section 10L(3) into the Control of Weapons Act 1990. However, in what must have been an unintended oversight, no penalty was specified. The Bill rectifies this anomaly by fixing a penalty of 2 penalty units for the offence mirroring the penalty that currently applies in respect of the similar offence set out at section 10L(1) in relation to police officers.

This is an important community safety focussed Bill demonstrating this Government’s commitment to ensuring Victoria Police has contemporary and effective powers to detect and deter unlawful weapons possession, carriage and use in our communities. The Government will continue to take all appropriate steps to maximise Victoria Police’s capacity to combat weapons offending.

I commend the Bill to the house.

James NEWBURY (Brighton) (11:11): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 11 December.