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Crimes Legislation Amendment (Public
Order) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Crimes Legislation Amendment Bill (Public Order) Bill 2017
contains measures to assist Victoria Police in preventing and responding
to disturbances of public order. The Bill will amend the Control of
Weapons Act 1990 to provide Victoria Police with certain additional
powers in relation to an area that has been designated under that Act.
The Bill will also abolish a number of common law public order offences,
and introduce new public order offences in the Crimes Act 1958.
The Bill will also amend the Summary Offences Act 1966 to impose
obligations on local government to consult with Victoria Police when
considering applications for permits that relate to proposed protests.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill, which are--
• to amend the Summary Offences Act 1966 to require
Councils to consult with Victoria Police before issuing
a permit relating to a public protest; and
• to amend the Control of Weapons Act 1990 to provide
police officers with the power within a designated area
to direct a person to leave the area in specified
circumstances; and
581320 1 BILL LA INTRODUCTION 22/3/2017
• to amend the Crimes Act 1958 to abolish the common
law offences of affray, rout and riot and to create new
statutory offences of affray and violent disorder; and
• to make consequential amendments to the Crimes
Act 1958 and other Acts.
Clause 2 provides that the Act will come into operation on a day or days
to be proclaimed. If any provision does not come into operation
before 1 February 2018, it comes into operation on that day.
Part 2--Amendment of the Summary Offences Act 1966
Clause 3 inserts new Division 1B into Part I of the Summary Offences
Act 1966.
Section 6A
New section 6A(1) requires local councils to consult with
Victoria Police before granting a permit that it believes will
facilitate a public protest being held by the applicant.
Subsection (2) provides for the Minister responsible for the
administration of the Victoria Police Act 2013 to publish
guidelines in the Government Gazette regarding how and
when the consultation referred to in subsection (1) is conducted
and the permits and types of permits in relation to which a
Council is not required to consult with Victoria Police.
Subsection (3) provides that a decision by local council to grant a
permit is not invalidated by a failure to comply with this section.
Subsection (4) inserts definitions of terms used in this section.
Council has the same meaning as in section 3(1) of the Local
Government Act 1989.
Public protest means an event held to advance, publicise or
promote a political, ideological or industrial cause.
Part 3--Amendment of the Control of Weapons Act 1990
Clause 4 amends the heading to section 10D of the Control of Weapons
Act 1990 to remove the reference to "search". This reflects the
additional powers that Victoria Police will be able to exercise
within a designated area under new section 10KA.
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Clause 5 subclause (1) amends the heading to section 10E of the Control
of Weapons Act 1990 to remove the reference to "search". This
reflects the additional powers that Victoria Police will be able to
exercise within a designated area under new section 10KA.
Subclause (2) inserts new section 10E(6) and (7) into the Control
of Weapons Act 1990.
New section 10E(6) requires that the Chief Commissioner, as
soon as practicable after declaring an unplanned designation of a
search area, must ensure notice of the declaration is published on
a website maintained by Victoria Police. New section 10E(7)
requires that the notice under the new section 10E(6) include a
map of the designated area, together with other information
referred to in section 10D(5).
Clause 6 inserts new sections 10KA and 10KB into the Control of
Weapons Act 1990.
Section 10KA
New section 10KA gives additional powers to police officers that
can be exercised in relation to an area that has been designated
under section 10D or 10E of the Control of Weapons Act 1990.
Subsection (1) allows a police officer to direct a person wearing
a face covering to leave a designated area if the person refuses to
remove it when requested. The police officer must reasonably
believe the person is wearing the face covering primarily to
conceal his or her identity or to protect himself or herself from
the effects of crowd-controlling substances (such as capsicum
spray).
Subsection (2) provides that a police officer may direct a person
to leave a designated area if the officer reasonably believes the
person intends to engage in conduct that would constitute an
offence under the new sections 195H or 195I of the Crimes
Act 1958. These are the new offences of affray and violent
disorder created in Part 4 the Bill.
Subsection (3) requires that before or immediately after giving a
direction under subsection (1) or (2) a police officer is required
to advise the person to whom the direction is given that a
declaration is in force declaring the relevant area to be a
designated area.
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Section 10KB
New section 10KB requires the Chief Commissioner of Police
to report in his or her annual report each year on the number of
declarations under each of sections 10D and 10E (declaring an
area to be a designated area) during that financial year and
whether a power under section 10KA was exercised in relation
to the designated area that was the subject of the declaration.
Clause 7 inserts a new subsection (2) at the end of section 10L of the
Control of Weapons Act 1990 (the provision currently under
that section will form a new subsection (1)). New subsection (2)
makes it an offence to fail to comply with a direction given by a
police office under new section 10KA(1) or (2), unless the person
has a reasonable excuse. A penalty of 5 penalty units applies to
the new offence.
Part 4--Offences against public order
Division 1--Amendment of the Crimes Act 1958
Clause 8 inserts a new Division 2C of Part I in the Crimes Act 1958.
The new Division 2C creates new offences against public order.
Section 195G
New section 195G abolishes the common law offences of affray,
rout and riot.
Section 195H
New section 195H(1) creates the new offence of affray,
which is committed where a person uses or threatens unlawful
violence and whose conduct would cause a person of reasonable
firmness present at the scene to be terrified. The new offence
is punishable by a maximum penalty of level 6 imprisonment
(5 years) or imprisonment for 7 years if, at the time of
committing the offence, the person is wearing a face covering
primarily to conceal his or her identity or to protect himself or
herself from the effects of crowd-controlling substances (such as
capsicum spray). An example of unlawful violence is unlawful
fighting with another person.
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Subsection (2) clarifies the mental element and provides
that a person is only guilty of the offence under the new
section 195H(1) if the person intends to use or threaten
violence or is reckless as to whether the person's conduct
involves the use of violence or threatens violence.
Under subsection (3), a threat of unlawful violence must involve
more than words alone. Subsection (4) provides that the offence
may be committed in private and public places and whether or
not a person of reasonable firmness is present at the scene.
For the purposes of the new offence, subsection (5) provides
that if 2 or more persons use or threaten unlawful violence,
the conduct of them taken together must be considered and it is
immaterial whether or not those persons use or threaten unlawful
violence simultaneously.
Section 195I
New section 195I(1) creates the new offence of violent disorder
which is committed where 6 or more persons (the participants)
who are present together use or threaten unlawful violence with
a common goal or intention and the conduct of them, taken
together, causes injury to another person or causes damage to
property.
Subsection (2) clarifies that the new offence may occur in
private or public places, it is immaterial whether or not the
participants use or threaten unlawful violence simultaneously
and the common goal or intention may be inferred from the
conduct of the participants.
Subsection (3) provides that a participant in a violent disorder
is liable to be punished by a maximum penalty of level 5
imprisonment (10 years) or level 4 imprisonment (15 years)
if, at the time of committing the offence, the person is wearing
a face covering primarily to conceal his or her identity or to
protect himself or herself from the effects of crowd-controlling
substances (such as capsicum spray). An example of unlawful
violence is unlawful fighting with another person.
Subsection (4) clarifies the mental element and provides that a
person is only guilty of an offence under subsection (3) if the
person intends to use or threaten violence or is reckless as to
whether the person's conduct involves the use of violence or
threatens violence. Subsection (5) clarifies that the subsection
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(4) does not affect the determination for the purposes of the
new offence of the number of persons who are engaging in the
conduct that constitutes violent disorder.
The new offence does not replicate the abolished common law
offence of riot but it is intended that much of the conduct that
would have been captured by the abolished common law offence
will be captured by the new offence of violent disorder.
Division 2--Consequential amendments
Clause 9 amends Schedule 3 to the Corrections Act 1986. This Schedule
contains a list of offences that fall within the definition of the
term violent offence for the purposes of section 77 of that Act.
Subclause (1) removes the common law offences of affray and
riot from the Schedule. These offences will be repealed by the
Bill.
Subclause (2) adds the new statutory offences of affray and
violent disorder to the Schedule.
Clause 10 amends section 320 of the Crimes Act 1958. This section
includes a table that specifies maximum terms of imprisonment
for certain common law offences. The clause removes from
this table the common law offences of affray, riot and rout.
These offences will be repealed by the Bill.
Clause 11 amends Schedule 1A to the Serious Sex Offenders (Detention
and Supervision) Act 2009, which is a list of offences that fall
within the definition of the term violent offence contained in
section 3 of that Act.
Subclause (1) amends the Schedule to include the new statutory
offences of affray and violent disorder and subclause (2) removes
the common law offences of affray and riot, which are repealed
by the Bill.
Clause 12 amends Schedule 4 to the Victoria Police Act 2013, which
relates to Part 7 of that Act. Part 7 concerns breaches of
discipline by a police officer or protective services officer.
Schedule 4 is a list of offences that, if the Chief Commissioner
reasonably suspects a police officer or protective services officer
has committed, the Chief Commissioner must not charge the
officer with a breach of discipline until the Chief Commissioner
has consulted the Director of Public Prosecutions.
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Subclause (1) amends the Schedule to insert the two new
statutory offences of affray and violent.
Subclause (2) updates the reference to the common law offence
of affray as repealed by this Bill.
Part 5--Repeal
Clause 13 provides for the repeal of this Bill on 1 February 2019.
The repeal does not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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