ip3 queensland street, brisbane qld australia law …...criminal code (trespass offences) amendment...

IP3s ■3 Queenslandf Law Society

Law Society House, 179 Ann Street, Brisbane Qld 4000, Australia GPO Box 1785, Brisbane Qld 4001 | ABN 33 423 389 441 P 07 3842 5943 | F 07 3221 9329 | [email protected] | qls.com.au

Office of the President

17 July 2019

Our ref: BDS-CrLC

Committee SecretaryLegal Affairs and Community Safety Committee Parliament House George Street Brisbane Qld 4000

By email: [email protected]

Dear Committee Secretary

Criminal Code (Trespass Offences) Amendment Bill 2019 (Private Member’s Bill)

Thank you for the opportunity to provide our views on the Criminal Code (Trespass Offences) Amendment Bill 2019 (the Bill). The Society appreciates being consulted on this Private Member’s Bill.

We understand the policy rationale behind the proposal for the Bill and supports efforts to protect legitimate and legal businesses in Queensland from unlawful trespass activities. The Society is supportive of proportional legislative responses and penalties for criminal conduct. However, we are of the view the current legislative regime in Queensland provides sufficient protections and covers the type of conduct contemplated by the Bill.

The Society’s key concerns in relation to the Bill are:

• That the three new trespass offences are not necessary as there is a range of legislation currently in place that might be applicable to the conduct contemplated by the Bill.

• That proposed section 423 is called “serious criminal trespass” but does not require an actual trespass (clause 5).

• That the range of conduct captured by the three new trespass offences is exceptionally broad and might have unintended consequences (clause 5).

• That the penalties outlined in proposed sections 423 and 424 are, in the view of the Society, excessive when balanced against the overall legislative framework, which governs offending behaviour in Queensland (clause 5).

Our comments on the Bill are set out below.

1. Current legislation

The Society notes that there is a range of legislation currently in place that might be applicable to the conduct contemplated by the Bill.

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Sections 11 and 13 of the Summary Offences Act (Qld) 2005 provide for offences of ‘trespass’, which carry periods of imprisonment. These provisions are of particular relevance as a court may be dealing with an offender for an offence in which there has not been any actual or threatened damage or injury to property or person.

Further, sections 274-278 of the Criminal Code provide rights and powers to individuals to deal with trespassers in certain circumstances.

In addition, the Queensland Police Service possess ‘move on’ powers (part 5 of the Police Powers and Responsibilities Act 2000 (Qld)) which can apply in certain circumstances.

The Explanatory Notes to the Bill do not provide any compelling data or evidence to suggest that the existing legislation is inadequate.

2. Clause 5

Clause 5 of the Bill seeks to insert three new offences into the Criminal Code:

• section 422 - Aggravated trespass• section 423 - Serious criminal trespass• section 424 - Organised trespass

The Bill proposes the inclusion of three new offences in chapter 39 of the Criminal Code. Chapter 39 is entitled “burglary—housebreaking—and like offences” and deals with matters of inherent dishonesty and damage.

The three new trespass offences all cover similar conduct and this raises the question whether all three offences are necessary. From a practical perspective, the creation of new offences where current offences already exist might cause confusion as to which offence should be charged.

3. Proposed section 422 of the Criminal Code

Proposed section 422 of the Criminal Code proposes the creation of a new offence of aggravated trespass and states:

422 Aggravated trespass

(1) A person who unlawfully enters or is in premises, private land or transport infrastructure with intent to cause economic loss to another person or the State commits an offence.

Maximum penalty—100 penalty units or 3 years imprisonment.

(2) In this section— unlawfully means without authorisation, justification or excuse bylaw.

The Society considers that the offence of aggravated trespass as described in proposed section 422 is broadly worded and vague. First, there does not appear to be any definition of ‘economic loss’. Secondly, there is no guidance as to how economic loss is to be measured and proven. In practice, this proposed section 422 could apply to a broad range of conduct. For example, economic loss be evidenced by the fact that a business owner was required to use their mobile phone to call the authorities. Economic loss might occur if an investigative journalist entered a business to film an interview with a dishonest businessperson or if they

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entered an individual’s premises to expose the occupier’s illegal conduct - such as dog fighting or live baiting of greyhounds.

Thirdly, the Society seeks clarification on how the concept of ‘causing economic loss’ would be considered criminal behaviour and in what other circumstances, if any, to which this applies. In our view, an intention to cause economic loss to a person or business, in and of itself, is not necessarily criminal. Therefore, the Society considers that this is too low a threshold of conduct to be characterised as a Criminal Code offence.

The Society does not support proposed section 422.


Proposed section 423 of the Criminal Code proposes the creation of a new offence of serious criminal trespass and states:

423 Serious criminal trespass

A person who enters or is in premises, private land or transport infrastructure used for business purposes and commits an offence punishable by 3 years imprisonment or more commits a crime. Maximum penalty—3,000 penalty units or 10 years imprisonment.

The Society is concerned about this provision.

First, proposed section 423 is called “serious criminal trespass” but does not require an actual trespass to occur. That is, the offence is committed by any person who happens to be in the business and commits an offence.

Secondly, the range of conduct proposed section 423 would capture is exceptionally broad and might have unintended consequences. For example, if an individual smokes an illegal substance in a supermarket, they can be charged with “serious criminal trespass”. If an employee steals a paperclip from work, then proposed section 423 might apply. If a police officer enters a shop and makes an unlawful arrest, which is an assault and deprivation of liberty, he or she would commit serious criminal trespass offence. Because the section 423 offence is designated as a crime, a citizen can arrest an offender without warrant (sections 5 and 546). This exposes police officers to a much greater risk of citizen’s arrest. “You’re under arrest!” "No! You’re under arrest!” As common assault, section 335 and deprivation of liberty s.355 are punishable by 3 years imprisonment. They are misdemeanours so an ordinary citizen cannot make an arrest for those offences without a warrant, unless the offender is found committing the offence between 9pm and 6am - section 549.

Furthermore, a business owner who uses excessive force to eject a protestor, or who unlawfully detains a protestor, will himself or herself be guilty of the section 423 offence (having committed a three year offence while in premises used for business purposes). The trespasser would then have a right to arrest the business owner. Similarly, if some aspect of the business’s operation is unlawful, the owner may well commit the section 423 offence in their own premises.

Thirdly, it is not clear from the drafting whether the words “used for business purposes” are intended to limit the whole phrase “premises, private land or transport infrastructure” - or only apply to transport infrastructure.

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In our view, some of the problems with section 423 would be alleviated by amending the section to read: "a person who unlawfully enters or is in...” However, this amendment would by no means resolve all the issues raised above. Therefore, once a protestor or police officer was directed to leave and refused, their presence would be unlawful.



Proposed section 424 of the Criminal Code proposes the creation of a new offence of organised trespass and states:

424 Organised trespass

(1) A person commits a crime if—

(a) the person—(i) is a participant in an organisation; and (ii) counsels or procures, or arranges for, another person to commit an offence against section 422 or 423; and

(b) the other person—(i) is a participant in the same organisation; and(ii) commits an offence against section 422 or 423.

Maximum penalty—3,000 penalty units or 10 years imprisonment.

(2) This section does not limit section 7.

(3) In this section— organisation includes a business and a charity, participant, in an organisation, means a director, member or volunteer of the organisation.

The Society holds concerns about proposed section 424 of the Criminal Code.

First, the penalties outlined in proposed sections 423 and 424 are, in the view of the Society, excessive when balanced against the overall legislative framework, which governs offending behaviour in Queensland. The Bill proposes a maximum often years or fines in excess of $300,000 for what could otherwise be peaceful and not disruptive behaviour. Furthermore, the Society is concerned that it is considered a fundamentally more serious offence (three years compared to ten years) for the trespass offence to have been committed against a business, even though no economic loss was caused. It is accepted that for the increased penalty to apply another offence would need to have been committed. This could lead to circumstances in which ‘damage’ by spray painting a protest slogan on the entrance way of a building could then cause a person to face a ten year maximum penalty for an otherwise peaceful process.

Secondly, we consider that section 424 may have unintended consequences. For example, if two members of the engineering student's society go on an anti-Israel demonstration. They encourage each other to block the doorway of a chocolate shop, arguing that profits from the shop contribute to the oppression of Palestinians. Their membership of the engineering society has nothing to do with the demonstration - but it would satisfy the elements of section 424 in that they are both participants in the same organisation. The maximum penalty for blocking the doorway would increase from three years (under proposed section 422) to 10



years under the proposed section 424, just because they happened to be engineering students in the same class.

If we return to the example of the investigative journalist, trespassing to expose fraudulent business (and thereby cause it economic loss), section 424 might have the effect that the editor or head of the newsroom is liable as a counsellor.

Section 424 only increases the maximum penalty if the offence counselled or procured is section 422. If a person counselled an offence against section 423 then, by operation of section 7, the maximum penalty would be 10 years. So section 424 adds nothing to section 423.


6. Proposals for further consideration

The Society notes that police move on powers in part 5 of the Police Powers and Responsibilities Act 2000 are very broad. A police officer may exercise a power in relation to an individual’s behaviour or mere presence and these powers could be used to address the conduct contemplated by the Bill if the business fell within the definition of a regulated place.

The Society considers that it might be worthwhile undertaking consultation on the provision of powers to police officers to issue on the spot infringement notices to persons/protestors. The issue of such an infringement notice may or may not be accompanied with a ‘move on’ direction. Whilst this proposal requires further investigation, upon initial analysis, the issue of infringement notices would save court time and resources and accord with the Productivity Commission’s recommendations and findings.

The Society suggests that the use of safe access zones be investigated to protect the rights and liberties of business owners from protesters.

We look forward further participation in the consultation process.

If you have any queries regarding the contents of this letter, please do not hesitate to contact our Legal Policy team at [email protected] or on (07) 3842 5930.

Yours faithfully

Bill Potts

President



ip3 queensland street, brisbane qld australia law …...criminal code (trespass offences) amendment...

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