Submission in relation to the Government's Safe Night Out Strategy

 Set out below are the QCCL’s views on the civil liberties issues raised by the Government’s Safe Night Out Strategy. 

At the start it is important to note that the strategy contains a number of proposals which do not raise civil liberties concerns.  Those questions are not addressed. 

The QCCL does not take the view that there is a human right to access alcohol.  We note in this regard the discussion of this issue by McMurdo P. and Justice Keane in Aurukun Shire Council and Anor –v- CEO Office of Liquor Gaming and Racing [2010] QCA 37 at paragraphs 43 and 142 to 145.  McMurdo P. returned to the issue in the decision of Morton –v- Queensland Police Service [2010] QCA 160.[1]

The Council takes no position on the much debated issue of whether opening hours of licenced premises should be changed in any way. 

On the other hand, the Council notes the views of experts[2] that amongst the most effective measures for reducing alcohol related violence is to reduce the clustering of alcohol establishments in the one area and improving public transport.  We note that neither of these issues is discussed in this paper.

We turn now to the proposals in the discussion paper which raises civil liberties concerns:

Unlawful Striking Causing Death

The QCCL supports what is known as the “Subjectivist Theory” of criminal law on the basis that that approach best promotes individual liberty.  Under that approach moral guilt, and hence criminal liability, should be imposed only on people who can be said “to have chosen to behave in a certain way or to cause or risk causing certain consequences” Law Commission Involuntarily Manslaughter 4 March 1996 paragraph 4.4. 

In cases where a single punch or push has fatal consequences which could not reasonably have been foreseen, although the initial act is clearly antisocial and deserving of some punishment, prosecuting for manslaughter amounts to holding people responsible for bad luck.[3]

We recognize that there is a certain level of disquiet in the community about “egg shell syndrome” deaths.  However, if community concerns on this topic are to be addressed by some amendments to the law, then it would be our preference if the government adopted the recommendation of the Irish Law Reform Commission[4] for a new offence of assault causing death which occurs where an accused commits an assault which causes death and a reasonable person would not have foreseen that death or serious injury was likely to result in the circumstances.

Without seeing the actual proposed Bill it is not possible to say whether the Government’s proposal would conform to that of the Irish Law Reform Commission.  If it does the QCCL would have in principle no difficulty with it. 

What the QCCL does have a significant problem with is the proposed penalty which is that the offender be required to serve 80% of their sentence before being eligible to apply for parole. 

The history of mandatory minimum sentences has recently been reviewed by Trotter and Hobbs in their article The Great Leap Backward Criminal Law Reform with the Honourable Jarrod Bleijie.[5]

Mandatory minimum sentences do not reduce crime[6] or at the very best only marginally.[7]  The only guaranteed consequences of mandatory sentencing are that injustices will occur and the prisons will fill up and become overcrowded at great expense to the State.[8] 

The sadly now abolished Queensland Sentencing Advisory Council in its final report on Minimum Standard Non Parole Periods opposed the introduction of such schemes noting at page XV of the report “That there is limited evidence that SNPP Schemes meet their objectives, beyond making sentencing more punitive and the sentencing process more costly and time consuming”.

The English Law Commission in its consultation paper Criminal Law:  Involuntary Manslaughter [1994] proposed that for the offence of assault causing death the penalty should be a maximum of 3 years imprisonment.  We would endorse that position. 

Increase in Maximum Penalty for Assault on Police Officers and the Like from 7 years to 14 years

Whilst the QCCL accepts that persons like Police and Ambulance officers should be protected from assault by a higher penalty we see no evidence for the need to increase the existing penalty.

The Civil Liberties Council has previously rejected Police Union claims that courts are imposing soft sentences on offenders who assault police.

It has challenged the Police Union to produce a schedule of Appeal Court sentences to demonstrate that courts are being lenient in sentencing offenders for assaults on police. No evidence has been produced. We oppose this proposal.

Increased penalties for using anabolic steroids

The Council’s longstanding position is that the personal use of all drugs (psychoactive substances) and psychotropic plants should be decriminalised.  Whilst anabolic steroids in their immediate effect do not fall into those categories we see no reason for extending the criminal law to those substances. 

Increased on the spot fines for public nuisance

The proposal is to increase the fine for a public nuisance to a maximum of $2,750.00 and up to 6 months imprisonment. 

We oppose this proposal.  In our view a penalty of 6 months imprisonment is far too high for what most people would think of as public nuisance.  Whilst it will be said that 6 months is a maximum the effect of increasing the top level of the penalty will automatically compel the Courts to increase the bottom level penalty.  We see no justification for doing so. 

Increased penalty for obstructing police

Once again we query the need for this increased penalty.  Obstructing police offences are most commonly charged in the context of street behaviour.  Usually along with resist arrest and obscene language the old so called “Ham cheese and tomato sandwich”. 

Once again, we do not see the increased penalties being justified in the context in which this charge is most often deployed.  For more serious conduct which might constitute obstruct police there are other offences which could be charged and which carry with them a higher penalty. 

Intoxication as a mitigating factor on sentence

This proposal is quite clearly nothing more than a public relations exercise in that this is already the law.  This was stated quite clearly by the Queensland Court of Appeal in R –v- Rosenbeger Ex Parte The Attorney General [1994] QCA 488 at page 6 where the Court unanimously held that “The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence.”  The Court anticipated that there might be an exception for example where a drunken man who had committed an armed robbery showed that his alcoholism was the result of a painful disease from which he suffered. 

This position was restated by the Chief Justice in R –v- O’Dwyer [2008] QCA 117 at paragraphs 2, 3 and 6.  Douglas J agreed with the Chief Justice. 

Other mandatory minimum sentences

We have set out previously our reasons for opposing mandatory minimum sentences in general terms.

It is particularly difficult to see how mandatory minimum sentences can be an effective deterrent when people are intoxicated. 

Quite clearly people who are intoxicated are going to pay no heed to the level of sentence that they are likely to receive.  All this is likely to do is to result in a large number of people who are otherwise of good behaviour being imprisoned for lengthy periods in our jail system which is already under stress from overcrowding. 

Tony Moore reported in the Brisbane Times on 8 April, 2014[9] that the State’s prison population has swollen by a record 23% or 1,268 prisoners in the short period of the LNP Government. 

Anecdotal reports have many prisoners sleeping on the floor. 

Perhaps the Premier might want to consider that he faces the prospect of ending up like Governor Patton of Kentucky who in 2002 was forced to order the immediate release of almost 900 prisoners because the government couldn’t afford to keep them in prison. 

Police banning orders

The QCCL opposes the grant to the police of the power to ban persons from being in or around licensed venues.  The move on power is entirely adequate.

The proposed power is transparently open to abuse.  It is most likely to be used against indigenous and other disadvantaged members of the community as had been the case with the move on power.

Somewhat reluctantly the QCCL accepts the power which has been granted to the Court to issue banning orders.  That at least has the advantage that the orders are made by a Court in the context of a sentencing regime having heard argument and being presented with evidence.

Lifetime banning orders

Once again the Council for Civil Liberties opposes lifetime banning orders.  If a lifetime ban is to be enacted, the legislation should make it clear that an individual can seek to review that order.  It would for example be absurd that a 20 year old the subject of a banning order and who has then raised a family is unable to return to his or her child’s wedding at the age of 50 because of one of these orders.

Sniffer dogs

The QCCL has consistently opposed the use of sniffer dogs as a classical example of stunt policing. 

In 2006 the New South Wales Ombudsman produced a report which showed that 75% of the time sniffer dogs get it wrong.  This means that 75% of the time innocent people are being humiliated by being searched in public. 

The New South Wales Ombudsman in his report found no evidence that the use of sniffer dogs disrupted street dealing in any sustained fashion. 

The report also showed that the use of police sniffer dogs didn’t reduce drug related crime.  Nor did their use lead to any increase in perceptions of public safety.  This latter finding is of particular importance in the context of these proposals.

The inaccuracy of the sniffer dogs was confirmed again when in the first 9 months of 2011 New South Wales Police publicly searched 14,102 people for drugs following positive indications by police dogs and on 11,248 occasions no drugs were found.  In other words the dogs were still getting it wrong 75% of the time.[10]

Scanning of Drivers Licences

The Council accepts that of course licensees are entitled to comply with their lawful obligations by sighting proof of age.  However, in our view the copying of a driver's licence represents a gross violation of the right to privacy. 

The collection of copies of drivers' licences is justified on the basis that it is needed to allow the detection of violent crime or to deter crime on the premises.  We ask where is the evidence that it is effective?  The idea that ID scanners at pubs and clubs will be effective in deterring violence suffers from the same floor in logic as the idea that introducing mandatory minimum sentences will have that effect.  The reality is that by the time people get inside the club and they’ve had a few drinks they are likely to forget that they have left their licence information at the door.  Three Canadian Privacy Commissioners have conducted inquiries into this and found no evidence that the practice deters crime.[11]  This position was confirmed by a recent study released by the Australian Institute of Criminology which found that the statistical evidence showed that “No discernable reduction in reported assaults or emergency admission” following the introduction of licence scanning in Geelong.

But in any event this policy reverses the presumption of innocence.  It makes everybody in the hotel or club a criminal.  On the basis of this logic your local shopkeeper should be able to keep a copy of your drivers licence on the basis that you might be a potential shoplifter.

In December 2006 the Australian Federal Police warned people about allowing businesses to copy their ID as it created a real risk of identity fraud.[12]

There is a large amount of very personal data on the driver’s licence including name, address, date of birth, licence number and signature.  The question must be asked how securely is this data stored?  Who has access to it?  What is it being used for?  Is it being misused?

We would have thought that the Government would be concerned about licensed venues storing large amounts of personal information or having access to police data.  We hear continuously from the Government about how security industry businesses have been infiltrated by bikies.  It seems rather odd indeed that the Government having spent so much time and energy campaigning against bikies seems perfectly calm about the prospect of such people having access to large amounts of personal information and potentially police information. 

Under the Privacy Act a person who collects personal information like that on the drivers licence is required to tell the person from whom they are collecting the information what it is to be used for.  The Council has received a number of complaints about the scanning of drivers’ licences.  None of the licensed premises the subject of a complaint had made any attempt to explain to the patron what the information is going to be used for.

In addition under the Privacy Act an organisation is only allowed to keep personal information for as long as it is necessary to carry out their function.  If the function is to detect crime or to deter crime on the premises then in our view the data should be destroyed within 24 hours of being collected unless it is needed for a police investigation.

The paper refers somewhat cryptically to “linking police information with ID scanning in licensed venues to improve enforcement of banning orders”.  We are not sure what this involves. 

We certainly would have no objection to licensed venues being supplied with photographs of persons who are banned by Court orders from their premises.  This no doubt is a necessary and proportionate measure to effectively enforce such orders.  However, we would be concerned about the unrestricted sharing of information between the police and licensed venues.

If the government is to proceed with this proposal we call upon it to consult the Privacy Commissioner in drafting the legislation so that regulations can be created to ensure the privacy of people whose driver’s licences are scanned.  We call upon the government to give the Privacy Commissioner jurisdiction over licensed premises to monitor compliance with privacy regulations and to promulgate further privacy standards as that may be required.

In our view pubs and clubs should make more use of metal detectors which are far less intrusive. 

Sobering up centres

The QCCL opposes this proposal.

We agree with the President of the Police Association of New South Wales Mr Scott Webber who has been quoted as describing a similar proposal in New South Wales as a “band aid solution”.  He is further quoted as saying “Putting a large group of intoxicated people in one location is absolutely ridiculous and a huge drain on valuable police resources”.[13]  Quite clearly this proposal is extremely dangerous as it will expose those who have been locked up to serious risk to their safety from other people who have also been locked up.  There is no detail provided in the discussion paper as to what measures will be taken to ensure the safety of the individuals who are taken to these centers and of the health workers who will be there presumably to manage them.

In addition, it is a proposal which is likely to be abused by police.  Clearly whenever the police are given a broad discretion such as for example the move on powers it is the mentally ill, the homeless and indigenous persons who bear the brunt of the legislation.

The problem of too many intoxicated people roaming the street would be better addressed by providing more adequate public transport so that they can get home. That would be better than giving the police an uncontrolled discretion to detain people who have committed no offence and to put them in danger by locking them up with other drunks.   

The discretion given to the police in these circumstances must be considered in the context where it is generally accepted that it is impossible to accurately measure someone’s level of intoxication simply by looking at them let alone to determine their propensity to become angry or violent. 

In addition, there is an issue about the detaining and punishment of individuals who may in fact be alcoholics and therefore have no capacity to control their own actions in this regard. 

Once again it is difficult to understand how drunken people are going to be deterred by the existence of these centres from committing offences. 

The Government would be better focussed in terms of reducing the prospect of people injuring themselves on the street whilst drunk in providing better public transport to enable them to get home or amending the legislation to allow licence applications to be refused when areas such as the Valley have become saturated with venues.  Under the law as it stood before the current Liquor Act applications for licences could be refused if there was not a need for the new venue. 

If the legislation is to proceed then the police power to detain people has to be prescribed very clearly to situations in which the persons involved are at a serious and imminent risk to their own safety or represent an imminent and serious threat to the safety of others.

We trust this is of assistance to you in your deliberations. 

[1] In both these decisions we prefer the approach of Justice Margaret McMurdo.  However it should be pointed out that the Council would oppose a return of the prohibition on alcohol for the same reason that it opposes prohibition in relation to other drugs namely that prohibition never works, it does more harm than good and it inevitably results in the increase in police powers to the detriment of liberty in general. 

[2] D. Palmer: ID Scanners in the Night Time Economy – Australian Institute of Criminology Trends andIssues No. 466

[3] We refer to the discussion in the report at pages 8-84 and 100-106 of the Irish Law Reform Commission report Homicide:  Murder and Involuntary Manslaughter [2008]

[4] ibid

[5] 36 Sydney Law Review 1 at pages 12 to 16.

[6] David Brown Mandatory Sentencing:  A Criminological Perspective [2001] Australian Journal of Human Rights 31

[7] D. Roche Mandatory Sentencing: Australian Institute of Criminology Trends and Issues December 1999 especially pages 5 and 6

[8] Chan The Limits of Incapacitation as a Crime Control Strategy New South Wales Bureau of Crime Statistics and Research Crime and Justice Bulletin September 1995

[9] Paroled inmates unable to find accommodation returning to prison at $70,000 per year.

[10] A Petty Sniffer Dogs get it wrong 4 out of 5 times Sydney Morning Herald 12 December, 2011

[11] The Privacy Commissioner of Canada, (PIPEDA Case Summary

288396 5 August 2008), the Privacy Commissioner of Alberta (in the case of

Pennylane Entertainment Limited Case File No. P0256, 15 February 2008) and the

Privacy Commissioner for British Columbia (re Cruz Ventures Pty Ltd Order No.

PO901, 21 July 2009)

[12] The Daily Telegraph “Where your ID is at risk”, 29/12/06

[13] Sydney Morning Herald Police Fear Death Risk in Plan for Drunk Tank 4 November, 2012