Crime and the Criminal Process Statutory Interpretation Assignment

The New South Wales Government has introduced a bill containing the following provisions and amendments:

Item 1 Insert after section 4 of the Graffiti Control Act 2008:

4A Intent to deface property in specified places 

• A person must not enter or remain in a specified place with intention to deface

Maximum penalty: 4 penalty units or imprisonment for 6 months, or both.

• A person is guilty of an offence against this section if the person commits an offence against section 4A(1) in circumstances likely to cause—

• harm, or

• a public

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

• For the purposes of this section, a specified place means—

• a school,

• a public place at which a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held or will be held,

• a public passenger vehicle that is travelling on a route to or from a place referred to in
  • or (b), or a station, platform or stopping place on any such

school has the same meaning as in the Summary Offences Act 1988.

public disorder has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002.

public passenger vehicle has the same meaning as in the Passenger Transport Act 1990.

Item 2 Insert after Part 6B Public safety orders of the Law Enforcement (Powers and Responsibilities) Act 2002:

Part 6C Special event powers—public order 87ZD Interpretation

(1) For the purposes of this Part—

police officer, see section 3.

public passenger vehicle has the same meaning as in section 4A(3) of the Graffiti Control Act 2008.

road means a road within the meaning of section 4(1) of the Road Transport Act 2013.

specified place has the same meaning as in section 4A(3) of the Graffiti Control Act 2008.

vehicle includes a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013.

87ZE Special powers to prevent offences in specified places 

• A police officer may exercise, in a specified place, the special powers conferred by this Part if the police officer—

• suspects on reasonable grounds that there is an offence under section 4A of the Graffiti Control Act 2008 occurring or there is a risk of such an offence occurring in the near future, and

• is satisfied that the exercise of those powers is reasonably necessary to prevent the offence from occurring or continuing to

87ZF Power to stop and search vehicles in specified places 

• A police officer may, without a warrant, stop and search a vehicle, and anything in or on the vehicle, if—

• the vehicle is in a specified place, or

• the vehicle is on a road that is a specified

• A police officer may detain a vehicle for so long as is reasonably necessary to conduct a search under this

87ZG Power to search persons in specified places 

• A police officer may, without a warrant, stop and search a person, and anything in the possession of or under the control of the person, if—

• the person is in a specified place, or

• the person is in or on a vehicle, including a public passenger vehicle, on a road that is a specified

• Division 4 of Part 4 of this Act (except to the extent that it authorises strip searches) applies to the search of a person conducted under this

• A police officer may detain a person for so long as is reasonably necessary to conduct a search under this

87ZH Part does not limit other police powers

(1) This Part does not limit the operation of any other provision of, or made under, this or any other Act.

When the bill was introduced to the NSW Legislative Assembly, the new Minister for Special Events delivered the Second Reading Speech, which included the following:

The FIFA Women’s World Cup is, yet again, a chance for Sydney and New South Wales to shine. We want to give the people of Sydney, Australia, and the world a chance to enjoy some great football. We in the Government also recognise that this is an unmissable opportunity to bring greater economic benefits and opportunities to our region.

So, we cannot mess this up. The whole world will be watching us in July and August, and that is why it is imperative that we deliver a clean and incident-free World Cup. We know there is hooliganism associated with football around the world, and we want to avoid that and keep the public safe. But we also know naysayers simply want to use the spotlight on our great cities to push their own agendas. You saw the criticisms of the hosts in Qatar and before that in Russia and Brazil, for the Men’s World Cup – we do not want the World Cup here to be smeared with the same brush. It is no exaggeration to say that our country’s reputation is on the line. That is why, today, I am proud, as Minister for Special Events, to introduce some extraordinary changes to make sure this World Cup is successful.

This bill is based on a risk assessment of where the hotspots of activity are throughout the time the Cup is here. This bill has been carefully planned with a view to putting in place various measures that are strictly necessary to ensure that the World Cup runs smoothly. We cannot have our image tarnished by thugs and activists exploiting this once-in-a-lifetime opportunity for us to showcase our wonderful city to the world.

The bill is an omnibus of sorts, making some temporary amendments to legislation that will apply at least for the duration of the World Cup this year. A few key areas we have addressed include giving powers to our police to stop criminal behaviour in and around key venues – those who seek to break the law will not even be able to get close. They will be stopped in their tracks.

I hope that my friends on the other side of the chamber realise the need for these measures. Other World Cups, both women’s and men’s, have been dogged by claims of human rights abuses, rampant crime targeting tourists, and violence on transport to and from the games. We know all too well that protesters will try to ambush this great tournament, as they have attempted to do so in the past.

This bill will guarantee the timely detection and removal of criminals seeking to spoil the appearance of our city. We have introduced substantial penalties for those who go out of their way to cause disruption to the World Cup. We back our police by making sure the maximum penalty will serve as an effective deterrent. A short stay in prison is a necessary tradeoff for causing long-lasting damage to Australia’s reputation on the world stage, which could put pay to hosting any future events for decades.

Some have criticised what is in this bill, complaining that police have free rein to stop everyone and anyone. That is nonsense. The amendments have been very carefully drafted. Besides, Sydneysiders and national and international visitors have nothing to be concerned about if they intend on doing the right thing. If you are going to these venues, you do not do it accidentally. Our police are there to protect us, and this bill equips them with the ability to take appropriate action when needed. They are not the fun police; quite the opposite, these changes are to guarantee we all enjoy the spectacle that the World Cup will bring to Sydney.

The Opposition spokeswoman for Special Events confirmed the Opposition’s support for the bill and its measures, saying to the Assembly:

The Opposition supports this bill. It is not excessive, as some critics say – the same critics who are happy for the streets of some of our regional towns to be ruled by youths and thugs. In fact, we think the bill does not go far enough. If we win office in March, these provisions will remain permanently. These amendments will guarantee the feelings of success and satisfaction that we haven’t felt since the Sydney Olympics. To achieve that, some tough measures are necessary.

ANSWER EACH OF THE FOLLOWING QUESTIONS:

 Question 1 (50 marks)

Assume you work as a legal policy officer in the Criminal Law Review Division of the NSW Department of Communities and Justice. There has been some backlash from civil liberties

groups and the NSW Greens about some of the measures in the bill and comments made by the Minister for Special Events. You have been asked to prepare a briefing memo that:

1. identifies the elements of the proposed s 4A offences, paying particular attention to the decision in He Kaw Teh v The Queen (1985) 157 CLR 523, and
2. highlights any difficulties of statutory

Question 2 (50 marks)

 Citing relevant material from the course (only up to, and including, Class 8), what issues arise regarding the proposed amendments to the Graffiti Control Act 2008 (NSW) and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)? Discuss whether the amendments are appropriate additions to the law in NSW. You should refer to the extrinsic material (i.e., political commentary) accompanying the bill in your answer.