Analysis

Expanded police powers to move people out of the CBD could disproportionately criminalise or disadvantage Aboriginal, young and homeless people
20 July 2023

Without proper safeguards and support services, the extended declared public precinct regime could result in rights being infringed while the underlying problems that lead to anti-social behaviour are merely shifted from one area to another.

Some media have made repeated recent references to an upsurge in crime in the Adelaide CBD. On 7 July 2023, the Attorney-General extended the “declared public precinct” in the CBD both as to time and location.

The declared public precinct will now operate seven days a week instead of two. The precinct is about four-times larger. Previously its eastern boundary was King William Street but now it will span all of Currie St, the section of Grenfell St from King William St to Pulteney St, Hindley St, Rundle Mall, the section of North Tce between West Tce and Pulteney St, and the section of Victoria Dr between Montefiore Rd and Kintore Ave.

In a declared public precinct, the police are empowered, under Part 14B of the Summary Offences Act 1953, to conduct drug and metal detector searches of a person without having a reasonable suspicion that the person is in fact carrying drugs or concealing a weapon. The police are empowered to remove any person from a large section of the CBD even if the person has not committed any offence. The police then have the power to arrest a person who returns.

The powers are extraordinary.

One of the Law Society’s main concerns is the disproportionate impact these changes could have on Aboriginal people.

The police commissioner acknowledged that merely policing anti-social behaviour in the CBD will not solve the underlying social problems (ABC Radio Adelaide, 5 July). However, the hard reality of the relationship between disadvantaged people and law enforcement suggests that Aboriginal incarceration rates could rise significantly as a result of the expansion to the precinct regime. This rubs uncomfortably against the Government’s genuine mission to reduce Indigenous imprisonment.

Under the extended arrangement, a police officer can request a person to leave a declared public precinct from 10am to 10pm Monday to Friday, 6pm to 6am Friday to Saturday, and 6pm to 10pm on Sunday. Requesting a person to move on from a declared public precinct then gives rise to the offence of re-entering a public precinct. Before Tuesday, this power was restricted to the “City West” area between and encompassing Hindley St and Currie St on Friday and Saturday nights. It was considered appropriate in a busy nighttime entertainment strip that the police had the power to nip in the bud rowdy behaviour before it escalated.

With police now able to exercise the same powers for up to 12 hours of the day every day of the week, it seems inevitable that more vulnerable people will be subject to “move on” directions. It is likely that people with nowhere else to go will be told to “move on”, and if they remain in the vicinity they will be subject to arrest.

Aboriginal people in particular are likely to be disproportionally affected for the following reasons.

• The relative social disadvantage of First Nations peoples means there will be a higher concentration of homelessness among Aboriginal communities.
• It is generally safer for homeless and transient people to stay in the CBD, due to denser population, more lighting and greater security infrastructure. In the absence of suitable public housing or homeless accommodation, evicting people from the CBD could put them in greater danger.
• Aboriginal people often travel to the city from remote areas such as the APY lands, for a variety of reasons.

The extended regime likely increases the criminalisation of disadvantaged people. If a person refuses to comply with a police officer’s direction to move out of a public precinct, that police officer then has the power to arrest the person for disobedience. The police also have the power to issue expiation notices for non-compliance with public precinct orders. It is difficult to see the utility in fining people who are already poverty-stricken.

Young people are another cohort who could be especially impacted by these changes.

Young people use the centre of the CBD, with its key transport routes, to congregate, meet friends and develop their independence.

Common experience is that young people in groups are prone to acting boisterously, often attracting the disapproval of adults even though the behaviour is not strictly unlawful. It is concerning that such behaviours should become criminalised.

It would be especially problematic if young people were barred from the CBD and therefore unable to travel to school via the CBD’s public transport routes.

A number of young people come into the city to avoid dangers they are experiencing at home. For them, it may feel safer to be among larger groups, in well-lit areas and under the surveillance of cameras. The Law Society’s Children and the Law Committee comprises lawyers who have experience providing legal support to vulnerable young people. They commonly hear from young homeless people that some of the safest spots to stay are in and around Hindley Street, where there is better lighting, a constant flow of people, where they can blend in, access food, know they are on CCTV or close enough to bouncers or police if the need arises.

Lawyers also report that, for reasons which include a historical distrust of law enforcement, mental health issues and behavioural issues related to alcohol or drug use, disadvantaged people may resist police “move on” orders, thus triggering an officer’s right of arrest.

In the Law Society’s view, the reported issues that have prompted these new declared public precinct arrangements should be addressed with a multi-faceted approach, including:

• A legislative requirement that the Attorney General or responsible Minister make public the evidence relied upon to amend public precinct arrangements, and provide a statement that outlines the human rights impact of the proposed arrangements;
• The sufficient provision of, and timely access to, housing, mental health, drug and alcohol, family reunification and legal support for vulnerable people
• Before making a public precinct declaration, the Attorney General or responsible Minister must publicly consult with relevant bodies, especially affected Aboriginal communities and Aboriginal community organisations
• Implementing and enhancing community policing, as recommended by the Royal Commission into Aboriginal Deaths in Custody, so that police have greater involvement and skills in addressing social problems, and the risk of over-policing and over-incarceration is reduced.

This is a complex problem and the Government appears to have a genuine desire to both keep people safe in the CBD and support the disadvantaged people who occupy the city’s shared public spaces.

However, the solution needs to be far more sophisticated than giving police greater power to infringe on a person’s right to occupy a public place. The Law Society has written to the Police Commissioner to request the evidence that has been relied upon to seek these expanded powers. SA Police have responded that the enquiry should be re-directed to the Attorney-General. The Law Society is preparing an in-depth submission, based on the input of Committees that have experience and expertise on these issues, to the Attorney. The Law Society trusts that SA Police are alert to the deep-seated social problems at play and hopes they will exercise their powers proportionately, but more must be done than merely shifting the problem out of the CBD.

For all media enquiries, please contact Michael Esposito, Communications Manager on (08) 8229 0239 or via [email protected].