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This
page considers 'move-on' orders, ie directions by police
or other officials requiring people to leave a public
place.
It covers -
 introduction
'Move-on' powers in Australia, New Zealand, Canada and
the UK predate the establishment of contemporary police
forces. They derive from common law in which representatives
of the state were authorised to order people to leave
a public place - such as a street, park or village commons
- because those people were undesirable or perceived as
likely to commit an offence such as burglary or prostitution.
Refusal to obey the order has typically been a criminal
offence under the summary
offences regime.
The authorisation is concerned with power (or discipline),
suspicion and appearance rather than proof that an individual
has committed a specific crime or has been apprehended
while engaged in an offence.
The authorisation intersects with expectation - in common
law and among the community - that people are free to
traverse "the king's highway" and other public
roads or spaces without permission from the state and
at a 'reasonable' pace, subject to that travel not seriously
impeding other travellers or involving another offence.
Bureacratisation of street life over the past 200 years
has seen incorporation of move-on powers in a range of
statute law concerned with -
- public
order (eg addressing demonstrations
and marches),
- traffic
management (eg the NSW Traffic Regulations
of 1937 regarding people loitering in the street and
thereby causing "inconvenience" to others)
- social
welfare (eg management of begging)
and
- moral
regulation (eg restrictions on prostitution and sexual
activity in public or quasi-public spaces).
Those powers have proved useful in directly addressing
(effectively or otherwise) substantive concerns such as
violent protests and indirectly addressing concerns such
as drug trafficking, 'kerb crawling' and teenage gangs.
In New South Wales for example the move on powers in section
197 of the Law Enforcement (Powers and Responsibilities)
Act 2002 (NSW) empower a police officer to give 'directions'
to persons in public places in certain circumstances.
The officer must believe, on reasonable grounds, that
the person's conduct -
(a)
is obstructing another person or persons or traffic,
or
(b) constitutes harassment or intimidation of another
person or persons, or
(c) is causing or likely to cause fear to another person
or persons, so long as the relevant conduct would be
such as to cause fear to a person of reasonable firmness,
or
(d) is for the purpose of unlawfully supplying, or intending
to unlawfully supply, or soliciting another person or
persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing
any prohibited drug that it would be unlawful for the
person to possess.
The
belief in relation to (c) does not require proof that
"another person" be present or that "another
person" actually is present.
Under section 201 of the same Act the officer must supply
his/her identification (eg a name or identity number).
Section 4 of the Crime Prevention Powers Act 1998
(ACT) specifies -
1) This section applies if there are reasonable grounds
for a police officer to believe that a person in a public
place has engaged, or is likely to engage, in violent
conduct in that place.
2) The police officer may direct the person to
leave the vicinity of the public place.
3) The direction may be made subject to either
or both of the following conditions:
(a) if the police officer has reasonable grounds
for believing that the person is likely to engage in
violent conduct while, or immediately after, leaving
the vicinity by a particular route - that the person
leave the vicinity by a different route (whether the
route is stated or unstated);
(b) that the person not return to the vicinity
for a stated period of not longer than 6 hours.
criticisms
In practice move-on orders are a blunt, sometimes useful
and sometimes abused tool for social regulation. Supporters
see the powers as fundamental for reinforcement of police
authority and as a viable way of dealing with social concerns
such as begging.
Critics note that they -
- address
the crime of being homeless, poor, Aboriginal, mentally
ill, of what is perceived as heterodox sexuality or
merely young
- fail
to provide a genuine response to urban poverty or psychological
problems, instead involving "social sweeping"
by simply keeping the underprivileged on the move (an
echo of the Tudor state's practice of pushing the indigent
from one parish to another)
- involve
subjective assessments of whether someone is "loitering"
or improperly associating
- are
on occasion inappropriately deployed to restrict legitimate
activity such as Street Photography
- are
rendered unnecessary by discrete provisions in criminal
codes (eg section 392 of the Crimes Act 1900
(ACT) dealing with "any person who behaves in a
riotous, offensive, insulting or indecent manner")
and other legislation (eg the Major Events Security
Act 2000 (ACT)).
In
Australia for example they have been attacked as providing
covert harassment of men visiting gay beats, with reports
for example that police have been issuing "directions"
that people not return to a park or other location for
periods of up to 28 days.
They have also been attacked as embodying traditions of
racial discrimination, with Eggington & Allingham
for example noting
that -
The
Aborigines Act 1905 (WA) allowed for designated
areas to be declared prohibited to Aboriginal people
unless they could show they were in 'lawful employment'.
In an amendment to the Act, Perth was made a prohibited
area in 1927 and Aboriginal people committed an offence
if they came within five kilometres of the city centre
after 6 pm.
A
Civil Liberties Australia submission to the ACT Legislative
Assembly (PDF)
noted that
Move-on
powers are inherently discretionary and arbitrary. As
Simon Bronitt and Bernadette McSherry point out:
the
discretionary approach to peace-keeping may be contrasted
with the strict approach taken by the courts to the
powers of arrest, detention, search and seizure, where
the courts have demonstrated considerable vigilance
in safeguarding the interests of personal liberty
and private property [see Williams v The Queen
(1986) 161 CLR 27 and Coco v The Queen (1994)
179 CLR 278]
Mostly,
incidents of the exercise of these discretionary powers
are never known to courts or review bodies. If a person
feels they have been wronged by the unfair exercise
of these powers and wants to bring it to a court for
appropriate redress, they have to instigate costly actions
in tort for trespass against the person. This situation
is the opposite of the normal use of police powers:
their actions and directives usually entail judicial
proceedings, during which the court will become aware
of decisions made by police in the exercise of their
powers in the circumstances of the case.
Moreover, it is important to note that move-on powers
can be coercive and punitive ... the process itself
becomes the punishment. Police serve a very important
function in our society, often under trying circumstances.
But Law Reports are peppered with countless illustrations
of inappropriate use of powers by police; in the heat
of the moment, with tensions raised, police do use their
powers imprudently
legislation
The salient legislation in Australia is -
- Law
Enforcement (Powers & Responsibilities) Act 2002
(NSW)
- Police
Powers and Responsibilities Act 2000 (Qld), ss
39 and 445
- Crime
Prevention Powers Act 1998 (ACT)
studies
Works on Australian move-on regimes include ''You're Not
Welcome Here': Police Move-On Powers and Discrimination
Law' by Tamara Walsh & Monica Taylor in 30(1) University
of New South Wales Law Journal (2007) 151-173, 'Move
on Laws: A New Mechanism for Police Control' by Dennis
Eggington & Kate Allingham in 6(23) Indigenous
Law Bulletin (2006), 'Moving in the wrong direction:
An analysis of police move-on powers in Queensland' by
Spooner in 20(1) Youth Studies Australia (2001)
27-31 and 'Olympic Move On Powers: Street Sweeping and
the Erosion of Public Space' by Ben Saul in 11(1) Polemic
(2000).
Context is provided by Principles of Criminal Law
2 ed (Pyrmont: Lawbook Co 2005) by Simon Bronitt & Bernadette
McSherry, Australian Criminal Laws: Critical Perspectives
(Oxford: Oxford Uni Press 2004) by McSherry & Bronwyn
Naylor, 'Regulating police discretion: An assessment of
the impact of the NSW Young Offenders Act 1997' by Chan,
Bargen, Luke & Clancey in 28(2) Criminal Law Journal
(2004).
Works on regulation of marches, pickets and other assemblies
in Australia - such as Dealing with Demonstrations:
The Law of Public Protest and Its Enforcement (Leichhardt:
Federation Press 2004) by Roger Douglas - are highlighted
here. Literature on the
regulation of begging is noted here,
with comments on the censorship of streetlife here.
For historical perspectives see Governing Morals:
A Social History of Moral Regulation (Cambridge:
Cambridge Uni Press 1999) by Alan Hunt, An Australian
Legal History (Sydney: Law Book Co 1982) by Alex
Castles and 'The Historical Antecedents of Contemporary
Crime Control' by Lucia Zedner in 46 The British Journal
of Criminology (2006) 78-96.
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