Ms BADGER (Lyons) – Honourable Speaker, I am pleased to be speaking on this bill today on behalf of the Greens Justice spokesperson, the member for Hobart, Ms O’Connor in the other place. The purpose of this bill has been articulated as filling a legal gap with respect to improvised explosive devices and explosive substances, and the fact sheet that accompanied the consultation bill did a commendable job in articulating the legal gap that currently exists, as well as the extent to which the existing framework applies.
That’s the Work, Health and Safety Act 2012 and the Explosives Act 2012, as well as the Security Sensitive Dangerous Substance Act 2025, which provide some form of regulation for explosives. However, this framework is a regulatory one that largely relates to explosives in industrial settings and is administrated by Worksafe rather than police matters.
It is noted that some offences exist within both the Police Offences Act 1935 and the Criminal Code Act 1924 that are relevant, but this framework is imperfect. For example, as I understand it, the definition of dangerous article in the Police Offences Act 1935 may cover explosive devices but may not cover explosive substances. The need to fill these gaps was either supported and/or unchallenged by the submissions made to this bill and on that basis, I can indicate that the Greens support the proposed introduction of the new offences and the related provisions.
We do, however, as has been flagged and circulated to relevant members this morning, have some amendments to move during the committee stage of this bill and they are specifically amendments to section 43 to replace references to reasonable suspicion with reasonable belief.
When this bill was first tabled, it was done so with a wave of other police legislation, notwithstanding that this technically falls under Justice, but those other police bills, including on knife crime, wanding, hooning, possibly the Community Protection Bill as well, with the latter two being prorogued at the election, each of them contained provisions and had loosened definitions, and I will get to that later, that on the face it may appear to subtly increase police powers, but the outcomes of these are potentially substantial, especially on minority communities.
To be clear for members who weren’t here at the previous debates, the difference between reasonable suspicion and reasonable belief is what’s caused concern within the community. That threshold changes is largely what’s attracted public submission feedback and concerns from the Community Legal Service Tasmania, the Tasmanian Aboriginal Legal Service, and the Tasmanian Law Reform Institute.
To summarise a brief general definition, reasonable suspicion is the state of mind that falls short of a full belief. It requires some substance or facts to support that suspicion, but does not require absolute certainty. Reasonable belief is a stronger state of mind than suspicion, and it implies a greater certainty that an act has occurred or is occurring.
Prior to the passage of recent legislation, there were vanishingly few references to ‘reasonable suspicion’ in the Police Offences Act. The standard in the vast majority of cases is ‘reasonable belief’. There has been no attempt to build a case for a ‘reasonable suspicion’ threshold.
While we don’t have specific statistics available to us on the differences between ‘reasonable suspicion’ and the ‘reasonable belief’ threshold success rate on recent legislation, the wanding trial prior to the knife crime reforms provided some data.
This trial occurred before the ‘reasonable belief’ threshold in section 15C of the Police Offences Act was replaced with a ‘reasonable suspicion’ threshold. Of the 213 searches conducted, 54 weapons were discovered. This means that of 213 searches where the officer ‘believed’ that a person did have a dangerous article, as opposed to ‘suspecting’ they might, this belief was only accurate 25 per cent of the time. This rate was even lower in the western district, where only four of 31 searches, or 12 per cent, resulted in a weapon being found. Again, these searches were legally required to only be conducted on the basis that the office are ‘truly believed’, not merely ‘suspected’ that the person did have a dangerous article on their person, a belief that panned out as low as 12 per cent of the time in the western district, and at best 30 per cent of the time in Launceston.
This is the higher evidentiary threshold that has routinely been put aside in favour of the lower ‘reasonable suspicion’ threshold, including in this bill. This raises the question of how inaccurate the suspicion will be, not only for searches, but also for a suspicion that a person intends to, for example, use a canister of petrol in their possession to cause injury to a person or damage to property, not only for the purposes of a search but for the actual element of the offence under this proposed bill. Yet the government has again brought nothing forward to actually build a strong case for the adoption of a ‘reasonable suspicion’ over a ‘reasonable belief’ threshold.
My question to the minister: does the government have any examples of circumstances where police were unable to meet the reasonable belief threshold to conduct a search and then that individual went on to commission a serious offence? We have asked this question before at the other bills of the police minister in respect to this threshold, and we’re yet to receive a single example of where it was needed, let alone a broad enough trend to justify weakening civil liberties. So I’m hoping that the Attorney‑General might be the person to enlighten the House on these consistent changes.
I will touch on what the shadow attorney‑general, Ms Haddad, mentioned, the TLRI submission, and read that out for members in advance of the flagged amendments. The TLRI has noted:
At common law there is no power for police to search a person before arrest or to detain any person for any purpose. The right to security of a person is also recognised by international human law. Generally, under existing legislation, the basis for a search of a person is the police officer’s ‘reasonable belief’. The TLRI expressed concern that the current bill would also introduce a standard for search to suspects without any justification for this lower standard.
Further, given the justification for new offences appears to relate to the inadequacy of existing laws for explosives on private property, for example, during warrants for drug or firearms, it is not clear why the new power is required for searches conducted in public places.
There is an existing search under the Police Offences Act section 15C(2) which provides authority for a police officer to stop, detain and search without a warrant any person in public whom the police officer reasonably believes has possession of or carries any dangerous article without lawful excuse and stop, detain and search without a warrant the person’s vehicle.
I will also touch on the commission of inquiry. As with the aforementioned bills last term, there have been concerns raised on the risks to young people and the Community Legal Service submission points this out. It says:
The National Children’s Commissioner has recently noted some children and young people reported feeling unsafe when interacting with police. They record incidents of abuse and mistreatment, racial profiling and a lack of support. We believe that reform should be focused towards reducing contact between children and young people in the criminal system, a position supported by the commission of inquiry, who emphasised that children involved in the criminal legal system experience heightened disadvantage and are at a risk of institutional and other abuse. Attorney-General, are minors exempt from the loosening threshold as they were in the hooning bill but they were not in knife crime?
A further issue also that the shadow attorney-general touched on is that the definition of dangerous or suspicious circumstances is quite broad. The dangerous circumstances element applies to a person’s use, possession or supply of an explosive substance that possesses or is capable of possessing a significant risk of injury to a person or property. Arguably, possession or supply of an explosive substance in any circumstance is capable of possessing a significant risk of injury to a person or property.
However, the bill does not provide a second element of the offences in that it only applies if a person does not have a reasonable and lawful excuse. Nonetheless, the definition could have been considered more thoroughly so that the reasonable and lawful excuse element didn’t have to be relied on so heavily. The TLRI also flagged further refining in some terms used in the bill and I quote from their submission:
A final point can be made here about the apparent ambiguity of some of the terms used. For example, it is not clear what behaviour is covered by ‘use and supply’.
This to me contrasted to the approach taken in the Misuse of Drugs Act 2001, where key terms are clearly defined such as ‘prepare’, ‘possess’, ‘traffic’ and ‘supply.’ In addition, the Tasmanian Aboriginal Legal Service also raised concerns about the potential of a lower search threshold leading to profiling and disproportionate targeting of Aboriginal people. These concerns were also shared by community legal services.
TALS also pointed out in their submission a lack of definition around ‘reasonable’, which is increasingly important under the loosening ‘reasonable suspicion’ threshold. They say police officers can only infringe on an individual liberty when it is deemed objectively reasonable to do so, however the ambiguity in defining what is reasonable, subjective judgements on standards and the many factors that may be considered to arrive at determining ‘reasonable suspicion’ creates a ‘mess’ for decision makers.
Simplifying this complex series of assessment and increasing the threshold that enables police power can remove any bias or subjectivity, aid police in making sound decisions, and instil more public confidence in police exercising power. And, as Community Legal Services Tasmania say in their submission, the risk of net widening with vulnerable groups not only is likely to be disproportionately targeted but also to experience increased risk of interaction with police.
Concerns of this nature are well documented. In their submission to the recent Victorian inquiry into the criminal justice system, the Victorian Aboriginal Legal Service noted expansion of police powers and the disproportionate use of these powers and of heavy public health fines against already marginalised communities leads to engagement with police which ultimately leads to more arrests, more people unnecessarily taken into custody, and higher incarceration rates.
As is in the TALS submission, what cultural training is being undertaken by Tasmanian police and what training on subconscious bias is provided specifically with the loosening of these stop and search thresholds?
The bill is cited as being based on South Australian legislation, however, the South Australian offence does not refer to ‘dangerous circumstances’ and it does provide a legislative definition for its contents on ‘suspicious circumstances’.
From the TLRI submission, there is no requirement for the assessment of ‘suspicious or dangerous circumstances’ to be made on an objective basis such as would be required under a requirement of ‘reasonableness’, and they go on:
In South Australia there are qualifications for limitations placed on suspicion ‑
(1) There is a clear requirement of reasonableness in relation to the suspicion.
(2) Suspicion is directed to the intention of the person, that is an intention to cause harm to a person or property.
In concluding, I echo the Greens comments from similar past debates that this tough on crime approach isn’t working, increasing police powers is not the deterrent that is required and is why other countries around the world have shifted into other models of justice and reformed their systems. We need far greater resourcing directed into dealing with the underlying causes of crime and we in Tasmania still have a way to go.
I have indicated the Greens support for the purpose of this bill, but it is a shame that the Police Minister’s agenda to lower evidentiary thresholds continues to mar a range of legislation in this place that is otherwise broadly supported across the Chamber.
