Police Offences Amendment (Repeal of Begging Bill) 2019

Ms WEBB (Nelson) – Mr President, this bill is primarily about acknowledging and giving effect to our shared agreement that begging should not be criminalised.  It is a straightforward matter that it should not be criminal for one person to ask another person for money in a time of need. 

The criminalisation of poverty and homelessness, which is the context in which begging remains an offence, is now widely recognised as representative of an outdated understanding of social issues and an outdated understanding of what constitutes an appropriate government and community response to these issues. 

Begging is a symbol of social exclusion that merits attention.  The causes of people begging are complex and include systemic societal issues that are beyond the control of an individual.  Many who find themselves in situations where they need to beg never planned nor expected to be there and would prefer not to be in that situation.  While people who beg are often reviled and seen as deviating from what is deemed acceptable in public spaces, they are frequently victims themselves of past trauma, of crime, of economic deprivation and of social exclusion more broadly. 

Research in Victoria by Justice Connect in 2016 showed that among people who begged, 77 per cent were experiencing homelessness, 87 per cent had a mental illness, 77 per cent were experiencing drug or alcohol dependence, 80 per cent had been unemployed for 12 months or more, 33 per cent had experienced family violence and 37 per cent reported childhood trauma or abuse. 

The law as it stands today – begging as an offence – targets and criminalises some of the most deprived and most disadvantaged members of our society for the crime of being visibly poor and homeless.  Our current approach does not address the root causes of homelessness or destitution, nor its consequences.  Tasmanians who are in a position of desperation should receive support.  That support should include housing, welfare, medical and mental health services, alcohol and drug services and social support.  On these measures of support in this state we are falling well short.  Fining people in such circumstances, criminalising them, is perverse and saddling them with a potential criminal record does nothing to address the underlying causes that may have led them to begging. 

At present, people who beg find themselves in a situation due to factors largely beyond their control.  If the act of begging criminalises them, we can broadly understand that they have ultimately been criminalised due to our community’s policy failures – Tasmania’s increased cost of living, for example, low incomes, an inadequate supply of affordable housing, high unemployment rates and inadequate provision of mental health support services and drug and alcohol services. 

The criminal justice system is not the place to help people who are destitute. 

Organisations that work with people experiencing poverty and homelessness around Australia – researchers, legal practitioners and academics – all agree that criminalising the actions of begging in these circumstances does nothing to address the underlying causes.  It perpetuates the stigmatisation of poverty, homelessness and disadvantage.  It sends a message, Mr President.  That message is that people who experience destitution, people who are homeless, and people who beg are at fault personally – they are bad; they are to be feared is the message. 

This message reinforces negative community attitudes towards people who are homeless and those who beg.  However, all evidence demonstrates in the vast majority of cases, this message and these attitudes do not reflect the reality.  Evidence tells us that, substantially, the activity of begging is one carried out in a way that is relatively passive and not accompanied by problematic or aggressive behaviours. 

That being said, my observation would be that it is common for people to feel uncomfortable about the presence of begging even when it is a simple passive, non-invasive action.  I have similarly observed that it is common for people to feel uncomfortable about even the presence in public spaces of people experiencing primary homelessness – that is, people who are rough sleepers. 

I note this discomfort among some members of the community.  I think many people would prefer not to have to see or encounter people experiencing homelessness and destitution in public streets and spaces.  My observation is that there are people who feel a sense of apprehension or even fear in sharing public spaces and streets with people who are visibly experiencing homelessness or destitution.  I suggest that apprehension or fear is connected in some cases to the anticipation those people who are homeless or destitute may behave in an aggressive, intrusive or unpleasant way.  At other times that apprehension or fear arises from seeing a person who is homeless or destitute behaving in a public area in a way that is aggressive, intrusive or unpleasant, even if this is the minority of cases.  I acknowledge those feelings are there in the community and believe it is our job to encourage those feelings to be resolved and better informed, rather than encouraged.

Research and evidence tell us largely people who are homeless or destitute and in the public domain do not behave in ways that are aggressive, intrusive or unpleasant.  Many would note in those fewer common instances – the small proportion of times – we actually see problematic behaviour in a public area by a person who is homeless or destitute, there is a high likelihood that person in question may be being affected by mental ill health and/or may be experiencing an issue with drugs or alcohol.  We recognise the response required is to ensure person is not going to hurt themselves or others, and to provide that person with support services.  I will come back to these observations shortly in relation to the second part of this bill.

On the face of it, therefore, it is pleasing to see reform progressed in this area for our state.  It has been called for over many years, primarily by those in the social services area, including myself in various previous roles in that sector.  I fully support the repeal of subsections 1 and 1AA of section 8 of the Police Offences Act 1935, which set out the offence of begging and the associated penalty. 

However, I also do not support aspects of this bill, and I will spend some time discussing those aspects.

It is a complex issue and I hope we can discuss these issues in the debate today with careful thought and analysis.  We are off to a good start with the contribution from the member for Rumney.  Like the member, I had noted here we need to be thoughtful about the use of language in regards to this activity.  We have to ask ourselves about how we speak about our fellow citizens as whole people, not in terms of labelling them on the basis of one action that they may undertake.

The impact of the second part of this bill, the expansion or additional police dispersal powers in section 15B will have on the members of the Tasmanian community who beg is significant.  It is entirely counter to the stated intent, the first part of the bill.  Further, it is poorly conceived and as a result of that unfair and discriminatory.  The proposed amendment to section 15B of the Police Offences Act 1935 would add to police powers in relation to dispersal of persons.  Under these new powers, the police would be able to direct a person to leave a public place if they believe that by, in the course of, or in connection with begging that person has intimidated or harassed a person, prevented or deterred persons from entering a business, or prevented or deterred conduct of a business, or deterred persons from using a public facility that is in or in the vicinity of the place.

Then it provides a descriptive list of what could be included as a public facility but not an exhaustive list.  Under section 15B, a person failing to comply with such a direction to move on could receive a fine not exceeding 2 penalty units.  This amendment creates new powers of dispersal that are specific to or connected with the activity of begging in a public place.  It specifically places those who are begging at risk of attracting a fine, which we have already established is a perverse response to somebody who is destitute.

I do not support the proposed amendments in section 15B, and there are three key reasons for that.  One reason is that those powers are not needed; the second reason is that they are not warranted; and the third reason is they are discriminatory and stigmatising in exactly the same way that the offence of begging is in the first place, which renders the repeal in the first part of this bill meaningless and somewhat hypocritical.

We first need to ask ourselves:  What is the intent of the inclusion of these new dispersal powers?  What are these additional powers actually for?  Who do police want to be able to move on under these new powers?  What specific behaviours do police want to be able to move people on for under these new powers?

It has been expressed to us in briefings that the intent of this additional dispersal power is to provide police with the ability to respond to complaints made in relation to people begging. 

It has been expressed to us that there is a community expectation that police, when called with a complaint about a person begging, will have the ability to do something to remove that person in question. 

We have been told by the department that, with the repeal of the offence of begging, there will no longer be a basis on which police can move on people who are begging, hence the Government’s claim that the inclusion of these additional move-on powers is required to maintain the same response that is currently available to police when called to deal with these complaints. 

Here I believe we need to test that claim and look more closely at what specific behaviours we are talking about that warrant a move-on response. 

We were told in the second reading speech that 61 complaints were received by police about people who are begging.  Over three-quarters of those complaints – more than 47 – were made by business owners.  We hear in the Government’s second reading speech that –

The nature of the complaints varied.  They generally reflected circumstances where beggars intimidated or harassed people, or adversely impacted business.

Further –

In a minority of cases, yelling, spitting or other abuse was described by the caller.

Let us look a little more closely at those statements about the complaints.  I hear the following behaviours described – intimidation and harassment, yelling, spitting and other abuse. 

I also hear that some complainants report their business being adversely impacted by someone begging nearby. 

Something I would like to know from the Government is how many of those 61 complaints were made in relation to the by far most common instance of begging, in which a person sits with a container in front of them to collect money, and either with a written sign indicating their circumstances or perhaps by a straightforward verbal request, asks people passing by for money.  How many of those 61 complaints related to that form of begging?

Then, how many of those 61 complaints were made in relation to begging accompanied by other problematic behaviour, such as intimidation or harassment, yelling, spitting, or other abuse? 

I am interested to know this, because I suggest that when it is the first instance – the most common form of simple, relatively passive begging – there should be no power for police to move people on for that behaviour. 

I suggest that in cases where there is other problematic behaviour occurring in addition to begging, that behaviour may warrant being moved on, and I suggest no additional powers are required for that to occur. 

I further suggest that in instances where a person who is begging is also behaving in a way that, say, actively blocks the entrance to a business, or actively deters people from patronising a business, that behaviour may warrant being moved on.  No additional powers are required for that to occur.

Let us consider those problematic behaviours sometimes associated with begging that were described in the second reading speech as being part of some complaints.  Are the new powers being proposed needed to provide police with the power to move on people who are behaving in intimidating and harassing ways as part of their begging? 

Under the existing powers in section 15B, police already have the power to direct a person to leave a public place if that person –

(a)     has committed or is likely to commit an offence; or

(b)     is obstructing or is likely to obstruct the movement of pedestrians or vehicles; or

(c)     is endangering or likely to endanger the safety of any other person; or

(d)     has committed or is likely to commit a breach of the peace.

Thinking first then about intimidating, harassing, aggressive or jostling behaviour that may be associated with begging – thinking about yelling, spitting or other abuse – I suggest these can be dealt with under (a) in that list, which is ‘has committed or is likely to commit an offence’. 

Police can point to section 13 of the current act, which contains the offence of creating a public annoyance. A public annoyance includes behaving in a violent, offensive or indecent manner; disturbing the public peace; engaging in disorderly conduct; insulting or annoying another person; and committing any nuisance.

Or it may be, when relevant, they could point to section 12 of the current act, which contains the offence of prohibited language and behaviour, which includes cursing; swearing; singing profane or obscene songs; language which is profane, indecent, obscene, offensive or blasphemous; and threatening, abusive or insulting words or behaviour to provoke a breach of the peace, or may occasion a breach of the peace. 

In using section 15B(1)(a) as the basis for moving someone on – that is the one where ‘has committed or is likely to commit an offence’ – the police do not have to bring an actual charge on that relevant offence.  They just need to believe that the person has committed, or is likely to commit, the offence.  There is the opportunity for discretion and there is the opportunity to act in anticipation of an escalation of behaviour.  It is not relevant to say, for example, that the offence of public annoyance is rarely, if ever, used; that people are rarely, if ever, actually charged with it. 

Here they do not need to be charged with it.  It just needs to be there on the statute book in order for the police to use it as the basis for moving people on under section 15B(1)(a).  Much the same, actually, as the situation we have now with begging as an offence where it has been explained to us by the police that it is rarely brought as a charge, but the police use it as the basis to move people on under section 15B(1)(a). 

Further, beyond what can be captured under (a), we also must remember that existing move-on powers can be used for behaviours captured by (b), (c) and (d) –

(b)     obstructing or is likely to obstruct the movement of pedestrians and vehicles; 

(c)     is endangering or likely to endanger the safety of another person;

(d)     has committed or is likely to commit a breach of the peace.

This provides very broad scope to move people on under the existing dispersal powers in section 15B.  I have heard from members of the legal profession that across the suite of offences in sections 12 and section 13 to provide a basis for using (a) and the breadth of behaviours captured by (b), (c) and (d), there is plenty of scope for police to use as a basis for moving on  those people who are behaving in a problematic way while begging.  By that, I mean those who are intimidating, harassing, being aggressive, jostling, blocking the footpath, creating a disturbance or causing a risk to others.

We have heard from members of the legal profession experienced in these matters that no additional police powers are required to respond to such behaviour.  However, as a thought experiment, let us for a moment take the Government’s claim to be true.  If it is true that section 15B does not provide police with the power to move people on for behaviour in a public place that is, say, harassing or intimidating, I suggest this indicates a gap which is relevant not just to the activity of begging but potentially much more broadly.  Behaviour in a public place that is intimidating and harassing or aggressive and abusive or which may present an active deterrence to people accessing a business, does not only happen in connection with the activity of begging. 

What is not clear then is why we would seek to remedy this general deficiency in police move-on powers by adding additional dispersal powers only connected to the activity of begging.  The proposed amendment would mean that people who are begging would be subject to legal constraints on their behaviour that are stricter than those faced by anyone else in the community. 

Under the proposed additional dispersal powers, a person could be undertaking an activity in a public place that was not begging but involved harassing or intimidating behaviour and that situation apparently would not be captured by existing powers and nor would the police be able to move them on under this new power proposed because there is no begging present. 

Let us think of some possible examples that could be considered here.  If a person standing on the street soliciting donations for a charity was so assertive and persistent in their approaches to passersby that it amounted to intimidation and harassment, and was behaving in such a way to create a deterrent to people patronising a nearby business, as we are told, apparently they would not be captured by these existing move-on powers and could not be moved on under this new power because they are not begging. 

Again, if a person were standing on the street proselytising and was so assertive and persistent in their approaches that it amounted to intimidation and harassment or behaving in such a way to create a deterrent to people patronising a nearby business, we are given to believe they could not be captured by the existing powers or moved on under the new power because they are not begging.

While the behaviours exhibited and the impact on passers-by in these two examples may be near-identical to those problematic behaviours sometimes associated with begging, under the proposed expansion of dispersal powers here, only people engaged in begging would be subject to move on powers and consequently subject to a penalty if they fail to comply.

This new power is categorically discriminatory and unfair.  If police genuinely cannot move someone who is behaving in a way that is harassing, intimidating or actively deterring people from patronising a business, there is a broader gap in the suite of offences currently on the books and in existing move on powers in section 15B.  If that gap is to be filled, it should be filled to capture all instances in which those behaviours may be exhibited and not tied only and specifically to an associated action of begging.

If what was proposed here were a broader effort to add move-on powers to deal with these problematic behaviours in whatever circumstances they occur, it would not be discriminatory and we could consider the evidence for it and possibly support it, but that is not what is presented to us.  We are asked here to support additional powers either unnecessary or, if necessary, they are drafted with specific reference to begging and through that are discriminatory.

It was put to us in the briefings we received that many of the people engaging in begging are observed to have issues relating to mental ill health, drug and alcohol use.  As a result of these circumstances, they sometimes behave in ways that are problematic or alarming to members of the public.  I take that to refer to those kinds of behaviours mentioned already, intimidation or harassment, yelling at people, spitting or directing abuse to people and such the like.

People with mental ill health or drug and alcohol issues are experiencing health problems.  We would all agree we most appropriately primarily respond to these issues with a health response.  The police are constantly called on as first responders to incidences where a person with mental ill health, drug or alcohol issue is causing problems for themselves or perhaps for others in a public place and requires a response.  These calls may relate to people who are homeless or not.  The police are often the ones who are required to resolve these problems or disturbances, and connect the person in question with a health response to their issues.  This happens all the time and police are compassionate in using their discretion and acting to assist people in these circumstances.

It would not be unusual for police to have to manage situation that involved a person experiencing mental ill health, drug or alcohol issues who is directing problematic behaviour at others or affecting others with their problematic behaviour.  I suggest this happens quite commonly and happens commonly in instances that have nothing to do with begging and in which no correlated begging activity is occurring at the time.  Not always, but many times it would not be related to begging.

In those common instances, is the Government saying there is no response available to police to manage the situation if a complaint is made to them?  If a complaint is made about problematic behaviour such as intimidation, harassment or abuse being undertaken by a person with mental ill health, drug or alcohol issue that is affecting or being directed at those around them in a public place, what response is currently available to police?  In instances such as this, which are relatively common, a range of responses is available to and used effectively by police.  They do not ignore these situations; they manage them.

My next question is:  can the Government explain why, in a situation that involves a person who has mental ill health, drug or alcohol issues that are causing problematic behaviour such as intimidation, harassment, abuse, who is also engaging in begging, do police not have available to them those same responses as in a situation that did not have begging?  If police regularly manage the former, they can equally well manage the latter under the same powers and actions available to them now.  They do not need additional begging specific powers to manage situations involving behaviour connected to mental ill-health or drug and alcohol issues.  In relation to problematic behaviours sometimes associated with begging, we have established there is already the power to move people on.  If a new power is needed, it should be able to capture the problematic behaviour with or without begging being associated with it.  Police already manage difficult behaviour associated with mental ill-health and alcohol and drug issues in circumstances not related to begging so they are certainly able to do so when begging is also present. 

I would like now to return to the most common situation in which someone is begging.  It became clear in the briefings we received that when we ask ourselves: What are these additional powers actually for?  Who do police want to be able to move on under this additional power that they cannot under existing powers once the offence of begging is repealed? – The answer is that these additional powers are being sought to allow police to move on people who are simply begging with no accompanying problematic behaviours. 

With the repeal of the offence of begging, this simple act of begging with no accompanying problematic behaviours is the only action that can no longer be captured by the existing move-on powers.  As I stated earlier, I do not believe there should be a power for police to move on a person who is undertaking a simple action.  Moving someone on in these circumstances is counter to the intent of this bill.  Some of our fellow citizens experience homelessness and destitution, and while we may find it uncomfortable or unpleasant to see or encounter these fellow citizens, they have as much right to be in the public streets and public spaces as we do. 

All citizens have the right to be subject to the same legal constraints on their activity and behaviour.  Citizens experiencing homelessness or destitution and engaging in a behaviour deemed to be legal should not be targeted with discriminatory constraints that apply only in association with that legal behaviour.  I think the Government has twisted itself in some contradictory knots.  It appears that it still wants to be able to make people who beg go away – out of sight, perhaps, out of mind. 

The things that will genuinely make begging go away are big, complex and structural.  They are typically the responsibility of government policy – an adequate safety net; enough affordable housing; enough health and mental health services, and drug and alcohol treatment and support; adequate family support services; an excellent education system; and available jobs and participation opportunities.  These are the imperatives to make real change in poverty, in homelessness, in destitution and, ultimately, in reducing begging. 

When we stigmatise and penalise begging, when we move begging people on because it offends our sensibilities, when we force begging people to be out of sight and out of mind, we actually remove the imperative to demand and act for real change in delivering those real solutions.  We absolve government and ourselves from taking responsibility for those big, complex and often wicked problems. 

The repeal of section 8 and the removal of begging as an offence is a step in the right direction towards acknowledging that we must not scapegoat individuals who beg but, rather, take that collective responsibility onto our shoulders. 

The inclusion of the begging-specific addition to dispersal powers in section 15 is an immediate step backwards – right back to where we were.  That is hypocritical.  It is inconsistent and discriminatory lawmaking, and it is just plain wrong.  When we consider this bill, I ask that members do not participate in legislating this hypocritical and unnecessary addition to police move-on powers and to consider voting against the second part of this bill, and supporting the first part with absolute sincerity.