Indigenous Law Bulletin
by Dennis Eggington and Kate Allingham
Western Australian (‘WA’) ‘move on laws’ are used by police as a mechanism for the social control of Aboriginal people. The laws are used to move individuals from well known public places in city areas where Aboriginal people congregate. The laws have become another example of discriminatory policing of an already over-policed Aboriginal population and are further contributing to the huge overrepresentation of Aboriginal people in the WA criminal justice system. The Aboriginal Legal Service of Western Australia (‘ALSWA’) has repeatedly asked that the move on laws be repealed.
In 2004, the Police Act 1892 (WA) was amended under the Criminal Law Amendment (Simple Offences) Bill 2004 (WA) to enable police to issue individuals with move on notices ordering them to leave a specified area for a period of up to 24 hours. If a person returns to the area prohibited by their move on notice, they are in breach and can be arrested. The penalty for breaching a move on notice is a fine of up to $12,000, or imprisonment for up to 12 months. Under section 50 of the Police Act, police can issue a move on notice if they ‘reasonably suspect’ that the person is ‘just about to’ commit an offence. This leaves the implementation of the move on laws largely up to the discretion of the police.
ALSWA has sent four letters to WA’s Attorney-General Jim McGinty outlining the disproportionate effect the laws have on Aboriginal people. Included in these letters are the non-confidential details of all ALSWA clients who were arrested and charged for breach of a move on notice. The record of circumstances for the issue of the move on notices and reasons for subsequent arrest demonstrate disturbing trends in the police implementation of the move on laws.
For the majority of ALSWA clients, the boundaries of the prohibited area, defined in their move on notice, extend across the entire central business district (‘CBD’) of townships and cities and in some cases include surrounding suburbs as well. Two of ALSWA’s clients were prohibited from five suburbs in and around the Perth CBD area for 24 hours. One of these clients is partially deaf and brain damaged. All public transport to the client’s home address goes through the forbidden boundaries. Therefore, the boundaries had the effect of leaving him stranded in the area from which he was forbidden. In March 2006, a client was issued a move on notice that prohibited her from within a two kilometre radius of Fremantle CBD for 24 hours. The area within this radius included her home address. The client was arrested one hour before the notice was due to expire. Her explanation for the breach was that she had a Centrelink appointment.
Of 94 clients charged with breach of a move on notice, 24 were arrested 5-20 minutes after the notice was issued, four of whom were standing at a taxi rank, bus stop or train station. One client who was homeless was ordered to leave an area encompassing the whole of the Perth CBD and Northbridge within 15 minutes, despite the fact that it takes more than 15 minutes to walk out of this area from where the client was issued the notice. He was arrested 20 minutes later at the central Perth train station.
In all of ALSWA’s records to June 2006 the notices apply to the full 24 hour maximum time limit. During this time period people are unable to access welfare, health services, legal services, public transport, banks, post offices and other general services in the CBD area that are used on a daily basis. This is particularly problematic for Aboriginal people who generally suffer from poor health and social and economic disadvantage. There are several examples of clients being arrested shortly before the 24 hour period expired. In one case a client was arrested one minute before the notice expired. Her explanation for breaching the notice was that she needed some breakfast. Another client was arrested for driving through Perth CBD (part of the forbidden area in his notice), 23 hours after the notice was issued. His explanation for breach was that he did not realise the move on notice was for 24 hours.
Differences in culture, differences in language and differences in English literacy mean that a written order may not be understood, and the document may not be retained. A repeated complaint by ALSWA clients is that they were unaware that the move on orders they were issued were for a whole 24 hours. Another problem is that the boundaries of move on notices are street-specific and presume the recipient has this background knowledge. In other cases, ALSWA clients were intoxicated when issued with move on notices, and had limited understanding of the geographical boundaries and timeframe with which they were supposed to comply. However, as illustrated in the examples above, the boundaries set are often completely unreasonable and are thus likely to be breached whether or not the client understands them.
The circumstances leading to arrest for breach of move on notices demonstrates very poor exercise of police discretion. Out of the 94 recorded cases, 72 people were arrested for breaching their move on notices simply by walking, standing or sleeping in the forbidden area prescribed by the move on notice. In the cases of three Aboriginal boys, aged 11, 12 and 13, they were forbidden to return to Northam CBD (a small town one hour north of Perth) for 24 hours because the boys were playing with a slingshot. This prevented the children from being able to attend school for the rest of that day. Two of the boys were arrested the next day for breach when they went to Northam shopping mall to get their hair cut, accompanied by the mother of one of the boys. The boys were dragged out of the shopping centre by police, taken in a police van to Northam police station, fingerprinted and a buccal swab was taken for DNA profiling.
Attorney-General McGinty has publicly acknowledged that Aboriginal people and those suffering mental illness are ‘being targeted’ by police in their implementation of the move on laws. A young Aboriginal girl who was homeless and suffering from psychosis was arrested four times in one month for four breaches of four different move on notices. Three of the move on notices were issued for erratic, unexplainable and aggressive behaviour consistent with her mental illness. After the fourth breach the young girl appeared in front of a Magistrate who granted supervised bail. Because of the severe nature of her mental illness and disadvantaged social circumstances, she remained in custody for 20 days until her charges were finally dealt with. This incarceration for 20 days stemmed entirely from her mental condition rather than her engaging in any serious criminal misconduct which warranted her being in custody.
The move on laws are not necessary. Laws already exist dealing with public space issues such as disorderly behaviour in public, street drinking, assault and unlawful assembly. Of the 94 cases recorded, all of the clients were issued with notices for such offences.
However, unlike the laws mentioned above, a move on notice can be lawfully issued where a police officer merely anticipates that an individual will engage in misconduct. A police officer can then arrest a person for simply being in the prohibited area prescribed in the move on notice. A person can therefore be banned from a large area for 24 hours and even arrested, charged and given a criminal record without actually committing a criminal offence.
ALSWA has also sent a submission to the Human Rights and Equal Opportunity Commission demonstrating the parallels between the prohibited areas legislation in the first half of the 20th century and today’s move on laws. 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. Although not overtly racially discriminatory, the move on laws are racially discriminatory in their implementation. The control over the use of public space and over who occupies public space and how, is central to both the prohibited areas legislation and the move on laws.
Recently, the WA Parliament passed the Criminal Investigations Bill 2005 (WA) which repealed section 50 of the Police Act and inserted the same offence into the Criminal Investigations Bill. The Criminal Investigation Bill is an amalgamation of statutory police power from the Police Act and the Criminal Code (WA). A Parliamentary Committee was formed to consider the Criminal Investigation Bill. The Committee received ALSWA’s four submissions on move on laws and heard oral evidence from ALSWA and the Assistant Commissioner of WA Police about the effect of move on laws on Aboriginal and Torres Strait Islander peoples. As a result of that evidence the move on laws contained in Clause 27 of the Bill were amended to include subclause (6) which states that when issuing a move on notice a police officer must ‘take into consideration any impact the order is likely to have on the person, including but not limited to the person’s access to school, workplace or usual domicile, their need for transport and support services’. Subclause (7) was also added, which stated that a ‘person is not in breach of the move on order if the person is taking reasonable steps to comply’.
In addition, pressed by the Parliamentary Committee, WA Police committed to training its officers regarding reasonable time periods for move on notices, to record the ethnicity of the recipients of notices, and to ensure that cross-cultural training is incorporated into police training and the practical aspects of operational policing. ALSWA has written to WA Police offering to assist in developing training content, and will shortly be meeting with the Superintendent responsible.
ALSWA continues to monitor the use and abuse of the move on laws by police for Aboriginal people and forwards quarterly submissions to Attorney General McGinty. Hopefully the legislative changes made in the Criminal Investigations Bill 2005 will reduce the number of Aboriginal people affected by the move on laws in WA. ALSWA hopes that this article will provide advocacy techniques to those affected by laws similar to WA move on laws.
Dennis Eggington is the Chief Executive Officer of the Aboriginal Legal Service of Western Australia (‘ALSWA’). A Noongar man, he is widely known throughout the country for his work within the justice system, and is frequently called upon to share his views on the complex issues facing Indigenous people.
Kate Allingham is the Policy Officer with the Aboriginal Legal Service of Western Australia (‘ALSWA’). She is an Honours Graduate in Politics and is currently studying Law.
 The Criminal Law Amendment (Simple Offences) Bill 2004 (WA) s 50.
 Ibid s 70A (2).
 Simon Penn, ‘McGinty Hits Move-on Orders’, The West Australian (Perth), 8 May 2006, 7.
 Aboriginal Legal Service of Western Australia (Inc), ‘The “Move On” Law and its Impact on Aboriginal People in Western Australia; Submission to HREOC’ (2006) 13.
 Ibid 15.
 The Bill was passed on 2 November 2006.
 Legislative Council Committee Hansard, (19 October 2006) 24 <http://www.parliament.wa.gov.au/web/newwebparl.nsf> at 6 November 2006.
 Ibid 13 and 23.
 Ibid 16.
 Ibid 21.
 Ibid 25.