Queensland’s public nuisance and offensive behaviour laws need to be dragged into the 21st Century, according to a new law report.
The report on the enforcement of offensive language and behaviour in Queensland, says current laws are flawed but could be improved by updating police procedures, sentencing options and ensuring police only intervened when public safety was threatened.
The University of Queensland report says police should avoid charging people for public swearing, vomiting, drinking, urinating or defecating.
It recommends offenders be directed to health or welfare services instead of the criminal justice system.
Report author, UQ law lecturer Dr Tamara Walsh, said some police could use public nuisance as a catch-all charge and pursue disadvantaged groups.
Dr Walsh said vulnerable people such as the poor, homeless and minority racial groups were more likely to be charged for being offensive than the general population because they often had no where else to go.
“Many homeless, Indigenous, impaired and young people in Queensland are prosecuted for being offensive when they are really just living out their lives,” Dr Walsh said.
“Nuisance laws are being applied to situations which do not warrant the intervention of the criminal law and it impacts disproportionately on disadvantaged people.”
Dr Walsh, a law reformer who specialises in public order, poverty and marginalised people recommends a reasonable excuse or vulnerable persons clause be created to protect these people.
She said nuisance fines should be lowered and the scope of community service orders should be widened to include rehabilitation programs.
Magistrates should discharge cases that don’t meet a minimum level of offensiveness, consider bonds and conditional releases instead of fines and stop attaching default periods of imprisonment to those fines.
Police should also take intoxicated persons to safe places instead of charging them and be continually educated about the impact of the law on vulnerable people.
Dr Walsh’s report was based on an 18-month-study which included observations of arrest cases at the Brisbane and Townsville Magistrates Courts.
Between July 2004 and July 2005, the number of people before the courts for public nuisance increased by 44 percent in Brisbane and 38 percent in Townsville.
Many public nuisance defendants were unemployed and homeless and most were under 25, unrepresented in court and fined an average of between $212 and $233.
As many as 30 percent of public nuisance defendants in Brisbane and 60 percent in Townsville were Indigenous.
Despite higher courts commenting on changing standards of offensiveness, Dr Walsh said a minimum standard of offensiveness was not met in 48 percent of cases.
She said police and magistrates were either unaware of the implications of an important test case from 2004 or were ignoring them.
She said nuisance laws were enacted for public protection not to punish minority groups.
About 10,000 Queenslanders a year are prosecuted for acting offensively.
MEDIA: Dr Walsh (07 3365 6192) or Miguel Holland at UQ Communications (3365 2619)
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