Justice Legislation Amendment (Protective Services Officers) Bill 2011

I rise to speak in the debate on the Justice Legislation Amendment (Protective Services Officers) Bill. The opposition does not oppose this bill. This is a position consistent with the approach we took earlier in the year, when we did not oppose the enabling legislation that removed the 150 cap on PSOs (protective services officers).

The government has a mandate to implement its policy of 940 PSOs to be deployed across all metropolitan stations and at regional centres. This, as we have heard and as we have said, is its flagship policy. The community has an expectation that this policy will be implemented. We will hold the government to account to ensure that it is delivered in full — that is, at least two PSOs at every single metropolitan station and the 13 regional stations in Ballarat, Bendigo, Latrobe Valley and Geelong from 6.00 p.m. until the last train.

This is an article of faith for the government with the Victorian people. No doubt many votes were cast on election day based on this promise, and we acknowledge that. Indeed we acknowledge now, as we did during the campaign and in the years preceding it, that we need to do more to make people feel safe, particularly on our public transport network.

That is why in addition to Labor’s additional 1700 police, funded in Labor’s last budget, we also committed to deliver more transit police and more Metro staff — that is, fully trained sworn police officers riding the rails and more staff at stations. However, acknowledging both the need to do more and the mandate the coalition has is not a blank cheque for the government to do as it pleases. This is a deeply flawed public policy, and it is the duty of the opposition to expose this policy for the shambles that it is.

Mr Katos — Why are you supporting it then?

Mr MERLINO — I just said why. This policy may have been politically popular, but over time it has become clear that it is ill-thought through, is badly planned and will have significant consequences for policing in this state. The opposition pointed out many of these concerns in February and March.

Unfortunately, based on what we have before us today, the government has failed to address those concerns. This bill only provides clarity on what the powers are; it is woefully inadequate when it comes to where and how PSOs will exercise these extensive powers. The bill confirms our fears that this policy is creating a second-tier police force, whose members are not trained as much or paid as much but who have the extensive powers and guns of sworn police officers. These are second-tier police who will be able to be deployed anywhere at a whim. Because of our ongoing concerns and widespread concerns in the community, which I will elaborate on, the opposition will be seeking to amend the bill to secure a review by the Drugs and Crime Prevention Committee of the implementation and operation of this legislation 12 months after its proclamation. I will talk more about that shortly.

As I said, this policy has been an utter shambles from the start. Before I get to the specific provisions of this bill, here is a snapshot of the PSO policy debate so far. Lesson one: you simply cannot believe anything that the Minister for Police and Emergency Services says. The so-called co-Premier of this state has misled the public and failed spectacularly to deliver on the coalition’s flagship policy. So much for being its best performer!

On the question of cost, there has been a budget blow-out in excess of $85 million.

At the time the policy was announced the then shadow minister claimed it was ‘carefully costed’, yet the budget for the recruiting, training and deployment of these PSOs has gone from $161 million to over $212 million and the capital cost from $20 million to just under $55 million. This is to be paid for with the scrapping of the premium station upgrade, which those opposite tried to hide from scrutiny in a footnote in the budget papers. The minister weakly tried to claim that the budget had blown out because the government was bringing forward the initial 1700 police and the rollout of the PSOs from June 2015 to November 2014. What an absolute load of rubbish. Nowhere in this policy or in any public statement from those opposite was a 2015 end date ever mentioned. Rather than misleading the community, the minister should take the opportunity in this debate to admit the policy was always to be delivered by November 2014, or was he lying when he promised that delivery of the police and PSOs would be done ‘by the time of the election, in 2014’?

On the issue of deployment, there was this from the minister’s mouth:

We’re committing to train approximately one-quarter of those protective services officers in the first … financial year … We will have the first quarter of the 940 PSOs trained and on stations …

One quarter is 235 PSOs — in this financial year, according to the minister. At the Public Accounts and Estimates Committee hearings it was admitted that only 93 would be deployed this financial year. The government promised 25 per cent but is delivering less than 10 per cent. But even that dismal figure may be beyond this incompetent government, because it was revealed in a statement from Victoria Police on 19 July that:

We haven’t started recruiting for our new PSOs yet.

They have not even started recruiting. What a joke!

On 17 December last year the minister promised to first deploy the PSOs to areas of greatest risk. To quote the misleading minister again:

We would look to be seeing it done having regard to the greatest risk …

In the second-reading speech for this bill the minister stated:

The deployment of the PSOs will be determined on a priority basis, with the incidence of crime and public disorder a key factor in determining placement.

If that were true, then officers in the first deployment would go to Ringwood, Dandenong, Footscray, Frankston, Broadmeadows and St Albans, as well as Flinders Street.

The first deployment would not be limited to inner city stations, as has been announced. If the minister were true to his word, then communities like Frankston would see the PSOs first.

The Leader of the Opposition and I recently visited Frankston. The mayor of the City of Frankston has written to the Acting Chief Commissioner of Police and the government urging delivery of the government’s promise to the Frankston community by ensuring that Frankston receives officers in the first deployment of PSOs. Those representations have been to no avail. Their local member is certainly no help. This is what the drongo for Frankston had to say:

They are doing the city ones first but most people leave Frankston to go to the city.

I kid you not! I do not think he even understands his own government’s policy.

The PSOs will be deployed from 6.00 p.m. to the last train. It is a policy that applies to the evening commute — people coming home from work. People living in Frankston presumably get off at Frankston station. When they see none of the promised PSOs at Frankston station I am sure the member will be able to reassure his constituents by saying, ‘At least they are at North Melbourne’. This rollout is back to front. Commuter numbers and frequency of services in the city drop significantly after 6.30 p.m. For this policy to be effective PSOs are most needed in outer areas at night, the areas to which people are travelling, not the places at which they have boarded a train.

The member for Frankston then somewhat foolishly placed his faith in his misleading minister:

He gave us reassurances. If there are 940 delivered, who cares if we get number 50 or 100?

 

Who cares? The member for Frankston certainly does not care. Furthermore, the promise to deploy two PSOs to every metropolitan station from 6.00 p.m. to the last train seven days a week, is clearly at odds with the position taken by the Acting Chief Commissioner of Police, Ken Lay. He is reported as having said:

 

… we will move these people to those problem areas, just like we will with our operational response unit, just like we will with transit police …

Three or four years down the track, we will have the capacity to move hundreds and hundreds of police and PSOs across the transit system.

If the acting chief commissioner is right, this government will have failed to deliver the key tenet of its flagship policy. The minister has said that the deployment will be determined on a priority basis.

The greatest risk will be addressed first, but by November 2014 all metropolitan stations will have PSOs. Will that be the case or not? Why is there a clear contradiction between statements made by police command and the government on the key tenet of the PSO policy?

The minister has not forgotten of course — true to his being a National — to mislead regional Victoria. He promised 13 regional stations would get PSOs. He said in this place that PSOs:

… will be on platforms of the major regional stations — and there are 13 of those throughout Bendigo, Ballarat, Geelong and the Latrobe Valley.

Thirteen stations were promised PSOs but only four were funded in the budget. Once again regional Victoria is being shafted by The Nationals. It is not going unnoticed.

Just a few weeks ago this is what the Weekly Times had to say about the misleading minister:

… it appears there is no-one at the helm of the good ship Country Victoria.

It’s time Mr Ryan took on the role of Premier for Country Victoria, as his predecessor John Brumby once did.

If he can’t step into the role then regional Victoria needs someone who can.

On the issue of training, back in March the government was adamant that eight weeks training was sufficient. This was patently untenable.

I made the point during the first debate that our PSOs had done an excellent job in providing security to significant buildings, such as the Parliament, the Shrine of Remembrance and our courts. But the transformation — and as we can see in this bill, this is a transformation — is that PSOs will be required by this government to not deliver a security service but to deliver full-blown, front-line policing, moving from a security service role to a crime prevention role, which up until this time has been the responsibility of fully trained, sworn police officers.

The government has reluctantly announced an increase in training time to 12 weeks, but the stark comparison remains: 12 weeks training compared with 33 weeks training. Fully trained, sworn police officers are then on probation for two years. Every step they take in the field is in the company of a senior experienced officer. After only 12 weeks training PSO rookies will be dumped on station platforms with other PSO rookies.

They will get a fraction of the training yet be required by this legislation to deliver front-line policing — and they will have no supervision. It beggars belief. And who could forget the solution to the woeful lack of facilities that these PSOs will be faced with? For PSOs deployed at stations without toilets, and that is more than half the metropolitan stations, the local police will take them on a divvy van toilet run according to the government.

As I said, this bill outlines the powers of PSOs deployed at stations. It is a comprehensive list, and it confirms what the Opposition has always said: this is fundamentally different from the current role of PSOs. It will create a second-tier police force. They will not be as well trained and not as well paid, but they will be armed and look like police. If members do not think that this is creating a second-tier police force, they should consider the list of new statutory powers conferred on PSOs.

This bill amends 13 existing acts and empowers new PSOs to arrest persons released on bail for actual or anticipated breach of bail conditions; to arrest a minor who refuses to provide his or her name and address for the actual or anticipated consumption of liquor; to execute a warrant; to arrest a person found drunk or disorderly in a public place; to arrest a person who may be suspected of committing a graffiti-related offence; to apprehend a person who appears to be mentally ill where grounds exist to believe that the person has or is likely to attempt to harm him or herself or another; to apprehend a minor who is inhaling or may have inhaled a volatile substance; and to detain a person for as long as reasonably necessary to conduct a search of personal property.

It also empowers new PSOs to search persons, properties and things in a person’s possession or control for weapons, volatile substances or related instruments or proscribed graffiti implements; to remove a person and their property from public transport vehicles and premises upon the reasonable belief of an offence and that the person is likely to create a danger or annoyance to the public or hindrance to police or officers; to prevent a person from driving a vehicle and to enter a vehicle, including by use of reasonable force if a lawful direction is not followed; to direct a person to move on for a breach or likely breach of the peace; to remove offenders who are presenting a danger or annoyance to the public or hindrance to police or any authorised officer or employee of a passenger transport or bus company; and to seize property either permanently or temporarily.

These powers set out in the bill are significant and far reaching. They are powers that should only be conferred on fully trained, sworn police officers. As I said, new PSOs will receive a total of 12 weeks training, including in defensive tactics; in the use of tactical weapons, firearms, capsicum spray, batons and handcuffs; and in communications skills and dealing with young people and large groups. Sworn police officers are trained for 33 weeks and directly supervised for two years — for a reason.

Every day our police have to make split-second life-and-death decisions. Every day they are faced with the most confronting and highly charged situations imaginable, as the Police Association’s graphic campaign rightly identifies and highlights. These are difficult and often violent situations dealing with people who are affected by drugs or alcohol, dealing with aggressive and loutish behaviour and dealing with people who are suffering from a mental illness — and in all these situations police are expected to exercise considerable judgement about what is reasonable.

It takes the full complement of training and the mentoring and encouragement of supervising colleagues — indeed in all reality it takes years of experience to handle this most challenging of careers in our society.

It takes all of that, yet on our stations, among the commuting public, indeed among our sons and daughters as the acting chief commissioner likes to point out, our PSOs will be faced with all those volatile and confronting front-line situations — and they will get a measly 12 weeks training and no support. This is the fundamental problem with this policy.

I return now to the misleading words of the minister. He said in the second-reading speech that:

The recruitment standards for PSOs will be as high as for police officers. The PSOs … will receive an appropriate level of training having regard to the new powers they will be able to exercise.

These are words intended to comfort the community. But what is the reality of life at the academy?

How does the government explain the front page story in the Herald Sun on 19 July headed ‘Rejects get guns. Revealed: Failed cops set to be armed train guards’. Following an FOI request by the newspaper, it was revealed that a third of current protective services officer recruits had failed to qualify for the police force. The Herald Sun reported that failed police recruits were advised to try out as PSOs. How many failed police recruits are going to be accepted as PSO recruits in order to achieve the government’s promise of 940 PSOs on train stations within this term? Why do people fail to meet the appropriate high standards the police academy rightly demands? This information was withheld, but it includes of course a failure due to psychological unsuitability.

As the Leader of the Opposition has rightly said:

If you are going to carry the same gun and exercise the same powers, you should meet the same standards.

The Victorian Council of Social Service CEO, Cath Smith, is reported as having said this in response to the FOI revelations:

It should not be a role for those who didn’t make the grade as police …

PSOs will be armed with semi-automatic firearms, capsicum sprays and batons.

They’ve been given expanded powers to detain and arrest people, yet they will receive significantly less training than operational police. This is creating a recipe for disaster.

On 28 April VCOSS and a number of co-signatories wrote to the Minister for Mental Health, who is also the Minister for Women’s Affairs and Minister for Community Services, expressing grave concerns about the PSO policy. The letter says, in part:

We do not support the deployment of PSOs on train stations and are particularly concerned that there has not been adequate consultation about the proposed role of PSOs, the training they will receive at recruitment, the extent and nature of ongoing ‘on the job’ training and what accountability mechanisms will be used to monitor the use of their powers …

We are particularly concerned about the potential for negative interactions between PSOs and the vulnerable groups in the community which we work with, including young people, people with mental health issues, people with drug and alcohol issues, indigenous communities and culturally and linguistically diverse groups …

We are concerned about the potential for the excessive use of force and the escalation of non-violent situations into violent ones unless PSOs are provided with extensive and specific training about how to appropriately engage with these groups.

We reiterate that we do not support the deployment of PSOs …  

If the government does proceed … At a minimum, the training should be equivalent to that of other operational police …

This was signed by Cath Smith, CEO of the Victorian Council of Social Service; Ariel Couchman, director of Youthlaw; Kim Koop, CEO of VICSERV; Sam Biondo, executive officer of the Victorian Alcohol and Drug Association; David Pugh, CEO of St Luke’s Anglicare; Georgie Ferrari, CEO of the Youth Affairs Council of Victoria; Hugh de Kretser, executive officer of the Federation of Community Legal Centres; Peter Lewis, chair of ANTaR Victoria; and Ric Pawsey, acting CEO of Berry Street.

Of great concern is that during the bill briefing process it was confirmed that no mental health stakeholders were consulted in the preparation of this bill — not one. Again in the Herald Sun story of 19 July the Police Association of Victoria secretary, Greg Davies, is quoted as saying that PSOs will create ‘the propensity for more confrontation’ and that ‘It’s going to be incumbent on the police force to make sure they are adequately trained and fully equipped’.

Those concerned about this PSO policy are not limited to just the opposition, the Police Association of Victoria, the Law Institute of Victoria, the numerous community and welfare organisations I just mentioned, the Rail, Tram and Bus Union, respected commentators, our major daily newspapers or the vast bulk of Victoria Police; no, the concern about this ill-conceived policy is also apparent within the Liberal Party itself. The day after the Herald Sun revealed that failed police recruits had become PSO recruits it published an article with the headline ‘Lib quit over rail guards’, which states:

Former police officer Chris Andrews resigned as convenor of the party’s police and emergency services committee after the policy was hatched in 2009.

Mr Andrews is believed to have resigned because he did not agree with the policy …

The convenor of the Liberal Party’s police policy committee, no less, quit because he knew that this policy stinks, and he would be well placed to make that assessment, having been a police officer for 10 years, including 2 years training recruits at the academy.

This bill will create an enormous amount of additional work for local police, who are required under this bill to assist PSOs in apprehending arrested or detained people, who under this bill must be placed into the appropriate custody or care of police ‘as soon as practicable’. That is throughout this bill. It will be as we described earlier this year: a PSO will arrest or detain someone, and then they will call the police. While they are waiting for the police to arrive they will attempt to restrain that person on the platform, because with no facilities on the station and no vehicle that will be all they can do. One can just imagine how that already difficult situation could escalate into something much more dangerous.

Despite the second bill setting out a range of significant statutory powers that will be given to PSOs, the government’s pre-election promises and the substance of this bill are out of sync. This bill only exacerbates existing concerns and confusion about how and where PSOs will work. What is a ‘designated place’?

We do not know. These new powers will be exercisable by PSOs who are on duty and at a ‘designated place’. ‘Designated place’ has not been defined in this bill — it is being left as a matter to be prescribed by regulation. How the regulations will clarify what a designated place is remains to be seen. Areas that are designated places may well include places that are adjacent to stations, such as private or public car parks, shopping centres, walkways, bus stops, taxi ranks, level crossings, underpasses and overpasses around the network — or they may not. Who knows? What does ‘in the vicinity’ mean? These powers may also be used ‘in the vicinity of a designated place’ — yet more confusion about how the new PSO powers can be exercised.

The minister has already conceded that this term is going to be up to the courts to interpret and that it is interpreted broadly. The departmental briefing, which the opposition attended, indicated that ‘in the vicinity of a designated place’ will be dependent on the nature of the apparent breach or offence.

This could well mean that PSOs retain a power to arrest or seize property in a car park, in streets or in areas surrounding a railway station, but this is somehow dependent upon the seriousness of the actual crime or apprehended breach, concern or offence. Who knows? What an unfair, confusing and untenable position this places on PSOs. What they do may be a split-second decision, and they have to stop and say, ‘Hang on, am I in the vicinity or not? Is this a serious crime or not? What am I going to do?’.

I sought some legal advice because I wanted to know more about what ‘in the vicinity’ means. It is a naturally ambiguous expression. Different magistrates and judges will have different views on what ‘in the vicinity’ means. This cop-out in the bill is unfair on PSOs and puts into real doubt the effectiveness of this policy. I will give just one example of the bemusement that judges feel when legislators put the words ‘in the vicinity’ in legislation by citing the case of Virgin Blue Airlines Pty Limited v. Federal Commissioner of Taxation (2010) 190 FCR 150, where Justice Jessup stated:

The present controversy arises from the legislature’s adoption of the imprecise term ‘vicinity’ as a condition for the imposition of tax —

this was a taxation case —

Because the term is inherently imprecise, recourse to dictionary definitions takes the debate nowhere useful. At base, the sense in which ‘vicinity’ is used in text or conversation depends entirely on context. We are reminded by the Oxford English Dictionary, for example, of the maritime context —

and a situation that occurred in 1891 —

‘During a severe storm in that year the Port Glasgow ship Marseilles capsized in the vicinity of Portpatrick.’ For a vessel which has capsized, the proximity of a port is of obvious significance, and ‘vicinity’ takes its sense from that context. We are also entertained by the notion, given to us in the Pirates of Penzance, that a band of pirates might have it in mind to engage in a kind a mass nuptial with the Major-General’s daughters, an idea apparently rendered the more feasible because there was ‘a doctor of divinity … located in this vicinity’. In this context, ‘vicinity’ was used in a sense which implied convenience of access for an immediate purpose.

It is a farce. It is viewed as a farce within our court system.

The Law Institute of Victoria has stated that the bill must have strict definitions of where these new powers are to be exercised. It clearly does not. Without clear definitions arrests could be challenged in the courts and cases thrown out. Institute spokesperson James Dowley is reported to have said:

This could well lead to challenges because of ambiguity in terms of the interpretation of what the word means …

If the arrest is found to be unlawful by a judge or magistrate, then the rest of the case is likely to fail.

When it comes to jurisdiction everyone needs to know where it begins and where it ends. It is unfair to leave PSOs with this uncertainty as to where they can exercise their powers. It is imprecise to the point of it being unfair.

The bill therefore provides none of the clarity promised by this so-called open, transparent and accountable government.

There are concerns around the lack of training; the creation of a second-tier police force; cost blow-outs; the risk of excessive use of force; the ability of this government to effectively and appropriately recruit, train and deploy these new PSOs; the failure to provide basic facilities at train stations; and operational practicalities. These concerns have not abated. On the contrary, they have increased substantially. There is serious doubt within the community about this policy and the ability of this government to implement it effectively and as promised to the people of Victoria.

To that end the opposition will seek to move an amendment to ensure that a parliamentary review is conducted on the implementation of this policy.

The amendment will ensure that the Drugs and Crime Prevention Committee inquires into and considers the operation of this bill, that it do so no later than 12 months after the proclamation of act and that the committee provides its final report to Parliament within six months. The report must include the number of incidents involving PSOs and for each incident its nature, location, whether force or weaponry was used and whether the action taken was considered an appropriate response. A review of this policy by a parliamentary committee is essential to evaluate how the rollout has progressed and whether there are any problems with the powers. If the government is so confident about its policy, it should have no reason not to support this amendment.