Controversial new laws targetting anti-social behaviour, which include "naming and shaming" serial offenders, have started in WA
Under the Prohibited Behaviour Orders Act 2010 (PBO legislation), proclaimed yesterday (23 February), courts will be given the power to make orders banning serial anti-social offenders from activities related to their crimes.
The PBO legislation allows a court to ban serial offenders from doing certain activities, being at certain places or associating with people linked to their offences. For example, a serial graffiti offender might be banned from using public transport, a shoplifter might be banned from a shopping precinct, or a violent offender might be banned from being out after dark or drinking alcohol.
In addition, details of offenders subject to a PBO will be published, including the name and photograph of the offender, the town or suburb where the offender lives and the constraints imposed by the PBO.
West Australian Attorney-General Christian Porter said the introduction of the legislation was part of the government's commitment to addressing anti-social behaviour in the community.
"What this legislation says is that if a repeat offender continues to engage in criminal activity such as property damage; graffiti; drunken violence; disorderly conduct or hooning; the freedoms they would otherwise enjoy as law-abiding citizens can be taken away from them," he said.
"These kinds of low-level, high-volume crimes are often difficult crimes for courts to deal with because they are individually relatively minor offences, but cumulatively have a serious impact on the community."
But according to the president of the Law Society of Western Australia, Hylton Quail, the laws will be ineffective in reducing antisocial behavour and are "destined to fail".
When the Bill was introduced in August last year, Quail said there were three fundamental problems with the legislation, namely the false assumption that PBOs will prevent antisocial behaviour; the repugnance of naming and shaming offenders; and the fact that similar laws enacted in the United Kingdom more than 10 years ago had been abandoned because they didn't work.
"It is a false assumption that simply passing a new law will prevent an offender from engaging in a particular behaviour," said Quail.
"All these proposed laws will do is criminalise their behaviour at an earlier point ... We will soon end up with young people facing prison having accumulated numerous breach-of-PBO convictions to match their graffiti convictions. There is no reason to believe rebellious and often disadvantaged youth will respect the new laws when they don't respect the old ones."
The Law Society labeled the "naming and shaming" aspect of the laws, which allows for the names and details of offenders to be posted on a government website, as "repugnant".
"It is completely at odds with the fundamental philosophy of our juvenile justice system; that children are different from adults and ought to be given every opportunity of rehabilitation to prevent future offending," said Quail.
"Children who are named and shamed will fall into two categories, the undeterred hardcore who will see it as a badge of honour and the rest who will be traumatised, stigmatised and alienated. There is nothing rehabilitative in naming and shaming. These children will have difficulty getting jobs and the nature of internet publications is such that their shame will live forever.
"Do we really want to create our own 'conveyor belt' and make it simpler to lock up the youth of Western Australia for what are, realistically, relatively minor offences?"
A PBO may be made against adults or juveniles aged 16 and over who have been convicted of two or more antisocial offences and whom the court considers likely to commit another offence.
The orders seek to give police and courts the power to restrict the liberties of serial offenders, to prevent further offending and ensure a meaningful response where they do offend.
"This legislation will only apply to a small number of the most serious, repeat anti-social offenders whom police and the courts consider must be banned from certain activities in order to try to stop their offending pattern," said Porter.
"Importantly the courts will have the discretion as to whether to place an order and publish details."
Offenders who breach a PBO will face a fine of up to $2,000 or two years jail if made in the Children's Court; a fine of up to $6,000 or two years jail if made in the Magistrates Court; or a fine of up to $10,000 or five years jail if made in higher courts.