Análisis de la primera hipótesis especifica

As stated in Chapter 1 of this report, in conducting this review of the public nuisance offence we set out to answer two questions:

• What was the impact of the introduction of the new public nuisance offence?

• Are Queensland’s public nuisance laws being used properly, fairly and effectively?

To answer them, we examined the:

• legislation itself

• social and political environment — the community ‘signals’ and concerns around public order, including all the views expressed through consultations and submissions

• criminal justice system data.

wHAt wAS tHe IMpACt oF tHe IntroduCtIon oF tHe new pubLIC nuISAnCe oFFenCe?

The findings of our review, based on the examination of criminal justice system data presented in Part 3 of this report, do not show marked changes since the introduction of the new public nuisance offence. For example:

• Our examination of a random sample of police narratives did not show any dramatic change in the types of behaviour which police identified as public nuisance. The type of behaviours for which public nuisance is applied continues to range from relatively minor behaviour such as tipping over rubbish bins and riding in shopping trolleys to ‘altercations’, ‘scuffles’ and fights with the potential to result in serious injury and some sexual behaviours that could potentially amount to serious sexual offences. Offensive language offences appeared under both the old and new provisions and the language involved was often directed at police.

• Police data show alcohol was involved in about three-quarters of public nuisance only incidents with an increasing proportion of incidents involving alcohol in the period after the introduction of the new offence (see page 48).

• While our results show an increase in the number and rate of public nuisance offences when we compare the 12 months before and after the introduction of the new offence, the regional variations in the degree and direction of the change tend to argue against the conclusion that the introduction of the new offence was driving the changes. Rather, the statewide increase in the number and rate of public

nuisance offences appears consistent with a significant upward trend in police public nuisance data over a 10-year period from 1997. Over the 10-year period the rate of public nuisance offending has increased by an average of 7 per cent each year but there is a notable increase in the upward trend from July 2006.

• Under both the old and the new public nuisance offences, most offending occurs on weekends and between the hours of 9 pm and 5 am.

• In terms of where public nuisances occur, most public nuisance offending occurs on the street and this remained unchanged after the introduction of the new offence.

However, after the introduction of the new offence, there has been an increase in the amount of offending on licensed premises and businesses, and a decrease in

CHAPTER 13: CONCLUSIONS FROM THE REVIEW FINDINGS 113 offences in recreational spaces (such as parks). Since the introduction of the new offence, the QPS also records whether or not offences are ‘associated with licensed premises’ and in the 12 months following the introduction of the new offence, a quarter of offences were said to be associated with licensed premises.

• Both before and after the introduction of the new offence, public nuisance incidents mostly occurred in major centres such as Surfers Paradise, the Brisbane CBD, Fortitude Valley and Cairns.

• The profile of public nuisance offenders has not changed much since the introduction of the new offence — most public nuisance offenders are males aged between 17 and 30 years. Indigenous people and young people were over-represented as public nuisance offenders under both the old and the new offence.

Although concerns had been expressed about a perceived increase in the proportion of young and Indigenous offenders, the data did not show any increase and in fact showed a decrease in the proportion of Indigenous public nuisance offenders for the new offence period. The data did not enable us to examine the impact on homeless and mentally ill or impaired people.

• The use of arrest was relied upon by police in around 60 per cent of public nuisance incidents involving adults both before and after the new offence. Those not arrested were generally issued with a notice to appear. Both adult and juvenile Indigenous public nuisance offenders were more likely to be arrested than non-Indigenous offenders.

• Where other offences accompanied public nuisance, most of them continued to be offences against police. We did find a decrease in the proportion of public nuisance offences accompanied by other charges in the period following the introduction of the new offence, and this was attributable to a decrease in offences against police accompanying public nuisance offences.

• The proportion of public nuisance matters contested in the courts was very low both before and after the introduction of the new offence. Ninety-eight per cent of adult offenders were convicted and just over half had their conviction recorded.

Sentencing practices also remained similar over the two periods under review, with the vast majority of adult offenders receiving a fine and the fine amount most commonly being $100 under both the old and new offences.

Our conclusion therefore is that the legislative change itself did not appear to have a significant impact on public nuisance offending or on the police and courts response to it.

We certainly found marginalised groups were represented, but that this over-representation had not been amplified since the introduction of the new offence.

On the contrary, the picture that emerged to us was that the principal focus of the offence was on managing the behaviours of ‘party people’ and that this focus has strengthened over time in response to community ‘signals’ and concerns around public order. Evidence of the strengthening focus on ‘party people’ is provided, for example, by

• the increased proportion of incidents involving alcohol in the period after the introduction of the new offence

• the increased amount of offending on licensed premises and businesses

• the high number of public nuisance incidents in ‘hot spot’ areas which are considered to be major entertainment centres such as the Brisbane CBD, Fortitude Valley, Cairns and Surfers Paradise, and associated with events such as Schoolies Week and the Indy carnival at the Gold Coast.

Are QueenSLAnd’S pubLIC nuISAnCe LAwS beIng uSed properLy, FAIrLy And eFFeCtIveLy?

The fundamental nature of the public nuisance offence is that it is flexible and responsive to prevailing community standards, which vary according to time, place and circumstance.

To determine the proper and ‘fair’ use of the offence, we examined the legislation itself and the community ‘signals’ about expected behavioural standards.

In looking at the legislation, we found:

• that the definition of public nuisance is intentionally vague as to what behaviour in what circumstances will constitute an offence in the eyes of the law

• that the offence therefore allows a wide scope for the exercise of police discretion and for the courts to interpret the law and act to fetter the inappropriate exercise of police discretion

• that under the new offence people can be charged with public nuisance without knowing from the charge any further details of the type of behaviour for which they were being charged.

In looking at the community ‘signals’ about prevailing and expected standards of behaviour, we found:

• widespread concerns about public safety in the face of anti-social behaviour, especially and increasingly where alcohol was involved

• the public actively seeking police assistance in maintaining social order, as evidenced by calls for service

• concerns for the treatment of marginalised groups, with particular reference to the exercise of police discretion and selective enforcement

• that there were a number of ongoing issues around the exercise of police discretion, including in relation to those behaviours at the more trivial end of the spectrum such as offensive language and public urination.

Our conclusion is that police are being asked to respond to a variety of ‘signals’, some of which are mixed or even contradictory. On balance, therefore, we believe that

Queensland’s public nuisance laws are being used fairly and effectively, in the sense that police are taking action to respond to the messages being sent by the broader community.

However, as noted in Chapter 1 of this report, during parliamentary debate on the new offence members from all sides agreed that although the public nuisance offence was a necessary and valuable tool, by its very nature, it required careful management. This may be through the exercise of police discretion and the influence of court decisions.

In the following chapter we make recommendations in relation to:

• some ongoing issues relating to the use of the public nuisance offence and legislative implications

• the response of the criminal justice system

• the underlying causes of public nuisance offending and the need for management strategies through partnership approaches.

CHAPTER 14: MANAGING PUBLIC ORDER: DISCUSSION AND RECOMMENDATIONS 115

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