On 26 August 2014, the Safe Night Out Legislation Amendment Bill 2014 (“the Bill“) was passed by the Queensland Parliament which is part of the Queensland Government’s “Safe Night Out” strategy, with the objective to reduce alcohol and drug-related violence in Queensland’s nightlife.

The Queensland State Government has stated that the Bill will achieve these policy objectives by “increasing penalties and police powers, strengthening liquor licencing compliance measures and creating stronger local management of entertainment precincts”.

In addition to a number of other varied methods, the Bill aims to achieve this purpose by implementing the following:

• amending the Queensland Criminal Code to create a new offence of “unlawful striking causing death”, and
• introducing ‘sober safe centres’ in the Brisbane Central Business District.

It is not disputed that the proposed aim of the Bill to “make Queensland’s nightlife safer for all through the reduction of alcohol and drug-related violence”[1] is commendable.

This article explores the impact of the legislative amendments, particularly the negative impact on the rights and freedoms of the Queensland public.

Unlawful Striking Causing Death

The Safe Night Out Legislation Amendment Bill 2014 creates a new offence under section 302A of the Queensland Criminal Code of “unlawful striking causing death” which purports to “fill the gap” between manslaughter and an assault which results in the death of a person.

The Explanatory Notes for the Bill states that this proposed “gap” is the difficulty of securing a conviction for murder where the prosecution cannot prove that the offender intended to kill the victim, and the difficulty in securing a conviction for manslaughter in cases where it can be argued that death of the victim was not intended or foreseen by the offender[2].

The Bill therefore addresses this “gap” in the new created offence of “unlawful striking causing death” by only requiring the prosecution to prove that the defendant unlawfully struck another person to the head or neck, and that caused the death of that other person.

The new section to the Criminal Code has a deeply problematic impact.

Firstly, the offence of ‘unlawful striking causing death’ is adequately covered by the current offence of manslaughter, which covers the same conduct and also carries with it a maximum penalty of life imprisonment. In truth, there is no “gap” to fill and the new offence of ‘unlawful striking causing death’ is redundant.  Furthermore, the new offence of ‘unlawful striking causing death’ removes a defendant’s ability to argue that the consequence of a strike is unintentional, and further removes their lawful right to use such force as is reasonably necessary to prevent repetition of an act or insult that amounts to provocation if that force is not intended and not likely to cause death or grievous bodily harm.

In their review of the proposed bill, the Queensland Law Society provided the following illustration to highlight the serious miscarriages that might occur under this provision.

A woman may receive repeated verbal insults and/or unwanted attention from a man in a bar.  The woman may react by slapping that man in order to prevent repetition of the insult.  Not expecting the slap, the man may fall backward, hit his head on a hard surface and die.  Under the (previous) law, the woman might argue that she did not intend that her slap cause the death of the man. Under section 302A, the woman would not be able to rely on the defence of accident, may be found guilty of the offence of unlawful striking causing death and may face life imprisonment.  In our respectful view, this would be an unjust outcome[3].

The new offence also carries mandatory sentencing in its penalty provision.  This offence carries with it a maximum penalty of life imprisonment, and further states that if a term of imprisonment is imposed for this offence, the Court must make an order that the defendant not be released from prison until they have served either 15 years in prison or 80 percent of the term of imprisonment for the offence (whichever is the lesser amount of time).  This should be contrasted with the offence of manslaughter, which carries a maximum penalty of life imprisonment, but leaves the decision solely in the hands of the Courts as to the sentence to impose in each particular case.

The Queensland Law Society further expressed concerns that mandatory sentencing under this new offence provision reduces the rights and liberties of Queensland individuals and mirrors the comments of the former Sentencing Advisory Council in stating that it “also risks having a disproportionate impact on vulnerable offenders, including Aboriginal and Torres Strait Islander offenders and offenders with a mental illness or intellectual impairment”[4].

The newly created offence violates the fundamental constitutional principle of the separation of powers, which is the cornerstone of fair government.  The Courts were historically established to provide checks and balances to government power, to ensure that power is not abused.  This is achieved by examining individual circumstances of parties and dealing with defendants on a case-by-case basis.  The new offence of unlawful striking causing death takes the power away from the Courts to decide the appropriate sentence for an individual offender and puts that power into the hands of the Government.  This is a gross abuse of power and reduces Queensland Courts to little more than a “rubber stamping” process in the event that the police exercise their discretion to charge a person with this offence.

Sober Safe Centres

The Bill further amends the Police Powers and Responsibilities Act 2000 (“the Act”) by introducing “Sober Safe Centres” on a 12 month trial, which will be located inside the designated precincts in the Brisbane Central Business District[5].

These amendments give the police the power to detain and transport any person they feel is intoxicated to the point where they are being a nuisance or could harm themselves or another person, to a Sober Safe Centre.  Persons can be held in these centres for up to eight hours, without being charged, and are further liable to pay a ‘cost recovery charge’, which is increased every time the person is admitted to a Centre.

It is further concerning that section 390C(2) of the amended Act authorises police watch-houses being used as “sober safe centres”, and authorises watch-house managers to act as centre managers for these “sober safe centres”, effectively ensuring that time in these “sober safe centres” is little different than standard time in police custody.

The Explanatory Notes to the Bill state that “people who intoxicate themselves to the point where they are reckless in their behaviour should not have the benefit of the cost of their health and well being paid for by the community”[6].

It is highly concerning that the Bill gives the police the subjective power to decide whether or not they are intoxicated for the purposes of detaining them without charge or arrest and further billing them for the ‘privilege’ of being detained.

Under this legislation, the police do not have to rely on a breath or blood alcohol test to determine whether or not a person is intoxicated and it is possible and even likely that persons who are not intoxicated could be unjustly detained under these provisions.  This could include vulnerable persons who suffer from mental illness, old age or other health or personal difficulties.

In conclusion, the introduction of the Safe Night Out Legislation Amendment Bill has a serious and significant impact on the operation of criminal law and police powers in Queensland.

[1] Explanatory Notes, page 1
[2] Explanatory Notes, page 4
[3] Safe Night Out Legislation Amendment Bill 2014, Letter of Ian Brown, Queensland Law Society to Research Director, Legal Affairs and Community Safety Committee, 4 July 2014, page 4
[4] Queensland Law Society, Letter to Legal Affairs and Community Safety Committee regarding Safe Night Out Legislation Amendment Bill 2014, 4 July 2014, page 5; Sentencing Advisory Council, Minimum standard non-parole periods final report, September 2011, page 20
[5] Police Powers and Responsibilities Act 2000, Part 5, Division 2
[6] Explanatory Notes, page 7

How We Can Help

In all cases involving allegations of assault or public violence, it is important that legal advice is obtained very quickly.

If you or someone you know has had the unfortunate experience of being charged or detained after a night out, our Criminal Law Team can expertly assist you.

Contact Us

Get the best representation. Contact Ryan Murdoch O’Regan Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.