Legal Research > Papers by Public Defenders

Police Powers 2006

 

The Law Enforcement (Powers and Responsibilities) Act 2002

by Andrew Haesler SC
Deputy Senior Public Defender
2 March 2006

 

In its Final Report the Royal Commission into the NSW Police Service recommended legislative consolidation of police powers in order to:

· Strike a balance between the need for effective law enforcement and individual rights
· Assist in ensuring clarity
· Reduce the possibility of abuse of power through ignorance, and
· Assist in training Royal Commission into the NSW Police Service - Volume II paragraph 7.20. .

In March 1998 the New South Wale’s Government set up a task force to review and consolidate law enforcement powers in a single Act. The Exposure Draft of the Bill was significantly different from the final Act, see Gareth Griffith, “Police Powers in NSW: Background to the Law Enforcement (Powers and Responsibilities) Bill 2001,” NSW Parliament Briefing Paper 11/2001 online at: The Exposure Draft of the Bill was significantly different from the final Act, see Gareth Griffith, “Police Powers in NSW: Background to the Law Enforcement (Powers and Responsibilities) Bill 2001,” NSW Parliament Briefing Paper Criminal Law Review Division NSW : Reports and Papers : 2003 The Consolidation of Law Enforcement Powers The Law Enforcement (Powers and Responsibilities) Act 2002 (LE (PR) Act) was introduced but did not commence in 2002. In 2003 it was amended to clear up some minor problems, but it did not commence in 2003. It did not commence in 2004. In 2005 Part 8A relating to police in car videoing of motor traffic incidents started but the Act did not commence in the first part of 2005 as promised. It finally commenced on the 1 December 2005.

The LE (PR) Act originally had 19 Parts These are comprehensively summarised in the paper of Mary Spiers, The Consolidation of Law Enforcement Power. A paper presented to the Legal Aid Commission in 2003 and available from the Criminal Law Review Division. I am indebted to Mary and her paper parts of which I have pinched for this one. ; by the time it commenced it had 21. They are summarised briefly below and set out in a Table at the end of this paper.

Let me be blunt. There are a number of provisions in the new Act I do not like. In addition, I have a fear (backed by experience) that to give police additional powers will only lead to requests for more powers. That fear has been already come been realised.

In 2004 I wrote that:

All it takes is a media outrage, a major crime, incident or terrorist threat for police to say that their existing powers are ineffective to prevent the outrage, crime or threat. Obviously, if we want to prevent outrages crimes or threat; the police must have more powers. So obvious is this proposition that we often fail to ask: How would the new laws prevent the outrage, crime or threat or ask the police to demonstrate why their existing powers proved ineffective”.

Disappointingly I was proved right.

I am an advocate for the “broccoli principle” of law reform: “You can’t have any new powers until you use up the ones you’ve got!” It is a principle that has yet to be adopted by anyone in power.

If ever there was legislation, which tempts the police to ask for “more” it is the Law Enforcement (Powers and Responsibilities) Act 2002. The so-called Cronulla race riots in late 2005 however were too good an opportunity for the police and Parliament to resist. Within days of the Act commencing it was amended to give police extensive additional powers: Powers that police had initially denied been denied despite their lobbying for them in to be included in the original Act.

In addition to these new powers, there are a number hidden “extras” in the Act about which I have of specific concerns. The Act is said to be a consolidation of pre-existing laws and “balanced”. “With power comes responsibility. This Bill represents ideals of transparency, accountability, and legitimacy. This Parliament, as representatives of the community, and the Courts have over time given Police certain powers required to fulfil their role in law enforcement effectively. In return for these powers, however, police are required to exercise them responsibly, particularly where these powers affect the civil liberties of members of the community whom police serve. The Law Enforcement (Powers and Responsibilities) Bill 2002 balances these two ideals admirably.”

- The Hon R Debus, Attorney General, Second Reading Speech, Legislative Assembly. However, I for one, have my doubts that the scales are evenly weighted. I will raise these concerns in the context of this overview.

Part 2: Powers of search and entry:

At common law, a police officer could enter premises to make an arrest, provided specific conditions are satisfied. They must believe on reasonable and probable grounds, prior to entry, that the person he or she is seeking to arrest is on the premises. Second, there must also be a proper announcement, prior to entry (Lipple v Haines (1989) 47 A Crim R 148).

At common law police are trespassers unless they enter premises with consent or to make an arrest, prevent a serious indictable offence (felony), arrest an offender running from an affray or to prevent a murder (Plenty v Dillon (1991) 171 CLR 635).

Sections 9 and 10 were said to codify the common law. The Second Reading Speech states expressly that there is no extension of police powers and section 9 only codifies the existing common law powers of entry (Spiers para.6) They appear much broader. Section 9 allows entry to premises if there has or has been threatened a “breach of the peace” to end or prevent the breach. The term “breach of the peace” is not defined. It is a term replete with uncertainty. It can and will be interpreted as meaning almost any offence. Is swearing a breach of the peace? Is a noisy stereo? Any breach of public order could be construed as a breach of the peace.

The power of police officers to deal with breaches of the peace at common law should be able to be stated succinctly in legislation. If it cannot be succinctly stated, the power is too nebulous to retain. It is contrary to the principles underlying the Act to expect police to refer to the Law Reports. Importantly, once entry is effected the police can declare a crime scene for up to 3 hours giving them considerable powers over property and people on it. They can take longer if a warrant is obtained (see below).

In addition, “breach of the peace” carries with it an assumption that the public order is being interfered with. The "public" element makes the term awkward in its s.9 context where entry to private premises is involved (Prideaux v DPP (Vic) (1987) 163 CLR 483). Section 9 should allow only for entry to premises in circumstances where serious physical injury or loss of life has occurred or is at risk.

Section 9(2) illustrates how extensive these powers are. It provides for exceptions to the operation of the section only for “industrial disputes, genuine protests, processions or organised assemblies”.

Section 10 sets out police powers of arrest. Safeguards are set out in Part 15.

Part 3: Powers requiring disclosure of identity

Section 11 allows police investigating an indictable offence to require a person to state their name and address if the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred. It is an offence not to do give your name and address (s.12) or to give false or misleading particulars (s 13). Sections 11 to 13 reproduce the provisions of s.563 of the Crimes Act 1900. It should be noted that offences under s.563 was rarely used or prosecuted. I question whether the offence provisions were strictly necessary. Statistics from the Judicial Commission reveal less than 10 prosecutions between 1996 and 2000. However there was a slight increase in 2001-2004 with 24 convictions.

Sections 14 to 18 reproduce similar provisions from the now repealed Police Powers (Vehicles) Act 1998 requiring disclosure of identity in driving matters where a vehicle is being, or was, or may have been used in or in connection with an indictable offence. They were recently amended following the “Cronulla riot” to allow police to ask the names of any passenger in the vehicle. The maximum penalty provisions were, and remain, excessive. Statistics from the Judicial Commission reveal that only 10 convictions were recorded in 1999 and 2000 however there were a significant number of prosecutions in the years 2001 to 2004 (80 plus convictions including one 6 month gaol term and on $2,000 fine!).

Police have no general power to ask anyone to give their name and address except in these circumstances or during an authorised response to a “public disorder” (see s. 87L -discussed below). On arrest a failure to provide particulars may lead to refusal of bail or give police an legitimate excuse not to issue a court attendance notice but the general rule remains, police cannot arbitrarily infringe your right to privacy by demanding you identify yourself.

Part 4: Search and seizure powers

Before the new Act police used a number of different legislative provisions to justify searches a person, if they have a specific purpose. Provisions in the Crimes Act 1900, the Summary Offences Act 1988, and the Police Powers (Vehicles) Act 1998 are now in Part 4. Those in the Drug Misuse and Trafficking Act 1985 and the Terrorism (Police Powers) Act 2002 were not transferred.

All the transferred provisions were in need of urgent review as to their effectiveness. In particular, ss.28A and 28B Summary Offences Act 1988 (now sections 26 to 28 LE (PR) Act) allow for police to search for and seize knives. Statistics from the Judicial Commission reveal that from 1996 to 2000 only 4 cases were prosecuted for failure to allow such a search. A review by NSW Ombudsman indicated that a considerable number of individuals suffered the indignity of a search for very little reward in terms of items seized (Police and Public Safety, NSW Ombudsman 1999). There were numerous reports of inappropriate and arbitrary searches. The sections operate primarily as a social control mechanism. Given the criticism of these provisions they needed reconsideration before they were simply reproduced.

Personal Searches: At common law powers to search the body, clothing and property of an arrested person (Clarke v Bailey (1933) 33 SR (NSW) 303). The power to search a person after arrest was implied from the power to arrest in the old 352(1) of the Crimes Act 1900.

The LE (PR) Act adopts a three-tiered scheme for personal searches based on the Crimes Act 1914 (Comm.) - frisk, ordinary, and strip searches. The meanings of frisk, ordinary and strip search are set out in sections 30 and 31. Rules and specific safeguards for their conduct, designed to preserve privacy and dignity can be found in sections 32 & 33. As the Attorney noted in the Second Reading Speech: “Section32 incorporates a number of safeguards intended to ensure that a police officer conducting any search has regard to the searched person’s right to privacy and maintenance of dignity throughout a search.

The police officer must comply with the safeguards set out in section 32, unless it is not reasonably practicable in the circumstances to do so. What is reasonably practicable in the circumstances will of course be dependant on the individual circumstances.
These safeguards require the officer
· To inform the person of the nature of the search,
· Request their cooperation,
· Conduct the search out of public view and as quickly as possible,
· not to question the person searched at that time in relation to a suspected offence.
Section 33 provides specific safeguards for a person subjected to a strip search. The safeguards in subclauses 33(1)-(3), which relate to privacy, the absence of people not necessary for the purpose of the search and the presence of support persons, must be complied with unless it is not reasonably practicable in the circumstances.
Section 33(3) provides for the presence of a support person for children aged between 10 and 18, and persons who have impaired intellectual functioning who are subject to strip searches. This provision has been included to protect the interests of those people who may not be able to protect their own interests, and may also assist police in the conduct of the strip search.
The safeguards in sub clauses 33(4) to (6) are, without exception, mandatory and clarify that a strip search is, in fact, a visual search and not an examination of the body by touch. Section 34 provides that a child under 10 may not be strip-searched. The safeguards in Division 4 are in addition to safeguards in Part 15 that apply generally across the Act. The safeguards better define what a police officer can do when conducting a search, and ensure the integrity of the criminal justice processes.”
There is a new power to search any person who is to be taken into custody, on arrest (s. 23). Previously there was a view that they could only be searched at the station after a formal charge had been laid: a power that remains (s.24). Searches must only take place if a police officer suspects on “reasonable grounds” it is prudent to do so. “Reasonable grounds” require some factual basis. See R v Rondo (2001) 126 A Crim R 562 and R v Le (2005) 151 A Crim R 564.

Safeguards are set out in Part 4 and Part 15.

Section 33(3) allows for the strip search of a child over the age of 10 years who has been arrested and charged. This power should not be there. Children under the age of 14 carry no presumption of criminal responsibility nor are they, properly, subject to other provisions of the Act such as taking of identification particulars. Children under the age of 14 are simply too young to be subject to the trauma of a strip search unless such a measure can first be justified to a Magistrate.

The old powers relating to searches of vehicles and to set up roadblocks are reproduced in Division 5 of Part 4 LE (PR) Act. Section 37(3) goes further. It allows for an officer to establish a roadblock without authorisation if the need to do so is serious or urgent.

Division 6 of Part 4 reproduces the powers to search vessels and aircraft previously found in the Crimes Act 1900 and the Drug Misuse and Trafficking Act 1985.

Part 5: Search and Seizure with a Warrant

These provisions re-enact in a reorganised format the Search Warrants Act 1985 and s.357EA and s.578 Crimes Act 1900. This may result in ambiguity because many other officials (authorised by over 80 Acts), not just police, can request search warrants. (These officials were listed in s.10 Search Warrants Act 1985, which does not appear to have been reproduced in the LE (PR) Act.) Warrants and telephone warrants can be extended for up to 6 days before being executed (s.73). Crimes Legislation Further Amendment Act 2003

The Search Warrants Act itself has been under review for years. The LE (PR) Act provisions may change when and if that review is completed. For example, part 3A of the Search Warrants Act, although passed, has not commenced nor been incorporated into the LE (PR). These provisions relate to the detention of persons at the scene while a warrant is being executed, videoing of searches, the Application of Part 10A Crimes Act and safeguards to be afforded to those under restraint. See Schedule 10 Crimes Legislation Amendment Act 2002.

Notice to Produce: Part 5 contains a new provision allowing for the issuing of a Notice to Produce instead of a search warrant. Where there are reasonable grounds to believe that an authorised deposit-taking institution holds documents that may be connected with an offence, such as fraud or money laundering, committed by someone else, an authorised officer may issue a notice to produce. They must be satisfied that there are reasonable grounds for suspecting that the institution holds the documents and the institution is not a party to the offence.

This practical measure will obviate the need for the police seeking information from large organisations, such as Banks, to specify the material they wish to “search” and demand its production rather than trawl through a mass of material in order to find what they are after.

The Notice to Produce provisions in the LE (PR) Act do not replace search warrants. Police may apply for either a Notice to Produce or a search warrant, depending on the circumstances. The scheme also addresses the issue of privilege. See Spiers at para. 18. Section 56 (2) provides that if police wish to proceed with enforcing a notice to produce where an issue of privilege has been raised, the officer must, as soon as reasonably practicable, apply to a Magistrate for an order to access the document. The Magistrate is provided with discretion to make a number of orders in respect of access to the documents.

Part 6: Search and Entry Powers relating to Domestic Violence

Sections 81 to 87 LE (PR) Act reproduce the old Part 10B Crimes Act provisions (ss. 357F- 357I). Part 15A Crimes Act, which deals with other Domestic Violence issue, remains in the Crimes Act following the recommendations of the NSW Law Reform Commission. NSW Law Reform Commission, Report 103 “Apprehended Violence Orders” (2003).

Part 6A

The Cronulla Amendments: Within days of the L E (PR) Act 2002 commencing it was changed in response to the “race riots” at Cronulla. The Law Enforcement Legislation Amendment (Public Safety) Act 2005 commenced 15 December 2005. It added Part 6A to the Act. The amendments were designed to "prevent and diffuse large scale public disorder". They allow for cordons and roadblocks to be set up, for the closure of licensed premises for emergency alcohol free zones. They bring in new offences and higher penalties.

The Commissioner of Police or Assistant Commissioner can make public disorder orders closing off or cordoning off an area or areas and authorising roadblocks for up to 48 hours. The period can be extended by order of a Supreme Court Judge. In “target areas” or where road blocks are set up to prevent people entering or leaving a target area, police can stop and search vehicles and people (including their mobile phones) and ask them to disclose their identity on pain of criminal conviction.

The rationale for the legislation was the serious risk to public safety said to have been posed by a group of racist yobs behaving as if they were at the cricket.

Section 87I provides power to prevent entry or leaving an area. Leaving can only be prevented to avoid risk. Of particular importance to s.87N which allows any police officer to stop vehicles on reasonable grounds that there is a threat of large scale public disorder happening.

Police now have the power seize mobile phones and vehicles for up to seven days. The Local Court can extend the 7-day period but not shorten it (s.87M).

A new offence has been added to the Crimes Act -assault during a public disorder” (s.59A - maximum penalty 5 years or 7 years if actual bodily harm is occasioned).

The penalties for riot and affray were also increased: s. 93B(1) Crimes Act - riot, from 10 to 15 years and s.93C (1) Crimes Act – affray” from five to 10 years

Section 8D of the Bail Act 1978 was amended to provide for a presumption against bail for any riot or affray offence or for any offence, carrying a maximum of more than two years imprisonment, committed in the course of participating in a large scale public disorder. Despite this presumption the judicial discretion to grant bail still remains if the person satisfies the court that bail should not be refused. A heavy onus but one that with appropriate evidence can be met. See the judgment of Sully J in R v Newby, unreported SC NSW 27/1/2005.

The Ombudsman is to monitor the legislation, which has a sunset clause of 2 years.

As usual with emergency police “reforms” a few extras were snuck in - to correct anomalies. Extra search powers were included in sections 14, 15 and 36A LE (PR) Act 2001. Police may now search, "all occupants in a vehicle” if it is stopped in connection with an indictable offence. The occupants must identify themselves to police or be identified by the driver. Failure to comply with a direction is regarded as serious offence.

To introduce the legislation the Premier, Mr Iemma, called an extraordinary session of Parliament. He spoke of the need to protect public safety (just as Premier Bjelke-Peterson did in Queensland when the Springboks tour and attracted public attention). The Premier made the bold claim that; "louts and criminals have declared war on our society and are attempting to undermine our way of life.” He described the new laws as "prudent". He went on to note, "if you tear up the fabric of society you will pay the price".

To the Premier and the overwhelming majority of parliamentarians who passed the new laws, bail, was "unacceptable for thugs and morons". The legislation was designed to "shut the revolving door". The Premier assured police that they can do their job knowing they will be “backed up”. Sound policing will not be second guessed, police should be free to use these powers, and order will be upheld. Our police will be backed to the hilt … in the name of the law abiding majority."

Implicit in what the Premier said was that Magistrates and Judges were not doing their job. That job, it appears, is not to administer the law firmly and justly, but to back up the police.

Part 7: Crime Scenes

These provisions are new and have the potential to radically expand police powers. They allow a police officer to establish a crime scene if police suspect a serious indictable offence (a crime where the maximum penalty is 5 years or more) or a traffic accident has occurred. They give police extensive powers over the scene. The “safeguards” in Part 15 offer little protection from arbitrary interference with people and their property.

Crime scenes can be established and crime scene powers exercised over public places without the need for a warrant (s.89 (2)).

The new provisions allow for two types of crime scene over non- public places “of any kindS.89 (1) (s.89 (1)). An officer at the scene can declare the first. It lasts for up to three hours. The second, which can be an extension of the first, can only be established after a crime scene warrant is issued by a Magistrate. A warrant can be extended for up to 6 days (s. 73). However, once executed it can in theory, last indefinitely. The time limit restriction on warrants in s. 73 appears to relate only to how long the warrant can be extant until execution. There is no limit on how long the powers can be exercised after execution. The police can take all the time necessary to do what they need to do, no matter how long it takes.

If a crime scene is established without warrant, police can exercise any of the powers set out in section 95(a) to 95(f): These include the power to:

· Direct a person not to enter and prevent a person from entering;
· Direct a person to leave or remove a person who fails to comply with such a direction;
· Prevent a person from removing evidence or interfering with the crime scene, and for that purpose detain and search the person;
· Prevent a person from removing evidence or interfering with the crime scene;
· Remove obstructions from the scene.

Once a Crime Scene Warrant is issued and executed the police may exercise all the above powers and:

· Perform any necessary investigation, including searches and inspections;
· Conduct examinations or processes;
· Open any thing that is locked;
· Take electricity gas or other utilities;
· Take photographs and conduct searches;
· Seize things that may be evidence of the commission of an offence;
· Dig up anything;
· Remove walls, ceilings, floors or panels of vehicles; and
· Perform any other function reasonably necessary.
A declaration of a crime scene could result in the complete abrogation of all the personal and property rights of anyone connected with a property declared by any police officer to be a crime scene. On suspicion, a police officer could, and inevitably will, use the section to create a crime scene rather than apply for a search warrant.

If an officer is lawfully on premise pursuant to the broad powers given them under s.9 they can declare a crime scene. The declaration then gives them almost unlimited powers over the scene until either the three hours have elapsed or a warrant is issued.

Once a warrant is issued it could last for an unlimited period. Interestingly s.204 notes that police searching a vehicle vessel or aircraft can only detain the thing being searched for as long as is reasonably necessary for that purpose see also s.356FA Crimes Act 1900. There is no provision for appeal or review. To take an admittedly extreme example; a burglary or even a car park traffic accident in the basement, at Parliament House would enable police on the scene to close the Parliament, direct all persons be removed, prevent entry of persons and detain and search anyone who sought to leave. After three hours, if a warrant was issued, the crime scene could be continued for as long as is required to “exercise all reasonably necessary crime scene powers” (s.94 (3)).

Only common law rights such as habeas corpus, detinue and perhaps mandamus, would appear to be available to stop the exercise of powers if they unduly interfere with a person or their property or continue for an unreasonable time.

It is said that the provisions are not intended to make search warrants redundant The Second Reading Speech noted only that “As with notices to produce, these powers are not intended to detract from the search warrants powers. Consistent with the existing Search Warrants Act 1985, the Act provides the penalty for obstructing or hindering a police officer exercising crime scene powers, without reasonable excuse.”, however as drafted, that is exactly what will occur. Crime scenes are easier to establish. Crime Scene Warrants would appear to be easier to obtain and give far more extensive powers to police. Why use a Search Warrant?

Crime scene powers in relation to public places are not distinguished from those over private property. Where private property is to be constrained, crime scene powers should only be exercised after obtaining a warrant. Time limits on how long police can maintain the crime scene after execution of the warrant, must be placed on such declarations in any such warrant.

The powers in s.95 (g) to (n), despite the requirement for a crime scene warrant to be issued before they are exercised, are far too broad. They should not include the powers to open locked areas, to demolish or destroy property or the use property such as electricity. If such powers are thought necessary then compensation provisions must be included.

Part 8: Powers relating to arrest

Part 8 re-enacts the arrest provisions found in the Crimes Act 1900. The Attorney’s Second Reading Speech is quite blunt “Arrest should be a matter of last resort”. “The provisions of Part 8 reflect that arrest is an extreme measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the most invasive way of securing the accused person’s attendance at Court. Section 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this section would not, of itself, invalidate the charge. Sections 107 and 108 make it clear that nothing in the Part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution, or summons, or another alternative to arrest. Arrest is a measure of last resort.” Arrest should continue only as long as absolutely necessary.

Section 99(3) mandates that arrest powers are not to be exercised except in certain circumstances. In addition Part 15 applies.

Arrest by police is distinguished from citizens’ arrest. The citizens arrest powers are found in s.100.

Section 104 allows, as did s 352A Crimes Act, for the arrest of those who have committed offences interstate. Care must be taken however. If a person is arrested pursuant to an interstate warrant the Service and Execution of Process Act 1992 (Comm.) applies. Section 83(1) of that Act mandates that a person be taken before a Magistrate as soon as practicable. It is a code and other arrest provisions cannot override it. Civitko (2001) 119 A Crim R 344

A new provision, s.106, provides that those voluntarily cooperating with police as part of a covert operation are not under arrest. This means time limits in Part 9 do not apply.

Part 8A

The Law Enforcement (Powers and Responsibilities) Amendment (In Car Video Systems) Act 2004 commenced on the 23 December 2004 before the new Act. The amendment added Part 8A to the Act. It allows police to use in-car videos to record them stopping and detaining motorists. The tape is to be turned off and not used after arrest.


Part 9: Investigation and questioning

Part 9 re-enacts the provisions of Part 10A of the Crimes Act 1900. This whole scheme is presently under review. Section 356FA Crimes Act 1900 commenced in March 2003. It says that a person cannot be held for a continuous period of time that is unreasonable. It has not yet been incorporated into the LE (PR) Act. I am told this will be done before commencement.

Part 10: Other powers relating to persons in custody

Part 10 re-enacts the law in relation to taking identification particulars in the now repealed 353, 353A, 353AA and 353AB Crimes Act 1900. There are some differences. The officer in charge of the station is no longer required to take the particulars. A person whom the police “intend” to charge can be processed. Section 136 (5) sets out the new matters that a Magistrate must take into account before making orders that particulars be taken from children under 14.

Sections 353A-353AB of the Crimes Act 1900 allowed the police to take fingerprints, and search and conduct medical examinations of persons in custody. These provisions are re-enacted in the Act as ss.134 to 138. I am not sure why the sections were not just repealed they have already been effectively superseded by the Crimes (Forensic Procedures) Act 1999. That Act contains protections and safeguards not included in the LE (PR) Act.

A common problem arises when a person from whom identification particulars are taken on arrest is subsequently acquitted of any wrongdoing. Children’s particulars can be destroyed (s137) however no provision exists for a request to be made by adults for the destruction of those records or for order for such destruction. Such a provision should have been included in the LE (PR) Act. Even the children’s provisions allow for some records to be retained.

Part 11: Drug Detection powers

Part 11 re-enacts, without amendment, powers to search drug premises, to use drug detection dogs, and concerning internally concealed drugs.

Part 12: Powers relating to vehicles and traffic

Part 12 re-enacts a number of police powers now found in the Road Transport (General) Act 1999 and the Road Transport (Safety and Traffic Management) Act 1999. There is an extension of police powers in section 189 - power to prevent driving by persons who are under the influence of alcohol or other drugs. Using the LE (PR) Act police may take action to disable a vehicle if the officer reasonably suspects that the person is likely to abscond before undergoing a breath test.

Part 13: Use of Dogs to detect firearms and explosives

Part 13 re-enacts sections 72A, 72B and 72C of the Firearms Act 1972 relating to the use of sniffer dogs to detect firearms and explosives.

Part 14: Power to give directions

The “move on” powers previously found in sections 25F and 25G Summary Offences Act are transferred to the new Act. The Second Reading Speech notes that “It is intended that under section 197, which sets out the powers of police officers to give directions in public places, that a police officer may be “a person affected by the relevant conduct” for the purposes of issuing a direction.” As with a number of other new powers recently given to police these provisions are in need of urgent review as to their effectiveness. Safeguards are set out in Part 15.

Part 15: Safeguards

Safeguard provisions previously found in the Crimes Act 1900, the Search Warrants Act 1985, the Summary Offences Act 1988 and the Police Powers (Vehicles) Act 1998 are consolidated in Part 15 of the Act.

Section 201 requires police to give certain warnings and information before exercising their powers. This was made clear by a recent amendment to s. 201 by the Crimes Legislation Further Amendment Act 2003. It also sets out when those requirements must be complied with.

Part 16: Powers relating to Intoxicated Persons

The Intoxicated Persons Act 1976 is re-enacted. This Act was substantially rewritten in 2002. While intoxicated persons can be detained they are no under arrest. They are to be detained where possible away from arrested persons.

Part 17: Property in Police Custody

Part 17 re-enacts provisions from the Summary Offences 1988 relating to the powers to confiscate and return knives and the like. Other provisions re-enact the Criminal Procedure Act 1986 and Police Service Regulation 1990 in regard to holding and return of property in police custody.

Part 18: Use of force

Sections 230 and 231 authorise the use of force to in the exercise by police in their functions under the act and when making an arrest.

Part 19: Miscellaneous

This Part contains all those necessary extras such as savings, review and monitoring provisions.

Terrorism

A significant area of police powers legislation has not been consolidated in the LE (PR) Act - the response to the threat of terrorism.

The Terrorism (Police Powers) Act 2002 defines “terrorist act” and “terrorist action” in the same terms as the Commonwealth’s The Security Legislation Amendment (Terrorism) Act 2002. They are extremely broad. The Act gives senior police the power to act without warrant against unspecified “targets”. Although terms such as “reasonable cause” are used, in most cases only the concurrence of the Police Minister is required. The Act allows for the unprecedented and potentially dangerous intervention of a politician into operational policing. The powers police can exercise under on the authority of the Minister are almost unlimited and unreviewable.

The Terrorism (Police Powers) Act 2002 was amended in 2003 to add a new Part 3 relating to Covert Search Warrants. “Eligible” police can now apply to an “eligible judge” for a warrant to do any or all of the following:

(a) To enter premises, without any occupier’s knowledge.
(b) To impersonate another person for the purposes of executing the warrant.
(c) To use such force as is reasonably necessary for the purposes of entering the subject premises
(d) If the warrant authorises entry to premises adjoining or providing access to the subject premises—to enter premises adjoining or providing access to the subject premises, using such force as is reasonably necessary, for the purposes of entering the subject premises, and
(e) To search the subject premises for any kind of thing described in the warrant
(f) To break open any receptacle in or on the subject premises for the purposes of that search if it is reasonably necessary to do so.
(g) If the warrant authorises the seizure of a kind of thing—to seize and detain a thing of that kind and any relevant thing that the person finds in the course of executing the warrant, and
(h) To seize and detain any other thing that the person finds in the course of executing the warrant and that is connected with a serious indictable offence,
(i) If the warrant authorises the placing of a kind of thing in substitution for a seized thing—to place a thing of that kind on the subject premises in substitution for a thing seized under paragraph (g).
(j) If the warrant authorises the copying, photographing or recording of a kind of thing—to copy, photograph or otherwise record a thing of that kind and any relevant thing that the person finds in the course of executing the warrant.
(k) If the warrant authorises the operation of a kind of electronic equipment:
(l) To operate any electronic equipment of that kind and any relevant electronic equipment that the person finds in the course of executing the warrant.
(m) To print, copy or otherwise record from that equipment information that is of a kind that the warrant authorises to be printed, copied or recorded and any relevant information that the person finds in the course of executing the warrant.
(n) If the warrant authorises the testing of a kind of thing—to test a thing of that kind and any relevant thing that the person finds in the course of executing the warrant.

Despite the fact it has yet to be used the Terrorism (Police Powers) Act 2002 has been amended and “strengthened”. (So much for my broccoli principle!) The Terrorism (Police Powers) Amendment (Preventative Detention) Act 2005 commenced on the 16 December 2005. The amendment Act makes some big claims. It is designed to:

(1) Prevent terrorist activity occurring and

(2) Preserve evidence.

An application can now be made to a Justice of the Supreme Court for suspects to be detained for up to 14 days. The application can be made without the suspect’s notice. The amendments complement the equivalent provisions in the Commonwealth Criminal Code Act 1995. Hearings are before a closed court and information may be withheld from the suspect on national security grounds or because of public interest immunity. Unlike the Commonwealth Code it is not an offence to disclose that the person you are being held under a preventative detention order. Provision is made for applications for revocation of any order made.

Although contact is allowable with lawyers, any contact may be monitored. It is possible that the Supreme Court can make a non-contact order.

The Terrorism Legislation Amendment (Warrants) Act 2005 commenced 13 September 2005. The New South Wales police and Crime Commission now have the capacity to covertly investigate terrorist activity which believed to be is in a preparatory stage.

The new sections 27A to 27ZC of the Terrorism (Police Powers) Act 2002 allow for covert searches if a “nominated” Supreme Court Judge is convinced that there are reasonable grounds for such a search. Section 3 extends the meaning of terrorist act to anything involving an act of force or threat of force or membership of a terrorist organisation. It includes preparatory acts in support of terrorism that is by financial such as financial support.

Amendments to the Listening Devices Act now allow for long duration warrants (up to 90 days) for both Commonwealth and state defences. A new section 310J Crimes Act makes it an offence to be a member of a terrorist organisation. It mimics s.102.3 Criminal 1995 (Commonwealth).

Tim Anderson has pointed out in a Criminal Justice Vol. 14 No 3 March 2003 that the new terrorism laws appear to violate both the International Covenant on Civil and Political Rights (Articles 9(1) and 17 and the UN Convention on the Rights of the Child (Articles 16 and 37(b)) dealing with arbitrary detention and interferences with privacy. In addition, they appear to contravene Article 3 of the International Covenant on Civil and Political Rights which guarantees that those whose rights or freedoms are violated must have an effective remedy in the courts.

Conclusion

There is no reason not to applaud the consolidation of law enforcement powers in a single piece of legislation. However, the Law Enforcement (Police and Responsibilities) Act does more than consolidate. New laws are introduced. New police powers are introduced. Some penalties are increased.

Not all of the new proposals are balanced. They reflect the views of those who believe “effective law enforcement” is of greater importance than the preservation and protection of individual rights. The new LE (PR) Act is but another example of how constitutional notions of limited government are sacrificed in order to ensure “order”. There is simply no point in giving police more powers and allowing more interference with individual liberty if the new laws cannot be shown to be effective.

A principle rationale for having a police force is to ensure that citizens can go about their lives in relative freedom. A law, which interferes with basic freedoms on the grounds that the law is necessary to safeguards those very freedoms, is anomalous.

I am particularly concerned by the apparently limitlessness of the crime scene powers included in the Part 7. They are both unclear and far too broad. Soon, to borrow a phrase, the only freedom we may have left - is the freedom to obey police directions.

The Cronulla amendments are particularly iniquitous. When the amendments first came in I predicted they would first be used at somewhere like Walgett. I was wrong; the new laws were first used in West Dubbo!

While I recognise the utility in transferring provisions such as search powers, the power to give directions and detention after arrest from the Crimes Act and Summary Offences Act, these provisions should first have been reviewed to assess their utility Do they operate effectively to prevent crime? If they do not, if they are not working to protect our community, then they should be repealed or revised, not simply reproduced in a new Act.

 

OVERVIEW OF THE LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002

Power Current source Location in LEPAR Act
Preliminary general provisions Part 1
Entry to premises Common law Part 2
Requiring identity to be disclosed—non-traffic matters Crimes Act 1900 Part 3 Divisions 1 and 3
Requiring identity to be disclosed—traffic matters Police Powers (Vehicles) Act 1998 Part 3 Divisions 2 and 3
Stop, search and detain—non-drug matters Crimes Act 1900 (and common law) Part 4 Division 1
Stop, search and detain—drug matters Drug Misuse and Trafficking Act 1985 Part 4 Division 1
Search following arrest Common law (and Crimes Act 1900) Part 4 Division 2
Search and seizure of knives and dangerous articles (in public places and schools) Summary Offences Act 1988 Part 4 Division 3
Frisk searches and strip searches Common law Part 4 Division 4
Stopping and search vehicles, and establishing roadblocks Police Powers (Vehicles) Act 1998, Crimes Act 1900 and Drug Misuse and Trafficking Act 1985 Part 4 Division 5
Searching vessels and aircraft Crimes Act 1900 Part 4 Division 6
Search warrants—in traditional Police matters Search Warrants Act 1985 and Crimes Act 1900 Part 5 Divisions 2 and 4
Notices to produce New Part 5 Division 3
Search warrants—where created by statute Search Warrants Act 1985 and large number of Acts listed in Schedule 2 to the LEPAR Act Part 5 Division 4
Entry of premises, search and seizure in domestic violence matters Crimes Act 1900 Part 6
Emergency powers-Public disorder New Part 6A
Crime Scene powers New Part 7
Use of Police in car video systems New Part 8A
Arrest Crimes Act 1900 and common law Parts 8 and 18
Detention after arrest for the purpose of investigation Crimes Act 1900 Part 9
Taking identification details (such as fingerprints) of persons in custody Crimes Act 1900 Part 10 Division 1
Examination of persons in custody Crimes Act 1900 Part 10 Division 2
Search of suspected drug premises Police Powers (Drug Premises) Act 2001 Part 11 Division 1
Use of drug detection dogs Police Powers (Drug Detection Dogs) Act 2001 Part 11 Division 2
Searching for internally concealed drugs by medical imaging Police Powers (Internally Concealed Drugs) Act 2001 Part 11 Division 3
Regulation of traffic (giving directions and closing roads to traffic) Road Transport (Safety and Traffic Management) Act 1999 and common law Part 12 Division 1
Miscellaneous vehicle powers (using tyre deflation devices in pursuits, and entering vehicle repair shops) Road Transport (General) Act 1999 Part 12 Division 2
Preventing intoxicated persons from driving Road Transport (Safety and Traffic Management) Act 1999 Part 12 Division 3
Using dogs to detect firearms and explosives Firearms Act 1996 Part 13
Giving directions in public places Summary Offences Act 1988 Part 14
Safeguards New Part 15
Detention of, and subsequent dealing with, intoxicated persons Intoxicated Persons Act 1979 Part 16
Property in police custody—confiscated knives and other dangerous articles Summary Offences Act 1988 Part 17 Division 1
Property in police custody—other Criminal Procedure Act 1986 and Police Regulation 2000 Part 17 Division 2
Use of Force New Part 18
Miscellaneous provisions Various sources

Part 19



 

1. The principal purpose of the LEPAR Act is to consolidate police powers, which were (until 1 December 2005 when the Act commenced) located in a range of disparate Acts. Some of those powers also derive from the common law; the LEPAR Act does not displace the common law unless expressly stated. Those powers, their current source, and their location in the LEPAR Act, are summarised in the table.
2. Part 15 provides generic safeguards in relation to most powers that Police may exercise under the Act.
3. Some provisions are new.
(a) Notices to produce documents (Part 5 Division 3 of the LEPAR Act). This new power—which can only be exercised in relation to financial institutions—represents a more streamlined and realistic way of Police compelling the production of documents by banks and financial institutions, than the previous practice of the bank being served with a search warrant. In the ordinary case, the ‘search warrant’ involved no searching, as the bank simply produced the documents that it was compelled to produce, without any Police officer having to enter the bank’s premises and manually search through its files.
(b) Crime scene warrants (Part 7 of the LEPAR Act). A new legislative framework based on existing practice has been created regarding powers that police may exercise to preserve the integrity of crime scenes. These include guarding the scene and preventing entry, removal of persons and the protection of endangered physical evidence. The crime scene warrant powers are predicated on Police being on the premises lawfully in the first place—they do not create additional powers of entry.
(c) Use of Police in-car video equipment (Part 8A of the LEPAR Act). Unlike the remainder of the Act (which commenced on 1 December 2005), this Part of the Act (which was added by amendment in 2004), commenced on 23 December 2004. This Part enables and requires the use of in-car video equipment, where it has been fitted to a Police vehicle, in certain circumstances.
(The Criminal Law Review Division NSW Attorney General’s Department prepared the original Table on which this was based.)

Andrew Haesler SC
Deputy Senior Public Defender
2 March 2006