The Law Enforcement (Powers and Responsibilities) Act
by Andrew Haesler SCDeputy Senior Public
Defender2 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
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
- 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
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
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).
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
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
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 kind” S.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
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.
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
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
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
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
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
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
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.
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)
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 SCDeputy Senior Public Defender2