On 6 June 2001 the Minister for Police foreshadowed the release of an exposure
draft of a Bill to consolidation police powers in NSW - the Law Enforcement
(Police Powers and Responsibilities) Bill 2001. It was also said that the new
drug laws - the
Police Powers (Internally Concealed Drugs) Act 2001 and
the
Police Powers (Drug Premises) Act 2001 - would be incorporated into
the consolidation Bill in the future. This paper presents a background
commentary on these reforms and proposed reforms and summarises their main
provisions. Its findings are as follows:
- the new drug laws belong to a raft of legislation which has
been introduced in recent years to extend, refine and articulate police powers
(page 3) ;
- a common feature of these legal reforms is that they seek to
define the conditions upon which police powers can be exercised, thereby
providing a range of procedural safeguards for the individual. This is in
marked contrast to the situation in the not so distant past when the law
provided little, if any, guidance to the police as to how they should exercise
their common law or statutory powers. The contemporary era has seen therefore a
move towards 'policing by law' (page 3);
- in NSW an important non-legislative reference point for police
powers is the 1998 Code of Practice for Custody, Rights, Investigations,
Management and Evidence (page 4);
- recent legislation in this area includes the: Crimes
Amendment (Detention After Arrest) Act 1997 (the power to detain after
arrest for purposes of investigation); Children (Protection and Parental
Responsibility) Act 1997; Crimes Legislation Amendment (Police and
Public Safety) Act 1998 (the knife laws); Police Powers (Vehicles) Act
1998 (the power to request disclosure of driver and passenger identity);
the Crimes (Forensic Procedures) Act 2000; and the Police Powers
(Drug Detection Dogs) Act 2001;
- an important change to the law under the Crimes (Forensic
Procedures) Act 2000 is that, unlike the power to conduct medical
examinations under section 353A (2) of the Crimes Act 1900 where a
person had to be in lawful custody and charged with a criminal offence, it
permits forensic samples (including for DNA testing) to be taken from
'suspects' (page 25);
- the Police Powers (Internally Concealed Drugs) Act 2001
also applies to 'suspects'. Internal searches may be carried out in certain
circumstances on suspects over 10 years of age. An internal search can only be
carried out on a child between 10 and 17 'by order of an eligible judicial
officer'. Adult suspects who are not under arrest and who consent to an
internal search can be: detained for up to 2 hours while a request for consent
is made; kept in custody for up to 24 hours while the search is conducted; if
the search reveals matter that could be drugs on their body they can be
detained for a further 48 hours; and, in exceptional circumstances this
detention period can be extended by up to 96 hours. In the worst case scenario
this regime would involve detention for up to 7 days and 2 hours (plus any
'time outs'). Various safeguards are provided under the Act which is not likely
to commence before 2002 (pages 29-37);
- the Police Powers (Drug Premises) Act 2001 was
proclaimed to commence on 1 July 2001. The Act creates three new offence
categories as follows: (a) entering or being on drug premises; (b) an owner or
occupier knowingly allowing premises to be used as drug premises; and (c)
organising, conducting or assisting in the operation of drug premises. For each
of these offences there is a penalty of 50 penalty units or 12 months
imprisonment, or both, for a first offence. On a second or subsequent
conviction there will be a penalty of 500 penalty units or five years
imprisonment, or both. Directors and/or managers of corporations may be held
liable in the event the corporation has contravened the legislation. If found
on, or entering or leaving, drug premises it is for the accused person to
satisfy the court that he or she was there 'for a lawful purpose or with a
lawful excuse' (pages 39-44);
- the Police Powers (Drug Premises) Act 2001 also amends
section 28F of the Summary Offences Act 1988 which provides police with
a power to give reasonable directions to a person in a public place. The
amendment extends the range of relevant behaviour or presence in a public place
to include the supply of, or soliciting others to supply, prohibited drugs, or
to obtain, procure or purchase prohibited drugs (pages 44-45);
- influential in the discussion concerning the consolidation of
police powers is the landmark legislation in England and Wales, the Police
and Criminal Evidence Act 1984. Pursuant to the Act, Codes of Practice are
issued by the Home Secretary and brought into force by a statutory instrument
approved by resolution in both Houses of Parliament (page 46);
- landmarks in the Australian consolidation process include the
Queensland Police Powers and Responsibilities Act 2000 (page 48);
- in NSW the consolidation process gained its main impetus from
the Wood Royal Commission into the NSW Police Service which handed down its
final report in May 1997 (page 49);
- the Minister for Police has said that the Law Enforcement
(Police Powers and Responsibilities) Bill 2001 would create 'new law' in four
significant areas: establishing crime scenes; safeguards applying to searches
of persons after arrest; police assistants; and notices to produce documents.
'Police currently exercise powers in those areas', the Minister said, 'but the
precise nature and extent of the powers is not clearly defined' (page 50);
- many of the current statutory powers, including the general
search powers under sections 357-357E of the Crimes Act 1900, as well as
the power of arrest without warrant found in section 352 of the same Act, are
not subject to any of the procedural safeguards which have characterised more
recent developments in police powers. Though not mentioned in these terms by
the Minister, the Bill would in this respect create 'new law' intended to
provide consistent procedural rules for the safeguarding of civil liberties.
Specific and additional safeguards would apply to searches conducted under the
'knife laws', but not to other searches conducted without warrant. Statutory
arrangements are also made for searching persons (a) on or after arrest, and
(b) in lawful custody. Provision is made for three kinds of searches, namely,
frisk, ordinary and strip searches (pages 52-57);
- the Bill sets out the arrangements for the review of its
operation after it is in force. Unlike other recent legislation in this area,
these arrangements do not include a role for an independent review by the NSW
Ombudsman (page 72); and
- the Police Commissioner's generic power to issue instructions
would be continued under the Bill but, unlike the PACE Codes of Practice, the
power is not made subject to either parliamentary approval or public
consultation (page 51).
