<< back to archive index Speech Regarding a Bill Date: November 21 2002 Subject: Law Enforcement (Powers & Responsibilities) 2002 From Hansard The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Not working in the legal profession, it is difficult for me to get an overall view of police culture. When we legislate on a very big picture it would be useful to have some idea of day-to-day concepts. Apart from the odd parking fine or speed camera infringement, one has very little to do with the police if one is not in legal practice. A huge part of police work is a result of the criminalisation of drugs, with ever-increasing powers being introduced towards that end. I believe that strategy is fundamentally wrong. The criminalisation of drug use and the obsession of the Government with a policing approach to drugs affects the conduct of policing, the priorities of policing and the norms of policing in a destructive way. As a result of this cultural difference, the police function becomes increasingly adversarial and less reflective of community attitudes. Now that we have this foolish and belligerent foreign policy that is leading to fears of terrorism, civil liberties are being threatened. People are so scared of terrorism they give up civil liberties. Consequently, one asks the practitioners in this area-the Law Society and others-for advice. The Government, ever-optimistic, in its briefing notes on the bill stated: Main purpose of the proposal: -To consolidate, restate and clarify the law (statutory and common law) relating to police and other law enforcement officers' powers and responsibilities; and -To set out the safeguards applicable in respect of persons being investigated for offences. In its Final Report, the Royal Commission into the NSW Police Service recommended the legislative consolidation of police powers. The Law Enforcement (Powers and Responsibilities) Bill 2002 reflects the consolidation process envisaged by the Royal Commission. The draft Bill was released for public consultation in mid-2001. I expressed concern about defining the powers of search. I note the establishment of a new regime of three-tier searches: frisk search, ordinary search and strip search. Apparently safeguards have been established to apply to all personal searches and the regime has been introduced without reducing or increasing police powers. In speaking to the crossbench, the Government said that the bill provides clarification and routine and that if honourable members support the legislation everything will be fine. However, it bothers me that we have spent an extraordinary amount of time clarifying and generally increasing police powers in response to accused persons getting off lightly because of precedent. I do not know whether Parliament has historically spent its life obsessed with tightening up police powers. My instinct is that that is not the case and that this obsession with drugs and now terror is leading to a distortion of the way police are used in society and the relationship between police and society. Reverend the Hon. Fred Nile's benign view of the police trying to be good but being tied down by red tape is one interpretation, but the civil libertarians would say that if police do not need to interfere they should not do so. It is a question of exercising goodwill in their operations. Terry Connolly did a great deal of work on restorative justice and had an impact on the operations of police officers. However, he did not get much real support in New South Wales compared to that afforded him in Britain, and that is cause for concern. I consulted the Law Society of New South Wales on this legislation and I received a detailed response, which has had a significant impact on my thinking. I thank Sherida Currie for her work in this regard. The Law Society states: The exposure draft Law Enforcement (Powers and Responsibilities) Bill 2001 was released for consultation on 6 June 2001. The draft bill was presented as a consolidation and codification of "the majority of widely used law enforcement powers and their accompanying safeguards." A thorough analysis of the draft by the Law Society's Criminal Law committee and experienced practitioners representing a number of agencies and stakeholders in the criminal justice system revealed that the draft bill was neither simple, clear nor consistent: - Several current statutes conferring police powers had not been incorporated into the draft bill and, notwithstanding the aim to codify the law, the common law was specifically retained in a number of instances. There were many instances where the draft bill: • expanded existing powers; • changes the existing law; • created new powers; and. • created new offences. The draft bill also drew on legislation from other jurisdictions as a model but the supporting safeguards deemed necessary by those other jurisdictions had not always been incorporated. Law Enforcement (Powers and Responsibilities) Bill 2002 The Law Enforcement (Powers and Responsibilities) Bill 2002 was introduced into the Legislative Assembly and had its Second Reading on Tuesday, 17 September 2002. The Bill is much improved from the draft bill in that: •Provisions relating to personal searches and safeguards relating to police powers will apply in relation to all searches and situations authorised by the legislation. •Concerns about extensions of certain powers have been addressed. •Various other powers have been incorporated, principally powers under the Drug Misuse and Trafficking Act, Police Powers (Drug Premises) Act, Police Powers (Drug Detection Dogs) Act, Police Powers (Internally Concealed Drugs) Act, Intoxicated Persons Act. OUTSTANDING MATTERS NOT ADDRESSED and SUGGESTIONS FOR FURTHER AMENDMENT The Law Society recommends the following further amendments and corrections to the Bill: Omissions: • The Bill should be amended to include: police powers to grant bail, requirement to caution in the broad range of circumstances under common law and New South Wales Police Service CRIME code of conduct, police powers regarding the conduct of identification parades, powers under the Crimes (Forensic Procedures) Act. The Law Society goes on to refer to: • Previous clause 149 Right to remain silent … people have the right to defer answering questions pending the obtaining of legal advice. The Law Society also suggests amendments to part 4, division 4 and the provisions relating generally to personal searches. It is concerned that part 7 creates significant new law. It is modelled on the Queensland Police Powers and Responsibilities Act 2000, but the various safeguards that are provided in the Queensland legislation have not been reproduced in this bill. The Law Society also refers to regulation-making powers with regard to record keeping that should be preserved. It goes on to state that the powers under proposed section 242 relating to the monitoring of operation of certain provisions of the Act by the Ombudsman should be extended. The Law Society believes that part 4, division 3, which relates to additional search and seizure powers in public places and schools, should be deleted. It goes on to express concern about parts 5, 8, 10, 14, 15, 17 and 19. Many of the Law Society's proposed amendments have been taken up by the Hon. Richard Jones and the Greens. They constitute a detailed raft of amendments. Given that they came from the Law Society, my inclination is to support them. We must have balance with civil liberties. If Parliament does not support these amendments, we will suffer. The Australian Security Intelligence Organisation raids on people in the Dee Why area who offered to co-operate with authorities making inquiries about their discussions at a mosque with an Indonesia Muslim cleric were very worrying. If such action was possible under existing police powers, I wonder whether we should increase them. I am inclined to support the amendments and will examine the bill when that process is concluded.

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