Recent changes to the law mean that police are getting more and more power.
But fortunately, they cannot barge down your front door and come into your home without a legitimate reason.
Police must have a legitimate reason come into your house, which means that one of the following circumstances must exist:
- You gave permission;
- Police have a search warrant for the premises;
- Police have an arrest warrant for a person who they reasonably believe is inside the premises;
- Immediate entry is necessary to prevent a breach of the peace; or
- A person has suffered, or is about to suffer, significant physical injury and immediate entry is required to prevent it.
If none of those circumstances exist and police search your house anyway, the search will be illegal and any evidence found during the search may be excluded from the courtroom.
Police may also be liable to pay damages for trespass, and for any property they destroy or
damage. If they manhandle you or your family, they may additionally be liable for assault.
And even if police are lawfully permitted on your property, they must only use reasonable force; they cannot just trash your home.
What is reasonable force?
If police have a warrant (unless it is a covert one) they are required to indicate their presence by, for example, knocking or ringing a bell.
But under section 70 of the Law Enforcement (Powers and Responsibilities) Act 2002 (The LEPRA), police may use reasonable force to enter the property if nobody answers within a reasonable time.
They can also disable any alarm, camera or surveillance device or pacify a dog, and they additionally have the power to break open any container for the purposes of the search.
If the premises have been fortified, police will not be liable for any damage incurred while they remove these protections.
Police powers under the Terrorism (Police Powers) Act:
Police have extensive powers under the Terrorism (Police Powers) Act 2002.
The Act gives police the power to enter and perform a search without a warrant if they suspect “on reasonable grounds” that a person or vehicle on the premises, or the premises themselves, are involved in or contain evidence of a terrorist act.
When police carry out a search under section 19 of this Act, they must do as little damage as possible, and only to use the amount of force that is reasonably necessary.
Unfortunately, police don’t always follow the law.
Last September’s “anti-terrorism” raids saw 800 police officers perform raids on at least a dozen homes (some reports saying dozens) in the middle of the night.
The raids led to only one person being charged with a “terrorism related” offence, and left a large number of innocent families traumatised.
Most of those families were too terrified to speak out about their experience. Many confided in their lawyers and asked their lawyers not to take action – fearing that they would be further persecuted, or even criminally prosecuted and sent to prison under new laws that make it a criminal offence to speak out about anti-terrorism raids.
But one brave family did speak out. The two teenage boys and their mother described waking to the sound of their door being smashed down. The mother was dragged from her bed as she tried to protect her modesty with a sheet. One of the boys described being manhandled and punched in the face as he tried to protect his mother.
The family home was damaged and the backyard was dug up. Nothing relating to terrorism or any other criminal activity was found, despite extensive searches of the premises and all electronic devices, and the family members were not charged with any offence.
The family described feeling extremely fearful during the raid and were left traumatised by the abrupt intrusion into their home and the conduct of police.
What can I do about it?
The damage that may result from a police search could be enormous. After taking stock of the situation, what should your next step be?
If you believe that police acted outside their powers, you are able to make a complaint to the Police Commissioner, who is meant to request an ‘internal investigation’; in other words, an investigation by police into the conduct of their own colleagues. If the complaint is serious, police are supposed to pass it on to the Ombudsman.
However, the reality is that police are loathe to find against themselves and the NSW Ombudsman lacks the resources and power to effectively deal with the thousands of complaints he receives against police officers each year. In fact, the Ombudsman has no direct power to discipline officers or to order compensation payments – he can only make recommendations.
This means that civil proceedings may be the only viable way to secure compensation from police for property damage and other infringements of your rights such as unlawful arrest, false imprisonment and assault. A successful judgment may even be used to convince police or the DPP to bring criminal proceedings in certain situations.
In some cases, a letter from a lawyer can get negotiations underway in terms of a negotiated settlement, which would normally contain a “confidentiality provision” – meaning that you would not be able to disclose or publish information about what police did to you.
If you feel that you have a claim, your best bet is to speak to a lawyer who can give you advice and guide you in the right direction.