NSW: Moving Towards a Police State

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The last few years have seen several changes to the Law Enforcement (Powers and Responsibilities) Act (LEPRA) and other legislation, designed to make it easier for police to arrest and exert control over members of the public.

These changes stem from a review into LEPRA spearheaded by Premier Barry O’Farrell, who commissioned former ALP Police Minister Paul Whelan and former Coalition Shadow Attorney-General Andrew Tink to determine whether existing police powers were sufficient, and to make recommendations for change.

Here are just a handful of the changes, with many more outlined in other publications.

Powers of arrest

Section 99 of the LEPRA contains the power of police to arrest without a warrant.

Amendments to the section significantly broaden the situations whereby police are able to arrest members of the public.

The amended section now provides that police can arrest a person without a warrant if they suspect on reasonable grounds that the person is committing or has committed an offence, and police are satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,

(viii) to protect the safety or welfare of any person (including the person arrested),

(ix) because of the nature and seriousness of the offence.

Significantly, the new section appears to have discarded the ‘objective’ test for determining ‘reasonable grounds’ in favour of a ‘subjective test’. In other words, whereas the previous test determined reasonableness through the eyes of an impartial, outside observer, the new test appears to look at it through the eyes of the particular officer – which arguably makes it harder to argue that an arrest was unlawful.

The last subheading, ‘because of the nature and seriousness of the offence’, appears to be somewhat of a ‘catch most’ phrase – after all, a ‘serous indictable offence’ in NSW is anything which attracts a maximum penalty of five years imprisonment or more, which captures a vast chunk of offences contained in the Crimes Act 1900.

The inclusion of that last subsection is perhaps consistent with parliament’s Second Reading speech in which O’Farrell stated:

“The job of front-line police is already hard enough, without being made harder by having to deal with legal complexities… “The legislation seeks to “uncuff” the police so they can handcuff the criminals.”

The telling statement is indicative of the government’s intention to put law enforcement powers well-ahead of legal safeguards and protections.

Longer detention without charge

Until recently, police could only detain a person without charge for up to 4 hours, unless they applied to a Magistrate for an extension of time.

However, the new section 115 of the LEPRA increases this period to 6 hours, with the maximum detention period after applications are made to a Magistrate remaining at 12 hours.

The detention period does not include ‘time out’ – such as the time it takes to travel to the police station, to contact or wait for the attendance of a lawyer, toilet and food breaks etc.

Less transparency and accountability

Until recently, section 201 of the LEPRA required that, when exercising certain powers, police had to provide information about the fact they are a police officer (such as producing a badge), their name and place of duty, and the reason for the exercise of their power. This ensured a certain level of transparency and accountability.

Under the amended section 201, a police officer’s failure to provide such details will no longer render the exercise of their power invalid.

Indeed, there no longer appears to be consequences for failing to carry out these responsibilities, apart from the possibility of a complaint, provided a person could establish the officer’s identity – and if he or she was in fact a genuine officer!

Detaining people for AVO purposes

The Crimes (Domestic and Personal Violence) Amendment Act 2013 expanded the power of police to issue directions and detain people in the process of making a provisional apprehended violence order.

Under section 89 of that Act, police officers can force a person to remain at the scene where the incident occurred or at any other place they are located.

Easier to strip search

Sections 31 and 33 have been amended to broaden police powers to strip search people.

Previously, section 31 required police to have a reasonable suspicion as to the necessity, seriousness and urgency of the circumstances, no matter where the search was carried out. The new section 31 says that at the police station or another place of detention, police only need to suspect on reasonable grounds that a strip search is necessary.

Section 33 has also been amended allowing a child or person with impaired intellectual functioning to be strip searched without a parent, guardian or support person if police suspect that delaying the search would result in the concealment or destruction of evidence.

A lot more than this…

A whole host of other amendments have been made to both the LEPRA and related legislation which increase the powers of police when it comes to interactions with the general population.

It is also important to note that this blog has not discussed the hundreds of new laws which target and remove the basic rights of specific groups – such as members of motorcycle clubs, asylum seekers and those who are suspected of terrorism offences.

Often for those groups, people are able to routinely get around legal safeguards and protections available to the rest of community.

But even putting those draconian changes aside, it is clear through recent changes to LEPRA and other laws that our governments are intent on turning our nation into a police state – where law enforcement agents are able to interfere with the rights of individuals with impunity.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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