Recent Changes to Police Powers in NSW

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A bill giving NSW police increased powers to arrest people without a warrant has been signed off.

The changes were introduced to NSW Parliament late last year, in a bill known as the Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 2013, which passed both houses.

Why has the law changed?

NSW Premier Barry O’Farrell first suggested the changes in late 2013 after a spate of members of the public suing for wrongful arrest under existing laws.

The NSW Government argued that the police were unable to rightfully protect the community and arrest people who were disruptive, dangerous or about to commit a crime under the existing legislation.

By increasing police powers to arrest without a warrant, it is argued that police will have less bureaucracy and red tape to contend with, and therefore will be better able to deal effectively with situations in the community and on the street.

The changes were suggested very quickly, only a few weeks after police complaints first surfaced in the media, and there has been substantial controversy surrounding the lack of normal procedure and the speed at which they were brought into effect.

The changes in the law make it easier for police to arrest suspects without a warrant and there are concerns that the amended law could be used unfairly or be misinterpreted, and result in members of the public being wrongfully detained or harassed by police officers.

What are the changes?

Under the new legislation, in order to make an arrest, a police officer has to be satisfied that ‘arrest is reasonably necessary’.

Previously, there had to be a factual basis for suspicion before an officer could make an arrest without a warrant.

Under the amendments, police are now able to arrest suspects for a number of reasons if they believe it “reasonably necessary” including:

  • To enable enquiries to be made about a person’s identity, or if they believe that the identity information given is false.
  • To prevent a person fleeing from police officers or the scene of a suspected crime.
  • To protect the safety and welfare of any person.
  • To preserve evidence of the offence or prevent evidence being fabricated.
  • For reasons of the severity or nature of the offence.
  • To prevent harassment or interference with anyone who might give evidence in the matter.
  • To obtain property in relation to an offence that is in the possession of the person being arrested.

Prior to these amendments being brought into effect, police had much more limited powers of arrest.

There had to be a factual basis for a reasonable suspicion that a person had just committed an offence, was in the act of committing an offence, or was about to commit an offence before they could be arrested.

This new definition is ambiguous, and there are concerns as to whether it could lead to police making arrests for trivial matters, to see someone’s ID or question them, for example.

What does this mean for the general community?

By increasing police powers of arrest, there is a danger that the new legislation will be exploited and lead to unnecessary or inappropriate arrests.

Arrest is a form of deprivation of liberty, and arrest laws have historically taken human rights obligations into consideration when deciding how and when people can be arrested.

As well as the physical deprivation of liberty, arrest can be emotionally traumatic and distressing, as well as humiliating, and can have a severe emotional impact on those arrested.

According to the law, arrest should always be a last resort and police should consider other less severe measures before arresting a suspect.

By making it easier for police to arrest members of the public over trivial matters it makes it more likely that people will be arrested rather than given a fine or a court attendance notice, and this could lead to infringements of human rights as well as a lot of unnecessary time and resources spent on detaining people and doing the necessary paperwork.

The ambiguous wording of the new legislation is also open to misinterpretation, and there is a danger that it could be exploited or misunderstood by less experienced or over-zealous police officers.

This could result in more legal headaches for police and serious violations of the rights of members of the public.

The provision that a police officer can arrest someone if they believe it ‘reasonably necessary’ could leave members of the public vulnerable to the personal bias of individual officers, and lead to unfair treatment of certain sectors of the community, as it takes away the need for objectivity and a factual basis for arrest.

It’s important to be aware of your rights when you are dealing with the police in any capacity.

If you believe that your rights have been infringed, make sure you seek legal advice from an experienced criminal lawyer as soon as possible.

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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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