Review the implementation of legislation

Summary Offences (Intoxicated and Disorderly Conduct) Amendment Act 2011

The Summary Offences (Intoxicated and Disorderly Conduct) Amendment Act 2011 commenced on 30 September 2011. It gives police power to issue a direction to an intoxicated person who is in a public place to leave and not return for six hours if the officer reasonably believes the person’s conduct is disorderly. The direction must be reasonable in the circumstances and for the purpose of preventing the continuance of disorderly behaviour in a public place.

This power is in addition to existing police powers to issue a move on direction to intoxicated persons whose behaviour as a result of the intoxication is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety.

It is an offence for a person who has been given a move on direction for being intoxicated and disorderly in a public place to be intoxicated and disorderly in the same or any other public place for six hours after the direction is given. The offence may be dealt with by way of penalty notice. The maximum penalty is six penalty units ($660). It is a defence if the person has a ‘reasonable excuse’ for their conduct.

The Act requires the Ombudsman, for the first 12 months, to review the use of the power to issue a move on direction for intoxicated and disorderly conduct, as well as any offences prosecuted or administered by way of penalty notice relating to failure to comply with a move on directions for being intoxicated and disorderly in a public place. We are required to report to the Attorney General and Commissioner of Police as soon as practicable after this period. The Attorney General is required to table a copy of the report in Parliament.

Identification Legislation Amendment Act 2011

The Identification Legislation Amendment Act 2011 commenced on 1 November 2011. It enables police officers and certain other public officials to require the removal of face coverings to facilitate the verification of the person’s identity. Face coverings include any item of clothing, helmets, masks or any other thing that is worn by a person and prevents their face from being seen.

Police may require a person to remove face coverings in situations where the person is lawfully required to provide photographic identification, or lawfully required to provide other identification particulars. Such circumstances may include situations where police require drivers licence details in traffic incidents, where police propose to issue a direction to the person to leave a public place, where the person is a suspected defendant of an Apprehended Violence Order, where officers suspect on reasonable grounds that a person may be able to assist the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, or where the person is a passenger or driver of a vehicle that an officer reasonably suspects has been used in an indictable offence.

The person is only required to remove as much of the face covering as is necessary to display the area from the top of the forehead to the bottom of the chin, and between the ears. As far as it is reasonably practicable, the viewing of the person’s face must be conducted quickly and in a manner than provides reasonable privacy if the person requests privacy. Police do not have the power to forcibly remove the face covering if the wearer refuses to do so.

It is an offence to fail to remove a face covering or refuse to comply with a requirement to remove a face covering. The maximum penalty is 2 penalty units ($220), however in relation to a request for disclosure of a driver or passenger’s details in connection with an indictable offence, the maximum penalty is 50 penalty units ($5,500), 12 months imprisonment or both.

The Act provides there may be circumstances where a person has a special justification for not removing a face covering, such as if the person has a legitimate medical reason for not removing a face covering. This may include situations where the person has facial bandages that cannot be removed for medical reasons.

The Act also provides that an authorised witness to a statutory declaration or affidavit may request removal of a face covering for identification purposes, and public officials may require the removal of a face covering for identification purposes in the following circumstances:

• The person is a visitor to a juvenile justice centre
• The person is a visitor to a correctional centre
• The person seeks to enter court premises
• Where a security officer arrests or has grounds to arrest a person under the Court Security Act 2005.

The Ombudsman is required to keep under scrutiny the exercise of powers conferred on police officers under the Act for the first 12 months. We are required to report to the Attorney General, the Minister for Police and Emergency Services and the Commissioner of Police as soon as practicable after this period. The Attorney General is required to table a copy of the report in Parliament.

Crimes (Criminal Organisations Control) Act 2009

This Act commenced on 3 April 2009. It introduced a scheme whereby the Commissioner of Police may make an application to an eligible judge that an organisation be declared a criminal organisation.  If a declaration is made, the Commissioner of Police may apply to the Supreme Court for interim control orders and control orders in relation to members of the declared organisation.

A controlled member will commit an offence if they associate with another controlled member of the declared organisation or if they recruit another person to join the declared organisation.

Authorisation to carry on specified activities – such as work within certain high risk industries – is suspended when an interim control order is made and cancelled when the control order is confirmed. Additionally, controlled members cannot apply for such authorisations.

Amendments to the Act made in November 2009 gave police the power to request a person disclose his or her identity or remain at a particular place to facilitate the service of a notice of an interim control order on a person. Police may also detain persons for a period reasonably necessary to serve the notice, not exceeding 2 hours, if the person refuses to remain at the particular place. These powers are available where an officer has reasonable cause to suspect that a person is a person on whom the notice of an interim control order is required to be served.

The Act also empowers police to demand a person disclose their identity, if the officer has reasonable cause to suspect the person is a controlled member of a declared organisation who is associating with another controlled member.

It is an offence for a person to fail or refuse to disclose his or her identity or to give false particulars in relation to requests made in order to facilitate service of the notice of an interim control order or suspicion that controlled members are associating.

The Act requires the Ombudsman to keep under scrutiny the exercise of powers conferred on police officers under the Act for the first four years.

On 23 June 211 the High Court of Australia found the Crimes (Criminal Organisations Control) Act invalid as it was repugnant to, or incompatible with, the institutional integrity of the NSW Supreme Court. See Wainohu v New South Wales [2011] HCA 24. The Attorney General has announced he is reviewing the implications of the High Court’s decision.

Terrorism (Police Powers) Act 2002

The Ombudsman has responsibility for reviewing two Parts of this Act - Part 2A and Part 3.

Part 2A deals with preventative detention orders. Police can apply to the Supreme Court for an order to  detain people without charge for up to two weeks to prevent a suspected imminent terrorist act or to preserve evidence of terrorist acts which have occurred. Police can apply to the Supreme Court for a prohibited contact order, if reasonably necessary to achieve the purposes of the preventative detention order. The person may be detained in a correctional centre. Police cannot question a person in preventative detention other than for the purposes of identification, welfare, or complying with other legislative requirements.

Part 2A also provides police with powers to enter premises to execute a preventative detention order, and search detained persons and seize items. Police can request disclosure of identity to assist in executing an order, and there are penalties for non-compliance.

Part 2A expires after 10 years, that is in December 2015.

Part 3 deals with covert search warrants. It enables certain police and officers of the Crime Commission to apply to an eligible judge for a warrant to covertly search premises, should they suspect on reasonable grounds that

• a terrorist act has been or is likely to be committed,
• searching the premises will substantially assist in preventing the terrorist act, and
• it is necessary to conduct the search without the knowledge of the occupier.

We are required to report on the exercise of these powers every three years. The Attorney General must table the report as soon as practicable after receiving it. Police must report to the Minister and Attorney General annually in relation to the exercise of powers under both Parts.

Our first report Review of Part 2A and 3 of the Terrorism (Police Powers) Act 2002 under this Act was finalised in September 2008.

Our second report Review of Part 2A and 3 of the Terrorism (Police Powers) Act 2002 was tabled in Parliament on 24 August 2011. It considers the exercise of powers in the period from 2008 to 2010.

Child Protection (Offenders Registration) Act 2000

The statutory period for the Ombudsman’s monitoring of this Act concluded in October 2003.

The Act provides for the establishment of a Child Protection Register. This means that people who have committed certain offences against children (murder, sexual offences, indecency offences, kidnapping, offences connected with child prostitution, and possession or publication of child pornography) have to register with the police after they are released into the community and tell police certain information about themselves. The police use this information to monitor these offenders and to investigate offences against children.

This report was provided to the Minister for Police on 30 May 2005.

Children (Criminal Proceedings) Amendment (Adult Detainees) Act 2001

This Act commenced at the end of January 2002, and the review period concluded in January 2005.

The Act amends section 19 of the Children (Criminal Proceedings) Act 1987. Its operation and effects are to be reviewed by the Ombudsman for a period of three years.

Section 19 was amended to provide that people convicted of serious children’s indictable offences be automatically transferred to adult correctional facilities when they turn 18, unless the court is satisfied that there are 'special circumstances' to remain in juvenile detention, or their sentence or non-parole period is within six months of expiring.

All young people must be transferred to a correctional centre by 21 years of age, unless their sentence or non-parole period is within six months of expiring. The amendment to section 19 is not retrospective and therefore only applies to sentences and orders made after the commencement of the Act.

This report was provided to the Attorney General on 24 November 2005.

Crimes (Administration of Sentences) Amendment Act 2002 & Summary Offences Amendment (Places of Detention) Act 2002

The statutory period for the Ombudsman’s monitoring of the Act concluded on 21 February 2005.

Together, the Acts allow correctional officers to stop, search and detain people and/or vehicles in the immediate vicinity of a place of detention in specified circumstances. The Acts also authorise correctional officers to use a dog to conduct these searches. New offences have been created including an offence of refusing or failing to comply with a request or direction of a correctional officer, and resisting or impeding a search under the new powers.

Crimes (Forensic Procedures) Act 2000 – Part 7 – Serious Indictable Offenders

The Act introduced new powers to carry out forensic procedures (such as taking DNA samples) and regulates the collection, use and destruction of forensic samples.

The first stage of our review of the operation of this legislation concentrated on the implementation by police of powers in relation to serious indictable offenders in NSW correctional and juvenile detention facilities. We reported on this aspect of the review in August 2004.

Crimes (Forensic Procedures) Act 2000 - Volunteers and Suspects

Most of the provisions in this Act commenced on 1 January 2001. The review period concluded in November 2004.

The Act introduced new powers to carry out forensic procedures (such as taking DNA samples) and regulates the collection, use and destruction of forensic samples. Some of the people affected by this law are people suspected by police of having committed an offence and people convicted of an offence that carries a maximum penalty of 5 or more years of imprisonment.

We conducted our review in two stages. The first report examined the operation of Part 7 of the Act, which regulates the DNA sampling of inmates and juvenile detainees. This report was tabled in Parliament in October 2004. The second report examines DNA sampling and other types of forensic procedures conducted on suspects and volunteers.

This report was provided to the Attorney General, Minister for Police and Commissioner for Police on 24 October 2006.

Crimes Legislation Amendment (Penalty Notice Offences) Act 2002

The statutory period for the Ombudsman’s monitoring of the Act concluded in September 2003.

The Act establishes a trial of a scheme allowing police to issue ‘on-the-spot’ penalty notices known as ‘Criminal Infringement Notices’ or CINs for specified criminal offences, such as shoplifting. The trial only operated in prescribed local area commands. Persons under 18 years cannot be issued CINs under the Act. The Act also allows police to take fingerprints in the field in relation to CINs and Field Court Attendance Notices (FCANs).

This report was provided to the Attorney General on 29 April 2005.

Crimes Legislation Amendment (Police and Public Safety) Act 1998

Policing Public Safety: Report under section 6 of the Crimes Legislation Amendment (Police and Public Safety) Act, November 1999. This legislation focuses on move-ons and knife searches.

Section 344A of the Criminal Procedure Act required the Ombudsman to review the impact of police powers to issue Criminal Infringement Notices (CINs) on Aboriginal and Torres Strait Islander communities. CINs are a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay a fine or penalty amount, prescribed by regulation. CINs can be issued by police to adults who appear to have committed a limited range of certain offences, mostly  relating to minor incidents of offensive conduct, offensive language, and larceny/shoplifting. CINs give police an additional, intermediate option between cautioning offenders on the one hand, and arresting and charging on the other.

The statutory review for the Ombudsman’s monitoring of the impact of CINs on Aboriginal and Torres Strait Islander communities ended in August 2009, and the report was provided to the Attorney general and the Minister for Police at that time.

Firearms Amendment (Public Safety) Act 2002

The statutory period for the Ombudsman’s monitoring of the Act concluded in June 2004.

These provisions confer powers on police officers to use a dog to carry out general firearms or explosives detection in a public place without a warrant.

A public place means any building, structure, vehicle, vessel or aircraft that is open to the public or is used by the public. A public place also includes any road. The police are authorised to use dogs to identify persons who may be carrying firearms or explosives.

This report was provided to the Minister for Police on 20 April 2006.

Justice Legislation Amendment (Non-association and Place Restriction) Act 2001

The statutory period for the Ombudsman’s monitoring of the Act concluded in June 2004.

The Act amends various Acts relating to sentencing, bail and sentence administration. When sentencing an offender for an offence punishable by six months imprisonment or more, a court may make a ‘non-association order’, prohibiting the offender from associating with specified person(s). The court may also make a ‘place restriction order’, prohibiting the offender from visiting a specified place or district.

The court is only to make such orders if it is satisfied that it is reasonably necessary to do so to ensure the offender does not commit any further offences. There are certain restrictions on the orders that can be placed. For example, non-association and place restriction orders are not to exceed 12 months. These orders may also be made as a condition of bail, parole, leave or home detention.

This report was provided to the Attorney General and Minister for Justice in December 2006.

Law Enforcement Legislation Amendment (Public Safety) Act 2005

Following violent incidents at Cronulla and other Sydney beachside suburbs in December 2005, the NSW Parliament introduced the Law Enforcement Legislation Amendment (Public Safety) Act 2005 to provide new laws aimed at helping police to prevent or control ‘large-scale public disorder’ incidents.

The new measures centre on changes to the Law Enforcement (Powers and Responsibilities) Act 2002 (‘the Act’) that create special powers in relation to targeted areas, including laws enabling police to:

• Impose an emergency closure of licensed premises and liquor outlets
• Establish emergency alcohol-free zones
• Establish special ‘lockdown’ zones and roadblocks where police may stop and search persons and vehicles, require persons to disclose their identity and seize vehicles, mobile phones and other communication devices.

Specific offences under the new legislation include:

• Failing to comply with police directions relating to the emergency liquor restriction
• Drinking or possessing liquor in an emergency alcohol-free zone (after a warning is given)
• Failing or refusing to disclose your identity in an area that is the target of an authorisation, or giving false or incomplete details.

Parliament also included a provision requiring the NSW Ombudsman to scrutinise the new powers conferred on police under Part 6A of the Act. Our report was provided to the Attorney general and Minister for Police in September 2007.

In December 2007, the NSW Parliament passed laws to extend the emergency powers available to police to deal with riots and other actual or threatened civil disturbances. These laws, known as Part 6A of the Law Enforcement (Powers and responsibilities) Act – replaced temporary Part 6A provisions that had been introduced quickly in response to mob violence in Cronulla, Sydney on 11 December 2005 and violent reprisal attacks in Sydney’s southern and eastern suburbs in the days that followed.

Under section 87O, the Ombudsman has an ongoing role to keep under scrutiny the exercise of powers conferred on police officers under Part 6A.

Our reports on any exercise of the powers are included in our Annual Report, as required by section 87O(5) of the Act.

Law Enforcement (Powers and Responsibilities) Act 2002

The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPR Act) was passed by Parliament in December 2002 and commenced on 1 December 2005.

This Act consolidates many police powers into one legislative instrument and includes several powers that the Ombudsman currently monitors. In accordance with Schedule 5 of the LEPR Act, the Ombudsman’s existing monitoring roles will continue once the new Act has commenced. This includes the following powers that have been incorporated into the LEPR Act:

• use of drug detection dogs - currently the Police Powers (Drug Detection Dogs) Act 2001
• powers related to drug premises - currently the Police Powers (Drug Premises) Act 2001
• use of medical imaging to search for internally concealed drugs - currently the Police Powers (Internally Concealed Drugs) Act 2001
• use of firearms and explosives detection dogs - currently within the Firearms Amendment (Public Safety) Act 2002.

The LEPR Act also contains a number of new or substantially amended police powers Which were subject to review by the Ombudsman:

• crime scene powers
• obtaining financial documents
• conducting searches on arrest or in custody.

Our report on these powers was provided to the Attorney general in February 2009.

Law Enforcement (Powers and Responsibilities) Act 2002 – Crime Scenes (Part 7)

The Ombudsman was required to review these provisions for two years from 1 December 2005.

This Part regulates how and when a crime scene may be set up and specifies the powers of the police once a crime scene has been established. These powers include the power to direct a person to leave or remove a person from the crime scene, to open anything at the crime scene that is locked, to seize and detain evidence, and to remove wall or ceiling linings, floors of buildings or panels of cars.

The Ombudsman is also required to review the safeguards in Part 15 of the Act relating to the crime scene powers, and monitor Part 5, Division 4 which regulates the processes for obtaining warrants and notices to produce generally.

Law Enforcement (Powers and Responsibilities) Act 2002 – Notices to produce documents (Part 5, Division 3)

The Ombudsman was required to review these provisions for two years from 1 December 2005. They allow a police officer to obtain financial documents from a ‘deposit taking institution’ that are connected with an offence.

Law Enforcement (Powers and Responsibilities) Act 2002 – Searches on arrest or in custody (Part 4, Division 2 and 4)

The Ombudsman was required to review these provisions for two years from 1 December 2005. They allow the police to search a person after arrest if they have a reasonable suspicion that the person is carrying something that could be dangerous, that could be used in an escape, is related to the offence that was committed, or can be used in evidence.

The police are authorised to conduct a strip search if it is considered necessary and the seriousness and urgency of the situation requires it. The provisions also regulate how these searches are to be carried out.

The Ombudsman was also required to review the safeguards in Part 15 of the Act relating to searches of a person on arrest or while in custody.

Police Powers (Drug Detection Dogs) Act 2001

The statutory period for the Ombudsman’s monitoring of the Act concluded on February 2004.

The provisions regulate the use of dogs by police officers for the purpose of detecting prohibited drugs. Police may use drug detection dogs without a warrant in relation to persons at, leaving or entering sporting events, parades or concerts, and bars and clubs and other venues where alcohol is sold and consumed, and also persons on, entering or leaving public transport on specified routes. Police can also obtain a warrant to use the drug dogs in other public place if they have a reasonable suspicion that people in those places may be committing a drug offence.

This report was provided to the Attorney General on 29 June 2006.

Police Powers (Drug Detections in Border Areas Trial) Act 2003

This Act commenced in January 2004 and expired in July 2005. The legislation allowed police, authorised by a warrant, to set up checkpoints, stop vehicles, and use drug detection dogs in specified ‘border areas’. These border areas were defined in the Act and are located near the NSW and Victorian border, and the NSW and South Australian border.

This report was provided to the Attorney General on 14 January 2005.

Police Powers (Drug Premises) Act 2001

The statutory period for us to monitor this Act ended in July 2003.

This Act conferred new powers on police to search any ‘drug premises’ where they suspected the manufacture or unlawful supply of prohibited drugs was taking place. The provisions created several new offences including offences in relation to being found on, entering or leaving a drug premises or organising a drug premises.

The provisions also introduced important amendments to the Summary Offences Act 1988 which empowered police to give directions to people in a public place, where there were reasonable grounds to believe they are unlawfully supplying, soliciting or procuring a prohibited drug.

Police Powers (Internally Concealed Drugs) Act 2001

This Act came into operation on 1 July 2002 and was monitored by us for two years. The provisions establish a regime for the carrying out of internal searches on persons who are suspected of swallowing or otherwise internally concealing a prohibited drug for the purposes of supply.

The provisions permit the carrying out of internal searches such as X-ray, MRI, cat scan or other forms of medical imaging, but does not enable or allow a search involving intrusion into person’s body cavities. Internal searches can be conducted either with the informed consent of the suspect or by order of an eligible judicial officer, who may be a nominated magistrate, Supreme Court judge or District Court judge. Searches may only be conducted by a medical practitioner or other appropriately qualified person on persons 10 years of age and older.

Police Powers (Vehicles) Act 1998

This relates to the powers of police to request ID in certain situations. The Ombudsman reviewed this act during the first 12 months of the Act's operation.

The statutory period for the Ombudsman’s monitoring of the new provisions of the Act concluded in late 2002.

This Act was introduced in part to address findings and recommendations from the Ombudsman’s review of the 1998 legislation.

The 2001 Act amended the 1998 Act by conferring on police additional powers to request passengers in vehicles to identify themselves and the driver and other passengers in the vehicle; and request persons who are required to identify themselves to provide proof of their identity.

This report was provided to the Minister for Police in September 2003.

Terrorism (Police Powers Act) 2002

This is our first report about the exercise of powers conferred on police and other officers under the Terrorism (Police Powers) Act 2002. It deals with powers to place persons into preventative detention and to apply for covert search warrants in relation to the investigation or prevention of terrorist acts.
This report was finalised in September 2008.