Legislative reviews

One of our roles is to review new laws that give police new powers or create new criminal offences, to evaluate how police implement these laws in practice, and suggest improvements to the law and police policies and practices.

In recent years, the NSW government has passed a number of laws aimed at assisting police to combat organised crime, in particular, bikie gangs. We are currently reviewing laws that:

Name and place of duty

Police officers have been required to provide their name and place of duty when exercising certain powers, such as arrest and search, since 2002. This requirement was introduced to encourage accountability and transparency on the part of the officers and assist members of the public if they wished to complain about a particular officer.

In November 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 was changed so that, while an officer is still required to provide their name and place of duty, if they do not, the search or other relevant power that they have used will still be valid in most circumstances. Previously, if an officer failed to provide this information, it was possible for a court to find the use of the relevant power was invalid. One of the reasons for this change was to allow for situations where an officer may not be able to provide this information due to, for example, volatile circumstances at the time that they are using the power.

The Ombudsman is required to keep under scrutiny whether police officers are still complying with the requirement to provide their name and place of duty, after the introduction of these changes. Our review covers the period between 1 November 2014 and 31 October 2015. We intend to gather information from police, members of the public and community organisations. We will report to the Attorney General our findings and recommendations.

Consorting with convicted offenders

New consorting provisions came into effect on 9 April 2012 and are set out in the Crimes Act 1900. It is now an indictable offence punishable by up to 3 years imprisonment and/or a $16 500 fine to habitually consort with convicted offenders after receiving a warning from police.

Anyone can be warned or charged with consorting. Consorting includes face to face contact and other means of communication such as electronic media.

The provisions are being used by the NSW Police Force to address organised criminal activity and local crime issues.

The Ombudsman is required to review the operation of the consorting provisions and prepare a report for the Commissioner of Police and the Attorney General who will table it in Parliament.

We have released a paper outlining what we consider to be the main issues emerging from the use of the new consorting provisions in their first 12 months of operation.

We welcome your comments about the issues discussed in the paper and on any other aspects of the provisions and their operation. In particular, we seek information about the personal experiences of people who have been directly affected by the new consorting provisions.

Submissions are due by 28 February 2014.

Please send them to review@ombo.nsw.gov.au.  

Download our issues paper here.

Download a fact sheet about our review of the new consorting provisions here.

Criminal organisations

In April 2009, the Crimes (Criminal Organisations Control) Act 2009 was introduced. It created a scheme whereby police could apply to an eligible judge to have organisations declared as ‘criminal’. Once an organisation is declared, police can apply to have interim control orders and control orders imposed on members of the organisation to make association between controlled members a crime. Authorisations to engage in specified activities, such as work within certain high risk industries, is suspended when an interim control order or a control order is in place.

In June 2011 the High Court found that the 2009 legislation was invalid. Parliament passed a new Crimes (Criminal Organisations Control) Act 2012, which came into effect on 21 March 2012. We are required to keep the related police powers under scrutiny for four years from that date.

The 2012 Act required judges to give reasons when declaring an organisation ‘criminal’. Following a High Court decision about similar legislation from Queensland, Parliament further amended the 2012 Act. Proceedings for declarations and control orders will now take place in the Supreme Court, and a public interest monitor may be appointed to participate in the proceedings. The NSW Police Force may also apply to register interstate declarations and control orders so they can be enforced in NSW.

In 2011-12 we consulted with police about our information requirements for this review and anticipate holding stakeholder consultations as the new provisions are implemented. To make a written submission about this review please email review@ombo.nsw.gov.au.

Firearms Prohibition Orders

The Firearms and Criminal Groups Legislation Amendment Act 2013 came into effect on 1 November 2013. The amendments to the Firearms Act 1996 extended police powers with respect to the enforcement of Firearms Prohibition Orders (FPOs).

The Commissioner of Police can make an FPO against a person who, in the Commissioner’s opinion, is not fit, in the public interest, to possess a firearm. This power is delegable to the rank of Inspector. Under the amended provisions, it is then an offence for that person to:

  • acquire, possess or use a firearm
  • acquire or possess a firearm part or ammunition
  • reside at premises where a firearm, firearm part or ammunition is kept or found
  • attend certain premises such as firearm shops and shooting ranges.

The amendments also empower the police to detain and search a person subject to an FPO, and to enter and search any premises, vehicles, vessels or aircraft that the person occupies, controls or manages. The police can use these powers to determine whether the person has contravened the FPO, and can exercise these powers without a search warrant.

The Ombudsman is required to scrutinise the police use of these new search powers until 1 November 2015. We are currently liaising with the police regarding the information we require in order to conduct this review.

We welcome input from the public. You can contact us at review@ombo.nsw.gov.au.

Restricted Premises Act

On 1 November 2013, changes to the Restricted Premises Act 1943 commenced. The purpose of these changes, made by the Firearms and Criminal Groups Legislation Amendment Act 2013, was to help target gun crime and premises used by serious criminals.

The Supreme Court or District Court can make a declaration in relation to premises if listed activities take place there, including:

  • unlawful sale or supply of alcohol or drugs
  • ‘reputed criminals’ (such as people convicted of an indictable offence) or their associates attending or managing the premises.

The owner or lessee of declared premises commits an offence if any of the listed activities take place while the declaration is in force.

Entry, search and seizure powers

Police previously had powers under the Restricted Premises Act to enter premises to search for and seize drugs and alcohol. These powers have now been expanded to include searches for firearms, weapons and explosives. Police can apply for a search warrant to search premises if any of the listed activities take place there. Once a declaration has been made, police can enter and search the declared premises without a warrant.

Since the changes came into effect, a number of bikie clubhouses have been subject to pre-declaration searches for firearms, weapons and explosives under warrant.

Reputed criminal declarations and offences

The amendments created a new category of ‘reputed criminal declaration’, which can be made if reputed criminals attend or manage the premises. A new offence has been introduced, which can now be committed by the owner or lessee of premises subject to a reputed criminal declaration. The owner or lessee commits an offence if he or she does not prevent reputed criminals from attending or managing the premises. This offence is punishable by up to 3 years imprisonment and/or a $16,500 fine.

The Ombudsman is required to review the use of the new police powers and offence provisions for two years.

We welcome input from the public. You can contact us at review@ombo.nsw.gov.au.

Completed legislative reviews

Since 1998, we have reported our findings and recommendations to Parliament in over 20 legislative reviews. They have related to a range of topics including:

  • the offence of continuing to be intoxicated and disorderly in public
  • the power to collect DNA samples from suspects
  • the ability to search people in public places for knives
  • the use of sniffer dogs to search people in public places for drugs, firearms or explosives
  • giving people on-the-spot fines for certain criminal offences
  • holding people suspected of involvement in terrorist-related activities in preventative detention
  • emergency powers during riots to blocks roads and search people and cars.

The reports of our completed legislative reviews can be accessed on our publications page. We keep track of the implementation of the recommendations we have made and provide updated information in our annual report.