ne 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:
- require police to provide their name and place of duty when exercising certain powers, such as arrest and search
- give police the ability to restrict the activities of any members of a body that has been declared a ‘criminal organisation’
- give police the power to detain people and vehicles, and enter premises, without a warrant, to determine compliance with a firearms prohibition order
- empower police to search premises for weapons and explosives under the Restricted Premises Act, and create new offences committed by owners and lessees of declared premises.
In 2016 we provided our report of the review of the operation of the consorting provisions to the Attorney General and the Commissioner of Police, and it was tabled in Parliament by the Attorney General.
The new consorting law makes it a criminal offence for a person to continue to associate or communicate with at least two people who have previously been convicted of an indictable offence, after receiving an official police warning. It aims to prevent crime by disrupting or deterring associations that may lead to the building or continuation of criminal networks.
The breadth of the new consorting law means that the main constraint on its application is the exercise of discretion by police officers. Police have significant discretion in deciding who they will warn, who will be warned about, and whether to bring charges. There is no legal requirement for the associations targeted by police for consorting to have any link to planning or undertaking criminal activity.
Our report outlines use of the consorting law in relation to members of criminal gangs, but also in relation to people experiencing homelessness, children and young people, and people with no criminal record. In some areas the proportion of use in relation to Aboriginal people was very high.
Our report recommends the adoption of a statutory and policy framework to ensure police apply the consorting law in a way that is focused on serious crime, closely linked to crime prevention, and is not used in relation to minor offending.
Download our consorting report
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 was required to keep under scrutiny whether police officers are still complying with the requirement to provide their name and place of duty, for the first 12 months after the introduction of these changes.
We are currently preparing our report, which will be provided to the Attorney General, the Minister for Justice and Police and the Commissioner of Police.
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 email@example.com.
We are currently preparing our report, which will be provided to the Attorney General.
On 1 November 2013, police in New South Wales obtained new search powers to enforce a Firearms Prohibition Order (FPO). The new search powers allow police to search (without a warrant) any person subject to an FPO and any premises or vehicle that the person occupies, controls or manages. The powers were introduced to help police find firearms and related items (such as a firearm part or ammunition) that the person is prohibited from having. Police can conduct an FPO search at any time, as long as the search is ‘reasonably required’ to determine whether the person has committed an offence by using a firearm, or by acquiring or possessing a firearm, a firearm part or ammunition.The Ombudsman was required to scrutinise the police use of these new search powers until 31 October 2015. We are currently preparing our report, which will be provided to the Minister for Justice and Police, the Attorney General and the Commissioner of Police.
On 1 November 2013, changes to the Restricted Premises Act 1943, intended to help target gun crime and premises used by serious criminals, entered into force. The Supreme Court or District Court can make a declaration under the Act in relation to premises on which proscribed activities take place, 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.
Police previously had powers under the Restricted Premises Act to enter premises to search for alcohol and drugs. These powers were expanded to include searches for firearms, weapons and explosives. Police can apply for a search warrant to search premises if any of the proscribed 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 suspected bikie clubhouses have been subject to 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, control or manage the premises. New offences were introduced for premises subject to a reputed criminal declaration. The owner or lessee of such premises commits an offence if a ‘reputed criminal’ attends, controls or manages the premises while the declaration is in force. These offences are punishable by up to 3 years imprisonment and/or a $16,500 fine.
The Ombudsman was required to scrutinise the police use of the additional search powers and new offence provisions until 31 October 2015. We are currently preparing our report, which will be provided to the Attorney General and the Commissioner of Police.
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.
- Consorting Issues paper - review of the use of the consorting provisions by the NSW Police Force - November 2013
- Firearms Prohibition Order search powers issues paper - July 2015
- Review of Restricted Premises Act search powers and offence provisions - Issues Paper - August 2015
- The consorting law report on the operation of Part 3A, Division 7 of the Crimes Act 1900 - April 2016