The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is an Act of the Parliament of New South Wales which governs the exercise of specific police powers in New South Wales.
The Act contains nineteen parts which either reinforce the common law, relocate existing sections from other Acts or establish new powers and safeguards. Since its implementation, the Act has been subject to many amendments, but the majority of critical legal discussion has concerned those that occurred in 2009, 2013 and 2014.Sanders, J. (2016). Police powers update September 2016 (with postscript February 2017). [pdf] The Shopfront Youth Legal Centre. Available at: https://criminalcpd.net.au/wp-content/uploads/2017/03/Police-powers-update-September-2016-amendments-to-LEPRA-Part-9-and-search-powers-with-PS-Feb-2017.pdf [Accessed 17 May 2019]. In the media, there has been controversy surrounding the Act's provisions relating to the power of police to conduct searches, as well as what constitutes reasonable use of force.
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Origins The Act was a response to the Wood Royal Commission, which investigated police corruption in the New South Wales Police Force,Brown, D., Farrier, D., McNamara, L., Steel, A., Grewcock, M., Quilter, J., & Schwartz, M. (2015). Criminal laws: materials and commentary on criminal law and process of New South Wales (6th edition.). Annandale, N.S.W: The Federation Press. and their 1997 associated report that advocated for the consolidation of police powers into a procedural code. The commission argued that this would have the benefit of protecting individual rights, reducing police corruption and aiding police training.New South Wales. Royal Commission into the New South Wales Police Service & Wood, J. R. T. (James Roland T.) & NSW Child Protection Council. Interagency guidelines for child protection intervention (1997). Final report. Royal Commission into the New South Wales Police Service, Sydney, N.S.W.
The Government of New South Wales adopted this recommendation and began draughting the Act in 1998. The structure of the Police and Criminal Evidence Act 1984, which defines police powers in the United Kingdom, served as a guide for the layout of the Act.
The Act
The main function of the Act is to codify and govern the exercise of specific police powers. If police do not comply with provisions within the Act, this may, but does not always, lead to evidence being unable to be used in court under section 138 of the Evidence Act 1995.
Consolidation of common law Within the Act, there are many provisions that essentially reflect the exercise of police powers within existing common law. This is evident in section 231 of the Act which dictates that only "reasonably necessary" force must be used to make an arrest. Parts of the Act also extend the common law. This includes section 10 which regulates the ability of police to enter into premises to arrest individuals, a power previously found in the case Lippl v Haines (1989) 18 NSWLR 620.
Re-allocation of existing provisions from other Acts The Act also contains sections that relocate guidelines concerning police powers from other Acts. For example, Part 16 of the Act, which relates to the power of police to detain an intoxicated individual, very closely mirrors the Intoxicated Persons Act 1979. As well, Part 9 of the Act ("Investigations and questioning") contains provisions that essentially copy what used to be Part 10A of the Crimes Act 1900. Sections 114 and 115 in Part 9 of the Act outline the circumstances in which police may detain someone for investigative purposes as well as the appropriate length of time for an investigation period.
New powers and safeguards created
Searches Part 4 of the Act describes the power of police to undertake different categories of searches without a warrant. Specifically, division 4 contains provisions which permits personal searches. This includes searches generally and strip searches. Sections 33 and 34 contain rules in relation to ensuring the privacy and appropriateness of strip searches, including a provision that specifies that children under 10 must not be strip searched.
Arrest Section 99 of the Act expands the scope of the previous common law power of police to arrest. This is primarily due to the broadness of the list of "reasons" which constitute the need for arrest (section 99, sub-section (1)(b)), as well as the lack of a provision which governs circumstances in which an officer "must not arrest" an individual.Sentas, V., & Mcmahon, R. (2014). Changes to Police Powers of Arrest in New South Wales. Current Issues in Criminal Justice, 25(3), 785–801.
Crime Scenes Part 7 of the Act codifies crime scene powers not previously enshrined in legislature. It outlines the circumstances where police are able to set up a crime scene as well as the power to prevent individuals from entering, tampering with or recording crime scenes.Tan, A. (2006). Consolidation and codification of police powers to be scrutinised by Ombudsman. Law Society Journal, 44(1), 36–37.
Safeguards Part 15 of the Act contains restrictions on the exercise of police powers. Section 202 outlines how police must give their details as well as any warnings to an individual "as soon as it is reasonably practicable to do so" when exercising a power, or beforehand when specifically giving directions or requesting an individual carry out a particular task. Section 203, sub-section (1) specifies that police must also warn an individual when the law specifies that they must "comply with a direction, requirement or request".
Review of the Act Section 242 of the Act requires the Inspector of the Law Enforcement Conduct Commission to review and scrutinise police powers, such as in relation to search warrants, as a method of external monitoring of the Act. As part of this, the Inspector must also produce a report containing any observations made or research conducted (section 242(6) of the Act). Currently, the Inspector is Terry Buddin, a previous Supreme Court Judge in NSW.
As well, section 242A of the Act requires the Commissioner of Police, the Commissioner for the New South Wales Crime Commission and the Law Enforcement Conduct Commission to "each report annually on the exercise of powers under Part 5." Lastly, the Chief Commissioner of the Law Enforcement Conduct Commission "may at any time make a special report on any matter arising out of the operation of Division 4 of Part 3 to the Minister" (Section 242B(5)). Justice Michael Adams is the current Chief Commissioner of the Law Enforcement Conduct Commission.
Amendments
Search powers amendment The Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act 2009 commenced on 29 May 2009. It introduced a new section (75A) relating to police search powers, which allows "a person executing or assisting in the execution of a warrant" to bring equipment to the premises and operate it in order to inspect specific objects. The provision also allows police to take anything away from the premises for the purposes of further examination.Palmer, C. (2009). New state powers for computer and data examination and seizure in New South Wales introduced together with covert search powers: amendments to the Law Enforcement (Powers and Responsibilities) Act 2002. Computers & Law, 75(6). Section 75B is similar but it instead permits "a person executing or assisting in the execution of a warrant" to use equipment in order to look at data, copy data or take the device where the data is stored for further examination.
Arrest without warrant amendment The Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 was a response to Part 1 of a review of the Act carried out by Andrew Tink, who used to be the Shadow Attorney-General and Paul Whelan, a previous Police Minister, which focused specifically on the power of arrest under section 99. Accordingly, the 2013 Amendment Act replaced section 99 with a new provision which effectively expanded police powers of arrest and demonstrated a shift towards arrest as a first rather than last resort.
Law Enforcement Amendment Act 2014 Part 2 of Andrew Tink and Paul Whelan’s report was published on 12 December 2013, and concentrated on Parts 9 and 15 of the Act. This review subsequently led to the implementation of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014 which commenced on 2 November 2014. According to an article by Jane Sanders called "Police powers update March 2015: recent legislative amendments", one of the most controversial amendments was pursuant to section 115 in which the investigation period (which starts when an is arrested) was extended from 4 to 6 hours. The Act also amended police search powers, such as the removal of the separate categorisation of frisk and ordinary searches to "searches generally" under section 30. Part 15, relating to safeguards, was also amended. This involved the removal of the consequences of a police officer failing to provide their details to an individual under section 201. Previously, this would mean the exercise of the particular power would become invalid, but now it results only in a complaint. Other amendments were also made to police powers of entry (sections 82-84) and crime scene powers (sections 91-95).Sanders, J. (2015). Police powers update March 2015: recent legislative amendments [pdf]. The Shopfront Youth Legal Centre. Retrieved from https://criminalcpd.net.au/wp-content/uploads/2016/09/Police_powers_update_March_2015__recent_legislative_amendments.pdf. [Accessed 17 May 2019].
Significant cases
R v McClean R v McClean NSWLC 11 was a case that considered section 99 of the original Act before the 2013 Amendment Act. It affirmed the idea of arrest as a last resort. The case involved a woman (McClean) who police suspected to be involved in a break and enter. She was initially questioned, then arrested and then a physical struggle took place between her and police. In court, Magistrate Heilpern explained how arrest is unlawful if it does not align with one of the purposes in section 99, sub-section 3 and determined that in this particular case, arrest was for further investigation which did not fall under one of those purposes. As well, Magistrate Heilpern emphasised that the arrest remained unlawful despite the purpose of arrest subsequently changing to something else.
Poidevin v Semaan Poidevin v Semaan NSWCA 334 was a case that occurred before the introduction of the Law Enforcement (Powers and Responsibilities) Amendment Act 2014, where safeguards concerning police powers were all located in section 201 of the Act. The case was heard by the NSW Court of Appeal. The case involved an interaction between Mr Semaan and a police officer (Mr Poidevin) where Mr Poidevin tried to take Mr Semaan’s phone and restrain him. On appeal, the issue for the judges to consider related to section 201 of the Act. Leeming JA outlined how a failure by police to give warnings and details when it is "reasonably practicable" after exercising their powers does not then "retrospectively affect the lawfulness" of their actions.Sanders, J. (2018). Police powers of arrest and detention. [pdf] The Shopfront Youth Legal Centre. Available at https://criminalcpd.net.au/wp-content/uploads/2019/02/Police-Powers-of-Arrest-and-Detention-Jane-Sanders-November-2018.pdf [Accessed 17 May 2019].
DPP (NSW) v Mathews-Hunter