NSW Council for Civil Liberties Inc.

Postal address: PO BOX A1386 SYDNEY SOUTH NSW 1235 Office address: suite 203, 105 Pitt Street SYDNEY NSW 2000 Phone: 02 8090 2952 Fax: 02 8580 4633 Email: office@nswccl.org.au Website: www.nswccl.org.au

7 November 2013

Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 201

The following letter was sent today to the Premier, the Minister for Police and the Attorney eneral! N"#$$% is sending it also to all MPs in the ho&e that the N"# Parliament may ta'e action to ens(re this )ill does not &ass thro(gh Parliament before o&en and ade*(ate cons(ltation with informed sta'eholders and the wider comm(nity or, failing that, ens(re it is significantly amended to maintain e+isting safeg(ards against arbitrary arrest ! ,,,,,,, The N"# $o(ncil for $ivil %iberties -N"#$$%. has significant concerns with as&ects of the %aw /nforcement -Powers and 0es&onsibilities. Amendment -Arrest witho(t #arrant. )ill 2013 -the )ill. c(rrently before the N"# Parliament! #e are also concerned and disa&&ointed with the (nwise e+cl(sion of the wider comm(nity and informed sta'eholders and organisations from the review &rocess leading to its form(lation! This )ill addresses a matter of vital im&ortance in democratic society1 the a&&ro&riate balance between effective &olice &owers of arrest and the f(ndamental right of the &(blic to liberty and &rotection against arbitrary arrest! A review of this im&ortance o(ght to be o&en and incl(sive! 2ecisions for change to legislated &owers of warrantless arrest sho(ld be based on so(nd evidence, not 3(st the advice of the N"# Police and one 3(dge, or the &recedent of legislation in other 3(risdictions! The re&ort of the review by the 4on Pa(l #helan and Andrew Tin'1 does not indicate analysis of any significant evidence other than the views of the N"# Police and several relevant government agencies! At the very least the views of others in the comm(nity, who also have 5a realistic a&&reciation of the challenges that confront o(r &olice officers62, need also to be heard and their &ers&ectives considered! The )ill does &ro&ose some sensible clarifications 7 notably the amalgamation of "88 -1. -a, b, c. and -2. into the &ro&osed -1.-a.! 4owever, the )ill also &ro&oses significant e+tensions of &olice

The 4on Pa(l #helan and Andrew Tin'1 0eview of %aw /nforcement -Powers and 0es&onsibilities. Act 2002, Part 1 "ection 88, 29 :ctober 2013! 2 nd Premier :6;arrell 2 0eading "&eech N"# &arliament 4ansard 30 :ctober 2013!

warrantless, arrest &owers by wea'ening some e+isting reasons -&revio(sly 5&(r&oses6. and adding new ones as the legal basis for e+ercise of this &ower! iven that the consolidation of &olice &owers into the %aw /nforcement -Powers and 0es&onsibilities. Act 2002 -%/P0A. on the recommendation of the 1887 #ood 0oyal $ommission into the N"# Police "ervice was, in &art, to ens(re a balance between the need for effective law enforcement and individ(al rights, the c(m(lative effect of some of these &ro&osed changes is significant and dist(rbing! The N"#$$% is of the view that the )ill sho(ld be referred bac' to the review &rocess to allow the wider comm(nity in&(t! <f the )ill is to &roceed directly thro(gh Parliament, the N"#$$% strongly recommends amendments to the )ill to &rotect e+isting safeg(ards against arbitrary arrest and to ens(re new legislation does not (nintentionally increase ambig(ity and wea'en &olice acco(ntability in this critical and sensitive area!

The N"#$$% offers the following detailed recommendations! 1! The &assage of this )ill thro(gh the N"# &arliament sho(ld be delayed to allow1 1!1! $r(cial in&(t from the wider comm(nity and informed sta'eholders to the hasty and limited review of "88 1!2! Provision of s&ecific e+am&les as evidence to s(bstantiate &olice claims that the c(rrent Act contains significant loo&holes -as distinct from clarity iss(es. which advantage criminals and (ndermine the effectiveness of &olice to &rotect the &(blic 1!3! $onsidered e+amination by all sta'eholders and the comm(nity of the &ro&osed amendments e+tending lawf(l reasons for &olice &owers of warrantless arrest to assess their im&lications and whether they are necessary, a&&ro&riate and &ro&ortionate There is no 3(stification for the r(sh to act on this so *(ic'ly and with s(ch a limited and closed review &rocess! <t a&&ears the motivation was the recent comment by =(dge $onlon3 and some s(bse*(ent radio commentary! <t is diffic(lt to identify so(nd legal, or other good reasons in the &(blic interest, as to why this review has been accelerated ahead of the ongoing overall review of the Act! The comm(nity and the N"# Police wo(ld be better served by a more o&en and considered review &rocess! 2! "ho(ld the Parliament decide to &rogress the )ill, N"#$$% recommends the following changes to the &ro&osed amendments1 2!1! Amend -1.-b. to restore the ob3ective benchmar' 5suspects on reasonable grounds in &lace of the &ro&osed s(b3ective benchmar' 5the &olice officer is satisfied the arrest is reasonably necessary!" This is a significantly wea'er benchmar' and wo(ld &recl(de co(rts from a finding of 5(nlawf(l6 arrest in many cases which wo(ld now be fo(nd
3

R v Johnson, N"# 2istrict $o(rt, "e&tember 2013 <t sho(ld be noted that =(dge $onlon, a former &olice &rosec(tor, has been described in the media as an >often controversial 3(dge?@ incl(ding in a case in 2012 where he condoned &arents smac'ing their 'ids! Judge Paul Conlon backs smacking after overturning stepdad's assault conviction The 2aily Telegra&h 29A2A13@ Judging the judge: paul Conlon Ans ers !uestions The <llawarra Merc(ry 7A11A13!

(nlawf(l! This serio(sly (ndermines e+isting safeg(ards from arbitrary arrest and is neither necessary nor a&&ro&riate in a democracy! 2!2! 0emove the &ro&osed incl(sion of establishing a &erson6s identity as a lawf(l reason1 -1.-b.-3": to enable in#uiries to be made to establish the persons identit$ if it cannot be readil$ established or if the police officer suspects on reasonable grounds that identit$ information provided is false! This &ro&osed reason is not necessary and is o&en to misinter&retation! <t is &ossible, if not li'ely, that &olice will consider that this e+&licit &(r&ose &ermits warrantless arrests for the sole &(r&ose of establishing identity! <n s(ch a conte+t, there is ab(ndant evidence that this will be o&en to ab(se and will be (sed dis&ro&ortionally in relation to indigeno(s A(stralians, homeless and mentally ill &ersons with (nwarranted, negative conse*(ences for these &ersons6 rights and wellbeing! %&'& 0emove the &ro&osed incl(sion of the new reason -1.-b.-i+.1 5because of the nature and seriousness of the offence& These are vag(e criteria -es&ecially the catch,all 5nature6. and o&en to wide and divergent inter&retation, and are therefore o&en to ab(se! <t is clearly an (nnecessary and ina&&ro&riate addition! 2!B! Amend -B. to remove &otential for misinter&retation and wrongf(l arrest by restoring the e+&licit &rohibition in the c(rrent Act1 ('" A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessar$ to arrest the person to achieve one or more of the follo ing purposes to re&lace the &ro&osed less e+&licit safeg(ard1 ()" A person ho has been la full$ arrested under this section may be detained by any police officer under Part * for the purpose of investigating hether the person committed the offence for hich the person has been arrested and for an$ other purpose authorised b$ that Part& 3! :&en (& the ongoing overall review of %/P0A, which is now to be finalised by the 4on! Pa(l #helan and Mr Andrew Tin', to the wider comm(nity and informed sta'eholders to ens(re an o&en, rob(st and balanced &rocess! This is essential for the credibility and integrity reasons and to achieve a balanced re&ort! The N"#$$% wo(ld welcome the o&&ort(nity to contrib(te to a more o&en and com&rehensive review of "ection 88 of %/P0A and to the ongoing overall review of the Act! N"#$$% is writing in similar terms to the Attorney eneral and the Minister for Police and will be sending co&ies of this letter to all Members of Parliament before the debate on this )ill res(mes!

Co(rs sincerely

2r %esley %ynch "ecretary N"# $o(ncil for $ivil %iberties

$ontact "te&hen )lan's President N"# $$% 0B1B BBD E9B %esley %ynch "ecretary N"# $$% 0B1EB8790D