Review the implementation of legislation

Act being reviewed

Description

Child Protection (Offenders Registration) Act 2000

The statutory period for the Ombudsman’s monitoring of 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.

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.

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.

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 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. The Attorney General is required to table the report in Parliament as soon as practicable.

This report is now available.

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).

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. The final report on this Act is available on-line.

Crimes Legislation Amendment Act 2002 – Detention after arrest during execution of search warrant (Sch 10)

This legislation amends a number of Acts including the Search Warrants Act 1985. It was passed by Parliament in December 2002 but the search warrants amendments have not yet come into operation. The Act requires the Ombudsman to review Part 3A of the Search Warrants Act for two years.

The amendments allow police to detain on the premises someone lawfully arrested in connection with the execution of a search warrant. This means a lawfully detained person may be required to stay at the scene where the warrant is being executed rather than being taken straight to a police station.

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 and is now available.

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.

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 and provide a detailed report to the Attorney General and Minister for Police in late 2007.

To assist us in identifying problems or concerns with powers conferred on police by Part 6A of the Act, we will be seeking community input into this review. In order for us to gain a wide array of views for this review, we will be inviting feedback on the following:

• searches conducted on persons or vehicles under sections 87J and 87K
• seizures of property such as alcohol under section 87C and vehicles, mobile phones or communication devices under section 87M
• refusals under section 87I(2) to allow a person to leave an area the subject of an authorisation under the Act
• any advice on the impact of sections 87B and 87C on businesses due to the prohibition of the sale of alcohol or the establishment of emergency alcohol free zones
• whether you have identified any problems with the Act or its operations

• any positive or negative experiences you have had with the Act or operations using Part 6A powers.

Consultations will be held throughout the review period. In the meantime, any comments you may have about the new police powers or their implementation can be sent to:

Law Enforcement Legislation Amendment
(Public Safety) Act 2005 Review
NSW Ombudsman
Level 24, 580 George Street
SYDNEY NSW 2000

or :

review@ombo.nsw.gov.au
(Please include ‘Public Disorder Powers’ in the subject line)

If you would like to discuss any aspect of this request or the review, please do not hesitate to contact the Office on 9286 1000 or tollfree on 18000 451 524.

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. The following new powers under the LEPR Act are to be monitored by the Ombudsman:

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

The Ombudsman is 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.

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

The Ombudsman is 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 is 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.

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 and is now available.

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.

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

Vehicle Powers, Questions and Answers : Report under section 16 of the Police Powers (Vehicles) Act, August 2000. This relates to the powers of police to request ID in certain situations. The final report on this Act is available on-line.

Police Powers (Vehicles) Amendment Act 2001

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.

Terrorism (Police Powers) Act 2002

The Ombudsman is reviewing two Parts of this Act.

Part 2A deals with preventative detention orders. It came into force in December 2005, following agreement by the Council of Australian Governments (COAG) to strengthen counter-terrorism laws across state and federal jurisdictions. Part 2A enables police to apply to the Supreme Court for orders enabling the detention of a person aged 16 or above in order to:

• prevent an imminent terrorist act, or
• preserve evidence of terrorist acts that have occurred.

Police can apply for an interim preventative detention order of up to 48 hours, in the absence of the person they wish to detain. Police must explain the effect of the order as soon as practicable after the person is taken into custody. The person must also be notified of the hearing for the confirmed order, and is entitled to give evidence and have legal representation at that hearing. The maximum period for which a person can be detained under a confirmed order is 14 days, including any actual period of detention already served under a related order. However an order can be made against a person to take effect on the expiration of detention under a related order against the person. Police must apply to have a preventative detention order revoked if the grounds on which the order were made cease to exist.

Police can also apply to the Supreme Court for a prohibited contact order, if this is reasonably necessary for achieving the purposes of the preventative detention order. Subject to any prohibited contact order, people in preventative detention are entitled to contact a family member, employer or other proscribed person, but only to let them know they are safe and are being detained. Police can monitor all contact made by the detainee, except contact with the Ombudsman or the Police Integrity Commission.

Police can arrange for a person in preventative detention to be detained at a correctional facility. People in preventative detention must be treated with humanity, and must not be subjected to cruel, inhuman or degrading treatment. Police cannot question a person in preventative detention other than for the purposes of identification, welfare or complying with other legislative requirements. Preventative detention orders can only be made in relation to people aged 16 and above, but people aged 16 or 17 have to be detained separately from adults.

Part 2A also provides police with powers to enter premises, search persons and seize property in relation to the execution of preventative detention orders. Police can request disclosure of identity and penalties apply for non-compliance.

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

Part 3 deals with covert search warrants, and came into operation in September 2005. It enables certain police officers and staff members of the NSW Crime Commission to apply to an eligible judge for a covert search warrant, 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.

A covert search warrant authorises the nominated officers to enter the subject premises, or premises adjoining the subject premises, without the occupier’s knowledge, and search for, seize, place in substitution for a seized thing, copy, photograph, record, operate, print or test any thing described in the warrant.

After executing a covert search warrant the officer must report back to the judge within ten days, stating what actions were taken, who took those actions and whether or not execution of the warrant assisted in the prevention or response to the specified terrorist offence. Details relating to the execution of the warrant must be recorded in an occupier’s notice, which is to be provided to the issuing judge within six months of the warrant being executed, or such further period as is permitted by the court. With approval of the notice by the judge, the notice is to be provided to the subject of the covert search warrant and occupiers of premises searched.

The Act requires the Ombudsman to monitor the covert search warrant provisions for two years, and the preventative detention order provisions for five years, with an interim report after two years. The Attorney General must table these reports in Parliament as soon as practicable after receiving them. Police must report to the Minister and Attorney General annually in relation to the exercise of powers under both Parts.