14 November 2013
(Second Reading Debate, 11.10am 13 November 2013, Legislative Assembly, NSW Parliament)
The Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 2013 clarifies existing provisions that allow for lawful arrest without a warrant and introduces new circumstances for when this can occur. Arrests without warrant help police to prevent crime and protect the community. Importantly, the new provisions will allow arrests on the street in late-night hot spots such as Kings Cross where alcohol-fuelled violence occurs every weekend. The police in my electorate do a fantastic job in very difficult circumstances. They face violence and abuse and they have to deal with intoxicated people and those with mental health issues.
I understand that police sought clarification over the circumstances in which arrests without a warrant can and cannot occur, which led to a review and this bill. I am concerned that this bill fails to strike the right balance between ensuring police have the power to enforce the law and protect the community and protecting people's right to liberty. The bill will allow an arrest without a warrant if an officer is "satisfied that the arrest is reasonably necessary". This is significantly weaker than the existing objective benchmark that an officer's suspicion must be on reasonable grounds. The NSW Council for Civil Liberties tells me that the subjective nature of the proposed grounds will make it difficult for a court to determine that an arrest without a warrant was ever unlawful, which could encourage arbitrary arrests.
The bill allows for an arrest without a warrant if a suspected offender cannot identify themselves or if an officer reasonably suspects their identification is false. I have serious concerns that this could facilitate increased arrests of homeless people, people with a mental illness and Aboriginal people, because they are less likely to carry identification and arrests could occur to establish their identity. The bill will allow arrests without a warrant "because of the nature and seriousness of the offence", which is vague and broad, and thus open to abuse. The bill allows for the detention of a person for the purpose of investigating whether he or she has committed the offence for which they were arrested.
Under the existing Act arrests are unlawful for the purpose of taking proceedings unless the police officer suspects on reasonable grounds that the person will not appear in court or that the person will recommit an offence, destroy evidence, harass a witness or fabricate evidence, or if the person is arrested to preserve their safety or welfare. These safeguards should be retained because without them provisions will be open to misinterpretation and arbitrary arrest. The Government has not provided any real-life examples showing how existing provisions are inadequate. Arrests without warrant are necessary but we should be careful to ensure the laws we pass are necessary and do not encourage arbitrary arrests. It is long accepted that healthy democracies avoid arbitrary arrests and support people's right to freedom if they have not committed a crime. I am concerned that this bill fails to do that.