28 May 2014
(Contribution to Debate, 27 May 2014, Legislative Assembly, NSW Parliament)
The Law Enforcement (Powers and Responsibilities) Amendment Bill 2014 implements recommendations from two reviews of the Law Enforcement (Powers and Responsibilities) Act [LEPRA] to clarify police powers and change their responsibilities in exercising these powers in order to improve police operations. While many of the changes meet these objectives, I share the community's concern that some are open to misuse and abuse, and could lead to the loss of important rights, lengthen detention without charge and remove police accountability.
Under the current Act, when an officer fails to adhere to the statutory requirement to provide his or her name and/or place of duty when exercising a power, the exercise of these powers becomes invalid. I understand the frustration this could cause officers who inadvertently fail to provide the required information when, as a result, it leads the courts to declare the powers unlawful. However, this does not justify removing the safeguard. The current situation encourages compliance, and I am concerned that, under the bill, police could be less likely to provide the information. The Government should consider ways to help police officers comply, such as through improved education and training.
The bill also simplifies the rules around when police officers must provide information to a person when exercising powers. Currently officers must provide information "as soon as it is reasonably practicable to do so"—except in the case of giving a single person a direction, requirement or request, when officers must provide the information "just before" giving that direction, requirement or request. This bill extends the "as soon as it is reasonably practicable" requirement to apply to all situations including in the case of giving a single person a direction, requirement or request. I agree with the New South Wales Council for Civil Liberties that this weakens an important safeguard and accountability mechanism when police give directions, requirements and requests, and that it is unnecessary because the existing legislation is clear and no evidence has been provided to indicate police confusion.
I am concerned that the bill increases the existing maximum initial investigation period for a detained person from four hours to six hours before an application for an extension is required. While the maximum entire investigation period with an extension remains 12 hours, the existing safeguards that require an extension beyond four hours prevent excessive detention of a person. I understand that four hours is sufficient in most situations so there is no reason to extend the time of an initial investigation for all cases. Six hours is a long time to be detained, particularly for people who are homeless, who have a mental illness, who are disadvantaged or who are vulnerable.
The bill creates two categories of people to whom existing rights apply in situations such as when premises are being searched under a warrant. These are "detained persons", who are arrested persons, and "protected suspects" who are suspects in the company of a police officer for the purposes of an investigation and who have been told they are free to leave. I understand from the New South Wales Council for Civil Liberties that the definition of a protected suspect covers fewer persons than the existing "deemed suspect" definition, which will be replaced by the bill, including persons who have not been formally arrested or told explicitly they are entitled to leave. Often people who fall into this category are vulnerable persons who are being questioned, but who do not understand that that they are free to leave or that they do not have to participate in an interview. Existing safeguards should be retained for these persons. The bill enables a police officer to conduct a search, including a strip search, if someone provides consent.
While the individual does not have to give consent, the officer is not required to inform the individual of this right. This could result in people being subjected to unwanted interference of their personal bodily integrity because they wrongly believe that they must consent to it. Strip searches were a major topic of concern at last year's mardi gras parade and parties. A large numbers of event participants who were searched reported feeling violated and exposed. This year police worked with the community to put in place a very transparent process where everyone knew their rights and responsibilities. This made the events safe and successful, and that is what this bill should be legislating for. Police need the powers to ensure effective and efficient investigations to prevent crime and hold criminals to account. However, I am concerned that this bill goes beyond this to remove vital protections and rights from persons who have been accused, but not proven guilty.