By Paul Gregoire and Ugur Nedim
The unique aspect of law enforcement is that the state allows officers of the law to legally apply physical force or violence towards civilians, and, in the case of the NSW Police Force (NSWPF), this permission to commit acts of force, otherwise illegal, in the line of duty, is governed by a set of laws and protocols that are set out in the NSW Police Use of Force Manual.
In addressing the now 15,633 police officers making up the ranks of the NSWPF, the manual makes certain that they “should not be concerned” with whether they’ll be criticised for use of force in the aftermath of a physical confrontation, but they should always ensure that “no more force than is reasonably necessary” is applied in carrying out their “duties safely and effectively”.
Ways in which NSW police officers apply force include the use of firearms, handcuffs, tasers, OC spray and batons, along with the use of “weaponless control”. These uses of force are often engaged when arresting a suspect, when detaining a person not for arrest, in the prevention of breaches of the peace, in self-defence or in the defence of others and also in the protection of property.
“As long as the force used is reasonable, appropriate and proportionate to the circumstances it will be lawful,” the manual further outlines, and adds that officers should be aware of the range of “tactical options” open to them, but also in how to assess when to apply them, as the application of “approved” tactical options does not always result in lawful action.
The August 2022 use of force manual provides NSW police officers with a detailed assessment of how a reasonable use of force is to be assessed on the ground at point of engagement, and it underscores that the correct application of force boils down to the “dynamic risk assessment” ability that individual officers must critically apply in the field.
Using force to carry out policing functions
The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is the piece of legislation that contains the most prominent NSW policing powers, and section 230 of the LEPRA outlines that police are permitted “to use such force as is reasonably necessary to exercise”, when conducting the various functions that officers are required to undertake. Anything beyond this may amount to an assault offence.
“LEPRA defines a policing function as a power, authority, or duty,” the use of force manual explains. “Typically, powers are found in LEPRA, for example the power under section 21 to stop, search and detain, or the power in section 99 to arrest without warrant.”
“It is the duty of every police officer to, amongst other things, prevent and detect crime, and protect persons from injury or death, and property from damage, whether arising from criminal acts or in any other way,” the document adds.
The policing powers bestowed by the LEPRA and other acts usually apply to each individual officer, however at times, these functions are limited to certain ranks of police officer.
An example of a policing power with limited application is the power to order people to evacuate an actual or imminent emergency, which is contained in section 60L of the State Emergency and Rescue Management Act 1989 (NSW) and is limited to “directing officers” or those “above the rank of sergeant”.
Restrictions on use of force
Not only are police required to make a risk assessment during an incident in which use of force might be or is to be applied, but officers are expected to be able to provide reasons as to why their use of force was “reasonable, appropriate and proportionate to the situation”.
The manual then sets out considerations that an officer must make to determine what sort of tactical response to apply, which includes the threat faced, whether there are any weapons involved, as well as the number of persons involved, their age, whether they might be intoxicated or suffering a mental illness, along with their size and gender, as well as the number of accompanying officers.
In terms of whether a use of force is ‘reasonable’, officers must consider two factors: whether they are entitled to use such force as they reasonably believe to be necessary in the circumstances and whether a reasonable person in their position would not consider the force disproportionate.
Use of force during arrest
Section 231 of the LEPRA provides that “a police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.
As the High Court confirmed in 2019’s New South Wales versus Robinson, the purpose of arrest can only be to charge an individual and bring them before a court.
Section 99 of the LEPRA outlines the “strict criteria” to be abided by on arrest, which includes reasonable suspicion and at least one of the following functions: to stop reoffending, to prevent the suspect fleeing, to establish their identity, to ensure the suspect appears in court, to obtain property, to preserve evidence, prevent harassment, protect others and due to the nature of the offence.
However, section 230 of the LEPRA permits officers to apply force in other circumstances, even if there is no express provision of this power in certain situations contained in any piece of legislation, which includes to prevent a breach of the peace.
Other circumstances in which an officer can detain when not arresting include, during a LEPRA section 21 stop, search and detain without a warrant, or when carrying out a forensic procedure on a “untested registrable person” in line with section 75W of the Crimes (Forensic Procedures) Act 2000, as well as to prevent the removal of evidence or interference with a crime scene.
And further situations where detainment without arrest is lawful involve detaining a disorderly intoxicated person to protect the public or the individual, to protect a person from injury or death, along with when it’s carried out under the terms of the Mental Health Act 2007 (NSW) or in detaining an unlawful noncitizen in accordance with section 189 of the Migration Act 1958 (Cth).
“While the power of police officers to detain is distinct from the power to arrest, the power to detain involves a serious incursion on an individual’s liberty and must only be used strictly, when necessary and in the way such power has been conferred,” the manual adds.
Part 15 of the LEPRA requires officers that do detain a person to provide the individual with the reasons why they are being detained, while section 206 of the LEPRA allows officers to use “reasonable restraint” in detaining an intoxicated person, and the Mental Health Act permits the use of force to “restrain the person in any way that is reasonably necessary in the circumstances”.
NSW police officers can also apply force in the pursuit of self-defence, under the terms of section 418 of the Crimes Act 1900 (NSW), and NSW common law also provides police with the ability to defend themselves with the use of force.
De-escalation, responsibility and accountability
Police should attempt to deescalate situations and disengage from them if appropriate. But the manual underscores that officers will on numerous occasions face violent confrontations during their careers, in which the use of force will be necessary and in some situations, the initial tactical response mightn’t prove effective, and the officer will be required to carry out a different response.
“The decision to use force rests with you. You alone are accountable for your actions,” the manual further advises individual NSW police officers. “You should not be afraid to use reasonable force, however you may be called upon to justify any force you use and demonstrate that it was reasonable, necessary, proportionate and appropriate in the circumstances.”
Such explanation of the use of force can be required by the criminal and civil courts, the Coroners Court, as well as to be provided over the course of an investigation carried out by the sole NSW police oversight body, the Law Enforcement Conduct Commission (the LECC).
“You must not use force to inflict punishment,” the document further stresses. “This is unlawful. Any officer who does so may be criminally charged or face other sanction.”
Every use of force must be recorded in the COPS (the Computerised Operational Policing System). This includes what the use of force consisted of, and the reasons why it was necessary to apply.
However, in its Review of NSW Police Force Use of Force Reporting, the LECC found in February 2023 that NSW police officers were carrying out this task in a haphazard manner, while the NSWPF was neglecting to collate this information to ascertain any patterns of overreach that could then be addressed in training.
In fact, the understanding is that rather than adequately address problems with the use of force and other misconduct issues, the NSWPF rather lets problems fester and then pays out millions in damages in civil law suits filed against it or in settling such disputes before they reach court.
Individual officers are required to report to their supervisors when a police operation results in the injury of a civilian due to the use of force. However, such issues are usually dealt with internally and the NSWPF appears to be most concerned with downplaying any excessive force used by its officers on the beat, than it is in stamping out such overreach.
