What Are Police Powers in NSW?

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By Paul Gregoire and Ugur Nedim

On 6 June 2001, then NSW police minister Paul Whelan announced that an exposure draft of a bill that consolidated most state police powers was about to be released. This legislation would also soon incorporate new law enforcement powers to “crack down on drug dealing in Cabramatta”.

Then NSW attorney general Bob Debus introduced what became the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) in September 2002. And while passed on 21 November that same year, the legislation, commonly known as the LEPRA, didn’t come into effect until 1 December 2005.

“The bill represents the outcome of the consolidation process envisaged by the Royal Commission into the NSW Police Service to help strike a proper balance between the need for effective law enforcement and the protection of individual rights” explained Debus in his second reading speech.

These days, the main powers that NSW police officers have are contained in the LEPRA. Although others still reside in separate legislation, such as those governing covert operations, which are enshrined in the Law Enforcement (Controlled Operations) Act 1997 (NSW).

This article provides a rundown of the main powers set out in the LEPRA.

The power of arrest

The power to legally seize somebody and take them into police custody – or arrest them – is the most basic police power there is.

Section 99 of the LEPRA provides officers with the power to arrest a person without a warrant if they reasonably suspect that individual to have committed a crime or to be committing one.

A police officer holding a reasonable suspicion that a person has broken the law in some way – or “suspects on reasonable grounds” that they have – is a prerequisite for police exercising many of the powers contained within the LEPRA. Although, this requirement is not defined in the legislation.

The leading authority on reasonable suspicion is the 2001 NSW Court of Criminal Appeal case R versus Rondo, where it’s defined as involving, “less than a reasonable belief but more than a possibility”. And reasonable suspicion is not arbitrary, as it must have some factual basis to it.

Section 99 also permits arrest if an officer considers it “reasonably necessary” to prevent offending, stop a person fleeing a crime scene, enable an inquiry into a person’s identity, ensure an individual appears before court, to obtain property connected to an offence, preserve evidence, prevent the harassment of a witness or a victim, protect a person, or due to the serious nature of a crime.

Section 115 of the LEPRA stipulates that from the time of arrest police have a maximum of six hours to investigate an individual before they either have to release them or charge them with a crime. This investigation period may be extended if the officers obtain a detention warrant.

Stop, search and detain

Beyond arrest, the most fundamental powers that NSW police officers exercise on the street are those relating to stopping a person, searching them, and detaining suspect objects.

There are three main types of searches, which are regular person searches, the search of vehicles, as well as strip searches.

Section 21 of the LEPRA permits NSW officers to stop an individual and search them if it’s reasonably suspected they’re in possession of stolen goods or an object that has been used or is to be used in a crime, or they’re holding a weapon or are in possession of an illicit substance.

If any of these items are discovered on a person, they can then be seized and detained by officers.

Section 21A of the LEPRA provides a number of auxiliary powers that police can exercise during a routine search. These involve asking the person being searched to open their mouth or shake out their hair. Failure to comply with such an order is an offence that carries a $550 fine.

The stop and search powers pertaining to vehicles are set out in section 36 of the LEPRA. These include being able to search a vehicle because it’s suspected to contain stolen goods or items related to a crime, or a vehicle can be stopped if it has been or is being used in an offence.

Further if a vehicle is positioned near a school or a public place and it’s suspected to be carrying a weapon or posing a serious risk to public safety, NSW police can search it. And officers can again seize and detain any illegal items located during a vehicle search.

Section 33 of the LEPRA empowers officers to strip search an individual at a police station or a place of detention. Police can also strip search people out in the field when it’s suspected to be “necessary for the purposes of the search and that the seriousness and urgency of the circumstances” require it.

Further strip search protocols are set out in sections 32 through to 34A. These include searches being conducted by officers of the same sex and in a private place out of view of others, along with no touching or searching of body cavities being permitted.

Police are not empowered to strip search those under the age of 10.

On the part of police

The basic power to move a person on is contained in section 197 of the LEPRA. An officer can order a person to move elsewhere if they’re obstructing others or traffic, they’re harassing or intimidating others, they’re causing others to feel fear, or they’re trying to supply or procure illegal drugs.

If an officer is giving a move on order – or exercising any of the other powers outlined in this article – section 202 of the LEPRA requires them to provide evidence that they are a police officer if uniformed, as well as provide their name, place of duty and give a reason for their actions.

NSW police officers are also required to provide a warning – “as soon as reasonably practicable” – to a person subject to any of these orders, under the provisions of section 203 of the LEPRA. Once the warning is given, it’s an offence not to comply with the order it’s related to.

Breaching powers holds consequence

If a police officer breaches any of the powers set out in the LEPRA, it then makes it an illegal action. And if the exercising of such a power has been shown to be unlawful and has also led to any criminal charges, those charges may subsequently be thrown out in court.

In the 2017 NSW District Court case Fromberg versus R, it was found an officer had illegally touched a man whilst conducting what constituted a strip search. And due to this, the man’s conviction on drug possession – which stemmed from illicit drugs found during the search – was overturned.

So, if you have been subjected to police powers, which you believe may have contravened the law, it’s best to consult an experienced criminal lawyer, as they’re likely to be able to assist you in avoiding an unnecessary criminal record, as well as forgo any related penalties.

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