One of our roles is to review new laws that give police new powers or create new criminal offences, to evaluate how police implement these laws in practice, and suggest improvements to the law and police policies and procedures.
In 2016 we completed a number of reviews of laws aimed at assisting police to combat organised crime, in particular bikie gangs.
In November 2016, the Ombudsman completed a review of powers given to police under the Crimes (Criminal Organisations Control) Act 2012. Under the Act, the Supreme Court can declare that an organisation is a ‘criminal organisation’ and make control orders which can prevent members from associating with each other, recruiting others to the organisation, and to stop them from participating in certain activities, including working in high risk industries.
Our report found that no organisation has been declared to be a criminal organisation under the scheme. We conclude that police found the scheme too cumbersome and resource-intensive to use and preferred using the alternative powers available to them to disrupt criminal organisations. Our report therefore recommends that the Act should be repealed.
Download our report.
In 2016 we provided our report of the review of the operation of the consorting provisions to the Attorney General and the Commissioner of Police, and it was tabled in Parliament by the Attorney General.
The new consorting law makes it a criminal offence for a person to continue to associate or communicate with at least two people who have previously been convicted of an indictable offence, after receiving an official police warning. It aims to prevent crime by disrupting or deterring associations that may lead to the building or continuation of criminal networks.
The breadth of the new consorting law means that the main constraint on its application is the exercise of discretion by police officers. Police have significant discretion in deciding who they will warn, who will be warned about, and whether to bring charges. There is no legal requirement for the associations targeted by police for consorting to have any link to planning or undertaking criminal activity.
Our report outlines use of the consorting law in relation to members of criminal gangs, but also in relation to people experiencing homelessness, children and young people, and people with no criminal record. In some areas the proportion of use in relation to Aboriginal people was very high.
Our report recommends the adoption of a statutory and policy framework to ensure police apply the consorting law in a way that is focused on serious crime, closely linked to crime prevention, and is not used in relation to minor offending.
Download our consorting report
In 2016, the Ombudsman completed a review of amendments made to the Restricted Premises Act to help target gun crime and premises used by serious criminals. The amendments introduced offences that can be committed by owners and occupiers of declared premises and powers to search for firearms on declared premises without a warrant.
A court can make a declaration under the Act in relation to certain premises where prohibited activities take place. Police can search these premises under a warrant, and declared premises at any time without a warrant. Police previously had the power to search for alcohol and drugs. After the amendments, they can also search for firearms, weapons and explosives.
Our report found that the amendments have not enhanced police’s ability to disrupt outlaw motorcycle gangs or detect firearms. Police did not obtain any restricted premises declarations, conduct searches without warrant or lay charges for any of the new offences during the review period.
Our report also found that police did obtain warrants under the new provisions of the Act to search seven suspected outlaw motorcycle gang clubhouses, however those searches could have been done under the old provisions. Our report outlines concerns about the way in which the seven searches were executed.
Our report recommends amendments to the legislation to provide police with specific powers to manage the risks associated with potentially dangerous premise searches and also proposes that police clarify their powers to seize certain items.
Download our report.
Police officers have been required to provide their name and place of duty when exercising certain powers, such as arrest and search, since 2002. This requirement was introduced to encourage accountability and transparency on the part of the officers and assist members of the public if they wished to complain about a particular officer.
In November 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 was changed so that, while an officer is still required to provide their name and place of duty, if they do not, the search or other relevant power that they have used will still be valid in most circumstances. Previously, if an officer failed to provide this information, it was possible for a court to find the use of the relevant power was invalid. One of the reasons for this change was to allow for situations where an officer may not be able to provide this information due to, for example, volatile circumstances at the time that they are using the power.
The Ombudsman was required to keep under scrutiny whether police officers are still complying with the requirement to provide their name and place of duty, for the first 12 months after the introduction of these changes.
We have provided our report to the Attorney General, the Minister for Justice and Police and the Commissioner of Police. The Attorney General will table the report in Parliament.
In 2016, the Ombudsman completed a review of the operation of new search powers, which enable police to search a person subject to a firearms prohibition order (FPO) whenever reasonably required.
Our report found that there were approximately 1,500 interactions where police used the powers to conduct searches. In those interactions police conducted over 2,500 separate searches. Police found firearms, ammunition and firearm parts in 2% of the interactions. In the two years, they seized 35 firearms, 26 lots of ammunition and 9 firearm parts.
In total, 400 people subject to an FPO were searched. We also found that police searched over 200 people who were not subject to an order. Police conducted these searches on what appears to be an erroneous application of the FPO search powers and the searches may have been unlawful.
Our report also found a lack of clarity in police understanding of the circumstances in which they are authorised to search an FPO subject. The law permits an FPO search only when ‘reasonably required’ to determine if an FPO offence has been committed. It is not a roving search power to be used randomly on FPO subjects.
Our report recommends changes to legislation and internal procedures and practices that guide the way police use the FPO search powers. Other measures are also proposed to ensure that police use FPO search powers fairly and reasonably, including that FPOs should automatically expire after five years.
Download our FPO search powers report.
Completed legislative reviews
Since 1998, we have reported our findings and recommendations to Parliament in over 20 legislative reviews. They have related to a range of topics including:
- the offence of continuing to be intoxicated and disorderly in public
- the power to collect DNA samples from suspects
- the ability to search people in public places for knives
- the use of sniffer dogs to search people in public places for drugs, firearms or explosives
- giving people on-the-spot fines for certain criminal offences
- holding people suspected of involvement in terrorist-related activities in preventative detention
- emergency powers during riots to blocks roads and search people and cars
- Review of Criminal Organisations Control legislation - November 2016
- Review of the Restricted Premises Act - October 2016.
The reports of our completed legislative reviews can be accessed on our publications page. We keep track of the implementation of the recommendations we have made and provide updated information in our annual report.