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 practices.
In recent years, the NSW government has passed a number of laws aimed at assisting police to combat organised crime, in particular, bikie gangs. We are currently reviewing laws that:
- require police to provide their name and place of duty when exercising certain powers, such as arrest and search
- give police the ability to restrict the activities of any members of a body that has been declared a ‘criminal organisation’
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.
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
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 are currently preparing our report, which will be provided to the Attorney General, the Minister for Justice and Police and the Commissioner of Police.
The Crimes (Criminal Organisations Control) Act 2012 establishes a statutory framework that enables the Commissioner of Police to apply to the Supreme Court to have an organisation declared to be a ‘criminal organisation’. The Commissioner may then apply to the court to have individual members declared to be ‘controlled members’. Once members are ‘controlled members’, they commit criminal offences if they spend time together or recruit others to the organisation. They are also prohibited from engaging in specified activities, including working in high risk industries.
The Ombudsman was required to keep under scrutiny the exercise of the powers conferred on police under this Act for 4 years after its commencement.
We are currently preparing our report, which will be provided to the Attorney General.
On 1 November 2013, changes to the Restricted Premises Act 1943, intended to help target gun crime and premises used by serious criminals, entered into force. The Supreme Court or District Court can make a declaration under the Act in relation to premises on which proscribed activities take place, including:
- unlawful sale or supply of alcohol or drugs
- ‘reputed criminals’ (such as people convicted of an indictable offence) or their associates attending or managing the premises.
Police previously had powers under the Restricted Premises Act to enter premises to search for alcohol and drugs. These powers were expanded to include searches for firearms, weapons and explosives. Police can apply for a search warrant to search premises if any of the proscribed activities take place there. Once a declaration has been made, police can enter and search the declared premises without a warrant. Since the changes came into effect, a number of suspected bikie clubhouses have been subject to searches for firearms, weapons and explosives under warrant.
Reputed criminal declarations and offences
The amendments created a new category of ‘reputed criminal declaration’, which can be made if ‘reputed criminals’ attend, control or manage the premises. New offences were introduced for premises subject to a reputed criminal declaration. The owner or lessee of such premises commits an offence if a ‘reputed criminal’ attends, controls or manages the premises while the declaration is in force. These offences are punishable by up to 3 years imprisonment and/or a $16,500 fine.
The Ombudsman was required to scrutinise the police use of the additional search powers and new offence provisions until 31 October 2015. We are currently preparing our report, which will be provided to the Attorney General and the Commissioner of Police.
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.
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.