On 9 November 2016, the Law Enforcement Conduct Commission Act 2016 was passed. This creates a new civilian agency, the Law Enforcement Conduct Commission, or LECC, to oversight the NSW Police Force and NSW Crime Commission. It will take over functions currently undertaken by the Police Integrity Commission and the NSW Ombudsman’s Police Division. It will begin operations on 1 July 2017.
Currently we are in a period of transition, transferring our responsibilities to the LECC. It is likely that many of complaints currently open, or that we receive, will be overseen by the LECC and not our office.
On this page we discuss the legislative reviews that we have completed this year into the use of police powers.
Terrorism (Police Powers) Act
In 2017, the Ombudsman completed the fourth review of the NSW Police Force’s use of the preventative detention and covert search warrant powers in the Terrorism (Police Powers) Act 2002. This is the Ombudsman’s last review of the operation of this Act. Those review functions are being transferred to the newly-established Law Enforcement Conduct Commission.
The preventative detention powers in Part 2A of the Terrorism (Police Powers) Act 2002 were used for the first and only time in September 2014. In 2016, police were given new ‘investigative detention powers’ that effectively made the preventative detention powers redundant.
Our report recommends that the preventative detention powers be allowed to expire in December 2018 in accordance with their sunset clause.
Police providing name and place of duty
Police are required to provide their name and place of duty when they exercise certain powers such as arrest and search. This requirement encourages accountability and transparency on the part of the officers and assists members of the public if they wish to complain about a particular officer. Changes to the law introduced in November 2014 mean that, even where an officer fails to provide this information, their use of the power will still be valid in most circumstances.
For the first 12 months after the changes to the law, between November 2014 and 2015, the Ombudsman kept under scrutiny whether police officers still complied with the requirement. This was to ensure that the changes did not have the unintentional purpose of undermining the safeguard.
The report observed that police used powers that required them to give their name and place of duty on 400,000 separate occasions, affecting 266,000 people, in those 12 months. Unfortunately, due to limitations to the data that was available to complete our review, the Ombudsman was unable to assess the impact of the legislative change. However, community consultations revealed broad support for the laws requiring police to provide their name and place of duty when exercising certain powers, and a perception that this does not always happen.
Criminal Organisations Control legislation
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 on Criminal Organisations Control [PDF, 324.1KB]
Restricted Premises Act search powers and offence provisions
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 OMCGs 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 OMCG 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 on Restricted Premises Act [PDF, 614.9 KB]
Police use of Firearms Prohibition Order search powers
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 [PDF, 958.9KB]
The consorting law
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 [PDF, 1.42MB]
Review of police oversight by Mr Andrew Tink
In 2015 the NSW government announced that it will establish a new police oversight body, called the Law Enforcement Conduct Commission, to perform functions currently the responsibility of the Police Integrity Commission and the NSW Ombudsman.
This followed a review by Mr Andrew Tink of police oversight in NSW. The terms of reference for that review were to provide advice to the government about options for a single civilian oversight model for police in NSW.
The government has accepted all the recommendations made by Mr Tink. These included a number of recommendations made in our submission to the review, which can be downloaded to see our recommendations [PDF, 654.16KB]
Police providing name and place of duty
Police officers are required to provide their name and place of duty when they exercise certain powers such as arrest and search. Changes introduced in November 2014 mean that, even where an officer fails to provide this information, their use of the power will still be valid in most circumstances.
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.
On 20 December 2016, the Acting NSW Ombudsman, Professor John McMillan AO, tabled his report on the Operation Prospect investigation.
- The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900
- Review of police use of firearms prohibition order search powers - August 2106
- Review of Crimes (Criminal Organisations Control) Act 2012 - Nov 2016
- Review of Restricted Premises Act 1943 - Oct 2016