Passed November 27 last year, the amended section 99 of the Law Enforcement (Power and Responsibility) Act 2002 gives new legal justifications for arresting without a warrant: to stop a person from fleeing, to inquire about the identity of the person, to obtain property in possession of the person connected to the offence, to preserve the safety and welfare of any person and “because of the nature and seriousness of the offence.”
According to the Government, the new arrest laws work to clarify the law and prevent criminals from escaping conviction and suing police for false imprisonment.
Premier Barry O’Farrell said, “There is evidence criminals were using the lack of clarity around arrest powers as a loophole to escape conviction and in some instances sue police for large payouts.”
However, the amendment will encourage lower quality policing according to Redfern Legal Centre’s (RLC) Police Powers Solicitor, David Porter.
“Poor police work has become lawful”, said Mr Porter, who does not believe the change was necessary. He said that experienced police officers knew how to use existing laws to make necessary arrests – most problems came from inexperienced officers who needed better training. “Instead, what the Government’s doing here is creating a usual scenario where you don’t need that much evidence to arrest someone and so you don’t get into a daily habit of conducting investigation”, he said.
Now community members fear how the expanded powers and alleged potential for lower policing standards will impact on the most vulnerable, who may be unable to access legal aid.
RLC often assists people who have had “traumatic experiences” in police custody. “We regularly deal with people with mental health issues or intellectual disabilities who haven’t been believed that they have a condition”, Mr Porter said. He highlighted young people, Aboriginal people and people with mental health issues –all classified as “vulnerable persons” in the legislation – as those for whom custody is a particularly “bad experience”. “That’s why it has been so traditionally important for hundreds of years to use arrest as a power of last resort”. The increased powers instead “make the default position arrest then investigate”, he said.
With these wider police powers come heightened fears of police abuse. “And whilst the vast majority of police won’t abuse their position, it is well documented that there are those who do”, said Michael Shreenan, Executive Officer of the Factory Community Centre, an organisation that assists public housing tenants. “Often abuse occurs against the most vulnerable members of our community, who are seen as an easy target, have limited access to legal support and may not be in a position to defend themselves against wrongful arrests”. “There is a legitimate fear that the new powers could be used habitually”, he said.
Protection against racism may also suffer according to Ray Jackson, President of the Indigenous Social Justice Association. “The racism that is endemic in the police forces of Australia will only be enhanced by these lazy laws”, he said.
Mr Porter, Mr Shreenan and Mr Jackson all recognised the importance that police are adequately equipped to prevent crime, but said it must be achieved through better training and regular supervision from police commanders over their officers. The new law is “the easy and less costly way out” according to Mr Jackson.
It is now for the courts to construe the legislation, particularly the ground upon which a police officer may arrest without a warrant if the officer is “satisfied that the arrest is reasonably necessary” “because of the nature and seriousness of the offence”. RLC’s Mr Porter believes this basis of arrest is inadequately vague. “What on earth does that mean?” he said. “There’s no guidance given in the legislation”
“There will be argument over what the test actually now means and whether the police officer has become the only judge of what is reasonably necessary. That is in conflict with previous decisions of courts in Australia including the High Court”, Mr Porter said.
