JSB284 Lecture Notes - Week 3.docx

JSB284 Lecture Three Notes Police Powers and Duties Why do we have explicitly stated police powers and responsibilities?  To restrain the application of police powers  To ensure police and citizens are on the same page  To protect the interests and rights of citizens Common law origins  Police powers exist in common law (origin is the Oath of Office) Oath of Office The Oath (or affirmation, where religious references are removed) reads as follows: “I, A.B., *swear by almighty God+/*do solemnly, sincerely and truly affirm and declare] that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second and Her Heirs and Successors according to law in the office of constable or in such other capacity as I may be hereafter appointed, promoted, or may be reduced, without favour or affection, malice or ill-will, from this date and until I am legally discharged; that I will cause Her Majesty’s peace to be kept and preserved; that I will prevent to the best of my power all offences against the same; and that while I shall continue to be a member of the Queensland Police Service I will to the best of my skill and knowledge discharge all the duties legally imposed upon me faithfully and according to law. *So help me God.+”. Note: Sections in brackets differ according to whether the officer takes the oath or affirmation Move towards codification Why?  Powers are clearer to police  Defined in law, thus not subject to as much change (though still interpreted in common law)  Powers are clearer to citizens Human Rights in Australia  Australia does not have a bill of rights o Therefore lack of affirmed rights (even those enshrined in Acts of Parliament can be taken away at the whim of the legislative arm).  Obligations under International Law and Australian Acts of Parliament o International Covenant on Civil and Political Rights (ICCPR) o International Covenant on Economic, Social and Cultural Rights (ICESCR) o International Convention on the Elimination of all Forms of Discrimination o Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment o Convention on the Rights of the Child o Convention on the Rights of Persons with Disabilities Basic Rights in Queensland  Legislative Standards Act 1992 outlines basic rights that must be upheld in new Acts of Parliament o The fundamental principles must be upheld o New legislation must be consistent with principles of natural justice, must allow delegation of administrative power in appropriate cases only, must not reverse the onus of proof without adequate justification, must confer power to enter premises or search and seize only with a warrant issues by Judge or other judicial officer, must provide appropriate protection against self- incrimination, must not adversely affect the rights and liberties or impose obligations retrospectively (and so on…).  Any positive affirmation of police powers and duties in Queensland is guided by such principles. Police Powers – Interaction with Human Rights Agenda  Any assertion of police powers must respect human rights  Police activities must respect and uphold those rights afforded to Australians under the International Bill of Rights (and other covenants) and under Australian Acts of Parliament. Codification of Police Powers in Australia Key sources of legislation power for police are (by state):  Queensland – Police Powers and Responsibilities Act 2000  New South Wales – Law Enforcement (Powers and Responsibilities) Act 2003  Victoria – Police Regulations Act 1958  Tasmania – Police Services Act 2003  South Australia – Police Act 1988  Western Australia – Police Act 1892  Northern Territory – Police Administration Act Codification of Police Powers in Queensland  Originally existed across various Acts of Parliament  In fact, there were approximately 90 relevant statutes  Problems with this were that both police and citizens were unsure of the police powers.  The Fitzgerald Inquiry recommended a review of police powers in Queensland  The Criminal Justice Commission (now CMC) undertook this review and released a series of reports. The CJC described the situation as follows: “Such an ad hoc approach had resulted in a lack of uniformity and the creation of anomalies across the various Acts. Further, it has led tothe undesirable situation where it is not possible for either the police or the public to know the extent of police powers and how and when they may be exercised” (Criminal Justice Commission, 1993, xix) Police Powers and Responsibilities Act 2000 (Qld)  Originally introduced in 1997  Subsequently updated in 2000  Supported by Police Powers and Responsibilities Regulations 2000  The majority of police powers are contained within this Act, however some powers are still contained within other acts, such as: o Bail Act 1980 o Juvenile Justice Act 1992 o Transport Operations (Road Use Management) Act 1995 (TORUMS) Chapter 2 – General Enforcement Powers  Entry; inquiries; inspection; searches (with/without warrant); roadblocks; drug detection dogs; require name, address or age; move-on directions; breaches of the peace, riots and prevention of offences. Chapter 3 – Vehicles and Traffic  Inquiry into road use contraventions; require information about identity of driver/s; power of entry; regulating vehicular and pedestrian traffic; stopping vehicles; requiring vehicles to be moved; inspect vehicles; prohibit use of vehicles; prohibit person/s driving. Chapter 4 – Motor vehicle impoundments and noise direction offences  Impounding motor vehicles (including powers and duties after impounding); notice requirements for impounding vehicles; obtaining impounding orders; impounding order application provisions; obtaining forfeiture orders; child drivers; liability for impoundment costs; release of impounded vehicles; sale, transfer or disposal of impounded or forfeited motor vehicle. Chapter 5 – Removal powers for vehicles or loads or things on roads  Power to seize or remove; towing authority. Chapter 6 – Powers relating to animals  Stopping animals for prescribed purposes; removal of animals; animal welfare directions; power to destroy animal; power to provide relief to animals. Chapter 7 – Search warrants, obtaining documents, accessing registered digital photos and other information and crime scenes  Search places with warrant; search place to prevent loss of evidence; establish crime scene; crime scene warrants; powers at crime scenes; production notices and orders; accessing registered digital photos and other information; seize evidence and abandoned/illegally placed property. Chapter 8 – Monitoring and suspension orders  Monitoring orders (financial institutions obliged to provide information on accounts); suspension orders (similar). Chapter 9 – Covert searches  Covert searches in relation to terrorist act; warrant applications; powers under covert search warrant; report on covert search. Chapter 10 – Controlled activities  Meeting with persons while concealing true meaning of communications (under cover operations); engaging in criminal operations for which the police officer would normally be criminally responsible. Chapter 11 – Controlled operations  Authorisation of controlled operations; procedure for authorising controlled operations; effect of authority; conduct of controlled operations; compensation and notification to third parties; compliance and monitoring; information restrictions; reporting and record keeping; inspections; evidentiary provisions. Chapter 12 – Assumed identities  Authorities for assumed identities; evidence of assumed identities; creation of birth certificates for assumed identities; protections and indemnities; misuse of assumed identity and information. Chapter 13 – Surveillance device warrants  Applications for surveillance device warrants; retrieval warrants; emergency authorisations; compliance and monitoring; reporting and record keeping; inspections. Chapter 14 – Arrest and custody powers  Arrest with