LAWS1014 Lecture Notes - Lecture 7: Police Integrity Commission, Royal Commission Into The New South Wales Police Service, Victoria Police
16 May 2018
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WEEK 7: POLICE POWERS AND DISCRETION
7.1 DISCRETION AND THE ‘CONSTRUCTION OF THE SUSPECT POPULATION’
“A police service which cannot act due to lack of discretionary powers is near useless; a police
service whose acts are free from check or oversight is likely to be dangerous”
Gareth Griffith, Police Powers in NSW:
Background to the Law Enforcement (Power and Responsibilities) Bill 2001, Briefing Paper No
11/2001
Legislation granting police powers “seeks to reconcile in a balanced manner the conflicting interests
involved in ensuring efficacy of police investigations...and respecting the rights of citizens.”
7.1.1 RACIAL PROFILING ISSUES
Spigelman CJ in Rondo (2001) 126 A Crim R 562 (NSWCCA)
Haile-Michael & Ors v Konstantinidis (No 2) [2012] FCA 167
Facts:
• Claim brought on behalf of 17 African-Australian males for discrimination by Victoria Police
officers. They alleged racial discrimination against them by stopping and questioning them based on
race rather than legitimate policing reasons.
Expert evidence:
• Professor Chris Cunneen said that racial profiling is the adverse use of discretion in police
decision-making based on assumptions concerning the racial characteristics of individuals.
• It involves police making decisions to initiate contact with individuals on the basis of their
race or ethnicity.
• Analysis of Victoria Police statistics found a statistically significant difference between stop
and searches being done on young African-American men than other races or ethnicities.
The searches were also less productive.
7.1.2 IS DISCRETION NECESSARILY BAD?
1. The construction of the suspect population: ‘The suspect population is constructed on the
basis of a complex interaction of rules and principles. But they are police rather than legal
rules and principles. They are not illegal, but simply arise from the discretion, which the
police enjoy. The police do not have to stop and search an individual but they may do so; they
do not have to arrest individuals but they may do so; and so on The Case for Prosecution M
McConville et al
2. Police corruption:
a. The Wood Royal Commission found that turning a blind eye to certain criminal
activities in exchange for bribes and other kickbacks was part of an ‘entrenched,
routinsed part of the police and criminal culture’.
b. Police Integrity Commission established as a response to corrupt behaviour. PIC
deals with corruption and serious police misconduct.
3. Necessity for discretion:
a. Complexity of the real world: impossible to design mechanical rules.
b. Legislative burden: delegation to decision-makers
c. Limited resources: discretion is less technical
Need to balance the right amount of discretion.
7.2 CONSENT AS A SOURCE OF POLICE POWER
If a person consents to a police request (e.g. assistance with police inquiries, provide bag for search,
provide identification), police rely on a person’s consent for their authority to act not on a statutory
power, and thus the requirements imposed on the use of that power and the limitations on power do
not apply.
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1. Has the person consented?
a. Yes, then no issue of police power arises.
b. No, continue.
2. If no consent.
a. Which power are the police invoking
b. Has the police complied with the law relating to that power.
7.3 DISCLOSURE OF IDENTITY
Section 11 LEPRA 2002 Identity may be required to be disclosed
. (1) A police officer may request a person whose identity is unknown to the officer to disclose
his or her identity if the officer suspects on reasonable grounds that the person may be able to
assist in the investigation of an alleged indictable offence because the person was at or near
the place where the alleged indictable offence occurred, whether before, when, or soon after it
occurred.
. (2) A police officer may request a person whose identity is unknown to the officer to disclose
his or her identity if the officer proposes to give a direction to the person in accordance with
Part 14 for the person to leave a place.
Section 12 LEPRA 2002 Failure to disclose identityA person who is requested by a police officer
in accordance with section 11 to disclose his identity must not, without
reasonable excuse, fail or refuse to comply with the request.
7.4 SEARCH POWERS S 21, S36
7.4.1 RANGE OF SEARCH POWERS UNDER LEPRA 2002
(NSW)
LEPRA 2002 Section 21 Power to search persons and seize and detain things without warrant
. (1) A police officer may, without a warrant, stop, search and detain a person, and anything in
the possession of or under the control of the person, if the police officer suspects on
reasonable grounds that any of the following circumstances exists:
. (a) the person has in his or her possession or under his or her control anything stolen
or otherwise unlawfully obtained,
. (b) the person has in his or her possession or under his or her control anything used
or intended to be used in or in connection with the commission of a relevant offence,
. (c) the person has in his or her possession or under his or her control in a public
place a dangerous article that is being or was used in or in connection with the
commission of a relevant offence,
. (d) the person has in his or her possession or under his or her control, in
contravention of the Drug Misuse and Trafficking Act 1985 , a prohibited plant or a
prohibited drug.
. (2) A police officer may seize and detain:
. (a) all or part of a thing that the police officer suspects on reasonable grounds is
stolen or otherwise unlawfully obtained, and
. (b) all or part of a thing that the police officer suspects on reasonable grounds may
provide evidence of the commission of a relevant offence, and
. (c) any dangerous article, and
. (d) any prohibited plant or prohibited drug in the possession or under the control of a
person in contravention of the Drug Misuse and Trafficking Act 1985, found as a
result of a search under this section.
Section 30 LEPRA 2002 Frisk searches and ordinary searches
. (1) A police officer or other person who is authorised to search a person may carry out a frisk
search or an ordinary search of the person for any purpose for which the search may be
conducted.
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. (2) In conducting a frisk search, a police officer or other person may, if the police officer or
other person has asked the person to remove a coat or jacket, treat the person’s outer clothing
as being the person’s outer clothes after the coat or jacket has been removed.
Section 36 LEPRA 2002 Power to search vehicles and seize things without warrant
. (1) A police officer may, without a warrant, stop, search and detain a vehicle if the police
officer suspects on reasonable grounds that any of the following circumstances exists:
. (a) the vehicle contains, or a person in the vehicle has in his or her possession or
under his or her control, anything stolen or otherwise unlawfully obtained,
. (b) the vehicle is being, or was, or may have been, used in or in connection with the
commission of a relevant offence,
. (c) the vehicle contains anything used or intended to be used in or in connection with
the commission of a relevant offence,
. (d) the vehicle is in a public place or school and contains a dangerous article that is
being, or was, or may have been, used in or in connection with the commission of a
relevant offence,
. (e) the vehicle contains, or a person in the vehicle has in his or her possession or
under his or her control, a prohibited plant or prohibited drug in contravention of the
Drug Misuse and Trafficking Act 1985 ,
. (f) circumstances exist on or in the vicinity of a public place or school that are likely
to give rise to a serious risk to public safety and that the exercise of the powers may
lessen the risk.
. (2) A police officer may, without a warrant, stop, search and detain a class of vehicles on a
road, road related area or other public place or school if the police officer suspects on
reasonable grounds that any of the following circumstances exist:
. (a) a vehicle of the specified class of vehicles is being, or was, or may have been,
used in or in connection with the commission of an indictable offence and the
exercise of the powers may provide evidence of the commission of the offence,
. (b) circumstances exist on or in the vicinity of a public place or school that are likely
to give rise to a serious risk to public safety and that the exercise of the powers may
lessen the risk.
. (3) A police officer may seize and detain:
. (a) all or part of a thing that the police officer suspects on reasonable grounds is
stolen or otherwise unlawfully obtained, and
. (b) all or part of a thing that the police officer suspects on reasonable grounds may
provide evidence of the commission of a relevant offence, and
. (c) any dangerous article, and
. (d) any prohibited plant or prohibited drug in the possession or under the control of a
person in contravention of the Drug Misuse and Trafficking Act 1985, found as a
result of a search under this section.
7.4.2 WHAT IS ‘REASONABLE SUSPICION?’
Principles from R v Rondo (2001) per Smart AJ
. (a) Reasonable suspicious is less than a reasonable belief but more than a possibility.
. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be
shown. A suspicion may be based on hearsay or inadmissible evidence. But the material must
be probative.
. (c) Need focus on the information available to the police at the time the power was exercised.
Did that afford reasonable grounds for the suspicion? Have regard to the source of the
information and its content. Seen in light of the whole of the surrounding circumstances.
R v Rondo [2001] NSWCCA 540
Facts:
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