BACKGROUND INFO

Criminal Investigation Amendment Bill 2009

1. What is the Government’s rationale for introducing the Bill?

This Bill seeks to amend the Criminal Investigation Amendment Act 2006 ( the “CIA 2006”) to expand police search powers, and is a response to the “increasing concern from the government, police and the community in relation for the proliferation of weapons and increasing number of incidences of violence and antisocial behaviour in entertainment precincts”.[1]

As the Act currently stands, police may stop and search a person or vehicle in a prescribed or declared area (CIA 2006, s 69). Should the police find any weapons, drugs or items that are relevant to an offence that they reasonably suspect may endanger property or people, they have the power to confiscate the item. However, such a search can only take place with the person’s consent. Should consent be refused, the actions the police can take are limited to refusing the person entry to the area in question.

2. A closer look at the proposed changes

Per sections 4 and 5 of the Bill, s 69 (‘People and vehicles in public places, search of for security purposes’) of the CIA 2006 will be deleted, and replaced with sections 70A (‘People and vehicles in public places in certain areas, additional areas to search’) and 70B (‘Commissioner may make declarations’).

70A. People and vehicles in public places in certain areas, additional powers to search

It is a more logical progression to first examine sub-sections s 70A(4) – (7), which set out the extended powers that police will have, should the Bill be passed.

Powers prescribed

Per s 70A(4)(a)-(b), a police officer is permitted to do a basic search of a person, or if that person is in a vehicle, they may search the vehicle. A basic search is defined under s 63 of the CIA 2006 to include scanning with electronic or mechanical devices (both hand-held and not), removing the person’s headwear, gloves, footwear or outer clothing and frisk-searching. Under s 70A(c)-(d), a police officer may seize any items that can be reasonably suspected to pose a danger to property or people, or items that fall under s 146 of the CIA 2006 as an item that is relevant to an offence (e.g. stolen property).

Section 70(5) of the Bill gives police officers the power to stop and enter vehicles, for the purpose of searching vehicles under s 70(4)(b). Should an item be seized, s 70(6) stipulates that it must be returned to the person as soon as practicable after he/she leaves the prescribed area, unless it is an item that may be lawfully seized and retained under another provision. Should the item be made available but is uncollected by the owner, s 70(7) holds that the Criminal and Found Property Disposal Act 2006 applies.

Jurisdiction in which the powers may be used

Sub-section (1) sets out that the powers under s 70 can only be exercised by a police officer if they are either in:

a)   a ‘prescribed area’, or

b)   if the area is covered by a declaration made under s 70B(1).

The definition of a ‘prescribed area’ is not expressly set out, but it is insinuated under s 70A(2) that a regulation must be made designating the particular area as ‘prescribed’. Section 70A(c) stipulates that regulations that ‘prescribe’ an area must not be in force for more than 12 months.

Section 70A(3) decrees that any regulations that ‘prescribe’ an area apply at all times, unless specific application times have been set out in the particular regulation.

70B. Commissioner may make declarations

Under s 70B(1), with the approval of the Minister for Police, the Police Commissioner may declare certain public areas so that police may exercise the new search powers. Private residences that are within the prescribed or declared areas will therefore be exempt from the new search powers. Searches of private residences will still be subject to the normal search warrant provisions.

Sections 70B(3)-(7) stipulate the conditions for any declarations the Police Commissioner mar make:

• The Commissioner must not declare an area larger than is reasonably necessary (s 70B(3)).
• A written record must be made of the declaration, as well as the area is applies to, the date and time it was created, the period of time it will be in force (must not be more than 2 months) and the reasons for making the declaration (s 70B(4)).
• The Commissioner must publish the written record of the declaration in the Gazette as soon as practicable (s 70B(6))
• The Commissioner may delegate the power to make a declaration to a Deputy or an Assistant Commissioner. This delegation must be made in writing (s 70B(6)), and that Deputy or Assistant Commissioner cannot make a second delegation to another person (s 70B(7)).

Amending section 157 – Review of the Act

Section 6 of the Bill seeks to insert sub-section (2A) into section 157(1), which stipulates that the Minister for Police must carry out a review of the operation and effectiveness of sections 70A and 70B, five years after the enactment of the Bill.

3. Response to the proposed changes

The West Australian Poll

The West Australian Website conducted a poll on 12 October 2009, that asked ‘Do you agree with the State Government’s plans to give police unprecedented stop and search powers?’. The poll received a response from 985 people, with 51% of voters rejecting the proposed powers.[2]

Labor

ABC News has reported that Opposition Leader, Eric Ripper, supports the plan, with Mr. Ripper quoted as saying, “We already put the proposition on the table in November last year…The Government refused to support our legislation and now they’ve come up with their own announcement.” [3]

Australian Lawyers Alliance (“ALA”)

The ALA has raised concerns that the new police powers will erode civil rights. On this issue of civil liberties, in a joint media statement with the Minister for Police, released on 11 October, Colin Barnett has stated, “There will be cries of infringement of civil liberties but we make no apologies if we give law abiding people, families and young women the freedom to go to places without fear for their safety.”

Tom Percy from the ALA, has also claimed that certain people will be unfairly targeted, with the persecution of individuals who are known to the police.[4]

[1] R. Johnson, Minister for Police, Legislative Assembly, 14 October 2009, 12:32 pm, Criminal Investigation Amendment Bill 2009, Second reading.

[2] http://au.news.yahoo.com/thewest/a/-/wa/6208287/wa-divided-over-police-search-law/

[3] ‘Police powers erode civil rights’, ABC News Website, Monday 12 October 2009,http://www.abc.net.au/news/stories/2009/10/12/2711152.htm

[4] ‘Police powers erode civil rights’, ABC News Website, Monday 12 October 2009,http://www.abc.net.au/news/stories/2009/10/12/2711152.htm