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Report Details


Committee Name:

Legislation Committee

House:

Legislative Council
Report Type:Report

Title:

Criminal Investigation Amendment Bill 2009
Report No:16
No of Pages:415
Physical Location:Legislative Council Committee Office

Presentation Date:

10/21/2010
Inquiry Name(s):Criminal Investigation Amendment Bill 2009


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Hide details for Executive Summary, Findings and RecommendationsExecutive Summary, Findings and Recommendations

Executive Summary, Findings and Recommendations

Executive Summary

On 26 November 2009, the Legislative Council referred the Criminal Investigation Amendment Bill 2009 (Bill) and the policy of the Bill to the Standing Committee on Legislation (Committee) for inquiry and report by 25 March 2010. Given the controversial nature of the Bill and the large volume of evidence which had been, and was still being, received by the Committee, it was necessary for the Committee to seek two extensions of the reporting deadline, resulting in an ultimate reporting deadline of 21 October 2010.

This inquiry presented the Committee with difficult issues to deliberate. In fulfilling its duties to the Legislative Council, the Committee first considered:

      • how the Bill will change the law in relation to police stop and search powers (refer to Chapter 2 in this Report); and

      • the policy of the Bill and the justifications for it, drawing from, among other things, the experience of the United Kingdom and, to a lesser extent, Victoria, with similar police stop and search powers (refer to Chapter 3 in this Report).

After considering these issues, a majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) could find no justification for the Bill. A minority of the Committee was of the view that there may be circumstances in which the Bill could be justified.

The Committee was of the view that the Bill ought not to proceed in its current form.

Despite the fact that a majority of the Committee was opposed to the Bill and would not support the passing of the Bill in any form, the Committee resolved to address the Bill and discuss and recommend how the Bill could be improved in the event that it proceeds (refer to Chapters 4, 5 and 6 in this Report). This process proved arduous, requiring some Members to put aside their overall opposition to the Bill to focus on its detail. The tension between maintaining personal liberties and expanding police powers to improve public safety is a matter of public importance and interest. The Committee’s comprehensive inquiry into the Bill reflects the significance it assigned to this issue. The Committee hoped that these discussions and recommendations will assist the Legislative Council in its debate of the Bill.


Findings and Recommendations

Findings and Recommendations are grouped as they appear in the text at the page number indicated:

Page 15
    Finding 1: The Committee finds that in Western Australia, there is existing legislation which allows police officers and other public officers to search vehicles without consent, without arrest, without a search warrant and without having formed a reasonable suspicion. However, this sort of power is rare.

Page 15
    Finding 2: The Committee finds that in Western Australia, no current legislation authorises police officers or other public officers to stop and search people in public places without consent, without arrest, without a search warrant and without having formed a reasonable suspicion.

Page 18
    Finding 3: The Committee finds that in Western Australia, the Criminal Investigation Amendment Bill 2009 is not unique in proposing to allow police officers to search vehicles without consent, without arrest, without a search warrant and without having formed a reasonable suspicion. However, this sort of power is rare.

Page 19
    Finding 4: The Committee finds that in Western Australia, the Criminal Investigation Amendment Bill 2009 is unique in proposing to authorise police officers to stop and search people in public places without consent, without arrest, without a search warrant and without having formed a reasonable suspicion.

Page 20
    Finding 5: The Committee finds that, subject to their individual appointing documents, police auxiliary officers will be able to exercise the stop and search powers proposed by the Criminal Investigation Amendment Bill 2009.

Page 32
    Finding 6: The Committee finds that, in an Australian and international context, the Criminal Investigation Amendment Bill 2009 is not unique in proposing to allow police officers to stop and search people and vehicles without consent, arrest, a search warrant or reasonable suspicion. However, this sort of statutory power appears to be rare among common law jurisdictions.

Page 93
    Finding 7: The Committee finds that the concept of reasonable suspicion, which is a prerequisite for almost all police stop and search powers, is readily understood and not difficult to apply.

Page 93
    Finding 8: The Committee finds that proving the reasonableness of the suspicions held by a police officer when exercising police stop and search powers has not been an impediment to a successful prosecution.

Page 158
    Finding 9: The Committee was divided as to whether the Criminal Investigation Amendment Bill 2009 ought to proceed. A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) believes that the bill ought not to proceed because there is no justification for the proposed powers. However, a minority of the Committee finds that the proposed powers would be justified to address certain policing objectives.

Page 158
    Finding 10: The Committee finds that, based on the evidence of the experience of other jurisdictions available to the Committee, there is a legitimate concern that the purported benefits of such wide-ranging powers as those proposed by the Criminal Investigation Amendment Bill 2009 could be outweighed by the disadvantages of such powers. A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) believes that the evidence suggests giving police the power to stop and search without either consent or reasonable suspicion (and in the absence of a requirement for a search warrant or arrest) inevitably results in negative effects on personal liberties.

Page 158
    Finding 11: The Committee finds that the evidence did not conclusively establish that the Criminal Investigation Amendment Bill 2009 would reduce the incidence of the carriage and use of weapons in entertainment areas, which is the policy objective articulated in the Second Reading Speech.

Page 159
    Finding 12: A minority of the Committee finds that the powers contemplated by the Criminal Investigation Amendment Bill 2009 would address circumstances where current police powers may not meet some legitimate security and public safety objectives, as identified by the evidence of the Western Australia Police. However, a majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) found that, if there were objectives other than those relating to the reduction of violence and anti-social behaviour in entertainment areas, they were not articulated in the Second Reading Speech.

Page 159
    Recommendation 1: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be opposed.

Page 159
    Recommendation 2: The Committee recommends that, if the Criminal Investigation Amendment Bill 2009 is to proceed, the bill be amended to:



      (a) limit the circumstances in which the proposed stop and search powers could be used; and


      (b) monitor and control the police use of those powers and guard against their misuse and abuse.

Page 170
    Recommendation 3: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that when an area is prescribed under proposed section 70A(1)(a) of the Criminal Investigation Act 2006, the responsible Minister must reasonably believe that it is necessary to exercise the proposed stop and search powers for the purposes of safeguarding the area or people who are in or may enter the area that is to be prescribed.

Page 170
    Recommendation 4: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that when declaring an area under proposed section 70B(1) of the Criminal Investigation Act 2006, the Commissioner of Police must reasonably believe that it is necessary to exercise the proposed stop and search powers for the purposes of safeguarding the area or people who are in or may enter the area that is to be declared.

Page 170
    Recommendation 5: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended so that the proposed stop and search powers should be available only when all other existing police stop and search powers are insufficient to safeguard the area to be designated or the people who are in or may enter the area to be designated. The question of whether the other powers are sufficient is to be decided by the Minister, in the case of the prescription of an area, or the Commissioner of Police, in the case of the declaration of an area.

Page 170
    Minority Recommendation A: A minority of the Committee (comprised of Hons Dr Sally Talbot and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be amended to prohibit the designation of areas affecting lawful events, protests, rallies or industrial action.

Page 170
    Recommendation 6: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot, and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be amended to exempt homeless shelters, refuges and crisis centres from the application of the proposed stop and search powers.

Page 172
    Recommendation 7: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended to restrict the prescription of an area under proposed section 70A(1)(a) of the Criminal Investigation Act 2006 to an area that is not larger than is reasonably necessary, having regard to the reasons for making the prescription.

Page 178
    Recommendation 8: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require notification that an area has been prescribed under proposed section 70A(1)(a) of the Criminal Investigation Act 2006 to be published in:



      (a) a daily newspaper circulating generally in Western Australia;


      (b) if the prescribed area is outside of the metropolitan area, in the most regular newspaper circulating generally within that area, if such a newspaper exists; and


      (c) other media which may be accessed by children and young people,



    either on the same day as the prescription is gazetted or as soon as is practicable after that.


    The notification is to contain sufficient detail in relation to the prescription relevant to the form of media utilised, ensuring that the public is able to access at least the following details from one central information point:



      (d) A description of the prescribed area.


      (e) A map of the prescribed area.


      (f) The stop and search powers which police officers are authorised to exercise in the prescribed area while the prescription is in force.


      (g) The period of operation of the prescription.



    Notices should be couched in a form, and disseminated in a manner, which makes the information accessible to children and young people.

Page 178
    Recommendation 9: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require reasonable steps to be taken by the Western Australia Police to inform the public and residents in a declared area of the declaration, and its ramifications, as soon as is practicable after the area is declared under proposed section 70B of the Criminal Investigation Act 2006. The steps chosen to inform the public and residents in a declared area should be couched in a form, and disseminated in a manner, which makes the information accessible to children and young people.

Page 181
    Recommendation 10: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that a prescription of an area under proposed section 70A(1)(a) of the Criminal Investigation Act 2006 takes effect seven days after the publication of the regulations effecting the prescription in the Western Australian Government Gazette.

Page 183
    Recommendation 11: A majority of the Committee (including Hon Mia Davies MLC) recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70A(2) of the Criminal Investigation Act 2006 authorises the regulations prescribing an area to be in force in relation to that area for a non-renewable maximum period of one month.

Page 183
    Minority Recommendation B: A minority of the Committee (comprised of Hons Dr Sally Talbot and Alison Xamon MLCs) recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70A(2) of the Criminal Investigation Act 2006 authorises the regulations prescribing an area to be in force in relation to that area for a non-renewable maximum period of 12 hours.

Page 185
    Recommendation 12: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that regulations prescribing an area under proposed section 70A(1)(a) of the Criminal Investigation Act 2006 cannot be gazetted for at least ten days after a previous prescription of the area has ended.

Page 187
    Recommendation 13: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that the word ‘specified’ in proposed section 70A(3) of the Criminal Investigation Act 2006 is replaced by the word ‘prescribed’.

Page 188
    Recommendation 14: A majority of the Committee (including Hon Mia Davies MLC) recommends that the Criminal Investigation Amendment Bill 2009 be amended so that a search of a person pursuant to the proposed stop and search powers is restricted to:



      (a) scanning with electronic or mechanical devices, as provided for in section 63(1)(a) of the Criminal Investigation Act 2006; and


      (b) a more intrusive level of basic search, as defined in sections 63(1)(b), (c) and (d) of the Criminal Investigation Act 2006, only if some object consistent with being a weapon, and for which no satisfactory explanation is provided, is detected upon the person.

Page 188
    Minority Recommendation C: A minority of the Committee (comprised of Hons Dr Sally Talbot and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be amended so that any searches of people conducted pursuant to the proposed stop and search powers are limited to the use of metal detector arches and wands and that any subsequent searches be undertaken only with reasonable suspicion under section 68 of the Criminal Investigation Act 2006.

Page 190
    Recommendation 15: The Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70A(4) of the Criminal Investigation Act 2006 specifies that the searching police officer may search for any thing that the officer reasonably suspects does or may endanger the place or people who are in or may enter it.

Page 194
    Minority Recommendation D: A minority of the Committee (comprised of Hons Dr Sally Talbot and Alison Xamon MLCs) recommends that, if Minority Recommendation C is not adopted by the Government, the Criminal Investigation Amendment Bill 2009 be amended so that it inserts some restrictions and/or precise definitions of:



      (a) what items might be considered ‘relevant to an offence’; and


      (b) what things ‘may endanger a public place or people who are in or may enter it’,





    into the Criminal Investigation Act 2006 for the purposes of proposed section 70A of that Act.

Page 195
    Recommendation 16: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to clarify the meaning of the words ‘Commissioner’, ‘Deputy Commissioner’ and ‘Assistant Commissioner’ and to ensure that the use of terminology is consistent throughout the Criminal Investigation Act 2006.

Page 197
    Recommendation 17: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLCs) recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended to delete proposed section 70B of the Criminal Investigation Act 2006.

Page 199
    Recommendation 18: The Committee recommends that, if Recommendation 17 is not adopted by the Government, the Criminal Investigation Amendment Bill 2009 be amended to require the responsible Minister to table in both Houses of Parliament any declarations made pursuant to proposed section 70B(1) of the Criminal Investigation Act 2006 as soon as is practicable after the declarations are made.

Page 201
    Recommendation 19: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLCs) recommends that, if Recommendation 17 is not adopted by the Government, clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70B(4) of the Criminal Investigation Act 2006 authorises the declaration of an area to be in force in relation to that area for a non-renewable maximum period of 48 hours.

Page 201
    Minority Recommendation E: A minority of the Committee recommends that, if Recommendation 17 is not adopted by the Government, clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70B(4) of the Criminal Investigation Act 2006 authorises the declaration of an area to be in force in relation to that area for a non-renewable maximum period of two weeks.

Page 202
    Recommendation 20: The Committee recommends that, if Recommendation 17 is not adopted by the Government, the Criminal Investigation Amendment Bill 2009 be amended to include restrictions which would prevent the cyclical declaration of areas under proposed section 70B of the Criminal Investigation Act 2006.

Page 204
    Recommendation 21: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLC) recommends that, if Recommendation 17 is not adopted by the Government, clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that the following words are deleted from proposed section 70B(5) of the Criminal Investigation Act 2006:


    but the validity of the declaration is not affected by a failure to comply with this subsection”.

Page 204
    Recommendation 22: The Committee recommends that, if Recommendation 17 is not adopted by the Government, the Criminal Investigation Amendment Bill 2009 be amended to require the Commissioner of Police to publish a written record of the declaration and those matters specified in proposed sections 70B(4)(a), (b) and (c) of the Criminal Investigation Act 2006 in a public notice and other reasonable forms of advertising as soon as is practicable after the declaration is made. The public notice and types of advertising chosen should be couched in a form, and disseminated in a manner, which makes the information accessible to children and young people.

Page 206
    Recommendation 23: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLCs) recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed sections 70B(6) and (7) of the Criminal Investigation Act 2006 are deleted.

Page 206
    Minority Recommendation F: A minority of the Committee recommends that clause 5 of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 70B(6) authorises the Commissioner of Police to delegate his or her power to make a declaration to a Deputy Commissioner of Police.

Page 208
    Recommendation 24: The Committee recommends that clause 6(1) of the Criminal Investigation Amendment Bill 2009 be amended so that proposed section 157(2A) of the Criminal Investigation Act 2006 requires a regular review of the operation and effectiveness of the amendments proposed by clause 5 of the bill at least every one or two years after the commencement of the clause.

Page 208
    Recommendation 25: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to insert a sunset clause.

Page 208
    Recommendation 26: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLCs) recommends that the powers proposed by the Criminal Investigation Amendment Bill 2009 expire after two years.

Page 208
    Minority Recommendation G: A minority of the Committee recommends that the powers proposed by the Criminal Investigation Amendment Bill 2009 expire after five years.

Page 211
    Recommendation 27: The Committee recommends that clause 6 of the Criminal Investigation Amendment Bill 2009 be amended so that the reviews of the operation and effectiveness of the amendments proposed by clause 5 of the bill must be conducted by a person independent of the Government with the following procedures in place:



      (a) The responsible Minister must report the appointment and identity of the reviewer to the Parliament upon the appointment being made.


      (b) The reviewer must report his or her findings to the responsible Minister, who must then table the reviewer’s report in both Houses of Parliament within three months after receiving the report.


      (c) The responsible Minister may table the Government’s response to the reviewer’s report in Parliament.

Page 213
    Recommendation 28: The Committee recommends that, if Recommendation 27 is not adopted by the Government, clause 6(2) of the Criminal Investigation Amendment Bill 2009 be amended so that it will amend section 157(2) of the Criminal Investigation Act 2006 to read as follows:



      The Minister must prepare a report based on each of the reviews under subsections (1) and (2A) and, as soon as is practicable after the each report is prepared, must cause the report to be laid before each House of Parliament.

Page 217
    Recommendation 29: The Committee recommends that an objectives clause specifying the purposes to which the powers proposed by the Criminal Investigation Amendment Bill 2009 are to be put and the range and focus of the police activities to be conducted under the auspices of the bill be inserted into the bill.

Page 217
    Recommendation 30: The Committee recommends that this objectives clause form the basis of the terms of reference of any and all reviews of the operation and effectiveness of the amendments proposed by clause 5 of the Criminal Investigation Amendment Bill 2009.

Page 218
    Recommendation 31: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended so that the reviews of the operation and effectiveness of the amendments proposed by clause 5 of the bill must address the following matters:



      (a) The objectives of the bill.


      (b) The effectiveness of the proposed stop and search powers in achieving policing objectives.


      (c) The impact of the use of the proposed stop and search powers on communities in locations which have been the subject of designation.


      (d) Public perceptions of how the proposed stop and search powers have been used by the police.


      (e) The effect of the use of the proposed stop and search powers on police-community relations.


      (f) A cost/benefit analysis of the proposed stop and search powers.

Page 219
    Recommendation 32: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to expressly state that the proposed stop and search powers cannot be exercised by police auxiliary officers.

Page 222
    Recommendation 33: The Committee recommends that, wherever practicable, the Criminal Investigation Amendment Bill 2009 be amended to prescribe or adopt, or authorise subsidiary legislation to prescribe or adopt, the rules governing the exercise of the proposed stop and search powers.

Page 227
    Recommendation 34: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require a police officer who stops a person for the purposes of searching him or her under the proposed stop and search powers to issue the person with a search notice.

Page 228
    Recommendation 35: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to prescribe, or authorise subsidiary legislation to prescribe, the form of the search notice. The search notice must:


    (a) be written in an appropriate range of languages;


    (b) be presented in a culturally appropriate way; and


    (c) contain the following information:


          (i) The fact that the person has entered a public place in a prescribed or declared area.


          (ii) The fact that a prescription or declaration is in force.


          (iii) The police officer’s powers of stop and search without arrest, a search warrant, reasonable suspicion or consent.


          (iv) The person’s rights (for example, to complain about inappropriate behaviour or procedure) and obligations (including that it is an offence to hinder or obstruct a stop and search) during the stop and search.


          (v) The person’s entitlement to obtain a written record of the search.


          (vi) A point of contact for complaints.


          (vii) That the search is being supervised by a senior police officer.

Page 235
    Recommendation 36: A majority of the Committee (comprised of Hons Mia Davies, Dr Sally Talbot and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be amended so that it does not apply to people under the age of 18 years.

Page 236
    Recommendation 37: The Committee recommends that, if the Criminal Investigation Amendment Bill 2009 remains applicable to children and young people, it be amended to insert a minimum level of protection for children and young people who are subjected to a stop and search under the proposed powers.

Page 236
    Recommendation 38: The Committee recommends that the Government ensure that instructions to police officers relating to stop and search procedures should reflect the particular sensitivities of children and young people to physical searches.

Page 239
    Recommendation 39: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to provide protection for mentally disabled people.

Page 241
    Minority Recommendation H: A minority of the Committee (comprised of Hons Dr Sally Talbot and Alison Xamon MLCs) recommends that the Criminal Investigation Amendment Bill 2009 be amended to provide protection for people with cultural dress requirements.

Page 252
    Recommendation 40: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require police officers to record the following information in writing when exercising the proposed stop and search powers:



      (a) For the scanning of people with electronic or mechanical devices: the date, time, place, registered number and identity of the police officers involved.


      (b) For more intrusive searches of people: the date, time, place, registered number and identity of the police officers involved, the person’s apparent gender, ethnicity and age, the basis for selecting the person searched, the reason for the search, if any, the result of the search and what, if anything, was found.


      (c) For vehicle searches: the date, time, place, registered number and identity of the police officers involved.

Page 252
    Recommendation 41: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require a police officer exercising the proposed stop and search powers, by conducting a search of a person that is more intrusive than a scan with an electronic or mechanical device, to provide, in writing, his or her name and registered number, the date, time and place of the search, and other relevant information.

Page 252
    Recommendation 42: The Committee recommends that the Western Australia Police establish an adequate record keeping regime before the stop and search powers proposed by the Criminal Investigation Amendment Bill 2009 are used.

Page 253
    Recommendation 43: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to require a senior police officer, as it is defined in the Criminal Investigation Act 2006, to supervise any use of the proposed stop and search powers.

Page 254
    Recommendation 44: The Committee recommends that, before the Criminal Investigation Amendment Bill 2009 is passed, the Government:



      (a) undertake a cost/benefit analysis of the implementation of the Bill and its prospective operation over a two-year period; and


      (b) table the results of this analysis in Parliament.

Page 256
    Recommendation 45: The Committee recommends that, if Recommendation 24 is not adopted by the Government, the Criminal Investigation Amendment Bill 2009 be amended to require the Commissioner of Police to reveal, in the Western Australia Police’s annual reports, the data collected in the course of any use of the proposed stop and search powers over the 12 months preceding each report.

Page 258
    Recommendation 46: The Committee recommends that the Criminal Investigation Amendment Bill 2009 be amended to empower the responsible Minister to revoke the designation of an area, whether the designation occurred by way of regulation or declaration, by publishing a notice of revocation in the Western Australian Government Gazette. The notice is to take effect on and from the date of publication.