By Fleur Beaupert
Independent systems and practices reviews can provide governments with objective evaluations of the effectiveness of new law and policy regimes and whether they have been implemented in a reasonable, lawful and rights-respecting manner. I was part of the NSW Ombudsman team responsible for reviewing 2013 reforms to the NSW Restricted Premises Act 1943, part of a package intended to enhance the tools at police officers’ disposal to combat gun crime and target premises ‘routinely used by serious criminals’. The final report, which can be accessed here, was tabled in Parliament on 4 November.
Recent concerns about gun crime and organised crime have led to numerous criminal justice reforms across Australia, some of which significantly encroach on rights and freedoms we would ordinarily expect to enjoy. New measures include criminal organisations legislation (which has to date been largely unworkable), offences relating to participation in criminal groups, revamped consorting offences (making it an offence to associate with people convicted of a crime) and more stringent regulation of the tattoo, combat sports and motor dealer and repair industries.
The Restricted Premises Act was introduced during the Second World War to prevent members of the armed forces from disclosing state secrets to spies in ‘sly grog houses’ and ‘undesirable night clubs’, allowing for these places to be declared ‘disorderly houses’. The Act lay dormant for decades, but since 2012 the NSW Police Force has been using it to raid and close down suspected OMCG clubhouses.
Police can apply for search warrants and court declarations attaching to premises where proscribed activities take place, including the unlawful supply of alcohol – often suspected of taking place at OMCG clubhouses. Declarations trigger intrusive search without warrant powers and offences that can be committed by owners and occupiers. The 2013 reforms gave police additional powers to search for firearms. They created a new type of declaration and associated offences punishable by up to 3 years imprisonment, based solely on ‘reputed criminals’ attending premises.
A ‘reputed criminal’ includes a person convicted of an indictable offence, a category ranging from shoplifting and minor property damage to murder. ‘Reputed criminal’ declarations and comparable mechanisms such as consorting offences are controversial because they involve criminalisation and coercive regulation of harmless behaviour, such as meeting with a person or going to a particular place, on the basis that someone involved is an offender. The idea is that police will exercise their discretion in using these laws to target people suspected of involvement in criminal activity.
The NSW Ombudsman reported that the ‘reputed criminal’ declaration provisions and associated offences and powers were not used at all. Although the powers to search premises for firearms under warrant were exercise seven times, it was found that those searches could have been conducted using existing powers. Accordingly, the Ombudsman was not able to conclude that the amendments had enhanced the ability of police to disrupt OMCGs or detect firearms. The Ombudsman recommended a further independent review be conducted in the event that a declaration is actually obtained.
It was also found that police may not have had a firm legal basis for seizing particular items from premises. Police stripped the premises of their entire contents, removing bars, stages and sound and lighting systems. Before police commenced searching the premises, they obtained the identity details of all people present, photographed them and detained and searched them. Video footage of one search showed some individuals were made to lie on the ground with their hands behind their head for a prolonged period, up to an hour and a half in some cases. The Ombudsman found that police may not have legal authority to undertake these processes as a matter of course and formed the view that they lack adequate powers to manage risks associated with potentially dangerous operations conducted under the Act. The report recommended a number of changes to improve the operation of the regime, including additional police powers to ensure that police can conduct premises searches in a safe, effective and reasonable fashion and a number of rights-protection measures.
Police have a broad discretion as to how they use the Restricted Premises Act. The Act has only been used by Strike Force Raptor, within the Gangs Squad, in a targeted way against suspected OMCG clubhouses. Police have not, for example, executed search warrants at ordinary residential properties, which is in theory possible. This usage appears consistent with Parliament’s intention given ongoing concerns, based on Australian Crime Commission assessments, about OMCG involvement in serious organised crime. Yet some of the grounds on which police can obtain search warrants and declarations, in particular ‘reputed criminals’ attending premises, are far removed from serious criminal activity.
The recent wave of criminal justice reforms aimed at more effectively combating gun crime and organised crime raise pressing questions when thinking about what sort of criminal justice system we want. Should a person’s status as an offender be a sufficient basis for criminal liability or the exercise of police powers? To what extent should we rely on criminal laws themselves, as opposed to police discretion, to protect our rights and freedoms? Are our systems of governance and oversight adequate to rectify not only present day misuse of laws but also future use of rights-disrespecting laws in ways not originally anticipated?
The Queensland Government’s proposed reworking of its impugned anti-bikie laws in the Serious and Organised Crime Legislation Amendment Bill 2016 includes provisions substantially replicating the Restricted Premises Act regime. And it goes even further. Police typically have powers to search a person without a warrant in limited circumstances, for example if they reasonably suspect they have an item used (or to be used) in the commission of an offence. The proposed Queensland reforms uniquely include as justification for conducting person searches without a warrant that “the person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.” If adopted, these powers would widen the net of social control in an unprecedented way. The ever-looming question: How far is too far?