Tinkering with arrest law cause for alarm | Law

Tinkering with arrest law cause for alarm

OpinionDr Vicki Sentas is a lecturer in criminal law and policing at UNSW Law. Nicholas Cowdery AM QC is a Visiting Professorial Fellow at UNSW Law and a former NSW Director of Public Prosecutions.

The NSW government’s hastily introduced legislation to extend police powers of arrest threatens fundamental rights and police effectiveness by introducing sheer confusion.

According to the Premier and the Police Association of NSW, police powers laws introduced after careful consideration in 2002, are cumbersome, unworkable and legal ‘red tape’. ‘Criminals’ are said to be exploiting ‘lack of clarity’ around police powers - not only are charges being dismissed, but police are being sued for wrongful arrest.

It was only three weeks ago that the Premier first announced police concerns. Such an important matter should have been subject to a public review process. Instead, Former Shadow Attorney General Andrew Tink and Former Police Minister Paul Whelan were called in and recommended immediate amendments to the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).   

We do not really know why and we should all be alarmed about a sudden and secret review, by handpicked former politicians, of carefully crafted laws that presently serve to protect rights.

To make matters worse, the proposed laws are ambiguous and confused. Rather than clear up any concerns, they will create new problems.

The law of arrest goes back centuries, hammered out by parliament and the courts to ensure responsible police conduct. One of the most important safeguards in the existing law is that arrest is ‘for the purpose of taking proceedings for an offence against the person’ (s 99, LEPRA). The proposed law has removed this upfront and explicit reference to and limitation upon the purpose of arrest.

The impacts of obscuring the purpose of arrest are important. First, the wording of the proposed law may give police the mistaken impression that they have the power to arrest just to establish a person’s ID or for the purpose of questioning. These collateral purposes may not be parliament’s intention, but the wording of the law will create real confusion for police and more disputes.

Second, a police officer only has to be ‘satisfied that arrest is reasonably necessary’ under the proposed law. Currently, police need to have some objective basis for arresting someone, in addition to the view they personally hold: ‘reasonable grounds to suspect’. These words matter. It should not be enough for a police officer to arrest you just because he or she thinks it is reasonably necessary to do so, even if that view is objectively unreasonable.  This is why the courts find some arrests to have been wrongful when they were objectively unsupportable decisions. The solution to NSW Police being sued is not to change the law to make police decision making unaccountable by any objective standard. The solution may be to ensure that police are better trained.

Arrest is a deprivation of liberty, a significant intrusion on a citizen’s freedom. The process may also involve the use of force and is likely to be humiliating and demeaning. There is a longstanding recognition in the law that arrest can operate as a de facto punishment (before any trial and sentencing process). For these reasons arrest is regarded as and should be a measure of last resort. Police have other options as alternatives to arrest in most cases, including Court Attendance Notices and penalty notices, warnings and cautions. But when it is needed, including in cases of domestic violence, the power to arrest is already there.

Diversionary measures are particularly important for young people and other vulnerable persons. Arrests-gone-wrong impact on many, including those with mental health issues, sometimes fatally.

Recent research demonstrates that arrest continues to be used disproportionately against Indigenous peoples and remains a key factor in over-incarceration. In one of its most important recommendations, the Royal Commission into Aboriginal Deaths in Custody in 1997 insisted that arrest be a measure of last resort as a way of reducing the appalling over-representation of Indigenous peoples in the criminal justice system.

And it does not end here. The rest of LEPRA will be reviewed by the end of this year. The 1997 Wood Royal Commission into police corruption recommended legislation must maintain minimum standards to guide police discretion and protect rights – LEPRA did this in 2002. Before seeking more hasty fixes at the behest of the Police Association, all stakeholders, not just the police, must be consulted – and they should express their views to Messrs Tink and Whelan, even if not consulted. Any legislative reform for the wrong reasons that makes police less accountable, and more confused, would be a mistake. It will harm the police and the communities they serve and hamper the doing of justice.

A version of this opinion piece was published in The Sydney Morning Herald on 4 November 2013.