Law Enforcement and Other Legislation Amendment Bill 2007

Consideration of the Legislative Assembly's amendment.

Page 4, Schedule 1.1 [4] (proposed section 87N (2)), lines 21 and 22. Omit "Superintendent or from a police officer who holds the position of Local Area Commander". Insert instead "Inspector".

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [8.45 p.m.]: I move:

That the Committee agree to the Legislative Assembly's amendment.

The Hon. Robert Brown has discussed with my colleague the Minister for Police his concerns that a senior officer, at a higher rank than inspector, should be available on a 24-7 basis, particularly in the Sydney metropolitan area. I understand the member's concerns and appreciate the constructive discussion he has had on this issue. I am happy to place on the record the Government's assurance that officers of a rank higher than inspector are available at all times, including on a 24-7 basis, to deal with serious policing situations.

The Government believes that an inspector should have the legal ability to authorise the use of proposed section 87N because a duty officer or the duty operations inspector will be best placed to assess the information coming in and the resources required, and they are immediately contactable. Let us be clear: the delay in seeking approval from a superintendent has the potential to be significant. If there is a delay in using emergency powers, the situation could degenerate, increasing the risk of police officers and members of the public being injured. A letter circulated by the Police Association stated:

By definition these decisions must be made without undue delay to maximise the opportunity for early police intervention preventing a riot from occurring or minimising its intensity. Delays caused by the requirement to contact a Superintendent (Local Area Commander) are unnecessary and experience tells us this process is often time consuming when the officers are off duty or attending to other functions outside their Command.

These are extraordinary powers to be used when a riot is threatened. They will not be used lightly. The Opposition seems to think that an inspector will authorise the use of powers to prevent an emerging riot and then not alert anyone to the fact that they have identified an emerging riot situation. An inspector who authorises the use of these powers will be required to seek an application for an authorisation under part 6A as soon as possible. In addition, police standard operating procedures will state that the inspector should immediately inform the relevant local area commander and regions operation manager and, given a riot situation has been identified as emerging, the commander of the public order and riot squad to alert them to the use of these powers.

Furthermore, the Opposition is plain wrong in its assertion that a superintendent or local area commander is best placed to make this decision. Duty inspectors and the duty operations inspector who coordinates police radio are not only trained to handle such important matters, but are immediately and directly available by radio at all times. Anyone who acts up in the position of inspector must be a permanent sergeant of considerable experience, and have been assessed as capable of performing the important duties of a police inspector.

The Hon. Michael Gallacher: Point of order: Is the Minister still quoting the letter from the Police Association, or are these the Minister's own words?

The Hon. JOHN HATZISTERGOS: I have ended the quote from the Police Association. Let me return to what the Police Association thinks. It further stated:

Inspectors are appointed to their positions following considerable years of operational experience. On average it takes some 16 years of service to be appointed to Sergeant rank and a minimum of a further 2 years on that rank before promotion to Inspector can be considered. They are paid salaries commensurate with their responsibilities and accountabilities ranging from $96,508 to $122,171 (as of 11 January 2008). These officers are more than capable of making the decisions to invoke the powers contemplated in the Act and being accountable for such decisions.

The Government believes our provisions strike an appropriate and effective balance between the need to ensure these powers are used correctly and enabling police to act immediately in an emerging riot situation.

The Hon. ROBERT BROWN [8.51 p.m.]: It is interesting that the letter that the Minister referred to, of which I understand the Leader of the Opposition has a copy, which was addressed to me, I have not yet received.

The Hon. Michael Gallacher: I drafted your reply, though.

The Hon. ROBERT BROWN: Thank you very much. However, the Minister is correct. A delegation from the Police Association, and a senior serving officer with the Minister approached me today and gave me their version of what was wrong with the amendment that I voted on last night. I was not the only person who voted down the bill, of course. Their position was in line with what the Minister has reported as being in the circulated letter. That is, they felt that the Government's original position was the correct one. They were happy that the safety of their members and the safety of the public were better protected by having the fastest possible means of response to a threat of a riot. If that meant an inspector would make the decision, the inspector would call out the dogs, so to speak, and all the facilities and resources necessary to handle an imminent riot—even if it did not eventuate—at least police safety would be assured.

Obviously, we do not want false alarms, but the officers who spoke to me today convinced me, in line with the points they had given to the Minister about the seniority of the inspector making that decision, that the person would be trained and capable of making such decisions. I was still not convinced of the difference between the local area commands in the greater Sydney metropolitan area and the commands in the bush. One senior officer who spoke with me was the duty officer at Wilcannia during some disturbances in the bush. He did not use the word "riots". The officer agreed that there was a difference in the requirements for the Sydney metropolitan area.

I put to the Minister that I needed some assurance, recorded in Hansard, that in the Sydney metropolitan area there would be a greater effort to ensure that mistakes are not made. I was convinced by the arguments of the Police Association representatives and the Minister. Not by way of excuse, I pointed out to them that based on debate in the House presented by the Minister representing the Minister for Police, and the Leader of the Opposition, who is an experienced police officer, when I made the decision to vote the way I did it was 2.30 in the morning. Perhaps that is a salutary lesson for the Government: decisions are not best made at 2.30 in the morning. Fellow members, we have to be a bit smarter about that. My position is now clear. I support the original position of the Government. I cannot support the Opposition's intention to vote against the change.

The Hon. MICHAEL GALLACHER (Leader of the Opposition) [8.55 p.m.]: At five to nine on a Wednesday night I stand by the decision that I put to the House at 2 o'clock this morning. I do not move away from that. I am not having a go at the contribution of the Hon. Robert Brown. Given the advice that I recently received from the Clerks in terms of the proper process in relation to this matter, I move:

That the motion be amended by omitting the word "agrees" and inserting instead the words "does not agree".

I predict that in some part of Sydney there will be a call for an emergency power to be invoked. It will fall to the responsibility of an inspector. The inspector will talk to the duty operations inspector, colloquially known as the DOI, who will make a decision on the telephone about the response. Within seconds of concluding the conversation with the duty operations inspector the next phone call made by the inspector will be to the local area commander. Whether it is 1 o'clock in the afternoon or 1 o'clock in the morning, that conversation will take place.

I now raise the inability of contacting the local area commander. In this day and age is the Government seriously telling us that local area commanders, of superintendent rank and above, who are responsible for massive tracts of Sydney cannot be contacted? With mobile phones and pagers and concerns about terrorism and crime in the current climate, are we unable to contact local area commanders? Be that as it may, if the local area commander cannot be contacted the next phone call would be made to the regional commander. In most hierarchies the phone calls go down the line, and as they go down the line they get louder, but in this context phone calls in the New South Wales Police Force would go up the line.

I acknowledge that members opposite are seeking to interject. When a police officer goes down as a result of an incident, I do not care where in the world the local area commander is; he would know within minutes that one of his men or women has gone down. And exactly the same chain of events would occur here. The concern I had last night, and continue to have today, is that after the inspector makes the call to the duty operations inspector—and I am not denigrating the experience or role of an inspector—his next conversation is with either the local area commander or the regional commander. What happens when they say, "Whoa, hang on, you have just called me to tell me that Armageddon has just been unleashed in my area, and I find out about it after you have made the call!"

We are not talking about despatching two or three cars to deal with half a dozen clowns on the side of a road. As the Minister rightfully said, we are talking about extraordinary powers that need to be dealt with in an extraordinary way. When the duty operations inspector is told, "We have a riot," that is far different from half a dozen yobbos at the local pub or in the car park of a hotel. We are talking about the potential for a lockdown of suburbs or tracts of suburbs and streets. We now have police powers that we had never seen before the Cronulla riots. I guarantee that at the moment the duty operations inspector and the inspector reach that decision, out will come the riot squad, out will come the dog squad, fuel will be pumped into Polair 1, 2, and 3, and whatever else they can get into the air.

We know these things from experience and from what we have observed. There is no pulling back. Under this system the local area commander, the person responsible and accountable for an entire area, will get a call after the horse has bolted. In my view—and I continue to hold this view—an inspector could make the decision but in view of the resources that are able to be deployed it is far more appropriate for a local area commander or, in his absence, a regional commander to deploy those resources. It could be said that it would take a long time to deploy all those resources. It would take some time to ring the boss of the dog squad, to get the boss in control of surrounding suburbs to send his patrol cars to any incident, or to get the helicopter controller to wake up his pilots and get them in the air in half an hour.

I guarantee that the first phone call that would be made after that would be to a local area commander. However, my concern is that the horse has already bolted. Last night in debate on this bill I referred to intoxicated people and to the reasonableness of searches. This legislation is untidy because it does not differentiate between riots such as those that occurred at Cronulla and riots that involve our indigenous people—riots that occur every weekend in parts of western New South Wales but about which we do not hear because no-one cares about our indigenous people. Very little media attention is given to these riots. If members doubt what I am saying they should walk around the back of any police station in western New South Wales and look at the quality of police vehicles. Those vehicles look as though they have been to hell in a hand basket, or through a very big hailstorm. They are covered in dents and the windows are smashed.

Police officers would be able to tell members war story after war story about the battles that occur every weekend in country New South Wales. Those riots are different from the riots that are referred to in the context of this legislation. This legislation does not distinguish between the riots that occurred in Cronulla and the riots that many country towns contend with. Those riots might involve only 150 people in the main street of a town as opposed to the thousands of people who rioted in Cronulla, but there is no differentiation in the legislation: one case fits all. I am concerned about the appropriateness of this legislation.

I reiterate the position that I enunciated last night. I have also met with members of the Police Association. I emphatically resent the constant position that is being put by Government members. I do not intend to have a go at Minister Hatzistergos, but he and other Ministers have obviously been given the needle. Opposition members had the temerity to say, "Hang on a moment; let us think about this." We did not oppose the legislation last night and we did not oppose the legislation on 15 December 2005. In fact, we were prepared to sit down with the Government and work with it to ensure that the legislation was passed. The sense of urgency that was apparent on 15 December 2005 has gone and this Government is now playing politics. There are no votes to be gained from having either a superintendent or an inspector in charge of these riots and no marginal seats will be gained in these areas as a result.

The Government must ensure that police who have to make these decisions are in a much stronger position to do so. Today when I discussed this issue with a few backbench members I suggested that it would have been more practical for the Government to take into account the contribution that was made in this Chamber last night and to say, "Let us sit down with Opposition members and establish whether we can find some common ground." Opposition members are not opposed to this proposal; they are just trying to do what they think is right to strengthen the position of police in this decision-making process. All we got was two pages of garbage from the Minister in the other place. He attacked me and other Opposition members and accused us of being anti police—the same sort of vitriol that we get every day in this Chamber when we say, "Just stop for a moment. This has gone a bit too far. There might be some middle ground."

I resent that approach, which I believe undervalues the contribution of Minister Hatzistergos in attempting to show some leadership on law and order issues. The Minister in the other place should not be allowed to churn out press releases in an attempt to obtain a political advantage from something that is not a political issue. At the end of the day Opposition members and Government members should sit down and talk about these issues in an attempt to reach a solution. The Government took the opportunity to speak to one of the members on the crossbenches and it might well have spoken to others, but I and other members of the Opposition were not extended that same courtesy and we were not invited to speak to senior members of the police.

At the end of the day we are trying to put forward what we believe to be a solution that will strengthen the position of police when making decisions such as the decisions they had to make in Cronulla—an incident that was reported in newspapers and on television programs throughout the world. All we tried to do was to give officers who are under such pressure a bit more support.

Reverend the Hon. FRED NILE [9.05 p.m.]: The Christian Democratic Party supports the amendments that were moved in the other place. I remember the Minister stating that the original legislation, which was supported by all members, did not make any reference to an inspector; it referred only to a police officer. These amendments will ensure that such decisions will now be made by an inspector, and that will result in speedy responses to any emergency.

Ms SYLVIA HALE [9.06 p.m.]: I do not for one moment pretend to have the expertise of the Leader of the Opposition, who put forward a persuasive case about how any such move would be implemented throughout the police hierarchy. When this legislation is invoked it will have serious repercussions for members of the public because, as has been said, whole areas will be locked down, cars will be searched and potentially people will be searched. When there are such considerable ramifications for members of the general public, who may in no way be involved in any situation that is developing, it is important to have people with cool heads making the decisions—people who might not be immediately on the spot but who have a wealth of experience and authority at their disposal. As the Leader of the Opposition said, it is unbelievable for anyone to suggest that in this day and age those people would not be available almost instantaneously. The public and police officers would be well served by having someone of the rank of superintendent or above involved directly in any lockdown or similar situation.

The Hon. JOHN HATZISTERGOS (Attorney General, and Minister for Justice) [9.08 p.m.]: I will respond briefly to the contributions that have been made. I do not take this issue lightly. Unfortunately, the Leader of the Opposition made comments that reflected on my colleague the Minister for Police in another place. Quite frankly, they do him no credit. In reality, from time to time members in this place take a different position to the position that is taken by members of the Legislative Assembly. During this session a number of amendments might have been moved in this place that the Government was not happy with but which the Legislative Assembly accepted.

That situation has arisen on other occasions, but in this instance the importance and significance of the change that the Leader of the Opposition has proposed, and the concerns that the police have about those changes, have been reflected in our opposition to bringing this matter back for deliberation. I think the Minister for Police responded entirely properly to the matter articulated by the Government earlier in debate. The point Ms Sylvia Hale just made does not have much substance. She said that someone divorced from the incident—a cool head—should be making these decisions, that is, an inspector.

At the moment the legislation states that a police officer makes that decision. We are taking that decision back one level and saying, "The inspector will be making the decision." People are now saying, "Let us have a superintendent," who might not necessarily be available at that time. We always know there is a person of the rank of inspector who is in a position to make that decision at the time. I make the point also that, notwithstanding who is contacted, the person who will ultimately have to authorise these particular provisions is the assistant commissioner. That requirement is set out in the Act and must occur within a three-hour time limit.

Question—That the amendment be agreed to—put.

The Committee divided.

Question resolved in the negative.

Amendment negatived.

Question—That the motion be agreed to—put and resolved in the affirmative.

Motion agreed to.

Legislative Assembly's amendments agreed to.

Resolution reported from Committee and report adopted.

Message forwarded to the Legislative Assembly advising it of the resolution.