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- 18 September 2001
Police Powers (Vehicles) Amendment Bill
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About this Item
Speakers - Gaudry Mr Bryce
Business - Bill, First Reading, Second Reading
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Page: 16718
Bill introduced and read a first time.
Second Reading
Mr GAUDRY (Newcastle—Parliamentary Secretary), on behalf of Mr Whelan [7.44 p.m.]: I move:
That this bill be now read a second time.
On 4 September the Premier announced a comprehensive package to respond to gang crime. The Government already has introduced the first part of that package: the Crimes Amendment (Aggravated Sexual Assault in Company) Bill. This bill forms another part of the Government's anti-gang package, with further legislation to be introduced after Parliament's resumption. The Police Powers (Vehicles) Amendment Bill makes several improvements to the Police Powers (Vehicles) Act 1998, which was introduced after the cowardly drive-by shooting attack on Lakemba police station in November 1998. Those amendments will assist police in the investigation and prosecution of gang and other offences. The Ombudsman, who was responsible for monitoring the operation of the Act for its first year of operation, reported on its operation in 2000. The Act was subsequently reviewed by the Ministry for Police, having regard to the Ombudsman's report.
Whilst the review concluded that the Act was generally working well, a number of improvements were identified. Currently, section 6 of the Act permits police to demand drivers and owners of vehicles reasonably suspected of having been used in the commission of an indictable offence to provide them with certain identity information. Some magistrates have taken a very narrow approach to defining "used in the commission of an indictable offence". The Local Court in the 23 June 2000 case of Police v Vivienne Mason held that police could use their powers only when the use of the vehicle was itself an element of the offence—for example, where the vehicle was used in a ram-raid or to run over a person. The clear intention of the legislation is to enable police to use their powers when a vehicle has been used to escape from the scene of a crime, and most magistrates have applied the Act in this way.
The Ombudsman recommended that consideration be given to amending the Act to prevent magistrates adopting a narrow interpretation of the provisions. Accordingly, the amendment to section 6 (1) of the Act enables police to use their powers when a vehicle has been used in connection with the commission of an indictable offence. Whilst the Act enables police to ask owners and drivers of vehicles to disclose the identity of the driver and passengers of a vehicle, the Ombudsman notes there is no power in the Act to request a passenger to produce identification details. Whilst the Act enables police to request that the driver of a relevant vehicle identify him or herself, there is no power to request the passengers to identify themselves, even where they are present when the driver is being questioned.
In some cases the passenger may be more directly linked to the offence than the driver or owner of the vehicle—for example, where the driver is a get-away driver and the passenger the principal offender. In drive-by shootings, such as the one on Lakemba police station, it is rare for the shooter to be the driver. The bill gives police the power to directly ask passengers to disclose their identity and the identity of other occupants of the vehicle. This will assist in verifying information provided by other vehicle occupants and discourage the making of false or misleading statements as to identity. This additional power may be of assistance to police in responding to gang-related criminal activity, where a number of gang members leave the scene of a crime in a vehicle. As noted in the second reading speech to the Act, the identification provisions were introduced to break the "strict code of silence" that most gang members adhere to.
This code appears to be the only code the gangs respect. They certainly have no respect for the law. It is likely that the driver of a vehicle may not assist in identifying a passenger who is a fellow gang member. In a deliberate attempt to obstruct justice, the driver may claim to be ignorant as to the passenger's identity or simply refuse to properly answer the request. This may prevent police from following up an important lead in their investigations. Giving police the power to question passengers directly will help to overcome this problem. It is possible that police could ask passengers to provide their identity under section 563 of the Crimes Act 1900. However, that section does not enable police to ask passengers to identify other passengers or the driver of a vehicle. Also it provides for a penalty of only $220 for failure to refuse to comply with the request. Section 563 is designed primarily to identify potential witnesses, not potential offenders. A $220 penalty will not be sufficient to get potential indictable offenders to disclose their identities.
The bill provides that passengers who refuse to give relevant identity information can be charged with an offence carrying a penalty of 12 months imprisonment and/or $5,500. As noted in the Ombudsman's report on the Act, police officers have identified that the high penalties under the Act are the major motivating factor for persons to breach the code of silence. The bill also amends the definition of identity in section 3 of the Act to make it clear that identity has the same meaning in respect of both drivers and passengers. Whilst the Act currently enables police to request name and address information, it does not give them the power to request proof of the information they provide to police. The bill inserts a new section 9A to the Act, which gives police the power to request drivers or passengers of vehicles to provide proof of their identity. This will reduce the likelihood of people providing false identity information under the Act, and assist police in prosecuting offences relating to the provision of false information, which also carries a penalty of 12 months imprisonment and/or $5,500.
The bill also amends section 10 of the Act. Section 10 gives police the power to stop and search vehicles where the officer reasonably believes the vehicle may have been used in the commission of an indictable offence and the exercise of the powers may provide evidence of the offence. It also allows police to stop and search vehicles where the officer reasonably believes that the exercise of the powers will lessen the risk to public safety. The bill amends section 10 to remove the requirement for police to obtain the approval of a senior officer to stop and search vehicles under that section, except where roadblocks are used. Whilst the senior officer authorisations were introduced to provide for an additional level of scrutiny in the use of vehicle stop and search powers under the Act, the Government is satisfied that these authorisations are generally unnecessary and simply add an extra layer of bureaucracy to a system that often requires quick action.
The Ministry for Police review of the Act found that similar stop and search powers to those in section 10 exist under other legislation without any requirement for a senior officer to authorise the use of those powers. Section 357 of the Crimes Act 1900 permits a police officer to detain and search any vehicle that the officer reasonably suspects contains a dangerous article reasonably suspected of being, or having been, used in the commission of an indictable offence. Section 357 (e) of the Crimes Act permits an officer to stop and search a person or vehicle if the officer reasonably suspects that he or she or it is conveying anything stolen or otherwise unlawfully obtained, or anything used or intended to be used in the commission of an indictable offence. Section 37 (4) (b) of the Drug Misuse and Trafficking Act 1985 permits an officer to stop, search and detain any vehicle if the officer reasonably suspects that it is carrying prohibited drugs.
As noted in the Ombudsman's report, some officers have reported on occasion that it may be too time consuming to find a senior officer when urgent vehicle stop action must be taken. The Ombudsman recommended that the Police Service monitor the operation of the authorisation provisions to determine whether to recommend that the Act should be amended to permit non-compliance with the stringent authorisation requirements in exceptional circumstances. It is not proposed to create an exceptional circumstances test. That would require an officer involved in stopping a vehicle to make an additional judgment call as to whether the circumstances are exceptional in a situation where a quick response may be needed. It would then require the court to assess whether the circumstances were exceptional in determining whether the vehicle stop was lawful. Certainty is required in these circumstances.
Consistent with other legislation, police may generally stop and search vehicles under the Act without tossing up whether the circumstances of the stop and search are exceptional. However, the Ombudsman's report makes it clear that public safety issues are involved in setting up any roadblock. The Act is the only legislation that gives police roadblock powers, and it is clear that those powers need to be exercised through a careful balancing of whether the public safety and law enforcement benefits of a roadblock outweigh the negatives. Accordingly, the bill recognises the importance of senior officer authorisations wherever a roadblock is used. This bill clarifies and improves the operation of the Police Powers (Vehicles) Act 1998. It gives police additional powers to obtain identity information from potential suspects and provides prompt and certain vehicle stop and search powers. I commend the bill to the House.
Debate adjourned on motion by Mr Fraser.
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