Please note: This is an extract from Hansard only. Hansard extracts are reproduced with permission from the Parliament of Western Australia.

Date: Wednesday, 23 November 2005

CRIMINAL INVESTIGATION BILL 2005
Introduction and First Reading

Bill introduced, on motion by Mr J.C. Kobelke (Leader of the House) on behalf of the Attorney General, and read a first time.
Explanatory memorandum presented by the Leader of the House.

Second Reading

MR J.C. KOBELKE (Balcatta - Leader of the House) [1.10 pm]: On behalf of the Attorney General, I move -

That the bill be now read a second time.

The Police Act 1892 was drafted in the late nineteenth century. Despite several amendments over the years, a number of the offences and powers contained in that act have been obsolete for decades. In 1994, the Police Act reform project was commenced in order to redraft the provisions of the Police Act to remove outdated provisions and to put remaining provisions into a contemporary form. That project involved dividing the Police Act into separate acts consistent with modern drafting conventions and with the recommendations of the Law Reform Commission of Western Australia’s 1992 “Report on Police Act Offences”.
The Police Act reform project has resulted in four acts being passed so far: the Weapons Act 1999, the Protective Custody Act 2000, the Prostitution Act 2000 and the Criminal Investigation (Identifying People) Act 2002.

In 2003, the Government approved the continued drafting of a raft of legislation known as the “criminal law reform package”. Among other things, this package was put together to implement outstanding matters from the Police Act reform project, and has since resulted in the enactment of the Criminal Law Amendment (Simple Offences) Act 2004 and the Criminal Procedure Act 2004. These statutes have substantially reformed the criminal law and the justice system in this state to reflect contemporary practice and to address the concerns of our modern society.

The Criminal Investigation Bill 2005 and the Criminal and Found Property Disposal Bill 2005 are the final instalments of the criminal law reform package. Once passed, they will finalise the government’s implementation of the recommendations of the Western Australian Law Reform Commission’s “Report on Police Act Offences” and will address key concerns and recommendations of the police royal commission. The Criminal Investigation (Consequential Provisions) Bill 2005 complements these bills by making other legislative changes consistent with the new bills.

The Criminal Investigation Bill is an amalgamation of statutory police powers currently available to police by virtue of the Police Act and the Criminal Code; it also codifies the majority of police common law powers; and introduces new powers that reflect the needs of a contemporary police force. The bill introduces significant controls on these powers to ensure that individual’s human rights are protected and to minimise the opportunity for misuse of the powers. The bill draws on legislation from the United Kingdom, Queensland and New South Wales but takes into account the unique circumstances in Western Australia, particularly with respect to regional areas. To illustrate that, clause 12 of the bill governs the way in which applications for warrants and orders must be made. It takes into account the difficulties faced by police in remote areas in obtaining warrants and orders from justices of the peace and magistrates by allowing for applications for urgent warrants and orders to be made by remote communication such as telephone, fax, e-mail and radio.

The interpretation provision, clause 3 of the bill, defines the word “officer” to mean police officer or public officer, the latter being defined to mean a person appointed under a written law to an office prescribed by regulations. As the word “officer” is used throughout the bill, it is intended that the powers in the bill may eventually be exercised by prescribed public officers, thus making the bill a comprehensive source of investigative powers for all investigators of offences. Clause 9 provides that regulations may prescribe which powers a prescribed public officer may exercise, thereby allowing for public officers to be given only those powers that are necessary and appropriate for their functions.

The bill modernises existing police powers pertaining to arrest, search and seizure, entry with or without warrant and carrying out forensic procedures on persons. Currently police rely on various antiquated search and seizure provisions that are often inconsistent. For example, section 49 of the Police Act provides police with a power to stop, detain and search any person who is reasonably suspected to be in possession of something that is stolen or unlawfully obtained. Section 23 of the Misuse of Drugs Act provides a stop, detain and search power in respect of a much broader category of things, including anything which may provide evidence of the commission of an offence under that act. When these powers are added to the powers conferred by a search warrant and to other powers that a police constable has at common law, the result is a confusing regime that police officers are expected to apply. The bill provides a simple and consistent regime that can be readily applied by police officers and easily understood by the public.

The bill also introduces the following powers for officers -

Under clauses 39 and 45 to 48, officers will have the power to create protected forensic areas without the consent of property owners where a police officer reasonably suspects that a serious offence - punishable by five years’ imprisonment or more - has been, or is being, committed in that place, or there is a thing in that place that may be relevant to a serious offence. Where the occupier of a protected forensic area either does not consent or withdraws consent to the police presence, police will have to obtain a search warrant within six hours, or the protected forensic area will be deemed disestablished. Where police have obtained a search warrant to establish or continue a protected forensic area, an aggrieved person will be able to have the continued establishment of the protected forensic area reviewed by a magistrate.
Under clause 68, officers will have the power to search persons in prescribed public places for security reasons.

Under clause 17, officers will have the power to conduct roadblocks where it is necessary in order to stop a vehicle to exercise other powers in the bill. Before exercising the power to set up a roadblock, police will require the authorisation of a senior officer of the rank of inspector or above except in serious and urgent circumstances. In such cases, the officer must advise a senior officer as soon as practicable after setting up the roadblock and must seek authorisation for the roadblock to continue. This must occur within three hours or the roadblock must cease. This clause does not affect the operation of the Road Traffic Act as it pertains to random breath testing.

Under clause 137, officers will have the power to detain suspects for the purposes of questioning and further investigation prior to considering bail or release.

Under part 9, officers will have the power to take forensic samples from suspects, victims, witnesses and other involved persons when there is a reasonable suspicion of evidence of the commission of an offence.

Under part 6, officers will have the power to obtain an order from a justice of the peace requiring businesses to produce records that may relate to a person suspected of committing an offence. The purpose of such an order is to remove the need for police to search for specific records under a search warrant.

Under part 7, officers will have the power to obtain an order from a magistrate that compels a person who is suspected of committing an offence carrying a penalty of at least five years imprisonment to assist officers in gaining access to a data storage device in the possession of the officers. A similar power is proposed to be inserted into the Criminal Code in relation to cyber predators by the Criminal Code Amendment (Cyber Predators) Bill 2005, which is currently before Parliament.

Under clause 64(2)(c), officers will have the power to order persons to do certain things to facilitate the exercise of a power under this legislation. For example, police will be able to order a person to empty their pockets when being searched by police so that police are not exposed to needle stick injuries. Under clause 151, a person who fails to comply with such an order or any other order that an officer is authorised to issue will commit an offence subject to 12 months’ imprisonment.

The bill represents a balance between the needs of law enforcement officers to effectively investigate crime and the rights of individuals. This is most evident, in that the bill specifically provides rights for any person who is arrested by a police officer, a prescribed public officer or any other officer with a power of arrest. This will include persons arrested for such things as parole revocation when there is no suspected offence. Such persons will have a statutory entitlement to medical treatment, reasonable privacy from the media, communication with relatives or friends to inform them of their whereabouts and, when necessary, an interpreter. These entitlements will apply irrespective of the basis for the arrest. In addition, arrested suspects will be entitled to be informed of the offence for which he or she has been arrested, to be cautioned before being interviewed, to have a reasonable opportunity to communicate with a lawyer and to be informed of these rights. Although in the past the police have observed these rights in practice, they will now be statutory entitlements.
The bill will clarify the police power of arrest to apply to offences. The proper exercise of that power will depend on the relevant circumstances, so that it is not abused when arrest is not necessary or appropriate. Under clause 126, officers will be able to arrest a person without a warrant for an offence only if it is reasonably necessary to do so in order to obtain the person’s personal details, to stop an offence, to stop another person from being endangered, to stop the person from interfering with the course of justice or from compromising evidence, or to stop the person from endangering himself or herself. Otherwise, officers must proceed to lay charges without arresting the suspected offender. This limitation will not apply to serious offences.

The balance between the needs of the police to effectively investigate crime and the protection of the rights of individuals is evident in a number of clauses in the bill, as illustrated, for instance, in clause 131. Clause 131 provides that premises and vehicles of suspects arrested for serious offences may be searched for evidence without the issue of a search warrant. This power accords with the current section 68 of the Police Act 1892 that provides a fairly broad power of entry and search of an arrested suspect’s premises so long as the suspect is arrested in relation to a crime. This power was considered too broad by the Law Reform Commission of Western Australia, which recommended that section 68 be repealed. However, the police have argued that it is necessary to preserve the current power because it provides a powerful investigative tool in relation to serial offenders, such as burglars. This power allows police to search an arrested suspect’s premises before the suspect can return to hide or remove evidence.

Given the importance of the provision, a compromise was reached and the power was preserved, with significant checks drawn from section 18 of the UK Police and Criminal Evidence Act 1984. This provides the following three checks on the power: it can only be exercised in relation to a serious offence, punishable by five years’ imprisonment; use of the power must be authorised by a senior officer; and it can only be used to search in relation to evidence for the offence of which the suspect has been arrested, and similar or connected offences.

Another example of this balance is part 9 of the bill that provides for police to obtain evidence by conducting forensic procedures on people. Those people can be volunteers, or people compelled under an order of a court or, in some cases, a senior officer. Such orders can apply to victims and witnesses as well as to suspects. They can apply to adults as well as children and incapable persons. The forensic procedures can be “non-intimate”, in which searches can be made of a person’s body, but not private parts; “intimate”, which include private parts and blood samples; and “internal”, which includes X-rays and the search of orifices.

In order to ensure that private rights are protected, a highly prescribed regime of informed consent and authorisation by warrant is to be instituted. Volunteers must be given information about the relevant procedure, and the consent must be recorded and signed in the presence of an officer. A witness or victim who does not consent to a forensic procedure can only be compelled to undergo one if a warrant is issued by a magistrate. The magistrate must take into account the seriousness of the offence and, in the case of a child, the maturity of the child and the child’s best interests. In the case of suspects who do not consent to forensic procedures, non-intimate procedures require an authorisation by senior officers of the rank of sergeant or higher. For intimate and internal forensic procedures, warrants must be issued by justices of the peace in relation to adults and magistrates in relation to children and incapable persons.

In addition, there are restrictions in accordance with normal community standards on who may conduct forensic procedures. As an added protection for people subjected to forensic procedures, evidence obtained from such procedures will not be admissible in court if a requirement of the bill is contravened, unless the person does not object or a court decides otherwise. In that way, any incentive for police to circumvent the requirements applying to forensic procedures is removed.

Clause 15 of the bill provides that, when exercising a power in the act, a person may use force that is reasonably necessary in the circumstances. This clause is based on section 231 of the Criminal Code, with an additional element that the force used may be such that causes damage to the property of another person. The purpose of providing that damage may be caused to property is to make clear that the person causing the damage in accordance with this provision is not criminally liable or personally liable at civil law for that damage. It is not intended that this clause affect the current law for compensation in relation to such damage.

Part 3 of the bill reproduces citizens’ powers of arrest currently contained in the Criminal Code, the Police Act and at common law to prevent offences and breaches of the peace. A power is provided for persons in charge of vehicles to deal with persons whom they suspect are carrying things that may damage the vehicle or endanger the safety of any person on the vehicle, or whom they suspect will commit an offence or otherwise endanger the life, health or safety of any person on the vehicle. A person in charge of a vehicle will have the power to arrest suspects, to request that suspects consent to frisk searches and to either remove or prevent a suspect from entering the vehicle. The term “vehicle” is broadly defined to mean anything capable of transporting people or things by air, road, rail or water in order to ensure that persons in charge of aircraft, buses, trains and ferries are included. This provision was included because of the significant consequences that can result from violence on or in relation to vehicles.

Part 4 of the bill contains the move-on power presently in section 50 of the Police Act. Through the Criminal Law Amendment (Simple Offences) Bill 2004, I - that is, the Attorney General - abolished section 43 of the Police Act that prescribed offences of “loitering”, “evil designs”, “being suspected of having committed an offence” and “being suspected of being about to commit an offence”, and replaced them with a move-on power. Essentially, the move-on power allows a police officer to order a person who is in a public place to leave it, if the officer reasonably suspects that the person is doing or is just about to do an act that involves the use of violence against a person; is breaching the peace; is hindering, obstructing or preventing any lawful activity; or is committing an offence.

Part 5 of the bill contains powers to enter and search places and vehicles with and without warrants. The bill introduces the term “public open areas”, being open areas to which the public has access. In such areas police may exercise powers that would be available under a search warrant without the need to obtain a warrant. However, when police need to damage property or dig up the ground, they will need to obtain the informed consent of the person who has control or management of the area. If such consent is not provided, police will need to obtain a search warrant. This requirement to obtain consent does not apply to the seizing and removing of plants that are unlawful to possess, such as cannabis.

The bill makes clear that police have the power without warrant to enter places of entertainment, and places licensed under the Liquor Licensing Act, to keep the peace. They will have the power to enter a place or vehicle to prevent violence, or to attend to a seriously injured person, or to deal with a serious event, such as a fire, an explosion or the presence of a substance or gas that is likely to cause injury or damage. Police will be able to stop, search and take any other necessary action in relation to a vehicle in order to prevent it from being connected to an offence, or to prevent damage to the vehicle, or to protect people who may be in or near the vehicle. Police may stop and search a vehicle that they reasonably suspect is connected to an offence, and seize items from the vehicle or the vehicle itself.

Part 5 also contains provisions related to search warrants by providing for the form of applications and of warrants as well as the powers that might be exercised under a search warrant. Powers ancillary to a search warrant are also provided, including powers to enter a place near a target place in order to prevent persons from escaping from the target place or from concealing things. Police will be expressly allowed to take equipment into a place to assist in the search and to photograph or otherwise record things found.

Part 8 of the bill governs the searching of persons. The concepts of basic searches and strip searches are defined and ancillary powers and requirements are provided. This part does not significantly change existing police practice.

I have already mentioned part 9, which provides for forensic procedures.

Part 10 of the bill contains further provisions relevant to parts 8 and 9. This part provides for repeated searches and forensic procedures. It stipulates that nothing in parts 8 or 9 requires a person to do or assist a search or forensic procedure, while providing that a tort does not lie against anyone who exercises a power in these parts. It also provides that any information, such as samples and photographs, obtained in forensic procedures is not to be destroyed except with the approval of the Commissioner of Police.

Part 11, which reproduces chapter LXA of the Criminal Code, governs the use and possession of video records of interviews.

Part 12 of the bill relates to arrest. Clause 126 clarifies the situation in relation to arrest of suspects and clause 131 retains a much-qualified power to search without warrant an arrested person’s premises. The common law power to search a person under arrest for security reasons is prescribed in detail in clause 133.

Part 13 deals with seized things. It restricts the circumstances in which things can be seized and requires that a list of items seized must be provided to the person from whom they were seized upon request. Clause 145 allows large or immovable items to be seized by attaching a notice to the things. Clause 146 allows officers to copy records instead of seizing them, but, where records are seized, it requires officers to provide the person from whom they were seized with a record of them if so requested. Clause 147 provides, among other things, a power for officers to order persons to provide assistance to gain access to records. This latter power is especially important when records are kept as encrypted data. This part also includes a provision under which issues of privilege over material can be determined by the Magistrates Court. Part 13 also contains the offence-creating provision for not obeying an officer’s order, and it contains the important provisions making evidence that has been obtained in contravention of the requirements of the bill inadmissible subject to the suspect’s consent or an order of a court. Finally, it contains provisions for the making of regulations and a requirement that the legislation be reviewed in five years.

Recommendations of the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers: The bill reflects the recommendations of the royal commission by modernising the language of the provisions currently found in the Police Act 1892. In its final report, the royal commission noted -

The Act is so anachronistic as to make almost humourous reading, and brings the law into disrepute. If there is to be an expectation that WAPS -

That is the Western Australia Police Service -

will change its culture and its level of professionalism, then at the least it should be provided with a legislative framework that reflects the standards required. The Police Act does not fulfill that role and should be replaced without delay.

The bill reflects the thrust of the royal commission’s recommendations by providing increased accountability for police and by ensuring powers are prescribed in more detail so that the police and the community clearly understand the limits of those powers. The bill provides police with a power to detain arrested suspects for a reasonable time in order to carry out searches, investigate offences, interview the suspect, and decide whether to lay a charge. This accords directly with a recommendation of the royal commission to have legislative power to authorise officers to detain an arrested person for a reasonable period prior to complying with section 6 of the Bail Act. Under the existing legislation, police are required to take an arrested suspect before a bailing authority as soon as practicable. The royal commission commented -

The result may be that officers endeavouring to properly conduct an investigation find that they are in breach of a lawful prohibition. In such circumstances, breaches may occur with the acquiescence of senior supervising officers who accept that the detaining of an arrested person, in breach of s. 6 of the Bail Act, is necessary to properly conclude an investigation. Not only does that involve the officers concerned acting in breach of the law, but it also contributes to an unacceptable culture in which police may consider that they are above the law and to the perpetuation of so-called “noble cause” corruption. The valid point made by the Union is that police do not want to be in this position, and that it is unfair to them.

The royal commission expressly approved the regulatory framework in draft 3 of the bill with respect to this power to detain for the purposes of investigation. That framework remains in the bill as currently drafted. In order to ensure that the rights of individuals are protected, the bill requires that detention of suspects under this power must be reviewed by an officer of the rank of sergeant or above who is not involved in the investigation. The purpose of the review is to determine whether, having regard to a number of factors provided by the bill, the continued detention is justified. The reviews must take place within at least six hours of the arrest or of the last review, and written records of the reviews must be made. Once a decision has been made to charge a suspect, the suspect must either be released unconditionally if the charge is to proceed by summons or prosecution notice, or be dealt with under the Bail Act.
Two of the royal commission’s recommendations in the final report have not been adopted in the bill. Those recommendations are, firstly, that legislation be enacted to provide a requirement that the execution of search warrants be videotaped before any evidence obtained during the search is admissible in evidence; and, secondly, that legislation be enacted to provide that only magistrates and other designated persons, rather than all justices of the peace, be empowered to issue search warrants. These recommendations have not been implemented in this bill as they would not be practicable in every case, especially outside the Perth metropolitan area.

Implementation of the recommendation on video recording of searches would require that all police have access to video equipment and that there be at least one extra police officer on hand at each search to operate the equipment. Police advise that this would be logistically impracticable, especially in remote areas where only one or two officers man police stations. However, current police policy requires that, where practicable, search warrants be video recorded.

Implementation of the recommendation that only magistrates and other authorised persons be empowered to issue search warrants would require magistrates or other authorised persons to be available seven days a week, 24 hours a day, statewide. Police advise that, as a means of ensuring that search warrants are issued only when genuinely needed, it is a requirement under police procedures to have all grounds for applications for search warrants assessed and approved by an independent senior police officer prior to the warrant being presented to a justice of the peace.

The Law Reform Commission of Western Australia report on Police Act offences: The Criminal Investigation Bill is generally consistent with the recommendations of the WA Law Reform Commission’s report on Police Act offences. Of particular importance is clause 126 of the bill, which provides a power of arrest without warrant for any offence that I mentioned earlier. This provision provides clarity that has been absent until now for simple offences such as disorderly conduct. The clause accords with the Law Reform Commission’s preferred approach by requiring an officer to consider alternatives to arrest unless certain criteria exist. This will ensure that police exercise the power to arrest only if reasonably necessary. Two Law Reform Commission recommendations were not followed in this bill: the recommendation to repeal section 68 of the Police Act, which is retained in a qualified form in clause 131, as I mentioned earlier; and the recommendation to retain police powers in the Criminal Code, which are instead included in this bill. All other recommendations have been substantially followed.

This bill will equip police and prescribed public officers with appropriate, modern powers to investigate crime and deal with suspects without having to rely on the vagueness of current legislation and common law principles to justify their actions, while enhancing accountability of officers exercising the powers. In addition, the bill enshrines significant rights for individuals. Wide-ranging consultation has taken place on this bill, including with the courts and the State Administrative Tribunal, the Director of Public Prosecutions and the Western Australian Police Union. The Western Australia Police has been significantly involved in the development of this bill and fully supports the proposed changes. Given the importance and complexity of this bill, interested persons are invited to give it further consideration over the summer recess and to provide any further comments. The Criminal Investigation Bill is another vital element in this government’s commitment to a more efficient delivery of justice in Western Australia and to modernising our legislation and justice system so that it is more accessible and relevant for all Western Australians. On behalf of the Attorney General, I commend this bill to the house.

Debate adjourned, on motion by Dr G.G. Jacobs.