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Review of Victoria Police Use of 'Stop and Search' Powers

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Review of Victoria Police Use of 'Stop and Search' Powers Review of Victoria Police use of ‘stop and search’ powers Ordered to be printed Victorian Government Printer May 2012 Session 2010-12 P.P. No. 128 ĴȱȱĴ To The Honourable the President of the Legislative Council And The Honourable the Speaker of the Legislative Assembly This report is presented to Parliament in accordance with section 28(2) of the Police Integrity Act 2008. ȱȱȱȱęȱȱȱ ȱ ȱȱȱȱȱȱȁȱ ȱȂȱ ȱ ȱȱȱȱControl of Weapons Act 1990 in 2009. ȱȱ ACTING DIRECTOR, POLICE INTEGRITY 3 Contents Letter of transmittal 3 Executive summary 6 Key recommendations 8 Background 9 Context 9 ¢ȱ ş Natural justice 10 Development of police powers to search 11 Power to search someone under arrest 11 ‘Stop and search’ powers without arrest 12 Weapon control in Australia 12 From ‘reasonable belief’ to ‘reasonable suspicion’ 13 The Terrorism Acts 14 Control of Weapons and Firearms Acts (Search Powers) Act 2003 (Vic) 14 Cronulla riots and ‘lock down’ powers in Australia 15 ȱ ȱȱȱ¢Ȭȱȱ ŗś Melbourne 2007–2009 16 Current Victorian legislative framework 18 Charter of Human Rights and Responsibilities Act 2006 18 Summary Offences and Control of Weapons Acts Amendment Act 2009 18 Authority to search anyone in an area 19 Control of Weapons Amendment Act 2010 20 Control of Weapons and Firearms Act Amendment Act 2012 21 Use of powers 22 Context 22 ȱ ȱȱȱ ŘŘ ȱ Ȭȱȱ Řř 4 Searching individuals without a warrant 24 Duty to make record 24 How reasonable suspicion searches are recorded 24 Searches in designated areas 26 Role of the Transit Safety Division 26 ȱȱȱȱǻȱǼȱ ŘŜ ȱȱȱȱ Řŝ Duty to make record 28 ȱȱȱȱȱ ŘŞ Review findings 29 Arbitrary use of powers 29 Complaints made to Victoria Police 30 Complaints made to OPI 32 ȱȱȱȱ řř Community research 33 Community perceptions 35 ȱȱ řŜ ȱ ȱȱȱȱ řŜ ȱ ȱ¢ȱȱ řŞ ȱ ȁȱȱȂȱȱ řş ȱȱ ŚŖ Deterrence 40 ȱ ȱȁȂȱ Śŗ That’s not a knife, this is a knife 42 ȱ¢ȱȱ Śř Armed robbery data 44 National comparators 47 ȱ ȱȱ ȱ Śŝ Conclusion 48 Appendix One: Definitions of Victoria Police complaint determinations 50 Appendix Two: Field Contact – search without warrant report 51 Appendix Three: Victoria Police search without warrant reporting 54 Appendix Four: Victoria Police Operation Omni Statistics 56 Appendix Five: Response by Chief Commissioner Lay 58 5 Executive summary ȱȱȱȱȱęȱȱȱ ȱȱ¢ȱȱĜȱȱȱ ¢ȱ (OPI) into Victoria Police use of ‘stop and search’ powers. The review followed the ȱȱȱ¢ȱěȱȱȱȱȱȱŘŖŖşȱ(the 2009 Act), which amended both the ¢ȱěȱȱŗşŜŜȱand the Control of Weapons Act 1990. The intended purpose of the 2009 Act was to tackle violence and public disorder. It created new powers for police to direct people to move on from a particular area and ȱ¢ȱȱȱȱ ȱ ȱȱȱȱȱȱ ǯȱ ȱŘŖŖşȱȱȱȱȱ ȱěȱȱdisorderly conduct in a public place. Further ȱ ȱȱȱ¢ȱȱȱȱȱ ȱȱȱȱȱ a person without a warrant to enable police to search a person on reasonable suspicion ȱȱȱ¢ȱȱ ȱȱȱȱǯȱ ȱ ȱȱȱ¡ȱȱȱȱȱȱȱ ǯȱ ǰȱȱȱȱȱȱȱȱȁȱȱȂȱ ȱȱ with the control of weapons. ȱȱȱȱ ȱȱ ȱ¢ȱȱȱŗşşŖǯȱȱȱȱ ȱŗşşŖȱȱ ȱȱȱȬȱǯȱȱȱȱȁȱȱȂȱ powers have been amended several times to enable police to also respond to terrorism. ȱȱȱŘŖŖşȱȱȱȱȱȱȱȱȱȱ¢ȱ ȱȱȱ ȱ ȱȱȱ¢ȱȱ ȱȱ Victorian Charter of Human Rights and Responsibility Act 2008.1 ȱ ȱ ȱ ȱ ȱ ŘŖŖşȱ ǰȱ ȱ ȱ Ȃȱ ¢ȱ ȱ ȱ ȱ ȱ Ĵȱ ȱ řřȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ȱȱǰȱ¢ȱȱ ȱ¡ȱȱȱȱȱ¢ȱ ǯȱȱ ȱ ȱȱȱ¡ȱȱȱȱ ȱ ȱȱȱ similar powers by police had exposed risks associated with: Ȋȱ ¢ȱȱȱ Ȋȱ ȱȱȱ Ȋȱ ȱȱȱȱȱ¢ȱȱȱě Ȋȱ ȱȱȱȱ ǯ OPI’s review evaluated Victoria Police’s use of ‘stop and search’ powers in the context of these concerns. ȱ ȱ ȱȱĴȱȱȱȱȱȱȱ ȱ ȱ ȱȱ¢ȱȱȱ ȱȱȱȱȱȱǯ 1 Hansard, ŗŘȱȱŘŖŖşǯȱ¢ȱȱȱȱSummary offences and Control of Weapons Bill 4018–4024 6 ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ and accountability associated with the use of these powers. Victoria Police is not able ȱȱȱȱȱȱȱȱȱȱȱȱ retrieval mechanisms. In order to increase compliance, Victoria Police should simplify ȱȁȱȱȂȱȱǯ2ȱȱȱȱȱȱȱĚ ȱȱ ȱȱȱȱȱȱȱȱȱȱ ȱȱȱ ȱȱȱȱȱȱǯȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȁȱ ȱȂȱ ȱȱěȱȱȱȱȱ Ȭȱ ǯȱ ȁȱ and search’ powers were introduced to reduce violent or weapon-related crime by ȱ ȱ ȱ ¢ȱ ȱ ȱ ȱ ǯȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ęȱ ȱȱȱȱ ȱ ȱ ȱȱȬ¢ȱȱǯȱ¢ȱȱȱȱ ȱȱȱȱȁȱȱȂȱȱȱǯȱȱ ȱ ęȱȱȱȱȱȱȱĜȱȱȱ ȱěȱ ȁȱȱȂȱ ȱȱȱȱȱȬȱȱȱǯȱ Assaults with a weapon represent 10 per cent of all reported assaults in Victoria. ȱȱȱȱ¢ȱȱȱȱ¢ȱȱ ȱȱȱȱ ǯȱȱȱȱȱ¢ȱȱ ȱȱȱȱ¢ȱȱȱ best indicator of the impact of ‘stop and search’ operations. An analysis of Victoria ȱȱȱȱȱȱ¢ȱȱ ȱǰȱȱȱ¢ȱ ȱȱ ȱ ¢ȱŘŖŖŝȱȱ ȱŘŖŗŗȱ ȱȱȱȱȱ ȁȱȱȂȱȱȱȱȱȱȱȱȱ¢ǰȱȱȱ¢ȱ of weapon used in armed robberies.3 ȱȱȱȱȱ ȱȱȱȱȱȱȱȱȱȱ ȱ police exercise of ‘stop and search’ powers is proportionate. ‘Stop and search’ is an intrusive form of surveillance. It should be exercised in proportion to a perceived risk. ȱȱȱȱȱȬ crime one in which: Ȋȱ ȱȱȱȱȱǰȱȱ Ȋȱ ȱȱȱȱȱ¢ȱintelligence ȱ¢ȱȱȱȱ¢ǰȱ¢ȱ ȱȱȱȱȱȱ ȱęȱȱȱǰȱ Ȋȱ ȱȱȱǵ ¢ǰȱȱȱȱȱȱǰȱȱȱ ȱ ȱȱ¢ȱȱȱȱȱȬ¢ȱǰȱȱȱȱ ȱȱȱȱȱȱȱ ȱȱȱ ȱ ȱ a propensity to carry weapons. The review has concluded more public debate is warranted to determine whether this approach is appropriate. 2 See Appendix Two řȱ ȱȱ ȱȱȱȱȱ¢ȱȱŘŖŖŝȮŘŖŖŞ 7 Key recommendations That Victoria Police: Ȋȱ ȱ¢ȱȱȱ ȱ ȱȱȱȱȱȱ ȱ ȱ ȱǯ Ȋȱ ȱȱ ȱ Ě ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱȱȱȱ ȱ ȱȱȱȱȱȱȱȱǯ Ȋȱ ȱ ȱ¢ȱȱȱȱȱȱȱȱ ȱȬȱǯȱ ȱȱȱȱȱȱ DZ ȱ Ȯȱ ȱȱȱȱȱȱȱ¢ǰȱȱ – the response is informed by intelligence and only intrudes upon the privacy, ¢ȱȱȱȱȱȱȱ ȱęȱȱȱǰȱ ȱ Ȯȱ ȱȱȱǵ 8 Context ȱȱȱȱȱȱȱȱȱȱȱ ȱ ȱȱȱǰȱ ȱȱȱȱȱȱȱȱȱ ȱȱȱȱȱȱȱȱCharter of Human Rights and Responsibilities Act 2006.4 In December 2010 OPI embarked on a review of Victoria Police use of ‘stop and search’ ǯȱȱȱȱȱ ȱ ȱȱȱȱȱȱȱȱ raised by opponents of the ¢ȱěȱȱȱȱȱȱŘŖŖşȱhad been realised. Thematic concerns articulated in submissions to the Victorian Parliament’s ¢ȱȱȱȱȱĴȱȱ ȱȱDZ Ȋȱ ¢ȱȱȱ Ȋȱ ȱȱȱ Ȋȱ ȱȱȱȱȱ¢ȱȱȱě Ȋȱ ȱȱȱȱ ǯ OPI’s review evaluated Victoria Police’s use of ‘stop and search’ powers in the context of these themes. ¢ In the course of this review, OPI: Ȋȱ ȱȱȱȱȱǯ Ȋȱ ȱȱ ȱȱȱȱȱǯ Ȋȱ ȱ¢ȱȱȱȱȱȱȱȱȱȁȱȱ£ȱ without just cause’ (2006–2010). Ȋȱ ȱ¢ȱȱȱȱȱȁęȱȂȱȱȱ ȱǻŘŖŖŜȮŘŖŗŖǼǯ Ȋȱ ȱ ȱȱȱ ȱȱȱȱȱȱȱȱ ȱȱǯ Ȋȱ ȱ ȱȱȱ¢ȱȱȱȱ¢ȱȱ ȱǰȱ ȱȱ¢ȱȱȱȱ ȱŘŖŖŝȮŘŖŖŞȱȱŘŖŗŖȮŘŖŗŗǯ Ȋȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȃȱ ¢ȱȱȱȱ ȱ Ĵȱ ȱ ¢ȱ ěȱ ȱ ȱ ȱ ȱ ȱ Amendment Bill 2009. 4 Police Integrity Act 2008 s8 9 Ȋȱ ȱȱHansard transcripts. Ȋȱ ȱ¡ȱȁȱȱȂȱȱȱǰȱǰȱ ȱȱȱ ȱȱȱ ǯ The review was also informed by examination of: Ȋȱ ȱǯ Ȋȱ ȱȱ ȱŘŖŖŖȱȱŘŖŗŗǯ Ȋȱ ȱ¢ȱ¢ȱȱǯȱ Natural justice ȱĞȱȱȱȱ ȱȱȱȱȱ¢ǯȱ ȱ ȱ ȱ included in its entirety in Appendix Five. 10 Development of police powers to search Power to search someone under arrest In Victoria police have always had the common law power to search an arrested person if they think a search is needed to: Ȋȱ ȱȱ Ȋȱ ęȱȱ ȱȱȱȱȱȱȱ¢ȱȱȱDZȱ – hurt themselves or others – escape from custody. ȱȱ¢ȱȱǰȱȱȱȱȱȱȱǰȱȱȱ ȱȱȱȱȱȱȱ ¢ȱ¢ȱȱȱȱȱȱȱ ȱȱȂȱȱȱ¢ȱȱ¢ǯ5 The type of search conducted should be as un-intrusive as possible under the circumstances. There are four types of searches: Ȋȱ ȱȱȱȱǯ Ȋȱ ȱȬ ȱǰȱȱȱȱȱ¢ȱȱȱȦȱȱȱȱ external ‘pat-down’. Ȋȱ ȱȱ ȱȱȱȱȱ¡ǯ Ȋȱ ȱ ȱ¢ȱȱȱ ȱȱȱȱȱȱȱ¢ȱȱ examined. ȱ¢ȱȱȱȱȱȱȱȱȱȱȱ ¢ǰȱȱ police think these items could be used as evidence or to hurt someone. Where practical ȱȱȱȱȱ¢ȱȱȱȱȱȱȱȱȱȱ arrest and in the presence of another member of police.6ȱȱȱȱȱ ȱ ȱ ǰȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ¢ȱȱȱȱȱĞȱȱǯȱ ȱȱȱǰȱ¢ȱȱǰȱȱȱȱDZ Ȋȱ ȱĞȱǰȱ ȱȱ¢ȱȱȱȱȱȱȱ Ȋȱ ȱȱȱȱȱ¢ȱȱȱȱȱȱ ȱȱ ȱ ȱ ȱ ȱ custody. 5 Victoria Police (December 2011) ‘Searches of Persons’ Victoria Police Manual – Procedures and guidelines’ Victoria Police (December 2011) ‘Searches of Persons’ Victoria Police Manual – Policy rules’ Ŝȱ ȱȱȱȱȱȱȱǰȱȱȱȱȱȱ¢ȱȱȱȱȱȱ ȱȱ ȱ ȱȱȱȱȱ 11 ‘Stop and search’ powers without arrest Police powers to ‘stop and search’ a person not under arrest, in order to prevent crime, ȱȱȱȱ ǯȱȱȱŗşŞŗȱȱȱȱȱ ȱȱȱ power to search anyone who looked ‘suspicious’. 7 Known as the ‘sus law’, police had the common law authority to stop, search and arrest a person if they suspected the person ȱȁȱȱȱȂǯȱ In early 1980 police use of the sus law ȱȱęȱȱ ȱȱȱ ȱȱ¢ȱȱȱȱ ǰȱ ȱȱȱ ȱȱ¢ȱ ȱ¢ȱȱȱȱ ǯ8ȱ ȱŗşŞŗȱȱȱȱ ȱȱ¢ȱȱ ȱȱȱȱȱȱ ȱĞȱȱȱȱ¢ȱǯȱȱȱ ȱȱȱȱȱȱęȬ¢ȱȱ ȱŗŖŖŖȱȱȱȱȱ ȱǯȱȱ ȱ¢ȱȱȱřŖŖȱȱȱŜśȱȱȱȱȱ ȱ injured. The sus law was eventually abolished in 1984. New laws were introduced which ȱȱȱ¢ȱȱȱȱȱ ȱȱȱȱȱ and search the person.9 In 1994, the Criminal Justice and Public Order Act 1994 (UK) expanded the police powers ȱȱȱȱȱȱȱȱȱ ȱȱ¢ȱȱȱ and, for a maximum period of 30 hours, stop and search anyone in the area without suspicion.10 Weapon control in Australia In Australia, weapon control has traditionally been the responsibility of States and ǯȱȱȱŗşşŖȱȱȱȱ¢ȱȱȱȱȱȱȱ Ȭ ȱȱȱȱȱȱȱǯȱȱȱȱȱȱȱ ȱȱǰȱ ȱ¢ȱęǰȱȱȱǯȱ ȱ ŗşşŖȱ ȱ ȁȬȬȂȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱȱȱȱ ȱȱȱȱȱȱȱȱ weapons would reduce violent or weapon-related crime.11 New South Wales followed suit in 1998.12 7 Vagrancy Act 1824 (UK) Şȱ DZȱǰȱȱ ǯȱǻŗşŞŗǼǰȱThe Brixton Disorders, 10–12th April (1981), London: HMSO; Macpherson,W. (1999), The Stephen Lawrence Inquiry, London: Home Office 9 Police and Criminal Evidence Act 1984 (UK) 10 Criminal Justice and Public Order Act 1994 (UK) s60 11 Control of Weapons Act 1990 (Vic), Weapons Act 1990 ǻǼ 12 Weapons Prohibition Act 1998 (NSW) 12 In Victoria, the Control of Weapons Act 1990 ǻȱŗşşŖȱǼȱȱȱȱȱ ȱ to search a person when they reasonably believed ȱȱ ȱ¢ȱȱȱ ǯȱȱȱ ȱȱȱȱȱȱȱȱȱĜȱ¢ǯ13 ȱŘŞȱȱŗşşŜǰȱřśȱȱ ȱȱȱ¢ȱȱȱȱȱǰȱǯȱȱ ȱȱȱȱ¢ȱĴȱȱȱȱȱȱǯȱ ȱȱ ¢ȱȱ ǰȱȱȱȱǰȱ ȱ ǰȱȱȱȱȱę¢ȱ ȱȱȱȱ ǯȱȱȱȱȱ ȱ ȱěȱȱȱȱȱȱęȱȱǯȱȱęȱȱ ¢ȱȱȱ¢Ȭȱǰȱȱǰȱȱȱȱ ȱ¢ȱǯȱ ȱ ȱ ŗşşşǰȱ ȱ ȱ ȱ ȱ ȱ ȱ Ȃȱȱȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ¢ȱȱȱ schedule of weapons that would be subject to importation and possession controls enforced by Customs.14, 15 From ‘reasonable belief’ to ‘reasonable suspicion’ ȱŘŖŖŖȱȱȱ ȱȱPolice Powers and Responsibilities Act 2000 ǻǼȱȱȱȱȱȱȬǯȱȱȱȱȱȱ Ȭȱȱ¢ȱȱȱȱ ȱȱȱȱȱ ¢ȱ reasonably suspected ȱ¢ȱȱǯȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Law Enforcement (Powers and Responsibilities) Act 2002 ǻǼǯȱȱȱǰȱȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ Ĝȱ had reasonable suspicion ȱȱȱ ȱ¢ȱȱȱǯȱ ȱȱ ȱ ȱȱȱȱȱȱȱȱȱ ȱȱȱȱ ȱȱ ȱȱȱ ȱȱȱȱȱǯ16 The concept of location as ȱȱȱȱȱȱȱȱ ȂȱŗşşŚȱǯ17 13 Knives were later defined as regulated weapons under the Control of Weapons (Amendment) Act (No.
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