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Review of Emergency Powers to Prevent or Control Disorder September 2007 Review of Emergency Powers to Prevent or Control Public Disorder September 2007 Any correspondence relating to this review should be sent to: Review of Emergency Powers to Prevent or Control Public Disorder NSW Ombudsman Level 24, 580 George Street Sydney NSW 2000 Phone (02) 9286 1000 Toll free (outside Sydney Metro Area): 1800 451 524 Facsimile: (02) 9283 2911 Telephone typewriter: (02) 9264 8050 Website: www.ombo.nsw.gov.au Email: [email protected] ISBN 978-1-921131-76-9 © Crown Copyright, NSW Ombudsman, September 2007 This work is copyright, however material from this publication may be copied and published by State or Federal Government Agencies without permission of the Ombudsman on the condition that the meaning of the material is not altered and the NSW Ombudsman is acknowledged as the source of the material. Any other persons or bodies wishing to use material must seek permission. September 2007 Level 24 580 George Street Sydney NSW 2000 Phone 02 9286 1000 Fax 02 9283 2911 Tollfree 1800 451 524 TTY 02 9264 8050 Web www.ombo.nsw.gov.au The Honourable John Hatzistergos MLC Attorney General Level 33, Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000 Dear Attorney Under section 87O of the Law Enforcement (Powers and Responsibilities) Act 2002 I have been required to keep under scrutiny the exercise of powers conferred on police officers under the Part 6A emergency powers. I am pleased to provide you with my report, which details the activities undertaken, and my findings and recommendations that result from this review. I draw your attention to section 87O(5) of the Act that requires you to table this report in both Houses of Parliament as soon as practicable. Yours sincerely Bruce Barbour Ombudsman NSW Ombudsman Review of Emergency Powers to Prevent or Control Public Disorder 3 September 2007 Level 24 580 George Street Sydney NSW 2000 Phone 02 9286 1000 Fax 02 9283 2911 Tollfree 1800 451 524 TTY 02 9264 8050 Web www.ombo.nsw.gov.au The Honourable David Campbell MP Minister for Police Level 35, Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000 Dear Minister Under section 87O of the Law Enforcement (Powers and Responsibilities) Act 2002 I have been required to keep under scrutiny the exercise of powers conferred on police officers under the Part 6A emergency powers. I am pleased to provide you with my report, which details the activities undertaken, and my findings and recommendations that result from this review. I note the NSW Police Force was provided with a draft of the report. Where appropriate, the police comments have been incorporated into the final report. I draw your attention to section 87O(5) of the Act that requires the Attorney General to lay a copy of this report before both Houses of Parliament as soon as practicable. Yours sincerely Bruce Barbour Ombudsman NSW Ombudsman 4 Review of Emergency Powers to Prevent or Control Public Disorder Foreword The Part 6A emergency powers to prevent or control public disorder were enacted in direct response to mob violence that occurred at Cronulla, Sydney on 11 December 2005 and the reprisal attacks in Sydney’s southern and eastern suburbs in the days that followed. The unexpected intensity of the violence and the speed and unpredictability of the attacks presented acute challenges for police. There were few precedents for policing this kind of apparently indiscriminate violence on such a large scale. Our review of the few occasions that police have used these extraordinary powers to date has found that police acted in a responsible and appropriate manner. The available evidence indicates that authorisations to use the powers were only granted in circumstances where senior police were genuinely of the view that other, less intrusive policing measures would be insufficient to restore order or prevent further attacks. An obvious difficulty in providing Parliament with information about and analysis of the practical application of these kinds of emergency powers is that they are seldom used, reflecting the fact that public disorder on this scale is fortunately very rare. Some of the powers are yet to be used at all. This means the potential operational value of the provisions and the extent of possible shortcomings will not be fully tested unless and until the laws are used in a range of circumstances. When introducing these exceptional police powers, Parliament took special care to ensure detailed oversight of their use. Until the community can be confident they will work in practice, and in a range of emergency situations, detailed annual reporting and some form of independent scrutiny of future police uses of the powers would seem to be an essential safeguard. I trust that this report will assist the Parliament in considering the future of the Part 6A emergency police powers. Bruce Barbour Ombudsman NSW Ombudsman Review of Emergency Powers to Prevent or Control Public Disorder 5 Glossary CAN Court Attendance Notice CCTV Closed circuit television COPS Computerised Operational Policing System, the primary NSW Police Force computer system for recording and retrieving information FCAN/Field CAN Field Court Attendance Notice EAFZ Emergency alcohol-free zone ECLO Ethnic Community Liaison Officer, a NSW Police Force position Emergency Powers Refers to the police powers throughout Part 6A HWP Highway Patrol, a NSW Police Force unit LAC Local Area Command LGA Local Government Area Liquor Powers Refers to the liquor powers or restrictions in Division 2 of Part 6A LEPRA Law Enforcement (Powers and Responsibilities) Act 2002 MLA / MLC Member of the Legislative Assembly / Member of the Legislative Council MP Member of Parliament NSWPD New South Wales Parliamentary Debates (Hansard) OSG Operations Support Group, a NSW Police Force unit POI Person of Interest Special powers Refers to the powers in Division 3 of Part 6A SOPs Standard Operating Procedures Part 6A The Part inserted into the Law Enforcement (Powers and Responsibilities) Act 2002 to create emergency police powers to prevent or control public disorder NSW Ombudsman 6 Review of Emergency Powers to Prevent or Control Public Disorder Contents Executive Summary Summary of Recommendations Chapter 1. Introduction New Part 6A emergency powers for police ................................................................................................ 1 Our role and this report .............................................................................................................................. 1 Chronology of events .................................................................................................................................. 1 Methodology ................................................................................................................................................ 3 Chapter 2. Implementing the Act Operation Seta ............................................................................................................................................. 5 NSW Police Force preparations for using the powers ............................................................................... 6 Other recorded uses of Part 6A .................................................................................................................. 6 Incidents where police chose not to use the emergency powers ............................................................. 7 Chapter 3. Emergency powers for emergency situations Defining ‘large-scale public disorder’ ........................................................................................................ 9 Policing public demonstrations and protests ......................................................................................... 10 Summary .................................................................................................................................................... 11 Chapter 4. Liquor controls Emergency prohibition on the sale or supply of liquor ........................................................................... 13 Emergency alcohol-free zones ................................................................................................................. 16 Chapter 5. Authorising the use of ‘special powers’ The authorisation provisions .................................................................................................................... 19 Use of authorisations ............................................................................................................................... 20 Where authorisations were considered but not used .............................................................................. 22 Issues associated with authorising the use of the emergency powers .................................................. 23 Defining a ‘public place’ ............................................................................................................................ 28 NSW Ombudsman Review of Emergency Powers to Prevent or Control Public Disorder 7 Chapter 6. Core powers Establishing cordons and roadblocks ...................................................................................................... 33 Stopping and searching vehicles and people ......................................................................................... 38 Requiring the disclosure of identity ......................................................................................................... 41 Seizing
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