Thin blue line tangled in red tape

            by a serving NSW police officer

• It is safe to say that few New South Wales citizens are familiar with the Law Enforcement (Powers and Responsibilities) Act, proclaimed on 1 December last year. Most of the state’s police officers, on the other hand, know more about 'LEPRA' than they prefer. Billed as the magic formula that strengthens police powers while protecting the public from their abuse, the law achieves neither and may be undermining both. As our leaders are unwilling to acknowledge LEPRA's glaring flaws, the cause of effective law enforcement now depends on public engagement with this issue.
  
  LEPRA was introduced and sold as a legislative 'one stop shop' for police officers and other stakeholders who need convenient access to the multiplicity of rules and procedures governing the exercise of police powers. Officers would find it easier to understand and observe these provisions, it was thought, if they were brought under a single legislative umbrella, along with the powers extended or curtailed by LEPRA itself.
  
  The move to consolidate police powers can be traced back to the Wood Royal Commission into the NSW Police Service. In his Final Report of May 1997, Mr Justice Wood stated that consolidation would 'help strike a proper balance between the need for effective law enforcement and the protection of individual rights; assist in ensuring clarity in areas where uncertainty exists, and reduce the possibility of abuse of powers through ignorance; and assist in the training of police.'
  
  The key word here is 'balance'; it echoes through all subsequent public statements introducing LEPRA to the parliament and other forums. In his second reading speech in the Legislative Assembly, Attorney-General Bob Debus remarked that police have acquired powers 'to fulfill their role in law enforcement effectively', but in return 'police are required to exercise them responsibly...' Mr Debus declared that LEPRA 'balances these two ideals admirably'.
  
  Of course, balance is in the eye of the beholder. What looks balanced to civil libertarians and defence lawyers may look rather lop-sided to ordinary citizens or victims of crime. Mr Justice Wood did the state a service by exposing some particularly appalling practises, but the heated atmosphere surrounding his enquiry may not have been the best environment to accommodate 'balance', all the more so when judged in the cool aftermath of everyday policing.
  
  Is LEPRA really as 'balanced' as the Minister claims? Three critical changes instigated by the Act are relevant to this question.
  
  First, the conditions under which police may establish a 'crime scene' have been reformed and codified in part 7 of the Act. This power can have a crucial impact on the success of major crime investigations. Attending police officers have always exercised a common law power to seal off the scene of a serious indictable offence to preserve, search for and gather evidence. Now LEPRA prescribes that for crime scenes that are not a public place, investigating officers must obtain a 'crime scene warrant' to exercise certain crime scene powers, maintain the scene for more than 3 hours or establish a scene more than once in a 24 hour period.
  
  In his second reading speech, the Attorney-General referred to what he called 'a two-tiered' approach to crime scenes. He drew a distinction between crime scene powers that relate to the preservation of evidence, such as directing people to leave or preventing them from entering the scene, and powers that are investigatory search and seizure powers. The first category may be exercised for three hours without a warrant, but the second are not authorised unless a warrant is approved.
  
  This reform exemplifies the way that LEPRA spins an illusion of strengthening police powers while actually giving with one hand and taking with the other. The fact that a warrant is not required for crime scenes in a public place (which includes business premises and common areas of flats) was hailed as a shiny new power. But the new requirement for a warrant on private premises amounts to a dead-weight around the neck of investigating officers.
  
  According to LEPRA, officers must seek out a Local Court Chamber Registrar (or after-hours alternative) to approve a warrant before the appropriate crime scene action can be taken. It is perfectly conceivable that this additional layer of bureaucracy will compromise the integrity of some investigations. If for unforeseen reasons the appropriate official is not readily available - a common problem in remote regions - the scene may have to be vacated prematurely. More to the point, defective crime scene warrants now join the plethora of grounds to exclude vital evidence at trial.
  
  Even if the need for warrants is accepted, surely it would have been sufficient for applications to be approved by a senior officer such as an inspector or detective. If police cannot be trusted to perform that function, what can they be trusted for?
  
  This misconceived reform has also raised the absurd spectacle of highly trained and experienced police officers, some belonging to specialised squads, standing idle at a crime scene waiting for the bureaucratic wheels to turn. Of course, this represents a drain on the resources available for frontline policing, a deficit the state can ill afford.
  
  The second important reform relates to new 'safeguards' that police must observe while exercising powers specified in part 15 of the Act. These powers include search or arrest; search of vehicle, vessel or aircraft; entry of premises (not being a public place); search of premises (not being a public place); seizure of property; stop or detention of a person or a vehicle, vessel or aircraft; requesting disclosure of identity; establishing a crime scene; giving a direction; and requesting a person to submit to a frisk or produce a dangerous implement or metallic object.
  
  Each time they exercise any one of these powers, police officers must now provide the person or persons with certain information before or at the time of exercising the power, if it is practicable to do so. The information must include evidence that the officer is a police officer (unless they are in uniform); the police officer's name and place of duty; the reason for the exercise of the power; and a warning that failure or refusal to comply may be an offence. This procedure attracted the acronym WIPE - warn (about failure to comply), inform (of reasons), provide (name and place of duty), evidence (the fact that they are police).
  
  The qualification 'if it is practicable to do so' does not amount to much. In his second reading speech, the Attorney-General said that "even in emergency situations...police should strive to comply with all safeguards set out in the Act".
  
  There is nothing particularly new about the powers enumerated in part 15, which in substance have been recycled from the Crimes Act and common law. However, there is certainly something new about the 'safeguards'. Once again, LEPRA performs the conjuring trick of bestowing with one hand while confiscating with the other. Having to repeat the WIPE formula each time they exercise a power exposes officers to ridicule and contempt. For instance, stopping and searching a vehicle may call for the formula to be repeated up to five or six times. Police work is often performed in volatile and dangerous conditions. In many instances it will be impossible to judge whether or how the 'safeguards' should be observed. This is all fertile ground for enterprising defence lawyers.
  
  Apart from this, the 'safeguards' are a drag on operational efficiency. Officers engaged in the seizure of a large number of unrelated items, for example, should technically WIPE for each of them, with serious implications for the time-frame required to complete the operation. There are reports that the number of breathalyser tests processed in some 'booze bus' operations have fallen by 40 percent since LEPRA was proclaimed. As in the case of crime scene warrants, these hurdles impose an unnecessary burden on the strained resources available for frontline policing.
  
  The third substantial change concerns powers of arrest. Part 8 of the Act recycles provisions of the Crimes Act and, importantly, codifies the common law. In this latter respect, LEPRA constricts the discretion to arrest if there is reasonable suspicion that a person has committed a felony. The second reading speech states bluntly that "arrest is a measure of last resort".
  
  The Act prescribes that police must not arrest unless it is necessary to achieve at least one of six specific purposes. They are to ensure the appearance of someone before court; to prevent repetition or continuation of the offence or the commission of another offence; to prevent the concealment, loss or destruction of evidence; to prevent harassment of, or interference with, any potential witness; to prevent the fabrication of evidence; or to preserve the safety or welfare of the person.
  
  It is not difficult to imagine the impact of these rigid fetters. As stated above, police work is often performed in volatile conditions. Sometimes officers will confront circumstances in which abstract criteria are meaningless. They are now likely to exercise their professional discretion reluctantly, with incalculable consequences for the public interest. This reform transfers more power from police at the scene to lawyers and judicial officers, who will retrospectively ponder the arrest from the comfort of their armchairs.
  
  Balance is in the eye of the beholder. For many observers, LEPRA is not so much balanced as tilting towards civil libertarians and defence lawyers, who insist that police are habitually corrupt and abusive of their powers.
  
  The author is a serving NSW police officer who prefers not to be identified.