The Extraordinary Powers of the Western Australia Police Force

By Tom Penglis, Law

The State Government is enjoying the largest state parliamentary majority in history. The Government is taking advantage of this position to enact various extraordinary lawsaimed at addressing crime. This legislation is politically popular and creates the perception that the Government is effectively tackling crime in our communities. This is in large part thanks to the often friendly and sensationalised media reporting of these laws.

Whether such legislation is effective at addressing crime in our communities is not the focus of this article. Rather, this article is chiefly concerned with the draconian nature of these laws and the threat that they pose to the effective separation of powers and rule of law in Western Australia. This article briefly sets out some of the extraordinary new powers given to WA Police since the last State election, and the concerning manner in which some of the empowering laws were developed. In so doing, I will seek to demonstrate that the McGowan Government is:

1. enacting legislation that confers extraordinary powers on WA Police at a concerning rate;

2. as part of these laws, significantly eroding the judiciary’s role as a “check and balance” on the exercise of executive power; and

3. giving WA Police an inappropriately intimate role in the genesis and development of these laws.

Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (CLUCPI Act)

In December 2021, the Government passed the CLUCPI Act with the stated purpose of making WA as inhospitable as possible to outlaw motorcycle gang (OMCG) members.

This Act relevantly empowers the Police to issue unlawful consorting notices to prevent relevant offenders from communicating with any number of people who have also been convicted of an indictable offence, for a period of three years. a relevant offender is anyone convicted of any indictable offence under State or Commonwealth law, a child sex offence, or of merely displaying OMCG insignia in a public place (among other things). The maximum penalty for breaching a consorting notice is five years’ imprisonment.

There is an extremely low bar to issuing unlawful consorting notices. The relevant offender must be an adult, must have consorted with another relevant offender, and the issuing senior Police Officer must merely “consider that it is appropriate” to issue the notice in order to "disrupt or restrict the capacity of relevant offenders to engage in conduct constituting an indictable offence" There is no requirement for this belief to be on reasonable grounds – it is an entirely subjective determination by the relevant Officer.

There is no judicial oversight of these extraordinary police powers. The Act is monitored by the Parliamentary Commissioner, but this is purely a reporting and recommendatory role. If a person wants to appeal a consorting notice, they must do so directly to the Commissioner of Police. So, a senior Police Officer can prohibit relevant offenders from communicating with each other for three years on a ‘hunch’, without any judicial oversight.

Liquor Control Amendment (Protected Entertainment Precincts) Act 2022 (WA) (PEP Act)

The PEP Act (which passed through Parliament on 30 November 2022) relevantly gives WA Police the power to impose “short-term exclusion orders”. Short-term exclusion orders operate to ban people from all “protected entertainment precincts” (PEPs) – large swathes of Perth/Northbridge, Fremantle, Scarborough, Hillarys, and Mandurah – for up to six months. Short-term exclusion orders can be imposed even if someone acts in no more than an anti-social, disorderly, indecent or offensive manner.

The PEP Act largely excludes review of short-term exclusion orders by the Courts. Extraordinarily, appeals of short-term exclusion orders are made to the Liquor Commission. The Commissioner of Police can apply to have short-term exclusion orders extended for up to five years – again not to a court, but to the Director of Liquor Licensing. The roles of the Director and the Liquor Commission in this regime are wholly inappropriate considering the draconian nature of exclusion orders, and the fact that exclusion orders can be imposed for reasons that are entirely unrelated to alcohol or licensed premises.

Accordingly, the Police have the power to cause people to be banned from all of these precincts for up to five years for acting in no more than an “offensive” manner (whatever that means), with no meaningful judicial oversight. These broad powers go much further than what is necessary to prevent violent and sexual offending from occurring in these precincts. Numerous organisations, including the Law Society of Western Australia and the Aboriginal Legal Service of Western Australia, have (rightly, in my view) voiced concerns that these powers will disproportionately impact Aboriginal people, homeless people, and people with mental illnesses/disabilities, among others.

The PEP Act also requires the Commissioner of Police to create guidelines in relation to the types of behaviour that justify the imposition of short-term exclusion orders, and the circumstances and manner in which shortterm exclusion orders will be imposed. This empowers the Police to define the scope of their own powers, since the Commissioner of Police can essentially decide (for example) what behaviours are “offensive” and “disorderly”. This is inappropriate given the draconian nature of short-term exclusion orders. The scope of extraordinary executive powers should be determined by our lawmakers – not by the executive agency exercising those powers.

Concerningly, then-Racing and Gaming Minister, Tony Buti, stated in Parliament that these guidelines are an internal WA Police document that “will not be available for general public access or subject to application under freedom of information legislation”. Nor will the guidelines be subject to legislative review since they are not subsidiary legislation. Accordingly, the public will not know what behaviours justify the Police issuing short-term exclusion orders, nor how the power to impose shortterm exclusion orders will be exercised. Among other things, this means that the public will not be able to readily determine whether the Police are properly exercising these powers.

There is no simply good reason for this. As it stands, these guidelines are inconsistent with the separation of powers and the publicity of laws, both of which are fundamental to the rule of law in a democracy like ours.

Firearms Amendment Act 2022 (WA): Firearms Prohibition Orders (FPOs)

The State Government’s recent amendments of the Firearms Act 1973 (WA) which introduce FPOs largely emulate the New South Wales FPO regime, which has been in place since 2013. A person subject to an FPO is prohibited from:

• possessing or using firearms, firearm parts, firearm accessories, and ammunition;

• being in the company of people in possession of such items; and

• entering, remaining on, or residing at various places, such as shooting ranges, paintball clubs, and premises where firearms/ ammunition are stored.

FPOs last for a period of 10 years. These restrictions are arguably justifiable when dealing with highly dangerous or serial offenders. However, the search powers that accompany these restrictions are not. Police Officers can conduct a warrantless search of any property or vehicle that a person subject to an FPO possesses or owns, and the person themself, if the search is “reasonably required” to determine whether the person has breached the FPO. This is an extremely low threshold; there is no requirement that the Officer suspects on reasonable grounds that the person has breached the FPO. It is difficult to imagine a situation where a search of the person and/or their property is not “reasonably required” to determine whether there is (for example) ammunition on that person and/or property, and hence whether the relevant FPO has been breached.

The criteria and procedure governing the imposition of FPOs is also troubling. Yet again, the Courts have no role whatsoever. Rather, the Commissioner of Police can impose an FPO on anyone he wants, so long as he is satisfied that either:

1. the person is not a fit and proper person to possess a firearm or ammunition;

2. the person possessing a firearm would likely result in undue danger to life or property; or

3. it is otherwise in the public interest to impose an FPO on the person.

The first and final criterion are highly subjective and would likely justify the imposition of FPOs for nebulous reasons. Accordingly, FPOs could theoretically be imposed on virtually anybody. The subjective criteria and broad discretion given to the Commissioner of Police to impose FPOs means that it would be very difficult to successfully challenge such orders.

Police Minister, Paul Papalia, has stated: [FPOs were legislated] to specifically target outlaw motorcycle gang members, terrorists and serious domestic violence offenders. Those are the three types of people who I have stated in my second reading speech that will be subject to the firearms prohibition orders that we are creating with this legislation.

If that is the Government’s genuine intention, then it should be enshrined in the relevant legislation instead of giving extremely broad discretion to the Commissioner of Police to impose FPOs on virtually whoever he wishes.

In short, Police Officers can effectively search people subject to an FPO, without a warrant or any other form of prior judicial oversight, whenever they feel like it. The risk of the Police misusing these broad search powers, either willingly or unwillingly, is not fanciful. In relation to these powers, the Law Reform Commission of Western Australia has stated:

The Commission has been provided no evidence to suggest that such broad powers are necessary in Western Australia and views the potential impact of the exercise of these powers on individuals as a serious concern.

The

inappropriate role of WA Police in the legislative process

A separate but related issue concerns WA Police’s involvement in the development of some of these laws. Specifically, many of these extraordinary police powers have been created at the request of WA Police, with the Police (at times) having an intimate involvement in the development and implementation of the relevant legislation.

WA Attorney-General, John Quigley, has stated that the CLUCPI Act “was brought about by a police request for legislation to suppress [OMCGs]” and was subsequently “designed by the police.” Mr Quigley also stated that WA Police Det-Insp. Peter Foley worked on developing the CLUCPI Act “for a couple of years”. Similarly, Parliamentary Secretary to the Attorney-General, Matthew Swinbourn, has stated that the CLUCPI Act was developed in “very close” and “intimate” consultation with WA Police after “the Police asked for” the powers in the legislation. In relation to the Firearms Amendment Act 2022 (WA), Minister Papalia has stated that the “Police sought this legislation to complement [the CLUCPI Act].”

The degree of influence that WA Police has had in the drafting and implementation of these laws is fundamentally inappropriate and unduly infringes the separation of powers. In 1748, Montesquieu, the French Enlightenment political philosopher who first conceptualised the separation of powers doctrine between legislative, executive and judicial branches of government, wrote about the danger of unifying executive and legislative power: When the legislative and executive powers are united in the same person, or in the same [body], there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

It is one thing for the Police to be consulted in the development of criminal laws. Indeed, it would be remiss of Parliament not to do so. However, it is an entirely different notion for the Police to be requesting extraordinary powers and then being “intimately” involved in “designing” the laws that confer those powers. Moreover, as previously noted, the PEP Act guidelines permit the Commissioner of Police to effectively define the boundaries of WA Police’s power under that Act.

Montesquieu’s words underpin why the blurring of executive and legislative power is inappropriate in any event. In this context, it is made all the more egregious by the draconian nature of the powers being created and exercised. Such practice cannot be accepted as the norm; there must be a clear demarcation between those tasked with law making and those tasked with law enforcement.

Criminal Organisations Control Act 2012 (WA) (COC Act)

The statutory review of the COC Act elucidates a key reason for these laws. The COC Act was enacted with largely the same rationale as the above legislation, namely, preventing and disrupting serious and organised crime. It provides for a system whereby the Commissioner of Police or Corruption and Crime Commissioner may apply to an incumbent or former Supreme Court judge for a declaration that an organisation is a criminal organisation. Notably, reasons must be given for why a declaration is or is not made, and these reasons must be made public.

Following a declaration, the Commissioner of Police may then apply to the Supreme Court to impose control orders on members of those organisations. Control orders can impose a range of restrictions on the impugned person’s liberty, including with respect to firearms, movement restrictions, and consorting.

The statutory review notes that “the powers conferred under the [COC] Act have not been exercised”; namely, no applications for criminal organisation declarations have ever been made.

Former Commissioner of Police, Chris Dawson AC APM, gave the following reasons for this:

• the current application process to declare an organisation as criminal is difficult;

• the preparation of an application is a lengthy and resource intensive process;

• it could take months for a judge to make a finding; and

• the process is complicated by the fact that membership of criminal organisations is dynamic.

Accordingly, the procedure under the COC Act seems to be administratively unworkable. To address this, the State Government could have amended the COC Act to make the process less burdensome, whilst retaining a degree of substantive judicial oversight. For example, it could have retained the requirement for applications to be made to the Supreme Court to impose control orders but removed the need to apply to a judge for criminal organisation declarations.

Instead, the State Government introduced the laws discussed in this article. These laws largely, if not entirely, remove judicial oversight of these processes and instead give WA Police effectively unchecked power. This is a concerning overcorrection. The Police should need to jump through some substantive hoops – including persuading a judicial officer – before being able to significantly restrict a person’s civil liberties on the basis of the perceived future risk that that person poses to the community.

Conclusion

I am not suggesting that the Police should not have effective powers at their disposal to tackle serious and organised crime. Nor am I suggesting that there should be unnecessary layers of bureaucracy frustrating the efforts of WA Police to prevent such crime. However, effective and efficient policing must not be achieved at the expense of fundamental democratic principles.

These powers are not being adequately scrutinised before they are becoming law. While they are Government initiatives, the Liberal and National parties have supported these laws almost unconditionally. Moreover, there is often little scrutiny in the media, in large part because articles regarding the rule of law and separation of powers are far less glamorous than front page articles about “bikie-busting” laws.

Endnotes

1 Government of Western Australia, “New laws give police powers to disrupt and dismantle criminal gangs”, Media Statement (13 October 2021) <https://www.mediastatements. wa.gov.au/Pages/McGowan/2021/10/New-laws-give-policepowers-to-disrupt-and-dismantle-criminal-gangs.aspx>.

2 See Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) pt 2 div 2 (CLUCPI Act).

3 CLUCPI Act s 17(1).

4 CLUCPI Act s 9(1).

5 See CLUCPI Act pt 4.

6 CLUCPI Act ss 15(1), 16(1).

7 The PEP Act also introduces harsh mandatory five-year bans from PEPs for people convicted of prescribed offences committed in a PEP.

8 See Liquor Control Amendment (Protected Entertainment Precincts) Act 2022 (WA) pt 2 div 2 (PEP Act).

9 PEP Act s 152ND(2)(a).

10 The Supreme Court only has jurisdiction to hear appeals on questions of law, and only in certain circumstances: see Liquor Control Act 1988 (WA) ss 28(1)-(3).

11 PEP Act s 152NH.

12 PEP Act s 152NJ.

13 See, for example, Law Society of Western Australia, “Law Society Raises Concerns on the Liquor Control Amendment (PEP) Bill 2022” (14 October 2022) <https://www. lawsocietywa.asn.au/news/law-society-raises-concernson-the-liquor-control-amendment-pep-bill-2022/>; Dechlan Brennan, “WA entertainment precinct laws will target Aboriginal people, legal experts warn”, National Indigenous Times (15 November 2022) <https://nit.com.au/15-112022/4306/wa-entertainment-precinct-laws-will-targetaboriginal-people-legal-experts-warn>.

14 PEP Act s 152NI.

15 Hansard, Legislative Assembly (16 November 2022) <https://www.parliament.wa.gov.au/Hansard/hansard. nsf/0/7BF40F0AC4C8601B48258901001BC037/$file/A41%20 S1%2020221116%20All.pdf> 5418.

16 PEP Act s 152NI(6).

17 | See Firearms and Criminal Groups Legislation Amendment Act 2013 (NSW).

18 Firearms Act 1973 (WA) ss 29J-29L (Firearms Act).

19 Firearms Act s 29G(2).

20 Firearms Act ss 26C(1)(a), 26D(1)(a).

21 Firearms Act s 29A(1).

22 See, eg, Hansard, Legislative Assembly (23 February 2022) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/4EE5CCAC86F826DD482587F4002AE30E/$file/ A41%20S1%2020220223%20All.pdf> 597. See also at 610, 612.

23 In contrast, the imposition of FPOs in South Australia is overseen by the judiciary: see Firearms Act 2015 (SA) pt 8.

24 Law Reform Commission of Western Australia, “Review of the Firearms Act 1973 (WA)” (October 2016) 137.

25 Hansard, Legislative Assembly (10 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard.nsf/0/ F9B884C231F3F04F4825878B002C6959/$file/A41%20S1%20 20211110%20All.pdf> 5225.

26 Hansard, Legislative Assembly (9 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/704A11E223E9FFCE482587B4000C5853/$file/A41%20 S1%2020211109%20All.pdf> 5163.

27 Hansard, Legislative Council (30 November 2021) <https://www.parliament.wa.gov.au/Hansard/Hansard.nsf/0/ AB0321B1E64E609F482587CE000802FF/$file/C41%20S1%20 20211130%20All.pdf> 6019.

28 Hansard, Legislative Assembly (23 February 2022) <https://www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/4EE5CCAC86F826DD482587F4002AE30E/$file/A41%20 S1%2020220223%20All.pdf> 611.

29 Charles de Secondat, Baron de Montesquieu, The Spirit of Laws, revised ed (New York, Colonial Press, 1899) Book 11, 151.

30 Government of Western Australia, “Statutory Review of the Criminal Organisations Control Act 2012” (4 October 2019) (COC Act Review).

31 See Criminal Organisations Control Act 2012 (WA) s 4(1)(a) (COC Act).

32 See COC Act pt 2.

33 See COC Act s 14.

34 See COC Act pt 3 div 2 sub-div 1, div 3 sub-div 1-2.

Penglis

The minimisation of judicial checks and balances on the exercise of coercive executive power frustrates the separation of powers. As does WA Police having an excessive degree of influence in the drafting of criminal laws. We should not (and I would argue, the legal profession must not) sit idly by while any government erodes the fundamental principles on which our system of government is predicated.b y Tom

35 See COC Act s 58, pt 3 div 5.

36 COC Act Review, 8.

37 COC Act Review, 22.

38 This proposition has not been tested in WA since no application has been made under the COC Act.

39 The latter step being the burdensome hurdle facing WA Police and the Corruption and Crime Commission.

40 For the Attorney-General’s references to the deficiencies within the COC Act regime, see, for example: Hansard, Legislative Assembly (9 November 2021) <https:// www.parliament.wa.gov.au/Hansard/Hansard. nsf/0/704A11E223E9FFCE482587B4000C5853/$file/ A41%20S1%2020211109%20All.pdf> 5163, 5165.