Stop and Search without Reasonable Suspicion

For discussion of other extensions of police powers in NSW see Martin Greg , ‘No Worries? Yes Worries!’ (2010) 35 Alternative Law Journal 163.

Delsol Rebekah Shiner Michael , ‘Regulating stop and search: A challenge for police and community relations in England and Wales’ (2006) 14 Critical Criminology 242.

George v Rockett (1990) 170 CLR 101, [1990] HCA 26, [4]. This comment was made in relation to the conditions for granting a search warrant.

Criminal Investigation Amendment Act 2006 (WA) s 68. Such restrictions also apply in other jurisdictions but the focus of this article is WA.

Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303

George v Rockett, above n 3, [4].

The discriminatory use of stop and search powers in the UK has been discussed by, for instance, Pantazis Christina Pemberton Simon , ‘From the “old” to the “new” suspect community’ (2009) 49 British Journal of Criminology 646; Bowling Ben Phillips Coretta , ‘Disproportionate and discriminatory: Reviewing the evidence on stop and search’ (2007) 70 Modern Law Review 936; Waddington P A J Stenson Kevin Don David , ‘In proportion’ (2004) 44 British Journal of Criminology 889.

CIA s 69(1)(c).

The Criminal Investigation Amendment Bill 2009 (WA) was referred to the Standing Committee on Legislation on 26 November 2009 which was due to report on 25 March 2010. The Committee requested an extension due to the controversial nature of the Bill and an extension was granted to 17 June 2010. The Committee has yet to report.

Criminal Investigation Amendment Bill 2009 (WA) c 5 (to insert s 70A into the CIA).

Criminal Investigation Amendment Bill 2009 (WA) c 5 (to insert s 70B(5) into the CIA).

Western Australia, Parliamentary Debates, Legislative Assembly, 14 October 2009, 8024 (Rob Johnson, Minister for Police).

Ibid.

Western Australia, Evidence to Standing Committee on Legislation, Parliament of Western Australia, Perth, 10 March 2010, 4 (Karl O'Callaghan, Commissioner of Police).

Ibid, 5 (Russell Armstrong, General President, WA Police Union).

Barnett Colin Johnson Rob , ‘Greater police search powers to fight drugs and violence’ (Media Statement, 11 October 2009) <mediastatements.wa.gov.au/Pages/default.aspx?ItemId=132600> at 27 July 2010.

Number of reported assaults fell since 2006–7 from 22 873 to 22 708 in 2007–8 and 22 706 in 2008–9; total of offences against the person fell from 34 302 in 2006–7 to 34 021 in 2008–9. See, WA Police, Annual Report 2009 (2009) 37. Reported offences should be placed in context of population growth: Perth grew by 52 200 people (3.2%) in 2008–09 and over five years to June 2009 there was an average annual growth rate of 2.5%. See, Australian Bureau of Statistics, <abs.gov.au/ausstats/abs@.nsf/Products/3218.0∼2008-09∼Main+Features∼Western+Australia?OpenDocument> at 27 July 2010.

Police have extended powers in the UK. See, Criminal Justice and Public Order Act 1994 (UK) s 60 and Terrorism Act 2000 (UK) s 44. See also in Victoria , Control of Weapons Act 1990 (Vic). Details of these powers are discussed following.

Bowling Ben , ‘Zero Policy’, (2008) 71 Criminal Justice Matters 6. Arrest figures are worst in relation to stops under s 44 of the Terrorism Act 2000 (UK) with only around 1 in 400 stops leading to an arrest in connection with terrorism.

ABC Television, ‘WA set to introduce new stop and search laws’, The 7:30 Report, 11 June 2010 <abc.net.au/7.30/content/2010/s2924379.htm> at 27 July 2010.

United Kingdom, Parliamentary Debates, House of Commons, 18 January 2010, col 73 (N Gerrard).

BBC News, ‘Met police stop and search powers “not effective”’, 25 January 2010 <http://news.bbc.co.uk/2/hi/uk_news/england/london/8479124.stm> at 27 July 2010.

ABC News, ‘Is stop and search successful?’, 15 February 2010 <abc.net.au/local/stories/2010/02/15/2819790.htm> at 27 July 2010.

Under s 10G of the Control of Weapons Act 1990 (Vic) police may search a person without reasonable suspicion within an area designated by the Chief Commissioner for not more than 12 hours (s 10D and s 10E).

Vedelago Chris , ‘Police search powers on a knife edge’, The Age (Melbourne), 28 July 2010.

Evidence to Standing Committee on Legislation, Parliament of Western Australia, Perth, 10 March 2010, 7 (Karl O'Callaghan, Commissioner of Police).

Bowling , above n 19, 7.

Ibid.

Western Australia, Parliamentary Debates, Legislative Assembly, 12 November 2009, 8993.

Queensland Bacon Pty Ltd v Rees, above n 5, 303.

WA, Parliamentary Debates, above n 12, 8990 (Rob Johnson, Minister for Police).

WA, Parliamentary Debates, above n 29, 8982 (Margaret Quirk, MLA). See also, 8989 (Rob Johnson, Minister for Police).

Bowling , above n 19, 7.

Western Australia, Parliamentary Debates, Legislative Assembly, 11 November 2009, 8837 (Ben Wyatt, MLA).

Metropolitan Police Authority, Report of the MPA Scrutiny on MPS Stop and Search Practice (2004), 6 <mpa.gov.uk/downloads/stop-search/stop-search-report-2004.pdf> at 27 July 2010.

Ibid 10.

Ministry of Justice, Statistics on Race and the Criminal Justice System 2008/09 (2010), 22, <justice.gov.uk/publications/docs/stats-race-and-the-criminal-justice-system-2008-09c1.pdf> at 27 June 2010.

Blagg Harry , Crime, Aboriginality and the Decolonisation of Justice (2008), 58.

Ibid 59.

Ibid.

Ibid 98. See also, Allard Troy , ‘Police diversion of young offenders and Indigenous over-representation’ Trends and Issues in Crime and Criminal Justice (2010).

Australian Bureau of Statistics, Experimental Estimates of Aboriginal and Torres Strait Islander Australians (June 2006).

Western Australia, Parliamentary Debates, Legislative Council, 14 November 2007, 7055–7056. Ethnicity was only noted in relation to 49.4 per cent of move on notices.

Queensland Department of Communities, Submission to Queensland Crime and Misconduct Commission Review of Police Move-On Powers (2009) <cmc.qld.gov.au/data/portal/00000005/content/71010001243141117410.pdf>. at 27 July 2010.

Terrorism Act 2000 (UK) s 44 also adds the power to stop and search without reasonable suspicion, discussed below.

CJPOA, s 60(1).

Ibid.

Control of Weapons Act 1990 (Vic) s 10D.

Ibid.

Other Australian jurisdictions have also enacted legislation for one-off events; eg, Major Events Security Act 2000 (ACT) and Major Events Act 2009 (NSW). Of course, the danger is that police powers extended for one-off occasions creep into a permanent extension of police powers. For further discussion see, Martin , above n 1, 164.

Gillan and Quinton v The UK [2009] ECHR 28 [87].

Art. 17(1) ICCPR: ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ In Victoria, the Minister for Police noted in the Statement of Compatibility required by s 28 of the Charter of Human Rights and Responsibilities that there are issues of compatibility with provisions of the Control of Weapons Act 1990 (Vic) and the Charter. Victoria , Parliamentary Debates, Legislative Assembly, 12 November 2009, 4018.