The report identifies powers of arrest currently available in Tasmania and the arrest laws that frame such powers, arguing that a proliferation of arrest powers in the state results in arrest laws that are unnecessarily complex, inconsistent and uncertain.
The report recommends consolidation, clarification and simplification of the powers. In particular it calls for the powers to be consolidated into one statute with elimination of the distinction between arrestable and non-arrestable offences, the introduction of protective provisions for vulnerable persons and changes regarding the use of force, entry to private premises, use of arrest warrants and private citizens’ power of arrest.
Specific recommendations are -
R1 That arrest powers contained in Tasmanian statutes be consolidated into one statute.
R2 That the consolidation of arrest laws should take the form of a new Act to be known as the Arrest Act.
R3 That the arrest powers in the Family Violence Act 2004 (Tas), s106L(1)(a) the Justices Act 1959 (Tas), s 55(2E) of the Police Offences Act 1935 (Tas), the Parliamentary Privilege Act 1858 (Tas) and Supreme Court Rules 2000 (Tas) be located in the proposed Arrest Act as exceptions to the general consolidating provisions in that Act.
R4 That the arrest powers contained in the Debtors Act 1870 (Tas) be reviewed with a view to their possible repeal.
R5 That -1) The law of arrest relating to powers of arrest be reformed to eliminate the distinction between arrestable and non-arrestable offences;R6 That a consolidated general power of arrest without warrant be set down in the Arrest Act and that it provide that -
2) The broadened power to arrest be circumscribed by:(a) the statutorily specified requirement that an arrest is to be made only as a matter of last resort; and3) The legislation establish a system of safeguards such as those provided in s 637(2) and (3) of the Police Powers & Responsibilities Act 2000 (Qld) to apply to a police officer’s exercise of the power to effect an arrest in any given case;
b) provision that an arrest must not be made unless the police officer believes on reasonable grounds that specified limiting circumstances exist. In this regard the Institute recommends that the approach in Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) s 99 be adopted in preference to other models in operation in Australia;
4) That this reform be accompanied by reform of the law relating to alternatives to arrest.1) A police officer has a power to arrest without warrant a person whom he or she believes on reasonable grounds to have committed or be committing an offence.R7 That the proposed Arrest Act should include protective provisions for vulnerable persons. A vulnerable person should be defined as a person who falls into one or more of the following categories:
2) This power should be subject to statutorily specified limiting circumstances as suggested in R5.• Young persons;The protective provisions for vulnerable people should stipulate:
• Persons who have impaired intellectual functioning;
• Persons who have impaired physical functioning;
• Aborigines and Torres Strait Islanders;
• Persons who are of non-English speaking background.1) That the arresting officer must record in writing the reason for effecting an arrest rather than employing an alternative to arrest;R8 That laws concerning how an arrest should be executed be located in legislation consolidating powers of arrest.
2) That a vulnerable person must be informed at the time of the arrest of his or her right to communicate with a friend, relative, parent/guardian, responsible person, legal practitioner and/or interpreter (relevant person) as is appropriate;
3) That when a vulnerable person is arrested there should be an obligation to inform a relevant person of the arrest:(a) When a young person is arrested, there should be an obligation upon the police to inform a parent/guardian, responsible person or other relevant person of the arrest.4) That the police must assist an arrestee who is a vulnerable person in communicating with a relevant person and the relevant person should be present during any interview.
(b) When an Aborigine or Torres Strait Islander is arrested the Aboriginal Legal Service should be notified via the on-call Field Officer in accordance with Tasmania Police requirements (Aboriginal Strategic Plan).
(c) If a person with impaired intellectual or physical functioning is arrested, there should be an obligation upon police to notify a relevant person or responsible person as appropriate.
5) That when a person from a non-English speaking background is arrested the police officer conducting the investigation must defer any questioning until an interpreter is present.
R9 That the consolidating legislation provide that -1) It is the duty of a person arresting another, whether with or without warrant, to inform the other person, at the time of the arrest, of the process or warrant under which he or she is acting, or of the offence for which the other person is being arrested.R10 That the present Tasmanian Criminal Code provisions concerning the use of force in relation to arrests (ss 26, 30, 31 and 32) be repealed and reformed to enact the principle of proportionality as follows -
2) It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
3) This subsection does not apply to the arrest of the other person if -(a) the condition or duties of the person making the arrest make it impracticable to perform this duty; or (b) the other person’s actions or condition make it impracticable for the person making the arrest to perform this duty.(4) A failure to fulfill either of the aforesaid duties -(a) Will make the arrest or the execution of the process or warrant unlawful; but (b) Shall not of itself deprive the person executing the process or warrant or making the arrest, or his or her assistants, of protection from criminal responsibility, but shall be relevant to the question whether the process or warrant might not have been executed or the arrest made by reasonable means in a less forcible manner.(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.R11 That the recently legislated s 26A of the Criminal Code Act 1924 (Tas) be relocated to legislation consolidating the powers of arrest. The expression ‘premises’ should be defined as including any land, building, structure, motor vehicle, vessel or aircraft. The power of entry should be subject to additional safeguards such as those contained in the Police Powers & Responsibilities Act 2000 (Qld), the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) and Crimes Act 1914 (Cth) including -
(2) Without limiting the operation of subsection (1), a person, in the course of arresting another person for an offence, may cause such damage to property that is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(3) Without limiting the operation of subsections (1) and (2), a police officer must not, in the course of arresting a person for an offence:(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); or
(b) if the person is attempting to escape arrest by fleeing – do such a thing unless: (i) the police officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the police officer); and (ii) the person has, if practicable, been called on to surrender and the police officer believes on reasonable grounds that the person cannot be apprehended in any other manner.1) A requirement that the police must have reasonable grounds for believing that the person to be arrested is on the premises;R12 That the proposed Arrest Act contain a codified model for the issuing and execution of arrest warrants in a framework similar to that which applies currently to search warrants. That the Act specify the criteria for the issue of the warrant, consistent with those provided for the making of an arrest without a warrant. Further, that the Act require that –
2) A requirement that the police supply their details to the occupants and remain on the premises to effect the arrest for only such time as is reasonably necessary in the circumstances; and
3) That the police not exercise their powers of entry between the hours of 9.00 pm and 6.00 am unless they have reasonable grounds to believe that it would not be practicable to arrest the person at another time or it is necessary to do so in order to prevent the concealment, loss or destruction of evidence.1) Information be provided on oath or affidavit stating the reasons for seeking the arrest warrant;R13 That the power of arrest pursuant to an arrest warrant currently set down in ss 21(2), (3) and (4) of the Criminal Code be relocated to the legislation consolidating powers of arrest.
2) The judicial officer satisfy him or herself that the stated reasons establish reasonable grounds for issuing the warrant, or that there are other such grounds; and
3) The judicial officer endorses the affidavit stating the reasons on which she or he relies to issue the warrant.
R14 That all arrest powers without warrant of authorised persons be included in the Act consolidating arrest powers. Those powers should be made exercisable on the same grounds as those specified for police (along with the same restrictions) but be limited to the specified offences for which the authorised persons currently have the power to arrest. The offences and relevant authorised persons should be set out in a schedule to the consolidating Act.
R15 That government departments and agencies that empower authorised persons to arrest under legislation that they administer, begin to record and disclose publicly data on the number of arrests executed by their authorised officers and the outcome of those arrests.
R16 That private citizens’ powers of arrest be consolidated in legislation consolidating arrest powers. That private citizens’ powers of arrest be limited to persons found offending where the offence involves –1) Substantial injury to the person of another;R17 That the duty of private citizens to make an arrest be incorporated into legislation consolidating arrest powers but be limited to the situation where a police officer calls upon them to provide assistance in the making of an arrest.
2) Serious danger of such injury;
3) Loss of any property of the person so arresting, or of any person by whom he or she is authorised to effect the arrest; or loss of any property of which the person arresting has charge;
4) Serious injury to any property;
5) Injury to the property of a public authority; or
6) Escape from some person reasonably believed to have authority to arrest the escapee.
R18 That the powers of arrest granted to private citizens under the Bail Act 1994 (Tas), Second-hand Dealers & Pawnbrokers Act 1994 (Tas) and ss 27(10) and (11) of the Criminal Code Act 1924 (Tas) be repealed and incorporated into the new consolidating legislation.
R19 To promote further alternatives to arrest and to enhance arrest as a measure of last resort, a statutory regime, similar to that contained in the Police Powers & Responsibilities Act 2000 (Qld), ss 382-390, should be enacted enabling the police to issue on-the-spot attendance notices.
