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Review of Recent Legislation on Police Powers and Public Behaviour
in New South Wales, Australia: An Olympic Police State?

Written by
Helen Jefferson Lenskyj

The Crimes Legislation (Police and Public Safety) Act, introduced in June 1998, permitted police to conduct an electronic or pat search of a person, their bags or personal effects, in a public place, if the officer had "reasonable" grounds to suspect that the person had a dangerous implement. The officer could also take into account the fact that the person was in a location with a high incidence of violent crime (known as an "operational area" or "crime hotspot". Although police already had "move on" powers, based on 1937 Traffic Regulations, regarding persons loitering in a public street and thereby causing "an inconvenience" to others, the 1998 amendment further empowered police to move on a person believed to be obstructing another person or traffic, harassing or intimidating another person, or causing fear in "a person of reasonable firmness."

The Police and Public Safety Act included some safeguards. It required police officers to identify themselves, to give reason for their direction and to issue a second direction and a second warning before charging the person with an offence (and a fine of up to $220). Moreover, it specifically restricted police "move on" powers in the case of industrial action or peaceful protest, and the operation of the act was to be monitored by the NSW Ombudsman. Even with these provisions, there was early evidence of the arbitrary use of police powers to harass homeless people, youth, Aborigines and sex trade workers. The first Ombudsman's report, released in July 2000, documented the extent of police abuse of "move on" powers: half of the targeted individuals were under 17 years of age, 85% were male, and 22% were Aboriginal or Torres Strait Islander.

The 1997 Children (Protection and Parental Responsibility) Act was passed despite widespread criticism from many sources, including the United Nations. Intended to hold parents responsible for supervising offending children, it provided additional search powers in specified crime hotspots when the person was believed to be 16 years of age or under. In terms of move on and detention powers, the police could remove a child believed to be lacking adult supervision, or one suspected of living in or habitually frequenting a public place. The naming of crime hotspots facilitated routine, random knife searches on groups of young people simply because they were in a particular public space.

The Crimes Amendment (Detention After Arrest) Act of 1997 eroded human rights, including young people's rights, even further. Among its shortcomings was its failure to treat the detention of young people as an action of last resort, and its failure to require a shorter maximum period of detention for those under 18. This legislation became the focus of widespread concern in progressive circles because of its selective implementation and differential impact on disadvantaged youth, most significantly, the targeting of Aboriginal youth in country towns and Indo- Chinese youth in Sydney's western suburbs.

Directly related to the hosting of the Olympic Games, the Homebush Bay Operations Regulation 1999 significantly extended existing police powers, and the powers of persons "authorized" by the Olympic Coordination Authority, in all the sportgrounds at the Homebush Bay Olympic site. These authorized individuals were allowed to remove anyone who contravened the provisions of the regulation, trespassed or caused "annoyance or inconvenience" within the sportsgrounds. (At the time of the Olympics, a full security license in NSW required at least 10 days' training and covered 12 basic competencies, with licensees trained as bodyguards, bouncers and crowd controllers. However, legislation enacted in 1999, the Security Industry (Olympics and Paralympic Games) Act s.5(2), provided for a shortcut in training: a special Olympic security license, effective from August 1 to November 30, 2000 and limited to "patrolling, protecting, watching or guarding property, and using security equipment" at Homebush Bay and other Olympic venues and facilities.

Under the Homebush Bay act, the officer or authorized person was not required to issue a warning, and could use "reasonable" force when removing people, a power that might well prompt resistance on the part of those being targeted. Those charged with trespass would be banned from entering the sportsground for the next 12 months, and, if they did so, or if they were removed a second time, would incur a lifelong ban. Persons charged simply with causing "annoyance or inconvenience" could be banned for up to 6 months if they were to "damage/ destroy/ remove tree/ plant/ vegetation," "leave rubbish/ litter," "use indecent/ obscene/ insulting/ threatening language," "behave in offensive/ indecent manner," or "cause serious alarm/ affront."

On the question of public assemblies or processions, the Summary Offences Act provided for the Police Commissioner to authorize such gatherings. It was not an offence, however, to participate in an unauthorized assembly; authorization merely gave immunity from future prosecution on the two charges of unlawful assembly and obstruction of traffic. In the event that the commissioner refused authorization, he/she was required to consult with the rally organizers, and to obtain a court order. If less than seven days' notice was given and the commissioner refused consent, the organizers could apply to either the District or Supreme Court for authorization.

The Sydney Harbor Foreshore Authority Regulation (SHFA) 1999, by contrast, demanded that all public assemblies be authorized by the SHFA, which had the power to set dates and conditions, or arbitrarily prohibit the assembly, with no recourse open to the organizers. Thus, the new regulation gave the SHFA greater powers than the those of the Police Commissioner. Venues constituting the harbor foreshore, not coincidentally, included the major parks in the CBD that traditionally served as gathering or dispersal points for major political protests. Equally significant was the wide sweep of the SHFA to cover not only the harbor Olympic venues but also major parks, beaches and recreational areas in the suburbs, up to 15 km away from the harbor. During designated "special event activities" associated with New Year's Eve, Australia Day, and the Olympics, Paralympics and Cultural Olympiad, the SHFA could charge admission or prohibit entry to persons possessing alcohol or "any other specified thing" (s.8(3)). Finally, there was no sunset clause on this regulation, which would be applied to special events in these areas at least until its review in 2004.

Additional "move on" powers granted to police officers and rangers by the SHFA Regulation closely resembled those operating in Homebush Bay; causing an annoyance or inconvenience to others, collecting money, trespassing or sleeping overnight were typical offending behaviors. The one safeguard in the SHFA Regulation was the requirement that police or rangers first issue a warning that failure to comply with the request was an offence.

Although the two stated aims of the Olympic Arrangements Act (2000) were the smooth flow of traffic and the prevention of ambush marketing, it was clear that the suppression of political protest was an underlying theme. In the area of commercial activities, the Olympic Arrangements Act made the selling or distribution of articles within 3 km of an Olympic venue or facility, or an Olympic live site without OCA or local council authorization an offence, with a maximum penalty of $5,000, and the possible seizure of the goods for noncompliance with police or OCA staff orders. (The live sites are seven public places in the CBD designated for entertainment and public broadcasts of Olympic events, and included Circular Quay, the Domain, and Martin Place.) Although most provisions of the act were only in force for the duration of the Olympics and Paralympics, several Olympic live sites were already under the jurisdiction of the SHFA and the Darling Harbor Authority, whose restrictions would last at least four more years.

Distribution of unauthorized "articles", including political or other leaflets, was prohibited by the Olympic Arrangements Act, with a fine of up to $5,000. This section was subsequently challenged by both anti-Olympic activists and Christian fundamentalists, but only the latter group succeeded in getting permission to distribute one million religious tracts.

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Updated: October 3, 2000