"To review the law relating to proceedings by and against the Crown and incidental matters."

2. In the course of this work, which involves consideration of the legal liability of the State for torts committed by officers of the Crown, we drew to the attention of the Attorney-General that it is manifest that the provisions of Part IV of the Police Offences Act, 1901, as amended, the legislation dealing with the office of special constables, are anachronistic and confused. We suggested that a review of the law relating to the appointment, control and discipline of special constables, and incidental matters, was desirable as a preliminary step to completion of our work on the reference referred to in paragraph 1.

3. On the 18th August, 1971, the Attorney-General made a further reference to us in the following terms -

"To review the law relating to the appointment, control and discipline of special constables and incidental matters."

4. Appendix A sets forth Part IV of the Police Offences Act, 1901, as amended (hereafter referred to as the Police Offences Act).

5. There are approximately 3,000 special constables for New South Wales. Appendix B sets forth a disection, prepared in 1967, of persons then holding the office. We are informed by the Police Department that this disection fairly indicates the present position.

6. Some reference to history is necessary to an appreciation of how it has come about that the present legislation as to special constables is as contained in Part IV of the Police Offences Act, 1901, as amended.

7. The office of the special constable was created in England in the seventeenth century. "Their enrolment has always been one of the most peculiarly English ways of dealing with an emergency. A statute passed in the reign of Charles II (13 & 14 Car.2, c.12) is the foundation of the subsequent legislation for the appointment of special constables, that is of constables appointed not, as in the ordinary course ... but for a special emergency. As a general rule they acted under the immediate direction of the magistrates, either as an independent body or in conjunction with other branches of the civil force. They kept reappearing on the scene with remarkable regularity, for their enlistment became a matter of routine whenever the peace was seriously threatened." (Radzinowicz, A History of English Criminal Law, 1956, Vol.2, p.215.) They performed useful service, particularly before the development in England and in Wales of regular police forces which were adequately organised and sufficient in numbers. In the troubled years of 1819-1820, for example, special constables were frequently called out to disperse mobs. In 1821 legislation was enacted (1 Geo.4, c.37) "under which magistrates were given power to appoint special constables, not only in case of actual tumult, riot or felony, but also as a preventative measure whenever they received information that any such emergency might be impending ... Only when the new Metropolitan Police Force had become firmly established did this gallant branch of incidental police lose much of its former importance. But it never went entirely out of existence. It was used on many occasions in the provinces, where the new machinery for keeping the peace was built by a slower process. Fresh legislation was even passed to give new vigour to this ancient area of the civil power (Special Constables Act 1831; 1&2 Will.4, c.1 as amended by 5 & 6 Will.4, c.43). Little recourse, however, was made to these provisions, 'as bodies of undisciplined men are apt to do more harm than good in cases of riot'. But just when it appeared that this useful force might be fading out of existence, there arose the occasion for their greatest mobilisation. On April 10, 1848, a vast army of special constables were sworn to protect London and elsewhere from the violence of Chartist demonstrators." (id., at pp.223-224).

8. In 1855, legislation, embodying the substance of the English legislation as to special constables, was enacted in New South Wales (Police Regulation Act, 1855; 19 Vict. No.24, ss. 12-18). By section 12 -

"In all cases where it shall appear to any Police Magistrate or any two Justices that any tumult riot or felony has taken place or may "be reasonably apprehended in any city, town or place and he or they shall be of opinion that the ordinary constables ... are not sufficient for the preservation of the peace ... it shall be lawful for any Police Magistrate or any two Justices to nominate and appoint ... so many as he or they shall think fit of the householders or other persons ... residing in or near such city, town or place* to act as special constables for such time and in such manner as to the said Police Magistrate or Justices shall seem fit ..."

Section 14 provided -

"Every special constable appointed under this Act shall have exercise and enjoy all such powers, authorities advantages and immunities and be liable to all such duties and responsibilities as any constable duly appointed ..."

By section 16 the Police Magistrate or Justices who appointed any special constable who was "called out" were "empowered to suspend or determine the services of all or any the said special constables".

The text of this legislation appears as Appendix C.

9. It is noteworthy that this legislation, enacted in 1855, makes little mention of the regular police force other than to recognise that it may he inadequate. This is not surprising. The regular police force of the Colony was then at a very early stage of its development (see the Act of Council, 1850; 14 Vic. No.38: the Police Regulation Act, 1852; 16 Vic. No.33 ). It was not until 1853 that regular constables were empowered to act as constables throughout the whole of the Colony (Police Regulation (Amendment) Act, 1853; 17 Vic. No.14). It may be accepted that it was considered appropriate to conditions in the Colony in 1855 that enlistment of special constables be in the discretion of the local magistrates (or justices), acting on their own initiative; that the occasion of their enlistment be a situation of emergency in the local district with which the regular police force could not cope; that the purpose of appointment be for preservation of the peace in the local district; that the power of control over them be vested in the magistrates (although they could place them under the orders of a police officer); and that the magistrates alone be able to suspend or terminate their services. No power of appointment or discipline of special constables or of suspension or termination of their services was conferred upon the officer in command of the regular police force.

10. Special constables appointed and called out, under the legislation of 1855, did serve a useful function. This is illustrated by a report in the Sydney Morning Herald of 28th September, 1890, that a riotous assembly "estimated to number quite 10,000" were cleared from the Quay area, after several police had been injured by stone-throwing, by 36 mounted troopers, about 60 of the regular police and nearly 200 special constables. But it is not within the memory of the present Commissioner of Police that special constables have been appointed or called out to deal with any actual or apprehended "tumult, riot or felony".

11. The present legislation, Part IV of the Police Offences Act, is substantially the legislation of 1855, amended from time to time to enlarge the power of magistrates to appoint special constables. The legislation of 1855 was in substance re-enacted as Part IV of the Police Offences Act, 1901. This Act was a consolidation by Commissioner Heydon of several Acts dealing with offences punishable by magistrates. The probable explanation of the inclusion in the consolidating Act of provisions as to the appointment and control of special constables is that the Police Regulation Act, 1855, in others of its sections, did deal with offences punishable by magistrates. Nevertheless the inclusion in the Police Offences Act, 1901, of provisions as to the appointment and control of special constables has perpetuated a separation of the legislative provisions as to them from those dealing with the regular police force (Police Regulation Act, 1899, as amended).

12. In 1908 a new provision, subsection (1A) of section 100 was inserted in the Police Offences Act, 1901, by section 15 of the Police Offences (Amendment) Act, 1908. This new provision read -

"(1A) A police magistrate or any two justices may, at the request of his employer, or of the council of a municipality or shire, and subject to the approval of the Inspector-General of Police, in like manner nominate and appoint any person employed as a caretaker, night watchman, or in any similar capacity, as a special constable for such time as such magistrate or justices may think fit.

The provisions of this Part relating to special constables who have been called out shall apply to all special constables appointed under this subsection from the time when such constables have taken the oath as in the next subsection provided.

The Inspector-General of Police, may, whenever he thinks fit, suspend or determine the services of any such special constable. Notice of such suspension or determination of service shall be forthwith sent by the Inspector-General of Police to the Colonial Secretary."

13. The purpose of the appointment of private special constables is different from that of appointment of special constables in case of actual or apprehended "tumult, riot or felony". Private special constables are not appointed as an emergency measure to deal with a particular crisis, A person is appointed to the office of private special constable where the nature of his general employment is such that there is a co-incidence between the public interest in the maintenance of order, the protection of property, or the enforcement of law (such as local government by-laws) and the special interest of his employer that he be invested with the powers, authorities and privileges of a constable. These include power to arrest on suspicion that any offence under any Act (whether punishable on indictment or on summary conviction) has been committed (Crimes Act, 1901, s.352: see generally Watson and Purnell, Criminal Law in New South Wales, 1971, paras. 1041-1045). Thus the legislation enables the appointment of any person "employed as a caretaker, night watchman, or in any similar capacity" upon request therefor "of his employer, or of the council of a municipality or shire".

14. Provision for the appointment of private special constables was not without precedent. The appointment of employees as special constables, where the appointment would both enable the employees more effectively to serve the special interests of the employer and be in the public interest in the preservation of order, the protection of property, or the upholding or enforcement of the law, was a well-established practice in England before the development, in the nineteenth century, of regular police forces on modern lines. It has continued in England despite the existence of such regular police forces. "Under a number of enactments passed since the beginning of the nineteenth century constables may be appointed by justices of the peace on the application of various bodies for the purpose of providing special protection for the interests of the body in question, whose employees the constables normally are. These constables are sometimes termed 'special constables' and sometimes 'constables' simpliciter. but this is no more than a distinction of terminology," (Halsbury's Laws of England, 3rd edn., 1959, Vol.30, p.49.) Provision was made, for example, for the appointment of special constables by municipal corporations, by railway companies (see now the British Transport Commission Act 1949). by proprietors of canals or navigable rivers, and by harbour, dock or pier authorities. (See generally, Halsbury’s Laws of England, 3rd edn., 1959, Vol.30, pp.49-53: Radzinowicz, A History of English Criminal Law, 1956, Vol.2, pp.202-207; 394-398.)

15. Section 100(1A), whilst investing in magistrates (or justices) the formal power of appointment, and of control and dismissal of private special constables does recognise, to some extent, that in reality it is the regular police force rather than magistrates, which in modern times is charged generally with the apprehension of criminals and the prevention and detection of acts which are subject to penal sanction. A magistrate cannot exercise the power of appointment of private special constables without the approval of the Commissioner of Police (as the Inspector-General of Police has been renamed - Police Regulation (Amendment) Act, 1935, s.7(1)). The Commissioner, moreover, is empowered to suspend or terminate the services of private special constables. But he is given no power himself to appoint or to control or to discipline them.

16. In 1941 the power of magistrates (or justices) to appoint special constables was further enlarged. Section 101(1A), the provision empowering the appointment of private special constables, was amended by inserting in it, immediately before the last two paragraphs, the following words -

"A Police Magistrate or any two Justices may -
(a) at the request of the Commissioner of Police nominate and appoint any person who is a member of the police force of the Australian Capital Territory or of any State of the Commonwealth of Australia as a special constable for the State of New South Wales for such time as such Magistrate or Justices may think fit;

(b) at the request of the Commissioner of Police and subject to the approval of the Colonial Secretary nominate and appoint any person as a special constable for the State of New South Wales for such time as such Magistrate or Justices may think fit."

17. The purpose of the appointment of special constables under paragraphs (a) or (b) of section 101(1A) differs from the purpose of the appointment of special constables in case of actual or apprehended "tumult, riot or felony" and it differs also from that of the appointment of private special constables.

18. The purpose of paragraph (a) is clear. It is not an uncommon occurrence that members of the other police forces referred to assist the police force of New South Wales - just as it is not uncommon for members of the police force of New South Wales to assist those other police forces. There are, what may be termed "border" police - that is, members of the police of another State or of the Australian Capital Territory stationed near the border of New South Wales. It is a long-standing practice to appoint such persons special constables for New South Wales. This enables them to come into New South Wales and assist our police force as need arises. Likewise our "border" police assist, as need arises, those other police forces; and for this purpose they are appointed special constables for the appropriate State or territory under the legislation of that place. We are informed by the Commissioner that there is complete co-operation between the various police forces in this regard. The co-operation extends beyond the use of "border" police. It extends, for example, to assistance given by members of the consorting squads of the various police forces in on the spot identification of inter-State professional criminals. Special sporting meetings and other activities attracting large numbers of inter-State visitors are attractive to criminals seeking opportunities for gain. Apart from such inter-change duty for the purposes of securing the special knowledge of visiting members of a police force, it is common practice to have members of one police force on inter-change duty with another police force for the purpose of broadening the training and experience of those members. Nation-wide prevention and detection of crime clearly requires collaboration between the police forces - and where a member of the police force of the Australian Capital Territory or of another State is in New South Wales to collaborate with the Now South Wales force it often is desirable that he have the powers and privileges of a member of the police force for this. State. For this purpose, he is, when it is appropriate, appointed a special constable pursuant to paragraph (a) of section 101(1A).

19. The purpose of paragraph (b) of section 101(1A) is not self-evident. Scant reference is made to it in the debates in Parliament upon the relevant Bill. In terms, an unlimited power is conferred upon a magistrate or any two justices to appoint any person, whatsoever, a special constable for New South Wales at the request of the Commissioner and subject to the approval of the Chief Secretary (as the Colonial Treasurer was re-styled in 1959 - Ministers of the Crown Act, 1959). The need for more extensive powers of appointment than those conferred by the Police Offences Act, apart from paragraph (b) of section 101(1A), is demonstrated, however, by the circumstances in which the power of appointment conferred by that provision have been invoked. These may be considered under two headings - international police co-operation, and special constables in regular service in the Police Department.

20. It is clearly desirable that there be international collaboration in the prevention and detection of crime and the apprehension of criminals. In some circumstances it is desirable that a member of a police force of another country, for example of New Zealand, who is in New South Wales in the course of such collaboration have conferred upon him, for this purpose, the powers of a member of the police force of this State. Paragraph (b) of section 101(1A) enables this to be done.

21. By far the most common occasion, however, of the exercise of the power conferred by paragraph (a) of section 101(1A) is the appointment of special constables to serve in the Police Department. Until the Police Regulation Act, 1899 (as amended) was amended by the Police Regulation (Women Police) Amendment Act, 1964, it was the practice to appoint to the office of special constable women engaged in work of the police force. This practice was discontinued in consequence of the amending Act empowering the appointment of women to membership of the police force. But, persons are still appointed to the office of special constable to serve in the Police Department, They act as auxiliaries to the police force. Persons appointed are usually unable to meet the requirements, as to age or as to physical standards, for appointment as members of the police force. But they are able to perform selected, relatively minor duties which otherwise occupy the time of members of the police force. Parking police, readily distinguishable by their brown uniforms, are the most numerous of these special constables. The strength of the parking police is approximately 135 men. There are, in addition, about 30 other special constables in the service of the Police Department, These act as security attendants or inquiry officers at such places as Police Headquarters, Parliament House, and Government House. They wear the same blue uniform as an ordinary constable of the police force.

22. Special constables in service in the Police Department are not members of the police force within the meaning of the Police Regulation Act, 1899, as amended (hereafter referred to as the Police Regulation Act). The Commissioner has no statutory power of discipline or control over them. He can only "suspend or determine" their services (Police Offences Act, s.101(1A)). The Police Rules for the government and discipline of members of the police force, made under the Police Regulation Act, do not apply to them. They are not entitled to superannuation and other benefits given specially to members of the police force (Police Regulation Act: Police Regulation (Superannuation) Act, 1906, as amended). They do not have the opportunities for promotion open to members of the police force. But they are valuable auxiliaries to the police force.

23. Part IV of the Police Offences Act, is, in its present form, patchwork legislation. In the main its provisions are those made originally by the Police Regulation Act, 1855, empowering magistrates (or any two justices) to appoint special constables in case of actual or apprehended "tumult, riot or felony", to make regulations governing t h e m, and to discontinue their services and also empowering the punishment of them by a justice for failure to obey orders after having been called out to serve. Upon this legislation, directed to the appointment and calling out of special constables to deal with a local emergency, has been grafted, by amendments, the appointment of private special constables, the appointment as special constables of members of the police force of the Australian Capital Territory or of any State of the Commonwealth, and the appointment at the request of the Commissioner of any person to the office of special constable. This grafting was inappropriate. There is little in common between any of these new classes of special constables and citizenry called out to serve in case of actual or apprehended "tumult, riot or felony". Since the Police Regulation Act, 1855, the Police Force has grown from infancy to maturity but this growth has not been reflected in a transfer to the Commissioner of power to appoint, control and discipline special constables. This remains the function of the magistrates (and justices)

24. We consider that Part IV of the Police Offences Act, should be repealed end that comprehensive new legislation, unshackled by the form of the old legislation, should be enacted. The new legislation should be in harmony with the Police Regulation Act. We consider that it should, take the form of amendments to that Act.

25. By the Police Regulation Act, the Commissioner "shall, subject to the direction of the Minister, be charged with the superintendence of the police force, of New South Wales". We consider that he should be charged, subject to the direction to the Minister, also with the superintendence of special constables for this State.

26. It is anomalous that although, the Commissioner "may, subject to disallowance by the Governor, appoint so many sergeants and constables of police of different grades as he deems necessary ..." (Police Regulation Act, s.6 ), he is not entrusted with the appointment of special constables - even special constables in regular service in the Police Department. In England the traditional role of justices in the appointment of special constables has, to a large extent, been superseded. By section 16 of the Police Act 1964 (U.K.) the chief officer of police of the police force maintained for any police area may appoint special constables for that area. We do not consider that magistrates or justices should retain any role in the appointment of special constables. There should be only one appointing authority and, we suggest, the appropriate authority is the Commissioner.

27. It is anomalous, also, that although the Commissioner has, "by the Police Regulation Act, and the Police Rules made under that Act, extensive powers of control and discipline over members of the police force, he has not, by law, any such powers in respect of special constables. Special constables in the service of the Police Department do, in practice, act under the orders of the Commissioner and of any other member of the police force under whom they are placed for the performance of their duties. But the only sanctions which the Commissioner can impose for misconduct are suspension or dismissal. He cannot impose any less severe penalty. The powers of control and discipline conferred upon magistrates have long since fallen into disuse.

28. We consider that magistrates should be divested of their powers of control and discipline of special constable and that appropriate powers should be conferred upon the Commissioner and upon members of the police force acting by his authority. But the powers of control and discipline which are appropriate in respect of a special constable vary according to the purpose of his appointment. It is desirable therefore that the legislation provide for distinct categories of special constables, according to the purpose of their appointment.

29. A further reason for providing for separate categories of special constables is that the duties, powers and authorities which are appropriate to be imposed or conferred upon a special constable vary, also, according to the purpose of his appointment. The present provision in this regard, section 103 of the Police Offences Act, makes no discrimination. It provides that -

"103. Every special constable appointed under this Act shall have, exercise and enjoy all such powers, authorities, advantages, and immunities, and be liable to all such duties and responsibilities as any constable duly appointed now has or hereafter may have by virtue of the common law or of any Act or Imperial Act for the time being in force."

(a) special constables in regular service in the Police Department;

(b) special constables on call;

(c) visiting special constables; and

(d) private special constables

32. We consider it clear that the Commissioner should have, in respect of special constables in regular service in the Police Department, power to direct and control them in the execution of their office. In this respect there is no basis for distinguishing between these special constables and members of the police force.

33. We consider, likewise, that special constables in regular service in the Police Department should have, in the execution of their office, the same powers, authorities, advantages and immunities as members of the police force.

34. But it may not be appropriate to impose upon such special constables all the common law and statutory duties of members of the police force. It may be thought inappropriate, for example, that parking police who are physically handicapped have the duty of preserving the Queen's Peace. Provisions as to the duties of special constables in regular service in the Police Department must be flexible. To this end, and for other reasons to which we refer later in this report, we consider that the legislation should confer upon the Governor power to make rules in respect of special constables. The rule-making power should extend to the prescribing of different classes of special constables in regular service in the Police Department and to the prescribing of the duties of members of each such class. Such provision would not be an innovation in principle in the Police Regulation Act. Section 12 of that Act, pursuant to which the Police Rules are made, provides (inter alia) -

"Different rules may be made applying to different members of the police force, according to whether they are male members or female members.

Any such rule may specify the duties to be performed by female members of the police force or by different classes of female members of the police force, and may provide that any such member shall not be required or obliged to perform any specified duty, any ether law to the contrary notwithstanding."

36. This category would supplant the present category of special constables appointed and called out by magistrates (or justices) in case of actual or apprehended "tumult, riot or felony". Although no occasion has arisen, within the experience of the present Commissioner, for the appointing and calling out of special constables in case of such emergency, it may be considered prudent to retain an immediately available statutory power to appoint special constables on call to serve where and when required. But the Commissioner, rather than magistrates, is in a position to know whether the police force is likely to require the aid of auxiliaries to deal with any actual or apprehended emergency - whatever the nature of that emergency may be, and whether or not it be confined to a local district.

37. We draw attention to the fact that in England it is common for the services of specia1 constables to be availed of as auxiliaries to the police force during periods of such demand for police services that the police force is temporarily over-burdened. The report of the Royal Commission upon the police forces of Great Britain, published in 1964, states -

"Special constables form a valuable reserve of manpower - not only for use in times of emergency. It is the practice in some forces to employ special constables in traffic duty, particularly at week-ends during the summer. We think that this should be encouraged, and that all chief constables should, ensure that the best use is made of them." (Cmnd.1728, para. 360).

39. We consider that special constables on call should be as fully subject to the direction and control of the Commissioner as are special constables in regular service in the Police Department (para.32).

40. Special constables on call would not be in regular service. Their periods of duty may be spasmodic and of short duration. We consider, therefore, that they should have the powers and authorities of a member of the police force only when they are on duty pursuant to being called upon for duty by the Commissioner or by a member of the police force acting by his authority. In respect of any act or omission by him when he is on duty, a special constable on call should have the same advantages and immunities as a member of the police force.

41. The category of visiting special constables would embrace members of a police force other than the police force of New South Wales, who are border police, are on inter-change duty with the police force of New South Wales, or are in New South Wales in the course of making investigations, and who the Commissioner, in his discretion, appoints or has appointed to the office of visiting special constable.

42. We do not consider that a visiting special constable should have the powers and authorities of a member of the police force of New South Wales unless he is on duty as a visiting special constable. Under the present legislation (Police Offences Act, s.103) there is no such limitation. Consider, however, a member of the police force stationed at Coolangatta (in Queensland) who has been appointed to the office of visiting special constable for New South Wales because of the proximity of Coolangatta to Tweed Heads (in New South Wales). Should he have the powers and authorities of a member of the police force of New South Wales while he is holidaying in Sydney? We think not.

43. The problem arises of defining when it is that a member of a police force of another State or place is on duty as a visiting special constable for New South Wales. We have considered, but have rejected, definitions embodying the concept of whether the Commissioner has invited or requested him to enter New South Wales and exercise his office. Any such definition would be too narrow. Assume that a criminal, who has robbed a bank in Coolangatta, drives with the money towards the New South Wales border being hotly pursued by a member of the Queensland police force who is also a visiting special constable for New South Wales. If the robber manages to cross the border into New South Wales there should be no doubt that the visiting special constable has the same power and authority to continue the pursuit and to arrest the robber as has a member of the police force of New South Wales. We consider that the legislation should provide that a visiting special constable is on duty whenever he is in New South Wales for the purpose of or for any purpose connected with the upholding or enforcement of any law of the Commonwealth of Australia or of any territory of the Commonwealth or of New South Wales or of any other State. This definition is wide enough to embrace a visiting special constable from another State or Commonwealth territory who is in New South Wales on inter-change duty. But it may not be wide enough to embrace a visiting special constable who is a member of the police force of a foreign country - for example a member of the police force of New Zealand who is in New South Wales in the course of investigations into a crime committed in New Zealand or who is on inter-change duty with the New South Wales police force. In the case, however, of members of a foreign police force the formulation of an appropriate definition is not complicated by the need to provide for hot pursuit. We consider that it would be sufficient that the legislation provide a supplementary definition that a visiting special constable is also on duty as such when he is in New South Wales for the purpose of the upholding or enforcement, in collarboration with the police force of New South Wales, of any law of any place.

44. Some difficulty arises as to the power of control which the Commissioner should have over visiting special constables. A visiting special constable is a member of another police force and is subject to the orders of his superiors in that force. Under the present law (Police Offences Act, Part IV) the Commissioner has no statutory power of control over a visiting special constable. The Commissioner informs us that in practice no difficulties have been experienced. But we consider it desirable that the legislation should confer upon the Commissioner some power of control. We consider that the legislation should provide that a visiting special constable shall not, whenever he is on duty as such, do any act or thing which he is ordered not to do by the Commissioner or by any member of the police force of New South Wales under whom he is placed for the execution of his office as a visiting special constable. This provision would enable the Commissioner to restrict the activities of visiting special, constables without empowering him to order visiting special constables to do acts which might conflict with their orders from superiors of their own forces.

45. We consider that the legislation should provide that in respect of any act or omission by him when he is on duty, a visiting special constable shall have all the advantages and immunities of a member of the police force of New South Wales.

46. The category of private special constables would, in the main, comprise all persons appointed to that office from those now eligible for such appointment under the present law (paras.12, 13, 14). But the present law is in a confused state as to who is eligible for appointment to that office. Paragraph (b) of section 101(1A) of the Police Offences Act in terms enables the appointment to the office of special constable of any person where the Commissioner .requests the appointment and the Chief Secretary approves. It would seem that the provision would extend to appointment to the office of special constable of any person where the appointment is desired by his employer, for the benefit of the employer, or where the person himself wishes to be appointed for his own benefit. But it was unlikely that it was within the contemplation of the Legislature that paragraph (b) be used for this purpose (as distinct from the purposes of the kinds referred to in paras. 19, 20, 21 and 22 of this report). We understand that paragraph (b) has not been so used. Many persons, however, are eligible for appointment without recourse being had to paragraph (b). Section 101(1A) as originally enacted (by section 15 of the Police Offences (Amendment) Act, 1908) enabled the appointment, upon the request of his employer or of the council of a municipality or shire, of any person employed as a caretaker, night watchman, or in any similar capacity, as a special constable.

47. It is not, however, satisfactory to define persons eligible for appointment as a private special constable by reference to specific capacities in which they are employed. Such a definition is inflexible. No matter how desirable it may be, both in the public interest and the interest of the employer, that a person be appointed to the office of special constable such a definition does not enable this to be done unless the employee is employed in one of the stated capacities. She definition must first be amended. This was done in 1943 when the definition was amended to enable the appointment of "an officer of the Royal Society for the Prevention of Cruelty to Animals, New South Wales" (Prevention of Cruelty to Animals (Amendment) Act, 1943, s.2(2)). The definition was again amended in 1967 to allow the appointment of "an officer of any other association, organisation, society or body which has as one of its objects the promotion of the welfare of or the prevention of cruelty to animals and which is registered as a charity under the Charitable Collections Act, 1934, as amended by subsequent Acts" (Prevention of Cruelty to Animals (Amendment) Act, 1967). We consider that it is preferable that the condition of eligibility be stated by reference to the underlying principles. What are these principles? They are twofold. First that it is in the public interest that the appointment be made. Second that the employer has a special interest in having the appointment made. Stated more fully we consider that the principles are -

(1) that the capacity in which the proposed appointee is employed or will be employed by the applicant is such that appointment of him to the office of private special constable is desirable for the purpose of deterring crime or upholding or enforcing any penal law - that is, a law for breach of which the offender may be imprisoned or may be fined; and

(2) the applicant has, by reason of any matter pertaining to -

(i) any statutory duty Imposed upon him;

(ii) any statutory power vested in him;

(iii) any activity, enterprise, undertaking or business carried on by him or which he proposes to carry on;

(iv) any land (including any building) owned or occupied by him -

a special interest in the appointment, for the purpose of deterring crime or of the upholding or enforcing that penal law, in the appointment of the proposed appointee to the office of private special constable.

49. A curious feature of the present law is that only an employee can be appointed a private special constable. A person engaged in the business of providing a security service to store-keepers can obtain the appointment, as private special constables, of persons whom he employs as "watchmen" moving from store to store on security patrol. But he cannot, at least directly, obtain appointment of himself to the office - even if he personally undertakes the work of security patrol. Likewise a municipal council can have appointed, as a private special constable, a person whom it employs to manage a council swimming pool (see Jobling v. Blacktown Municipal Council [1969] 1 N.S.W.R. 129) where that is desirable to discourage hooliganism. But the owner and manager of a swimming pool to which the public is admitted cannot obtain, at least directly, his own appointment. We consider that this is anomalous. It is true that in each instance the self-employer may be able to obtain appointment indirectly. He may be able to persuade the local council, for example, to apply for his appointment. Bat the propriety of the council concerning itself in a matter so remote from the ordinary affairs of a council is at least open to question. Further, the appointment of a self-employer to the office of private special constable would be subject to the exercise in his favour of two discretions - the discretion of the council to apply and the discretion of the appointing authority to accede to the application. We consider that the discretion should be in the Commissioner alone, exercisable on the direct application of the self-employer. Not all persons who are self-employed should be eligible for appointment. The same principles as to public interest and the special interest of the applicant should be applicable, as in the case of employees.

50. Under the present law private special constables "shall have, exercise, and enjoy all such powers, authorities, advantages and immunities, and be liable to all such duties and responsibilities as any constable duly appointed ..." (Police Offences Act, s.103). This, we think, is wrong. Private special constables are appointed to fulfil special needs. They are not appointed to exercise all the functions of a constable. An inspector of the R.S.P.C.A., for example, is not appointed to the office of private special constable for the purpose of him apprehending thieves or breaking up brawls in public streets. He is appointed for the purpose of the upholding of the law relating to the welfare of animals. A railway detective is not appointed to the office of private special constable to concern himself with the protection of banks. His concern is with the property of the railways. We consider, therefore, that the Commissioner should be empowered, in respect of the office of any private special constable, to impose restrictions as to -

(1) the place or places where the private special constable may exercise powers and authorities by virtue of the office;

(2) the circumstance or circumstances in which the special constable may exercise powers and authorities by virtue of the office.

51. It should be recognized that a private special constable, in the execution of his office, acts in the special interests of his employer or in his own special interests. The exercise of his office of private special constable is an incident of acting in these special interests - even though it is also in the public interest. It is not appropriate that a special constable have imposed upon him the statutory or common law duties of a member of the police force. Nor is it appropriate that any member of the police force should be empowered to direct him as to the detail of what he does. It is desirable, however, that the police force should have firm general control over him in matters relating to the execution of his office. To this end we consider that the Commissioner should be empowered to impose terms of the appointment to the office and, during the period of the appointment, to revoke, vary or add to terms already imposed. Under such a power the Commissioner could impose, for example, a term that the special constable shall not wear any uniform which the Commissioner disapproves.

52. But circumstances can arise in which some direct police control of a private special constable is required because of a specific situation which suddenly occurs. A private special constable should not be at liberty, in the execution of his office, to act in a way prejudicial to the discharge by a member of the police force of his own duties. Assume for example that a burglar has broken and entered factory premises and is believed to be hiding in them; If members of the police force arrive to apprehend him, it is they, and not any private special constable, who should have control of the proceedings. We therefore consider that it should be provided that a private special constable shall not, in the execution of his office, do any act or thing which he is ordered not to do by a member of the police force acting in the execution of his office as a member of the police force.

53. Under the present law (Police Offences Act, Part IV) the Commissioner may suspend or determine the services of any special constable other than one appointed (under section 101(1)) in case of actual or apprehended "tumult, riot or felony". We consider that the Commissioner should be empowered to suspend or terminate the appointment of any special constable.

54. We have already stated (para.27) that we consider that such powers of discipline of special constables as are appropriate should be conferred upon the Commissioner. The rule-making power should extend, in our opinion, to the making of rules for the general government and discipline of special constables. But this power should be flexible. Rules appropriate to one category of special constables may be inappropriate to another. Rules for the general government and discipline of special constables in regular service in the Police Department, for example, may well be unsuitable for the general government and discipline of visiting special constables, they being members of other police forces. We consider, therefore, that the rule-making power should enable different rules to be made applying to different special constables according to whether they are special constables in regular service in the Police Department, or members of a prescribed class of special constables in regular service in the Police Department, or special constables on call, or members of a prescribed class of special constables on call, or visiting special constables, or private special constables, according to whether they are male or female, and, in the case of private special constables, according to the person on whose application they were appointed and according to the nature of their employment by that person.

55. Explanation is desirable as to why we consider that the rule-making power should enable different rules to be made for private special constables according to the person on whose application they were appointed and according to the nature of their employment by that person. Some Acts, although they do not empower the appointment of special constables, confer upon certain employees powers and authorities of a type usually exercised only by members of the police force. For example, section 138 of the Government Railways Act, 1912, as amended, provides that any railway officer may seize and detain any person who has committed an offence against the provisions of that Act, and whose name and address are unknown to him, "and may convey him with all convenient despatch before some magistrate ... without any warrant or other authority than this Act ..." (cf. Crimes Act, 1900, as amended, s.352(1)). It is not uncommon that persons, upon whom such statutory powers and authorities are conferred, are appointed private special constables - not by the Act which conferred those powers and authorities, but pursuant to the general legislation as to special constables (Police Offences Act, Part IV), Railway detectives, for example, are commonly appointed private special constables. In such cases it may not be possible, in particular instances, to differentiate between what was done in the exercise of the office of private special constable and what was done in the course of employment. Substantial powers of discipline may exist independently of any rules as to general government and discipline made under the Police Regulation Act, In the case of such employees it may be appropriate that special provision be made by rules under the Police Regulation Act.

56. The rule-making power should be vested in the Governor - as is the case in respect of the Police Rules (Police Regulation Act, s.12). This means that the rules would have to be published in the Gazette and laid before each House of Parliament and that they would be subject to disallowance by either House (Interpretation Act, 1897, as amended, s.41).

57. There is not, in our opinion, any ground for secrecy as to appointments to the office of special constable - whether as special constable in regular service in the Police Department, special constable on call, visiting special constable, or private special constable. We consider that the Commissioner should be obliged to maintain a public register setting out all material particulars and to make the register available at all reasonable times for inspection by any person.

58. We propose that legislation be enacted to the effect of the draft Bill which is Appendix D. This proposal is based on the statute law in force on the 1st January, 1971.

59. Notes on the draft Bill appear as Appendix E.

September, 1971.

Deputy Chairman.

Commissioner.