Sheriff Act 1900 Review


Appendix 1

Court Security Legislation in Other Jurisdictions

The following is a summary of the legislative approaches taken to court security in other Australian jurisdictions, the United Kingdom and New Zealand.


The Australian Commonwealth
The Commonwealth relies upon the Public Order (Protection of Persons and Property) Act 1971 for the security of its courts.

The Act principally addresses security issues in relation to Commonwealth Territories and premises. However, Part IIA of the Act deals specifically with security in relation to federal courts and tribunals. This grants certain powers to “authorised officers” who include constables and other people appointed by the Attorney General.

These officers are given powers to:

demand identification;
search personal belongings
frisk search people
require people to leave certain belongings with the officer; and
seize potentially dangerous items
refuse access to or remove people from court premises


There are limitations on the application of a number of these powers. For example the power to demand identification is only able to be exercised when an officer believes on reasonable grounds that it is necessary in the interests of security to do so.

A similar provision applies in relation to searches of belongings or of the person. Searches of the person can only be carried out by a person of the same sex and must be limited to a frisk search. A frisk search is basically a patting of the person’s outer clothing. The legislation makes clear that the conduct of a search does not authorise the removal of any clothing. The legislation also requires that the search be conducted in a way that minimises any indignity that may be suffered by the person.

If a person fails to comply with the reasonable requirements of an authorised officer it renders that person liable to be removed from court premises, and possibly incur penalties. However the power to refuse access to, or remove from, premises is limited. The legislation provides that a person is entitled to remain on court premises where there is room for the person and where they have satisfied any search or identification requirements.

The Act introduces an offence for a person to carry a firearm, explosive substance or offensive weapon on court premises, and the legislation makes it clear that the powers of authorised officers are in addition to, and not in substitution for, the inherent power of the courts to regulate the conduct of people before them.




Victoria
The Victorian Court Security Act 1980 established a scheme of “authorised officers”. These include police officers or people appointed as authorised officers by the chief executive officer of a court. The Act also allows for security services to be contracted out.

Authorised officers are given the right to demand the name and address of any person on court premises, as well as the power to demand the reason for any person’s presence. They may also, for good cause, require any person to submit to a search and surrender any personal effects capable of concealing a firearm or explosive substance. Failure to comply with such directions renders a person liable to be refused admittance to, or be removed from, court premises, as well as substantive penalties. It is an offence punishable by imprisonment for a person to carry or possess a firearm, explosive substance or offensive weapon on court premises

These powers are expressly conferred in addition to, and not in substitution for, the inherent power of the courts to regulate the conduct of people before them. The Act also expressly reserves its operation so as not to affect any power of a court in relation to contempt.




South Australia
South Australia was the first Australian jurisdiction to introduce legislation relating to the security of courts with the Law Courts (Maintenance of Order) Act 1928. This Act was replaced in 2000 when a new Part 3 was added to the Sheriff’s Act 1978. This was entitled “security and order at courts and other places”.

The Sheriff’s Act now allows the Sheriff to appoint Sheriff’s officers as security officers. It also allows the Sheriff to limit the powers that can be exercised by those officers. In addition arrangements can be made with the Commissioner for Police authorising police officers to exercise the functions of security officers on a temporary basis.

Security officers are empowered to give reasonable directions to people, which if not followed can result in criminal penalties and the person being removed from the premises or handed over to a police officer. Officers also have been given power to take and keep people in custody and to arrest without warrant, people who they believe to have escaped from custody.

When directed by a Court or judicial member, officers are permitted to restrain people for the purpose of maintaining security.

The Act provides fairly detailed powers of search which make a distinction between people who are required by law to attend the premises and those who are not. Generally, officers are only permitted to conduct scanning searches or a physical search of a person’s possessions. However, in the case of people who are required by law to attend the premises, the officer is permitted to conduct a physical search of the person. In these cases an officer may require the person to open their mouth or remove outer clothing, however the person cannot be required to remove inner clothing or underwear. The Act permits any restricted items discovered in a search to be detained or seized.

Finally, the Act makes it clear that refusal of entry to premises is not a valid excuse for non-attendance at proceedings.




Queensland
The Law Courts and State Building Protective Security Act 1983 establishes a quite different scheme for managing court security. A State Government Protective Security Service is created, together with senior protective security officers and protective security officers under the control of the responsible Minister. Those officers are appointed through a process involving the Commissioner of Police and swear an oath of office. Senior protective officers are appointed in respect of particular buildings, while protective officers are appointed at large.

The functions of these officers are to carry into effect the security systems designed for each building, including parking and other arrangements. Their powers in respect of search, seizure and detention are similar to those conferred under the Victorian legislation, and a range of summary offences are created for obstruction of officers appointed under the Act.



Northern Territory
The Court Security Act 1998 grants certain powers to security officers who are defined as including police officers, Sheriff’s officers and people appointed by the Chief Executive Officer. Security officers are permitted to demand identification and also to subject the person and any of their belongings to a screening search. The Act makes it an offence to be in possession of firearms, offensive weapons or explosives while on court premises and provides for the seizure and forfeiture of these objects. Security officers can demand that certain posters and placards and other objects be deposited.

The Act introduces offences of unlawful or disorderly conduct, refusing to comply with a lawful requirement of a security officer and obstructing, resisting or hindering an officer.

Where a security officer is of the opinion that a person has committed, is committing or is about to commit an offence under the Act, the officer is authorised to arrest the person and take them into custody. Where the security officer is not a police officer then they must deliver the person to a police officer. Only police officers may question the arrested person.

Finally the Act grants judges the power to close court premises where the judge is of the opinion that this is necessary for securing order and safety.



Tasmania
The Admission to Courts Act 1916 was intended to limit the common law principle of open courts by allowing admission to be regulated in the interests of public order, safety, public morals and decency. The Act allows for the appointment of authorised officers and allows regulations to be made in relation to admission to courts, conduct and control of people in a court and other matters relating to public order or safety. Any offences are to be dealt with summarily by a judge in the court where the offence took place without the need for formal charges. Any penalty can be appealed to the Supreme Court.

The Admission to Courts Regulation 1995 supplements the Act by granting judges the power to refuse entry to, or to send out, members of the public or to restrict access to the court to people over a particular age. This decision must be made in the interests of public order, safety, public morals and decency.

The Regulations also grant authorised officers the power to demand identification and to refuse entry to, or to remove a person from, the court. They are also able to require a person to deposit anything that may be liable to engender violence or create a breach of the peace, such as placards. Authorised officers are able to search people and property and can seize guns, explosives or offensive weapons. The regulations create an offence in relation to bringing guns, explosives or offensive weapons into court.



Western Australia
The Western Australian, Court Security and Custodial Services Act 1999 is much broader than the other legislation discussed as it deals with both court security and matters relating to custodial services. The key to the Act is found in three schedules which grant powers in relation to: court security services (schedule 1); custodial services (schedule 2); and apprehension (schedule 3). Court officers which include the Sheriff are granted the powers in schedules 1 and 3 in relation to court security services, and the powers in schedule 2 and 3 for custodial services.

The powers in relation to court security include the power to: demand identification; refuse entry; remove a person from the court; search the person and their belongings; require that a person deposit property; seize certain property; and the power to arrest and detain people.



New Zealand
The New Zealand Court Security Act 1999 allows the chief executive to employ or contract for court security officers. These officers must be trained and must carry identification cards. Officers have the power to ask for identification and may ask to search a person’s belongings or the person. Should a person refuse then they may be asked to leave the building. Officers can seize items in certain circumstances and can also arrest and detain people. Where an arrest occurs, the police have to be called as soon as reasonably practical. A number of limitations are placed upon the use of these powers, for example the powers are generally not to be used: against exempted people such as judges; against people in the custody of other agencies; when the police are involved; or in a court room.

The Act provides for an offence of obstructing, resisting, hindering and assaulting a court security officer and gives immunity to officers and also to people assisting officers.

The Act expressly states that it grants additional powers and does not interfere with the powers of courts or judges in relation to the conduct of proceedings or security. It empowers court security officers to exercise any power as directed by the presiding judicial officer.




The United Kingdom
The Criminal Justice Act 1991 deals with security in the Magistrates Courts in the United Kingdom. Section 76 provides Magistrates’ Committees with the power to appoint security officers to maintain order in their courts, and the Act also prescribes the powers that those officers may exercise. The officers are permitted to search a person and any article in the person’s possession and also to exclude a person from a court house where this is thought to be necessary to maintain order, prevent interference with the court business or to secure any person’s safety. The officer is permitted to use reasonable force if necessary.