Sheriff Act 1900 Review


Court Security


3.1 Responsibility for court security

Responsibility for court security is a vexed issue in that the court is often the point of interface between the executive and judicial powers of the State. Any Court Security Act must be carefully drafted in order to allow those responsible for security to carry on their functions efficiently, while not compromising in any way the important principle of an independent judiciary.

This balance was recognised by Lockhart J in the Federal Court case of Skuse v Commonwealth where he stated that:


“The independence of the Judiciary from the Executive and the Legislature is an essential part of our society. Judges and magistrates do not have under their control the police or other security forces; nor do they have at their command finance or other measures to ensure the security of the courts and those within them. The Judiciary generally relies on the other two arms of government for this purpose. But judges, not the Executive or the Legislature, control activities within their courts. They control the conduct of proceedings within them and the behaviour of those who are before them. For example, if a government official decided that a uniformed policeman should be placed in a judges court, the judge may refuse to allow them to enter the court. Skuse v Commonwealth (1985) 62 ALR 108 at 118”

It is therefore intended that this paper only look at codifying the powers of the executive branch of government in relation to court security. It is not intended to affect any judicial powers although the judicial powers do need to be acknowledged in any Act as a Sheriff’s officer will often be the instrument through which those judicial powers are exercised. This matter is dealt with further under the heading “Following the directions of a judge or magistrate” at page 59.

The executive powers and responsibilities in relation to court security are primarily vested in the Attorney General’s Department. However, these powers and responsibilities are generally exercised by the Sheriff and Sheriff’s officers. It should be noted that some other security responsibilities lie with other officers, for example the security of court records is generally the responsibility of court administrators.

In Western Australia the role of the Department is actually expressed in the legislation which has made the Chief Executive Officer of the Department responsible for a range of matters. These include: providing for the protection of people who work in court premises or who attend court premises from physical harm and loss of liberty; providing for the maintenance of order in court premises; providing security for buildings and other real property; and providing for the safekeeping of personal property held on behalf of visitors Court Security and Custodial Services Act 1999 (WA) section 8(2). It may be considered beneficial to also include such a statement in NSW legislation.

In the following discussion it is presumed that the Sheriff will continue to be the officer with the primary responsibility for court security. For reasons of simplicity, powers and responsibilities of the Department which have been delegated to the Sheriff have been summarised as powers and responsibilities of the Sheriff. Where non-delegated powers such as common law powers of the Sheriff are concerned, these are expressly identified. In practice most of the Sheriff’s powers are delegated to Sheriff’s officers who are responsible for the day to day security in and around courts.

3.2 The Need for a Court Security Act in NSW

Security is a word that means different things to different people. While there may be differing views in the community as to what level of security is required, it is likely there would be little debate as to whether some form of security was necessary. Courts are currently subjected to many legal security requirements, such as the requirement to provide a safe working environment to employees, the requirement to secure personal information, duties of care to users of the building, obligations to secure evidence, obligations to protect certain witnesses and requirements to protect jurors. Many of these duties are already carried out by the Sheriff.

As will be seen, the power of the Sheriff in relation to court security, while broad, is somewhat vague. This does not let a court user easily know their rights, as they are unsure of the scope and of the source of the power. This can mean that a person may find it difficult to mount a case that an officer has overstepped his or her authority. A person who has been refused entry to a court does not know whether this is by way of the Inclosed Lands Protection Act, an exercise of the inherent jurisdiction of the court or an exercise of the Crown’s right as occupier.

This vague state of the law also makes it difficult to train Sheriff’s officers as to the extent of their legal rights and responsibilities. This can potentially lead to misunderstandings and possibly to the inappropriate exercise of power.

As the Court system has grown more complex the attendant court security duties have grown dramatically. This has led every jurisdiction in Australia, with the exception of NSW, to implement specific court security legislation. NSW is currently relying on legislative powers dating back 100 years, powers that were devised in a very different era. It is therefore hoped that a Court Security Act will serve to codify and modernise, as far as possible, the powers to be exercised by Sheriff’s officers in their day to day duties in and around courts.

3.3 Position in other jurisdictions

Research has indicated that all Australian jurisdictions apart from NSW now have legislation dealing specifically with court security. These Acts have a number of similarities although some jurisdictions have approached the issue from slightly differing perspectives. A brief summary of the legislative framework of the other Australian jurisdictions plus a summary of the approach taken in New Zealand and the United Kingdom is included at Appendix 1.

3.4 Current basis for court security powers in NSW

The primary basis for the exercise of existing powers comes from the inherent power of the judiciary to control order in and around their courts and via the Crown being the occupier of various court buildings. These powers are supported by the provisions of the Inclosed Lands Protection Act 1901 and in certain cases by the fact that some Sheriff’s officers are special constables under the Police Offences Act 1901. Both these pieces of legislation grant fairly broad powers, however both are extremely old like the Sheriff Act and neither are specifically directed at the issue of court security.

3.4.1 Legislative

3.4.1.1 Inclosed Lands Protection Act 1901

This is a short Act of only ten sections. It gives the owner, occupier or person apparently in charge of enclosed lands the right to ask people to leave those lands or incur a penalty of 5 to 10 penalty units Inclosed Lands Protection Act 1901 (NSW) section 4. The Act also prescribes a penalty of 10 to 20 penalty units for offensive conduct occurring on enclosed lands Inclosed Lands Protection Act 1901 (NSW) section 4A. The legislation appears to have been designed for rural property and it does not fit comfortably in the Court setting. For example its interaction with the public interest in allowing free access to court proceedings is not clear.

3.4.1.2 Police (Special Provisions) Act 1901

The second source of power for the Sheriff in relation to court security is found in the Police (Special Provisions) Act which allows for the creation of special constables. Advice from the Crown Solicitor has indicated that the powers of a special constable are very broad, however, these powers are not clearly set out in any legislation. A number of Sheriff’s officers are special constables.

Special constables have:


all such powers, authorities, advantages, and immunities, and be liable to all such duties and responsibilities as any police officer of the rank of 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 Police (Special Provisions) Act 1901 (NSW) section 103.

This would certainly appear to bestow a number of powers on any person appointed to the rank of special constable, however the scope of these powers is vague much like the powers of the Sheriff. The Police (Special Provisions) Act has the double disadvantage of not making it clear to special constables what they are actually entitled to do and also failing to make special constables accountable to the community through normal channels such as the Ombudsman or Police Integrity Commission.

The NSW Law Reform Commission in its 1974 report on special constables identified many problems and recommended that the office be abolished in its current form. It should be noted that at the time of writing, the Police Legislation Amendment (Special Constables) Bill had been introduced into the Parliament by the Government. If passed, the Bill would abolish the office of special constable. In the Bill’s second reading speech, the Minister for Police stated that:


As a result of this bill, agencies external to the Police Service which currently use special constables may need to amend their own legislation if they require their officers to exercise additional law enforcement powers which are not already in that agency’s legislation NSW Legislative Assembly 5 April 2001.

This would appear to give added impetus for codification of the Sheriff’s powers.

3.4.2 Other

3.4.2.1 Court’s inherent jurisdiction or incidental power

The Court has an inherent jurisdiction to maintain order in and around the courtroom, this allows the court to exclude people or to allow people access to the court subject to conditions. This power can be delegated as Asprey JA made clear in the NSW Court of Criminal Appeal:

It is the inherent right of all courts to employ the services of persons to assist them in the performance of the judicial office and to carry out the directions of those who preside in them for the purpose of keeping order in the courtroom and its precincts. Ex parte Tubman; Re Lucas (1970) 72 SR NSW 555 at 571

These powers are broad but do appear to be limited in that their exercise must generally be for the administration of justice. Things which may fall outside the ambit of this power include a person smoking, or a tramp sleeping, in the foyer of a court.

3.4.2.2 Crown’s right as occupier

The Crown through the Attorney General’s Department has certain rights as the occupier of premises. This broadly allows the Crown to refuse admission to its premises or to remove a person who is there without its permission. Because of this discretion, the Crown is also entitled to make certain conditions in relation to entry such searching bags. In the case of court premises, the discretion is to be used more carefully, as the removal of a person who has legitimate business before the court, without good reason, may amount to contempt Ex parte Tubman; Re Lucas (1970) 72 SR NSW 555 at 568.