Sheriff Act 1900 Review


The Need For A Review


1.1 Historical overview

The office of the Sheriff is one of the oldest continuing offices in English Law, with its history extending back at least one thousand years into the middle ages. The name “Sheriff” is derived from the title shire reeve a position which played an important part in the Anglo Saxon system of Local Government. One such person represented the King in each County or Shire. The Sheriff originally appears to have had considerable powers including tax collection, the command of local military forces and control of much of the legal process. The Sheriff would serve process, arrest felons, bring people before the court, conduct civil and criminal trials, hold sureties, organise juries, serve as jailer, seize property and if necessary execute prisoners.

With the development of a more sophisticated society it became necessary for specialist bodies to take on many of the functions historically undertaken by the Sheriff. This led to the removal of many of the Sheriff’s powers. The change of role has not been consistent in the English speaking world, making the modern role of Sheriff very different in differing jurisdictions. In England the role of the Sheriff is essentially ceremonial, in Scotland it has become judicial and in the United States sheriffs are elected law enforcers.

The Office of Sheriff emerged in NSW in 1824 by virtue of Act 4 Geo IV c 96 which authorised the King by letters patent to define the role of various court officers. These letters patent were issued on 13 October 1823 and were known as the Charter of Justice. Subsequent legislative layers were laid upon this base during the 19th Century culminating in the Sheriff Act 1900. In NSW the Sheriff remains responsible for three key areas, namely security of the court, juries and enforcement of court orders.

While the Sheriff’s role in relation to juries is fairly well laid out in the Jury Act 1977, the other powers and responsibilities of the Sheriff have never been fully codified in legislation. Some of the Sheriff’s powers are to be found in various pieces of legislation such as the Sheriff Act 1900 and the various court rules. Other powers occur because of the operation of the common law or by way of delegated powers. These delegated powers generally come via the Judiciary or the Attorney General’s Department.

The object of this review is to identify the necessary legislative changes needed to codify the powers and responsibilities of the Sheriff and to bring the legal framework of this ancient office into the 21st century.

It should be noted that while this paper is considering the codification of the powers of the Sheriff it is not intending to codify, limit or otherwise amend the inherent powers of the judiciary.

The approach that has been adopted is to consider each of the Sheriff’s areas of responsibility as distinct. This means dealing with four key matters: juries, court security, enforcement of court orders and administrative matters relating to the Office of the Sheriff. This paper is the first step in this review process and will look at issues surrounding the office of the Sheriff itself and court security. Juries and civil enforcement are not addressed in any depth in this paper. It is envisaged that the Sheriff’s role in civil enforcement will be considered next and any necessary amendments in relation to juries can then be addressed in the next review of the Jury Act.

The philosophy underpinning this discussion is that general powers and responsibilities of the Sheriff or Sheriff’s officers should be placed within the Sheriff Act while powers relating to particular activities should be placed in the Acts which cover those activities. For example matters relating to the appointment and uniform requirements of Sheriff’s officers apply to all Sheriff’s officers regardless of whether they are working with juries or engaged in civil enforcement, thus these matters should be included in the Sheriff Act. On the other hand the power to access police and RTA records to screen jurors is only relevant in relation to juries so this should be a matter for the Jury Act.

The rational for this approach is that it makes it clear that a particular power is granted for a particular function only. In this way it operates as a safeguard against the inappropriate use of powers. It is suggested that this approach may also help to focus the debate about the appropriateness of certain powers.

This paper will first consider the possible contents of a new Sheriff Act by first examining the current Sheriff Act 1900 then looking at additional matters that need to be addressed. The second half of the paper will consider the possible contents of a Court Security Act.

Submissions are invited on the issues raised in the discussion paper. Submissions should be forwarded to Legislation and Policy Division, Attorney General’s Department, GPO Box 6, Sydney 2001, by 14 September 2001.