Sheriff Act 1900 Review


Other Matters That May Need To Be Addressed

2.2.1 Title of the Office

It is arguable that the name “Sheriff” does not accurately convey to members of the public, the modern functions of that office. To many people the word is synonymous with Westerns and law enforcement, and not with responsibilities such as security of the courts, juries and civil enforcement. It may therefore be appropriate to consider whether a new title is appropriate.

Arguments against such a move may be made on the grounds of any remaining common law role the Sheriff may have, the breaking of historical links stretching back into the middle ages and the difficulty of coming up with an alternative title that accurately captures that office’s modern functions.

For convenience, the remainder of the Discussion Paper will use the current title.

Q8. Should the Office of the Sheriff be renamed? If so what should the Office now be called?

Currently there are no legislative requirements that relate specifically to the appointment of Sheriff’s officers. Appointment is currently dealt with in accordance with the Public Sector Management Act. It is not proposed that this be changed. However, given that Sheriff’s officers are already placed in a position of great trust, especially in relation to the seizure of property and the selection and control of juries, it may be appropriate to consider whether some additional selection requirements should be considered.

It is common in relation to professions and occupations that are dealt with by statute, for there to be a requirement that a person meet some standard of probity or good character. This is often formulated as a requirement that the applicant be a fit and proper person to carry out a given activity and it is found in all manner of occupations from apiarists Apiaries Act 1985 (NSW) section 8 through to zookeepers Exhibited Animals Protection Act 1986 (NSW) section 30. Such a requirement also applies to members of the security industry Security Industry Act 1997(NSW) section 15(1) and to commercial agents Commercial Agents and Private Inquiry Agents Act 1963 section 10.

In Queensland the requirement in relation to fitness to be a member of the protective security service is spelt out in the legislation, and means a person who has not been convicted of a crime or misdemeanour State Buildings Protective Security Act 1983 (Qld) section 9. It could be argued that such a requirement sets the bar too high and does not make any allowance for old or trivial offences. This approach appears to be inflexible and may place too much weight on the importance of the criminal record. In some cases criminal records might better reflect a person’s age and socio-economic status more than their character.

There is no simple and universal way to ensure that a person is fit to take on a particular role and different approaches may need to be taken in different circumstances. Assessing a people fitness may involve questions during an interview, a check of referees or a check of a person’s criminal or financial history.

2.2.3 Oaths

Currently the Sheriff appears to be required to take two oaths - the Oath of Allegiance This is now contained within the Second Schedule of the Oaths Act 1900 (NSW) (to the Queen) and an oath faithfully to execute the office. These requirements were originally contained in the Charter of Justice and appear never to have been fully repealed.

There is no requirement in the Oaths Act for either the Sheriff or Sheriff’s officers to take an oath Sections 7 and 9 of the Oaths Act 1900 (NSW) allow the Governor to order that certain public officers or judicial officers take an oath, however no such orders have been made in relation to the Sheriff or Sheriff’s officers.. Sheriff’s officers therefore have no clear duty to take an oath although there may be such a requirement where the Sheriff delegates a power to the Sheriff’s officer as they are then acting in the capacity of the Sheriff.

It is suggested that, in the interests of clarity, the oath requirements of the Charter of Justice be repealed. This leaves the question of what, if anything, should replace those requirements.

Advice from the Crown Solicitor has suggested that the taking of oaths is normally required when an office holder will be required to exercise personal responsibility and judgement in the carrying out of duties in the public interest and where those duties have some special attribute to them. For example the Police Service Act requires all people exercising the functions of a police officer to take the oath or make the affirmation of office as a police officer in accordance with the regulations Police Service Act 1990 (NSW) section 13. A similar provision also applies to correctional officers Crimes (Administration of Sentences) Act 1999 (NSW) section 236.

It may be argued that the Oaths Act already grants the Governor the power to require the Sheriff and Sheriff’s officers to take an oath and this should be considered satisfactory. Against this it might be argued that the Sheriff and Sheriff’s officers have powers that are, in some respects, analogous to those of police and correctional officers. If this is accepted then the Sheriff Act should contain an express requirement for the Sheriff and Sheriff’s officers to take an oath. It should be noted that the Oaths Act allows any person who objects to taking an oath to instead make an affirmation Oaths Act 1900 (NSW) section 12.

2.2.4 Qualifications and training

Sheriff’s officers are currently trained in house. A person who wishes to be a Sheriff’s officer must first apply to become a trainee. If their application is successful then they are appointed as a trainee Sheriff’s officer. Sheriff’s officers are trained for 1 year and this training is made up of four components. The first six weeks are devoted to classroom training which provides the basic information that is necessary for officers to properly carry out their functions. This is followed by three weeks tactical training and then by three weeks of placements where the trainees will observe Sheriff’s officers going about their duties. The final period of training lasts nine months and involves the trainee working as an officer but in a supervised capacity. Upon the successful completion of this training period the officer is appointed as a probationary Sheriff’s officer.

Training is an important adjunct to any grant of power as it ensures that the person understands the nature of the power and its limitations. However, the question is whether training should be required in any legislation or whether this should be left as an administrative matter. Training is not currently addressed in the Sheriff Act 1900.

The Security Industry Act, from which Sheriff’s officers have an exemption Security Industry Regulation 1998 (NSW) clause 5(d), makes it a requirement that applicants must have successfully completed an approved security industry training course Security Industry Act 1997(NSW) section 17. It is therefore arguable that Sheriff’s officers because of their more extensive duties should be required by legislation to receive training.

There are strong policy arguments for not spelling out the training requirements in detail in the legislation as this would stifle the Sheriff’s ability to adapt training to new situations as they arise. A possible compromise between being overly prescriptive and ignoring the issue of training may be to simply require that it be a prerequisite for all Sheriff’s officers to satisfactorily complete a period of training as approved by the Sheriff. This is the position taken in New Zealand in relation to court security officers, where each officer must undergo a course of training approved by the chief executive Court Security Act 1999 (NZ) section 9(1).

While the preparation of the training package would seem to be a matter best left to the Sheriff, it may also be appropriate to require that the content of this training be set in consultation with relevant third parties. This could involve consultation with bodies such as the courts, the Privacy Commissioner and the Ombudsman (see discussion on oversight by the Ombudsman at page 30).

2.2.5 Identification of officers

As Sheriff’s officers have certain legislative powers above those of ordinary citizens it is necessary to identify who is, and who is not, a Sheriff’s officer. This is in part because a person’s legal rights may differ depending upon whether the person they are dealing with is a Sheriff’s officer or not. This paper looks at three ways in which this goal might be achieved: identification cards or badges, uniforms and markings on vehicles.

2.2.5.1 Identification cards or badges

While uniforms and marked vehicles serve to identify Sheriff’s officers generically, there are strong policy reasons for individual identification. This not only assists in preventing someone from impersonating a Sheriff’s officer, but also serves to act as a safeguard against abuse by officers. An officer who knows that he or she can be identified personally is less likely to misbehave. Identification also facilitates the investigation of complaints against officers. While these considerations are important other issues such as privacy and safety need to be taken into account.

Under the Security Industry Act a holder of a class 1 or class 2 security licence must wear a licence that contains a photograph at all times while carrying on a security activity Security Industry Act 1997(NSW) section 36. In addition to the photograph, the licence must also bear the signature of the licensee and contain the licence number Security Industry Act 1997(NSW) section 22.

Authorised officers under the Commonwealth court security legislation need only carry an identity card. This displays a photograph of the officer and states that the holder of the card is an authorised officer Public Order (Protection of Persons and Property) Regulations 1999 (Cth) clause 5. Queensland on the other hand requires its officers to have identity cards containing a photograph, name, signature and designation State Buildings Protective Security Act 1983 (Qld) section 10A.

It is suggested that the inclusion of a name on an identification badge or card should be optional in the case of Sheriff’s officers, as it may expose the officer and their family to risk. Sheriff’s officers are obliged to undertake some jobs, such as evictions, that may cause a great deal of ill will and anger. In the case of officers with more unusual names it could be relatively easy for a disgruntled person to identify their home address and subsequently harass them. The requirement for an officer to wear a photographic badge or card containing a clearly visible and unique number (which should ideally be kept as short as possible) would allow an officer to be identified in relation to legitimate complaints while protecting the officer from harassment.

2.2.5.1.1 Compulsory production

Closely related to the issue of wearing an identity badge is the issue of a Sheriff’s officer being required to produce identification when requested to do so. If there is an obligation to wear identification then this issue is somewhat diminished, although there would still be a need for some requirement that information be given in certain cases. For example a Sheriff’s officer dealing with a person with a vision impairment may need to read out his or her identity number upon request. Also people dealing with officers should have a right to this information in cases where a badge is obscured, lost or damaged or where an officer needs to stand still or to turn around so the identification can be read.

If an identity badge is not compulsory then it is suggested that there should be a specific right for people dealing with a Sheriff’s officer to demand information regarding the officer’s identity. For example the right to be given an identification number.

Victoria requires authorised court security officers to wear their identity card whenever they are on duty and also to produce the card whenever requested to do so. Failure to do so attracts a penalty Court Security Act 1980 (Vic) section 2B(3). New South Wales requires members of the security industry to produce their licence when requested by a police officer or by any other person with whom the licensee has dealings when carrying on any security activity. A person who refuses to do this can be subjected to a penalty of up to 20 penalty units Security Industry Act 1997(NSW) section 35. Likewise authorised officers under the Passenger Transport Act are required to comply with any person’s reasonable request for the officer to produce identification demonstrating that he or she is an authorised officer Passenger Transport Act 1990 (NSW) section 57.

2.2.5.2 Uniforms and insignia

Uniforms are useful in that they immediately identify a person as belonging to a certain group or profession. In this regard uniforms may be of assistance for ensuring that a person recognises that another person is a Sheriff’s officer. Uniforms may also assist in giving Sheriff’s officers an air of legitimacy and authority when exercising their functions, which might help to minimise conflict and confrontation.

Uniforms offer other advantages in that they may also increase a sense of professionalism in an officer. This may come about either by reminding an officer of his or her role or by making that officer aware that he or she is on public display as a member of a certain profession and should therefore act accordingly.

Against this it may be argued that many people will not know of, or properly understand, the role of the Sheriff and may mistakenly assume that Sheriff’s officers are police officers. Whether this is a genuine problem is not clear, however, even if valid it may be better overcome in other ways, for example by requiring that Sheriff’s officers explain to a person who they are before exercising any powers.

It is suggested that the above advantages should necessitate the inclusion of a requirement that Sheriff’s officers should always be in uniform when conducting any of their official duties. However, as some tasks may involve specialised clothing, for example seizing particularly dirty equipment, there may be a need for different uniform requirements for particular duties. It may therefore be appropriate to leave the details of what will make up the uniform in particular circumstances to the discretion of the Sheriff See for example Police Service Regulation 2000 (NSW) clause 27(2) which allows the Commissioner to approve police officers wearing other clothing when performing certain types of duty..

2.2.5.3 Marked vehicles

Sheriff’s officers do a great deal of field work in the area of civil enforcement, and this often necessitates the use of official vehicles. These are generally marked to identify that the vehicle belongs to the Office of the Sheriff. Like uniforms, marked vehicles serve to allow quick and easy identification of the occupants’ profession. This may help to avoid conflict by providing an added level of legitimacy and authority to the officer’s actions. In some circumstances, Sheriff’s officers will need to drive onto private property and official markings on a vehicle may minimise attempts to stop such entry.

Against this it could be argued that such markings cause great prejudice to people with whom the officer’s may be dealing. Many people may associate Sheriff’s officers with debts and evictions, therefore marked vehicles parked outside a person’s home may cause them embarrassment in front of neighbours.

2.2.6 Carrying weapons

Under the Weapons Prohibition Regulation, Sheriff’s officers have been granted an exemption from the Weapons Prohibition Act in relation to handcuffs and extendable batons. The exemption, which allows officers to possess and use these prohibited weapons in the course of their employment, requires the officer to be trained in the use of the weapon Weapons Prohibition Regulation 1999 (NSW) Schedule 1 clause 3(1). The exemption also requires the officer to store the prohibited weapon in a safe and secure manner when not in use Weapons Prohibition Regulation 1999 (NSW) Schedule 1 clause 3(3). Failure to do so can result in a fine of up to $5,500.00 Weapons Prohibition Regulation 1999 (NSW) Schedule 1 clause 3(4).

It needs to be considered whether any additional requirements may need to be placed in the Sheriff Act. For example it may be appropriate to place some sort of limitation on the use of the weapons such as making it a requirement that the weapons are only to be carried and used in accordance with a specific Sheriff’s policy on the issue.

A second issue is whether the Sheriff Act or Regulation should contain a provision allowing the Sheriff to remove the privilege of carrying a weapon as a form of discipline where a Sheriff’s officer may have used the weapon inappropriately. Such a measure may allow the Sheriff to revoke a person’s right to carry a particular weapon for a finite period (eg 1 month or until the person has taken some form of additional training) or on a permanent basis.

2.2.7 Following directions of a court

While this paper is canvassing the codification of the powers of the Sheriff and Sheriff’s officers it is not advocating any codification of the inherent powers of the judiciary or the court. These are powers which the Sheriff or a Sheriff’s officer may be directed to exercise on behalf of the court. For example in the case of a disturbance within a court room, a judge may direct that the Sheriff’s officer remove a person. To take account of such cases it may be necessary to make it clear that the Sheriff and Sheriff’s officers are empowered to carry out or follow any lawful directions from a judge, magistrate or presiding officer.



Q.20 How should the power of the Sheriff’s officer to carry out directions of members of the judiciary and other presiding officers be framed?

In many cases the Sheriff may need to delegate powers to Sheriff’s officers in order to effectively carry out the functions of the office. This power to delegate has already been included in other legislation that grants the Sheriff powers. For example the District Court Act contains the following provision:

Unless the rules provide otherwise, the Sheriff may delegate to any Sheriff's officer any of the Sheriff's functions under this Act, except this power of delegation District Court Act 1973 (NSW) section 25(2).

A similar provision is also contained in Local Court (Civil Claims) Act Local Court (Civil Claims) Act 1970 (NSW) section 8A(2).

The Jury Act requires that the delegation occur by instrument in writing and that the instrument can delegate any of the Sheriff’s powers, authorities, duties or functions (other than the power of delegation) subject to any conditions and limitations contained in the delegation. The same mechanism (by instrument in writing) can also be used to revoke a delegation either wholly or in part. The Sheriff may exercise any powers even if they have been delegated Jury Act 1977 (NSW) section 74.

Instead of having the power to delegate contained in various Acts it may be more appropriate to include a broad power of delegation for any of the Sheriff’s powers in the Sheriff Act. Such an approach has been adopted by the Commonwealth where the Sheriff is able to authorise people to assist in the “exercise of any of his or her powers or the performance of any of his or her functions” Federal Court of Australia Act 1976 (Cth) section 18P(4).

Q.21 Should the Sheriff Act contain a broad power to delegate? If so what limitations should be placed on this power and how should the power be exercised?

2.2.9 Offences

2.2.9.1 Impersonating

The Sheriff Act 1900 currently contains only one offence of impersonating the Sheriff or a Sheriff’s officer Sheriff Act 1900 (NSW) section 13. This provides for a penalty of $550 (5 penalty units). The more recent South Australian Sheriff’s Act sets a maximum penalty of $2500 or six months imprisonment for impersonating a Sheriff, deputy Sheriff or Sheriff’s officer Sheriff’s Act 1978 (SA) section 11.
A number of other NSW Acts contain offences for impersonating various officers. These contain a range of penalties from 10 penalty units to 6 months imprisonment See for example: Police Service Act 1990 (NSW) section 204 (10 penalty units and or imprisonment for 6 months for impersonating a police officer); Fisheries Management Act 1994 (NSW) section 247 (200 penalty units and or 3 months imprisonment for impersonating fisheries officers); Tow Truck Industry Act 1998 (NSW) section 75 (50 penalty units and or 6 months imprisonment for impersonating tow truck officers); Occupational Health and Safety Act 1983 (NSW) section 31O and also Occupational Health and Safety Act 2000 (NSW) section 67 (100 penalty units for impersonating an occupational health and safety inspector); Medical Practice Act 1992 (NSW) section 123 (50 penalty units for impersonating an authorised person); and Noxious Weeds Act 1993 (NSW) section 55 (10 penalty units for impersonating a noxious weeds inspector).. From this it would appear that it would be in keeping with other statutes to retain an offence of impersonating the Sheriff or a Sheriff’s officer. The current penalty appears to be quite low, especially if one takes into account the fact that a person impersonating a Sheriff’s officer may be able to access sensitive jury information or seize valuable property. It is therefore suggested that the offence be retained in a new Sheriff Act but that the current penalty of five penalty units be increased to bring it in line with similar offences.

2.2.9.2 Assaulting, obstructing, hindering etc

Currently the Sheriff Act does not include a penalty for assaulting, obstructing hindering or resisting the Sheriff or a Sheriff’s officer. However, an offence along these lines is contained within the Crimes Act. It provides for a penalty of up to five years imprisonment where a person assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty. The list of officers include a Sheriff’s officer Crimes Act 1900 (NSW) section 58.

In the area of civil enforcement (which is outside the scope of this paper) some specific penalties also exist. For example the District Court Act provides a penalty of 10 penalty units and or 6 months imprisonment where a person assaults, resists, interrupts or obstructs the Sheriff or a Sheriff’s officer exercising functions under the District Court Act District Court Act 1973 (NSW) section 12.

It is arguable that offences relating to the Sheriff should be placed in the Sheriff Act as far as possible. The approach of placing offence provisions in the legislation that sets up the office has been taken in relation to a number of statutory offices, such the Privacy Commissioner Privacy and Personal Information Protection Act 1998 (NSW) section 68 and the Ombudsman Ombudsman Act 1974 (NSW) section 37.

2.2.9.3 Possession of Sheriff’s uniform or insignia

The Sheriff has indicated that he has received a number of complaints about private sector debt collectors showing Sheriff’s badges in order to gain entry to premises. While such an action may be in breach of other laws such as impersonation of the Sheriff or Sheriff’s officer Sheriff Act 1900 (NSW) section 13, there is currently no offence for merely possessing the Sheriff’s uniform or insignia.

Outlawing the possession of uniforms and insignia (including facsimiles or replicas) would appear to be of assistance in limiting the opportunity for abuse.

On the other hand there are cases where the possession of such items by a person other than Sheriff’s officers may be considered legitimate. Some examples may include possession by collectors, possession by retired officers who wish to keep their uniform or insignia as a memento, and even temporary possession by person such as a dry cleaner.

The Police Service Act prescribes a number of offences in relation to police uniforms and insignia including wearing or possessing a police uniform, manufacturing police insignia, and using police insignia other than in the course of exercising the functions of a police officer Police Service Act 1990 (NSW) section 203; See also Crimes (Administration of Sentences) Act 1999 (NSW) section 264 in relation to correctional officer’s uniforms.. Defences to these charges include possession for the purpose of public entertainment, possession where the person has obtained a licence from the Commissioner and possession where the person can demonstrate a reasonable excuse.

2.2.9.4 Proceedings for offences

Currently, the Sheriff Act 1900 only allows for proceedings for offences to be dealt with summarily before a Local Court. This has the benefit of keeping the proceedings for offences relatively simple and inexpensive but does not give a great deal of flexibility. If a greater range of offences are to be included in a new Sheriff Act, then a wider range of proceedings may be appropriate. For example possession of Sheriff’s insignia may be more appropriately dealt with by way of a penalty notice rather than going immediately before a court. On the other hand matters such as a serious assault may warrant action by way of indictment.

2.2.10 Offences by Sheriff’s officers

Sheriff’s officers are in a position of great trust and people should be able to expect a high level of probity and honesty from these officers. This part of the paper considers whether breaches of this trust are adequately dealt with under other legislation such as the Crimes Act, or whether specific offences should be included in the Sheriff Act. Arguments in favour of keeping offences in other legislation may be that like offences should be treated the same regardless of who commits that offence. It may also be argued that keeping all offences in a single location will be easier and will avoid unnecessary duplication. Finally, some prosecutors may be more familiar with existing offences and therefore may not use offences contained within the Sheriff Act. Against this it could be argued that including offences within a Sheriff Act may serve a symbolic function by demonstrating that the powers granted to Sheriff’s officers come at a price if those powers are abused. It may also serve an educative role as it would be expected that Sheriff’s officers would be quite familiar with the Sheriff Act and their powers and obligations under it.

2.2.10.1 Theft and fraud

Theft or fraud by a Sheriff’s officer in the course of his or her duties would generally be an offence under the Crimes Act 1900. However, it needs to be considered whether these offences adequately cover the field and also whether the special role of Sheriff’s officers should serve to aggravate any existing offences. Sheriff’s officers handle a great deal of property belonging to third parties. This property is seized, stored and then sold at auction. While there is a fairly sophisticated paper trail for tracking these goods, it is not foolproof and much is left to the honesty of officers.

Stolen or substituted goods, or goods sold cheaply through improper auction processes, harm both the parties involved in the civil enforcement action. The creditor will not have sufficient money to cover the debts and may be forced to undertake further enforcement actions and the debtor will have lost more goods than necessary to pay the debt.

The Crimes Act currently provides a penalty of up to five years imprisonment for larceny Crimes Act 1900 (NSW) section 117. However, in the case of larceny by a person employed in the public service the maximum penalty is increased to ten years imprisonment Crimes Act 1900 (NSW) section 159. Likewise, embezzlement by a public servant also attracts a maximum penalty of ten years imprisonment Crimes Act 1900 (NSW) section 160.

It should be noted that the Crimes Act also includes an offence of falsification of paperwork by a clerk or servant with intent to defraud, which would appear to cover cases where an officer falsified accounts or receipts. This carries a maximum penalty of five years imprisonment Crimes Act 1900 (NSW) section 158.

2.2.10.2 Unauthorised use or disclosure of information

Sheriff’s officers currently have access to a great deal of sensitive information. Some of this comes because of their responsibilities in relation to juries, and other information is passed on in relation to civil enforcement. This information has been entrusted to the Office of the Sheriff for a particular purpose, and it is therefore important that it is not used for some other unrelated purpose.

There are already some legislative prohibitions in place that may be considered to adequately regulate this area. For example, in relation to juries, there is a prohibition on publishing information that may identify a juror or former juror Jury Act 1977 (NSW) section 68.

A more comprehensive regime in relation to the misuse of personal information can be found in the Privacy and Personal Information Protection Act 1998. As the Office of the Sheriff is a public sector agency it is obliged to adhere to the information protection principles contained within the Act. These principles deal with the collection, use and disclosure of personal information and give individuals a variety of remedies where a breach of a principle may occur.

Generally the Act focuses upon the conduct of the agency, rather than of an individual within an agency. However, the Act does prescribe penalties of up to 100 penalty units and or two years imprisonment where a public sector official intentionally discloses personal information obtained within the exercise of that person’s official functions Privacy and Personal Information Protection Act 1998 (NSW) section 62.

While the Privacy and Personal Information Protection Act places safeguards on the misuse of personal information there may be non-personal information that falls outside of its coverage. One possible example may be business information such as, who a company’s customers may be, or the terms of business contracts. This information could be highly damaging if disclosed, but it may well fall outside the Privacy and Personal Information Protection Act. A possible solution to this problem may be to include a prohibition upon the improper disclosure of any information obtained within a Sheriff’s officer’s official capacity See for example Public Order (Protection of Persons and Property) Regulations 1999 (Cth) clause 8(6) which limits the disclosure of information obtained pursuant to the Act to situations where the officer believes, on reasonable grounds, that disclosure is necessary in the interests of security..

In relation to the disclosure of non-personal information, it should be noted that the Attorney General’s Department’s Code of Conduct prohibits the disclosure of information contained in Departmental records to persons other than those having a right to the information by virtue of statute, court ruling or administrative policy.

2.2.10.3 Excessive use of force

Sheriff’s officers are often confronted with difficult situations, some of which have the potential to escalate into violent confrontations. This is particularly the case when there is an order to seize property or evict people from their home. Generally, officers act with a great deal of skill and professionalism, managing to control situations and avoid physical conflict. However, if a situation does break down, officers are authorised to use reasonable force in order to protect themselves and to carry out their orders. The Office of the Sheriff currently has a detailed “use of force” policy and all officers receive training in relation to this.

Clearly, the use of excessive force is highly undesirable as it can lead to unnecessary injuries. The use of excessive force is already criminal by virtue of the offences contained in Part 3 of the Crimes Act. These offences cover a wide range of situations and appears to eliminate the need for any such provision in the Sheriff Act.

It could possibly be argued that there may be some gap in coverage between the current legal interpretation of what is reasonable force and the level of force society, or the Sheriff, would expect Sheriff’s officers to exercise. While this may be the case such a distinction may be difficult, if not impossible, to define in legislation.

It may also be argued that while an offence need not be included in the Sheriff Act, a statement may be justified which makes it clear that Sheriff’s officers are only permitted to use such force as is reasonable in the circumstances.

2.2.10.4 Possession or use of unauthorised weapons

The possession and use of unauthorised weapons would generally be a matter that would be dealt with under the Weapons Prohibition Act Weapons Prohibition Act 1998 (NSW) section 7. The Act provides for significant penalties of up to 14 years imprisonment where a breach occurs. It is therefore questionable whether any additional penalty needs to be included in the Sheriff Act. However, while the Weapons Prohibition Act covers illegal weapons it does not address the issue of weapons that may be legal but which have not been approved or issued by the Sheriff to officers. For example an officer may purchase a larger extendable baton than the one issued.

It may be considered unsatisfactory for Sheriff’s officers to carry non-standard equipment that may be used as a weapon. Thus some sort of additional prohibition may be justified to prevent officers carrying any sort of weapon, illegal or otherwise, unless prior permission has been obtained from the Sheriff.

2.2.10.5 Misrepresentations

The potential to use information unfairly has been recognised for some time in relation to private sector commercial agents. These agents are guilty of an offence if they induce a person to enter an agreement or contract by using a misleading or deceptive statement Commercial Agents and Private Inquiry Agents Act 1963 (NSW) section 20. It is arguable that Sheriff’s officers have greater potential to mislead or deceive as they are officers of the state. Their statements may well carry more weight than those of other people such as commercial agents, especially to people from disadvantaged groups who may have a poor understanding of the legal system and their rights under it. It would therefore appear to be important that officers do not abuse their position by deliberately misleading people.

The Fair Trading Act has a number of provisions relating to the prohibition of false and misleading conduct Fair Trading Act 1987 (NSW) Part 5. However, as these relate to trade and commerce, it is by no means clear whether this would address all the circumstances in which a Sheriff’s officer may make a deliberately misleading statement.

It may therefore be appropriate to include some sort of broad provision prohibiting Sheriff’s officers from engaging in conduct that is deliberately designed to mislead people about their rights.

Against this it might be considered acceptable for a Sheriff’s officer to mislead or deceive a person in certain limited circumstances. One example may be to protect a person’s privacy, such as in the case of a Sheriff’s officer calling a person by phone. In these circumstances the officer would generally not identify themselves as a Sheriff’s officer if a third party answers the call.

2.2.10.6 Penalties

Apart from criminal penalties, a Sheriff’s officer who engages in any of the activities in sections 2.2.9.1 - 2.2.9.5 may be subjected to a disciplinary process under Division 3 of the Public Sector Management Act. In some cases this could lead to the officer being dismissed.

While it is not suggested that the disciplinary process be amended it may be useful to include some sort of reference in the Sheriff Act to the disciplinary process under the Public Sector Management Act.

2.2.11 Power to remove officers

The power to dismiss Sheriff’s officers is currently contained within Part 5 Division 3 of the Public Sector Management Act. This spells out the circumstances where dismissal is appropriate and provides that dismissal should not occur without the approval of the Governor Public Sector Management Act 1988 (NSW) section 75(4). Dismissed employees also have a right of appeal to the Government and Related Employees Appeal Tribunal (GREAT) Public Sector Management Act 1988 (NSW) section 75(5).

An alternative dismissal procedure is contained in the Police Service Act, which grants the Commissioner the power to remove a police officer who no longer has the confidence of the Commissioner Police Service Act 1990 (NSW) section 181D. This procedure merely requires the Commissioner to notify the officer in writing why the Commissioner no longer has confidence. The officer then has 21 days to make written submissions before the Commissioner makes a final decision. This decision is not subject to any appeal to GREAT.

It should be noted that the Commissioner’s power under the Police Service Act was introduced as a response to recommendations contained within the Final Report of the Royal Commission into the NSW Police Service conducted by Justice Wood.

While such a power may be justified in relation to the Police Service it is hard to make a case for a similar power in relation to Sheriff’s officers. No recommendations have been made by a body such as a Royal Commission and the powers of Sheriff’s officers are more limited than those of the Police. In the light of these matters any attempt to remove existing rights from officers appears to be unjustified. It is therefore proposed to retain the existing mechanism for the discipline and dismissal of officers.

The Sheriff currently has a power to make confidential inquiries in relation to concerns by jurors about possible irregularities. If these inquiries reveal that an irregularity has occurred then the Sheriff has a duty to ensure that the relevant facts are made known through the appropriate channels to those representing the accused R v. Rinaldi (1993) 30 NSWLR 605.

This raises the question of whether a broader power to investigate complaints or conduct inquiries should be expressly granted to the Sheriff.

Such a power may be considered beneficial as it would make clear that the Sheriff has the power to investigate complaints directed to him regarding matters related to the Office of the Sheriff. It may also be used to permit the Sheriff to carry out preliminary investigations into matters that may need to be referred to other agencies such as the Ombudsman’s Office and the Independent Commission Against Corruption. While this would not be intended to interfere with the power of these other agencies it may allow a memorandum of understanding to be drawn up to decide at which stage matters should be passed on to external agencies.

Against this it may be argued that a power to conduct investigations may cause conflict between the Sheriff and external agencies as it may cause jurisdictional disputes. Further, it should be noted that most other public sector bodies do not appear to have such a legislative power.

It is suggested that if the Sheriff is granted a power to investigate any matter that relates to the Office of the Sheriff and its functions, then this should be made specifically subject to the requirements of any other legislation. For example the Public Sector Management Act, Ombudsman Act, and the Privacy and Personal Information Protection Act.

Q.32 Should the Sheriff be granted a power to conduct investigations? If so what limitations should be placed upon this power?

Generally, complaints about the behaviour of a Sheriff’s officer are directed to the Sheriff, although there would be occasions when a matter may be investigated by the police, the Independent Commission Against Corruption, the Privacy Commissioner or a Court. Directing complaints to the Sheriff may enable justice to be done but it does not necessarily allow justice to be seen to be done. While the Sheriff may conduct investigations impartially and objectively, a complainant may feel that the Sheriff will be biased in favour of his or her employees.

Currently the Ombudsman has no oversight role in relation to the Sheriff or Sheriff’s officers, as they are associated with the courts and are therefore exempt from the coverage of the Ombudsman Act Ombudsman Act 1974 (NSW) Schedule 1 clause 2(a). Clearly, in some cases, it would be inappropriate for the Ombudsman to become involved in a dispute (for example, in the case of a dispute relating to whether a writ was executed properly). To allow oversight in these cases may in effect set up parallel dispute resolution mechanisms which could result in contradictory conclusions being reached in regard to the same set of facts.

However, not all misbehaviour by a Sheriff’s officer would be reviewable by a court, and in these cases it is not so clear why the Ombudsman should be excluded.

Independent oversight could also be advantageous in that structural problems or problems with an organisational culture may more easily be recognised. These types of problems are unlikely to be readily seen by a person operating within that organisation. A body such as the Ombudsman would also be able to apply standards equally across the public sector so that a person’s complaint would be handled in the same way regardless of where in government the subject of the complaint worked.

Q.33 Should the Sheriff and Sheriff’s officers be subjected to oversight by the Ombudsman? If so, what functions, if any, should be excluded from such oversight?

It is envisaged that certain matters such as fees may need to be included in regulations made under the Act. It is therefore proposed that the Sheriff Act contain a general regulation making power.