Sheriff Act 1900 Review


Other Matters To Be Included In A Court Security Act

3.5.8.1 Right of public to enter court

Overall the provisions in relation to court security could be said to be a qualification on the right of the public to freely enter courts and view the legal process. Given that it is proposed to codify these qualifications it may also be reasonable to include some sort of codification of the substantive right. Any such right would need to recognise a number of limitations including the judiciary’s right to control proceedings and other legislative requirements which may prohibit access in certain circumstances.

The Northern Territory legislation addresses this issue by entitling a person to enter and remain on court premises providing there is room for the person and providing the person has a proper reason for being on the court premises. Proper purposes include an indication that the person wishes to see the proceedings of the court. This right is subject to the person having complied with any requirements of the judge or security officer Court Security Act 1998 (NT) section 3(3). The entitlement to enter and remain in a court in Victoria is subjected to similar conditions Court Security Act 1980 (Vic) section 3(8) as is the entitlement in relation to Commonwealth courts Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13E(4).

In NSW the right to enter certain courts is contained within the Justices Act which states as follows:


Subject to any Act or other law, the room or place in which a Justice or Justices sits or sit to hear and determine any information or a complaint shall be deemed to be an open and public court, to which all persons may have access so far as that room or place can conveniently contain them. Justices Act 1902 (NSW) section 67

A similar right can also be implied in the Supreme Court Act Supreme Court Act 1970 (NSW) section 80. It has also been noted above at page 51 that the denial of a right to enter a court may amount to contempt.

Q.67 Should a Court Security Act contain some sort of statement outlining the general right of the public to enter court precincts and view court proceedings?

It is possible that there may be certain circumstances where the court security duties of the Sheriff may be carried out by a police officer. It would therefore be anomalous if a police officer, who was engaged in a court security role, were to have less powers than a Sheriff’s officer in the same circumstances. While it is by no means clear that this would be the case, the matter could be clarified by including a provision granting police all the powers under the Court Security Act when they are engaged in court security activities.

This may be approached either as an automatic conferral of powers on any officer whenever they are engaged in court security work, or as a delegation by the Sheriff in relation to specific officers or specific locations. In New Zealand the approach taken has been to include a provision granting police officers all the powers and duties given to court security officers Court Security Act 1999 (NZ) section 34. The Northern Territory has also conferred all powers on police officers by making them (like all Sheriff’s officers) security officers under the Court Security Act Court Security Act 1998 (NT) section 5(1). Queensland also grants police officers the majority of the powers of a court security officer State Buildings Protective Security Act 1983 (Qld) section 25.

The New Zealand legislation addresses the potential for demarcation disputes between police officers and court security officers by making it clear that court security officers are not to exercise powers against a person when a police officer is dealing with that person unless the police officers requests assistance Courts Security Act 1999 (NZ) section 29.

3.5.8.3 Private security officers

The use of contractors is becoming more common in society and it is foreseeable that the Sheriff may wish to engage private security officers in some circumstances. This may occur in cases where there may be a shortage of Sheriff’s officers due to illness, seasonal increases in workload or heightened security concerns. It may also occur where Sheriff’s officers may be considered to be too highly skilled to carry on a particular task.

Private security guards raise particular problems in relation to training, grants of power and responsibility for actions. This issue has been dealt with in various ways in the other jurisdictions that have court security legislation. In Queensland the legislation permits the State to enter into a contract for the supply of security services with a licensed security firm. However, the Act precludes the employees of the security firm from exercising any of the powers conferred on officers under the legislation State Buildings Protective Security Act 1983 (Qld) section 29A.

If a contractor is to be granted the powers of a Sheriff’s officer, then a number of safeguards will be necessary to ensure that the person is properly accountable and that the powers are exercised responsibly.

Victorian legislation permits a chief executive officer to enter into a contract for security services but makes a number of requirements of what has to be included in the agreement. The contractor is, amongst other things, obliged to comply with all relevant Acts and rules, submit periodic reports, indemnify the Crown and subject themselves and their employees to freedom of information and ombudsman legislation Court Security Act 1980 (Vic) sections 2C-2F. Similar requirements are contained in the Western Australian legislation. This also requires the inclusion of: a code of ethics; a complaint investigation procedure; and a dispute resolution mechanism Court Security and Custodial Services Act 1999 (WA) section 38.

New Zealand allows for the contracting out of security services with the written consent of the Minister. The legislation makes a number of requirements of the contractor, including: complying with public sector personnel and equal employment opportunity policies; complying with the Act and the New Zealand Bill of Rights; providing and paying for training to a level at least as high as employed court security officers; maintaining adequate insurance; and providing for the avoidance of conflicts of interest Court Security Act 1999 (NZ) section 7.

While the contracting out of court security services has not been addressed in New South Wales legislation, part 12 of the Crimes (Administration of Sentences) Act 1999 has dealt with the engagement of contractors in relation to correctional services.

Management agreements under the Crimes (Administration of Sentences) Act have a number of requirements: including compliance with the Act and other laws; submission of periodic reports; and provision of indemnity Crimes (Administration of Sentences) Act 1999 (NSW) section 238. All employees need to be authorised by the Commissioner and authority may be refused on the basis of inadequate training, probity or other reasons the Commissioner considers to be in the public interest Crimes (Administration of Sentences) Act 1999 (NSW) section 240.

When a management agreement is in place, the management company is treated, in relation to its functions under the Act or agreement, as a public authority for the purposes of the Independent Commission Against Corruption Act 1988 Crimes (Administration of Sentences) Act 1999 (NSW) section 245, the Ombudsman Act 1974 Crimes (Administration of Sentences) Act 1999 (NSW) section 246 and the Freedom of Information Act 1989 Crimes (Administration of Sentences) Act 1999 (NSW) section 247.

Should it be considered desirable to make similar requirements in relation to contracts for court security it may also be necessary to subject the contractor to the requirements of the Privacy and Personal Information Protection Act 1998.

Other matters that may be considered necessary to include in a contract would be the relationship and command structure between Sheriff’s officers and private security officers, penalties for breach of any agreement and the power of the Sheriff to dismiss or refuse to engage a particular officer. It may also be necessary to spell out the relationship between the contract worker and the presiding officer in a court or tribunal.

Q.69 What matters should be required by legislation to be addressed in any contract for the provision of court security services?

Some of the more recent examples of court security legislation contain limitations on the exercise of some or all the powers by court security officers. For example Western Australia prohibits searches of a range of people including judicial members, police, the staff of the Director of Public Prosecutions and members of Parliament acting in an official capacity Court Security and Custodial Services Regulations 1999 (WA) clause 4. New Zealand strictly limits the exercise of the court security officers powers in relation to judicial officers Court Security Act 1999 (NZ) section 24. Powers are also limited against people in the custody of other agencies Court Security Act 1999 (NZ) sections 25 and 26, in courtrooms where proceedings are being heard Court Security Act 1999 (NZ) sections 27 and 28 and in situations where the police are involved Court Security Act 1999 (NZ) section 29.

Q.70 Should any general limitations be placed upon the exercise of powers by Sheriff’s officers?

3.5.8.5 Personal liability

This matter has already been addressed in relation to the activities of Sheriff’s officers above at page 9. However, the potential use of people other than Sheriff’s officers in relation to court security functions raises the question of whether a similar clause needs to be placed in a Court Security Act. For example Queensland’s State Buildings Protective Security Act includes a provision which excludes liability for anything done in good faith and without negligence pursuant to the Act State Buildings Protective Security Act 1983 (Qld) section 31.

A further issue is protection for people assisting Sheriff’s officers. New Zealand provides for immunity in these cases where the person can show that they believed in good faith that the court security officer needed assistance and gave their assistance in a reasonable way Courts Security Act 1999 (NZ) section 32.

Q.72 Should people who assist Sheriff’s officers in good faith be protected or somehow indemnified against their actions? If so to what extent?

It is envisaged that certain matters may need to be included in a regulation, for example it may be considered necessary to specify the wording of signs or spell out in more detail how searches are to be carried out. It is therefore proposed that a general regulation making power be included in a Court Security Act.