Sheriff Act 1900 Review


Matters to be included in a Court Security Act

3.5.1 Objectives

A useful starting place in considering any proposed legislation may be to try and define in a broad sense what it is trying to achieve. In this regard it may be helpful to include some objectives. It is suggested that possible objectives may include such matters as: assisting the safe and efficient operation of the court system; ensuring the safety and security of all members of the judiciary, staff and other court users; and ensuring the safety and security of all court buildings and other property.

Q.34 How should the broad objectives of the legislation be defined?

To further define the role of the Sheriff in relation to court security it is suggested that some broad functions be spelt out. These are not intended to be grants of power but they may help to define in what circumstances particular powers can be used. The following are some functions that may be useful in further defining the role of the Sheriff.




• perimeter security
• patrolling and watching over prescribed places and associated property
• monitoring and responding to duress and intruder alarms
• operating security equipment and devices
• advising on the purchase and installation of security equipment
• protection of the judiciary, court personnel and court users (in conjunction with other agencies such as the Police Service)
• advising the judiciary and other court personnel on appropriate security safeguards
• provision of security training to judiciary and staff
• protection of court buildings and associated property
• maintaining order in and around courts
• liaison with the Police Service, Corrective Services and other agencies in relation to court security.

Q.36 Should any functions be added to or removed from the above list?

3.5.3 Coverage

One of the difficulties in considering powers in relation to court security is to decide where to draw the boundaries. In legal theory, the Court is made up of the person of the judge and not the physical building. Therefore it is likely that any Court Security Act will need to define both the courts that will be covered and also the buildings and other premises in which those courts usually reside.

These definitions could either be generic or specific, in other words the definition could either define what is meant by a court in the abstract or simply spell out in the form of a list every court and tribunal to which the Act is intended to apply.

Victorian legislation uses the following definitions to define the scope of its coverage:


"court" includes the Supreme Court and the County Court and other inferior courts of record and any tribunal body or person which is by law entitled to hear receive and examine evidence and is prescribed by the regulations to be a tribunal body or person which is a court for the purposes of this Act;

"court premises" means in relation to a court the premises occupied in connexion with the operations of the court and the precincts and immediate environs of those premises; Court Security Act 1980 (Vic) section 2


This has the advantage of being quite a concise definition and also of being flexible in that new courts and tribunals can be included in the regulations.

The definition under New Zealand legislation is complex but does cover some matters which may potentially fall outside the Victorian definition. In particular it includes judges chambers and surrounds Court Security Act 1999 (NZ) section 3(4), car parks Court Security Act 1999 (NZ) section 3(4)(d) and court premises that are not currently occupied by a court Court Security Act 1999 (NZ) section 3(2). Western Australia in its definition of “courtroom” also includes a place at which a videolink or other device exists where a presiding officer can see or hear a person who would otherwise be attending the court Court Security and Custodial Services Act 1999 (WA) section 3.

3.5.4 Coordination and consultation mechanisms

While the primary responsibility for security around a court lies with the Sheriff, there are a number of other agencies that have areas of responsibility relating to security such as the Department of Corrective Services, the Police Service, the Department of Juvenile Justice and the Department of Community Services. In addition to these agencies there are also the requirements of the judiciary to take into account.

In order to effectively manage security in and around the courtroom, it will be necessary to have effective coordination, consultation and communication with all these various stakeholders.

One possible way to achieve this end may be to include a legislative requirement for the Director General or the Sheriff to prepare security management plans in consultation with relevant stakeholders. This may assist in identifying potential problems at an early stage and can avoid misunderstandings and conflict.

It is suggested that any legislative requirement in this regard should not be too prescriptive as to the content of these plans, allowing for flexibility. For example the plans may cover a single or many locations, jurisdictions or particular activities such as the movement of detainees.

3.5.4.1 Consultation with Judiciary

In addition to the preparation of security management plans mentioned above it may be appropriate to include some additional requirement that consultation take place between the Director General or the Sheriff and the heads of various jurisdictions in relation to certain matters. For example Western Australian legislation requires the chief executive officer to consult with the chief judicial officer of a court in relation to a range of matters that may affect the court, including: any contracts for the provision of court security services; development of or changes to minimum standards; preparation of and variation to codes of ethics and any changes to regulations Court Security and Custodial Services Act 1999 (WA) section 36.

3.5.5 Court security officers or Sheriff’s officers

As previously mentioned Sheriff’s officers currently carry out the majority of court security work and this is expected to continue. It may however be necessary when drafting the legislation to create a new title such as court security officer or authorised officer and then define this as including a Sheriff’s officer. This approach has been taken in all other jurisdictions.

In discussing the powers of officers below the term “Sheriff’s officer” has been used to avoid confusion with other jurisdictions. However, it may well be that people other than Sheriff’s officers may exercise these powers, for example contractors. This may need to be taken into account in response to any of the following issues.

The following section considers the nature and scope of some powers that may need to be granted to Sheriff’s officers in order for them to adequately carry out their duties in relation to court security. The current scope of the Sheriff’s powers is by no means certain but it is probable that all the following activities would be permissible. The intention here is not to grant sweeping new powers but to clarify and codify those existing powers that are still considered to be necessary.

In certain circumstances it will be important for Sheriff’s officers to require a person to identify themself, for example in relation to a closed court hearing where only certain people are to be permitted entry. In these cases requiring people to prove that they have some business in the court may be necessary in order to protect the privacy of a person such as a child victim.

Requiring identification may also be necessary where a person has been seen to carry out an offence or has carried some dangerous goods or weapons into the court.

On the other hand it would be undesirable if the power to demand identification were to lead to every person being forced to identify themselves before entering a court complex. Such a situation may severely impact on the principle of an open legal system. It is therefore necessary to try and balance these competing interests.

Queensland grants broad powers to protective security officers to demand evidence of name and address and the person’s reasons for entering the state building State Buildings Protective Security Act 1983 (Qld) section 20(1). This is also the case in Victoria Court Security Act 1980 (Vic) section 3(1), the Northern Territory Court Security Act 1998 (NT) section 7 and New Zealand Courts Security Act 1999 (NZ) section 12. The Commonwealth allows for the same information to be requested but places a restriction on the exercise of the power. The request can only be made if the officer believes on reasonable grounds that provision of the information is necessary in the interests of security Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13C Tasmania takes a similar approach requiring a request to be necessary for order and safety in the court Admission to Courts Regulations 1995 (Tas) clauses 6(1)(a) and 8. All the above jurisdictions provide for an offence where the information is not forthcoming.

In NSW the Rail Safety Act allows for an authorised officer to demand the name and address details of a person reasonably suspected of having committed an offence against that Act or the regulations Rail Safety Act 1993 (NSW) section 80. Also the Parliamentary Precincts Act provides for an authorised officer to demand name and address details where the person has failed to leave the precincts when reasonably asked to do so. A person is only required to provide these details once they have been informed that failure to do so is an offence Parliamentary Precincts Act 1997 (NSW) section 19(3).

There would appear to be two different approaches taken under these various pieces of legislation, the first is a broad power to demand information and the second is a power to demand information which is triggered by a person apparently committing an offence. This second case would appear to be less controversial and may be more generally acceptable providing some safeguards were put in place. For example, a requirement that the suspicion of an offence having occurred must be a reasonable one and a requirement that a person be notified of their rights before providing their name and address.

A general power to demand identification may infringe to a greater degree on civil liberties and privacy. However, it could be argued that it should not be necessary to await the commission of an offence where an officer has a reasonable basis for thinking it may occur. A person who is acting suspiciously may be deterred from committing an offence because the Sheriff’s officer knows his or her name and address. It is foreseeable that a court user, such as a lawyer or a victim, may have a suspicion that some person may attempt to harass or assault them. If they were to provide a description of this person to the Sheriff’s officer and a person meeting this description were to arrive at the court it would appear anomalous if nothing could be done until after the assault or other offence had occurred.

One possible way of balancing these competing interests may be to introduce a two stage process. Where an offence appears to have occurred then provision of identification details by the suspected offender would be required subject to certain safeguards. However, where a court security officer only has reasonable suspicion that an offence may be about to occur then the person has an option of either providing identification or leaving the court premises.

Q.40 Should court security officers have the power to demand identification of court users? If so in what circumstances should it be permissible to use this power?

3.5.6.2 Searches

In order to ensure that dangerous items such as firearms and explosives are not bought into a court, it will probably be necessary to empower Sheriff’s officers to conduct searches. This may involve searching personal belongings such as bags, or searches of the person.

It would appear to greatly undermine attempts to secure a court if a person were able to freely enter the premises with bags and other articles, which may contain weapons or explosives. On the other hand overzealous or unreasonable searching could greatly infringe on a person’s privacy or discourage a person from entering a court.

It is therefore necessary to strike a balance between these two interests by limiting the power to search through appropriate safeguards.

In the following discussion a distinction is made between frisk searches and scanning searches. Generally, these terms are used as defined in the Commonwealth’s Public Order (Protection of Persons and Property) Act 1971.


“frisk search” means a search of a person conducted by quickly running the hands over the person’s outer clothing Public Order (Protection of Persons and Property) Act 1971 (Cth) section 4.

“scanning search” means a search of a person conducted by equipment designed to carry out such a search without touching the person Public Order (Protection of Persons and Property) Act 1971 (Cth) section 4.


While scanning searches by x-ray machines or metal detectors appear to be well suited for general searches of all entrants they do not appear to be a substitute for a more thorough search by a person in certain circumstances. Scanning equipment has limitations in terms of its cost and its ability to detect all weapons or explosives. In cases where equipment is used and there is a potentially positive detection of a weapon, it will often be necessary to then subject the person or item to further scrutiny in the form of a manual search.

The need to search may be reduced in some cases by offering various alternatives. For example giving a person the option of surrendering an item rather than offering it up to be searched. This might be done by providing public lockers outside a secure area or by having officers hold the item until the person leaves. This has limitations as an alternative to searching because the person may well need the bag or other object with them in the court. This would often be the case with legal practitioners and other professionals who use the court on a regular basis. It also raises issues such as adequate storage space, liability for lost or damaged items and safety in the case of items that may contain explosives or other dangerous matter.

The Commonwealth currently allows for searches of bags and other personal effects when on, or entering, Commonwealth court premises. An authorised officer who believes on reasonable grounds that a search is necessary in the interests of security, may require a person on court premises to submit for a search of any of their personal effects that may be reasonably capable of concealing a firearm, explosive substance or offensive weapon Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(1)(a)(ii).

Queensland legislation specifically empowers a security officer to ask an entrant to pass through a walk-through detector, or to pass the entrant’s belongings through an X-ray machine or to allow the officer to pass a hand held scanner in close proximity to the entrant or the entrant’s belongings State Buildings Protective Security Act 1983 (Qld) section 21(1).

Queensland legislation also empowers a security officer to inspect an entrant’s belongings State Buildings Protective Security Act 1983 (Qld) section 21A(2)(a) or to open an article and examine its contents State Buildings Protective Security Act 1983 (Qld) section 21A(2)(d). The entrant is given the option of leaving the building if they do not wish to undergo the search or if they wish to terminate the search State Buildings Protective Security Act 1983 (Qld) section 21F(2)(b).

New Zealand legislation is similar in that it grants a court security officer power to ask to search a person’s belonging’s where there are reasonable grounds for asking for such a search Courts Security Act 1999 (NZ) section 13(1)(f). However, the security officer is obliged to tell the person that the search will not take place without the person’s consent and that consent can be withdrawn at any time. If the person does not give consent they may be refused entry or be removed from the court Courts Security Act 1999 (NZ) section 14.

3.5.6.2.2 Search of the person

Searches of the person potentially raise greater privacy issues than searches of bags and other personal effects.

The Commonwealth allows both scanning and frisk searches of people entering court premises where an authorised officer believes on reasonable grounds that it is necessary in the interests of security to do so Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D (1)(a)(i). These powers do not permit the authorised officer to remove, or require the person to remove, any item of clothing Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(4). Any frisk search must be conducted by a person of the same sex as the person being searched Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(5). When conducting a search the authorised officer must not use more force, or subject a person to greater indignity than is reasonably necessary in order to conduct the search Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(7). The officer also has a duty to explain the powers and the procedures involved in the frisk search, prior to the search occurring Public Order (Protection of Persons and Property) Regulations 1999 (Cth) clause 6.

In Queensland security officers are able to ask an entrant to remove one or more outer garments State Buildings Protective Security Act 1983 (Qld) section 21A(2)(b) which includes a cloak, coat and jacket State Buildings Protective Security Act 1983 (Qld) section 3. The officer must reasonably consider it necessary State Buildings Protective Security Act 1983 (Qld) section 21A(1)(a) to remove the garment on the basis that a proper examination of the entrant and garment can not be carried out unless the garment is removed State Buildings Protective Security Act 1983 (Qld) section 21H(a). The officer is obliged to specify the garment to be removed State Buildings Protective Security Act 1983 (Qld) section 21H(b), inform the entrant of the reason for making the request State Buildings Protective Security Act 1983 (Qld) section 21A(1)(b) and inform the entrant of their right to have the search of the garment conducted, as far as practicable out of public view State Buildings Protective Security Act 1983 (Qld) section 21H(c). The entrant is entitled to opt to leave the building immediately rather than go through with the search State Buildings Protective Security Act 1983 (Qld) section 21G.

The senior protective security officer is also permitted to search a person, however this is only to occur by touching the garments worn by the person to the extent reasonably necessary to detect articles carried by the entrant State Buildings Protective Security Act 1983 (Qld) section 21B(2)(b). To be permitted to conduct a search, the senior protective officer needs to be of the same sex as the subject of the search. If the officer is not of the same sex then they may direct another officer of the same sex to conduct the search State Buildings Protective Security Act 1983 (Qld) section 21C. Prior to any request to remove an outer garment or a request to conduct a garment search the officer must inform the entrant of their rights State Buildings Protective Security Act 1983 (Qld) section 21F and the entrant can then opt to leave the building immediately rather than go through with the search State Buildings Protective Security Act 1983 (Qld) section 21G.

If a person chooses to be subjected to a search they are entitled to request that the search be carried out in an area that is, if practicable, out of view of members of the general public and provides suitable personal privacy to the entrant during the examination State Buildings Protective Security Act 1983 (Qld) section 21I(1)(a). Any search must be conducted in a way that preserves the entrant’s dignity to the greatest extent practicable State Buildings Protective Security Act 1983 (Qld) section 21I(2).

Victoria permits an authorised officer to request a person on court premises to undergo a frisk search where the officer believes this to be reasonably necessary in the interests of security. This must be done for the purpose of detecting items capable of causing injury such as offensive weapons Court Security Act 1980 (Vic) section 3(3)(a). The officer conducting the frisk search must not use more force or subject a person to greater indignity than is reasonably necessary in order to conduct the search Court Security Act 1980 (Vic) section 3(4). If a person chooses not to undergo a search they may be refused entry or be removed from the court premises Court Security Act 1980 (Vic) section 3(5). Authorised officers are able to request any person to undergo a scanning search and in this case there is no requirement this be reasonably necessary in the interests of security Court Security Act 1980 (Vic) section 3(3)(b). Similar requirements exist in the Northern Territory Court Security Act 1998 (NT) section 8.

South Australia generally only permits scanning searches of the person. However, people who are required by law to attend the premises may be subjected to a physical search Sheriff’s Act 1978 (SA) section 9F(1)(c)(i). When this occurs a person may be required to open their mouth, remove outer clothing or be frisked Sheriff’s Act 1978 (SA) section 9F(4)(a). The Act does not permit an officer to require a person to remove inner clothing or underclothing Sheriff’s Act 1978 (SA) section 9F(4)(b). The search must be conducted by a person of the same sex and at least two people need to be present Sheriff’s Act 1978 (SA) section 9F(4)(c). The South Australian Act also requires that:


the search must be carried out expeditiously and in a manner that avoids undue humiliation of the person and, as far as reasonably practicable, avoids offending cultural values or religious beliefs genuinely held by the person. Sheriff’s Act 1978 (SA) section 9F(4)(d)

Western Australia provides a special case that involves the removal of outer clothing where the person being searched appears to be under 10 years old. In those cases the search must be conducted by a female officer in the presence of the person accompanying the child Court Security and Custodial Services Act 1999 (WA) Schedule 1clause 4(6).

3.5.6.3 Holding bags, cameras etc while a person is on premises

In some cases it may be necessary to refuse to allow a person to take certain objects into a court. This may be because they are potentially dangerous or because they are forbidden for some other reason. People may have these objects in their possession quite innocently, for example tourists with cameras or police officers with guns and it would therefore be inappropriate to merely refuse entry or seize the items. It may thus be necessary for Sheriff’s officers to be authorised to hold or retain certain items while a person remains on court premises.

The Commonwealth requires that any personal effects that are capable of being used to cause injury, or capable of concealing a weapon or explosive must be deposited with an authorised officer Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(1)(b). Victoria has a similarly worded provision but this gives the person an option of depositing their belongings or leaving the premises Court Security Act 1980 (Vic) section 3(3)(c). Queensland allows a security officer to ask an entrant to deposit belongings where the officer reasonably believes that the belongings are capable of concealing any proscribed matter State Buildings Protective Security Act 1983 (Qld) section 21A(2)(g). New Zealand provides for court security officers to take detected items into temporary custody where the item may threaten the security of the court and it is not something that has just been used or is about to be used to commit an offence Courts Security Act 1999 (NZ) section 17. A court security officer in New Zealand is also required to inform the person that goods can only be detained with the person’s consent and the person can withdraw consent at any time. However, withdrawal of consent raises the possibility that the person will be denied entry to, or be removed from, the court Courts Security Act 1999 (NZ) section 18.

As can be seen, the provisions in other jurisdictions generally appear to be focused on the retention of potentially dangerous items and would not comfortably accommodate other items such as cameras. Tasmanian legislation is broader in that it allows an authorised officer to request a person to deposit any placard, instrument, device or other thing which is liable to engender violence or create a breach of the peace Admission to Courts Regulation 1999 (Tas) clause 6(1)(b). Western Australia has the broadest coverage in this regard as it allows a court security officer to request any item be deposited that may affect the security, good order or management of court premises Court Security and Custodial Services Act 1999 (WA) Schedule 1 clause 5(1).

An alternative method of addressing non dangerous items which are nonetheless considered to be unsuitable to bring onto court premises, would be to require that these be specifically listed in regulations made under the Act. These may include things such as placards, cameras and animals. However, allowances would have to be made in certain circumstances, such a when the animal in question is a guide dog, or the item is an exhibit in a matter before the court.

In any case where an item is required to be deposited, it may be argued that the person should always have the option of leaving the court premises instead of depositing the item.

The retention of dangerous items, for example police officer’s firearms or valuable items such as cameras raises the issue of safe storage. In order to address this issue it may be necessary for any right to detain goods to also include an obligation that any detained goods are stored safely and securely.

Q.44 Does there need to be an express requirement that goods be stored safely and securely?

3.5.6.3.1 Lost or damaged items

Any power to detain goods will inevitably lead to claims regarding lost or damaged goods. While this may primarily be a matter for normal civil proceedings there is still some potential for court security legislation to address certain related matters. In Queensland, a security officer who damages a person’s belongings while exercising his or her powers to search or detain goods is obliged to immediately give written particulars of the damage to the person or, if the person is not there, leave the written notice on the damaged belongings State Buildings Protective Security Act 1983 (Qld) section 10C. The Queensland legislation also provides for a person to claim compensation from the State for damage to their property from a court of competent jurisdiction and the court is to make an order for compensation if it is just in the circumstances State Buildings Protective Security Act 1983 (Qld) section 10D.

3.5.6.3.2 Disposal of items not collected

Another issue that may arise in relation to a power to detain goods is the disposal of uncollected goods. Generally in NSW, any dealings with uncollected goods are addressed by the Uncollected Goods Act 1995. This means it may not be necessary to deal with this matter in relation to court security legislation or it may only be necessary to make mention that any uncollected goods are to be dealt with in accordance with the Uncollected Goods Act.

On the other hand, it may be necessary to introduce a different process as the Uncollected Goods Act appears premised, to some degree, on the assumption that the bailor (holder of the goods) knows who the bailee (owner of the goods) is See for example Part 3 Uncollected Goods Act 1995 (NSW). Unless people leaving goods are required to provide their name and address this is often unlikely to be the case. If it considered to be undesirable to collect the personal details of anyone leaving goods then it may be more appropriate to treat the uncollected goods like lost property.

Lost property is dealt with in relation to passenger transport legislation where the only legislative requirement is that it must be handled, and disposed of, in accordance with the directions of the Director-General Passenger Transport (Bus Services) Regulation 2000 (NSW) clause 47; Passenger Transport (Ferry Services) Regulation 2000 (NSW) clause 38; Passenger Transport (Taxi-Cab Services) Regulation 1995 (NSW) clause 48.

In Western Australia if property is left unclaimed for 6 months the chief executive officer is authorised to dispose of it any appropriate way including destruction or giving it to a not for profit association. If the property is to be auctioned a notice must be placed in the Gazette describing the property and giving the time, date and place of the auction Court Security and Custodial Services Regulation 1999 (WA) clause 10.

3.5.6.4 Seizure and disposal of weapons and other dangerous goods

In cases where illegal weapons or explosives are detected it would not be appropriate for a court security officer to return them to the person. Nor would it be acceptable to allow the person the option of leaving with the weapons or explosives. Apart from the moral implications of such an action, the failure to seize these items may endanger the lives of people in the community and potentially expose the Office of the Sheriff to liability. It is therefore necessary that Sheriff’s officers have the power to seize certain items. When dangerous goods such as weapons are seized there may also need to be some authority to dispose of them. This may be a requirement that they are to be passed onto a prosecution authority as evidence or, in some cases, safety may indicate that the goods be destroyed immediately.

The Commonwealth authorises an officer to remove and retain any firearm, explosive substance or weapon discovered in the course of a search Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13D(3). A similarly worded provision is found in the Victorian Court Security Act 1980 (Vic) section 3(6) and Tasmanian Admission to Courts Regulation 1999 (Tas) clause 7(1)(b) legislation. The Commonwealth and Victoria only authorise officers to retain these objects for as long as necessary for the purposes of the Act. No authority is given to dispose of these items.

Queensland on the other hand authorises senior protective security officers to seize any proscribed matter found in the possession of a person in the building unless the person is lawfully in possession of it in the course of the person’s trade State Buildings Protective Security Act 1983 (Qld) section 22(1). It goes on to authorise that any proscribed matter which has been seized is to be disposed of under the Weapons Act 1990 (Qld) as if it were a weapon in the custody of police officer State Buildings Protective Security Act 1983 (Qld) section 22(2).

The more recent New Zealand legislation provides for a different mechanism. Items can only be seized when the goods are of a nature to give the court security officer reasonable grounds to believe that the person may have, or is about to commit a specified offence in or around the court Courts Security Act 1999 (NZ) section 16. When this occurs the officer is obliged to seize the item, detain the person and call the police as soon as reasonably practical Courts Security Act 1999 (NZ) section 20(1). If the attending police officer wishes to arrest the person then the goods must be given to the police officer. If the police officer does not wish to arrest the person then the goods must be returned Courts Security Act 1999 (NZ) section 20(6).

The New Zealand legislation provides a good mechanism for the disposal of goods as far as Sheriff’s officers would be concerned as it passes ultimate responsibility onto the Police Service. However, there is no provision for the destruction or disposal of goods that may be of an immediate security risk, for example a bomb.

The New Zealand legislation is also more broadly drafted than the Australian Acts in that it appears to allow for items other than firearms, explosives and weapons to be seized. There may be a case for including a broader range of objects where these may directly impact on court security. For example the Commonwealth, in relation to unauthorised assemblies on Commonwealth property, includes possession of missiles or destructive, noxious or repulsive objects without lawful excuse Public Order (Protection of Persons and Property) Act 1971 (Cth) section 10(1).

It is more questionable whether court security officers should be able to seize things that may be illegal but which may pose little risk to security. For example a person carrying an illegal drug such a cannabis into a court complex.

Q.48 What should happen to seized items?

3.5.6.5 Deny entry to and removal from court premises

In order to make a court secure it will be necessary in certain circumstances to remove a person or deny a person entry to the court premises. For example, some people may need to be excluded because they are part of a group of violent demonstrators. This power is central to any effective court security regime as it allows for more serious problems such as assaults and harassment of court users to be avoided. This power has been included in all court security legislation in other Australian jurisdictions.

Sheriff’s officers in NSW currently derive this power from the Inclosed Lands Protection Act and the Crown’s power as occupier. These powers to deny access are very broad, however, the NSW Supreme Court has indicated that the denial of access to a court in certain circumstances may amount to contempt:


I have no doubt that when the proceedings of a court are to be administered as a forum open to the public, any person who, without lawful authority or justification, prevents or attempts to prevent not only parties, their legal representatives or witnesses but also members of the public who are desirous of being present at those proceedings from entering the court or its precincts could be adjudged guilty of contempt of court Ex parte Tubman; Re Lucas (1970) 72 SR (NSW) 555 at 568.

This indicates that the exercise of the power must be justified in some way. For example in South Australia removal from court premises must generally be preceded by the person refusing to follow a reasonable direction. Such directions can only be made for the purposes of security, orderly conduct or the safety of a person Sheriff’s Act 1978 (SA) section 9E. Tasmania allows a judge to refuse entry or remove people in the interests of public order, safety, public morals and decency Admission to Courts Regulations 1995 (Tas) clause 5, and allows authorised officers to do this where a person is behaving in an unlawful, disorderly or menacing manner Admission to Courts Regulations 1995 (Tas) clause 6(1)(c)(i). Western Australia requires that the person is either behaving in a disorderly manner or fails to satisfy the authorised officer that he or she has a proper reason for being on the court premises Court Security and Custodial Services Act 1999 (WA) Schedule 1 clause 4.

Nova Scotia in Canada allows its security officers to remove any person causing a disturbance Court Security Act 1990 (Nova Scotia) section 6(2). However, a person causing a disturbance is defined to mean: a person who fights, screams, shouts, swears, sings or uses insulting or obscene language; or who is impaired by alcohol or drugs; or who impedes or molests other persons Court Security Act 1990 (Nova Scotia) section 6(3).

3.5.6.6 Arresting and detaining people

In certain circumstances it will be necessary for court security officers to arrest and detain people, for example if the officer witnesses a person assaulting another court user. However, given the serious nature of any arrest power it would appear reasonable to ensure that its scope was spelt out and that its exercise was subjected to adequate safeguards.

Queensland permits a senior protective security officer to detain a person where the officer suspects on reasonable grounds that the person has committed an offence against the Act. The Act also allows for arrest if the officer reasonably suspects the person has committed some other offence (unrelated to the Act) by virtue of their actions or by way of anything in their possession within a state building State Buildings Protective Security Act 1983 (Qld) section 24(1). Any arrested person must be surrendered to a police officer as soon as practicable after arrest.

The more recent Northern Territory legislation permits a security officer to arrest a person when that officer is of the opinion that the person has committed, is committing or is about to commit an offence against the Act Court Security Act 1998 (NT) section 16(1). Once a person is arrested the officer (if that officer is not a police officer) must deliver the person to a member of the Police Force as soon as practicable Court Security Act 1998 (NT) section 16(2). The person must only be questioned by a police officer Court Security Act 1998 (NT) section 16(3) and must be released immediately if it becomes apparent that the person did not commit the offence for which they were arrested Court Security Act 1998 (NT) section 16(5). This power of arrest exists in parallel to the power contained in section 441 of the Northern Territory Criminal Code Court Security Act 1998 (NT) section 16(6) which is a provision along the lines of section 352 of the NSW Crimes Act (discussed below).

The New Zealand legislation is similar to the Northern Territory on this point in that it requires a court security officer to suspect on reasonable grounds that a specified offence has or is about to occur in the court or its precincts. When a person is arrested they must be delivered to the police as soon as practicable. The New Zealand legislation also permits the security officer to handcuff the person if the officer has reasonable grounds to believe that the person may abscond or hurt themselves or another person Court Security Act 1999 (NZ) section 20.

In NSW a Sheriff’s officer who wishes to make an arrest without a warrant must rely on the common law or the Crimes Act. At common law the Sheriff is considered to be a peace officer (other such officers include justices of the peace and coroners). Peace officers have certain additional powers of arrest over and above those of other citizens, including the power to arrest on reasonable suspicion of felony. This can include arrest based upon knowledge that a warrant has been issued or an indictment has been found against the person. A peace officer is also obliged to arrest an offender if a private person makes a reasonable charge of felony against the person Watson, R Blackmore, AM Hosking, GS Criminal Law (NSW) LBC Information Services 1996 at page 1-2291.

A broader power of arrest is found in section 352 of the Crimes Act which reads:


352. Person in act of committing or having committed offence
(1) Any constable or other person may without warrant apprehend,
(a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act,
(b) any person who has committed a serious indictable offence for which the person has not been tried,
and take the person, and any property found upon the person, before an authorised Justice to be dealt with according to law.

This covers arrest for offences under any Act and may be used in conjunction with the offences contained within the Inclosed Lands Protection Act discussed above at page 34. A person who arrests another person in this way is obliged to take the person directly to a magistrate or judicial officer. It would appear that a person is entitled to use reasonable force to effect such an arrest.

It is suggested that the model used by the Northern Territory and New Zealand may offer the advantage of better integration with the criminal justice system. In those jurisdictions the matter is passed as quickly as possible to the Police Service which has the expertise to determine whether to press charges and also what charges may be appropriate. The Police Service, unlike the Sheriff, is also able to identify, question and prepare a case against the person should this be necessary.

By passing the matter to the police there is also better opportunity for the arrested person to exercise their rights. The delay in the process (rather than taking the person directly before a justice) allows the arrested person to formulate a defence and also to seek legal representation.

3.5.6.7 Use of force

In exercising their powers, Sheriff’s officers may be required to use a certain amount of reasonable force. Generally this will be implied in the grant of power, however some jurisdictions have made this more explicit. For example, the New Zealand legislation allows a court security officer to use the amount of force that is reasonable in the circumstances when exercising the officers powers in relation to requesting identification, conducting searches, seizing items and detaining people Courts Security Act 1999 (NZ) section 21. Western Australia allows reasonable force to be used in relation to any power granted Court Security and Custodial Services Act 1999 (WA) section 26 and Queensland expressly provides for reasonable force only in relation to the detaining of offenders and suspects State Buildings Protective Security Act 1983 (Qld) section 24.

An express statement of the circumstances in which reasonable force may be used may be considered beneficial in that it makes clear the existing legal situation. However, because people may have preconceived ideas of what is meant by force, equating it with violence, it will be necessary to ensure that all officers receive adequate training in this regard.

Q.51 Is it necessary or desirable for the legislation to authorise officers to use reasonable force?

Apart from granting specific powers it is sometimes necessary to grant powers that are wider in scope to cover unexpected circumstances or as an adjunct to the powers in order that they cannot be easily circumvented. One way this might be done is to grant a court security officer the power to give a direction and for the Act to proscribe a penalty for failing to obey such a direction without reasonable excuse.

This power has been granted to security officers in South Australia where officers are permitted to give a reasonable direction to a person within the precincts of a court. A direction must be for the purposes of maintaining security or orderly conduct at the premises or for securing a person’s safety Sheriff’s Act 1978 (SA) section 9E(1)(a). Refusal to comply with such a direction can result in a penalty of $2,500 or six months imprisonment Sheriff’s Act 1978 (SA) section 9E(2).

This matter is discussed in greater detail below at page 63 under the heading “Failure to comply with a reasonable direction”.

It is generally accepted that people should be made aware of their legal rights and obligations and one way this can be done is by way of signs and notices. Discussion here centres upon two issues: whether the Sheriff should be granted a discretionary power to erect signs and notices in furtherance of the objects of court security; and whether there should be obligations on the Sheriff to erect particular signs.

Compulsory signs may be appropriate in relation to a number of matters, such as signs informing people of which items are not permitted to be bought into court, signs explaining a person’s rights in relation to searches and signs outlining the complaint procedure if a person feels aggrieved at the behaviour of a particular officer.

Q.52 Should the Sheriff be given the power to erect signs relevant to the security of the court?

3.5.6.10 Dealing with prisoners

Generally prisoners are not the responsibility of the Sheriff. Instead, they are handled by the Department of Corrective Services, the Police Service and the Department of Juvenile Justice. However, the Sheriff still appears to retain some functions in relation to prisoners See Crimes (Administration of Sentences) Act 1999 (NSW) section 269 and also Children (Detention Centres) Act 1987 (NSW) section 44 which preserve existing rights of the Sheriff in relation to people under lawful detention.. While the full scope of this power never appears to have been fully considered, there was some investigation by the High Court in the Queen v Turnbull (1968) 123 CLR 28. In that case Barwick J concluded that the Sheriff can, in some circumstances, justify his possession of a prisoner on the common law Queen v Turnbull (1968) 123 CLR 28 at 36.

Subsequent advice on this point from the Crown Solicitor has indicated that, while the exact powers and responsibilities of the Sheriff in relation to prisoners is unclear, the Sheriff at common law still has the power and responsibility to take custody of any person who is required, by law, to be held in custody.

In the light of this uncertainty it would be preferable if some statutory right for the Sheriff to deal with prisoners were to be spelt out.

This matter has been dealt with in quite different ways in other Australian jurisdictions. For example the Northern Territory Sheriff Act specifically includes a duty on the Sheriff to:


take, receive and detain all persons who are committed to the custody of the Court, or the sheriff and to discharge all such persons when directed so to do by the Court or by any law in force in the Territory Sheriff Act 1979 (NT) section 7(1)(b)

That Act also includes a power to commit any person to prison whom the Sheriff may have arrested by virtue of any process Sheriff Act 1979 (NT) section 13. This does not appear to specifically address the issue of moving prisoners although this might be implied.

South Australia has taken a slightly more detailed approach, spelling out in several provisions the powers of a security officer in relation to prisoners. Under the Act a security officer is permitted to assist to move a person, who is in the lawful custody of another agency, in or out of court premises Sheriff’s Act 1978 (SA) section 9E(1)(c). Security officers are also permitted to take into custody people whose bail may be revoked by the Court Sheriff’s Act 1978 (SA) section 9E(1)(d) and keep people in custody who are on the premises and already in lawful custody Sheriff’s Act 1978 (SA) section 9E(1)(e). This would presumably cover cases where a person may have been sentenced to a bond or recognisance and until they complete the paperwork necessary to enter that undertaking, they are still a prisoner. In these cases a Sheriff’s officer would probably be permitted to escort the prisoner to the court office. Finally the South Australian Act permits the Court to direct that a person be kept in custody if that person is on the premises and due to appear before the Court Sheriff’s Act 1978 (SA) section 9E(1)(g)(1).

Western Australia has taken a very different approach and has provided a very comprehensive range of powers in relation to people in custody. However it must be remembered that the Western Australian legislation covers both court security and custodial services such as court custody centres and lock ups. Thus many of the powers in the Western Australian legislation may be considered to be outside the scope of this paper. These powers are extracted at Appendix 2.

Q.54 How should the Sheriff’s power in relation to prisoners be defined?

3.5.6.10.1 Restraint of prisoners

A matter that may need particular legislative consideration is the circumstances in which it would be permissible for a Sheriff’s officer to secure or restrain a prisoner. Clearly, if the Sheriff has responsibilities in relation to prisoners, there would be certain circumstances where restraint may be justified, for example when a prisoner is attempting to injure themselves or some other person. It would appear necessary for such a coercive power to be clearly defined.

3.5.6.10.2 Searching people in custody

Another area of controversy is the power to search the person and the belongings of people who are in the Sheriff’s custody. The justification for such searches may be to ensure that the person cannot escape from custody and to ensure the safety of the prisoner and other people. To do this effectively it may be necessary to allow for more intrusive searching than occurs in relation to entrants to the court.

Such searches, if permitted, have significant implications for the person’s privacy and civil liberties. It would therefore be necessary to strictly control when and how searches were to occur.

3.5.6.10.3 Consultation with other agencies

It is envisaged that any exercise of the Sheriff’s power in relation to prisoners would only occur in consultation with the other agencies mentioned above. This may be an ideal subject for a specific security management plan and may include a series of memoranda of understanding citing the circumstances in which the Sheriff will take responsibility for prisoners.

It is intended that all statutory powers granted in relation to court security will co-exist with the powers possessed by courts and judges. This is the case in other Australian jurisdictions See for example Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13G. In New Zealand the following provision is included:

35. Powers of other persons not affected
(1) The powers in this Act are in addition to, and do not derogate from, any other powers given to or possessed by any court, judge, or person relating to
(a) The conduct of proceedings in a courtroom or the regulation of the conduct of persons in a courtroom; or
(b) The maintenance of security elsewhere in a court.
(2) Nothing in this Act affects any other power of a court or tribunal in relation to contempt of court or of a tribunal or any other similar power Court Security Act 1999 (NZ) section 35.

The New Zealand Act additionally empowers the court security officer to exercise any power or duty is directed to do so by the presiding judicial officer.

It would appear that similar provisions would need to be included in NSW legislation in order to cover matters such as maintenance of order in court rooms, enforcing contempt orders and possibly in relation to the execution of certain warrants.

A power closely related to this is the power for Sheriff’s officers to receive and secure court exhibits. Given that these goods may be illegal (for example drugs) or dangerous it may be advantageous to include some sort of specific provision authorising a court security officer to receive and secure exhibits as directed by a court or tribunal.

3.5.6.12 Access to information

Currently the Office of the Sheriff only has access to police data in relation to its jury functions under the Jury Act. It has been suggested that significant court security operations may require some intelligence gathering and this may justify Sheriff’s officers being granted additional access to Government databases such as those operated by the Roads and Traffic Authority (RTA) or the NSW Police Service.

With the passage of the Privacy and Personal Information Protection Act, Parliament has acknowledged the importance of privacy and the necessity of limiting access to data held by public sector agencies. The Police Service and RTA databases contain a great deal of information that has proved in the past to have a commercial value. Thus, any access by Sheriff’s officers in relation to court security would need to be clearly justified and would need to have safeguards in place to limit potential abuse.

Given these factors it may be reasonable to investigate when intelligence gathering is required, and whether it would be better to pass the matter over to the Police Service, which has the intelligence expertise to assess the situation. If this were to occur only a minimum amount of information may need to be passed on to the Office of the Sheriff, such as photos of people who Sheriff’s officers should look out for.

Should it be considered necessary for Sheriff’s officers to have access to police and RTA databases in relation to their court security functions then safeguards will need to be included. This may involve limiting access to higher level staff, seeking prior approval for any search with the Sheriff, or a third party such as a judge or keeping an audit trail of any on-line searches.

Q.59 In what circumstances, if any, should Sheriff’s officers be permitted access to Police Service and RTA data in relation to their court security functions? How should any such access occur?