Sheriff Act 1900 Review
Q.36 Should any functions be added to or removed from the above list?
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
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.
22.214.171.124 Consultation with Judiciary
3.5.5 Court security officers or Sheriff’s officers
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.
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?
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.
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.
126.96.36.199.2 Search of the person
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).
188.8.131.52 Holding bags, cameras etc while a person is on 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?
184.108.40.206.1 Lost or damaged items
220.127.116.11.2 Disposal of items not collected
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.
18.104.22.168 Seizure and disposal of weapons and other dangerous goods
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?
22.214.171.124 Deny entry to and removal from court premises
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).
126.96.36.199 Arresting and detaining people
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,
(b) any person who has committed a serious indictable offence for which the person has not been tried,
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.
188.8.131.52 Use of force
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.
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”.
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.
184.108.40.206 Dealing with prisoners
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.
220.127.116.11.1 Restraint of prisoners
18.104.22.168.2 Searching people in custody
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.
22.214.171.124.3 Consultation with other agencies
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
(b) The maintenance of security elsewhere in a court.
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.
126.96.36.199 Access to information
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.