Search and ye shall not find…

Police wanted new firearm search powers desperately to fight gun proliferation in Sydney, so why did 642 special searches not find one firearm? The Ombudsman is investigating.

Submission to the NSW Ombudsman:                                                                              from CLA Civil Liberties Australia
Issues Paper, July 2015

Civil Liberties Australia (CLA) thanks the NSW Ombudsman for the opportunity to comment of the review of policeCLA_Submision use of Firearms Prohibition Order (FPO) search powers.

New search powers were introduced in November 2013.  After this, FPO searches increased from 40 to 400 in the first 12 months (p2). This escalation is a worrying trend, especially as:
“Due to the way the NSW Police Force recorded FPO premises searches… we were unable to report comprehensively on the number of premises searches conducted…” (p9).

This is a significant defect in the analysis and evaluation of the data.

In the period under review, 224 people were included in the 132 FPO searches:  “92 people not subject to an FPO were searched using the FPO search powers” (p9). Why? What was the justification for this?

The new powers for police to conduct searches are supposedly to find illegal firearms.  In fact:

None of the 642 FPO searches over 323 events resulted in police finding a firearm (p10) (emphasis added)…9 drugs or restricted substances were found.

When introduced, then Premier Barry O’Farrell said: “This legislation will concern those who are involved in criminal activities involving guns”.  In fact, the majority of people searched had not been convicted of a firearms-related offence. (p12)

This is another worrying example of a law being supposedly introduced for one purpose but in fact being used for another.  The same thing happened with the Patriot Act in the USA: see https://www.techdirt.com/articles/20110908/02534215846/wasnt-patriot-act-supposed-to-be-about-stopping-terrorism.shtml 

The danger with such over-reaching laws are that people begin to lose confidence in the police. People will say: They arrest you for anything, they just grab a new law off the shelf and charge you, even if it has nothing to do with your situation.

The Firearms Prohibition Order is a misnomer.  In debates in parliament, MPs outlined the types of people who would be subjected to search under FPO.  They included:

  • criminal activities involving guns;
  • history of domestic violence;
  • use, sell or supply illegal drugs; and
  • members of organised criminal groups.

Nearly a quarter of the 224 people searched under FPO search powers had never been convicted of an offence. If the legislation is in practice used to detect drugs, as it is, then it should be so named.

Police currently have no guidelines to decide whether or not a FPO is ‘reasonably required’.  There is a diversity of opinion amongst police on this (p19).  Guidelines are needed for police to decide whether or not a search is legitimate and necessary.

Note: the case study B on p27 states that 24 police officers (plus a firearms dog and an independent observer) attended to search premises.  Why are so many police officers needed?  This smacks of intimidation, or a staged media event.

CLA supports an amendment to allow a person to lodge an application with a Local Court to declare that a search has been unlawful on the basis that it was unreasonable, unjust or otherwise an abuse of power.

An important point is made: “…it appears that responses to the interaction with police (of people subjected to FPOs) varies greatly upon the communication skills, manner and civility of the police conducting the search” (p30).  Police must be trained to be respectful of citizens being subjected to searches: until convicted, they are entitled to a presumption of innocence.

Responses to questions for consideration:

  1. Police should draft guidelines, which should be submitted to the Ombudsman for approval
  2. There should be a penalty on police if a review revokes the FPO, say $50,000 (correct) for each search conducted, paid to the household or group wrongly searched
  3. See above
  4. No
  5. No, permission should be obtained from a magistrate
  6. Yes, 3 months
  7. Video (with audio) the entire search
  8. The practice that it is done now should be stopped
  9. Yes, monitor a random sample of videos of searches
  10. Yes, to be approved by Ombudsman
  11. No
  12. Yes, plus notification of appeal rights
  13. Yes ditto
  14. Yes ditto
  15. Yes ditto

Dr Kristine Klugman OAM                                         

President

Civil Liberties Australia

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