NSW Justice Amendment Package Part 3: Police Given Greater Powers to Access Personal Information Without a Warrant

As the holiday period drew nearer, the NSW attorney general thought he’d deliver an amendment bill that didn’t simply fill the stocking of one Act that needed changing. Instead, with festive cheer, Mark Speakman delivered one that, in his words, “fills the gaps” in many of his favoured pieces of legislation.

Right before parliament was about to break for Christmas, the Justice Legislation Amendment Bill (No 2) 2019 (the No 2 Bill) passed in the NSW Legislative Council on 20 November.

Sydney Criminal Lawyers has already been wading through the sea of amendments over the last couple of weeks. Our first perusal came up with expanded police powers and more criminal offences, while our second look revealed more powers for corrective services and sheriffs.

And for this, our final instalment regarding the justice amendment package, we’ve focused on a few of the more significant law changes that the Berejiklian gang has gifted us.

Police to access housing information

The Housing Act 2001 (NSW) establishes and governs the NSW Land and Housing Corporation. It’s a statutory body under the direction of NSW Family and Community Services (FACS), which is responsible for the management of 144,000 or so social housing dwellings in this state.

Social housing is affordable housing. It can be either government-owned public housing, or privately-run community housing. And with such a huge demand for such dwellings, and the regular details involved in renting, the administration of this involves the collection of vast amounts of information.

So, the No 2 Bill has provided a legislative mechanism for law enforcement to access this wealth of private information. It inserted subsection 71(d1) into the Housing Act, which allows for information collected under the administration of it to be handed over to a law enforcement agency.

The subsection details that this can be done in relation to a missing person investigation, as well as for “the purposes of law enforcement”, adding that this includes in “connection with the investigation of an offence”, which leaves one wondering what other “purposes” can be involved.

New subsection 71(2) makes clear that a law enforcement agency can be any state or territory police, the NSW Crime Commission, the AFP, any Australian DPP, the Department of Communities and Justice, the NSW Office of the Sheriff, or “a person or body prescribed by the regulations”.

Enhancing bail powers

There’s also been some changes to the Bail Act 2013 (NSW), which is legislation that was brought about due to criticism of its earlier version’s presumption of bail provisions. Coming into effect in May 2014, the new Act toughened the test on accessing whether an accused should receive bail.

The No 2 Bill inserts section 43A into the Bail Act. This new section provides police officers with the power to make bail decisions regarding either an individual who refused to comply with a subpoena – a request to attend court – or someone who failed to appear in court as a witness in a trial.

The power to make these decisions has until now been reserved to court registrars, the Attorney General’s Department or magistrates. And the power has now been extended, so police can apply it immediately after an individual has been arrested, if they’re unable to be brought before the court.

If a police officer makes a bail decision under these circumstances, the officer is not permitted to impose any bail conditions. And this power only applies if the person subject to it has been accused of an offence and the proceedings involved related to that actual offence.

The new justice package also inserts section 77A into the Bail Act. This grants courts the power to enforce a bail requirement to attend court if a person has failed to do so, when they’ve been sentenced to prison, but that sentence has been stayed under certain circumstances, such as a pending appeal.

This power comes into play if the individual has failed to appear in court as part of their bail acknowledgement, and it allows the court to issue a warrant to apprehend them and have them brought into a specific court. Previously, this power was reserved solely for police.

Appealing backup summary offences

The amendment bill also made a change to section 5DB of the Criminal Appeal Act 1912 (NSW), so that the attorney general or the NSW Director of Public Prosecutions can now appeal sentences imposed upon summary offences, which were backup offences relating to an indictable offence.

Backup offences are secondary charges – usually less serious ones – that are applied when an accused has been charged with a main and more serious crime. If the accused is found innocent of the main offence, they can then still be found guilty of the backup offence.

This change means that court sentences applied to backup summary offences can be challenged on appeal, whereas prior to the change only related summary offences could be appealed. Related offences arise due to the committing of another more serious crime, they don’t operate as backups.

Setting the timeframe for an ADVO

The No 2 Bill also makes some changes to amendments made by the Crimes Legislation Amendment Act 2018 (NSW), which haven’t come into effect as yet. These relate to the insertion of section 79A into the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

As it will stand following the fresh amendments made to the proposed section by the No 2 Bill, section 79A will stipulate that the period of an apprehended domestic violence order (ADVO) will continue for the time specified by the court, which is as long as the court assesses is necessary.

The court should take into consideration the circumstances and opinion of the protected person, the circumstances of the defendant, the material relied upon in making the order and anything else of relevance. And the timeframe can be set at the same time the court decides to impose the ADVO.

A stuffed stocking

But, if these numerous amendments haven’t satisfied your craving for change, never fear, you can still take a gander at the further law amendments Mr Speakman has laid out for you within the legislation.

These include allowing information obtained via police body-worn video cameras to be used in training, and the extending of the information that must be included when applying to the attorney general for a surveillance device warrant.