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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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POLICE CONDUCT

The Hon. A. BRESSINGTON (15:28): I seek leave to make a brief explanation before asking the minister representing the Minister for Police a question about police conduct.

Leave granted.

The Hon. A. BRESSINGTON: Recently, a constituent contacted my office about what he considers to be a violation of his rights, involving unlawful conduct by a police officer. This constituent willingly admits to having committed the offence of jaywalking and has paid the fine incurred; however, he has expressed concerns in relation to the conduct of the police officer who issued the fine.

Being somewhat knowledgeable of his rights, the constituent refused to state his occupation when asked by the officer. He reports that, in response, the officer replied, 'Don't tell me how to do my job,' and he was again asked for his occupation. The constituent provided the officer with the address of his place of employment, but continued to protest that he did not have to disclose his occupation. What followed, he describes, was a humiliating outburst by the police officer in a public place and in front of multiple witnesses. Subsequently, he gave the officer the information, literally under duress.

My research shows that the constituent was, in fact, correct. Under section 74A(1) of the Summary Offences Act 1953 a police officer who has reasonable cause to suspect that a person has committed, is committing, or is about to commit an offence is empowered to require that the person state all or any of the personal details required.

This power would seem unlimited if it were not for the definition of personal details under section 74A(5) of the same act, which restricts the police officer to asking for the person's full name, date of birth, residential address and business address; occupation is not included. By demanding the constituent to give his occupation, the officer has seemingly exceeded his authority under the act and breached the constituent's implied right not to divulge his occupation.

A further concern is that the subsequent expiation notice issued had an entry field for occupation, which meant that the police officer was effectively required to ask the constituent's occupation in order to complete and issue the fine. The fine also included an employer field; requiring either these details is, to my reading, unlawful.

It is my understanding that the police power to require information has been deliberately restricted to non-identifying details in order to avoid any influence a person's position or employer may have on an officer's discretion to proceed with formally punishing an offence or whether or not to issue a fine. My questions are:

1. Will the minister advise whether or not an officer who requires a person to divulge his or her occupation or employer details is exceeding their authority to require personal details under section 74A(1) of the Summary Offences Act 1953?

2. Does the minister agree that requiring a person to divulge such information is violating a person's implied right not to disclose his or her occupation or employer?

3. Does the minister share my reservations about police routinely asking a person's occupation and the potential impact this may have on the application of police discretion?

4. Will the minister explain why expiation notices are not congruent with the legislation, and will he give an undertaking to have expiation notices amended to remove occupation and employer fields?

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (15:32): I thank the honourable member for her questions. I will refer them to the Minister for Police in another place and bring back a reply.

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