Sunday, June 19, 2011

Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 No 103

Hi readers,

This week we take a look at the recent amendment to s.198 of the Law Enforcement (Powers and Responsibilities) Amendment Bill 2011.  This short Act (it only has three sections) relates to 'move along directions' given by Police to intoxicated persons.  Previously, a person had to be in a group of at least 3 intoxicated persons for a move along direction to be given. The effect of the s.198 amendment is that the direction can now be given to an intoxicated person on his own.

Why the Police would request such a change to the legislation is bewildering to say the least. Section 197(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 already provides a multitude of circumstances where Police can issue a move along direction to a person if that person is obstructing traffic or other persons, intimidating or harassing other persons or likely to cause fear to another person. Similarly, s206 of the same act authorises Police to detain intoxicated persons if they are behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property. Are we to assume, as members of the public, that the Police were not in a position to effectively deal with a lone intoxicated person without changing the legislation?          

It will be interesting to see whether we start to see an increase in convictions (or penalty notices) for breaches of move along directions under s.198 in the next 6-12 months. As a lawyer, I am concerned with the increased potential for abuse of 'move along'  powers by some Police. There is no doubting that these laws provide a useful mechanism for Police when dealing with those in our society who are violent or who harass and intimidate others. However, previous failures by overzealous Police to use these powers objectively need to acknowledged and addressed by the Police heirarchy rather than simply sweeping the incidents under the carpet. In short, these laws should be monitored by the NSW Ombudsman to ensure that abuse is reduced through the implementation of appropriate checks and balances.

One can only feel sorry for the lonely or hapless drunk who fails to comply with the direction and ends up with a sizable fine.

David Sylvester
Solicitor Director