Bills Digest No. 6, 2013–14

28 August 2013

Court Security Bill 2013 [and] Court Security (Consequential Amendments) Bill 2013

Monica Biddington
Law and Bills Digest Section 

Date introduced: 20 March 2013

House: House of Representatives

Portfolio: Attorney-General

Commencement: The Bills have been passed by Parliament and are now the Court Security Act 2013 (the Act) and the Court Security (Consequential Amendments) Act 2013 (the Consequential Act).[1] Sections 1 and 2 of the Act and sections 1 to 3 of the Consequential Act commenced on Royal Assent, which occurred on 1 July 2013. Sections 3 to 52 of the Act and Schedule 1 of the Consequential Act will commence on Proclamation.[2] However if the provisions do not commence within six months of Assent, they will commence the following day. This Bills Digest treats the Bills as prospective.

Links: The links to the Bills, its Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages, for the Court Security Bill 2013 and Court Security Bill (Consequential Amendments) Bill 2013 or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Court Security Bill 2013 (the Bill) is to create a framework for court security arrangements for federal courts and tribunals and the Family Court of Western Australia. The Bill replaces the current security framework for federal courts and tribunals under Part IIA of the Public Order (Protection of Persons and Property) Act 1971.[3]

The Court Security (Consequential Amendments) Bill 2013 will be considered in cognate with this Bill. This consequential amendments Bill amends the Public Order (Protection of Persons and Property) Act 1971 arising from the provisions in the Court Security Bill 2013. The Digest does not scrutinise this Bill.

Structure of the Bill

The Bill is in five Parts. Part 2 of the Bill establishes the framework for the exercise of security powers on court premises. More specifically:

·         Division 1 provides for the appointment of security officers and authorised court officers by administrative heads of courts and requires appointed officers to hold prescribed qualifications

·         Divisions 2, 3 and 4 outline the powers available to security officers and authorised court officers and prescribes certain offences related to non-compliance with the exercise of these powers

·         Division 5 authorises security officers to escort people to and from court premises as a protective measure

·         Division 6 provides various safeguards around the exercise of security powers and

·         Division 7 provides for complaint procedures.

Part 3 of the Bill prescribes offences connected with court premises. Part 4 of the Bill will allow specified judicial officers to make restraining or protection type orders in certain circumstances. Part 5 will deal with immunity from suit, compensation, delegations and regulation-making powers.

Background

The second reading speech states that a Bill is required because Part IIA of the Public Order (Protection of Persons and Property) Act 1971 is:

…out of date, in that it assumes the presence of police officers on court premises. It also does not contain an appropriate range of powers – and safeguards on the exercise of these powers – sufficient to meet the security needs of the modern court environment.[4]

It is difficult to accurately pinpoint the catalyst to this Bill. However, it is understood that the consultancy Deloitte conducted an internal review of physical security at the Federal Court of Australia registries in Brisbane and Sydney in 2011.[5] A key recommendation of that review was that the Court develop a full physical security plan and physical security policy that would incorporate and bring together elements from the current policies and procedures in place for physical security. In the review a Federal Court Judge also discussed that judges are not adequately protected by the level of Federal Police involvement at the Court. Further to this, the Honourable Justice noted that as the Court is a public institution, physical security should be the responsibility of the Federal Government. The Judge decided that it was not appropriate for this responsibility to be outsourced to external security providers, or for these providers to be the public face of the Court. In the context of security policies and procedures at the Courts, the Deloitte review found that while outsourced physical security personnel received extensive training, there was not formal compulsory training for court staff who have security responsibilities.[6]

Media and parliamentary debate did not focus on any specific details of the Bill. Rather the debate was short, generic and prima facie supportive. However, Shadow Minister for Justice Michael Keenan did note in the debates that ‘it is unclear how frequently security incidents are arising on court premises and how adequate are the current security arrangements.’[7] This would be a useful benchmark both now and in few years’ time when reflecting on the new arrangements.

Debate in the Federation Chamber on 15 May 2013 did not raise any issues or significant discussion. Michael McCormack, National Party member for the Riverina, spoke in support of the Bill, noting that:

…the existing framework for court security does not meet the needs of the modern court environment. That was a concern raised by the heads of jurisdiction of the commonwealth courts, following consultation with the government in relation to this bill and in relation to the provisions of current court security arrangements.[8]

The Parliamentary Secretary to the Attorney-General, Shayne Neumann, emphasised in the debate that

…everyone who goes to court should go there without fear of intimidation, violence or abuse. This right forms a critical part of any civil society and is also important in ensuring the integrity of the court processes. I stress that these security arrangements and enhancements will not quite make court buildings or rights of entry more difficult or arduous for members of the public. [9]

The Bill passed the Federation Chamber without substantive discussion. Similarly the Bill swiftly passed the Senate without heavy scrutiny or debate.

Committee consideration

The Senate Scrutiny of Bills Committee reported that it would leave to the Senate as a whole the question of whether the powers of the court security officers and the balance struck between limitations on specified rights (such as the right to liberty and security) and the pursuit of the underlying objectives of the Bill are appropriate.[10] Further, the Committee sought the
Attorney-General’s advice as to whether consideration has been given to providing more legislative guidance on the appropriate qualifications of security officers and which non-licensed persons may be prescribed by the regulations as being entitled to exercise the powers of a security officer.[11] The Attorney-General’s response noted the requirement that a security officer must have qualifications prescribed by the regulations (clause 9). The Attorney-General considers it appropriate and desirable that the qualification requirements be prescribed in regulations to allow them to updated in a timely manner.[12]

The Parliamentary Joint Committee on Human Rights raised the following concerns:

·         why it is necessary, when a security officer has the power to detain a person for an alleged offence, to provide an exception allowing the officer not to inform the person in general terms of the alleged offence for which they are being detained and how this is consistent with the right to liberty and the right to be informed promptly[13]

·         why is it necessary to empower a security officer to escort a person to and from court premises for their safety in circumstances where a person may not consent to being escorted, and how this is consistent with the right to freedom of movement and the right to privacy[14]

·         whether the power to make a court security order prohibiting a person from being on court premises is consistent with the right to a fair hearing[15]

·         why there are some instances where an evidential burden is imposed on the defendant in circumstances that do not appear to be ‘peculiarly within the defendant’s knowledge, and how this is consistent with the right to be presumed innocent’.[16]

None of these issues were developed or resolved during parliamentary debate and the Bill was not amended in any way.

Financial implications

The Government has noted in the Explanatory Memorandum that there will be financial implications for the courts in implementing the Bill, associated with training staff and contracting guards to exercise powers under the Bill. These costs will be absorbed within existing resources.[17]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[18] The Government considers that the Bill is compatible.

Key issues and provisions

The Bill is intended to enhance the security of persons and premises connected with federal courts and tribunals. The Bill proposes, in clause 3, to do this by ensuring:

(a)    the secure and orderly operation of courts; and

(b)    the safety of persons on, and going to and from, court premises.

Clause 5 will create a definitions section. Key definitions, unique to the operation of this Bill, include:

‘administrative head’ means the most senior non-judicial position-holders of the following courts: the High Court, Federal Court of Australia, Family Court of Australia, Military Court of Australia, Family Court of Western Australia, Federal Circuit Court of Australia and the Administrative Appeals Tribunal.

‘court’ meaning any federal court; the Family Court of Western Australia; the Administrative Appeals Tribunal or a tribunal that is prescribed by the accompanying regulations. For example, the Native Title Tribunal may be prescribed by regulation.

‘court premises’ means

(a) any premises occupied or used (whether permanently or temporarily or under a lease or otherwise) in connection with the sittings, or any other operations, of a court; or

(b)    premises specified in an order in force under section 6.

This definition is necessary because some federal courts and tribunals share premises with state and territory courts. The definition is based on the existing definition in section 13A of the Public Order (Protection of Persons and Property) Act 1971. The note to the definition in the Bill explains that premises could include premises used to enable a person to appear before a court by means of facilities that enable audio and/or visual communications between persons at different places; and court parking areas, driveways, courtyards and forecourts. See further discussion below about identifying court premises.

Identifying Court Premises

A federal court may be co-located within the Supreme Court building of any jurisdiction. Further, federal court matters can be held in locations not necessarily within a predictable “four walls”, as is sometimes the case with native title matters. Clause 6 will allow the administrative head of a court to make a written order specifying particular premises for the purposes of paragraph (b) of the definition of court premises in section 5. The administrative head of a court must be satisfied that the premises are likely to be occupied or used (whether permanently or temporarily or under a lease or otherwise) in connection with a sitting, proceeding or any other operation of the court (clause 6(2)).

Power to detain versus power to arrest

Clause 28 of the Bill empowers a security officer to detain a person on court premises in order to deliver them into the custody of a police officer if they reasonably believe the person has committed, or attempted to commit, an offence on the premises or must be detained to prevent violence or serious damage. A security officer who detains a person under this provision must inform the person in general terms of the offence that they are being detained for. However, under subparagraph 28(3)(b)(i) the security officer is not required to do so if ‘it is reasonable to expect that the person knows of his or her alleged commission of the offence or attempt to commit it’. Article 9 of the International Covenant on Civil and Political Rights provides that anyone who is arrested shall be informed, at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against him. While there is a distinction between detain and arrest, the effect is still the same. Because the law places a high value on personal liberty, a statute which authorises the detention of a person must be strictly construed.[19]

Powers, including powers to arrest in state and territory courts

By way of comparison, in New South Wales, the Northern Territory and South Australia, apart from enjoying similar powers to the proposed Commonwealth legislation, court officers have power of arrest.[20] Tasmania has a power to arrest for certain offences in lower courts but there is no such power in the ACT, Victoria or Queensland. In Western Australia , the sheriff, deputy sheriff and WA Family Court Marshal have the power to apprehend and detain.[21] A move-on power for security guards to refuse entry to, or direct a person to leave, court premises can be found in State and Territory legislation.[22]

Offence provisions in the Bill

There are a number of offence provisions in the Bill, mostly for non-compliance with requests made by a security officer/authorised court officer. See for example, clauses 18, 23, and 32. Part 3 of the Bill also outlines the following specific offences:

·         possessing weapon on court premises

·         making an unauthorised recording or transmission on court premises and

·         obstructing entry to, or activity on, court premises.

Court security orders

The Bill will establish, under Part 4, the process and content for court security orders. A court security order (confined to the Family Courts and the Federal Circuit Court) will prohibit, absolutely or conditionally, a person from doing a specified act for a specified period, if the member of the court is satisfied that there is an ongoing risk of significant disruption or risk of violence to the court or its associated activities and administration (clause 41). Interim court security orders can also be made under clause 43. Failure to comply with a court security order is an offence, under clause 46, with a maximum penalty of imprisonment for 12 months.

Complaint mechanism

Clause 35 provides that complaints can be made about the conduct of a security officer or authorised court officer. Written complaints can be made to the administrative head of a court. Each financial year the administrative head must furnish a report for the Ombudsman outlining complaints and how they have been dealt with (clause 36).

Concluding comments

The Bill establishes court security arrangements that appear to be in response to weaknesses of the current system. The Bill does not overly empower court security offices but allows them some flexibility in their powers to refuse entry, remove a person, escort et cetera. The provisions allowing for complaints and review, under Part 2 of the Bill would seem to be necessary and appropriate.

Arguably, it would be of benefit to put resources into improving the infrastructure and security mechanisms of the courts to complement this Bill. For example, an increase in security cameras, duress alarms, graffiti resistant surfaces, fencing and lighting would be of benefit to these public institutions. However, in the meantime, this Bill will thoroughly address the need for security officers to be appropriately authorised to protect members of the court and the public.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2784.

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ISSN 1328-8091

[1].              Court Security Act 2013 and Court Security (Consequential Amendments) Act 2013, accessed 14 August 2013. The Bills were passed by the House of Representatives on 15 May 2013 and the Senate on 20 June 2013.

[2].              This information is noted in the preliminary text to the Act, found here, accessed 16 July 2013.

[3].              Public Order (Protection of Persons and Property) Act 1971, accessed 14 August 2013.

[4].              M Dreyfus, ‘Second reading speech: Court Security Bill 2013’ House of Representatives, Debates, 20 March 2013, p. 2707, accessed 5 August 2013.

[5].              Deloitte, The Federal Court of Australia: internal audit of physical security, version 1.0, 2010, accessed 16 July 2013. Note that this version of the report is a draft. A final version does not appear to be publicly available. See also, L Besser, ‘Judges at risk: court security flaws’, The Sydney Morning Herald, 29 September 2012, p. 1, accessed 1 May 2013.

[6].              Deloitte, ibid.

[7].              M Keenan, ‘Second reading speech: Court Security (Consequential Amendment) Bill 2013 [and] Court Security Bill 2013’, House of Representatives, Debates, 15 May 2013, p. 3375, accessed 16 May 2013.

[8].              M McCormack, ‘Second reading speech: Court Security (Consequential Amendment) Bill 2013 [and] Court Security Bill 2013’, House of Representatives, Debates, 15 May 2013, p. 3376, accessed 16 May 2013.

[9].              S Neumann, ‘Second reading speech: Court Security (Consequential Amendment) Bill 2013 [and] Court Security Bill 2013’, House of Representatives, Debates, 15 May 2013, p. 3376, accessed 16 May 2013.

[10].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 5 of 2013, The Senate, 15 May 2013, accessed 12 June 2013.

[11].              Ibid, p. 27.

[12].              Senate Standing Committee for the Scrutiny of Bills, Seventh Report of 2013, The Senate, 26 June 2013, accessed 17 July 2013.

[13].              Parliamentary Joint Committee on Human Rights, Sixth Report of 2013, 15 May 2013, pp. 14–21, accessed 17 May 2013.

[14].              Ibid.

[15].              Ibid.

[16].              Ibid.

[17].              Explanatory Memorandum, Court Security Bill 2013, p. 3, accessed 3 April 2013.

[18].              The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[19].              Zaravinos v State of New South Wales (at [23]) per Bryson JA (Santow JA and Adams J agreeing), citing Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 (at 292 and 296) and Smith v Corrective Services Commission (NSW) [1980] HCA 49; (1980) 147 CLR 134 (at 139); see also George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (at 110 - 111); State of New South Wales v Corbett [2007] HCA 32; (2007) 230 CLR 606 (at [87]) per Callinan and Crennan JJ (Gleeson CJ and Gummow J generally agreeing); (at [16] ff) per Kirby J.

[20].              Court Security Act 2005 (NSW) section 16; Court Security Act 1998 (NT) section 16; Sheriffs Act 1978 (SA) paragraph 9E(1)(f).

[21].              Court Security and Custodial Services Act 1999 (WA).

[22].              Admission to Courts Act 1916 (TAS) section 2; Admission to Courts (Lower Courts) Regulations 2006 (TAS) Regulation 8(1); Admission to Courts (Supreme Court) Regulations 2006 (TAS) Regulation 6(1)(c); Court Procedures Act 2004 (ACT) sections 41, 48; Court Security Act 2005 (NSW) section 14; Court Security Act 1998 (NT) section 13; Court Security Act 1980 (Vic) subsection 3(9); Court Security and Custodial Services Act 1999 (WA) Schedule 1 clause 6; Sheriffs Act 1978 (SA) paragraphs 9E(1)(a)-(b); State Buildings Protective Security Act 1983 (QLD) sections 21D, 21J, 23.