Reasonable Suspicion in NSW and the Implications of its Erosion
In NSW, the concept of “reasonable suspicion” plays a crucial role in regulating police powers and protecting individual rights. The principle is designed to ensure that police actions, particularly searches and detentions, are based on objective criteria rather than arbitrary decisions. The case of R v Rondo [2001] NSWCCA 540 is pivotal in understanding what constitutes reasonable suspicion and its significance in safeguarding civil liberties.
The Case of R v Rondo
In R v Rondo, the NSW Court of Criminal Appeal examined the concept of reasonable suspicion in the context of police searches. The case involved a police officer stopping and searching a vehicle without a warrant or apparent justification. The officer’s suspicion was based on observing the driver, Rondo, making a U-turn, which the officer found unusual. This observation alone was deemed insufficient to constitute reasonable suspicion.
The Court held that reasonable suspicion must be more than a mere hunch or intuition. It requires a factual basis that would lead a reasonable person to suspect the possibility of an offence. Justice Smart emphasised that reasonable suspicion involves “less than a belief but more than a possibility.” This standard ensures that police powers are exercised judiciously and are subject to judicial scrutiny to prevent abuse.
Proposed Law: Police Use of Wands Without Reasonable Suspicion
“Operation Foil” – an ongoing, targeted operation that last ran from 11 to 13 April 2024, targeted knife crime and anti-social behaviour with 51 knives/weapons seized and 145 people charged with weapon-related offences. In the last year alone, almost 4000 knives were seized in public places.
Premier Chris Minns said, “In recent weeks and months, we have all borne witness to the devastating outcomes of knife-related violence… Today, we are announcing reform, including legislation modelled on new powers for police to search and detect knives in public spaces, based on Queensland’s Jack’s Law, and a common-sense increase to the age limit for purchasing knives from 16 to 18 to make it harder for children to get access to these deadly weapons.”
Minister for the Police and Counter-terrorism Yasmin Catley added, “This sends a strong signal that we are committed to tackling violent knife crime in our community. These reforms send a strong warning to would-be perpetrators.”
While proponents argue that this measure would enhance public safety, particularly in areas prone to violence or where weapons are prevalent, this proposed law represents a significant departure from the protections traditionally afforded under the principle of reasonable suspicion.
Erosion of Fundamental Rights
Allowing police to search individuals without reasonable suspicion undermines the balance between ensuring public safety and protecting individual rights. Reasonable suspicion acts as a safeguard against arbitrary and discriminatory policing practices. Removing this requirement opens the door to potential abuse of power and unjust targeting of individuals based on subjective criteria.
The absence of a reasonable suspicion standard means that police officers could conduct searches based on implicit biases or prejudices, increasing the likelihood of harassment and unjust treatment of innocent people. This change erodes the fundamental right to privacy and protection from unreasonable searches, which is enshrined in both common law and international human rights standards.
Disproportionate Impact on Over-Policed Communities
The proposed law is likely to disproportionately affect communities that are already subject to excessive policing, such as First Nations people. Aboriginal and Torres Strait Islander communities in NSW experience higher rates of police interactions and incarceration compared to non-Indigenous populations. Removing the reasonable suspicion requirement exacerbates the risks of racial profiling and discriminatory practices.
Statistics reveal that First Nations people are significantly over-represented in the criminal justice system. According to the Australian Bureau of Statistics, Indigenous Australians constitute about 3% of the total population but represent 29% of the adult prison population. This disparity is a direct consequence of systemic biases and socio-economic disadvantages.
The proposed wand-use law would likely intensify these disparities, as police may disproportionately target Indigenous communities for random searches. This not only perpetuates the cycle of criminalisation but also deepens mistrust between law enforcement and marginalised communities. This substantially undermines efforts to achieve equitable justice and reconciliation with First Nations people. As NSW considers this proposed law, it is imperative to weigh the potential benefits against the profound implications for civil liberties and social justice.
Jackson John’s Defence lawyers will closely follow any developments. If you feel unfairly targeted by the police, please contact us today to discuss how we can help.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Readers should not act upon any information contained herein without seeking professional legal counsel tailored to their specific circumstances.
