The police officer will then be empowered to seize and detain that property on the basis of its suspected future intended use. Presumably items that could be seized include bicycle locks, belts, padlocks, chains, ropes, and barrels and tins. It is possible that it could even extend to tractors or other agricultural machinery if police suspected these were intended to be used as part of a lock-on installation.
This is extraordinary insofar as it allows for a warrantless search and seizure of property and circumvents the safeguards contained in Part 17 Division 2 of the Law Enforcement (Powers and Responsibilities) Act 2002. The President of the Law Society of NSW, Mr Ulman, expressed alarm at this development particularly given that a person is not able to apply to the courts for the return of their property. Mr Ulman suggested this may interfere with the right against arbitrary deprivation of property.
Ironically, while the Minister for Industry, Resources and Energy made assertions that lock-on devices pose a serious risk to safety, legal academic Aidan Ricketts, who has conducted extensive research into the history of protest in Australia, argues that the use of lock-on devices may have had the effect of protecting both police and protesters from violent confrontations. He argues that while lock-on devices may be time consuming for law enforcement and create frustration for workers, the removal of a person from a lock-on device is 'preferable to facing down a frustrated mob'.
The Bill also allows police to exercise their discretion to move people on in circumstances where an officer forms a reasonable belief that it is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person.
What constitutes 'a serious risk to the safety of the person to whom the direction is given or to any other person' is not yet clear. It will depend on the circumstances and ultimately be determined by the court on a case by case basis.
Not only do these laws present a serious winding back of civil and political rights in NSW, the NSW government has failed to adequately justify why these laws are necessary where there is no demonstrable failure of existing laws. These laws reflect a growing and disturbing ideology which disproportionality favours the interests of business over the community's right to peacefully protest.
KIRA LEVIN is a solicitor with EDO NSW.
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