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Legislative Assembly for the ACT: 2001 Week 8 Hansard (9 August) . . Page.. 2788 ..

MR STANHOPE (continuing):

does not indicate that the police are having a problem when they have managed to arrest over 1,000 people a year without a warrant.

If the police cannot obtain sufficient evidence for an arrest, they can obtain sufficient for a search warrant that will allow them to fill in the gaps in the case. Those powers will still be covered in this section. This section permits a police officer-this is the change we are making here-to stop and search any person whom the officer reasonably suspects, which is a pretty low test itself, of being a petty thief. There is no need for the officer to catch the suspect in the act, no need for the officer to check the basis for his suspicion and no need to attempt to convince a doubtful magistrate to issue a warrant.

So what is a reasonable suspicion? Is it when a police officer sees a group of young people leaving a store with their hands in their pockets looking around laughing and poking each other? Is it reasonable for the police officer to suspect in those circumstances that they are shoplifters? Is it reasonable in those circumstances to stop them and make them turn out their pockets? And when they refuse and get sullen, cheeky or obdurate, is it then appropriate for the next step to be taken and have them charged with resisting an officer?

There is an existing power to stop and search a vehicle that has some safeguards, and I am prepared to support a power to stop and search persons that contains similar provisions. That is why I am moving this amendment. The first safeguard is that the power can only be used without a search warrant if it is necessary to use the power to prevent the thing being concealed, lost, or destroyed. The second safeguard is that circumstances must be serious and urgent enough to justify not obtaining a warrant.

MR STEFANIAK (Minister for Education and Attorney-General) (11.29): Mr Stanhope's amendment, which I will deal with first, will restrict personal searches to where the officer reasonably "believes"-I will come back to that because he is actually putting in a higher standard than what is in the existing section-that "a person is carrying or has in his possession a thing relevant to an indictable offence", that it is necessary to search the person "to prevent the thing from being concealed, lost, or destroyed" and that it is necessary to search the person without a search warrant "because the circumstances are serious and urgent".

The government opposes that amendment. The amendment adopts the wording of the current section 349T of the Crimes Act, which is the section dealing with searches of conveyances. But it raises the threshold from "reasonable suspicion" to "reasonable belief", so that is a real problem. The AFP have advised that the current wording of 349T is overly restrictive and unnecessarily hinders its members in their law enforcement duties. Mr Stanhope's amendment actually raises the threshold further, to a "reasonable belief", which would only exacerbate the current difficulties with the provision. If you want to make the work of the police even harder, back Mr Stanhope's provision.

The Australian Law Reform Commission considers that a "reasonable suspicion" test is an appropriate test for powers of this kind and that the proposed amendments based on section 357E of the New South Wales Crimes ACT, requiring police to apply for search warrants in all but the most urgent of circumstances, is a very ineffective use of

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