Page 3791 - Week 13 - Wednesday, 16 October 1991
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The Bill before the house today sets in law the correct application of police powers. I am satisfied that in the vast majority of cases the police are not currently exceeding their powers. However, they are entitled to statutory backing for what they do and a community is entitled to be quite explicit in authorising the use of these invasive powers. I shall briefly review the situation to support the above contention.
There is no tradition in common law which says that a police officer cannot ask a detainee for his or her fingerprints or photograph. If the detainee consents, the police officer can then proceed and there is no requirement to caution a person. This view has been confirmed by the High Court in Carr v. the Queen, reported in volume 127 of the Commonwealth Law Reports at page 662. That was a 1973 decision. Section 353A subsection (3) of the Crimes Act, in its application in the ACT, provides:
When a person is in lawful custody for any offence punishable on indictment or summary conviction, the officer in charge of police at the station where he or she is so in custody may take or cause to be taken all such particulars as may be deemed necessary for the identification of such persons including her or his photograph or fingerprints.
There was a series of cases relating to this issue in the 1970s in this Territory. Some, such as the case in which I participated in 1979, were widely publicised. Briefly, His Honour Mr Justice Fox held in Sernack v. McTavish in 1970, reported in 15 Federal Law Reports at page 381, that a police general instruction which was the forerunner of general instruction No. 27 was unlawful because it required officers to record detainees' fingerprints as a matter of routine. His Honour held that the Crimes Act conferred a discretion which had to be exercised on a case by case basis by the officer in charge of the police station.
In 1980, His Honour Mr Justice Connor indicated that he favoured the views of His Honour Mr Justice Fox and that the word "identification" included establishing who the person is, not simply recording that they were there. Despite the decision in Sernack, general instruction No. 27, as I found it as Attorney-General, still implied that fingerprinting was routine. The actual words were as follows:
a. Where a person is in lawful custody for an offence, the Officer in Charge of a Police Station shall decide if the person should be fingerprinted;
b. the Officer in Charge of a Police Station shall supervise the watchhouse staff and obtain the fingerprints of a person in lawful custody;
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