Report

Review of Division 4, Part 3 of the Law Enforcement (Powers and Responsibilities) Act 2002: face coverings and identification

10 Sep 2013
Description

Executive summary

On 1 November 2011 a new Division 4, Part 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was introduced, which authorised police to require that a person uncover their face when being identified. The Ombudsman was given the responsibility of scrutinising how police exercised their powers under this new law for the first year of its operation.

Our review examined whether the new law allows police to perform a fundamental aspect of their work: verifying a person’s identification, with appropriate regard to issues such as religious sensitivities.

For this review, we gathered information from the NSW Police Force, consulting relevant police records and individual officers; the Community Relations Commission (CRC); submissions received in response to our issues paper; other government agencies; and individuals and organisations whose members would be most affected by the new laws. We researched other laws in NSW concerning identification and non-compliance and reviewed relevant literature and media. A limitation of our review was the lack of quantitative data regarding uses of the power in the review period from which to draw any meaningful conclusions.

Under the new law police can require that a person remove an item covering their face, such as a motorcycle helmet or a niqab, which is a face covering worn by some Muslim women in NSW. Removal of such items allows police to view a person’s entire face and compare it to any photo identification. The new law requires that this process must be conducted quickly and in a way that provides reasonable privacy if the person requests it, as far as is reasonably practicable.

Police recorded using the power on eight occasions during the review period. On seven of those occasions police were verifying the identification of a female driver who was wearing a niqab. We also received some information that suggested that the new law may have been used on a small number of other occasions, but was not officially recorded. Even with these occasions included, the new law was used infrequently. In our view the officers involved generally used the law appropriately.

We requested submissions from organisations or members of the public in relation to how police use of the new law might impact on individuals who wear any type of face covering. As significant concerns or issues were only raised in relation to women who wear the niqab, and police also recorded exercising the law almost exclusively in relation to this group, we closely considered issues raised by the application of the new law to this group of women.

Although the law was not used much during the first 12 months of its operation, with a growing Muslim population in NSW it seems more likely than not that police may need to use it more frequently in the future. Further, the importance of these kinds of interactions going smoothly should not be underestimated. The public controversy that followed the case that led to the new law – involving a lone male police officer and a woman driver wearing a niqab – demonstrates how one interaction can escalate and spark a wider community response. Our scrutiny of the efficacy of the new law was therefore focused on whether the people directly affected by it, and the officers who use it, had any concerns. A large number of our research activities involved consultations with community groups and officers.

In our view, the law has enhanced the process of identification for police. However, we also found that officers would benefit from additional guidance regarding issues, such as how to afford privacy in circumstances involving a driver, and interacting with women who wear a niqab in these circumstances. As the new law has been applied only within certain Local Area Commands, and often by officers from Traffic and Highway Patrol Command, we have recommended that enhanced policy and information materials should be targeted to officers from these Commands. We have also recommended that all officers be reminded of the procedural requirements under LEPRA when applying the new law.

For the group most affected by the new law, Muslim women who wear a niqab, we found that while they recognised the need to uncover their face to be lawfully identified, they were reluctant to have a male police officer view their face. Members of this group were also concerned that other males present or passing by might view their face during this process.

After considering these views, similarities between the removal of a niqab for identification and the concept of a search, and related laws that apply to some other NSW public officials, we have recommended that LEPRA be amended so that a female officer is made available for women who wear a niqab, but only where this is reasonably practicable under the circumstances. Our recommended guidance for officers regarding simple methods for affording privacy, like having the person face away from any onlookers when they uncover their face, will also assist in addressing the issue of any male bystanders viewing a woman’s face.

From the information available, it appears that women who wear a niqab have relatively little knowledge about the provisions of the new law, including those that give people the opportunity to seek further privacy when uncovering their face. In our view, the full benefits of these important elements of the law will only be properly realised in practice, if steps are taken to better educate and inform the community and police officers.

The CRC has funded the development of a resource kit and delivery of information sessions regarding new laws that relate to face coverings. We have recommended that the NSW Police Force participate, where appropriate, in this and any other similar strategies.

It was also suggested that Roads and Maritime Services disseminate information about the new law for motor registry customers at the time of enrolment and licence renewals. As most uses of the new law have involved traffic matters, the issuing of a new licence is recognised as a key moment when women who drive and wear the niqab could receive this information. We therefore recommended that Roads and Maritime Services develop public education materials, in consultation with the CRC and other relevant stakeholders.

We will monitor the implementation of our recommendations, and have therefore made two further recommendations that both Roads and Maritime Services and the NSW Police Force provide us with information on their progress within 12 months of the tabling this report.

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2013
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