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The power of police officers to enforce bail conditions, has come under question during a Law Enforcement and Conduct Commission (LECC) hearing. The hearing which is taking place over the next few days, follows an increase in complaints made to the LECC surrounding police officers engaging in what has been referred to during the hearing as “unlawful” and “oppressive” conduct.

The commission has been told that police were attending the homes of accused persons who were subject to bail enforcement conditions such as curfews and residential conditions, multiple times a night and at all hours of the day.

Police powers to enforce bail

So what powers do police actually have to attend a persons home and conduct these types of bail enforcement checks?

Section 30 of the Bail Act 2013 (The Act) gives the court the power to impose “enforcement conditions” on a person for the “purpose of monitoring and enforcing compliance with another bail condition”, i.e. curfew or residential condition, if the court thinks it reasonable and necessary in the circumstances.

Unduly onerous conditions?

The section stipulates that a person subject to an enforcement condition is required to comply with one or more police directions, provided that these directions are not “unduly onerous.”

If a police officer suspects that a person has not complied with one or more of their bail conditions, section 77 of the Act gives them the power to arrest the person and take them before a court.

The key factor in any bail enforcement by police, is that the direction or method of enforcing the bail condition must not be unduly onerous. This would seem to be the question facing the LECC at the current hearing.

Implied consent to enter your property

The law has long held that there is an implied licence for a person to enter another persons property provided they are engaging in lawful conduct. Implied licence means that in the absence of an obstruction (fence) or other notice (signage), the law says that any member of the public is allowed to enter a persons driveway, path, or approach and knock on their front door.

Can police enter your property to enforce bail?

The question of whether this implied licence extended to police officers was considered by the High Court in the case of Halliday v Nevill (1984) 57 ALR 331. In this case the court found that the implied licence does not exclude police officers acting in the ordinary course of their duty and that police, like members of the public, are not trespassing until such time as the implied licence has been revoked by the owner of the property.

If the lawful occupier of a property revokes a police officers implied licence to enter their property, and the police officer enters the property regardless, then the police officer becomes a trespasser and is no longer on the property for a lawful purpose.

How can consent be withdrawn?

Withdrawing an implied licence can be done verbally or in writing, or by placing signage on the property. The most effective way of withdrawing your consent for police to enter your property is by having a criminal lawyer write a letter to the Commander of the local Police Area Command.

The question of whether frequent bail enforcement checks are lawful or “unduly onerous” will hopefully become clearer following the hearing of the LECC which is due to conclude today.