Law in Policing: Legal Regulation and Police Practices

By David Dixon | Go to book overview

5
The Legal (Non)Regulation of
Custodial Interrogation in New
South Wales

You're not meant to detain anyone for questioning, but it always happens. It's the best way to do it: get them back on your turf.1

I . . . reject the findings of the High Court of Australia.2

This Chapter deals with the ways in which New South Wales police have conducted criminal investigation without legislative authority to detain suspects between arrest and charge. Research for it began as a study, by observation and interviews, of policing in NSW. However, the principal focus is not on the police: the need soon became clear to locate policing in the legal environment provided by the courts and the legislature. As will be seen, New South Wales provides a strong case for McBarnet's argument that attention should be shifted from those who administer the law to those who make it ( 1976: 199; see Ch. 1, above).

New South Wales provides a useful comparison to England and Wales. Building on a shared legal foundation (see Ch. 2, above), the jurisdictions have developed distinctively. There are notable contrasts in the roles of the senior judiciaries and of government. In Australia, criminal law and procedure are primarily matters for the states and territories, although there is a body of federal law dealing with offences (notably, illegal drug importation) relating to matters within the Commonwealth's responsibilities. Federal law is increasingly significant as a model for reform and codification in the states and

____________________
1
A NSW police officer in an interview.
2
From an internal memorandum supplied by Detective Sergeant Liversidge to Internal Affairs investigation of conduct criticized by the High Court in Foster ( 1993) 113 ALR 1, quoted NSW Ombudsman 1996: iv.

-178-

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