Does 'function' under Section 148B of the Police Administration Act 1978 (NT) include functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"

The Queen v Rolfe [2021] HCA 38 (10 November 2021)

Intro:-

This is in regard to an appeal from the Supreme Court of the Northern Territory.

Facts:-

The respondent is a member of the Police Force of the Northern Territory with the rank of Constable. He has been charged with one count of murder[1]; in the alternative, manslaughter[2]; and in the further alternative, engaging in a violent act which caused the death of a person[3]. He has pleaded not guilty.

On 9 November 2019 the respondent and a number of other police officers were deployed from Alice Springs to assist in the arrest of Charles Arnold (Kumanjayi) Walker ("the deceased"). A warrant had issued for his arrest for breaching a condition of an order for a suspended sentence. The respondent and another officer entered the house where the deceased was present. The respondent directed the deceased to put his hands behind his back. The deceased did not do so. He stabbed the respondent in the left shoulder with a pair of scissors which had been secreted. The respondent shot the deceased three times. Either or both of the second and third shots later proved to be fatal.

The provisions of the Police Administration Act 1978 (NT)

Section 148B, "Protection from liability", appears in Div 2 of Pt VIIA of the Police Administration Act 1978 (NT) ("the PA Act"). It is in these terms:

"(1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act.

(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission.

(3) In this section:

exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function."

Section 124, "Arrest of person where warrant issued", appears in Div 3 of Pt VII, which Part is entitled "Police powers". It provides:

"(1) A member of the Police Force may, without warrant, arrest and take into custody any person who the member has reasonable cause to believe is a person for whose apprehension or committal a warrant has been issued by any Supreme Court Judge, Local Court Judge or justice of the peace.

(2) Where a member arrests a person under subsection (1), the member shall, as soon as reasonably practicable thereafter, produce or cause to be produced to the person the warrant authorising his apprehension or committal, where the person has been apprehended in pursuance of a warrant authorising his apprehension, and the person shall be charged with the offence specified in the warrant."

Part II of the PA Act is entitled "Police Force of the Northern Territory". Section 5 is located in Div 1 – "Establishment of Police Force" – of Pt II. It provides:

"(1) There is established by this Act the Police Force of the Northern Territory.

(2) The core functions of the Police Force are:

(a) to uphold the law and maintain social order; and

(b) to protect life and property; and

(c) to prevent, detect, investigate and prosecute offences; and

(d) to manage road safety education and enforcement measures; and

(e) to manage the provision of services in emergencies."

Section 25, "Function of members", is in Div 3 of Pt II and provides:

"Subject to this Act, a member shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on him."

Section 26(1), which follows, relevantly provides that:

"A person shall not exercise or perform any of the powers, functions or duties conferred or imposed upon a member of the Police Force by a law of the Territory unless he or she has taken and subscribed an oath in the form in the Schedule."

The Full Court

At issue before the Full Court, as relevant to this application, was whether s 148B applied to and provided protection for the functions stated in s 5. Southwood J and Mildren A-J reasoned that, by virtue of the oath members of the Police Force take, and the fact that the Police Force can only act through its members, its members are under an obligation and have a duty to carry out the core functions stipulated in s 5 of the PA Act[4]. Section 25, in its reference to duties, obligations, powers and privileges conferred or imposed on police officers "by any law in force in the Territory", includes the common law and statutory law[5], they observed. Their Honours concluded[6] that s 5, when considered in the light of s 25 and the oath taken by a member of the Police Force, makes it part of a police officer's functions and duties to protect life and prevent offences. So understood, s 148B applies to those s 5 functions[7].

Kelly and Blokland JJ and Hiley A-J reasoned likewise. Their Honours held that functions of the Police Force were functions of its members[8]. Whilst some of the core functions in s 5(2) would be performed at an organisational level, some can only be performed by individual members of the Police Force, including two of the most important functions: protecting life and property, and preventing offences. In their Honours' view the protection afforded by s 148B did extend to the performance of the functions in s 5 of the PA Act[9].

Issue:-

Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"

Consideration:-

The evident purpose of s 148B is to provide protection from liability, including for a criminal act, provided that the person committing the act does so "in the exercise of a power or performance of a function" (or in the purported exercise or performance) under the PA Act, and does so in good faith. It contemplates that the power exercised or function performed will be of a kind which may result in the commission of a crime or a civil wrong, which may be contrasted with powers or functions which are of a more general character and do not require any special authority[10].

Section 124 confers a power of arrest upon warrant on a member of the Police Force. It appears in Pt VII of the PA Act, which is headed "Police powers", which heading is to be read as part of the PA Act[11]. Whilst the provisions of s 55 of the Interpretation Act 1978 (NT) do not deal with the heading of a section in the same way[12], a modern approach to statutory construction often takes account of headings, much in the same way as use is made of extrinsic materials[13]. In this regard, s 25 is headed "Function of members".

In any event, s 25 clearly is concerned to confer powers and functions on members of the Police Force. It provides that a member of the Police Force is to perform the "duties and obligations" and have the "powers and privileges" that any law in force in the Territory confers or imposes on a member. It is to be read with s 26, which provides that a person shall not exercise or perform any of the "powers, functions or duties" conferred or imposed upon a member of the Police Force by a law of the Territory unless the prescribed oath is taken and subscribed.

Section 5 is not a provision of this kind. Its text and its location in Div 1 of Pt II, which is concerned with the establishment of the Police Force[14], suggest that its purpose is to identify the principal functions of the Police Force, but not to confer any particular power or function on its members. Reading s 5 with s 25 does not alter this construction. The reference in s 25 to a law in force in the Territory is to a law which confers or imposes powers and s 5 is not of this character.

True it is that powers such as those of prevention of offences and the apprehension of persons suspected of offences are intrinsically within the powers and functions of a police officer, as the respondent submits, but that is to say no more than that the common law recognises this to be the case. It is correct, as the respondent points out, that s 5 reflects certain of the police powers recognised by the common law. Importantly though, s 5 does not confer those powers, whereas s 25 and s 124 do. That they do so tends against a construction that s 5 was intended to confer the same or similar powers or functions.

The reference in s 25 to "any law" encompasses both the common law and statutory law which applies in the Northern Territory. The common law powers include those to prevent the commission of a crime[; to apprehend a person suspected of having committed an offence; and to prevent breaches of the peace[. The common law power to arrest without warrant notably has been replaced with a statutory power (s 123 of the PA Act). The exercise of the common law powers, like the statutory powers, is subject to constraints, such as doing only that which is reasonable and necessary.

The text and legislative history of s 148B do not point to the application of s 148B to the performance by members of the Police Force of the core functions under s 5(2). When s 148B was introduced in 2005, it extended protection, from civil liability, to members of the Police Force. It provided that such a person was not civilly liable for an act done "in the performance or purported performance of duties" as a member. It was amended in 2016[20] to its present form, which notably replaces "member" with the more general reference to "person", and refers to the "exercise of a power or performance of a function" under the PA Act.

The 2016 amendments to s 148B coincided with the insertion of Div 7AA in Pt VII, which dealt with blood testing for infectious diseases. The Division was concerned with the possible transmission of infectious diseases to members of the Police Force and provided that an "affected member" may apply to a "senior member" who may grant a "disease test approval" by which a blood sample was authorised to be taken from "the transferor", the person from whom it is suspected blood or another substance was transferred to the affected member.

The taking of a blood sample involved persons such as doctors and nurses, who were now performing a special public duty. It was obviously thought necessary to protect them from civil or criminal liability which might arise from their actions[22], hence the widening of the reference in s 148B to "person". The term "function" is now apt to refer to duties undertaken by members of the Police Force and these other persons. The term "power" remains appropriate to members of the Police Force.

Order:-

There should be a grant of special leave to appeal. The appeal should be allowed and order 3 of the Full Court of the Supreme Court of the Northern Territory set aside. In lieu thereof, Question 3 should be restated as:

"Does a 'function' under s 148B of the Police Administration Act 1978 (NT) include the functions listed in s 5(2) of the Police Administration Act 1978 (NT)?"

and it should be answered:

"No, the relevant powers and functions to which s 148B of the Police Administration Act 1978 (NT) applies are those of the common law, which s 25 of the Act confers, and the power of arrest in s 124 of the Act."