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Graduation Parade for Trainee Course 2/2005 - Tasmania Police Academy

Speech by the Honourable Chief Justice Peter Underwood AO on 2 December 2005

Commissioner McCreadie, Ladies and Gentlemen

To-day, seventeen men and women have just become police constables and joined the police profession. It is a noble profession that will make great demands on those who have just joined it, but it is a profession that will also provide great satisfaction to those who meet these demands willingly. It is a noble profession with a long history. Like many of the professions in Australia, the police profession goes right back to 18th century London[1]. As you may know, the profession first received statutory endorsement in this State in 1865[2]. By an Act of Parliament passed in that year, each Municipality was empowered[3] to appoint constables for the preservation of peace by day and night. The Mayor of each Municipality was charged with the task of making these appointments.

In those days the common law of the land regarded the office of police constable as a public office, and the holder of that office as a servant of the Crown.[4] I want you to understand that this is not just a piece of dry, boring history. It is a piece of significant history for each of the graduates now standing on the parade ground. It is significant because in those days the law was that when a police constable exercised his powers – and in those days constables were always "his", - whether those powers were conferred by common law or by an Act of Parliament, he exercised them by virtue of his office. This meant that each constable was personally responsible for the exercise of his powers. He could not say that he made an arrest because he was ordered to. He was an officer of the Crown, and his power of arrest could not be exercised on the responsibility of any person but himself. If he arrested on suspicion of felony, the suspicion must have been his suspicion, and must have been reasonable to him. If he arrested in a case in which the arrest may only be made if the constable held a certain view about the case, he and not someone else must hold that view[5]. I stress that the law was that a constable held an office of the Crown and he alone was responsible for its proper exercise. It was a significant responsibility for a constable to know that it was down to him alone to decide whether he would exercise the power of arrest and deprive a person of his or her liberty. A Chief Justice of the High Court of Australia once said[6] that the authority of a police constable is akin to the authority of a master of a ship at sea to maintain order.

Since that first Act of Parliament in Tasmania in 1865 there have been a number of Acts of Parliament dealing with the establishment and maintenance of a police force in this State.[7] But the common law, and powers of a constable it conferred, and which are to be akin to those of the captain of a ship to maintain law and order, persist to day just as they did back in 1865. Each of you seventeen men and women who have graduated to day have just assumed the responsibly that goes with those powers. It is important that each of you understand the nature of this responsibility, and the obligation that you have to exercise it responsibly and wisely. Being a police officer is not just a job, it is an independent and important office that carries important independent powers.

Now, I can see Commissioner McCreadie looking a little uneasy as he no doubt thinks that he is the boss of the police force, so I quickly assure him that he is indeed, the boss of the police force and that to-day's graduates are bound to obey his lawful orders, but I say that when exercising the power of arrest, and when exercising any other power that requires a police officer to form an opinion on a matter before acting, obedience to a lawful command has to give way to the constable's individual and independent view of the matter.[8] This is what s83 of your Police Service Act says about it:

"A police officer has the powers, privileges and duties of a constable at common law or under any other Act or law."

Those words, or similar words to the same effect, have appeared in every statute that has regulated the Tasmanian police force since 1865.

In this respect, your job and mine, as Chief Justice of Tasmania are very similar – except, I am glad to say, with respect to the rate of pay. A judge holds a public office just as each of you graduates now hold a public office. The Governor, or the Crown, appoints a judge, while you have been appointed by the Commissioner, but there is little significance in that difference. I say that because commissioned police officers are, like us, appointed by the Governor. Do you recognise these words:

"I will do right to all manner of people after the laws and usages of this State, without fear or favour, affection or ill-will."

Those words are virtually identical to the words of a Constable's oath and appear in the first line of your code of ethics that was read out a short while ago. They are also the words of the oath that I took when I became a judge of the Supreme Court of this State[9]. Just like you, I have to make my own decisions and be responsible for my own decisions when exercising the powers of my office. However, I am a little luckier than you in that I do not have to obey the Commissioner's orders as well! But, my point is that the offices we both hold require us to act, as stated in your Code of Ethics, with honesty and the utmost integrity and to carry out our duties justly and without fear or favour.

The office of police constable is something of which each of you graduates can be justly proud. It is an office, the duties of which I am confident each of you will carry out with distinction and in accordance with your code of ethics.

To each of you I offer my most sincere congratulations upon successfully completing the 32-week course. I offer special congratulations to those of you who took out prizes to day. Finally, I extend my congratulations to the families of the graduates, for without the support of the family I suspect that many of you would not have lasted the distance. I know that is true in my case, for none of the things that I have done would have been possible without the support and encouragement of my wife and family.

Chief Justice Peter Underwood.

2 December 2005



[1] "A History of English Law" W S Holdsworth Vol 13, 235.

[2] Police Force Act 1865, 29 Vict No 9.

[3] Ibid seventeen.

[4] Enever v R (1906) 3 CLR 969 at 975.

[5] Ibid 977. See also Dixon J (as he then was) in Attorney-General for NSW v The Perpetual Trustee Company (Limited) & Ors (1952) 85 CLR 237 at 252.

[6] Griffith CJ in Enever's case at 977.

[7] E.g., Police Regulation Act 1898, 62 Vict. No 48, in which the power to appoint a constable was conferred upon the Commissioner of Police, and currently, the Police Service Act 75/2003.

[8] For a critical view of this opinion see "Police and Politics in Australia, Michael Bersten (1990) 14 Crim L J 302 at 309.

[9] Promissory Oaths Act 1869, s4.