Recommendation 162

This recommendation is assigned to CSNSW.

Recommendation

That governments give careful consideration to laws and standing orders or instructions relating to the circumstances in which police or prison officers may discharge firearms to effect arrests or to prevent escapes or otherwise. All officers who use firearms should be trained in methods of weapons retention that minimise the risk of accidental discharge.

Context

Four of the ninety deaths investigated by the Royal Commission were the result of gun shot wounds following the discharge of firearms and two of those deaths involved the shooting of prisoners who were attempting to escape from Correctional institutions, both cases involved questions of appropriateness. The Royal Commission raised arguments about shooting an escaping prisoner though noted it was outside the scope of terms of reference but did highlight the necessity for the need for training on the use of weapons including that they should only be used in exceptional circumstances. Recommendation 162 is directed at requiring Governments to review relevant laws and procedures relating to firearm discharge to ensure clarity and that they are only used in exceptional circumstances.

Details of implementation

Corrective Services continually reviews its practices and procedures and training to ensure staff can perform their duties safely and with confidence.

Training

All trainee Correctional Officers undertake weapons/firearms training within the 10-week face to face Primary Training and they must satisfactorily complete such to continue employment with CSNSW.

The depth and breadth of firearms training varies depending on whether officers are on armed towers, escorting inmates or providing tactical response (e.g. for hostage situations).

Firearms qualifications training is regularly updated, most recently in 2023.

For example, firearms training for officers on armed towers includes:

Firearms theory

• Use of Force (UOF)
• OF Tactical Options
• Firearms Regulations
• Firearm Safety
• Situational risk assessment NEW
• Operational environment NEW
• Firearm de-escalation techniques NEW
• Response capabilities NEW
• Threat to life NEW
• Risk to the community NEW

Firearms practical

• Weapons Handling
• Live Fire – Range Shoot
• Arrest and Apprehension (Updated Scenarios)
• Tower Training – Theory and Practical NEW

There is also a Firearms Refresher Program:

Firearms theory online course (Thrive)

• Refresher - Practical
• Weapons Handling (Dry Drills)
• Live Fire Range Shoot (Accuracy)
• Scenario Training (Interactive decision making)

Regulation and regulatory review

The Crimes (Administration of Sentences) Regulation 2014 contains the tests in relation to when firearms can be discharged in clause 303

• For a correctional officer to discharge a firearm to protect themselves or another person, the test is ‘believes on reasonable grounds that there is a substantial probability that the officer or person will be killed or seriously injured’.
• For a correctional officer to discharge a firearm to prevent the escape of an inmate, prevent an unlawful attempt to enter a correctional centre or to free an inmate, or to attract the immediate attention of other correctional officers to a serious breach of security, the test is ‘believes on reasonable grounds that it is necessary’.

As of January 2024, amendments are being considered to the Regulation, to clarify and narrow when a correctional officer may discharge a firearm.

In NSW there is a system of statutory regulatory review established by the Subordinate Legislation Act 1989 – and Regulations are automatically repealed every 5 years (extensions are possible) unless it is remade. There are guidelines in Schedule 1 of the Subordinate Legislation Act 1989

Schedule 1 provides:

[2] Before a statutory rule is proposed to be made—

(a)  The objectives sought to be achieved and the reasons for them must be clearly formulated.

(b)  Those objectives are to be checked to ensure that they—

• are reasonable and appropriate, and
• accord with the objectives, principles, spirit and intent of the enabling Act, and
• are not inconsistent with the objectives of other Acts, statutory rules and stated government policies.

(c)  Alternative options for achieving those objectives (whether wholly or substantially), and the option of not proceeding with any action, must be considered.

(d)  An evaluation must be made of the costs and benefits expected to arise from each such option as compared with the costs and benefits (direct and indirect, and tangible and intangible) expected to arise from proceeding with the statutory rule.

(e)  If the statutory rule would impinge on or may affect the area of responsibility of another authority, consultation must take place with a view to ensuring in advance that (as far as is reasonably practicable in the circumstances)—

• any differences are reconciled, and
• there will be no overlapping of or duplication of or conflict with Acts, statutory rules or stated government policies administered by the other authority.

3   In determining whether and how the objectives should be achieved, the responsible Minister is to have regard to the following principles—

(a)  Administrative decisions should be based on adequate information and consultation concerning the need for and consequences of the proposed action.

(b)  Implementation by means of a statutory rule should not normally be undertaken unless the anticipated benefits to the community from the proposed statutory rule outweigh the anticipated costs to the community, bearing in mind the impact of the proposal on the economy and on consumers, members of the public, relevant interest groups, and any sector of industry and commerce, that may be affected.

(c)  The alternative option that involves the greatest net benefit or the least net cost to the community should normally be chosen from the range of alternative options available to achieve the objectives.

4   A statutory rule must be expressed plainly and unambiguously, and consistently with the language of the enabling Act.

The test for discharging firearms has been varied from the 1995 test giving evidence of review and reform of the law.

Prisons Administration Regulation 1995 (made under the Prisons Act 1952)

Authority to carry firearms

Clause 37. (1) A prison officer must not carry firearms while on duty except Maximum penalty: 20 penalty units.

(2) A prison officer to whom firearms have been issued under this Part is authorised to carry them for the purpose only for which they were issued.

 (3) A prison officer is authorised to carry firearms:

 (a) while handling firearms in the course of duties carried out in a

 (b) while taking part in, or in an activity necessarily carried out in prison armoury; or Connection with, an approved training course. Armed posts approved in respect of the prison. firearms as the governor of the prison directs.

Clause 38. (1) There are to be such armed posts at a prison as may be (2) A prison officer, while stationed at an armed post, may carry such firearms as the governor of the prison directs

Clause 39 Issue of firearms to prison officers not at armed posts

39. (1) The governor of a prison or the Superintendent, Security and Investigations Branch, may (by a direction given generally or in any particular case) authorise the issue of firearms to prison officers who are not stationed at armed posts for use in connection with:

(a) the escorting of prisoners; or

 (b) the maintenance of a guard outside a prison.

(2) The Commissioner may (by a direction given in a particular case) authorise the issue of firearms to prison officers for use in connection with patrols of the perimeter of a prison.

(3) The governor of a prison may (by a direction given in a particular case) authorise the issue of firearms to prison officers who are not stationed at armed posts:

(a) for use in connection with the quelling or control of a prison

 (b) for any other purpose for which the governor considers it

(4) The following persons may (by a direction given in a particular case) authorise the issue of firearms to prison officers who are not stationed at armed posts for use in connection with the conveyance of money or other property within the prison or between the prison and other places: disturbance or riot; or necessary that firearms be issued.

 (a) the Commissioner;

(b) the governor of the prison;

(c) the Superintendent, Security and Investigations Branch.

Officers handling firearms to undergo training courses

40. (1) A prison officer must not: (a) authorise or direct the issue of a firearm to another prison officer; (b) issue a firearm to another prison officer, for use by the other officer unless the other officer has undergone an approved training course in the use of that firearm. or Maximum penalty: 20 penalty units. (2) A prison officer must ensure that a prison officer under his or her control does not perform any duty involving the carrying or use of a firearm unless the officer has undergone an approved training course in the use of the firearm. Maximum penalty: 20 penalty units. (3) This clause does not prevent the performance by a prison officer of a duty in connection with an approved training course or the issue to the officer of a firearm for that purpose.

Crimes (Administration of Sentences) Regulation 2001

The test changed:

Clause 269   Authority to discharge firearms

(1)  A correctional officer may discharge a firearm:

(a)  to protect the officer or any other person if the officer believes on reasonable grounds that there is a substantial probability that the officer or other person will be killed or seriously injured if the officer does not discharge the firearm, or

(b)  if the officer believes on reasonable grounds that it is necessary to do so in order:

(i)  to prevent the escape of an inmate, or

(ii)  to prevent an unlawful attempt to enter a correctional centre or to free an inmate, or

(iii)  to attract the immediate attention of correctional officers or other persons to a serious breach of correctional centre security that has arisen or is likely to arise, or

(c)  to give a warning in accordance with this Regulation.

(2)  Despite subclause (1), a correctional officer must not discharge a firearm at a person if the officer has reasonable grounds to believe that the shot may hit a person other than the person at whom it is directed.

Crimes (Administration of Sentences) Regulation 2008

Test was the same as 2001.

Policy

Operational policy changes have also been recently developed to enhance decision-making processes for making security arrangement decisions and provide clear policy guidance for when a firearm may be discharged by a correctional officer and these will be live from December 2023.

Evidence

• COPP 13.7 Use of Force (PDF, 9.3 MB)
• The Crimes (Administration of Sentences) Regulation 2014 clause 303
• Prisons Administration Regulation 1995 (made under the Prisons Act 1952)
• Crimes (Administration of Sentences) Regulation 2001
• Crimes (Administration of Sentences) Regulation 2008