Court Security Act 2005

The Act casts a wide net. Primary duty-bearers are “security officers” — defined in s 4 as the Sheriff or persons appointed by the Sheriff under s 21. Appointees may be sheriff’s officers or licensed security industry personnel. They exercise the bulk of the coercive powers in Parts 3–4 and owe corresponding compliance obligations under ss 20, 22 and 24.

Judicial officers (defined broadly in s 4 to include all persons constituting a “court”) hold residual supervisory authority. They may close premises (s 7), authorise exceptions to the recording and transmission prohibitions (ss 9(2)(a), 9A(2)(c)), direct that restricted items be admitted (s 8(2)(b)), and issue directions to security officers that override the limitations in s 19(2)(a). They also retain their inherent contempt jurisdiction untouched by the Act (s 5(2)(a)).

All persons entering or remaining in “court premises” — a deliberately expansive term in s 4 that includes not only courtrooms but forecourts, corridors, toilets, parking areas, and any place used for audio-visual links — are subject to the entry conditions in s 6, the possession and recording prohibitions in ss 8–9B, and any directions or searches issued under Part 3. This captures litigants, witnesses, legal practitioners, journalists, support persons and members of the public.

Specific cohorts receive tailored treatment. Journalists enjoy a limited statutory right under s 6(2) to remain in outdoor public areas for the purpose of making a media report provided they do not obstruct access. Children under 12 receive heightened procedural protections during personal searches (s 10(2)(e)–(g)) and face-covering removals (s 13A(2)(c),(e)). Persons with disabilities accompanied by assistance animals are exempt from the animal prohibition (s 7A(3)(a)). Police officers and custodial officers (defined in s 4) may possess restricted items in the execution of their duties (s 8(2)(d)) and may request security-officer assistance (ss 19(1)(c)–(d), 15A).

Persons in lawful custody — whether police, correctional or juvenile-justice officers — trigger additional restrictions: security powers cannot be exercised against them without a request from the custodial officer (s 19(1)(d)), yet s 5(2)(b) preserves the custodial officer’s own powers inside court cell complexes.

Finally, the Act affects the executive through the Sheriff’s appointment and revocation powers (s 21), the Commissioner of Police’s role in forfeited-property disposal (s 12(11)), and the regulation-making capacity of the Governor (s 30). Local Court magistrates hear appeals from refusals to return confiscated items (s 12(7)–(8)).

Security officers owe duties of procedural fairness and proportionality. Before exercising most powers they must produce identification, state their name or badge number, explain the reason, and warn of the offence for non-compliance (s 20(2)). Personal searches must be conducted with reasonable privacy, as quickly as practicable, in the least invasive manner, by an officer of the same sex where possible, and in the presence of a responsible person if the subject is a child under 12 (s 10(2)). Face-covering removal follows parallel safeguards (s 13A(2)). Directions under s 14 must be reasonable and directed at eliminating the identified obstruction, harassment, intimidation or fear (s 14(2)). Force must not exceed what is reasonably necessary (s 17).

Rights conferred on individuals include the qualified right of public entry (s 6(1)), the journalist’s outdoor reporting right (s 6(2)), the right to have surrendered property returned when leaving the premises (s 11(4)), and the right to apply for return of confiscated items with a statutory appeal to the Local Court (s 12(4)–(8)). Persons subject to search or direction retain the right to a responsible person’s presence (for children), same-sex conduct where requested, and privacy to the extent practicable. The Act expressly preserves the court’s inherent jurisdiction and contempt powers (s 5), so litigants retain the ability to seek judicial intervention if security measures unduly interfere with open justice.

Defence rights are reinforced by the requirement that the prosecution prove absence of reasonable excuse only on the balance of probabilities once the defendant raises the issue (s 27 places the onus on the defendant). The Act also creates positive rights to be told why a power is being exercised and to receive a warning before criminal liability crystallises for non-compliance.

Penalties are graduated. The most serious recording and transmission offences (ss 9, 9A, 9B) carry 200 penalty units or 12 months imprisonment (or both). Possession of prohibited weapons or firearms in court premises attracts 100 penalty units or 2 years (s 8(1)(a)); ordinary knives 20 penalty units or 2 years (s 8(1)(b)). Obstruction or impersonation of a security officer is punishable by 100 penalty units or 6 months (s 24). Directions offences (s 14(4)) and repeated requirements under search or surrender powers (ss 10(4), 11(3), 13A(5)) carry 20 and 5 penalty units respectively. Minor signage offences are 5 penalty units (s 15(2)).

Enforcement occurs through ordinary summary prosecution in the Local Court or Supreme Court (s 28), with the Local Court capped at 100 penalty units regardless of the statutory maximum. Penalty notices are available for prescribed offences (s 29), applying the Fines Act 1996. Confiscated items follow a separate administrative track: immediate police handover if not returned on the spot, 28-day application window, Local Court appeal, and ultimate forfeiture or destruction (s 12). Arrest powers (s 16) feed directly into the criminal justice system, with the arrested person to be taken before police or an authorised officer “as soon as practicable”.

The Act creates no civil cause of action; instead s 25 grants personal immunity to security officers and those acting under their direction for good-faith acts or omissions.

The Act is expressly supplementary (s 5(1)). It does not derogate from any court’s contempt powers or similar inherent jurisdictions (s 5(2)(a)), nor from correctional officers’ powers under the Crimes (Administration of Sentences) Act 1999 inside court cell complexes (s 5(2)(b)).

Heavy reliance is placed on definitions imported from other statutes: “face covering”, “face” and “special justification” from the Law Enforcement (Powers and Responsibilities) Act 2002 (ss 4, 13A(8)); “prohibited weapon”, “firearm” and “imitation firearm” from the Weapons Prohibition Act 1998 and Firearms Act 1996 (s 4); “correctional centre” and “correctional officer” from the Crimes (Administration of Sentences) Act 1999; “judicial officer” from the Judicial Officers Act 1986; and “assistance animal” from the Commonwealth Disability Discrimination Act 1992 (s 7A(3)(a)).

The recording and transmission offences sit alongside, but do not displace, the general law of contempt and any suppression or non-publication orders made under the Court Suppression and Non-publication Orders Act 2010 or the Children and Young Persons (Care and Protection) Act 1998. Section 9B’s knowledge element (“knows or suspects, or ought reasonably to know or suspect”) mirrors language found in Commonwealth copyright and surveillance-device legislation.

Arrest and search procedures must be read with the Law Enforcement (Powers and Responsibilities) Act 2002; indeed s 13A was inserted to align court security with that Act’s face-covering provisions. Penalty-notice provisions incorporate the Fines Act 1996 by reference (s 29(3)). Service of documents under s 26 supplements but does not override court rules or other statutory service regimes.

The Act’s transitional schedule (Sch 1) and review clause (s 33) are standard legislative housekeeping that interact with the Interpretation Act 1987 (expressly noted in s 4(1)).

The Act has been substantively amended on at least ten occasions since 2005, each responding to emerging security or technological risks.

The Court Security Amendment Act 2011 (No 15 of 2011) was the most significant single package. It inserted s 7(1A)–(1B) to limit closure orders to 28 days (renewable), added the animal-control regime in s 7A, expanded personal-search safeguards in s 10, inserted helmet-removal powers into s 14, extended arrest powers, and tightened the safeguards in s 20. These changes reflected operational experience that indefinite closures were disproportionate and that animals and obscured faces presented unanticipated risks.

Later that year the Law Enforcement (Powers and Responsibilities) Amendment (Face Coverings) Act 2011 inserted s 13A to create a parallel power to require removal of face coverings, adopting the “special justification” test from LEPRA s 19B. The 2013 amendment (Courts and Crimes Legislation Amendment Act 2013 No 1) introduced s 9A to close the “live tweeting from inside the courtroom” loophole that had emerged with smartphones and social media.

The 2017 and 2018 amendments refined penalty-notice and confiscation machinery. The 2020 insertion of s 9B (via the Stronger Communities Legislation Amendment (Domestic Violence) Act 2020) responded to concerns about unauthorised distribution of recordings that could be edited and circulated after the fact, even if not streamed live. Most recently, the Justice Legislation Amendment Act 2024 inserted s 15A to formalise security officers’ ability to assist police and custodial officers both inside and in the immediate vicinity of court premises, recognising that incidents often spill into car parks or nearby streets.

Each change has been narrowly targeted: the legislature has consistently expanded the regulatory perimeter to match new vectors of disruption while preserving the Act’s original procedural safeguards.

Because the Act is largely procedural and its offences are strict in nature, reported case law is relatively sparse and mostly concerns the limits of security-officer powers rather than constitutional questions. Challenges have typically arisen in the context of contempt proceedings or appeals against conviction for non-compliance with directions.

Courts have emphasised that the s 20 safeguards are mandatory; failure to give the required warning and identification can result in acquittal on a failure-to-comply charge. The “reasonable grounds” and “reasonably necessary” thresholds in ss 10, 14 and 17 have been construed consistently with analogous LEPRA jurisprudence, requiring an objective basis rather than mere suspicion.

Controversies have surfaced in two areas. First, the interaction between s 9A/9B and open-justice principles has attracted media criticism when journalists are prevented from live-tweeting high-profile trials. Judicial officers have generally resolved these on a case-by-case basis by granting express permission under the exceptions, but the default prohibition remains controversial. Second, the breadth of “court premises” (which can encompass entire building complexes) has led to complaints that security powers are exercised in areas only tenuously connected to actual court sittings, such as public cafeterias or external forecourts. The s 6(2) journalist carve-out was inserted precisely to mitigate one such tension.

No High Court constitutional challenge has invalidated any provision, and the Act’s compatibility with the implied freedom of political communication has not been tested at appellate level. Lower-court decisions have upheld the validity of closure orders and recording prohibitions as proportionate measures necessary for the administration of justice.

Most practitioners assume that once a judicial officer has granted permission to record under s 9(2)(a), that permission automatically extends to publication; it does not. Section 9B operates independently and requires separate approval for any subsequent transmission or distribution. Many counsel have been caught distributing “official” recordings without realising the two-stage approval process.

Another trap is the interaction between s 19(1)(b) and courtroom emergencies. A security officer may only enter a sitting courtroom without judicial leave if there is both an emergency and insufficient time to obtain a direction. The onus of proving those preconditions lies on the officer if the exercise of power is later challenged; vague assertions of “safety concerns” have been held insufficient.

The definition of “recording device” in s 4 is extraordinarily wide — it includes any device “capable of being used to record images or sound (or both)”, expressly listing portable document scanners. Solicitors who scan exhibits on tablet devices inside the courtroom without permission technically breach s 9, even if the purpose is legitimate case preparation.

Section 12’s confiscation and forfeiture regime contains a little-noticed trap for minors: only a parent, guardian or person with lawful care or custody may apply for return of a confiscated item on behalf of a person under 18 (s 12(6)). A 17-year-old defendant cannot lodge the application personally, and failure to observe this has led to automatic forfeiture in several Local Court matters.

Finally, the “reasonable excuse” defence in multiple sections carries a reverse onus (s 27). Defence practitioners must lead evidence on the balance of probabilities; merely asserting an excuse in cross-examination is insufficient.

Compliance begins with physical preparation. All persons entering court premises should assume they will be scanner-searched (s 10(1)(a)) and should not carry restricted items. If a legitimate reason exists (e.g. a knife required as an exhibit), obtain prior written judicial direction under s 8(2)(b) and ensure the item is in a prescribed container. Mobile phones should be switched to flight mode; the note to s 9(1) makes clear that the prohibition is on the recording function, but security officers routinely require devices to be powered off.

Law firms should maintain a checklist for counsel appearing in contested matters: (1) obtain any necessary recording or transmission permissions in advance and in writing; (2) instruct clients and witnesses on the s 9, 9A and 9B prohibitions; (3) ensure support persons for children under 12 are present for any search or face-covering procedure; (4) carry proof of identity in case s 13 is invoked.

Security officers must be trained to recite the s 20 script verbatim before exercising powers other than those covered by ss 10, 11 or 13A. Failure to do so invalidates the subsequent offence of non-compliance. When giving group directions under s 14(6)–(8), officers should still document that the warning was given to the group as a whole, because the Act expressly states that the absence of individual repetition does not create a presumption of receipt (s 14(9)).

Judicial officers should record any permission granted under ss 8, 9, 9A or 9B on the court file with sufficient particularity to protect participants from later s 9B prosecution. When issuing closure orders under s 7, the 28-day limit and renewal power should be expressly stated; indefinite orders are now ultra vires.

Registry staff should ensure that “court premises” maps are up to date and that signage erected under s 15 accurately reflects the current prohibitions, particularly the social-media rules. Finally, all stakeholders should monitor the regulation-making power in s 30; prescribed containers for exhibits, additional circumstances for exceptions, and penalty-notice offences can change without primary legislative amendment.

A robust compliance program therefore combines advance judicial liaison, client education, meticulous documentation of any permissions, and strict adherence to the procedural safeguards that Parliament has layered onto every coercive power.