A recent decision in the Western Australian Supreme Court, Badran v Public Transport Authority of Western Australia  WASCA 28 has seemingly narrowed the Public Transport Authority’s powers of arrest.
In 2009, Mr Badran was travelling on a return concession train ticket from Perth to Rockingham when he was approached by two Public Transport Authority Revenue security officers and asked to provide proof of his concession entitlement. Mr Badran produced an expired concession card containing his full name and address, but not his date of birth. One of the officers asked Mr Badran to supply his date of birth so that an infringement notice could be issued. Mr Badran refused to do so, asking instead that the notice be mailed to him.
Additional Public Transport Authority officers met Mr Badran at Esplanade [now Elizabeth Quay] train station, and after several requests from the officers, Mr Badran disembarked from the train. One of the officers, Mr Hyde, again asked Mr Badran for his date of birth, saying he was required to provide it and could be arrested if he did not. Mr Badran again refused to provide it, at which point Mr Hyde asked Mr Badran to move to a seat on the platform. Mr Badran attempted to leave the area, at which point both security officers took him by the arms, moved him towards the seat and informed him that he was under arrest. Mr Badran attempted to break free and a scuffle ensued. Following the scuffle, Mr Badran was handcuffed and placed on a seat. After Mr Badran was placed on the seat, the security officers located his wallet and removed his driver's licence to ascertain his date of birth. Mr Badran was then released and left the station. He was later convicted of two offences, being travelling without a valid ticket and failing to provide information when requested to do so.
In 2012, Mr Badran commenced proceedings against the Public Transport Authority of Western Australia (Respondent). Mr Badran alleged that the security officers of the Respondent :
- exceeded their statutory power to arrest, or alternatively breached the duty owed to Mr Badran to only use force that was reasonable in the circumstances in that [they] used … excessive force and … force that was not proportional to the suspected offence; and
- in exercising their statutory power to arrest, acted 'with violence, malice, cruelty and with contumelious disregard for Mr Badran’s rights.’
During the course of the trial, the primary judge allowed Mr Badran to amend the statement of claim to plead battery and false imprisonment.
Decision of the Trial Judge
Her Honour found that Mr Badran’s relevant offence was a contravention of regulation 40 of the Public Transport Authority Regulations 2003 (WA), which states:
40. Obstructing an authorised person
A person who obstructs, hinders, impedes or attempts to obstruct, hinder, or impede an authorised person or a security officer in the course of his or her duties commits an offence.
Her Honour ruled in favour of the Respondent, noting the following:
- 'hinders' includes 'to make the officer's job more difficult'.
- The duty of the officers of the Respondent was to take the necessary steps to issue an infringement notice to Mr Badran.
- Without Mr Badran’s date of birth, the officers had insufficient information to issue an infringement notice against him.
- Ascertaining Mr Badran’s date of birth was part of the task involved in issuing an infringement notice.
- In arguing persistently with the officers and continuing to refuse to provide his date of birth, Mr Badran hindered the officers in the course of their duties.
- Accordingly, the security officers were entitled to arrest Mr Badran under s 58(3) of the Public Transport Authority Ac 2003 (WA).
Mr Badran appealed to the Supreme Court of Western Australia Court of Appeal. The appeal was brought on five separate grounds, most relevantly grounds 2 and 5 which were:
- Ground 2: The trial judge erred in law in finding that Mr Badran's arrest was authorised by s 58(3) of the Public Transport Authority Act; and
- Ground 5: The trial judge erred in law and fact in finding that the officers had a power to arrest Mr Badran for obstruction in circumstances where there was no power to arrest him for refusing to provide his date of birth.
Did the officers have the authority to arrest Mr Badran?
The power of the security officers to arrest Mr Badran was said to arise under s 58(3) of the Public Transport Authority Act which provides:
(3) If a person continues or repeats any act or omission that is an offence under this Act after having been warned by a security officer … that to do so may result in the person being taken into custody for the offence, the security officer … may, without warrant other than this section, take the offender into custody and take the offender to a police station or other place for the offender to be dealt with for the offence according to law.
The trial judge found that Mr Badran’s refusal to give his birthdate to the officers “hindered” their duties, enlivening the abovementioned power of arrest.
What does it mean to obstruct/hinder?
The Court of Appeal looked at the ordinary meaning of ‘obstruct’ and held that it involves the taking of some positive step which impedes the relevant thing, rather than a mere failure to take steps which would facilitate or advance an outcome. The Court further held that ‘hinder’ and ‘impede’ have similar meanings.
Their Honours considered previous case law where the question of whether a failure or refusal to answer questions may constitute obstructing or hindering a public officer in the course of his or her duties had arisen in other statutory contexts. The Court found that the authorities, in considering what constitutes ‘obstruction’ (both in Australia and the United Kingdom) commonly referred to something which makes it more difficult for the relevant public officer to carry out his or her duties.
Is there power to arrest on the grounds of refusing to answer?
The Court held that the failure or refusal of Mr Badran to give his birthdate did not amount to obstructing, hindering or impeding within the meaning of regulation 40 of the Public Transport Authority Regulations 2003 (WA). Something more than a mere failure or refusal to provide information requested is required. Accordingly, the Court held that Mr Badran’s arrest was unlawful.
The Court further noted that the provisions of the Criminal Investigation (Identifying People) Act, which create an offence when a person fails to give a security officer personal details (which may include his or her date of birth), were not relevant to this case as section 16 of that Act does not provide consequences involving arrest by a security officer.
Refusing to provide identifying information to Public Transport Authority officers is not an offence which enlivens the power to arrest. Importantly, the Court of Appeal confirmed that in order to be considered ‘obstructing or hindering’ under the Public Transport Authority Regulations, a positive action on the part of the alleged ‘obstructer’ is required. A mere failure or refusal to answer questions is not enough to constitute ‘obstruction’.
 For example see: Hinchliffe v Sheldon  1 WLR 1207; Cavanagh v Galkowski (1979) 20 SASR 322; Tankey v Smith (1981) 36 ACTR 19.