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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Police Powers Legislation Amendment
Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Law Enforcement (Powers and
Responsibilities) Act 2002 No 103 2
4 Amendment of Police Powers (Drug Detection in
Border Areas Trial) Act 2003 No 28 2
5 Amendment of Terrorism (Police Powers) Act 2002
No 115 2
6 Amendment of other Acts and regulation 2
7 Repeal of Act 2
Schedule 1 Amendment of Law Enforcement (Powers and
Responsibilities) Act 2002 3
Schedule 2 Amendment of Police Powers (Drug Detection in
Border Areas Trial) Act 2003 13
Schedule 3 Amendment of Terrorism (Police Powers) Act 2002 21
Schedule 4 Amendment of other Acts and regulation 23
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Police Powers Legislation Amendment
Bill 2006
Act No , 2006
An Act to amend various Acts and other legislation to make further provision with
respect to police powers.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Police Powers Legislation Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Police Powers Legislation Amendment Act 2006.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as
otherwise provided by subsection (2).
(2) The following provisions commence on the dates indicated:
(a) Schedule 1 [15] and [16]--the date of commencement of section
87MA of the Law Enforcement (Powers and Responsibilities)
Act 2002, as inserted by the Crimes Legislation Amendment
(Gangs) Act 2006, or the date of assent to this Act, whichever is
the later,
(b) Section 4 and Schedule 2--a day or days to be appointed by
proclamation.
3 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
No 103
The Law Enforcement (Powers and Responsibilities) Act 2002 is
amended as set out in Schedule 1.
4 Amendment of Police Powers (Drug Detection in Border Areas Trial) Act
2003 No 28
The Police Powers (Drug Detection in Border Areas Trial) Act 2003 is
amended as set out in Schedule 2.
5 Amendment of Terrorism (Police Powers) Act 2002 No 115
The Terrorism (Police Powers) Act 2002 is amended as set out in
Schedule 3.
6 Amendment of other Acts and regulation
The Acts and regulation specified in Schedule 4 are amended as set out
in that Schedule.
7 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Police Powers Legislation Amendment Bill 2006
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
Schedule 1 Amendment of Law Enforcement
(Powers and Responsibilities) Act 2002
(Section 3)
[1] Section 3 Interpretation
Omit paragraph (b) of the definition of authorised officer in section 3 (1).
Insert instead:
(b) a registrar of a Local Court, or
[2] Section 3 (1), definition of "ordinary search"
Insert ", socks" after "shoes" in paragraph (a).
[3] Section 21A
Insert after section 21:
21A Ancillary power to search persons
(1) In conducting a search of a person under section 21, a police
officer may, if the police officer suspects on reasonable grounds
that a thing referred to in section 21 (1) (a), (b), (c) or (d) is
concealed in the person's mouth or hair, request the person:
(a) to open his or her mouth, or
(b) to shake, or otherwise move, his or her hair.
(2) Subsection (1) does not authorise a police officer to forcibly open
a person's mouth.
(3) A person must not, without reasonable excuse, fail or refuse to
comply with a request made by a police officer in accordance
with this section and section 201.
Maximum penalty: 5 penalty units.
[4] Section 26 Power to search for knives and other dangerous implements
Omit section 26 (2). Insert instead:
(2) If the person is in a school and is a student at the school, the police
officer may also request the person to do either or both of the
following:
(a) to submit to a search of any bag or other personal effect
that is on or with the person,
(b) to submit to a search of the person's locker at the school
and an examination of any bag or other personal effect that
is inside the locker.
Page 3
Police Powers Legislation Amendment Bill 2006
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
[5] Section 26 (6)
Omit the subsection (and the note to the subsection).
[6] Section 28 Power to confiscate knives or other dangerous implements
Insert after section 28 (2):
(3) The power conferred by subsection (1) may be exercised whether
or not the police officer requests the person to produce the thing
under section 26.
[7] Section 59 Application of Division
Omit "61 (7)" wherever occurring in section 59 (2) and (3).
Insert instead "61 (5)(8)".
[8] Section 61 Telephone warrant
Omit "in the case of a search warrant," from section 61 (5) (c).
[9] Section 61 (6) (b)
Omit "in the case of a search warrant". Insert instead "in a case".
[10] Section 75 Death, absence of authorised officer who issued warrant
Omit "or 73 (4)" from section 75 (b). Insert instead ", 73 (4) or 73A".
[11] Section 82 Entry by invitation
Omit section 82 (3). Insert instead:
(3) A police officer may exercise a power to enter and remain in a
dwelling if the invitation to enter and remain is given by a person
who apparently resides in the dwelling and whom the police
officer believes to be the victim of a domestic violence offence,
even if another occupier of the dwelling expressly refuses
authority to the police officer to do so.
(4) For the purposes of this section, a victim of a domestic violence
offence is any person against whom a domestic violence offence
is being, or may have been recently, committed, or is imminent,
or is likely to be committed.
[12] Section 87B Emergency prohibition on sale or supply of liquor
Omit "Inspector" from section 87B (5). Insert instead "Superintendent".
Page 4
Police Powers Legislation Amendment Bill 2006
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
[13] Section 87C Emergency alcohol-free zones
Omit "removed from the zone or put away" from section 87C (3).
Insert instead "immediately removed from the zone".
[14] Section 87C (7) (a)
Omit "remove the liquor from the zone or put the liquor away".
Insert instead "immediately remove the liquor from the zone".
[15] Section 87MA Power to disperse groups (as inserted by the Crimes
Legislation Amendment (Gangs) Act 2006)
Omit section 87MA (2) and (3). Insert instead:
(2) For the purpose of complying with section 201 (1) (c), the police
officer giving the direction must inform the person or persons to
whom the direction is given that the direction is given for the
purpose of preventing or controlling a public disorder.
[16] Section 87MA (6)
Omit "referred to in subsection (2)".
Insert instead "required to be given under section 201".
[17] Section 89 Application of Part to premises
Insert after section 89 (2):
(3) A police officer may exercise crime scene powers in relation to a
vehicle, vessel or aircraft that is within a crime scene established
in a public place, without obtaining a warrant, but may exercise a
crime scene power that involves seizing, detaining or searching
the vehicle, vessel or aircraft only if:
(a) the police officer suspects on reasonable grounds that it is
necessary to do so to preserve, or search for and gather,
evidence of the commission of the offence in connection
with which the crime scene was established, or
(b) the police officer is authorised to do so by a crime scene
warrant or other lawful authority.
[18] Section 90 When crime scene may be established
Insert after section 90 (1):
(1A) A crime scene may also be established on premises by a police
officer pursuant to the authority conferred by a crime scene
warrant.
Page 5
Police Powers Legislation Amendment Bill 2006
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
[19] Section 92 Exercise of powers at crime scene
Omit section 92 (5). Insert instead:
(5) A crime scene power that may be exercised by a police officer
under this section (other than the powers set out in section 95 (1)
(a)(f) and (k)) may be exercised by any member of NSW Police
responsible for examining or maintaining a crime scene, but only
with the authority of the police officer who established the crime
scene or is responsible for the crime scene at the time.
(6) A crime scene power that may be exercised by a police officer
under this section may be exercised by the police officer with the
aid of such assistants as the police officer considers necessary.
[20] Section 93 Notice to senior police officer where warrant not required
Insert "(otherwise than by authority of a crime scene warrant)" after "is
established for a period of 3 hours or less".
[21] Section 94 Crime scene warrants
Omit "at a crime scene" from section 94 (1).
Insert instead "at specified premises".
[22] Section 94 (2)
Omit "to enter premises and".
Insert instead "to enter premises, to establish a crime scene on the premises (if
a crime scene has not already been established) and to".
[23] Section 94 (4)
Insert after section 94 (3) (before the note):
(4) A crime scene power that may be exercised by a police officer
under this section (other than the powers set out in section 95 (1)
(a)(f) and (k)) may be exercised by any member of NSW Police
responsible for examining or maintaining a crime scene, but only
with the authority of a police officer who is responsible for
executing the warrant.
[24] Section 104A Arrest by commander of aircraft (as transferred by
Schedule 4.1 [1])
Omit "a Justice or other proper authority" from section 104A (1).
Insert instead "an authorised officer".
Page 6
Police Powers Legislation Amendment Bill 2006
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
[25] Section 117 Certain times to be disregarded in calculating investigation
period
Insert "or crime scene warrant" after "search warrant" in section 117 (1) (l).
[26] Part 10, heading
Insert "and to other offenders" after "custody".
[27] Part 10, Division 1, heading
Insert "from persons in custody" after "particulars".
[28] Sections 137A and 137B
Insert after section 137:
137A Destruction of finger-prints and palm-prints (adults and children)
(1) A person from whom any finger-prints or palm-prints are taken
under this Division in relation to an offence may request the
Commissioner to destroy the finger-prints or palm-prints if the
offence is not proven.
(2) For the purposes of this section, an offence is not proven if:
(a) the person is found not guilty or is acquitted of the offence,
or
(b) the conviction of the person for the offence is quashed, and
an acquittal is entered, on appeal, or
(c) at the end of the period of 12 months after the finger-prints
or palm-prints were taken (or, if an extension to that period
is granted under section 137B, at the end of the extended
period) proceedings in respect of the offence have not been
instituted against the person or have been discontinued.
(3) A request under this section is to be made by application in
writing.
(4) If the person from whom the finger-prints or palm-prints were
taken is a child, the request may be made on behalf of the child
by a parent or guardian of the child.
(5) The Commissioner must, as soon as reasonably practicable after
receiving a request made in accordance with this section, destroy
or cause to be destroyed the finger-prints or palm-prints taken
from the person in relation to the offence that is not proven.
(6) This section does not require the destruction of any court records.
Page 7
Police Powers Legislation Amendment Bill 2006
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
(7) This section does not affect the powers of the Children's Court to
order the destruction of all identification particulars relating to a
person under section 38 of the Children (Criminal Proceedings)
Act 1987.
(8) This section extends to any finger-prints or palm-prints taken
under section 134 (in relation to an offence that has been proven),
if the person's conviction for the offence is subsequently quashed
on appeal.
137B Extension of period at the end of which finger-prints and
palm-prints may be destroyed
(1) A Magistrate may, by order made on application in accordance
with this section, grant an extension to the period of 12 months
referred to in section 137A (2) (c), or that period as previously
extended under this section, in relation to particular finger-prints
or palm-prints if satisfied that there are special reasons for doing
so.
(2) An application for an extension may be made by a police officer
or the Director of Public Prosecutions.
(3) An application for an extension may be made at any time,
whether or not the period proposed to be extended has elapsed
and whether or not a request for the destruction of the
finger-prints or palm-prints concerned has been made to the
Commissioner.
(4) A Magistrate to whom an application is made is not to grant an
extension unless:
(a) the applicant for the extension has taken reasonable steps
to notify the person from whom the finger-prints or
palm-prints were taken of the making of the application,
and
(b) the person or his or her legal representative has been given
an opportunity to speak to or make a submission to the
Magistrate concerning the extension.
(5) The Director of Public Prosecutions is to ensure that the
Commissioner is notified of an application made by the Director
of Public Prosecutions under this section and any extension
granted as a consequence of the application.
(6) If an extension is granted, the Commissioner may refuse a request
for the destruction of the finger-prints or palm-prints concerned
made before the end of the extended period (including an
application made before the extension was granted).
Page 8
Police Powers Legislation Amendment Bill 2006
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
[29] Part 10, Division 3
Insert after Division 2:
Division 3 Taking of identification particulars from other
offenders
Note. Sections 138A, 138B and 138C are transferred from Part 10 of the Crimes Act
1900.
[30] Section 138A Taking of finger-prints and palm-prints from persons
issued penalty notices (as transferred by Schedule 4.1 [1])
Insert "(whether before or after the penalty notice has been served)" before
"require" in section 138A (1).
[31] Section 138A (3)
Omit the subsection. Insert instead:
(3) The Commissioner must ensure that a finger-print or palm-print
taken under this section is destroyed:
(a) on payment of the penalty under the penalty notice, or
(b) if the relevant penalty notice offence is dealt with by a
court and the court dismisses the charge in relation to the
penalty notice or arrives at a finding of not guilty for the
charge, or
(c) if the penalty notice is withdrawn.
[32] Section 138C Safeguards for exercise of powers to obtain finger-prints
and palm-prints without arrest (as transferred by Schedule 4.1 [1])
Omit "section 353AC or 353AD" from section 138C (1).
Insert instead "section 138A or 138B".
[33] Section 140 Issue of search warrant--suspected drug premises
Omit section 140 (1). Insert instead:
(1) A police officer who is in charge of an investigation into the
suspected use of premises as drug premises may apply to an
authorised officer for a search warrant in respect of the premises
if the officer has reasonable grounds for believing that the
premises are being used for the unlawful supply or manufacture
of any prohibited drug or the unlawful cultivation of prohibited
plants by enhanced indoor means.
[34] Section 142 Search and arrest of persons pursuant to search warrant
Omit "require" from section 142 (1) (e). Insert instead "request".
Page 9
Police Powers Legislation Amendment Bill 2006
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
[35] Section 198 Requirements relating to direction
Omit section 198 (2).
[36] Section 201 Supplying police officer's details and giving warnings
Omit section 201 (1) (d).
[37] Section 201 (2A)
Insert ", except as otherwise provided by subsection (2B)" after "the power".
[38] Section 201 (2B) and (2C)
Insert after section 201 (2A):
(2B) If a police officer is exercising a power to give a direction to a
person (as referred to in subsection (3) (i)) by giving the direction
to a group of 2 or more persons, the police officer must comply
with subsection (1) in relation to the power:
(a) if it is practicable to do so, before or at the time of
exercising the power, or
(b) if it is not practicable to do so, as soon as is reasonably
practicable after exercising the power.
(2C) If a police officer exercises a power that involves the making of
a request or direction that a person is required to comply with by
law, the police officer must, as soon as is reasonably practicable
after making the request or direction, provide the person the
subject of the request or direction with:
(a) a warning that the person is required by law to comply with
the request or direction (unless the person has already
complied or is in the process of complying), and
(b) if the person does not comply with the request or direction
after being given that warning, and the police officer
believes that the failure to comply by the person is an
offence, a warning that the failure to comply with the
request or direction is an offence.
[39] Section 201 (3) (j) and (k)
Omit section 201 (3) (j). Insert instead:
(j) a power under section 21A to request a person to open his
or her mouth or shake or move his or her hair,
(k) a power under section 26 to request a person to submit to a
frisk search or to produce a dangerous implement or
metallic object.
Page 10
Police Powers Legislation Amendment Bill 2006
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
[40] Section 201 (3A)
Insert after section 201 (3):
(3A) If a police officer is exercising more than one power to which this
section applies on a single occasion, and in relation to the same
person, the police officer is required to comply with subsection
(1) (a) and (b) in relation to that person only once on that
occasion.
[41] Section 201 (4)
Omit the subsection. Insert instead:
(4) If 2 or more police officers are exercising a power to which this
section applies, only one officer present is required to comply
with this section.
[42] Section 201 (6)
Insert after section 201 (5):
(6) This section does not apply to the exercise of a power that is
conferred by an Act or regulation specified in Schedule 1.
Note. See section 5 (1), which provides that this Act does not limit the
functions of a police officer under an Act or regulation specified in
Schedule 1.
[43] Section 209 Records
Insert after section 209 (3):
(4) This section does not require a person to make a record of a
matter in relation to the detention or search of an intoxicated
person, if another person has already made a record of that matter
as required by this section.
[44] Section 242 Monitoring of operation of certain provisions of Act by
Ombudsman
Insert "or any public authority" after "the Commissioner" in section 242 (2).
[45] Section 243 Review of Act
Omit section 243 (2). Insert instead:
(2) The review is to be carried out (and is taken to have always been
required to be carried out) as soon as possible after the period of
3 years from 1 December 2005.
Note. 1 December 2005 is the date on which this Act, other than Part 8A,
commenced.
Page 11
Police Powers Legislation Amendment Bill 2006
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
[46] Schedule 5 Savings and transitional provisions
Insert at the end of clause 1 (1):
Police Powers Legislation Amendment Act 2006
[47] Schedule 5, Part 4
Insert at the end of the Schedule:
Part 4 Provisions consequent on enactment of
Police Powers Legislation Amendment Act
2006
9 Destruction of finger-prints and palm-prints
(1) Section 137A, as inserted by the Police Powers Legislation
Amendment Act 2006, extends to finger-prints and palm-prints
taken before the commencement of that section.
(2) In section 138A (3), a reference to finger-prints and palm-prints
taken under section 138A includes a reference to finger-prints
and palm-prints taken under section 353AC of the Crimes Act
1900 before that section was transferred to this Act.
Page 12
Police Powers Legislation Amendment Bill 2006
Amendment of Police Powers (Drug Detection in Border Areas Trial) Schedule 2
Act 2003
Schedule 2 Amendment of Police Powers (Drug
Detection in Border Areas Trial) Act 2003
(Section 4)
[1] Section 1 Name of Act
Omit "in Border Areas".
[2] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
authorisation means an authorisation granted and in force under
Part 2.
designated officer has the meaning given by section 4.
outer metropolitan area means any land within this State that is
located outside the metropolitan area of the State (with the
metropolitan area of the State being the area to the east of the
State bounded by, and including, the local government areas of
Newcastle City, Lake Macquarie City, Wyong, Gosford City,
Hawkesbury City, Blue Mountains City, Penrith City, Liverpool
City, Camden, Campbelltown City, Wollongong City and
Shellharbour City).
[3] Section 3 (1), definitions of "border area", "drug detection warrant",
"eligible Judge" and "Judge"
Omit the definitions.
[4] Section 3 (1), definition of "search area"
Omit "a drug detection warrant". Insert instead "an authorisation".
[5] Section 4
Omit the section. Insert instead:
4 Designated officer
(1) For the purposes of this Act, a designated officer means:
(a) the Commissioner of Police, or
(b) a Deputy Commissioner of Police, or
(c) an Assistant Commissioner of Police, or
(d) a police officer authorised by the Commissioner of Police
to exercise the functions of a designated officer under this
Act.
Page 13
Police Powers Legislation Amendment Bill 2006
Schedule 2 Amendment of Police Powers (Drug Detection in Border Areas Trial)
Act 2003
(2) No more than 2 police officers may be authorised by the
Commissioner of Police at any one time to exercise the functions
of a designated officer under this Act.
(3) Any police officer so authorised must be a police officer of or
above the rank of Superintendent.
[6] Part 2, heading
Omit "in border areas".
[7] Sections 58
Omit the sections. Insert instead:
5 Authorisation to exercise powers conferred by Act
(1) A designated officer may, on application made by a police officer
in accordance with this Act, grant an authorisation that authorises
the exercise of the powers conferred by this Act in connection
with a drug detection operation.
(2) In this section, a drug detection operation means an operation
carried out for the purposes of obtaining evidence of, or
frustrating, any criminal activity involving the supply of
prohibited drugs or prohibited plants, or for the purposes of
arresting any person involved in any such criminal activity, or for
any combination of those purposes.
6 Application for authorisation
(1) A police officer who suspects on reasonable grounds that any part
or all of an area is being, or is to be, used on a regular basis for or
in connection with the supply of indictable quantities of
prohibited drugs or prohibited plants may apply to a designated
officer for an authorisation.
(2) An application for an authorisation is to be made in writing and
contain the following particulars:
(a) a statement identifying the search area for the proposed
authorisation,
(b) the grounds on which the authorisation is sought,
(c) a plan of the operation proposed to be carried out,
including the number of officers and dogs proposed to be
used,
(d) a statement setting out the consultation that has taken place
with the Roads and Traffic Authority,
Page 14
Police Powers Legislation Amendment Bill 2006
Amendment of Police Powers (Drug Detection in Border Areas Trial) Schedule 2
Act 2003
(e) a statement as to whether the proposed search area has
been the subject of any other application for an
authorisation within the last 12 months and, if so, whether
the application was granted,
(f) a statement outlining the results of any operation carried
out pursuant to an authorisation in the proposed search
area within the last 12 months,
(g) the proposed expiry date for the authorisation,
(h) any other particulars prescribed by the regulations.
(3) The designated officer to whom the application is made may
require the applicant to provide such additional information
concerning the application as is necessary for the designated
officer's proper consideration of the application.
7 Restrictions on search areas
The search area for which an authorisation is granted must
consist of not more than 3 areas, each of which must:
(a) be located in an outer metropolitan area, and
(b) be not more than 5 square kilometres in area.
8 Grant of authorisation
(1) A designated officer to whom an application for an authorisation
is made may grant the authorisation only if satisfied that:
(a) there are reasonable grounds for suspecting that any part or
all of the search area proposed for the authorisation is
being, or is to be, used on a regular basis for or in
connection with the supply of indictable quantities of
prohibited drugs or prohibited plants, and
(b) the nature and extent of the operation proposed to be
carried out is appropriate to the suspected criminal
activity, and
(c) the application has been made in accordance with this Part,
and
(d) the proposed search area complies with this Part.
(2) In considering the matters referred to in subsection (1) (a) and
(b), the designated officer is to have regard to the following:
(a) the reliability of any information on which the application
is based,
Page 15
Police Powers Legislation Amendment Bill 2006
Schedule 2 Amendment of Police Powers (Drug Detection in Border Areas Trial)
Act 2003
(b) the likelihood of success of the proposed operation
compared with the likelihood of success of any other law
enforcement operation that it would be reasonably
practicable to conduct for the same purposes.
(3) The authorisation may be granted unconditionally or subject to
conditions.
(4) An authorisation is to be in the form (if any) prescribed by the
regulations.
(5) If a designated officer grants an authorisation, the designated
officer is to make a record of the reasons for which the designated
officer was satisfied of the matters referred to subsection (1) (a)
and (b).
(6) If an application for an authorisation is refused by a designated
officer, the police officer who made the application (and any
other police officer who is aware of the application) may not
make a further application for the same authorisation to that
designated officer or any other designated officer unless the
further application provides additional information that justifies
the making of a further application.
[8] Section 9 Functions under authorisation
Omit "A police officer who is executing a drug detection warrant may" from
section 9 (1).
Insert instead "A police officer may, in accordance with an authorisation,".
[9] Section 9 (1) (a)
Omit the paragraph. Insert instead:
(a) establish one or more check points,
[10] Section 9 (2)
Omit "the drug detection warrant". Insert instead "the authorisation".
[11] Section 9 (3) (d)
Omit the paragraph.
Page 16
Police Powers Legislation Amendment Bill 2006
Amendment of Police Powers (Drug Detection in Border Areas Trial) Schedule 2
Act 2003
[12] Section 9 (4)
Insert after section 9 (3):
(4) If a police officer exercises a function under this Act that involves
making a request that a person is required to comply with by law,
the police officer must, as soon as is reasonably practicable after
making the request, provide the person the subject of the request
with:
(a) a warning that the person is required by law to comply with
the request (unless the person has already complied or is in
the process of complying), and
(b) if the person does not comply with the request after being
given that warning, and the police officer believes that the
failure to comply by the person is an offence, a warning
that the failure to comply with the request is an offence.
[13] Section 10
Omit the section. Insert instead:
10 Check points
(1) A police officer may, at any time during the period in which an
authorisation remains in force, remove a check point from one
location and re-establish it at any other location in the search
area.
(2) A police officer who establishes a check point must ensure that
adequate measures are taken to ensure the safety of persons and
vehicles approaching the check point.
[14] Sections 11 (2) and (3), 12 (1) and 13
Omit "a drug detection warrant" wherever occurring.
Insert instead "an authorisation".
[15] Sections 14, 15, 15A and 15B
Omit sections 14 and 15. Insert instead:
14 Duration of authorisation
(1) An authorisation has effect, unless sooner revoked, during the
period beginning at the time it is given and ending at a time
specified in the authorisation by the designated officer who
grants the authorisation.
(2) The period during which an authorisation has effect must not
exceed 14 days, beginning with the day on which it is granted.
Page 17
Police Powers Legislation Amendment Bill 2006
Schedule 2 Amendment of Police Powers (Drug Detection in Border Areas Trial)
Act 2003
(3) An authorisation cannot be extended but a further authorisation
may be granted for the same or part of the same area.
15 Revocation of authorisation
(1) The police officer who gives an authorisation, or a designated
officer of a more senior rank, may revoke an authorisation at any
time.
(2) A revocation of an authorisation does not affect anything
lawfully done in reliance on the authorisation before it ceased to
have effect.
15A Defects in authorisations
An application for an authorisation, and any authorisation
granted on the basis of such an application, is not invalidated by
any procedural defect, other than a defect that affects the
substance of the application or authorisation in a material
particular.
15B Report on conduct of operation
Within 14 days after the expiry of an authorisation, the police
officer to whom the authorisation was granted must cause a
report to be given to the designated officer who granted the
authorisation:
(a) stating whether or not the operation proposed to be carried
out under the authorisation was carried out, and
(b) if the operation was carried out--setting out briefly the
result of the operation (including a brief description of
anything seized), and
(c) if the operation was not carried out--setting out briefly the
reasons why the operation was not carried out, and
(d) containing such other particulars as may be prescribed by
the regulations.
[16] Section 16 Offences relating to authorisations
Omit "a person executing or assisting in the execution of a drug detection
warrant" from section 16 (1).
Insert instead "a person exercising functions under an authorisation".
Page 18
Police Powers Legislation Amendment Bill 2006
Amendment of Police Powers (Drug Detection in Border Areas Trial) Schedule 2
Act 2003
[17] Section 17 Search records to be kept
Omit "drug detection warrants obtained" and "such warrant" from section
17 (1).
Insert instead "authorisations granted" and "such authorisation" respectively.
[18] Section 18 Search warrants and other powers not affected
Omit "Search Warrants Act 1985" from section 18 (1) (a).
Insert instead "Law Enforcement (Powers and Responsibilities) Act 2002".
[19] Section 18A
Insert after section 18:
18A Use of assistants
The functions conferred on a police officer under this Act may be
exercised by the police officer with the aid of such assistants as
the police officer considers necessary, subject to any conditions
of the relevant authorisation.
[20] Section 22 Monitoring of operation of Act by Ombudsman
Omit "9 months from the date of commencement of this section" from section
22 (1).
Insert instead "12 months from the date of commencement of Schedule 2 [1]
to the Police Powers Legislation Amendment Act 2006".
[21] Section 22 (2)
Omit the subsection. Insert instead:
(2) For that purpose, the Ombudsman may:
(a) require the Commissioner of Police or any public authority
to provide information about the exercise of those
functions, and
(b) inspect the records of NSW Police at any time.
[22] Section 22 (3) and (4)
Omit "9-month period" wherever occurring. Insert instead "12-month period".
Page 19
Police Powers Legislation Amendment Bill 2006
Schedule 2 Amendment of Police Powers (Drug Detection in Border Areas Trial)
Act 2003
[23] Section 23
Omit the section. Insert instead:
23 Revival and expiry of Act
(1) On the commencement of Schedule 2 [23] to the Police Powers
Legislation Amendment Act 2006 this Act is revived.
(2) This Act expires on the day that is 18 months after the revival of
this Act.
[24] Long title
Omit "border areas". Insert instead "outer metropolitan areas".
Page 20
Police Powers Legislation Amendment Bill 2006
Amendment of Terrorism (Police Powers) Act 2002 Schedule 3
Schedule 3 Amendment of Terrorism (Police
Powers) Act 2002
(Section 5)
[1] Section 8 Who may give an authorisation
Insert after section 8 (2):
(3) In giving an authorisation, the Commissioner of Police, Deputy
Commissioner of Police or other police officer is to be satisfied
that the nature and extent of the powers to be conferred by the
authorisation are appropriate to the threatened or suspected
terrorist act.
[2] Section 14 Exercise of special powers conferred by authorisation by
police officers
Omit section 14 (2). Insert instead:
(2) A police officer may exercise those powers whether or not the
officer has been provided with a copy of the authorisation or
notified of all the terms of the authorisation.
[3] Section 17 Power to search persons
Omit section 17 (3). Insert instead:
(3) A police officer must not detain a person for any longer than is
reasonably necessary for the purpose of conducting a search
under this section.
[4] Section 18 Power to search vehicles
Omit section 18 (2). Insert instead:
(2) A police officer must not detain a vehicle for any longer than is
reasonably necessary for the purpose of conducting a search
under this section.
[5] Section 23 Supplying police officer's details and other information
Omit "if requested to do so" from section 23 (1).
Page 21
Police Powers Legislation Amendment Bill 2006
Schedule 3 Amendment of Terrorism (Police Powers) Act 2002
[6] Section 23 (3)(5)
Insert after section 23 (2):
(3) If a police officer exercises a power that involves the making of
a request that a person is required to comply with by law, the
police officer must, as soon as is reasonably practicable after
making the request, provide the person the subject of the request
with:
(a) a warning that the person is required by law to comply with
the request (unless the person has already complied or is in
the process of complying), and
(b) if the person does not comply with the request after being
given that warning, and the police officer believes that the
failure to comply by the person is an offence, a warning
that the failure to comply with the request is an offence.
(4) If a police officer is exercising more than one power to which this
section applies on a single occasion, and in relation to the same
person, the police officer is required to comply with subsection
(1) (a) and (b) in relation to that person only once on that
occasion.
(5) If 2 or more police officers are exercising a power to which this
section applies, only one officer present is required to comply
with this section.
[7] Section 27O Powers conferred by covert search warrant
Insert at the end of section 27O (1) (l):
, and
(m) to do anything else that is reasonable for the purpose of
concealing anything done in the execution of the warrant
from the occupier of the premises.
[8] Section 36 Review of Act
Omit "every 12 months thereafter" from section 36 (2).
Insert instead "every 24 months thereafter".
Page 22
Police Powers Legislation Amendment Bill 2006
Amendment of other Acts and regulation Schedule 4
Schedule 4 Amendment of other Acts and regulation
(Section 6)
4.1 Crimes Act 1900 No 40
[1] Part 10 Arrest of offenders
Omit the Part.
Transfer sections 353AC, 353AD and 353AE to the Law Enforcement
(Powers and Responsibilities) Act 2002 as sections 138A, 138B and 138C,
respectively, in Division 3 of Part 10 of that Act (as inserted by this Act).
Renumber section 353B as section 547D in Division 2 of Part 14A.
Transfer section 353C to the Law Enforcement (Powers and Responsibilities)
Act 2002 as section 104A of that Act.
[2] Section 547D (as renumbered by Schedule 4.1 [1])
Omit "justice before whom the person is brought". Insert instead "court".
4.2 Crimes (Forensic Procedures) Act 2000 No 59
Section 112 Relationship with Part 10 of the Law Enforcement (Powers
and Responsibilities) Act 2002 and other Acts
Omit "section 353AC or 353AD of the Crimes Act 1900" from section 112 (d).
Insert instead "section 138A or 138B of the Law Enforcement (Powers and
Responsibilities) Act 2002."
4.3 Criminal Procedure Act 1986 No 209
[1] Section 334 Penalty notices
Omit "must be served personally" from section 334 (2).
Insert instead "may be served personally or by post".
[2] Section 340 Withdrawal of penalty notice
Omit section 340 (1). Insert instead:
(1) A senior police officer may at any time withdraw a penalty notice
issued by a police officer under this Part.
Page 23
Police Powers Legislation Amendment Bill 2006
Schedule 4 Amendment of other Acts and regulation
[3] Section 340 (3) (b1) and (b2)
Insert after section 340 (3) (b):
(b1) Any subsequent action already taken in relation to the
notice, including any enforcement action, is to be reversed.
(b2) Any costs relating to that subsequent action are not
payable and, if paid, are repayable.
[4] Section 340 (3) (c)
Insert ", subject to any time limit within which such proceedings are required
to be commenced," after "may".
[5] Section 344 Monitoring of Part by Ombudsman
Omit "sections 353AC and 353AE (in so far as it relates to the exercise of
powers under section 353AC) of the Crimes Act 1900" from section 344 (1).
Insert instead "sections 138A and 138C (in so far as it relates to the exercise
of powers under section 138A) of the Law Enforcement (Powers and
Responsibilities) Act 2002".
[6] Section 344A
Insert after section 344:
344A Further review by Ombudsman--Aboriginal and Torres Strait
Islander communities
(1) The Ombudsman is to review the operation of the provisions of:
(a) this Part, and
(b) the regulations made under this Part, and
(c) sections 138A and 138C (in so far as it relates to the
exercise of powers under section 138A) of the Law
Enforcement (Powers and Responsibilities) Act 2002,
in so far as those provisions impact on Aboriginal and Torres
Strait Islander communities.
(2) For the purposes of carrying out any such review, the
Ombudsman may require the Commissioner of Police or any
public authority to provide information about police or the public
authority's participation in the operations of the provisions
referred to in subsection (1).
(3) A report in relation to the review is to be provided to the Minister
and the Minister for Police by 30 November 2008.
Page 24
Police Powers Legislation Amendment Bill 2006
Amendment of other Acts and regulation Schedule 4
(4) The Minister is to lay (or cause to be laid) a copy of the report
provided to the Minister under this section before both Houses of
Parliament as soon as practicable after the Minister receives the
report.
(5) If a House of Parliament is not sitting when the Minister seeks to
lay a report before it, the Minister may present copies of the
report to the Clerk of the House concerned.
(6) The report:
(a) on presentation and for all purposes is taken to have been
laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if printed by authority of the Clerk, is for all purposes taken
to be a document published by or under the authority of the
House, and
(d) is to be recorded:
(i) in the case of the Legislative Council, in the Minutes
of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly, in the Votes
and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the
report by the Clerk.
Page 25
Police Powers Legislation Amendment Bill 2006
Schedule 4 Amendment of other Acts and regulation
4.4 Criminal Procedure Regulation 2005
[1] Clauses 11 and 12
Omit "31 December 2006" wherever occurring.
Insert instead "30 April 2007".
[2] Schedule 2 Penalty notice offences
Omit the matter relating to section 61 of the Crimes Act 1900 in the table to
the Schedule.
Page 26
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