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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Summary Offences Amendment
(Places of Detention) Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Summary Offences Act 1988 No 25 2
Schedule 1 Amendments 3
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, , 2002
New South Wales
Summary Offences Amendment
(Places of Detention) Bill 2002
Act No , 2002
An Act to amend the Summary Offences Act 1988 with respect to powers of
correctional officers to stop, detain and search persons or vehicles at places of
detention; and for other purposes.
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 Summary Offences Amendment (Places of Detention) Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Summary Offences Amendment (Places of Detention)
Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Summary Offences Act 1988 No 25
The Summary Offences Act 1988 is amended as set out in Schedule 1.
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Summary Offences Amendment (Places of Detention) Bill 2002
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 27A Definitions
Insert in alphabetical order:
adult means a person who is of or above the age of 18 years.
child means a person who is under the age of 18 years.
mentally incapacitated person means a person who is
incapable of managing his or her affairs.
non-correctional member of staff means:
(a) a person employed in the Department of Corrective
Services, or
(b) a person employed at a managed correctional centre
(within the meaning of the Crimes (Administration of
Sentences) Act 1999),
but does not include a correctional officer.
search observation staff member means a non-correctional
member of staff (or member of a class of such persons)
prescribed by the regulations for the purposes of this definition.
[2] Section 27B Trafficking
Omit section 27B (6).
[3] Section 27C Introduction or supply of syringes
Omit section 27C (4).
[4] Section 27D Unlawful possession of offensive weapons or instruments
Omit section 27D (2A).
[5] Section 27E Miscellaneous offences
Omit section 27E (3).
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Summary Offences Amendment (Places of Detention) Bill 2002
Schedule 1 Amendments
[6] Section 27F Time within which proceedings may be taken
Renumber section 27F as section 27O.
[7] Sections 27F27N
Insert after section 27E:
27F Powers of correctional officers
(1) Power to stop, detain and search persons
A correctional officer may stop, detain and search a person, and
anything in the possession of or under the control of a person,
if:
(a) the person is in or in the immediate vicinity of a place
of detention, and
(b) the correctional officer suspects on reasonable grounds
that the person has in his or her possession or under his
or her control anything that has been used, is being used
or is intended to be used in or in connection with the
commission of an offence under this Part.
(2) Power to stop, detain and search vehicles
A correctional officer may stop, detain and search a vehicle that
is in or in the immediate vicinity of a place of detention if the
correctional officer suspects on reasonable grounds that:
(a) the vehicle contains anything that has been used, is
being used or is intended to be used in or in connection
with the commission of an offence under this Part, or
(b) the vehicle has been used, is being used or is intended
to be used in or in connection with the commission of
an offence under this Part.
(3) Power to detain for purpose of search by police
A correctional officer who stops and detains a person or a
vehicle under this section (whether or not the correctional
officer searches the person or vehicle) may request a police
officer to conduct a search or a further search of the person or
vehicle, and may detain the person or vehicle while waiting for
the arrival of a police officer at the place where the person or
vehicle is being detained for the police officer to conduct the
search.
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Summary Offences Amendment (Places of Detention) Bill 2002
Amendments Schedule 1
(4) Request to police to be made as soon as practicable
A request to a police officer under subsection (3) must be made
as soon as practicable after the correctional officer stops and
detains the person or vehicle, or searches the person or vehicle.
(5) Power of correctional officer to seize things
A correctional officer may seize all or part of a thing that the
correctional officer suspects on reasonable grounds may
provide evidence of the commission of an offence under this
Part found as a result of a search under this section.
(6) Power to arrest
In respect of any offence under this Part, the powers of arrest
of a police officer may be exercised by a correctional officer.
(7) Arrested person to be taken to police or to authorised justice
A correctional officer who arrests a person under this section
must, as soon as practicable, take the person, and any property
found on the person:
(a) to a police officer, or
(b) before an authorised justice to be dealt with according
to law.
(8) Nothing in this section prevents the powers that may be
exercised in relation to a person from being exercised in
relation to a correctional officer.
27G Conduct of search
(1) A correctional officer, in conducting a search under
section 27F, may direct a person to do any or all of the
following:
(a) to submit to scanning by means of an electronic
scanning device,
(b) to empty the pockets of the person's clothing,
(c) to remove any hat, gloves, coat, jacket or shoes worn by
the person,
(d) to empty the contents of any bag or other thing, or to
open any thing, that the person has with him or her, or
has left in a vehicle,
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Summary Offences Amendment (Places of Detention) Bill 2002
Schedule 1 Amendments
(e) in the case of a visitor to the place of detention--to
make available for inspection and search any item stored
in a storage facility allocated to the visitor,
(f) in the case of a correctional officer or a non-correctional
member of staff--to make available for inspection and
search any room or locker that is under the officer's or
member of staff's control at the place of detention,
(g) in the case of an adult accompanying a child or a
mentally incapacitated person--to assist the child or
mentally incapacitated person to co-operate with a
search.
(2) A correctional officer, in conducting a search under
section 27F, may direct a person to produce:
(a) anything that the correctional officer has detected or
seen during the search on or with the person, or in a
vehicle in which the person is or was present, and has
reasonable grounds to suspect may provide evidence of
the commission of an offence under this Part, or
(b) anything detected during the search by an electronic
detection device, or
(c) anything indicated by a dog reacting positively to its
presence.
(3) In conducting a search of a person under section 27F, a
correctional officer:
(a) must conduct the search with due regard to dignity and
self-respect and in as seemly a manner as is consistent
with the conduct of an effective search, and
(b) must not direct a person to remove any item of clothing
being worn by the person, other than a hat, gloves, coat,
jacket or shoes, and
(c) must not search a person by running the officer's hands
over the person's clothing.
(4) A search of a person conducted by a correctional officer under
section 27F must, if practicable, be conducted by a correctional
officer of the same sex as the person being searched or by a
person of the same sex (being a non-correctional member of
staff) under the direction of the correctional officer concerned.
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Summary Offences Amendment (Places of Detention) Bill 2002
Amendments Schedule 1
(5) A search of a child or of a mentally incapacitated person must
be conducted in the presence of:
(a) an adult who accompanied the child or the mentally
incapacitated person to the place of detention (or its
immediate vicinity), or
(b) if there is no such adult--a search observation member
of staff.
(6) Regulations may be made for or with respect to the manner in
which correctional officers are to conduct searches under
section 27F.
27H Use of dogs
(1) A correctional officer is authorised to use a dog to conduct any
search under section 27F.
(2) A correctional officer using a dog to conduct such a search is
to take all reasonable precautions to prevent the dog touching
a person.
(3) A correctional officer is required to keep a dog under control
when the officer is using the dog to conduct such a search.
27I Use of reasonable force
In exercising a function under this Part, a correctional officer
may use such force as is reasonably necessary to exercise the
function.
27J Safeguards
(1) A correctional officer who detains a person in the exercise of
a power under section 27F must not detain the person any
longer than is reasonably necessary for the purpose, and in any
event for no longer than 4 hours.
(2) A correctional officer must, before exercising a power to
detain, search or arrest a person under section 27F, or as soon
as is reasonably practicable after exercising the power, provide
the person subject to the exercise of the power with the
following:
(a) evidence that the correctional officer is a correctional
officer (unless the correctional officer is in uniform),
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Summary Offences Amendment (Places of Detention) Bill 2002
Schedule 1 Amendments
(b) the name of the correctional officer,
(c) the reason for the exercise of the power,
(d) a warning that failure or refusal to comply with a
request or direction of the correctional officer, in the
exercise of the power, is an offence.
(3) Subsection (2) extends to a direction given by a correctional
officer to a person in the exercise of a power to stop, detain and
search a vehicle.
(4) A correctional officer is not required to comply with
subsection (2) if the correctional officer believes on reasonable
grounds that:
(a) the circumstances are of such urgency that complying
with subsection (2) would render a search ineffective, or
(b) it is not reasonably possible to comply with
subsection (2).
27K Failure to comply with search
A person must not, without reasonable excuse (proof of which
lies on the person):
(a) fail or refuse to comply with a request made, or a
direction given, by a correctional officer under this Part,
or
(b) fail or refuse to produce anything detected or seen on or
with the person, or in a vehicle in which the person was
present at the time the thing was detected or seen, in a
search when requested to do so by a correctional officer,
or
(c) resist or impede a search of a person or vehicle under
this Part.
Maximum penalty: 10 penalty units.
27L Part does not derogate from other powers
(1) Nothing in this Part limits any powers, authorities, duties or
functions that correctional officers or police officers may have
apart from this Part.
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Summary Offences Amendment (Places of Detention) Bill 2002
Amendments Schedule 1
(2) In particular, the fact that a police officer or correctional officer
conducts a search of a person under this Part does not prevent
the police officer or correctional officer from exercising,
whether during or after the search, any other powers of search
or seizure that the police officer or correctional officer may
have.
(3) Nothing in this Part limits any power under the Crimes
(Administration of Sentences) Act 1999 or any other law for a
person to conduct a search of an inmate, a correctional officer,
a non-correctional member of staff or any other person, or a
vehicle.
27M Admissibility of search evidence
Evidence of a thing discovered during or as a result of a search
carried out in accordance with this Part is not inadmissible
merely because the thing is different in nature from a thing
referred to in the reason given under section 27J (2) (c).
27N No personal liability for person conducting search under
direction of correctional officer
A search conducted by a person under and in accordance with
the direction of a correctional officer as referred to in section
27G (4) does not, if the search would be lawful if conducted by
a correctional officer, subject the person making the search
personally to any action, liability, claim or demand.
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