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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.The Industrial and Other Legislation Amendment (APEC Public Holiday) Bill 2007
is cognate with this Bill.
Overview of Bill
The objects of this Bill are:
(a) to confer special powers on police officers with respect to the provision of
security for any meeting (an APEC meeting) that forms part of the series of
meetings of the members of the Asia-Pacific Economic Cooperation group of
economies in Sydney, and
(b) to amend the Evidence (Audio and Audio Visual Links) Act 1998 to allow first
bail appearances to be made by audio visual link if the bail proceedings relate
to an offence alleged to have been committed in metropolitan Sydney during
the period commencing at the beginning of 20 August 2007 and ending at the
end of 28 September 2007, and
(c) to amend the Law Enforcement (Powers and Responsibilities) Act 2002:(i) to make provision for matters of a savings or transitional nature
consequent on the enactment and repeal of the proposed Act, and
Explanatory note page 2
APEC Meeting (Police Powers) Bill 2007
Explanatory note
(ii) to require the Commissioner of Police to report to the Attorney General
and the Minister for Police on the operation of the proposed Act, and
(iii) to require the Attorney General and the Minister for Police to report to
Parliament on the operation of the proposed Act, and
(d) to amend the Subordinate Legislation Act 1989 to provide for regulations
made under the proposed Act to be excluded instruments for the purposes of
that Act, and
(e) to amend the Terrorism Legislation Amendment (Warrants) Act 2005 to
postpone the repeal of Part 6B (Terrorism) of the Crimes Act 1900 to 13
September 2008 (being the third anniversary of its commencement) and to
make a consequential amendment to the Crimes Act 1900, and
(f) to amend the Weapons Prohibition Act 1998 to include in the list of prohibited
weapons for the purposes of that Act certain articles or devices (such as
caltrops) that are capable of puncturing the feet, paws or hooves of animals as
they pass over them.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.Clause 3 defines certain words and expressions used in the proposed Act.
In particular, the APEC period is defined to mean the period:
(a) commencing at the beginning of 30 August 2007, and
(b) ending at the end of 12 September 2007.Also, the term metropolitan Sydney is defined to mean the local government areas
listed in proposed Schedule 1, and includes any part of the waters of Port Jackson
(including Sydney Harbour) and its foreshore.Clause 4 provides that the proposed Act is to bind the Crown.
Part 2 APEC security areas
Clause 5 defines an APEC security area to mean any of the following:
(a) any area that forms part of the declared areas (other than a restricted area),
(b) any restricted area.Clause 6 defines the declared areas to mean:
(a) the areas described in proposed Schedule 2 (the core declared areas), and
Explanatory note page 3
APEC Meeting (Police Powers) Bill 2007
Explanatory note
(b) any area that is designated to be an additional declared area by an order under
the proposed section (an additional declared area).The proposed section enables the Minister for Police to designate an area within
metropolitan Sydney to be an additional declared area by order published in the
Gazette if:
(a) the Commissioner of Police has recommended to the Minister that the order be
made, and
(b) the Minister is satisfied that the designation of the area will substantially assist
in promoting the security or safety of an APEC meeting, its participants or the
public or in preventing or controlling a public disorder, and
(c) the Minister has consulted with such other Ministers as the Minister considers
relevant about the proposed addition of the area.Clause 7 defines a restricted area to mean any area that is designated as being a
restricted area by an order under the proposed section. The Commissioner of Police
may, by written order, designate any area within the declared areas to be a restricted
area if the Commissioner is satisfied that:
(a) the area is being or will be used directly for or in relation to an event, or the
administration, of an APEC meeting, and
(b) the exercise of the special powers conferred by the proposed Act in relation to
restricted areas is necessary to promote the security or safety of the venues or
facilities for an APEC meeting or participants in the meeting.Clause 8 prevents the validity of an order or purported order under proposed section
6 or 7 from being challenged in any court or legal proceedings including an
investigation into police or other conduct under any Act (other than an investigation
under the Police Integrity Commission Act 1996).Part 3 Special powers in relation to APEC security
areas
Division 1 Application of Part
Clause 9 provides that the powers conferred by the proposed Part may be exercised
only during the APEC period in, or in relation to, an APEC security area.Division 2 Stop and search powers
Clause 10 enables a police officer to establish check points, cordons and roadblocks
in relation to an APEC security area.Clause 11 enables a police officer to stop and search vehicles or vessels seeking to
enter an APEC security area or that are in such an area.Clause 12 enables a police officer:
(a) to require a person seeking to enter an APEC security area to submit to a
search of the person as a condition of entry into the area, and
(b) to search a person who is in an APEC security area.Division 3 Surrender and seizure of prohibited items
Clause 13 enables a police officer:
(a) to require a person that the officer reasonably suspects to be in possession or
have control of a prohibited item without special justification to surrender the
item to the officer as a condition of entry into an APEC security area, and
(b) to seize and detain in an APEC security area all or part of a thing that the
officer reasonably suspects to be a prohibited item that is in the possession or
control of a person without special justification.The term prohibited item is defined in proposed section 3 (1) to mean any of the
following:
(a) spray paint cans,
(b) chains,
(c) handcuffs or other devices capable of being used to lock persons to other
persons or things,
(d) poles that are more than 1 metre in length,
(e) marbles, ball-bearings or other similar spherical items,
(f) smoke devices,
(g) flares,
(h) flammable or noxious liquids or substances,
(i) laser pointers,
(j) devices that are capable of being used to interfere with broadcast or
communication devices,
(k) any other things (or things belonging to a class of things) prescribed by the
regulations.The proposed section provides that if an item is not returned within the period of 24
hours after its surrender or seizure, it is forfeited to the Crown.Division 4 Directions
Clause 14 enables a police officer to give reasonable directions to any person, or
group of persons assembled, in an APEC security area for the purpose of assisting in
promoting the security or safety of an APEC meeting, its participants or the public or
in preventing or controlling a public disorder.Division 5 Road closures
Clause 15 enables a police officer, at the direction of the Commissioner of Police, to
close a road without public notice during the APEC period. A road may only be
closed for specified purposes in connection with events, venues or facilities for an
APEC meeting.Clause 16 provides that any road closures are to be for periods no longer than is
necessary to serve the relevant purpose.Clause 17 provides that:
(a) unauthorised persons or vehicles may not use a road closed under the proposed
Division, and
(b) a road does not cease to be a road for the purposes of any law while it is closed
under the proposed Division.Clause 18 enables a police officer to remove, or to direct an authorised officer
(within the meaning of section 76 of the Road Transport (Safety and Traffic
Management) Act 1999) to remove, a vehicle or other thing from a road that is closed
under the proposed Division.Part 4 Additional powers and other provisions in
relation to restricted areas
Division 1 Entry into restricted areas
Clause 19 makes it an offence for a person, without special justification, to enter any
restricted area or any part of a restricted area. The maximum penalty for such an
offence will be 6 months imprisonment or, if circumstances of aggravation exist, 2
years imprisonment.Circumstances of aggravation will exist in relation to the offence if (but only if):
(a) the person was in possession or had control of a prohibited item, and
(b) the person had no special justification to be in possession or have control of
the item.Proposed section 37 lists the circumstances in which a person will have special
justification.Division 2 Special powers in relation to restricted areas
Clause 20 provides that the powers conferred by the proposed Division may be
exercised only during the APEC period in, or in relation to, a restricted area.Clause 21 enables a police officer to search any premises (other than parts of
premises used for residential purposes) in a restricted area without a warrant.Clause 22 enables a police officer to request a person in (or seeking to enter) a
restricted area whose identity is unknown to the officer to disclose his or her identity
to the officer. The officer may also request the person to provide proof of his or her
identity.Clause 23 provides that any power conferred by the proposed Part in relation to a
restricted area is in addition to, and does not derogate from, any power conferred in
relation to such an area by proposed Part 3.Part 5 Exclusion and removal of persons from APEC
security areas
Clause 24 provides that certain persons (excludable persons) may be excluded from
APEC security areas. These persons include persons who have failed, without lawful
excuse or special justification, to comply with requirements made of the persons
under the proposed Act. Another category of excludable persons are persons who are
named in an excluded persons list prepared under proposed section 26.Clause 25 enables a police officer to exclude and remove persons from a restricted
area if they fail to comply with a request made of them under the proposed Act to
identify themselves. It also enables persons to be excluded from such an area if they
possess or have in their control prohibited items without special justification or if
they are in the area without special justification.Proposed section 37 lists the circumstances in which a person will have special
justification.Clause 26 enables the Commissioner of Police to prepare one or more lists of
persons that the Commissioner is satisfied are persons who would pose serious
threats to the safety of persons or property (or both) in an APEC security area during
the APEC period.Part 6 Recognised law enforcement officers
Clause 27 permits a member of the police force of another State or Territory or of
New Zealand or a member of the Australian Federal Police to be appointed as a
recognised law enforcement officer in relation to the proposed Act by the
Commissioner of Police or a Deputy Commissioner of Police. Recognised law
enforcement officers remain under the command and control of the police force to
which they belong during the term of their appointment.Clause 28 grants a recognised law enforcement officer the powers, immunities,
liabilities and responsibilities of a police officer of the rank of constable appointed
under the Police Act 1990.Part 7 Miscellaneous
Clause 29 enables the Governor to make regulations for the purposes of the
proposed Act.Clause 30 makes it an offence for a person, during the APEC period and in the
course of State air navigation, to cause an aircraft to enter, or operate an aircraft
within, restricted air space without an air traffic clearance given by or on behalf of
Airservices Australia under relevant Commonwealth law. The maximum penalty for
the offence will be $250,000.Clause 31 provides for a presumption against bail for any offence alleged to have
been committed in an APEC security area during the APEC period that involves:
(a) the assault of a police officer, or
(b) malicious damage to property, or
(c) throwing a missile at a police officer.Clause 32 permits a police officer and persons helping the officer to use reasonable
force in the exercise of a power under the proposed Act.Clause 33 makes it clear that a police officer may use a dog, horse or other animal in
the exercise of the officer’s functions in an APEC security area despite anything to
the contrary in the Sydney Opera House Trust By-law 2005 or the Sydney Harbour
Foreshore Authority Regulation 2006.Clause 34 enables the Commissioner of Police to delegate any of the
Commissioner’s functions under the proposed Act to a Deputy Commissioner of
Police. The proposed section also enables the Commissioner to delegate the
Commissioner’s functions under proposed section 15 to a police officer of or above
the rank of Superintendent.Clause 35 provides that anything done pursuant to the proposed Act or the
regulations does not constitute a nuisance.Clause 36 provides that nothing in the proposed Act limits a police officer’s powers
under any other Act and nothing in any other Act limits a police officer’s powers
under the proposed Act.Clause 37 provides for what constitutes special justification for the purposes of the
proposed Act.Clause 38 provides that the onus of proof of lawful excuse or special justification
(whether in proceedings for an offence against the proposed Act or in relation to the
exercise of powers conferred by the proposed Act) lies on the person accused of the
offence or who claims to have the lawful excuse or special justification (as the case
may be).Clause 39 provides for the way in which proceedings for offences against a
provision of the proposed Act are to be dealt with.Clause 40 is a formal provision that gives effect to the amendments to the Acts set
out in proposed Schedule 3.Clause 41 repeals the following on the day after the end of the APEC period
(namely, 13 September 2007):
(a) the proposed Act,
(b) any regulation or other instrument made under the proposed Act,
(c) item 31 of Schedule 4 to the Subordinate Legislation Act 1989 (which is to be
inserted in that Act by Schedule 3.4 to the proposed Act on the date of assent
to the proposed Act).Schedule 1 Metropolitan Sydney
Schedule 1 sets out the local government areas that form part of metropolitan
Sydney for the purposes of the definition of that term in proposed section 3.Schedule 2 Core declared areas
Schedule 2 describes the core declared areas for the purposes of the proposed Act.The Schedule also includes an indicative map of those areas.
Schedule 3 Amendment of Acts
Evidence (Audio and Audio Visual Links) Act 1998 No 105
Sections 5BB and 5BBA of the Evidence (Audio and Audio Visual Links) Act 1998
require an accused detainee to appear physically before a court on the detainee’s first
appearance before a court in bail proceedings, unless the court otherwise directs.Schedule 3.2 inserts a new section 22B in the Evidence (Audio and Audio Visual
Links) Act 1998 to allow such a first appearance to be made by audio visual link if
the bail proceedings relate to an offence alleged to have been committed in
metropolitan Sydney during the period commencing at the beginning of 20 August
2007 and ending at the end of 28 September 2007.Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Schedule 3.3 amends the Law Enforcement (Powers and Responsibilities) Act 2002:
(a) to make provision for matters of a savings or transitional nature consequent on
the enactment and repeal of the proposed Act, and
(b) to require the Commissioner of Police to report to the Attorney General and
the Minister for Police on the operation of the proposed Act within 3 months
after its repeal, and
(c) to require the Attorney General and the Minister for Police to report to
Parliament on the operation of the proposed Act within the period of 6 months
after its repeal.Subordinate Legislation Act 1989 No 146
Schedule 3.4 amends Schedule 4 to the Subordinate Legislation Act 1989 to provide
for regulations made under the proposed Act to be excluded instruments for the
purposes of that Act.Terrorism Legislation Amendment (Warrants) Act 2005 No 54
Schedule 3.5 amends section 2 of the Terrorism Legislation Amendment (Warrants)
Act 2005 to postpone the repeal of Part 6B (Terrorism) of the Crimes Act 1900 to 13
September 2008 (being the third anniversary of its commencement). The Part is
currently due to be repealed on the second anniversary of that commencement on 13
September 2007. Schedule 3.1 make a consequential amendment to the Crimes Act
1900.Weapons Prohibition Act 1998 No 127
Schedule 3.6 amends Schedule 1 to the Weapons Prohibition Act 1998 to include in
the list of prohibited weapons for the purposes of that Act certain articles or devices
(such as caltrops) that are capable of puncturing the feet, paws or hooves of animals
as they pass over them.
Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.