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(Police and Public Safety) Bill 1998
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
* Amended in committee--see table at end of volume.
The Bill also amends the Crimes Act 1900 to enable a police officer to
demand a person's name and residential address if the officer believes on
reasonable grounds that the person will be able to assist in the investigation
of an alleged indictable offence.
The Bill contains a consequential amendment to the Fines Act 1996.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Summary Offences Act 1988 set out in Schedule 1.
Clause 4 is a formal provision giving effect to the amendments to the
Crimes Act 1900 set out in Schedule 2.
Clause 5 is a formal provision giving effect to a consequential amendment
to the Fines Act 1996 contained in Schedule 3.
Clause 6 provides for the Ombudsman to monitor for a period of 12 months
the exercise of police powers conferred by the proposed amendments.
Clause 7 requires the Minister for Police to review the proposed Act after
one year to determine whether its policy objectives remain valid and to report
to Parliament on the review. The report will contain a report from the
Ombudsman under clause 6 on the work and activities of the Ombudsman
under that clause.
Schedule 1
Amendment of Summary Offences Act 1988
Offences relating to knives and other dangerous implements
Schedule 1 [3] inserts a new section 11C in the Summary Offences Act 1988
(the Principal Act) which makes it an offence for a person to have custody of
a knife in a public place or a school without a reasonable excuse. The onus of
proving that there is a reasonable excuse lies on the person having custody as
is the case for similar offences in the Principal Act. The offence carries a
maximum penalty of 5 penalty units (currently $550). The proposed section
specifies a number of situations in which a person is taken to have a
Explanatory note page 2
reasonable excuse for having custody of a knife (for example, for the
person's occupation or for the preparation of food) but does not limit any
other reasonable excuse that a person might have. However, self defence or
defence of another person is not taken to be a reasonable excuse for having
custody of a knife. The regulations may exclude classes of knives from the
operation of the proposed section.
Schedule 1 [l] contains a definition of knife.
Schedule 1 [2], [4]-[7] and [9] contain consequential amendments,
amendments separating Part 2 of the Principal Act into Divisions and
amendments relocating existing sections of the Principal Act into those new
Divisions.
Police powers for public protection in public places and
schools
Schedule 1 [ 8 ] inserts a new Part 5 in the Principal Act containing proposed
sections 28-28I.
Division 1
Interpretation
Proposed section 28 defines certain terms used in the proposed Part. In
particular, the term dangerous implement is defined and includes, among
other things, knives, firearms and prohibited weapons.
Division 2
Search powers
Proposed section 28A enables a police officer to conduct an electronic or
frisk search of a person and an examination of any bag or other personal
effect that the person has with him or her if the officer suspects on reasonable
grounds that the person has unlawful custody of a dangerous implement. A
police officer must first provide evidence that he or she is a police officer,
must provide his or her name and place of duty, must give the reason for the
search and must warn the person that failure to submit to the search may be
an offence. A person who refuses to submit to the search may be warned and
requested again. A person who refuses to submit to such a search after the
second warning and request, or refuses to produce things detected in the
search after having been requested, is guilty of an offence with a maximum
penalty of 5 penalty units (currently $550) unless the person has a reasonable
excuse for not doing so. The onus of proving that there is a reasonable excuse
lies on the person.
Explanatory note page 3
Division 3 Confiscation powers
Proposed sections 28B-28E enable a police officer to confiscate any thing
that the police officer reasonably suspects is a dangerous implement that is
unlawfully in a person's custody in a public place or a school. Unless the
confiscation of the thing is dealt with under other legislation or other
provisions of the Principal Act, the thing is to be dealt with in accordance
with the new provisions. If an application for the thing's return is made
within 28 days of the confiscation to the relevant Local Area Commander of
Police and return of the thing is refused, an appeal may be made to a Local
Court. which has power to determine how the thing is to be dealt with,
including, for example, ordering that the thing be returned or that it be
forfeited to the Crown.
A thing is forfeited to the Crown if application is not made for its return to
the relevant Local Area Commander of Police within 28 days of its
confiscation or if a Local Court makes an order to that effect on an appeal
against a decision not to return the thing. A forfeited thing may be disposed
of in accordance with the directions of the Commissioner of Police.
Division 4 Powers to give directions
Proposed section 28F enables a police officer to give reasonable directions
to a person in a public place whose behaviour or presence is obstructing
another person or traffic, constitutes harassment or intimidation of another
person or frightens or is likely to frighten another person (so long as it would
be likely to frighten a person of reasonable firmness). The other person need
not be in the same public place but must be near it at the relevant time. A
police officer must first provide evidence that he or she is a police officer,
must provide his or her name and place of duty, must state the reason for the
direction and must warn the person that failure to comply with the direction
may be an offence. A person who refuses to comply with the direction may
be warned and requested again. A person who refuses to comply with the
direction after the second warning and request is guilty of an offence with a
maximum penalty of 2 penalty units (currently $220) unless the person
ceases to engage in the conduct that gave rise to the direction or the person
has a reasonable excuse for not complying with the direction. The onus of
proving that there is a reasonable excuse lies on the person.
Proposed section 28G provides that the powers conferred on police officers
by proposed section 28F cannot be used in relation to industrial disputes or
organised assemblies, protests or processions.
Explanatory note page 4
Division 5
General
Proposed section 28H provides that evidence of a thing found during a
search under proposed section 28A is not inadmissible in proceedings merely
because it is a different type of thing to that for which the search was
conducted.
Proposed section 28I makes it clear that the new provisions do not limit any
other powers, authorities, duties or functions of police officers.
Schedule 1 [10] inserts a new section 29A in the Principal Act that enables
penalty notices to be issued for offences under proposed sections 11C
(Custody of knife in public place or school) and 28F (Power to give
reasonable directions in public places).
Schedule 2
Amendment of Crimes Act 1900
Power to demand name and address
Schedule 2 inserts a new section 563 in the Crimes Act 1900 that enables a
police officer to request a person's name and address if the police officer
believes on reasonable grounds that the person may be able to assist in the
investigation of an alleged indictable offence because the person was at or
near the place around the time that the alleged offence occurred. The police
officer must first provide evidence that he or she is a police officer, must
provide his or her name and place of duty, must give the reason for the
request and must warn the person that failure to comply with the request may
be an offence.
Schedule 3
Amendment of Fines Act 1996
Schedule 3 contains a consequential amendment to the Fines Act 1996.
Explanatory note page 5