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Summary Offences and Control of
Weapons Acts Amendment Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
General
The Summary Offences and Control of Weapons Acts Amendment Bill 2009
will amend the Summary Offences Act 1966 and the Control of Weapons
Act 1990 to provide police with enhanced powers to address violence and
disorder, the carrying and use of weapons in public places and public
drunkenness.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which are to--
· amend the Control of Weapons Act 1990 to provide
police with enhanced powers to search for weapons; and
· amend the Summary Offences Act 1966 to increase the
penalties for offences relating to public drunkenness and
to allow those offences to be enforced by service of an
infringement notice. The Bill will create a new offence
of disorderly behaviour which may be enforced by
service of an infringement notice. The Bill will also
give police a new power, that may be exercised in a
public place, to direct a person, or a group of people, to
move on in particular circumstances.
Clause 2 provides for the commencement of the Bill. Each of the
provisions of the Bill will commence on the day after the day on
which the Bill receives Royal Assent.
561442 1 BILL LA INTRODUCTION 10/11/2009
PART 2--AMENDMENTS TO SUMMARY OFFENCES
ACT 1966
Clause 3 inserts new Division 1A (new section 6), regarding move on
powers, into the Summary Offences Act 1966. Move on powers
currently exist in every other State and Territory in Australia, in
England and a number of other international jurisdictions.
A move on power is intended to be a pre-emptive tool designed
to diffuse a situation and to ensure that members of the public
can peacefully enjoy public spaces. Police, in all States and
Territories, have long endeavoured to maintain public order
through informal and unenforceable requests to persons in public
places to refrain from engaging in certain activities or to move
away from an area. However, jurisdictions have progressively
considered it necessary to give police a stronger enforceable
statutory power to move people on. Victoria has seen an increase
in offending and anti-social behaviour in public places, especially
in the CBD and entertainment precincts. Accordingly, it is now
considered appropriate to give Victoria Police enhanced powers
to secure the peaceful enjoyment of public places by law abiding
members of the public.
New section 6(1) will give police the power to give a direction to
a person or persons, to leave a public place or a part of a public
place (that is, give a direction to move on) if the police member
suspects on reasonable grounds that--
· the person or persons is or are breaching or is or are
likely to breach the peace; or
· the person or persons is or are endangering, or is or are
likely to endanger the safety of any other person; or
· the behaviour of the person or persons is likely to cause
injury to a person, damage to property or is a risk to
public safety.
New section 6(2) explicitly provides that a direction given to a
person or persons may be given orally by the police member.
New section 6(3) provides that the direction may direct the
person or persons not to return to, or not to be in, the public
place, or to the part of the public place as the case may be, for a
specified period. New section 6(3) makes it clear that such a
direction must not exceed a period of 24 hours.
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New section 6(4) provides that the person to whom a direction is
given must not contravene the direction without reasonable
excuse. A penalty of 5 penalty units will apply to a
contravention.
Consistent with the approach taken by a number of other
jurisdictions that also have move on powers, the new Victorian
provisions will also exclude certain activities from being subject
to the operation of the power. These are where a person, whether
not the person is in company of other persons, is--
· picketing a place of employment; or
· demonstrating or protesting about a particular issue; or
· apparently intending to publicise their view about a
particular issue through speech, the use of a banner or
placard or other means.
Clause 4 substitutes "4 penalty units" for "1 penalty unit" in the penalty at
the foot of section 13 of the Summary Offences Act 1966.
Section 13 of the Act is the offence of a person being found
drunk in a public place. Clause 4 of the Bill, in conjunction with
clauses 7 and 8, will have the effect that a person who is drunk in
a public place is guilty of an offence which will carry a
maximum penalty of 4 penalty units and this offence will be an
infringement offence. Under clauses 7 and 8, the offence may be
enforced by infringement notice with the infringement amount
being 2 penalty units.
Victoria Police statistics clearly demonstrate that there has been a
marked increase in the number of people detained for being
drunk in a public place over the last five years. Increasing the
maximum penalty for the offence and allowing for it to be
enforced by infringement notice is intended to significantly deter
people from engaging in public drunkenness.
Clause 5 amends section 14 of the Summary Offences Act 1966 in
relation to the offence of persons found drunk and disorderly in a
public place. Subclause (1) inserts the words "and may be
arrested by a member of the police force and lodged in safe
custody" into section 14 to enable police to arrest persons who
are drunk and disorderly in a public place and to place them into
safe custody in the same manner as police are currently able to
arrest people and place them in safe custody in relation to the
offence of drunk in a public place.
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Subclause (2) substitutes "5 penalty units" for "1 penalty unit" in
the penalty at the foot of section 14 of the Summary Offences
Act 1966, the offence of persons found drunk and disorderly in a
public place. Similar to the amendment contained in clause 4 of
the Bill, subclause (2), in conjunction with clauses 7 and 8, will
have the effect that a person who is drunk and disorderly in a
public place is guilty of an offence which will carry a maximum
penalty of 5 penalty units and this offence will be an
infringement offence. Under clauses 7 and 8, the offence may be
enforced by infringement notice with the infringement amount
being 2 penalty units.
Clause 6 inserts new section 17A into the Summary Offences Act 1966 to
establish a new offence for any person to behave in a disorderly
manner in a public place. The new offence will carry a
maximum penalty of 5 penalty units, consistent with the change
that will be made by clause 5 of the Bill, under which the offence
of being found drunk and disorderly in a public place will carry a
maximum penalty of 5 penalty units. The new offence will be an
infringement offence and clauses 7 and 8 will provide for this,
and specify that the infringement amount is 2 penalty units.
Clause 7 substitutes a reference to sections 6, 13, 14, 17A or 18 for the
existing reference to section 18 in section 60AA of the Summary
Offences Act 1966. Section 60AA sets out the power to serve
infringement notices under the Act and the amendments in
clause 7(1) and (2) will make it clear that infringement notices
may be served in respect of the following offences--
· contravening a direction to move on under new
section 6 of the Act (inserted into the Act by clause 3
of the Bill); and
· being found drunk in a public place under section 13 of
the Act; and
· being found drunk and disorderly in a public place
under section 14 of the Act; and
· behaving in a disorderly manner in a public place under
new section 17A of the Act (inserted into the Act by
clause 6 of the Bill).
These offences will be in addition to the offence which may
already by enforced by way of infringement notice under the Act,
being the offence under section 18 of the Act of offensive
behaviour by a person in a motor vehicle in a declared area.
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There are additional offences in the Summary Offences Act
1966 which may currently be enforced by infringement notice,
such as the offence under section 9(1)(c) of wilful damage
(where the injury done to the property is under $500), however
those other offences are treated differently under the Act as they
are the subject of a trial expansion of the infringements system.
Subclause (3) inserts new subsection (3) into section 60AA to
provide that, despite the power to serve infringement notices for
the existing offence of being drunk and disorderly and the new
offence of disorderly conduct, under new section 17A,
infringement notices may not be served for both of these offences
arising out of the same incident.
Clause 8 inserts new subsection (3) into section 60AB of the Summary
Offences Act 1966 to provide that the infringement penalty that
will apply to offences under section 6, 13, 14 and 17A of the Act
is 2 penalty units. Therefore, 2 penalty units will be the
infringement amount for the following offences--
· contravening a direction to move on under new
section 6 of the Act (inserted into the Act by clause 3
of the Bill); and
· being found drunk in a public place under section 13 of
the Act; and
· being found drunk and disorderly in a public place
under section 14 of the Act; and
· behaving in a disorderly manner in a public place under
new section 17A of the Act (inserted into the Act by
clause 6 of the Bill).
PART 3--AMENDMENTS TO CONTROL OF WEAPONS
ACT 1990
Clause 9 substitutes new section 10 for the existing section 10 of the
Control of Weapons Act 1990 (the Principal Act).
New section 10 allows a police member to search a person for
weapons where the member has a reasonable belief that the
person is carrying or has in his or her possession in a public place
a prohibited weapon, a controlled weapon or a dangerous article.
This provision was originally inserted into the Principal Act to
strengthen police powers to search for weapons and dangerous
articles. However, the provision has not been utilised by police
to the intended extent due to certain limitations. In particular,
existing section 10 arguably requires the police member to
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accurately identify the weapon or article as clearly falling within
one of the three categories (prohibited weapon, controlled
weapon or dangerous article) prior to seizure and to request that
the person produce anything that the member has detected during
the search that the member suspects is a weapon or article.
There are obvious dangers connected with requiring the person
to produce the weapon or article as this may have the effect of
enabling the person to arm themselves which would increase the
risk to both the member and the person.
Substituted section 10 will not require the production by the
person of the weapon or article and will use the term weapon to
refer to each of the three categories of weapon and article with
the intention of avoiding the limitations that arguably currently
exist in section 10. Importantly, substituted section 10, like the
existing provision, is limited in its application to searches where
a police member has reasonable grounds for suspecting that a
person is carrying, or is in possession of, a weapon or article.
Further, these searches may only be conducted in a public place.
Section 3 of the Act defines the term public place as having the
same meaning as it has under the Summary Offences Act 1966.
Substituted section 10(1) provides that a police member may,
without warrant, search a person and any vehicle or thing under
the person's control for a weapon and the member may seize and
detain any weapon which is found as a result of the search
provided that--
· the member has reasonable grounds for suspecting that
the person is carrying, or has in his or her possession, in
a public place, a weapon contrary to the Principal Act;
and
· the member informs the person of the grounds for the
member's suspicion; and
· the member complies with subsection (3).
Subsection (3) of substituted section 10 sets out certain matters
that the police member must comply with, before the member
proceeds to commence a search with suspicion. These matters
are the same as under existing section 10 and require the member
to--
· inform the person of the member's name, rank and place
of duty; and
· provide information of the member's name, rank and
place of duty in writing, if requested by the person; and
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· produce the member's identification for inspection by
the person, unless the member is in uniform; and
· inform the person of the member's intention to search
the person, or the vehicle or thing, for weapons and that
the member is empowered to do so under the Act.
Substituted section 10(2) retains the existing section 10(2) which
provides that the police member may take into account the fact
that a person is in a location with a high incidence of violent
crime in determining whether there are reasonable grounds for
suspecting that the person is carrying a weapon or has a weapon
in their possession.
At present, the manner in which searches may be conducted
under existing section 10 are set out in the Control of Weapons
Regulations 2000. Substituted section 10(4), however, provides
that the new Schedule 1 to the Act (as inserted by clause 13 of
the Bill) applies to the search of a person or thing under this
substituted section. This will ensure that the same provisions
governing the manner in which searches are conducted will apply
to both searches of persons under substituted section 10 and new
section 10G (Power to search persons in designated areas).
Substituted section 10(5) provides that a search under this section
by a police member must be conducted in the least invasive way
that is practicable in the circumstances.
Substituted section 10(6) makes it clear that a person who is
being searched under this provision may be detained by a police
member only for as long as is reasonably necessary to conduct
the search.
Substituted section 10(7) provides a definition for the word
weapon for the purposes of its use in substituted section 10.
The word weapon is defined as meaning--
· a prohibited weapon; or
· a controlled weapon; or
· a dangerous article.
Clause 10 inserts a reference to section 10G into section 10A(1) and (3) of
the Act and inserts "or 10I(a) or clause 8 of Schedule 1" into
section 10A(4) of the Principal Act.
Section 10A(1) of the Principal Act provides that a police
member who conducts a search under section 10 must make a
written record of the search, containing particulars that are
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prescribed under the Control of Weapons Regulations 2000.
Section 10A(3) provides that a person subjected to a search under
section 10 is entitled, on request and without charge, to a copy of
the record of the search, if the request is made not later than
1 year after the date of the search. Section 10A(4) of the
Principal Act provides that a request by a person who has been
searched for a copy of the record of search must be made to the
officer in charge of the place of duty of the member who
conducted the search.
By including references to new sections 10G and 10I(1)(a) and to
clause 8(1)(a) of Schedule 1 in these provisions, persons who are
searched under that new section will also be entitled to obtain a
copy of the record of a search and police will be required to make
records regarding the search.
Clause 11 inserts new subsection (ab) into section 10B of the Principal Act
to include a requirement that the Chief Commissioner must report
on the number of strip searches that are conducted under new
section 10G during each financial year in the Annual Report that
relates to that financial year. The Chief Commissioner is already
required to report annually on the number of searches that are
conducted under section 10, the number and type of weapons and
dangerous articles found during the course of those searches and
any other information that is requested by the Minister.
Clause 12 inserts new sections 10C to 10L into the Principal Act in relation
to new forms of weapons stop and search powers that may be
exercised in public places within designated areas.
New section 10C provides for certain definitions that will apply
in that section and in new sections 10D to 10L. These are
definitions of--
· designated area; and
· thing; and
· weapon.
A designated area is an area in respect of which there is in effect
a declaration that has been made under new sections 10D or 10E.
A thing is any object, article or material. A weapon is defined in
the manner that it is defined under substituted section 10(7).
Therefore, a weapon is--
· a prohibited weapon; or
· a controlled weapon; or
· a dangerous article.
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New section 10D makes provision for the first of two forms of
designation of an area--the planned designation. The Chief
Commissioner or delegate may declare an area to be a designated
area, provided that the Chief Commissioner (or delegate as
referred to in new section 10F) is satisfied that--
· either in that area, over the previous 12 months, more
than one incident of violence or disorder involving
weapons has occurred, or an event is to be held in that
area and there have been incidents of violence or
disorder involving weapons at that event on previous
occasions of the event taking place (wherever that event
may have previously taken place); and
· there is a likelihood that the violence or disorder will
recur.
These new provisions are subject to a delegation provision and
new section 10F provides that the Chief Commissioner may
delegate this power to a police officer of or above the rank of
inspector.
Subsection (2) of new section 10D places a limitation on the size
of a designated area so that a designated area must not be larger
than is reasonably necessary to enable police to effectively
respond to the threat of violence or disorder.
Subsection (3) of new section 10D sets parameters around the
duration of the operation of a planned designation by providing
that such a designation must be no longer that is reasonably
necessary to enable police to effectively respond to the threat of
violence or disorder. In any event, the designation must not
exceed a period of 12 hours.
Subsection (4) of new section 10D sets out a publication
requirement that will apply to the Chief Commissioner, that he
or she must publish a notice of a planned designation in the
Government Gazette and in a major daily newspaper. This also
includes a requirement for publication in a generally circulating
newspaper in a rural area, if that is an area in which a planned
designation is to be made and the area has a generally circulating
newspaper.
Subsection (5) of new section 10D sets out the matters that must
be included in the published notice under new section 10D(4).
The required matters are--
· a description of the designated area; and
· a map of the designated area; and
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· a specification of the authorised police powers that may
be exercised in the designated area during the period in
which the designation is in force and the period of
operation of the declaration.
Subsection (6) of new section 10D provides for the declaration
of a designated area to take effect on the date and time specified
in the notice as published in the Government Gazette.
Furthermore, the declaration must not come into effect at any
time that is less than 7 days after the publication in the
Government Gazette. A declaration will cease to have effect at
the time specified in the notice, in accordance with subsection (7)
of new section 10D.
Subsection (8) of new section 10D places a limitation on the
making of a further declaration of a planned designation in the
same area where a previous declaration of a planned designation
has occurred, so that there must be a gap period of at least
10 days between the declarations. However, the Bill makes it
clear that this limitation does not extend to the making of an
unplanned designation of that area within that 10 day period
under new section 10E.
Subsection (10) of new section 10D provides a definition of
metropolitan area for the purposes of new section 10D.
A metropolitan area is an area or areas specified by the
Governor in Council and published in the Government Gazette.
New section 10(E) makes provision for the second form of
declaration of a designated area--the unplanned designation.
The Chief Commissioner or delegate will be empowered to
declare an area to be a designated area, provided that the Chief
Commissioner or delegate is satisfied that--
· it is likely that violence or disorder involving weapons
will occur in the area during the period of the
designation; and
· the designation of the area is necessary to prevent or
deter the occurrence of the violence or disorder that the
Chief Commissioner is satisfied is likely to occur.
These new provisions are subject to a delegation provision and
new section 10F, provides that the Chief Commissioner may
delegate this power to a police officer of or above the rank of
inspector.
Subsection (2) of new section 10E makes it clear that a
declaration of an unplanned designation must specify the
designated area and the period of operation of the declaration.
10
The unplanned form of a designated area will not require any
publication in the Government Gazette and a newspaper
(or newspapers), in contrast with the requirements set out in the
Bill in relation to planned designations.
The reason why an unplanned designation is not subject to
publication requirements is that unplanned designations are
intended to be made in circumstances whereby police have
received some intelligence information that an incident involving
the use of weapons is imminent in a particular area. This form of
designation is expected to occur where there is some urgent need
to declare a designated area and to search people, and possibly
vehicles, within that area in order to prevent or deter weapons-
related violence and disorder from taking place in that area.
Subsection (3) of new section 10E places a limitation on the size
of a designated area whereby the designated area must not be
larger than is reasonably necessary to enable police to effectively
respond to the threat of violence or disorder.
Subsection (4) of new section 10E sets parameters around the
duration of the operation of a unplanned designation by providing
that such a designation must be no longer that is reasonably
necessary to enable police to effectively respond to the threat of
violence or disorder. In any event, an unplanned designation
must not exceed a period of 12 hours.
Subsection (5) of new section 10E makes it clear that a
declaration of an unplanned designation has effect for the period
that is specified in the declaration.
New section 10F provides that the level of police member who
may be delegated the power to make a declaration of a planned or
an unplanned designation must not be of a rank lower than that of
inspector.
New section 10G sets out the powers that may be exercised by
police when a planned or an unplanned designation of an area is
in force. Under subsection (1) of new section 10G, a member of
police may, without warrant, stop and search a person, and may
search anything in that person's possession or under their control,
for weapons provided that the person (or thing) is in a public
place within the designated area. Public place is already defined
under the Principal Act as having the same meaning that it has
under the Summary Offences Act 1966.
Subsection (2) of new section 10G provides that Schedule 1 to
the Principal Act applies to the search of a person or thing under
section 10G. Schedule 1 to the Principal Act is a new Schedule
that is inserted by clause 13 of the Bill. Schedule 1 details how
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searches are to be conducted under both substituted section 10
(substituted by clause 9 of the Bill) and new section 10G.
Subsection (3) of new section 10G makes it clear that a police
member must conduct the least invasive search that is practicable
in the circumstances.
Subsection (4) of new section 10G provides that any detaining of
a person for the purposes of a search under section 10G must be
for a period that is no longer than is reasonably necessary to
conduct the search.
New section 10H will empower a police member to, without a
warrant, stop and search a vehicle and anything that is in or that
is on the vehicle, provided that the vehicle is in a public place
that is within a designated area and there is a person in or on the
vehicle at that time. Similar to the searches of persons under new
section 10G, any detaining of a vehicle for the purposes of a
search under section 10H must be for a period that is no longer
than is reasonably necessary to conduct the search.
New section 10I contains provisions regarding the information
that must be given by police to persons who are detained and
searched under these new search provisions. Where a person is
detained for the purposes of a search and before a person is
searched, the following information must be provided to the
person by the police member--
· the member must, if requested by the person, inform the
person of the member's name, rank and place of duty;
and
· the member must, if requested by the person, provide
details of their name, rank and place of duty in writing;
and
· the member must produce his or her identification for
the person to inspect if that member is not in uniform;
and
· the member must inform the person that it is the
intention of the member to search the person (or
vehicle) for weapons and that the member is empowered
to do so under these provisions of the Principal Act; and
· the member must give the person a notice that complies
with subsection (3) of new section 10I.
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In relation to the requirement that the member must give the
person a notice that complies with subsection (3) of new
section 10I, however, subsection (2) of new section 10I makes it
clear that the requirement does not apply if the person has been
offered the search notice and has refused or does not wish to
accept it.
The information that must be contained in the search notice
referred to in subsection (1) of new section 10I is set out in
subsection (3). This information is--
· that the person or the vehicle is in a public place that is
within a designated area; and
· a planned or an unplanned designation is in force
(whichever is applicable); and
· that police members are empowered under the Principal
Act to conduct searches of persons, vehicles and things
for weapons; and
· it is an offence for a person to obstruct or to hinder a
police member in the exercise of these powers under
that Act.
New section 10J provides an express power for police to seize
and detain any item that is found during a search under the new
powers set out in new sections 10G and 10H, provided that the
member reasonably suspects that the item is a weapon.
Subsection (2) of new section 10J will provide for the police
member to return an item that has been seized to the person from
whom it is seized without delay, if the member, upon
examination of the item, determines that it is not a weapon.
New section 10K provides police with the power to obtain a
disclosure of the identity of any person who is to be subject to a
strip search under the provisions of Schedule 1 to the Principal
Act. New Schedule 1 to the Principal Act will be inserted into
the Principal Act by clause 13 of the Bill. Where the identity of
a person who is to be strip searched is unknown to the police
member, subsection (1) of new section 10K will empower the
member to request the person to disclose his or her identity.
Subsection (2) then provides that, upon such a request, the person
must not fail or refuse to comply with the request that they
disclose their identity. A penalty of 1 penalty unit applies to the
new offence of failing or refusing to comply with this request.
A further new penalty is provided for by subsection (3) and will
apply to a person who, in response to a request to disclose their
identity, gives a name that is false in a material particular or gives
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an address other than an address that is the person's full and
correct address. Again, a penalty of 1 penalty unit applies to this
new offence.
New section 10L establishes a further new offence that will apply
in respect of these new search powers. It will be an offence for a
person to, without reasonable excuse, obstruct or hinder a police
member in the exercise of search powers under substituted
section 10 (search with reasonable suspicion) or new sections
10G (search of a person in a designated area), 10H (search of a
vehicle) or 10J (seizure). It will also be an offence for a person
to fail to comply with a direction made by a police member to a
person to accompany the member to a place for the purpose of a
strip search being conducted under clause 7(2) of new Schedule 1
to the Act. In the case of the new offences the penalty is
2 penalty units.
Clause 13 inserts new Schedule 1 into the Principal Act, regarding the
manner in which searches of persons and things are to be
conducted under substituted section 10 and new section 10G.
Clause 1 of Schedule 1 makes it clear that the provisions of the
Schedule apply to any search that is conducted under substituted
section 10 or new section 10G, except where the Principal Act or
the regulations provide otherwise.
Clause 2 of Schedule 1 sets out certain definitions that apply
throughout the Schedule. These include the following
definitions--
· child is defined to mean a person under the age of 18.
Therefore the search powers under substituted
section 10 and new section 10G, including the
provisions in the Schedule regarding the manner in
which searches are to be conducted, apply to children
of all ages up to, and including, the age of 17 years.
Clause 11 of the Schedule sets out particular safeguards
that must apply in the case of a search of a child.
· impaired intellectual functioning is defined to cover
the total or partial loss of mental functions, a disorder or
malfunction resulting in a person learning differently
from a person who does not have such a disorder or
malfunction or a disorder, illness or disease that affects
a person's thought processes, perceptions of reality,
emotions or judgement or that results in the person
having disturbed behaviour. Clause 12 of the Schedule
sets out particular safeguards that must apply in the case
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of a search of a person with impaired intellectual
functioning.
· strip search of a person means a search of the person or
of a thing that is in the possession or under the control
of the person that may involve the person being required
to remove all of their clothing and may involve an
examination of the person's body (not including the
person's body cavities) and of the removed clothing.
· A specific definition of the term transgendger person is
included to ensure clarity about particular safeguards
that must apply to searches of such persons under
clause 9 regarding the rules that must apply in respect of
strip searches.
· weapon is defined in the same manner as it is defined
under clauses 9 and 12 of the Bill so that it means--
· a prohibited weapon; or
· a controlled weapon; or
· a dangerous article.
Other definitions included for the purposes of the Schedule are:
electronic metal detection device, initial electronic device
search and thing.
Clause 3 of Schedule 1 enables a police member, who is
authorised to conduct a search under new section 10G, to carry
out an initial electronic device search of a person or thing.
The term initial electronic device search is defined in clause 2 of
the Schedule. This form of initial search will be conducted by
the use of a device that is capable of detecting the presence of
metallic objects. It will apply only over or in close proximity to
the person's outer clothing.
Clause 4 of Schedule 1 allows for a further search of things to be
conducted once there has been an initial electronic device search,
and the police member considers that a person may be concealing
a weapon. Clause 4 also provides for the search of a thing under
section 10 of the Principal Act. This form of search may
include--
· a request that the person produce and empty any bag,
basket or receptacle of its contents or that the person
turn out their pockets;
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· a search by the member of any bag, basket or receptacle
or a search through and the moving of the contents of
any bag, basket or receptacle;
· a pat down of the area of the person's pockets; or
· a search though and the moving of the contents of the
person's pockets after the pockets have been turned out
or have been patted down.
Clause 5 of Schedule 1 allows for a further outer search of a
person following an initial electronic device search and the police
member considers that the person may be concealing a weapon.
Clause 5 also provides for a search of a person under section 10.
This form of search may include--
· the police member running their hands over the person's
outer clothing;
· the removal, upon the request of the police member, of
the person's overcoat, coat or jacket and any gloves,
shoes or hat after which the member may use an
electronic metal detection device, may run his or her
hands over the person's outer clothing and may search
the items of clothing that have been removed by the
person, including by the use of an electronic metal
detection device.
Clause 6 of Schedule 1 sets out a number of things that a police
member must comply with, as far as is reasonably practicable, in
conducting an outer search of a person under clause 5 of
Schedule 1. These matters include--
· informing the person whether they will be required to
remove outer clothing and, if so, why this is necessary;
· that the police member must ask for the cooperation of
the person;
· the search must be conducted in a manner that affords
the person reasonable privacy and it must be conducted
as quickly as is reasonably practicable;
· the search must be of the least invasive kind reasonably
necessary in the circumstances;
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· where a search involves the police member running
their hands over the person's outer clothing, it must be
conducted by a police member of the same sex as the
person being searched, if that is reasonably practicable.
Clause 7 of Schedule 1 enables a police member to conduct a
strip search of a person provided that a search has already been
conducted under clause 4 or 5 of the Schedule and the member
reasonably suspects that the person is concealing a weapon.
The member must also believe on reasonable grounds that a strip
search is necessary due to the seriousness and urgency of the
circumstances. Subclause (2) gives police the power to direct the
person to accompany the member to a police vehicle or other
private place in which the search is to be conducted. It is
intended that police will utilise specific private police vehicles
tailored for the purpose of searching.
Clause 8 of Schedule 1 requires a police member who intends to
conduct a strip search of a person to comply with certain
requirements regarding the information that must be given to that
person. The following information must be provided--
· the member must inform the person of the member's
name, rank and place of duty;
· the member must, if requested by the person, provide
details of their name, rank and place of duty in writing;
· the member must produce his or her identification for
the person to inspect if that member is not in uniform;
and
· the member must inform the person that it is the
intention of the member to search the person for
weapons and that the member is empowered to do so
under these provisions of the Principal Act.
If the member has already provided this information to the person
under new section 10(3) or 10I at the point of originally detaining
the person for the conduct of a search the member is not required
to provide this information again.
Clause 9 of Schedule 1 sets out specific rules that apply when a
police member conducts a strip search of a person. These rules
include--
· that the member must inform the person whether they
will be required to remove clothing and, if so, why this
is necessary;
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· that the police member must ask for the cooperation of
the person;
· the search must be of the least invasive kind reasonably
necessary in the circumstances;
· the search must be conducted in a manner that preserves
the dignity and self-respect of the person;
· the search must be conducted in a private area and in a
way that affords the person reasonable privacy;
· the search must be conducted as quickly as reasonably
practicable and in a manner that avoids unnecessary
force;
· the search must be conducted by a police member of
the same sex as the person being searched and must not
be conducted in the presence or view of a person of the
opposite sex or in the presence of an unnecessary
person;
· strip searches must not include any search of the genital
area, the breasts of a female or a transgender person
who identifies as a female (unless this is considered on
reasonable grounds to be necessary), a search of body
cavities or an examination of the body by touch;
· the search must be limited to the removal of the least
amount of clothing that is believed on reasonable
grounds to be reasonably necessary and must be limited
to the least amount of visual inspection that is believed
on reasonable grounds to be reasonably necessary;
· a person who has been subject to a strip search must be
allowed to dress as soon as the search is finished.
Clause 10 of Schedule 1 expressly empowers police to search the
clothing that has been removed by a person during their strip
search.
Clause 11 of Schedule 1 makes particular provision for rules that
are to apply to any search of a child, other than an initial search
involving the use of an electronic metal detection device or an
examination of things under clause 4 of Schedule 1. The term
child is defined in clause 2 of Schedule 1 as meaning any person
under the age of 18 years.
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A search of a child must be conducted in the presence of a parent
or guardian of the child being searched or, if that is not
acceptable to the child, in the presence of an independent person
who is capable of representing the interests of the child and who,
as far as practicable in the circumstances, is acceptable to the
child. However, if a parent or guardian is not then present and
the seriousness and urgency of the circumstances require the
search to be conducted without delay, then the search must be
conducted in the presence of an independent person who is
capable of representing the interests of the child and who, as far
as practicable in the circumstances, is acceptable to the child.
Clause 12 of Schedule 1 makes particular provision for rules that
are to apply to any search of a person with impaired intellectual
functioning, other than an initial search or a search under clause 5
of Schedule 1 that is limited to a search involving the use of an
electronic metal detection device or an examination of things
under clause 4 of Schedule 1. The term impaired intellectual
functioning is defined in detail in clause 2 of Schedule 1.
A search of a person with impaired intellectual functioning must
be conducted in the presence of a parent or guardian of the
person being searched or, if that is not acceptable to the person,
in the presence of an independent person who is capable of
representing the interests of the person and who, as far as
practicable in the circumstances, is acceptable to the person.
Under subclause (4), however, if a parent or guardian is not then
present and the seriousness and urgency of the circumstances
require the search to be conducted without delay, then the search
must be conducted in the presence of an independent person who
is capable of representing the interests of the person and who, as
far as practicable in the circumstances, is acceptable to the
person.
PART 4--REPEAL OF AMENDING ACT
Clause 14 provides for the automatic repeal of this amending Bill on the
first anniversary of its commencement. The repeal of this Bill
does not affect in any way the operation of the amendments made
by this Act (see section 15(1) of the Interpretation of
Legislation Act 1984).
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