Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
(Section 3)
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).
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.
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).
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”.
[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”.
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.
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.
[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”.
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”.
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”.
[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).
Insert “and to other offenders” after “custody”.
[27] Part 10, Division 1, heading
Insert “from persons in custody” after “particulars”.
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.(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).
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).
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”.
[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).
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.
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.
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.
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.
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.
[46] Schedule 5 Savings and transitional provisions
Insert at the end of clause 1 (1):
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.