Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 1 July 2020 to date (accessed 11 August 2020 at 10:44)
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Current version for 1 July 2020 to date (accessed 11 August 2020 at 10:44)
Legislation on this site is usually updated within 3 working days after a change to the legislation.

Provisions in force
The provisions displayed in this version of the legislation have all commenced. See Historical Notes

Responsible Minister
Attorney General, and Minister for the Prevention of Domestic Violence, jointly with the Minister for Police and Emergency Services

Authorisation
This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel's Office and published on the NSW legislation website, and is certified as the form of that legislation that is correct under section 45C of the Interpretation Act 1987.

File last modified 1 July 2020.

An Act to consolidate and restate the law relating to police and other law enforcement officers’ powers and responsibilities; to set out the safeguards applicable in respect of persons being investigated for offences; to repeal certain Acts and to consequentially amend other Acts; and for other purposes.
Part 1 Preliminary
2   Commencement
This Act commences on a day or days to be appointed by proclamation.
3   Interpretation
(1)  In this Act—
Aboriginal person means a person who—
(a)  is a member of the Aboriginal race of Australia, and
(b)  identifies as an Aboriginal person, and
(c)  is accepted by the Aboriginal community as an Aboriginal person.
apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.
authorised officer means—
(a)  a Magistrate or a Children’s Magistrate, or
(b)  a registrar of the Local Court, or
(c)  an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.
body cavities of a person do not include the person’s mouth.
Commissioner means the Commissioner of Police.
correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.
covert search warrant means a search warrant issued under Division 2 of Part 5 that may be executed covertly.
crime scene means premises established as a crime scene under Part 7.
crime scene power means a power set out in section 95.
crime scene warrant means a warrant issued under section 94.
criminal organisation search warrant means a search warrant issued under Division 2 of Part 5 in relation to an organised crime offence.
custody manager means the police officer having from time to time the responsibility for the care, control and safety of a person detained at a police station or other place of detention.
dangerous article means—
(a)  a firearm, a spare barrel for any such firearm, or any ammunition for any such firearm, or
(b)  a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or
(c)  a spear gun, or
(d)  an article or device, not being such a firearm, capable of discharging by any means—
(i)  any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or
(ii)  any substance capable of causing bodily harm, or
(e)  a fuse capable of use with an explosive or a detonator, or
(f)  a detonator.
dangerous implement means—
(a)  a dangerous article, or
(b)  a knife (including a knife blade, razor blade or any other blade), or
(c)  any other implement made or adapted for use for causing injury to a person, or
(d)  anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property, or
(e)  a laser pointer,
but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.
drug offence means the possession, control or supply by a person of any prohibited drug or prohibited plant in contravention of the Drug Misuse and Trafficking Act 1985.
dwelling includes—
(a)  any building or other structure intended for occupation as a dwelling and capable of being so occupied, whether or not it has ever been so occupied, and
(b)  a vessel or vehicle in or on which any person resides, and
(c)  any building or other structure within the same curtilage as a dwelling and occupied with, or the use of which is ancillary to the occupation of, the dwelling.
electronic metal detection device means an electronic device that is capable of detecting the presence of metallic objects.
exercise a function includes perform a duty.
face means a person’s face—
(a)  from the top of the forehead to the bottom of the chin, and
(b)  between (but not including) the ears.
face covering means an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly).
facsimile means facsimile transmission, the internet or any other means of electronic transmission of information in a form from which written material is capable of being reproduced with or without the aid of any other device or article.
firearm has the same meaning as it has in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act.
function includes a power, authority or duty.
identity of a person means the name or residential address of the person (or both).
indictable offence means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on an indictment.
laser pointer means a hand-held battery-operated device, designed or adapted to emit a laser beam, that may be used for the purposes of aiming, targeting or pointing.
lawful custody means lawful custody of the police.
manufacture has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.
NSW Police Force means the NSW Police Force established by the Police Act 1990.
occupier of premises includes a person in charge of the premises.
owner of a vehicle means the responsible person for a vehicle within the meaning of the Road Transport Act 2013, and includes—
(a)  a person who is not such an owner but who usually has the care, control and custody of the vehicle, and
(b)  any other person prescribed by the regulations for the purposes of this definition.
parent of a child means the person who has parental responsibility for the child.
parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authorities which, by law, parents have in relation to their children.
person of non-English speaking background means a person who is born in a country outside Australia and whose first language is not English.
police officer means a member of the NSW Police Force holding a position that is designated under the Police Act 1990 as a position to be held by a police officer.
premises includes any building, structure, vehicle, vessel or aircraft and any place, whether built on or not.
prohibited drug has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.
prohibited plant has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.
prohibited weapon has the same meaning as it has in the Weapons Prohibition Act 1998.
property has the same meaning as it has in the Crimes Act 1900.
public place includes—
(a)  a place (whether or not covered by water), or part of premises, that is open to the public or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, and
(b)  a road or road related area,
but does not include a school.
road means a road within the meaning of section 4(1) of the Road Transport Act 2013 (other than a road that is the subject of a declaration made under section 18(1)(b) of that Act relating to all of the provisions of that Act).
road related area means a road related area within the meaning of section 4(1) of the Road Transport Act 2013 (other than a road related area that is the subject of a declaration made under section 18(1)(b) of that Act relating to all of the provisions of that Act).
roadblock authorisation means an authorisation given by a senior police officer under section 37.
scene of crime officer means a member of the NSW Police Force responsible for examining or maintaining crime scenes.
school means—
(a)  a government school or registered non-government school within the meaning of the Education Act 1990, or
(b)  a school providing education (whether secular or religious) at a pre-school or infants school level or at a primary or secondary level, or
(c)  a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, or
(d)  the land, and any building, occupied by or in connection with the conduct of such a school or place,
and includes any part of such a school or place, but does not include any building that is occupied or used solely as a residence or solely for a purpose unconnected with the conduct of such a school or place.
senior police officer means—
(a)  a Police Area Commander, or
(a1)  a Police District Commander, or
(b)  a Duty Officer for a police station, or
(c)  any other police officer of the rank of Inspector or above.
Note.
 By virtue of the Interpretation Act 1987 (section 48(2)) a person acting in an office referred to above may exercise the functions of a senior police officer under this Act.
serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
strip search means a search of a person or of articles in the possession of a person that may include—
(a)  requiring the person to remove all of his or her clothes, and
(b)  an examination of the person’s body (but not of the person’s body cavities) and of those clothes.
supply has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.
telephone includes radio, facsimile and any other communication device.
Torres Strait Islander means a person who—
(a)  is a member of the Torres Strait Island race, and
(b)  identifies as a Torres Strait Islander, and
(c)  is accepted by the Torres Strait Island community as a Torres Strait Islander.
transgender person means a person (whether or not the person is a person whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction)—
(a)  who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or
(b)  who has identified as a member of the opposite sex by living as a member of the opposite sex, or
(c)  who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,
and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
vehicle includes a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013.
vehicle roadblock powers—see section 37.
Note.
 The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2)  In this Act, a reference to a person who has been charged with an offence is a reference to a person—
(a)  in respect of whom a charge sheet has been completed by a police officer where proceedings for an offence are to be commenced against the person, or
(b)  against whom proceedings for an offence have been commenced.
(2A)  In this Act, a reference—
(a)  to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies, and
(b)  to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.
(3)  Notes in the text of this Act do not form part of this Act.
Note.
 In a heading to a provision of this Act, a reference to the Cth Act is a reference to the Crimes Act 1914 of the Commonwealth and a reference to the former LEPRA is a reference to a provision of Part 5 as in force immediately before it was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act 2009.
4   Relationship to common law and other matters
(1)  Unless this Act otherwise provides expressly or by implication, this Act does not limit—
(a)  the functions, obligations and liabilities that a police officer has as a constable at common law, or
(b)  the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.
(2)  Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.
5   Relationship to other Acts
(1)  This Act does not limit the functions that a police officer has under an Act or regulation specified in Schedule 1.
(2)  The regulations may amend Schedule 1 by adding the name of an Act or a regulation to the Schedule.
(3)  However, a police officer may exercise a function under this Act for the purpose of giving effect to an Act or regulation referred to in subsection (1).
6   Inconsistency
(1)  This section applies to a provision of another Act or regulation that confers functions on a police officer or other person (other than a provision of an Act or regulation referred to in section 5(1)).
(2)  To the extent of any inconsistency, this Act prevails over an Act or regulation to which this section applies.
(3)  A provision of an Act enacted after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, a provision of this Act.
(4)  Subsection (3) does not affect the interpretation of a provision of an Act so far as that Act directly amends or repeals a provision of this Act or expressly provides for that Act to have effect despite a specified provision, or despite any provision, of this Act.
7   Provisions in this Act
Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.
Note.
 The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.
8   Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.
Part 2 Powers of entry
Note.
 Safeguards containing requirements relating to the exercise of powers under this Part are set out in Part 15.
9   Power to enter in emergencies
(1)  A police officer may enter premises if the police officer believes on reasonable grounds that—
(a)  a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or
(b)  a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person.
(2)  A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.
10   Power to enter to arrest or detain someone or execute warrant
(1)  A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.
(2)  However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.
(3)  A police officer who enters premises under this section may search the premises for the person.
(4)  This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose.
(5)  In this section—
arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.
Part 3 Powers to require identity to be disclosed
Division 1 General powers to require identity to be disclosed
11   Identity may be required to be disclosed
(cf Crimes Act 1900, s 563)
(1)  A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects 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 where the alleged indictable offence occurred, whether before, when, or soon after it occurred.
(2)  A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.
Note.
 Safeguards relating to the exercise of power under this section are set out in Part 15.
12   Failure to disclose identity
(cf Crimes Act 1900, s 563)
A person who is required by a police officer in accordance with section 11 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—2 penalty units.
13   False or misleading information about identity
(cf Crimes Act 1900, s 563)
A person must not, without reasonable excuse, in response to a requirement made by a police officer in accordance with this Division—
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address.
Maximum penalty—2 penalty units.
Division 1A Power to require identity of suspected AVO defendant to be disclosed
13A   Identity of suspected AVO defendant may be required to be disclosed
A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that an apprehended violence order has been made against the person.
13B   Failure of person to disclose identity on requirement
A person who is required by a police officer in accordance with this Division to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—2 penalty units.
13C   False or misleading information about identity
A person must not, without reasonable excuse, in response to a requirement made by a police officer in accordance with this Division—
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address.
Maximum penalty—2 penalty units.
Division 2 Powers to require identity of drivers and passengers to be disclosed
14   Power of police officer to require disclosure of driver or passenger identity
(1)  A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may do any one or more of the following—
(a)  require the driver of the vehicle to disclose his or her identity and the identity of any driver of, or passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle,
(b)  require any passenger in or on the vehicle to disclose his or her identity and the identity of the driver of, or any other passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle,
(c)  require any owner of the vehicle (who was or was not the driver or a passenger) to disclose the identity of the driver of, and any passenger in or on, the vehicle at or about the time the vehicle was or may have been so used or at or about the time the vehicle last stopped before the requirement was made or a direction was given to stop the vehicle.
Note.
 Safeguards relating to the exercise of power under this section are set out in Part 15.
(2)  Nothing in this section limits the operation of section 11.
15   Failure of driver to disclose identity
(1)  The driver of a vehicle who is required by a police officer in accordance with section 14 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(2)  The driver of a vehicle who is required by a police officer in accordance with section 14 to disclose the identity of any driver of, or passenger in or on, the vehicle must (unless the driver has a reasonable excuse for not doing so)—
(a)  disclose the identity of the driver or passenger, or
(b)  if the driver does not know the full and correct identity of the driver or passenger—disclose such information about the driver’s or passenger’s identity (such as any alias used by the person or the general location of his or her residential address) as is known to the driver.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
Note.
 Safeguards relating to the exercise of power under section 14 are set out in Part 15.
16   Failure of passenger to disclose identity
(1)  A passenger in or on a vehicle who is required by a police officer in accordance with section 14 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(2)  A passenger in or on a vehicle who is required by a police officer in accordance with section 14 to disclose the identity of the driver of, or any other passenger in or on, the vehicle must (unless the passenger has a reasonable excuse for not doing so)—
(a)  disclose the full and correct identity of the driver or other passenger, or
(b)  if the passenger does not know the full and correct identity of the driver or other passenger—disclose such information about the driver’s or other passenger’s identity (such as any alias used by the person or the general location of his or her residential address) as is known to the passenger.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
Note.
 Safeguards relating to the exercise of power under section 14 are set out in Part 15.
17   Failure of owner to disclose identity
(1)  An owner of a vehicle who is required in accordance with section 14 by a police officer to disclose the identity of the driver of, or a passenger in or on, the vehicle must (unless the owner has a reasonable excuse for not doing so)—
(a)  disclose the identity of any person the owner knows or has reason to suspect was the driver or a passenger, or
(b)  if the owner does not know the full and correct identity of the person—disclose such information about the person’s identity (such as any alias used by the person or the general location of his or her residential address) as is known to the owner.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(2)  Subsection (1) extends to an owner of a vehicle who was the driver of, or a passenger in or on, the vehicle.
(3)  Without limitation, for the purposes of this section, an owner has reason to suspect a person was the driver of, or a passenger in or on, a vehicle if the owner has reason to suspect that a person had access to the vehicle.
Note.
 Safeguards relating to the exercise of power under section 14 are set out in Part 15.
18   False or misleading information about identity
A person must not, without reasonable excuse, in response to a requirement made by a police officer in accordance with section 14—
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address or the full and correct address of the driver’s or passenger’s residence known to the person (as may be required).
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
Division 3 Proof of identity
19   Power of police officer to request proof of identity
(cf Crimes Act 1900, s 563)
A police officer may request a person who is required under this Part to disclose his or her identity to provide proof of his or her identity.
Division 4 Removal of face coverings for identification purposes
19A   Power of police officer to require removal of face coverings for identification purposes
(1)  A police officer may require a person to remove any face covering worn by the person so as to enable the officer or another police officer to see the person’s face if—
(a)  the person has been lawfully required (whether under this or any other Act or a statutory instrument) by the officer requiring the removal of the covering to provide photographic identification, or
(b)  the person has otherwise been lawfully required (whether under this or any other Act or a statutory instrument) by the officer requiring the removal of the covering to identify himself or herself or provide other identification particulars.
Note.
 Safeguards relating to the exercise of power under this section are set out in Part 15 and subsection (3).
(2)  A requirement may be made of a person under this section based on a lawful requirement of a kind referred to in subsection (1)(a) or (b) whether or not the person has complied with that lawful requirement.
(3)  A police officer who requires a person to remove a face covering under this section must, as far as is reasonably practicable, ensure that the following procedures are followed—
(a)  the police officer must ask for the person’s co-operation,
(b)  the viewing of the person’s face must be conducted—
(i)  in a way that provides reasonable privacy for the person if the person requests privacy, and
(ii)  as quickly as is reasonably practicable.
(4)  It is sufficient compliance with a requirement made under this section if only so much of the face covering as prevents the person’s face from being seen is removed.
(5)  The removal of a face covering in compliance with a requirement made under this section, or the viewing of a person’s face following any such removal, does not constitute the carrying out of a search of a person for the purposes of this Act.
(6)  In this section—
lawfully required means lawfully required or requested to provide the identification or information concerned in circumstances where a failure or refusal to comply with a requirement or request of that kind may constitute an offence.
photographic identification includes (but is not limited to) any of the following—
(a)  an applicable driver licence (within the meaning of Part 5.1 of the Road Transport Act 2013) bearing a photograph of its holder,
(b)  a Photo Card (within the meaning of the Photo Card Act 2005) or any other kind of photo identity card (wherever issued),
(c)  a passport (wherever issued),
(d)  any other licence, permit or authority bearing a photograph of its holder (wherever issued),
(e)  any other identification with a photograph that is identification of a kind prescribed by the regulations.
19B   Failure to remove face covering
(1)  A person who is required by a police officer in accordance with section 19A to remove a face covering must not, without special justification, fail or refuse to comply with the requirement.
Maximum penalty—
(a)  in the case of a person who is required to remove a face covering following a requirement under section 14—50 penalty units or 12 months imprisonment, or both, or
(b)  in any other case—2 penalty units.
(2)  A person has a special justification for not removing a face covering if (and only if)—
(a)  the person has a legitimate medical reason for not removing the face covering, or
(b)  the person has any other excuse for not removing the face covering that is an excuse of a kind prescribed by the regulations.
(3)  The onus of proof of a special justification lies on the person claiming to have the special justification.
19C   Division does not limit other police powers
The provisions of this Division do not limit any power that a police officer may have (apart from this Division) to require a person to remove a face covering.
Part 4 Search and seizure powers without warrant
Note.
 Safeguards relating to the exercise of powers under this Part are set out in Part 15.
Division 1 General personal search and seizure powers
20   Relevant offences
The following offences are relevant offences for the purposes of this Division—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts,
(d)  an offence against a provision of Part 2 of the Explosives Act 2003.
21   Power to search persons and seize and detain things without warrant
(1)  A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,
(b)  the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,
(c)  the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
(d)  the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.
(2)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
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, require the person—
(a)  to open his or her mouth to enable it to be searched, 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 requirement made by a police officer in accordance with this section.
Maximum penalty—5 penalty units.
22   Power to seize and detain dangerous articles on premises
(cf Crimes Act 1900, s 357)
A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence.
Note.
 Premises include vessels, vehicles, aircraft and other places.
23   Power to search persons for dangerous implements without warrant in public places and schools
(1)  A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person’s possession or under the person’s control.
(2)  To avoid doubt, if the person is in a school and is a student at the school, the police officer may also search the person’s locker at the school and examine any bag or other personal effect that is inside the locker.
(3)  For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement in the person’s possession or under the person’s control.
(4)  In conducting a search of a student in a school under this section, a police officer must, if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search.
(5)  A police officer may seize and detain anything found as a result of a search under this section that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in the person’s possession or under the person’s control.
(6)  For the purposes of this section—
(a)  locker includes any facility for the storage of a student’s personal effects, and
(b)  anything inside a person’s locker is taken to be under the control of the person.
Division 2
23A–26  (Repealed)
Division 3 Searches of persons on arrest or while in custody
27   Power to carry out search on arrest
(cf Cth Act, s 3ZE, common law)
(1)  A police officer who arrests a person for an offence or under a warrant, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a)  that would present a danger to a person, or
(b)  that could be used to assist a person to escape from lawful custody, or
(c)  that is a thing with respect to which an offence has been committed, or
(d)  that is a thing that will provide evidence of the commission of an offence, or
(e)  that was used, or is intended to be used, in or in connection with the commission of an offence.
(2)  A police officer who arrests a person for the purpose of taking the person into lawful custody, or who is present at the arrest, may search the person at or after the time of arrest, if the officer suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying anything—
(a)  that would present a danger to a person, or
(b)  that could be used to assist a person to escape from lawful custody.
(3)  A police officer may seize and detain a thing found in a search if it is a thing of a kind referred to in subsection (1) or (2).
(4)  Nothing in this section limits section 28A.
28   Ancillary power to search persons
(1)  In conducting a search of a person under section 27, a police officer may, if the police officer suspects on reasonable grounds that a thing of a kind referred to in section 27(1) or (2) is concealed in the person’s mouth or hair, require the person—
(a)  to open his or her mouth to enable it to be searched, 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 requirement made by a police officer in accordance with this section.
Maximum penalty—5 penalty units.
28A   Power to carry out search of person in lawful custody after arrest
(cf Cth Act, s 3ZH, common law)
(1)  A police officer may search a person who is in lawful custody after arrest and seize and detain anything found on that search.
(2)  Any such search may be carried out at a police station or other place of detention or immediately before or during transportation of the person to or from a police station or other place of detention.
Division 4 Provisions relating generally to personal searches
29   Application of Division
(1)  This Division applies to any search of a person carried out by a police officer under this Act, except as otherwise provided by this Act or the regulations.
(2)  This Division also applies to any search of a person that is carried out by a police officer after obtaining the person’s consent to carry out the search. In that case—
(a)  the purpose of the search is the purpose for which the police officer obtained consent to search, and
(b)  a general consent to the carrying out of a search is not consent to carry out a strip search unless the person consents to the carrying out of a strip search.
30   Searches generally
In conducting the search of a person, a police officer may—
(a)  quickly run his or her hands over the person’s outer clothing, and
(b)  require the person to remove his or her coat or jacket or similar article of clothing and any gloves, shoes, socks and hat (but not, except in the case of a strip search, all of the person’s clothes), and
(c)  examine anything in the possession of the person, and
(d)  pass an electronic metal detection device over or in close proximity to the person’s outer clothing or anything removed from the person, and
(e)  do any other thing authorised by this Act for the purposes of the search.
31   Strip searches
A police officer may carry out a strip search of a person if—
(a)  in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b)  in the case where the search is carried out in any other place—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary.
32   Preservation of privacy and dignity during search
(1)  A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this section.
(2)  The police officer must inform the person to be searched of the following matters—
(a)  whether the person will be required to remove clothing during the search,
(b)  why it is necessary to remove the clothing.
(3)  The police officer must ask for the person’s co-operation.
(4)  The police officer must conduct the search—
(a)  in a way that provides reasonable privacy for the person searched, and
(b)  as quickly as is reasonably practicable.
(5)  The police officer must conduct the least invasive kind of search practicable in the circumstances.
(6)  The police officer must not search the genital area of the person searched, or in the case of female or a transgender person who identifies as a female, the person’s breasts unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search.
(7)  A search must be conducted by a police officer of the same sex as the person searched.
(7A)  However, if a police officer of the same sex as the person who is to be searched is not immediately available, a police officer may delegate the power to conduct the search to another person who is—
(a)  of the same sex as the person to be searched, and
(b)  of a class of persons prescribed by the regulations for the purposes of this subsection.
The search by that other person is to be conducted under the direction of the police officer and in accordance with provisions of this Act applying to searches conducted by police officers.
(8)  A search of a person must not be carried out while the person is being questioned. If questioning has not been completed before a search is carried out, it must be suspended while the search is carried out.
(8A)  Subsection (8) does not prevent the asking of questions that only relate to issues of personal safety associated with the search.
(9)  A person must be allowed to dress as soon as a search is finished.
(10)  If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing.
(11)  In this section—
questioning of a person means questioning the person, or carrying out an investigation (in which the person participates).
33   Rules for conduct of strip searches
(cf Cth Act, s 3ZI)
(1)  A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following—
(a)  the strip search must be conducted in a private area,
(b)  the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,
(c)  except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search.
(2)  A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.
(3)  A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted—
(a)  in the presence of a parent or guardian of the person being searched, or
(b)  if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.
(3A)  Subsection (3) does not apply if a police officer suspects on reasonable grounds that—
(a)  delaying the search is likely to result in evidence being concealed or destroyed, or
(b)  an immediate search is necessary to protect the safety of a person.
In such a case, the police officer must make a record of the reasons for not conducting the search in the presence of a parent or guardian, or other person capable of representing the interests, of the person being searched.
(4)  A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.
(5)  A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(6)  A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
(7)  A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present.
(8)  This section is in addition to the other requirements of this Act relating to searches.
(9)  In this section—
impaired intellectual functioning means—
(a)  total or partial loss of a person’s mental functions, or
(b)  a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(c)  a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.
Note.
 Procedures for searches of a more invasive nature are dealt with under the Crimes (Forensic Procedures) Act 2000.
34   No strip searches of children under 10 years
A strip search must not be conducted on a person who is under the age of 10 years.
34A   Searches carried out with consent
(1)  A police officer may search a person with the person’s consent but only if the police officer has sought the person’s consent before carrying out the search.
(2)  A police officer must, before carrying out any such consensual search, provide the person with—
(a)  evidence that the police officer is a police officer (unless the police officer is in uniform), and
(b)  the name of the police officer and his or her place of duty.
Division 5 Vehicle stop, entry, search and roadblock powers
35   Relevant offences
The following offences are relevant offences for the purposes of this Division—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts.
36   Power to search vehicles and seize things without warrant
(1)  A police officer may, without a warrant, stop, search and detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b)  the vehicle is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(c)  the vehicle contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d)  the vehicle is in a public place or school and contains a dangerous article that is being, or was, or may have been, used in or in connection with the commission of a relevant offence,
(e)  the vehicle contains, or a person in the vehicle has in his or her possession or under his or her control, a prohibited plant or prohibited drug in contravention of the Drug Misuse and Trafficking Act 1985,
(f)  circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
(2)  A police officer may, without a warrant, stop, search and detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reasonable grounds that any of the following circumstances exist—
(a)  a vehicle of the specified class of vehicles is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence,
(b)  circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen the risk.
(3)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
36A   Power to stop vehicles
A police officer may stop a vehicle if the police officer suspects on reasonable grounds that the driver of, or a passenger in or on, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest or detention or a search power under this Act or any other law.
37   Powers to stop vehicles and erect roadblocks
(1)  For the purposes of this Act, the following are vehicle roadblock powers
(a)  the power to establish a roadblock (consisting of any appropriate form of barrier or obstruction preventing or limiting the passage of vehicles) on any specified road, road related area or other public place or school,
(b)  the power to stop vehicles at a roadblock.
(2)  A senior police officer may authorise another police officer to exercise any or all of the vehicle roadblock powers in respect of any specified vehicle (or class of vehicles) on a road, road related area or other public place or school if the senior police officer suspects on reasonable grounds that—
(a)  the vehicle (or a vehicle of the specified class of vehicles) is being, or was, or may have been, used in or in connection with the commission of an indictable offence and the exercise of the powers may provide evidence of the commission of the offence, or
(b)  circumstances exist on or in the vicinity of that road, road related area, place or school that are likely to give rise to a serious risk to public safety and the exercise of the powers may lessen the risk.
(3)  A police officer may exercise vehicle roadblock powers without obtaining an authorisation by a senior police officer if the police officer suspects on reasonable grounds that it is necessary to exercise the powers and that the seriousness and urgency of the circumstances require the powers to be exercised without obtaining the authorisation.
(4)  A police officer who acts under subsection (3) must notify a senior police officer as soon as practicable and obtain an authorisation for any ongoing action.
38   Power to give reasonable directions
A police officer who exercises a stop, search or detention power under this Division, or who is authorised to exercise a vehicle roadblock power under this Division, has the power to give reasonable directions (to facilitate the exercise of the power) to any person—
(a)  in or on the vehicle concerned, or
(b)  on or in the vicinity of a road, road related area or other public place or school.
39   Failure to comply with directions
A person must not, without reasonable excuse—
(a)  fail or refuse to stop a vehicle the person is driving when directed to do so by a police officer under this Division, or
(b)  fail or refuse to comply with any other direction given by a police officer under this Division.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
40   Duration and form of roadblock authorisation
(1)  A roadblock authorisation may be given either verbally (including by telephone, radio or other communication device) or in writing (including facsimile).
(2)  A roadblock authorisation has effect for a period of 6 hours (or such lesser period as may be specified by the senior police officer giving the authorisation).
(3)  Nothing in this section prevents a senior police officer from giving a further roadblock authorisation in respect of the same vehicle (or class of vehicles) on a road, road related area or other public place or school.
41   Record of roadblock authorisation
(1)  A senior police officer who gives a roadblock authorisation must—
(a)  if the authorisation is in writing—specify the following—
(i)  the date on, and time at, which the authorisation is given,
(ii)  the vehicle roadblock powers conferred by the authorisation and the indictable offence or risk to public safety in respect of which the authorisation is given,
(iii)  the road, road related area or other public place or school in respect of which the authorisation is given,
(iv)  the vehicle (or class of vehicles) in respect of which the authorisation is given,
(v)  the period of the authorisation if the period is less than 6 hours, or
(b)  if the authorisation is given verbally—make a record as soon as is reasonably practicable after the giving of the authorisation of the matters referred to in paragraph (a).
(2)  A failure to comply with subsection (1) does not invalidate a roadblock authorisation.
Division 6 Vessel and aircraft entry and search powers
42   Power to search vessels and aircraft and seize things without warrant
(cf Crimes Act 1900, ss 357, 357D, 357E)
(1)  A police officer may, without a warrant, stop, search and detain a vessel or an aircraft if the police officer suspects on reasonable grounds that any of the following circumstances exists—
(a)  the vessel or aircraft contains, or a person in the vessel or aircraft has in his or her possession or under his or her control, anything stolen or otherwise unlawfully obtained,
(b)  the vessel or aircraft is being or was used in or in connection with the commission of a relevant offence,
(c)  the vessel or aircraft contains anything used or intended to be used in or in connection with the commission of a relevant offence,
(d)  the vessel or aircraft is in a public place and contains a dangerous article that is being or was used in or in connection with the commission of a relevant offence.
(2)  A police officer may seize and detain—
(a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and
(b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
(c)  any dangerous article, and
(d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,
found as a result of a search under this section.
(3)  The following offences are relevant offences for the purposes of this section—
(a)  indictable offences,
(b)  an offence against section 93FB of the Crimes Act 1900,
(c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts.
43   Power to board vessels
(cf Crimes Act 1900, s 357C)
(1)  A police officer authorised by this section may, without a warrant, with as many other police officers as he or she thinks necessary, take the actions set out in subsection (2) if the police officer suspects on reasonable grounds that it is necessary to do so—
(a)  to prevent, on a vessel, injury to people or damage to property by fire or otherwise, or
(b)  to preserve peace and good order on a vessel, or
(c)  to prevent, detect or investigate any offence that may be, or may have been, committed on a vessel.
(2)  The police officer may take any one or more of the following actions—
(a)  enter into any part of any vessel,
(b)  search and inspect the vessel,
(c)  take all necessary measures for preventing, on the vessel, injury to persons or damage to property by fire or otherwise,
(d)  take all necessary measures for preserving peace and good order on the vessel or for preventing, detecting or investigating any offences that may be, or may have been, committed on the vessel.
(3)  The following police officers are authorised by this section—
(a)  a police officer of or above the rank of sergeant,
(b)  a police officer in charge of a police station,
(c)  a police officer in charge of a police vessel.
44   Power to search aircraft for safety reasons
(cf Crimes Act 1900, s 357A)
(1)  An authorised person may, without a warrant, search an aircraft, any person on board or about to board an aircraft, or any luggage or freight on board an aircraft, or about to be placed on board an aircraft, if the person suspects on reasonable grounds that an offence involving the safety of the aircraft is being, or was, or may have been, or may be, committed on board or in relation to the aircraft.
(2)  The following persons are authorised persons for the purposes of this section—
(a)  the commander of the aircraft,
(b)  a person authorised in writing by an authorised officer, on the basis of a suspicion referred to in subsection (1), to carry out a search under this section.
(3)  A search of a person conducted under this section must be conducted by a person of the same sex as the person being searched.
45   Search powers relating to prohibited plants and prohibited drugs
(1)  A police officer authorised by this section may, without a warrant, with as many other police officers as he or she thinks necessary, take the actions set out in subsection (2) if the police officer reasonably suspects that there is in a vessel or aircraft a prohibited plant or prohibited drug that is, in contravention of the Drug Misuse and Trafficking Act 1985, in the possession or under the control of any person.
(2)  The police officer may take the following actions—
(a)  stop and detain the vessel or aircraft,
(b)  enter into any part of the vessel or aircraft,
(c)  search and inspect the vessel or aircraft.
(3)  The following police officers are authorised by this section—
(a)  a police officer of or above the rank of sergeant,
(b)  a police officer in charge of a police station,
(c)  a police officer in charge of a police vessel.
Division 7 Additional search and seizure powers in relation to things used to interfere with business or undertaking
45A   Things to which Division applies
This Division applies to anything that is intended to be used to lock-on or secure a person to any plant, equipment or structure for the purpose of interfering with the conduct of a business or undertaking and that is likely to be used in a manner that will give rise to a serious risk to the safety of any person.
45B   Power to search for and seize things without warrant
(1)  A police officer may, without warrant, stop, search and detain a person, vehicle, vessel or aircraft if the police officer suspects on reasonable grounds that the person has in his or her possession or under his or her control (or that the vehicle, vessel or aircraft contains) anything to which this Division applies.
(2)  A police officer may seize and detain all or part of a thing found as a result of a search under this section that the police officer suspects on reasonable grounds is a thing to which this Division applies.
45C   Forfeiture of things seized
(1)  A thing seized under this Division is forfeited to the Crown.
(2)  The Police Area Commander or Police District Commander (or such other person as that Commander may direct) may destroy or otherwise dispose of a thing so forfeited in accordance with the directions of the Commissioner.
(3)  The proceeds from any sale of a thing disposed of under this section are to be paid to the Treasurer for payment into the Consolidated Fund.
(4)  Part 17 does not apply to a thing seized under this Division and a court does not have jurisdiction on an application under that Part to order the delivery of the thing to the person from whom the thing was lawfully seized or who appears to be lawfully entitled to the thing.
Part 5 Search and seizure powers with warrant or other authority
Note.
 Safeguards relating to the exercise of powers under this Part are set out in Parts 15 and 17.
Division 1 Definitions
46   Interpretation
(1)  In this Part—
adjoining occupier’s notice means a notice referred to in section 67B.
eligible applicant, for a search warrant, means—
(a)  any police officer, or
(b)  if it is a covert search warrant—any person authorised to apply for such a warrant under section 46C, or
(c)  if it is a criminal organisation search warrant—a police officer authorised to apply for such a warrant under section 46D.
eligible issuing officer means—
(a)  for a warrant other than a covert search warrant or a criminal organisation search warrant—an authorised officer, or
(b)  for a covert search warrant or a criminal organisation search warrant—an eligible Judge, or
(c)  for a notice to produce issued under Division 3—an authorised officer.
eligible Judge—see section 46B.
executing officer means—
(a)  for a warrant other than a covert search warrant—any police officer, or
(b)  for a covert search warrant—
(i)  any police officer, or
(ii)  any member of staff of the Law Enforcement Conduct Commission if the applicant for the warrant was authorised to make the application under section 46C(1)(b), or
(iii)  any member of staff of the New South Wales Crime Commission if the applicant for the warrant was authorised to make the application under section 46C(1)(c).
indictable offence includes any act or omission which if done, or omitted to be done, in New South Wales would constitute an offence punishable on indictment.
occupier’s notice means an occupier’s notice referred to in section 67.
organised criminal activity—see section 46AA.
searchable offence—see section 46A.
subject premises, in relation to a warrant or an application for a warrant, means premises the subject of the warrant or the application (as the case may be).
telephone crime scene warrant means a crime scene warrant that is a telephone warrant.
telephone warrant means a warrant applied for by telephone as provided by section 61.
(2)  A reference in this Part to an offence includes a reference to an offence that there are reasonable grounds for believing has been, is being, or is to be, committed (as the case requires).
(3)  For the purposes of this Part, a thing is connected with a particular offence if it is—
(a)  a thing with respect to which the offence has been committed, or
(b)  a thing that will provide evidence of the commission of the offence, or
(c)  a thing that was used, or is intended to be used, in or in connection with the commission of the offence.
(4)  Nothing in this Part applies to or in respect of, or affects the exercise of any power under, a covert search warrant issued under the Terrorism (Police Powers) Act 2002.
46AA   Organised criminal activity
(1)  In this Part—
organised criminal activity means any activity that—
(a)  is carried out on an organised basis, and
(b)  is carried out to advance any one or more of the following objectives—
(i)  obtaining material benefits from conduct constituting a serious indictable offence,
(ii)  obtaining material benefits from conduct engaged in outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious indictable offence,
(iii)  committing serious violence offences,
(iv)  engaging in conduct outside New South Wales (including outside Australia) that, if it occurred in New South Wales, would constitute a serious violence offence.
serious violence offence means an offence punishable by imprisonment for life or for a term of 10 years or more, where the conduct constituting the offence involves—
(a)  loss of a person’s life or serious risk of loss of a person’s life, or
(b)  serious injury to a person or serious risk of serious injury to a person, or
(c)  serious damage to property in circumstances endangering the safety of any person, or
(d)  perverting the course of justice (within the meaning of Part 7 of the Crimes Act 1900) in relation to any conduct that, if proved, would constitute a serious violence offence as referred to in paragraph (a), (b) or (c).
(2)  For the purposes of this section, an activity is carried out on an organised basis if it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant.
46A   Searchable offences
(cf former LEPRA, s 47(1))
(1)  For the purposes of this Part, searchable offence in relation to a warrant—
(a)  means any of the following—
(i)  an indictable offence,
(ii)  a firearms or prohibited weapons offence,
(iii)  a narcotics offence,
(iv)  a child abuse material offence,
(v)  an offence involving a thing being stolen or otherwise unlawfully obtained, and
(b)  if the warrant is a covert search warrant—means a serious offence, and
(c)  if the warrant is a criminal organisation search warrant—means an organised crime offence.
(2)  In subsection (1)—
child abuse material offence means an offence under section 91H or 578C of the Crimes Act 1900.
firearms or prohibited weapons offence means an offence under the Firearms Act 1996, the Weapons Prohibition Act 1998 or a regulation made under either of those Acts, being an offence committed in respect of a firearm, an imitation firearm or a prohibited weapon within the meaning of those Acts.
narcotics offence means—
(a)  an offence under the Poisons and Therapeutic Goods Act 1966, or a regulation made under that Act, being an offence committed in respect of—
(i)  a restricted substance prescribed for the purposes of section 16 of that Act, or
(ii)  a drug of addiction within the meaning of that Act, or
(b)  an offence under the Drug Misuse and Trafficking Act 1985 or a regulation made under that Act.
organised crime offence means any serious indictable offence arising from, or occurring as a result of, organised criminal activity.
serious offence means the following—
(a)  any indictable offence punishable by imprisonment for a period of 7 or more years and that involves the following—
(i)  the supply, manufacture or cultivation of drugs or prohibited plants,
(ii)  the possession, manufacture or sale of firearms within the meaning of the Firearms Act 1996,
(iii)  money laundering,
Note.
 For example, section 193B of the Crimes Act 1900.
(iv)  car and boat rebirthing activities,
Note.
 For example, section 154G of the Crimes Act 1900.
(v)  the unauthorised access to, or modification or impairment of, computer data or electronic communications,
(vi)  an activity involving theft carried out on an organised basis,
(vii)  violence causing grievous bodily harm or wounding,
(viii)  the possession, manufacture or supply of false instruments,
(ix)  corruption,
(x)  destruction of property,
(xi)  homicide,
(xii)  kidnapping,
(b)  any offence under Division 10 (Sexual offences against adults and children) of Part 3 of the Crimes Act 1900 punishable by imprisonment for a period of 7 or more years,
(c)  an offence under section 80D (Causing sexual servitude) or 80E (Conduct of business involving sexual servitude) of the Crimes Act 1900,
(d)  an offence under section 93FA (Possession, supply or making of explosives) of the Crimes Act 1900,
(e)  an offence under Division 15 (Child prostitution) or 15A (Child pornography) of Part 3 of the Crimes Act 1900,
(f)  an offence under section 308F (Possession of data with intent to commit serious computer offence) or 308G (Producing, supplying or obtaining data with intent to commit serious computer offence) of the Crimes Act 1900,
(g)  an offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, an offence referred to in paragraphs (a)–(f).
(3)  For the purposes of this section, an activity involving theft is carried out on an organised basis if—
(a)  it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and
(b)  it is carried out for profit or gain.
46B   Eligible Judges
(1)  In this Part—
eligible Judge means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.
(2)  A Judge of the Supreme Court may, by instrument in writing, consent to be nominated by the Attorney General under subsection (3).
(3)  The Attorney General may, by instrument in writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Part.
(4)  An eligible Judge has, in relation to the exercise of a function conferred on the eligible Judge by this Part, the same protection and immunity as a Judge of the Supreme Court has in relation to proceedings in the Supreme Court.
(5)  A Judge who has given consent under this section may, by instrument in writing, revoke the consent.
(6)  A declaration of an eligible Judge under subsection (3) cannot be revoked by the Attorney General. However, the declaration of a Judge as an eligible Judge is revoked if—
(a)  the eligible Judge revokes his or her consent in accordance with subsection (5) or ceases to be a Judge, or
(b)  the Chief Justice notifies the Attorney General that the Judge should not continue to be an eligible Judge.
(7)  To avoid doubt, the selection of the eligible Judge to exercise any particular function conferred on eligible Judges is not to be made by the Attorney General or other Minister of the Crown, and the exercise of that particular function is not subject to the control and direction of the Attorney General or other Minister of the Crown.
46C   Authority to apply for covert search warrant
(1)  The following persons are authorised to apply for a covert search warrant—
(a)  a police officer authorised to make the application by a police officer holding the rank of Superintendent or above,
(b)  the Chief Commissioner, or the Commissioner for Integrity, of the Law Enforcement Conduct Commission or a member of staff of that Commission authorised to make the application by the Chief Commissioner or the Commissioner for Integrity,
(c)  the Commissioner or an Assistant Commissioner for the New South Wales Crime Commission or a member of staff of the New South Wales Crime Commission authorised to make the application by the Commissioner or an Assistant Commissioner.
(2)  An authorisation to apply for a covert search warrant in respect of a searchable offence may be given in accordance with this section if the person giving the authorisation—
(a)  suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with the searchable offence, and
(b)  considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises.
46D   Authority to apply for criminal organisation search warrant
(1)  An application for a criminal organisation search warrant may be made by a police officer authorised to make the application by a police officer holding the rank of Superintendent or above.
(2)  An authorisation to apply for a criminal organisation search warrant in respect of a searchable offence may be given in accordance with this section if the person giving the authorisation suspects on reasonable grounds that there is, or within 7 days there will be, in or on the premises a thing of a kind connected with the searchable offence.
Division 2 Police and other law enforcement officers’ powers relating to warrants
47   Power to apply for search warrants
(cf Search Warrants Act 1985 s 5, Crimes Act 1900, ss 357EA, 578D, former LEPRA, s 47)
(1)  A police officer may apply to an eligible issuing officer for a search warrant (other than a criminal organisation search warrant) in respect of any premises if the police officer believes on reasonable grounds that there is, or within 72 hours will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.
(2)  Without limiting subsection (1), a police officer may apply to an eligible issuing officer for a search warrant if the police officer believes on reasonable grounds that a child prostitution offence has recently been committed, is being committed, or within 72 hours will be committed, on or with respect to premises.
(3)  An eligible applicant may apply to an eligible issuing officer for a covert search warrant to authorise the covert entry and search of premises if the eligible applicant—
(a)  suspects on reasonable grounds that there is, or within 10 days will be, in or on the premises a thing of a kind connected with a searchable offence in relation to the warrant, and
(b)  considers that it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises.
(3A)  An eligible applicant may apply to an eligible issuing officer for a criminal organisation search warrant in respect of premises if the eligible applicant has reasonable grounds to suspect that there is, or within 7 days there will be, in or on the premises a thing connected with a searchable offence in relation to the warrant.
(4)  To avoid doubt, an application may be made under this section with respect to an act or omission that would be a searchable offence for the warrant if done, or omitted to be done, in New South Wales even though the act or omission occurred outside New South Wales and was not an offence against the law of New South Wales.
(5)  In this section—
child prostitution offence means an offence under section 91D, 91E, 91F or 91G of the Crimes Act 1900.
47A   General authority conferred by search warrants
(cf former LEPRA, s 48)
(1)  A search warrant authorises any executing officer for the warrant—
(a)  to enter the subject premises, and
(b)  to search the premises for things connected with a particular searchable offence in relation to the warrant.
Note.
 Section 67 requires that an occupier of the premises entered under a search warrant (other than a covert search warrant) be given notice on entry or as soon as practicable afterwards. Notice under a covert search warrant is not required to be given to the occupier on entry—see section 67A which permits the deferral of the giving of notice for up to 3 years in total in specified circumstances.
(2)  If the search warrant is a covert search warrant, the executing officer is also authorised—
(a)  to conduct the entry and search of the subject premises without the knowledge of any occupier of the subject premises, and
(b)  if necessary to do so to enter and search the subject premises—to enter premises adjoining or providing access to the subject premises (adjacent premises) without the knowledge of the occupier of the adjacent premises, and
(c)  to impersonate another person for the purposes of executing the warrant, and
(d)  to do anything else that is reasonable for the purpose of concealing anything done in the execution of the warrant from the occupier of the premises.
Note.
 Other sections of this Act authorise other things to be done under search warrants.
48   Issue of search warrants
(cf Search Warrants Act 1985, s 6, Crimes Act 1900, s 357EA, former LEPRA, s 48)
(1)  An eligible issuing officer to whom an application for a search warrant is made under section 47 may, if satisfied that there are reasonable grounds for doing so, issue the search warrant.
Note.
 See section 62(3) in relation to matters to be considered by an eligible issuing officer in determining whether there are reasonable grounds to issue a warrant.
(2)  An eligible issuing officer to whom an application is made for a covert search warrant who is not satisfied that there are reasonable grounds for issuing the covert search warrant may, at the request of the eligible applicant (if the eligible applicant is a police officer), instead issue a search warrant that may not be executed covertly, but only if satisfied that there are reasonable grounds to do so.
49   Seizure of things pursuant to search warrant
(cf Search Warrants Act 1985, s 7, former LEPRA, s 49)
(1)  A person executing a search warrant issued under this Division—
(a)  may seize and detain a thing (or thing of a kind) mentioned in the warrant, and
(b)  may, in addition, seize and detain any other thing that the person finds in the course of executing the warrant and that the person has reasonable grounds to believe is connected with any offence.
(2)  Without limiting subsection (1), the power to seize and detain a thing includes—
(a)  a power to remove the thing from the premises where it is found, and
(b)  a power to guard the thing in or on those premises, and
(c)  if it is a covert search warrant that authorises the placing of a kind of thing in substitution for a seized thing—a power to place a thing of that kind on the subject premises in substitution for a thing seized.
Note.
 For the disposal of things seized pursuant to a search warrant, see Division 2 of Part 17.
49A   Return or retrieval of thing seized or placed
(1)  A covert search warrant may authorise the return of a thing seized under section 49(1)(a), or the retrieval of a thing placed under section 49(2)(c), if the warrant expressly authorises such a return or retrieval.
(2)  If the covert search warrant authorises the return or retrieval of a thing, the subject premises may be re-entered by an executing officer, but only for the purpose of returning or retrieving the thing (as the case may be).
(3)  Any re-entry to return or retrieve a thing must occur within 7 days of the first entry under the covert search warrant (or such longer period as is allowed, prior to the expiration of the 7-day period, by an eligible issuing officer).
(4)  An executing officer authorised to re-enter premises and return or retrieve a thing under this section may do so with the aid of such assistants as the executing officer considers necessary.
50   Search of persons pursuant to warrant
(cf Search Warrants Act 1985, s 8, former LEPRA, s 50)
A person executing a search warrant issued under this Division may search any person found in or on the premises whom the person executing the warrant reasonably suspects of having a thing mentioned in the warrant.
Notes.
 
1   
Under sections 99 and 100 a police officer or other person may arrest and take before an authorised officer to be dealt with according to law any person found in or on the premises whom the police officer or other person suspects on reasonable grounds of having committed an offence.
2   
Division 4 of Part 4 contains provisions generally applicable to searches of persons.
51   Inquiries pursuant to warrant related to child prostitution offences
Without limiting any other powers under this Division, a person executing a search warrant issued under this Division in relation to an offence under section 91D, 91E, 91F or 91G of the Crimes Act 1900 may make in the premises the subject of the warrant inquiries relating to any such offence.
52   Obstruction or hindrance of person executing warrant
A person must not, without reasonable excuse, obstruct or hinder a person executing a warrant issued under this Division.
Maximum penalty—100 penalty units or 2 years imprisonment, or both.
Division 3 Notices to produce documents
53   Notices to produce documents
(1)  A police officer who believes on reasonable grounds that an authorised deposit-taking institution holds documents that may be connected with an offence committed by someone else may apply to an eligible issuing officer for a notice to produce the documents.
(2)  An application under this section may be, but is not required to be, made instead of an application for a search warrant.
(3)  To avoid doubt, an application under this section may be made under this Division with respect to an act or omission that is an offence even though the act or omission occurred outside New South Wales and was not an offence against the law of New South Wales, if the act or omission if done, or omitted to be done, in New South Wales would constitute an offence.
Note.
 For provisions relating generally to applications for notices to produce documents and other matters, see section 59.
54   Issue of notice to produce documents
(1)  An eligible issuing officer to whom an application for a notice to produce documents is made may, if satisfied that there are reasonable grounds for doing so, issue the notice to produce documents.
(2)  The eligible issuing officer may, in the notice, specify that the documents are to be produced to a police officer within a stated time and at a stated place and in a stated form (whether electronic or otherwise).
(3)  A police officer must give the notice to the authorised deposit-taking institution named in the notice as soon as reasonably practicable after it is issued.
55   Information in application for notice to produce documents
Without limiting the application of section 54 to notices to produce documents, an eligible issuing officer must not issue a notice to produce documents unless the application for the notice includes the name of the authorised deposit-taking institution the subject of the application.
56   Claims of privilege
(1)  If, under a notice to produce documents, an authorised deposit-taking institution claims that documents required to be produced contain communications between the institution and someone else that may not, in proceedings, be adduced under Division 1, 1A or 3 of Part 3.10 of the Evidence Act 1995, the police officer must, if the police officer proposes to proceed to enforce the notice, as soon as reasonably practicable, apply to a Magistrate for an order for access to the documents.
(2)  A Magistrate may, on application made under this section in respect of a document, make one of the following orders—
(a)  that the police officer be given access to the document,
(b)  that the documents be given to the police officer and copied by the police officer and the original document be returned to the authorised deposit-taking institution,
(c)  that the document is not required to be produced by the authorised deposit-taking institution.
(3)  If an order is made under subsection (2)(b)—
(a)  a police officer is authorised, if the document is in electronic form, to produce a hard copy of the information contained in the document, and
(b)  the order may include a condition that the document must, on the request of a police officer, be produced to a court hearing a proceeding for an offence for which the document is to be used as evidence.
57   Obligations and liability of authorised deposit-taking institution
(1)  An authorised deposit-taking institution is not subject to any action, liability, claim or demand for complying with, or producing something in the honest belief that it was complying with a notice to produce documents or an order of a Magistrate under this Division.
(2)  An authorised deposit-taking institution, or an officer of an authorised deposit-taking institution, must not, without reasonable excuse, fail or refuse to comply with a notice to produce documents.
Maximum penalty—100 penalty units or 2 years imprisonment, or both.
58   Produced document taken to be seized
A document produced under this Division is taken to have been seized under this Act.
Division 4 Provisions relating generally to warrants and notices to produce documents
59   Application of Division
(1)  This Division (other than section 61A) applies to the following warrants—
(a)  search warrants issued to executing officers under Division 2,
(b)  search warrants issued under a provision specified in Schedule 2,
(c)  crime scene warrants issued under Part 7,
(d)  warrants issued under Division 1 of Part 11,
(e)  search warrants issued under a provision of, or a provision made under, an Act, being a provision that provides that this Division applies to a search warrant issued under that provision.
(2)  This Division (other than sections 67, 67B and 68 and sections 61(5)–(8) and 73A(6)(e), to the extent they require an occupier’s notice) applies to notices to produce documents issued under Division 3 in the same way as it applies to warrants.
(3)  This Division (other than sections 61A, 67, 67B and 68 and sections 61(5)–(8) and 73A(6)(e), to the extent they require an occupier’s notice) applies to warrants issued under Part 6 and Division 2 of Part 11.
(4)  Sections 60(2), (3) and (4), 61(2)–(8), 63–66, 75 and 76 apply to detention warrants issued under Part 9.
60   Application for warrant in person
(1)  An application for a warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.
(2)  An eligible issuing officer must not issue a warrant unless the information given by the applicant in or in connection with the application is verified before the eligible issuing officer on oath or affirmation or by affidavit.
(3)  An eligible issuing officer may administer an oath or affirmation or take an affidavit for the purposes of an application for a warrant.
(4)  This section does not apply to a telephone warrant.
61   Telephone warrant
(1)  A person may apply by telephone for a warrant.
Note.
 Telephone includes radio, facsimile and any other communication device.
(2)  An eligible issuing officer must not issue a warrant on an application made by telephone unless the eligible issuing officer is satisfied that the warrant is required urgently and that it is not practicable for the application to be made in person.
(3)  An application must be made by facsimile if the facilities to do so are readily available for that purpose.
(4)  If it is not practicable for an application for a warrant to be made by telephone directly to an eligible issuing officer, the application may be transmitted to the eligible issuing officer by another person on behalf of the applicant.
(5)  An eligible issuing officer who issues a warrant on an application made by telephone must—
(a)  complete and sign the warrant, and
(b)  furnish the warrant to the person who made the application or inform that person of the terms of the warrant and of the date and time when it was signed, and
(c)  prepare and furnish an occupier’s notice to the person who made the application or inform the person of the terms of the occupier’s notice.
(6)  If a warrant is issued on an application made by telephone, the applicant—
(a)  in a case where the applicant was not furnished with the warrant—must complete a form of warrant in the terms indicated by the eligible issuing officer under subsection (5) and write on it the name of that eligible issuing officer and the date and time when the warrant was signed, and
(b)  in a case where the applicant was not furnished with an occupier’s notice—must complete a form of occupier’s notice in the terms indicated by the eligible issuing officer under subsection (5).
(7)  A form of warrant and a form of occupier’s notice so completed is taken to be a warrant issued, and an occupier’s notice prepared and furnished, in accordance with this Act.
(8)  A warrant or occupier’s notice is to be furnished by an eligible issuing officer by transmitting it by facsimile, if the facilities to do so are readily available, and the copy produced by that transmission is taken to be the original document.
61A   Application for notice to produce documents
(1)  Despite sections 60 and 61, a person may apply for a notice to produce documents by email and any other method authorised by the regulations and in the form prescribed by the regulations.
(2)  An eligible issuing officer must not issue the notice unless the information given by the applicant in or in connection with the application is verified by affidavit.
(3)  An application for a notice to produce documents may also be made under section 60 or 61, if applicable.
62   Information in, and consideration of, application for warrant
(cf Search Warrants Act 1985, s 12A, former LEPRA, s 62)
(1)  An eligible issuing officer must not issue a warrant unless the application for the warrant includes the following information—
(a)  the name of the applicant and details of the authority of the applicant to make the application for the warrant,
(b)  particulars of the grounds on which the application is based, including (without limitation) the nature of the searchable offence or other offence involved,
(c)  the address or other description of the subject premises,
(d)  if the warrant is required to search for a particular thing—a full description of that thing and, if known, its location,
(e)  if the warrant is required to search for a kind of thing—a description of the kind of thing,
(f)  if a previous application for the same warrant was refused—details of the refusal and any additional information required by section 64,
(g)  any other information required by the regulations.
(2)  In addition, an eligible issuing officer must not issue a covert search warrant unless the application for the warrant includes the following information—
(a)  the name of the following persons—
(i)  the occupier (if known) of the subject premises,
(ii)  any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,
(b)  whether the occupier is believed to be knowingly concerned with the commission of that searchable offence,
(c)  if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises—the address or other description of the premises that adjoin or provide such access and particulars of the grounds on which entry to those premises is required,
(d)  any powers proposed to be exercised on entry to the subject premises that are sought to be authorised by the warrant under section 47A(2)(d),
(e)  details of any covert search warrant that has previously been issued in respect of the subject premises.
(2A)  In addition, an eligible issuing officer must not issue a criminal organisation search warrant unless the application for the warrant includes the following information—
(a)  the name of the following persons—
(i)  the occupier (if known) of those premises,
(ii)  any person believed to have committed, or to be intending to commit, the searchable offence in respect of which the application is made,
(b)  whether the occupier is believed to be knowingly concerned with the commission of the searchable offence.
(3)  An eligible issuing officer, when determining whether there are reasonable grounds to issue a warrant, is to consider (but is not limited to considering) the following matters—
(a)  the reliability of the information on which the application is based, including the nature of the source of the information,
(b)  if the warrant is required to search for a thing in relation to an alleged offence—whether there is sufficient connection between the thing sought and the offence.
(4)  In addition, an eligible issuing officer, when determining whether there are reasonable grounds to issue a covert search warrant, is to consider the following matters—
(a)  the extent to which it is necessary for the entry and search of those premises to be conducted without the knowledge of any occupier of the premises,
(b)  the nature and gravity of the searchable offence in respect of which the application is made,
(c)  the extent to which the privacy of a person who is not believed to be knowingly concerned in the commission of the searchable offence is likely to be affected if the warrant is issued,
(d)  whether any conditions should be imposed by the eligible issuing officer in relation to the execution of the warrant,
(e)  if it is proposed that premises adjoining or providing access to the subject premises be entered for the purposes of entering the subject premises—
(i)  whether this is reasonably necessary in order to enable access to the subject premises, or
(ii)  whether this is reasonably necessary in order to avoid compromising the investigation of the searchable offence or other offence.
(5)  The applicant must provide (either orally or in writing) such further information as the eligible issuing officer requires concerning the grounds on which the warrant is being sought.
(6)  Nothing in this section requires an applicant for a warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.
63   False or misleading information in applications
(1)  A person must not, in or in connection with an application for a warrant, give information to an eligible issuing officer that the person knows to be false or misleading in a material particular.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(1A)  A person must not, in or in connection with a report or an occupier’s notice given in relation to a search warrant, give information to an eligible issuing officer that the person knows to be false or misleading in a material particular.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(2)  This section applies to an application by telephone as well as in person.
(3)  This section applies whether or not the information given is also verified on oath or affirmation or by affidavit.
64   Further application for warrant after refusal
(1)  If an application by a person for a warrant is refused by an eligible issuing officer, that person (or any other person who is aware of the application) may not make a further application for the same warrant to that or any other eligible issuing officer unless the further application provides additional information that justifies the making of the further application.
(2)  However, in the case of a warrant other than a covert search warrant, a further application may be made to a Magistrate following a refusal to issue the warrant by an eligible issuing officer who is not a Magistrate whether or not additional information is provided in the further application. Only one such further application may be made in any particular case.
65   Record of proceedings before eligible issuing officer
(1)  An eligible issuing officer who issues a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the issue of the warrant.
(1A)  An eligible issuing officer who refuses to issue a warrant must cause a record to be made of all relevant particulars of the grounds the eligible issuing officer has relied on to justify the refusal to issue the warrant.
(2)  The regulations may make provision for or with respect to—
(a)  the keeping of records in connection with the issue and execution of warrants, and
(b)  the inspection of any such records, and
(c)  any other matter in connection with any such records.
(3)  Any matter that might disclose the identity of a person must not be recorded pursuant to this section if the eligible issuing officer is satisfied that to do so might jeopardise the safety of any person.
66   Form of warrant
(1)  A warrant is to be in the form prescribed by the regulations.
(2)  Without limiting subsection (1), a covert search warrant must specify the following—
(a)  the address or other description of any premises that adjoin or provide access to the subject premises that may be entered under the warrant for the purposes of entering the subject premises,
(b)  the name of the following persons—
(i)  the occupier (if known) of the subject premises,
(ii)  any person believed to have committed, or to be intending to commit, the searchable offence to which the warrant relates,
(c)  whether the occupier is believed to be knowingly concerned with the commission of that searchable offence,
(d)  any conditions imposed in relation to the execution of the warrant,
(e)  a description of the kinds of things that may be placed in substitution for a seized thing,
(f)  any other matter required by the regulations.
67   Notice to occupier of premises entered pursuant to warrant
(1)  An eligible issuing officer is to prepare and give an occupier’s notice to the person to whom the eligible issuing officer issues a warrant.
(2)  An occupier’s notice—
(a)  is to be in the form prescribed by the regulations, and
(b)  must specify the following—
(i)  the name of the person who applied for the warrant,
(ii)    (Repealed)
(iii)  the date and the time when the warrant was issued,
(iv)  the address or other description of the premises the subject of the warrant, and
(c)  must contain a summary of the nature of the warrant and the powers conferred by the warrant.
(3)  An occupier’s notice under this section may be served personally or in such other manner as the eligible issuing officer who issued the warrant may direct.
(4) Time for service of notice—warrant other than a covert search warrant A person executing a warrant other than a covert search warrant must—
(a)  on entry into or onto the premises or as soon as practicable after entry, serve the occupier’s notice on a person who appears to be an occupier of the premises and to be of or above the age of 18 years, or
(b)  if no such person is then present in or on the premises, serve the occupier’s notice on the occupier of the premises within 48 hours after executing the warrant.
(5)  If an occupier’s notice cannot practicably be served on a person in accordance with subsection (4)(b), the eligible issuing officer who issued the warrant may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the occupier’s notice to the attention of the occupier.
(6)  An order under subsection (5) may direct that the occupier’s notice be taken to have been served on the occupier on the happening of a specified event or on the expiry of a specified time.
(7)  Service in accordance with an order under subsection (5) is taken to constitute personal service for the purposes of subsection (4).
(8) Time for service of notice—covert search warrant A person executing a covert search warrant must serve the occupier’s notice on the person who was the occupier of the subject premises at the time the covert search warrant was executed as soon as practicable after the warrant is executed, unless the service of the notice is postponed under section 67A.
67A   Postponement of service of occupier’s notice—covert search warrant
(1)  Service of an occupier’s notice relating to a covert search warrant may be postponed for a period of up to 6 months by the eligible issuing officer who issued the covert search warrant if that eligible issuing officer is satisfied that there are reasonable grounds for the postponement.
(2)  Service of an occupier’s notice may be postponed on more than one occasion, but must not be postponed on any one occasion for a period exceeding 6 months or for more than 3 years in total.
(3)  The eligible issuing officer must not postpone service of an occupier’s notice for periods exceeding 18 months in total unless satisfied that there are exceptional grounds that justify the postponement.
67B   Notice to adjoining occupiers of execution of covert search warrant
(1)  The person to whom a covert search warrant is issued is to prepare a notice under this section (an adjoining occupier’s notice) if the execution of the warrant will involve entering premises adjoining or providing access to the subject premises (adjoining premises) without the knowledge of the occupier of the adjoining premises.
(2)  Before the covert search warrant is executed, the adjoining occupier’s notice is to be provided to the eligible issuing officer who issued the warrant for that officer’s approval.
(3)  The adjoining occupier’s notice—
(a)  must specify the following—
(i)  the name of the person who applied for the covert search warrant,
(ii)  the date when the warrant was issued,
(iii)  the address or other description of the subject premises, and
(b)  is to specify or contain any other matters required by the regulations.
(4)  The adjoining occupier’s notice must be served on the person who was the occupier of the adjoining premises at the time the covert search warrant was executed, on (or as soon as practicable after) service of the occupier’s notice on the occupier of the subject premises under section 67 unless the eligible issuing officer directs that service of the notice may be dispensed with.
(5)  The adjoining occupier’s notice may be served personally or in such other manner as the eligible issuing officer who issued the covert search warrant may direct.
(6)  In this section—
adjoining premises does not include common property within the meaning of the Strata Schemes Management Act 2015.
68   Announcement before entry
(1)  One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises—
(a)  announce that the person is authorised by the warrant to enter the premises, and
(b)  give any person then in or on the premises an opportunity to allow entry into or onto the premises.
(2)  A person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the warrant is not frustrated.
69   Duty to show warrant
A person executing a warrant other than a covert search warrant must produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.
70   Use of force etc to enter and search premises
(1)  A person authorised to enter premises pursuant to a warrant may use such force as is reasonably necessary for the purpose of entering the premises.
(1A)  An executing officer authorised to enter premises pursuant to a warrant may, if it is reasonably necessary to do so for the purpose of entering those premises, do any of the following—
(a)  disable any alarm, camera or surveillance device at the premises,
(b)  pacify any guard dog at the premises.
(2)  A person authorised to search premises pursuant to a warrant may, if it is reasonably necessary to do so, break open any receptacle in or on the premises for the purposes of that search.
(3)  An executing officer authorised to search premises pursuant to a warrant may do anything that it is reasonably necessary to do for the purpose of preventing the loss or destruction of, or damage to, any thing connected with an offence that the executing officer believes on reasonable grounds to be at those premises, including by blocking any drains at or used in connection with the premises.
(4)  A person authorised to search premises pursuant to a warrant may do anything that it is reasonably necessary to do to render safe any dangerous article found in or on the premises.
71   Use of assistants to execute warrant
A person may execute a warrant with the aid of such assistants as the person considers necessary.
72   Execution of warrant by day or night
(1A)  A covert search warrant may be executed by day or by night.
(1)  A warrant (other than a covert search warrant) may be executed by day, but must not be executed by night unless the eligible issuing officer, by the warrant, authorises its execution by night.
(2)  An eligible issuing officer is not to authorise the execution of a warrant by night unless satisfied that there are reasonable grounds for doing so. Those grounds include (but are not limited to) the following—
(a)  the execution of the warrant by day is unlikely to be successful because, for example, it is issued to search for a thing that is likely to be on the premises only at night or other relevant circumstances will only exist at night,
(b)  there is likely to be less risk to the safety of any person if it is executed by night,
(c)  an occupier is likely to be on the premises only at night to allow entry without the use of force.
(3)  In this section—
by day means during the period between 6 am and 9 pm on any day.
by night means during the period between 9 pm on any day and 6 am on the following day.
73   Expiry of warrant
(1)  A warrant ceases to have effect, unless it is sooner withdrawn or extended, as follows—
(a)  in the case of any warrant (other than a telephone warrant or crime scene warrant)—when it has been executed, or at the time specified in it for its expiry, whichever first occurs,
(b)  in the case of a telephone warrant (other than a telephone crime scene warrant)—when it has been executed, or at the expiry of 24 hours after the time of its issue, whichever first occurs,
(c)  in the case of a crime scene warrant (other than a telephone crime scene warrant)—at the time specified in it for its expiry,
(d)  in the case of a telephone crime scene warrant—at the expiry of 24 hours after the time of its issue.
(2)  An eligible issuing officer who issues a warrant (other than a telephone warrant) must specify in the warrant the time when the warrant is to expire.
(2A)  The time so specified for a covert search warrant is the date that is 10 days after the date on which the warrant is issued.
(2B)  The time so specified for a criminal organisation search warrant is the date that is 7 days after the date on which the warrant is issued.
(3)  The time so specified for a warrant other than a covert search warrant or a criminal organisation search warrant is to be 72 hours after the issue of the warrant or, if the issue of the warrant for a period exceeding 72 hours is permitted by this section, at any time within a further period not exceeding 72 hours.
(4)  The issue of a warrant for a period exceeding 72 hours is permitted by this section if—
(a)  in the case of a warrant issued under Division 2 of Part 11—the eligible issuing officer is satisfied that the purpose for which the warrant was issued cannot be satisfied within 72 hours, or
(b)  in any other case—the eligible issuing officer is satisfied that the warrant cannot be executed within 72 hours.
(5)  If no time of expiry is specified in a warrant (other than a telephone warrant, a covert search warrant or a criminal organisation search warrant), the warrant expires 72 hours after issue.
(6)  If no time of expiry is specified in a covert search warrant, the warrant expires 10 days after issue.
(7)  If no time of expiry is specified in a criminal organisation search warrant, the warrant expires 7 days after issue.
73A   Extension of warrant
(1)  A warrant (other than a covert search warrant, a criminal organisation search warrant or a telephone warrant) that expires 72 hours after its issue may be extended by the eligible issuing officer who issued the warrant—
(a)  in the case of a warrant issued under Division 2 of Part 11—if the eligible issuing officer is satisfied that the purpose for which the warrant was issued cannot be satisfied within 72 hours, and
(b)  in any other case—if the eligible issuing officer is satisfied that the warrant cannot be executed within 72 hours.
(2)  A telephone crime scene warrant may be extended, for up to 60 hours at a time, by the eligible issuing officer who issued the warrant.
(3)  Any other telephone warrant may not be extended.
(4)  The time for expiry of a warrant that can be extended (other than a telephone crime scene warrant) may be extended only once.
(5)  The time for expiry of a telephone crime scene warrant may be extended twice.
(6)  Any extension of a warrant under this section—
(a)  must not extend the period for which the warrant has effect beyond 144 hours after its issue, except as provided by subsection (7), and
(b)  must be made on the application of the person to whom the warrant was issued or any other person who is authorised to execute the warrant, and
(c)  must be made on a written application made in person, unless it is impractical for the applicant to appear before an eligible issuing officer before the warrant expires, and
(d)  must be made before the expiry of the warrant, and
(e)  must be made by issuing a replacement warrant (specifying the new time for expiry of the warrant) and replacement occupier’s notice.
(7)  A crime scene warrant may be extended so that it has effect for a period of up to 720 hours after its issue if—
(a)  the offence in connection with which the warrant was issued is a terrorism offence, and
(b)  the eligible issuing officer who issued the warrant is satisfied that there are reasonable grounds for extending the warrant beyond a period of 144 hours after its issue.
Note.
 720 hours is equivalent to 30 days.
(8)  In this section—
terrorism offence means an offence under Part 6B of the Crimes Act 1900 or an offence under Division 101, 102 or 103 of the Criminal Code of the Commonwealth.
74   Report to eligible issuing officer on execution of warrant other than covert search warrant
(1)  The person to whom a warrant other than a covert search warrant is issued must furnish a report in writing to the eligible issuing officer who issued the warrant—
(a)  stating whether or not the warrant was executed, and
(b)  if the warrant was executed—setting out briefly the result of the execution of the warrant (including a brief description of anything seized), and
(c)  if the warrant was not executed—setting out briefly the reasons why the warrant was not executed, and
(d)  in the case of a search warrant—stating whether or not an occupier’s notice has been served in connection with the execution of the warrant, and
(e)  in the case of a telephone warrant—containing a copy of the form of warrant and, in the case of a search warrant, the form of occupier’s notice if those documents were not furnished to the person, and
(f)  containing such other particulars as may be prescribed by the regulations.
(2)  The report must be furnished within 10 days after the execution of the warrant or the expiry of the warrant, whichever first occurs.
74A   Report to eligible issuing officer on execution of covert search warrant
(1)  An executing officer for a covert search warrant must provide a report in writing to the eligible issuing officer who issued the warrant—
(a)  stating the address or other description of the subject premises, and
(b)  stating whether or not the warrant was executed, and
(c)  if the warrant was executed—
(i)  stating the date on which the warrant was executed, and
(ii)  stating the name (or code-name) of the person in charge when the warrant was executed, and
(iii)  stating the name (or code-name) of any person who entered the subject premises to assist in the execution of the warrant and the nature of the assistance provided, and
(iv)  stating the powers that were exercised under the warrant, and
(v)  setting out briefly the result of the execution of the warrant (including a brief description of anything seized, placed in substitution for a seized thing or examined and any data accessed under section 75B), and
(d)  if the warrant was not executed—setting out briefly the reasons why the warrant was not executed, and
(e)  containing such other particulars as may be prescribed by the regulations.
(2)  The report must be provided within 10 days after the execution of the warrant or the expiry of the warrant, whichever first occurs.
(3)  If premises are entered for the purposes of returning or retrieving a thing under section 49A, a report must also be provided in writing to the eligible issuing officer who issued the warrant—
(a)  stating the address or other description of the premises, and
(b)  stating the date on which the premises were re-entered, and
(c)  stating the name (or code-name) of any person who entered the premises for the purposes of the return or retrieval, and
(d)  stating the name (or code-name) of any person who re-entered the subject premises to assist in the return or retrieval of the thing and the nature of the assistance provided, and
(e)  setting out a brief description of the thing, and
(f)  if the thing was not returned or retrieved—setting out the reasons why the thing was not returned or retrieved, and
(g)  containing such other particulars as may be prescribed by the regulations.
(4)  The report is to be provided within 10 days after the entry to the premises for the purposes of retrieving or returning the thing under section 49A.
(5)  The Commissioner of Police, Commissioner for the New South Wales Crime Commission or Chief Commissioner of the Law Enforcement Conduct Commission is to ensure that a copy of any report provided under this section is given to the Attorney General.
(6)  A person may be referred to by a code-name in a report required under this section only if—
(a)  the person who provides the report believes on reasonable grounds that use of the code-name is necessary to protect the safety of the person referred to, and
(b)  a record of the person’s actual name and reasons for use of the code-name is kept by the authority in which the person is employed.
(7)  If an executing officer for a covert search warrant has died or is absent the report may be provided by another person from the authority in which the executing officer was or is employed who is authorised to make an application for a covert search warrant.
75   Death, absence of eligible issuing officer who issued warrant
(cf Search Warrants Act 1985, s 22, former LEPRA, s 75)
If the eligible issuing officer who issued a warrant has died, has ceased to be an eligible issuing officer or is absent—
(a)  a report required to be provided to that eligible issuing officer under section 74 or 74A, or
(b)  a power exercisable by that eligible issuing officer under section 67(5), 67A(1), 67B(4) and (5), 73(4), 73A or 75A(2) or (4),
must be provided to, or may be exercised by, as the case may be, any other eligible issuing officer.
75A   Operation of electronic and other equipment at premises and removal of things from premises for examination
(1)  A person executing or assisting in the execution of a warrant to which this Division applies may—
(a)  bring to the premises the subject of the warrant any electronic and other equipment reasonably necessary for the examination of a thing found at the premises, and
(b)  operate any such equipment (or equipment already at those premises) to examine a thing found at the premises in order to determine whether it is or contains a thing that may be seized under the warrant, and
(c)  move a thing found at the premises to another place (for up to 7 working days) for examination in order to determine whether it is or contains a thing that may be seized under the warrant if the occupier of the premises consents or if—
(i)  it is significantly more practicable to do so having regard to the timeliness and cost of examining the thing at another place and the availability of expert assistance, and
(ii)  there are reasonable grounds to suspect it is or contains a thing that may be seized under the warrant.
(2)  If a thing is moved to another place for examination under this section, an eligible issuing officer may authorise the removal of the thing for an additional period (not exceeding 7 working days at any one time) if satisfied that the additional period is required to determine whether it is or contains a thing that may be seized under the warrant.
(3)  The person executing the warrant must advise the occupier that the occupier may make submissions to the eligible issuing officer on the matter and is to give the occupier a reasonable opportunity to do so (except in the case of a covert search warrant).
(4)  The eligible issuing officer may authorise the removal of a thing for a period exceeding a total of 28 days only if satisfied that it is justified on the basis that there are exceptional circumstances in the case.
(5)  The limitation imposed by this section on the period that a thing may be removed to another place ceases when it is determined that it is or contains a thing that may be seized under the warrant.
(6)  This section does not authorise the operation of equipment already at the premises the subject of the warrant to examine a thing unless the person operating the equipment has reasonable grounds to believe that the examination can be carried out without damaging the equipment or the thing.
75B   Access to and downloading of data from computers (including access to computers outside premises the subject of a warrant)
(1)  The person executing or assisting in the execution of a warrant to which this Division applies may operate equipment at the premises the subject of the warrant to access data (including data held at premises other than the subject premises) if the person believes on reasonable grounds that the data might be data that could be seized under the warrant.
Note.
 Under section 49, data may be seized under a warrant if connected with an offence. Section 46(3) provides that a thing is connected with an offence if, for example, it will provide evidence of the commission of the offence.
(2)  The person executing or assisting in the execution of the warrant may—
(a)  copy any accessed data to a disk, tape or other data storage device brought to the premises, and
(b)  with the approval of the occupier of the premises, copy any accessed data to a disk, tape or other data storage device already at the premises, and
(c)  take the disk, tape or other data storage device from the premises to examine the accessed data to determine whether it (or any part of it) is data that could be seized under the warrant.
(3)  The person executing or assisting in the execution of the warrant may operate the equipment to put any data that could be seized in documentary form and seize the document so produced.
(4)  The person executing or assisting in the execution of the warrant may seize the equipment and any disk, tape or other data storage device—
(a)  if it is not practicable to exercise the powers referred to in subsection (2) or (3) in relation to the data, or
(b)  if possession by the occupier of the equipment or device could constitute an offence.
(5)  This section does not authorise the operation of equipment already at the premises the subject of the warrant to access data unless the person operating the equipment has reasonable grounds to believe that the equipment can be operated without damaging the equipment or the data.
(6)  The responsible officer for an authority must arrange for the removal of any data obtained by the exercise of a power referred to in this section by a member of the authority from any device under the control of the authority and the destruction of any other reproduction of the data in the control of the authority if the responsible officer is satisfied that the data is data that could not be seized under the warrant.
(7)  Subsection (6) does not require the destruction of court records.
(8)  In this section, responsible officer for an authority means the following—
(a)  in relation to data obtained by a police officer—the Commissioner of Police,
(b)  in relation to data obtained by a member of staff of the Law Enforcement Conduct Commission—the Chief Commissioner of the Law Enforcement Conduct Commission,
(c)  in relation to data obtained by a member of staff of the New South Wales Crime Commission—the Commissioner for the New South Wales Crime Commission,
(d)  in relation to data obtained in execution of a search warrant issued under a provision of an Act specified in Schedule 2—the person prescribed by the regulations.
76   Defects in warrants
A warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.
Division 5 Miscellaneous
76A   Applications with respect to covert search warrants to be dealt with in absence of public
Applications under this Part, and any matters arising under this Part, in respect of covert search warrants that are dealt with by an eligible issuing officer are to be dealt with in the absence of the public.
76B   Publication of documents relating to search warrants
(1)  A person must not intentionally or recklessly publish an application for a covert search warrant, a report prepared under section 74 or 74A, an occupier’s notice or any information directly derived from such an application, report or notice unless—
(a)  an occupier’s notice that relates to the execution of the warrant has been given under section 67 or 67B, or
(b)  directions have been given in relation to the giving of the occupier’s notice under section 67.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(2)  This section does not make it an offence to publish any application, report, notice or information if the publication is for the purposes of—
(a)  exercising any functions under this Part, or
(b)  the internal management of the NSW Police Force, the New South Wales Crime Commission, the Law Enforcement Conduct Commission, the Supreme Court or the Attorney General’s Department.
77   Abolition of common law search warrants
Any common law power conferred on a justice of the peace or any other person to issue a warrant authorising a person to enter premises for the purpose of searching for stolen goods or any other thing continues to be abolished.
78   Ministerial arrangements for things seized in connection with extra-territorial offences
(1)  In this section—
appropriate authority means—
(a)  in relation to another State or a Territory (other than the Australian Capital Territory)—an authority exercising, in relation to the Police Force of that State or Territory, functions corresponding to those of the Commissioner in relation to the NSW Police Force, or
(b)  in relation to the Australian Capital Territory—the Commissioner of the Australian Federal Police.
(2)  The Minister may enter into arrangements with a Minister of another State or a Territory under which—
(a)  things seized under this Act that may be relevant to the investigation of an offence against the law of that other State or Territory—
(i)  are to be transmitted to the appropriate authority in that State or Territory for the purposes of the investigation of, or proceedings in respect of, that offence, and
(ii)  when no longer required for the purposes of any such investigation or proceedings, are (unless disposed of by order or direction of a court or Magistrate) to be returned to the Commissioner of Police, and
(b)  things seized under the law of that other State or Territory that may be relevant to the investigation of an offence against the law of this State—
(i)  are to be transmitted to the Commissioner of Police, and
(ii)  when no longer required for the purposes of the investigation of an offence, or proceedings in respect of an offence, are (unless disposed of by order or direction of a court or Magistrate) to be returned to the appropriate authority in the State or Territory in which they were seized.
(3)  This section has effect despite Division 2 of Part 17.
79   References in other Acts to “authorised justice” or “authorised officer”
A reference in any other Act to an authorised justice or authorised officer in relation to a warrant to which Division 4 applies is to be read as a reference to an eligible issuing officer within the meaning of paragraph (a) of the definition of eligible issuing officer in section 46(1) of this Act.
80   Application of warrant provisions
(1)  The regulations may apply, to and in respect of search warrants issued under the National Electricity (NSW) Law, such of the provisions of this Part and Parts 15 and 17 as are specified in the regulations and are not inconsistent with that Law.
(2)  The regulations may apply, to and in respect of search warrants issued under the National Gas (NSW) Law, such of the provisions of this Part and Parts 15 and 17 as are specified in the regulations and are not inconsistent with that Law.
Part 6 Search, entry and seizure powers relating to domestic violence offences
Note.
 Safeguards relating to the exercise of powers under this Part are set out in Parts 15 and 17.
81   Definitions
In this Part—
domestic violence offence has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.
occupier of a dwelling means a person immediately entitled to possession of the dwelling.
82   Entry by invitation
(cf Crimes Act 1900, s 357F)
(1)  A police officer who believes on reasonable grounds that a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, in any dwelling may, if invited to do so by a person who apparently resides in the dwelling (whether or not the person is an adult) enter the dwelling and remain in the dwelling for any of the following purposes—
(a)  to investigate whether a domestic violence offence has been committed,
(b)  to take action to prevent the commission or further commission of a domestic violence offence.
(2)  However, a police officer may not enter or remain in a dwelling merely because of any such invitation if—
(a)  authority to so enter or remain is expressly refused by an occupier of the dwelling, and
(b)  the police officer is not otherwise authorised (whether under this or any other Act or law or subsection (3) or (3A)) to so enter or remain.
(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.
(3A)  A police officer who has entered a dwelling in accordance with this section may remain in the dwelling and exercise any of the following powers until such time as a warrant is issued under section 83 in relation to the dwelling—
(a)  direct a person to leave, or not to enter, the dwelling,
(b)  remove from the dwelling a person who fails to comply with a direction to leave the dwelling,
(c)  prevent a person from entering the dwelling,
(d)  prevent a person from removing evidence from or otherwise interfering with the dwelling or anything in it and, for that purpose, detain and search the person.
(3B)  Such a power may be exercised only if the police officer suspects on reasonable grounds that—
(a)  a domestic violence offence is being, or may have been recently, committed in the dwelling, and
(b)  the exercise of the power is necessary to preserve evidence of the commission of the offence.
(3C)  A police officer may exercise a power under subsection (3A) even though an occupier of the dwelling expressly refuses authority to the police officer to remain in the dwelling.
(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.
83   Warrant where entry denied or authority to remain refused
(cf Crimes Act 1900, s 357G)
(1)  A police officer may apply to an authorised officer for a warrant if the police officer—
(a)  has been denied entry to a specified dwelling or is expressly refused authority to remain in a specified dwelling by an occupier of the dwelling, and
(b)  the police officer suspects that—
(i)  a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed in the dwelling, and
(ii)  it is necessary for a police officer to enter the dwelling immediately, or to remain in the dwelling, in order to investigate whether a domestic violence offence has been committed or to take action to prevent the commission or further commission of a domestic violence offence.
(2)  An authorised officer may, if satisfied that there are reasonable grounds for the police officer’s suspicion, issue a warrant authorising any police officer—
(a)  to enter or remain in the dwelling, and
(b)  to investigate whether a domestic violence offence has taken place or to take action to prevent the commission or further commission of a domestic violence offence, or both.
Note.
 For provisions relating to applications for warrants, and other related matters, see section 59.
84   Obstruction or hindrance of person executing warrant or exercising power under this Part
A person must not, without reasonable excuse, obstruct or hinder a person executing a warrant issued under this Part or a police officer who is exercising a power under this Part.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
85   Powers that may be exercised on entry into premises
(cf Crimes Act 1900, s 357H)
(1)  A police officer who enters a dwelling pursuant to a power conferred by or under this Part is to take only the action in the dwelling that is reasonably necessary—
(a)  to investigate whether a domestic violence offence has been committed, and
(b)  to render aid to any person who appears to be injured, and
(c)  to exercise any lawful power to arrest a person, and
(d)  to prevent the commission or further commission of a domestic violence offence.
(2)  A police officer who so enters a dwelling must inquire as to the presence of any firearms in the dwelling and, if informed that there is or are a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize and detain the firearm or firearms.
(3)  A police officer who so enters a dwelling is to remain in the dwelling only as long as is necessary to take the actions required or permitted by this Part.
86   Police may enter and search for firearms
(cf Crimes Act 1900, s 357I)
(1)  A police officer who, on an inquiry under section 85, is informed that there is no firearm in the dwelling but who believes on reasonable grounds that there is or are a firearm or firearms in the dwelling, must apply to an authorised officer for the issue of a search warrant.
(2)  A police officer who believes on reasonable grounds that—
(a)  a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, otherwise than in a dwelling, and
(b)  any of the persons concerned may have a firearm in a dwelling,
must apply to an authorised officer for the issue of a search warrant.
(3)  In addition to any other powers of an authorised officer under Part 5, an authorised officer who issues a search warrant that a police officer is required to apply for under this section may, in the warrant, authorise any police officer—
(a)  to enter and search the dwelling concerned for firearms, and
(b)  to seize and detain any firearms that may be found in the dwelling.
(4)  This section does not apply to a police officer if the circumstances are such that the police officer has power to search and seize a dangerous article under another provision of this Act or another law.
87   Search and seizure powers
(cf Crimes Act 1900, s 357)
A police officer who enters a dwelling under a power conferred by or under this Act and who believes, on reasonable grounds, that—
(a)  a dangerous article or dangerous implement (other than a laser pointer) is in the dwelling, and
(b)  that the dangerous article or dangerous implement is being, or was, or may have been or may be used to commit a domestic violence offence,
may search the dwelling for the dangerous article or dangerous implement and seize and detain the dangerous article or dangerous implement.
Part 6A Emergency powers—public disorder
Division 1 Preliminary
87A   Definitions
(1)  In this Part—
licensed premises means premises licensed or required to be licensed under the Liquor Act 2007 for the sale or supply of liquor.
liquor has the same meaning as in the Liquor Act 2007.
mobile phone includes any device that may be used, in whole or in part, for the purpose of sending or receiving voice or other data over a mobile telephone network, whether or not it may be used for any other purpose.
public disorder means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different locations.
public place includes a school.
road includes a road related area, and a part of a road or road related area.
(2)  For the purposes of this Part, controlling a public disorder includes containing or reducing the disorder or bringing the disorder to an end.
(3)  For the purposes of this Part—
(a)  a person in an area that is the target of an authorisation under Division 3 includes a person who is about to enter the area or who has recently left the area, and
(b)  a vehicle that is in an area the target of an authorisation under Division 3 includes a vehicle that is about to enter the area or that has recently left the area.
Division 2 Liquor restrictions
87B   Emergency prohibition on sale or supply of liquor
(1)  A police officer of or above the rank of Superintendent may authorise the closure of any licensed premises, or the prohibition of the sale or supply of liquor on any licensed premises, if the police officer—
(a)  has reasonable grounds for believing that there is a large-scale public disorder occurring in the vicinity of the licensed premises or there is a threat of such a disorder occurring in the near future, and
(b)  is satisfied that the closure or prohibition will reasonably assist in preventing or controlling the public disorder.
(2)  The period that an authorisation relating to any licensed premises has effect must not exceed the period that the police officer giving the authorisation considers reasonably necessary for the purpose for which it is given, but must not in any case exceed 48 hours. The period that the authorisation has effect may be extended by the giving of a further authorisation, but only if the total period of the authorisation in relation to those premises does not exceed 48 hours.
(3)  Any police officer may, in accordance with an authorisation under subsection (1), direct any person who is apparently in charge of, or who is selling or supplying liquor on, licensed premises to close the premises or to cease selling or supplying liquor on those premises, as the case requires.
(4)  An authorisation under subsection (1) may be given orally or in writing and, if given orally, it must be confirmed by instrument in writing as soon as it is reasonably practicable to do so.
(5)  An authorisation under subsection (1) may be revoked at any time by a police officer of or above the rank of Superintendent if the police officer is satisfied that the authorisation is no longer necessary. The police officer is to give notice to a person apparently in charge of the licensed premises of the revocation of the authorisation.
(6)  A person to whom a direction is given under this section must comply with the direction.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
87C   Emergency alcohol-free zones
(1)  A police officer of or above the rank of Superintendent may, by instrument in writing, establish in an area within a public place an emergency alcohol-free zone if the police officer—
(a)  has reasonable grounds for believing that there is a large-scale public disorder occurring in the vicinity of the area or there is a threat of such a disorder occurring in the near future, and
(b)  is satisfied that the establishment of the zone will assist in preventing or controlling the public disorder.
(2)  The period for which an emergency alcohol-free zone may be established in any area must not exceed the period that the police officer establishing the zone considers reasonably necessary for the purpose for which it is established, but must not in any case exceed 48 hours. The period for which the zone is established may be extended by a further instrument, but only if the total period that the zone is established in the area does not exceed 48 hours.
(3)  A police officer who finds a person or group of persons drinking or in possession of liquor in an emergency alcohol-free zone may warn the person or group of persons that it is an offence to drink liquor in the zone and that any liquor in the possession of the person or persons may be confiscated unless it is immediately removed from the zone.
(4)  A person who has received a warning under subsection (3) in relation to an emergency alcohol-free zone, but who—
(a)  commences to drink liquor in the zone, or
(b)  fails to stop drinking liquor in the zone, or
(c)  resumes drinking liquor in the zone,
is guilty of an offence.
Maximum penalty—20 penalty units.
(5)  An emergency alcohol-free zone may be established under this section in respect of an area that is an alcohol-free zone established under the Local Government Act 1993. In that case, a person cannot be convicted of an offence under this section and that Act in respect of the same act or omission.
(6)  Any liquor in the immediate possession of a person in an emergency alcohol-free zone who is committing, or has just committed, an offence under this section, and any container in which the liquor is packaged, may be seized by a police officer.
(7)  Any liquor in the immediate possession of a person in an emergency alcohol-free zone who has received a warning under subsection (3), and any container in which the liquor is packaged, may also be seized by a police officer if—
(a)  the person does not immediately remove the liquor from the zone, and
(b)  the police officer is satisfied that the seizure of the liquor will assist in preventing or controlling the public disorder.
(8)  Any liquor (and any container) seized under this section is, by virtue of the seizure, forfeited to the State and may be disposed of in accordance with directions given by the Commissioner of Police.
(9)  The establishment of an emergency alcohol-free zone under this section may be revoked at any time by a police officer of or above the rank of Superintendent if the police officer is satisfied that it is no longer necessary.
Division 3 Special powers to prevent or control public disorders
87D   Authorisation of special powers to prevent or control public disorder in public place
(1)  An authorisation for the exercise in a public place of the special powers conferred by this Division may be given in accordance with this Division if the police officer giving the authorisation—
(a)  has reasonable grounds for believing that there is a large-scale public disorder occurring or a threat of such a disorder occurring in the near future, and
(b)  is satisfied that the exercise of those powers is reasonably necessary to prevent or control the public disorder.
(2)  In giving an authorisation, the police officer is to be satisfied that the nature and extent of the powers to be conferred by the authorisation are appropriate to the public disorder that is occurring or threatened.
87E   Target of authorisation
(1)  An authorisation may authorise the exercise of the special powers conferred by this Division in a public place—
(a)  for the purpose of preventing or controlling a public disorder in a particular area described in the authorisation, or
(b)  for the purpose of preventing persons travelling by a road specified in the authorisation to an area to create or participate in a public disorder (whether or not the area is also subject to an authorisation under paragraph (a)).
(2)  The area or road is referred to in this Division as the target of the authorisation.
87F   Giving of authorisation
(1)  An authorisation may be given by the Commissioner of Police or by a Deputy or Assistant Commissioner of Police. The power conferred by this section cannot be delegated.
(2)  An authorisation may be given orally or by instrument in writing.
(3)  If the authorisation is given orally, it must be confirmed by instrument in writing as soon as it is reasonably practicable to do so.
(4)  An authorisation must—
(a)  state that it is given under this Division, and
(b)  describe the general nature of the public disorder or threatened public disorder to which it applies (including the day or days it occurs or is likely to occur), and
(c)  describe the area or specify the road targeted by the authorisation, and
(d)  specify the time it ceases to have effect.
87G   Duration and revocation of authorisation
(1)  An authorisation has effect, unless sooner revoked, during the period beginning at the time it is given and ending at the time specified in the authorisation.
(2)  The period that an authorisation relating to any area or road has effect must not exceed the period that the police officer giving the authorisation considers reasonably necessary for the purpose for which it is given, but must not in any case exceed 48 hours.
(3)  The period that the authorisation has effect may be extended by the giving of a further authorisation, but only if—
(a)  the total period of the authorisation in relation to the area or road does not exceed 48 hours, or
(b)  the Supreme Court, on the application of the police officer proposing to give the further authorisation, determines that the police officer is entitled to give the further authorisation.
(4)  The Commissioner of Police or a Deputy or Assistant Commissioner of Police may revoke an authorisation at any time, and must revoke it if directed to do so by order of the Supreme Court.
(5)  The cessation of an authorisation (by revocation or otherwise) does not affect anything lawfully done in reliance on the authorisation before it ceased to have effect.
87H   Exercise of special powers conferred by authorisation by police officers
(1)  The special powers conferred by this Division may be exercised by any police officer in a public place for the purposes for which an authorisation is given under this Division.
(2)  A police officer may exercise those powers whether or not the officer has been provided with or notified of the terms of the authorisation.
87I   Power to place or establish cordon or roadblock
(1)  A police officer may, for the purposes of stopping and searching persons or vehicles under this Division or preventing persons entering or leaving an area without the permission of a police officer—
(a)  place a cordon around a target area or any part of it, or
(b)  establish a roadblock on a target road (including any road in a target area).
(2)  A police officer must not refuse permission for a person to leave the area unless it is reasonably necessary to do so to avoid a risk to public safety or to the person’s own safety.
(3)  A cordon or roadblock may consist of any appropriate form of physical barrier or obstruction preventing or limiting the passage of vehicles or persons.
87J   Power to stop and search vehicles
(1)  A police officer may, without a warrant, stop and search a vehicle, and anything in or on the vehicle, if—
(a)  the vehicle is in an area that is the target of an authorisation, or
(b)  the vehicle is on a road that is the target of an authorisation.
(2)  A police officer may detain a vehicle for so long as is reasonably necessary to conduct a search under this section.
87K   Power to search persons
(1)  A police officer may, without a warrant, stop and search a person, and anything in the possession of or under the control of the person, if—
(a)  the person is in an area that is the target of an authorisation, or
(b)  the person is in or on a vehicle on a road that is the target of an authorisation.
(2)  Division 4 of Part 4 (except to the extent that it authorises strip searches) applies to the search of a person conducted under this section.
(3)  A police officer may detain a person for so long as is reasonably necessary to conduct a search under this section.
87L   Power to obtain disclosure of identity
(1)  A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if—
(a)  the person is in an area that is the target of an authorisation (whether or not in or on a vehicle), or
(b)  the person is in or on a vehicle on a road that is the target of an authorisation,
and the police officer reasonably suspects that the person has been involved or is likely to be involved in a public disorder.
(2)  A person who is so required to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(3)  A person must not, without reasonable excuse, in response to any such requirement—
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address.
Maximum penalty—50 penalty units or 12 months imprisonment, or both.
(4)  A police officer may request a person who is required under this section to disclose his or her identity to provide proof of his or her identity.
87M   Power to seize and detain things
(1)  A police officer may, in connection with a search under this Division—
(a)  seize and detain, for a period of not more than 7 days, a vehicle, mobile phone or other thing if the seizure and detention of the vehicle, phone or thing will assist in preventing or controlling a public disorder, or
(b)  seize and detain all or part of a thing (including a vehicle) that the officer suspects on reasonable grounds may provide evidence of the commission of a serious indictable offence (whether or not related to a public disorder).
(2)  The Local Court may, on the application of a police officer, authorise the continued detention of a vehicle, mobile phone or other thing under subsection (1)(a) for an additional period not exceeding 14 days if satisfied that its continued detention will assist in preventing or controlling a public disorder. More than one extension of the detention may be authorised under this subsection, so long as each extension does not exceed 14 days.
(3)  A power conferred by this section to seize and detain a thing includes—
(a)  a power to remove a thing from the place where it is found, and
(b)  a power to guard the thing in or on the place where it is found.
(4)  The regulations may make provision for or with respect to the seizure, detention and return of vehicles, mobile phones or other things referred to in subsection (1)(a).
87MA   Power to disperse groups
(1)  If a group of persons are assembled within an area that is the target of an authorisation, a police officer may give a direction to those persons, or to any of them, to disperse immediately.
(2)  For the purpose of complying with Part 15, 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.
(3)    (Repealed)
(4)  A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this section.
Maximum penalty—50 penalty units.
(5)  A direction under this section is to be given orally and, if given to a group of persons, is to be given in such a manner as is likely to be audible to all persons in that group, or to as many of them as practicable.
(6)  If a direction under this section is given to a group of persons, it is not necessary for the police officer to repeat the direction, or to repeat the information and warning required to be given under Part 15, to each person in the group.
(7)  However, just because the police officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning.
87MB   Powers exercisable where vehicle outside the target area of authorisation given under this Division
(1)  This section applies where—
(a)  an authorisation has been given under this Division in connection with a public disorder, and
(b)  a vehicle is on a road that is not (or not in an area) the target of the authorisation.
(2)  A police officer may exercise the powers conferred under this Division in relation to the vehicle (and any person or thing in or on the vehicle) without the authorisation extending to the vehicle if—
(a)  the officer suspects on reasonable grounds that the occupants of the vehicle have participated or intend to participate in the public disorder, and
(b)  the officer is satisfied that the exercise of those powers is reasonably necessary to prevent or control the public disorder.
(3)  This section does not limit the operation of section 87A(3).
(4)  This section does not authorise a police officer to exercise the powers under section 87MA.
87N   Emergency exercise of powers
(1)  If—
(a)  a police officer suspects on reasonable grounds that there is a large-scale public disorder occurring or a threat of such a disorder occurring in the near future, and
(b)  the officer suspects on reasonable grounds that the occupants of a vehicle on a road have participated or intend to participate in the public disorder,
the officer may exercise the powers conferred under this Division in relation to the vehicle (and any person or thing in or on the vehicle) without an authorisation having been given under this Division in connection with the public disorder or threatened public disorder.
(2)  Before exercising any such power, the officer must obtain approval to do so (orally or in writing) from a police officer of or above the rank of Inspector. Approval is not to be given unless the police officer is satisfied that the officer seeking to exercise the power has reasonable grounds for the suspicions referred to in subsection (1).
(3)  A police officer is to cease exercising powers under this section—
(a)  if the officer is notified that an application for an authorisation under this Division in connection with the public disorder or threatened disorder has been granted or refused, or
(b)  if 3 hours has expired since approval was given for the exercise of those powers,
whichever first occurs.
(4)  This section does not authorise a police officer to exercise the powers under section 87MA.
Division 4 Miscellaneous
87O   Report to Law Enforcement Conduct Commission
(1)  The Law Enforcement Conduct Commission is to keep under scrutiny the exercise of powers conferred on police officers under this Part.
(2)  For that purpose, the Law Enforcement Conduct Commission may require the Commissioner of Police or any public authority to provide information about the exercise of those powers.
(3)  The Commissioner of Police is to ensure that the Law Enforcement Conduct Commission is provided with a report on—
(a)  any authorisation given under Division 3 or approval given under section 87N, and
(b)  the reasons for giving the authorisation or approval, and
(c)  the powers used under the authorisation or approval.
(4)  The report is to be provided within 3 months after the authorisation or approval ceases to have effect.
(5)  The Law Enforcement Conduct Commission is to include in the annual report of the Commission’s operations under section 139 of the Law Enforcement Conduct Commission Act 2016 a report of the work operations under this section.
Note.
 Section 142 of that Act provides for the annual report to be tabled in Parliament.
Part 6B Public safety orders
Division 1 Interpretation
87P   Definitions
In this Part—
long duration public safety order—see section 87V.
public event means a trade, cultural, social or sporting event that is open to the public (including when entry into the event requires the payment of a fee or other charge).
public safety order—see section 87Q.
senior police officer means a police officer of the rank of Inspector or above (including the Commissioner).
Note.
 By virtue of the Interpretation Act 1987 (section 48(2)) a person acting in an office referred to above may exercise the functions of a senior police officer under this Part.
87Q   What is a public safety order
A public safety order is an order made by a senior police officer that prohibits a specified person (or persons belonging to a specified class of persons) from—
(a)  attending a specified public event (including entering, or being present at, premises being used in connection with the public event), or
(b)  entering, or being present at, specified premises or other specified area at any time during a specified period.
Division 2 Making, variation and revocation of public safety orders
87R   Power of senior police officer to make public safety order
(1)  A senior police officer may make a public safety order only if satisfied that—
(a)  the presence of the person (or class of persons) concerned at the public event or premises or other area concerned poses a serious risk to public safety or security, and
(b)  the making of the order is reasonably necessary in the circumstances.
Note.
 Section 87S includes provisions about the content of a public safety order, including in relation to its duration.
Section 87T contains provisions concerning the service and notification of variations to public safety orders. In particular, section 87T(4) provides that a statement of the reasons for making or varying a public safety order must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person.
(2)  In determining whether the making of a public safety order is reasonably necessary in the circumstances, the senior police officer must take into account the following matters and may take into account any other matter that the officer considers relevant—
(a)  whether the person or persons to whom the order will apply previously behaved in a way that posed a serious risk to public safety or security or have a history of engaging in serious crime related activity within the meaning of the Criminal Assets Recovery Act 1990,
(b)  whether the person or persons to whom the order will apply—
(i)  are, or have been, members of a declared organisation (within the meaning of the Crimes (Criminal Organisations Control) Act 2012), or
(ii)  are, or have been, subject to control orders under that Act, or
(iii)  associate, or have associated, with members of a declared organisation or persons subject to control orders within the meaning of that Act,
(c)  if advocacy, protest, dissent or industrial action is likely to be the primary purpose for the person or persons to whom the order will apply being present at the relevant public event or premises or other area—the public interest in maintaining freedom to participate in such activities,
(d)  whether the person or persons to whom the order will apply will be prevented from being present at any of the following—
(i)  a place of work at which the person or persons are regularly employed,
(ii)  an educational institution attended by the person or persons,
(iii)  a place of worship attended by the person or persons,
(iv)  a place at which the person or persons receive a health service or welfare service,
(v)  a place at which the person or persons are provided with legal services by any Australian legal practitioners or by any organisations employing or otherwise using one or more Australian legal practitioners to provide such services,
(e)  whether the degree of risk involved justifies the imposition of the prohibitions to be specified in the order (having regard, in particular, to any legitimate reason the person or persons to whom the order will apply may have for being present at the relevant event or premises or other area),
(f)  the extent to which the making of the order will mitigate any risk to public safety or security,
(g)  the extent to which the order is necessary having regard to other measures reasonably available to mitigate the risk.
(3)  However, a senior police officer must not make a public safety order that would prohibit a person or class of persons from being present at any public event or premises or other area if—
(a)  the officer believes that non-violent advocacy, protest or dissent is likely to be the primary purpose for their presence at the public event or premises or other area, or
(b)  the officer believes that industrial action is likely to be the primary purpose for their presence at the public event or premises or other area, or
(c)  the order would prevent them from entering their principal places of residence.
(4)  A senior police officer must not make a public safety order if the period during which the order will be in force would, when added to the period of any previous orders made in connection with the same person or persons and public event or premises or other area, result in the combined period exceeding the maximum period of duration for the kind of order concerned referred to in section 87S(1).
(5)  For the purposes of this section, the presence of a person or persons at a public event or premises or other area poses a serious risk to public safety or security if there is a serious risk that the presence of the person or persons might result in—
(a)  the death of, or serious physical harm to, a person, or
(b)  serious damage to property.
(6)  In this section—
damage, in relation to property, includes the following—
(a)  destruction of the property,
(b)  an alteration to the property that depreciates its value,
(c)  rendering the property useless or inoperative,
(d)  in relation to an animal—injuring, wounding or killing the animal.
87S   Content and duration of public safety order
(1)  A public safety order must specify—
(a)  the public event or premises or other area to which it applies, and
(b)  the person (or class of persons) to which it applies, and
(c)  that a contravention of the order may constitute an offence that carries a maximum penalty of imprisonment for 5 years, and
(d)  in the case of an order that applies to premises or another area other than in connection with a public event—the period during which the order will be in force (being a period not exceeding 72 hours), and
(e)  in the case of an order that applies to a public event—
(i)  the location or locations in which the event is being held for the purposes of the order, and
(ii)  if the public event is held over consecutive days—when the event is taken to start and finish for the purposes of the order, and
(iii)  if the public event is held over non-consecutive days—when the event is taken to start and finish for the purposes of the order for each of the days it is held (being a combined period that does not exceed 72 hours in total).
Note.
 Division 3 enables a person to whom a public safety order applies to appeal to the Supreme Court against the order (or a variation of the order) if the order is (or is to be) in force for a period exceeding 72 hours.
(2)  Subject to subsection (3), a public safety order remains in force only for the period or periods specified in the order in accordance with this section.
(3)  A public safety order that applies to a public event that is cancelled ceases to be in force on that cancellation.
87T   Service and notification of public safety order or variation of order
(1) Ordinary service and notification requirements A senior police officer who makes or varies a public safety order must ensure that both of the following are served by means of personal service on each person to whom the order applies—
(a)  a copy of the order as so made or varied,
(b)  a notification in accordance with this section.
(2)  If the senior police officer considers that a person to whom the order applies is a person under the age of 18 years or has impaired intellectual functioning, the officer must ensure that the order and notification are also served by means of personal service on a parent or guardian (if any) of the person if it is reasonably practicable to do so. However, a failure to do so does not prevent the order or variation from becoming binding when it is served on the person.
(3)  The notification accompanying the order—
(a)  must be in writing, and
(b)  must specify the date on which the order or variation was made, and
(c)  must—
(i)  subject to subsection (4), include a statement of the reasons for making or varying the public safety order, and
(ii)  include an explanation of the right of appeal to the Supreme Court against the decision under Division 3.
(4)  Despite any other Act or law, a statement of the reasons for making or varying a public safety order must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person.
(5)  A public safety order (as made or varied) is not binding on a person to whom the order applies unless the order and notification have been served on that person in accordance with subsection (1).
(6)  Once a public safety order and notification have been served on a person in accordance with subsection (1), the order is binding on the person, regardless of whether any other person or persons to whom the order applies have been so served.
(7) Urgent orders Despite subsections (1)–(6), if a police officer is satisfied that a public safety order (as made or varied) should become binding on a person as a matter of urgency—
(a)  the officer may communicate the contents of the order, or the order as so varied, verbally to any person to whom the order applies and advise such person of the place at which the person may obtain a written copy of the order and a notification in accordance with subsection (8), and
(b)  on the information described in paragraph (a) being communicated to the person, the order, or the order as so varied, is binding on the person.
(8)  The police officer who verbally communicates the order to the person must ensure that the following are both available for collection by the person at a police station that is reasonably accessible by the person within 12 hours after the communication—
(a)  a copy of the order,
(b)  the notification that would have been required to accompany the order if the order had been served on the person in accordance with subsection (1).
87U   Variation and revocation of public safety order
(1)  Subject to subsection (3), a public safety order may be varied or revoked by a senior police officer before the order ceases to be in force (whether or not he or she is the same officer who made the original order).
(2)  Without limiting subsection (1), the Commissioner must revoke a public safety order if the Commissioner becomes aware that the order was erroneously made or that the grounds for its making no longer exist.
(3)  A public safety order that is made or varied by the Commissioner may be subsequently varied or revoked only by the Commissioner.
(4)  A variation of a public safety order must comply with the requirements of this Part concerning the appropriate content, duration and grounds for making a public safety order.
Note.
 See also section 87T concerning the service and notification of variations to public safety orders.
(5)  The revocation of a public safety order takes effect when the person to whom the order applies is served by means of personal service with a written notice of the revocation.
(6)  If a public safety order applies to more than one person and a variation or revocation is served on those persons at different times, the order continues in force in relation to a person to whom the order applies until—
(a)  in the case of a variation—the varied order is served on, or otherwise brought to the notice of, the person in accordance with section 87T, or
(b)  in the case of a revocation—the written notice of revocation is served on the person.
Division 3 Appeals against long duration public safety orders
87V   Application of Division
This Division applies only to a public safety order that is (or is to be) in force for a period exceeding 72 hours (a long duration public safety order).
87W   Appeal to Supreme Court against long duration public safety orders
(1)  A person to whom a long duration public safety order applies may appeal to the Supreme Court against—
(a)  the decision to make the order, or
(b)  a decision to vary the order (unless the decision operates to reduce the duration of the order to 72 hours or less).
(2)  An appeal under this Division must be made before the long duration public safety order ceases to be in force.
(3)  The making of an appeal under this Division does not affect the operation of the long duration public safety order under appeal.
87X   Criminal intelligence reports or other criminal information
(1)  The Commissioner may make an application to the Supreme Court in an appeal under this Division for the Court not to disclose the existence or content of any criminal intelligence report or other criminal information used in connection with the making or variation of the long duration public safety order under appeal.
(2)  The Supreme Court may grant the application if the Court—
(a)  is satisfied that the information to which the application relates is a criminal intelligence report or other criminal information, and
(b)  considers that it is in the interests of justice to grant the application.
(3)  In determining whether it is in the interests of justice to grant the application, the Supreme Court is to take into account each of the following matters concerning the effect of disclosure of the criminal intelligence report or other criminal information to which the application relates—
(a)  whether disclosure will have a prejudicial effect on the prevention, investigation or prosecution of an offence,
(b)  whether disclosure will result in the existence or identity of a confidential source of information relevant for law enforcement purposes being revealed or made discoverable,
(c)  whether disclosure will result in confidential investigative methods or techniques used by police or security agencies being revealed or made discoverable,
(d)  whether disclosure will endanger a person’s life or physical safety.
(4)  If the Supreme Court grants the application, the Court—
(a)  is to ensure that the Court does not, in the reasons for its decision on the appeal or otherwise, disclose the existence or content of the criminal intelligence report or other criminal information to which the application relates, and
(b)  in order to prevent the disclosure of the criminal intelligence report or other criminal information, is to receive evidence and hear argument in the appeal in the absence of the public, the appellant, the appellant’s representative and any other party, unless the Commissioner approves otherwise.
Note.
 Section 87T(4) provides that a statement of the reasons of a senior police officer for making or varying a public safety order must not contain information that would result in the disclosure of a criminal intelligence report or other criminal information held in relation to a person.
(5)  If the Supreme Court refuses the application, the Commissioner is entitled to withdraw the tender of the information to which the application relates as evidence in the appeal.
(6)  Information that is withdrawn by the Commissioner must not be—
(a)  disclosed to any person, or
(b)  taken into consideration by the Supreme Court in determining an appeal under this Division.
87Y   Determination of appeal on the merits
(1)  On an appeal under this Division, the Supreme Court is to decide what the correct and preferable decision is having regard to the material then before it, including the following—
(a)  any relevant factual material,
(b)  any applicable written or unwritten law.
(2)  In determining the appeal, the Supreme Court may decide—
(a)  to affirm the decision under appeal, or
(b)  to vary the decision under appeal, or
(c)  to set aside the decision under appeal, or
(d)  to set aside the decision under appeal and make a decision in substitution for the decision that is set aside.
87Z   Rules of court
Rules of court may be made under the Civil Procedure Act 2005 and the Supreme Court Act 1970 for or with respect to the practice and procedure to be followed in respect of an appeal under this Division and any matters incidental to, or relating to, such practice and procedure.
Division 4 Miscellaneous
87ZA   Contravention of public safety order
A person to whom a public safety order applies must not contravene the order.
Maximum penalty—Imprisonment for 5 years.
87ZB   Power to search premises and other areas and vehicles in connection with public safety order
(1)  A police officer may, without a warrant, enter and search any of the following premises or other areas if the police officer suspects on reasonable grounds that a person to whom a public safety order applies is within the premises or area—
(a)  premises or other areas specified in the public safety order,
(b)  premises or other areas in which a public event specified in the public safety order is being held.
(2)  A police officer may, without a warrant, stop and search a vehicle, and anything in or on a vehicle, if the police officer suspects on reasonable grounds that—
(a)  a person within the vehicle is a person to whom a public safety order applies, and
(b)  the vehicle is approaching, is in, or has recently left, any public event or premises or other area specified in the public safety order.
(3)  A police officer may detain a vehicle for so long as is reasonably necessary to conduct a search under this section.
87ZC   Regulations
(1)  The regulations may make provision for or with respect to the following—
(a)  forms for public safety orders or notices under this Part,
(b)  the means for effecting personal service of public safety orders and other documents for the purposes of this Part,
(c)  safeguards for vulnerable persons in connection with the making, service, variation or revocation of public safety orders that apply to them.
(2)  In this section—
vulnerable person means a person who falls into any one or more of the following categories—
(a)  persons who are under the age of 18 years,
(b)  persons who have impaired intellectual functioning,
(c)  persons who have impaired physical functioning,
(d)  persons who are Aboriginal persons or Torres Strait Islanders,
(e)  persons who are of non-English speaking background.
Part 7 Crime scenes
Note.
 Safeguards relating to the exercise of powers under this Part are set out in Part 15.
88   Crime scene powers may be exercised if police officer lawfully on premises
A police officer who is lawfully on premises (whether by authority of a crime scene warrant or for any other lawful reason) may—
(a)  establish a crime scene, and
(b)  exercise crime scene powers in accordance with this Part, and
(c)  stay on the premises for those purposes.
89   Application of Part to premises
(1)  This Part applies to premises of any kind, whether or not a public place.
(2)  Despite any other provision of this Part, a police officer may exercise crime scene powers at a crime scene in a public place without obtaining a crime scene warrant and the provisions of this Part apply accordingly.
(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.
90   When crime scene may be established
(1)  A crime scene may be established on premises by a police officer if the police officer suspects on reasonable grounds that—
(a)  an offence committed in connection with a traffic accident that has resulted in the death of or serious injury to a person is being, or was, or may have been, committed on the premises and that it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search for and gather, evidence of the commission of that offence, or
(b)  a serious indictable offence is being, or was, or may have been, committed on the premises and it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search for and gather, evidence of the commission of that offence, or
(c)  there may be in or on the premises evidence of the commission of a serious indictable offence that may have been committed elsewhere and it is reasonably necessary to establish a crime scene in or on the premises to preserve, or search for and gather, evidence of the commission of that offence.
(1A)  A crime scene may also be established on premises by a police officer pursuant to the authority conferred by a crime scene warrant.
(2)  To avoid doubt, a crime scene may be established, crime scene powers may be exercised and a crime scene warrant applied for with respect to an act or omission that is a serious indictable offence even though the act or omission occurred outside New South Wales and was not an offence against the law of New South Wales, if the act or omission if done, or omitted to be done, in New South Wales would constitute a serious indictable offence.
91   Establishment of crime scene
(1)  A police officer may establish a crime scene on premises in any way that is reasonably appropriate in the circumstances.
(2)  A police officer who establishes a crime scene must, if reasonably appropriate in the circumstances, give the public notice that the premises are a crime scene.
(3)  A crime scene may not be established under this Part on the same premises more than once in a 24 hour period unless a crime scene warrant is obtained in respect of the second and any subsequent occasion.
(4)  Subsection (3) does not prevent a subsequent crime scene being established on the same premises in a 24 hour period for the purposes of investigating a separate offence that is not related to the offence in respect of which the initial crime scene was established.
92   Exercise of powers at crime scene
(1)  A police officer may exercise any of the crime scene powers set out in section 95(1)(a)–(l) if—
(a)  a crime scene has been established under this Part, and
(b)  the police officer exercising the power suspects on reasonable grounds that it is necessary to do so to preserve evidence of the commission of an offence in relation to which the crime scene was established.
(2)  A police officer may exercise any of the other powers set out in section 95(1), but only if—
(a)  a crime scene has been established under this Part, and
(b)  the police officer or another police officer applies for a crime scene warrant in respect of the crime scene, and
(c)  the police officer suspects on reasonable grounds that it is necessary to immediately exercise the power to preserve evidence of the commission of an offence.
(3)  A police officer may exercise the crime scene powers conferred by this section for a period of not more than 4 hours (or not more than 6 hours in the case of a crime scene established in a rural area prescribed by the regulations), commencing when the crime scene is established, unless the police officer or another police officer obtains a crime scene warrant.
(4)  A police officer may exercise crime scene powers in relation to a crime scene whether or not the police officer is the person who established the crime scene.
(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 a scene of crime officer, but only with the authority of the police officer who established the crime scene or is responsible for the crime scene at the time.
(5A)  A police officer may, in exercising crime scene powers conferred by subsection (1) at a crime scene, open a thing that is locked only if it is possible to do so without causing any damage to the thing or the lock.
(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.
93   Notice to senior police officer where warrant not required
If a crime scene is established for a period of 4 hours or less or for a period of 6 hours or less in the case of a rural area referred to in section 92(3) (otherwise than by authority of a crime scene warrant), the police officer who establishes the crime scene must notify a senior police officer of that fact.
94   Crime scene warrants
(1)  A police officer may apply to an authorised officer for a crime scene warrant if the police officer suspects on reasonable grounds that it is necessary for the police officer or another police officer to exercise crime scene powers at specified premises for the purpose of preserving, or searching for and gathering, evidence of the commission of—
(a)  a serious indictable offence, or
(b)  an offence that is being, or was, or may have been, committed in connection with a traffic accident that has resulted in the death of or serious injury to a person.
(2)  The authorised officer may, if satisfied that there are reasonable grounds for doing so, issue a crime scene warrant authorising any police officer to enter premises, to establish a crime scene on the premises (if a crime scene has not already been established) and to exercise all reasonably necessary crime scene powers at, or in relation to, a specified crime scene.
(2A)  A crime scene warrant may, if a crime scene in relation to an offence is established on more than one set of premises, apply to each of those sets of premises.
(3)  A police officer may, in accordance with the warrant and this Part, exercise all reasonably necessary crime scene powers.
(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 a scene of crime officer, but only with the authority of a police officer who is responsible for executing the warrant.
Note 1.
 For provisions relating generally to applications for crime scene warrants and other matters, see section 59.
Note 2.
 A police officer may be assisted in the exercise of crime scene powers—see section 71.
94A   Application by occupier for review by a Magistrate of crime scene warrant
(1)  This section applies to crime scene warrants issued in relation to premises that are not a public place.
(2)  The occupier of premises in respect of which a crime scene warrant is issued may apply to a Magistrate for a review of the grounds on which the warrant was issued.
(3)  Any such application for a review of a crime scene warrant does not stay the operation of the warrant.
(4)  After reviewing the grounds on which the crime scene warrant was issued, the Magistrate to whom an application for review is made may—
(a)  by order in writing, revoke the crime scene warrant, or
(b)  refuse to revoke the warrant.
95   Crime scene powers
(1)  A police officer may, in accordance with this Part and any relevant crime scene warrant, exercise the following functions at, or in relation to, a crime scene established under this Part—
(a)  direct a person to leave the crime scene or remove a vehicle, vessel or aircraft from the crime scene,
(b)  remove from the crime scene a person who fails to comply with a direction to leave the crime scene or a vehicle, vessel or aircraft a person fails to remove from the crime scene,
(c)  direct a person not to enter the crime scene,
(d)  prevent a person from entering the crime scene,
(e)  prevent a person from removing evidence from or otherwise interfering with the crime scene or anything in it and, for that purpose, detain and search the person,
(f)  remove or cause to be removed an obstruction from the crime scene,
(g)  perform any necessary investigation, including, for example, search the crime scene and inspect anything in it to obtain evidence of the commission of an offence,
(h)  for the purpose of performing any necessary investigation, conduct any examination or process,
(i)  open anything at the crime scene that is locked,
(j)  take electricity, gas or any other utility, for use at the crime scene,
(k)  direct the occupier of the premises or a person apparently involved in the management or control of the premises to maintain a continuous supply of electricity at the premises,
(l)  photograph or otherwise record the crime scene and anything in it,
(m)  seize and detain all or part of a thing that might provide evidence of the commission of an offence,
(n)  dig up anything at the crime scene,
(o)  remove wall or ceiling linings or floors of a building, or panels of a vehicle,
(p)  any other function reasonably necessary or incidental to a function conferred by this subsection.
(2)  The power conferred by this section to seize and detain a thing includes—
(a)  a power to remove the thing from the crime scene when it is found, and
(b)  a power to guard the thing in or on the crime scene.
(3)  Nothing in this Part prevents a police officer who is lawfully on premises from exercising a crime scene power or doing any other thing, if the occupier of the premises consents. Any such consent must, as far as is reasonably practicable, be in writing.
(4)  The occupier of premises may consent to the exercise of crime scene powers on the premises only if the occupier is, before giving consent, informed by a police officer of the following—
(a)  the crime scene powers proposed to be exercised on the premises,
(b)  the reasons for exercising those powers,
(c)  the right of the occupier to refuse consent.
Note.
 Under section 99 a police officer may arrest and take before an authorised officer to be dealt with according to law any person found in or on the premises whom the police officer suspects on reasonable grounds of having committed an offence.
95A   Special arrangements for investigation of stolen vehicles
(1)  A scene of crime officer may establish a crime scene in relation to a vehicle in a public place if—
(a)  a vehicle has been reported as stolen by an owner or authorised user of the vehicle, and
(b)  the scene of crime officer suspects on reasonable grounds that the vehicle in relation to which the crime scene is to be established is that stolen vehicle.
(2)  Sections 91 and 93 apply in relation to a crime scene established by a scene of crime officer under this section in the same way as they apply to a crime scene established by a police officer.
(3)  A scene of crime officer may exercise any investigatory powers in relation to the vehicle at the crime scene established under this section, without a warrant, if the scene of crime officer suspects on reasonable grounds that it is reasonably necessary to exercise the investigatory powers to preserve, or search for and gather, evidence of the theft of the vehicle.
(4)  A scene of crime officer does not require the authority of a police officer to exercise investigatory powers under this section.
(5)  A scene of crime officer may exercise the investigatory powers conferred by this section for a period of not more than 3 hours, commencing when the crime scene is established, unless a police officer obtains a crime scene warrant in respect of the crime scene.
(6)  This section does not prevent a scene of crime officer from exercising any power, or doing any other thing, in relation to a vehicle if the owner or authorised user of the vehicle consents.
(7)  For the purposes of this section, investigatory powers are the crime scene powers referred to in section 95(1)(g)–(j) and (l)–(o), including section 95(1)(p) as it applies to those powers.
96   Obstruction or hindrance of person executing crime scene warrant
(1)  A person must not, without reasonable excuse, obstruct or hinder a person executing a crime scene warrant.
Maximum penalty—100 penalty units or imprisonment for 2 years, or both.
(2)  A person must not, without reasonable excuse, fail or refuse to comply with a requirement made or direction given by a police officer pursuant to the exercise of crime scene powers at a crime scene.
Maximum penalty—10 penalty units.
97   Search warrants not affected
Nothing in this Part prevents a police officer from applying for a search warrant under Part 5, or exercising any other function under this Act at, or in relation to, a crime scene or affects the exercise of any such function.
98   Part does not confer additional entry powers
Nothing in this Part (other than the provisions relating to crime scene warrants) confers on a police officer any additional power to enter premises or limits any power that a police officer has to enter premises.
Part 8 Powers relating to arrest
Note.
 
1   
A police officer also has the power, under the Bail Act 2013, to arrest a person who fails to comply with a bail acknowledgment or a bail condition, or who the police officer believes on reasonable grounds is about to do so.
2   
Safeguards relating to arrests by police officers, including the requirement to state the reason for an arrest, are set out in Part 15.
99   Power of police officers to arrest without warrant
(cf Crimes Act 1900, s 352, Cth Act, s 3W)
(1)  A police officer may, without a warrant, arrest a person if—
(a)  the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b)  the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons—
(i)  to stop the person committing or repeating the offence or committing another offence,
(ii)  to stop the person fleeing from a police officer or from the location of the offence,
(iii)  to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
(iv)  to ensure that the person appears before a court in relation to the offence,
(v)  to obtain property in the possession of the person that is connected with the offence,
(vi)  to preserve evidence of the offence or prevent the fabrication of evidence,
(vii)  to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii)  to protect the safety or welfare of any person (including the person arrested),
(ix)  because of the nature and seriousness of the offence.
(2)  A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant.
(3)  A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law.
Note.
 The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer—see section 105.
(4)  A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part.
(5)  This section does not authorise a person to be arrested for an offence for which the person has already been tried.
(6)  For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
100   Power of other persons to arrest without warrant
(cf Crimes Act 1900, s 352)
(1)  A person (other than a police officer) may, without a warrant, arrest a person if—
(a)  the person is in the act of committing an offence under any Act or statutory instrument, or
(b)  the person has just committed any such offence, or
(c)  the person has committed a serious indictable offence for which the person has not been tried.
(2)  A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
101   Power to arrest with warrant
(cf common law)
(1)  A police officer acting in accordance with a warrant issued under any Act or law may arrest or deal with the person named in the warrant in accordance with the warrant.
(2)  The police officer may take action whether or not the warrant is in his or her possession.
102   Power to arrest persons who are unlawfully at large
(cf Crimes Act 1900, s 352AA)
(1)  A police officer may, with or without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2)  A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
(3)  The authorised officer may, by warrant, commit the person to a correctional centre, to be kept in custody under the same authority, and subject to the same conditions and with the benefit of the same privileges and entitlements, as would have applied to the person if the person had not been unlawfully at large.
(4)  In this section, a reference to a person unlawfully at large is a reference to a person who is at large (otherwise than because of escaping from lawful custody) at a time when the person is required by law to be in custody in a correctional centre.
Note.
 Inmates of correctional centres who are unlawfully at large may also be arrested under section 39 of the Crimes (Administration of Sentences) Act 1999.
103   Warrant for arrest of person unlawfully at large
(cf Crimes Act 1900, s 352AA)
(1)  A police officer may apply to an authorised officer for a warrant for the arrest of a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
(2)  The authorised officer may issue the warrant if satisfied that there are reasonable grounds for doing so.
(3)  The regulations may make provision for or with respect to the form of, and other requirements relating to, a warrant issued under this section.
104   Power to arrest for interstate offences
(cf Crimes Act 1900, s 352A)
(1)  This section applies to an offence (an interstate offence)—
(a)  that is an offence against the law of a State (other than New South Wales) or a Territory, and
(b)  that consists of an act or omission that, if it occurred in New South Wales, would constitute an indictable offence or an offence punishable by imprisonment for 2 years or more.
(2)  A police officer may, at any hour of the day or night and without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an interstate offence.
(3)  A court—
(a)  may discharge the person, or
(b)  may—
(i)  commit the person to custody, or
(ii)  grant bail,
pending the execution under a law of the Commonwealth of a warrant for the person’s arrest or the person’s earlier release from bail, or discharge from custody, under this section.
(4)  Except as provided by this section, a person arrested under this section for an interstate offence has the same rights, and is to be dealt with in the same way, as a person arrested for a similar offence committed in New South Wales. In particular—
(a)  Parts 4, 9, 10 and 15 apply in respect of the person, and
(b)  the Bail Act 2013, and the Justices Act 1902, with all necessary modifications, apply in relation to the granting of bail to the person and in relation to court proceedings under this section.
(5)  If a person has been committed to custody under subsection (3) and a warrant for the person’s arrest is subsequently presented for execution, the person must be delivered in accordance with the terms of the warrant to the custody of the person executing it.
(6)  If a person arrested under this section has been granted bail, and subsequently, but before the person has complied with his or her bail acknowledgment, a warrant for the person’s arrest is executed under a law of the Commonwealth, the person is taken at the time the warrant is executed to be released from that bail and to have complied with any condition or acknowledgment in relation to that bail at that time outstanding, not being a condition or acknowledgment with which the person has by that time failed, without lawful excuse, to comply.
(7)  If a person arrested under this section has been granted bail or is in custody, the person may be released from bail or discharged from custody if a warrant for the person’s arrest is not executed within a reasonable time (not exceeding 7 days) after the arrest.
(8)  In this section—
court means—
(a)  the Court of Criminal Appeal, the Supreme Court, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or
(b)  any other court that, or person who, exercises criminal jurisdiction.
104A   Arrest by commander of aircraft
(1)  The person in command of an aircraft may, on board the aircraft, with such assistance as is necessary, arrest without warrant a person whom he or she finds committing or reasonably suspects of having committed, or of having attempted to commit, an offence on or in relation to, or affecting the use of, an aircraft and that person in command or a person authorised by him or her for the purpose may hold the person so arrested in custody until he or she can be brought before an authorised officer to be dealt with according to law.
(2)  The person in command of an aircraft may, where he or she considers it necessary so to do in order to prevent an offence on or in relation to, or affecting the use of, the aircraft or to avoid danger to the safety of the aircraft or of persons on board the aircraft, with such assistance as he or she thinks necessary—
(a)  place a person who is on board the aircraft under restraint or in custody, or
(b)  if the aircraft is not in the course of a flight, remove a person from the aircraft.
105   Arrest may be discontinued
(1)  A police officer may discontinue an arrest at any time.
(2)  Without limiting subsection (1), a police officer may discontinue an arrest in any of the following circumstances—
(a)  if the arrested person is no longer a suspect or the reason for the arrest no longer exists for any other reason,
(b)  if it is more appropriate to deal with the matter in some other manner, including, for example, by issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997.
(3)  A police officer may discontinue an arrest despite any obligation under this Part to take the arrested person before an authorised officer to be dealt with according to law.
106   Person helping in covert operations not under arrest
(1)  This section applies to covert investigations conducted by a police officer into whether a person other than a person who is in custody following an arrest has been involved in the commission of an offence or suspected offence.
(2)  For the purposes of this Part, if the person in custody following an arrest agrees voluntarily to take part in the covert investigation, the person ceases to be under arrest for the offence.
(3)  However, subsection (2) does not prevent the person from being rearrested for the offence.
107   Part does not affect alternatives to arrest
(1)  Nothing in this Part affects the power of a police officer to commence proceedings for an offence against a person otherwise than by arresting the person.
(2)  Nothing in this Part affects the power of a police officer to issue a warning or a caution or a penalty notice to a person.
108   Part does not affect Young Offenders Act 1997
Nothing in this Part requires a police officer to arrest a person under the age of 18 years if it is more appropriate to deal with the matter under the Young Offenders Act 1997.
Part 8A Use of police in-car video equipment
108A   Definitions
(1)  In this Part—
ICV equipment means in-car video equipment, being equipment installed in a vehicle and capable of recording visual images and sound outside the vehicle (including by means of a microphone that is separate from the equipment and vehicle).
police activities means activities engaged in by a police officer while exercising any functions of a police officer.
police vehicle means a vehicle used or operated for the purposes of police activities.
vehicle includes a motorcycle or other cycle, and driver includes the rider of a motorcycle or other cycle.
(2)  A reference in this Part to the driver of a police vehicle includes, in the case of a police vehicle that is not being driven, a reference to the police officer responsible for the use and operation of the vehicle as driver.
108B   Police activities requiring use of ICV equipment
For the purposes of this Part, the following police activities are police activities that require the use of ICV equipment
(a)  pursuing or otherwise following a vehicle with the intention of stopping or detaining the vehicle,
(b)  activities in relation to a vehicle that has been stopped or detained, or in relation to the driver or any occupant of the vehicle while in or about the vehicle (whether or not the vehicle was stopped or detained after being pursued or otherwise followed under paragraph (a)).
108C   Mandatory use of ICV equipment
(1)  If a police vehicle is equipped with ICV equipment, the driver of the vehicle must ensure that while the vehicle is being used in the course of police activities that require the use of ICV equipment—
(a)  the ICV equipment is operated for the purpose of recording a view from the police vehicle of those activities, and
(b)  a conversation between the police officer and the driver or any occupant of a vehicle stopped or detained in the course of those activities is recorded by means of the ICV equipment.
(2)  The authority conferred by this section to record a conversation (the primary conversation) extends to authorise the recording of another conversation the recording of which is incidental to the recording of the primary conversation or that is inadvertently or unexpectedly recorded in the course of recording the primary conversation.
(3)  Any failure to operate ICV equipment or to record a conversation as required by this section—
(a)  does not of itself limit or otherwise affect the admissibility of evidence of any matter concerning the police activities to which the failure related, and
(b)  does not of itself result in any such evidence being evidence improperly or unlawfully obtained,
but this subsection does not otherwise affect the operation of any rules as to admissibility of evidence.
108D   Person to be informed that conversation will be recorded
(1)  A police officer who records a conversation between the police officer and another person under this Part must inform the person (either immediately before recording of the conversation commences or as soon as practicable after recording has commenced) that the conversation will be recorded using police in-car video equipment.
(2)  This section does not apply to the recording of a conversation inadvertently or unexpectedly or incidentally to the recording of another conversation.
(3)  Recording of a conversation does not require the consent of the person and the authority conferred by this Part is not affected by any objection or refusal to consent by the person to the recording.
108E   (Repealed)
108F   Operation of Surveillance Devices Act 2007
The recording of a conversation as authorised or required by this Part by means of ICV equipment (including the recording of a conversation between police officers by means of ICV equipment) does not constitute the use of a listening device for the purposes of the Surveillance Devices Act 2007.
108G   ICV recordings to be kept for 2 years
The Commissioner of Police must ensure that recordings made under this Part are kept for at least 2 years after they are made.
108H   Corrupt disclosure and use of ICV recordings
(1)  For the purposes of sections 62 (Corrupt disclosure and use of personal information by public sector officials) and 63 (Offering to supply personal information that has been disclosed unlawfully) of the Privacy and Personal Information Protection Act 1998, an ICV recording constitutes personal information about another person.
(2)  In this section—
ICV recording means any recording of visual images or sound made pursuant to this Part and includes a copy of such a recording and any part of any such recording or copy.
Note.
 This section ensures that the protections against corrupt disclosure and use of personal information under the Privacy and Personal Information Protection Act 1998 will apply to ICV recordings. The maximum penalty for offences under those provisions is 100 penalty units or imprisonment for 2 years, or both.
Part 9 Investigations and questioning
Division 1 Preliminary
109   Objects of Part
(cf Crimes Act 1900, s 354)
The objects of this Part are—
(a)  to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and
(b)  to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and
(c)  to provide for the rights of a person so detained, and
(d)  to provide for the rights of a suspect who is in the company of a police officer in connection with an investigative procedure but who is not so detained.
110   Definitions
(cf Crimes Act 1900, s 355)
(1)  In this Part—
detention warrant means a warrant issued under section 118.
investigation period means the period provided for by section 115.
permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.
protected suspect means a person who is in the company of a police officer for the purpose of participating in an investigative procedure in connection with an offence if—
(a)  the person has been informed that he or she is entitled to leave at will, and
(b)  the police officer believes that there is sufficient evidence that the person has committed the offence.
(2), (3)    (Repealed)
(4)  For the purposes of this Part, a person ceases to be under arrest for an offence if the person is remanded in respect of the offence.
(5)  For the purposes of this Part, a reference to the place where a protected suspect is detained is a reference to the place where the person is participating in the relevant investigative procedure.
111   Persons to whom Part applies
(cf Crimes Act 1900, s 356)
(1)  This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence or who is a protected suspect in connection with an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.
(2)  This Part does not apply to a person who is detained under Part 16.
112   Modification of application of Part to certain persons
(cf Crimes Act 1900, s 356A)
(1)  The regulations may make provision for or with respect to the modification of the application of this Part to—
(a)  persons under the age of 18 years, or
(b)  Aboriginal persons or Torres Strait Islanders, or
(c)  persons of non-English speaking background, or
(d)  persons who have a disability (whether physical, intellectual or otherwise).
(2)  Without limiting subsection (1), the regulations may provide for an investigation period for a person or class of persons referred to in that subsection that is shorter than the period provided for by section 115.
112A   Application of Part in connection with execution of search warrants
(1)  This Part applies to a person in the company of a police officer for the purpose of an investigative procedure at premises that are being searched under a search warrant issued under this Act or under a provision specified in Schedule 2 if—
(a)  the person has been arrested and is in custody at those premises, or
(b)  the person is at the premises and is a protected suspect.
(2)  For that purpose—
(a)  the functions of the custody manager under this Part are exercisable by a police officer who is at the premises but who is not connected with the investigation concerned and who does not participate in the execution of the search warrant, and
(b)  the police officer exercising the functions of the custody manager is not required to comply with any obligation under this Part relating to communication with a friend, relative, guardian or independent person if the police officer suspects on reasonable grounds that doing so may result in bodily injury to any other person, and
(c)  the custody record for the detained person or protected suspect may form part of a video recording of the execution of the search warrant, and
(d)  this Part applies with such other modifications as are prescribed by the regulations.
113   Effect of Part on other powers and duties
(cf Crimes Act 1900, s 356B)
(1) Existing powers relating to arrest and other matters This Part does not—
(a)  confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or
(b)  prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013), or
(c)  independently confer power to carry out an investigative procedure.
(2) Certain evidentiary matters and rights not affected Nothing in this Part affects—
(a)  the operation of—
(i)  the following provisions of the Evidence Act 1995
section 84 (Exclusion of admissions influenced by violence and certain other conduct)
section 85 (Criminal proceedings: reliability of admissions by defendants)
section 90 (Discretion to exclude admissions)
section 138 (Exclusion of improperly or illegally obtained evidence)
section 139 (Cautioning of persons), or
(ii)  any other provision of that Act, or
(b)  any law that permits or requires a person to be present at the questioning of another person who is under arrest or is a protected suspect (for example, the presence of a parent at the questioning by a police officer of the parent’s child), or
(c)  the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or
(d)  the right of a person to leave police custody if the person is not under arrest, or
(e)  the rights of a person under the Bail Act 2013.
Division 2 Investigation and questioning powers—persons under arrest
114   Detention after arrest for purposes of investigation
(cf Crimes Act 1900, s 356C)
(1)  A police officer may in accordance with this section detain a person, who is under arrest, for the investigation period provided for by section 115.
(2)  A police officer may so detain a person for the purpose of investigating whether the person committed the offence for which the person is arrested.
(3)  If, while a person is so detained, the police officer forms a reasonable suspicion as to the person’s involvement in the commission of any other offence, the police officer may also investigate the person’s involvement in that other offence during the investigation period for the arrest. It is immaterial whether that other offence was committed before or after the commencement of this Part or within or outside the State.
(4)  The person must be—
(a)  released (whether unconditionally or on bail) within the investigation period, or
(b)  brought before an authorised officer or court within that period, or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.
(5)  A requirement in another Part of this Act, the Bail Act 2013 or any other relevant law that a person who is under arrest be taken before a Magistrate or other authorised officer or court, without delay, or within a specified period, is affected by this Part only to the extent that the extension of the period within which the person is to be brought before such a Magistrate or officer or court is authorised by this Part.
(6)  If a person is arrested more than once within any period of 48 hours, the investigation period for each arrest, other than the first, is reduced by so much of any earlier investigation period or periods as occurred within that 48 hour period.
(7)  The investigation period for an arrest (the earlier arrest) is not to reduce the investigation period for a later arrest if the later arrest relates to an offence that the person is suspected of having committed after the person was released, or taken before a Magistrate or other authorised officer or court, in respect of the earlier arrest.
115   Investigation period
(cf Crimes Act 1900, s 356D)
(1)  The investigation period is a period that begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the maximum investigation period.
(2)  The maximum investigation period is 6 hours or such longer period as the maximum investigation period may be extended to by a detention warrant.
116   Determining reasonable time
(cf Crimes Act 1900, s 356E)
(1)  In determining what is a reasonable time for the purposes of section 115(1), all the relevant circumstances of the particular case must be taken into account.
(2)  Without limiting the relevant circumstances that must be taken into account, the following circumstances (if relevant) are to be taken into account—
(a)  the person’s age, physical capacity and condition and mental capacity and condition,
(b)  whether the presence of the person is necessary for the investigation,
(c)  the number, seriousness and complexity of the offences under investigation,
(d)  whether the person has indicated a willingness to make a statement or to answer any questions,
(e)  the time taken for police officers connected with the investigation (other than police officers whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation) to attend at the place where the person is being detained,
(f)  whether a police officer reasonably requires time to prepare for any questioning of the person,
(g)  the time required for facilities for conducting investigative procedures in which the person is to participate (other than facilities for complying with section 281 of the Criminal Procedure Act 1986) to become available,
(h)  the number and availability of other persons who need to be questioned or from whom statements need to be obtained,
(i)  the need to visit the place where any offence concerned is believed to have been committed or any other place reasonably connected with the investigation of any such offence,
(j)  the time during which the person is in the company of a police officer before and after the person is arrested (including any period during which the person was a protected suspect),
(k)  the time taken to complete any searches or other investigative procedures that are reasonably necessary to the investigation (including any search of the person or any other investigative procedure in which the person is to participate),
(l)  the time required to carry out any other activity that is reasonably necessary for the proper conduct of the investigation.
(3)  In any criminal proceedings in which the reasonableness of any period of time that a person was detained under this Part is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the period of time was reasonable.
117   Certain times to be disregarded in calculating investigation period
(cf Crimes Act 1900, s 356F)
(1)  The following times (to the extent that those times are times during which any investigative procedure in which a person who is detained under this Part is to participate is reasonably suspended or deferred) are not to be taken into account in determining how much of an investigation period has elapsed—
(a)  any time that is reasonably required to convey the person from the place where the person is arrested to the nearest premises where facilities are available for conducting investigative procedures in which the person is to participate,
(b)  any time that is reasonably spent waiting for the arrival at the place where the person is being detained of police officers, or any other persons prescribed by the regulations, whose particular knowledge of the investigation, or whose particular skills, are necessary to the investigation,
(c)  any time that is reasonably spent waiting for facilities for complying with section 281 of the Criminal Procedure Act 1986 to become available,
(d)  any time that is required to allow the person (or someone else on the person’s behalf) to communicate with a friend, relative, guardian, independent person, Australian legal practitioner or consular official,
(e)  any time that is required to allow such a friend, relative, guardian, independent person, Australian legal practitioner or consular official to arrive at the place where the person is being detained,
(f)  any time that is required to allow the person to consult at the place where the person is being detained with such a friend, relative, guardian, independent person, Australian legal practitioner or consular official,
(g)  any time that is required to arrange for and to allow the person to receive medical attention,
(h)  any time that is required to arrange for the services of an interpreter for the person and to allow the interpreter to arrive at the place where the person is being detained or become available by telephone for the person,
(i)  any time that is reasonably required to allow for an identification parade to be arranged and conducted,
(j)  any time that is required to allow the person to rest or receive refreshments or to give the person access to toilet and other facilities as referred to in section 130,
(k)  any time that is required to allow the person to recover from the effects of intoxication due to alcohol or another drug or a combination of drugs,
(l)  any time that is reasonably required to prepare, make and dispose of any application for a detention warrant or any application for a search warrant or crime scene warrant that relates to the investigation,
(m)  any time that is reasonably required to carry out charging procedures in respect of the person,
(n)  any time that is reasonably required to carry out a forensic procedure on the person under the Crimes (Forensic Procedures) Act 2000, or to prepare, make and dispose of an application for an order for the carrying out of such a procedure,
(o)  any time that is reasonably required for the person to undertake a breath test or breath analysis or to provide a blood or urine sample under Division 4 of Part 10.
(2)  In any criminal proceedings in which the question of whether any particular time was a time that was not to be taken into account because of this section is at issue, the burden lies on the prosecution to prove on the balance of probabilities that the particular time was a time that was not to be taken into account.
118   Detention warrant to extend investigation period
(cf Crimes Act 1900, s 356G)
(1)  A police officer may, before the end of the investigation period, apply to an authorised officer for a warrant to extend the maximum investigation period beyond 6 hours.
(2)  The person to whom an application for a detention warrant relates, or the person’s legal representative, may make representations to the authorised officer about the application.
(3)  The authorised officer may issue a warrant that extends the maximum investigation period by up to 6 hours.
(4)  The maximum investigation period cannot be extended more than once.
(4A)  When determining an application for a detention warrant, the authorised officer is to take into account any period for which the person to whom the application relates was a protected suspect in relation to the investigation.
(5)  An authorised officer must not issue a warrant to extend the maximum investigation period unless satisfied that—
(a)  the investigation is being conducted diligently and without delay, and
(b)  a further period of detention of the person to whom the application relates is reasonably necessary to complete the investigation, and
(c)  there is no reasonable alternative means of completing the investigation otherwise than by the continued detention of the person, and
(d)  circumstances exist in the matter that make it impracticable for the investigation to be completed within the 6-hour period.
(6)  As soon as reasonably practicable after a detention warrant is issued, the custody manager for the person to whom the warrant relates—
(a)  must give the person a copy of the warrant, and
(b)  must orally inform the person of the nature of the warrant and its effect.
119   Detention warrants
(1)  An application for a detention warrant may be made by the applicant in person or by telephone.
Note.
 For provisions relating generally to applications for detention warrants and other matters, see section 59.
(2)  In any criminal proceedings, the burden lies on the prosecution to prove on the balance of probabilities that the warrant was issued.
(3)  In the case of an application made for a detention warrant by telephone, the applicant for the warrant must, within one day after the day on which the warrant is issued, give or transmit to the authorised officer concerned an affidavit setting out the information on which the application was based that was given to the authorised officer when the application was made.
120   Information in application for detention warrant
(cf Crimes Act 1900, s 356I)
(1)  An authorised officer must not issue a detention warrant unless the application for the warrant includes the following information—
(a)  the nature of any offence under investigation,
(b)  the general nature of the evidence on which the person to whom the application relates was arrested,
(c)  what investigation has taken place and what further investigation is proposed,
(c1)  the period (if any) during which the person has been a protected suspect in relation to the investigation,
(d)  the reasons for believing that the continued detention of the person is reasonably necessary to complete the investigation,
(e)  the extent to which the person is co-operating in the investigation,
(f)  if a previous application for the same, or substantially the same, warrant was refused, details of the previous application and of the refusal and any additional information required,
(g)  any other information required by the regulations.
(2)  The applicant must provide (either orally or in writing) such further information as the authorised officer requires concerning the grounds on which the detention warrant is being sought.
(3)  Nothing in this section requires an applicant for a detention warrant to disclose the identity of a person from whom information was obtained if the applicant is satisfied that to do so might jeopardise the safety of any person.
121   Detention after arrest for purposes of investigation may count towards sentence
(cf Crimes Act 1900, s 356W)
In passing sentence on a person convicted of an offence, a court may take into account any period during which the person was detained under this Part in respect of the offence and may reduce the sentence it would otherwise have passed.
Division 3 Safeguards relating to persons under arrest and protected suspects
122   Custody manager to caution, and give summary of Part to, person under arrest or protected suspect
(cf Crimes Act 1900, s 356M)
(1)  As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention or after a person becomes a protected suspect, the custody manager for the person must orally and in writing—
(a)  caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and
(b)  give the person a summary of the provisions of this Part in the form prescribed by the regulations.
(2)  The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.
(3)  After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.
123   Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner
(cf Crimes Act 1900, s 356N)
(1)  Before any investigative procedure in which a detained person or protected suspect is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may—
(a)  communicate, or attempt to communicate, with a friend, relative, guardian or independent person—
(i)  to inform that person of the detained person’s or protected suspect’s whereabouts, and
(ii)  if the detained person or protected suspect wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person or protected suspect to consult with the person communicated with, and
(b)  communicate, or attempt to communicate, with an Australian legal practitioner of the person’s choice and ask that Australian legal practitioner to do either or both of the following—
(i)  attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,
(ii)  be present during any such investigative procedure.
(2)  If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable—
(a)  give the person reasonable facilities to enable the person to do so, and
(b)  allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.
(3)  The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate—
(a)  to allow the person to make, or attempt to make, a communication referred to in subsection (1), and
(b)  if the person has asked any person so communicated with to attend at the place where the person is being detained—
(i)  to allow the person communicated with to arrive at that place, and
(ii)  to allow the person to consult with the person communicated with at that place.
(4)  If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.
(5)  If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must—
(a)  allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and
(b)  if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person.
(6)  Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.
(7)  An investigative procedure is not required to be deferred under subsection (3)(b)(i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained.
(8)  An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person.
(9)  The duties of a custody manager under this section owed to a detained person or protected suspect who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124.
(10)  After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.
124   Right of foreign national to communicate with consular official
(cf Crimes Act 1900, s 356O)
(1)  This section applies to a detained person or protected suspect who is not an Australian citizen or a permanent Australian resident.
(2)  Before any investigative procedure in which a person to whom this section applies is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may—
(a)  communicate, or attempt to communicate, with a consular official of the country of which the person is a citizen, and
(b)  ask the consular official to attend at the place where the person is being detained to enable the person to consult with the consular official.
(3)  If the person wishes to communicate with such a consular official, the custody manager must, as soon as practicable—
(a)  give the person reasonable facilities to enable the person to do so, and
(b)  allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.
(4)  The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate—
(a)  to allow the person to make, or attempt to make, the communication referred to in subsection (2), and
(b)  if the person has asked any consular official so communicated with to attend at the place where the person is being detained—
(i)  to allow the consular official to arrive at that place, and
(ii)  to allow the person to consult with the consular official.
(5)  If the person has asked a consular official communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the consular official in private and must provide reasonable facilities for that consultation.
(6)  An investigative procedure is not required to be deferred under subsection (4)(b)(i) for more than 2 hours to allow a consular official that the person has communicated with to arrive at the place where the person is being detained.
(7)  An investigative procedure is not required to be deferred to allow the person to consult with a consular official who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the consular official.
(8)  After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.
(9)  This section does not apply if the custody manager did not know, and could not reasonably be expected to have known, that the person is not an Australian citizen or a permanent Australian resident.
125   Circumstances in which certain requirements need not be complied with
(cf Crimes Act 1900, s 356P)
(1)  A requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that doing so is likely to result in—
(a)  an accomplice of the detained person or protected suspect avoiding arrest, or
(b)  the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c)  hindering the recovery of any person or property concerned in the offence under investigation, or
(d)  bodily injury being caused to any other person.
(2)  Further, in the case of a requirement that relates to the deferral of an investigative procedure, a requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that the investigation is so urgent, having regard to the safety of other persons, that the investigative procedure should not be deferred.
126   Provision of information to friend, relative or guardian
(cf Crimes Act 1900, s 356Q)
(1)  The custody manager for a detained person or protected suspect must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be a friend, relative or guardian of the detained person or protected suspect.
(2)  The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless—
(a)  the detained person or protected suspect does not agree to that information being provided, or
(b)  the custody manager believes on reasonable grounds that the person requesting the information is not a friend, relative or guardian of the detained person or protected suspect, or
(c)  the custody manager believes on reasonable grounds that doing so is likely to result in—
(i)  an accomplice of the detained person or protected suspect avoiding arrest, or
(ii)  the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(iii)  hindering the recovery of any person or property concerned in the offence under investigation, or
(iv)  bodily injury being caused to any other person.
127   Provision of information to certain other persons
(cf Crimes Act 1900, s 356R)
(1)  The custody manager for a detained person or protected suspect must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be—
(a)  an Australian legal practitioner representing the detained person or protected suspect, or
(b)  in the case of a detained person or protected suspect who is not an Australian citizen or a permanent Australian resident, a consular official of the country of which the detained person or protected suspect is a citizen, or
(c)  a person (other than a friend, relative or guardian of the detained person or protected suspect) who is in his or her professional capacity concerned with the welfare of the detained person or protected suspect.
(2)  The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless—
(a)  the detained person or protected suspect does not agree to that information being provided, or
(b)  the custody manager believes on reasonable grounds that the person requesting the information is not the person who he or she claims to be.
128   Provision of interpreter
(cf Crimes Act 1900, s 356S)
(1)  The custody manager for a detained person or protected suspect must arrange for an interpreter to be present for the person in connection with any investigative procedure in which the person is to participate if the custody manager has reasonable grounds for believing that the person is unable—
(a)  because of inadequate knowledge of the English language, to communicate with reasonable fluency in English, or
(b)  because of any disability, to communicate with reasonable fluency.
(2)  The custody manager must ensure that any such investigative procedure is deferred until the interpreter arrives.
(3)  However, the custody manager need not—
(a)  arrange for an interpreter to be present if the custody manager believes on reasonable grounds that the difficulty of obtaining an interpreter makes compliance with the requirement not reasonably practicable, or
(b)  defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.
(4)  If an interpreter is not available to be present for the person in connection with any investigative procedure in which the person is to participate, the custody manager must instead arrange for a telephone interpreter for the person.
(5)  The custody manager must ensure that any such investigative procedure is deferred until a telephone interpreter is available.
(6)  However, the custody manager need not—
(a)  arrange for a telephone interpreter if the custody manager believes on reasonable grounds that the difficulty of obtaining such an interpreter makes compliance with the requirement not reasonably practicable, or
(b)  defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.
129   Right to medical attention
(cf Crimes Act 1900, s 356T)
The custody manager for a detained person or protected suspect must arrange immediately for the person to receive medical attention if it appears to the custody manager that the person requires medical attention or the person requests it on grounds that appear reasonable to the custody manager.
130   Right to reasonable refreshments and facilities
(cf Crimes Act 1900, s 356U)
(1)  The custody manager for a detained person or protected suspect must ensure that the person is provided with reasonable refreshments and reasonable access to toilet facilities.
(2)  The custody manager for a detained person or protected suspect must ensure that the person is provided with facilities to wash, shower or bathe and (if appropriate) to shave if—
(a)  it is reasonably practicable to provide access to such facilities, and
(b)  the custody manager is satisfied that the investigation will not be hindered by providing the person with such facilities.
131   Custody records to be maintained
(cf Crimes Act 1900, s 356V)
(1)  The custody manager for a detained person or protected suspect must open a custody record in the form prescribed by the regulations for the person.
(2)  The custody manager must record the following particulars in the custody record for the person—
(a)  the date and time—
(i)  the person arrived at the police station or other place where the custody manager is located, and
(ii)  the person came into the custody manager’s custody,
(b)  the name and rank of the arresting officer and any accompanying officers,
(c)  the grounds for the person’s detention,
(d)  details of any property taken from the person,
(e)  if the person participates in any investigative procedure, the time the investigative procedure started and ended,
(f)  details of any period of time that is not to be taken into account under section 117,
(g)  if the person is denied any rights under this Part, the reason for the denial of those rights and the time when the person was denied those rights,
(h)  the date and time of, and reason for, the transfer of the person to the custody of another police officer,
(i)  details of any application for a detention warrant and the result of any such application,
(j)  if a detention warrant is issued in respect of the person, the date and time a copy of the warrant was given to the person and the person was informed of the nature of the warrant and its effect,
(k)  the date and time the person is released from detention,
(l)  any other particulars prescribed by the regulations.
(3)  The custody manager is responsible for the accuracy and completeness of the custody record for the person and must ensure that the custody record (or a copy of it) accompanies the person if the person is transferred to another location for detention.
(4)  The recording of any matters referred to in this section must be made contemporaneously with the matter recorded in so far as it is practicable to do so.
(5)  As soon as practicable after the person is released or taken before a Magistrate or authorised officer or court, the custody manager must ensure that a copy of the person’s custody record is given to the person.
Division 4 Regulations
132   Regulations
(cf Crimes Act 1900, s 356X)
The regulations may make provision for or with respect to the following—
(a)  guidelines to be observed by police officers regarding the exercise of functions conferred or imposed on police officers (including custody managers) by this Part,
(b)  police officers who may act as custody managers,
(c)  the keeping of records relating to persons who are detained under this Part, including the formal record of the conduct of investigative procedures in which such persons participate.
Part 10 Other powers relating to persons in custody and to other offenders
Note.
 For searches of persons in custody, see Division 3 of Part 4.
Division 1 Taking of identification particulars from persons in custody
133   Power to take identification particulars
(cf Crimes Act 1900, s 353A)
(1)  A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offence.
(2)  If the person is over the age of 14 years, the particulars may include the person’s photograph, finger-prints and palm-prints.
(3)  This section does not authorise a police officer to take from any person, or to require any person to provide, any sample of the person’s hair, blood, urine, saliva or other body tissue or body fluid.
(4)  Subsection (3) does not affect a police officer’s power to take any such sample, or to require the provision of any such sample, for the purposes of, and in accordance with the requirements of, any other Act or law.
Note.
 See, for example, the powers conferred by the Crimes (Forensic Procedures) Act 2000.
134   Orders for the taking of identification particulars
(cf Crimes Act 1900, s 353A)
(1)  A court that finds an offence to which this section applies to have been proven against a person may order the person to present himself or herself in accordance with the terms of the order and submit to the taking, by the officer in charge of the police station specified in the order, of all particulars as are necessary to identify the person.
(2)  The particulars may include the person’s photograph, finger-prints and palm-prints.
(3)  The order is to contain a warning to the person that a failure or refusal to comply may result in the person’s arrest.
(4)  A person who does not present himself or herself in accordance with the terms of the order may, at the direction of the officer in charge of the police station, be arrested without a warrant and taken into custody for such time as is reasonably necessary for the taking of particulars in accordance with the order.
(5)  This section applies to the following offences—
(a)  any indictable offence,
(b)  an offence under section 117 of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act) of driving a motor vehicle on a road or road related area negligently occasioning death, negligently occasioning grievous bodily harm, furiously or recklessly or at a speed or in a manner that is dangerous to the public,
(c)  an offence under any of the following provisions of the Road Transport Act 2013 (or any former corresponding provisions within the meaning of that Act)—
(i)  section 110(1), (2), (3)(a) or (b), (4)(a) or (b) or (5)(a) or (b),
(ia)  section 111(1)(a) or (b) or (3)(a) or (b),
(ii)  section 112(1)(a) or (b),
(iii)  section 118,
(iv)  section 146,
(v)  clause 16(1)(b) of Schedule 3,
(vi)  clause 17(1) or 18(1) of Schedule 3,
(c1)  an offence under section 5 or 6 of the Prevention of Cruelty to Animals Act 1979,
(d)  an offence prescribed, or of a kind or description prescribed, by the regulations.
135   Lawful custody of persons other than police officers
(cf Crimes Act 1900, s 353A)
(1)  A reference in this Division to lawful custody is a reference to lawful custody of the police or other authority.
(2)  If a person is in lawful custody in a place other than a police station, the powers under section 133 or 134 of a police officer may be exercised by the person in charge of the place or by another person who is normally supervised by that person.
(3)  The consent of the person in lawful custody is not required for the doing of anything under section 133 or 134.
136   Identification particulars of children under 14 years
(cf Crimes Act 1900, s 353AA)
(1)  This section applies to a child under the age of 14 years who is in lawful custody for an offence.
(2)  A person must not take a photograph or the finger-prints or palm-prints of a child except in accordance with this section. Nothing in this section, however, prevents the taking of any child’s photograph, finger-prints or palm-prints in accordance with the order of a court under section 134.
(3)  A police officer of the rank of sergeant or above may, in respect of a child, apply—
(a)  to the Children’s Court, or
(b)  if it is not possible to apply to the Children’s Court within 72 hours after the taking of the child into custody, to an authorised officer,
for an order authorising, for the purpose only of identifying the child, the taking of the child’s photograph, finger-prints and palm-prints.
(4)  The Children’s Court or authorised officer may hear the application and may make the order sought in the application.
(5)  In determining whether to make the order, the Children’s Court or authorised officer is to take into account the following—
(a)  the seriousness of the circumstances surrounding the offence,
(b)  the best interests of the child,
(c)  the child’s ethnic and cultural origins,
(d)  so far as they can be ascertained, any wishes of the child with respect to whether the order should be granted,
(e)  any wishes expressed by the parent or guardian of the child with respect to whether the order should be granted.
(6)  A child must not be held in custody for the purpose only of an application being made under this section.
137   Destruction of certain identification particulars relating to children
(cf Crimes Act 1900, s 353AB)
(1)  If a court finds an offence alleged against a child who has had the child’s photograph, finger-prints and palm-prints taken in accordance with this Part not proved, the court must cause to be served on—
(a)  the child, and
(b)  if practicable, the parents or guardian of the child, and
(c)  any other person who has the care of the child,
a notice stating that if the child or they so desires or desire, the court will order that the photograph, finger-prints and palm-prints, and any other prescribed records (other than the records of the court), relating to the alleged offence be destroyed and the court may make the order accordingly.
(2)  In this section—
prescribed records means records of the kind prescribed for the purposes of section 38(1) of the Children (Criminal Proceedings) Act 1987.
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).
137C   Commissioner may order destruction of identification particulars
(1)  The Commissioner may, in such cases as the Commissioner considers it to be appropriate, order the destruction of any photograph, finger-prints or palm-prints of a person that have been taken under this Division in relation to an offence.
(2)  This section does not affect any requirement under this Division relating to the destruction of a person’s photograph, finger-prints or palm-prints.
Division 2 Examination of persons in custody
138   Power to examine person in custody
(cf Crimes Act 1900, s 353A(2))
(1)  A medical practitioner acting at the request of a police officer of the rank of sergeant or above, and any person acting in good faith in aid of the medical practitioner and under his or her direction, may examine a person in lawful custody for the purpose of obtaining evidence as to the commission of an offence if—
(a)  the person in custody has been charged with an offence, and
(b)  there are reasonable grounds for believing that an examination of the person may provide evidence as to the commission of the offence.
(2)  A reference in this section to lawful custody is a reference to lawful custody of the police or other authority.
(3)  If a person is in lawful custody in a place other than a police station, the powers under subsection (1) of a police officer may be exercised by the person in charge of the place or by another person who is normally supervised by that person.
(4)  The consent of the person in lawful custody is not required for the doing of anything under subsection (1).
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.
138A   Taking of finger-prints and palm-prints from persons issued penalty notices
(1)  A police officer who serves a penalty notice on a person under the Criminal Procedure Act 1986 may (whether before or after the penalty notice has been served) require the person to submit to having his or her finger-prints or palm-prints, or both, taken and may, with the person’s consent, take the person’s finger-prints or palm-prints, or both.
(2)  A requirement under this section must not be made of a person who is under the age of 18 years and any such person is not required to comply with a requirement under this section.
(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.
138B   Taking of finger-prints and palm-prints from persons required to attend court
(1)  A police officer who serves a court attendance notice personally on a person who is not in lawful custody for an offence may require the person to submit to having his or her finger-prints or palm-prints, or both, taken and may, with the person’s consent, take the person’s finger-prints or palm-prints, or both.
(2)  A requirement under this section must not be made of a person who is under the age of 18 years and any such person is not required to comply with a requirement under this section.
138C   Safeguards for exercise of powers to obtain finger-prints and palm-prints without arrest
(1)  A police officer must, at the time of exercising a power to require finger-prints or palm-prints, or both, to be taken under section 138A or 138B, provide the person subject to the exercise of the power with the following—
(a)  evidence that the police officer is a police officer (unless the police officer is in uniform),
(b)  the name of the police officer and his or her place of duty,
(c)  the reason for the exercise of the power,
(d)  a warning that, if the person fails to comply with the requirement, the person may be arrested for the offence concerned and that, while in custody, the person’s finger-prints and palm-prints may be taken without the person’s consent.
(2)  If 2 or more police officers are exercising a power, only one officer present is required to comply with this section.
(3)  However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested.
Division 4 Testing of certain offenders for intoxication
138D   Persons to whom Division applies and purpose of exercise of powers
(1)  This Division applies to a person who has been arrested by a police officer—
(a)  for an alleged offence under section 25A(2) of the Crimes Act 1900, or
(b)  for any other offence that involves the assault of another person if the police officer believes that the person would be liable to be charged with an offence under section 25A(2) of the Crimes Act 1900 if the other person dies.
(2)  A police officer may exercise the powers conferred by this Division for the purpose of confirming whether the person had consumed or taken alcohol, a drug or other intoxicating substance before the alleged offence and the likely amount consumed or taken.
138E   Definitions
In this Division, breath test, breath analysis and other words and expressions used in this Division and in Schedule 3 to the Road Transport Act 2013 have the same meanings as they have in that Schedule.
138F   Breath testing and breath analysis for presence of alcohol
(1)  A police officer may require a person to whom this Division applies to undertake a breath test, either at or near the scene of the alleged offence or at a police station or other place at which the person is detained in connection with the alleged offence.
(2)  A police officer may require a person to whom this Division applies to undertake a breath analysis at a police station or other place at which the person is detained in connection with the alleged offence.
(3)  A breath test or breath analysis may only be required to be undertaken under this section within 2 hours after the commission of the alleged offence.
(4)  The following provisions of Schedule 3 to the Road Transport Act 2013 apply in relation to a breath test or breath analysis under this section (with any necessary or prescribed modifications)—
(a)  the police officers authorised to carry out a breath analysis,
(b)  the provision of a statement to the person undertaking the breath analysis as to the concentration of alcohol determined by the analysis,
(c)  the issue of evidentiary certificates relating to the breath analysis,
(d)  any other provisions prescribed by the regulations.
(5)  Evidence of the presence or concentration of any alcohol in an accused’s breath as determined by a breath analysis carried out in accordance with this section may be used only in proceedings for an offence under section 25A(2) of the Crimes Act 1900.
138G   Blood and urine samples for analysis for presence of alcohol or drugs
(1)  A police officer may require a person to whom this Division applies to provide samples of the person’s blood and urine (taken by an authorised sample taker) at a police station or other place at which the person is detained in connection with the alleged offence.
(2)  A blood or urine sample may only be required to be provided under this section if the person has refused to undertake (or cannot be required to undertake) a breath analysis pursuant to a requirement under section 138F or if the police officer has a reasonable belief that the person is under the influence of a substance other than alcohol. The person may also request that blood or urine samples be taken under this section if the person has undertaken such a breath analysis.
(3)  A blood or urine sample may only be required to be provided under this section within 4 hours after the commission of the alleged offence.
(4)  A person may be taken to and detained at a hospital for the purpose of the taking of a blood or urine sample required to be provided under this section.
(5)  The following provisions of Schedule 3 to the Road Transport Act 2013 apply in relation to blood or urine samples taken under this section (with any necessary or prescribed modifications)—
(a)  the procedures for taking the blood or urine samples,
(b)  the procedures for analysing the blood or urine samples (including the independent analysis of a portion of a blood or urine sample at the request of the person providing the sample),
(c)  offences relating to sample handling and the use of samples,
(d)  the issue of evidentiary certificates relating to the blood or urine samples and their analysis,
(e)  the protection from liability of authorised sample takers in relation to the taking of blood or urine samples,
(f)  any other provisions prescribed by the regulations.
(6)  Evidence of the presence or concentration of any alcohol, drug or other substance in an accused’s blood or urine as determined by an analysis carried out in accordance with this section may be used only in proceedings for an offence under section 25A(2) of the Crimes Act 1900.
138H   Offences relating to testing
(1)  A person who refuses to provide a blood or urine sample pursuant to a requirement under section 138G is guilty of an offence.
Maximum penalty—50 penalty units or imprisonment for 2 years, or both.
(2)  It is a defence to a prosecution for an offence under subsection (1) if the person was unable on medical grounds to comply with the requirement.
(3)  A person who commits an offence under the provisions of Schedule 3 to the Road Transport Act 2013 that are applied by this Division is taken to be guilty of an offence under this Division.
Part 11 Drug detection powers
Division 1 Drug premises
139   Definitions
(1)  In this Division—
cultivation by enhanced indoor means, in relation to a prohibited plant, has the same meaning as in the Drug Misuse and Trafficking Act 1985.
drug premises means any premises that are used for either or both of the following—
(a)  the unlawful supply or manufacture of prohibited drugs,
(b)  the unlawful cultivation of prohibited plants by enhanced indoor means.
lookout, in relation to premises, means a person who is in the vicinity of the premises for the purpose of communicating to any person on the premises to warn the person of impending police action.
money includes any valuable thing or security for money.
occupier of premises includes the lessee or sublessee who is not the owner of the premises.
owner of premises includes any person—
(a)  who is entitled to freehold possession of the premises, or
(b)  who is in actual receipt of, or entitled to receive, or if the premises were let to a tenant, would be entitled to receive, the rents and profits of the premises.
prohibited drug does not include cannabis leaf, cannabis oil or cannabis resin.
(2)  A reference in this Division to an offence includes a reference to an offence that there are reasonable grounds for believing has been, is being, or is to be, committed (as the case requires).
(3)  For the purposes of this Division, a thing is connected with a particular offence if it is—
(a)  a thing with respect to which the offence has been committed, or
(b)  a thing that will provide evidence of the commission of the offence, or
(c)  a thing that was used, or is intended to be used, in or in connection with the commission of an offence.
140   Issue of search warrant—suspected drug premises
(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.
(2)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any police officer to enter and search the premises.
141   Execution of search warrant
For the purposes of executing a search warrant issued under this Division in respect of premises, a police officer may—
(a)  pass through, from, over or along any other land or building for the purpose of entering the premises, and
(b)  break open doors, windows or partitions, and
(c)  do such other acts as may be necessary.
142   Search and arrest of persons pursuant to search warrant
(1)  A police officer executing a search warrant issued under this Division may—
(a)  search any person on the premises, and
(b)  arrest or otherwise proceed against any person on the premises, and
(c)  seize and detain any firearm or other thing found on the premises that the police officer has reasonable grounds for believing is connected with an offence, and
(d)  without limiting paragraph (c), seize any prohibited drug, prohibited plant and money found on the premises and any syringe or other thing that is kept or used in connection with, or that relates to, any activity prohibited by or under the Drug Misuse and Trafficking Act 1985, and
(e)  require any person on the premises to disclose his or her identity.
(2)  The power conferred by subsection (1) to seize and detain a thing includes—
(a)  power to remove the thing from the premises where it is found, and
(b)  power to guard the thing in or on those premises.
143   Obstructing police officer executing search warrant
(1)  If a police officer is authorised under this Division to enter any premises, a person must not—
(a)  wilfully prevent the officer from entering or re-entering those premises or any part of those premises, or
(b)  wilfully obstruct or delay the officer from entering or re-entering those premises or any part of those premises, or
(c)  give an alarm or cause an alarm to be given for the purpose of—
(i)  notifying another person of the presence of the officer, or
(ii)  obstructing or delaying the officer from entering or re-entering those premises or any part of those premises.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(2)  A person on premises who is required by a police officer in accordance with this Division to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.
Maximum penalty—50 penalty units.
(3)  A person must not, without reasonable excuse, in response to a requirement made by a police officer in accordance with this Division—
(a)  give a name that is false in a material particular, or
(b)  give an address other than the person’s full and correct address.
Maximum penalty—50 penalty units.
144   Application of other laws
This Division does not limit the operation of the Restricted Premises Act 1943 or any other law of the State relating to the entry into, and carrying out of searches on, premises.
Division 2 Use of drug detection dogs
145   Meaning of “general drug detection”
For the purposes of this Division—
general drug detection is the detection of prohibited drugs or plants in the possession or control of a person, except during a search of a person that is carried out after a police officer reasonably suspects that the person is committing a drug offence.
146   General authority to use drug detection dogs
(1)  If a police officer is authorised to search a person for the purpose of detecting a drug offence, the officer is entitled to use a dog for that purpose.
(2)  A police officer is, for the purpose of detecting a drug offence, entitled to be accompanied by a dog under the officer’s control if the officer is entitled to enter, or be in or on, particular premises in the exercise of the officer’s functions.
(3)  Neither the State nor a police officer is liable to any action, liability, claim or demand merely because a dog entered, or was in or on, premises as provided by this section.
147   Use of dogs for general drug detection authorised
A police officer is authorised to use a dog to carry out general drug detection, but only as provided by this Division.
148   General drug detection with dogs in authorised places
(1)  A police officer may, without a warrant, use a dog to carry out general drug detection in relation to the following persons—
(a)  persons at, or seeking to enter or leave, any part of premises being used for the consumption of liquor that is sold at the premises (other than any part of premises being used primarily as a restaurant or other dining place),
(b)  persons at, or seeking to enter or leave, a public place at which a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held,
(c)  persons on, or seeking to enter or leave, a public passenger vehicle that is travelling on a route prescribed by the regulations, or a station, platform or stopping place on any such route,
(d)  persons at, or seeking to enter or leave, any part of premises that the officer is authorised to enter under the Tattoo Parlours Act 2012 to carry out general drug detection using a dog,
(e)  persons at any public place in the Kings Cross precinct (being the area including and bounded by the parts of streets specified in Schedule 2 to the Liquor Act 2007),
(f)  persons at, or seeking to enter or leave, any part of premises that the officer is authorised to enter under section 10 of the Restricted Premises Act 1943.
(2)  In this section—
public passenger vehicle means a train, light rail vehicle or bus that is used to provide a public passenger service.
(3)  A reference in this section to Schedule 2 to the Liquor Act 2007 is a reference to that Schedule as in force on the commencement of this subsection.
149   General drug detection with dogs by warrant
(1)  A police officer may use a dog to carry out general drug detection if authorised to do so by a warrant under this section.
(2)  A police officer who has reasonable grounds for believing that the persons at any public place may include persons committing drug offences may apply to an authorised officer for a warrant under this section.
(3)  An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a warrant authorising any police officer to use a dog to carry out general drug detection in the public place during the period or periods specified in the warrant.
(4)  An application for a warrant under this section must disclose whether any general drug detection to be carried out under the warrant will be part of a covert police operation.
150   Provisions relating to general drug detection
(1)  A police officer carrying out general drug detection under this Division is to take all reasonable precautions to prevent the dog touching a person.
(2)  A police officer is required to keep a dog under control when the officer is using the dog to carry out general drug detection under this Division.
(3)  General drug detection under this Division may be carried out as part of a covert police operation, but only if it is authorised by a warrant under this Division.
(4)  The provisions of this Division do not affect—
(a)  the search of a person whom a police officer reasonably suspects is committing a drug offence, or
(b)  any search of premises that does not involve a search of persons in or on the premises.
(5)  Nothing in this Division confers on a police officer a power—
(a)  to enter any premises that the officer is not otherwise authorised to enter, or
(b)  to detain a person who the officer is not otherwise authorised to detain.
Division 3
151–184  (Repealed)
Part 12
185–192   (Repealed)
Part 13 Use of dogs to detect firearms and explosives
193   Definitions
(cf Firearms Act 1996, s 72A)
In this Part—
general firearms or explosives detection is the detection or tracking of firearms or explosives, including live or spent ammunition or any residue from a firearm or explosive, in a public place (including in any vehicle in a public place or in the possession of a person who is in a public place).
relevant firearms or explosives offence means an offence under the Firearms Act 1996 or any other Act involving the possession or use of a firearm or explosive.
194   Part does not confer power of entry or detention
(cf Firearms Act 1996, s 72B)
Nothing in this Part confers on a police officer a power—
(a)  to enter any premises that the officer is not otherwise authorised to enter, or
(b)  to detain a person whom the officer is not otherwise authorised to detain.
195   General authority to use dogs for detecting firearms or explosives
(cf Firearms Act 1996, s 72C)
(1)  If a police officer is authorised to search a person for the purpose of detecting a relevant firearms or explosives offence, the officer is entitled to use a dog for that purpose.
(2)  A police officer is, for the purpose of detecting a relevant firearms or explosives offence, entitled to be accompanied by a dog under the officer’s control if the officer is entitled to enter, or be in or on, particular premises in the exercise of the officer’s functions.
(3)  Neither the State nor a police officer is liable to any action, liability, claim or demand merely because a dog entered, or was in or on, premises as provided by subsection (2).
196   General firearms or explosives detection using dogs
(cf Firearms Act 1996, s 72D)
(1)  A police officer is authorised to use a dog to carry out general firearms or explosives detection without a warrant.
(2)  A police officer carrying out general firearms or explosives detection under this section is to take all reasonable precautions to prevent the dog touching a person.
(3)  A police officer is required to keep a dog under control when the officer is using the dog to carry out general firearms or explosives detection under this section.
(4)  The provisions of this section do not affect the search of a person whom a police officer reasonably suspects is committing a relevant firearms or explosives offence.
Part 14 Powers to give directions
Note.
 Safeguards relating to the exercise of the power to give a direction are set out in Part 15.
197   Directions generally relating to public places
(1)  A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as relevant conduct)—
(a)  is obstructing another person or persons or traffic, or
(b)  constitutes harassment or intimidation of another person or persons, or
(c)  is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d)  is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e)  is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.
(2)  A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of—
(a)  reducing or eliminating the obstruction, harassment, intimidation or fear, or
(b)  stopping the supply, or soliciting to supply, of the prohibited drug, or
(c)  stopping the obtaining, procuring or purchasing of the prohibited drug.
(3)  The other person or persons referred to in subsection (1) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.
(4)  For the purposes of subsection (1)(c), no person of reasonable firmness need actually be, or be likely to be, present at the scene.
198   Move on directions to intoxicated persons in public places
(1)  A police officer may give a direction to an intoxicated person who is in a public place to leave the place and not return for a specified period if the police officer believes on reasonable grounds that the person’s behaviour in the place as a result of the intoxication (referred to in this Part as relevant conduct)—
(a)  is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or
(b)  is disorderly.
(2)  A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of—
(a)  preventing injury or damage or reducing or eliminating a risk to public safety, or
(b)  preventing the continuance of disorderly behaviour in a public place.
(3)  The period during which a person may be directed not to return to a public place is not to exceed 6 hours after the direction was given.
(4)  The other person or persons referred to in subsection (1)(a) need not be in the public place but must be near that place at the time the relevant conduct is being engaged in.
(5)  For the purposes of this section, a person is intoxicated if—
(a)  the person’s speech, balance, co-ordination or behaviour is noticeably affected, and
(b)  it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug.
(6)  A police officer must give to a person to whom the officer gives a direction under this section (being a direction on the grounds that the person is intoxicated and disorderly in a public place) a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. The warning is in addition to any other warning required under Part 15.
Note.
 See relevant offence under section 9 of the Summary Offences Act 1988.
198A   Giving of directions to groups of persons
(1)  A police officer may give a direction under this Part to persons comprising a group.
(2)  In any such case, the police officer is not required to repeat the direction (or the warning referred to in section 198(6) in the case of a direction given under section 198), or to repeat the information and warning referred to in Part 15, to each person in the group.
(3)  However, just because the police officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning.
199   Failure to comply with direction
(1)  A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part.
Maximum penalty—2 penalty units.
(2)  A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.
200   Limitation on exercise of police powers under this Part
(1)  This Part does not authorise a police officer to give a direction in relation to an industrial dispute.
(2)  This Part does not authorise a police officer to give a direction in relation to—
(a)  an apparently genuine demonstration or protest, or
(b)  a procession, or
(c)  an organised assembly,
except as provided by subsection (3) or (4).
(3)  A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly if the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person.
(4)  A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly that is obstructing traffic if—
(a)  the demonstration, protest, procession or assembly is not an authorised public assembly for the purposes of Part 4 of the Summary Offences Act 1988 or the demonstration, protest, procession or assembly is not being held substantially in accordance with any such authorisation, and
(b)  the police officer in charge at the scene has authorised the giving of directions under this Part in relation to the demonstration, protest, procession or assembly, and
(c)  the direction is limited to the persons who are obstructing traffic.
200A   Code of practice
(1)  The regulations may prescribe a code of practice relating to the exercise of powers by police officers under this Part and the rights of persons to whom directions are given under this Part.
(2)  The exercise of powers by police officers under this Part is subject to any such code of practice.
Part 15 Safeguards relating to powers
Note.
 For other safeguards relating to seizure or confiscation of property by police, see Part 17.
For other requirements relating to personal searches, see Part 4.
201   Police powers to which this Part applies
(1)  This Part applies to the exercise of the following powers by police officers—
(a)  a power to stop, search or arrest a person,
(b)  a power to stop or search a vehicle, vessel or aircraft,
(c)  a power to enter or search premises,
(d)  a power to seize property,
(e)  a power to require the disclosure of the identity of a person (including a power to require the removal of a face covering for identification purposes),
(f)  a power to give or make a direction, requirement or request that a person is required to comply with by law,
(g)  a power to establish a crime scene at premises (not being a public place).
This Part applies (subject to subsection (3)) to the exercise of any such power whether or not the power is conferred by this Act.
Note.
 This Part extends to special constables exercising any such police powers—see section 82L of the Police Act 1990. This Part also extends to recognised law enforcement officers (with modifications)—see clause 132B of the Police Regulation 2008.
(2)  This Part does not apply to the exercise of any of the following powers of police officers—
(a)  a power to enter or search a public place,
(b)  a power conferred by a covert search warrant,
(c)  a power to detain an intoxicated person under Part 16.
(3)  This Part does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1.
202   Police officers to provide information when exercising powers
(1)  A police officer who exercises a power to which this Part applies must provide the following to the person subject to the exercise of the power—
(a)  evidence that the police officer is a police officer (unless the police officer is in uniform),
(b)  the name of the police officer and his or her place of duty,
(c)  the reason for the exercise of the power.
(2)  A police officer must comply with this section—
(a)  as soon as it is reasonably practicable to do so, or
(b)  in the case of a direction, requirement or request to a single person—before giving or making the direction, requirement or request.
(3)  A direction, requirement or request to a group of persons is not required to be repeated to each person in the group.
(4)  If 2 or more police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.
(5)  If a person subject to the exercise of a power to which this Part applies asks a police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested.
(6)  A police officer who is exercising more than one power to which this Part applies on a single occasion and in relation to the same person is required to comply with subsection (1)(a) and (b) only once on that occasion.
203   Police officers to give warnings when giving or making directions, requirements or requests that must be complied with
(1)  A police officer who exercises a power to which this Part applies that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.
Note.
 A failure to comply with the direction, requirement or request does not constitute an offence unless a warning under this section has been given—see section 204B.
(2)  A warning is not required if the person has already complied with or is in the process of complying with the direction, requirement or request.
(3)  A police officer must comply with this section as soon as is reasonably practicable after the direction, requirement or request is given or made.
(4)  If 2 or more police officers are exercising a power to which this Part applies, only one officer present is required to comply with this section.
204   Detention period for search of vehicles etc limited
A police officer who detains a vehicle, vessel or aircraft for a search must not detain the vehicle, vessel or aircraft any longer than is reasonably necessary for the purpose of the search.
204A   Validity of exercise of powers
(1)  A failure by a police officer to comply with an obligation under this Part to provide the name of the police officer or his or her place of duty when exercising a power to which this Part applies does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power.
(2)  Subsection (1) does not apply if the failure to comply occurs after the police officer was asked for information as to the name of the police officer or his or her place of duty (as referred to in section 202(5)).
(3)  Subsection (1) does not apply to the exercise of a power that consists of a direction, requirement or request to a single person.
204B   Commission of offence in relation to exercise of powers where failure by police officer to comply with this Part
(1)  A person does not commit an offence under this Act of failing to comply with a direction, requirement or request given or made by a police officer under or in connection with a power to which this Part applies unless the obligations under this Part are complied with when exercising the power.
(2)  Subsection (1) does not apply to a failure by a police officer to comply with an obligation under this Part that does not render the exercise of the power by the officer unlawful because of section 204A.
Part 16 Powers relating to detention of intoxicated persons
205   Definitions
In this Part—
authorised place of detention means—
(a)  a police station, or
(b)  a detention centre within the meaning of the Children (Detention Centres) Act 1987 approved for the time being by the Minister for the purposes of this Part as an authorised place of detention.
detention officer means a police officer, a correctional officer (within the meaning of the Crimes (Administration of Sentences) Act 1999) or a person in charge of or employed in a detention centre (within the meaning of the Children (Detention Centres) Act 1987).
intoxicated person means a person who appears to be seriously affected by alcohol or another drug or a combination of drugs.
public place includes a school.
responsible person includes any person who is capable of taking care of an intoxicated person including—
(a)  a friend or family member, or
(b)  an official or member of staff of a government or non-government organisation or facility providing welfare or alcohol or other drug rehabilitation services.
206   Detention of intoxicated persons
(1)  A police officer may detain an intoxicated person found in a public place who is—
(a)  behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or
(b)  in need of physical protection because the person is intoxicated.
(2)  A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law.
(2A)  However, a police officer may detain an intoxicated person under this section even if behaviour constitutes an offence under section 9 of the Summary Offences Act 1988 if the detention is not for the purpose of taking proceedings for the offence.
Note.
 Section 9 of the Summary Offences Act 1988 makes it an offence for a person who is the subject of a move on direction to be intoxicated and disorderly in a public place. Part 8 of this Act would apply to a person who is arrested for such an offence and detained for the purpose of taking proceedings for the offence.
(3)  An intoxicated person detained by a police officer under this Part is to be taken to, and released into the care of, a responsible person willing immediately to undertake the care of the intoxicated person.
(4)  An intoxicated person detained by a police officer under this Part may be taken to and detained in an authorised place of detention if—
(a)  it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person, or
(b)  a responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impracticable to take the intoxicated person home, or
(c)  the intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person.
(5)  An intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage.