New South Wales: Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 No 103 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 1 Name of Act This Act is the Law Enforcement (Powers and Responsibilities) Act 2002. 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. computer, for Part 5, Division 4A—see section 76AA. 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. DECCD access order, for Part 5A, see section 80A. DECCD offence, for Part 5A, see section 80A. digital evidence access order, for Part 5—see section 46. 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. eligible applicant, for Part 5—see section 46. eligible issuing officer, for Part 5—see section 46. executing officer, for Part 5—see section 46. 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. relevant person, for Part 5A, see section 80A. 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. search warrant, for Part 5, Division 4A—see section 76AA. 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. specified person, for Part 5, Division 4A—see section 76AA. 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, or (c) the body of a person who has died, otherwise than as a result of an offence, is on the premises and there is no occupier on the premises to consent to the entry. (1A) Before entering premises under subsection (1)(c), the police officer must obtain approval to do so (orally or in writing) from a police officer of or above the rank of Inspector. (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 (cf Police Powers (Vehicles) Act 1998, s 6) (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 (cf Police Powers (Vehicles) Act 1998, s 7) (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 (cf Police Powers (Vehicles) Act 1998, s 7A) (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 (cf Police Powers (Vehicles) Act 1998, s 8) (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 (cf Police Powers (Vehicles) Act 1998, s 9) 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 (cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37) (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 (cf Crimes Act 1900, ss 357, 357E, Police Powers (Vehicles) Act 1998, s 10, Drug Misuse and Trafficking Act 1985, s 37) (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 (cf Police Powers (Vehicles) Act 1998, s 10) (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 (cf Police Powers (Vehicles) Act 1998, s 10) 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 (cf Police Powers (Vehicles) Act 1998, s 10) 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 (cf Police Powers (Vehicles) Act 1998, s 11) (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 (cf Police Powers (Vehicles) Act 1998, s 12) (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 (cf Drug Misuse and Trafficking Act 1985, s 37) (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 4A Additional powers without warrant in designated areas Division 1 Preliminary 45D Definitions In this part— designated area means a place declared under Division 2 to be a designated area. public transport station—see section 45E. public transport vehicle means the following vehicles— (a) a train or other vehicle being used to provide a rail passenger service within the meaning of the Passenger Transport Act 2014, (b) a light rail vehicle or other public passenger vehicle being operated by a light rail manager or light rail operator, (c) a bus or other motor vehicle being used for a public passenger service within the meaning of the Passenger Transport Act 2014, (d) a ferry being used to provide a ferry service within the meaning of the Passenger Transport Act 2014. senior police officer means a police officer of or above the rank of Assistant Commissioner. shopping precinct includes the following— (a) a shopping centre, (b) a shopping mall, (c) a retail strip, (d) a car park or passenger set-down area associated with a place mentioned in paragraphs (a)–(c). sporting venue means a designated sporting venue under the Sporting Venues (Invasions) Act 2003. use, of a hand-held scanner in relation to a person, means passing the hand-held scanner in close proximity to the person or the person's belongings. 45E Meaning of "public transport station" A public t