Police Offences Act 1935 (Tas)

Police Offences Act 1935 An Act to consolidate and amend the law relating to certain offences punishable summarily and to provide for certain police powers [Royal Assent 25 October 1935] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART I - Preliminary 1. Short title This Act may be cited as the Police Offences Act 1935 . 2. . . . . . . . . 3. Interpretation (1) In this Act, unless the contrary intention appears – body armour includes protective jackets, protective vests, protective suits, anti-ballistic articles and other similar articles – (a) able to be worn, either independently or as a part of something else, on the human body; and (b) designed or adapted to protect the human body from the effects of a firearm or any other prescribed device – but does not include anti-ballistic articles used for eye or hearing protection; child means any person under the age of 18 years; Commissioner means the Commissioner of Police; court means a court of summary jurisdiction having cognizance of the matter in relation to which the term is used; crossbow means a device, consisting of a bow fitted transversely on a stock that has a groove or barrel, designed to direct an arrow or bolt; dangerous article includes – (a) any weapon other than a firearm; and (b) any article adapted or modified so as to be capable of being used as such a weapon; and (c) any other article that is intended to be used as such a weapon; and (d) a knife; data includes information, a computer programme or part of a computer programme; emergency services means – (a) the State Emergency Service within the meaning of the Emergency Management Act 2006 ; and (b) Ambulance Tasmania established under the Ambulance Service Act 1982 ; and (c) the Tasmania Fire Service established under the Fire Service Act 1979 ; and (d) the Police Service; family violence order means a family violence order within the meaning of the Family Violence Act 2004 , and includes a police family violence order and an interim family violence order, within the meaning of that Act; firearm means a firearm within the meaning of the Firearms Act 1996 ; fireworks means a Type 2 fireworks, or Type 3 fireworks, within the meaning of the Explosives Regulations 2012 ; found offending has the meaning assigned to it in section 55(5) ; gain access includes to communicate with a computer; graffiti equipment means – (a) an aerosol paint container; and (b) any other thing prescribed for the purposes of this definition; liquor means a beverage (other than a medicine) that – (a) is intended for human consumption; and (b) has an alcoholic content greater than 0·5% by volume when at a temperature of 20° Celsius; liquor infringement notice means a liquor infringement notice in force under Division IV of Part VII ; motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ; mark graffiti means mark, draw, write or otherwise deface property by any means so that the defacement is not readily removable by wiping with a dry cloth; owner, used with reference to any real property, means the person for the time being in the actual receipt of or entitled to receive, or who, if such property were let to a tenant, would be entitled to receive the rents and profits thereof, whether as beneficial owner, trustee, executor, mortgagee in possession, or otherwise, but shall not include any mesne tenant; public authority includes the Crown, the Transport Commission, the Hydro-Electric Corporation, Tasmania Development and Resources, local authorities, the Tasmanian Ports Corporation Pty. Ltd. (ACN 114 161 938) and any other person with statutory powers to carry out or maintain works for the use or benefit of the public in this State or any part thereof; public place includes– any park, garden, reserve, or other place of public recreation or resort; any rail infrastructure, railway, or rolling stock, within the meaning of the Rail Safety National Law (Tasmania) Act 2012 ; any public wharf, pier, or jetty; any passenger vessel plying for hire; any vehicle plying for hire; any church, chapel, or other building open for the purpose of Divine service; any public hall, theatre, or room in which any public entertainment or meeting is being held or performed or is taking place; any market; any auction room, or mart, or place open for the purpose of a sale by auction; any premises specified in a liquor licence or liquor permit granted under the Liquor Licensing Act 1990 , that are open for the sale of liquor; any licensed billiard-room; any racecourse, cricket ground, football, show, or regatta ground, or other such place to which the public have access free or on payment of any gate-money; and includes any portion of such place which is within view of the public; any open yard, place, allotment, or urinal, closet, lavatory, or other convenience to which the public have access; any police office or police station, or any court-house or court of petty sessions, or any yard or enclosure used therewith respectively, to which the public have access; any street as herein defined, notwithstanding that the same may be formed on private property; any school building or the land or premises used in connection therewith; any public cemetery; any banking house, warehouse, shop, office, or similar place, while open for the transaction of business; public street has the same meaning as in the Traffic Act 1925 ; sexual offence means any of the following offences committed against or in respect of a person: (a) an offence under section 122 or 123 of the Criminal Code as in force immediately before 14 May 1997; (b) an offence under section 124 , 124A , 124B , 124C , 125 , 125A , 125B , 126 , 127 , 127A , 128 , 129 , 133 , 185 or 186 of the Criminal Code; (c) an offence under section 298 or 299 of the Criminal Code in respect of an offence specified in paragraph (a) or (b) ; (d) an offence under section 8(1A)(a) , section 21 or section 35(3) of this Act; (e) an offence under Part 8 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 in respect of a child abuse product, within the meaning of that Part; (f) an offence not specified in paragraph (a) , (b) , (c) or (d) if there are reasonable grounds to believe that, in the course of or as part of the events surrounding the commission of that offence, an offence specified in paragraph (a) , (b) , (c) or (d) was also committed by the offender; (g) an offence against the law of any jurisdiction other than Tasmania which is of substantially the same nature as an offence referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) ; street extends to and includes any road, square, court, passage, alley, thoroughfare, or public way or footway, any place of public resort, and any avenue leading thereto; street entertainment means entertainment consisting of – (a) singing, reciting or acting; or (b) playing a musical instrument; or (c) juggling; or (d) any other activity carried on for the entertainment of the public; town means a town proclaimed under the provisions of any Act and includes a city; trailer has the same meaning as in the Vehicle and Traffic Act 1999 ; vehicle includes every description of wheeled vehicle; youth means a person who has not attained the age of 18 years. (2) A vessel or vehicle shall be deemed to be plying for hire both when it is awaiting passengers in a place frequented by the public, whether or not such place be a public place as above defined, and when such vessel or vehicle is being used to convey passengers. (3) The definitions set forth in the Criminal Code , so far as the same are applicable and except where inconsistent with this Act, shall be applied in the construction of this Act. PART II - General Police Provisions Division I - Drunkenness, vagrancy, indecency, and other public annoyances 4. Drunkenness when in charge of vehicle or in possession of dangerous weapon (1) A person must not, in a public place, be drunk while in charge of any vehicle or when in possession of any dangerous weapon. (1A) A person who contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a penalty not exceeding 3 penalty units or to imprisonment for a term not exceeding 3 months. (2) Any person convicted in respect of any offence under this section committed within 6 months after he has been convicted of that or any other offence thereunder shall be liable to double the penalty hereinbefore prescribed in respect of the offence in respect of which he is so convicted. (3) Any police officer may seize and detain any vehicle, liquor or dangerous weapon in the charge or possession of a person whom he finds committing an offence against this section. (4) The court before which such offender is tried may order the offender to pay any expenses incurred as a consequence of such seizure. 4A. Custody of intoxicated persons (1) In this section – intoxicated means under the influence of alcohol, another drug or a combination of drugs; place of safety means a hospital, charitable institution or any other appropriate facility that is capable of caring for an intoxicated person and includes a place declared by the Minister under section 4C to be a place of safety for the purposes of this Act; responsible person means a person who a police officer reasonably believes is capable of taking adequate care of an intoxicated person. (2) If a police officer believes on reasonable grounds that a person in a public place is intoxicated and – (a) is behaving in a manner likely to cause injury to himself, herself or another person, or damage to any property; or (b) is incapable of protecting himself or herself from physical harm – the police officer may take the person into custody. (3) A police officer may – (a) at any time, without any further or other authority than this subsection, release a person taken into custody under subsection (2) , or cause that person to be released, without that person entering into a recognisance or bail, to a place of safety, or into the care of a responsible person, willing to take that person into care; or (b) hold that person in custody if it is not possible to release that person under paragraph (a) . (4) A person may only be held under subsection (3)(b) if a police officer has made reasonable inquiries to find a place of safety or a responsible person and has been unable to find a place of safety, or a responsible person, willing to take the person into care. (5) A person taken into custody under subsection (2) is not to be released under subsection (3)(a) into the care of a person in charge of a place of safety or a responsible person if the person held in custody objects to being released into the care of that person. (6) A person taken into custody under subsection (2) is to be released – (a) at the expiration of the period of 8 hours after he or she was taken into custody; or (b) when a police officer is of the opinion that it is reasonable to do so – whichever is earlier. (6A) If, on the expiration of the period of 8 hours referred to in subsection (6)(a) , a police officer of or above the rank of inspector believes on reasonable grounds that a person in custody remains – (a) likely to cause injury to himself, herself or another person, or damage to any property; or (b) incapable of protecting himself or herself from physical harm – the person may be detained for a further period of 4 hours. (7) A police officer may – (a) search or cause to be searched a person who has been taken into custody under subsection (2) ; and (b) remove or cause to be removed from that person for safe keeping, until the person is released from custody, any money or valuables that are found on or about that person and any item on or about that person that is likely to cause harm to that person or any other person or that could be used by that person or any other person to cause harm to that person or any other person. (8) A search of a person under subsection (7) is, if practical, to be conducted by a police officer of the same sex as the person being searched. 4B. Provisions relating to persons held in custody A person held in custody under section 4A – (a) is not to be questioned by a police officer in relation to an offence; and (b) is not to be photographed or have his or her fingerprints taken. 4C. Declaration of places of safety (1) The Minister may, by notice published in the Gazette, declare a place to be a place of safety for the purposes of this Act. (2) The Rules Publication Act 1953 does not apply to a notice made under subsection (1) . 5. . . . . . . . . 6. . . . . . . . . 6A. Display of certain insignia, &c., prohibited (1) In this section – identified organisation means an organisation that has been prescribed under subsection (3) ; participant in, in relation to an organisation, means a person – (a) who – (i) has been accepted as a member of the organisation, whether informally or through a process set by the organisation; and (ii) has not ceased to be a member of the organisation; or (b) who is an honorary member of the organisation; or (c) who is a prospective member of the organisation; or (d) who is an office holder of the organisation; or (e) who identifies himself or herself in any way as belonging to the organisation; or (f) whose conduct in relation to the organisation would reasonably lead another person to consider the person to be a participant in the organisation; prohibited item means any piece of clothing, jewellery, or other accessory, that displays – (a) the name of an identified organisation; or (b) the club patch, insignia or logo of an identified organisation; or (c) any image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or an association with, an identified organisation, including – (i) the symbol "1%"; and (ii) the symbol "1%er"; and (iii) any image, symbol, abbreviation, acronym or other form of writing that is prescribed; proposed prohibited item, in relation to an organisation, means an item that would be a prohibited item if the organisation were an identified organisation; relevant offence means an offence involving – (a) a public act of violence to a person; or (b) a public act of damage to property; or (c) disorderly, offensive, threatening or violent behaviour, in public. (2) The objects of this section are, as far as practicable – (a) to ensure that members of the public may lawfully use and pass through public places without experiencing fear or intimidation because other persons are visibly wearing or carrying prohibited items; and (b) to reduce the likelihood of public disorder or acts of violence in public places; and (c) to reduce the membership of organisations, members of which may, by wearing or carrying prohibited items – (i) cause members of the public to feel threatened, fearful or intimidated; or (ii) have an undue adverse effect on the health or safety of members of the public; or (iii) increase the likelihood of public disorder or acts of violence. (3) Regulations may prescribe an organisation to be an identified organisation. (4) Regulations may only prescribe an organisation to be an identified organisation on the recommendation of the Minister. (5) The Minister may recommend that an organisation be prescribed to be an identified organisation, but only if he or she has – (a) received from the Commissioner a recommendation under subsection (6) in relation to the organisation, together with the document required, in accordance with subsection (7) , to accompany the Commissioner's recommendation; and (b) received from the Attorney-General a recommendation under subsection (9) in relation to the organisation, together with the document required, in accordance with subsection (10) , to accompany the Attorney-General's recommendation. (6) The Commissioner may, by notice to the Minister, recommend that an organisation be prescribed to be an identified organisation. (7) A recommendation of the Commissioner under subsection (6) is to be accompanied by a document setting out – (a) reasons for the recommendation; and (b) a summary of the evidence taken into account by the Commissioner in deciding whether to make the recommendation. (8) The Commissioner is to provide to the Attorney-General – (a) a copy of a recommendation made under subsection (6) ; and (b) a copy of the document that, in accordance with subsection (7) , accompanied the Commissioner's recommendation. (9) The Attorney-General, after having considered – (a) the document that, in accordance with subsection (8) , was provided to the Attorney-General; and (b) any other evidence that the Attorney-General thinks fit – may, by notice to the Minister, recommend to the Minister that the organisation be prescribed to be an identified organisation. (10) A recommendation of the Attorney-General under subsection (9) is to be accompanied by a document setting out – (a) reasons for the recommendation; and (b) a summary of the other evidence, if any, that, in addition to the evidence received by the Attorney-General under subsection (8) , was, in accordance with subsection (9)(b) , taken into account in deciding whether to make the recommendation. (11) The Minister, the Commissioner and the Attorney-General may only make a recommendation under this section that an organisation be prescribed to be an identified organisation if the Minister, the Commissioner or the Attorney-General, respectively, is satisfied that the wearing or carrying of a proposed prohibited item, in relation to the organisation, by a person in a public place – (a) may cause members of the public to feel threatened, fearful or intimidated; or (b) may otherwise have an undue adverse effect on the health or safety of members of the public, or the amenity of the community, including by increasing the likelihood of public disorder or acts of violence; or (c) may encourage persons to become or remain members of an organisation, the members of which may, by wearing or carrying proposed prohibited items – (i) cause members of the public to feel threatened, fearful or intimidated; or (ii) have an undue adverse effect on the health or safety of members of the public; or (iii) increase the likelihood of public disorder or acts of violence. (12) In determining whether to make a recommendation under this section, the Minister, the Commissioner and the Attorney-General, respectively, must have regard to whether any person has, while a member of, or a participant in, the organisation, engaged in serious criminal activity or committed a relevant offence of which the person had been convicted. (13) Regulations, for the purpose of subsection (3) , that prescribe an organisation to be an identified organisation are of no effect until a notice, setting out that the regulations have been made and the effect of the regulations, appears in as many daily Tasmanian newspapers as circulate generally in the State. (14) A person who is in a public place must not wear or carry a prohibited item that, if another person were in the public place, would be visible to the other person. Penalty: In the case of – (a) a first offence, a fine not exceeding 20 penalty units; or (b) a subsequent offence, a fine not exceeding 40 penalty units. (15) A person who is in or on a vehicle that is in a public place must not wear or carry a prohibited item that, if another person were in the public place, would be visible to the other person. Penalty: In the case of – (a) a first offence, a fine not exceeding 20 penalty units; or (b) a subsequent offence, a fine not exceeding 40 penalty units. (16) It is a defence to proceedings for an offence against subsection (14) or (15) for the defendant to provide evidence that – (a) the defendant engaged in the conduct that is alleged to constitute the offence for a genuine artistic, educational, legal or law enforcement purpose; and (b) the defendant's conduct was, in the circumstances, reasonable for that purpose. 6B. Search, seizure and forfeiture of prohibited items (1) If a police officer has reasonable grounds to believe that a person who is in a public place is contravening, or has contravened, section 6A(14) or (15) , the police officer may, using such force, means and assistance as is reasonably necessary – (a) detain that person and search the person, including any clothing of the person; and (b) stop and detain any vehicle in or on which the person is, or was when the provision was being contravened, and search the vehicle and any container found in or on the vehicle; and (c) seize any item, found during a search under this subsection, that the police officer is of the opinion is a prohibited item within the meaning of section 6A(1) . (2) On conviction of a person of an offence against section 6A(14) or (15) , any prohibited item, within the meaning of section 6A(1) , to which the offence relates that is lawfully in the possession of the Crown is forfeited to the Crown. 6C. Display of Nazi symbols prohibited, &c. (1) A person must not, by a public act and without a legitimate public purpose, display a Nazi symbol if the person knows, or ought to know, that the symbol is a Nazi symbol. Penalty: In the case of – (a) an offence to which paragraph (b) does not apply – a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 3 months; or (b) a second or subsequent offence committed by the person within a 6-month period – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months. (2) For the avoidance of doubt, the display of a swastika in connection with Buddhism, Hinduism or Jainism does not constitute the display of a Nazi symbol for the purposes of subsection (1) . (3) For the purposes of subsection (1) , the display of a Nazi symbol for a legitimate public purpose includes where the symbol – (a) is displayed reasonably and in good faith for a genuine academic, artistic, religious, scientific, cultural, educational, legal or law enforcement purpose; and (b) is displayed reasonably and in good faith for the purpose of opposing, or demonstrating against, fascism, Nazism, neo-Nazism or other similar or related ideologies or beliefs; and (c) is displayed on an object, or contained in a document, that is produced for a genuine academic, artistic, religious, scientific, cultural, educational, legal or law enforcement purpose; and (d) is included in the making or publishing of a fair and accurate report, of an event or matter, that is in the public interest; and (e) is displayed for another purpose that is in the public interest. (4) It is a defence in proceedings for an offence under subsection (1) if the defendant proves that the Nazi symbol to which the offence relates has been permanently tattooed or marked on, or permanently affixed to, the person's body by means of a body modification procedure within the meaning of section 35A . (5) If a police officer has reasonable grounds to believe that a person is contravening, or has contravened, subsection (1) , the police officer may, in addition to any other action the officer may take under any other Act – (a) direct the person to remove the relevant Nazi symbol from display; or (b) in a conspicuous place on the object, or on the property, on which the relevant Nazi symbol is displayed, affix a written direction to remove the Nazi symbol from display if – (i) it is not reasonable in the circumstances for the police officer to give a direction to the person under paragraph (a) ; or (ii) the police officer is unable to ascertain which person is responsible for the display of the Nazi symbol. (6) A person to whom a direction is given under subsection (5)(a) , or on whose object or property a written direction is affixed in accordance with subsection (5)(b) , must not fail to comply, without reasonable excuse, with the direction within the period specified in the direction. Penalty: Fine not exceeding 10 penalty units. (7) If a police officer has reasonable grounds to believe that a person has failed to comply with a direction as required under subsection (6) , the police officer, using such force, means and assistance as is reasonably necessary, may do any one or more of the following: (a) detain and search that person, including any clothing on the person and any object or clothing in the possession of the person; (b) stop and detain any vehicle – (i) in respect of which the direction was given; or (ii) that the police officer believes, on reasonable grounds, contains an object in respect of which the direction was given; or (iii) in, or on, which the person is or was at the time at which the direction was given; (c) search a vehicle referred to in paragraph (b) and any object found in or on such a vehicle; (d) search any premises – (i) in respect of which the direction was given; or (ii) in, or on, which the person is or was located at the time at which the direction was given; (e) seize any object, found during a search under this subsection, that in the police officer's opinion is an object that is, or displays, a Nazi symbol. (8) In any proceedings for an offence against this section, particulars in a complaint in respect of the offence that state – (a) that a symbol is a Nazi symbol are, in the absence of evidence to the contrary, prima facie evidence that the symbol is a Nazi symbol; and (b) that a public act was without a legitimate public purpose are, in the absence of evidence to the contrary, prima facie evidence that the act was without legitimate public purpose. (9) On conviction of a person of an offence against subsection (1) , any object to which the offence relates that is lawfully in the possession of the Crown is forfeited to the Crown. (10) In this section – Nazi symbol includes – (a) a symbol associated with the Nazis or with Nazi ideology; and (b) a symbol that so nearly resembles a symbol referred to in paragraph (a) that it is likely to be confused with, or mistaken for, such a symbol; and (c) a depiction, or recording, of a Nazi gesture within the meaning of section 6D ; and (d) the depiction, or recording, of a gesture that so nearly resembles a gesture referred to in paragraph (c) that it is likely to be confused with, or mistaken for, such a gesture; public act, in relation to the display of a Nazi symbol, includes – (a) any form of communication of the symbol to the public; and (b) the placement of the symbol in a location observable by the public; and (c) the distribution or dissemination of the symbol, or of an object containing the symbol, to the public. 6D. Performance of Nazi gestures, &c., prohibited (1) A person must not perform a Nazi gesture if – (a) the person knows, or ought to know, that the gesture is a Nazi gesture; and (b) the gesture is performed by the person – (i) in a public place; or (ii) in a place where, if another person were in a public place, the gesture would be visible to the other person. Penalty: In the case of – (a) an offence to which paragraph (b) does not apply – a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 3 months; or (b) a second or subsequent offence committed by the person within a 6-month period – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months. (2) It is a defence in proceedings for an offence under subsection (1) if the defendant proves that the performance of the Nazi gesture was reasonable, and performed in good faith, for a genuine academic, artistic, religious, scientific, cultural, educational, legal or law enforcement purpose. (3) In any proceedings for an offence against this section, particulars in a complaint in respect of the offence that state that a gesture is a Nazi gesture are, in the absence of evidence to the contrary, prima facie evidence that the gesture is a Nazi gesture. (4) In this section – Nazi gesture includes – (a) the gesture known as the Nazi salute; and (b) a gesture prescribed for the purposes of this definition; and (c) a gesture that so nearly resembles a gesture referred to in paragraph (a) or (b) that it is likely to be confused with, or mistaken for, such a gesture. 7. Loiterers, &c. (1) A person, being a suspected person or reputed thief, shall not – (a) be in or upon any building whatsoever or in any