2001
2001
2005-12-01
act
publicgeneral
act.reprint
act-2003-027
allinforce
2001-05-30
2005-12-01
act-2002-103
none
act-2001-031
4c69e551-f56f-48f7-bea5-e9ae07a09b12
5e26aaee-d80d-4c14-8bd6-79629a5af022
Note—
The Act was repealed by Sch 3 to the Law Enforcement (Powers and Responsibilities) Act
2002 No 103 with effect from
1.12.2005.
An Act with respect to searches for internally
concealed prohibited drugs.
Part 1Preliminary
1Name of
Act
This Act is the Police Powers
(Internally Concealed Drugs) Act
2001.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act:
Aboriginal legal aid organisation
means an organisation that provides legal assistance to Aboriginal persons or
Torres Strait Islanders, being an organisation prescribed by the regulations
for the purposes of this definition.
Aboriginal person means a person
who:
(a)
is a member of the Aboriginal race of Australia,
and
(b)
identifies as an Aboriginal,
and
(c)
is accepted by the Aboriginal community as an
Aboriginal.
appropriately qualified person, in
relation to carrying out an internal search, means a person:
(a)
having suitable qualifications to carry out the
internal search, or
(b)
qualified under the regulations to carry out the
internal search.
child means a person who is at least
10 years of age but under 18 years of age.
eligible
judicial officer means a judicial officer in relation to
whom a consent under section 4 (1) and a declaration under section 4 (2) are
in force.
exercise
a function includes perform a duty.
function includes a
duty.
incapable
person means an adult who:
(a)
is incapable of understanding the general nature
and effect of an internal search of the person’s body,
or
(b)
is incapable of indicating whether he or she
consents or does not consent to an internal search being carried
out.
informed
consent is defined in subsection (3).
internal
search means any search of a person’s body involving
an ultrasound, MRI, X-ray, Cat scan or other form of medical imaging, but does
not include a search of a person involving an intrusion into the
person’s body cavities.
judicial
officer means a person who is:
(a)
a Judge of the Supreme Court,
or
(b)
a Judge of the District Court,
or
(c)
a Magistrate.
police
station includes:
(a)
a police station of a State or Territory,
and
(b)
a building that is occupied by members of NSW
Police and that is nominated by the Commissioner of Police for the purposes of
this paragraph, and
(c)
a building occupied by the Australian Federal
Police.
prohibited drug means a substance
that is a prohibited drug within the meaning of the Drug
Misuse and Trafficking Act 1985.
search
friend of a suspect means:
(a)
a parent or guardian of the suspect,
or
(b)
a legal representative of the suspect,
or
(c)
if the suspect is an Aboriginal person or a
Torres Strait Islander and none of the previously mentioned persons is
available—a representative of an Aboriginal legal aid organisation or a
person whose name is on the relevant list maintained under section 40 who is
chosen by, or is acceptable to, the suspect, or
(d)
any other person chosen by, or acceptable to, the
suspect.
suspect means a person whom a police
officer suspects on reasonable grounds has swallowed or is internally
concealing a prohibited drug that the suspect has in his or her possession for
the purpose of committing an offence against the Drug
Misuse and Trafficking Act 1985 involving the supply of
prohibited drugs.
time
out means:
(a)
the time (if any) that is reasonably required to
convey a suspect, in accordance with requirements of this Act, to the nearest
police station, or to a hospital or other place where an internal search may
be carried out,
(b)
any time that is reasonably spent waiting for a
medical practitioner or appropriately qualified person to arrive at the
hospital or other place where the internal search is to be carried
out,
(c)
any time that is reasonably spent waiting for
facilities or equipment that are needed to carry out the internal search to
become available,
(d)
any time during which carrying out the internal
search is suspended or delayed to allow the suspect, or someone else on the
suspect’s behalf, to communicate with a legal practitioner, friend,
relative, parent, guardian, interpreter, medical practitioner or other person
as provided by this Act,
(e)
any time during which carrying out the internal
search is suspended or delayed to allow such a legal practitioner, friend,
relative, parent, guardian, interpreter, medical practitioner or other person
to arrive at the place where the internal search is to be carried
out,
(f)
any time during which carrying out the internal
search is suspended or delayed to allow the suspect to consult with a legal
practitioner, friend, relative, parent, guardian, interpreter, medical
practitioner or other person at the place where the internal search is to be
carried out as provided by this Act,
(g)
any time during which carrying out the internal
search is suspended or delayed to allow the suspect to receive medical
attention,
(h)
any time during which carrying out the internal
search is suspended or delayed to allow the suspect to recover from the
effects of intoxication due to alcohol or another drug (or
both),
(i)
any time during which carrying out the internal
search is suspended or delayed to allow the suspect to rest or receive
refreshments or to give the suspect access to toilet and other
facilities,
(j)
any time during which carrying out the internal
search is suspended or delayed at the request of the
suspect,
(k)
any time that is reasonably spent waiting for an
eligible judicial officer to make an order as provided by this
Act.
Torres
Strait Islander means a person who:
(a)
is a member of the Torres Strait Islander race of
Australia, and
(b)
identifies as an Torres Strait Islander,
and
(c)
is accepted by the Torres Strait Islander
community as a Torres Strait Islander.
(2)
For the purposes of this Act, a person informs another person of a matter
if the person informs the other person of the matter, through an interpreter
if necessary, in a language (including sign language or braille) in which the
other person is able to communicate with reasonable
fluency.
(3)
A suspect gives informed
consent to the carrying out of an internal search of the
suspect if the suspect consents after a police officer:
(a)
asks the suspect to consent under section 9,
and
(b)
informs the suspect about the internal search in
accordance with section 10, and
(c)
gives the suspect a reasonable opportunity to
communicate, or attempt to communicate, with a legal practitioner of the
suspect’s choice.
s 3: Am 2002 No 51,
Sch 2.11 [1].
4Eligible judicial
officers
(1)
A judicial officer may, by instrument in writing,
consent to be nominated by the Attorney General under subsection
(2).
(2)
The Attorney General may, by instrument in
writing, declare judicial officers in relation to whom consents are in force
under subsection (1) to be eligible judicial officers for the purposes of this
Act.
(3)
An eligible judicial officer has, in relation to
the exercise of a function conferred on an eligible judicial officer by this
Act, the same protection and immunity as:
(a)
in the case of a person who is a Judge of the
Supreme Court—a Judge of the Supreme Court has in relation to
proceedings in the Supreme Court, or
(b)
in the case of a person who is a Judge of the
District Court—a Judge of the District Court has in relation to
proceedings in the District Court, or
(c)
in the case of a person who is a
Magistrate—a Magistrate has in relation to proceedings in a Local
Court.
(4)
A judicial officer who has given consent under
this section may, by instrument in writing, revoke the
consent.
(5)
The Attorney General may, by instrument in
writing, amend or revoke a declaration under this
section.
5Notes
Notes included in this Act do not form part of
this Act.
Part 2Authority to carry out
internal searches
6Act does not apply to persons
under 10
This Act does not authorise the carrying out of
an internal search on a person who is under 10 years of
age.
7When may an internal search be
carried out?
A medical practitioner or appropriately qualified
person is authorised to carry out an internal search in accordance with this
Act if:
(a)
a suspect (other than a child or incapable
person)—with the written informed consent of the suspect,
or
(b)
a suspect who is a child or incapable
person—by order of an eligible judicial officer under section 14,
or
(c)
a suspect who has refused consent—by order
of an eligible judicial officer under section 14.
8Police officer may detain
suspect to request consent, or apply for order for, an internal
search
(1)
A police officer may detain a person for the
purpose of requesting the person to consent to, or for the purpose of making
an application for an order for, an internal search of the person, if the
police officer:
(a)
is satisfied that the person is a suspect,
and
(b)
has reasonable grounds to believe that the
internal search is likely to produce evidence confirming that the person has
committed or is committing an offence under the Drug
Misuse and Trafficking Act 1985 involving the supply of a
prohibited drug, and
(c)
is satisfied that the detention is justified in
all the circumstances.
(2)
A person detained under this section must be
taken as soon as practicable to a police station.
(3)
A person must not be detained under this
section:
(a)
if the person is under arrest—for a period
of more than 2 hours after the expiration of the investigation period provided
for by section 356D of the Crimes Act
1900, or
(b)
if the person is not under arrest—for a
period of more than 2 hours after the person is detained under this
section.
(4)
In working out any period of time for the
purposes of subsection (3), any time out is to be
disregarded.
(5)
A police officer exercising a power under this
section in relation to a person must produce identification as such an officer
if requested by the person to do so (unless the police officer is in
uniform).
9Police officer may request
consent of certain suspects for internal search
(1)
A police officer may request a suspect (other
than a child or incapable person) who is detained under section 8 to consent
to an internal search.
(2)
The police officer must inform the suspect as
required by section 10 before making the request.
(3)
The police officer must not ask a suspect who is
an Aboriginal person or Torres Strait Islander to consent to an internal
search unless:
(a)
a search friend of the suspect is present,
or
(b)
the suspect has expressly and voluntarily waived
his or her right to have a search friend present.
(4)
Despite subsection (3), a search friend may be
excluded from the presence of the suspect if a police officer has reasonable
grounds to believe that the presence of the search friend could be prejudicial
to the prevention, detection or investigation of, or dealing with, any
contravention or possible contravention of the law.
(5)
If the suspect consents to the internal search
the police officer must, as soon as practicable, arrange for the search to be
carried out.
(6)
If the suspect does not consent to the internal
search:
(a)
the suspect must (unless otherwise in custody) be
released immediately, or
(b)
an application must, as soon as practicable, be
made under section 12 for an order for the carrying out of the
search.
10Matters that suspect must be
informed of before giving consent to an internal search
A police officer who asks a suspect (other than a
child or incapable person) for consent to carry out an internal search must
(personally or in writing) inform the suspect of the following matters:
(a)
that the giving of information under this
section, and the giving of consent (if any) by the suspect, is being or will
be recorded by electronic means, or in writing, and that the suspect has a
right to be given an opportunity to hear or view the recording as provided by
section 28,
(b)
the kinds of procedures that can be used to carry
out an internal search,
(c)
that if the internal search reveals the presence
of matter that could be drugs in the suspect’s body the suspect may be
detained at a hospital or the surgery or other practising rooms of a medical
practitioner for a period of up to 48 hours for the purpose of obtaining
evidence against the suspect that might be used in a court of
law,
(d)
that the internal search will be carried out by a
medical practitioner or appropriately qualified person,
(e)
that the suspect may ask for a medical
practitioner of his or her choice to be present while the internal search is
carried out,
(f)
if the police officer believes on reasonable
grounds that the suspect is an Aboriginal person or a Torres Strait Islander,
that the suspect’s search friend may be present while the search is
carried out,
(g)
that the suspect may refuse to consent to the
carrying out of the internal search,
(h)
that, if the suspect does not consent, an
application may be made to an eligible judicial officer for an order
authorising the carrying out of the internal
search.
11Procedure after the carrying
out of an internal search
(1)
If an internal search carried out on a suspect
does not reveal the presence in the suspect’s body of any matter that,
in the opinion of the person carrying out the search, could be drugs, the
suspect must (unless otherwise in custody) be released
immediately.
(2)
If an internal search carried out on a suspect
reveals the presence in the suspect’s body of any matter that, in the
opinion of the person carrying out the search, could be drugs the suspect may
be detained at a hospital or the surgery or other practising rooms of a
medical practitioner for a period not exceeding 48 hours (or such longer
period as may be extended by a detention order under section 38) after the
carrying out of the internal search.
Part 3Orders for carrying out
internal searches
12Application for order for
internal search
(1)
A police officer may apply to an eligible
judicial officer for an order authorising:
(a)
an internal search of a suspect,
and
(b)
the detention of the suspect for the purposes of
the internal search being carried out.
(2)
An application for an order must:
(a)
be in writing, and
(b)
be supported by evidence dealing with the matters
referred to in section 8, and
(c)
be made in the presence of the suspect (subject
to any contrary order made by the eligible judicial
officer).
13Procedure at hearing of
application for order
(1)
An order may only be made in the presence of the
suspect concerned, subject to any contrary order made by the eligible judicial
officer.
(2)
A suspect who is:
(a)
a child, or
(b)
an incapable person,
must have a search friend and may also be represented by
a legal practitioner.
(3)
If the applicant for the order believes on
reasonable grounds that the suspect is an Aboriginal person or a Torres Strait
Islander not covered by subsection (2), the suspect:
(a)
must have a search friend,
and
(b)
may also be represented by a legal
practitioner.
(4)
Subsection (3) (a) does not apply if the suspect
expressly and voluntarily waives his or her right to have a search friend
present.
(5)
Any other suspect (including a suspect covered by
subsection (2)) may be represented by a legal
practitioner.
(6)
The suspect or his or her representative:
(a)
may cross-examine the applicant for the order,
and
(b)
may, with the leave of the eligible judicial
officer, call or cross-examine any other witness, and
(c)
may address the eligible judicial
officer.
(7)
An eligible judicial officer must not give leave
under subsection (6) (b) unless the eligible judicial officer is of the
opinion that there are substantial reasons why, in the interests of justice,
the witness should be called or cross-examined.
(8)
Despite subsections (2) and (3), the
suspect’s search friend may be excluded from the hearing if the search
friend unreasonably interferes with or obstructs the hearing of the
application.
14Orders for internal
search
(1)
An eligible judicial officer may make an
order:
(a)
authorising an internal search of a suspect,
and
(b)
the detention of the suspect for a period not
exceeding 24 hours for the purposes of the internal search being carried
out.
(2)
An eligible judicial officer may make an order
for the internal search of a suspect only if the eligible judicial officer is
satisfied that:
(a)
the person is a suspect, and
(b)
there are reasonable grounds to believe that the
internal search is likely to produce evidence confirming that the person has
committed or is committing an offence under the Drug
Misuse and Trafficking Act 1985 relating to the supply of
a prohibited drug, and
(c)
the making of the order is justified in all the
circumstances.
(3)
An eligible judicial officer must not make an
order for an internal search if for any reason an internal search cannot
safely be carried out on the suspect (for example, because it would endanger
the physical health of the suspect if such a search were carried
out).
(4)
Without limiting subsection (3), an eligible
judicial officer must not make an order for an internal search of a child
involving electromagnetic radiation or radiography if satisfied that such a
procedure has been carried out on the child under this Act on 2 or more
occasions in the previous 2 years unless the eligible judicial officer
considers that exceptional circumstances exist that otherwise justify the
making of the order.
(5)
If the eligible judicial officer does not make
such an order, the eligible judicial officer must (unless the suspect is
otherwise in custody) order that the suspect be released
immediately.
(6)
If an eligible judicial officer makes an order
under this section in respect of a suspect who the eligible judicial officer
is satisfied is an Aboriginal person or a Torres Strait Islander, a child or
an incapable person, the eligible judicial officer must appoint a person (not
being a police officer) to represent the suspect’s interests as a search
friend in relation to this Act.
(7)
A person must not be appointed as a search friend
if the applicant for the order under this section satisfies the eligible
judicial officer that there are reasonable grounds to believe that the
appointment of the person as a search friend could be prejudicial to the
prevention, detection or investigation of, or dealing with, any contravention
or possible contravention of the law.
Part 4The internal
search
15Internal
search
(1)
An internal search is to be carried out by a
medical practitioner or an appropriately qualified
person.
(2)
If the suspect is an Aboriginal person or a
Torres Strait Islander or a child or incapable person, the search is to be
carried out in the presence of the search friend appointed by the eligible
judicial officer under section 14 (5).
(3)
The search is to be carried out at:
(a)
a hospital, or
(b)
the surgery or other practising rooms of a
medical practitioner.
16Conduct of internal
search
A medical practitioner or appropriately qualified
person may, in carrying out an internal search under this Act, use any medical
procedure or apparatus that the medical practitioner or appropriately
qualified person considers to be reasonably safe in the
circumstances.
17Medical practitioner may take
action to preserve suspect’s life
(1)
A medical practitioner may take such measures in
relation to a suspect detained under this Act, including removal to another
place, as the medical practitioner considers necessary because the
suspect’s life is at risk, including measures involving surgical
incision or exploration.
(2)
While the suspect is being so removed to a place,
and while he or she is at that place:
(a)
he or she may be detained under this subsection,
and
(b)
time is not to be taken to run under an order
under this Act.
18General rules for carrying out
internal search
An internal search:
(a)
must be carried out in circumstances affording
reasonable privacy to the suspect, and
(b)
must not be carried out in the presence or view
of a person (other than the police officer having custody of the suspect)
whose presence is not necessary for the purposes of the internal search or
required or permitted by another provision of this Act,
and
(c)
must not involve the removal of more clothing
than is necessary for the carrying out of the internal search,
and
(d)
must not involve more visual inspection than is
necessary for the carrying out of the internal
search.
s 18: Am 2003 No 27,
Sch 14.
19No questioning during internal
search
(1)
An internal search must not be carried out while
a suspect is being questioned. If questioning has not been completed before an
internal search is to be carried out, it must be suspended while the internal
search is carried out.
(2)
In this section, a reference to questioning of a
suspect is a reference to questioning the suspect, or carrying out an
investigation (in which the suspect participates), to investigate the
involvement (if any) of the suspect in any offence relating to the supply of
prohibited drugs (including an offence for which the suspect is not in
custody).
20Suspect must be cautioned
before internal search
Before anyone starts to carry out an internal
search on a suspect, a police officer must caution the suspect that he or she
does not have to say anything while the search is carried out but that
anything the person does say may be used in evidence.
Note—
A failure to caution a suspect may result in
evidence that is obtained being inadmissible—see section 138 of the
Evidence Act 1995.
21Internal searches not be
carried out in cruel, inhuman or degrading manner
Nothing in this Act authorises the carrying out
of an internal search in a cruel, inhuman or degrading manner but the carrying
out of an internal search on a suspect in accordance with this Act is not of
itself taken to be cruel, inhuman or degrading to the
suspect.
22Medical practitioner or
appropriately qualified person to prepare report
(1)
As soon as practicable after completing an
internal search under this Act, the medical practitioner or practitioners
involved or the appropriately qualified person must give the Commissioner of
Police a written report in the form approved by the
Commissioner.
(2)
The report must indicate whether the internal
search involved the use of electromagnetic radiation or
radiography.
(3)
This section is not limited by any law relating
to privilege or confidentiality.
(4)
In any proceedings under this Act, a report given
to the Commissioner of Police under this section is proof (unless evidence is
adduced to the contrary) of the facts stated in the
report.
23Suspect’s rights during
detention
(1)
A person detained under this Act may at any
time:
(a)
consult a legal practitioner,
or
(b)
except as provided by subsection (3), communicate
with another person.
(2)
If a person detained under this Act wishes to
consult a legal practitioner, a police officer must, if reasonably
practicable, arrange for the person to consult a legal practitioner of the
person’s choice.
(3)
A police officer may stop a person so detained
from communicating with another person (other than a legal practitioner) if
the officer believes on reasonable grounds that such communication should be
stopped in order to:
(a)
safeguard the processes of law enforcement,
or
(b)
protect the life and safety of any
person.
24Interpreters
(1)
If:
(a)
a police officer proposes to take an action
listed in subsection (2), and
(b)
the police officer believes on reasonable grounds
that the suspect is unable, because of inadequate knowledge of the English
language or a physical disability, to communicate orally with reasonable
fluency in the English language,
the police officer must, before taking the proposed
action:
(c)
arrange for the presence of an interpreter to
assist the suspect to communicate, and defer taking the proposed action until
the interpreter is present, or
(d)
if it is not reasonably practicable for an
interpreter to be present, arrange for the assistance of an interpreter by
means of an audio link facility.
(2)
The actions are as follows:
(a)
asking a suspect to consent to an internal
search,
(b)
applying to an eligible judicial officer for the
carrying out of an internal search on a suspect,
(c)
cautioning a suspect,
(d)
arranging for the carrying out of an internal
search on a suspect,
(e)
giving a suspect an opportunity to hear or view
an audio or video recording made under this Act.
(3)
In this section:
audio
link facility means a facility (including telephone) that
enables audio communication between persons at different
places.
Part 5Miscellaneous
25Withdrawal of
consent
If a person expressly withdraws consent to the
carrying out of an internal search under this Act (or if the withdrawal of
such consent can reasonably be inferred from the person’s conduct)
before or during the carrying out of the internal search:
(a)
the internal search is to be treated from the
time of the withdrawal as an internal search for which consent has been
refused, and
(b)
the internal search is not to proceed except by
order of an eligible judicial officer under this
Act.
26Powers and entitlements of
legal representatives and search friends
(1)
A request or objection that may be made by a
suspect under this Act may be made on the suspect’s behalf by:
(a)
in any case—the suspect’s legal
representative, or
(b)
if the suspect is a child or an incapable
person—a search friend of the suspect, or
(c)
if a police officer believes on reasonable
grounds that the suspect is an Aboriginal person or a Torres Strait
Islander—a search friend of the suspect.
(2)
If:
(a)
a provision of this Act requires a suspect to be
informed of a matter, and
(b)
a search friend or legal representative of the
suspect is present when the suspect is to be so
informed,
the search friend or legal representative must also be
informed of the matter.
27Recording of giving of
information and suspect’s responses
(1)
The police officer who asks a suspect to consent
to an internal search must, if practicable, ensure that the giving of the
information about the proposed internal search and the suspect’s
responses (if any) are recorded by electronic means.
(2)
If recording the giving of the information and
the suspect’s responses (if any) by electronic means is not practicable,
the police officer must ensure that a written record of the giving of the
information and the suspect’s responses (if any) is made, and that a
copy of the record is made available to the suspect.
28Obligation of police officers
relating to recordings
(1)
If a recording is made as required by a provision
of this Act, a police officer must ensure that:
(a)
if an audio recording only or a video recording
only is made—the suspect concerned is given the opportunity to listen to
or view the recording, and
(b)
if both an audio recording and a video recording
are made:
(i)
the suspect is given an opportunity to listen to
the audio recording, and
(ii)
the suspect is given an opportunity to view the
video recording, and
(c)
in any case, if a transcript of the recording is
made—a copy of the transcript is made available to the
suspect.
(2)
If a police officer is required to ensure that a
suspect is given an opportunity to view an audio or video recording made under
this Act, the police officer must ensure that the same opportunity is given
to:
(a)
in any case—the suspect’s legal
representative, and
(b)
if the suspect is a child or an incapable
person—a search friend of the suspect, and
(c)
if the police officer believes on reasonable
grounds that the suspect is an Aboriginal person or a Torres Strait
Islander—a search friend of the suspect.
(3)
Subsection (2) (b) and (c) does not apply if the
suspect expressly and voluntarily waived his or her right to have a search
friend present.
29Material required to be made
available to suspect
Without limiting the way in which material that
must be made available to a suspect under this Act may be made available,
it:
(a)
may be sent to the suspect at his or her last
known address (if any), or to the suspect’s legal representative (if
any) at his or her last known address, or
(b)
if there is no known address as mentioned in
paragraph (a), may be made available for collection by the suspect, at the
police station where the police officer who detained the suspect under section
8 was based at the time of detention.
30No charge for
material
If a provision of this Act requires material of
any kind to be given to a suspect, or an opportunity to view a video recording
to be given to a suspect, the material or the opportunity to view the video
recording must be given without charge.
31Proof of suspicion or
belief
In any proceedings, the burden lies on the
prosecution to prove on the balance of probabilities that a police officer had
a belief on reasonable grounds, or suspected on reasonable grounds, as to a
matter referred to in this Act.
32Proof of
impracticability
In any proceedings, the burden lies on the
prosecution to prove on the balance of probabilities that it was not
practicable to do something required by this Act to be done if
practicable.
33Proof that time be
disregarded
In any proceedings, the burden lies on the
prosecution to prove on the balance of probabilities that any particular time
was covered by a provision of this Act.
34Proof of voluntary waiver of
rights
In any proceedings:
(a)
the burden lies on the prosecution to prove that
an Aboriginal person or Torres Strait Islander has waived a right as mentioned
in this Act, and
(b)
the burden is not discharged unless the court is
satisfied on the balance of probabilities that the person voluntarily waived
that right, and did so with full knowledge and understanding of what he or she
was doing.
35Liability of medical
practitioners and appropriately qualified persons
No civil or criminal liability is incurred by any
medical practitioner or appropriately qualified person who carries out, or
helps to carry out, an internal search under this Act in respect of anything
properly and necessarily done or omitted to be done in good faith by the
medical practitioner or appropriately qualified person in carrying out or
helping to carry out the search if the medical practitioner or appropriately
qualified person believed on reasonable grounds that:
(a)
consent had been given to the carrying out of the
internal search, or
(b)
the carrying out of the internal search without
consent had been duly ordered by an eligible judicial officer under this
Act.
36Medical practitioners and
appropriately qualified persons not obliged to carry out internal
searches
Nothing in this Act requires a medical
practitioner or appropriately qualified person to carry out an internal
search.
37Relationship to Part 10A of
the Crimes Act 1900
(1)
Nothing in this Act is intended to limit the
rights and protections provided by Part 10A of the Crimes
Act 1900 to the extent that the provisions of that Part
can operate in circumstances covered by this Act.
(2)
The rights and protections conferred by this Act
are in addition to those conferred by Part 10A of the Crimes
Act 1900 but, to the extent (if any) that compliance with
this Act results in compliance with that Part, the requirements of that Part
are satisfied.
(3)
Except as provided by subsection (4), this Act
does not authorise keeping a suspect in custody, in order to carry out an
internal search, for more than 24 hours (or such longer period as may be
extended by a detention order under section 38) after the suspect consents to,
or an eligible judicial officer authorises, the carrying out of the internal
search.
(4)
Despite subsection (3), a suspect may be kept in
custody for up to 48 hours (or such longer period as may be extended by a
detention order under section 38) after an internal search carried out on the
suspect reveals the presence of matter that could be drugs in the
suspect’s body.
(5)
In working out any period of time for the
purposes of subsection (3) or (4), time out is to be
disregarded.
(6)
In working out whether the investigation period
for the purposes of Part 10A of the Crimes Act
1900 has expired, any time that is reasonably required to
carry out an internal search authorised by this Act is to be taken into
account.
38Detention
orders
(1)
A police officer may, before the end of a period
referred to in section 11 or 37, apply to an eligible judicial officer to
extend the maximum period for which a suspect may be detained under that
section.
(2)
The eligible judicial officer may order that the
maximum period be extended by a period (not exceeding 48 hours) specified in
the order.
(3)
An eligible judicial officer must not extend the
period unless satisfied that the further period is reasonably necessary to
carry out an internal search or to confirm that matter present in the
suspect’s body that was revealed by an internal search is
drugs.
(4)
The maximum period must not be extended a second
time unless an eligible judicial officer is satisfied that there are
exceptional circumstances that justify the extension.
(5)
The maximum period cannot in any circumstances be
extended more than twice.
39Restrictions on
publication
(1)
A person must not intentionally or recklessly, in
any report of a proceeding under this Act, publish:
(a)
the name of the suspect on whom an internal
search is carried out or proposed to be carried out under this Act in relation
to an offence of supplying a prohibited drug, or
(b)
any information likely to enable the
identification of the suspect,
unless the suspect has been charged with the offence or
an eligible judicial officer, by order, has authorised such
publication.
Maximum penalty: 50 penalty units or imprisonment
for 12 months, or both.
(2)
This section does not make it an offence to
publish the name of a suspect or any information likely to enable the
identification of a suspect if the publication is solely for the purposes of
the internal management of NSW Police or the investigation of an offence by a
law enforcement officer.
(3)
In this section:
law
enforcement agency means each of the following:
(a)
NSW Police,
(b)
the Independent Commission Against
Corruption,
(c)
the New South Wales Crime
Commission,
(d)
the Police Integrity
Commission,
(e)
the Australian Federal
Police,
(f)
the Australian Crime
Commission,
(g)
any other agency prescribed for the purposes of
this definition.
law
enforcement officer means:
(a)
an officer or employee of a law enforcement
agency or a person who is seconded to such an agency, including (but not
limited to) a police officer, or
(b)
a member of a police force or police service
(however described) of another State, a Territory or another
country.
s 39: Am 2002 No 51,
Sch 2.11 [2]; 2003 No 13, Sch 1.24.
40Lists of search
friends
(1)
The Minister must, so far as is reasonably
practicable, establish, and update at such intervals as the Minister thinks
appropriate, a list, in relation to a part of the State where there are likely
to be persons detained under this Act of the names of persons (not being
police officers) who:
(a)
are suitable to help Aboriginal persons or Torres
Strait Islanders so detained, and
(b)
are willing to give such help in that part of the
State.
(2)
In establishing and maintaining a list in
relation to a part of the State, the Minister must from time to time consult
with any Aboriginal legal aid organisation providing legal assistance to
Aboriginal persons or Torres Strait Islanders in that part of the
State.
(3)
The Minister may, in writing, delegate to a
person employed in the Attorney General’s Department all or any of the
functions of the Minister under this section.
41Proceedings for
offences
Proceedings for an offence against this Act or
the regulations are to be dealt with summarily before a Local Court
constituted by a Magistrate sitting alone.
42Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for the purpose of carrying out or giving effect to this
Act.
(2)
A regulation may create an offence punishable by
a penalty not exceeding 50 penalty units.
43Monitoring of Act by
Ombudsman
(1)
For the period of 2 years after the commencement
of this section the Ombudsman is to keep under scrutiny the operation of the
provisions of this Act and the regulations.
(2)
For that purpose, the Ombudsman may require any
public authority to provide information concerning the authority’s
participation in the operation of this Act and the
regulations.
(3)
The Ombudsman must, as soon as practicable after
the expiration of that 2-year period, prepare a report of the
Ombudsman’s work and activities under this section and furnish a copy of
the report to the Minister, the Minister for Police and the Commissioner of
Police.
(4)
The Ombudsman may identify, and include
recommendations in the report to be considered by the Minister about,
amendments that might appropriately be made to this Act with respect to the
operation of this Act and the regulations.
(5)
The Ombudsman may at any time make a special
report on any matter arising out of the operation of this Act and the
regulations to the Minister.
(6)
The Minister is to lay (or cause to be laid) a
copy of any report made or furnished to the Minister under this section before
both Houses of Parliament as soon as practicable after the Minister receives
the report.
(7)
If a House of Parliament is not sitting when the
Minister seeks to furnish a report to it, the Minister may present copies of
the report to the Clerk of the House concerned.
(8)
The report:
(a)
on presentation and for all purposes is taken to
have been laid before the House, and
(b)
may be printed by authority of the Clerk of the
House, and
(c)
if printed by authority of the Clerk, is for all
purposes taken to be a document published by or under the authority of the
House, and
(d)
is to be recorded:
(i)
in the case of the Legislative Council in the
Minutes of the Proceedings of the Legislative Council, and
(ii)
in the case of the Legislative Assembly in the
Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of
the report by the Clerk.
44Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 2 years from the date of assent to this
Act.
(3)
In reviewing the Act, the Minister is to have
regard to any report furnished to the Minister under section
43.
(4)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the Ombudsman
furnishes a report to the Minister under section 43.
Historical
notes
Table of amending
instruments
Police Powers
(Internally Concealed Drugs) Act 2001 No 31.
Minister’s second reading speech made: Legislative Assembly, 30.5.2001;
Legislative Council, 7.6.2001. Assented to 27.6.2001. Date of commencement,
1.7.2002, sec 2 and GG No 106 of 28.6.2002, p 4680. This Act has been amended
as follows:
2002
No
51
Police Service
Amendment (NSW Police) Act 2002. Assented to
4.7.2002.
Date of commencement of Sch 2.11, 12.7.2002, sec 2 (1)
and GG No 116 of 12.7.2002, p 5226.
2003
No
13
Australian Crime
Commission (New South Wales) Act 2003. Assented to
30.6.2003.
Date of commencement of Sch 1.24, assent, sec 2
(1).
No
27
Crimes
Legislation Amendment Act 2003. Assented to
8.7.2003.
Date of commencement of Sch 14, assent, sec 2
(1).
Table of
amendments
Sec
3
Am 2002 No
51, Sch 2.11 [1].
Sec
18
Am 2003 No
27, Sch 14.
Sec
39
Am 2002 No
51, Sch 2.11 [2]; 2003 No 13, Sch 1.24.