2002
2002
2003-07-22
act
publicspecial
act.reprint
allinforce
2002-05-08
2003-07-22
act-2003-040
none
act-2002-037
8b12c68a-cec5-4019-ba18-af31052d603e
9003deb4-a361-4e0e-8df4-bf67b315772e
Note—
The Act was repealed by the Statute Law (Miscellaneous Provisions) Act 2003
No 40, Sch 3 with effect from 22.7.2003.
An Act to amend the Summary Offences Act 1988 with respect
to powers of correctional officers to stop, detain and search persons or
vehicles at places of detention; and for other purposes.
1Name of
Act
This Act is the Summary Offences
Amendment (Places of Detention) Act
2002.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Summary Offences Act 1988 No
25
The Summary Offences
Act 1988 is amended as set out in Schedule
1.
Schedule 1Amendments
(Section 3)
[1]Section 27A
Definitions
Insert in alphabetical order:
adult means a person who is of or
above the age of 18 years.
child means a person who is under
the age of 18 years.
mentally
incapacitated person means a person who is incapable of
managing his or her affairs.
non-correctional member of staff
means:
(a)
a person employed in the Department of Corrective
Services, or
(b)
a person employed at a managed correctional
centre (within the meaning of the Crimes
(Administration of Sentences) Act
1999),
but does not include a correctional
officer.
search
observation staff member means a non-correctional member of
staff (or member of a class of such persons) prescribed by the regulations for
the purposes of this definition.
[2]Section 27B
Trafficking
Omit section 27B (6).
[3]Section 27C Introduction or
supply of syringes
Omit section 27C (4).
[4]Section 27D Unlawful
possession of offensive weapons or instruments
Omit section 27D (2A).
[5]Section 27E Miscellaneous
offences
Omit section 27E (3).
[6]Section 27F Time within which
proceedings may be taken
Renumber section 27F as section
27O.
[7]Sections
27F–27N
Insert after section 27E:
27FPowers of correctional
officers
(1)Power to stop, detain and
search persons
A correctional officer may stop, detain and
search a person, and anything in the possession of or under the control of a
person, if:
(a)
the person is in or in the immediate vicinity of
a place of detention, and
(b)
the correctional officer suspects on reasonable
grounds that the person has in his or her possession or under his or her
control anything that has been used, is being used or is intended to be used
in or in connection with the commission of an offence under this
Part.
(2)Power to stop, detain and
search vehicles
A correctional officer may stop, detain and
search a vehicle that is in or in the immediate vicinity of a place of
detention if the correctional officer suspects on reasonable grounds
that:
(a)
the vehicle contains anything that has been used,
is being used or is intended to be used in or in connection with the
commission of an offence under this Part, or
(b)
the vehicle has been used, is being used or is
intended to be used in or in connection with the commission of an offence
under this Part.
(3)Power to detain for purpose of
search by police
A correctional officer who stops and detains a
person or a vehicle under this section (whether or not the correctional
officer searches the person or vehicle) may request a police officer to
conduct a search or a further search of the person or vehicle, and may detain
the person or vehicle while waiting for the arrival of a police officer at the
place where the person or vehicle is being detained for the police officer to
conduct the search.
(4)Request to police to be made
as soon as practicable
A request to a police officer under subsection
(3) must be made as soon as practicable after the correctional officer stops
and detains the person or vehicle, or searches the person or
vehicle.
(5)Power of correctional officer
to seize things
A correctional officer may seize all or part of a
thing that the correctional officer suspects on reasonable grounds may provide
evidence of the commission of an offence under this Part found as a result of
a search under this section.
(6)Power to
arrest
In respect of any offence under this Part, the
powers of arrest of a police officer may be exercised by a correctional
officer.
(7)Arrested person to be taken to
police or to authorised justice
A correctional officer who arrests a person under
this section must, as soon as practicable, take the person, and any property
found on the person:
(a)
to a police officer, or
(b)
before an authorised justice to be dealt with
according to law.
(8)
Nothing in this section prevents the powers that
may be exercised in relation to a person from being exercised in relation to a
correctional officer.
27GConduct of
search
(1)
A correctional officer, in conducting a search
under section 27F, may direct a person to do any or all of the
following:
(a)
to submit to scanning by means of an electronic
scanning device,
(b)
to empty the pockets of the person’s
clothing,
(c)
to remove any hat, gloves, coat, jacket or shoes
worn by the person,
(d)
to empty the contents of any bag or other thing,
or to open any thing, that the person has with him or her, or has left in a
vehicle,
(e)
in the case of a visitor to the place of
detention—to make available for inspection and search any item stored in
a storage facility allocated to the visitor,
(f)
in the case of a correctional officer or a
non-correctional member of staff—to make available for inspection and
search any room or locker that is under the officer’s or member of
staff’s control at the place of detention,
(g)
in the case of an adult accompanying a child or a
mentally incapacitated person—to assist the child or mentally
incapacitated person to co-operate with a search.
(2)
A correctional officer, in conducting a search
under section 27F, may direct a person to produce:
(a)
anything that the correctional officer has
detected or seen during the search on or with the person, or in a vehicle in
which the person is or was present, and has reasonable grounds to suspect may
provide evidence of the commission of an offence under this Part,
or
(b)
anything detected during the search by an
electronic detection device, or
(c)
anything indicated by a dog reacting positively
to its presence.
(3)
In conducting a search of a person under section
27F, a correctional officer:
(a)
must conduct the search with due regard to
dignity and self-respect and in as seemly a manner as is consistent with the
conduct of an effective search, and
(b)
must not direct a person to remove any item of
clothing being worn by the person, other than a hat, gloves, coat, jacket or
shoes, and
(c)
must not search a person by running the
officer’s hands over the person’s
clothing.
(4)
A search of a person conducted by a correctional
officer under section 27F must, if practicable, be conducted by a correctional
officer of the same sex as the person being searched or by a person of the
same sex (being a non-correctional member of staff) under the direction of the
correctional officer concerned.
(5)
A search of a child or of a mentally
incapacitated person must be conducted in the presence of:
(a)
an adult who accompanied the child or the
mentally incapacitated person to the place of detention (or its immediate
vicinity), or
(b)
if there is no such adult—a search
observation member of staff.
(6)
Regulations may be made for or with respect to
the manner in which correctional officers are to conduct searches under
section 27F.
27HUse of
dogs
(1)
A correctional officer is authorised to use a dog
to conduct any search under section 27F.
(2)
A correctional officer using a dog to conduct
such a search is to take all reasonable precautions to prevent the dog
touching a person.
(3)
A correctional officer is required to keep a dog
under control when the officer is using the dog to conduct such a
search.
27IUse of reasonable
force
In exercising a function under this Part, a
correctional officer may use such force as is reasonably necessary to exercise
the function.
27JSafeguards
(1)
A correctional officer who detains a person in
the exercise of a power under section 27F must not detain the person any
longer than is reasonably necessary for the purpose, and in any event for no
longer than 4 hours.
(2)
A correctional officer must, before exercising a
power to detain, search or arrest a person under section 27F, or as soon as is
reasonably practicable after exercising the power, provide the person subject
to the exercise of the power with the following:
(a)
evidence that the correctional officer is a
correctional officer (unless the correctional officer is in
uniform),
(b)
the name of the correctional
officer,
(c)
the reason for the exercise of the
power,
(d)
a warning that failure or refusal to comply with
a request or direction of the correctional officer, in the exercise of the
power, is an offence.
(3)
Subsection (2) extends to a direction given by a
correctional officer to a person in the exercise of a power to stop, detain
and search a vehicle.
(4)
A correctional officer is not required to comply
with subsection (2) if the correctional officer believes on reasonable grounds
that:
(a)
the circumstances are of such urgency that
complying with subsection (2) would render a search ineffective,
or
(b)
it is not reasonably possible to comply with
subsection (2).
27KFailure to comply with
search
A person must not, without reasonable excuse
(proof of which lies on the person):
(a)
fail or refuse to comply with a request made, or
a direction given, by a correctional officer under this Part,
or
(b)
fail or refuse to produce anything detected or
seen on or with the person, or in a vehicle in which the person was present at
the time the thing was detected or seen, in a search when requested to do so
by a correctional officer, or
(c)
resist or impede a search of a person or vehicle
under this Part.
Maximum penalty: 10 penalty
units.
27LPart does not derogate from
other powers
(1)
Nothing in this Part limits any powers,
authorities, duties or functions that correctional officers or police officers
may have apart from this Part.
(2)
In particular, the fact that a police officer or
correctional officer conducts a search of a person under this Part does not
prevent the police officer or correctional officer from exercising, whether
during or after the search, any other powers of search or seizure that the
police officer or correctional officer may have.
(3)
Nothing in this Part limits any power under the
Crimes (Administration of Sentences) Act
1999 or any other law for a person to conduct a search of
an inmate, a correctional officer, a non-correctional member of staff or any
other person, or a vehicle.
27MAdmissibility of search
evidence
Evidence of a thing discovered during or as a
result of a search carried out in accordance with this Part is not
inadmissible merely because the thing is different in nature from a thing
referred to in the reason given under section 27J (2)
(c).
27NNo personal liability for
person conducting search under direction of correctional
officer
A search conducted by a person under and in
accordance with the direction of a correctional officer as referred to in
section 27G (4) does not, if the search would be lawful if conducted by a
correctional officer, subject the person making the search personally to any
action, liability, claim or demand.
Historical
notes
Table of amending
instruments
Summary Offences
Amendment (Places of Detention) Act 2002 No 37. Second
reading speech made: Legislative Assembly, 8.5.2002; Legislative Council,
11.6.2002. Assented to 25.6.2002. Date of commencement, 21.2.2003, sec 2 and
GG No 39 of 7.2.2003, p 768.