Summary Offences Regulation 2005

Part 1 Preliminary

1 Name of Regulation

This Regulation is the Summary Offences Regulation 2005.

2 Commencement

This Regulation commences on 1 September 2005.

Note—

This Regulation replaces the Summary Offences Regulation 2000 which is repealed on 1 September 2005 by section 10 (2) of the Subordinate Legislation Act 1989.

3 Definitions

(1)  In this Regulation:

seized liquor means liquor seized by a police officer under section 11 of the Act.

the Act means the Summary Offences Act 1988.

(2)  In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.

(3)  Notes included in this Regulation do not form part of this Regulation.

Part 2 Seized liquor

Division 1 Procedure following seizure

4 Reasons for seizure

(1)  When seizing liquor under section 11 of the Act, a police officer must give reasons for the seizure.

(2)  For that purpose, the police officer must tell the person from whom the liquor is seized that the police officer suspects that the person:

(a)  is under the age of 18 years, and

(b)  is not under the supervision of a responsible adult, and

(c)  does not have a reasonable excuse for possessing the liquor.

5 Disposal of seized liquor

(1)  Seized liquor may be disposed of when seized if:

(a)  at the time of seizure it is in a container which is unsealed or from which part of the contents have been removed, or

(b)  it is, or is likely soon to become, unfit for human consumption.

(2)  Seized liquor must not be disposed of at the time of seizure if the quantity or value of the liquor, or any other circumstance of the case, makes disposal unreasonable or undesirable.

(3)  Disposal must be by a method that ensures that the liquor disposed of does not remain or become available for consumption by any person.

6 Information as to custody of seized liquor

(1)  This clause applies only if seized liquor is not to be disposed of at the time of seizure.

(2)  At the time of seizure, the police officer concerned must inform the person from whom the liquor is seized:

(a)  that the liquor will be taken to a specified police station and kept there for at least 24 hours, and

(b)  that a claim for return of the liquor may be made at that police station.

(3)  A receipt specifying details of the seized liquor must be issued to that person:

(a)  at the time of seizure, by the police officer concerned, or

(b)  at the time the liquor is taken to a police station, by any police officer there.

Division 2 Custody and return of seized liquor

7 Seized liquor to be kept at police station

(1)  Seized liquor that is not disposed of at the time of seizure must be taken to the appropriate police station and kept there for at least 24 hours.

(2)  The appropriate police station is the one to which the person from whom the liquor was seized was informed the liquor would be taken.

8 Claim for seized liquor

(1)  Seized liquor held at a police station may be claimed by, and if claimed must be returned to, the person from whom it was seized if:

(a)  the person establishes that the person was at least 18 years of age at the time of the seizure, or

(b)  the person establishes that the person had a reasonable excuse for possessing the liquor, or

(c)  the police officer to whom the claim is made is satisfied that in all the circumstances of the case return of the liquor is justified.

(2)  Return of seized liquor to a person under the age of 18 years may in any case be refused if the person is not accompanied by a responsible adult.

(3)  Before seized liquor is returned, satisfactory proof of entitlement to the liquor may be required, including production of the receipt issued for the seized liquor.

9 Acknowledgment of return of seized liquor

(1)  A person to whom seized liquor is to be returned may be required to sign an acknowledgment that the liquor has been returned.

(2)  Return of seized liquor may be withheld if the acknowledgment is not signed.

10 Disposal of seized liquor in accordance with Commissioner’s instructions

When it is no longer intended to keep seized liquor at a police station, it must be dealt with in accordance with the instructions of the Commissioner of Police concerning liquor forfeited to the Crown.

Part 2A Seized spray paint cans

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10A Reasons for seizure

(1)  When seizing a spray paint can under section 10E of the Act (referred to in this Part as a seized spray paint can), a police officer must give reasons for the seizure.

(2)  For that purpose, the police officer must tell the person from whom the spray paint can is seized that the police officer:

(a)  suspects that the person is under the age of 18 years, and

(b)  is not satisfied that the person has the spray paint can in his or her possession for a purpose that is not unlawful.

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10B Disposal of seized spray paint cans

A seized spray paint can may be disposed of immediately if:

(a)  part of the contents of the can have been used, or

(b)  it is otherwise of negligible value.

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10C Information as to custody of seized spray paint can

(1)  If a seized spray paint can is not to be disposed of immediately, the police officer concerned must inform the person from whom the spray paint can is seized:

(a)  that the spray paint can will be taken to a specified police station and kept there for at least 7 days, and

(b)  that a claim for return of the spray paint can may be made at that police station.

(2)  A receipt specifying details of the seized spray paint can must be issued to that person:

(a)  at the time of seizure, by the police officer concerned, or

(b)  at the time the spray paint can is taken to a police station, by any police officer there.

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10D Seized spray paint can to be kept at police station

(1)  A seized spray paint can that is not disposed of immediately must be taken to the appropriate police station and kept there for at least 7 days.

(2)  The appropriate police station is the one to which the person from whom the spray paint can was seized was informed it would be taken.

(3)  A seized spray paint can kept at a police station may be disposed of if a claim for its return under clause 10E is not made within 7 days after the spray paint can was seized.

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10E Claim for seized spray paint can

(1)  A seized spray paint can kept at a police station may be claimed by, and if claimed must be returned to, the person from whom it was seized if:

(a)  the person establishes that the person was at least 18 years of age at the time of the seizure, or

(b)  the person establishes that the person had the spray paint can in his or her possession for a purpose that is not unlawful (being a purpose of which the police officer who seized the spray paint can was informed at the time of its seizure).

(2)  If a claim for a seized spray paint can is rejected, the spray paint can must be kept for at least another 7 days (to allow for an application to be made to a court under clause 10F) and may be disposed of if an application under that clause is not made within 7 days after the claim is rejected.

(3)  If an application under clause 10F is made before the seized spray paint can is disposed of, the spray paint can must be kept until the application is determined.

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

10F Application to court for return of seized spray paint can

A court may, on application by a person from whom a seized spray paint can was seized, make an order that the seized spray paint can be returned to the person if the court is satisfied that the person had the seized spray paint can in his or her possession at the time of its seizure for a purpose that was not unlawful (being a purpose of which the police officer who seized the spray paint can was informed at the time of its seizure).

pt 2A (cll 10A–10F): Ins 2007 No 53, Sch 2.

Part 3 Penalty notices

11 Penalty notices: sale of spray cans to persons under 18, custody of knives in public place or school and failure to comply with police directions

For the purposes of section 29A (1) of the Act, the amount prescribed is:

(a)  3 penalty units in respect of an offence under section 10C of the Act, and

(b)  5 penalty units in respect of an offence under section 11C of the Act, and

(c)  2 penalty units in respect of an offence under section 28F of the Act.

12 Penalty notices: hunting on private land without consent of owner or occupier of the land

For the purposes of section 29B (1) of the Act, the amount prescribed in respect of an offence under section 28J of the Act is 5 penalty units.

Part 4 Miscellaneous

13 Notice of intention to hold a public assembly

(1)  Form 1 is the prescribed form of notice to be served on the Commissioner of Police for the purposes of section 23 (1) of the Act.

(2)  The following address is prescribed as the address of the office of the Commissioner of Police for the purposes of section 23 (2) of the Act:

Police Headquarters
1 Charles Street
Parramatta NSW 2150

13A Display by retailers of spray paint cans

(1)  For the purposes of section 10D (2) (c) of the Act, a spray paint can is properly secured if it is displayed on a shelf that is 2.1 metres or more above floor level.

(2)  Section 10D of the Act does not apply to or in relation to a spray paint can that contains paint that, when applied to a surface, is both transparent and colourless.

cl 13A: Ins 2006 (620), cl 3.

14 Exempt knives

Section 11F of the Act does not apply to:

(a)  plastic knives that are designed for eating purposes, or

(b)  any blades, other than knife blades or blades forming part of any of the following:

(i)  machetes,

(ii)  cleavers,

(iii)  swords.

15 Declared sex clubs—notice to be displayed

(1)  A notice referred to in section 21E (1) of the Act must contain the following:

SUMMARY OFFENCES ACT 1988

IF YOU ARE UNDER 18 YOU ARE NOT PERMITTED TO ENTER THIS CLUB

(2)  The words contained in the notice must be in capital letters not less than one centimetre in height.

16 Search observation staff members

The following persons are prescribed for the purposes of the definition of search observation staff member in section 27A of the Act:

(a)  if available at the place of detention or its immediate vicinity where the relevant search is to be conducted—a welfare officer, psychologist, clerk or alcohol and other drug worker (being a person who is a non-correctional member of staff),

(b)  if a person referred to in paragraph (a) is not so available—any other non-correctional member of staff.

17 Savings provision

Any act, matter or thing that, immediately before the repeal of the Summary Offences Regulation 2000 had effect under that Regulation continues to have effect under this Regulation.

Schedule 1 Forms

(Clause 3 (2))

Form 1   Notice of intention to hold a public assembly

(Summary Offences Act 1988, section 23)

(Clause 13)

To: The Commissioner of Police

1 I, [ name ] of [ address ] on behalf of [ organisation ] notify the Commissioner of Police that on the [ day ] of [ month and year ], it is intended to hold: *(a) a public assembly, not being a procession, of approximately [ number ] persons, which will assemble at [ place ] at approximately [ time ], and disperse at approximately [ time ], or *(b) a public assembly, being a procession of approximately [ number ] persons, which will assemble at [ place ] at approximately [ time ], and disperse at approximately [ time ], and at approximately [ time ] the procession will commence and proceed: [ Specify route of proposed assembly, any stopping places, the approximate length of the stop and the approximate time of termination. A diagram may be attached if desired. ]

2 The purpose of the proposed assembly is [ state purpose ]:

3 The following special characteristics associated with the assembly would be useful for the Commissioner of Police to be aware of in regulating the flow of traffic or in regulating the assembly: *(a) There will be [ number ] vehicles and/or* floats involved and their type and dimensions are as follows [ state type and dimensions ]: *(b) There will be [ number ] bands, musicians, entertainers etc, entertaining or addressing the assembly. *(c) The following number and type of animals will be involved in the assembly [ state number and type ]: *(d) Other special characteristics of the proposed assembly are as follows [ state characteristics ]:

4 I take responsibility for organising and conducting the proposed public assembly.

5 Notices for the purposes of the Summary Offences Act 1988 may be served on me at [ address ]. Telephone: Signed: Date: Capacity/Title:

* Strike out whichever does not apply.