You are using a version of the website built for webcrawlers and people whose devices cannot use javascript.
Some functionality will not be available.
Contents (2002 - 103)
Skip to content
Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 6 December 2019 to date (accessed 29 January 2020 at 20:09)
Part 19
Part 19 Miscellaneous
232   Protection of police acting in execution of warrant
(cf Police Act 1990, s 215)
(1)  If any proceedings (whether criminal or not) are brought against any police officer for anything done or purportedly done by the police officer in execution of a warrant (whether issued under this or any other Act or law), or a notice to produce documents issued under this Act, the police officer is not to be convicted or held liable merely because—
(a)  there was an irregularity or defect in the issuing of the warrant or notice, or
(b)  the person who issued the warrant or notice lacked the jurisdiction to do so.
(2)  In any such proceedings, the court must acquit the police officer or dismiss the proceedings if the police officer—
(a)  produces the warrant or notice, and
(b)  proves that the signature on the warrant or notice is that of the person whose signature it purports to be, and
(c)  proves that such a person has the reputation of being, and acts as, a person who has the jurisdiction to issue the warrant or notice, and
(d)  the act complained of was done in execution of the warrant or notice.
233   Admissibility of evidence of searches
Evidence of a thing discovered during or as a result of a search carried out in accordance with this Act is not inadmissible merely because the thing is a dangerous article or dangerous implement of a different nature from that referred to in the reason given for the search.
234   Proceedings for offences
Proceedings for an offence against this Act (except section 87ZA) or the regulations are to be dealt with summarily by the Local Court.
235   Penalty notices
(1)  A police officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3)  The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
 The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
236   Onus of proof of reasonable excuse
The onus of proof of reasonable excuse in proceedings for an offence against this Act or the regulations lies on the person accused of the offence.
237   Commissioner’s instructions
(1)  The instructions to members of the NSW Police Force issued under section 8(4) of the Police Act 1990 may include instructions and guidelines with respect to the exercise by police officers, and other members of the NSW Police Force, of functions conferred by or under this Act.
(2)  The Commissioner may not issue an instruction or guideline under the Police Act 1990 that is inconsistent with this Act and any instruction or guideline is, to the extent to which it is inconsistent with this Act, of no effect.
238   Regulations
(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 carrying out or giving effect to this Act.
(2)  A regulation may create an offence punishable by a penalty not exceeding 20 penalty units or, in the case of a regulation made under Division 1 or 3 of Part 11, 50 penalty units.
239   Repeals
The Acts set out in Schedule 3 are repealed.
240   (Repealed)
241   Savings and transitional provisions
Schedule 5 has effect.
242   Monitoring of operation of certain provisions of Act by Inspector
(1)  The Inspector must inspect the records of the NSW Police Force, the New South Wales Crime Commission and the Law Enforcement Conduct Commission under Part 5 in relation to covert search warrants every 12 months after the substitution of this section by the amending Act for the purpose of ascertaining whether or not the requirements of that Part (in so far as it relates to covert search warrants) are being complied with.
(2)  For that purpose, the Inspector may require the Commissioner of Police, the Commissioner for the New South Wales Crime Commission and the Chief Commissioner of the Law Enforcement Conduct Commission to provide access to the relevant records.
(3)  The Inspector must, as soon as practicable after 28 May 2017 and as soon as practicable after the expiration of each subsequent year, prepare a report of the Inspector’s work and activities under subsection (1) and furnish a copy of the report to the Attorney General and the Minister for Police.
(4)  The Inspector must inspect the records of the NSW Police Force under Part 5 in relation to criminal organisation search warrants every 2 years after the substitution of this section by the amending Act for the purpose of ascertaining whether or not the requirements of that Part (in so far as they relate to criminal organisation search warrants) are being complied with.
(5)  For that purpose, the Inspector may require the Commissioner of Police to provide access to the relevant records.
(6)  The Inspector must, as soon as practicable after 7 August 2017 and as soon as practicable after the expiration of each subsequent 2-year period, prepare a report of the Inspector’s work and activities under subsection (4) and furnish a copy of the report to the Attorney General and the Minister for Police.
(7)  The Attorney General is to lay (or cause to be laid) a copy of the report under subsection (3) or (6) before both Houses of Parliament as soon as practicable after the Attorney General receives the report.
(8)  If a House of Parliament is not sitting when the Attorney General seeks to lay a report before it, the Attorney General may present copies of the report to the Clerk of the House concerned.
(9)  The report—
(a)  is, on presentation and for all purposes, taken to have been laid before the House, and
(b)  may be printed by authority of the Clerk of the House, and
(c)  if so printed, 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.
(10)  In this section—
Inspector means the Inspector of the Law Enforcement Conduct Commission.
242A   Annual reports to be given to Attorney General and Minister for Police
(1)  The Commissioner of Police, the Commissioner for the New South Wales Crime Commission and the Law Enforcement Conduct Commission must each report annually on the exercise of powers under Part 5 with respect to covert search warrants by police officers, and members of staff of the New South Wales Crime Commission and the Law Enforcement Conduct Commission, respectively.
(1A)  The Commissioner of Police must report annually on the exercise of powers under Part 5 with respect to criminal organisation search warrants by police officers.
(2)  Each report is to be provided, within 4 months after each 30 June, to the Minister for Police and the Attorney General.
(3)  The report under subsection (1) is to specify the following matters in relation to the year ended on that 30 June—
(a)  the number of applications for covert search warrants made under Part 5 and the number of those applications granted,
(b)  the number of applications for telephone covert search warrants and the number of those applications granted,
(c)  the number of covert search warrants executed,
(d)  the number of covert search warrants under which any things were seized,
(e)  the number of covert search warrants under which any things were placed in substitution for seized things,
(f)  the number of covert search warrants under which any things were returned or retrieved,
(g)  the number of covert search warrants under which the powers referred to in sections 75A and 75B were exercised,
(h)  the number of covert search warrants under which any things were tested,
(i)  the number of arrests made in connection with searchable offences in respect of which covert search warrants were executed and the number of those arrests that have led to the laying of charges in relation to the searchable offences concerned,
(j)  the number of complaints that are made under any Act about conduct relating to the execution of a covert search warrant by an executing officer and the number of those complaints that are, or have been, the subject of an investigation under any Act,
(k)  any other matters requested by the Minister for Police or the Attorney General.
(3A)  The report under subsection (1A) is to specify the following matters in relation to the year ended on that 30 June—
(a)  the number of applications for criminal organisation search warrants made under Part 5 and the number of those applications granted,
(b)  the number of applications for telephone criminal organisation search warrants and the number of those applications granted,
(c)  the number of criminal organisation search warrants executed,
(d)  the number of criminal organisation search warrants under which any things were seized,
(e)  the number of criminal organisation search warrants under which the powers referred to in sections 75A and 75B were exercised,
(f)  the number of criminal organisation search warrants under which any things were tested,
(g)  the number of arrests made in connection with searchable offences in respect of which criminal organisation search warrants were executed and the number of those arrests that have led to the laying of charges in relation to the searchable offences concerned,
(h)  the number of complaints that are made under any Act about conduct relating to the execution of a criminal organisation search warrant by an executing officer and the number of those complaints that are, or have been, the subject of an investigation under any Act,
(i)  any other matters requested by the Minister for Police or the Attorney General.
(4)  The reports may be combined with any other annual report of the NSW Police Force, the New South Wales Crime Commission or the Law Enforcement Conduct Commission.
(5)  The reports are to be tabled in each House of Parliament as soon as practicable after they are received by the Attorney General.
242B   Monitoring of operation of Division 4 of Part 3 by Chief Commissioner of LECC
(1)–(4)    (Repealed)
(5)  The Chief Commissioner of the Law Enforcement Conduct Commission may at any time make a special report on any matter arising out of the operation of Division 4 of Part 3 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)  A report presented to the Clerk of a House—
(a)  is, on presentation and for all purposes, 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.
243   Review of Act
(1)  The Attorney General and the Minister for Police are 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 carried out (and is taken to have always been required to be carried out) as soon as possible after the period of 3 years from 1 December 2005.
Note.
 1 December 2005 is the date on which this Act, other than Part 8A, commenced.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.