Control of Weapons and Firearms Acts (Search Powers) Act 2003 (Vic)

Control of Weapons and Firearms Acts (Search

Powers) Act 2003

Act No. 9/2003

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2

PART 2—AMENDMENT OF THE CONTROL OF WEAPONS

ACT 1990 3

3.	Definition inserted	3
4.	Dangerous articles offence	3
5.	New section 8G inserted	3
8G.	Power to require production of approval	3
6.	Substitution of section 10	4
10.	Search without warrant	4
10A.	Duty to make records concerning searches	6
10B.	Chief Commissioner to report on searches without
warrant	7
7.	Regulations	7
8.	New section 14 inserted	8
14.	Transitional provision	8

PART 3—AMENDMENT OF THE FIREARMS ACT 1996 9

9.	Section 149 substituted	9
149.	Search of persons or vehicles	9
149A.	Duty to make records concerning searches	11
10.	Power to require production of licence	11
11.	Authorised officers	11
12.	New sections 153B and 153C inserted	14
153B.	Duty to make records concerning searches	14

153C. Annual reports 14

13.	Delegation	15
14.	Regulations	15
15.	New section 209 inserted	16

209.        Transitional provisions—Control of Weapons and

Firearms Acts (Search Powers) Act 2003 16

i

Section Page

16.	Consequential amendment	16
17.	Wildlife Act 1975—new section 92 inserted	17

92.          Transitional provision—Control of Weapons and

Firearms Acts (Search Powers) Act 2003 17

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ENDNOTES 18

ii

Victoria

No. 9 of 2003

Control of Weapons and Firearms Acts

(Search Powers) Act 2003†

[Assented to 6 May 2003]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to amend the Control
of Weapons Act 1990 and the Firearms Act

1996—

(a) to amend provisions relating to the power to search without warrant under those Acts; and

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s. 2 Part 1—Preliminary

(b) to require annual reports to the Minister on the exercise of those powers; and

(c) to make other miscellaneous amendments.

2. Commencement

(1) This Part comes into operation on the day after the

day on which this Act receives the Royal Assent.

(2) Subject to sub-section (3), the remaining

provisions of this Act come into operation on a
day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 1 January 2004, it
comes into operation on that day.

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Act No. 9/2003

Part 2—Amendment of the Control of Weapons Act 1990 s. 3

PART 2—AMENDMENT OF THE CONTROL OF WEAPONS

ACT 1990

3. Definition inserted

See:

In section 3 of the Control of Weapons Act	Act No.
1990, after the definition of "military officer"	24/1990. Reprint No. 3
insert—	as at 17 December
' "non-government school" means—	2000 and amending

(a) a school on the register of schools kept under section 37(1) of the Education	Act No.
7/2002. LawToday:

Act 1958; or
dpc.vic.

(b) a school which has been granted gov.au

approval to open under section 42 of

the Education Act 1958; or

(c)

the land or premises connected with a or (b);'.

4. Dangerous articles offence

In section 7(1) of the Control of Weapons Act
1990, after "public place" insert "or a non-

government school".

5. New section 8G inserted

After section 8F of the Control of Weapons Act

1990 insert—

"8G. Power to require production of approval

(1) A member of the police force who—

(a) has reasonable grounds for suspecting that a person has committed an offence against section 5 or is carrying or has in his or her possession a prohibited weapon; and

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(b) produces his or her identification for inspection by the person—

may demand that the person produce an approval under section 8C allowing the person to do the thing otherwise prohibited.

(2) A person to whom a demand is directed

under sub-section (1) must comply with the
demand.
Penalty: 30 penalty units.

(3) This section does not apply to a person who is exempted under section 8B.".

6. Substitution of section 10

For section 10 of the Control of Weapons Act

1990 substitute—

'10. Search without warrant

(1) If—

(a)	a member of the police force has reasonable grounds for suspecting that a person is carrying or has in his or her possession in a public place or a non- government school a prohibited weapon, a controlled weapon or a dangerous article referred to in sub- section (6) contrary to this Act; and
(b)	the member informs the person of the grounds for his or her suspicion; and
(c)	the member complies with sub- section (3)—

the member may without warrant—

(d) search the person and any vehicle, package or thing in his or her possession or under his or her control for the prohibited weapon, controlled

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weapon or dangerous article referred to

in sub-section (6); and

(e) seize and detain any prohibited weapon, controlled weapon or dangerous article referred to in sub-section (6) which the member finds on the person or on or in the vehicle, package or thing.

(2) For the purposes of sub-section (1)(a), the

fact that a person is present in a location with
a high incidence of violent crime may be
taken into account in determining whether
there are reasonable grounds for suspecting
that the person is carrying or has in his or her
possession a prohibited weapon, a controlled
weapon or a dangerous article referred to in
sub-section (6).

(3) Before a member of the police force

commences a search of a person under sub-

section (1), the member must—

(a)	inform the person of the member's name, rank and place of duty; and
(b)	if requested by the person, provide the information referred to in paragraph (a) in writing; and
(c)	produce his or her identification for inspection by the person, unless the member is in uniform.

(4) In conducting a search of a person under

sub-section (1), a member of the police

force—

(a) may request that the person produce any thing that the member has detected or seen during the search on the person or in a vehicle, package or thing in the possession or under the control of the person, which the member has

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s. 6 Part 2—Amendment of the Control of Weapons Act 1990

reasonable grounds for suspecting is a
prohibited weapon, a controlled
weapon or a dangerous article referred

to in sub-section (6); and

(b)

if a request is made under that refusal or failure to produce any thing so requested may be an offence.

(5) A person must not, without reasonable

excuse, refuse or fail to produce any thing in
accordance with a request made under sub-
section (4).
Penalty: 30 penalty units.

(6) This section applies to a dangerous article within the meaning of paragraph (b) of the definition of "dangerous article" in

section 3.

10A. Duty to make records concerning searches

(1) A member of the police force who conducts

a search under section 10 must make a
written record of the search containing the
prescribed particulars.

(2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the

completion of the search.

(3) A person subjected to a search under

section 10 is entitled, on request and without charge, to a copy of the record of the search, if the request is made not later than 1 year
after the date of the search.

(4) A request under sub-section (3) is made to

the officer in charge of the place of duty,
referred to in section 10(3)(a), of the member
who conducted the search.

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10B. Chief Commissioner to report on searches

without warrant

The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing—

(a)	the number of searches without warrant under section 10 conducted during that financial year; and
(b)	the number and type of weapons and dangerous articles found during the course of those searches; and
(c)	any other information requested by the Minister.'.

7. Regulations

(1) In section 12(1) of the Control of Weapons Act

1990, after "Act" (where secondly occurring)
insert "including, but not limited to the following

matters—

(a)	the manner in which searches are to be conducted;
(b)	particulars to be included in records of searches".

(2) After section 12(1) of the Control of Weapons Act 1990 insert—

"(1A) The regulations—

(a)	may be of general or limited application; and
(b)	may differ according to differences in time, place or circumstances.".

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s. 8 Part 2—Amendment of the Control of Weapons Act 1990

8. New section 14 inserted

After section 13 of the Control of Weapons Act

1990 insert—

"14. Transitional provision

Section 10 as in force immediately before the commencement of section 6 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to searches conducted before that commencement.".

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Part 3—Amendment of the Firearms Act 1996 s. 9

PART 3—AMENDMENT OF THE FIREARMS ACT 1996

9. Section 149 substituted

See:

For section 149 of the Firearms Act 1996	Act No.
substitute—	66/1996. Reprint No. 2
"149. Search of persons or vehicles	as at 8 April 1999

(1) If— (a) a member of the police force has	and amending Act Nos
30/1999,

reasonable grounds for suspecting that	41/2000, 44/2001 and
a person is committing or is about to	72/2001.
commit an offence against this Act and	LawToday:
that person has a firearm or cartridge	dpc.vic.
ammunition in his or her possession;	gov.au
and

(b)	the member informs the person of the grounds for his or her suspicion; and
(c)	the member complies with sub- section (3)—

the member may without warrant—

(d)	search the person and any vehicle, package or thing in the possession of the person; and
(e)

seize any firearm or cartridge the search.

(2) For the purposes of sub-section (1), the fact that a person is present in a location with a high incidence of violent crime may be taken

into account in determining whether there are reasonable grounds for suspecting that the person has a firearm or cartridge
ammunition in his or her possession.

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(3) Before a member of the police force

commences a search of a person under sub-

section (1), the member must—

(a)	inform the person of the member's name, rank and place of duty; and
(b)	if requested by the person, provide the information referred to in paragraph (a) in writing; and
(c)	produce his or her identification for inspection by the person, unless the member is in uniform.

(4) In conducting a search of a person under

sub-section (1), a member of the police

force—

(a)	may request that the person produce any thing that the member has detected or seen during the search on the person or in a vehicle, package or thing in the possession or under the control of the person, which the member has reasonable grounds for suspecting is a firearm or cartridge ammunition; and
(b)

if a request is made under that refusal or failure to produce any thing so requested may be an offence.

(5) A person must not, without reasonable

excuse, refuse or fail to produce any thing in
accordance with a request made under sub-
section (4).
Penalty: 30 penalty units.

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Part 3—Amendment of the Firearms Act 1996	s. 10
149A. Duty to make records concerning searches

(1) A member of the police force who conducts

a search under section 149 must make a
written record of the search containing the
prescribed particulars.

(2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the

completion of the search.

(3) A person subjected to a search under section 149 is entitled, on request and without charge, to a copy of the record of the

search, if the request is made not later than
1 year after the date of the search.

(4) A request under sub-section (3) is made to

the officer in charge of the place of duty,
referred to in section 149(3)(a), of the
member who conducted the search.".

10. Power to require production of licence

In section 150(1)(a) of the Firearms Act 1996, for "believing" substitute "suspecting".

11. Authorised officers

(1) For section 153A(1) of the Firearms Act 1996

substitute—

"(1) If—

(a) an authorised officer has reasonable grounds for suspecting that a person is committing or is about to commit an offence against this Act and that person has a firearm or cartridge ammunition in his or her possession and—

(i)  the offence is or is about to be committed on land administered by the Minister administering the

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s. 11 Part 3—Amendment of the Firearms Act 1996

Conservation, Forests and adjacent to such land; or

the authorised officer informs the person of the grounds for his or her suspicion; and the authorised officer is acting Wildlife Act 1975 or the Fisheries Act 1995; and

(ii)

(b)

(c) the authorised officer complies with sub-section (1B)—

the authorised officer may—

(d)	search the person and any vehicle, package or thing in the possession of the person; and
(e)

seize any firearm or cartridge the search.

(1A) Before an authorised officer commences a

search of a person under sub-section (1), the
authorised officer must—

(a)	inform the person of the officer's name, title, the agency employing the officer and the officer's place of employment; and
(b)	if requested by the person, provide the information referred to in paragraph (a) in writing; and
(c)	produce his or her identification for inspection by the person.

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(1B) In conducting a search of a person under

sub-section (1), an authorised officer—

(a)	may request that the person produce any thing that the authorised officer has detected or seen during the search on the person or in a vehicle, package or thing in the possession of the person, which the authorised officer has reasonable grounds for suspecting is a firearm or cartridge ammunition; and
(b)

if a request is made under that refusal or failure to produce any thing so requested may be an offence.

(1C) A person must not, without reasonable

excuse, refuse or fail to produce any thing in
accordance with a request made under sub-
section (1B).

Penalty: 30 penalty units.".

(2) In section 153A(2)(a) of the Firearms Act 1996,

for "believing" substitute "suspecting".

(3) After section 153A(3) of the Firearms Act 1996

insert—

"(3A) A person must not, without reasonable

excuse, hinder or obstruct an authorised
officer who is exercising a power under this
section.

Penalty: 30 penalty units.".

(4) After section 153A(5) of the Firearms Act 1996

insert—

"(5A) An authorised officer who institutes a

prosecution referred to in sub-section (5)
may appear in the proceeding by any other
authorised officer.".

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s. 12 Part 3—Amendment of the Firearms Act 1996

12. New sections 153B and 153C inserted

After section 153A of the Firearms Act 1996 insert—

"153B. Duty to make records concerning searches

(1) An authorised officer within the meaning of

section 153A who conducts a search under
section 153A(1) must make a written record
of the search containing the prescribed
particulars.

(2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the

completion of the search.

(3) A person subjected to a search under

section 153A(1) is entitled, on request and
without charge, to a copy of the record of the
search if the request is made not later than

1 year after the date of the search.

(4) A request under sub-section (3) is made to

the officer in charge of the place of employment, referred to in section 153A(1A)(a), of the authorised officer who

conducted the search.

153C. Annual reports

(1) The Chief Commissioner of Police must

provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a

report containing—

(a)

the number of searches without warrant that financial year; and

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Part 3—Amendment of the Firearms Act 1996 s. 13

(b)	the number and type of firearms and cartridge ammunition found during the course of those searches; and
(c)	any other information requested by the Minister.

(2) The Secretary of the Department of

Sustainability and Environment must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing—

(a)

the number of searches under financial year; and

(b)	the number and type of firearms and cartridge ammunition found during the course of those searches; and
(c)	any other information requested by the Minister.".

13. Delegation

In section 176 of the Firearms Act 1996, after

"except" insert "section 153C(1) and".

14. Regulations

After section 191(1)(q) of the Firearms Act 1996 insert—

"(qa) the manner in which searches are to be

conducted;

(qb) particulars to be included in records of

searches;".

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s. 15 Part 3—Amendment of the Firearms Act 1996

15. New section 209 inserted

After section 208 of the Firearms Act 1996 insert—

"209. Transitional provisions—Control of Weapons and Firearms Acts (Search Powers) Act 2003

(1) Section 149 as in force immediately before	the commencement of section 9 of the (Search Powers) Act 2003 continues to apply to searches conducted before that commencement.
(2) Section 150 as in force immediately before	the commencement of section 10 of the (Search Powers) Act 2003 continues to apply to demands made under section 150(1) before that commencement.

(3) Section 153A(1) as in force immediately

before the commencement of section 11(1) of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to searches conducted before that commencement.

(4) Section 153A(2) as in force immediately

before the commencement of section 11(2) of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to demands made under section

153A(2) before that commencement.".

16. Consequential amendment

In section 60A(1)(a) of the Wildlife Act 1975, for
"believing" substitute "suspecting".

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Part 3—Amendment of the Firearms Act 1996 s. 17

17. Wildlife Act 1975—new section 92 inserted

In Part XII of the Wildlife Act 1975, after section 91 insert—

"92. Transitional provision—Control of

Weapons and Firearms Acts (Search
Powers) Act 2003

Section 60A(1) as in force immediately before the commencement of section 16 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to demands made under section 60A(1) before that commencement.".

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Endnotes

ENDNOTES

†

Minister's second reading speech—

Legislative Council: 27 February 2003

Legislative Assembly: 25 March 2003

The long title for the Bill for this Act was "to amend the Control of
Weapons Act 1990 and the Firearms Act 1996 and for other purposes."