Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW)
This Regulation is the Law Enforcement (Powers and Responsibilities) Regulation 2016.
This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.
This Regulation repeals and replaces the Law Enforcement (Powers and Responsibilities) Regulation 2005, which is repealed on 1 September 2016 by section 10(2) of the Subordinate Legislation Act 1989.
In this Regulation—
(a) a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant),
(b) a covert search warrant,
(c) a criminal organisation search warrant,
(d) a search warrant issued under section 86 (Police may enter and search for firearms) of the Act,
(e) a search warrant issued under Division 1 (Drug premises) of Part 11 of the Act,
(f) a search warrant issued under a provision specified in Schedule 2 (Search warrants under other Acts) to the Act,
(g) a search warrant issued under a provision of, or a provision made under, an Act, being a provision that provides that Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under that provision.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.
Notes included in this Regulation (except in Schedule 1) do not form part of this Regulation.
For the purposes of section 60(1) of the Act—
(a) Part 1 of Form 1 is the form for an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Part 1 of Form 2 is the form for an application for a covert search warrant, and
(c) Part 1 of Form 3 is the form for an application for a criminal organisation search warrant, and
(d) Part 1 of Form 4 is the form for an application for a search warrant other than a Part 5 search warrant, and
(e) Part 1 of Form 5 is the form for an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Part 1 of Form 6 is the form for an application for a crime scene warrant issued under Part 7 of the Act, and
(g) Part 1 of Form 7 is the form for an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act,
(h) (Repealed)
An application for a notice to produce documents issued under Division 3 of Part 5 of the Act is to be made in the form of Part 1 of Form 8.
An application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be made in the form of Part 1 of Form 9.
An application for a detention warrant issued under Part 9 of the Act is to be made in the form of Part 1 of Form 10.
For the Act, sections 76AC(2) and 76AD(2), an application for a digital evidence access order is to be in the form set out in Schedule 1, Form 33, Part 1.
For the Act, section 76AF(1)(f), an application for a digital evidence access order must include information about whether the applicant reasonably believes the specified person is under the age of 18 years.
For the Act, sections 80C(2) and 80D(2), an application for a DECCD access order is to be in the form set out in Schedule 1, Form 34, Part 1.
For the Act, section 80F(1)(d), an application for a DECCD access order must include information about whether the applicant reasonably believes the person in relation to whom it is proposed the DECCD access order will be issued is under the age of 18 years.
A record is to be made by or on behalf of an eligible issuing officer, in relation to each application for a warrant dealt with by the officer, in the following form—
(a) in the case of an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant)—Part 2 of Form 1,
(b) in the case of an application for a covert search warrant—Part 2 of Form 2,
(c) in the case of an application for a criminal organisation search warrant—Part 2 of Form 3,
(d) in the case of an application for a search warrant other than a Part 5 search warrant—Part 2 of Form 4,
(e) in the case of an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act—Part 2 of Form 5,
(f) in the case of an application for a crime scene warrant issued under Part 7 of the Act—Part 2 of Form 6,
(g) in the case of an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act—Part 2 of Form 7,
(h) in the case of an application for a notice to produce documents issued under Division 3 of Part 5 of the Act—Part 2 of Form 8,
(i) in the case of an application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act—Part 2 of Form 9,
(j) in the case of an application for a detention warrant issued under Part 9 of the Act—Part 2 of Form 10.
For the Act, section 238(3)(a), an eligible issuing officer must keep a record of each application for a digital evidence access order in the form set out in Schedule 1, Form 33, Part 2.
For the Act, section 238(3)(c), a Magistrate must keep a record of each application for a DECCD access order in the form set out in Schedule 1, Form 34, Part 2.
For the purposes of section 66 of the Act—
(a) Form 11 is the form for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 12 is the form for a covert search warrant, and
(c) Form 13 is the form for a criminal organisation search warrant, and
(d) Form 14 is the form for a search warrant other than a Part 5 search warrant, and
(e) Form 15 is the form for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Form 16 is the form for a crime scene warrant issued under Part 7 of the Act, and
(g) Form 17 is the form for a detention warrant issued under Part 9 of the Act, and
(h) Form 18 is the form for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act, and
(i) Form 19 is the form for a notice to produce documents issued under Division 3 of Part 5 of the Act.
A warrant under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be issued in the form of Form 20.
For the Act, sections 76AK(1), a digital evidence access order is to be in the form set out in Schedule 1, Form 35.
For the Act, sections 80K(1), a digital evidence access order is to be in the form set out in Schedule 1, Form 36.
For the purposes of section 67(2)(a) of the Act—
(a) Form 21 is the form for an occupier’s notice in relation to a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 22 is the form for an occupier’s notice in relation to a covert search warrant, and
(c) Form 24 is the form for an occupier’s notice in relation to a criminal organisation search warrant, and
(d) Form 25 is the form for an occupier’s notice in relation to a search warrant other than a Part 5 search warrant, and
(e) Form 26 is the form for an occupier’s notice in relation to a crime scene warrant issued under Part 7 of the Act.
An occupier’s notice is not required to be issued in connection with a search warrant issued under section 86 (Police may enter and search for firearms) of the Act.
An adjoining occupier’s notice under section 67B of the Act may be in or to the effect of Form 23.
A person who seizes a thing while executing a search warrant other than a covert search warrant, or a crime scene warrant issued under Part 7 of the Act, in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
A person who seizes a dangerous article under section 85 or 87 of the Act while executing a warrant issued under section 83 of the Act in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
A copy of a receipt issued under this clause, in relation to a thing seized while executing a warrant, is to be attached to the report about the execution of the warrant that is referred to in clause 11(1).
A person who seizes a thing while executing a covert search warrant must, at the time the occupier’s notice under section 67 of the Act is served (the
However, any such receipt is not required to be provided at the time of notification if an eligible issuing officer issues a certificate to the effect that—
(a) the receipt contains matter—
(i) that could disclose a person’s identity, and
(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b) the receipt contains matter that, if disclosed, may seriously compromise the investigation of any matter.
A report to an eligible issuing officer under section 74 of the Act about the execution of a warrant (other than a covert search warrant) must be in or to the effect of Form 27 and must contain the particulars required to complete that Form.
A report to an eligible issuing officer under section 74 of the Act about the giving of a notice to produce must be in or to the effect of Form 30 and must contain the particulars required to complete that Form.
A report to an eligible issuing officer under section 74A of the Act about the execution of a covert search warrant must be in or to the effect of Form 28 and must contain the particulars required to complete that Form.
A report to an eligible issuing officer under section 74A of the Act about the return or retrieval of a thing under section 49A of the Act must be in or to the effect of Form 29 and must contain the particulars required to complete that Form.
The following documents must be kept in relation to each warrant or order to which this subclause applies that is issued—
(a) any written application for the warrant or order,
(b) any record relating to the warrant or order made by or on behalf of an authorised officer or eligible issuing officer (as the case requires),
(c) a copy of any occupier’s notice,
(d) a copy of any adjoining occupier’s notice,
(e) any report on the execution of the warrant (including a copy of any receipt provided to the occupier under clause 9 or 10) or order.
Subclause (1) applies to the following warrants and orders—
(a) a search warrant (including a covert search warrant),
(b) a warrant under section 83 (Entry by warrant where entry denied) of the Act,
(c) a crime scene warrant under Part 7 of the Act,
(c1) a digital evidence access order,
(c2) a DECCD access order,
(d) a warrant under section 103 (Warrant for arrest of person unlawfully at large) of the Act,
(e) a detention warrant under Part 9 of the Act,
(f) a warrant under Division 2 (Use of drug detection dogs) of Part 11 of the Act.
The following documents must be kept in relation to each notice to produce documents issued under Division 3 of Part 5 of the Act—
(a) any application for the notice,
(b) any record relating to the notice made by or on behalf of the authorised officer or eligible issuing officer (as the case requires),
(c) any report on the execution of the notice,
(d) any record of an application made for an order to access documents under section 56 of the Act,
(e) any order made under section 56 of the Act.
The documents must be kept for at least 6 years from the date on which the warrant or notice was issued—
(a) at the Local Court registry or the Supreme Court registry (as the case may be) specified in the occupier’s notice, or
(b) if no occupier’s notice is issued, at the Local Court registry or the Supreme Court registry (as the case may be) at which the warrant or notice was issued or that is nearest to the place at which it was issued.
The documents may be destroyed after the period referred to in subclause (4) has expired.
During the hours that the Supreme Court registry is open to the public, the documents referred to in subclause (1) relating to a covert search warrant may be inspected by the occupier of the premises to which the covert search warrant relates or by any other person who is given an occupier’s notice relating to the warrant under the Act.
During the hours that the Local Court registry or the Supreme Court registry (as the case may be) is open to the public, the documents, other than those referred to in subclause (6), may be inspected—
(a) in the case of any warrant other than a warrant referred to in paragraph (b) or (c)—by the occupier of the premises to which the warrant relates or by any other person on behalf of the occupier, or
(b) in the case of a detention warrant issued under Part 9 of the Act—by the detained person to whom the warrant relates or by any other person on behalf of that person, or
(c) in the case of a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act—by any member of the public, or
(d) in the case of a notice to produce documents issued under Division 3 of Part 5 of the Act—by a person who is an officer, or other person, acting on behalf of the authorised deposit-taking institution to which the notice to produce relates.
In the case of a crime scene warrant under Part 7 of the Act that relates to more than one set of premises, subclause (7)(a) authorises the occupier of premises, or a person acting on behalf of the occupier, to inspect only so much of the documents as relate to the premises of the occupier.
An eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that—
(a) a document or part of a document referred to in clause 13 contains matter—
(i) that could disclose a person’s identity, and
(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b) a document or part of a document referred to in clause 13 contains matter that, if disclosed, may seriously compromise the investigation of any matter.
The document or part of the document to which the certificate relates is not to be made available for inspection under clause 13(6) or (7).
The certificate is to be kept with the document to which it relates.
An eligible issuing officer (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety or seriously compromise the investigation of any matter.
The Commissioner of Police is to designate police stations, and other places in the State, for the purpose of detaining persons under Part 9 of the Act.
A police station or other place is not to be designated unless it appears to the Commissioner to provide, or have access to, sufficient facilities for that purpose.
Police stations and other places of detention designated under this clause are referred to in this Division as
Section 31 of the Police Act 1990 enables the Commissioner of Police to delegate any function conferred on the Commissioner, including the functions set out in this and the next clause.
The Commissioner of Police is to appoint one or more police officers (
A police station or place of detention to which a person is taken to be detained under Part 9 of the Act must be a designated police station, or designated place of detention, at which there is an appointed custody manager who is available to act as the custody manager for the person.
If it is not reasonably practicable to comply with subclause (1), the person may be detained at a designated police station, or designated place of detention, at which there is a police officer who (while not an appointed custody manager) is available to act as the custody manager for the person.
If it is not reasonably practicable to comply with subclause (1) or (2), the person may be detained at any police station or place of detention at which there is a police officer who is available to act as the custody manager for the person.
If it is not reasonably practicable to comply with subclause (1), (2) or (3), the person may be detained at any place of detention.
This clause does not apply if the person is detained by a police officer in the officer’s capacity as a member of the staff of the New South Wales Crime Commission or a member of the staff of the Australian Crime Commission, as referred to in clause 19.
Except as provided by subclause (2), if a person is detained under Part 9 of the Act at a designated police station or designated place of detention, only an appointed custody manager may act as the custody manager for the person.
If an appointed custody manager is not available to act as the custody manager for the person under subclause (1) or the person is taken to a police station that is not a designated police station, the following police officers may act as the custody manager for the person—
(a) any police officer of or above the rank of Sergeant (or the officer for the time being in charge of the police station or designated place of detention (as the case may be)),
(b) if no such police officer is available to act as the custody manager for the person—any other police officer.
The arresting or investigating officer for the person is not to act as the custody manager for the person under subclause (2) unless—
(a) no other police officer is available to act as the custody manager for the person, and
(b) a police officer holding one of the following positions has given written permission to the arresting or investigating officer to act as the custody manager for the person—
(i) duty officer at a designated police station,
(ii) District Inspector,
(iii) Officer in Charge of a Police Sector.
Written permission for the purposes of subclause (3) may be obtained by facsimile.
This clause does not apply if the person is detained by a police officer in the officer’s capacity as a member of the staff of the New South Wales Crime Commission or a member of the staff of the Australian Crime Commission, as referred to in clause 19.
A police officer who is a member of the staff of the Commission or a member of the staff of the ACC may act as the custody manager for a detained person who is the subject of an investigation conducted by the Commission or the ACC respectively.
The arresting or investigating officer for the person is not to act as the custody manager for the person unless—
(a) no other police officer who is a member of the staff of the Commission or a member of the staff of the ACC is available to act as the custody manager for the person, and
(b) written permission has been obtained in accordance with subclause (3).
For the purposes of subclause (2), the written permission must be obtained from—
(a) in the case of Commission investigations—a person holding the position of Commissioner, Director, or Assistant Director, Investigations, of the Commission, or
(b) in the case of ACC investigations—a person holding the position of General Manager, National Operations, of the ACC.
Written permission for the purposes of subclause (2) may be obtained by facsimile.
In this clause—
For the purposes of section 122(1)(b) of the Act—
(a) Form 31 is the form of the summary of Part 9 of the Act in the case of a detained person, and
(b) Form 32 is the form of the summary of Part 9 of the Act in the case of a protected suspect.
The provisions of this Division are not to be construed so as to prevent a police officer who is acting as the custody manager for a detained person or protected suspect from also exercising—
(a) any function in connection with the identification of the person, or
(b) any function under the provisions of Schedule 3 to the Road Transport Act 2013 in relation to the person (such as carrying out a breath analysis of the person).
Custody managers and all other police officers must have regard to the guidelines set out in Schedule 2 in the exercise of their functions under Part 9 of the Act and this Part.
In this Division—
A separate custody record must be opened, as soon as practicable, for each person who is detained under Part 9 of the Act.
A custody record may be in writing or in electronic form.
All entries in a custody record must include the time at which the entry is made.
The time of an event to which an entry in the custody record relates must also be included if the entry is not made within a reasonable time of the occurrence of the event.
In addition to the matters specified in section 131 of the Act, the custody manager must record the following particulars in the custody record for a detained person—
(a) in the case of a person who has been arrested during the previous 48 hours—
(i) the offence or offences for which the person was arrested during that previous 48 hours, and
(ii) the investigation period that remains after reduction by so much of any earlier investigation period or periods as occurred within that previous 48 hours,
(b) if an application is made for a detention warrant, and the person declines to make representations (either personally, or by his or her legal representative) to the authorised officer, the fact that the person so declined,
(c) if a detention warrant is issued, a copy of the warrant or form of detention warrant, as the case may be,
(d) the time of any request to make a communication, and the time of any communication, under section 123 or 124 of the Act,
(e) the time of any request for information, or provision of information, pursuant to section 126 or 127 of the Act, together with the nature of such information,
(f) any request by the person, and any arrangement by a police officer (including under section 128 of the Act) for an interpreter, and the time that any such request or arrangement is made,
(g) any request by the person, and any arrangement by a police officer (including under section 129 of the Act) for medical treatment or medication, and the time at which the request or arrangement is made,
(h) any request by the person for refreshments, toilet facilities, washing, showering or bathing facilities,
(i) if the person’s clothing or personal effects are withheld, the reasons for withholding those items.
The custody manager must request the person to sign an acknowledgment as to the correctness of any entry made in the custody record in relation to the matters referred to in section 131(2)(d) of the Act and subclause (1)(b).
A detained person must be permitted to inspect the custody record for the person on request unless the request is unreasonable or cannot reasonably be complied with.
While the detained person is in police custody, a legal representative of the detained person, a support person for the detained person and a consular official must each be permitted to inspect the custody record for the detained person as soon as practicable after the legal representative, support person or consular official arrives at the place of detention.
After the detained person has been released from police custody, the detained person’s legal representative or any other person authorised by the detained person must be given a copy of the custody record if they give reasonable notice of their request to do so.
Section 131(5) of the Act also requires a copy of a detained person’s custody record to be given to the person.
Despite subclauses (2) and (3), a support person or consular official may inspect the custody record only with the authorisation of the detained person.
In this Division—
(a) a total or partial loss of the person’s mental functions, or
(b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or
(c) a disorder, illness or disease that affects the person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.
See clause 3 of Schedule 2 for guidance to custody managers on whether paragraph (a) or (b) applies to a person.
(a) a total or partial loss of the person’s bodily functions or of part of a person’s body, or
(b) a presence in the person’s body of organisms causing or capable of causing disease or illness, or
(c) a malfunction, malformation or disfigurement of part of the person’s body.
For the purposes of this Division, a detained person who has impaired physical functioning is taken not to have impaired physical functioning if the custody manager for the person reasonably believes that the person’s impairment is so minor that the person will not be significantly disadvantaged with respect to the person’s participation in any investigative procedure (in comparison with members of the community generally).
A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories—
(a) children,
(b) persons who have impaired intellectual functioning,
(c) persons who have impaired physical functioning,
(d) persons who are Aboriginal persons or Torres Strait Islanders,
(e) persons who are of non-English speaking background,
but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories.
If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person.
Pursuant to section 112(1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division.
The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.
In particular, the custody manager must ensure that the caution and summary required by section 122(1) of the Act is given to the person.
Section 122(1) of the Act provides that a custody manager for a person who is a detained person or protected suspect must, as soon as practicable after the person comes into custody or becomes a protected suspect, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. It also requires the manager to give the person a summary of the provisions of Part 9 of the Act.
A person may be a support person for a detained person or protected suspect who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is—
(a) in the case of a detained person or protected suspect who is a child—
(i) a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or
(ii) a person who is responsible for the care of the child, or
(iii) an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or
(iv) if the child is aged 14 years or over—an adult (other than a police officer) who has the consent of the child to be the support person for the child, or
(v) a legal practitioner of the child’s own choosing, or
(b) in the case of a detained person or protected suspect who is not a child—
(i) a guardian or any other person who is responsible for the care of the detained person or protected suspect, or
(ii) a relative, friend or any other person (other than a police officer) who has the consent of the detained person or protected suspect to be the support person for the detained person or protected suspect, or
(iii) if none of the persons mentioned in subparagraph (i) or (ii) are applicable or readily available—a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person or protected suspect belongs.
A detained person or protected suspect who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person or protected suspect is to participate.
However, a detained person or protected suspect who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128(1) of the Act solely because of section 128(3)(a) of the Act.
Before any such investigative procedure starts, the custody manager for the detained person or protected suspect must inform the person that the person is entitled to the presence of a support person during the investigative procedure.
If the detained person or protected suspect wishes to have a support person present, the custody manager must, as soon as practicable—
(a) give the detained person or protected suspect reasonable facilities to enable the person to arrange for a support person to be present, and
(b) allow the detained person or protected suspect to do so in circumstances in which, so far as practicable, the communication will not be overheard, and
(c) if the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained—allow the person to consult with the friend, relative, guardian or independent person in accordance with section 123(4) of the Act.
Section 123(4) of the Act requires a custody manager to allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.
The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person or protected suspect has expressly waived his or her right to have a support person present.
An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention.
A custody manager is not required to comply with subclauses (3)–(5) if the custody manager believes on reasonable grounds that—
(a) doing so is likely to result in an accomplice of the detained person or protected suspect avoiding arrest, or
(b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or
(d) doing so is likely to result in bodily injury being caused to any other person, or
(e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency.
A detained person or protected suspect who is a vulnerable person is entitled to a support person under clause 31 or to consult with a friend, relative, guardian or independent person under section 123(4) of the Act, but not both.
However, a friend, relative, guardian or independent person of the detained person or protected suspect who, under section 123(1)(a)(ii) of the Act, attends the place of detention is not prevented by this clause from acting as a support person if the detained person or protected suspect requests it.
A detained person or protected suspect who is a child cannot waive the child’s entitlement under this Division to have a support person present during an investigative procedure.
The custody manager for a detained person or protected suspect who is a vulnerable person is to inform any support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things—
(a) assist and support the detained person or protected suspect, and
(b) observe whether or not the interview is being conducted properly and fairly, and
(c) identify communication problems with the detained person or protected suspect.
The custody manager is to give a copy of the summary referred to in section 122(1)(b) of the Act, to—
(a) the support person, and
(b) any interpreter for the detained person or protected suspect who attends in person at the place of detention.
If the support person or the detained person’s or protected suspect’s legal representative is present during an interview of the detained person or protected suspect, the support person or legal representative is to be given an opportunity to read and sign any written interview record.
Any refusal by the support person or legal practitioner to sign a written interview record when given the opportunity to do so must itself be recorded.
A support person may be excluded from an investigative procedure if the support person unreasonably interferes with the procedure.
If the support person is excluded under subclause (1), the detained person or protected suspect concerned is entitled to have another support person present during the investigative procedure.
If a detained person or protected suspect is a child or a person with impaired intellectual or physical functioning, the custody manager for the person must, as soon as practicable, attempt—
(a) to ascertain the identity of the person responsible for the welfare of the detained person or protected suspect, and
(b) to contact the person so responsible and advise the person of the detained person’s or protected suspect’s whereabouts and the grounds for the detention.
If a detained person or protected suspect has impaired physical functioning, the custody manager must, as soon as practicable, attempt to determine any specific physical care needs of the person and, if reasonably practicable to do so, arrange for those needs to be provided for.
If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must—
(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified—
(i) that the person is being detained in respect of an offence, and
(ii) of the place at which the person is being detained, and
(b) notify such a representative accordingly.
If an Aboriginal person or Torres Strait Islander (the
(a) immediately inform the detainee that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified—
(i) that the detainee is being detained under Part 16 of the Act, and
(ii) of the place at which the detainee is being detained, and
(b) notify such a representative accordingly.
If a detained person or protected suspect who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person or protected suspect understands the caution.
If the detained person or protected suspect is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person’s detention.
A reference in this clause to the giving of a caution is a reference to the giving of a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
In addition to any time referred to in section 117 of the Act, the following times are to be disregarded in determining how much of an investigation period has elapsed if the detained person concerned is a vulnerable person—
(a) any time that is required to allow for the person (or someone else on the person’s behalf) to arrange for a support person to attend at the place of detention,
(b) any time that is required to allow the support person to arrive at the place of detention.
However, those times are to be disregarded only to the extent that they are times during which the investigative procedure concerned is reasonably suspended or deferred.
If an application for a detention warrant is made in respect of a vulnerable person, the application for the warrant must include—
(a) reference to the fact that the person is believed to be a vulnerable person, and
(b) the nature of the person’s vulnerability, and
(c) the identity and relationship to the person of any support person who is present during the investigative procedure concerned, and
(d) any particular precautions that have been taken in respect of the vulnerable person.
In this Part—
A police officer may cause any locking device or other feature of a seized vehicle to be removed, dismantled or neutralised and may, if the driver or any other person will not surrender the keys to the vehicle, start the vehicle by other means.
A seized vehicle may—
(a) be detained at the place where it is seized, or
(b) be moved to, and detained at, any other place determined by the Commissioner.
A seized vehicle that is removed under subclause (2)(b)—
(a) may be moved by its being driven, whether or not under power, or by its being towed or pushed, or in any other manner whatever, and
(b) may be moved by one or more police officers or, at the direction of a police officer, by persons engaged by the Commissioner, and may be detained at premises under the control of the Commissioner or of another authority or person.
If a seized vehicle is towed under clause 42, a fee is payable to the Commissioner by the responsible person for the vehicle, except as otherwise provided by this clause.
The fee payable is whichever is the lesser of the following—
(a) the actual cost of towing the vehicle,
(b) the maximum charge for the time being determined under section 54 of the Tow Truck Industry Act 1998 (including any surcharge chargeable, in the circumstances of the case, in accordance with a determination under that section) for—
(i) in the case of the Sydney metropolitan area—a 50-kilometre tow, or
(ii) in any other case—a 100-kilometre tow.
A fee is not payable under this clause by the responsible person for the seized vehicle if the person furnishes the Commissioner of Police with a statutory declaration stating—
(a) that the responsible person did not know, and could not reasonably be expected to have known, that the vehicle would be used to convey any person to participate in a public disorder, and
(b) that—
(i) at the time the vehicle was stopped under section 87J of the Act it was being driven by a person whose name and address are supplied in the declaration, or
(ii) the responsible person does not know and could not with reasonable diligence have ascertained the name and address of the person who was driving the vehicle at that time.
A fee that, by virtue of subclause (3), is not payable by the responsible person for the vehicle is payable by the person driving the vehicle at the time it was stopped under section 87J of the Act.
The whole or any part of a towing fee that is unpaid may be recovered from the person required to pay it by the Commissioner as a debt due to the State in any court of competent jurisdiction.
A statutory declaration referred to in subclause (3) that is produced in any proceedings for recovery of a fee under this clause that alleges that any person was the driver of the vehicle at the time of the offence is evidence of the driver’s identity (unless evidence to the contrary is adduced).
If a seized vehicle is detained under section 87M of the Act at a place other than where it is seized, a fee for the storage of the vehicle at that place is payable to the Commissioner. The fee is $16 for each day (or part of a day) that the vehicle is so detained.
A seized vehicle that is detained under section 87M of the Act may be released into a person’s custody only if—
(a) the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle, and
(b) the fee under subclause (1) for the storage of the vehicle has been paid (except to the extent that the Commissioner has waived payment of that fee).
A person to whom a vehicle is released under this clause must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.
The Commissioner may waive or remit the whole or any part of the fee payable under this clause for the storage of a seized vehicle.
If a seized vehicle is not claimed by any person after the expiration of the period for which the vehicle may be detained under section 87M of the Act, the vehicle may be dealt with in accordance with Division 2 of Part 17 of the Act.
The Commissioner has (in the Commissioner’s official capacity) a duty to take all reasonable steps to secure a seized vehicle against theft or damage while it is being detained under section 87M of the Act.
A court may, in any proceedings (including proceedings before the Local Court under section 87M(2) of the Act), direct that any fee payable under this Part in relation to the towing or storage of a seized vehicle be reduced by such amount as the court may specify or that, in the circumstances of the case, no such fee is required to be paid.
Any such direction by a court—
(a) may be given for reasons of avoidance of any undue hardship to any person or other injustice perceived by the court, and
(b) has effect according to its tenor.
For the purposes of section 32(7A)(b) of the Act, the following classes of persons are prescribed—
(a) corrective services officers (within the meaning of the Crimes (High Risk Offenders) Act 2006),
(b) juvenile justice officers (within the meaning of the Children (Detention Centres) Act 1987) involved in the detention of persons under that Act,
(c) ambulance officers (within the meaning of the Mental Health Act 2007),
(d) nurses,
(e) if it is not reasonably practicable for a person of a class referred to in paragraphs (a)–(d) to be available for the purposes of the search concerned—persons who, in the opinion of the Commissioner, have appropriate training, qualifications or experience in conducting personal searches.
For the purposes of section 92(3) of the Act, the following Police Districts (as determined by the Commissioner of Police under clause 4 of the Police Regulation 2015 and in force immediately before 30 March 2018) are prescribed as rural areas—
(a) Barrier Police District,
(b) Central North Police District,
(c) Central West Police District,
(d) Chifley Police District,
(e) The Hume Police District,
(f) Monaro Police District,
(g) Murray River Police District,
(h) Murrumbidgee Police District,
(i) New England Police District,
(j) Orana Mid-Western Police District,
(k) Oxley Police District,
(l) Riverina Police District,
(m) South Coast Police District.
For the purposes of section 148(1)(c) of the Act, the following public passenger vehicle routes are prescribed—
(a) the Bankstown route, being the train line that is—
(i) between Liverpool station and Sydney Central station, and
(ii) via Bankstown station,
(b) the Inner West route, being the train line that is—
(i) between Liverpool station and Sydney Central station, and
(ii) via Regents Park station,
(c) the Eastern Suburbs route, being the train line that is between Bondi Junction station and Sydney Central station,
(d) the Illawarra route, being the train line that is between Bomaderry station and Sydney Central station, and including the train line between Sutherland station and Cronulla station via Kirrawee station, and including the train line between Wollongong station and Port Kembla station,
(e) the Northern route, being the train line that is—
(i) between Newcastle station and Sydney Central station, and
(ii) via Strathfield station,
and including the train line between Chatswood station and Epping station,
(f) the South route, being the train line that is—
(i) between Campbelltown station and Sydney Central station, and
(ii) via Circular Quay station, and
(iii) via Granville station,
(g) the Western route, being the train line that is—
(i) between Penrith station and Sydney Central station, and
(ii) via Strathfield station,
and including the train line between Blacktown station and Richmond station and the Olympic Park loop,
(h) the North Shore route, being the train line that is—
(i) between Berowra station and Sydney Central station, and
(ii) via Chatswood station,
(i) the Southern Highlands route, being the train line that is between Campbelltown station and Goulburn station,
(j) the Blue Mountains route, being the train line that is between Lithgow station and Sydney Central station,
(k) the Hunter route, being the train line that is between Newcastle station and Dungog station, and including the train line between Maitland station and Scone station,
(l) the Airport and East Hills route, being the train line that is—
(i) between Sydney Central station and Macarthur station, and
(ii) via Wolli Creek station or via Sydenham station,
(m) the Carlingford route, being the train line that is between Clyde station and Carlingford station,
(n) the Cumberland route, being the train line that is between Campbelltown station and Schofields station.
A route prescribed by this clause includes a train travelling on any part of the train line described in respect of the route, irrespective of whether—
(a) the train stops at a station on the train line, or
(b) the train has travelled or will travel on any other train line.
A route prescribed by this clause includes the route of any bus being used to convey persons between train stations on the prescribed route because trains are not running between those stations, and any stopping place of such a bus.
For the purposes of section 148(1)(c) of the Act, the following public passenger vehicle routes are prescribed—
(a) the Albury route, being the bus route that is—
(i) between Albury and Sydney, and
(ii) via Goulburn and the Hume Highway,
(b) the Grafton route, being the bus route that is—
(i) between Grafton and Sydney, and
(ii) via Kempsey and the Pacific Highway.
The Code of Practice set out in Schedule 3 is prescribed for the purposes of section 200A(1) of the Act.
For the purposes of section 209 of the Act, the following particulars must be contained in a record made by a police officer referred to in section 209 (1) (a) of the Act in relation to the detention of an intoxicated person—
(a) the name and rank of the police officer,
(b) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(c) the grounds on which the intoxicated person is detained,
(d) the date and time when the following occur—
(i) the intoxicated person’s detention commences,
(ii) the intoxicated person is brought to the authorised place of detention,
(e) the name and address of the authorised place of detention.
For the purposes of section 209 of the Act, the following particulars must be contained in a record made by a person referred to in section 209(1)(b) of the Act (
(a) the name and rank of the responsible detention officer,
(b) the name and rank of the police officer who brings the intoxicated person to the authorised place of detention,
(c) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(d) the date and time when the following occur—
(i) the intoxicated person is brought to the authorised place of detention,
(ii) the intoxicated person is released from detention,
(e) the name of each detention officer at the authorised place of detention who is responsible for the intoxicated person’s detention,
(f) details of any arrangement by a detention officer at the authorised place of detention for medical treatment or medication to be administered to the intoxicated person and the time at which the arrangement is made.
For the purposes of section 209 of the Act, a record made in relation to the search of an intoxicated person by a person referred to in section 209(1)(c) of the Act must contain the following particulars—
(a) the name and rank of the person who carries out the search (
the searching detention officer ),(b) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(c) a description of any personal belongings of the intoxicated person of which the searching detention officer has taken possession as a result of a search of the intoxicated person.
Nothing in this clause requires a detention officer to make a record, in relation to the detention of an intoxicated person, containing any particular that is contained in a record made in relation to the same detention of the intoxicated person by a detention officer of the same kind.
In this clause—
For the purposes of section 210M(2) of the Act, an application for a stock mustering order must be supported by an affidavit stating—
(a) briefly but specifically the grounds on which the stock mustering order should be made, including any beliefs that support those grounds, and
(b) the material facts relied on in support of the application.
For the purposes of section 235 of the Act, the offence created by section 199(1) of the Act—
(a) is an offence for which a penalty notice may be served, and
(b) the penalty prescribed for the offence is $220.
Any act, matter or thing that, immediately before the repeal of the Law Enforcement (Powers and Responsibilities) Regulation 2005, had effect under that Regulation continues to have effect under this Regulation.
A reference in this Regulation to a Form includes a reference to the corresponding Form in the Law Enforcement (Powers and Responsibilities) Regulation 2005.
(Clause 3(2))
(Clauses 4(1)(a) and 5(a))
This Form is to be used for search warrants (other than covert or criminal organisation search warrants) in relation to indictable, firearms, prohibited weapons, narcotics, child pornography or child prostitution offences or stolen goods. Form 2 should be used for covert search warrants and Form 4 should be used for search warrants (other than Part 5 search warrants).
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 I have reasonable grounds for believing that—
(a)* there is, or within 72 hours will be, in or on the premises, the following things: [
List items to be searched for. If exact location of items is known, include that information. ](b)* the things are connected with the following searchable offence(s) within the meaning of section 46A(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002: [
Insert description of offence(s). ](c)* a child prostitution offence, within the meaning of section 47 of the Law Enforcement (Powers and Responsibilities) Act 2002, has recently been committed, is being committed, or within 72 hours will be committed, on or with respect to the premises.
2 I rely on the following grounds in support of this application: [
Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient, continue overleaf or attach a separate sheet. ]
[
3* The following are details of the refusal of a previous application—
4* [
Need not be completed if the previous application was made to an eligible issuing officer who was not a Magistrate and this application is made to a Magistrate. ]The additional information that I consider justifies the making of this further application is—
5* I seek that a certificate pursuant to clause 14 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 be issued, on the following grounds: [
Specify grounds ]
Sworn/declared and affirmed* before me on [
Applicant [
Justice of the Peace [
[
[
It is an offence under section 63 of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of $11,000 or 2 years imprisonment (or both).
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the eligible issuing officer for record purposes as if it were made in person by the applicant but not verified on oath or affirmation or by affidavit.
On [
1* [
To be completed if the application was not made in person. ]The application was made by [
Specify how the application was made (eg facsimile, telephone) ] and I was/was not* satisfied that the warrant was required urgently and it was/was not* practicable for the application to be made in person.2* [
To be completed if the eligible issuing officer required the applicant to provide further information concerning the grounds on which the warrant was sought. ]*Further information provided by the applicant, as required by me, is attached.
*Particulars of further information orally provided by the applicant, as required by me, are as follows: [
Specify particulars. ]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant.
4 The relevant particulars of the grounds on which I relied to justify the issue of/refusal to issue [
Delete whichever is inapplicable ] the warrant are as follows: [Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5 [
To be completed if the warrant may be executed by night. ]The grounds on which I relied to justify the execution of the warrant by night are as follows—
(a)* execution of the warrant by day is unlikely to be successful,
(b)* there is likely to be less risk to the safety of any person if it is executed by night,
(c)* an occupier is likely to be on the premises only at night to allow entry without the use of force,
(d)* [
Other grounds ].
6 The search warrant was issued at [
Time ] on [Date ].
Eligible issuing officer [
[
Return this Form, together with a copy of the warrant and a copy of the occupier’s notice, to the Local Court registry named in the occupier’s notice.
(Clauses 4(1)(b) and 5(b))
This Form is to be used for covert search warrants in relation to serious offences within the meaning of section 46A of the Law Enforcement (Powers and Responsibilities) Act 2002. Form 1 should be used for Part 5 search warrants (other than covert or criminal organisation search warrants) and Form 4 should be used for other search warrants.
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 I have been authorised to make this application by [
Name and rank or position ] of [Place of work ]. A copy of the authorisation is attached.2 I have reasonable grounds for suspecting that—
(a) there is, or within 10 days will be, in or on the subject premises, the following things: [
List items to be searched for. If exact location of items is known, include that information. ](b) the things are of a kind connected with the following searchable offence(s) within the meaning of section 46A(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002: [
Insert description of offence(s). ]
3 I consider that it is necessary for the entry and search of the subject premises to be conducted without the knowledge of any occupier of the subject premises.
4 The name of the occupier of the subject premises is [
Insert name or “not known”. ]5 I believe each of the following persons has committed, or is intending to commit, a searchable offence as follows: [
Insert names and the relevant searchable offence for each name or “names not known”. ]6 I believe/do not believe* the occupier of the subject premises is knowingly concerned with the commission of the searchable offence(s) of [
Insert description of offence(s). ]7 I rely on the following grounds in support of this application: [
Insert the reasonable grounds on which the application for the covert search warrant is based. If space is insufficient, continue overleaf or attach a separate sheet. ]8* The following powers are proposed to be exercised on entry to the subject premises for the purpose of concealing anything done in the execution of the warrant in accordance with section 47A(2)(d) of the Law Enforcement (Powers and Responsibilities) Act 2002: [
Insert description of powers. ]9* I seek authorisation to place a thing in substitution for a seized thing.
10* I seek that the covert search warrant authorise the following—
(a)* the return of a thing seized from the subject premises,
(b)* the retrieval of a thing from the subject premises placed in substitution for a thing seized from the premises,
(c)* the re-entry to the subject premises to return or retrieve the thing within a period longer than 7 days after the first entry under this warrant.
11* I seek authority for service of the occupier’s notice on the occupier of the subject premises to be postponed for [
Insert period of up to 6 months ], on the following grounds: [Specify grounds. ]12* For the purposes of entering the subject premises, I consider that it is necessary to enter premises adjoining or providing access to the subject premises (the adjoining premises) without the knowledge of the occupier of the adjoining premises, on the following grounds: [
Specify grounds. ]13* The address or other description of the adjoining premises [
Specify address or other description of adjoining premises. ]14* I seek that the service of the adjoining occupier’s notice on the occupier of the adjoining premises be dispensed with, on the following grounds: [
Specify grounds. ]
[
15* The following are details of a previous covert search warrant issued in respect of the subject premises—
[
16* The following are details of the refusal of a previous application—
17* The additional information that I consider justifies the making of this further application is—
18* I seek that a certificate pursuant to clause 14 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 be issued, on the following grounds: [
Specify grounds. ]
Sworn/declared and affirmed* before me on [
Applicant [
Justice of the Peace [
[
[
It is an offence under section 63 of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of $11,000 or 2 years imprisonment (or both).
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the eligible issuing officer for record purposes as if it were made in person by the applicant but not verified on oath or affirmation or by affidavit.
On [
1* [
To be completed if the application was not made in person. ]The application was made by [
Specify how the application was made (eg facsimile, telephone) ] and I was/was not* satisfied that the warrant was required urgently and it was/was not* practicable for the application to be made in person.2* [
To be completed if the eligible issuing officer required the applicant to provide further information concerning the grounds on which the warrant was sought. ]*Further information provided by the applicant, as required by me, is attached.
*Particulars of further information orally provided by the applicant, as required by me, are as follows: [
Specify particulars. ]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant.
4 The relevant particulars of the grounds on which I relied to justify the issue of/refusal to issue* the warrant are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5 The covert search warrant was issued at [
Time ] on [Date ].
Eligible issuing officer [
[
Return this Form, together with a copy of the covert search warrant and a copy of the occupier’s notice, to the Supreme Court registry named in the occupier’s notice.
(Clauses 4(1)(c) and 5(c))
This Form is to be used for search warrants in relation to organised crime offences. Form 1 should be used for other Part 5 search warrants, Form 2 should be used for covert search warrants and Form 4 should be used for search warrants (other than Part 5 search warrants).
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 I have been authorised to make this application by [
Name and rank or position ] of [Place of work ]. A copy of the authorisation is attached.2 I have reasonable grounds for suspecting that—
(a) there is, or within 7 days will be, in or on the premises, the following things: [
List items to be searched for. If exact location of items is known, include that information. ](b) the things are connected with the following searchable offence(s) within the meaning of section 46A(1)(c) of the Law Enforcement (Powers and Responsibilities) Act 2002: [
Insert description of offence(s). ]
3 The name of the occupier of the premises is [
Insert name or “not known”. ]4 I believe each of the following persons has committed, or is intending to commit, a searchable offence as follows: [
Insert names and the relevant searchable offence for each name or “names not known”. ]5 I believe/do not believe* the occupier of the premises is knowingly concerned with the commission of the searchable offence(s) of [
Insert description of offence(s). ]6 I rely on the following grounds in support of this application: [
Insert the reasonable grounds on which the application for the search warrant is based. If space is insufficient, continue overleaf or attach a separate sheet. ]
[
7* The following are details of the refusal of a previous application—
8* The additional information that I consider justifies the making of this further application is—
9* I seek that a certificate pursuant to clause 14 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 be issued, on the following grounds: [
Specify grounds ]
Sworn/declared and affirmed* before me on [
Applicant [
Justice of the Peace [
[
[
It is an offence under section 63 of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of $11,000 or 2 years imprisonment (or both).
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the eligible issuing officer for record purposes as if it were made in person by the applicant but not verified on oath or affirmation or by affidavit.
On [
1* [
To be completed if the application was not made in person. ]The application was made by [
Specify how the application was made (eg facsimile, telephone) ] and I was/was not* satisfied that the warrant was required urgently and it was/was not* practicable for the application to be made in person.2* [
To be completed if the eligible issuing officer required the applicant to provide further information concerning the grounds on which the warrant was sought. ]*Further information provided by the applicant, as required by me, is attached.
*Particulars of further information orally provided by the applicant, as required by me, are as follows: [
Specify particulars. ]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant.
4 The relevant particulars of the grounds on which I relied to justify the issue of/refusal to issue [
Delete whichever is inapplicable ] the warrant are as follows: [Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5 [
To be completed if the warrant may be executed by night. ]The grounds on which I relied to justify the execution of the warrant by night are as follows—
(a)* execution of the warrant by day is unlikely to be successful,
(b)* there is likely to be less risk to the safety of any person if it is executed by night,
(c)* an occupier is likely to be on the premises only at night to allow entry without the use of force,
(d)* [
Other grounds ].
6 The search warrant was issued at [
Time ] on [Date ].
Eligible issuing officer [
[
Return this Form, together with a copy of the warrant and a copy of the occupier’s notice, to the Supreme Court registry named in the occupier’s notice.
(Clauses 4(1)(d) and 5(d))
Form 1, rather than this Form, is to be used for search warrants in relation to indictable, firearms, prohibited weapons, narcotics, child pornography or child prostitution offences or stolen goods.
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1* I am a police officer of the rank of [
Rank ] stationed at [Place of work ].2 I am authorised to apply for a search warrant under [
Insert section and name of the Act under which search warrant is sought. ]3 I have reasonable grounds for believing the following matters that justify this application for the issue of a search warrant: [
Include all those matters that justify the issue of a search warrant to enter the named premises. If an offence or breach of an Act or regulation is alleged, specify the particular offence. If the experience of the applicant or source of the information is relevant, then include this in the grounds. If space is insufficient, continue overleaf or attach a separate sheet. ]4 I seek to be able to perform the following specific functions on entry: [
Include the powers that the applicant seeks to exercise on entry. If any items are to be seized, they should be specified. If the exact location of these items is known, include that information. General powers that are given under the Act authorising the issue of the search warrant should be included if relevant. ]
[
5 The following are details of the refusal of a previous application—
6 [
Need not be completed if the previous application was made to an authorised officer who was not a Magistrate and this application is made to a Magistrate. ]The additional information that I consider justifies the making of this further application is—
Sworn/declared and affirmed* before me on [
Applicant [
Justice of the Peace [
[
[
It is an offence under section 63 of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of $11,000 or 2 years imprisonment (or both).
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the authorised officer for record purposes as if it were made in person by the applicant but not verified on oath or affirmation or by affidavit.
On [
1 [
To be completed if the application was not made in person. ]The application was made by [
Specify how application was made (eg facsimile, telephone). ] and I was/was not* satisfied that the warrant was required urgently and it was/was not* practicable for the application to be made in person.2* [
To be completed if the authorised officer required the applicant to provide further information concerning the grounds on which the warrant was sought. ]*Further information provided by the applicant, as required by me, is attached.
*Particulars of further information orally provided by the applicant, as required by me, are as follows: [
Specify particulars. ]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the warrant.
[
4 The relevant particulars of the grounds on which I relied to justify the issue of the warrant are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5 [
To be completed if the warrant may be executed by night. ]The grounds on which I relied to justify the execution of the warrant by night are as follows—
(a)* execution of the warrant by day is unlikely to be successful,
(b)* there is likely to be less risk to the safety of any person if it is executed by night,
(c)* an occupier is likely to be on the premises only at night to allow entry without the use of force,
(d)* [
Other grounds ].
6 The search warrant was issued at [
Time ] on [Date ].
Authorised officer [
Date
[
Return this Form, together with a copy of the warrant and a copy of the occupier’s notice, to the Local Court registry named in the occupier’s notice. If no occupier’s notice was issued, return this Form and a copy of the warrant to the Local Court registry at which the warrant was issued or nearest to the place at which it was issued.
(Clauses 4(1)(e) and 5(e))
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 I have been denied entry to the dwelling or have been expressly refused authority to remain in the dwelling by an occupier of the dwelling.
• communicating with, waiting for, and consulting with a friend, relative, guardian, independent person, lawyer or consular official,
• arranging for and receiving medical treatment,
• arranging and waiting for an interpreter,
• arranging and conducting an identification parade,
• resting, receiving refreshments or using toilet and other bathroom facilities,
• recovering from the effects of alcohol or drugs,
• applying for a detention warrant (to keep you in custody for more than 6 hours), search warrant or crime scene warrant relating to the investigation,
• any time taken to carry out charging procedures,
• carrying out a forensic procedure or applying for an order to carry out such a procedure.
A reference in this form to a custody manager includes a reference to a police officer who is exercising the functions of a custody manager at premises being searched under a search warrant.
(Clause 20(b))
My name is—
I am your custody manager while you are at: [
If you have any concerns about your treatment here you should tell me.
1. This form tells you about your rights when you are with police here.
2. If you cannot speak English, I will get an interpreter to help you and the investigating police will wait until the interpreter gets here.
3. While you are with police, you do not have to say or do anything, but anything you say or do may be used in evidence. Do you understand that?
4. There are some exceptions to this right not to say or do anything. If one of these exceptions applies to you, police will tell you that you are required to answer questions or do something, and will explain the particular law that requires you to answer questions or do something.
5. I will help you speak to a lawyer of your choice if you want legal advice, or if you want to ask the lawyer to come here. I will let you do this without being overheard, if it is possible in the circumstances. If your lawyer comes here, I will allow you to speak to the lawyer in private. Your lawyer may be present during any investigative procedure you participate in, such as an interview or identification parade, and give you advice.
6. I will also help you speak to a friend, relative, guardian or independent person so you can tell them where you are. I will let you do this without being overheard, if it is possible in the circumstances. You may also ask them to come here. If the person comes here, I will let you speak to that person in private. However, I do not have to allow you to speak to the person in private if doing so would be unsafe or would interfere with the investigation.
7. If you are not an Australian citizen I will help you speak to a consular official. You may ask the consular official to come here. I will let you do this without being overheard, if it is possible in the circumstances. If the consular official comes here, I will allow you to speak to the official in private.
8. The investigating police cannot ask you to do or say anything while you contact your lawyer, friend, relative, guardian, independent person or consular official, and wait for them to come here.
9. The investigating police do not have to wait for more than 2 hours for the person you have contacted to come here.
10. However, if I think that someone’s safety is at risk, I do not have to delay the investigation to allow you to contact a friend, relative, guardian or independent person, wait for that person to arrive here, or let you speak to the person once they have arrived.
11. There are also some circumstances in which I do not have to let you communicate with, or attempt to communicate with a friend, relative, guardian or independent person at all. These are if I believe on reasonable grounds that to allow you to do so is likely to result in—
(a) an accomplice of yours avoiding arrest, or
(b) the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c) hindering the recovery of any person or property concerned in the offence under investigation, or
(d) bodily injury being caused to any other person.
12. If you are under 18, an Aboriginal person or Torres Strait Islander, someone with a disability (whether physical, intellectual or some other disability) or someone from a non-English speaking background, you have other rights and there are other things I will do to help you while you are here. If you are such a person you should tell me and I will tell you more about those rights and what I will do to help you.
13. I will immediately arrange for you to get medical attention if I think it is necessary, or if you request medical treatment for reasons that appear reasonable. You have the right to reasonable refreshments and reasonable access to a toilet. You have the right to facilities to wash, shower, bathe or shave if I am satisfied that this will not interfere with the investigation.
14. I will tell you if a person claiming to be your friend, relative or guardian asks for information about where you are. I will tell that person where you are unless you do not agree, or I do not believe the person asking for information is who they claim to be. There are some other circumstances in which I do not have to tell the person where you are.
15. I will also tell you if a person claiming to be your lawyer, a consular official from your country, or a professional person concerned with your welfare, asks for information about where you are. I will tell that person where you are unless you do not agree, or I do not believe the person asking for the information is who they claim to be.
16. I will keep a record of your time here. I will let you look at the record if I reasonably can. I will give you a copy of the record when you leave.
I informed the protected suspect of the information contained on the front of this form entitled “Summary of Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 for protected suspects”, by reading it to him/her* and by giving him/her* a copy of this form.
Custody Manager [
Protected suspect: The information in this form has been read to me. I have also been given a copy of the form entitled “Summary of Part 9 of Law Enforcement (Powers & Responsibilities) Act 2002 for protected suspects”. I understand the information that I have been given.
Person in company of police [
You do not have to sign this form. Also, you do not have to agree to an electronically recorded interview if its only purpose is to record your refusal to sign.
*Name of protected suspect—
*The protected suspect declined to sign the above acknowledgment. He/she* said—
*Custody Manager [
[*
A reference in this form to a custody manager includes a reference to a police officer who is exercising the functions of a custody manager at premises being searched under a search warrant.
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 This digital evidence access order is made in connection with [
Specify warrant type and details. ]2 The [
Specify warrant type and details ] [has been issued OR will be issued at the same time as the order ]3 I have reasonable grounds for suspecting evidential material is held in, or is accessible from, [
Specify the computer ], and that4 The specified person meets the criteria of section 76AJ of the Law Enforcement (Powers and Responsibilities) Act 2002.
4A I have reasonable grounds to believe the specified person is/is not* under the age of 18 years.
[
A document signed by a police officer of the rank of Inspector or above authorising the eligible applicant to make the application must be attached to this application if the eligible applicant has reasonable grounds to believe the specified person is under the age of 18 years. ]
I rely on the following grounds in support of this application: [
[
5* The following are details of the refusal of a previous application—
6* [
The additional information that I consider justifies the making of this further application is—
I seek that a certificate pursuant to clause 14 of the Law Enforcement (Powers and
Responsibilities) Regulation 2016 be issued, on the following grounds: [
Sworn/declared and affirmed* before me on [
Eligible applicant [
Justice of the Peace [
[
[*
It is an offence under section 76AG of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of 100 penalty units or 2 years imprisonment, or both.
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the eligible issuing officer for record purposes as if it were made in person by the eligible applicant but not verified on oath or affirmation or by affidavit.
On [
1 [
To be completed if the application was made by telephone. ]The application was made by [
Specify how the application was made (eg facsimile, telephone). ] and I was/was not* satisfied that the order was required urgently and it was/was not* practicable for the application to be made in person.2 [
To be completed if the eligible issuing officer required the eligible applicant to provide further information concerning the grounds on which the order was sought. ]*Further information provided by the eligible applicant, as required by me, is attached.
*Particulars of further information orally provided by the eligible applicant, as required by me, are as follows: [
Specify particulars .]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the order.
[
4 and 5 are to be completed if the order is issued. 6 is to be completed if the order is not issued. ]4* The relevant particulars of the grounds on which I relied to justify the issue of the order are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5* The order was issued at [
Time ] on [Date ].6* The relevant particulars of the grounds on which I relied to justify the refusal to issue the order are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]
Eligible issuing officer [
[*
Return this Form, together with a copy of the order to the Local Court registry at which the order was issued or nearest to the place at which it was issued.
On [
I swear/solemnly, sincerely and truly declare and affirm* that—
1 I have reasonable grounds for suspecting the specified person is in possession of a device being a DECCD, and
2 I have reasonable grounds for suspecting the specified person is committing a DECCD offence, and
3 The making of the DECCD access order will assist law enforcement in determining whether the device is a DECCD, and
4 The specified person meets the criteria of section 80J of the Law Enforcement (Powers and Responsibilities) Act 2002.
4A I have reasonable grounds to believe the person in relation to whom it is proposed the DECCD access order will be issued is/is not* under the age of 18 years.
[
A document signed by a police officer of the rank of Inspector or above authorising the applicant to make the application must be attached to this application if the applicant has reasonable grounds to believe the person in relation to whom it is proposed the DECCD access order will be issued is under the age of 18 years. ]
I rely on the following grounds in support of this application: [
[
5 * The following are details of the refusal of a previous application—
6 * The additional information that I consider justifies the making of this further application is—
7 I seek that a certificate pursuant to clause 14 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 be issued, on the following grounds: [
Specify grounds ]
Sworn/declared and affirmed* before me on [
Applicant [
Justice of the Peace [
[
[
It is an offence under section 76AG of the Law Enforcement (Powers and Responsibilities) Act 2002 to give information in this application knowing it is false or misleading in a material particular. The maximum penalty is a fine of 100 penalty units or imprisonment for 2 years, or both.
In the case of an application by telephone (but not by facsimile), this Form of application should be completed by the magistrate for record purposes as if it were made in person by the applicant but not verified on oath or affirmation or by affidavit.
On [
1 [
To be completed if the application was made by telephone. ]The application was made by [
Specify how the application was made (eg facsimile, telephone). ] and I was/was not* satisfied that the order was required urgently and it was/was not* practicable for the application to be made in person.2 [
To be completed if the magistrate required the applicant to provide further information concerning the grounds on which the order was sought. ]*Further information provided by the applicant, as required by me, is attached.
*Particulars of further information orally provided by the applicant, as required by me, are as follows: [
Specify particulars. ]3 On considering the application I found/did not find* that there were reasonable grounds for issuing the order.
[
4 and 5 are to be completed if the order is issued. 6 is to be completed if the order is not issued. ]4* The relevant particulars of the grounds on which I relied to justify the issue of the order are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]5* The order was issued at [
Time ] on [Date ].6* The relevant particulars of the grounds on which I relied to justify the refusal to issue the order are as follows: [
Either identify or specify the relevant particulars of the grounds in the application that are relied on. If space is insufficient, continue overleaf or attach a separate sheet. ]
Magistrate [
[
Return this Form, together with a copy of the order to the Local Court registry at which the order was issued or nearest to the place at which it was issued.
clause 6(3)
[
This digital evidence access order expires on [
On [
1. to give the officer or member of staff [
Delete the reference that is not applicable ] any information or assistance reasonable and necessary to enable the officer or member of staff [Delete the reference that is not applicable ] to access data held in or accessible from [Specify the computer with particularity ],2. to give the officer or member of staff [
Delete the reference that is not applicable ] any information or assistance reasonable and necessary to allow the officer or member of staff [Delete the reference that is not applicable ] to—(a) copy data from [
Specify the computer with particularity ] to another computer, or(b) convert the data into a documentary form or another form intelligible to a computer used by the officer or member of staff [
Delete the reference that is not applicable ].
This direction may extend to requiring the specified person/specified class of persons* to provide reasonable and necessary assistance in accessing data on a computer that is secured by biometric means, for example fingerprints or retina scans.
This digital evidence access order is made in connection with [
1. reasonably suspected of having committed the offence stated in the [
Specify warrant type ], and2. the owner or lessee of the computer, and
3. an employee of the owner or lessee of the computer, and
4. a person engaged under a contract for services by the owner or lessee of the computer, and
5. a person who uses or has used the computer, and
6. a person who is or was a system administrator for the system, including the computer.
The eligible issuing officer is satisfied the specified person has/specified class of persons have* relevant knowledge of [
1. the computer or a computer network of which the computer forms or formed a part, and
2. measures applied to protect data held in, or accessible from, the computer.
This digital evidence access order is subject to the following conditions—[
1. [
Other than in relation to a digital evidence access order issued in connection with a covert search warrant ] The specified person has/specified class of persons have* the right to inspect this digital evidence access order.2. The specified person/specified class of persons* must not fail to comply with a direction given by the executing officer, in accordance with the order, as to do so may be a criminal offence. Under the Law Enforcement (Powers and Responsibilities) Act 2002, section 76AO(1)(a), the maximum penalty for failing to comply with a direction given, in accordance with the order, by the executing officer for the order without reasonable excuse is a fine of $11,000 or 5 years imprisonment (or both).
3. It is an offence under the Law Enforcement (Powers and Responsibilities) Act 2002, section 76AO(1)(b), to, without reasonable excuse, give the executing officer information that is false or misleading in a material particular, unless you inform the executing officer the information is false or misleading. The maximum penalty is a fine of $11,000 or 5 years imprisonment (or both).
4. It is not a reasonable excuse for the specified person/a person in the specified class of persons* to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the person or otherwise expose the person to a penalty.
Signed [
Date
[
[
clause 6(4)
[
This DECCD access order expires on [
On [
1. to examine [
Specify the device with particularity ], and any data accessible from the device, to determine whether the device is a dedicated encrypted criminal communication device, and2. to direct the relevant person to give the officer any information or assistance that is reasonable and necessary to enable the officer to access data held in [
Specify the device with particularity ]. This direction may extend to requiring the relevant person to provide reasonable and necessary assistance in accessing data on a computer that is secured by biometric means, for example fingerprints or retina scans.
The Magistrate is satisfied there are reasonable grounds for suspecting that the relevant person is in possession of a device suspected of being a dedicated encrypted criminal communication device and is committing an offence under the Crimes Act 1900, section 192P(1). The Magistrate considers the making of this DECCD access order will assist law enforcement in determining whether the device is a dedicated encrypted criminal communication device.
This DECCD access order is subject to the following conditions—[
1. The relevant person has the right to inspect this DECCD access order.
2. The relevant person must not fail to comply with a direction given by the officer in accordance with the order as to do so may be a criminal offence. Under the Law Enforcement (Powers and Responsibilities) Act 2002, section 80O(1)(a), the maximum penalty for failing to comply with a direction given by the officer, in accordance with the order, without reasonable excuse is a fine of $11,000 or 5 years imprisonment, or both.
3. It is an offence under the Law Enforcement (Powers and Responsibilities) Act 2002, section 80O(1)(b), to, without reasonable excuse, give the officer information that is false or misleading in a material particular, unless the relevant person informs the officer the information is false or misleading. The maximum penalty is a fine of $11,000 or 5 years imprisonment, or both.
4. It is not a reasonable excuse to fail to comply with the order or a requirement made in accordance with the order on the ground that complying with the order or the requirement would tend to incriminate the relevant person or otherwise expose the relevant person to a penalty.
Signed [
Date
[
(Clause 22)
The custody manager for a detained person or protected suspect should not put specific questions to the person regarding the person’s involvement in any offence.
The custody manager for a detained person or protected suspect should ascertain what property the person has with him or her when the person comes to the police station or other place of detention concerned, or had taken from him or her on arrest, and should arrange for safekeeping of the property if it remains at the police station or other place of detention.
In considering whether a detained person or protected suspect has a total or partial loss of his or her mental functions, or a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, the custody manager for the detained person or protected suspect should have regard to whether the person appears—
(a) to have difficulty understanding questions and instructions, or
(b) to respond inappropriately or inconsistently to questions, or
(c) to have a short attention span, or
(d) to receive a disability support pension, or
(e) to reside at a group home or institution, or be employed at a sheltered workshop, or
(f) to be undertaking education, or to have been educated at a special school or in special education classes at a mainstream school, or
(g) to have an inability to understand a caution given to the person under section 122 of the Act.
If an Aboriginal person or Torres Strait Islander who is not a child is placed in a police cell—
(a) wherever possible, that person should be accommodated with another Aboriginal person or Torres Strait Islander who is not a child, and
(b) the person should not be placed alone in the cell unless there is no reasonably practicable alternative.
An Aboriginal person or Torres Strait Islander who is a child should not be placed in a police cell except in exceptional circumstances that make it necessary for the well-being of the child.
If it is necessary to detain such a child overnight in a police cell, the custody manager for the child should arrange for a support person to remain with the child unless it is not reasonably practicable to do so.
This clause applies to a child who is not an Aboriginal person or Torres Strait Islander.
A child to whom this clause applies should not be placed in a cell unless—
(a) no other secure accommodation is available and the custody manager for the child considers that it is not practicable to supervise the child if the child is not placed in a cell, or
(b) the custody manager considers that a cell provides more comfortable accommodation than other secure accommodation in the police station.
Such a child should not be placed in a cell with a detained person or protected suspect who is not a child except in exceptional circumstances that make it necessary for the well-being of the child.
If a detained person or protected suspect is placed in a locked police cell, no additional restraint should be used within the cell unless absolutely necessary.
A police officer should bear in mind that a person with some ability in conversational English may still require an interpreter in order to ensure that the person understands his or her legal rights.
A qualified interpreter should be preferred over a person who speaks the detained person’s or protected suspect’s language but is not a qualified interpreter. A qualified interpreter is one who is accredited to professional level by the National Accreditation Authority for Translators and Interpreters in the language concerned.
An interpreter should not be used as a support person.
(Clause 51)
A police officer has the power to give directions to a person or group of people for the purpose of putting an end to certain conduct in a public place.
This Code of Practice provides police officers with guidance relating to the exercise of these powers and the rights of persons to whom directions are given.
This Code of Practice has been prescribed for the purposes of section 200A of the Law Enforcement (Powers
and Responsibilities) Act 2002 (
Police officers may give directions to a person or group of people in a public place where they believe, on reasonable grounds, that the person’s behaviour or presence or behaviour due to intoxication, constitutes certain prescribed conduct as outlined in Part 14 of the Act.
Police officers may issue the following two types of directions.
Police officers may give a direction to a person or group of people for the purpose of putting an end to certain conduct in public places. The conduct may be the person’s behaviour or presence in a public place. The circumstances in which such a direction can be given are set out in section 197 of the Act. The direction must be reasonable in the circumstances for the purpose of reducing or putting an end to the conduct. If a direction given by a police officer includes a specified period of time or location that a person must move away or end their conduct, this timeframe or location should be reasonable in the circumstances.
The direction may, but does not have to, involve a person moving on from a particular place. In many cases, it may be appropriate to give a direction aimed at putting an end to conduct, rather than simply moving the person elsewhere. A direction must be reasonable in the circumstances for the purpose of reducing or eliminating the conduct.
Where the person’s presence constitutes the relevant conduct, it is likely the direction will be a direction to move on. For example, a group of people blocking the entrance to a shop by sitting in the doorway are, by their presence, obstructing other people. The obstruction itself may constitute relevant conduct.
Police officers may give a direction to an intoxicated person to move on from a public place in circumstances set out in section 198 of the Act.
Section 198 of the Act provides that a police officer may give a direction if the police officer believes on reasonable grounds that the person’s behaviour in the place as a result of the intoxication—
(a) is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or
(b) is disorderly.
Also, section 198 of the Act requires a direction to be reasonable in the circumstances for the purpose of—
(a) preventing injury or damage or reducing or eliminating a risk to public safety, or
(b) preventing the continuance of disorderly behaviour in a public place.
In exercising this power, police officers are reminded of the additional requirement to warn a person that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given.
For the purposes of section 198 of the Act, a person is intoxicated if—
(a) the person’s speech, balance, co-ordination or behaviour is noticeably affected, and
(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug.
In accordance with section 199 of the Act, it is an offence for a person to refuse or fail to comply with a direction given by a police officer without a reasonable excuse. A failure to do so can result in a fine up to $220.
Further to this, failure to comply with a move on direction for being intoxicated and disorderly is an offence under section 9 of the Summary Offences Act 1988 and can result in a court imposed fine of up to $1,650.
A police officer cannot give a direction under Part 14 of the Act in relation to industrial disputes.
A police officer cannot give a direction under Part 14 of the Act in relation to an apparently genuine demonstration or protest, or a procession or an organised assembly unless—
(a) the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or any other person, or
(b) the demonstration, protest, procession or assembly is obstructing traffic and is not an authorised public assembly for the purposes of Part 4 of the Summary Offences Act 1988 (or is not being held substantially in accordance with any such authorisation), the police officer in charge at the scene has authorised the giving of directions and the direction is limited to the persons who are obstructing traffic.
When giving a direction under sections 197 and 198 of the Act, police officers must comply with the safeguard requirements set out in Part 15 of the Act.
The key safeguards in Part 15 of the Act are as follows—
(a) a police officer must provide evidence that the police officer is a police officer (if not in uniform) and provide the officer’s name and place of duty and the reason for the exercise of a power to which Part 15 of the Act applies (see section 202 of the Act),
(b) a police officer must warn a person that the person is required by law to comply with a direction, requirement or request that the officer has given or made in exercising a power to which Part 15 of the Act applies (see section 203 of the Act),
(c) a person does not commit an offence under the Act of failing to comply with a direction, requirement or request given or made by a police officer under or in connection with a power to which Part 15 applies unless the obligations under that Part are complied with when exercising the power (see section 204B of the Act).
In addition, when a police officer gives a direction under section 198 of the Act (being a direction on the grounds that the person is intoxicated and disorderly in a public place), the officer must warn the person that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. This warning is in addition to any warning required under Part 15 of the Act.
Police officers are also encouraged to consider the other relevant legislation and the NSW Police Force Code of Conduct and Ethics in determining what action is appropriate. Finally, a police response may be guided by NSW Police Force operational policies and procedures and the NSW Police Force Handbook.
Expressions defined in the Act have the same meaning for this Code of Practice.
Law Enforcement (Powers and Responsibilities) Regulation 2016 (544). LW 26.8.2016. Date of commencement, 1.9.2016, cl 2. This Regulation has been amended as follows—
(643) | Law Enforcement (Powers and Responsibilities) Amendment (Directions under Part 14) Regulation 2016. LW 28.10.2016. Date of commencement, 1.11.2016, cl 2. | |
No 61 | Law Enforcement Conduct Commission Act 2016. Assented to 14.11.2016. Date of commencement of Sch 6.33, 1.7.2017, sec 2 (1) and 2017 (256) LW 16.6.2017. | |
(675) | Law Enforcement (Powers and Responsibilities) Amendment (Police Reorganisation) Regulation 2017. LW 1.12.2017. Date of commencement, 3.12.2017, cl 2. | |
(113) | Law Enforcement (Powers and Responsibilities) Amendment (Crime Scenes in Rural Areas) Regulation 2018. LW 29.3.2018. Date of commencement, 30.3.2018, cl 2. | |
No 29 | Justice Legislation Amendment Act (No 2) 2018. Assented to 21.6.2018. Date of commencement of Sch 2, assent, sec 2 (1). | |
(544) | Law Enforcement (Powers and Responsibilities) Amendment (Stock Mustering Orders) Regulation 2018. LW 14.9.2018. Date of commencement, 15.9.2018, cl 2. | |
No 10 | Justice Legislation Amendment Act 2019. Assented to 26.9.2019. Date of commencement of Sch 1.16, 6.12.2019, sec 2(2) and 2019 (585) LW 6.12.2019. | |
(500) | Law Enforcement (Powers and Responsibilities) Amendment (Custody Notification Service) Regulation 2019. LW 11.10.2019. Date of commencement, on publication on LW, cl 2. | |
No 46 | Dedicated Encrypted Criminal Communication Device Prohibition Orders Act 2022. Assented to 18.10.2022. Date of commencement, 1.2.2023, sec 2. | |
No 47 | Law Enforcement (Powers and Responsibilities) Amendment (Digital Evidence Access Orders) Act 2022. Assented to 18.10.2022. Date of commencement, 1.2.2023, sec 2. | |
(29) | Law Enforcement (Powers and Responsibilities) Amendment (Organised Crime) Regulation 2023. LW 1.2.2023. Date of commencement, 1.2.2023, sec 2. |
Cl 4 | Am 2019 No 10, Sch 1.16[1]–[3]; 2022 No 46, Sch 4.2[1]; 2022 No 47, Sch 2[1] [2]; 2023 (29), Sch 1[1] [2]. |
Cl 5 | Am 2023 (29), Sch 1[3] [4]. |
Cl 6 | Am 2022 No 46, Sch 4.2[2]; 2022 No 47, Sch 2[3] [4]; 2023 (29), Sch 1[5] [6]. |
Cl 13 | Am 2022 No 46, Sch 4.2[3]; 2022 No 47, Sch 2[5]–[8]; 2023 (29), Sch 1[7]. |
Cl 18 | Am 2017 (675), Sch 1 [1]. |
Cl 37 | Am 2019 (500), cl 3. |
Cl 48 | Am 2017 (675), Sch 1 [2] [3]. Subst 2018 (113), cl 3. |
Cl 52A | Ins 2018 (530), cl 3. |
Sch 1 | Am 2016 No 61, Sch 6.33; 2018 No 29, Sch 2.11; 2019 No 10, Sch 1.16[4] [5]; 2022 No 46, Sch 4.2[4]; 2022 No 47, Sch 2[9]; 2023 (29), Sch 1[8]–[23]. |
Sch 3 | Am 2016 (643), cl 3. |
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0
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