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Control of Weapons Amendment Bill
2010
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill, which is to amend the Control of
Weapons Act 1990 (the Principal Act)--
· to create new offences to prohibit the sale of prohibited
weapons to children and the purchase by children of
controlled or prohibited weapons;
· to allow infringement notices to be served for certain
offences under the Principal Act;
· to enhance powers and procedures under the Principal
Act relating to exemptions granted by the Governor in
Council and approvals granted by the Chief
Commissioner and searches for weapons in public
places; and
· to provide that certain amendments in the Bill relating
to unplanned designations of search areas will sunset
after 3 years.
Clause 2 provides for the commencement of the Bill.
Subclause (1) specifies that the Bill, excepting section 22,
commences operation on a day or days to be proclaimed.
Subclause (2) provides that any provision not proclaimed by
1 July 2011 will commence on that date.
Subclause (3) provides that section 22 commences operation on
the day 3 years after the day on which clause 13 came into
operation. Under this sunset provision, the amendments to
section 10E of the Principal Act made by clause 13 of the Bill
will cease to have effect, and section 10E in its original form,
561517 1 BILL LA INTRODUCTION 27/5/2010
save for the retention of new subsection (1A) (inserted into
section 10E by clause 13(1) of the Bill, will be reinstated.
Clause 3 specifies that the Control of Weapons Act 1990 is called the
Principal Act in the Bill.
Clause 4 inserts in section 3(1) of the Principal Act a definition of child,
which means a person under the age of 18 years.
Clause 5 amends section 5 of the Principal Act to insert new offences and,
as a consequence, recast certain existing offences as separate
offences.
Subclause (1) substitutes the word "manufacture" for the words
"manufacture, sell or purchase" in section 5(1)(c). The purpose is
to excise from section 5(1)(c) the existing offences relating to
unlawfully selling or purchasing prohibited weapons, and enable
them to be recast as separate offences.
Subclause (2) inserts several new subsections after section
5(1)(c) of the Principal Act.
New section 5(1AA) makes it a separate offence for a person to
sell a prohibited weapon to a person (other than to a child)
without an exemption under section 8B or an approval under
section 8C. This existing offence was previously located in
section 5(1)(c). It has been recast as a separate offence to make
it easier to distinguish it from the offence under new section
5(1AC) prohibiting the sale of a prohibited weapon to a child.
The maximum penalty is the existing penalty, which is
240 penalty units or imprisonment for 2 years.
New section 5(1AB) makes it an offence for a person (other than
a child) to purchase a prohibited weapon without an exemption
under section 8B or an approval under section 8C. This existing
offence was previously located in section 5(1)(c). It has been
recast as a separate offence to make it easier to distinguish it
from the offence under new section 5(1AD) prohibiting the
purchase of a prohibited weapon by a child. The maximum
penalty is the existing penalty, which is 240 penalty units or
imprisonment for 2 years.
New section 5(1AC) makes it an offence for a person to sell
a prohibited weapon to a child. This is a new offence.
The maximum penalty is 240 penalty units or imprisonment for
2 years.
New section 5(1AD) makes it an offence for a child to purchase a
prohibited weapon. This is a new offence. The maximum
penalty is 25 penalty units.
2
Clause 6 inserts two new offences into section 6 of the Principal Act.
The clause inserts new subsection (1AA) after section 6(1) of
the Principal Act. This new subsection makes it an offence for a
child to purchase a controlled weapon. The maximum penalty is
12 penalty units.
The clause also inserts new section 6(1AB) into the Principal
Act. This new subsection makes it an offence for a person to sell
a controlled weapon to another person knowing that the other
person is a child. The maximum penalty is 20 penalty units.
Clause 7 inserts new wording and provisions in section 8B of the Principal
Act to clarify the operation and scope of exemptions that may be
issued by the Governor in Council under that section.
Subclause (1) inserts new wording in section 8B(1)(a) of the
Principal Act as a consequence of the offences created under new
sections 5(1AC) and 5(1AD). The insertion is made to ensure
that the Governor in Council cannot exempt a class of persons or
class of prohibited weapons, or exempt a corrections officer,
military officer or police officer, from new section 5(1AC),
which prohibits the sale of prohibited weapons to children, or
new section 5(1AD), which prohibits children from buying
prohibited weapons. It is intended that no exemption from the
operation of these new offences will be able to be made.
Subclause (2) inserts a new subsection (3) after section 8B(2).
The new subsection specifies that an exemption granted by the
Governor in Council in respect of a class of person or persons
may include a condition that the exemption does not apply to a
person until that person has been a member of that class for a
specified minimum period of up to 6 months. The intention is to
allow the Governor in Council to impose a waiting period as a
condition of an exemption, whereby members of an exempted
class of persons, such as an exempted club or association, may be
required to be members of the exempted class, club or association
for a specified period, up to a maximum of 6 months, before
being able to undertake activities authorised by the exemption.
Subclause (2) also inserts a new subsection (4) into section 8B, to
specify that an exemption may be granted by the Governor in
Council for a specified period or indefinitely, and may be varied
or revoked by the Governor in Council at any time. The intention
is to clarify powers that may be exercised by the Governor in
Council in relation to exemptions.
3
Clause 8 substitutes wording in section 8C(1) of the Principal Act as a
consequence of the offences created under new sections 5(1AC)
and (1AD). The substitution is made to ensure that the Chief
Commissioner of Police cannot grant an approval to a person to
sell a prohibited weapon to a child, which is an offence under
new section 5(1AC), or grant an approval to a child to purchase
a prohibited weapon, which is an offence under new section
5(1AD). It is intended that no approval exempting a person from
the operation of these new offences will be able to be granted.
Clause 9 inserts new section 9A in the Principal Act to provide a process
for the forfeiture of controlled weapons when they are seized
from persons served with infringement notices for offences
relating to the unlawful possession, carriage or use of a controlled
weapon, or the purchase of a controlled weapon by a child.
New section 9A(1) specifies the circumstances in which the
forfeiture process set out in new section 9A applies.
The circumstances are if a police member has served an
infringement notice under section 6(1), new section 6(1AA)
or section 6(1A) of the Principal Act, and seizes a controlled
weapon to which the offence relates.
New section 9A(2) provides that the controlled weapon which
has been seized is forfeited to the Crown.
New section 9A(3) sets out the circumstances in which the
controlled weapon may be sold or destroyed. These include if
the recipient of the infringement notice pays the penalty or
commences a payment plan to pay the penalty. This subsection
does not apply to the exceptions described in new section 9A(4).
New section 9A(4) sets out the circumstances in which new
section 9A(3) does not apply, including if the recipient of the
infringement notice elects to have the matter heard in the
Magistrates' Court or the Children's Court.
New section 9A(5) specifies the circumstances in which a
controlled weapon must be returned to the recipient of the
infringement notice, including if the member of the police force
withdraws the infringement notice without referring the matter to
the Magistrates' Court, or if the Magistrates' Court cancels the
infringement notice. This subsection does not apply in the
circumstances described in new section 9A(6).
New section 9A(6) specifies that new section 9A(5), which sets
out the circumstances in which controlled weapons must be
returned to the recipient of the infringement notice, does not
apply if the controlled weapon has been sold or destroyed under
new section 9A(3).
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New section 9A(7) specifies the various requirements set out in
section 9 of the Principal Act which apply to the return of a
controlled weapon under new section 9A(5).
Clause 10 amends section 10A of the Principal Act in relation to the
requirement for a member of the police force to maintain records
of the searches conducted pursuant to section 10G of the
Principal Act and in relation to the entitlement for persons who
are searched to obtain a copy of that record.
Section 10A(1) of the Principal Act requires that a member of
the police force who conducts a search under section 10 and
section 10G must make a written record of the search, containing
particulars that are prescribed under the Control of Weapons
Regulations 2000.
A search conducted under section 10 is a search without warrant
where the police member has reasonable grounds to suspect that
a person is carrying or has in their possession, a weapon contrary
to the Principal Act.
Section 10G of the Principal Act provides police with the power
to search persons in designated areas without warrant. This
pertains to all forms of searches, as set out in Schedule 1 to the
Principal Act, in areas designated for the purpose of searching,
whether planned or unplanned and includes the power to conduct
strip searches.
Subclause (1) amends section 10A(1) to require a member of the
police to force to make a written record only in relation to strip
searches conducted under section 10G. Searches conducted
under section 10 of the Principal Act are not affected by the
amendment and members of the police force will continue to be
required to make records of searches under section 10.
Subclause (2) amends section 10A(3) to provide that only a
person subjected to a strip search under section 10G is entitled,
on request and without charge, to a copy of the record of the
search. The request is still required to be made not later than
1 year after the date of the search. Searches conducted under
section 10 of the Principal Act are not affected by the amendment
and the entitlement to the record of search will continue to apply.
Clause 11 amends the provisions in relation to the reporting requirements
imposed on the Chief Commissioner in section 10B of the
Principal Act.
Section 10B requires the Chief Commissioner to report to the
Minister on searches conducted without warrant. In particular,
section 10B(a) requires the Chief Commissioner to provide a
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report on the number of searches without warrant under
section 10 conducted in that financial year and section 10B(ab)
requires a report to be provided to the Minister on the number of
strip searches conducted under section 10G (Power to search
persons in designated areas) during that financial year.
Subclause (1) inserts new paragraphs (ac) and (ad) into
section 10B of the Principal Act. New paragraph (ac) now
requires the Commissioner to report the number of strip searches
conducted under section 10G during that financial year, in
any area subject to a planned designation declaration under
section 10D which was in operation at the time of the search.
By inserting paragraph (ad) into section 10B, the Chief
Commissioner's reporting obligations now also extend to the
number of strip searches conducted under section 10G during that
financial year in any area subject to an unplanned designation
declaration under section 10E in operation at the time of the
search.
Subclause (2) amends section 10B(b) of the Principal Act to
require the Chief Commissioner to report on the number and type
of weapon and dangerous articles found during the course of
searches conducted without warrant under section 10 of the
Principal Act and in the course of strip searches conducted under
section 10G of the Principal Act.
Subclause (3) inserts new paragraphs (ba), (bb), (bc) and (bd)
into section 10B of the Principal Act to require the Chief
Commissioner to report on the number of people who were
charged with an offence under the Principal Act in respect of a
weapon or dangerous article found during the conduct of a strip
search or a search other than strip search.
New paragraph (ba) imposes upon the Chief Commissioner an
obligation to report to the Minister the number of people who
were subject to a strip search under section 10G of the Principal
Act in that financial year and were charged with an offence
against the Principal Act in respect of a weapon or dangerous
article found as a result of that strip search.
New paragraph (bb) also requires the Chief Commissioner to
report on the number of people who were subject to a strip search
under section 10G of the Principal Act in that financial year in
any area subject to a planned designation declaration under
section 10D of the Principal Act that was in effect at the time of
the search and were charged with an offence against the Principal
Act in respect of a weapon or dangerous article found as a result
of the search.
6
The new paragraph (bc) states that the Chief Commissioner is to
provide a report to the Minister on the number of people who
were subject to a strip search under section 10G of the Principal
Act in the financial year in any area which was subject to an
unplanned designation declaration under section 10E of the
Principal Act which was in effect at the time of the search and
were charged with an offence against the Principal Act in respect
of a weapon or dangerous article found as a result of the search.
New paragraph (bd) requires the Chief Commissioner to report to
the Minister on the number of people who were subject to a
search under section 10G of the Principal Act in any financial
year and were charged with an offence against the Principal Act
in respect of a weapon or dangerous article found as a result of
the search.
Clause 12 amends section 10D in relation to the planned designation of
search areas in relation to clarifying the meaning of "likelihood"
in section 10D(1) and by making additional provisions for
declarations made in respect of events.
Section 10D(1) establishes the threshold test that applies to
certain criteria to which the Chief Commissioner or delegate
must have regard to in determining whether to make a declaration
designating an area for the purpose of police conducting random
searches. The Chief Commissioner must be satisfied that--
· in that area--
· more than one incident of violence or disorder
involving weapons has occurred over the
previous 12 months; or
· an event is to be held and there have been
incidents of violence or disorder involving
weapons on previous occasions of the event
taking place (wherever that event may have
previously taken place); and
· there is a likelihood that the violence or disorder will
recur.
Subclause (1) inserts new section 10D(1A) into the Principal Act
to clarify that the term "likelihood" in section 10D(1) is not to be
interpreted to mean "more likely than not". It is not intended that
the Chief Commissioner or delegate must be satisfied that the
likelihood is greater than 50 per cent. The amendment provides
that the Chief Commissioner may determine under section
10D(1) that there is a likelihood that violence or disorder
7
involving the use of weapons will recur even if that likelihood is
less than more likely than not.
In relation to events, the amendments to section 10D of the
Principal Act are intended to cover events such as, but not limited
to, music festivals and sporting and other events which may be
held over an extended duration and includes events that take
place over a number of consecutive days.
Subclause (2) amends section 10D(3) of the Principal Act which
imposes limits on the period of operation of a declaration made
under section 10D. This provision is amended to exclude a
declaration in relation to an event from the operation of the time
limits imposed in this section. Accordingly, section 10D(3) will
now only apply to a planned designation which is not in relation
to an event.
Subclause (3) inserts subsection (3A) into section 10 of the
Principal Act. This provides that a declaration made in relation
to an event may operate for more than one period.
Subclause (3) also inserts subsection (3B) into section 10 of the
Principal Act and confirms that each period of operation of a
declaration made in relation to an event must be during the event.
An example is inserted into this section which clarifies the
intended operation of this provision. The example provides that
"if an event takes place from 10 am to midnight on two
consecutive days, a declaration made in relation to that event
must not operate
· before 10 a.m. on the first day; or
· between midnight and 10 a.m. on the second day; or
· after midnight on the second day".
Subclause (4) amends section 10D(5)(d) which requires that
the notice published by the Chief Commissioner or a delegate
in relation to the declaration of an area under section 10D,
must specify the period of operation of the declaration.
Amendments to this section ensure that the notification
requirements now extend to multiple periods of operation for a
declaration made in respect of an event.
Subclause (5) inserts paragraph (e) following section 10D(5)(d)
of the Principal Act. This requires that if a declaration was made
in relation to an event, the notice to be published by the Chief
Commissioner or delegate, must specify event to which the
declaration was made.
8
Subclause (6) amends section 10D(6) of the Principal Act to
require that the declaration is to have effect for the period or
periods specified in the notice, which or the earliest of which
must not be less than 7 days after the date of publication in the
Gazette.
Subclause (7) repeals section 10D(7) of the Principal Act.
Section 10D(7) provided that a declaration under section 10D
ceases to have effect at the time specified in the notice. This is
no longer required because of the changes to section 10D(6).
Subclause (8) amends section 10D(8) of the Principal Act to
provide that if a declaration (the earlier declaration) is made
under section 10D in respect of an area, a further declaration
under this section cannot take effect in respect of that area until
after the end of the period of 10 days after the end of the period,
or the last of the periods, of operation of the earlier declaration.
Subclause (9) amends section 10D(9) of the Principal Act to
clarify that nothing in subsection 10D(8) prevents a declaration
being made for an unplanned designation of search area under
section 10E of the Principal Act, in respect of that area for the
10-day period after the earlier declaration ceases to have effect.
Clause 13 amends the requirements under section 10E relating to unplanned
designation of search areas.
Subclause (1) substitutes a new section 10E(1) into the Principal
Act. This establishes the test which must be satisfied in order for
the Chief Commissioner or delegate to declare an area to be
designated under these provisions.
The amendments are intended to ensure that unplanned
designations are not limited to only the most urgent of
circumstances but will also be available where it is appropriate to
conduct a random search for weapons, within a day or number of
days. The Chief Commissioner or delegate will be able to, in
writing, declare an area to be a designated area if--
· the Chief Commissioner is satisfied that
· there is a likelihood that unlawful possession,
carriage or use of weapons or violence or
disorder involving weapons will occur in that
area during the period of operation of the
declaration; and
9
· it is necessary to designate the area for the
purpose of enabling members of the police force
to exercise search powers to prevent or deter the
unlawful possession, carriage or use of weapons
or violence or disorder involving weapons; or
· the Chief Commissioner is satisfied that
· more than one incident of unlawful possession,
carriage or use of weapons or violence or
disorder involving weapons has occurred in that
area in the previous 12 months; and
· there is a likelihood that the unlawful possession,
carriage or use of weapons or the violence or
disorder involving weapons will recur.
Subclause (2) inserts new section 10E(1A) into the Principal Act
to clarify that the term "likelihood" in new section 10E(1) is not
to be interpreted to mean "more likely than not". It is not
intended that the Chief Commissioner or delegate must be
satisfied that the likelihood is greater than 50 per cent.
The amendment provides that the Chief Commissioner may
determine under section 10E(1) that there is a likelihood that
violence or disorder involving the use of weapons will recur even
if that likelihood is less than more likely than not.
Subclause (3) amends section 10E(3) of the Principal Act to
require that an area designated under this provision must not be
larger than is reasonably necessary to enable members of the
police force to effectively prevent or deter the unlawful
possession and carriage or use of weapons or respond to the
threat of violence or disorder. The existing provision does not
refer to the "unlawful possession, carriage or use of weapons".
With the introduction of this concept in section 10E(1), it has
become necessary to clarify the application of subsection (3).
Subclause (4) amends section 10E(4)(a) of the Principal Act to
ensure that the period of a declaration made under section 10E
is no longer than is reasonably necessary to enable members of
the police force to effectively prevent or deter the unlawful
possession and carriage or use of weapons or respond to the
threat of violence or disorder. The existing provision does not
refer to the "unlawful possession, carriage or use of weapons".
With the introduction of this concept in section 10E(1), it has
become necessary to clarify the application of subsection (4).
10
Clause 14 amends section 10F of the Principal Act to provide that the Chief
Commissioner may only delegate the powers under section 10D
(Planned designations of search area) and section 10E
(Unplanned designations of search area) to a member of the
police force of or above the rank of Assistant Commissioner of
Police. Previously, this delegation could be made to a member
of the police force of or above the rank of inspector.
This amendment ensures that the powers under sections 10D
and 10E are exercised following an appropriate level of scrutiny.
Clause 15 inserts new sections 11B and 11C into the Principal Act.
New section 11B(1) empowers a member of the police force to
serve an infringement notice on any person who he or she has
reason to believe has committed an offence against section 6(1),
(1AA) or (1A) of the Principal Act.
Section 6(1) of the Principal Act prohibits a person from
possessing, carrying or using a controlled weapon without a
lawful excuse. New section 6(1AA) prohibits a child from
purchasing a controlled weapon and section 6(1A) prohibits a
person from possessing, carrying or using a controlled weapon
without a lawful excuse in a licensed premises on in a public
place in the immediate vicinity of a licensed premises.
New section 11B(2) states that an infringement notice in respect
of an offence against the relevant provisions must not be served
on a person who is under 16 years of age at the time of the
alleged offence.
New section 11B(3) confirms that an offence for which an
infringement notice may be served is an infringement offence
within the meaning of the Infringements Act 2006.
New section 11C of the Principal Act establishes the
infringement penalties applicable for an offence against
sections 6(1), (1AA) and (1A). The amount payable for an
alleged offence for which an infringement notice may be served
is--
· $1000 for an offence against section 6(1) (possessing,
carrying or using a controlled weapon in a public place);
· 2 penalty units for an offence against new section
6(1AA) (child purchasing a controlled weapon);
· $2000 for an offence against section 6(1A) (possessing,
carrying or using a controlled weapon without lawful
excuse in a licensed premises or in a public place in the
immediate vicinity of a licensed premises).
11
Clause 16 inserts a new section 16 into the Principal Act to provide for
transitional arrangements in relation to Governor in Council
exemptions granted under section 8B and Chief Commissioner
approvals granted under section 8C of the Principal Act and in
relation to the infringement provisions under new sections 11B
and 11C.
Under section 8B of the Principal Act the Governor in Council
may, by order published in the Government Gazette, exempt a
class of persons or a class of weapons or body armour from the
constraints that would otherwise apply in relation to prohibited
weapons (under section 5 of the Principal Act) and body armour
(section 8A of the Principal Act).
Under section 8C, subject to certain exclusions, the Chief
Commissioner of Police may grant an approval to a person to
do anything that is otherwise prohibited by any provision of
section 5 of the Principal Act regarding prohibited weapons (with
the exception of section 5(1AC) or (1AD) as a result of the
changes to be made by clause 8 of the Bill) or section 8A of the
Bill regarding body armour.
New section 16(1)(a) clarifies that no class of persons or class of
prohibited weapons covered by a Governor in Council exemption
that was granted pursuant to section 8B(1) of the Principal Act
prior to the commencement of clause 7 is exempt from the
prohibitions applicable under new section 5(1AC) or (1AD).
New section 5(1AC) prohibits a person from selling a prohibited
weapon to a child and new section 5(1AD) prohibits a child from
purchasing a prohibited weapon.
By inserting new section 16(1)(b) into the Principal Act the
amendment clarifies that a Governor in Council exemption
granted pursuant to section 8B(1) of the Principal Act, prior to
the commencement of the new section 7, may be varied or
revoked by the Governor in Council under new section 8B(4).
New section 16(2) clarifies that an approval granted by the Chief
Commissioner before the commencement of clause 8 of the Bill
does not allow any activity prohibited by new section 5(1AC)
or (1AD). New section 5(1AC) prohibits a person from selling a
prohibited weapon to a child and new section 5(1AD) prohibits a
child from purchasing a prohibited weapon.
New section 16(3) confirms that infringement provisions
introduced under section 11B and 11C only apply to offences
which are alleged to have been committed on or after the
commencement of clause 15 of the Bill.
12
New section 16(4) clarifies that for the purposes of subsection
(3), if an offence is alleged to have been committed between two
dates and section 15 of the Control of Weapons Amendment
Act 2010 commences on a date between those two dates, the
offence is alleged to have been committed before the
commencement of that provision.
Clause 17 amends clause 2 of Schedule 1 to the Principal Act in relation to
the definitions of child, transgender person and planned
designation search.
Paragraph (a) repeals the definitions of child and transgender
person from clause 2 of Schedule 1. The definition of child has
been inserted into section 3(1) of the Principal Act.
Paragraph (b) inserts a definition of planned designation search
into clause 2 of Schedule 1 to the Principal Act meaning a search
conducted under section 10G in an area in respect of which a
declaration under section 10D is in effect. A note is also inserted
to confirm that section 10D provides for the planned designation
of a search area.
Clause 18 amends clause 9 of Schedule 1 to the Principal Act in relation to
the requirements applicable for strip searches.
Subclause (1) substitutes a new clause 9(9) of Schedule 1 which
requires that a strip search must be conducted by a member of the
police force, or a person under the direction of a member of the
police force who is of
· the same sex as the person being searched; or
· if the person being searched identifies as a member of a
particular gender, that gender.
Subclause (2) substitutes a new clause 9(10) of Schedule 1,
requiring that the strip search must not be conducted in the
presence or view of a person who is not of
· the same sex of the person being searched; or
· if the person being searched identifies as a particular
gender, that gender.
Subclause (3) omits the word "transgender" from clause 9(12) of
Schedule 1 to the Principal Act.
13
Clause 19 amends clause 11 of Schedule 1 to the Principal Act in respect of
the rules applicable to searches of children.
Subclause (1) amends clause 11(3) of Schedule 1 to the Principal
Act require that a planned designation search of a child must be
conducted in the presence of
· a parent or guardian of the child being searched; or
· if the child is mature enough to express an opinion and
indicates that the presence of the parent or guardian is
not acceptable to the child, in the presence of an
independent person who is capable of representing the
interests of the child and who, as far as is practicable in
the circumstances, is acceptable to the child.
By substituting "planned designation search" for "search" in
clause 11(3) the amendment ensures that these requirements only
apply to planned designation searches.
Subclause (2) inserts a new clause 11(5) into Schedule 1 to the
Principal Act which covers searches of children in relation to
any search which is not a planned designation search.
The amendment requires that a search (other than a planned
designated search) of a child must if practicable the
circumstances, be conducted in the presence of
· a parent or guardian of the child being searched; or
· if it is not practicable in the circumstances for a parent
or guardian of the child to be present, any person
(whether or not he or she is a member of the police
force) other than a member of the police force who is
conducting the search.
Clause 20 amends clause 12 of Schedule 1 to the Principal Act in respect of
rules for searches of persons with impaired intellectual
functioning.
Subclause (1) amends clause 12(3) of Schedule 1 to the Principal
Act to require that a planned designation search of a person who
has impaired intellectual functioning must be conducted in the
presence of a parent or guardian of the person being searched or,
if that is not acceptable to the person, in the presence of an
independent person who is capable of representing the interests
of the person and who, as a far as is practicable in the
circumstances, is acceptable to the person.
14
Subclause (2) inserts a new clause 12(5) into Schedule 1 to the
Principal Act which establishes new requirements for searches
conducted on persons with impaired intellectual functioning in
any search other than a planned designation search. The new
provision requires that a search (other than a planned designation
search) of a person who has impaired intellectual functioning
must, if practicable in the circumstances, be conducted in the
presence of--
· a parent or guardian of the person being searched; or
· if it is not practicable in the circumstances for a parent
or guardian of the person to be present, any person
(whether or not he or she is a member of the police
force) other than a member of the police force who is
conducting the search.
Clause 21 makes technical amendments to fix typographical errors in
sections 3, 10I(3)(d) and 10L(b) of the Principal Act, and
clauses 1 and 9(1) of Schedule 1 to the Principal Act.
Clause 22 provides for the sunsetting of amendments made by clause 13
of the Bill to provisions relating to unplanned designations of
search areas in section 10E of the Principal Act. By virtue of
clause 2(3) of the Bill, these amendments will sunset three years
from the day they commence operation. This will allow a review
of the effectiveness of the provisions, to determine whether they
are still necessary.
Subclause (1) substitutes section 10E(1) of the Principal Act,
which incorporates the amendments made by clause 13 of the
Bill, with the former version of section 10E(1) as it was
immediately prior to the commencement of clause 13.
The intention is that the amendments made by clause 13 to
broaden the criteria for the declaration of unplanned designations
of search areas will cease to have effect three years from the date
of their commencement, and that the criteria in section 10E(1)
will revert to their original form at that time.
Subclause (2) omits wording in new section 10E(1A), inserted
into the Principal Act by clause 13 of the Bill, to remove
references to additional criteria for declaring unplanned
designations, consistent with the intention that these additional
criteria will cease to have effect. The remainder of the
subsection, which clarifies how the Chief Commissioner may
interpret the term "likelihood", will be retained.
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Subclause (3) amends section 10E(3) of the Principal Act by
omitting words inserted by clause 13 of the Bill. This will ensure
that a reference to an additional criterion for declaring unplanned
designations, which has been inserted as a consequence of
changes made to the criteria for declaring unplanned
designations, will cease to have effect and section 10E(3) will
revert to its original form.
Subclause (4) amends section 10E(4) of the Principal Act by
omitting words inserted by clause 13 of the Bill. This will ensure
that a reference to an additional criterion for declaring unplanned
designations, which has been inserted as a consequence of the
changes made to the criteria for declaring unplanned
designations, will cease to have effect and section 10E(4) will
revert to its original form.
Clause 23 provides for the automatic repeal of this amending Bill on 1 July
2015. The repeal of this Bill will not affect in any way the
operation of the amendments made by this Bill (see section 15(1)
of the Interpretation of Legislation Act 1984).
The automatic repeal date is longer than the usual period of 12
months as a result of the inclusion of a sunset provision in the
Bill.
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