New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Identification Legislation Amendment
Bill 2011
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Law Enforcement (Powers and
Responsibilities) Act 2002 No 103 3
Schedule 2 Amendment of other legislation 8
b2011-082-94.d19
New South Wales
Identification Legislation Amendment
Bill 2011
No , 2011
A Bill for
An Act to amend certain legislation to enable police officers and certain other public
officials to require the removal of face coverings for identification purposes; to
enable police officers to request the identities of persons in connection with the
giving of move on directions; and to provide for identification procedures in
connection with statutory declarations and affidavits.
Clause 1 Identification Legislation Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Identification Legislation Amendment Act 2011. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
Page 2
Identification Legislation Amendment Bill 2011
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
No 103
Schedule 1 Amendment of Law Enforcement 1
(Powers and Responsibilities) Act 2002 2
No 103 3
[1] Section 3 Interpretation 4
Insert in alphabetical order in section 3 (1): 5
face means a person's face: 6
(a) from the top of the forehead to the bottom of the chin, and 7
(b) between (but not including) the ears. 8
face covering means an item of clothing, helmet, mask or any 9
other thing that is worn by a person and prevents the person's face 10
from being seen (whether wholly or partly). 11
[2] Part 3, Division 1, heading 12
Omit "power" from the heading. Insert instead "powers". 13
[3] Section 11 Identity may be required to be disclosed 14
Omit the note at the end of the section. 15
[4] Section 11 (2) 16
Insert at the end of the section: 17
(2) A police officer may request a person whose identity is unknown 18
to the officer to disclose his or her identity if the officer proposes 19
to give a direction to the person in accordance with Part 14 for the 20
person to leave a place. 21
Note. Section 201 sets out safeguards relating to requests made under 22
this section. 23
[5] Part 3, Division 4 24
Insert after Division 3: 25
Division 4 Removal of face coverings for identification 26
purposes 27
19A Power of police officer to require removal of face coverings for 28
identification purposes 29
(1) A police officer may require a person to remove any face 30
covering worn by the person so as to enable the officer or another 31
police officer to see the person's face if: 32
(a) the person has been lawfully required (whether under this 33
or any other Act or a statutory instrument) by the officer 34
Page 3
Identification Legislation Amendment Bill 2011
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
No 103
requiring the removal of the covering to provide 1
photographic identification, or 2
(b) the person has otherwise been lawfully required (whether 3
under this or any other Act or a statutory instrument) by the 4
officer requiring the removal of the covering to identify 5
himself or herself or provide other identification 6
particulars. 7
Note. Section 201 and subsection (3) set out safeguards relating to such 8
a requirement. 9
(2) A requirement may be made of a person under this section based 10
on a lawful requirement of a kind referred to in subsection (1) (a) 11
or (b) whether or not the person has complied with that lawful 12
requirement. 13
(3) A police officer who requires a person to remove a face covering 14
under this section must, as far as is reasonably practicable, ensure 15
that the following procedures are followed: 16
(a) the police officer must ask for the person's co-operation, 17
(b) the viewing of the person's face must be conducted: 18
(i) in a way that provides reasonable privacy for the 19
person if the person requests privacy, and 20
(ii) as quickly as is reasonably practicable. 21
(4) It is sufficient compliance with a requirement made under this 22
section if only so much of the face covering as prevents the 23
person's face from being seen is removed. 24
(5) The removal of a face covering in compliance with a requirement 25
made under this section, or the viewing of a person's face 26
following any such removal, does not constitute the carrying out 27
of a search of a person for the purposes of this Act. 28
(6) In this section: 29
lawfully required means lawfully required or requested to 30
provide the identification or information concerned in 31
circumstances where a failure or refusal to comply with a 32
requirement or request of that kind may constitute an offence. 33
photographic identification includes (but is not limited to) any of 34
the following: 35
(a) a driver licence (within the meaning of Part 2 of the Road 36
Transport (Safety and Traffic Management) Act 1999), 37
(b) a Photo Card (within the meaning of the Photo Card 38
Act 2005) or any other kind of photo identity card 39
(wherever issued), 40
Page 4
Identification Legislation Amendment Bill 2011
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
No 103
(c) a passport (wherever issued), 1
(d) any other licence, permit or authority bearing a photograph 2
of its holder (wherever issued), 3
(e) any other identification with a photograph that is 4
identification of a kind prescribed by the regulations. 5
19B Failure of person to remove face covering when required 6
(1) A person who is required by a police officer in accordance with 7
sections 19A and 201 to remove a face covering must not, 8
without special justification, fail or refuse to comply with the 9
requirement. 10
Maximum penalty: 11
(a) in the case of a person who is required to remove a face 12
covering following a request made to the person under 13
section 14 (Power of police officer to request disclosure of 14
driver or passenger identity)--50 penalty units or 15
12 months imprisonment, or both, or 16
(b) in any other case--2 penalty units. 17
(2) A person has a special justification for not removing a face 18
covering if (and only if): 19
(a) the person has a legitimate medical reason for not 20
removing the face covering, or 21
(b) the person has any other excuse for not removing the face 22
covering that is an excuse of a kind prescribed by the 23
regulations. 24
(3) The onus of proof of a special justification lies on the person 25
claiming to have the special justification. 26
19C Division does not limit other police powers 27
The provisions of this Division do not limit any power that a 28
police officer may have (apart from this Division) to require a 29
person to remove a face covering. 30
[6] Section 201 Supplying police officer's details and giving warnings 31
Insert "(including a power to require the removal of a face covering for 32
identification purposes)" after "another person" in section 201 (3) (g). 33
Page 5
Identification Legislation Amendment Bill 2011
Schedule 1 Amendment of Law Enforcement (Powers and Responsibilities) Act 2002
No 103
[7] Section 242B 1
Insert after section 242A: 2
242B Monitoring of operation of Division 4 of Part 3 by Ombudsman 3
(1) For the period of 12 months after the commencement of 4
Division 4 of Part 3, the Ombudsman is to keep under scrutiny 5
the exercise of the functions conferred on police officers under 6
that Division. 7
(2) For that purpose, the Ombudsman may require the Commissioner 8
of Police to provide information about the exercise of those 9
functions. 10
(3) The Ombudsman must, as soon as practicable after the expiration 11
of that 12-month period, prepare a report of the Ombudsman's 12
work and activities under this section and furnish a copy of the 13
report to the Minister, the Minister for Police and Emergency 14
Services and the Commissioner of Police. 15
(4) The Ombudsman may in the report identify, and include 16
recommendations for consideration by the Minister about, 17
amendments that might appropriately be made to Division 4 of 18
Part 3 with respect to the exercise of functions conferred on 19
police officers under that Division. 20
(5) The Ombudsman may at any time make a special report on any 21
matter arising out of the operation of Division 4 of Part 3 to the 22
Minister. 23
(6) The Minister is to lay (or cause to be laid) a copy of any report 24
made or furnished to the Minister under this section before both 25
Houses of Parliament as soon as practicable after the Minister 26
receives the report. 27
(7) If a House of Parliament is not sitting when the Minister seeks to 28
furnish a report to it, the Minister may present copies of the report 29
to the Clerk of the House concerned. 30
(8) A report presented to the Clerk of a House: 31
(a) is, on presentation and for all purposes, taken to have been 32
laid before the House, and 33
(b) may be printed by authority of the Clerk of the House, and 34
(c) if printed by authority of the Clerk, is for all purposes taken 35
to be a document published by or under the authority of the 36
House, and 37
Page 6
Identification Legislation Amendment Bill 2011
Amendment of Law Enforcement (Powers and Responsibilities) Act 2002 Schedule 1
No 103
(d) is to be recorded: 1
(i) in the case of the Legislative Council--in the 2
Minutes of the Proceedings of the Legislative 3
Council, and 4
(ii) in the case of the Legislative Assembly--in the 5
Votes and Proceedings of the Legislative Assembly, 6
on the first sitting day of the House after receipt of the 7
report by the Clerk. 8
[8] Schedule 5 Savings, transitional and other provisions 9
Insert at the end of clause 1 (1): 10
Identification Legislation Amendment Act 2011 11
Page 7
Identification Legislation Amendment Bill 2011
Schedule 2 Amendment of other legislation
Schedule 2 Amendment of other legislation 1
2.1 Children (Detention Centres) Act 1987 No 57 2
Section 32A Regulations 3
Insert at the end of section 32A (j) (v): 4
and 5
(vi) without limiting subparagraphs (iv) and (v), the 6
identification of visitors (including the removal of 7
face coverings within the meaning of the Law 8
Enforcement (Powers and Responsibilities) 9
Act 2002 for that purpose), 10
2.2 Children (Detention Centres) Regulation 2010 11
Clause 34A 12
Insert after clause 34: 13
34A Removal of face coverings by visitors 14
(1) A juvenile justice officer may require a visitor to remove any face 15
covering worn by the visitor so as to enable the visitor's face to 16
be seen by the officer or another juvenile justice officer or person 17
assisting in following the procedures set out in subclause (2). 18
(2) A juvenile justice officer who requires a visitor to remove a face 19
covering under this clause must, as far as is reasonably 20
practicable, ensure that the following procedures are followed: 21
(a) the juvenile justice officer must ask for the visitor's 22
co-operation, 23
(b) the viewing of the visitor's face must be conducted: 24
(i) in a way that provides reasonable privacy for the 25
visitor if the visitor requests privacy, and 26
(ii) as quickly as is reasonably practicable, 27
(c) the viewing of the face of a child under 12 years of age may 28
only be conducted if a responsible person for the child is 29
present during the viewing, 30
(d) if the visitor is 12 years old or older and requests it--the 31
viewing of the visitor's face is to be conducted by a 32
juvenile justice officer of the same sex as the visitor or, if 33
a juvenile justice officer of that sex is unavailable, by 34
another person of that sex at the direction of a juvenile 35
justice officer, 36
Page 8
Identification Legislation Amendment Bill 2011
Amendment of other legislation Schedule 2
(e) if the visitor is a child under 12 years old and the 1
responsible person for the child requests it--the viewing of 2
the child's face is to be conducted by a female juvenile 3
justice officer or, if a female juvenile justice officer is 4
unavailable, by another female person at the direction of a 5
juvenile justice officer. 6
(3) It is sufficient compliance with a requirement made under this 7
clause if only so much of the face covering as prevents the 8
visitor's face from being seen is removed. 9
(4) A juvenile justice officer may not require a visitor to remove a 10
face covering under this clause if the visitor establishes, to the 11
officer's satisfaction, that the visitor has a special justification for 12
not removing the face covering. 13
Note. A special justification includes having a legitimate medical reason 14
for not removing the face covering. 15
(5) A visitor who does not comply with a requirement under this 16
clause may be refused a visit to the detention centre. 17
(6) In this clause: 18
face and face covering have the same meanings as they have in 19
the Law Enforcement (Powers and Responsibilities) Act 2002. 20
responsible person for a child has the same meaning as it has in 21
section 10 of the Court Security Act 2005. 22
special justification has the same meaning as it has in 23
section 19B of the Law Enforcement (Powers and 24
Responsibilities) Act 2002. 25
2.3 Court Security Act 2005 No 1 26
[1] Section 4 Definitions 27
Insert in alphabetical order in section 4 (1): 28
face and face covering have the same meanings as they have in 29
the Law Enforcement (Powers and Responsibilities) Act 2002. 30
[2] Section 4 (1), definition of "personal search" 31
Omit "things." from paragraph (c). Insert instead: 32
things, 33
but does not include requiring a person to remove a face 34
covering. 35
Page 9
Identification Legislation Amendment Bill 2011
Schedule 2 Amendment of other legislation
[3] Section 13A 1
Insert after section 13: 2
13A Power to require removal of face coverings 3
(1) A security officer may require a person who is wearing a face 4
covering to remove the covering so as to enable the officer, or 5
another security officer or person assisting in following the 6
procedures set out in subsection (2), to see the person's face if: 7
(a) the person is seeking to enter court premises, or 8
(b) the officer arrests, or has grounds for arresting, the person 9
under this Act. 10
Note. Section 16 sets out the circumstances in which a security officer 11
may arrest a person. 12
(2) A security officer who requires a person to remove a face 13
covering under this section must, as far as is reasonably 14
practicable, ensure that the following procedures are followed: 15
(a) the security officer must ask for the person's co-operation, 16
(b) the viewing of the person's face must be conducted: 17
(i) in a way that provides reasonable privacy for the 18
person if the person requests privacy, and 19
(ii) as quickly as is reasonably practicable, 20
(c) the viewing of the face of a child under 12 years of age may 21
only be conducted if a responsible person for the child is 22
present during the viewing, 23
(d) if the person is 12 years old or older and requests it--the 24
viewing of the person's face is to be conducted by a 25
security officer of the same sex as the person or, if a 26
security officer of that sex is unavailable, by another 27
person of that sex at the direction of a security officer, 28
(e) if the person is a child under 12 years old and the 29
responsible person for the child requests it--the viewing of 30
the child's face is to be conducted by a female security 31
officer or, if a female security officer is unavailable, by 32
another female person at the direction of a security officer. 33
(3) If a security officer: 34
(a) makes a requirement of a person under subsection (1) (a) 35
and the person fails immediately to comply with that 36
requirement or to leave the court premises, or 37
Page 10
Identification Legislation Amendment Bill 2011
Amendment of other legislation Schedule 2
(b) makes a requirement of a person under subsection (1) (b) 1
and the person fails immediately to comply with that 2
requirement, 3
the security officer may again make the requirement and, in that 4
case, must: 5
(c) where the requirement being repeated was made under 6
subsection (1) (a)--warn the person that a failure 7
immediately to comply with the requirement or leave the 8
court premises may be an offence, and 9
(d) where the requirement being repeated was made under 10
subsection (1) (b)--warn the person that a failure 11
immediately to comply with the requirement may be an 12
offence, and 13
(e) provide the person with the information referred to in 14
section 20 (2) (a)-(c). 15
(4) A security officer may not make a requirement in accordance 16
with subsection (3) if the person establishes, to the officer's 17
satisfaction, that the person has a special justification for not 18
removing the face covering. 19
Note. A special justification includes having a legitimate medical reason 20
for not removing the face covering. 21
(5) If a security officer makes a requirement of a person in 22
accordance with subsection (3), the person must immediately: 23
(a) comply with the requirement, or 24
(b) in the case of a requirement made of a person seeking to 25
enter court premises--leave the court premises. 26
Maximum penalty (subsection (5)): 5 penalty units. 27
(6) It is sufficient compliance with a requirement made under this 28
section if only so much of the face covering as prevents the 29
person's face from being seen is removed. 30
(7) This section does not limit any other power that a security officer 31
may have under section 14 or any other provision of this Act. 32
(8) In this section: 33
responsible person for a child has the same meaning as it has in 34
section 10. 35
special justification has the same meaning as it has in 36
section 19B of the Law Enforcement (Powers and 37
Responsibilities) Act 2002. 38
Page 11
Identification Legislation Amendment Bill 2011
Schedule 2 Amendment of other legislation
[4] Section 20 Safeguards concerning exercise of relevant powers 1
Omit "10 or 11" from section 20 (1) (a). Insert instead "10, 11 or 13A". 2
[5] Section 20 (1), note 3
Omit "10 and 11". Insert instead "10, 11 and 13A". 4
2.4 Crimes (Administration of Sentences) Act 1999 No 93 5
[1] Section 79 Regulations 6
Insert at the end of section 79 (i) (v): 7
and 8
(vi) without limiting subparagraphs (iv) and (v), the 9
identification of visitors (including the removal of 10
face coverings within the meaning of the Law 11
Enforcement (Powers and Responsibilities) 12
Act 2002 for that purpose), 13
[2] Section 106ZA Regulations 14
Insert at the end of section 106ZA (e) (v): 15
and 16
(vi) without limiting subparagraphs (iv) and (v), the 17
identification of visitors (including the removal of 18
face coverings within the meaning of the Law 19
Enforcement (Powers and Responsibilities) 20
Act 2002 for that purpose), 21
2.5 Crimes (Administration of Sentences) Regulation 2008 22
[1] Clause 89 Proof of identity of visitor and purpose of visit may be required 23
Insert after clause 89 (2): 24
(2A) An authorised officer may require a visitor to remove any face 25
covering worn by the visitor so as to enable the visitor's face to 26
be seen by the officer or another authorised officer or person 27
assisting in following the procedures set out in subclause (2B). 28
(2B) An authorised officer who requires a visitor to remove a face 29
covering under subclause (2A) must, as far as is reasonably 30
practicable, ensure that the following procedures are followed: 31
(a) the authorised officer must ask for the visitor's 32
co-operation, 33
(b) the viewing of the visitor's face must be conducted: 34
Page 12
Identification Legislation Amendment Bill 2011
Amendment of other legislation Schedule 2
(i) in a way that provides reasonable privacy for the 1
visitor if the visitor requests privacy, and 2
(ii) as quickly as is reasonably practicable, 3
(c) the viewing of the face of a child under 12 years of age may 4
only be conducted if a responsible person for the child is 5
present during the viewing, 6
(d) if the visitor is 12 years old or older and requests it--the 7
viewing of the visitor's face is to be conducted by an 8
authorised officer of the same sex as the visitor or, if an 9
authorised officer of that sex is unavailable, by another 10
person of that sex at the direction of an authorised officer, 11
(e) if the visitor is a child under 12 years old and the 12
responsible person for the child requests it--the viewing of 13
the child's face is to be conducted by a female authorised 14
officer or, if a female authorised officer is unavailable, by 15
another female person at the direction of an authorised 16
officer. 17
(2C) It is sufficient compliance with a requirement made under 18
subclause (2A) if only so much of the face covering as prevents 19
the visitor's face from being seen is removed. 20
(2D) An authorised officer may not require a visitor to remove a face 21
covering under subclause (2A) if the visitor establishes, to the 22
officer's satisfaction, that the visitor has a special justification for 23
not removing the face covering. 24
Note. A special justification includes having a legitimate medical reason 25
for not removing the face covering. 26
[2] Clause 89 (3) 27
Insert "or (2A)" after "subclause (1)". 28
[3] Clause 89 (4) 29
Insert after clause 89 (3): 30
(4) In this clause: 31
face and face covering have the same meanings as they have in 32
the Law Enforcement (Powers and Responsibilities) Act 2002. 33
responsible person for a child has the same meaning as it has in 34
section 10 of the Court Security Act 2005. 35
special justification has the same meaning as it has in 36
section 19B of the Law Enforcement (Powers and 37
Responsibilities) Act 2002. 38
Page 13
Identification Legislation Amendment Bill 2011
Schedule 2 Amendment of other legislation
2.6 Oaths Act 1900 No 20 1
Part 6 2
Insert after Part 5: 3
Part 6 Miscellaneous 4
34 Identification of person making statutory declaration or affidavit 5
(1) A person who takes and receives a statutory declaration or 6
affidavit in this State (an authorised witness): 7
(a) must see the face of the person making the declaration or 8
affidavit, and 9
(b) must know the person who makes the declaration or 10
affidavit or confirm the person's identity in accordance 11
with the regulations, and 12
(c) must certify on the declaration or affidavit in accordance 13
with the regulations that this section has been complied 14
with. 15
Maximum penalty (on summary conviction before the Local 16
Court): 2 penalty units. 17
(2) An authorised witness may request a person who is seeking to 18
make a statutory declaration or affidavit to remove so much of 19
any face covering worn by the person as prevents the authorised 20
witness from seeing the person's face. 21
(3) The regulations may make provision for or with respect to 22
compliance with this section and, in particular, may: 23
(a) provide that a person is not known to an authorised witness 24
unless the authorised witness has known the person for a 25
minimum specified period, and 26
(b) provide for the steps that will satisfy the requirement to 27
confirm the identity of a person making a statutory 28
declaration or affidavit (including prescribing the kinds of 29
documentation that may or must be relied on for that 30
purpose), and 31
(c) exempt an authorised witness from the requirement to 32
comply with subsection (1) (a) for medical or other 33
reasons. 34
(4) A failure to comply with this section does not affect the validity 35
of any statutory declaration or affidavit. 36
Page 14
Identification Legislation Amendment Bill 2011
Amendment of other legislation Schedule 2
(5) In this section: 1
face and face covering have the same meanings as they have in 2
the Law Enforcement (Powers and Responsibilities) Act 2002. 3
35 Regulations 4
The Governor may make regulations, not inconsistent with this 5
Act, for or with respect to any matter that by this Act is required 6
or permitted to be prescribed or that is necessary or convenient to 7
be prescribed for carrying out or giving effect to this Act. 8
Page 15
[Index] [Search] [Download] [Related Items] [Help]