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CLAUSE NOTES
POLICE OFFENCES AMENDMENT BILL 2013
Background:
The Bill introduces contemporary legislation to address emerging societal issues and
concerns.
PART 1 PRELIMINARY MATTERS
Clause 1: Short title
Specifies the name of the proposed Act.
Clause 2: Commencement
Specifies that the Act commences on the day to be proclaimed.
PART 2 POLICE OFFENCES ACT 1935 AMENDED
Clause 3: Principal Act
Specifies that in this Part, the Police Offences Act 1935 is referred to as
the Principal Act.
Clause 4: Section 3 amended (Interpretation)
Section 3 of the Act is amended by inserting a definition of firework which
accords with the Explosives Regulations 2012.
The definition of sexual offence is amended to include section 21
Prohibited Behaviour as a sexual offence.
Clause 5: Section 7 amended (Loiterers, &c.)
This clause amends section 7 by including the word `or an offence' after
`crime'. This means that a person must not loiter with intent to commit a
crime or an offence. Crimes are matters that are usually punishable on
indictment (trial before a judge and jury), whilst offences are summary
matters, punishable on complaint before a magistrate.
It also amends the section by including an authority to detain and search a
person who a police officer has reasonable grounds to believe is
contravening section 7. If an implement or instrument is located during the
search and a police officer considers it may have been used during the
commission of the offence of loiter with intent to commit a crime or
offence, it can be seized. If convicted of an offence under this section
then any implement or instrument seized is forfeited to the Crown.
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The offence of possession of implement or instrument with intent to
commit a crime has been removed and replicated at clause 7.
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Clause 6: Section 7A amended (Loitering near children)
This clause amends section 7A by providing an authority to detain and
search a person who the police officer has reasonable grounds to believe
is contravening section 7A. If an implement or instrument is located during
the search and a police officer considers it may have been used during the
commission of the offence of loitering near children (eg mobile phone with
a recording of children on it), it can be seized.
If a person is convicted of the offence then any instrument or item seized
is automatically forfeited to the Crown. The court may, if it considers any
implement or item that was seized may have been used during the
commission of the offence, order that the implement or item be forfeited to
the Crown. This order may be made even if the person is not convicted of
the offence.
Clause 7: Section 7B inserted
Section 7B (Possession of implement or instrument)
This clause inserts the offence of possession of an implement or
instrument without lawful excuse with intent, which was previously in
section 7.
This offence has been amended to include that a person must not have in
his or her possession, without lawful excuse, any implement or instrument
with intent to commit a crime or an offence. Prior to the proposed
amendment this section only made reference to a crime.
The clause includes an authority to detain and search a person who a
police officer has reasonable grounds to believe is contravening section
7B. If an implement or instrument is located during the search and a
police officer considers it could be used to commit a crime or offence, it
can be seized. If convicted of an offence under this section then any
implement or instrument seized is forfeited to the Crown.
The clause replicates certain provisions of section 7, which relate to
proving intent, which are also applicable to section 7B.
Clause 8: Section 8 amended (Begging, imposition, &c.)
This clause amends section 8 by removing the out-dated term of `alms'
and inserting `money or other financial advantage'. It also omits the words
`a child' and substitutes those words with `another person'.
Clause 9: Section 10 amended (Disorderly houses)
This clause amends subsection (1) by removing the words `place of public
resort'. This is an out-dated term and of no relevance in today's society.
It also amends the section by providing an authority for a police officer who
has reasonable grounds to believe that the an offence under subsection
1A is being, or has been committed, to enter without warrant certain
premises and direct any person found to leave and not return for a
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specified period of not less than 12 hours. The direction cannot be given
to the owner or tenant of the premises.
If a person fails or refuses to comply with such a direction, he or she is
guilty of an offence and liable to a fine not exceeding 20 penalty units.
Clause 10: Section 12 amended (Prohibited language and behaviour)
This clause amends section 12(1)(d) to remove the words `with intent or'.
Clause 11: Sections 13 amended (Public annoyance)
This clause amends this section including an the authority to detain and
search a person for fireworks or missiles, in contravention of subsections
(1)(f) and (2). Any firework or missile found on that person may be seized.
Upon a conviction for an offence under subsections (1)(f) or (2), then any
missile or firework seized from a person is to be forfeited to the Crown.
Section 5B is omitted as it is no longer relevant. Section 5A, to which it
relates was repealed on 17 December 2001.
Clause 12: Section 13A amended (Observation or recording in breach of privacy)
This clause amends the section by rewording subsection (2) and ensuring
that it is clear that there is a defence to the offence of observing or
recording a person in private, if consent of the person being recorded has
been provided.
It also amends the section by including an authority to detain and search a
person who a police officer has reasonable grounds to believe is
contravening section 13A. If a visual recording, item or instrument is
located during the search and a police officer considers it could be used
during the commission of the offence, it can be seized.
If a person is convicted of the offence then any visual recording, item or
instrument seized is automatically forfeited to the Crown. The court may, if
it considers any visual recording, instrument or item that was seized may
have been used during the commission of the offence, order that the
implement or item be forfeited to the Crown. This order may be made
even if the person is not convicted of the offence.
Clause 13: Section 13B amended (Publishing or distributing prohibited visual
recording)
This clause amends the section by including an authority to detain and
search a person who a police officer has reasonable grounds to believe is
contravening section 13B. If a prohibited visual recording, item or
instrument is located during the search and a police officer considers it
could be used for publishing or distributing a prohibited visual recording, it
can be seized.
If a person is convicted of the offence then any prohibited visual recording,
item or instrument that has been seized is automatically forfeited to the
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Crown. The court may, if it considers any prohibited visual recording,
instrument or item that was seized may have been used during the
commission of the offence, order that the implement or item be forfeited to
the Crown. This order may be made even if the person is not convicted of
the offence.
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Clause 14: Section 13C amended (Possession of prohibited visual recording)
This clause amends the section by including an authority to detain and
search a person who a police officer has reasonable grounds to believe is
contravening section 13C. If a prohibited visual recording, item or
instrument is located during the search and a police officer considers it
could be used for storing a prohibited visual recording, it can be seized.
A court may, if it considers any prohibited visual recording that was seized
may have been used during the commission of the offence, order that
prohibited visual recording, be forfeited to the Crown. This order may be
made even if the person is not convicted of the offence. If a person is
convicted of the offence then the prohibited visual recording is
automatically forfeited.
Clause 15: Section 14B amended (Unlawful entry on land)
This clause amends section 14B to increase the penalty for the offence of
Trespass.
It then amends the section so that the Commissioner replaces the Minister
of Police, to determine how to dispose of any firearm seized that has been
used in the commission of the offence of Trespass.
Section 14B currently has an automatic penalty for a person who is
convicted of this offence and was in possession of a firearm during the
actual commission of the offence. As a result, this clause amends the
section by including an authority to detain and search a person, who a
police officer has reasonable grounds to believe is contravening section
14B. If a firearm is located during the search it can be seized.
Clause 16: Sections 15 and 15A repealed
This clause repeals both sections. These sections are no longer relevant
in modern society and have been superseded by other sections in the
Principal Act.
Clause 17: Section 18 amended (Discharge of distress signals)
This clause amends the definition of a distress signal to include an
electronic device (eg EPIRB).
Clause 18: Section 19A amended (Sports grounds)
This clause amends this section to change the offence from unlawfully
enter the reserved area of a sports ground' to `sports venue'. This is to
ensure all modern sporting arenas are covered by this section.
The amendment also removes the requirement that the person must be
asked to leave the reserved area of a sports venue by a police officer
before the power of arrest that the section currently provides for, can be
exercised. The authority to arrest is still constrained by the limitations
detailed in subsection 1B.
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Clause 19: Section 20AA repealed
This clause repeals the rescue and illegal impounding of distress damage
feasant. Clauses 59 and 60 provide for the replication of section 20AA in
the Law of Animals Act 1962.
Clause 20: Section 21A amended (Unlawfully administering drug, &c.)
This clause provides for the same offence currently contained with the
Principal Act, but restructures the section to provide for some additional
authorities.
The clause includes an authority to detain and search a person who a
police officer has reasonable grounds to believe is contravening or has
contravened section 21A. If any drug, liquor or other thing is located
during the search and a police officer believes it is likely to impair the
consciousness or bodily function of another person, it can be seized. If
convicted of an offence under this section then any drug, liquor or other
thing seized is forfeited to the Crown.
A court may, if it considers any drug, liquor or other thing that was seized
may have been used during the commission of the offence, order that the
drug, liquor or other thing, be forfeited to the Crown. This order may be
made even if the person is not convicted of the offence. If a person is
convicted of the offence then the drug, liquor or other thing is automatically
forfeited.
Clause 21: Section 34B amended (Resistance to, and obstruction of, public
officers prohibited)
The clause inserts the definition of an emergency service worker into
section 34B and creates a new offence for assaulting, resisting, wilfully
obstructing, threatening, intimidating or abusing an emergency service
worker in the execution of his or her duty.
This clause increases the penalty provisions for assaulting, resisting,
wilfully obstructing, threatening, intimidating or abusing a police officer,
emergency service worker or public officer in the execution of his or her
duty.
Clause 22: Section 35 amended (Common assault and aggravated assault)
This clause amends the section to allow a complaint for any offence
against section 35 to be made within 12 months after the date of the
offence.
Clause 23: Section 35A inserted
Section 35A (Tattooing, body piercing and body modification)
A new section has been inserted to provide for the offences of tattooing,
body piercing and body modifications of youths.
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The clause creates an offence for a person to perform a body modification
procedure on a youth (youth means a person who is less than 18 years of
age).
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A body modification procedure means:
(a) tattooing;
(b) body branding; and
(c) body implantation; and
(d) earlobe stretching; and
(e) tongue splitting; and
(f) body scarification; and
(g) any other procedures prescribed by Regulations.
It also creates an offence for a person to perform an intimate body piercing
on a youth or an offence for a person to perform any other body piercing
on a youth, unless the youth is aged at least 16 years old, without the
consent, in writing, of the youth's guardian.
An intimate body piercing means the piercing of a person's genitalia, anal
region, perineum, nipples or uvula.
It will not be an offence if the tattooing, body piercing or body modification
procedure is performed in the course of medical treatment or for medical
or therapeutic purposes as prescribed by Regulations.
The clause also provides a defence to the three offences if a youth or
another person makes a false statement or produces false evidence. The
person who seeks to rely on this defence must produce the identifying
details or a copy of the evidence offered at the time of the offence.
For all three offences the penalty is a fine not exceeding 100 penalty units
or imprisonment for a term not exceeding 12 months.
Clause 24: Section 37 amended (Offences relating to property)
This clause amends the section to allow a complaint for any offence
against section 37 to be made within 12 months after the date of the
offence.
It also repeals subsection (4) which is no longer required as it is out-dated
and the offence is covered by Section 37(1).
Clause 25: Section 37AAA and 37AA inserted
Section 37AAA (Interference with war memorials)
This clause creates a specific offence for the interference with a war
memorial and allows a complaint for such an offence to be made within 12
months after the date of the offence.
The clause provides for a penalty for interfering with a war memorial of a
fine not exceeding 10 penalty units or imprisonment for a term not
exceeding 12 months.
Section 37AA (Unlawfully setting fire to property)
An offence of unlawfully setting fire to property is to be included in the
Principal Act. It is currently only a crime contained within in the Criminal
Code Act 1924. The new section applies to all property and vegetation as
defined in Chapter XXXI of the Criminal Code Act 1924. For this section to
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apply and an offence to have occurred the damage to the property or
vegetation is not to exceed $5000.
This clause also provides for a complaint for such an offence to be made
within 12 months after the date of the offence. The penalty for committing
such an offence is a fine not exceeding 100 penalty units or imprisonment
for a term not exceeding 2 years or both.
Clause 26: Section 37I substituted
Section 37I (Tampering with vehicles)
This clause provides for the same offence currently contained with the
Principal Act, but restructures the section to provide for some additional
authorities.
The clause includes an authority to detain and search a person who a
police officer has reasonable grounds to believe is contravening or has
contravened section 37I. If any tools, equipment or materials are located
during the search and a police officer believes has been used in the
commission of the offence, they can be seized. If convicted of an offence
under this section then any tools, equipment or materials seized are
forfeited to the Crown.
An offence occurs attracts a penalty of a fine not exceeding 20 penalty
units.
Clause 27: Section 37J amended (Excessive noise, smoke, &c., from vehicles)
This clause replaces the word `exhibition' with the words `unnecessary
execution'.
Clause 28: Section 37K amended (Interpretation of Division)
This clause inserts the words `and its keys' in the definitions of confiscated
vehicle and forfeiture order.
Clause 29: Section 37N amended (Clamping and confiscation of vehicles)
This clause inserts the words `and its keys' into subsections (1)(b), (2),
(3)(d), (6), (6)(b) and (8). This provides for the keys of a vehicle and the
vehicle to be confiscated.
Clause 30: Section 37O amended (Period of clamping or confiscation for first
prescribed offence)
This clause amends section 37O by substituting the words `found
offending in respect of a prescribed offence by a police officer' and
replacing them with `proceeded against by way of complaint under the
Justices Act 1959 in respect of a prescribed offence'.
This provides for a vehicle used in connection with the commission of a
prescribed offence be confiscated for the set period as already outlined in
the section, if the person has previously not been proceeded against by
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way of complaint for a prescribed offence. That is, this is the first offence
for the offending driver for committing a prescribed offence.
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Clause 31: Section 37P amended (Period of clamping or confiscation for second
prescribed offence)
This clause amends this section by omitting the words `found offending in
respect of a prescribed offence by a police officer on one occasion' and
substituting them with `proceeded against by way of complaint under the
Justices Act 1959 in respect of a prescribed offence on one occasion'.
This provides for a vehicle used in connection with the commission of a
prescribed offence be confiscated for the set period as already outlined in
the section, if the person has previously been proceeded against by way
of complaint for a prescribed offence.
It is intended that amendment provide for situations where someone has
been prosecuted by way of civilian witness statements or was found
offending by a police officer. In essence, it would be the second
prescribed offence for the offending driver.
Clause 32: Section 37Q amended (Period of clamping or confiscation for third or
subsequent prescribed offence)
This clause amends this by omitting the words `found offending in respect
of a prescribed offence by a police officer on 2 or more occasions' and
substituting `proceeded against by way of complaint under the Justices Act
1959 in respect of a prescribed offence on 2 or more occasions'.
This provides for a vehicle used in connection with the commission of a
prescribed offence be confiscated for the set period as already outlined in
the section, if the person has previously been proceeded against by way
of complaint for a prescribed offence on 2 or more occasions.
It is intended that amendment provide for situations where someone has
been prosecuted by way of civilian witness statements or found offending
by a police officer. In essence, it would be the third or more prescribed
offence for the offending driver.
The amendment also states that the vehicle that is confiscated or clamped
under the provisions of this section is to be held until the resolution of the
prescribed offence for which it has been clamped or confiscated or until
the Court has made a determination in relation to any application for
forfeiture that has been made.
Clause 33: Section 37SA amended (Unlawful interference with clamped vehicle,
&c.)
This clause provides for a police officer to seize the vehicle and move it to
a holding yard if a person commits an offence against subsection (2) or
(3), previously it only allowed this to be done if there was an offence
against subsection (3).
It also inserts two new subsections to allow an owner of a clamped vehicle
to have the vehicle transported to another location. If a vehicle is
transported to another location, the owner must notify a police officer,
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within 3 days of the date of which it is transported to the other location, of
the new location of the vehicle.
If the owner of a vehicle does not notify a police officer of the new location,
then an offence occurs which attracts a fine not exceeding 10 penalty
units.
Clause 34: Section 37T amended (Notice of clamping or confiscation to be
given)
This clause allows for a police officer to amend the period of confiscation
or clamping of a vehicle commensurate with the number of prior
prescribed offences committed by the offender.
The amended notice is to be given to the owner of the vehicle within 14
days of the date on which the notice was amended
Clause 35: Section 37Y amended (Application for forfeiture of vehicles)
This clause allows for a police officer or any person who is or who has
prosecuted a complaint for a prescribed offence to make an application for
a forfeiture order in respect of the vehicle that has been seized for a
prescribed offence. This may be made on the date of conviction or at any
time during the 14-day period immediately following the date of conviction.
It amends the section to allow for a Court to impose a monetary penalty
instead of the forfeiture of the vehicle. This is for such circumstances
where the offender does not use his or her own vehicle to commit the
prescribed offence and another person will be penalised if the vehicle is
forfeited.
Clause 36: Section 37A amended (Defence to show no knowledge and consent)
The word `or' is inserted to fix a grammatical error.
Clause 37: Section 37A amended (Powers for enforcing forfeiture order)
This clause will make it mandatory for a Court to include in a forfeiture
order, the authority for a police officer to use reasonable force, means and
assistance as is necessary to enter any place where the police officer
reasonably believes the vehicle may be located to affect the order.
Clause 38: Section 37ZD amended (Unclamping or recovery of vehicle clamped
or confiscated for a second or subsequent prescribed offence)
This clause provides a penalty provision for the offence of contravening a
condition of a Court order at subsection (3). The penalty is a fine not
exceeding 20 penalty units
Clause 39: Section 37ZH amended (Disposal of confiscated vehicle)
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This clause amends the section so that a written notice detailing the sale
or the disposal a confiscated vehicle is only to be given if the registered
operator can be found.
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Section 40: Section 37ZJ amended (Voluntary transfer of ownership of vehicle to
Crown)
This amendment allows for the ownership of a clamped or confiscated
vehicle, with the agreement of the owner, to be transferred to the Crown at
any time during the authorised period, not just at the end of the authorised
period.
Clause 41: Section 37ZK substituted
Section 37ZK (Clamped or confiscated vehicle not to be sold or
disposed of)
This clause prevents a person from selling or disposing of a clamped or
confiscated vehicle. It also prevents a person from tampering with,
interfering with or altering such a vehicle. Vehicles that are clamped are
currently being sold, damaged or destroyed to avoid forfeiture. This
clause now provides for a penalty for contravening this section of 50
penalty units to deter this type of behaviour.
Clause 42: Section 38 inserted
Section 38 (Taking property not exceeding $500 in value)
A summary offence of stealing is to be included in the Principal Act. It is
currently only a crime contained within in the Criminal Code Act 1924. The
new offence relates stealing anything that does not exceed the value of
$500.
The penalty for committing such an offence is a fine not exceeding 10
penalty units or imprisonment for a term not exceeding 3 months or both.
This amendment will allow for the issuing of infringement notices for such
an offence. The limitations and/or conditions for the issuing of such an
infringement notice will be prescribed in the Regulations. It is intended
that such infringement notices will only be used as a cautionary tool for
first time adult offenders.
Clause 43: Section 39 amended (Possession of stolen property)
The clause amends this section so that the belief of a police officer, that a
person had possession that property stolen or unlawfully obtained, may
exist even after possession or control of that property by the person has
passed. The amendment removes the requirement that the belief has to
be held during the time the person had possession or control of the
property. The belief no longer has to be concomitant with the finding of
the person in possession with the property.
Clause 44: Sections 39A and 40 repealed
Both sections are no longer relevant in today's society
Clause 45: Section 44A amended (False reports to police)
This amendment is intended to include situations where a report is made
to any person and the circumstance of such a report are likely to be
passed to, and investigated by, police. For example, false reports of
sightings of distress signals to organisations such as Coast Radio. The
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penalty for this offence is currently inadequate and has been increased
from 10 penalty units to 100 penalty units or imprisonment for a term not
exceeding 6 months to a term of imprisonment not exceeding 12 months.
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Clause 46: Section 47 amended (Interpretation)
This clause amends the section by changing the term accident to crash,
which is defined in the Road Rules 2009 and is current terminology.
Clause 47: Section 49 amended (Power of Commissioner to grant permit)
This clause provides for the omission of the word `accident' in this section
which is substituted with the word `crash'.
Clause 48: Section 55 amended (Arrest)
Amendments have occurred to ensure that all appropriate offences are
included in this section. This section authorises police officers to arrest
without warrant for certain offences.
Clause 49: Section 55A substituted
Section 55A (Names and addresses of offenders)
This clause provides for the same offences currently contained with the
Principal Act, but restructures the section to provide for an additional
authority relating to section 15B - Dispersal of Persons, of the Principal
Act.
It still provides for a police officer being able to require a person to state
his or her name and address if the police officer becomes aware or has
reasonable grounds for believing a person has committed or is committing
an offence. Further, the section now includes the ability for a police officer
to require a person to state his or her name and address, who he or she
has reasonable grounds for believing that a person is likely to commit an
offence against section 15B.
The amendment creates an offence and penalty for a person who fails or
refuses to provide his or her name and address in each circumstance and
increases the current penalty provisions from 2 penalty units to 10 penalty
units.
The section currently provides the authority for a police officer to arrest
without warrant any person who fails or refuses to comply with this section
and that authority has been replicated in the substituted section.
Clause 50: Section 57B repealed
This clause repeals this section, the Search for and detention of skins
suspected to be stolen as it is not relevant in today's society.
Clause 51: Section 58A amended (Power to search for liquor)
The authority to search for liquor has been amended to provide for all
liquor offences contained within the Principal Act.
Clause 52: Part VII, Division IV: Heading amended
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The heading has been amended to omit the words `Liquor infringement'
and these words are replaced with the word `Infringement'.
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Clause 53: Section 61 amended (Infringement notices)
This clause provides for the issuing of infringement notices for a wide
variety of offences. Previously, infringement notices could only be issued
for liquor offences against section 25 or section 26 of the Principal Act.
The offences that have been included are as follows:
Prohibited language and behaviour sections 12(1)(a), (b), (c) or (d);
Public annoyance sections 13(1)(a), (b), (c), (d), (e) or (f), (2), (4), (6)
or (7);
Trespass section 14B
Dispersal of persons 15B
Graffiti and graffiti equipment section 15CA(1) or (4);
Street entertainment sections 16(1) or (2);
Sports venues section 19A(1)
Consumption of liquor in streets sections 25(2) or (3);
Requirement of owner or registered operator to provide details section
37G(1);
Notice of demand section 37GA(3);
Use of spotlights on vehicles on public streets section 37JA(1);
Stealing section 38(1);
Advertising reward for return of stolen property section 41(1);
No motor-vehicle race to be held without a permit section 48(1);
Public street permits section 49AB(1) or (8); or
Power of Commissioner to control public entertainments section
49B(1)
Regulations will specify penalty units for each offence and contain
instructions as to the issuing of infringement notices for stealing.
Clause 54: Section 63B amended (Declaration of serious incident site)
This clause amends this section by fixing two errors. It replaces the words
`an officer' with the words `a police officer'. It also replaces the words
`crime scene' with the words `serious incident site'.
Clause 55: Section 67A amended (Evidentiary provision)
This clause amends this section to provide for an averment provision for
all liquor offences contained within the Principal Act.
Clause 56: Section 68 amended (Procedure for seized firearms)
This clause removes the authority for the need for a Ministerial delegation
to dispose of firearms seized under the Principal Act. The Firearms Act
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1996 allows for the Commissioner to determine disposal of firearms seized
under that Act and the Principal Act is amended to ensure consistency.
PART 3 FORENSICS PROCEDURES ACT 2000 AMENDED
Clause 57: Principal Act
Specifies that in this Part, the Forensic Procedures Act 2000 is referred to
as the Principal Act.
Clause 58: Section 3 amended (Interpretation)
This clause inserts the two new offences of stealing and unlawfully setting
fire to property now contained in the Police Offences Act 1935 in the
definition of `serious offence' in the Principal Act.
PART 4 LAW OF ANIMALS ACT 1962 AMENDED
Clause 59: Principal Act
Specifies that in this Part, the Law of Animals Act 1962 is referred to as
the Principal Act.
Clause 60: Section 7A inserted
This clause provides for the offence of Rescue and illegal impounding of
distress damage feasant which was contained in the Police Offences Act
1935 and is repealed by this Bill to be inserted into the Principal Act.
PART 5 REPEAL OF ACT
Clause 61: Repeal of Act
This clause provides that the Police Offences Amendment Act 2013 is
repealed on the three hundred and sixty fifth day from the day on which it
commences.
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