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Justice Legislation Amendment (Protective Services Officers and Other Matters) Bill 2017

     Justice Legislation Amendment
 (Protective Services Officers and Other
            Matters) Bill 2017

                         Introduction Print


               EXPLANATORY MEMORANDUM


                                  General
The Community Safety Statement 2017, developed in partnership with
Victoria Police, sets out what the Victorian Government and the Chief
Commissioner of Police will do to reduce harm from crime and improve
community safety.
The Justice Legislation (Protective Services Officers and Other Matters)
Bill 2017 will support implementation of the Community Safety
Statement 2017 by amending--
         •     various Acts in relation to the powers of protective services
              officers (PSOs) on duty at a designated place, to--
              •       facilitate the deployment of mobile PSOs on the public
                     transport network; and
              •       provide PSOs with additional powers to support their
                     role in keeping people safe and tackling crime and
                     anti-social behaviour on the public transport network;
         •     the Victoria Police Act 2013 to enable psychologists with
              specialist training (rather than medical practitioners only)
              to conduct Victoria Police's psychological fitness for duty
              assessments, as recommended by Victoria Police's Mental
              Health Review;
         •     the Second-Hand Dealers and Pawnbrokers Act 1989 to
              regulate payments for scrap metal and to prevent and disrupt
              criminal activity in scrap metal dealings;



581261                                1      BILL LA INTRODUCTION 23/5/2017

 


 

• the Victoria Police Act 2013, to establish the role of police custody officer supervisors in police gaols; and • the Corrections Act 1986 to extend to police custody officer supervisors powers under Part 9A of that Act, in relation to the management of visitors and powers to direct police custody officers to restrain, search and transport persons detained in police gaols. The Bill will also make minor and technical amendments to the Children, Youth and Families Act 2005, consistent with current practice, to facilitate the transportation of children held in police custody to and from courts and youth justice facilities. Clause Notes Part 1--Preliminary Clause 1 provides that the main purposes of the Bill are-- • to amend various Acts in relation to powers of PSOs on duty at designated places; and • to amend the Victoria Police Act 2013 to establish the role of police custody officer supervisors in police gaols; and • to amend the Corrections Act 1986 to extend to police custody officer supervisors powers under Part 9A of that Act, in relation to the management of visitors and powers to direct police custody officers to restrain, search and transport persons detained in police gaols; and • to amend the Victoria Police Act 2013 to provide for psychological fitness for duty assessments for police officers and PSOs; and • to amend the Children, Youth and Families Act 2005 to facilitate the transportation of children held in police custody to and from courts and youth justice facilities; and • to amend the Second-Hand Dealers and Pawnbrokers Act 1989 to regulate payments for scrap metal and to provide for enforcement; and 2

 


 

• to make consequential and other technical amendments to other Acts. Clause 2 provides that the Bill (with the exception of Part 4 and clause 60) will to come into operation on a day or days to be proclaimed. Part 4 and clause 60 will come into operation on Royal Assent. Any provision that has not commenced before 30 May 2018 comes into operation on that day. Part 2--Additional powers of protective services officers Division 1--Amendment of the Children, Youth and Families Act 2005 Clause 3 inserts a definition of designated place into section 3(1) of the Children, Youth and Families Act 2005. The term has the same meaning as in the Victoria Police Act 2013. Clause 4 inserts new Part 8.3A into the Children, Youth and Families Act 2005 concerning powers of PSOs to execute a Childrens' Court search warrant (emergency care). In practice, these are known as emergency care warrants. New section 598A(1) provides that a PSO on duty at a designated place may apprehend a child pursuant to an emergency care warrant if the child is at or in the vicinity of the designated place. New section 598A(2) provides that if a PSO apprehends a child under subsection (1), the PSO must hand the child into the custody of a police officer as soon as practicable after the child is apprehended. New section 598A(3) specifies the sections of the Act under which emergency care warrants may be issued for the purposes of new section 598A(1). New section 598A(4) provides that the section applies despite the emergency care warrant not being directed to a named PSO or generally all PSOs. This is because the warrant will be directed to a police officer or police officers, rather than PSOs. 3

 


 

Division 2--Amendment of the Control of Weapons Act 1990 Clause 5 amends section 10D of the Control of Weapons Act 1990 by inserting references to PSOs (in addition to police officers). Under amended section 10D(2) and (3)(a), the size of a declared planned designated search area and the period of operation of the declaration must be limited to the size or period (as relevant) that is reasonably necessary to enable the police officers or PSOs to effectively respond to the threat of violence or disorder. Under amended section 10D(5)(c), the Chief Commissioner's published notice of declaration of a planned designated search area must specify the powers that police officers or PSOs are authorised to exercise in the designated area while the declaration is in force. Clause 6 amends section 10E of the Control of Weapons Act 1990 by inserting references to PSOs (in addition to police officers). Under amended section 10E(1)(b), the Chief Commissioner may declare an area to be an unplanned designated search area if satisfied that it is necessary to enable police officers or PSOs to exercise search powers to prevent or deter the occurrence of likely violence or disorder. Under amended section 10E(3) and (4)(a), the size of a declared unplanned designated search area and the period of operation of the declaration must be limited to the size or period (as relevant) that is reasonably necessary to enable to enable police officers or PSOs to effectively respond to the threat of violence or disorder. Clause 7 inserts new section 10GA into the Control of Weapons Act 1990, to give PSOs power to search people in a designated search area, based on police officers' existing power under section 10G. New section 10GA(1) provides that a PSO on duty at a designated place may, without warrant, stop and search a person, and search any thing in their possession or under the person's control for weapons, if the person and thing are in a public place within a designated area. New section 10GA(2) applies specified provisions of Schedule 1 excluding provisions relating to strip searches, which PSOs will not be authorised to conduct. The effect is that PSOs will be 4

 


 

required to conduct searches in accordance with those provisions (as is the case for police officers). New section 10GA(3) provides that a PSO may only conduct a search under 10GA if police officers are also conducting searches in the designated area at the relevant time. This is to ensure operational supervision of PSOs by police during these searches. New section 10GA(4) provides that a PSO must conduct the least invasive search that is practicable in the circumstances (as is the case for police officers). New section 10GA(5) provides that a PSO may detain a person for so long as is reasonably necessary to conduct such a search (as is the case for police officers). Clause 8 amends section 10H of the Control of Weapons Act 1990 by inserting references to PSOs (in addition to police officers). Subclause (1) amends section 10H(1) to empower a PSO on duty at a designated place to stop and search without warrant a vehicle, and anything in or on the vehicle, for weapons if the vehicle is in a public place within a designated area, and there is a person in or on the vehicle. Subclause (2) amends section 10H(2) to empower a PSO (as is the case for a police officer) to detain a vehicle for so long as is reasonably necessary to conduct such a search. Clause 9 amends section 10I of the Control of Weapons Act 1990. Subclause (1) inserts new section 10I(1A) to require a PSO to give a person specified information before conducting a search (as a police officer is required to do under section 10I(1)). Subclause (2) amends section 10I(2) to include a reference to new section 10I(1A)(e). The effect is that a PSO does not need to give a person a search notice if the person has refused or does not wish to accept it (as is the case in respect of police officers). Subclause (3) amends section 10I(3)(c) by inserting a reference to PSOs on duty at a designated place (in addition to police officers). The effect is that a search notice under section 10I must state that police officers--or PSOs on duty at a designated place--are empowered to search the person and any thing in the person's possession or control, or the vehicle (as the case requires) for weapons. 5

 


 

Subclause (4) amends section 10I(3)(d) by inserting a reference to PSOs on duty at a designated place (in addition to police officers). The effect is that a search notice under section 10I must state that it is an offence for a person (who is the subject of a search) to obstruct or hinder a PSO in the exercise of a power to stop and search a person or vehicle (as is the case in respect of a police officer). Clause 10 amends section 10J of the Control of Weapons Act 1990. Subclause (1) inserts new section 10J(1A), to enable a PSO to seize and detain any item detected during a search under section 10GA or 10H that the PSO reasonably suspects is a weapon (as is the case for a police officer under section 10G or 10H). Subclause (2) amends section 10J(2) by inserting a reference to a PSO (in addition to a police officer). The effect is that if a police officer or PSO who seizes and detains an item under section 10J, determines after examining the item that it is not a weapon, the police officer or PSO must return the item to the person from whom it was seized, without delay. Clause 11 inserts new section 10L(3) into the Control of Weapons Act 1990, to make it an offence to obstruct or hinder a PSO in the exercise of a power under the Act to stop and search a person or vehicle or to seize and detain a thing (as is the case in respect of a police officer). It is a defence to this offence if a person has a reasonable excuse for the conduct. Division 3--Amendment of the Corrections Act 1986 Clause 12 inserts definitions of designated place and protective services officer into section 3(1) of the Corrections Act 1986. The terms have the same meaning as in the Victoria Police Act 2013. Clause 13 amends section 77B of the Corrections Act 1986, by inserting new section 77B(1A), (1B) and (1C). The combined effect is to enable a PSO on duty at a designated place to arrest a prisoner whose parole has been cancelled or taken to be cancelled, pursuant to an arrest warrant issued under subsection 77B(1)(a). 6

 


 

New section 77B(1A) provides that where a warrant has been issued under section 77B(1)(a), a PSO on duty at a designated place may arrest a prisoner who is at or in the vicinity of the designated place. New section 77B(1B) provides that if a PSO arrests such a person, the PSO must hand the person into the custody of a police officer as soon as practicable after arrest. New section 77B(1C) provides that the PSO may arrest the person despite the warrant not being directed to a named PSO or generally all PSO. This is because the warrant will be directed to a police officer or police officers, rather than PSOs. Clause 14 amends section 78B of the Corrections Act 1986. Subclause (1) amends section 78B(1) by inserting a reference to a PSO on duty at a designated place (in addition to a police officer). The effect is that a police officer or a PSO on duty at a designated place may, without warrant, arrest a prisoner released under a parole order if he or she suspects on reasonable grounds that the prisoner has committed an offence against section 78A. Subclause (2) inserts new section 78B(1A), to provide that if a PSO arrests a prisoner under section 78B(1), the PSO must hand the prisoner into the custody of a police officer as soon as practicable after arrest. Subclauses (3)(a) and (3)(b) amend section 78B(2) by inserting a reference (respectively) to-- • a PSO on duty at a designated place (in addition to a police officer); and • a police officer who has received custody of a prisoner from a PSO. The combined effect of the subclause (3) amendments is that a prisoner arrested under section 78B(1) or under any other power of arrest of a police officer or PSO--if suspected on reasonable grounds of committing an offence against section 78A--may be detained in custody if the police officer who arrested the prisoner or received custody of the prisoner from a PSO is satisfied that-- • the parole breach is not trivial; and • detention is necessary to prevent continued or further parole breach. 7

 


 

Subclause (4) amends section 78B(3) by inserting a reference to a PSO on duty at a designated place (in addition to a police officer). The effect is that a PSO or police officer who arrests a prisoner suspected of breaching a term or condition of parole must detain that person in custody if the alleged breach is the commission of an offence punishable by imprisonment (other than the breach offence itself under section 78A) or a breach of a prescribed term or condition of the parole order. Subclause (5) amends section 78B(4) to require a police officer who has arrested a prisoner or received custody of a prisoner from a PSO to notify the Adult Parole Board within 12 hours after the arrest. Subclause (6) inserts a new section 78(4A) to provide that a PSO may only arrest a prisoner without a warrant under section 78B if the person is at or in the vicinity of a designated place. Division 4--Amendment of the Crimes Act 1958 Clause 15 amends section 456AA of the Crimes Act 1958 to extend to PSOs on duty at a designated place the police power to request the name and address of a suspected offender or a suspected witness to an indictable offence. Subclause (1) amends section 456AA(1) by inserting references to a PSO on duty at a designated place (in addition to a police officer). The effect is that a police officer or PSO may request a person's name and address if the police officer or PSO believes on reasonable grounds that the person has committed or is about to commit an offence (whether summary or indictable), or may be able to assist in the investigation of an indictable offence. Subclause (2), (3), (4), (5) and (6) amend section 456AA(2), (3), (4) and (5) by inserting a reference to a PSO (in addition to a police officer). The combined effect is that-- • the police officer or PSO must provide the person with sufficient detail of the grounds for their belief; • a person who refuses or fails to comply with the request of the police officer or PSO, states a materially false name, or does not state their full and correct residential or business address, is guilty of an offence; 8

 


 

• a person requested by a police officer or PSO to state their name and address may request the officer to state their name, rank and place of duty; and • a police officer or PSO who refuses to state their name, rank and place of duty, or provides materially false information, is guilty of an offence. Subclause (7) inserts new section 456AA(6) and (7). Section 456AA(6) provides that a PSO may only exercise power under section 456AA in relation to a person who is at, or in the vicinity of, a designated place. Section 456AA(7) provides that for the purposes of section 456AA, the term designated place has the same meaning as in the Victoria Police Act 2013. Division 5--Amendment of the Drugs, Poisons and Controlled Substances Act 1981 Clause 16 inserts a definition of designated place into section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981. The term has the same meaning as in the Victoria Police Act 2013. The definition is used in section 60BA and new section 82A. Clause 17 repeals section 60BA(7) of the Drugs, Poisons and Controlled Substances Act 1981, given that clause 16 relocates the definition of designated place to section 4(1). Clause 18 inserts new section 82A into the Drugs, Poisons and Controlled Substances Act 1981, to enable a PSO on duty at a designated place to exercise certain police powers under section 82 to search without warrant for drugs of dependence or psychoactive substances. The police power to search for psychoactive substances is being introduced by the Drugs, Poison and Controlled Substances Miscellaneous Amendment Bill 2017. PSOs will be able to exercise these powers in relation to a person at, or in the vicinity of, a designated place. PSOs (as is the case for police officers) will have power, on reasonable suspicion of the presence of a drug of dependence or psychoactive substance in respect of which a Part V offence has been committed (or is reasonably suspected to have been committed), to search a vehicle, animal or person, and seize any 9

 


 

drug of dependence or psychoactive substance (or an associated instrument, device or substance). Unlike police officers, PSOs will not have power to search a boat, vessel or aircraft, nor the power to carry away any drug of dependence, psychoactive substance, or associated instrument, device or substance. Instead, a PSO must give any seized drug of dependence, psychoactive substance, or associated instrument, device or substance, to a police officer as soon as practicable after the seizure, and the police officer must deal with that item according to law as if it had been seized by that police officer under section 82. Division 6--Amendment of the Liquor Control Reform Act 1998 Clause 19 amends section 141(1AB) of the Liquor Control Reform Act 1998 to insert a reference to section 119(3). The effect is that if a PSO has reason to believe that a person (other than a licensee, permittee or employee of a licensee acting in the course of employment) has supplied liquor to a minor at or in the vicinity of a designated place, the PSO may serve an infringement notice on that person. This is in addition to PSOs' existing power under section 141(1AB) to serve an infringement notice on a minor who has committed the section 123(1)(b) offence of possessing or consuming liquor at or in the vicinity of a designated place. Part 3--Amendment of Second-Hand Dealers and Pawnbrokers Act 1989--scrap metal Clause 20 inserts an additional purpose into section 1 of the Second-Hand Dealers and Pawnbrokers Act 1989-- • to prevent and disrupt criminal activity in the dealing of scrap metal. Clause 21 inserts the following definitions into section 3(1) of the Second-Hand Dealers and Pawnbrokers Act 1989-- • e-currency has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth; 10

 


 

• motor vehicle means-- • a motor vehicle within the meaning of the Road Safety Act 1986, whether or not in working condition or complete; or • the body, engine or chassis of a motor vehicle; • scrap metal means any thing of commercial value that-- • is made from or contains metal; and • is sold or obtained as scrap for recycling or reprocessing of the metal-- but does not include any thing prescribed not to be scrap metal; • vehicle identifier has the same meaning as in the Road Safety Act 1986. This clause also makes a consequential formatting amendment in the definition of Tribunal. Clause 22 inserts new sections 19A and 19B into the Second-Hand Dealers and Pawnbrokers Act 1989, to prohibit-- • cash-based scrap metal transactions; and • the purchase, sale, disposal or possession of unidentified motor vehicles. New section 19A(1) provides that a second-hand dealer who buys or sells scrap metal must not pay for or receive payment for scrap metal in cash. New section 19A(2) provides that a second-hand dealer who buys or sells scrap metal must pay for or receive payment for scrap metal by-- • a cheque which is not transferable or payable to cash; or • an electronic transfer of funds which does not involve e-currency; or • any other prescribed form of payment. New section 19B(1) provides that a second-hand dealer must not buy scrap metal that consists of a motor vehicle if the vehicle identifier has been removed, obliterated, defaced or altered. 11

 


 

New section 19B(2) provides that a second-hand dealer must not sell or otherwise dispose of scrap metal that consists of a motor vehicle if the vehicle identifier has been removed, obliterated, defaced or altered unless authorised to do so by a police officer in writing. New section 19B(3) prohibits a second-hand dealer from possessing scrap metal that consists of a motor vehicle if the vehicle identifier has been removed, obliterated, defaced or altered unless authorised to do so by a police officer in writing. These offences are intended to cover circumstances in which, for example, a motor vehicle compliance plate has been removed and replaced with another. To avoid retrospectivity, clause 27 provides that the section 19B(2) and (3) offences will only apply where a second-hand dealer comes into possession of the motor vehicle after the commencement date of the new offence. The maximum penalty for contravening each of the new section 19A and 19B provisions is 200 penalty units. These offences will apply, for example, in respect of a second-hand dealer who buys a car stolen from a manufacturer. Clause 23 inserts new section 20(2) into the Second-Hand Dealers and Pawnbrokers Act 1989, to require a second-hand dealer to keep, in the prescribed form and containing prescribed information, accurate and complete records of every transaction, whether conducted on the business premises or elsewhere, by which the dealer receives or disposes of scrap metal. The maximum penalty for contravening this provision is 20 penalty units. Clause 24 inserts a new section 25(1A) in the Second-Hand Dealers and Pawnbrokers Act 1989. This new section enables a police officer to enter business premises or storage premises occupied or controlled by a second-hand dealer, when a business of dealing in scrap metal is being carried on there, or the police officer reasonably believes that such a business is being carried on there. In circumstances where business is being carried on from a residence, a police officer may enter the part of the premises that constitutes the business premises. 12

 


 

Clause 25 inserts new Division 4 into Part 5 of the Second-Hand Dealers and Pawnbrokers Act 1989. These new enforcement provisions for police officers (in respect of second-hand dealers) largely mirror existing enforcement provisions for inspectors (in respect of pawnbrokers) in Division 2 of Part 5 of the Act. Search warrants New section 26ZG(1) provides that a police officer may apply to a magistrate for a search warrant in relation to particular premises to monitor compliance with the Act or the regulations in relation to second-hand dealers. New section 26ZG(2) provides that a magistrate, if satisfied by the police officer's evidence that the warrant is necessary, may issue a search warrant authorising a named police officer (together with any other person identified in the warrant and with any necessary equipment) to-- • enter the specified premises (if necessary by force); and • search, seize, secure against interference, examine, inspect, make copies and/or take extracts from any thing or things described in the warrant which the police officer believes on reasonable grounds to be connected with a contravention or the Act or regulations in relation to second-hand dealers. New section 26ZG(3) provides that the search warrant must state-- • the purpose for which the search is required; • any conditions to which the warrant is subject; • whether entry is authorised at any time of the day or night or during stated hours of the day or night; and • a day on which the warrant ceases to have effect (being no later than 28 days after the date of issue). New section 26ZG(3) provides that except as provided by the Second-Hand Dealers and Pawnbrokers Act 1989, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 apply to these search warrants. 13

 


 

Announcement before entry New section 26ZH provides that the police officer executing the search warrant must announce that they are authorised by warrant to enter the premises, and--if unable to obtain unforced entry-- must give any person at the premises an opportunity to allow entry. A police officer need not comply with these provisions if they believe on reasonable grounds that immediate entry is required to ensure any person's safety, or to ensure that effective execution of the search warrant is not frustrated. Details of warrant to be given to occupier New section 26ZI provides that the police officer must identify themselves to the occupier of the premises (if present) and give the occupier a copy of the warrant. If the occupier is not present, the police officer must identify themselves and give a copy of the warrant to another person (if present) at the premises. Seizure of things not mentioned in warrant New section 26ZJ provides that a search warrant under section 26ZG authorises a police officer executing the warrant (in addition to the seizure of any thing described in the warrant) to seize or take a sample of any thing not described in the warrant if the police officer believes on reasonable grounds-- • that the thing is of a kind which could have been included in a Division 4 search warrant; and • (in the case of seizure) that seizure is necessary to prevent its concealment, loss or destruction or its use in contravening the Act. Embargo notice New section 26ZK(1) provides that a police officer executing a search warrant under section 26ZG who is authorised to seize any thing may, if the thing cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form-- • by causing a copy of the notice to be served on the occupier; or • if the occupier cannot be located after having taken all reasonable steps, by affixing a copy of the notice to the thing in a prominent position. 14

 


 

New section 26ZK(2) provides that a person who knows an embargo notice relates to a thing and who sells, leases, moves (without the written consent of the police officer), transfers or otherwise deals with the thing (or any part) is guilty of an offence. The maximum penalty is 50 penalty units. New section 26ZK(3) provides that it is a defence to prove that the accused moved the thing (or part) to protect and preserve it. New section 26ZK(4) provides that a sale, lease, transfer or other dealing with a thing in contravention of new section 26ZK is void, despite anything in any other Act. Copies of seized documents New section 26ZL(1) provides that if a police officer retains possession of a document taken or seized from a person under new Division 4, the police officer must give the person, within 21 days of seizure, a copy of the document certified as correct by the police officer. New section 26ZL(2) provides that such a document is evidence of equal validity to the original in all courts and tribunals. Retention and return of seized documents or things New section 26ZM(1) provides that if a police officer seizes a document or thing under new Division 4, the police officer must take reasonable steps to return it to the person from whom it was seized if the reason for seizure no longer exists. New section 26ZM(2) provides that if the document or thing seized has not been returned within 3 months after seizure, the police officer must take reasonable steps to return it unless-- • proceedings for which the document or thing was retained have commenced within that 3 month period but have not been completed (including any appeal); or • the Magistrates' Court makes an order under section 26ZN extending the period during which the document or thing may be retained. Magistrates' Court may extend 3 month period New section 26ZN(1) provides for a police officer to apply to the Magistrates' Court within 3 months of seizure--or before the end of any period of extension under section 26N--for an extension 15

 


 

not exceeding 3 months. The total period of retention must not exceed 12 months. New section 26ZN(2) provides that the Magistrates' Court may order such an extension if satisfied that the total retention period does not exceed 12 months and retention is necessary-- • for an investigation into whether the Act or regulations have been contravened; or • to obtain evidence of a contravention of the Act or regulations for a proceeding under the Act. New section 26ZN(3) provides that the Magistrates' Court may adjourn an application to enable notice of the application to be given to any person. Requirement to assist police officer during entry New section 26ZO provides that a police officer exercising a power of entry pursuant to a section 26ZG warrant may require the occupier of the premises (or an agent or employee) to give information, produce documents and give reasonable assistance. Refusal or failure to comply with requirement New section 26ZP makes it an offence for a person to refuse or fail, without reasonable excuse, to comply with a requirement of a police officer under new Division 4. The maximum penalty is 50 penalty units. Rule against self-incrimination does not apply New section 26ZQ provides that the rule against self- incrimination does not apply where a person is required to answer a question or produce a document under new Division 4. Offence to give false or misleading information New section 26ZR makes it an offence to give false or misleading information to a police officer under new Division 4. The maximum penalty is 50 penalty units. Service of documents New section 26ZS makes provision for the service of documents under new Division 4. 16

 


 

Clause 26 inserts a reference to section 26ZS into section 27(1) of the Second-Hand Dealers and Pawnbrokers Act 1989. The effect is that the deemed service requirements in section 27 will be subject to new section 26ZS. Clause 27 inserts a new Part 7 into the Second-Hand Dealers and Pawnbrokers Act 1989. New section 32 of this Part is a transitional provision, with the effect that the offences under section 19B(2) and (3) of that Act will only apply where a second-hand dealer comes into possession of scrap metal that consists of a motor vehicle after the commencement date of these new offences. Part 4--Police custody officer supervisors Division 1--Corrections Act 1986 Clause 28 amends section 3(1) of the Corrections Act 1986. This clause inserts the definition of police custody officer supervisor and provides that the term has the same meaning as in the Victoria Police Act 2013. Clause 29 substitutes the definition of officer in charge in section 104A of the Corrections Act 1986 to mean a police officer who is for the time being in charge of the police gaol and who is authorised to direct police custody officer supervisors and police custody officers in the performance of their functions, duties and powers. Clause 30 amends section 104AB of the Corrections Act 1986 to provide that a police custody officer supervisor and a police custody officer may exercise powers in a police gaol, where the Governor in Council makes an order under section 200AC declaring this. The Governor in Council can make an order on the recommendation of the Minister. Clause 31 amends section 104AC of the Corrections Act 1986 to provide that the officer in charge of a police gaol and a police custody officer supervisor have the authority to make decisions in relation to visitors in police gaols under this section. Section 104AC(1) is amended to provide that any person may enter the police gaol and visit a detained person with the permission of either the officer in charge of a police gaol or a police custody officer supervisor. 17

 


 

Section 104AC(2) is amended to provide that, if a person wishing to enter a police gaol to visit a detained person is a lawyer acting in the course of the lawyer's practice, the officer in charge of the police gaol or a police custody officer supervisor must not unreasonably refuse permission to the lawyer to enter the police gaol. In deciding whether it is appropriate to give or refuse permission, the officer in charge of the police gaol or the police custody officer supervisor must have regard to the interests of the security of the police gaol and the safe custody of any person held at the police gaol and the principle that a person held in custody should, in the interests of justice, have reasonable access to a legal representative. Section 104AC(3) is amended to provide that if a person wishing to enter a police gaol is under the age of 18, the officer in charge of the police gaol or a police custody officer supervisor may require the person to be accompanied by a parent or guardian. Section 104AC(9) is amended to provide that the officer in charge of a police gaol or a police custody officer supervisor may order a visitor to leave a police gaol if the officer in charge or the police custody officer supervisor believes on reasonable grounds that the order is necessary for the security, good order and management of the police gaol or for the safety of any person at the police gaol. New section 104AC(11) provides that the officer in charge of the police gaol is able to overturn a decision made by a police custody officer supervisor under section 104AC(2), (3) and (9) and decide the matter. Clause 32 amends section 104AD(1) of the Corrections Act 1986 to provide that a detained person, must at the request of a police custody officer supervisor, a police officer or a police custody officer, give the detained person's full name, date of birth and most recent residential address. It is an offence to fail to provide the information requested. The maximum penalty for this offence is 2 penalty units. Clause 33 amends section 104AE of the Corrections Act 1986 to authorise a police custody officer supervisor, a police officer and a police custody officer, to give to a detained person any order that the officer believes on reasonable grounds is necessary for the security, good order or management of the police gaol or for the safety of any person at the police gaol. 18

 


 

Clause 34 amends section 104AF(1) of the Corrections Act 1986 to authorise a police custody officer supervisor, a police officer or a police custody officer, to take photographs of a detained person for the purpose of identification or the compilation of records concerning the person at any time after the person is detained. Section 104AF(3) is also amended to provide that a police custody officer supervisor, a police officer or a police custody officer, may give to a detained person all necessary orders to enable the taking of accurate photographs. Clause 35 amends section 104AG of the Corrections Act 1986 to provide that it is an offence for a detained person to disobey a lawful order given by a police officer, a police custody officer supervisor or a police custody officer under Division 2 of Part 9A. The maximum penalty for this offence is 10 penalty units. Clause 36 amends section 104AH of the Corrections Act 1986 to provide that the officer in charge of a police gaol and a police custody officer supervisor have the authority to give directions under this section. Section 104AH(1) is amended to provide that the officer in charge of a police gaol may apply or authorise a police officer, a police custody officer supervisor or a police custody officer to apply an instrument of restraint to a detained person in certain circumstances. Firstly, a police officer may apply an instrument of restraint while the person is being moved under escort from one location to another. Secondly, a police custody officer supervisor or a police custody officer may apply an instrument of restraint while the person is being moved under escort from one place to another within the police gaol. Restraints can be applied in these circumstances if the officer in charge of police gaol believes on reasonable grounds that the restraint is necessary to ensure the secure transfer of the person. Finally, the officer in charge of a police gaol can also apply or authorise the application of restraints where exceptional circumstances exist and restraint is necessary to prevent an assault on, or injury to, any person or substantial damage to property. New section 104AH(1A) provides that a police custody officer supervisor is authorised to apply or authorise a police custody officer to apply an instrument of restraint to a detained person in certain circumstances. Firstly, an instrument of restraint may 19

 


 

be applied while the person is being moved under escort from one place to another within the police gaol if the police custody officer supervisor believes on reasonable grounds that it is necessary to ensure secure transfer of the person. Secondly, a police custody officer supervisor may apply or authorised a police custody officer to apply an instrument of restraint where exceptional circumstances exist and the restraint is necessary to prevent an assault on, or injury to, any person or substantial damage to property. Section 104AH(2) is substituted to provide that application of restraints by a police custody officer supervisor, a police officer or a police custody officer must be in a manner determined by the Chief Commissioner. New section 104AH(3) provides that the officer in charge of a police gaol is able to overturn a decision made by a police custody officer supervisor under section 104AH(1A) and decide the matter. Clause 37 substitutes section 104C(1) of the Corrections Act 1986 to provide that the officer in charge of a police gaol may conduct a search under new section 104C(1A) or (1B) or order a police custody officer supervisor, a police officer or a police custody officer to conduct a search under new section 104C(1A) or (1B). Section 104C(1) also provides that a police custody officer supervisor may conduct a search under new section 104C(1A) or order a police custody officer to conduct a search under new section 104C(1A). New section 104C(1A) provides that for the good order of a police gaol or detained persons, the officer in charge of a police gaol, a police officer, a police custody officer supervisor or a police custody officer may conduct the following searches-- • search any part of the police gaol; • search and examine any charged person, a visitor to the police gaol, a police custody officer or any other person in the police gaol (other than a police officer); • search and examine any thing in the police gaol or held by Victoria Police on behalf of a detained person; 20

 


 

• as well as the formal search required by section 104B, require a person wishing to enter a police gaol, to submit to a search and examination of the person and of any thing in the person's possession or under the person's control; • conduct any search under any of the circumstances above, at random. New section 104C(1B) provides that the officer in charge of a police gaol, a police officer, a police custody officer supervisor or a police custody officer may search and examine a police officer or search and examine a police officer at random. Searches performed by a police officer, a police custody officer supervisor or police custody officer under new section 104C(1B) must be authorised by the officer in charge of a police gaol. Section 104C(2) is amended to provide that the searches under new section 104C(1A)(b) and (c) cannot be performed on a person wishing to enter a police gaol who is-- • a judge of the Supreme Court or County Court; or • a magistrate; • a relative or friend of a detained person; or • visiting a detained person who is a child within the meaning of the Children, Youth and Families Act 2005. Section 104C(3) is amended to provide that the officer in charge of a police gaol is authorised to search or examine or order a police officer, a police custody officer supervisor or a police custody officer to search or examine a detained person (other than a charged person) if the officer in charge believes on reasonable grounds that it is necessary-- • for the security or good order of the police gaol; or • for the safety of persons at the police gaol (whether in custody or not); or • to locate a weapon, or any thing that may be used in the escape of a person from a police gaol; or 21

 


 

• to locate any thing connected with, or affording evidence of, the commission of the offence for which the person is detained in the police gaol. New section 104C(3A) provides that a police custody officer supervisor is authorised to search or examine or order a police custody officer to search or examine a detained person (other than a charged person) if the police custody officer supervisor believes on reasonable grounds that it is necessary-- • for the security or good order of the police gaol; or • for the safety of persons at the police gaol (whether in custody or not); or • to locate a weapon, or any thing that may be used in the escape of a person from a police gaol; or • to locate any thing connected with, or affording evidence of, the commission of the offence for which the person is detained in the police gaol. Section 104C(4) is amended to provide that if a person (other than a detained person, police officer or police custody officer) refuses to submit to a search under section 104C, the officer in charge of a police gaol or a police custody officer supervisor may order the person to leave the police gaol immediately. Section 104C(6) is amended to provide that the officer in charge of a police gaol or a police custody officer supervisor may at any time make an order terminating a search under section 104C. New section 104C(7) provides that the officer in charge of a police gaol is able to overturn a decision made by a police custody officer supervisor under section 104C(1)(b) or (3A) and decide the matter. Clause 38 amends section 104DA(1) of the Corrections Act 1986 to provide that the Chief Commissioner or a police custody officer supervisor (subject to the direction of the Chief Commissioner) has the authority to direct a police custody officer to transport persons. 22

 


 

Specifically, under 104DA(1) a police custody officer supervisor, is authorised to direct a police custody officer to-- • transport a detained person to any place (including a police station, hospital, court or another police gaol); and • transport a person who is to be detained in a police gaol from any place (including a police station, hospital, court or another police gaol) to the police gaol; and • transport a patient from a designated mental health service to a court, a police gaol or another designated mental health service; and • transport a patient from a court or police gaol to a designated mental health service; and • transport a person detained in a remand centre, youth residential centre or youth justice centre from that centre to a court or police gaol; and • transport a person who is to be detained in a remand centre, youth residential centre or youth justice centre from a court or police gaol to such a centre. Section 104DA(2) of the Corrections Act 1986 has been amended to explicitly provide that if the Chief Commissioner or a police custody officer supervisor (as the case requires) has directed a police custody officer to transport or supervise a person under 104DA(1) that police custody officer may transport the person to and supervise the person at a hospital or other medical facility, if necessary. Section 104DA(3) of the Corrections Act 1986 has been amended to explicitly provide that a police custody officer must comply with a direction given by the Chief Commissioner or a police custody officer supervisor. Under this section, a police custody officer supervisor remains subject to the direction of the Chief Commissioner of Police, or in practice, the Chief Commissioner's delegate. Clause 39 amends section 104DB(1)(f) to provide that when exercising their functions under this division, a police custody officer must take all reasonable steps to ensure the person is transported to or from, or supervised at, the appropriate place in accordance with 23

 


 

the Chief Commissioner's or a police custody officer supervisor's direction. Section 104DB(2)(d) is also amended to provide that the Chief Commissioner or a police custody officer supervisor has the authority to direct a police custody officer to apply an instrument of restraint to a person they are transporting or supervising for the duration of the transport or supervision if there is a reasonable belief that the application of the instrument of restraint is necessary to prevent the escape of the person or the assault of, or injury to any person. This amendment to section 104DB(2)(d) explicitly provides that either the Chief Commissioner of Police or a police custody officer supervisor can form the reasonable belief on which a police custody officer is able to apply an instrument of restraint to a person under this section. Under this section, a police custody officer supervisor remains subject to the direction of the Chief Commissioner of Police, or in practice, the Chief Commissioner's delegate. Clause 40 amends section 104DC(1) to provides that if a police custody officer is directed, by either the Chief Commissioner of Police or a police custody officer supervisor, to transport or supervise a person under Division 4 of Part 9A, any provision of an Act or regulation, or of a warrant or order of a court or of any order or instrument under an Act which authorises a police officer to transport a person, must be taken to also authorise a police custody officer to transport or supervise that person in place of a police officer in accordance with that authorisation. Division 2--Victoria Police Act 2013 Clause 41 amends section 3(1) of the Victoria Police Act 2013. This clause inserts the definition of police custody officer supervisor and provides that the term means a Victoria Police employee authorised to act as a police custody officer supervisor by the Chief Commissioner under new section 200AC of the Victoria Police Act 2013. Clause 42 amends the heading to section 89A of the Victoria Police Act 2013. The new heading is "Targeted testing--police custody officer supervisors and police custody officers". 24

 


 

Section 89A(1) of the Victoria Police Act 2013 is amended to enable the targeted testing of police custody officer supervisors and police custody officers who are rostered on for consumption of alcohol or a drug of dependence. This amendment ensures that that police custody officers supervisors, in addition to police custody officers, are subject to targeted testing directions similar to those applying to Victoria Police personnel other than Victoria Police employees. Clause 43 amends section 94(2) which deals with random testing for consumption of alcohol or a drug of dependence. This amendment ensures that Division 5 of Part 5 applies to police custody officer supervisors. Clause 44 amends the heading to Part 11A of the Victoria Police Act 2013. The new heading is "Police custody officer supervisors and police custody officers". Clause 45 inserts a new Division 1A after Division 1 of Part 11A of the Victoria Police Act 2013. The new heading to Division 1A is "Division 1A--Duties and authorisation of police custody officer supervisors". New section 200AB(1) outlines the duties of a police custody officer supervisor which involves-- • supervising police custody officers at the police gaol and other locations in accordance with the Victoria Police Act 2013 and the Corrections Act 1986; and • performing administrative functions relevant to the management and organisation of police custody officers; and • making decisions in accordance with Part 9A of the Corrections Act 1986. New section 200AB(2) clarifies that a police custody officer supervisor also has all the functions, duties and powers of a police custody officer in Part 11A of the Victoria Police Act 2013 and in the following Acts-- • Part 9A of the Corrections Act 1986; • the Court Security Act 1980; • the Crimes Act 1958; 25

 


 

• the Road Safety Act 1986; • the Sentencing Act 1991. New section 200AC allows the Chief Commissioner of Police to authorise a Victoria Police employee to act as a police custody officer supervisor. Subsection (2) allows the Chief Commissioner to make an authorisation subject to any conditions or limitations. New section 200AD clarifies that the Chief Commissioner can limit the scope of an authorisation under section 200AD, by specifying powers that the police custody officer supervisor may or may not exercise, at any time. Subsection (2) specifies that the Chief Commissioner must give the police custody officer supervisor written notice of the limitations that the Chief Commissioner is placing on their authorisation. Subsection (3) provides that a limitation on an authorisation takes effect when the police custody officer supervisor receives a notice provided under subsection (2). New section 200AE provides that the Chief Commissioner may also vary, suspend or revoke an authorisation provided to a Victoria Police employee under section 200AC at any time. Clause 46 amends the heading to Division 2 of Part 11A of the Victoria Police Act 2013. The new heading is "Division 2--Duties and authorisation of police custody officers". Clause 47 amends section 200B of the Victoria Police Act 2013 to clarify the duties of police custody officers. Section 200B(a) is amended to provide that police custody officers' duties are focused on the operation of police gaols and administrative support at police stations, not the management and operation of police stations and police gaols. Administrative support would include maintaining, filing and updating records, property management and completing routine correspondence and reports. Section 200B(c) is amended to provide that police custody officers are to perform duties that are required for the purposes of section 200B(a) and (b) as determined by the Chief Commissioner from time to time. 26

 


 

Clause 48 amends the heading to 200C of the Victoria Police Act 2013. The new heading is "Police custody officer supervisors and police custody officers". Section 200C of the Victoria Police Act 2013 is also amended to provide that the Governor in Council may declare a police gaol at which police custody officer supervisors and police custody officers can exercise their powers under of Part 9A of the Corrections Act 1986. Clause 49 amends section 200M(2)(b)(i) of the Victoria Police Act 2013 to correct a typographical error. The section incorrectly refers to policy rather than police. Part 5--Protective services officers--in the vicinity of a designated place Clause 50 inserts new section 24(1B) into the Bail Act 1977. The effect is that a PSO may only exercise the power under section 24 (to arrest without warrant a person released on bail) in relation to a person who is at, or in the vicinity of, a designated place. Clause 51 inserts new section 4(A) into the Control of Weapons Act 1990. New section 4A(1) provides that, subject to subsection (2) a PSO may only exercise powers under that Act in relation to a person who is at, or in the vicinity of, a designated place. New section 4A(2) qualifies 4A(1) to provide that a PSO may serve an infringement under section 11B of the Control of Weapons Act 1990 in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. This ensures that a PSO can issue an infringement to a person by mail, once the PSO has left the designated place, providing that the alleged offence occurred at or in the vicinity of the designated place. New section 4A(3) provides that a PSO may only exercise powers under that Act in relation to a designated area if the designated area overlaps with, or is in the vicinity of, a designated place. 27

 


 

Clause 52 inserts new section 459(2A) into the Crimes Act 1958. The effect is that a PSO may only exercise the section 459 (to apprehend an offender without warrant) in relation to a person who is at, or in the vicinity of, a designated place. Clause 53 amends the Graffiti Prevention Act 2007. New section 11(1B) provides that a PSO may only exercise the power to serve an infringement notice under section 11 in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. This ensures that a PSO can issue an infringement to a person by mail, once the PSO has left the designated place, providing that the alleged offence occurred at or in the vicinity of the designated place. New section 13(5) provides that a PSO may only exercise power under section 13 (search and seizure without warrant in respect of a prescribed graffiti implement) in relation to a person, or vehicle, package or thing in the possession of the person who is at, or in the vicinity of, a designated place. Clause 54 amends the Liquor Control Reform Act 1998. New section 125A provides that a PSO may only exercise powers under Division 3 of that Act in relation to a person who is at, or in the vicinity of, a designated place. New section 141(1AC) provides that a PSO may only exercise the power to serve an infringement notice under section 141 in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. This ensures that a PSO can issue an infringement to a person by mail, once the PSO has left the designated place, providing that the alleged offence occurred at or in the vicinity of the designated place. Clause 55 inserts new section 65(1B) into the Magistrates' Court Act 1989. The effect is that a PSO may only exercise the power under section 65 (to arrest a person in respect of whom an arrest warrant has been issued) in relation to a person who is at, or in the vicinity of, a designated place. 28

 


 

Clause 56 inserts new section 351(4B) into the Mental Health Act 2014. The effect is that a PSO may only exercise the power under section 351 (to apprehend a person who appears mentally ill, to prevent serious and imminent harm) in relation to a person who is at, or in the vicinity of, a designated place. Clause 57 amends the Summary Offences Act 1966. New section 6(4A) provides that a PSO may only exercise the power under section 6 (to give a direction to move on) to a person in a public place that is at, or in the vicinity of, a designated place. New section 60AA(1C) provides that a PSO may only exercise the power to serve an infringement notice under section 60AA in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. This ensures that a PSO can issue an infringement to a person by mail, once the PSO has left the designated place, providing that the alleged offence occurred at or in the vicinity of the designated place. Clause 58 amends the Transport (Compliance and Miscellaneous) Act 1983. Subclause (1) amends the heading to Division 1 of Part VII of that Act as a result of the insertion of new section 208A. Subclause (2) inserts new section 208A. New section 208A(1) provides that a PSO may only exercise the powers under Part VII of the Act in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. New section 208A(2) provides that a PSO may only exercise the section 229 prosecution power in relation to a person who was at, or in the vicinity of, a designated place at the time of the alleged offence. Part 6--Other miscellaneous amendments Clause 59 inserts new section 347A into the Children, Youth and Families Act 2005. New section 347A(1) provides that for the purposes of facilitating the transportation of a child to or from a court or a youth justice facility, a child may be temporarily held or detained in a police gaol for no more than 2 working days. 29

 


 

New section 347A(2) sets out protections that will apply where a child is held or detained in a police gaol under subsection (2). The protections largely mirror those in section 347(2) of the Act (which apply in respect of a child remanded in custody who is placed in a police gaol). The exception is new section 347(2)(a), which requires (as opposed to entitles) a child to be kept separate from adults detained in a police gaol. New section 347A(3) provides that it is the responsibility of the Chief Commissioner to make sure that subsection (2) is complied with. Clause 60 amends section 67 of the Victoria Police Act 2013. Subclause (1) inserts new section 67(2)(ab). This is to enable the Chief Commissioner to require a police officer or PSO to be examined by a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student) nominated by the Chief Commissioner. This expands the medical professionals who may conduct psychological fitness for duty assessments (which form part of Victoria Police's ill-health retirement process). Subclause (2) inserts a reference to new section 67(2)(ab) into section 67(2)(b). The effect is that the Chief Commissioner may require the person conducting the examination to give a medical report of the examination to the police officer or PSO and the Chief Commissioner. Part 7--Repeal of amending Act Clause 61 provides for the repeal of this Bill on 30 May 2019. The repeal does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 30

 


 

 


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