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This is a Bill, not an Act. For current law, see the Acts databases.


TERRORISM (EXTRAORDINARY POWERS) AMENDMENT BILL 2018

                       Western Australia


Terrorism (Extraordinary Powers) Amendment
                  Bill 2018

                           Contents

   1.   Short title                                                  2
   2.   Commencement                                                 2
   3.   Act amended                                                  2
   4.   Part 2 Division 4 deleted                                    2
   5.   Part 2A inserted                                             2
        Part 2A -- Police use of force: ongoing terrorist acts
        21A.      Interpretation                                2
        21B.      Non-application of Part to certain officers   3
        21C.      Commissioner may declare this Part
                  applies to terrorist act                      3
        21D.      Declaration must be in writing                4
        21E.      Declaration may be revoked                    5
        21F.      Police action authorised under declaration    5
        21G.      Part does not limit police powers relating
                  to terrorism                                  6
        21H.      Commissioner's functions under this Part
                  may be performed by authorised Deputy
                  Commissioner                                  6
   6.   Section 31 amended                                           7
   7.   Sections 31A, 31B and 31C inserted                           7
        31A.      Power to appoint special officers             7
        31B.      Provisions relating to special officer
                  appointments                                  8
        31C.      Functions of special officers                 9




                              61--1                                  page i
                           Western Australia


                     LEGISLATIVE ASSEMBLY


Terrorism (Extraordinary Powers) Amendment
                  Bill 2018

                               A Bill for


An Act to amend the Terrorism (Extraordinary Powers) Act 2005.



The Parliament of Western Australia enacts as follows:




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1    1.       Short title
2             This is the Terrorism (Extraordinary Powers) Amendment
3             Act 2018.

4    2.       Commencement
5             This Act comes into operation as follows --
6              (a) sections 1 and 2 -- on the day on which this Act
7                    receives the Royal Assent;
8              (b) the rest of the Act -- on the day after that day.

9    3.       Act amended
10            This Act amends the Terrorism (Extraordinary Powers)
11            Act 2005.

12   4.       Part 2 Division 4 deleted
13            Delete Part 2 Division 4.

14   5.       Part 2A inserted
15            After section 21 insert:
16


17                 Part 2A -- Police use of force: ongoing
18                            terrorist acts
19          21A.    Interpretation
20                  In this Part --
21                  declaration means a declaration made under
22                  section 21C(1);
23                  declared incident means an incident in respect of
24                  which a declaration is made;




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1            detain has the meaning given in The Criminal Code
2            section 332(1).

3    21B.    Non-application of Part to certain officers
4      (1)   In this section --
5            support officer means any of the following --
6              (a) a special constable appointed under the Police
7                     Act 1892 section 35(1);
8              (b) an Aboriginal police liaison officer appointed
9                     under the Police Act 1892 section 38B(1);
10             (c) a police auxiliary officer appointed under the
11                    Police Act 1892 section 38G(1).
12     (2)   For the purposes of the Police Act 1892 sections 36,
13           38C and 38H --
14             (a) a support officer does not have any of the
15                   powers, duties or obligations that a police
16                   officer has under this Part; and
17            (b) any authorisation, exemption or exception in
18                   this Part that applies to a police officer does not
19                   apply to a support officer; and
20             (c) a reference in this Part to a police officer does
21                   not include a reference to a support officer.
22     (3)   Despite the Corruption, Crime and Misconduct
23           Act 2003 section 184(3c), an authorised officer as
24           defined in the Corruption, Crime and Misconduct
25           Act 2003 section 184(1) who is not a police officer
26           does not have, and may not perform, the functions that
27           a police officer has and may perform under this Part.

28   21C.    Commissioner may declare this Part applies to
29           terrorist act
30     (1)   The Commissioner may declare that this Part applies to
31           an incident to which police officers are responding if


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1                   the Commissioner is satisfied there are reasonable
2                   grounds to suspect --
3                     (a) that the incident is or is likely to be a terrorist
4                          act; and
5                     (b) that planned and coordinated police action is
6                          required --
7                             (i) to defend a person threatened by the
8                                  incident; or
9                            (ii) to prevent a person from being detained
10                                 or end the detention of a person.
11            (2)   The declaration applies to each location at which police
12                  officers are responding to the incident.
13            (3)   The Commissioner must notify the police officer in
14                  charge of the police officers responding to the declared
15                  incident that the declaration has been made.
16            (4)   The Commissioner must notify the Minister of the
17                  declaration before, or as soon as practicable after, the
18                  declaration is made.

19          21D.    Declaration must be in writing
20            (1)   Except as provided in subsection (2), a declaration
21                  must be in writing.
22            (2)   If, due to the urgency of the situation, it is not
23                  practicable to make the declaration in writing --
24                    (a) the declaration may be made orally with details
25                           recorded contemporaneously; and
26                    (b) if it is made orally, it must be put in writing as
27                           soon as practicable after it is made and in any
28                           event within 6 hours.




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1    21E.    Declaration may be revoked
2      (1)   The Commissioner may at any time revoke a
3            declaration.
4      (2)   Without limiting the power in subsection (1), if no
5            further police response is required in response to a
6            declared incident, the Commissioner must revoke the
7            declaration.
8      (3)   The Commissioner must notify the police officer in
9            charge of the police officers responding to the declared
10           incident that the declaration has been revoked.
11     (4)   If the police officer in charge of the police officers
12           responding to the declared incident becomes aware that
13           the declaration has been revoked, the police officer in
14           charge must notify the other police officers of the
15           revocation.

16   21F.    Police action authorised under declaration
17     (1)   The police action authorised under a declaration, when
18           police officers respond to a declared incident, is the
19           authorisation, direction or use of force (including lethal
20           force) that a police officer believes, on reasonable
21           grounds, is necessary to --
22             (a) defend a person threatened by the incident; or
23             (b) prevent a person from being detained or end the
24                   detention of a person.
25     (2)   A police officer who does something that, apart from
26           this section, would be an offence is not criminally
27           responsible for the offence if the thing constitutes
28           police action authorised under a declaration.
29     (3)   Nothing in this section limits the availability of any
30           excuse or defence under Chapter V or Chapter XXVI
31           of The Criminal Code.


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1             (4)   If a declaration is revoked, this section continues to
2                   apply to any action taken by a police officer before the
3                   earlier of the following --
4                     (a) when the police officer became aware of the
5                            revocation of the declaration;
6                     (b) when the police officer ought reasonably to
7                            have been aware of the revocation of the
8                            declaration.
9             (5)   If a court finds that a purported declaration was not
10                  validly made, this section continues to apply to any
11                  action taken by a police officer before the finding as if
12                  it were a valid declaration.

13          21G.    Part does not limit police powers relating to
14                  terrorism
15                  This Part does not limit the powers of police officers
16                  under any other Part of this Act, any other written law
17                  or the common law to deal with an incident that is or is
18                  likely to be a terrorist act (whether or not that incident
19                  is a declared incident).

20          21H.    Commissioner's functions under this Part may be
21                  performed by authorised Deputy Commissioner
22            (1)   In this section --
23                  authorised means authorised under subsection (3);
24                  Deputy Commissioner means a police officer who
25                  holds or is acting in the office of Deputy
26                  Commissioner.
27            (2)   The Commissioner's functions under this Part, other
28                  than the power in subsection (3), may be performed by
29                  an authorised Deputy Commissioner if --
30                    (a) the office of Commissioner is vacant; or



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1                   (b)   the Commissioner is on leave or out of the
2                         State; or
3                   (c)   the Commissioner is otherwise unavailable to
4                         exercise the functions.
5           (3)   For the purposes of this section, the Commissioner may
6                 authorise in writing one or more Deputy
7                 Commissioners to perform the Commissioner's
8                 functions under this Part.
9           (4)   If any of the Commissioner's functions under this Part
10                is performed by a person other than the Commissioner,
11                the person must notify the Commissioner of the fact as
12                soon as practicable.
13


14   6.     Section 31 amended
15          In section 31(2) after "other than" insert:
16

17          a function under Part 2A or
18


19   7.     Sections 31A, 31B and 31C inserted
20          After section 31 insert:
21


22        31A.    Power to appoint special officers
23          (1)   The Commissioner may appoint as a special officer any
24                person who is --
25                  (a) a member of the Australian Federal Police; or
26                 (b) a member of the police force of another State or
27                       of a Territory; or
28                  (c) a sworn employee of the New Zealand Police;
29                       or



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1                    (d)   a law enforcement officer of a foreign
2                          jurisdiction prescribed for the purposes of this
3                          subsection.
4             (2)   The Commissioner may appoint a person as a special
5                   officer for the purposes of Part 2 or 2A.
6             (3)   The Commissioner must not make an appointment
7                   under subsection (1) unless the Commissioner is of the
8                   opinion that the appointment is necessary --
9                     (a) in the case of an appointment for the purposes
10                         of Part 2, for the more effective exercise of the
11                         powers that may be exercised under a
12                         Commissioner's warrant as defined in
13                         section 6; or
14                   (b) in the case of an appointment for the purposes
15                         of Part 2A, to more effectively respond to a
16                         declared incident as defined in section 21A.

17          31B.    Provisions relating to special officer appointments
18            (1)   The appointment of a special officer under
19                  section 31A --
20                    (a) must be in writing; and
21                    (b) must state the date and time it is made; and
22                    (c) must state the date and time it ceases to have
23                          effect; and
24                    (d) must state whether the appointment is for the
25                          purposes of Part 2 or 2A; and
26                    (e) may be made subject to any condition the
27                          Commissioner thinks fit; and
28                     (f) must be signed by the Commissioner.
29            (2)   The date and time stated under subsection (1)(c) must
30                  not be more than 14 days after the date on which the
31                  appointment is made.


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1      (3)   The appointment of 2 or more special officers may be
2            in 1 instrument of appointment.
3      (4)   The Commissioner may cancel the appointment of a
4            special officer at any time.
5      (5)   A special officer's appointment has effect until the date
6            and time stated in it or until it is cancelled under this
7            section, whichever happens first.
8      (6)   The life of a special officer's appointment (the current
9            appointment) cannot be extended, but nothing prevents
10           the Commissioner from making a further appointment
11           under section 31A that has effect from the time the
12           current appointment ceases to have effect.

13   31C.    Functions of special officers
14     (1)   In this section --
15           Part 2 special officer means a person appointed under
16           section 31A for the purposes of Part 2;
17           Part 2A special officer means a person appointed
18           under section 31A for the purposes of Part 2A;
19           special officer means a Part 2 special officer or a
20           Part 2A special officer.
21     (2)   Unless a special officer's appointment provides to the
22           contrary, a Part 2 special officer --
23             (a) has and may perform any function that a police
24                  officer has and may perform under Part 2; and
25             (b) in connection with exercising any such
26                  function, has and may perform any function
27                  that a police officer has under this Act other
28                  than Part 2A, any other written law or the
29                  common law.




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1              (3)   Unless a special officer's appointment provides to the
2                    contrary --
3                      (a) a Part 2A special officer --
4                              (i) has and may perform any function that a
5                                    police officer has and may perform
6                                    under Part 2A; and
7                             (ii) in connection with exercising any such
8                                    function, has and may perform any
9                                    function that a police officer has under
10                                   this Act other than Part 2, any other
11                                   written law or the common law;
12                          and
13                     (b) Part 2A applies to a Part 2A special officer as if
14                          any reference in Part 2A to a police officer
15                          includes a reference to the Part 2A special
16                          officer.
17             (4)   A special officer is to be taken to be a public officer for
18                   the purposes of The Criminal Code.
19             (5)   For the purposes of the Police Act 1892 section 137, a
20                   special officer is to be taken to be a member of the
21                   Police Force performing or purporting to perform the
22                   functions of a member of the Police Force if --
23                     (a) the special officer is a Part 2 special officer
24                           exercising a function under subsection (2)(a)
25                           or (b); or
26                     (b) the special officer is a Part 2A special officer
27                           exercising a function under subsection (3)(a).
28


29




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