Law Enforcement (Powers and Responsibilities) Act 2002

This Act is the Law Enforcement (Powers and Responsibilities) Act 2002.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

Aboriginal person means a person who—

is a member of the Aboriginal race of Australia, and

identifies as an Aboriginal person, and

is accepted by the Aboriginal community as an Aboriginal person.

apprehended violence order has the same meaning as in the Crimes (Domestic and Personal Violence) Act 2007.

authorised officer means—

a Judge of the Local Court, or

a Children’s Judge of the Children’s Court, or

a registrar of the Local Court, or

an employee of the Attorney General’s Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office.

body cavities of a person do not include the person’s mouth.

BWV equipment, for Part 8A—see section 108A(1).

Commissioner means the Commissioner of Police.

computer, for Part 5, Division 4A—see section 76AA.

correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.

covert search warrant means a search warrant issued under Division 2 of Part 5 that may be executed covertly.

crime scene means premises established as a crime scene under Part 7.

crime scene power means a power set out in section 95.

crime scene warrant means a warrant issued under section 94.

criminal organisation search warrant means a search warrant issued under Division 2 of Part 5 in relation to an organised crime offence.

custody manager means the police officer having from time to time the responsibility for the care, control and safety of a person detained at a police station or other place of detention.

dangerous article means—

a firearm, a spare barrel for any such firearm, or any ammunition for any such firearm, or

a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or

a spear gun, or

an article or device, not being such a firearm, capable of discharging by any means—

any irritant matter in liquid, powder, gas or chemical form or any dense smoke, or

any substance capable of causing bodily harm, or

a fuse capable of use with an explosive or a detonator, or

a detonator.

dangerous implement means—

a dangerous article, or

a knife (including a knife blade, razor blade or any other blade), or

any other implement made or adapted for use for causing injury to a person, or

anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property, or

a laser pointer,

but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.

DECCD access order, for Part 5A, see section 80A.

DECCD offence, for Part 5A, see section 80A.

digital evidence access order, for Part 5—see section 46.

drug offence means the possession, control or supply by a person of any prohibited drug or prohibited plant in contravention of the Drug Misuse and Trafficking Act 1985.

dwelling includes—

any building or other structure intended for occupation as a dwelling and capable of being so occupied, whether or not it has ever been so occupied, and

a vessel or vehicle in or on which any person resides, and

any building or other structure within the same curtilage as a dwelling and occupied with, or the use of which is ancillary to the occupation of, the dwelling.

electronic metal detection device means an electronic device that is capable of detecting the presence of metallic objects.

eligible applicant, for Part 5—see section 46.

eligible issuing officer, for Part 5—see section 46.

eligible Judge—

for Part 5—see section 46B(1), and

for Part 5A—see section 80A.

executing officer, for Part 5—see section 46.

exercise a function includes perform a duty.

face means a person’s face—

from the top of the forehead to the bottom of the chin, and

between (but not including) the ears.

face covering means an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly).

facsimile means facsimile transmission, the internet or any other means of electronic transmission of information in a form from which written material is capable of being reproduced with or without the aid of any other device or article.

firearm has the same meaning as it has in the Firearms Act 1996, and includes an imitation firearm within the meaning of that Act.

function includes a power, authority or duty.

identity of a person means the name or residential address of the person (or both).

indictable offence means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on an indictment.

laser pointer means a hand-held battery-operated device, designed or adapted to emit a laser beam, that may be used for the purposes of aiming, targeting or pointing.

lawful custody means lawful custody of the police.

manufacture has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.

NSW Police Force means the NSW Police Force established by the Police Act 1990.

occupier of premises includes a person in charge of the premises.

owner of a vehicle means the responsible person for a vehicle within the meaning of the Road Transport Act 2013, and includes—

a person who is not such an owner but who usually has the care, control and custody of the vehicle, and

any other person prescribed by the regulations for the purposes of this definition.

parent of a child means the person who has parental responsibility for the child.

parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authorities which, by law, parents have in relation to their children.

person of non-English speaking background means a person who is born in a country outside Australia and whose first language is not English.

police officer means a member of the NSW Police Force holding a position that is designated under the Police Act 1990 as a position to be held by a police officer.

premises includes any building, structure, vehicle, vessel or aircraft and any place, whether built on or not.

prohibited drug has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.

prohibited plant has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.

prohibited weapon has the same meaning as it has in the Weapons Prohibition Act 1998.

property has the same meaning as it has in the Crimes Act 1900.

public place includes—

a place (whether or not covered by water), or part of premises, that is open to the public or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, and

a road or road related area,

but does not include a school.

relevant person, for Part 5A, see section 80A.

road means a road within the meaning of section 4(1) of the Road Transport Act 2013 (other than a road that is the subject of a declaration made under section 18(1)(b) of that Act relating to all of the provisions of that Act).

road related area means a road related area within the meaning of section 4(1) of the Road Transport Act 2013 (other than a road related area that is the subject of a declaration made under section 18(1)(b) of that Act relating to all of the provisions of that Act).

roadblock authorisation means an authorisation given by a senior police officer under section 37.

scene of crime officer means a member of the NSW Police Force responsible for examining or maintaining crime scenes.

school means—

a government school or registered non-government school within the meaning of the Education Act 1990, or

a school providing education (whether secular or religious) at a pre-school or infants school level or at a primary or secondary level, or

a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, or

the land, and any building, occupied by or in connection with the conduct of such a school or place,

and includes any part of such a school or place, but does not include any building that is occupied or used solely as a residence or solely for a purpose unconnected with the conduct of such a school or place.

search warrant, for Part 5, Division 4A—see section 76AA.

senior police officer means—

a Police Area Commander, or

a Police District Commander, or

a Duty Officer for a police station, or

any other police officer of the rank of Inspector or above.

Note.

By virtue of the Interpretation Act 1987 (section 48(2)) a person acting in an office referred to above may exercise the functions of a senior police officer under this Act.

serious indictable offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

specified person, for Part 5, Division 4A—see section 76AA.

strip search means a search of a person or of articles in the possession of a person that may include—

requiring the person to remove all of his or her clothes, and

an examination of the person’s body (but not of the person’s body cavities) and of those clothes.

supply has the same meaning as it has in the Drug Misuse and Trafficking Act 1985.

telephone includes radio, facsimile and any other communication device.

Torres Strait Islander means a person who—

is a member of the Torres Strait Island race, and

identifies as a Torres Strait Islander, and

is accepted by the Torres Strait Island community as a Torres Strait Islander.

transgender person means a person (whether or not the person is a person whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction)—

who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex, or

who has identified as a member of the opposite sex by living as a member of the opposite sex, or

who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

vehicle includes a motor vehicle, trailer or other registrable vehicle within the meaning of the Road Transport Act 2013.

vehicle roadblock powers—see section 37.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

In this Act, a reference to a person who has been charged with an offence is a reference to a person—

in respect of whom a charge sheet has been completed by a police officer where proceedings for an offence are to be commenced against the person, or

against whom proceedings for an offence have been commenced.

In this Act, a reference—

to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies, and

to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.

Notes in the text of this Act do not form part of this Act.

Note.

In a heading to a provision of this Act, a reference to the Cth Act is a reference to the Crimes Act 1914 of the Commonwealth and a reference to the former LEPRA is a reference to a provision of Part 5 as in force immediately before it was amended by the Law Enforcement (Powers and Responsibilities) Amendment (Search Powers) Act 2009.

Unless this Act otherwise provides expressly or by implication, this Act does not limit—

the functions, obligations and liabilities that a police officer has as a constable at common law, or

the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

Without limiting subsection (1) and subject to section 9, nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace.

This Act does not limit the functions that a police officer has under an Act or regulation specified in Schedule 1.

The regulations may amend Schedule 1 by adding the name of an Act or a regulation to the Schedule.

However, a police officer may exercise a function under this Act for the purpose of giving effect to an Act or regulation referred to in subsection (1).

This section applies to a provision of another Act or regulation that confers functions on a police officer or other person (other than a provision of an Act or regulation referred to in section 5(1)).

To the extent of any inconsistency, this Act prevails over an Act or regulation to which this section applies.

A provision of an Act enacted after the commencement of this section is not to be interpreted as amending or repealing, or otherwise altering the effect or operation of, a provision of this Act.

Subsection (3) does not affect the interpretation of a provision of an Act so far as that Act directly amends or repeals a provision of this Act or expressly provides for that Act to have effect despite a specified provision, or despite any provision, of this Act.

Nothing in any Part of this Act limits any functions, or prevents a police officer from exercising any functions, that the police officer has under any other Part of this Act.

Note.

The general functions of police officers and other members of the NSW Police Force, and matters relating to police discipline, are dealt with in the Police Act 1990. For other Acts containing significant police and law enforcement powers, see Schedule 1.

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

A police officer may enter premises if the police officer believes on reasonable grounds that—

a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or

a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person, or

the body of a person who has died, otherwise than as a result of an offence, is on the premises and there is no occupier on the premises to consent to the entry.

Before entering premises under subsection (1)(c), the police officer must obtain approval to do so (orally or in writing) from a police officer of or above the rank of Inspector.

A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.

A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.

However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.

A police officer who enters premises under this section may search the premises for the person.

This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose.

In this section—

arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred.

A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.

Note.

Safeguards relating to the exercise of power under this section are set out in Part 15.

A person who is required by a police officer in accordance with section 11 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the requirement.

Maximum penalty—2 penalty units.