Summary Offences and Control of Weapons Acts Amendment Act 2009

Summary Offences and Control of Weapons Acts Amendment Act 2009

No. 92 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments to Summary Offences
Act 1966

3New Division 1A inserted in Part I

Division 1A—Move on powers

6Direction by police to move on

4Persons found drunk

5Persons found drunk and disorderly

6New section 17A inserted

17ADisorderly conduct

7Power to serve infringement notice

8Infringement penalty

Part 3—Amendments to Control of Weapons Act 1990

9New section 10 substituted

10Search without a warrant

10Duty to make records concerning searches

11Chief Commissioner to report on searches without warrant

12New sections 10C to 10L inserted

10CDefinitions

10DPlanned designation of search area

10EUnplanned designation of search area

10FDelegation by Chief Commissioner

10GPower to search persons in designated area

10HPower to search vehicles

10IInformation to be given before search occurs

10JSeizure of suspected weapons

10KPower to obtain disclosure of identity

10LOffence to obstruct or hinder search or other powers orfail to comply with direction

13New Schedule 1 inserted

SCHEDULE 1—Conduct of Searches

1Application of Schedule

2Definitions

3Initial electronic device search

4Examination of things

5Outer search of the person

6Preservation of dignity during outer search

7Strip searches

8Information to be provided before strip search

9Rules for strip searches

10Examination of clothing

11Rules for searches of children

12Rules for searches of persons with impaired intellectual functioning

Part 4—Repeal of Amending Act

14Repeal of amending Act

═══════════════

Endnotes

SectionPage

Victoria

SectionPage

Summary Offences and Control of Weapons Acts Amendment Act 2009[†]

No. 92 of 2009

[Assented to 15 December 2009]

Summary Offences and Control of Weapons Acts Amendment Act 2009
No. 92 of 2009

The Parliament of Victoriaenacts:

Part 4—Repeal of Amending Act

Summary Offences and Control of Weapons Acts Amendment Act 2009
No. 92 of 2009

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Control of Weapons Act 1990 to provide police with enhanced powers to search for weapons; and

(b)to amend the Summary Offences Act 1966—

(i)to increase penalties for offences relating to public drunkenness; and

(ii)to create an offence of disorderly behaviour in a public place; and

(iii)to permit the enforcement of those offences by service of an infringement notice; and

(iv)to give the police move-on powers in relation to specified areas to prevent breaches of the peace.

2Commencement

s. 2

This Actcomes into operation on the day after the day on which this Act receives the Royal Assent.

______

Part 2—Amendments to Summary Offences Act1966

3New Division 1A inserted in Part I

s. 3

See:
Act No.
7405.
Reprint No. 1
as at
1 January 2009
and amending
Act Nos
9/2008, 46/2008, 1/2009 and 7/2009.
LawToday:
www.
legislation.
vic.gov.au

After Division 1 of Part I of the Summary Offences Act 1966 insert—

"Division 1A—Move-on powers

6Direction by police to move on

(1)A member of the police force may give a direction to a person or persons in a public place to leave the public place, or part of the public place, if the member suspects on reasonable grounds that—

(a)the person is or persons are breaching, or likely to breach, the peace; or

(b)the personis or personsare endangering, or likely to endanger, the safety of any other person; or

(c)the behaviour of the person orpersons is likely to cause injury to a person or damage to property or is otherwise a risk to public safety.

(2)A direction under this section may be given orally.

(3)A direction under this section may direct the person or persons not toreturn to the public place or part of a public place or not to be in that public place or part for a specified periodof not more than 24 hours.

(4)A person must not without reasonable excuse contravene a direction given to the person under this section.

Penalty:5 penalty units.

(5)This section does not apply in relation to a person who, whether in the company of other persons or not, is—

(a)picketing a place of employment; or

(b)demonstrating or protesting about a particular issue; or

(c)speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person's view about a particular issue.".

4Persons found drunk

s. 4

In the penalty at the foot of section 13 of the Summary Offences Act 1966for "1 penalty unit" substitute "4 penalty units".

5Persons found drunk and disorderly

(1)In section 14 of the Summary Offences Act 1966, after "offence" insert "and may be arrested by a member of the police force and lodged in safe custody".

(2)In the penalty at the foot of section 14 of the Summary Offences Act 1966, for "1 penalty unit" substitute "5 penalty units".

6New section 17A inserted

After section 17 of the Summary Offences Act 1966 insert—

"17ADisorderly conduct

Any person who behaves in a disorderly manner in a public place is guilty of an offence and liable to a penalty not exceeding 5 penalty units.".

7Power to serve infringement notice

s. 7

(1)In section 60AA(1) of the Summary Offences Act 1966, for "section 18" substitute "section 6, 13, 14, 17A or18".

(2)For the note at the foot of section 60AA(1) of the Summary Offences Act 1966substitute—

"Note

Section 6 deals with persons whoare in a public place and are directed to move on.

Section 13 deals with persons who are found drunk in a public place.

Section 14 deals with persons who are drunk and disorderly in a public place.

Section 17A deals with disorderly behaviour by a person in a public place.

Section 18 deals with offensive behaviour by a person in a motor vehicle in a declared area.".

(3)After section 60AA(2) of the Summary Offences Act 1966 insert—

"(3)Despite subsection (1), an infringement notice cannot be served on a person for an alleged offence against—

(a)section 14, if an infringement notice has been served on that person for an alleged offence against section 17A arising out of the same incident;

(b)section 17A, if an infringement notice has been served on that person for an alleged offence against section 14 arising out of the same incident.".

8Infringement penalty

s. 8

After section 60AB(2) of the Summary Offences Act 1966 insert—

"(3)Despite subsection (1), the infringement penalty for an alleged offence against section 6, 13, 14 or 17A for which an infringement notice may be served is 2 penalty units.".

______

Part 3—Amendments to Control of Weapons Act1990

9New section 10 substituted

s. 9

See:
Act No.
24/1990.
Reprint No. 4
as at
8 November 2007
and amending
Act Nos
55/2009 and 59/2009.
LawToday:
www.
legislation.
vic.gov.au

For section 10 of the Control of Weapons Act 1990 substitute—

"10Search without a warrant

(1)If—

(a)a member of the police force has reasonable grounds for suspecting that a person is carrying or has in his or her possession in a public place a weapon contrary to this Act; and

(b)the member informs the person of the grounds for his or her suspicion; and

(c)the member complies with subsection(3)—

the member may, without a warrant—

(d)search the person and any vehicle or thing in his or her possession or under his or her control for the weapon; and

(e)seize and detain any item detected during the search that the member reasonably suspects is a weapon.

(2)For the purposes of subsection (1)(a), the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds for suspecting that the person is carrying a weapon or has a weapon in his or her possession.

(3)Before a member of the police force commences a search of a person under subsection (1), the member must—

(a)inform the person of the member's name, rank and place of duty; and

(b)if requested by the person, provide the information referred to in paragraph (a) in writing; and

(c)produce his or her identification for inspection by the person, unless the member is in uniform; and

(d)inform the person that the member intends to search the person or the vehicle or thing (as the case requires) for weapons and is empowered to do so under this Act.

(4)Schedule 1 applies to the search of a person or thing under this section.

(5)A member of the police force must conduct the least invasive search that is practicable in the circumstances.

(6)A member of the police force may detain a person for so long as is reasonably necessary to conduct a search under this section.

(7)In this section,weapon means—

(a)a prohibited weapon; or

(b)a controlled weapon; or

(c)a dangerous article.".

10Duty to make records concerning searches

s. 10

In section 10A of the Control of Weapons Act 1990—

(a)in subsections (1) and (3), after "section 10" insert "or 10G"; and

(b)in subsection (4), after "section 10(3)(a)" insert "or 10I(1)(a) or clause 8(1)(a) of Schedule 1".

11Chief Commissioner to report on searches without warrant

s. 11

After section 10B(a) of the Control of Weapons Act 1990insert—

"(ab)the number of strip searches conducted under section 10G during that financial year; and".

12New sections 10C to 10L inserted

After section 10B of the Control of Weapons Act 1990 insert—

"10CDefinitions

In this section and in sections 10D to 10L—

designated area means an area in respect of which a declaration under section 10D or 10E is in effect;

thing includes any object, article or material;

weapon means—

(a)a prohibited weapon; or

(b)a controlled weapon; or

(c)a dangerous article.

10DPlanned designation of search area

(1)The Chief Commissioner may declare an area to be a designated area if the Chief Commissioner is satisfied that—

(a)either—

(i)more than one incident of violence or disorderhas occurred in that area in the previous 12 months that involved the use of weapons; or

(ii)an event is to be held in that area and incidents of violence or disorder involving the use of weapons have occurred at previous occasions of that event (wherever occurring); and

(b)there is a likelihood that the violence or disorder will recur.

(2)The area designated must not be larger than is reasonably necessary to enable members of the police force to effectively respond to the threat of violence or disorder.

(3)The period ofoperation of a declaration under this section—

s. 12

(a)must be not longer than is reasonably necessaryto enable members of the police force to effectively respond to the threat of violence or disorder; and

(b)must not exceed 12 hours.

(4)The Chief Commissioner must publish a notice of the declaration of an area under this section in—

(a)the Government Gazette; and

(b)in a daily newspaper circulating generally in Victoria; and

(c)if the declared area is outside the metropolitan area, in a daily newspaper circulating generally within that area, if such a newspaper exists.

(5)The notice must—

(a)describe the designated area; and

(b)include a map of the designated area; and

(c)specify the powers that members of the police force are authorised to exercise in the designated area while the declaration is in force; and

(d)specify the period of operation of the declaration.

(6)A declaration under this section takes effect on the date and time specified in the notice which must not be less than 7 days after the date of the publication of the notice in the Government Gazette.

(7)A declaration under this section ceases to have effect at the time specified in the notice.

s. 12

(8)If a declaration is made under this section in respect of an area, a further declaration under this section cannot take effect in respect of that area until after the end of the period of 10 days after the previous order ceases to have effect.

(9)Nothing in subsection (8) prevents a declaration being made under section 10E in respect of that area during that period.

(10)In this section,metropolitan area means the area or areas specified by the Governor in Council for the purposes of this section by Order published in the Government Gazette.

10EUnplanned designation of search area

(1)The Chief Commissioner may,in writing, declare an area to be a designated area if the Chief Commissioner is satisfied that—

(a)it is likely that violence or disorder involving weapons will occur in that area during the period of intended operation of the declaration; and

(b)it is necessary to designate the area for the purpose of enabling members of the police force to exercise search powers to prevent or deter the occurrence of any violence or disorder that the Chief Commissioner is satisfied is likely to occur.

(2)The declaration under this section must specify—

(a)the designated area; and

(b)the period of operation of the declaration.

(3)The area designated under this section must not be larger than is reasonably necessary to enable members of the police force to effectively respond to the threat of violence or disorder.

(4)The period ofoperation of a declaration under this section—

s. 12

(a)must be not longer than is reasonably necessaryto enable members of the police force to effectively respond to the threat of violence or disorder; and

(b)must not exceed 12 hours.

(5)A declaration under this section has effect for the period specified in the declaration.

10FDelegation by Chief Commissioner

Despite section 6A(1) of the Police Regulation Act 1958, the Chief Commissioner may delegate a power under section 10D or 10E only to a member of the police force of or above the rank of inspector.

10GPower to search persons in designated area

(1)A member of the police force may, without a warrant, stop and search a person, and search any thingin the possession of or under the control of the person for weapons, if the person and, if applicable, the thingare in a public place that is within a designated area.

(2)Schedule 1 applies to the search of a person or thing under this section.

(3)A member of the police force must conduct the least invasive search that is practicable in the circumstances.

(4)A member of the police force may detain a person for so long as is reasonably necessary to conduct a search under this section.

10HPower to search vehicles

s. 12

(1)A member of the police force may, without a warrant, stop and search a vehicle, and anything in or on the vehicle, for weapons if—

(a)the vehicle is in a public place that is within a designated area; and

(b)there is a person in or on the vehicle.

(2)A member of the police force may detain a vehicle for so long as is reasonably necessary to conduct a search under this section.

10IInformation to be given before search occurs

(1)When a member of the police force detains a person or a vehicle under section 10G or10H to conduct a search, the member must—

(a)if requested by the person, inform the person to be searched or a person in or on the vehicle, as the case requires, of the member's name, rank and place of duty; and

(b)if requested by the person, provide the information referred to in paragraph (a) in writing; and

(c)produce his or her identification for inspection by the person, unless the member is in uniform; and

(d)inform the person that the member intends to search the person or the vehicle (as the case requires) for weapons and is empowered to do so under this Act; and

(e)give the person a search notice that complies with subsection (3).

s. 12

(2)Subsection (1)(e) does not apply if the person has been offered the search notice and has refused or does not wish to accept it.

(3)A search notice must state that—

(a)the person or vehicle is in a public place that is within a designated area; and

(b)a declaration is in force under section10D or10E (asthe case requires); and

(c)members of the police force are empowered to search the person and any thing in the possession or control of the person, or the vehicle (asthe case requires) for weapons; and

(d)it is offence for the person to obstruct or hinder a member of the police force in the exercise of a power to stop and search a person or a vehicle.

10JSeizure of suspected weapons

(1)A member of the police force may seize and detainany item detected during a search under section 10G or 10H that the member reasonably suspects is a weapon.

(2)If a member of the police force who seizes and detains an item under this section, determines after examination of the item that it is not a weapon, the member must return the item to the person from whom it was seized, without delay.

10KPower to obtain disclosure of identity

s. 12

(1)A member of the police force may request a person who is to be subject to a strip search under Schedule 1 and whose identity is unknown to the member to disclose his or her identity.

(2)A person who is so requested to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request.

Penalty:1 penalty unit.

(3)A person must not, without reasonable excuse, in response to any such request—

(a)give a name that is false in a material particular; or

(b)give an address other than the person's full and correct address.

Penalty:1 penalty unit.

10LOffence to obstruct or hinder search or other powers or fail to comply with direction

A person must not, without reasonable excuse—

(a)obstruct or hinder a member of the police force in the exercise of a power under section 10, 10G, 10Hor 10J to stop and search a person or vehicle or to seize and detaina thing; or

(b)fail to comply with a direction given by a member of the force under clause 7(2) of Schedule 1.

Penalty:2 penalty units.".

13New Schedule 1 inserted

s. 13

After section 15 of the Control of Weapons Act 1990 insert—

"______

SCHEDULE 1

Sections 10 and 10G(2)

Conduct of Searches

1Application of Schedule

This Schedule applies to any search of a person or any thing in the possession or under the control of a person carried out, or authorised to be carried out, by a member of the force under section 10 or 10G, except as otherwise provided by this Act or the regulations.

2Definitions

In this Schedule—

child means a person under the age of 18years;

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

impaired intellectual functioning means—

(a)total or partial loss of a person's mental functions; or

(b)a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or

s. 13

(c)a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour;

initial electronic device search meansa search of a person or thing by passing an electronic metal detection device over or in close proximity to the person's outer clothing or the thing;

strip search of a person means a search of the person or of a thing in the possession or under the control of the person that may include—

(a)requiring the person to remove all of his or her clothes; and

(b)an examination of the person's body (but not of the person's body cavities) and of those clothes;

thing includes any object, article or material;

transgender person means a person, whether or not the person is a recognised transgender person—

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

s. 13

(b)who has identified as a member of the opposite sex by living as a member of the opposite sex; or

(c)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 or not the person is, or was, in fact a transgender person;

weapon means—

(a)a prohibited weapon; or