Police Powers and Responsibilities Act 2000


Queensland Crest
Police Powers and Responsibilities Act 2000

An Act about the powers and responsibilities of police officers, and for other purposes

Chapter 1 Preliminary

Part 1 General

1Short title

This Act may be cited as the Police Powers and Responsibilities Act 2000.

Editor’s note—

Uncommenced amendments to the following provisions have been included in this indicative reprint—
amendment of section 71A and schedule 6—see 2017 Act No. 13 sch 1
insertion of new section 105CA—see 2018 Act No. 20 s 22
amendment of section 789A—see 2019 Act No. 18 sch 2
amendment of sections 367, 384, 392, 421, schedule 6 and insertion of new chapter 24, part 17—see 2019 Act No. 23 pt 4.

2Commencement

(1)This Act, other than sections 379, 373, 374, 375, 376 and 377 and schedules 2 and 3, commences on a day to be fixed by proclamation or 1 July 2000, whichever happens first.
(2)Sections 373, 374, 375, 376 and 377 and schedule 2 commence on the date of assent.
(3)Section 379 and schedule 3 commence on a day to be fixed by proclamation.

3Dictionary

The dictionary in schedule 6 defines words used in this Act.

4Notes in text

A note in the text of this Act is part of this Act.

5Purposes of Act

The purposes of this Act are as follows—
(a)to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;
(b)to provide powers necessary for effective modern policing and law enforcement;
(c)to provide consistency in the nature and extent of the powers and responsibilities of police officers;
(d)to standardise the way the powers and responsibilities of police officers are to be exercised;
(e)to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;
(f)to enable the public to better understand the nature and extent of the powers and responsibilities of police officers;
(g)to provide for the forced muster of stray stock.

6Act binds all persons

(1)This Act binds all persons, including the State, and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(2)Nothing in this Act makes the State, the Commonwealth or another State liable to be prosecuted for an offence.

7Compliance with Act by police officers

(1)It is Parliament’s intention that police officers should comply with this Act in exercising powers and performing responsibilities under it.
(2)For ensuring compliance with Parliament’s intention, a police officer who contravenes this Act may be dealt with as provided by law.

Examples—

1A minor contravention, for example, forgetting to make an entry in a register, may amount to a breach of discipline under the Police Service Administration Act 1990 for which a police officer may be dealt with under that Act, including by correction by way of counselling.
2A contravention, for example, a police officer maliciously strip-searching a suspect in a public place, may amount to misconduct under the Police Service Administration Act 1990.
3A contravention, for example, a police officer improperly disclosing to a criminal information obtained through the use of a listening device, may amount to corrupt conduct under the Crime and Corruption Act 2001.
4A contravention, for example, a police officer deliberately holding a person in custody for questioning several hours after the end of a detention period with no intention of applying under this Act for an extension of the detention period, may amount to an offence of deprivation of liberty under the Criminal Code, section 355.

8Act does not affect certain principles

(1)This Act does not prevent a police officer from speaking to anyone or doing anything a police officer may lawfully do apart from this Act when performing the police officer’s duties, whether or not in relation to an offence, without exercising a power under this Act or using any form of compulsion.
(2)Also, it is not the purpose of this Act to affect the principle that everyone in the community has a social responsibility to help police officers prevent crime and discover offenders.

Part 2 Effect of Act on other laws

9Act does not affect constable’s common law powers etc.

Unless this Act otherwise provides, this Act does not affect—
(a)the powers, obligations and liabilities a constable has at common law; or
(b)the powers a police officer may lawfully exercise as an individual, including for example, powers for protecting property.

10Act does not affect court’s common law discretion to exclude evidence or stay criminal proceedings

This Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion or stay the proceeding in the interests of justice.

11Inconsistency

(1)The object of this section is to allow police officers to rely generally on this Act, as opposed to a multiplicity of Acts, for their powers and responsibilities.
(2)This section applies to a provision of another Act that confers a power or imposes a responsibility on a police officer.
(3)To the extent of any inconsistency, this Act prevails over the provision, whether enacted before or after this Act, unless the provision makes express provision to the contrary.
(4)This section applies subject to section 12.

12Relationship to other Acts

(1)This Act does not affect the powers or responsibilities a police officer has under an Act included in schedule 1.

Example—

A police officer who has entered a place under section 609 may, under the Public Health Act 2005, section 157B, take a person to a treatment or care place within the meaning of chapter 4A of that Act.
(2)However, subsection (1) does not prevent a police officer from exercising a power or performing a responsibility under this Act for giving effect to an Act included in schedule 1.

Example—

It may be necessary for a police officer to use reasonable force under this Act to enter a place to detain a person without warrant under a provision of another Act because that Act does not include a provision allowing the police officer to use reasonable force to enter the place.
(3)Also, it is lawful for a police officer to exercise a power in accordance with this Act for giving effect to an Act included in schedule 1 even though the other Act specifies the way the power may or must be exercised.

Part 3 Appointment as, and helping, public officials

Division 1 Provisions about appointments

13Appointment of police officers as public officials for other Acts

(1)This section applies if—
(a)an Act (authorising law) authorises someone (appointer) to appoint public officials for giving effect to the authorising law; and
(b)a police officer may be appointed as a public official under the authorising law.
(2)Despite the authorising law, the appointer may appoint a police officer as a public official for the authorising law only with the commissioner’s written approval to the proposed appointment.
(3)The commissioner may approve the proposed appointment only if the commissioner is satisfied the police officer proposed to be appointed—
(a)has the necessary experience or expertise to be a public official for the authorising law; or
(b)has satisfactorily completed a course of training approved by the commissioner.
(4)A police officer may exercise powers as a public official under an authorising law only if and to the extent the commissioner approves the police officer’s appointment under this section.
(5)If, under the authorising law, the commissioner is the appointer for police officers, this section does not prevent the commissioner from appointing a police officer as a public official under the authorising law.

14Declaration of police officers as public officials

(1)This section applies if, under an express provision of an Act (authorising law), a police officer is a public official.
(2)Despite the authorising law, the police officer may exercise the powers of the public official only to the extent that the commissioner first approves the exercise of the powers.
(3)The commissioner may approve the exercise of the powers only if the commissioner is satisfied the police officer—
(a)has the necessary experience or expertise to be a public official for the authorising law; or
(b)has satisfactorily completed a course of training approved by the commissioner.

Example for subsection (3)—

The commissioner may decide to approve the exercise of powers of a public official under the Biosecurity Act 2014 or the Brands Act 1915 only by police officers who are members of the unit of the police service known as the stock investigation squad.

15Authorising provisions of other Acts apply subject to ss 1314

A provision of another Act that expressly or impliedly authorises the appointment of a police officer as a public official or authorises a police officer to perform the functions of a public official applies subject to sections 13 and 14.

Division 2 Helping public officials

16Helping public officials exercise powers under other Acts

(1)This section applies if an Act (authorising law) authorises a public official to perform functions in relation to a person or thing.
(2)However, this section only applies to a police officer who is not a public official for the authorising law.
(3)If a public official asks, a police officer may help the public official perform the public official’s functions under the authorising law.
(4)Before the police officer helps the public official, the public official must explain to the police officer the powers the public official has under the authorising law.
(5)If the public official is not present or will not be present when the help is to be given, the police officer may give the help only if the police officer is satisfied giving the help in the public official’s absence is reasonably necessary in the particular circumstances.
(6)The police officer has, while helping a public official, the same powers and protection under the authorising law as the public official has.
(7)Subsection (6) is in addition to, and does not limit, the powers and protection a police officer has under this or any other Act.

17Steps police officer may take for failure to give name and address etc. to public official

(1)This section applies if a police officer reasonably suspects a person required by a public official under another Act to state the person’s name and address or date of birth has failed to comply with the requirement.
(2)The police officer may ask the person whether the person has a reasonable excuse for not complying with the requirement and, if the person gives an excuse, ask for details or further details of the excuse.
(3)If the person does not answer the question or gives an excuse that the police officer reasonably suspects is not a reasonable excuse, the police officer may, under chapter 2, part 4, require the person to state the following—
(a)the person’s name and address;
(b)the person’s date of birth.

Note—

See section 791 (Offence to contravene direction or requirement of police officer).
(4)This section does not apply if the public official is a police officer.

18Steps police officer may take for obstruction of public official

(1)This section applies if a public official claims to have been obstructed by a person in the exercise of the public official’s powers and a police officer reasonably suspects the obstruction has happened.
(2)The police officer may ask the person whether the person has a reasonable excuse for the conduct and, if the person gives an excuse, ask for details or further details of the excuse.
(3)If the person does not answer the question or gives an excuse the police officer reasonably suspects is not a reasonable excuse, the police officer may require the person to stop, or not repeat, the conduct.
(4)This section does not apply if the public official is a police officer.

Chapter 2 General enforcement powers

Part 1 Entry, inquiries and inspection

19General power to enter to make inquiries, investigations or serve documents

(1)The purpose of this section is to ensure a police officer performing a function of the police service may enter and stay on a place in circumstances that may otherwise be trespass.
(2)However, this section does not authorise entry to a private place if a provision of this Act or another Act provides for entry in the particular circumstances only under a search warrant or other stated authority.

Note—

See, for example, the Prostitution Act 1999, section 59.
(3)A police officer may enter a place and stay for a reasonable time on the place to inquire into or investigate a matter.

Examples for subsection (3)—

1The entry may be to a public area of a place such as a hotel or a nightclub for finding out if an offence is being or has been committed on the place.
2The entry may be for finding out if a person reasonably suspected of being involved in the commission of an offence is at a place.
3The entry may be for finding out if a missing person is in the place.
(4)Also, a police officer may enter and stay for a reasonable time on a place to serve a document.
(5)However, if the place contains a dwelling, the only part of the place a police officer may enter without the consent of the occupier is the part of the place that is not a dwelling.
(6)Also, the police officer may only use minimal force to enter the place.

Example for subsection (6)—

turning a door handle to open an unlocked door and opening the door

20What is a reasonable time to stay on a place

(1)What is a reasonable time to stay on a place a police officer enters to investigate a matter, make an inquiry or serve a document must be decided according to the particular circumstances.
(2)If the entry is for investigating a matter or making an inquiry, a reasonable time for a police officer to stay on a place is the time reasonably necessary for the police officer to do the following for deciding whether any other action is necessary to fulfil a function of the police service—
(a)ask questions of anyone present at the place;
(b)make any reasonable investigation or observation.

Note—

For the functions of the police service, see the Police Service Administration Act 1990, section 2.3 (Functions of service).
(3)If the entry is for serving a document, a reasonable time for a police officer to stay on a place is the time reasonably necessary for the police officer to ask questions for serving the document and to serve the document according to law.

21General power to enter to arrest or detain someone or enforce warrant

(1)A police officer may enter a place and stay for a reasonable time on the place—
(a)to arrest a person without warrant; or
(b)to arrest a person named in a warrant; or
(c)to detain a person named in a forensic procedure order or a registered corresponding forensic procedure order; or
(d)to detain a person who may be detained under an order made under section 471, 484, 485, 488 or 514; or
(e)to detain a person under another Act.

Note—

See section 635 (Use of force likely to cause damage to enter places) for relevant safeguards.
(2)If the place contains a dwelling, a police officer may enter the dwelling without the consent of the occupier to arrest or detain a person only if the police officer reasonably suspects the person to be arrested or detained is at the dwelling.
(3)If the place is a vehicle, a police officer may stop and detain the vehicle and enter it to arrest or detain the person.
(4)A police officer who enters a place under this section may search the place for the person.
(5)In this section—
arrest, a person named in a warrant, includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

21APower to enter for Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004

(1)A police officer may, at any time, enter premises where a reportable offender generally resides to verify the offender’s personal details reported by the offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.
(2)In this section—
generally reside, for a reportable offender, see the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, schedule 5.
personal details, of a reportable offender, see the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, schedule 5.
premises, for a reportable offender, does not include a part of the premises used exclusively by a person other than the offender.

21BPower to inspect storage devices for the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004

(1)A police officer may inspect a storage device in the possession of a reportable offender if—
(a)in the last 3 months, the reportable offender has been—
(i)released from government detention; or
(ii)sentenced to a supervision order; or
(b)the reportable offender has been convicted of a prescribed internet offence; or
(c)a magistrate makes a device inspection order for the reportable offender.
(2)However, a police officer may not carry out an inspection under subsection (1)(b) if at least 4 inspections have been carried out by a police officer under this section in relation to the reportable offender within the previous 12 months.
(3)If an inspection of a storage device in the possession of a reportable offender may not be carried out under subsection (1)(a) or (b), a police officer may apply to a magistrate for a device inspection order for the reportable offender.
(4)The magistrate may make the device inspection order if satisfied there is an elevated risk that the reportable offender will engage in conduct that may constitute a reportable offence against, or in relation to, a child or children.
(5)For subsection (2), each occasion on which a police officer inspects 1 or more storage devices counts as 1 inspection.
(6)In this section—
device inspection order, for a reportable offender, means an order authorising a police officer, on a stated day or on 1 day during a stated period, to inspect any storage devices in the possession of the reportable offender.
inspect, a storage device, includes inspect the storage device using software.
government detention see the Offender Reporting Act, schedule 5.
Offender Reporting Act means the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.
prescribed internet offence means—
(a)an offence against any of the following provisions of the Criminal Code—
section 218A
section 228DA
section 228DB; or
(b)an offence against any of the following provisions of the Criminal Code (Cwlth)—
section 474.19
section 474.20
section 474.22
section 474.23
section 474.25A
section 474.26
section 474.27
section 474.27A; or
(c)an offence under a law of a foreign jurisdiction that, if it had been committed in Queensland, would have constituted an offence of a kind mentioned in paragraph (a) or (b).
prescribed offence see the Offender Reporting Act, schedule 5.
reportable offence see the Offender Reporting Act, schedule 5.
reportable offender see the Offender Reporting Act, schedule 5.
storage device means a device—
(a)on which information may be stored electronically, including, for example, a smart phone; or
(b)through which information may be accessed, including, for example, from the cloud.
supervision order see the Offender Reporting Act, schedule 5.

22Power to enter etc. for relevant laws

(1)For ensuring compliance with a relevant law, a police officer may do any of the following—
(a)at any reasonable time, enter and stay on a place used for a purpose under a licence under the relevant law;
(b)inspect, photograph or copy a prescribed item there or at a place with appropriate facilities for photographing or copying the item;
(c)seize a thing to which the relevant law applies, if the thing is evidence of the commission of an offence against the relevant law or another Act;
(d)require a licence holder or someone else apparently in possession of prescribed items to produce stated prescribed items for inspection;
(e)inspect security measures a person must maintain under the relevant law;
(f)require a licence holder or person apparently in possession or in charge of the place to give to the police officer reasonable help to do something mentioned in paragraph (b) or (e).
(2)A police officer may enter a part of a place not used for the purpose for which entry is made, but only to get to the place used for the purpose.
(3)If a police officer takes a prescribed item to a place with facilities for photographing or copying the item, the police officer must—
(a)give the person from whom it is taken a receipt for the item as if it had been seized under this Act; and
(b)return the item to the place from which it was taken—
(i)as soon as practicable, but no later than the end of the next day the place is open for business; or
(ii)if a later time is agreed in writing between the police officer and the person from whom it was taken, no later than the later time.
(4)Each of the following persons is taken for this section to be a licence holder under a relevant law—
(a)a person who is required under the Drugs Misuse Act 1986, section 43D to keep a register;
(b)a person who is required under the Road Use Management Act, section 133 to record information;
(c)a person who is required under the Health Act 1937, or a regulation under that Act, to make a record in relation to a sale by retail of a substance that is a prescribed item.

Note—

At the time of enactment of this subsection, the Health (Drugs and Poisons) Regulation 1996 requires a person who sells particular poisons by retail to make a record relating to those sales. Those poisons include pseudoephedrine as an S3 poison within the meaning of that regulation. If pseudoephedrine as an S3 poison were declared to be a prescribed item, the person selling it would be taken under paragraph (c) to be a licence holder under a relevant law.
(5)Also, each of the following places is taken for this section to be a place used under a licence under a relevant law—
(a)a place used by a person to carry out activities for which entries must be made in a register as mentioned in subsection (4)(a);
(aa)a place used by a person to carry out activities for which information must be recorded as mentioned in subsection (4)(b);
(b)a place used by a person to carry out activities for which records must be made as mentioned in subsection (4)(c).
(6)In this section—
inspect includes examine and test.
prescribed item means—
(a)a document or thing that is required or permitted to be kept under a relevant law; or
(b)a thing declared under a regulation to be a prescribed item for this section.

23What is a reasonable time for entry etc. for a relevant law

(1)A reasonable time for a police officer to enter a place for exercising a power in relation to a relevant law includes—
(a)when the place is open to or used by the public; and
(b)when the police officer may reasonably expect that someone will be present at the place; and
(c)when someone is present at the place.
(2)However, if no-one is at a building on a place a police officer enters under subsection (1)(b), the time stops being a reasonable time for the entry.

24Requirement by a police officer for a relevant law

(1)This section applies if a police officer requires a licence holder or person apparently in possession or in charge of a place used for a purpose under a licence under a relevant law to give the police officer reasonable help.
(2)What is reasonable help must be decided according to the particular circumstances.

Examples for subsection (2)—

1It may be reasonable for a person who can operate a computer to help a police officer to gain access to a document on the computer so it can be inspected.
2It may be reasonable for a person to open a safe or strong room where prescribed items are kept.

25Power to demand production of licence etc. for weapons

(1)This section applies if a person is required under the Weapons Act 1990
(a)to be the holder of a licence or permit to acquire under that Act; or
(b)to have the approval of any person; or
(c)to keep a register or record.
(2)A police officer may require the person to produce to a police officer for inspection at a stated reasonable place and time, within 48 hours, any of the following documents—
(a)the photo licence or permit to acquire;
(b)a certificate or other evidence of approval;
(c)the register or record.
(3)A police officer may also require the individual to produce for inspection at a stated reasonable place and time, within 48 hours, any weapon still in the individual’s possession and mentioned in any of the documents.
(4)However, if an individual has physical possession of a weapon, a police officer may require the individual to produce immediately to the police officer for inspection the weapon and the photo licence authorising possession of the weapon.
(5)This section is in addition to, and does not limit, section 22.

Part 2 Searching persons, vehicles and places without warrant

Division 1 Roadblocks

26Roadblocks

(1)A police officer may establish a roadblock if the police officer reasonably suspects a roadblock may be effective to apprehend or locate a person in a vehicle who—
(a)has committed a seven year imprisonment offence; or
(b)may be unlawfully depriving someone else of liberty; or

Note—

For what is unlawful deprivation of liberty, see the Criminal Code, section 355.
(c)is being unlawfully deprived of liberty; or
(d)has escaped from lawful custody; or
(e)may be endangering the life or safety of someone else.
(2)In deciding whether to establish a roadblock, the police officer must have regard to the following—
(a)when and where the relevant circumstances happened;
(b)information the police officer has about where the person sought may be travelling in a vehicle.
(3)A police officer may stop all vehicles or any vehicle at the roadblock and detain each vehicle stopped for the time reasonably necessary to search it to find out if a person mentioned in subsection (1) is in it.

27Procedure for establishing roadblocks

Before a police officer decides where to establish a roadblock, the senior police officer present must consider—
(a)the effect the roadblock may have on road safety and public safety; and
(b)the likelihood of a dangerous situation happening if a person sought is located at the roadblock; and
(c)any other relevant safety considerations.

Example—

If the person sought is believed to be armed and dangerous, the police officer establishing the roadblock may decide not to establish it in a populated location.

28Record of roadblock to be made

The senior police officer present at a roadblock must ensure—
(a)a record is made of relevant details of the roadblock including, for example, the reasons for establishing it, when and where it was established, for how long, and whether the roadblock led to a person sought being located or arrested; and
(b)a copy of the record is given to a person nominated by the commissioner for the purpose.

Division 2 Searching persons without warrant

29Searching persons without warrant

(1)A police officer who reasonably suspects any of the prescribed circumstances for searching a person without a warrant exist may, without a warrant, do any of the following—
(a)stop and detain a person;
(b)search the person and anything in the person’s possession for anything relevant to the circumstances for which the person is detained.
(2)The police officer may seize all or part of a thing—
(a)that may provide evidence of the commission of an offence; or
(b)that the person intends to use to cause harm to himself, herself or someone else; or
(c)if section 30(b) applies, that is an antique firearm.

30Prescribed circumstances for searching persons without warrant

(1)The prescribed circumstances for searching a person without a warrant are as follows—
(a)the person has something that may be—
(i)a weapon, knife or explosive the person may not lawfully possess, or another thing that the person is prohibited from possessing under a domestic violence order or an interstate domestic violence order; or
(ii)an unlawful dangerous drug; or
(iii)stolen property; or
(iv)unlawfully obtained property; or
(v)tainted property; or
(vi)evidence of the commission of a seven year imprisonment offence that may be concealed on the person or destroyed; or
(vii)evidence of the commission of an offence against the Criminal Code, section 469 that may be concealed on the person or destroyed if, in the circumstances of the offence, the offence is not a seven year imprisonment offence; or
(viii)evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C; or
(ix)evidence of the commission of an offence against the Liquor Act 1992, section 168B or 168C;
(b)the person possesses an antique firearm and is not a fit and proper person to be in possession of the firearm—
(i)because of the person’s mental and physical fitness; or
(ii)because a domestic violence order has been made against the person; or
(iii)because the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon;
(c)the person has something that may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug;
(d)the person has something the person intends to use to cause harm to himself, herself or someone else;
(e)the person is at a casino and may have contravened, or attempted to contravene, the Casino Control Act 1982, section 103 or 104;
(f)the person has committed, is committing, or is about to commit—
(i)an offence against the Racing Act 2002 or Racing Integrity Act 2016; or
(ii)an offence against the Corrective Services Act 2006, section 128, 129 or 132, or the repealed Corrective Services Act 2000, section 96, 97 or 100; or
(iii)an offence that may threaten the security or management of a prison or the security of a prisoner;
(g)the person has committed, is committing, or is about to commit an offence against the Penalties and Sentences Act 1992, section 161ZI;
(h)the person has committed, or is committing, an offence against the Summary Offences Act 2005, section 10C;
(i)the person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders;
(j)the person has committed, is committing, or is about to commit, an offence against the Termination of Pregnancy Act 2018, section 15 or 16.;
(k)the person has something that may be a dangerous attachment device that has been used, or is to be used, to disrupt a relevant lawful activity.
(2)For subsection (1)(k), a relevant lawful activity is disrupted by using a dangerous attachment device if the use—
(a)unreasonably interferes with the ordinary operation of transport infrastructure within the meaning of the Transport Infrastructure Act 1994, schedule 6; or

Example—

placing an obstacle, on a railway, that stops the passage of rolling stock
(b)stops a person from entering or leaving a place of business; or
(c)causes a halt to the ordinary operation of plant or equipment because of concerns about the safety of any person.

Division 3 Searching vehicles without warrant

31Searching vehicles without warrant

(1)A police officer who reasonably suspects any of the prescribed circumstances for searching a vehicle without a warrant exist may, without warrant, do any of the following—
(a)stop a vehicle;
(b)detain a vehicle and the occupants of the vehicle;
(c)search a vehicle and anything in it for anything relevant to the circumstances for which the vehicle and its occupants are detained.
(2)Also, a police officer may stop, detain and search a vehicle and anything in it if the police officer reasonably suspects—
(a)the vehicle is being used unlawfully; or
(b)a person in the vehicle may be arrested without warrant under section 365 or under a warrant under the Corrective Services Act 2006.
(3)If the driver or a passenger in the vehicle is arrested for an offence involving something the police officer may search for under this part without a warrant, a police officer may also detain the vehicle and anyone in it and search the vehicle and anything in it.
(4)If it is impracticable to search for a thing that may be concealed in a vehicle at the place where the vehicle is stopped, the police officer may take the vehicle to a place with appropriate facilities for searching the vehicle and search the vehicle at that place.
(5)The police officer may seize all or part of a thing—
(a)that may provide evidence of the commission of an offence; or
(b)that the person intends to use to cause harm to himself, herself or someone else; or
(c)if section 32(1)(b) applies, that is an antique firearm.
(6)Power under this section to search a vehicle includes power to enter the vehicle, stay in it and re-enter it as often as necessary to remove from it a thing seized under subsection (5).

32Prescribed circumstances for searching vehicle without warrant

(1)It is a prescribed circumstance for searching a vehicle without a warrant that there is something in the vehicle that—
(a)may be a weapon, knife or explosive a person may not lawfully possess, or another thing that the person is prohibited from possessing under a domestic violence order or an interstate domestic violence order; or
(b)may be an antique firearm that a person possesses and the person is not a fit and proper person to possess the firearm—
(i)because of the person’s mental and physical fitness; or
(ii)because a domestic violence order has been made against the person; or
(iii)because the person has been found guilty of an offence involving the use, carriage, discharge or possession of a weapon; or
(c)may be an unlawful dangerous drug; or
(d)may be stolen property; or
(e)may be unlawfully obtained property; or
(f)may have been used, is being used, is intended to be used, or is primarily designed for use, as an implement of housebreaking, for unlawfully using or stealing a vehicle, or for the administration of a dangerous drug; or
(g)may be evidence of the commission of an offence against any of the following—
the Racing Act 2002
the Racing Integrity Act 2016
the Corrective Services Act 2006, section 128, 129 or 132
the Nature Conservation Act 1992; or
(h)may have been used, is being used, or is intended to be used, to commit an offence that may threaten the security or management of a prison or the security of a prisoner; or
(i)may be tainted property; or
(j)may be evidence of the commission of a seven year imprisonment offence that may be concealed or destroyed; or
(k)may be evidence of the commission of an offence against the Criminal Code, section 469 that may be concealed on the person or destroyed if, in the circumstances of the offence, the offence is not a seven year imprisonment offence; or
(l)may be evidence of the commission of an offence against the Summary Offences Act 2005, section 17, 23B or 23C; or
(m)may be something the person intends to use to cause harm to himself, herself or someone else; or
(n)may be evidence of the commission of an offence against the Penalties and Sentences Act 1992, section 161ZI; or
(o)may be evidence of the commission of an offence against the Termination of Pregnancy Act 2018, section 15 or 16.; or
(p)may be a dangerous attachment device that has been used, or is to be used, to disrupt a relevant lawful activity.
(2)Also, the following are prescribed circumstances for searching a vehicle without a warrant—
(a)the driver or a passenger in the vehicle has committed, or is committing, an offence against the Summary Offences Act 2005, section 10C;
(b)the vehicle is being used by, or is in the possession of, a person who has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.
(3)For subsection (1)(p), a relevant lawful activity is disrupted by using a dangerous attachment device if the use—
(a)unreasonably interferes with the ordinary operation of transport infrastructure within the meaning of the Transport Infrastructure Act 1994, schedule 6; or

Example—

placing an obstacle, on a railway, that stops the passage of rolling stock
(b)stops a person from entering or leaving a place of business; or
(c)causes a halt to the ordinary operation of plant or equipment because of concerns about the safety of any person.

Division 4 Searching public places without warrant

33Searching public places without warrant

(1)It is lawful for a police officer to exercise the following powers in a public place without a search warrant—
(a)power to enter the public place and to stay on it for the time reasonably necessary to exercise powers mentioned in paragraphs (b) to (f);
(b)power to search the public place for anything that may be evidence of the commission of an offence;
(c)power to seize a thing found at the public place, or on a person found at the public place, that a police officer reasonably suspects may be evidence of the commission of an offence;
(d)power to photograph anything the police officer reasonably suspects may provide evidence of the commission of an offence;
(e)power to dig up land;
(f)power to open anything that is locked.
(2)However, if this section applies to a place because it is a public place while it is ordinarily open to the public, the police officer may search the place only—
(a)with the consent of the occupier of the place; or
(b)under a search warrant; or
(c)under chapter 7, part 2.
(3)If the occupier consents, the police officer may exercise search warrant powers at the place.

Part 3 Use of detection dogs without warrant

34Definitions for pt 3

In this part—
body art tattooing business see the Tattoo Industry Act 2013, schedule 1.
detection dog means—
(a)a drug detection dog; or
(b)a firearms and explosives detection dog.
drug detection includes—
(a)walking or placing a drug detection dog in the vicinity of a person to ascertain whether the drug detection dog can detect the scent of an unlawful dangerous drug on the person; and
(b)walking or placing a drug detection dog in, on, or in the vicinity of, a vehicle or a thing to ascertain whether the drug detection dog can detect the scent of an unlawful dangerous drug in or on the vehicle or thing.
drug detection dog means a dog trained to detect unlawful dangerous drugs.
event means—
(a)a major event; or
(b)a sports, recreational or entertainment event held at a major sports facility under the Major Sports Facilities Act 2001; or
(c)a sports, recreational or entertainment event, not mentioned in paragraph (b), that is open to the public, whether on payment of a fee or not.

Example of an entertainment event for paragraph (c)—

a musical concert held at the Mt Gravatt showgrounds
explosives detection includes—
(a)walking or placing a firearms and explosives detection dog in the vicinity of a person to ascertain whether the firearms and explosives detection dog can detect the scent of explosives or firearms on the person; and
(b)walking or placing a firearms and explosives detection dog in, on, or in the vicinity of, a vehicle or a thing to ascertain whether the firearms and explosives detection dog can detect the scent of explosives or firearms in or on the vehicle or thing.
handler, of a detection dog, means a handler within the meaning of the Police Service Administration Act 1990.
tattoo parlour means a place at which a body art tattooing business is being conducted.
unlawful dangerous drug
(a)means a dangerous drug mentioned in the Drugs Misuse Regulation 1987, schedule 1; and
(b)includes—
(i)Gamma hydroxybutyric acid, commonly known as GBH; and
(ii)3,4-Methylenedioxymethamphetamine (MDMA), commonly known as Ecstasy.

35Use of detection dogs in particular places

(1)A handler may, without warrant, use a drug detection dog to carry out drug detection in relation to a relevant person or thing.
(2)A handler may, without warrant, use a firearms and explosives detection dog to carry out explosives detection in relation to a relevant person or thing.
(3)This section applies despite any other law.
(4)In this section—
relevant person or thing means—
(a)a person who is in a public place; or
(b)a person who is in the immediate vicinity of, is about to enter, is in, or is leaving, a place at which an event is being held; or
(c)a person who is about to enter, is in, or is leaving, licensed premises; or
(d)a person who is about to enter, is in, or is leaving, a tattoo parlour; or
(e)a thing in a place mentioned in paragraph (a), (b), (c) or (d), or on land associated with the place, whether or not the thing is in the physical possession of a person.

36Police officers and detection dogs may enter and remain on particular places

(1)For carrying out drug detection under section 35(1), a drug detection dog, the drug detection dog’s handler and any other police officer may enter and remain on a relevant place.
(2)For carrying out explosives detection under section 35(2), a firearms and explosives detection dog, the firearms and explosives detection dog’s handler and any other police officer may enter and remain on a relevant place.
(3)For subsections (1) and (2), the power to enter and remain on a relevant place includes power to enter and remain on land associated with the relevant place.

Example of land associated with a relevant place—

land on which car parking is provided for patrons of the relevant place
(4)This section applies despite any other law.
(5)In this section—
relevant place means—
(a)a public place; or
(b)a place at which an event is being held; or
(c)licensed premises; or
(d)a tattoo parlour.

37Reasonable suspicion may be based on indication of detection dog

(1)This section applies if a provision of this Act requires a police officer to form a reasonable suspicion that a person has something, or there is something in a vehicle, that may be an unlawful dangerous drug or explosives or firearms, before the police officer may exercise a power in relation to the person or vehicle.
(2)It is sufficient for the police officer to form a reasonable suspicion that the person has something, or there is something in the vehicle, that may be an unlawful dangerous drug or explosives or firearms, if a detection dog indicates it has detected an unlawful dangerous drug or explosives or firearms—
(a)on the person or on, or in, a thing in the person’s physical possession; or
(b)on or in a thing, not in the person’s physical possession but which the police officer reasonably suspects is connected with the person, that is at the place the detection dog is carrying out the drug detection or explosives detection; or
(c)in the vehicle.

38Protection from liability for acts done by detection dogs

(1)This section applies if—
(a)the handler of a detection dog is using the detection dog to carry out detection; and
(b)the detection dog—
(i)physically intrudes onto a person or the clothing of a person, or otherwise comes into contact with a person, while the detection dog is carrying out the detection; or
(ii)causes damage to a thing that has in or on it an unlawful dangerous drug or explosives or firearms.
(2)The handler does not incur civil liability for an act done, or omission made, honestly and without negligence, in the circumstances to which this section applies.
(3)The State does not incur civil liability in the circumstances to which this section applies—
(a)for an act done by the detection dog; or
(b)for an act or omission of the handler.
(4)However, if—
(a)the act of the detection dog; or
(b)the act or omission of the handler;

causes bodily harm to a person and subsection (2) prevents civil liability attaching to the handler, the civil liability attaches instead to the State.

(5)The handler is not criminally responsible for an act done by the detection dog in the circumstances to which this section applies other than for an attack by the detection dog on a person intentionally caused by the handler or for which the handler is criminally responsible under the Criminal Code, section 289.
(6)This section does not prevent the State or the handler from relying on another provision of an Act to limit civil liability or criminal responsibility.

Examples of other Acts that may limit civil liability or criminal responsibility—

Civil Liability Act 2003
Criminal Code, sections 25, 271, 272 and 273
Police Service Administration Act 1990, section 10.5
(7)In this section—
bodily harm includes physical injury, grievous bodily harm, and death, but does not include mental, psychological or emotional harm.
detection means drug detection under section 35(1) or explosives detection under section 35(2).
handler, of a detection dog, includes a police officer helping the handler of the detection dog.

39Effect of part on use of detection dogs under search warrants

To remove any doubt, it is declared that this part does not restrict the powers of a police officer to use a drug detection dog to carry out drug detection, or a firearms and explosives detection dog to carry out explosives detection, in conducting a search of a place under a search warrant or without a warrant.

Part 4 Power to require name, address or age

Division 1 Powers relating to name and address

40Person may be required to state name and address

(1)A police officer may require a person to state the person’s correct name and address in prescribed circumstances.
(2)Also, the police officer may require the person to give evidence of the correctness of the stated name and address if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated name or address or to otherwise be able to give the evidence.
(3)A person does not commit an offence against section 791 if the person was required by a police officer to state the person’s name and address and the person is not proved—
(a)for section 41(a) or (b)—to have committed the offence; or
(b)for section 41(f)—to be the person named in the warrant, summons, order or court document; or
(c)for section 41(h)—to have been involved or to be about to be involved in domestic violence or associated domestic violence; or
(d)for section 41(i) or (j)—to have been able to help in the investigation.
(4)Also, a person does not commit an offence against section 791 if—
(a)the person was required by a police officer to state the person’s name and address for enforcing the Tobacco and Other Smoking Products Act 1998 in relation to the supply of a smoking product to a child; and
(b)no-one is proved to have committed an offence against that Act.
(5)In this section—
address means current place of residence.

41Prescribed circumstances for requiring name and address

The prescribed circumstances for requiring a person to state the person’s name and address are as follows—
(a)a police officer finds the person committing an offence;
(b)a police officer reasonably suspects the person has committed an offence, including an extradition offence;
(c)a police officer is about to take—
(i)the person’s identifying particulars under an identifying particulars notice or an order of a court made under section 471 or 514; or
(ii)a DNA sample from the person under a DNA sample notice or an order made under section 484, 485, 488 or 514;
(d)an authorised examiner is about to perform a non-medical examination under a non-medical examination notice or under section 514;
(e)a police officer is about to give, is giving, or has given a person a noise abatement direction, an initial nuisance direction or a final nuisance direction;
(f)a police officer is attempting to enforce a warrant, forensic procedure order or registered corresponding forensic procedure order or serve on a person—
(i)a forensic procedure order or registered corresponding forensic procedure order; or
(ii)a summons; or
(iii)another court document;
(g)a police officer reasonably believes obtaining the person’s name and address is necessary for the administration or enforcement of an Act prescribed under a regulation for this section;
(h)a police officer reasonably suspects the person has been or is about to be involved in domestic violence or associated domestic violence;
(i)a police officer reasonably suspects the person may be able to help in the investigation of—
(i)domestic violence or associated domestic violence; or
(ii)a relevant vehicle incident;
(j)a police officer reasonably suspects the person may be able to help in the investigation of an alleged indictable offence because the person was near the place where the alleged offence happened before, when, or soon after it happened;
(k)the person is the person in control of a vehicle that is stationary on a road or has been stopped under section 60;
(l)under chapter 17, a qualified person for performing a forensic procedure is about to perform the forensic procedure on the person;
(m)a police officer is detaining a person for transport or admission to a sober safe centre, or a person has been admitted to, and is in custody at, a sober safe centre under chapter 14, part 5, division 2;
(n)a police officer is about to give, is giving, or has given a person a police banning notice under chapter 19, part 5A;
(o)a police officer is about to give, is giving, or has given a person any of the following under the Peace and Good Behaviour Act 1982
(i) a public safety order;
(ii)a restricted premises order;
(iii)a fortification removal order;
(p)a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.

41APower to require identifying particulars of person for official warning for consorting

(1)This section applies if—
(a)a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders; and
(b)the police officer has required the person, under section 40(2), to give evidence of the correctness of the person’s stated name and address; and
(c)the person can not provide evidence of the correctness of the person’s stated name and address when the requirement is made or at another convenient location.

Example of another convenient location—

the person’s vehicle, containing the person’s driver’s licence, parked nearby
(2)The police officer may require the person to allow the police officer to take or photograph all or any of the person’s identifying particulars for the sole purpose of establishing the name, address and date of birth of the person.
(3)The identifying particulars must be destroyed, in the presence of a justice, as soon as practicable after establishing the name, address and date of birth of the person.
(4)A person does not commit an offence against section 791 if—
(a)the person was required to do something under subsection (2); and
(b)the court is not satisfied that the police officer, at the time of making the requirement, had the power under subsection (1) to make the requirement.

Division 2 Powers relating to age

42Power for age-related offences and for particular motor vehicle related purposes

(1)This section applies if—
(a)a person is at a place and the age of the person is relevant to the person’s entitlement to be at the place; or
(b)a person is engaging in an activity and the age of the person is relevant to the person’s entitlement to engage in the activity; or
(c)the person’s age is relevant to any of the following—
(i)giving a notice in relation to a motor vehicle impounded or immobilised under chapter 4;
(ii)giving a noise abatement direction in relation to excessive noise emitted by a motorbike being driven on a place other than a road;
(iii)the making of an application for an impounding order or a forfeiture order under chapter 4;
(iv)the making of an application under section 589 for a noise abatement order;
(v)deciding whether a person is driving a motor vehicle in contravention of a provision of a regulation made under the Road Use Management Act that restricts the number of passengers below a stated age who may be in a motor vehicle while the person is driving it (a regulation restriction);
(vi)deciding whether another person is contravening the Tobacco and Other Smoking Products Act 1998, section 26VC;
(vii)detaining a person for transport or admission to a sober safe centre under chapter 14, part 5, division 2;
(viii)giving a person a police banning notice under chapter 19, part 5A.

Examples for subsection (1)—

1The age of a person is relevant to a person’s entitlement to be on licensed premises.
2The age of a person is relevant to a person’s entitlement to play a gaming machine at a casino or a club.
(2)A police officer may require a person to state the person’s correct date of birth, whether or not when requiring the person to state the person’s correct name and address.
(3)Also, the police officer may require the person to give evidence of the correctness of the stated date of birth if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated date of birth or to otherwise be able to give the evidence.
(4)If a police officer asks a person to give evidence of the person’s date of birth and is not satisfied the person is old enough to be at the place or to engage in the activity, the police officer may direct the person—
(a)to immediately leave the place, or the part of the place in which the person’s age is relevant, and not re-enter it; or
(b)not to engage in the activity.

Example for subsection (4)—

The police officer may not be satisfied the person is old enough to be at a place because of the person’s apparent age if—
(a)the person fails to provide evidence of the stated date of birth; or
(b)the police officer reasonably suspects a document purporting to establish the person’s identity and stating a date of birth does not belong to the person.
(5)A passenger in a motor vehicle does not commit an offence against section 791 if the passenger was required to state his or her correct date of birth for a reason mentioned in subsection (1)(c)(v) and the driver of the motor vehicle at the time of the alleged offence is not proved to have contravened a regulation restriction.
(6)A person in a motor vehicle does not commit an offence against section 791 if the person was required to state his or her correct date of birth for deciding whether another person is contravening the Tobacco and Other Smoking Products Act 1998, section 26VC, and the other person is not proved to have contravened the section.

43Unlawful supply of smoking products to minors

(1)This section applies if a police officer—
(a)either—
(i)observes a person being supplied a thing that the police officer reasonably suspects is a smoking product; or
(ii)reasonably suspects a person has just been supplied a smoking product; and
(b)reasonably suspects the person is under 18 years.
(2)A police officer may—
(a)ask the person to show acceptable evidence of age of the person; and
(b)require the person to produce the thing supplied to the person.
(3)The police officer may seize the smoking product if—
(a)the person either—
(i)refuses, or is unable, to comply with the request; or
(ii)shows acceptable evidence of age of the person showing the person is under 18 years; and
(b)the police officer reasonably suspects the smoking product is evidence of an offence against the Tobacco and Other Smoking Products Act 1998.
(4)In this section—
acceptable evidence of age has the meaning given to it by the Tobacco and Other Smoking Products Act 1998, section 6.
smoking product has the meaning given to it by the Tobacco and Other Smoking Products Act 1998, schedule.

43AUnlawful sale of spray paint to minors

(1)This section applies if a police officer—
(a)either—
(i)observes a person being sold a thing the police officer reasonably suspects is spray paint; or
(ii)reasonably suspects a person has just been sold spray paint; and
(b)reasonably suspects the person is under 18 years.
(2)A police officer may—
(a)ask the person to show acceptable evidence of age of the person; and
(b)require the person to produce the thing sold to the person.
(3)The police officer may seize the spray paint if—
(a)the person either—
(i)refuses, or is unable, to show acceptable evidence of the person’s age; or
(ii)shows acceptable evidence of age of the person showing the person is under 18 years; and
(b)the police officer reasonably suspects the spray paint is evidence of an offence against the Summary Offences Act 2005, section 23B or 23C.
(4)In this section—
acceptable evidence of age has the meaning given under the Summary Offences Act 2005, section 23B.
spray paint has the meaning given under the Summary Offences Act 2005, schedule 2.

43BPower to require date of birth of person for official warning for consorting

(1)This section applies if a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.
(2)The police officer may require the person to state the person’s correct date of birth, whether or not when requiring the person to state the person’s correct name and address.
(3)Also, the police officer may require the person to give evidence of the correctness of the stated date of birth if, in the circumstances, it would be reasonable to expect the person to be in possession of evidence of the correctness of the stated date of birth or to otherwise be able to give the evidence.
(4)A person does not commit an offence against section 791 if—
(a)the person was required to do something under subsection (2) or (3); and
(b)the court is not satisfied that the police officer, at the time of making the requirement, had the power under subsection (1) to make the requirement.

Part 5 Directions to move on

44Application of pt 5

This part applies in relation to the following places (regulated places)—
(a)public places, including a public place in a safe night precinct;
(b)prescribed places that are not also public places.

45Part does not apply to authorised public assemblies

This part does not apply to an authorised public assembly under the Peaceful Assembly Act 1992.

46When power applies to behaviour

(1)A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been—
(a)causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or
(b)interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or
(c)disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or
(d)disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.
(2)If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in the part of the public place at or near where the person then is.
(2A)If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in any public place located in the safe night precinct.
(3)Subsection (1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s behaviour.
(4)However, subsections (1)(b) and (3) do not limit subsection (1)(a), (c) and (d).
(5)This part also applies to a person in a regulated place if a police officer reasonably suspects that, because of the person’s behaviour, the person is soliciting for prostitution.
(6)For this part, the person’s behaviour is a relevant act.

47When power applies to a person’s presence

(1)A police officer may exercise a power under section 48 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s presence is or has been—
(a)causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or
(b)interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or
(c)disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.
(2)If the regulated place is a public place, other than a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the public place only if the person’s presence has or had the effect mentioned in subsection (1)(a), (b) or (c) in the part of the public place at or near where the person then is.
(2A)If the regulated place is a public place in a safe night precinct, subsection (1) applies in relation to a person at or near the place only if the person’s presence has or had the effect mentioned in subsection (1)(a), (b) or (c) in any public place located in the safe night precinct.
(3)Subsection (1)(b) applies to premises used for trade or business only if the occupier of the premises complains about the person’s presence.
(4)However, subsections (1)(b) and (3) do not limit subsection (1)(a) and (c).
(5)For this part, the person’s presence is a relevant act.

48Direction may be given to person

(1)A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.

Examples for subsection (1)—

1If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance.
2If a group of people have been fighting in a nightclub car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors.
3If a person has approached a primary school child near a school in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school.
(2)However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of—
(a)public safety; or
(b)public order; or
(c)the protection of the rights and freedoms of other persons.

Examples of rights and freedoms for subsection (2)(c)—

1the rights and freedoms of the public to enjoy the place
2the rights of persons to carry on lawful business in or in association with the place
(3)Without limiting subsection (1), a direction may require a person to do 1 of the following—
(a)leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;
(b)leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;
(c)move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours.
(4)The police officer must tell the person or group of persons the reasons for giving the direction.

49Review

(1)The CCC must review the use by police officers of powers under this part and prepare a report on the review.
(2)The review must be started as soon as practicable after 31 December 2007.
(3)The conduct of the review and the preparation of the report is a function of the CCC for the Crime and Corruption Act 2001.
(4)In the course of preparing the report, the CCC must consult with the Minister.
(5)The CCC must give a copy of the report to the Speaker for tabling in the Legislative Assembly.

Part 6 Breaches of the peace, riots and prevention of offences

50Dealing with breach of the peace

(1)This section applies if a police officer reasonably suspects—
(a)a breach of the peace is happening or has happened; or
(b)there is an imminent likelihood of a breach of the peace; or
(c)there is a threatened breach of the peace.
(2)It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing, or the conduct that is the breach of the peace again happening, even though the conduct prevented might otherwise be lawful.

Examples for subsection (2)—

1The police officer may detain a person until the need for the detention no longer exists.
2A person who pushes in to the front of a queue may be directed to go to the end of the queue.
3Property that may be used in or for breaching the peace may be seized to prevent the breach.
(3)It is lawful for a police officer—
(a)to receive into custody from a person the police officer reasonably believes has witnessed a breach of the peace, a person who has been lawfully detained under the Criminal Code, section 260; and
(b)to detain the person in custody for a reasonable time.

51Prevention of riot

(1)It is lawful for a police officer to take the steps the police officer reasonably believes are necessary to suppress a riot.
(2)It is lawful for a police officer, acting under reasonable orders given by a justice for suppressing a riot, to suppress a riot.

52Prevention of offences—general

(1)This section applies if a police officer reasonably suspects an offence has been committed, is being committed, or is about to be committed.
(2)It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the commission, continuation or repetition of an offence.

Example of preventing the commission of an offence—

A police officer who reasonably suspects the way a person in the vicinity of a prisoner is acting threatens or is likely to threaten the security of the prisoner or the security or good order of the place where the prisoner is detained may require the person to leave the vicinity of the prisoner or the place of detention.

Examples of continuation of an offence—

1A police officer may direct a person who is obstructing an ambulance officer acting under the authority of the Ambulance Service Act 1991 to leave the place where the person is and, if the person fails to leave, may use reasonably necessary force to remove the person.
2A police officer may remove or deface an obscene or indecent placard, picture, writing or advertisement attached to a place or thing if it contravenes an Act because it is visible to members of the public.

53Prevention of particular offences relating to liquor

(1)Subsection (2) applies if—
(a)a police officer reasonably suspects a person has committed, is committing or is about to commit an offence against any of the following at a place—
(i)Liquor Act 1992, section 157(2), 164, 168B, 168C or 173B;
(ii)Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, section 34 or 38(2)(e) or (3)(e) or (f); and
(b)the police officer reasonably suspects an opened container of liquor at the place in the person’s possession or under the person’s control relates to, or is contributing to, or is likely to contribute to, the commission of the offence by the person.
(2)The police officer may seize—
(a)the opened container and its contents; and
(b)any unopened container of liquor at the place, and its contents, the police officer reasonably suspects relates to, or is contributing to, or is likely to contribute to, the commission of an offence against a provision mentioned in subsection (1) at the place by the person or another person.
(2A)Also, if—
(a)a police officer reasonably suspects a person has committed, is committing or is about to commit an offence against the Liquor Act 1992, section 156(2) at a place; and
(b)the police officer reasonably suspects that liquor, whether in opened or unopened containers, in the person’s possession or under the person’s control relates to, or is contributing to, or is likely to contribute to, the commission of an offence at any place by the person or another person;

the police officer may seize the liquor, including any container of the liquor.

(3)A police officer may dispose of anything seized under subsection (2) or subsection (2A) in the way the police officer considers reasonably necessary to prevent the commission, continuation or repetition of the offence.

Example for subsection (3)—

The police officer may empty an opened can of beer found by the police officer being consumed by a person in contravention of a provision mentioned in subsection (1) or an unopened can of beer likely to be consumed in contravention of a provision mentioned in subsection (1).
(4)If the police officer exercises the power under subsection (2) or subsection (2A)—
(a)the thing is taken to have been forfeited to the State immediately after the officer seized it; and
(b)chapter 21, part 2, division 3 and chapter 21, part 3 do not apply to the thing.
(5)For this section, a reference in a provision of an Act mentioned in subsection (1) or subsection (2A) to alcohol or liquor is taken to include a reference to methylated spirits.
(6)In this section—
liquor means—
(a)liquor, as defined in the Liquor Act 1992, section 4B; or
(b)methylated spirits.
opened container includes a container that has been opened, even if it is closed at the material time and regardless of whether or not some of its contents have been removed.

53ASeizure of liquor from a minor in particular circumstances

(1)This section applies if a police officer—
(a)is lawfully at a place other than a place to which a licence or permit under the Liquor Act 1992 relates; and
(b)finds a minor at the place has possession or control of liquor, whether in opened or unopened containers; and
(c)reasonably suspects that the minor is not being responsibly supervised by a responsible adult for the minor.
(2)The police may seize the liquor, including any container of the liquor, (the seized thing) and dispose of it in the way the police officer considers reasonably necessary.
(3)For subsection (2), the police officer may continue to stay at the place and re-enter the place for the time reasonably necessary to remove the seized thing, even though to continue to stay or to re-enter, apart from this section, would be trespass.
(4)For subsection (1) the following matters are to be decided on the same basis as the matters are decided under the Liquor Act 1992, section 156A—
(a)whether or not a person is a minor;
(b)whether or not a minor is being responsibly supervised;
(c)whether or not an adult is a responsible adult for a minor.
(5)If the police officer exercises the power under subsection (2) to seize a thing—
(a)the seized thing is taken to have been forfeited to the State immediately after the police officer seizes it; and
(b)chapter 21, part 2, division 3 and chapter 21, part 3 do not apply to the seized thing.
(6)In this section—
liquor has the same meaning as it has in section 53.

53AASeizure and disposal of dangerous attachment devices

(1)This section applies if a police officer—
(a)finds a dangerous attachment device; and
(b)reasonably suspects the dangerous attachment device has been used, or is to be used, to disrupt a relevant lawful activity.
(2)For subsection (1)(b), a relevant lawful activity is disrupted by using a dangerous attachment device if the use—
(a)unreasonably interferes with the ordinary operation of transport infrastructure; or

Example—

placing an obstacle, on a railway, that stops the passage of rolling stock
(b)stops a person from entering or leaving a place of business; or
(c)causes a halt to the ordinary operation of plant or equipment because of concerns about the safety of any person.
(3)The police officer may do 1 or both of the following—
(a)deactivate or disassemble the dangerous attachment device to the extent the police officer considers reasonably necessary;
(b)seize all or parts of the dangerous attachment device.
(4)If the police officer exercises the power under subsection (3) to seize a dangerous attachment device or parts of a device, the device or part is taken to have been forfeited to the State immediately after the police officer seizes it.
(5)To remove any doubt, it is declared that a police office may disassemble a dangerous attachment device and choose to seize only some of the disassembled parts.
(6)In this section—
deactivate, a dangerous attachment device, includes to make the device safe or unusable.
transport infrastructure see the Transport Infrastructure Act 1994, schedule 6.

53BEntry powers for vehicles referred to in ss 53 and 53A

If a place where a police officer is exercising a power under section 53 or section 53A is outside a vehicle that is not being used as a dwelling, the police officer’s powers for the section include the power to enter the vehicle to exercise a power under the section within the vehicle.

Part 6A Prevention of criminal consorting

Note—

See the following provisions for related police powers—
section 30(i) (Prescribed circumstances for searching persons without warrant)
section 32(2)(b) (Prescribed circumstances for searching vehicle without warrant)
section 41(p) (Prescribed circumstances for requiring name and address)
section 41A (Power to require identifying particulars of person for official warning for consorting)
section 43B (Power to require date of birth of person for official warning for consorting)
section 60(3)(k) (Stopping vehicles for prescribed purposes)

53BAA Definitions for part

In this part—
consort
(a)has the meaning given by the Criminal Code, section 77A; and
(b)does not include an act of consorting mentioned in the Criminal Code, section 77C that is reasonable in the circumstances.
offence of habitually consorting means an offence against the Criminal Code, section 77B.
official warning, for consorting, means a warning given in person, whether orally or in writing, that—
(a)a stated person is a recognised offender; and
(b)consorting with the stated person on a further occasion may lead to the commission of the offence of habitually consorting.
recognised offender means a recognised offender who is at least 18 years.

53BAB Part does not apply to child

An official warning may not be given to a child.

53BAC Police powers for giving official warning for consorting

(1)This section applies if a police officer reasonably suspects a person has consorted, is consorting, or is likely to consort with 1 or more recognised offenders.
(2)The police officer may stop the person and require the person to remain at the place where the person is stopped for the time reasonably necessary for the police officer to do any or all of the following—
(a)confirm or deny the police officer’s suspicion, including, for example, by exercising a power under section 40 or 43B;
(b)give the person an official warning for consorting;
(c)if the official warning is given orally—confirm under subsection (5) the official warning.

Note—

Failure to comply with a requirement given under this subsection is an offence against section 791.
(3)However, before giving an official warning under subsection (2)(b), the police officer must consider whether it is appropriate to give the warning having regard to the object of disrupting and preventing criminal activity by deterring recognised offenders from establishing, maintaining or expanding a criminal network.
(4)If an official warning for consorting is given in writing, the warning must be in the approved form.
(5)If an official warning for consorting is given orally, the police officer must, within 72 hours after giving the warning orally, confirm the warning by giving it, in the approved form, to the person in the prescribed way.
(6)Unless the contrary is proved—
(a)an approved form given by post is taken to have been received by the person to whom the form was addressed when the form would have been delivered in the ordinary course of post; and
(b)an approved form given by electronic means is taken to have been received by the person to whom the form was sent on the day the form was sent to the electronic address nominated by the person to a police officer.
(7)If practicable, the giving of an official warning under subsection (2)(b) must be electronically recorded.
(8)To remove any doubt, it is declared that—
(a)an official warning for consorting may be given to a person in relation to a recognised offender before, during or after the person has consorted with the recognised offender; and
(b)a failure to comply with subsection (3) does not affect the validity of an official warning for consorting.
(9)In this section—
criminal activity means the commission of a relevant offence under the Criminal Code, section 77.
electronic address includes an email address and a mobile phone number.
electronic means includes by email, multimedia message and SMS message.
prescribed way, for giving an approved form to a person, means—
(a)delivering the form to the person personally; or
(b)sending the form by electronic means to the electronic address nominated by the person to a police officer; or
(c)sending the form by post or certified mail to the person at the last known or usual place of residence or business of the person or the last known or usual postal address of the person.
recognised offender includes a person who a police officer reasonably suspects is a recognised offender.

Example of when a police officer might reasonably suspect a person is a recognised offender—

A police officer reasonably suspects a person has been convicted of an indictable offence. The police officer is unable to confirm the nature of the indictable offence, or whether the conviction is spent, due to the unavailability of the person’s complete criminal history or the application of the Criminal Law (Rehabilitation of Offenders) Act 1986. However, the police officer reasonably suspects the person is a recognised offender.
SMS message means a text message sent using the mobile phone service known as the short messaging service.

53BAD Effect of official warning for consorting

(1)An official warning for consorting given in relation to a stated person who is a recognised offender has effect until the stated person stops being a recognised offender.
(2)However, if an official warning for consorting is given orally, and the warning is not confirmed under section 53BAC(5), the official warning stops having effect 72 hours after it is given.
(3)Also, if an official warning for consorting is given in relation to a stated person who is not a recognised offender, the official warning stops having effect 24 hours after it is given.
(4)A person does not commit an offence against section 791 if—
(a)the person was required to do something under section 53BAC(2); and
(b)the court is not satisfied the police officer, at the time of making the requirement, had the suspicion mentioned in section 53BAC(1).

53BAE Prevention of consorting with recognised offender

(1)This section applies if—
(a)a police officer has given a person at a place an official warning for consorting; and
(b)the police officer reasonably suspects the person is consorting at the place with the person stated in the official warning.
(2)The police officer may require the person to leave the place and not return or be within the place within a stated reasonable time of not more than 24 hours.

Note—

Failure to comply with a requirement given under this subsection is an offence against section 791.
(3)However, subsection (2) does not apply if requiring the person to leave the place may endanger the safety of the person or someone else.

Example of requirement to leave place that may endanger safety—

a requirement for a person to leave a vehicle in which recognised offenders are passengers in circumstances in which the person has no access to other transport
(4)A person does not commit an offence against section 791 if—
(a)the person was required to leave a place under subsection (2); and
(b)the court is not satisfied the police officer, at the time of making the requirement, had the power under subsection (1) to make the requirement.

Part 7 Out-of-control events

Division 1 Preliminary

Subdivision 1 Application of pt 7

53BAAdditional powers

The powers a police officer has under this part are additional to, and are not limited by, the powers a police officer otherwise has under this Act or another Act.

Subdivision 2 Key definitions

53BBWhat is an out-of-control event

(1)An event becomes an out-of-control event if—
(a)12 or more persons are gathered together at a place (an event); and
(b)3 or more persons associated with the event engage in out-of-control conduct at or near the event; and
(c)the out-of-control conduct would cause a person at or near the event—
(i)to reasonably fear violence to a person or damage to property; or
(ii)to reasonably believe a person would suffer substantial interference with their rights and freedoms or peaceful passage through, or enjoyment of, a public place.
(2)However, each of the following is not an out-of-control event—
(a)a licensed event;
(b)a major event;
(c)an event that is primarily for the purposes of political advocacy, protest or industrial action;
(d)an authorised public assembly under the Peaceful Assembly Act 1992, section 7;
(e)any event held at a major sports facility under the Major Sports Facilities Act 2001, section 4;
(f)an event prescribed by regulation.
(3)For applying subsection (1), it is immaterial whether there is or is likely to be a person who—
(a)fears the things mentioned in subsection (1)(c)(i); or
(b)suffers in the way mentioned in subsection (1)(c)(ii).

53BCWhat is out-of-control conduct

The following conduct is out-of-control conduct
(a)unlawfully entering, or remaining in, a place or threatening to enter a place;
(b)behaving in a disorderly, offensive, threatening or violent way;

Examples for paragraph (b)—

using offensive, obscene, indecent, abusive or threatening language
taking part in a fight
(c)unlawfully assaulting, or threatening to assault, a person;
(d)unlawfully destroying or damaging, or threatening to destroy or damage, property;
(e)wilfully exposing a person’s genitals or doing an indecent act;
(f)causing or contributing to the emission of excessive noise mentioned in section 576(1);
(g)driving a motor vehicle in a way that causes a burn out within the meaning of section 69;
(h)unlawfully lighting fires or using fireworks;
(i)throwing, releasing or placing a thing in a way that endangers, or is likely to endanger, the life, health or safety of a person;
(j)unreasonably obstructing the path of a vehicle or pedestrian;
(k)littering in a way that causes, or is likely to cause, harm to a person, property or the environment;
(l)being intoxicated in a public place;
(m)conduct that would contravene the Liquor Act 1992, part 6;
(n)conduct that would contravene the Drugs Misuse Act 1986, part 2.

53BDOther definitions for pt 7

In this part—
associated, with an event, means a person who—
(a)is at the event; or
(b)is near the event and is reasonably suspected by a police officer of either—
(i)intending to go to the event, whether or not the person was invited to attend the event; or
(ii)leaving the event.
commissioner’s reasonable costs means the reasonable costs of the commissioner for lawful action taken by the police service under this part, including costs for ending an event or dispersing persons from the event.
event see section 53BB(1)(a).
event authorisation see section 53BE(1).
licensed event means an event held at premises to which any 1 of the following licenses or permits under the Liquor Act 1992 applies—
(a)a commercial hotel licence;
(b)a commercial special facility licence;
(c)a commercial other licence;
(d)a community club licence;
(e)a commercial public event permit;
(f)an extended hours permit;
(g)an adult entertainment permit.
organise, an event, means being substantially involved in arranging, hosting, managing, advertising or promoting the event.
out-of-control event power means a power, under section 53BG, for a police officer to take action for an event.
parent includes a guardian other than the chief executive (child safety).
senior police officer means a police officer of at least the rank of sergeant.

Division 2 Powers for out-of-control events

Subdivision 1 Authorisation for using powers

53BEAuthorisation by senior police officer

(1)A senior police officer may authorise the use of out-of-control event powers (an event authorisation) in relation to an event if the police officer reasonably believes—
(a)the event is an out-of-control event; or
(b)the event is likely to become an out-of-control event.
(2)The event authorisation must be written and state the following—
(a)the date and time the authorisation is given;
(b)the location of the event;
(c)the circumstances that led the senior police officer to authorise using the out-of-control event powers in relation to the event;
(d)the restrictions, if any, on using the out-of-control event powers in relation to the event.
(3)However, the event authorisation is not invalid merely because it is not in writing if the senior police officer makes a written record as required under subsection (2) at the first reasonable opportunity after a police officer exercises an out-of-control event power under the authorisation.
(4)The event authorisation has effect for 24 hours or a lesser period decided, after the authorisation is given, by—
(a)the senior police officer who gave the authorisation; or
(b)another senior police officer.

Subdivision 2 Using powers

53BFUse of powers only if authorised

A police officer may take action under this subdivision only if—
(a)an event authorisation is given in relation to an event; and
(b)the officer acts in accordance with the event authorisation.

53BGTaking action for out-of-control event

(1)A police officer has the powers under subsection (2) for 1 or more of the following purposes in relation to an event—
(a)preventing the event becoming an out-of-control event;
(b)if the event is an out-of-control event, stopping the event from continuing or starting in another location;
(c)dispersing persons associated with the event;
(d)minimising the impact of the event on public order or safety;
(e)identifying a person organising the event;
(f)identifying a person committing an offence under division 3.
(2)For the purposes mentioned in subsection (1), a police officer may exercise any 1 or more of the following powers—
(a)stop a vehicle or enter a place without a warrant;
(b)give a person or group of persons a direction to—
(i)stop any conduct; or
(ii)immediately leave a place; or
(iii)not return to a place within a stated period of not more than 24 hours, unless the person or group resides at the place; or
(c)take any other steps the police officer considers reasonably necessary.

Division 3 Offences and costs orders

Subdivision 1 Offences

53BHOrganising an out-of-control event

(1)A person commits an offence if—
(a)the person organises an event; and
(b)the event becomes an out-of-control event.

Maximum penalty—

(a)if the event is held at a place where the person does not reside or for which the person does not have lawful authority to use—165 penalty units or 3 years imprisonment; or
(b)otherwise—110 penalty units or 1 year’s imprisonment.

(2)If the person organising the event is a child, the parent of the child is instead liable for the offence if the parent gave the child permission to organise the event.
(3)In a proceeding for an offence under this section, it is a defence for a person to prove that the person took reasonable steps to prevent the event becoming an out-of-control event.

Examples of taking reasonable steps—

hiring an appropriate number of security officers for the event
ending the event as soon as possible after persons who are not invited to the event enter the place where the event is being held

53BICausing an out-of-control event

(1)A person commits an offence if the person—
(a)has been refused entry to an event; and
(b)engages in out-of-control conduct near the event; and
(c)as a result of the person’s conduct, the event becomes an out-of-control event.

Maximum penalty—110 penalty units or 1 year’s imprisonment.

(2)A person may be liable for an offence against subsection (1) even if another person’s conduct contributed to the event becoming an out-of-control event.

53BJOffence to contravene direction

A person must not, without reasonable excuse, contravene a direction given by a police officer under section 53BG(2).

Maximum penalty—

(a)if the person contravenes the direction by doing any of the following—
(i)unlawfully assaulting, or threatening to assault, another person;
(ii)unlawfully destroying or damaging, or threatening to destroy or damage, property;
(iii)throwing, releasing or placing a thing in a way that endangers, or is likely to endanger, the life, health or safety of another person;
165penalty units or 3 years imprisonment; or
(b)otherwise—110 penalty units or 1 year’s imprisonment.

Subdivision 2 Costs orders

53BKCosts order—adult

(1)This section applies if a person, other than a child, is found guilty by a court of an offence under subdivision 1 in relation to an event.
(2)The court may, on its own initiative or an application by the commissioner, order the person to pay some or all of the commissioner’s reasonable costs in relation to the event.
(3)An order made under subsection (2) is taken to be an order for compensation under the Penalties and Sentences Act 1992, part 3, division 4, payable to the State.

53BLCosts order—child

(1)This section applies if a child is found guilty by a court of an offence under subdivision 1 in relation to an event.
(2)The court may, on its own initiative or an application by the commissioner, consider whether the child has the capacity to pay the commissioner’s reasonable costs in relation to the event.
(3)If the court considers the child has the capacity to pay the commissioner’s reasonable costs, the court may order the child to pay some or all of the costs.
(4)An order made by the court under this section is taken to be an order under the Youth Justice Act 1992, section 310, payable to the State.

53BMCosts order—parent of child offender

(1)This section applies if—
(a)a court considers the matters mentioned in section 53BL(2); and
(b)decides under the section that a child does not have the capacity to pay the commissioner’s reasonable costs.
(2)The court may, on its own initiative or an application by the commissioner, decide to call on the child’s parent to show cause why the parent should not pay the commissioner’s reasonable costs in relation to the event.
(3)If the court decides to call on the child’s parent to show cause—
(a)notice must be given to the parent in the way required under the Youth Justice Act 1992, section 258(4) to (8); and
(b)the show cause hearing must be conducted in the way required under the Youth Justice Act 1992, section 259(1) to (4); and
(c)the Youth Justice Act 1992, section 259(5) applies as if the reference to ‘section 258(1)(a), (b) and (c)’ were a reference to subsection (5)(a) and (b); and
(d)the Youth Justice Act 1992, section 259(6) to (12) applies to the court’s decision and orders.
(4)For applying subsection (3)—
(a)a reference to compensation in the Youth Justice Act 1992, sections 258 and 259 is taken to be a reference to the commissioner’s reasonable costs; and
(b)a reference to the prosecution in the Youth Justice Act 1992, sections 258 and 259 is taken to be a reference to the commissioner.
(5)For subsection (3)(c), the matters are—
(a)the parent contributed to the fact the offence happened by not adequately supervising the child; and
(b)it is reasonable the parent pay some or all of the commissioner’s reasonable costs.
(6)The Youth Justice Act 1992, section 260 applies to the commissioner’s reasonable costs ordered to be paid under subsection (5) as if it were an order for compensation to be paid to the State under the Youth Justice Act 1992, section 259.

53BNCosts orders and other sentencing

(1)A court may make an order under this subdivision in addition to any other sentence to which a person, including a child, is liable.
(2)To remove any doubt, it is declared that sections 53BL and 53BM apply in addition to the Youth Justice Act 1992, part 7.

Chapter 3 Powers relating to vehicles and traffic

53CApplication of corresponding HVNL(Q) penalty amounts

(1)This section applies to a penalty for an offence against a provision of this chapter (the relevant PP&R provision) if the penalty provides for an amount of penalty to be the corresponding HVNL(Q) penalty amount.
(2)For the relevant PP&R provision, the corresponding HVNL(Q) penalty amount is the same dollar amount that, when the offence is committed, is the amount of penalty applying for an offence against the relevant PP&R provision’s corresponding HVNL(Q) provision.

Note—

If the amount of penalty applying for an offence against a corresponding HVNL(Q) provision is increased under section 737 of the Heavy Vehicle National Law (Queensland), the Regulator under the Law is required under that section to publish the new amount on the Regulator’s website.
(3)For a provision of this Act listed in column 1 of the following table, the corresponding HVNL(Q) provision is the provision of the Heavy Vehicle National Law (Queensland) listed in column 2 of the table.

Table

Column 1

Column 2

Provision of this Act that is a relevant PP&R provision

Provision of Heavy Vehicle National Law (Queensland) that is the corresponding HVNL(Q) provision

section 60(2)

section 513(4)

section 61(4)

section 516(3)

section 62(2)

section 514(3)

section 65(3)

section 522(5)

section 66(3)

section 529

section 66(5)

section 526(4)

section 66(6)

section 528(3)

section 68(3)

section 577(4)

54Power of inquiry into road use contraventions

(1)It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland) has been committed.
(2)Also, it is lawful for a police officer to arrange for someone else to make any reasonably necessary inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland) has been committed.

55Power to require information about identity of drivers of vehicles etc.

(1)This section applies if a person alleges to a police officer or a police officer reasonably suspects a contravention of the Road Use Management Act or the Heavy Vehicle National Law (Queensland) involving a vehicle or tram has been committed.
(2)A police officer may require any of the following to give to the police officer information that will identify or help identify the person who was in control of the vehicle or tram when the contravention happened—
(a)an owner of the vehicle or tram;
(b)a person in possession of the vehicle or tram;
(c)a person in whose name the vehicle is registered;
(d)a person who may reasonably be expected to be able to give the information.
(3)Also, a police officer may require the driver of the vehicle or tram to give to the police officer information about the identity of the owner of the vehicle or tram.

Note—

See section 791 (Offence to contravene direction or requirement of police officer).

56Additional power of inquiry for relevant vehicle incidents

(1)It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination or test—
(a)to obtain information about a vehicle, train, tram, animal or other property involved in a relevant vehicle incident; or
(b)to obtain information about the cause of a relevant vehicle incident and the circumstances in which it happened.
(2)Also, it is lawful for a police officer to make any reasonably necessary inquiry or investigation to obtain information about a person involved in a relevant vehicle incident.
(3)For subsection (1) or (2), a police officer may require a person to answer any question put to the person by the police officer or provide information relevant to the incident.
(4)A person who is required by a police officer to provide information relevant to the incident must not provide any information the person knows to be false.

Maximum penalty for subsection (4)—40 penalty units or 6 months imprisonment.

57Power of entry for ss 5456

(1)For sections 54 to 56, a police officer may enter a place and stay on the place for the time reasonably necessary for the purpose of the entry.
(2)However, the police officer may use reasonably necessary force to enter the place only if the entry is authorised by a police officer of at least the rank of inspector.

58Production of driver licence

(1)This section applies if a police officer—
(a)finds a person committing an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland); or
(b)reasonably suspects a person has committed an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland); or
(c)is making inquiries or investigations for establishing whether or not a person has committed an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland); or
(d)reasonably suspects a person who was present at the scene of a relevant vehicle incident may be able to give information or evidence about the incident; or
(e)reasonably considers it is necessary for enforcing the Road Use Management Act in relation to a heavy vehicle or for enforcing the Heavy Vehicle National Law (Queensland).
(2)The police officer may require the person to produce the person’s driver licence for inspection.

Note—

See section 791 (Offence to contravene direction or requirement of police officer).
(3)A person who holds an open driver licence issued under the Road Use Management Act but is unable to comply with the requirement immediately may comply with the requirement by producing the licence to the officer in charge of a nominated police establishment or police station within 48 hours after the requirement is made.
(4)The place nominated under subsection (3) must be reasonable in the circumstances.
(5)Subsection (3) does not apply to a person in control of a heavy vehicle.

59Power for regulating vehicular and pedestrian traffic

(1)A police officer may give to a driver of a vehicle or to a pedestrian on or about to enter a road, or to a passenger in a vehicle, any direction the police officer reasonably considers necessary for the safe and effective regulation of traffic on the road.
(2)Also, if an emergency exists, a police officer may give to a driver of or passenger in a train any direction the police officer reasonably considers necessary.
(3)Without limiting subsection (1), a police officer may act under that subsection if the police officer reasonably suspects an emergency exists or it is otherwise necessary to temporarily prohibit, divert or direct traffic and pedestrians.

Examples for subsection (3)—

1a siege where firearms are being discharged and members of the public may be hurt
2a serious or fatal road accident requiring treatment of injured persons, removal of bodies, wreckage to be cleared or evidence to be gathered for investigating the cause of the accident
(4)A direction under subsection (1) may include a direction to the owner or driver of a parked vehicle to move the vehicle as soon as practicable.

60Stopping vehicles for prescribed purposes

(1)A police officer may require the person in control of a vehicle, other than a train or a vehicle being pulled by an animal, to stop the vehicle for a prescribed purpose.
(2)The person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—

(a)for a private vehicle—60 penalty units; or
(b)for a heavy vehicle, if the purpose for stopping the vehicle is HVNL(Q) compliance or enforcement—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $6,000. Generally, see section 53C.
(c)otherwise—90 penalty units.

Example of a reasonable excuse for subsection (2)—

It is a reasonable excuse for a person not to comply with a requirement if—
(a)the person reasonably believes that to immediately comply would endanger the person or someone else; and
(b)the person complies with the requirement at the first reasonable opportunity.
(3)The prescribed purposes are as follows—
(a)for enforcing a transport Act or the Heavy Vehicle National Law (Queensland);
(b)to check whether the vehicle complies, or the person is complying, with a transport Act or the Heavy Vehicle National Law (Queensland);
(c)for monitoring or enforcing a liquor provision;
(d)for enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle;
(e)to conduct a breath test or saliva test;
(f)to investigate the emission of excessive noise from—
(i)a motor vehicle on a road or in a public place; or
(ii)a motorbike being driven on a place other than a road;
(g)to give a noise abatement direction to the person responsible for the emission of excessive noise from—
(i)a motor vehicle on a road or in a public place; or
(ii)a motorbike being driven on a place other than a road;

Note—

For the power to give noise abatement directions, see section 581.
(h)to impound or immobilise a motor vehicle under chapter 4;
(i)for enforcing the Tobacco and Other Smoking Products Act 1998, section 26VC;
(j)to give the person any of the following under the Peace and Good Behaviour Act 1982
(i)a public safety order;
(ii)a restricted premises order;
(iii)a fortification removal order;
(k) to give a person, under section 53BAC, an official warning for consorting.
(4)For monitoring or enforcing a liquor provision, the police officer may exercise any of the following powers if the officer reasonably suspects the exercise of the power may be effective for the purpose—
(a)enter the vehicle and remain in it for the time reasonably necessary for the purpose;
(b)search the vehicle and anything in it;
(c)inspect, measure, test, photograph or film the vehicle or anything in it;
(d)take samples of anything in or on the vehicle;
(e)seize anything the officer reasonably suspects is evidence of the commission of an offence against a liquor provision;
(f)copy a document in the vehicle;
(g)move the vehicle’s load.
(5)For conducting a breath test or saliva test, the police officer may enter the vehicle and remain in it for the time reasonably necessary for the purpose.

Examples for subsection (5)—

1The police officer may hold a breath or saliva testing device in or through an open window of a car so the driver can provide a specimen of breath or saliva.
2The police officer may board a boat so the driver of the boat can provide a specimen of breath or saliva.
(6)In this section—
excessive noise means excessive noise mentioned in section 576(1) and to which chapter 19, part 3 applies.
in, for a vehicle, includes on the vehicle.
liquor provision means any of the following provisions—
(a)the Liquor Act 1992, section 168B, 168C, 169 or 171;
(b)the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, section 34 or 38.
monitor, a liquor provision, means check whether the provision is being complied with.

61Power to require vehicles to be moved

(1)This section applies to a vehicle that is stationary or has been stopped under section 60.
(2)To enable a police officer to exercise a power for a prescribed purpose, the police officer may require the person in control of the vehicle to move the vehicle to a stated reasonable place.

Example for subsection (2)—

The officer may require the person to move the vehicle onto a weighing or testing device.
(3)However, the place must be—
(a)for a private vehicle—within a 5km radius from where the vehicle was stationary or stopped; or
(b)for another vehicle—within a 30km radius from—
(i)where the vehicle was stationary or stopped; or
(ii)if the requirement is given within the course of the vehicle’s journey—any point along the forward route of the journey.
(4)The person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—

(a)for a private vehicle—60 penalty units; or
(b)for a heavy vehicle, if the power to be exercised by the police officer as mentioned in subsection (2) is for HVNL(Q) compliance or enforcement—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $6,000. Generally, see section 53C.
(c)otherwise—90 penalty units.

(5)For a vehicle, other than a private vehicle, if the person does not comply with the requirement, the police officer may move the vehicle to the required place.
(6)However, if the vehicle is an aircraft or boat, the police officer may move the vehicle only if the officer has the necessary qualification, or has received appropriate training, to control the vehicle.

62Requirement to remain at a place

(1)This section applies if the person in control of a vehicle is required—
(a)to stop the vehicle under section 60; or
(b)to move the vehicle to a place under section 61.
(2)The person must ensure the vehicle remains at the place where it is stopped or moved to, for the time reasonably necessary to enable the police officer to perform a function or exercise a power under those sections.

Maximum penalty—

(a)for a heavy vehicle, if the function to be performed or power to be exercised by the police officer is for HVNL(Q) compliance or enforcement—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $6,000. Generally, see section 53C.
(b)otherwise—60 penalty units.

63Power to inspect vehicles

(1)This section applies to a motor vehicle that—
(a)is stationary on a road; or
(b)has been stopped under section 60 or under the Heavy Vehicle National Law (Queensland); or
(c)is at a place to which it has been moved under section 61.
(2)To check whether the vehicle complies with a transport Act or the Heavy Vehicle National Law (Queensland), a police officer may inspect or test it.
(3)To enable the police officer to inspect or test the vehicle, the police officer may do anything reasonable to be done for the inspection or test.

Examples of what may be reasonable for an inspection or test—

The police officer may—
(a)enter the vehicle; or
(b)unlock, unfasten, open or remove any part of it; or
(c)move its load.

64Power to enter vehicles etc. other than for vehicle inspection

(1)This section applies to a police officer who reasonably suspects—
(a)a vehicle at a place the police officer has entered under this Act or the Heavy Vehicle National Law (Queensland) is used, or is being used, to transport dangerous goods; or
(b)a heavy vehicle or prescribed vehicle is being, or has just been, used to transport dangerous goods; or
(c)a vehicle is being, or has just been, used to commit an offence against a transport Act or the Heavy Vehicle National Law (Queensland); or
(d)a vehicle, or a thing in or on it, may provide evidence of the commission of an offence against a transport Act or the Heavy Vehicle National Law (Queensland); or
(e)the driver of a heavy vehicle is required under the Heavy Vehicle National Law (Queensland) to keep a document relating to driving hours.
(2)The police officer may, for enforcing a transport Act or the Heavy Vehicle National Law (Queensland)—
(a)enter the vehicle; or
(b)search any part of the vehicle; or
(c)inspect, measure, weigh, test, photograph or film the vehicle or anything in or on it; or
(d)take samples of the vehicle or anything in it; or
(e)copy, or take an extract from, a document in the vehicle; or

Example—

download information contained on a disk, tape or other device
(f)move the vehicle’s load; or
(g)take the persons, equipment and materials the officer reasonably requires into the vehicle.
(3)In this section—
document includes a work diary as defined in the Heavy Vehicle National Law (Queensland), section 221.
prescribed vehicle means a prescribed vehicle under the Road Use Management Act.

65Power to require vehicle inspections

(1)If a police officer reasonably suspects a vehicle may not comply with a transport Act or the Heavy Vehicle National Law (Queensland), the police officer may require either of the following to have the vehicle inspected at a stated reasonable time and place—
(a)the owner of the vehicle;
(b)if there is a registered operator for the vehicle and the registered operator, apart from being the registered operator, is not the owner of the vehicle—the registered operator for the vehicle.
(2)The requirement—
(a)must be made by notice in the approved form; or
(b)if for any reason it is not practicable to give the notice, may be made orally and confirmed by notice in the approved form as soon as practicable.
(3)A person must comply with a requirement under subsection (1), unless the person has a reasonable excuse.

Maximum penalty—

(a)for a heavy vehicle, if the inspection relates to compliance with the Heavy Vehicle National Law (Queensland)—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $6,000. Generally, see section 53C.
(b)otherwise—60 penalty units.

(4)In this section—
owner, of a vehicle, has the meaning given under the Road Use Management Act, schedule 4.

66Power to prohibit use of vehicles

(1)If a police officer reasonably suspects a vehicle is unsafe or defective, the police officer may, by notice in the approved form, require its owner or, if there is a registered operator for the vehicle and the registered operator, apart from being the registered operator, is not the owner of the vehicle, its registered operator, not to use it, or permit it to be used, on a road until—
(a)it is inspected at a stated reasonable place and found to comply with the Road Use Management Act or the Heavy Vehicle National Law (Queensland); or
(b)stated reasonable action is taken in relation to the vehicle to ensure it complies with the Road Use Management Act or the Heavy Vehicle National Law (Queensland).

Examples of action that may be reasonable under paragraph (b)—

1the vehicle’s load be adjusted or moved
2stated repairs be carried out to the vehicle and the vehicle be inspected at a stated place and found to comply with the Road Use Management Act
(2)Without limiting subsection (1), the police officer may issue a defect notice for the vehicle or attach a defective vehicle label to the vehicle.
(3)A person must not contravene, or attempt to contravene, a requirement under subsection (1), unless the person has a reasonable excuse.

Maximum penalty—

(a)for a private vehicle—60 penalty units; or
(b)for a heavy vehicle, if the requirement under subsection (1) relates to compliance with the Heavy Vehicle National Law (Queensland)—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $3,000. Generally, see section 53C.
(c)otherwise—90 penalty units.

(4)It is a reasonable excuse for subsection (3) if—
(a)the vehicle’s registration is cancelled and the person gives the police officer who issued the defect notice written notice of that fact within 7 days after the cancellation; or
(b)the vehicle is disposed of to a motor dealer and the person gives the chief executive of the department within which the Road Use Management Act is administered written notice of the name and address of the motor dealer within 7 days after the disposal.
(5)If the driver to whom a defect notice is given is not the owner or registered operator, the driver must immediately give the defect notice to the owner or registered operator, unless the driver has a reasonable excuse.

Maximum penalty—

(a)for a heavy vehicle, if the requirement under subsection (1) relates to compliance with the Heavy Vehicle National Law (Queensland)—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $3,000. Generally, see section 53C.
(b)otherwise—30 penalty units.

(6)A person must not remove a defective vehicle label attached to a vehicle from the vehicle, unless the person has a reasonable excuse.

Maximum penalty—

(a)for a heavy vehicle, if the requirement under subsection (1) relates to compliance with the Heavy Vehicle National Law (Queensland)—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $3,000. Generally, see section 53C.
(b)otherwise—30 penalty units.

(7)However, a police officer may remove the label if the police officer is reasonably satisfied the vehicle is no longer defective.
(8)In this section—
defective vehicle label has the meaning given under the Road Use Management Act.
defect notice has the meaning given under the Road Use Management Act.
motor dealer means a motor dealer under the Motor Dealers and Chattel Auctioneers Act 2014.
owner, of a vehicle, has the meaning given under the Road Use Management Act, schedule 4.

67Power to prohibit persons driving

(1)This section applies to the person in control of a motor vehicle that is stationary on a road or has been stopped under section 60 or under the Heavy Vehicle National Law (Queensland).
(2)If a police officer reasonably suspects the person in control would contravene the Road Use Management Act by driving the vehicle, the officer may, by notice in the approved form, require the person in control not to drive the vehicle in contravention of that Act.
(3)A person must not contravene, or attempt to contravene, a requirement under subsection (2), unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—

(a)for a private vehicle—60 penalty units; or
(b)otherwise—90 penalty units.

68Power to enable effective and safe exercise of other powers

(1)A police officer may require the person in control of a vehicle to give the officer reasonable help to enable the officer to effectively exercise a power under this chapter in relation to the vehicle.

Examples of requirements for effectively exercising powers—

1requiring the vehicle to be held stationary on a weighing device to enable the vehicle to be weighed
2requiring the vehicle’s bonnet to be opened to enable the engine to be inspected
(2)A police officer may require the person in control of a vehicle, or a person who is in or has just left the vehicle, to do or not to do anything the police officer reasonably believes is necessary—
(a)to enable the police officer to safely exercise a power under a transport Act or the Heavy Vehicle National Law (Queensland) in relation to the vehicle; or
(b)to preserve the safety of the police officer, the person or other persons.

Examples of safety requirements—

1requiring the persons in a vehicle to get out of the vehicle while the police officer inspects the vehicle’s undercarriage
2requiring a person who has just left the vehicle to stand back from the road
3requiring a person to remain in control of a vehicle for a reasonable time
(3)A person must comply with a requirement under subsection (1) or (2), unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—

(a)for a private vehicle—60 penalty units; or
(b)for a heavy vehicle, if the requirement relates to the safe exercise of a power under the Heavy Vehicle National Law (Queensland)—the corresponding HVNL(Q) penalty amount; or

Note—

On the commencement of this note, the corresponding HVNL(Q) penalty amount was $10,000. Generally, see section 53C.
(c)otherwise—90 penalty units.

Chapter 4 Motor vehicle impounding and immobilising powers for prescribed offences and motorbike noise direction offences

Part 1 Preliminary

Division 1 Interpretation

69Definitions for ch 4

In this chapter—
applied section 258 see section 103.
applied section 259 see section 103.
burn out, for a motor vehicle, means wilfully drive the motor vehicle in a way that causes a sustained loss of traction of one or more of the wheels with the road surface.

Examples—

driving a motor vehicle in a way that causes a sustained loss of traction of one or more of the drive wheels with a road surface so that the tyres or a substance poured onto the road surface smokes
driving a motor vehicle in a way that causes a sustained loss of traction of one or more of the drive wheels with a wet or gravelled road surface, regardless of whether or not the tyres smoke because of the loss of traction
excessive noise means excessive noise mentioned in section 576(1) and to which chapter 19, part 3 applies.
forfeiture order, for a motorbike noise order offence, see section 91(2).
immobilise, for a motor vehicle, includes restrict the use of the motor vehicle by way of an immobilising device or the removal and confiscation of the motor vehicle’s number plates.
immobilising device, for a motor vehicle, includes a wheel clamp.
immobilising notice, for a vehicle related offence, see section 78(2).
impounding notice
(a)for a vehicle related offence—see section 78(2); or
(b)for a motorbike noise direction offence or a motorbike noise order offence—see section 81(2).
impounding order, for a motorbike noise order offence, see section 86(2).
initial impoundment period, for a motor vehicle, means—
(a)a period of 48 hours starting when the motor vehicle is impounded; or
(b)if the period of 48 hours ends at any time after 5p.m. and before 8a.m. on a day, a period starting when the motor vehicle is impounded and ending at 8a.m. next occurring on a business day after the period of 48 hours ends.
initiating immobilisation, of a motor vehicle, means the immobilisation of the motor vehicle for the initiating immobilisation offence.
initiating immobilisation offence means the vehicle related offence for which a motor vehicle is immobilised under this chapter.
initiating impoundment, of a motor vehicle, means the impoundment of the motor vehicle for the initiating impoundment offence.
initiating impoundment offence means—
(a)the vehicle related offence for which a motor vehicle is impounded under this chapter; or
(b)for a motorbike noise order offence—the motorbike noise order offence because of which a police officer applies for an impounding order or a forfeiture order for the motorbike involved in the commission of the offence.
magistrate includes a Childrens Court magistrate.
modify, a motor vehicle, includes remove the engine or gearbox from the motor vehicle.
motorbike noise direction offence means the contravention of a noise abatement direction given in relation to excessive noise emitted by a motorbike being driven on a place other than a road.
motorbike noise order offence means the contravention of a noise abatement order given in relation to excessive noise emitted by a motorbike being driven on a place other than a road.
number plate means a plate or other device designed to be attached to a motor vehicle to identify the motor vehicle.
number plate confiscation notice see section 74H(2).
number plate confiscation period see section 74H(3).
offence, in relation to which an application is made, means the initiating application offence and any other offence relied on for the purposes of any order under this chapter.
prescribed impoundment information means—
(a)information about how the owner of a motorbike impounded under this chapter may recover the motorbike; and
(b)a statement that, before the motorbike may be recovered, the owner may be required to produce satisfactory evidence of the ownership of the motorbike; and
(c)a statement that, if the driver is an adult, the driver will be required to pay the costs of removing and keeping the motorbike; and
(d)a statement that, if the driver is a child and the child is found guilty of the offence for which the motorbike was impounded, the court may order the child or the child’s parent or guardian to pay the costs of removing and keeping the motorbike; and
(e)a statement that, if the owner of a motorbike fails to recover the motorbike after the period of impounding ends and the owner was the driver of the motorbike when it was impounded, the owner is liable to pay the costs of keeping the motorbike for each day after the period of impounding ends, whether or not the driver is found guilty of the offence for which the motorbike is impounded; and
(f)a statement that, if the owner of the motorbike fails to recover the motorbike after the period of impounding ends and the owner was not the driver of the motorbike when it was impounded, the owner is liable to pay the costs of keeping the motorbike for each day after the period of impoundment ends that is more than 2 business days after the owner is given the impounding notice; and
(g)the penalty for unlawfully removing the motorbike from the place at which it is held.
prescribed impoundment period, for a motor vehicle, means—
(a)a period prescribed under this Act to be the period of impoundment for the motor vehicle starting when the motor vehicle is impounded; or

Example for paragraph (a)—

A motor vehicle is impounded at 3p.m. on 1 August. If the period of impoundment prescribed under this Act is 7 days, the prescribed impoundment period ends at 3p.m. on 8 August.
(b)if the period prescribed ends at any time other than between 8a.m. and 5p.m. on a business day, a period starting when the motor vehicle is impounded and ending at 8a.m. next occurring on a business day after the period prescribed ends.

Examples for paragraph (b)—

1A motor vehicle is impounded at 3a.m. on Wednesday, 1 August. If the period of impoundment prescribed under this Act is 7 days, the period of 7 days ends at 3a.m. on Wednesday, 8 August. However, the prescribed impoundment period ends at 8a.m. on Wednesday, 8 August.
2A motor vehicle is impounded at 7p.m. on Sunday, 1 April. If the period of impoundment prescribed under this Act is 90 days, the period of 90 days ends at 7p.m. on Saturday, 30 June. However, the prescribed impoundment period ends at 8a.m. on Monday, 2 July.
prescribed offence means—
(a)a motorbike noise order offence; or
(b)a vehicle related offence.
prescribed period, in relation to an application for an impounding order or a forfeiture order—
(a)for a vehicle related offence—means the relevant period and any period from the end of the relevant period to and including the day on which the application is heard and decided; or
(b)for a motorbike noise order offence—the period for which the motorbike noise order to which the offence relates is in force and any period from the end of that period to and including the day on which the application is heard and decided.
relevant court, in relation to an application for an impounding order or a forfeiture order for a motor vehicle, means—
(a)the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence to which the application relates; or
(b)if the driver of the motor vehicle is a child—a Childrens Court constituted by a magistrate sitting in the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence to which the application relates.
relevant period, in relation to a motor vehicle impounded or immobilised for a type 1 vehicle related offence or a type 2 vehicle related offence, means the period of not more than 5 years before the initiating impoundment or initiating immobilisation for the motor vehicle.
type 1 vehicle related offence see section 69A.
type 2 vehicle related offence see section 69A.
vehicle production notice see section 74K(2).
vehicle related offence means—
(a)a type 1 vehicle related offence; or
(b)a type 2 vehicle related offence.

69AMeaning of type 1 and type 2 vehicle related offences

(1)A type 1 vehicle related offence means—
(a)any of the following offences committed in circumstances that involve a speed trial, a race between motor vehicles, or a burn out—
(i)an offence against the Criminal Code, section 328A committed on a road or in a public place;
(ii)an offence against the Road Use Management Act, section 83;
(iii)an offence against the Road Use Management Act, section 85;
(iv)an offence against the Road Use Management Act involving wilfully starting a motor vehicle, or driving a motor vehicle, in a way that makes unnecessary noise or smoke; or
(b)an offence against section 754(2).

Notes—

Under the Acts Interpretation Act 1954, section 7(1) a reference to a law includes a reference to statutory instruments made or in force under the law.

At the enactment of this definition, a relevant offence for paragraph (a)(iv), for example, is an offence against the Transport Operations (Road Use Management—Road Rules) Regulation 2009, section 291(1)(b).

(2)A type 2 vehicle related offence means any of the following offences—
(a)an offence against the Motor Accident Insurance Act 1994, section 20 that happens at the same time as an offence against the Road Use Management Act involving the use on a road of a vehicle that is not registered as required under that Act;
(b)an offence against the Road Use Management Act, section 78(1);
(c)an offence against the Road Use Management Act, section 79 in circumstances in which the driver of the motor vehicle involved in the offence is over the high alcohol limit within the meaning of the Road Use Management Act, section 79A;
(d)an offence against the Road Use Management Act, section 80(5A), (11) or (22D);
(e)an offence against the Road Use Management Act or the Heavy Vehicle National Law (Queensland) prescribed under a regulation for this paragraph involving a motor vehicle being driven on a road if—
(i)a defect notice has been issued in relation to the motor vehicle under this Act, the Road Use Management Act or the Heavy Vehicle National Law (Queensland); and
(ii)under the notice, the motor vehicle must be inspected by an authorised officer under the Road Use Management Act or the Heavy Vehicle National Law (Queensland) to ensure it complies with that Act or Law;
(f)an offence against the Road Use Management Act involving a driver of a motor vehicle in circumstances in which the driver exceeds a speed limit, applying to the driver for the length of road where the driver is driving, by more than 40km/h.

Example of relevant offence for paragraph (f)—

an offence against the Transport Operations (Road Use Management—Road Rules) Regulation 2009, section 20.
(3)For subsection (2)(e), a regulation may only prescribe an offence that involves—
(a)the motor vehicle (including its equipment) being modified in a way that required the owner to ensure that the modification had been approved under the Road Use Management Act or the Heavy Vehicle National Law (Queensland); or
(b)the motor vehicle (including its equipment) being modified so that driving the motor vehicle on the road is an offence under the Road Use Management Act or the Heavy Vehicle National Law (Queensland).
(3A)A reference in subsection (2)(e) to an offence involving a motor vehicle being driven on a road includes an offence involving modifying a vehicle if the modified vehicle is driven on a road.
(4)A reference in subsection (2) to an offence against section 78(1) or 80(22D) of the Road Use Management Act does not include an offence relating to a suspension that could in law only be imposed because section 80 of the Road Use Management Act had been amended by the amendment.
(5)A reference in subsection (2) to an offence against section 80(5A) or (11) of the Road Use Management Act does not include an offence that in the circumstances could in law only be committed, or that the person could in law only be taken to be guilty of, because section 80 of the Road Use Management Act had been amended by the amendment.

Note for subsections (4) and (5)—

These subsections effectively exclude anything associated with saliva testing and saliva analysis under the Road Use Management Act from the operation of subsection (2).
(6)In this section—
amendment means the Transport Legislation and Another Act Amendment Act 2007, section 57.
defect notice includes a vehicle defect notice under the Heavy Vehicle National Law (Queensland).

70References to motor vehicle includes motorbike

To remove any doubt, it is declared that—
(a)a reference in this chapter to a motor vehicle in relation to a prescribed offence includes a reference to a motorbike; and
(b)a reference in this chapter to a motor vehicle in relation to a vehicle related offence includes a reference to a motorbike.

71When a person is charged for this chapter in relation to a prescribed offence

(1)This section applies for this chapter if a proceeding for a prescribed offence is started against a person by notice to appear or arrest.
(2)This section also applies for this chapter if a police officer serves an infringement notice on a person for an infringement notice offence that is a vehicle related offence.
(3)If the proceeding is started by notice to appear, the person is taken to be charged with having committed the offence when the notice to appear is issued and served on the person.
(4)If the proceeding is started by arrest, the person is taken to be charged with having committed the offence when the person is arrested.
(5)If a person is served with an infringement notice, the person is taken to be charged with having committed the offence when the infringement notice is served on the person.

Note—

See the State Penalties Enforcement Act 1999, sections 13 (Service of infringement notices—generally) and 14 (Service of infringement notices for infringement notice offences involving vehicles).

71AWhen a charge for an offence for this chapter is taken to not be decided if a proceeding for the offence is started by infringement notice

(1)This section applies for this chapter if a police officer serves an infringement notice on a person for an infringement notice offence that is a vehicle related offence.
(2)The charge for the offence is taken to not be decided if—
(a)the fine for the offence is not paid or otherwise being discharged under the State Penalties Enforcement Act 1999, section 149A; and
(b)an infringement notice default has not been registered for the offence under the State Penalties Enforcement Act 1999, section 34; and
(a)there has been no payment of a penalty, in full or by instalments, under the State Penalties Enforcement Act 1999; and
(b)the registrar under the State Penalties Enforcement Act 1999 has not registered a default certificate for the infringement notice under that Act; and
(c)the person has not otherwise been found guilty of the offence.

72Punishment under this chapter is in addition to other punishment for the same offence

The impounding, immobilisation or forfeiture of a motor vehicle or the imposition of community service on a person under this chapter arising out of the commission of a prescribed offence is in addition to any other penalty that may be imposed on the person for the prescribed offence.

Division 2 Relationship with other legislation

73National Credit Code

Nothing in this chapter affects the rights of a credit provider to repossess a motor vehicle under the National Credit Code and sell it.

Part 2 Impounding and immobilising motor vehicles and forfeiture of motor vehicles

Division 1 Impounding powers for type 1 vehicle related offences and forfeiture of motor vehicles in particular circumstances

74Impounding motor vehicles for first type 1 vehicle related offence

(1)A police officer may impound a motor vehicle if the driver of the motor vehicle is charged with having committed a type 1 vehicle related offence in relation to the motor vehicle.

Note—

For when a person is charged with an offence, see section 71.
(2)A motor vehicle may be impounded under subsection (1) for the prescribed impoundment period.

Note—

See section 117 about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of the prescribed offence or the proceeding is discontinued.
(3)The prescribed impoundment period for a motor vehicle impounded under subsection (1) is 90 days.

74AImpounding motor vehicles for second or subsequent type 1 vehicle related offence

(1)A police officer may impound a motor vehicle if the driver of the motor vehicle is charged with having committed a type 1 vehicle related offence in relation to the motor vehicle and—
(a)the driver of the motor vehicle has been charged with having committed a type 1 vehicle related offence on 1 previous occasion within the relevant period and the charge has not been decided; or
(b)the driver of the motor vehicle has previously been found guilty of a type 1 vehicle related offence committed on 1 previous occasion within the relevant period.

Notes—

1For when a person is charged with an offence, see section 71.
2For when a charge for an offence is taken to be not decided if the proceeding for the offence is started by the service of an infringement notice, see section 71A.
(2)A motor vehicle impounded under subsection (1) may be impounded until the end of proceedings for all charges under this section.

Note—

See section 117 about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of the prescribed offence or the proceeding is discontinued.
(3)This section applies subject to division 2.

Note—

Division 2 contains provisions relating to applications for release of impounded or immobilised motor vehicles.

74BForfeiture of motor vehicles if driver found guilty of second or subsequent type 1 vehicle related offence

(1)This section applies in relation to a motor vehicle impounded under section 74A if the driver of the motor vehicle—
(a)has been found guilty of a type 1 vehicle related offence committed on 1 previous occasion within the relevant period; and
(b)is found guilty of a second or subsequent type 1 vehicle related offence mentioned in section 74A(1).
(2)On the driver being found guilty—
(a)the motor vehicle becomes the property of the State; and
(b)any right of a person to enforce a security interest under the Personal Property Securities Act 2009 (Cwlth) against a person other than the State by taking possession of the vehicle is extinguished.
(3)This section applies subject to division 2.

Note—

Under division 2 the commissioner may grant an application for the release of an impounded or immobilised motor vehicle.
(4)However, subsection (5) applies if—
(a)before the driver of the motor vehicle is found guilty of the offence mentioned in subsection (1)(b), the motor vehicle is released under section 79D, 79F or 79H with a condition; and
(b)the motor vehicle is later impounded or immobilised under section 79P because of a breach of the condition.
(5)Subsection (2) applies in relation to the motor vehicle as if the motor vehicle had not been released under section 79D, 79F or 79H.

Division 1A Impounding powers for type 2 vehicle related offences and forfeiture of motor vehicles in particular circumstances

74CImpounding motor vehicles for second or subsequent type 2 vehicle related offence

(1)A police officer may impound a motor vehicle if the driver of the motor vehicle is charged with having committed a type 2 vehicle related offence in relation to the motor vehicle and—
(a)the driver of the motor vehicle has been charged with having committed a type 2 vehicle related offence on 1 previous occasion within the relevant period and the charge has not been decided before the initiating impoundment; or
(b)the driver of the motor vehicle has previously been found guilty of a type 2 vehicle related offence committed on 1 previous occasion within the relevant period.

Note—

For when a person is charged with an offence, see section 71.
(2)A motor vehicle may be impounded under subsection (1) for the prescribed impoundment period.

Note—

See section 117 about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of the prescribed offence or the proceeding is discontinued.
(3)The prescribed impoundment period for a motor vehicle impounded under subsection (1) is 7 days.

74DImpounding motor vehicles for third or subsequent type 2 vehicle related offence

(1)A police officer may impound a motor vehicle if the driver of the motor vehicle is charged with having committed a type 2 vehicle related offence and—
(a)the driver of the motor vehicle has been charged with having committed type 2 vehicle related offences on 2 previous occasions within the relevant period and the charges have not been decided before the initiating impoundment; or
(b)the driver of the motor vehicle has previously been found guilty of type 2 vehicle related offences committed on 2 previous occasions within the relevant period; or
(c)the driver of the motor vehicle—
(i)has previously been found guilty of having committed a type 2 vehicle related offence on 1 previous occasion within the relevant period; and
(ii)has been charged with having committed a type 2 vehicle related offence on 1 previous occasion within the relevant period and the charge has not been decided before the initiating impoundment.

Notes—

1For when a person is charged with an offence, see section 71.
2For when a charge for an offence is taken to be not decided if the proceeding for the offence is started by the service of an infringement notice, see section 71A.
(2)A motor vehicle may be impounded under subsection (1) for the prescribed impoundment period.

Note—

See section 117 about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of the prescribed offence or the proceeding is discontinued.
(3)The prescribed impoundment period for a motor vehicle impounded under subsection (1) is 90 days.

74EImpounding motor vehicles for fourth or subsequent type 2 vehicle related offence

(1)A police officer may impound a motor vehicle if—
(a)the driver of the motor vehicle is charged with having committed a type 2 vehicle related offence; and
(b)the driver of the motor vehicle has been charged with having committed type 2 vehicle related offences on 3 previous occasions within the relevant period; and
(c)for each of the charges mentioned in paragraph (b)—
(i)the charge has not been decided; or
(ii)the driver has been found guilty.

Notes—

1For when a person is charged with an offence, see section 71.
2For when a charge for an offence is taken to be not decided if the proceeding for the offence is started by the service of an infringement notice, see section 71A.
(2)A motor vehicle impounded under subsection (1) may be impounded until the end of proceedings for all charges under this section.

Note—

See section 117 about the release of a motor vehicle if the driver of the motor vehicle is found not guilty of the prescribed offence or the proceeding is discontinued.
(3)This section applies subject to division 2.

Note—

Division 2 contains provisions relating to applications for release of impounded or immobilised motor vehicles.

74FForfeiture of motor vehicles if driver found guilty of fourth or subsequent type 2 vehicle related offence

(1)This section applies in relation to a motor vehicle impounded under section 74E if the driver of the motor vehicle—
(a)has been found guilty of 3 type 2 vehicle related offences committed within the relevant period; and
(b)is found guilty of the fourth or subsequent type 2 vehicle related offence mentioned in section 74E(1).
(2)On the driver being found guilty—
(a)the motor vehicle becomes the property of the State; and
(b)any right of a person to enforce a security interest under the Personal Property Securities Act 2009 (Cwlth) against a person other than the State by taking possession of the vehicle is extinguished.
(3)This section applies subject to division 2.

Note—

Under division 2 the commissioner may grant an application for the release of an impounded or immobilised motor vehicle.
(4)However, subsection (5) applies if—
(a)before the driver of the motor vehicle is found guilty of the offence mentioned in subsection (1)(b), the motor vehicle is released under section 79D, 79F or 79H with a condition; and
(b)the motor vehicle is later impounded or immobilised under section 79P because of a breach of the condition.
(5)Subsection (2) applies in relation to the motor vehicle as if the motor vehicle had not been released under section 79D, 79F or 79H.

Division 1B Immobilising powers for type 1 and type 2 vehicle related offences

Subdivision 1 Preliminary

74GPurpose of div 1B

The purpose of this division is to provide another way for keeping a motor vehicle, that may be impounded under division 1 or 1A, at a place other than a holding yard.

Subdivision 2 Confiscation of number plate powers

74HPower to remove and confiscate number plates

(1)This section applies if—
(a)a police officer may impound a motor vehicle under division 1 or 1A; and
(b)the police officer decides that it is appropriate in the circumstances for the motor vehicle to be kept at a place other than a holding yard for the impoundment period.
(2)The police officer may attach a notice (a number plate confiscation notice) to the motor vehicle stating all of the following—
(a)that the vehicle must not be operated;
(b)the period for which the vehicle is prohibited from being operated;
(c)that the notice must not be removed from the vehicle;
(d)the date the notice is attached to the motor vehicle.
(2A)If the police officer attaches a number plate confiscation notice to the motor vehicle and number plates are attached to the motor vehicle, the police officer must also remove and confiscate the number plates.
(3)Except as provided under this chapter, a motor vehicle to which a number plate confiscation notice is attached under this section is prohibited from being operated for the period stated in the notice (the number plate confiscation period) for which the vehicle would have been kept in a holding yard and commencing on the day the notice is attached to the vehicle.
(4)To remove any doubt, it is declared that a number plate confiscation notice may be attached to a motor vehicle whether or not number plates are attached to the vehicle.

Note—

See sections 105B and 105C for number plate offences.

74IMoving motor vehicle to which number plate confiscation notice is attached

A motor vehicle to which a number plate confiscation notice is attached under section 74H may be moved (for example, by being driven or towed) to a place authorised by a police officer where the motor vehicle may lawfully stand.

Subdivision 3 Immobilising device powers

74JPower to attach immobilising device

(1)This section applies if—
(a)a police officer may impound a motor vehicle under division 1 or 1A; and
(b)the police officer decides that it is appropriate in the circumstances for the motor vehicle to be kept at a place other than a holding yard for the impoundment period.
(2)The police officer may attach an immobilising device, or arrange for an immobilising device to be attached, to the motor vehicle.
(3)Except as provided under this chapter, a motor vehicle to which an immobilising device is attached under this section is prohibited from being operated for the period for which the vehicle would have been kept in a holding yard commencing on the day the device is attached to the vehicle.

Note—

See sections 105D and 105E for immobilising device offences.

Division 1C Vehicle production notices

74KPower to require motor vehicle to be produced

(1)This section applies if a police officer may—
(a)impound a motor vehicle under division 1 or 1A; or
(b)immobilise a motor vehicle under division 1B.
(2)The police officer may require the owner or driver by notice in the approved form (a vehicle production notice) to produce the vehicle at a stated place and stated time for impoundment or immobilisation.
(3)The time or place stated in the notice must be reasonable in the circumstances.
(4)If for any reason it is not practicable to give a vehicle production notice, the requirement may be made orally and confirmed by a vehicle production notice as soon as practicable.

74LPeriod of impoundment or immobilisation starts only when motor vehicle produced

(1)This section applies to a motor vehicle in relation to which a vehicle production notice has been given under section 74K.
(2)The period for which the motor vehicle is impounded under division 1 or 1A, or immobilised under this division, starts only when the motor vehicle is produced at the place stated in the notice.

74MVehicle production notices generally

(1)The date stated in a vehicle production notice for production of a motor vehicle must be a date that is no later than the first business day occurring 5 days after the notice is given.
(2)The disposal of a motor vehicle within the period of 5 days after a vehicle production notice is given in relation to the motor vehicle does not affect the requirement to produce the motor vehicle in accordance with the notice, except as provided by subsection (3).
(3)A vehicle production notice ceases to have effect in relation to a motor vehicle if it is withdrawn by the commissioner by notice in writing given to—
(a)the owner of the motor vehicle; or
(b)a person who purchased the motor vehicle after the production notice was given who satisfies the commissioner that the purchase was made in good faith for value and without notice, at the time of the purchase, of the production notice.

Division 1D General provisions relating to impounding and immobilising motor vehicles

75Particular powers for impounding or immobilising motor vehicles

(1)To impound a motor vehicle under divisions 1, 1A or part 2A, division 1, or to immobilise a motor vehicle under division 1B, a police officer may—
(a)stop the motor vehicle if it is moving, whether or not the motor vehicle is on a road; or
(b)require the driver of the motor vehicle if it is stationary to remain at the place where it is stopped for the time reasonably necessary; or
(c)direct the person who has the key needed to move the motor vehicle—
(i)to give the key to a police officer; or
(ii)if the motor vehicle is in a dwelling, to move the motor vehicle out of the dwelling, and to give the key to a police officer; or
(d)if it is necessary to enter the motor vehicle to impound or immobilise it, enter the motor vehicle to impound or immobilise it; or
(e)enter a place, other than the part of the place that is a dwelling, and stay for a reasonable time on the place; or
(f)do anything else reasonably necessary for impounding or immobilising the motor vehicle.
(2)Also, when impounding or immobilising a motor vehicle that is not registered under a transport Act, a police officer may require the driver of the motor vehicle to state the name and address of the owner of the motor vehicle.

Note—

Failure to comply with a direction or requirement given or made under this section is an offence against section 791.
(2A)After impounding a motor vehicle, a police officer may move the motor vehicle, or arrange for the motor vehicle to be moved, to a holding yard in the way the police officer considers appropriate.

Example of ways of moving a motor vehicle after it is impounded—

driving, pushing, towing or transporting the motor vehicle
(3)Subsection (1)(a) and (b) is in addition to, and does not limit, section 60 or 61.
(4)Also, the powers exercisable under subsection (1)(a) and (b) may be exercised before or after the motor vehicle is impounded or immobilised.

76Release of motor vehicle in particular circumstances

(1)If a motor vehicle that is impounded or immobilised is a motor vehicle that is being unlawfully used or has been stolen or is a rental motor vehicle—
(a)the motor vehicle must be released to the owner as soon as reasonably practicable; and
(b)an application for an impounding order or a forfeiture order about the motor vehicle must not be made.
(2)In this section—
rental motor vehicle means a motor vehicle made available by a person in the course of a business in which the person rents vehicles to members of the public.

77Police officer may authorise tow

(1)This section applies if a police officer—
(a)arranges for an impounded motor vehicle to be towed to a holding yard; or
(b)arranges for an immobilised motor vehicle to be towed to a place.
(2)A police officer may sign a towing authority for the impounded or immobilised motor vehicle.
(3)The driver of a tow truck towing the impounded or immobilised motor vehicle under a towing authority must tow the motor vehicle to—
(a)if the police officer directs the driver to tow the motor vehicle to a particular holding yard or place—the holding yard or the place; or
(b)if paragraph (a) does not apply—the holding yard to which the driver ordinarily tows motor vehicles.
(4)In this section—
towing authority means—
(a)a towing authority under the Tow Truck Act 1973; or
(b)another document authorising a person to tow a motor vehicle.

78Impounding notice or immobilising notice for vehicle related offence

(1)This section applies if a motor vehicle is impounded or immobilised for a vehicle related offence.
(2)As soon as reasonably practicable, a police officer must give written notice in the approved form (impounding notice) of the impounding, or written notice in the approved form (immobilising notice) of the immobilising, to—
(a)the driver of the motor vehicle; and
(b)if the driver is not the owner or not the only owner of the motor vehicle—the owner or each other owner of the motor vehicle.
(3)If the driver is a child, the impounding notice or the immobilising notice must also be given to the child’s parent or guardian if it is reasonably practicable to do so, unless the parent or guardian is given notice under subsection (2).
(4)The impounding notice or the immobilising notice must state—
(a)the period that the motor vehicle is impounded or immobilised for; and
(b)information about how the owner of a motor vehicle impounded or immobilised under this chapter may recover the motor vehicle; and
(c)any other information prescribed under a regulation.
(5)When giving an impounding notice or immobilising notice under this section to a child or the child’s parent or guardian, the police officer giving the notice must also give the person an explanation of the matters stated in the impounding notice or immobilising notice.
(6)The police officer may give the explanation by giving the person a statement, in the approved form, containing the explanation if it is appropriate in the circumstances to do so.
(7)An impounding notice or immobilising notice given to a driver under subsection (2)(a) must be given personally to the driver.
(8)If the name of an owner of the motor vehicle is not known, an impounding notice or immobilising notice required to be given to the owner under subsection (2)(b) may be given by making the information required to be included on the impounding notice or immobilising notice, other than the owner’s name and address, available on the police service internet website.

Division 2 Other provisions relating to impounded or immobilised motor vehicles

Subdivision 1 Preliminary

79Definitions for div 2

In this division—
eligible person, for a motor vehicle, means an owner or usual driver of the motor vehicle.
information notice, for a decision of the commissioner under this division, means a notice stating—
(a)the decision; and
(b)the reasons for the decision; and
(c)that the person to whom the notice is given may appeal against the decision within 28 days after the person receives the notice; and
(d)how the person may appeal against the decision.
vehicle release notice, for a motor vehicle, means a notice stating—
(a)the decision of the commissioner made under this division; and
(b)the time and date when the impoundment, or immobilisation, of the vehicle ends; and
(c)any conditions to which the release of the motor vehicle is subject.

Subdivision 2 Application for release of impounded or immobilised motor vehicle

79AApplication for release of impounded or immobilised motor vehicle on basis of severe hardship

(1)An eligible person may apply to the commissioner for the release of a motor vehicle impounded under division 1 or 1A, or immobilised under division 1B, on the basis that the person would suffer severe hardship if the motor vehicle was not released.
(2)The application must be—
(a)made in the approved form; and
(b)supported by enough information to enable the commissioner to decide the application.

Note—

See section 79B(4) and (5) for particular information the applicant must give to the commissioner.
(3)An application may be made under this section regardless of whether the motor vehicle may be liable to forfeiture.

79BDecision on application for release of impounded or immobilised motor vehicle on basis of severe hardship

(1)The commissioner must consider an application for the release of a motor vehicle under section 79A after receiving all necessary information relevant to the application and either—
(a)grant the application; or
(b)refuse to grant the application.
(2)The commissioner must, if reasonably practicable, decide the application within 5 business days of receiving the application and other documents required under this subdivision.
(3)The commissioner may grant the application only if the commissioner is satisfied a refusal to grant the application would—
(a)cause severe financial hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living; or
(b)cause severe physical hardship to the applicant or the applicant’s family.
(4)For subsection (3)(a), the applicant must give the following to the commissioner—
(a)a statement made by the applicant outlining how a refusal to grant the application would cause severe financial hardship to the applicant or the applicant’s family;
(b)if the applicant is not self-employed—a statement made by the applicant’s employer confirming the applicant would be deprived of the applicant’s means of earning a living if the application is refused.
(5)For subsection (3)(b), the applicant must give the commissioner a statement made by the applicant that—
(a)outlines how a refusal to grant the application would cause severe physical hardship to the applicant or the applicant’s family; and
(b)has attached to it statutory declarations from persons other than the applicant, other documentary evidence, or certified copies of documentary evidence, in support of each matter stated in the statement.
(6)If the commissioner decides to grant the application, the commissioner must give the applicant a vehicle release notice for the motor vehicle.
(7)If the commissioner decides to refuse to grant the application, the commissioner must as soon as practicable give the applicant an information notice for the decision.
(8)The commissioner may grant the application with or without conditions.

Examples of conditions—

1a condition that the owner of the motor vehicle does not allow the person who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded to use the motor vehicle
2a condition that the owner of the motor vehicle who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded, is to only use the motor vehicle for work related purposes
(9)A condition made by the commissioner under this section expires on the earlier of the following—
(a)if the driver is found not guilty of the prescribed offence for which the motor vehicle was impounded or immobilised or the proceeding for the offence is discontinued—the day the driver is found not guilty or the proceeding is discontinued;
(b)when the period of impoundment or immobilisation that would have applied to the motor vehicle had it not been released by way of a decision of the commissioner under this section ends.
(10)In this section—
certified copy, of documentary evidence, means certified by a justice of the peace or commissioner for declarations in writing to be a true copy of the documentary evidence.

79CApplication for release of impounded or immobilised motor vehicle on basis prescribed offence happened without owner’s consent

(1)The owner of a motor vehicle impounded under division 1 or 1A, or immobilised under division 1B, may apply to the commissioner for the release of the motor vehicle on the basis that the offence happened without the consent of the person.
(2)The application must be—
(a)made in the approved form; and
(b)supported by enough information to enable the commissioner to decide the application.
(3)An application may be made under this section regardless of whether the motor vehicle may be liable to forfeiture.

79DDecision on application for release of impounded or immobilised motor vehicle on basis prescribed offence happened without owner’s consent

(1)The commissioner must consider an application for the release of a motor vehicle under section 79C after receiving all necessary information relevant to the application and either—
(a)grant the application; or
(b)refuse to grant the application.
(2)The commissioner must, if reasonably practicable, decide the application within 5 business days of receiving the application and other documents required under this subdivision.
(3)The commissioner may grant the application only if the commissioner is satisfied the relevant prescribed offence happened without the consent of the owner.
(4)If the commissioner decides to grant the application, the commissioner must give the applicant a vehicle release notice for the motor vehicle.
(5)If the commissioner decides to refuse to grant the application, the commissioner must as soon as practicable give the applicant an information notice for the decision.
(6)The commissioner may grant the application with or without conditions.

Examples of conditions—

1a condition that the owner of the motor vehicle does not allow the person who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded to use the motor vehicle
2a condition that the owner of the motor vehicle who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded, is to only use the motor vehicle for work related purposes
(7)A condition made by the commissioner under this section expires on the earlier of the following—
(a)if the driver is found not guilty of the prescribed offence for which the motor vehicle was impounded or immobilised or the proceeding for the offence is discontinued—the day the driver is found not guilty or the proceeding is discontinued;
(b)when the period of impoundment or immobilisation that would have applied to the motor vehicle had it not been released by way of a decision of the commissioner under this section ends.
(8)In this section—
relevant prescribed offence means the prescribed offence because of which the impoundment or immobilisation has happened.

79EApplication for release of impounded or immobilised motor vehicle on basis that circumstances giving rise to offence have been rectified

(1)This section applies if a motor vehicle is impounded under division 1 or 1A, or immobilised under division 1B, because of the commission of a relevant type 2 vehicle related offence.
(2)An eligible person may apply to the commissioner for the release of the motor vehicle on the basis that the circumstances giving rise to the offence have been rectified.
(3)The application must be—
(a)made in the approved form; and
(b)supported by enough information to enable the commissioner to decide the application.

Examples for paragraph (b)—

a receipt issued by the department within which the Road Use Management Act is administered indicating the payment of vehicle registration fees for an impounded motor vehicle or a copy of a license issued by that department
(4)In this section—
relevant type 2 vehicle related offence means—
(a)an offence against the Road Use Management Act involving the use on a road of a vehicle that is not registered as required under that Act; or
(b)an offence against the Road Use Management Act, section 78(1).

79FDecision on application for release of impounded or immobilised motor vehicle on basis that circumstances giving rise to offence have been rectified

(1)The commissioner must consider an application for the release of a motor vehicle under section 79E after receiving all necessary information relevant to the application and either—
(a)grant the application; or
(b)refuse to grant the application.
(2)The commissioner must, if reasonably practicable, decide the application within 5 business days of receiving the application and other documents required under this subdivision.
(3)The commissioner may grant the application if the commissioner is satisfied the circumstances giving rise to the offence have been rectified.
(4)If the commissioner decides to grant the application, the commissioner must give the applicant a vehicle release notice for the motor vehicle.
(5)If the commissioner decides to refuse to grant the application, the commissioner must as soon as practicable give the applicant an information notice for the decision.
(6)The commissioner may grant the application with or without conditions.

Examples of conditions—

1a condition that the owner of the motor vehicle does not allow the person who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded to use the motor vehicle
2a condition that the owner of the motor vehicle who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded, is to only use the motor vehicle for work related purposes
(7)A condition made by the commissioner under this section expires on the earlier of the following—
(a)if the driver is found not guilty of the prescribed offence for which the motor vehicle was impounded or immobilised or the proceeding for the offence is discontinued—the day the driver is found not guilty or the proceeding is discontinued;
(b)when the period of impoundment or immobilisation that would have applied to the motor vehicle had it not been released by way of a decision of the commissioner under this section ends.

79GApplication for release of impounded or immobilised motor vehicle on basis that grounds for impoundment or immobilisation unreasonable

(1)An eligible person may apply to the commissioner for the release of a motor vehicle impounded under division 1 or 1A, or immobilised under division 1B, on the basis that there were not reasonable grounds to impound or immobilise the motor vehicle.
(2)The application must be—
(a)made in the approved form; and
(b)supported by enough information to enable the commissioner to decide the application.

79HDecision on application for release of impounded or immobilised motor vehicle on basis that grounds for impoundment or immobilisation unreasonable

(1)The commissioner must consider an application for the release of a motor vehicle under section 79G after receiving all necessary information relevant to the application and either—
(a)grant the application; or
(b)refuse to grant the application.
(2)The commissioner must, if reasonably practicable, decide the application within 5 business days of receiving the application and other documents required under this subdivision.
(3)The commissioner may grant the application if the commissioner is not satisfied that there were reasonable grounds to impound or immobilise the motor vehicle.
(4)If the commissioner decides to grant the application, the commissioner must give the applicant a vehicle release notice for the motor vehicle.
(5)If the commissioner decides to refuse to grant the application, the commissioner must as soon as practicable give the applicant an information notice for the decision.
(6)The commissioner may grant the application with or without conditions.

Examples of conditions—

1a condition that the owner of the motor vehicle does not allow the person who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded to use the motor vehicle
2a condition that the owner of the motor vehicle who committed, or is alleged to have committed, the offence for which the motor vehicle was impounded, is to only use the motor vehicle for work related purposes
(7)A condition made by the commissioner under this section expires on the earlier of the following—
(a)if the driver is found not guilty of the prescribed offence for which the motor vehicle was impounded or immobilised or the proceeding for the offence is discontinued—the day the driver is found not guilty or the proceeding is discontinued;
(b)when the period of impoundment or immobilisation that would have applied to the motor vehicle had it not been released by way of a decision of the commissioner under this section ends.

79IImpoundment or immobilisation ends if application for release of motor vehicle granted

(1)If the commissioner grants an application for the release of a motor vehicle under this division, the impoundment of the motor vehicle under division 1 or 1A, or the immobilisation of the motor vehicle under division 1B, ends.
(2)This section applies subject to section 79P.

Subdivision 3 Appeals

79JWho may appeal

(1)A person who is aggrieved by a decision of the commissioner under section 79B, 79D, 79F or 79H may appeal against the decision.
(2)In this section—
decision includes a condition made by the commissioner under section 79B, 79D, 79F or 79H in relation to granting an application for the release of a motor vehicle.

79KHow to start appeal

(1)The appeal is started by filing a notice of appeal with the clerk of a Magistrates Court.
(2)The appellant must serve a copy of the notice on—
(a)the other persons entitled to appeal against the decision; and
(b)the commissioner.
(3)Despite subsection (2), the clerk of the court may ask the commissioner to serve a copy of the notice on a person mentioned in subsection (2)(a) whom the appellant is unable to serve.
(4)The notice of appeal must be filed within 28 days after the person is given an information notice for the decision.
(5)The court may at any time extend the period for filing the notice of appeal.
(6)The notice of appeal must state fully the grounds of the appeal and the facts relied on.

79LEffect of appeal on decision

(1)The start of an appeal against a decision of the commissioner does not affect the operation of the decision or prevent the taking of action to implement the decision.
(2)However, the court may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
(3)The court may act under subsection (2) on the application of the appellant or on its own initiative.

79MCommissioner has right of appearance

The commissioner has a right to appear and be heard before the court on an appeal under this subdivision.

79NHearing procedures

(1)An appeal must be decided on the evidence before the commissioner.
(2)However, the court may order that the appeal be heard afresh, in whole or part.

79OPowers of Magistrates Court

In deciding an appeal, the court may—
(a)confirm the decision appealed against; or
(b)set aside the decision and substitute another decision that it considers appropriate.

Subdivision 4 Miscellaneous

79PPower to take certain action if breach of condition

(1)This section applies if—
(a)the commissioner grants an application under this division for the release of an impounded or immobilised motor vehicle with a condition; and
(b)the condition is breached.
(2)A police officer may impound or immobilise the motor vehicle for the remainder of the period for which the vehicle would have been impounded or immobilised.
(3)For impounding or immobilising a motor vehicle under this section, a police officer may exercise any of the powers under section 75 if the police officer reasonably considers the exercise of the power may be effective for the purpose.

79QDelegation—commissioner

The commissioner may delegate any of the commissioner’s powers under this division including, for example, considering an application for the release of an impounded or immobilised vehicle under subdivision 2 and making a decision about the application, to a police officer of at least the rank of inspector.

Part 2A Impounding motorbikes for motorbike noise direction offences or motorbike noise order offences

Division 1 Impounding powers for motorbike noise direction offences or motorbike noise order offences

80Impounding motorbike for motorbike noise direction offence or motorbike noise order offence

(1)A police officer may impound a motorbike if—
(a)the driver of the motorbike is charged with having committed—
(i)a motorbike noise direction offence; or
(ii)a motorbike noise order offence; or
(b)the driver of the motorbike is a child and the police officer reasonably suspects the child has committed—
(i)a motorbike noise direction offence; or
(ii)a motorbike noise order offence.

Note—

For when a person is charged with an offence, see section 71.
(2)A motorbike impounded under subsection (1) may be impounded for the initial impoundment period.

81Impounding notice for motorbike noise direction offence or motorbike noise order offence

(1)This section applies if a motorbike is impounded for a motorbike noise direction offence or a motorbike noise order offence.
(2)As soon as reasonably practicable, a police officer must give written notice in the approved form (impounding notice) of the impounding to—
(a)the driver of the motorbike; and
(b)if the driver is not the owner or not the only owner of the motorbike—the owner or each other owner of the motorbike.
(3)If the driver is a child, the impounding notice must also be given to the child’s parent or guardian if it is reasonably practicable to do so, unless the parent or guardian is given notice under subsection (2).
(4)If the motorbike is impounded for a motorbike noise direction offence, the impounding notice must include the information required under section 82.
(5)If the motorbike is impounded for a motorbike noise order offence, the impounding notice must include the information required under section 83 or 84.
(6)When giving an impounding notice under this section to a child or the child’s parent or guardian, the police officer giving the impounding notice must also give the person an explanation of the matters stated in the notice.
(7)The police officer may give the explanation by giving the person a statement, in the approved form, containing the explanation if it is appropriate in the circumstances to do so.
(8)An impounding notice given to a driver under subsection (2)(a) must be given personally to the driver.
(9)Also, if the name of the owner of the motorbike is not known, an impounding notice required to be given to the owner under subsection (2)(b) may be given by making the information required to be included on the impounding notice, other than the owner’s name and address, available on the police service internet website.

Division 2 Notice requirements for motorbikes impounded for motorbike noise direction offences or motorbike noise order offences

82Content of notice for motorbike noise direction offence

(1)This section applies if a motorbike has been impounded because a police officer reasonably suspects the driver of the motorbike has committed a motorbike noise direction offence.
(2)The impounding notice must state—
(a)that the motorbike is impounded for the initial impoundment period; and
(b)the prescribed impoundment information; and
(c)that an application will be made to the relevant court for a noise abatement order within 48 hours after the end of the impoundment period.

83Content of notice for first motorbike noise order offence

(1)This section applies if a motorbike has been impounded because of a motorbike noise order offence and section 84 does not apply to the driver of the motorbike.
(2)The impounding notice must state—
(a)that the motorbike is impounded for the initial impoundment period; and
(b)the prescribed impoundment information; and
(c)that an application will be made to the relevant court for an order that the motorbike be impounded for 3 months if the driver of the motorbike is found guilty of a motorbike noise order offence relating to the motorbike.

84Content of notice for second or subsequent motorbike noise order offence

(1)This section applies if a motorbike has been impounded because of a motorbike noise order offence and—
(a)the driver of the motorbike has been found guilty of having committed a motorbike noise order offence relating to that motorbike on at least 1 previous occasion and has been charged with having committed another motorbike noise order offence that has not been decided and relates to that motorbike; or
(b)the driver of the motorbike has been charged with having committed a motorbike noise order offence relating to that motorbike on at least 2 previous occasions and the charges have not been decided;

within 2 years after a noise abatement order is made in relation to the driver of the motorbike.

Note—

See section 71 for when a person is charged for this chapter. Also, this section, unlike the corresponding provisions about motor vehicle related offences, does not rely on the suspicion of a police officer because the principal operation of the section in fact relates to children and processes under the Youth Justice Act 1992 apply.

(2)The impounding notice must state—
(a)that the motorbike is impounded for the initial impoundment period; and
(b)that an application will be made to the relevant court for an order that the motorbike be forfeited to the State if either of the following apply to the driver—
(i)the driver of the motorbike has previously been found guilty of a motorbike noise order offence relating to that motorbike;
(ii)the driver of the motorbike has been charged with having committed a motorbike noise order offence relating to that motorbike on at least 2 previous occasions and the charges have not been decided; and
(c)the prescribed impoundment information.

Part 3 Obtaining impounding orders for motorbike noise order offences

86Application for impounding order for motorbike noise order offence

(1)This section applies to the driver of a motorbike that is impounded for a motorbike noise order offence if the driver has been charged with the offence and an application for a forfeiture order for the motorbike can not be made under section 91.
(2)Within 48 hours after charging the person with the offence, a police officer must apply in the approved form for an order that the motorbike be held at a holding yard for a period of not more than 3 months (impounding order).
(3)The application must be made to the relevant court but may be started by application to a magistrate under section 800 and subsection (5) of this section.
(4)Subsection (3) applies even though the value of the motorbike may be more than the maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court.
(5)If the application is properly made to a magistrate under section 800, the magistrate must—
(a)order that a police officer may have the application brought on for hearing and decision in the relevant court and adjourn the application to that court; and
(b)give a copy of the application and the order to the clerk of the court of the relevant court.

88Orders on application for impounding order if motorbike noise order offence not decided

(1)This section applies if—
(a)an application is made to a relevant court under section 86 for an impounding order for a motorbike; and
(b)any proceeding on a charge of a motorbike noise order offence in relation to which the application is made has not been decided.
(2)The court must adjourn the application until the driver has been found guilty of the offence.

89Advice to owner of motorbike of date of hearing

(1)As soon as reasonably practicable after a date is set for the hearing of an application for an impounding order in relation to a motorbike, a police officer must give the driver of the motorbike and each owner of the motorbike written notice of the date, time and place of the hearing.
(2)If the driver or owner is a child and it is reasonably practicable to do so, notice must also be given to the child’s parent or guardian.

Part 4 Obtaining forfeiture orders for motorbike noise order offences

91Application for forfeiture order for motorbike noise order offence

(1)This section applies in relation to a motorbike impounded under section 74 for a motorbike noise order offence if the driver of the motorbike—
(a)has been—
(i)found guilty of having committed a motorbike noise order offence relating to that motorbike on at least 1 previous occasion; and
(ii)charged with having committed another motorbike noise order offence relating to that motorbike and the charge has not been decided; or
(b)has been charged with having committed a motorbike noise order offence relating to that motorbike on at least 2 previous occasions and the charges have not been decided.
(2)Within 48 hours after charging the person with the offence in relation to which the motorbike was impounded under section 74, a police officer must apply in the approved form for an order that the motorbike be forfeited to the State (forfeiture order).
(3)The application must be made in relation to at least 2 motorbike noise order offences the circumstances of which apply to the driver under subsection (1)(a) or (b).
(4)The application must be made to the relevant court but may be started by application to a magistrate under section 800 and subsection (6) of this section.
(5)Subsection (4) applies even though the value of the motorbike may be more than the maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court.
(6)If the application is properly made to a magistrate under section 800, the magistrate must—
(a)order that a police officer may have the application brought on for hearing and decision in the relevant court and adjourn the application to that court; and
(b)give a copy of the application and the order to the clerk of the court of the relevant court.

93Orders on application for forfeiture order if motorbike noise order offence not decided

(1)This section applies if a police officer applies to a relevant court under section 91 for a forfeiture order for a motorbike and any proceeding on a charge of a motorbike noise order offence in relation to which the application is made has not been decided.
(2)If the driver of the motorbike has not been found guilty of motorbike noise order offences in relation to offences committed on 2 occasions within the prescribed period, the court must adjourn the application until the driver has been found guilty of charges in relation to motorbike noise order offences committed on at least 2 occasions within the prescribed period.
(3)However, if the application relates to at least 1 motorbike noise order offence of which the driver has been found guilty, the court may make an order under subsection (4) if satisfied the motorbike should be impounded to stop the commission of another motorbike noise order offence.
(4)The court may order that the motorbike be impounded, or continue to be impounded, for a stated period of not more than 3 months.

94Advice to owner of motorbike of date of hearing

(1)As soon as reasonably practicable after a date is set for the hearing of an application for a forfeiture order in relation to a motorbike, a police officer must give the driver of the motorbike and each owner of the motorbike written notice of the date, time and place of the hearing.
(2)If the driver or owner is a child and it is reasonably practicable to do so, notice must also be given to the child’s parent or guardian.

Part 5 Deciding applications

Division 1 Where and when an application may be heard

95Where application is to be decided

An application for an impounding order or a forfeiture order for a motorbike noise order offence must be heard and decided by the relevant court.

97When application to be heard—motorbike noise order offence

(1)An application for an impounding order for a motorbike noise order offence must be heard and decided as soon as practicable after the person to whom the application relates is found guilty of 1 motorbike noise order offence.
(2)An application for a forfeiture order for a motorbike noise order offence must be heard and decided as soon as practicable after the person to whom the application relates is found guilty of 2 motorbike noise order offences committed on 2 occasions within the prescribed period.
(3)However, if, after an application for a forfeiture order in relation to a motorbike noise order offence is made—
(a)the person to whom the application relates is found not guilty of 1 of the motorbike noise order offences or the proceeding for 1 of the offences is discontinued; and
(b)no motorbike has previously been impounded for a motorbike noise order offence committed within the relevant period on an application for an impounding order made in relation to that person for an offence to which the application for the forfeiture order relates;

the relevant court may hear and decide the application for the forfeiture order as if it were an application for an impounding order.

(4)An application to which subsection (3) applies is taken, for division 3, to be an application for an impounding order.

Division 2 Consideration of application if made for motorbike noise order offence

100Consideration of application for impounding order

(1)On the hearing of an application for an impounding order for a motorbike noise order offence, the relevant court may order that the motorbike be impounded for 3 months if the driver of the motorbike has been found guilty of a motorbike noise order offence.
(2)Also, if the driver of the motorbike was a child when the last offence was committed, the relevant court must consider whether to make a costs order under section 103.
(3)Despite subsection (1), the relevant court may—
(a)make an order under section 102 for the performance by the driver of the motorbike of community service as decided by the court; and
(b)order that the motorbike be released to the owner.
(4)Also, if an owner of the motorbike raises the defence mentioned in section 107 and the relevant court is satisfied the defence has been made out, the court may order that the motorbike be released to the owner.

101Consideration of application for forfeiture order

(1)On the hearing of an application for a forfeiture order for a motorbike noise order offence, the relevant court may order that the motorbike be forfeited to the State or impounded for the period, of not more than 3 months, fixed by the court if the driver of the motorbike has been found guilty of a motorbike noise order offence committed on 2 occasions within the prescribed period.
(2)If—
(a)under subsection (1), the relevant court orders the impounding of the motorbike to which the application relates; and
(b)a relevant court has previously made an impounding order under section 100 for a motorbike noise order offence committed within the relevant period and forming the basis of the application;

the motorbike is impounded under subsection (1) for the motorbike noise order offence giving rise to the application for the forfeiture order and not for the motorbike noise order offence to which the impounding order under section 100 relates.

(3)Also, if the driver of the motorbike was a child when the last offence was committed, the relevant court must consider whether to make a costs order under section 103.
(4)Despite subsection (1), the relevant court may—
(a)make an order under section 102 for the performance by the driver of the motorbike of community service as decided by the court; and
(b)order that the motorbike be released to the owner.
(5)Also, if an owner of the motorbike raises the defence mentioned in section 107 and the relevant court is satisfied the defence has been made out, the court may order that the motorbike be released to the owner.
(6)On the making of a forfeiture order for a motorbike—
(a)the motorbike becomes the property of the State; and
(b)any right of a person to enforce a security interest under the Personal Property Securities Act 2009 (Cwlth) against a person other than the State by taking possession of the motorbike is extinguished.

Division 3 Community service orders in relation to motorbike noise direction offences or motorbike noise order offences

102Community service instead of impounding or forfeiture order

(1)This section applies if—
(a)the relevant court is satisfied impounding or forfeiting a motorbike will cause severe financial or physical hardship to an owner or usual driver of the motorbike; and
(b)the driver to whom the application relates was an adult when he or she committed the last offence in relation to which the application is made.
(2)The court may, instead of ordering the impounding or forfeiture of the motorbike, order the driver to perform not more than 240 hours community service.
(3)An order made under subsection (2)—
(a)is taken to be an order made under the Penalties and Sentences Act 1992 for the performance of community service under a fine option order under that Act; and
(b)is taken to have been made in the proceeding for the vehicle related offence or motorbike noise order offence giving rise to the application for the impounding order or forfeiture order.

Part 5A Other provisions about applications and orders

Division 1 Costs orders for child drivers

103Costs order for child drivers

(1)This section applies if—
(a)all of the following apply—
(i)a court finds a person guilty of a prescribed offence;
(ii)the person was a child when he or she committed the offence;
(iii)the motor vehicle to which the offence relates is impounded or immobilised; or
(b)a relevant court makes an impounding order or a forfeiture order for a motorbike noise order offence and the driver of the motorbike was a child when he or she committed the last offence in relation to which the order is made.
(2)The court must consider whether the child has the capacity to pay the costs of removing or keeping the motor vehicle and, if the court considers the child has the capacity to pay those costs, may order the child to pay the costs of removing or keeping the motor vehicle.
(3)If, after considering any submissions made by the child or the child’s parent, the court considers the child does not have the capacity to pay the costs of removing or keeping the motor vehicle, the court may call on the child’s parent under applied section 258 to show cause under applied section 259, as directed by the court, why the parent should not pay the costs of removing or keeping the motor vehicle.
(4)The court may, under applied section 259(5), order the child’s parent to pay the costs of removing or keeping the motor vehicle.
(5)In this section—
applied section 258 means the Youth Justice Act 1992, section 258, as applied by section 104.
applied section 259 means the Youth Justice Act 1992, section 259, as applied by section 104.
parent includes a guardian other than the chief executive (child safety).

104Application of applied sections for s 103

(1)This section states how applied sections 258 and 259 apply for section 103.
(2)Applied section 258 applies as if—
(a)subsections (1) and (9) were omitted; and
(b)a reference in the applied section—
(i)to compensation were a reference to the costs of removing or keeping a motor vehicle impounded or immobilised under this chapter; and
(ii)to the prosecution were a reference to—
(A)the applicant for the impounding order or forfeiture order; or
(B)otherwise—the prosecution for the prescribed offence.
(3)Applied section 259 applies as if—
(a)a reference in the applied section—
(i)to compensation were a reference to the costs of removing or keeping a motor vehicle impounded or immobilised under this chapter; and
(ii)to the prosecution were a reference to—
(A)the applicant for the impounding order or forfeiture order; or
(B)otherwise—the prosecution for the prescribed offence; and
(b)a reference in applied section 259(4) to a show cause hearing is a reference to the hearing and determination of the issue of whether a parent should be ordered, under applied section 259(5), to pay the costs of removing or keeping a motor vehicle impounded or immobilised under this chapter; and
(c)applied section 259(4), to the extent it mentions the director of public prosecutions, does not apply; and
(d)the expression in applied section 259(5) ‘of the matters mentioned in section 258(1)(a), (b) and (c)’ read instead as ‘that the parent should be ordered to pay the costs of removing or keeping a motor vehicle impounded or immobilised under the Police Powers and Responsibilities Act 2000, chapter 4’.
(4)Also, in relation to an order made under applied section 259(5)—
(a)the Youth Justice Act 1992, section 260 does not apply to that order; and
(b)the order is instead taken to be an order fining a person for an offence for the purposes of the State Penalties Enforcement Act 1999, section 34.

Division 2 Offences

105Offence to remove vehicle from holding yard

(1)A person must not unlawfully remove a motor vehicle impounded under this chapter from a holding yard.

Maximum penalty—40 penalty units.

(2)For subsection (1), it does not matter how the motor vehicle came to be in the holding yard.

105AFailure to comply with requirement to produce motor vehicle

A person must comply with a requirement under section 74K, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

105BOffence to operate vehicle during number plate confiscation period

A person must not operate a motor vehicle during a number plate confiscation period applying to the vehicle without reasonable excuse or unless the motor vehicle is moved under section 74I.

Maximum penalty—40 penalty units.

105COffence to remove, tamper with or modify number plate confiscation notice

A person must not, without reasonable excuse, remove, tamper with, or modify a number plate confiscation notice that has been attached to a motor vehicle under section 74H.

Maximum penalty—40 penalty units.

105CAOffence to modify, sell or dispose of motor vehicle during number plate confiscation period

(1)This section applies if a number plate confiscation notice was attached to a motor vehicle under section 74H.
(2)The owner of the motor vehicle must not, without reasonable excuse, modify or sell or otherwise dispose of the motor vehicle during the number plate confiscation period.

Maximum penalty for subsection (2)—40 penalty units.

105DOffence to tamper with, remove or modify immobilising device

A person must not, without reasonable excuse, tamper with, remove or modify an immobilising device attached to a motor vehicle.

Maximum penalty—40 penalty units.

105EOffence to operate motor vehicle if immobilising device unlawfully removed, tampered with or modified

A person must not, without reasonable excuse, operate a motor vehicle if an immobilising device attached to the motor vehicle has been unlawfully removed, tampered with or modified.

Maximum penalty—40 penalty units.

105FOffence to breach condition made on release of motor vehicle

A person must not contravene a condition made on the release of a motor vehicle by the commissioner under part 2, division 2 unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

106Offence to modify, sell or dispose of motorbike before application decided

(1)This section applies if a motorbike that is the subject of an application for an impounding order or a forfeiture order is released to the owner of the motorbike before the application is decided.
(2)The owner of the motorbike must not modify or sell or otherwise dispose of the motorbike until the application for the impounding order or forfeiture order is decided or otherwise ends.

Maximum penalty for subsection (2)—40 penalty units.

106AOffence to modify, sell or dispose of motor vehicle subject to vehicle production notice

(1)This section applies if a motor vehicle is the subject of an vehicle production notice given under section 74K.
(2)The owner of the motor vehicle must not, without reasonable excuse, modify or sell or otherwise dispose of the motor vehicle while the motor vehicle is the subject of the vehicle production notice.

Maximum penalty for subsection (2)—40 penalty units.

107Defence in relation to motorbike noise order offences

In a proceeding for an impounding order or a forfeiture order in relation to a motorbike, it is a defence for an owner of the motorbike to prove that a motorbike noise order offence happened without the knowledge and consent of the owner.

Example—

A parent lends a motorbike to his or her child to visit friends and the child commits a motorbike noise order offence on the motorbike. If the Magistrates Court is satisfied, on evidence tendered or submissions made by the parent, that the child committed the offence without the knowledge and consent of the parent, the Magistrates Court may order the motorbike’s return to the parent.

108Counting the occasions—general

(1)For sections 74A, 74B, 74C, 74D, 74E, 74F and 101, for an occasion of the commission of an offence to be counted in addition to another occasion counted, an occasion must be a separate occasion, that is, an event or series of events that happened on an occasion separate to the event or series of events making up the other occasion.
(2)However, if a series of events that would, apart from this subsection, be treated as a single occasion of the commission of an offence under subsection (1) includes the intervention in any way by a police officer between the commission of 1 vehicle related offence and another vehicle related offence or 1 motorbike noise offence and another motorbike noise offence in the course of the events, the events that happen after the police officer’s intervention must be treated as a separate occasion.

Example for subsection (2)—

A driver commits a vehicle related offence at 10p.m. on 1 January. The driver is stopped by a police officer. Before the driver can be given a notice to appear in relation to the vehicle related offence, the driver continues to commit the offence but using another motor vehicle. A police officer again stops the driver. The police officer impounds both motor vehicles. Because a police officer has intervened between the happening of the first and second offences, the occasions must be treated as 2 separate occasions for this chapter.

108AReferences to previous occasions in ss 74A, 74B, 74C, 74D, 74E, 74F and 91

In sections 74A, 74B, 74C, 74D, 74E, 74F and 91, a reference to a vehicle related offence or a motorbike noise order offence committed on a previous occasion is a reference to a vehicle related offence or motorbike noise order offence committed on an occasion before the occasion on which the initiating impoundment offence was committed.

108BMatters for decisions under ss 74A, 74B, 74C, 74D, 74E, 74F and 101

(1)Subject to sections 108 and 108A, for a decision under sections 74A, 74B, 74C, 74D, 74E, 74F and 101 of whether or not a person has, or has previously, been charged with, or found guilty of, a vehicle related offence or motorbike noise order offence committed on a previous occasion or any occasion or occasions, the following do not matter—
(a)whether or not any finding of guilt relied on relates to a charge heard and decided together with another charge or other charges relating to another or other findings of guilt being relied on;
(b)whether or not findings of guilt relied on relate to charges that were heard and decided in the order in which the occasions of the commission of offences to which they related happened;
(c)whether or not any occasion of the commission of an offence, or any charge or any finding of guilt, relied on happened before or after any occasion of the commission of an offence, charge or finding of guilt also relied on.

Example—

An offender commits vehicle related offences on 1 January (offence 1), 1 May (offence 2) and 1 June (offence 3). The offender is charged with offence 1 on 1 January, offence 2 on 1 May and offence 3 on 1 June. The offender is convicted of offence 3 on 15 June and offences 1 and 2 on 1 October. When a court or magistrate considers the application for impoundment or forfeiture on 1 December, for the purpose of counting the occasions mentioned in this subsection, there are 3 occasions the court may rely on to make an order.
(2)For a decision under section 100 or 101, the following do not matter—
(a)whether or not any finding of guilt relied on is for an offence in relation to which the application was originally started;

Example for paragraph (a)—

An application may relate to particular vehicle related offences but before the application is decided, the driver is found guilty of another vehicle related offence. The court may rely on the latter finding of guilt when making an order under the sections mentioned.
(b)whether or not any finding of guilt relied on in an application relates to an offence committed before or after the application was started.

109Appeal

(1)An order made against a person under section 102 for the performance of community service may be appealed against as a sentence imposed on the person.
(2)A person may appeal against any other order of a relevant court or magistrate under this chapter to the District Court within 28 days after the day the order is made.
(3)Also, a person may appeal against an order of the District Court under this division to the Court of Appeal within 28 days after the day the order is made.
(4)On the appellant’s application, an appeal under subsection (2) may be by way of rehearing from the start.

110Powers for enforcing court order

(1)This section applies if a relevant court, on an application under this chapter for an impounding order or forfeiture order for a motorbike, makes an impounding order or a forfeiture order for the motorbike.
(2)For giving effect to the impounding order or forfeiture order, the relevant court may, in the order, authorise a police officer, without warrant, to enter any place the police officer reasonably suspects is a place where the motorbike may be found and search for, impound, or if the motorbike is forfeited to the State, take possession of, and remove the motorbike.
(3)If the impounding order or forfeiture order authorises a police officer to enter a place for giving effect to the order as mentioned in subsection (2), power to enter the place includes, and is taken always to have included, power to re-enter the place as often as is reasonably necessary for the purpose.

Part 6 Other provisions

Division 1 Liability for cost of impounding or immobilisation

111State’s liability to pay costs of impounding or immobilisation

(1)Unless otherwise expressly provided by this division, the State is not liable to pay the costs of removing a motor vehicle impounded or immobilised under this chapter and keeping it for the period for which it is impounded or immobilised.
(2)However, the State is liable to pay the costs of removing an impounded or immobilised vehicle and keeping it if—
(a)the driver of the motor vehicle—
(i)was a child when he or she committed the offence for which it was impounded or immobilised; or
(ii)is found not guilty of the offence for which the motor vehicle was impounded or immobilised; or
(b)the proceeding for the offence for which the motor vehicle was impounded or immobilised is withdrawn.

112Liability to pay costs of impounding or immobilisation—adult driver

(1)This section applies in relation to a motor vehicle impounded or immobilised for a prescribed offence or a motorbike noise direction offence if the driver of the motor vehicle was an adult when he or she committed the offence for which it was impounded or immobilised.
(2)The driver of the motor vehicle is liable to pay the costs of removing or keeping the motor vehicle.
(3)If the driver is found guilty of the prescribed offence or motorbike noise direction offence, any costs paid by someone else on the driver’s behalf become a debt payable to the other person by the driver.

113Liability to pay costs of impounding or immobilisation—child driver

(1)This section applies in relation to a motor vehicle impounded or immobilised because of a prescribed offence or a motorbike noise direction offence if the driver of the motor vehicle was a child when he or she committed the offence for which it was impounded or immobilised.
(2)If the child is found guilty by a court of a prescribed offence or motorbike noise direction offence in relation to the motor vehicle—
(a)the child is liable to pay the costs of removing or keeping the motor vehicle if the court orders under section 103 that the child pay the costs; or
(b)if the court orders, under that section, the child’s parent to pay the costs of removing or keeping the motor vehicle under applied section 259, the child’s parent is liable to pay the costs of removing or keeping the motor vehicle.
(3)If the court orders the child to pay the costs of removing or keeping the motor vehicle, any costs paid by the State under section 111(2) become a debt payable to the State by the child.
(4)If the court orders the child’s parent or guardian to pay the costs of removing or keeping the motor vehicle, any costs paid by the State under section 111(2) become a debt payable to the State by the child’s parent or guardian.

114Payment of costs if motor vehicle not recovered

(1)This section applies if a person who is entitled to recover a motor vehicle after a period of impoundment ends fails to recover the motor vehicle after the period ends.
(2)If—
(a)before the period of impoundment ends, the owner was personally given an impounding notice for the motor vehicle; and
(b)the owner was the driver when the vehicle was impounded;

the owner is liable to pay the costs of keeping the motor vehicle for each day after the period of impounding ends, whether or not the driver is found guilty of the offence for which the vehicle is impounded.

(3)If—
(a)before the period of impoundment ends, the owner was given an impounding notice for the motor vehicle; and
(b)the owner was not the driver of the motor vehicle when it was impounded;

the owner is liable to pay the costs of keeping the vehicle for each day that is more than 2 business days after the owner is given the impounding notice, whether or not the driver is found guilty of the offence for which the vehicle is impounded.

(4)If, after the period of impoundment ends, the owner was given an impounding notice for the motor vehicle, the owner is liable to pay the costs of keeping the motor vehicle for each day that is more than 2 business days after the owner is given the impounding notice, whether or not the owner was the driver and whether or not the driver is found guilty of the offence for which the vehicle is impounded.
(5)If the owner was not the driver of the motor vehicle and pays the costs of keeping the motor vehicle as required under subsection (2), (3) or (4), the owner may recover the costs paid from the driver as a debt.

115Registration of costs under State Penalties Enforcement Act 1999

(1)If an adult who is liable to pay costs under section 113(4) fails to pay the costs, the commissioner may give particulars of the costs to the registrar under the State Penalties Enforcement Act 1999 for registration under that Act as if—
(a)the commissioner were the registrar of a court; and
(b)the particulars were particulars of a fine imposed by a court and the amount of the fine were unpaid after the time allowed by the court for payment.
(2)The registrar must register the particulars under the State Penalties Enforcement Act 1999, section 34.
(3)For this section, the adult who is liable to pay costs under this division fails to pay the costs if—
(a)the commissioner obtains an order for payment of costs against the person; and
(b)the commissioner gives the person a copy of the order and a letter of demand for payment of the costs; and
(c)the person fails to pay the costs within 28 days after receiving the copy of the order and the letter of demand, or the longer period agreed to by the commissioner.

Division 2 Release of impounded or immobilised vehicle

116Release of motor vehicle impounded or immobilised under this chapter

(1)This section applies if—
(a)an impounding notice or immobilising notice under section 78 was given to a person; or
(b)an impounding notice under section 81 was given to a person.
(2)If the owner of the motor vehicle is liable to pay the costs of removing the motor vehicle to, and keeping it at, the holding yard at which it is kept, including under an impounding order, the owner is entitled, when the impoundment period for which the motor vehicle is impounded ends, and on payment of the costs, to recover the motor vehicle from the holding yard.
(2A)Also, if the owner of the motor vehicle is liable to pay the costs of removing the motor vehicle to, and keeping it at, a place at which it is kept, the owner is entitled, when the period for which the motor vehicle is immobilised ends, and on payment of the costs, to recover the motor vehicle from the place.
(3)If, under section 111(2), the State is liable to pay the costs of removing the motor vehicle to, and keeping it at, the holding yard or place at which it is kept, the owner is entitled, when the impoundment period for which the motor vehicle is impounded ends, or the period for which the motor vehicle is immobilised ends, to recover the motor vehicle from the holding yard or place, whether or not the State has paid the costs.
(4)At the request of the owner, the person holding the motor vehicle must release the motor vehicle to the owner, or a person appointed in writing by the owner, at the first reasonably practicable opportunity, during business hours on a business day, after the request is made and on payment of any costs for which the owner is liable as mentioned in subsection (2) or (2A).
(5)In this section—
business hours means 8a.m. to 5p.m.

117Release of motor vehicle if driver found not guilty etc.

(1)If a driver is found not guilty of the prescribed offence or the proceeding is discontinued, the motor vehicle must be released to the owner as soon as reasonably practicable if it is impounded under this chapter.
(2)However, a motor vehicle may not be released under subsection (1) if the driver has been charged with having committed another prescribed offence for which the motor vehicle may be impounded or immobilised.
(3)If subsection (2) applies to the motor vehicle, the motor vehicle may be impounded or immobilised for the prescribed impoundment period that would have applied if the offence mentioned in subsection (1) had not happened.

Examples of operation of subsections (2) and (3)—

1A driver is charged with having committed a type 1 vehicle related offence (the first offence) while driving motor vehicle A. Motor vehicle A is impounded for a prescribed impoundment period of 90 days under section 74. A week later, the driver is charged with having committed another type 1 vehicle related offence while driving motor vehicle B. Motor vehicle B is impounded under section 74A. On the next day, the charge for the first offence is withdrawn. Motor vehicle A must be released under this section. However, motor vehicle B may be impounded until the prescribed impoundment period of 90 days ends as if it had been impounded under section 74.
2A driver is charged with having committed a second type 2 vehicle related offence while driving motor vehicle A (the second offence). Motor vehicle A is impounded for a prescribed impoundment period of 7 days under section 74C. Motor vehicle A is then returned to the driver. A week later the driver is charged during the relevant period with having committed a third type 2 vehicle related offence while driving motor vehicle A. The charge for second offence has not been decided at that time. Motor vehicle A is impounded for a prescribed impoundment period of 90 days under section 79D. Thirty days after motor vehicle A is impounded, the charge for the second offence is withdrawn. Motor vehicle A must be released under this section as the prescribed impoundment period of 7 days under section 74C would have already ended.
(4)A reference in subsection (1) to a proceeding being discontinued includes, for a prescribed offence that is a vehicle related offence for which an infringement notice has been served under section 71, the withdrawal of the infringement notice under the State Penalties Enforcement Act 1999.

Division 3 Sale, transfer or disposal of impounded, immobilised or forfeited motor vehicle

118Sale of motor vehicle if not recovered after impounding ends

(1)This section applies if, within 30 days after a period of impounding ends—
(a)the owner of the motor vehicle does not recover the motor vehicle; or
(b)after making reasonable inquiries, a police officer can not find out who owns the motor vehicle.
(2)The commissioner may sell the motor vehicle and anything in or on it by public auction or dispose of it in the way the commissioner considers appropriate.
(3)For subsection (2), the motor vehicle is taken to have been forfeited to the State.
(4)Notice of the proposed sale or disposal must be published on the police service website.
(5)If the name and address of the owner of the motor vehicle is known—
(a)the commissioner must also give written notice of the proposed sale or disposal to the owner; and
(b)the owner’s name and address must not be published on the police service website.

118ASale of impounded motor vehicle if driver fails to appear

(1)This section applies in relation to a motor vehicle impounded under section 74A if—
(a)the motor vehicle is impounded until the end of proceedings under section 74A(2); and
(b)a court orders that a warrant issue for the arrest of the driver of the motor vehicle to be brought before the court to be dealt with according to law because the driver fails to appear before the court in relation to the charge for the second or subsequent type 1 vehicle related offence mentioned in section 74A(1).
(2)This section also applies in relation to a motor vehicle impounded under section 74E if—
(a)the motor vehicle is impounded until the end of proceedings under section 74E(2); and
(b)a court orders that a warrant issue for the arrest of the driver of the motor vehicle to be brought before the court to be dealt with according to law because the driver fails to appear before the court in relation to the charge for the fourth or subsequent type 2 vehicle related offence mentioned in section 74E(1).
(3)On the warrant being issued the motor vehicle is taken to have been forfeited to the State.
(4)The commissioner may sell the motor vehicle and anything in or on it by public auction or dispose of it in the way the commissioner considers appropriate.
(5)Notice of the proposed sale or disposal must be published on the police service website.
(6)If the name and address of the owner of the motor vehicle is known—
(a)the commissioner must also give written notice of the proposed sale or disposal to the owner; and
(b)the owner’s name and address must not be published on the police service website.

119Voluntary transfer of ownership of motorbike to State

(1)This section applies despite section 106.

Note—

Under section 106 it is an offence for the owner of a motorbike that is the subject of an impounding order or forfeiture order application to modify, sell or otherwise dispose of the motorbike before the application is decided.
(2)The owner of a motorbike to which section 106 applies may agree to transfer ownership of the motorbike to the State.
(3)The agreement must be written and witnessed by a person who may witness a statutory declaration.
(4)If the State agrees in writing to the transfer of the motorbike—
(a)the motorbike becomes the property of the State; and
(b)the commissioner may sell or dispose of the motorbike and anything in or on it in the way the commissioner considers appropriate.

120Disposal of forfeited motor vehicle

The commissioner may dispose of a motor vehicle forfeited to the State under this chapter in the way the commissioner considers appropriate, including by selling it.

121Application of proceeds of sale

(1)This section applies if the commissioner decides to sell a motor vehicle under section 118, 118A or 120.
(2)The proceeds of the sale are to be applied in the following order—
(a)in payment of the expenses of the sale;
(b)in payment of the costs of removing and keeping the motor vehicle and for searching registers for giving notice of the motor vehicle’s impounding or immobilisation;
(c)if there is an amount owing to a person under a security interest registered for the motor vehicle under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing to the holder of the security interest;
(d)if the motor vehicle is sold under section 118—in payment of any balance to the owner;
(da)if the motor vehicle is sold under section 118A
(i)if the owner was not the subject of a warrant mentioned in section 118A(1)(b) or (2)(b)—in payment of any balance to the owner; or
(ii)otherwise—in payment to the consolidated fund;
(e)if the motor vehicle is sold under section 120—in payment to the consolidated fund.

121ACompensation for disposal of motor vehicle if driver found not guilty etc.

(1)This section applies if—
(a)a driver is found not guilty of a prescribed offence or the proceeding for the offence is discontinued; and
(b)the commissioner has before the happening of the event mentioned in paragraph (a) received the motor vehicle to which the offence relates under this chapter; and
(c)the commissioner has—
(i)sold the motor vehicle; or
(ii)otherwise disposed of the vehicle.
(2)Compensation is payable by the State to the person whose motor vehicle is sold or otherwise disposed of.
(3)The Minister is to decide the amount of the compensation.
(4)A person who is dissatisfied with the Minister’s decision under subsection (3) may apply to a court, within 28 days, for compensation under this section.
(5)If the person applies under subsection (4), the court may decide the amount of the compensation.

Division 4 Other provisions

122Protection from liability

(1)A police officer acting in good faith and without negligence is not liable for any damage, loss or depreciation to a motor vehicle, including the motor vehicle’s number plates, during the impounding or immobilisation of the motor vehicle.
(2)If subsection (1) prevents liability attaching to a police officer, liability instead attaches to the State.
(3)Also, if a police officer signs a towing authority under section 77 for the motor vehicle, the State is not liable for any damage, loss or depreciation to the motor vehicle while it is being moved under the towing authority and while it is impounded in the holding yard of the person authorised under the towing authority to tow the motor vehicle or immobilised at a place.

123Third party protection relating to forfeiture

(1)This section applies in relation to—
(a)a person, other than the defendant, who has an interest in a motor vehicle forfeited to the State under part 2, division 1 or 1A; or
(b)a person, other than the defendant, who did not appear at the hearing of an application for a forfeiture order and has an interest in the motor vehicle forfeited to the State under the order.
(1A)The person may apply to the determining court for an order under subsection (6).
(2)Subsection (1A) applies even though the value of the motor vehicle may be more than the maximum amount that may be claimed in a personal action in the civil jurisdiction of a Magistrates Court.
(3)Unless the determining court gives leave, the application must be made—
(a)for forfeiture under part 2, division 1 or 1A—before the end of the period of 6 months starting on the day the motor vehicle became the property of the State; or
(b)for a forfeiture order—before the end of the period of 6 months starting on the day the forfeiture order was made.
(4)The relevant court may give leave for a later application if it is satisfied that the delay in applying was not because of the applicant’s neglect.
(5)Unless the relevant court gives leave, a person who was given notice of the application for the forfeiture order can not apply to the court for an order under subsection (6).
(6)On an application, an order may be made—
(a)declaring the nature, extent and, if necessary for the order, the value (when the declaration is made) of the applicant’s interest in the motor vehicle; and
(b)directing the State—
(i)if the motor vehicle is still vested in the State—to transfer the motor vehicle to the applicant; or
(ii)if the motor vehicle is no longer vested in the State—to pay to the applicant the value of the applicant’s interest in the motor vehicle after taking into account any amount paid to the holder of a registered security interest under section 121(2)(c).
(7)The relevant court must, and may only, make the order if it is satisfied—
(a)the applicant has or, apart from the forfeiture, would have a genuine interest in the motor vehicle; and
(b)the relevant prescribed offence happened without the knowledge and consent of the applicant.
(8)For all applications, including applications for leave to apply—
(a)the applicant must give notice of the making of the application to the commissioner; and
(b)the party given notice is a party to the application.
(9)In this section—
defendant means the person found guilty of the prescribed offence because of which the forfeiture under part 2, division 1 or 1A happened or the forfeiture order was made.
determining court means—
(a)for forfeiture under part 2, division 1 or 1A—the Magistrates Court for the Magistrates Court district, or division of the district, in which the motor vehicle was impounded for the prescribed offence; or
(b)for a forfeiture order—the relevant court to which the application for the order was made.
relevant prescribed offence means the prescribed offence because of which the forfeiture under part 2, division 1 or 1A happened or the forfeiture order was made.

Chapter 5 Removal powers generally for vehicles or loads or things on roads

Part 1 Power to seize or remove

124AA Definitions for pt 1

In this part—
load includes any goods, equipment or thing—
(a)that is carried by, in or on a vehicle, or is attached to a vehicle; or
(b)that was carried by, in or on a vehicle or attached to a vehicle, but has become separated from the vehicle.
moving expenses, for a vehicle, load or other thing, means actual expenses relating to 1 or more of the following acts in relation to the exercise of a power in prescribed circumstances—
(a)calling a service or towing vehicle to the vehicle, load or other thing;
(b)seizing or moving the vehicle, load or other thing;
(c)removing the vehicle, load or other thing;
(d)storing the vehicle, load or other thing after it has been removed;
(e)releasing a vehicle, load or other thing mentioned in paragraph (d) from storage;
(f)disposing of a vehicle, load or other thing mentioned in paragraph (c) other than by selling it.
prescribed circumstance means a prescribed circumstance under section 125.
used includes held in possession.

124Removal of vehicle or load or other thing

(1)A police officer may, in a prescribed circumstance, seize and move a vehicle, load or other thing mentioned in the prescribed circumstance, or arrange for it to be moved, to another place for safe keeping.
(2)In a prescribed circumstance mentioned in section 125(1)(c) or (d), the police officer may, without seizing a vehicle or load, instead move the vehicle or load, or arrange for it to be moved, to another place where it can be located by its driver or owner or person in control of it.
(2A)In the prescribed circumstance mentioned in section 125(2), the police officer may, without seizing the vehicle, load or other thing instead move the vehicle, load or other thing, or arrange for it to be moved, off the road including to another place.
(3)Subsections (1) to (2A) do not prevent the driver, or owner or person in control of the vehicle, load or other thing taking possession of it, with the consent of the police officer, before or while it is being moved.

125Prescribed circumstances for s 124

(1)The prescribed circumstances for section 124 are as follows—
(a)the person in control of a vehicle or load has been arrested;
(b)a police officer reasonably suspects the person who was last in control of a vehicle or load has abandoned it;
(c)a police officer—
(i)reasonably suspects a vehicle or load has been involved in a relevant vehicle incident; and
(ii)reasonably believes it is necessary to keep the vehicle or load for completing inquiries and investigations into the incident;
(d)a police officer reasonably suspects a vehicle or load has been left in circumstances that are an offence against any of the following and the person in control of the vehicle or load can not be easily located or fails to comply with a direction of the police officer to move the vehicle or load immediately—
the Heavy Vehicle National Law (Queensland)
the Road Use Management Act
the Brisbane Forest Park Act 1977
the Recreation Areas Management Act 2006
the Nature Conservation Act 1992.
(2)Also, without limiting subsection (1) it is a prescribed circumstance for section 124 if—
(a)either—
(i)a vehicle or load on a road is immobilised by a breakdown, collision or fuel shortage or is otherwise stationary; or
(ii)another thing that is not abandoned is placed or comes to rest on a road; or
(iii)without limiting subsection (1)(b), a police officer reasonably suspects a vehicle, load or other thing on a road is abandoned; and
(b)a police officer—
(i)can not immediately find the person in control of the vehicle, load or other thing; or
(ii)can immediately find the person in control of the vehicle, load or other thing but reasonably believes the person is unable or unwilling to move the vehicle, load or other thing immediately; and
(c)the police officer reasonably believes that it is necessary for the vehicle, load or other thing to be moved off the road for the safety or convenience of people using the road.

Example of inconvenience—

A vehicle is stopped on a median strip on a road but, due to the distraction caused by it, traffic is banking up.

Part 2 Other provisions about seizure or moving

125ARecovering moving and seizure expenses in particular circumstances

(1)The commissioner may recover as a debt the moving expenses for a vehicle, load or other thing incurred by a police officer in exercising powers in the prescribed circumstances.
(2)The moving expenses may be recovered from—
(a)the person who was in control of the vehicle, load or other thing immediately before it was seized or moved; or
(b)if the identity of the person mentioned in paragraph (a) can not be discovered—the vehicle, load or other thing’s owner, unless the vehicle, load or other thing was being used without the owner’s consent.
(3)The moving expenses claimed under subsection (1) must be reasonable.
(4)If moving expenses were incurred because of the paramount or high degree of importance given to moving the vehicle, load or other thing off a road quickly as mentioned in section 128B(2)(a), a court must act on the basis that the expenses were reasonable.

126Steps after seizing a vehicle, load or other thing

(1)As soon as practicable, but within 14 days after seizing or moving a vehicle, load or other thing under this chapter, the police officer who seized or moved it must give or arrange for another police officer to give to the owner, if known, a notice stating—
(a)how the owner may recover the vehicle, load or other thing; and
(b)that, before the vehicle, load or other thing may be recovered, the person—
(i)may be required to produce satisfactory evidence of the ownership of the vehicle, load or other thing; and
(ii)must pay the moving expenses; and
(c)the penalty for unlawfully removing the vehicle, load or other thing from the place at which it is held.
(2)If practicable, the notice must be given to the owner personally.
(3)If it is not practicable to comply with subsection (2), the notice may be published on the police service website.
(3A)A police officer need not give the notice required by this section in relation to a vehicle seized or moved in the prescribed circumstances mentioned in section 125(2) if—
(a)the police officer reasonably believes the vehicle is abandoned; and
(b)either—
(i)the proceeds of the vehicle’s sale are not likely to cover—
(A)the moving expenses for the vehicle; and
(B)the expenses incurred by the commissioner in selling the vehicle; or
(ii)it is otherwise impracticable to give the notice.
(3B)A police officer need not give the notice required by this section in relation to something other than a vehicle seized or moved in the prescribed circumstances mentioned in section 125(2) if—
(a)the police officer reasonably believes the thing is abandoned; or
(b)the proceeds of the thing’s sale are not likely to cover—
(i)the moving expenses for the thing; and
(ii)the expenses incurred by the commissioner in selling the thing; or
(c)it is otherwise impracticable to give the notice.
(4)A requirement under this Act to return the vehicle, load or other thing applies subject to section 127.
(5)In this section—
something other than a vehicle, for subsection (3B), includes anything, including the load of a vehicle, that has become separated from the vehicle during the exercise of powers under this chapter.
vehicle, for subsection (3A), includes the vehicle’s load to the extent it has remained with the vehicle during the exercise of powers under this chapter.

127Disposal of seized or moved vehicle, load or other thing

(1)If, within 1 month after notice of the seizure or moving of a vehicle, load or other thing under this chapter is given, the owner does not recover the vehicle, load or other thing, the commissioner may sell the vehicle, load or other thing by public auction or dispose of it in the way the commissioner considers appropriate.
(2)Notice of the proposed sale must be published on the police service website.

128Application of proceeds of sale

(1)The proceeds of the sale of a vehicle, load or other thing under section 127 must be applied in the following order—
(a)in payment of the expenses of the sale;
(b)in payment of the moving expenses and giving notice under section 126;
(c)if there is an amount owing to an entity under a security interest registered for the vehicle, load or other thing under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing under the security interest;
(d)in payment of any balance to the owner.
(2)Compensation is not recoverable against the State for a payment under this section.

128AImmediate disposal in particular circumstances

(1)Despite any other provision of this part, a police officer exercising powers under part 1 may dispose of something other than a vehicle when and in the way the police officer considers appropriate if—
(a)the police officer reasonably suspects the thing has been abandoned; or
(b)the proceeds of any sale of the thing are unlikely to cover—
(i)the moving expenses for the thing; and
(ii)the expenses likely to be incurred by the chief executive in selling the thing; or
(c)it is otherwise impracticable to retain the removed thing.

Example—

The police officer may immediately dispose of gravel spilled on a road by a passing truck by having it bulldozed off the side of the road.
(2)In this section—
something other than a vehicle
(a)includes anything, including the load of a vehicle, that has become separated from the vehicle during the exercise of powers under this chapter; and
(b)does not include a vehicle’s load to the extent it has remained with the vehicle during the exercise of powers under this chapter.

128BProtection for persons exercising power under ch 5

(1)This section applies to proceedings in relation to liability for breach of duty arising out of damage to a vehicle, load or other thing that happens when a person exercises power, or assists another person exercising power, under this chapter in relation to the seizure or moving of a vehicle, load or other thing.
(2)The person, or a person assisting the person, is not civilly liable—
(a)because of the paramount or high degree of importance the person gave to moving the vehicle, load or other thing off the road quickly; or
(b)to the extent there was an increased likelihood that vehicles, loads or other things would be damaged in the exercise of power mentioned in subsection (1), because of the nature of the power.

Part 3 General towing authority

129Police officer may authorise tow after seizure under any Act

(1)This section applies if—
(a)a police officer seizes a vehicle, load or other thing under an Act; or
(b)the owner of a damaged vehicle, load or other thing, or the owner’s agent, is away from the vehicle, load or other thing or incapacitated.
(2)A police officer may sign a towing authority for the vehicle, load or other thing.
(3)The driver of a tow truck towing the vehicle, load or other thing under the towing authority must tow the vehicle, load or other thing to—
(a)the nearest holding yard available to the driver; or
(b)if directed by a police officer, the nearest police establishment or other place directed by the police officer.
(4)A person must not unlawfully remove a vehicle, load or other thing from the place to which it is towed under subsection (3).

Maximum penalty for subsection (4)—40 penalty units.

(5)In this section—
tow includes carry, lift and tow, lift and carry and lift for the purpose of towing.
towing authority means—
(a)a towing authority under the Tow Truck Act 1973; or
(b)another document authorising a person to tow a vehicle, load or other thing.

Chapter 6 Powers relating to animals

Part 1 Interpretation

130Definition for ch 6

In this chapter—
person in charge, of an animal, means—
(a)a person who owns or has a lease, licence or other proprietary interest in the animal; or
(b)a person who has care, control or custody of the animal; or
(c)a person who is employing or has engaged someone else who has care, control or custody of the animal and the care, control or custody is within the scope of the employment or engagement.

Part 2 General powers

131Power of inquiry into road use contraventions involving an animal

(1)It is lawful for a police officer to make any reasonably necessary inquiry, investigation, inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act has been committed involving an animal.
(2)Also, it is lawful for a police officer to arrange for someone else to make any reasonably necessary inspection, examination, or test for establishing whether or not an offence against the Road Use Management Act has been committed involving an animal.

132Power to require information about identity of person in charge of animal

(1)This section applies if a person alleges to a police officer, or a police officer reasonably suspects, a contravention of the Road Use Management Act involving an animal has been committed.
(2)A police officer may require any of the following to give to the police officer information that will identify or help identify the person who was in charge of the animal when the contravention happened—
(a)an owner of the animal;
(b)a person in possession of the animal;
(c)a person who may reasonably be expected to be able to give the information.

Note—

Failure to comply with a requirement under this section is an offence against section 791.

133Power of entry for ss 131132

(1)For sections 131 and 132, a police officer may enter a place and stay on the place for the time reasonably necessary for the purpose of the entry.
(2)However, the police officer may use reasonably necessary force to enter the place only if the entry is authorised by a police officer of at least the rank of inspector.

134Power for regulating animal traffic

(1)A police officer may give to a person in charge of an animal any direction the police officer reasonably considers necessary for the safe and effective regulation of animal traffic on the road.
(2)Without limiting subsection (1), a police officer may act under that subsection if the police officer reasonably suspects an emergency exists or it is otherwise necessary to temporarily prohibit, divert or direct animal traffic and pedestrians.
(3)The direction may include a direction to the person in charge of an animal to move the animal as soon as practicable.

Part 3 Stopping animals for prescribed purposes

135Stopping animals for prescribed purposes

(1)A police officer may require the person in control of an animal, whether or not the animal is pulling a vehicle, to stop the animal for a prescribed purpose.
(2)The person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—60 penalty units.

(3)The prescribed purposes are as follows—
(a)for enforcing a transport Act;
(b)to check whether the vehicle the animal is pulling or the person in control of the animal is complying with a transport Act;
(c)for monitoring or enforcing a liquor provision;
(d)for enforcing a contravention of law involving putting, dropping and leaving litter on a public place.
(4)For monitoring or enforcing a liquor provision, the police officer may exercise any of the following powers if the police officer reasonably suspects the exercise of the power may be effective for the purpose—
(a)if the animal is pulling a vehicle—enter the vehicle and remain in it for the time reasonably necessary for the purpose;
(b)search anything on the animal or in the vehicle;
(c)photograph or film—
(i)the animal and anything on the animal; and
(ii)if the animal is pulling a vehicle, the vehicle or anything in it;
(d)if the animal is pulling a vehicle, inspect, measure or test the vehicle or anything in it;
(e)take samples of anything on the animal or in the vehicle;
(f)seize anything the officer reasonably suspects is evidence of the commission of an offence against a liquor provision;
(g)copy a document in something on the animal or in the vehicle;
(h)move the vehicle’s load.
(5)In this section—
in, for a vehicle, includes on the vehicle.
liquor provision means any of the following provisions—
(a)the Liquor Act 1992, section 168B, 168C, 169 or 171;
(b)the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984, section 34 or 38.
monitor, a liquor provision, means check whether the provision is being complied with.

136Power to enable effective and safe exercise of other powers

(1)A police officer may require the person in control of an animal pulling a vehicle to give the officer reasonable help to enable the officer to effectively exercise a power under this part in relation to the animal or vehicle.
(2)Also, a police officer may require the person in control of an animal pulling a vehicle, or a person who is on or has just left the animal or is in or on or has just left the vehicle, to do or not to do anything the police officer reasonably believes is necessary—
(a)to enable the police officer to safely exercise a power under a transport Act in relation to the animal or vehicle; or
(b)to preserve the safety of the police officer, the person or other persons.
(3)A person must comply with a requirement under subsection (1) or (2), unless the person has a reasonable excuse.

Maximum penalty for subsection (3)—60 penalty units.

Part 4 Removal powers for animals

137Removal of animals from roads and other places

(1)A police officer may, in prescribed circumstances, seize and move an animal, or arrange for it to be moved, to another place for safe keeping.
(2)In the prescribed circumstances mentioned in section 138(c), (d) or (e), the police officer may instead move the animal, or arrange for it to be moved, to another place where it can be located by the person in charge of the animal.
(3)Subsections (1) and (2) do not prevent the person in charge of the animal taking possession of it, with the consent of the police officer, before or while it is being moved.

138Prescribed circumstances for removing animals

The prescribed circumstances for removal of animals are as follows—
(a)the person in charge of an animal has been arrested;
(b)a police officer reasonably suspects the person who was last in charge of an animal has abandoned it;
(c)a police officer—
(i)reasonably suspects an animal has been involved in a relevant vehicle incident; and
(ii)reasonably believes it is necessary to detain the animal for completing inquiries and investigations into the incident;
(d)a police officer reasonably suspects an animal has been left on a road unattended, temporarily or otherwise, and because of the time for which it has been left unattended, the way it has been left unattended, or the place, condition, or circumstances in which it has been left unattended, its presence on the road—
(i)may be dangerous to others; or
(ii)may prevent or hinder the lawful use by others of the road or a part of the road;
(e)a police officer reasonably suspects an animal has been left in circumstances that are an offence against any of the following Acts and the person in charge of the animal can not be easily located or fails to comply with a direction of the police officer to move the animal immediately—
the Road Use Management Act
the Brisbane Forest Park Act 1977
the Recreation Areas Management Act 2006
the Nature Conservation Act 1992;
(f)a police officer reasonably suspects—
(i)a contravention of an Act has happened; and
(ii)the contravention involves an animal; and
(iii)it is necessary to take steps to protect the animal.

139Steps after seizing animal

(1)As soon as practicable, but within 14 days after seizing and moving an animal under this part, the police officer who seized it must give or arrange for another police officer to give to the owner, if known, a notice stating—
(a)how the owner may recover the animal; and
(b)that, before the animal may be recovered, the person—
(i)may be required to produce satisfactory evidence of the ownership of the animal; and
(ii)must pay the costs of removing and keeping the animal.
(2)If practicable, the notice must be given to the owner personally.
(3)If it is not practicable to comply with subsection (2), the notice may be published on the police service website.
(4)A requirement under this Act to return the animal applies subject to section 140.

140Recovery of seized animal

(1)If, within 1 month after notice of the seizure of an animal under this part is given, the owner does not recover the animal, the commissioner may sell the animal and anything in or on it by public auction or dispose of it in the way the commissioner considers appropriate.
(2)Notice of the proposed sale must be published on the police service website.

141Application of proceeds of sale

(1)The proceeds of the sale of an animal under section 140 must be applied in the following order—
(a)in payment of the expenses of the sale;
(b)in payment of the cost of seizing and keeping the animal and giving notice of its seizure;
(c)if there is an amount owing to an entity under a security interest registered for the animal under the Personal Property Securities Act 2009 (Cwlth)—in payment of the amount owing under the security interest;
(d)in payment of any balance to the owner.
(2)Compensation is not recoverable against the State for a payment under this section.

Part 5 Animal welfare directions

142Application of pt 5

(1)This part applies if a police officer reasonably suspects—
(a)a person has committed, is committing or is about to commit, an animal welfare offence; or
(b)an animal—
(i)is not being cared for properly; or
(ii)is experiencing undue pain; or
(iii)requires veterinary treatment; or
(iv)should not be used for work.

Example for subparagraph (iv)—

A horse with ‘saddle sore’ should not be used by a riding school.
(2)This part also applies if an animal has been seized under section 146(2)(d).
(3)In this section—
animal means an animal under the Animal Care and Protection Act.
veterinary treatment, of an animal, means—
(a)consulting with a veterinary surgeon about the animal’s condition; or
(b)a medical or surgical procedure performed on the animal by a veterinary surgeon; or
(c)a medical procedure of a curative or preventive nature performed on the animal by someone other than a veterinary surgeon if the procedure is performed under a veterinary surgeon’s directions.

143Power to give animal welfare direction

(1)The police officer may give a written direction (an animal welfare direction) requiring stated action about the animal or its environment.

Note—

See the Animal Care and Protection Act, section 161 (Failure to comply with animal welfare direction) and the schedule, definition animal welfare direction.
(2)The direction may be given to—
(a)a person in charge of the animal; or
(b)a person whom the police officer reasonably suspects is a person in charge of the animal; or
(c)if the animal has been seized under section 137(1), 146(2)(c) or (d) or 157(1)(h)—
(i)a person who, immediately before the seizure, was a person in charge of the animal; or
(ii)a person whom the police officer reasonably suspects was, immediately before the seizure, a person in charge of the animal.
(3)Also, the direction may be given to a person who holds a mortgage or other security interest in the animal only if the person has taken a step to enforce the mortgage or other security interest.
(4)Without limiting subsection (1), the direction may require any of the following action to be taken—
(a)care for, or treat, the animal in a stated way;
(b)provide the animal with stated accommodation, food, rest, water or other living conditions;
(c)consult a veterinary surgeon about the animal’s condition before a stated time;
(d)move the animal from the place where it is situated when the direction is given to another stated place for a purpose mentioned in paragraph (a), (b) or (c);
(e)not to move the animal from the place where it is situated when the direction is given.
(5)However, action may be required only if the police officer considers it to be necessary and reasonable in the interests of the animal’s welfare.
(6)The direction may state how the person given the direction may show that the stated action has been taken.

144Requirements for giving animal welfare direction

(1)An animal welfare direction must—
(a)be in the approved form for an animal welfare direction under the Animal Care and Protection Act; and
(b)describe—
(i)the animal in a way that reasonably allows the person given the direction to identify it; or
(ii)if the direction is given because the police officer reasonably suspects a person has committed, is committing or is about to commit, an animal welfare offence—the type of animal to which the offence relates; and
(c)state—
(i)each requirement; and
(ii)a time for the person to comply with each requirement; and
(d)include an information notice under the Animal Care and Protection Act about the decision to give the direction.
(2)Despite subsection (1)(a), an animal welfare direction may be given orally if—
(a)the police officer considers it to be in the interests of the animal’s welfare to give the direction immediately; and
(b)for any reason it is not practicable to immediately give the direction in the approved form; and
(c)the police officer warns the person it is an offence not to comply with the direction unless the person has a reasonable excuse.
(3)If the direction is given orally, the police officer must confirm the direction by also giving it in the approved form as soon as practicable after giving it orally.
(4)An animal welfare direction may state that a police officer proposes, at a stated time or at stated intervals, to enter the following where an animal the subject of the direction is kept at to check compliance with the direction—
(a)a vehicle of which the person is the person in control;
(b)another place of which the person is the occupier.

145Review and appeal for animal welfare direction

If an animal welfare direction has been given, the Animal Care and Protection Act, chapter 7, part 4, applies to the decision to give the direction as if—
(a)the decision were an original decision under that Act; and
(b)the person given the direction were, under that part, an interested person for the decision.

Part 6 Other provisions about animals

146Power in relation to offences involving animals

(1)This section applies if—
(a)a police officer reasonably suspects—
(i)an offence involving an animal has been, is being or is about to be committed at or involving a place; or
(ii)an animal at a place has just sustained a severe injury and the injury is likely to remain untreated, or untreated for an unreasonable period; or
(iii)there is an imminent risk of death or injury to an animal at a place because of an accident or an animal welfare offence; or
(b)the occupier of a place has been given an animal welfare direction under this Act or the Animal Care and Protection Act and—
(i)the direction states a time or interval for a police officer to enter the place to check compliance with the direction; and
(ii)a police officer proposes to enter the place at the stated time or interval to check compliance with the direction.
(2)The police officer may enter the place and do any of the following—
(a)search for and inspect—
(i)any animal; or
(ii)any brand, mark, branding instrument, pliers or other device used to identify an animal;
(b)open anything in the relevant place that is locked;
(c)seize anything the officer reasonably suspects is evidence of the commission of an offence involving an animal;
(d)seize an animal at the place if—
(i)the police officer reasonably suspects the animal is under an imminent risk of death or injury, requires veterinary treatment or is experiencing undue pain and the interests of its welfare require its immediate seizure; or

Examples of imminent risk of death or injury—

1A prohibited event under the Animal Care and Protection Act is being conducted at the place.
2The animal is being beaten or tortured.
(ii)the person in charge of the animal has contravened, or is contravening, an animal welfare direction, under this Act or the Animal Care and Protection Act, or a court order about the animal;
(e)muster, yard, detain, clip or otherwise deal with the animal;
(f)take reasonable measures to relieve the pain of an animal at the place.

Examples of measures—

feeding, untethering or watering the animal
(3)Also, the police officer may, for exercising powers under subsection (2), stop—
(a)travelling livestock; and
(b)a vehicle apparently being used to transport animals; and
(c)a vehicle apparently being used by someone accompanying the animals.
(4)In this section—
animal includes livestock.

147Powers to provide relief to animal

(1)Subsection (2) applies if—
(a)a police officer reasonably suspects—
(i)an animal at a place, other than a vehicle, is suffering from lack of food or water or is entangled; and
(ii)the person in charge of the animal is not, or is apparently not, present at the place; and
(b)the animal is not at a part of the place at which a person resides, or apparently resides.
(2)The police officer may enter and stay at the place while it is reasonably necessary to provide the food or water or to disentangle the animal.
(3)A police officer may enter a vehicle if the officer reasonably suspects there is a need to enter the vehicle to relieve an animal in pain in the vehicle or prevent an animal in the vehicle from suffering pain.
(4)If a police officer enters a vehicle under subsection (3), the officer may take reasonable measures to relieve the pain of an animal at the place.

Examples of measures—

feeding, untethering or watering the animal
(5)This section does not limit section 146.

148Power to destroy animal

A police officer may destroy an animal, or cause it to be destroyed, if—
(a)the animal has been seized under section 137(1), 146(2)(c) or (d) or 157(1)(h) or the animal’s owner has given written consent to the destruction; and
(b)the police officer reasonably believes that the animal is in pain to the extent that it is cruel to keep it alive.

149Offence to interfere with seized animals

(1)This section applies if an animal is seized under this Act.
(2)A person, other than a police officer or a person authorised by a police officer for the purpose, must not—
(a)interfere with the animal; or
(b)enter or be on the place where the animal is being kept; or
(c)move the animal from where it is being kept; or
(d)attempt to do anything mentioned in paragraph (a), (b) or (c); or
(e)have the animal in the person’s possession or under the person’s control.

Maximum penalty—20 penalty units or 6 months imprisonment.

Chapter 7 Search warrants, obtaining documents, accessing registered digital photos and other information, and crime scenes

Part 1 Searching places with warrants

150AA Definitions

In this part—
access information means information that is necessary for a person to access and read information stored electronically on a storage device.
control order property means anything under a person’s control that the person is prohibited from possessing under a control order or a registered corresponding control order under the Penalties and Sentences Act 1992.
employee includes a person who works under a contract for services.
issuer see section 150(7).
relevant evidence means—
(a)evidence of the commission of an offence; or
(b)evidence that may be confiscation related evidence.
specified person means a person who—
(a)is—
(i)reasonably suspected of having committed an offence for which a search warrant was issued; or
(ii)the owner of a storage device; or
(iii)in possession of a storage device; or
(iv)an employee of the owner or person in possession of a storage device; or
(v)a person who uses or has used a storage device; or
(vi)a person who is or was a system administrator for the computer network of which a storage device forms or formed a part; and
(b)has a working knowledge of—
(i)how to access and operate a storage device or a computer network of which the storage device forms or formed a part; or
(ii)measures applied to protect information stored on a storage device.
storage device means a device on which information may be stored electronically, including a computer.
stored, on a storage device, includes accessible through the device.
warrant evidence or property means the evidence or property mentioned in section 150(1) for which a warrant is issued under section 151.

150Search warrant application

(1)A police officer may apply for a warrant to enter and search a place (a search warrant)—
(a)to obtain evidence of the commission of an offence; or
(b)to obtain evidence that may be confiscation related evidence; or
(c)to find a vehicle that is or is to be impounded or immobilised under chapter 4 or 22; or
(d)to find control order property; or
(e)if the place is premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—to find prohibited items at the place.
(2)The application may be made to any justice, unless the application must be made to a magistrate or Supreme Court judge under subsection (3) or (4).
(3)Unless the application must be made to a Supreme Court judge under subsection (4), the application must be made to a magistrate if the thing to be sought under the proposed warrant is—
(a)evidence of the commission of an offence only because—
(i)it is a thing that may be liable to forfeiture or is forfeited; or
(ii)it may be used in evidence for a forfeiture proceeding; or
(iii)it is a property tracking document; or
(b)evidence of the commission of an indictable offence committed in another State that, if it were committed in Queensland, would be an indictable offence in Queensland; or
(c)confiscation related evidence; or
(d)control order property; or

Example for paragraph (a)(ii)—

The search may be for evidence for which an application for a restraining order may be made under chapter 2 or chapter 3 of the Confiscation Act.
(e)a prohibited item.
(4)The application must be made to a Supreme Court judge if, when entering and searching the place, it is intended to do anything that may cause structural damage to a building.
(5)An application under this section must—
(a)be sworn and state the grounds on which the warrant is sought; and
(b)include information required under the responsibilities code about any search warrants issued within the previous year in relation to—
(i)for an application relating to SDOCO related evidence—the person convicted of the qualifying offence to which the application relates; or
(ii)for an application relating to premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—the premises; or
(iii)for another application—
(A)the place or a person suspected of being involved in the commission of the offence or suspected offence to which the application relates; or
(B)the confiscation related activity to which the application relates.
(6)Subsection (5)(b) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the officer otherwise actually knows.
(7)The justice, magistrate or judge (the issuer) may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

151Issue of search warrant

The issuer may issue a search warrant only if satisfied—
(a)there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1)(a), (b), (c) or (d) is—
(i)at the place; or
(ii)likely to be taken to the place within the next 72 hours; or
(b)there are reasonable grounds for believing the prohibited items mentioned in section 150(1)(e) are—
(i)at the place; or
(ii)likely to be taken to the place within the next 72 hours.

152If justice refuses application for search warrant

(1)If a justice refuses to issue a warrant, the police officer may apply to a magistrate or a judge for the issue of the warrant.
(2)However, the police officer must tell the magistrate or judge that the application is made because a justice refused to issue a warrant.
(3)Subsection (1) does not apply if the justice who refuses the warrant is or has been a Supreme Court judge, a District Court judge or a magistrate.

153Order in search warrant about documents

If the issuer is a magistrate or a judge, the issuer may, in a search warrant, order the person in possession of documents at the place to give to the police officer all documents of a type stated in the warrant.

154Order in search warrant about information necessary to access information stored electronically

(1)If the issuer is a magistrate or a judge, the issuer may, in a search warrant, order a specified person to do any of the following in relation to a storage device in the person’s possession, or to which the person has access, at the place—
(a)to give a police officer access to the storage device and the access information and any other information or assistance necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using the access information; and
(b)to allow a police officer given access to a storage device to do any of the following in relation to stored information stored on or accessible only by using the storage device—
(i)use the access information to gain access to the stored information;
(ii)examine the stored information to find out whether it may be evidence of the commission of an offence;
(iii)make a copy of any stored information that may be evidence of the commission of an offence, including by using another storage device;
(iv)convert information stored on the device that may be relevant evidence into documentary form or another form that enables it to be understood by a police officer.
(2)If the issuer is a magistrate or a judge, the issuer may also, in the search warrant, order that, if the storage device is seized and removed from the place, a specified person is required to do a thing mentioned in subsection (1)(a) or (b) after the device has been removed.
(3)An order made under subsection (2) must state—
(a)the time at or by which the specified person must give a police officer the information or assistance; and
(b)the place where the specified person must provide the information and assistance; and
(c)any conditions to which the provision of the information or assistance is subject.

154A Order for access information after storage device has been seized

(1)This section applies if—
(a)a storage device is seized under the search warrant and removed from the place; and
(b)either—
(i)the search warrant did not contain an order made under section 154(1) or (2); or
(ii)the search warrant contained an order made under section 154(1) or (2) but further access information is required for a police officer to gain access to information stored on the device that may be relevant evidence.
(2)On the application of a police officer, a magistrate or a judge may make an order requiring a specified person to do a thing mentioned in section 154(1)(a) or (b).
(3)An application made under subsection (2)—
(a)may be made at any time after the warrant has been issued; and
(b)must be made—
(i)if the search warrant was issued by a judge—to a Supreme Court judge; or
(ii)if the search warrant was issued by a magistrate—to a magistrate.
(4)An order made under subsection (2) must state—
(a)the time at or by which the specified person must give a police officer the information or assistance; and
(b)the place where the specified person must provide the information or assistance; and
(c)any conditions to which the provision of the information or assistance is subject; and
(d)that failure, without reasonable excuse, to comply with the order may be dealt with under the Criminal Code, section 205A.
(5)A magistrate or a judge may make an order under subsection (2) only if satisfied there are reasonable grounds for suspecting that information stored on the storage device may be relevant evidence.

154B Compliance with order about information necessary to access information stored electronically

A person is not excused from complying with an order made under section 154(1) or (2) or 154A(2) on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty.

155When search warrant ends

(1)A search warrant issued because there are reasonable grounds for suspecting there is warrant evidence or property at a place ends—
(a)if the search warrant is for stock, whether or not it is also for anything else—21 days after it is issued; or
(b)otherwise—7 days after it is issued.
(2)A search warrant issued because there are reasonable grounds for suspecting warrant evidence or property is likely to be taken to a place within the next 72 hours ends 72 hours after it is issued.

156What search warrant must state

(1)A search warrant must state—
(a)a police officer may exercise search warrant powers under the warrant; and
(b)if the warrant is issued in relation to—
(i)an offence—brief particulars of the offence for which the warrant is issued; or
(ii)a forfeiture proceeding—the Act under which the forfeiture proceeding is authorised; or
(iii)a confiscation related activity—brief particulars of the activity; or
(iv)a vehicle that is or is to be impounded or immobilised under chapter 4 or 22—brief particulars of the authorisation to impound or immobilise; or
(v)control order property—brief details of the control order or registered corresponding control order under the Penalties and Sentences Act 1992; or
(vi)premises at which a senior police officer reasonably believes 1 or more disorderly activities have taken place and are likely to take place again—brief details of the disorderly activities; and
(c)the warrant evidence or property that may be seized under the warrant; and
(d)if the warrant is to be executed at night, the hours when the place may be entered; and
(e)the day and time the warrant ends.
(2)If the warrant relates to an offence and the offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it, the warrant may also state that a police officer may search anyone or anything in or on or about to board, or to be put in or on, the vehicle.
(3)If a magistrate or a judge makes an order under section 153 or 154(1) or (2), the warrant must also state that failure, without reasonable excuse, to comply with the order may be dealt with under—
(a)for section 153—the Criminal Code, section 205; or
(b)for section 154(1) or (2)—the Criminal Code, section 205A.

157Powers under search warrant

(1)A police officer may lawfully exercise the following powers under a search warrant (search warrant powers)—
(a)power to enter the place stated in the warrant (the relevant place) and to stay on it for the time reasonably necessary to exercise powers authorised under the warrant and this section;
(b)power to pass over, through, along or under another place to enter the relevant place;
(c)power to search the relevant place for anything sought under the warrant;
(d)power to open anything in the relevant place that is locked;
(e)power to detain anyone at the relevant place for the time reasonably necessary to find out if the person has anything sought under the warrant;
(f)if the warrant relates to an offence and the police officer reasonably suspects a person on the relevant place has been involved in the commission of the offence, power to detain the person for the time taken to search the place;
(g)power to dig up land;
(h)power to seize a thing found at the relevant place, or on a person found at the relevant place, that the police officer reasonably suspects may be warrant evidence or property to which the warrant relates;
(i)power to muster, hold and inspect any animal the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates;
(j)power to photograph anything the police officer reasonably suspects may provide warrant evidence or property to which the warrant relates, whether or not the thing is seized under the warrant;
(k)power to remove wall or ceiling linings or floors of a building, or panels of a vehicle, to search for warrant evidence or property;
(l)if the police officer is searching for stock—power to use any equipment, cut out camps, stockyards, dips, dams, ramps, troughs and other facilities on the place being searched that are reasonably needed to be used in the management of stock.
(2)Also, a police officer has the following powers if authorised under a search warrant (also search warrant powers)—
(a)power to search anyone found at the relevant place for anything sought under the warrant that can be concealed on the person;
(b)power to do whichever of the following is authorised—
(i)to search anyone or anything in or on or about to board, or be put in or on, a transport vehicle;
(ii)to take a vehicle to, and search for evidence of the commission of an offence that may be concealed in a vehicle at, a place with appropriate facilities for searching the vehicle.
(3)Power to do anything at the relevant place that may cause structural damage to a building, may be exercised only if the warrant—
(a)authorises the exercise of the power; and
(b)is issued by a Supreme Court judge.

158Copy of search warrant to be given to occupier

(1)If a police officer executes a search warrant for a place that is occupied, the police officer must—
(a)if the occupier is present at the place—give to the occupier a copy of the warrant and a statement in the approved form summarising the person’s rights and obligations under the warrant; or
(b)if the occupier is not present—leave the copy in a conspicuous place.
(2)If the police officer reasonably suspects giving the person the copy may frustrate or otherwise hinder the investigation or another investigation, the police officer may delay complying with subsection (1), but only for so long as—
(a)the police officer continues to have the reasonable suspicion; and
(b)that police officer or another police officer involved in the investigation remains in the vicinity of the place to keep the place under observation.

Part 2 Search of place to prevent loss of evidence

159Application of pt 2

This part applies only in relation to the following offences (a part 2 offence)—
(a)an indictable offence;
(b)an offence involving gaming or betting;
(c)an offence against any of the following Acts—
Confiscation Act
Explosives Act 1999
Nature Conservation Act 1992
Weapons Act 1990;
(d)an offence against the Liquor Act 1992, section 168B or 168C.

160Search to prevent loss of evidence

(1)This section applies if a police officer reasonably suspects—
(a)a thing at or about a place, or in the possession of a person at or about a place is evidence of the commission of a part 2 offence; and
(b)the evidence may be concealed or destroyed unless the place is immediately entered and searched.
(2)This section also applies if a police officer reasonably suspects a part 2 offence has been, is being, or may be committed in, on or in relation to a transport vehicle and involves the safety of the vehicle or anyone who may be in or on it.
(3)A police officer may enter the place and exercise search warrant powers, other than power to do something that may cause structural damage to a building, at the place as if they were conferred under a search warrant.

161Post-search approval

(1)As soon as reasonably practicable after exercising powers under section 160, the police officer must apply to a magistrate in writing for an order approving the search (post-search approval order).
(2)The application must be sworn and state the grounds on which it is sought.
(3)The applicant need not appear at the consideration of the application, unless the magistrate otherwise requires.
(4)The magistrate may refuse to consider the application until the police officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

162Making of post-search approval order

(1)The magistrate may make a post-search approval order only if satisfied—
(a)in the circumstances existing before the search—
(i)the police officer, before exercising the powers, had a reasonable suspicion for exercising the powers; and
(ii)there was a reasonable likelihood that the evidence would be concealed or destroyed or may have caused injury to a person; or
(b)having regard to the nature of the evidence found during the search it is in the public interest to make the order.
(2)The magistrate may also make an order under section 693 or 694, whether or not a post-search approval order is made.

163Appeal

(1)Within 28 days after either of the following happens, the commissioner may appeal against the order to the Supreme Court—
(a)a magistrate refuses to make a post-search approval order;
(b)a magistrate makes an order under section 162(2).
(2)If the police officer appeals, the police officer must retain the thing seized until the appeal is decided.
(3)The court may make an order under section 693 or 694 whether or not the appeal is upheld.

Part 3 Crime scenes

Division 1AA Preliminary

163ADefinitions for part

In this part—
crime scene see section 163B.
crime scene threshold offence means—
(a)an indictable offence for which the maximum penalty is at least 4 years imprisonment; or
(b)an offence involving deprivation of liberty.
responsible officer see section 165(1).

163BWhat is a crime scene

A place is a crime scene if—
(a)either of the following apply—
(i)a crime scene threshold offence happened at the place;
(ii)there may be evidence at the place, of a significant probative value, of the commission of a crime scene threshold offence that happened at another place; and
(b)it is necessary to protect the place for the time reasonably necessary to search for and gather evidence of the commission of the crime scene threshold offence.

Division 1 Establishment of crime scenes

164Gaining access to crime scenes

(1)It is lawful for a police officer—
(a)to enter a place to reach another place that the police officer reasonably suspects is a crime scene; and
(b)to enter a place that the police officer reasonably suspects is a crime scene and stay on the place for the time reasonably necessary to decide whether or not to establish a crime scene.
(2)What is a reasonable time for subsection (1)(b) will depend on the particular circumstances including—
(a)the nature of any information obtained or any observation made that suggests the place is a crime scene; and
(b)visible evidence that will help decide whether it is a crime scene; and
(c)any preliminary inspection of the place.

165Initial establishment of crime scene

(1)If a police officer enters a place that may be a crime scene, or is lawfully at a place, and decides the place is a crime scene, the police officer (the responsible officer) may establish a crime scene and exercise crime scene powers at the place.

Note—

For crime scene powers, see division 3.
(2)If another police officer assumes control of the crime scene, that police officer becomes the responsible officer instead of the other officer.
(3)The responsible officer may establish the crime scene in any way that gives anyone wanting to enter the place enough notice that the place is a crime scene.

Examples—

1A police officer may stand at a door to stop people entering a building and tell them they can not enter the building.
2A police officer may put around a place barricades or tapes indicating the place is a crime scene.
3A police officer may display a written notice stating the place is a crime scene and unauthorised entry is prohibited.

166Responsibility after establishing crime scene

(1)As soon as reasonably practicable after the responsible officer establishes the crime scene, a police officer must apply to a Supreme Court judge or magistrate for a crime scene warrant.

Note—

For provisions about crime scene warrants, see division 2.
(2)Subsection (1) does not apply if the place is a public place.
(3)However, if the place is a public place only while it is ordinarily open to the public and the occupier of the place requires a police officer at the place to leave the place, the police officer may apply under division 2 for a crime scene warrant.
(4)The application must be made to a Supreme Court judge for a crime scene warrant if it is intended to do something that may cause structural damage to a building.
(5)Subsection (4) applies whether or not a magistrate has issued a crime scene warrant for the place.
(6)If a judge or magistrate refuses to issue a crime scene warrant for the place, the place stops being a crime scene.

167Deciding limits of crime scene

The responsible officer at a crime scene must—
(a)identify what is the crime scene; and
(b)decide the boundaries necessary to protect the crime scene; and
(c)mark the limits of the crime scene in a way that sufficiently identifies it to the public as a crime scene.

Example for paragraph (b)—

It may be necessary to establish a buffer zone around the crime scene.

168Restricting access to crime scene

(1)The responsible officer must immediately take the steps he or she considers to be reasonably necessary to protect anything at the crime scene from being damaged, interfered with or destroyed, including for example, steps necessary—
(a)to ensure people, including police officers, whose presence at the crime scene is not essential do not enter the crime scene; and
(b)to prevent unnecessary movement inside the boundaries of the crime scene; and
(c)to establish a safe walking area in the crime scene for reducing the risk of damage to any evidence that may be on the place.
(2)Also, a person, other than the responsible officer, must not enter a crime scene unless—
(a)the person has a special reason, associated with the investigation, for entering the crime scene; or
(b)the person is a police officer who is asked to enter the crime scene by the responsible officer or an investigating police officer; or
(c)the person is an authorised assistant; or
(d)the presence of the person is necessary to preserve life or property at a crime scene; or
(e)the person is authorised to enter by the responsible officer.

Examples for subsection (2)(a)—

1a police officer removing someone from the crime scene who should not be there
2a police officer investigating the offence
3a person accompanying a police officer to assist in the investigation or who has special knowledge of the place that is relevant to the investigation
(3)For subsection (2)(e), the responsible officer may authorise the entry subject to stated requirements.
(4)The responsible officer must ensure a record is made of the name of each person who is present when the crime scene is established or enters it after it is established, when each person entered the place after it is established, and the purpose of the entry.

169Preserving evidence at crime scene

The responsible officer at a crime scene must ensure that nothing in the crime scene is unnecessarily touched or moved—
(a)until all necessary forensic and technical examinations are finished; or
(b)unless there is a possibility that the thing could be damaged, interfered with or destroyed if it is not moved.

Examples of when evidence may be damaged or destroyed if a thing is not moved—

1if the arrival of the investigator, or an authorised assistant or specialist officer will be delayed and the scene is exposed to the weather
2if falling or threatened rain may damage fingerprints that may be on a knife left on the ground

Division 2 Crime scene warrants

170Application for crime scene warrant

(1)A police officer may apply to a Supreme Court judge or a magistrate for a warrant (a crime scene warrant) to establish a crime scene at a place.
(2)The application must be sworn and state the grounds on which it is sought.
(3)The occupier of the place must, if reasonably practicable, be given notice of the making of the application.
(4)Subsection (3) does not apply if the police officer reasonably suspects giving the notice would frustrate or otherwise hinder the investigation of the offence to which the application relates.
(5)If present when the application is made, the occupier may make submissions to the judge or magistrate (the issuer), but not submissions that will unduly delay the consideration of the application.
(6)The issuer may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

171Consideration of application and issue of crime scene warrant

(1)Before issuing a crime scene warrant, the issuer must have regard to the following—
(a)the nature and seriousness of the suspected offence;
(b)the likely extent of interference to be caused to the occupier of the place;
(c)the time, of not more than 7 days, for which it is reasonable to maintain a crime scene;
(d)any submissions made by the occupier.
(2)The issuer may issue a crime scene warrant only if reasonably satisfied the place is a crime scene.
(3)If before the application is considered, the place stops being a crime scene, the issuer may issue a crime scene warrant that has effect only for the time the place was a crime scene.

172What crime scene warrant must state

(1)A crime scene warrant must state—
(a)that a stated police officer may establish a crime scene at the place and exercise crime scene powers at the place; and
(b)the day, not more than 7 days after the warrant is issued, the warrant ends, unless extended under section 173(2).
(2)If the issuer is a Supreme Court judge, the warrant must state whether or not a police officer may, under the warrant, do something that may cause structural damage to a building.

173Duration, extension and review of crime scene warrant

(1)A crime scene warrant stops having effect on the day fixed under the warrant or a later time fixed under subsection (2).
(2)The issuer may, on the application of a police officer made before a crime scene warrant stops having effect, extend the warrant for a stated reasonable time of not more than 7 days.

174Review of crime scene warrant

(1)If an application for a crime scene warrant was made in the absence, and without the knowledge, of the occupier of the place or the occupier had a genuine reason for not being present, the occupier may apply to the issuer for an order revoking the warrant.
(2)The issuer may revoke or refuse to revoke the warrant.
(3)The making of an application under subsection (1) or the Judicial Review Act 1991 for review of the warrant’s issue does not stay the effect of the warrant.

175Copy of crime scene warrant to be given to occupier

(1)If a police officer exercises powers under a crime scene warrant for a place that is occupied, the police officer must give to the occupier a copy of the warrant and a statement in the approved form summarising the person’s rights and obligations under the warrant.
(2)If the occupier is not present, the police officer must leave the copy in a conspicuous place.

Division 3 Powers at crime scenes

176Powers at crime scene

(1)The responsible officer at a crime scene, or a police officer acting under the direction of the responsible officer, may do any of the following in relation to the crime scene—
(a)enter the crime scene;
(b)if reasonably necessary, enter another place to gain access to the crime scene;
(c)perform any necessary investigation, including, for example, a search and inspection of the crime scene and anything in it to obtain evidence of the commission of an offence;
(d)open anything at the crime scene that is locked;
(e)take electricity for use at the crime scene;
(f)dig up anything at the crime scene;
(g)remove wall or ceiling linings or floors of a building, or panels or fittings of a vehicle;
(h)remove or cause to be removed an obstruction from the crime scene;
(i)photograph the crime scene and anything in it;
(j)seize all or part of a thing that may provide evidence of the commission of an offence.

Example for paragraph (j)—

It may be necessary to seize and remove a vehicle for scientific examination to obtain evidence that may be in the vehicle.
(2)However, if it is necessary to do anything at the place that may cause structural damage to a building, the thing must not be done unless a Supreme Court judge issues a crime scene warrant for the place before the thing is done and the warrant authorises the doing of the thing.
(3)An authorised assistant at a crime scene may also do a thing mentioned in subsection (1).
(4)However, the authorised assistant may do either of the following only if asked by a responsible officer to do something at the crime scene—
(a)enter the crime scene;
(b)if reasonably necessary, enter another place to gain access to the crime scene.

177Powers of direction etc. at crime scene

The responsible officer or a police officer acting under the direction of the responsible officer may, at a crime scene, do any of the following—
(a)direct a person to leave the crime scene or remove a vehicle or animal from the crime scene;
(b)remove or cause to be removed from the crime scene—
(i)a person who fails to comply with a direction to leave the crime scene; or
(ii)a vehicle or animal a person fails to remove from the crime scene;
(c)direct a person not to enter the crime scene;
(d)prevent a person from entering the crime scene;
(e)prevent a person from removing evidence from or otherwise interfering with the crime scene or anything in it and, for that purpose, detain and search the person;
(f)direct the occupier of the place or a person apparently in charge of the place to maintain a continuous supply of electricity at the place.

178Exercise of crime scene powers in public place

(1)It is lawful for a police officer to exercise powers under sections 176 and 177 at a public place without a crime scene warrant.
(2)However, if—
(a)the place is a public place only while it is ordinarily open to the public; and
(b)the occupier of the place asks a police officer or an authorised assistant to leave the place;

the police officer or authorised assistant may, despite the request, continue to act under subsection (1) for the time reasonably necessary for an application for a crime scene warrant for the place to be made and decided.

(3)An authorised assistant at a crime scene may also do a thing mentioned in section 176(1).
(4)However, the authorised assistant may do either of the following only if asked by a responsible officer to do something at the crime scene—
(a)enter the crime scene;
(b)if reasonable necessary, enter another place to gain access to the crime scene.

178AOrder for access information for a storage device at or seized from a crime scene

(1)On the application of a police officer, a Supreme Court judge or a magistrate may make an access information order for a storage device—
(a)situated at a crime scene; or
(b)seized from a crime scene under section 176(1)(j).
(2)The judge or magistrate may make the access information order only if satisfied there are reasonable grounds for suspecting that information stored on the storage device may be evidence of the commission of the offence for which the crime scene was, or is to be, established.
(3)The access information order must state—
(a)the time at or by which the specified person must give the police officer the information or assistance; and
(b)the place where the specified person must provide the information and assistance; and
(c)any conditions to which the provision of the information or assistance is subject; and
(d)that failure to comply with the order may be dealt with under the Criminal Code, section 205A.
(4)Without limiting when the application for the access information order may be made, the application may be made at the same time the police officer applies for a crime scene warrant for the crime scene and the judge or magistrate may include the order in the crime scene warrant.
(5)In this section—
access information, for a storage device, means information that is necessary for a person to access and read information stored on the storage device.
access information order, for a storage device at or seized from a crime scene, means an order requiring a specified person to—
(a)give a police officer—
(i)access to the storage device; or
(ii)access information for the storage device; or
(iii)any other information or assistance necessary for the police officer to be able to use the storage device to gain access to information stored on the device that is accessible only by using access information; or
(b)allow a police officer, given access to the storage device, to do any of the following in relation to information stored on or accessible only by using the storage device—
(i)use access information or other information to gain access to the stored information;
(ii)examine the stored information to find out whether it may be evidence of the commission of the offence for which the crime scene was, or is to be, established;
(iii)make a copy of the stored information that may be evidence of the commission of a crime scene threshold offence, including by using another storage device;
(iv)convert the stored information into a form that enables it to be understood by a police officer.
specified person, for a storage device, means a person who—
(a)is—
(i)reasonably suspected of having committed an offence for which a crime scene warrant was issued; or
(ii)the owner of the storage device; or
(iii)in possession of the storage device; or
(iv)an employee of the owner or person in possession of the storage device; or
(v)a person who uses or has used the storage device; or
(vi)a person who is or was a system administrator for the computer network of which the storage device forms or formed a part; and
(b)has a working knowledge of—
(i)how to access and operate the storage device or a computer network of which the storage device forms or formed a part; or
(ii)measures applied to protect information stored on the storage device.
storage device means a device on which information may be stored electronically, including a computer.
stored, on a storage device, includes accessible through the storage device.

178BCompliance with access information order

(1)A person is not excused from complying with an access information order on the ground that complying with it may tend to incriminate the person or make the person liable to a penalty.
(2)In this section—
access information order see section 178A(5).

Division 4 General

179Alternative accommodation to be provided in some cases

(1)This section applies to the occupier of a dwelling if—
(a)the occupier can not continue to live in the dwelling while the crime scene is established because of a direction given at a crime scene; or
(b)the occupier can not continue to live in the dwelling because of damage caused to the dwelling in the exercise of powers under this part.
(1A)A police officer must inform the occupier of the occupier’s right to suitable alternative accommodation for the time the occupier can not live in the dwelling.
(2)The commissioner must arrange suitable alternative accommodation for the occupier for the time the occupier can not live in the dwelling, if requested to do so by the occupier.
(3)The accommodation must, if reasonably practicable, be in the same locality as, and of at least a similar standard to, the occupier’s dwelling.
(4)This section does not apply to an occupier who is detained in lawful custody.

Part 3A Searching places for high-risk missing persons

Division 1 Preliminary

179ADefinitions for part

In this part—
commissioned officer means a police officer of at least the rank of inspector.
missing person see section 179B.
missing person powers means the powers provided for in sections 179P and 179Q.
missing person scene means that part of a place in which missing person powers may be exercised.
missing person warrant see section 179J(1).
residence, for a person, includes a place at which the person regularly sleeps.
responsible officer see section 179D.

179BWho is a missing person

A person is a missing person if—
(a)another person fears for the safety of the person, or is concerned for the welfare of the person, because he or she is unable to contact or locate the person; and
(b)the other person reports his or her fear or concern to a police officer; and
(c)after a police officer makes reasonable inquiries to contact or locate the person, the person’s whereabouts remain unknown to the police officer.

179CWhen a missing person is high-risk

(1)This section applies to a police officer, Supreme Court judge or magistrate in deciding under division 2 or 3 whether a missing person is high-risk.
(2)The police officer, Supreme Court judge or magistrate may be satisfied a missing person is high-risk if—
(a)the person is under 13 years; or
(b)the officer, judge or magistrate reasonably suspects the person may suffer serious harm if not found as quickly as possible.
(3)In making a decision about a missing person under subsection (2)(b), the police officer, Supreme Court judge or magistrate may have regard to any of the following matters—
(a)the person’s age;
(b)any disability of the person attributable to a cognitive, intellectual, neurological, physical or psychiatric impairment;
(c)evidence the person may commit suicide;
(d)the person’s ability to interact safely with other persons or in an unfamiliar environment;
(e)the person’s need for medication;
(f)an addiction the person may have;
(g)the person’s recent behaviour that is out of character for the person;
(h)whether the person is suspected of being the victim of a crime;
(i)any history of domestic violence or other relationship problems affecting the person;
(j)any ongoing bullying or harassment of the person;
(k)a previous disappearance or exposure to serious harm that affected the person;
(l)whether the person is experiencing any financial problems;
(m)a reason why the person may wish to go missing;
(n)if the person is suspected of being lost within a particular area, the climate or other environmental factors relevant to the area;
(o)any suspicious circumstances relating to the person’s disappearance.

Example of a suspicious circumstance—

The missing person has suddenly stopped his or her regular activities, including banking or social activities.
(4)In this section—
serious harm means harm, including the cumulative effect of any harm, that—
(a)endangers, or is likely to endanger, a person’s life; or
(b)is, or is likely to be, significant and longstanding.

Division 2 Establishment of missing person scenes

179DEstablishing missing person scene

(1)A police officer (the responsible officer) may establish a missing person scene at a place if authorised to do so—
(a)under a missing person warrant; or
(b)under section 179E.
(2)If another police officer assumes control of the missing person scene, that police officer becomes the responsible officer for the scene instead of the other officer.
(3)The police officer may establish the missing person scene in any way that gives a person wanting to enter the place notice that the place is a missing person scene.

Examples—

1A police officer may stand at a door to stop people entering a building and tell them they can not enter the building.
2A police officer may put around a place barricades or tapes indicating the place is a missing person scene.
3A police officer may display a written notice stating the place is a missing person scene and unauthorised entry is prohibited.

179EAuthorisation if, as a matter of urgency, it is necessary to establish missing person scene before obtaining missing person warrant

(1)This section applies if a police officer is satisfied—
(a)a missing person is high-risk; and
(b)as a matter of urgency, it is necessary to establish a missing person scene at a place before obtaining a missing person warrant.
(2)The police officer may establish the missing person scene if authorised to do so by a commissioned officer.
(3)The commissioned officer may authorise establishing the missing person scene if—
(a)the commissioned officer is satisfied the missing person is high-risk; and
(b)the commissioned officer—
(i)for a place that is the missing person’s residence, place of employment or vehicle—reasonably suspects the person may be at the place or an inspection of the place may provide information about the person’s disappearance; or
(ii)for any other place—reasonably believes the person may be at the place or an inspection of the place may provide information about the person’s disappearance; and
(c)the commissioned officer is satisfied it is reasonably necessary to exercise missing person powers at the place to search for the person or to gather information about the person’s disappearance; and
(d)the commissioned officer is satisfied, as a matter of urgency, it is necessary to establish a missing person scene at the place before obtaining a missing person warrant.

179FResponsibility after establishing missing person scene before obtaining missing person warrant

(1)This section applies if a police officer establishes a missing person scene at a place before obtaining a missing person warrant.
(2)As soon as reasonably practicable after establishing the missing person scene, a police officer must apply under section 179J to a Supreme Court judge or magistrate for a missing person warrant.
(3)Subsection (2) does not apply if the place is a public place, unless the place is a public place only while it is ordinarily open to the public and the occupier of the place requires a police officer at the place to leave the place.

179GDeciding limits of missing person scene

When establishing a missing person scene, the responsible officer for the scene must—
(a)identify what is the missing person scene; and
(b)decide the boundaries necessary to protect the missing person scene; and
(c)mark the limits of the missing person scene in a way that sufficiently identifies it to the public as a missing person scene.

179HRestricting access to missing person scene

(1)Immediately after establishing a missing person scene, the responsible officer for the scene must take the steps the officer considers reasonably necessary to protect anything at the scene from being damaged, interfered with or destroyed, including, for example, steps necessary to—
(a)ensure people, including police officers, whose presence at the scene is not essential do not enter the scene; and
(b)prevent unnecessary movement inside the boundaries of the scene; and
(c)establish a safe walking area in the scene for reducing the risk of damage to anything that may be at the scene.
(2)A person, other than the responsible officer, must not enter the missing person scene unless—
(a)the person has a special reason, associated with the investigation, for entering the scene; or

Examples—

a police officer removing someone from the missing person scene who should not be there
a police officer investigating the disappearance of the missing person the subject of the investigation
a person accompanying a police officer to assist in the investigation or who has special knowledge of the place that is relevant to the investigation
(b)the person is a police officer who is asked to enter the scene by the responsible officer or an investigating police officer; or
(c)the person is an authorised assistant; or
(d)the presence of the person is necessary to preserve life or property at the scene; or
(e)the person is authorised to enter by the responsible officer.
(3)For subsection (2)(e), the responsible officer may authorise the entry subject to stated requirements.
(4)The responsible officer must ensure a record is made of—
(a)the name of each person who is present when the missing person scene is established or enters it after it is established; and
(b)when each person entered the missing person scene after it was established, and the purpose of the entry.

179IWhen place stops being missing person scene

(1)If a missing person scene is established at a place, the place stops being a missing person scene at the end of 48 hours after the scene is established.
(2)However, if a missing person warrant issued for the place is extended under section 179M, the place stops being a missing person scene at the end of the extension.
(3)Also, the place stops being a missing person scene before the end of the 48 hours, or any extension, if and when any of the following events happen—
(a)a judge or magistrate refuses to issue a missing person warrant for the place;
(b)a missing person warrant for the place stops having effect under section 179M;
(c)the responsible officer for the scene becomes aware that the missing person—
(i)has been found; or
(ii)is not a person who is likely to be high-risk;
(d)the responsible officer for the scene decides there is no longer a need to exercise missing person powers at the place.

Division 3 Missing person warrants

179JApplying for missing person warrant

(1)A police officer may apply to a Supreme Court judge or a magistrate for a warrant (a missing person warrant) to—
(a)establish a missing person scene; or
(b)confirm a missing person scene established under section 179E.
(2)However, the police officer may only apply for a warrant to establish a missing person scene if authorised to do so by a commissioned officer.
(3)The application must—
(a)be sworn and state the grounds on which it is sought; and
(b)include the information required under the responsibilities code.
(4)A police officer must, if reasonably practicable, give notice of the making of the application to the occupier of the place.
(5)Subsection (4) does not apply if the police officer reasonably suspects giving the notice would frustrate or otherwise hinder the investigation to which the application relates.
(6)If present when the application is made, the occupier may make submissions to the judge or magistrate (the issuer), but not submissions that will unduly delay the consideration of the application.
(7)The issuer may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

179KConsidering application and issuing missing person warrant

(1)This section applies if a Supreme Court judge or magistrate is considering an application for a missing person warrant in relation to a place.
(2)In deciding the application, the judge or magistrate must have regard to the following—
(a)the nature and seriousness of the disappearance of the missing person;
(b)the likely extent of interference to be caused to the occupier of the place;
(c)the time for which it is reasonable to maintain a missing person scene;
(d)any submissions made by the occupier of the place.
(3)The judge or magistrate (the issuer) may issue the missing person warrant if—
(a)the issuer is satisfied the missing person is high-risk; and
(b)the issuer—
(i)for a place that is the person’s residence, place of employment, or vehicle—reasonably suspects the person may be at the place or an inspection of the place may provide information about the person’s disappearance; or
(ii)for any other place—reasonably believes the person may be at the place or an inspection of the place may provide information about the person’s disappearance; and
(c)the issuer is satisfied it is reasonably necessary to exercise missing person powers at the place to search for the person or to gather information about the person’s disappearance.
(4)If, before the application is considered, the place stops being a missing person scene, the judge or magistrate may issue a missing person warrant that has effect only for the time the place was a missing person scene.

179LWhat missing person warrant must state

(1)A missing person warrant must state—
(a)that a stated police officer may establish a missing person scene at the place and exercise missing person powers at the scene; and
(b)the day and time, of not more than 48 hours after the missing person scene is established, that the warrant ends.
(2)If a Supreme Court judge issues the missing person warrant, the warrant must state whether or not a police officer may, under the warrant, do something that may cause structural damage to a building.

179MDuration, extension and review of missing person warrant

(1)A missing person warrant stops having effect at the time fixed under the warrant or a later time fixed under subsection (2).
(2)A Supreme Court judge or magistrate may, on the application of a police officer made before a missing person warrant stops having effect, extend the warrant for a stated reasonable time of not more than 48 hours.
(3)The application must—
(a)be sworn and state the grounds on which it is sought; and
(b)include the information required under the responsibilities code.

179NReview of missing person warrant

(1)This section applies if a missing person warrant is issued in relation to a place.
(2)The occupier of the place may apply to the Supreme Court judge or magistrate that issued the missing person warrant for an order revoking the warrant if the application for the warrant was made in the absence of the occupier and the occupier—
(a)did not know about the application; or
(b)had a genuine reason for not being present during the hearing of the application.
(3)The judge or magistrate may revoke or refuse to revoke the warrant.
(4)The making of an application under subsection (2), or an application under the Judicial Review Act 1991 for review of the decision to issue the missing person warrant, does not stay the effect of the warrant.

179OCopy of missing person warrant to be given to occupier

(1)If a police officer exercises powers under a missing person warrant at a place that is occupied, the police officer must give the occupier a copy of both of the following as soon as it is reasonably practicable to do so—
(a)the missing person warrant;
(b)a statement, in the approved form, summarising the occupier’s rights and obligations under the missing person warrant.
(2)If the occupier is not present, the police officer must leave the copy of the missing person warrant and the statement in a conspicuous place.

Division 4 Powers at missing person scenes

179PPowers at missing person scene

(1)The responsible officer for a missing person scene, or a police officer acting under the direction of the responsible officer, may do any of the following in relation to the scene—
(a)enter the scene;
(b)if reasonably necessary, enter another place to gain access to the scene;
(c)perform any necessary investigation, including, for example, a search and inspection of the scene and anything in it for the missing person or to obtain information about the person’s disappearance;
(d)open anything at the scene that is locked;
(e)take electricity for use at the scene;
(f)remove or cause to be removed an obstruction from the scene;
(g)photograph the scene and anything in it;
(h)seize all or part of a thing that may provide information about the missing person’s disappearance.
(2)However, if it is necessary to do anything at the missing person scene that may cause structural damage to a building, the thing must not be done unless a Supreme Court judge issues a missing person warrant before the thing is done and the warrant authorises the doing of the thing.
(3)An authorised assistant for the missing person scene may also do a thing mentioned in subsection (1).
(4)However, the authorised assistant may do either of the following things only if asked to do so by the responsible officer—
(a)enter the missing person scene;
(b)if reasonably necessary, enter another place to gain access to the missing person scene.

179QPowers of direction etc. at missing person scene

The responsible officer for a missing person scene, or a police officer acting under the direction of the responsible officer, may do any of the following—
(a)direct a person to leave the scene or remove a vehicle or animal from the scene;
(b)remove or cause to be removed from the scene—
(i)a person who fails to comply with a direction to leave the scene; or
(ii)a vehicle or animal a person fails to remove from the scene;
(c)direct a person not to enter the scene;
(d)prevent a person from entering the scene;
(e)prevent a person from removing a thing from or otherwise interfering with the scene or anything in it and, for that purpose, detain and search the person;
(f)direct the occupier of the place that is the missing person scene, or a person apparently in charge of the place, to maintain a continuous supply of electricity at the place.

179RExercising missing person powers to be electronically recorded

(1)This section applies if a police officer exercises a missing person power at a place.
(2)If practicable, the act of exercising the missing person power must be electronically recorded.

Division 5 General

179SAlternative accommodation to be provided in some cases

(1)This section applies to the occupier of a dwelling if the occupier can not continue to live in the dwelling—
(a)while a missing person scene is established because of a direction given at the scene; or
(b)because of damage caused to the dwelling in the exercise of missing person powers.
(2)A police officer must inform the occupier of the occupier’s right to suitable alternative accommodation for the time the occupier can not live in the dwelling.
(3)The commissioner must arrange suitable alternative accommodation for the occupier for the time the occupier can not live in the dwelling, if requested to do so by the occupier.
(4)The accommodation must, if reasonably practicable, be in the same locality as, and of at least a similar standard to, the dwelling.
(5)This section does not apply to an occupier who is detained in lawful custody.

Part 4 Production notices

180Production notices

(1)This section applies if a police officer reasonably suspects a cash dealer holds documents that may be—
(a)evidence of the commission of an offence by someone else; or
(b)confiscation related evidence in relation to a confiscation related activity involving someone else; or
(c)SDOCO related evidence.
(2)The police officer may, instead of applying for a search warrant, apply to a justice or a magistrate for the issue of a notice (production notice) requiring the cash dealer to produce documents stated in the production notice to a police officer.
(3)The application must—
(a)be sworn and state the grounds on which the production notice is sought; and
(b)include information required under the responsibilities code about any production notices issued within the previous year in relation to—
(i)for an application relating to SDOCO related evidence—the person convicted of the qualifying offence to which the application relates; or
(ii)for another application—the person suspected of being involved in the commission of the offence or suspected offence or confiscation related activity to which the application relates.
(4)Subsection (3)(b) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the police officer otherwise actually knows.
(5)The justice or magistrate (the issuer) may refuse to consider the application until the police officer gives the issuer all the information the issuer requires about the application in the way the issuer requires.

Example—

The issuer may require additional information supporting the application to be given by statutory declaration.

181Issue of production notice

(1)The justice or the magistrate may issue a production notice only if satisfied there are reasonable grounds for suspecting—
(a)documents the cash dealer holds may be—
(i)evidence of the commission of an offence; or
(ii)confiscation related evidence; and
(b)the cash dealer is not a party to the offence.
(2)The justice or the magistrate may, in the production notice, require the documents to be produced to a police officer within a stated time and at a stated place.

182Copy of production notice to be given to cash dealer

A police officer must give a copy of a production notice to the cash dealer named in the notice as soon as reasonably practicable after it is issued.

183Procedural requirements—production notice

(1)A cash dealer given a production notice must comply with the notice.
(2)The cash dealer is not subject to any liability for complying with, or producing something in the honest belief that the dealer was complying with, a production notice.
(3)It is not an offence to fail to comply with a production notice.

184Power under production notice

(1)A police officer has the following powers in relation to a document produced under a production notice—
(a)power to inspect the document;
(b)power to take extracts from the document;
(c)power to make copies of the document;
(d)power to seize the document if the officer reasonably suspects it is evidence of the commission of an offence or confiscation related evidence.
(2)Subsection (1) applies subject to section 185.

185If cash dealer claims documents contain privileged communications

(1)If, under a production notice, a cash dealer produces a document the cash dealer claims contains privileged communications between the cash dealer and someone else, the police officer receiving the document—
(a)must as soon as reasonably practicable apply to a magistrate for an order for access to the document (access order); and
(b)may retain the document, but must not inspect it until the application is decided.
(2)Before making the application, the police officer must ask for whom and on what ground the claim is made and record the answers given.
(3)Also, the police officer must—
(a)place the document in a container or envelope; and
(b)seal the container or envelope; and
(c)sign the seal on the container or envelope; and
(d)ask the person producing the document for the cash dealer to sign the seal; and
(e)tell the person producing the document for the cash dealer the document will be retained and an application will be made for an order for access to the document.

186Making of access order

(1)A magistrate, or a justice authorised in writing by the magistrate, may make an access order for a document a cash dealer claims contains privileged communications between the cash dealer and someone else only if reasonably satisfied that in the particular circumstances the police officer should be allowed access to the document.
(2)If the magistrate or justice refuses to make the access order, the magistrate or justice may order that the document be returned to the cash dealer as soon as reasonably practicable.

187Provisions about access order

(1)An access order may state that a police officer may, in relation to documents to which it relates—
(a)exercise the powers in section 184; or
(b)copy the document and return the original document to the cash dealer.
(2)An access order that authorises copying of a document and its return to a cash dealer may order that the document be again produced to a court hearing a proceeding for an offence for which the document is to be used as evidence, if a police officer asks.
(3)If an access order authorises the copying of a document that is in electronic form, the order authorises the police officer to produce a hard-copy of the information contained in the document.

Part 5 Production orders

188Application of pt 5

(1)This part applies to the following within the meaning of the Confiscation Act—
(a)a confiscation offence;
(b)a serious crime related activity.
(2)For this part, the question whether a person has been charged with or found guilty of an interstate confiscation offence is to be decided in accordance with the law of the State in which the person is charged or found guilty.

189Production order applications

(1)This section applies if a police officer reasonably suspects a person possesses a document that may be a property tracking document relating to—
(a)a confiscation offence of which a person has been found guilty; or
(b)a confiscation offence a police officer reasonably suspects a person has committed; or
(c)a serious crime related activity a police officer reasonably suspects a person has engaged in.
(2)A police officer may apply to a Supreme Court judge for an order (production order) requiring a person named in the application to produce the document to a police officer.
(3)The application must—
(a)be sworn and state the grounds on which the production order is sought; and
(b)include information specified in the responsibilities code about any production orders issued within the previous year in relation to the named person.
(4)Subsection (3)(b) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the police officer otherwise actually knows.
(5)The judge may refuse to consider the application until the police officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

190Making of production orders

(1)The Supreme Court judge may make a production order only if satisfied there are reasonable grounds for suspecting the person possesses a document that may be a property tracking document relating to the confiscation offence or serious crime related activity mentioned in the application.
(2)If the application includes information that the police officer reasonably suspects that—
(a)the person who was found guilty of the offence, or who is suspected of having committed the offence, derived a benefit from the commission of the offence; and
(b)property specified in the information is subject to the effective control of the person;

the judge may treat any document relevant to identifying, locating or quantifying that property as a property tracking document in relation to the offence for this section.

(3)If an application relating to a serious crime related activity includes information that the police officer reasonably suspects—
(a)the person who is suspected of having engaged in the serious crime related activity derived a benefit from the person’s illegal activity; and
(b)the property specified in the information is subject to the effective control of the person;

the judge may treat any document relevant to identifying, locating or quantifying that property as a property tracking document in relation to the serious crime related activity for this section.

(4)In deciding whether to treat a document as a property tracking document under subsection (2) or (3), the judge may have regard to the matters mentioned—
(a)for subsection (2), in the Confiscation Act, section 187; or
(b)for subsection (3), in the Confiscation Act, section 82 or 89L.

191What production order must state

(1)The production order must—
(a)order a stated person—
(i)to produce to a police officer any documents, other than a financial institution’s books, of the kind mentioned in section 189(1) that are in the person’s possession; or
(ii)to make available to a police officer, for inspection, any documents of that kind that are in the person’s possession; and
(b)state when and the place where—
(i)documents that must be produced are to be produced; or
(ii)documents that must be made available for inspection are to be made available; and
(c)state that a police officer may enter the place and exercise the powers under section 192.
(2)Power to enter a place under a production order includes, and is taken always to have included, power to re-enter the place as often as is reasonably necessary for enforcing the order.
(3)In this section—
financial institution’s books means accounting records used in the ordinary business of a financial institution, including ledgers, daybooks, cashbooks and account books.

192Powers under production order

A police officer has the following powers in relation to a document produced or made available under the production order—
(a)power to inspect the document;
(b)power to take extracts from the document;
(c)power to make copies of the document;
(d)power to seize the document if the officer reasonably suspects it is evidence of the commission of an offence or confiscation related evidence.

193Variation of production order

(1)If a Supreme Court judge makes a production order requiring a person to produce a document to a police officer, the person may apply to a Supreme Court judge for a variation of the order.
(2)If the judge is satisfied the document is essential to the business activities of the person, the judge may vary the production order so it requires the person to make the document available to a police officer.

194Offence to contravene production order

(1)A person must not contravene a production order, unless the person has a reasonable excuse.
(2)A person must not produce or make available a document under a production order that the person knows is false or misleading in a material particular without—
(a)indicating to the police officer to whom the document is produced or made available how the document is false or misleading; and
(b)giving correct information to the police officer, if the person has, or can reasonably obtain, the correct information.
(3)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

195Effect of compliance with production order

(1)A person is not excused from producing a document or making a document available when required to do so by a production order on the ground that—
(a)producing or making the document available might tend to incriminate the person or make the person liable to a penalty; or
(b)producing or making the document available would be in breach of an obligation, whether imposed by any law or otherwise, of the person not to disclose the existence or contents of the document.
(2)Subsection (3) applies if a person produces a document or makes a document available under a production order.
(3)The following are not admissible against the person in any criminal proceeding, other than a proceeding for an offence against section 194 in relation to producing the document or making the document available—
(a)the fact that the person produced the document;
(b)the fact that the person made the document available;
(c)any information, document or thing directly or indirectly obtained because the document was produced or made available.

Part 6 Power to seize evidence and abandoned and illegally placed property

196Power to seize evidence generally

(1)This section applies if a police officer lawfully enters a place, or is at a public place, and finds at the place a thing the officer reasonably suspects is evidence of the commission of an offence.
(2)The police officer may seize the thing, whether or not as evidence under a warrant and, if the police officer is acting under a warrant, whether or not the offence is one in relation to which the warrant is issued.
(3)Also, the police officer may photograph the thing seized or the place from which the thing was seized.
(4)The police officer may stay on the place and re-enter it for the time reasonably necessary to remove the thing from the place.

197Power to remove property unlawfully on a place

(1)This section applies if a police officer lawfully enters a place or is at a public place and finds on the place a thing the police officer reasonably suspects is on the place in contravention of an Act.
(2)The police officer may seize the thing if the person in charge of the thing can not immediately be found.
(3)Also, the police officer may seize the thing if the person in charge of the thing can be found and the police officer reasonably suspects the person is unwilling or unable to move the thing immediately.
(4)The police officer may take the thing to a place where the presence of the thing does not contravene the relevant Act or another Act.
(5)This section does not apply to a vehicle or an animal.

Part 7 Accessing account information

197ADefinitions for pt 7

In this part—
account
(a)means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals; and
(b)includes a facility or arrangement with a financial institution for a fixed term deposit or safety deposit box.
financial institution includes—
(a)a corporation that is (or that, if it had been incorporated in Australia, would be) a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx); and
(b)another corporation that permits persons to deposit money with it for use by, or at the direction of, the persons for gaming or betting.
senior police officer means a police officer of at least the rank of inspector.

197BGiving notice to financial institution

(1)This section applies if a senior police officer—
(a)reasonably suspects an offence has been committed, is being committed, or is about to be committed; and
(b)reasonably believes the advice sought in a notice under this section is required for—
(i)investigating the offence; or
(ii)commencing proceedings against a person for the offence; or
(iii)taking steps reasonably necessary to prevent the commission of the offence.
(2)A senior police officer may give a written notice to a financial institution stating a name and requiring the institution to advise the police officer—
(a)whether a person of the stated name is authorised, or was authorised at any time, to operate an account held with the financial institution; and
(b)if so, the name in which the account is or was held and the account number.
(3)Also, a senior police officer may give a written notice to a financial institution stating a number and requiring the institution to advise the police officer—
(a)whether an account with the stated number is held, or was held at any time, with the financial institution; and
(b)if so, the name in which the account is or was held and the name of any person who is or was authorised to operate the account.
(4)A notice under subsection (2) or (3) must also state each of the following—
(a)the name and contact details of the senior police officer giving the notice;
(b)that the police officer has the reasonable suspicion and belief required to give the notice under subsection (1);
(c)that the financial institution must comply with the notice within a stated reasonable period;
(d)how and to whom the advice must be given;
(e)a description of the offence under section 197D.
(5)The notice may state any other details that may help the financial institution identify an account.
(6)The same notice may be given—
(a)about more than 1 name or account number; and
(b)to more than 1 financial institution.
(7)When giving a notice under this section, the senior police officer giving the notice must make a written record of the reasons the officer has the reasonable suspicion and belief required to give the notice under subsection (1).

197CProtection from suits etc. in relation to action taken

A person is not liable to any action, suit or proceeding in relation to action taken by the person—
(a)as required by a notice given under this part; or
(b)in the mistaken belief that the action was required by the notice.

197DFinancial institution to comply with notice

(1)A financial institution must comply with a notice given to it under this part.

Maximum penalty—100 penalty units.

(2)However, a financial institution must comply with the notice only to the extent that records needed to comply with the notice are held by, or are under the control of, the institution.
(3)It is a defence to a prosecution for an offence against subsection (1) for the financial institution to prove it—
(a)could not reasonably comply with the notice within the period stated in the notice; and
(b)took reasonable steps to comply with the notice; and
(c)gave the advice sought in the notice as soon as practicable after the period for compliance stated in the notice.

Part 8 Miscellaneous

197EAccessing information stored electronically on smartcard transport authorities

(1)A police officer may, without the consent of the holder of a smartcard transport authority, access information stored electronically on the document for exercising a power—
(a)under a prescribed transport Act; or
(b)in relation to the Criminal Code, section 328A.

Note—

The Criminal Code, section 328A creates offences for the dangerous operation of a vehicle.
(2)In this section—
access, in relation to information stored electronically on a smartcard transport authority, means view or take a copy of the information.
prescribed transport Act means the following Acts—
(a)the Tow Truck Act 1973;
(b)the Transport Operations (Marine Safety) Act 1994;
(c)the Transport Operations (Passenger Transport) Act 1994;
(d)the Transport Operations (Road Use Management) Act 1995.
smartcard transport authority means the following authorities—
(a)a smartcard driver’s certificate or smartcard assistant’s certificate as defined in the Tow Truck Act 1973, schedule 2;
(b)a smartcard marine licence indicator as defined in the Transport Operations (Marine Safety) Act 1994, schedule 1;
(c)a smartcard driver authorisation as defined in the Transport Operations (Passenger Transport) Act 1994, schedule 3;
(d)a smartcard authority as defined in the Transport Operations (Road Use Management) Act 1995, schedule 4.

Chapter 8 Monitoring and suspension orders

Part 1 Definition

198Meaning of financial institution for ch 8

In this chapter—
financial institution includes—
(a)a corporation that is (or that, if it had been incorporated in Australia, would be) a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx); and
(d)another entity that permits persons to deposit money with it for use by, or at the direction of, the persons for gaming or betting.

Part 2 Monitoring orders

199Monitoring order applications

(1)A police officer may apply to a Supreme Court judge for an order (monitoring order) directing a financial institution to give information to a police officer about a named person.
(2)The application—
(a)may be made without notice to any party; and
(b)must—
(i)be sworn and state the grounds on which the order is sought; and
(ii)include information required under the responsibilities code about any monitoring orders issued within the previous year in relation to an account held with the financial institution by the named person.
(3)Subsection (2)(b) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the police officer otherwise actually knows.
(4)The judge may refuse to consider the application until the police officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

200Making of monitoring order

The Supreme Court judge may make the monitoring order only if satisfied there are reasonable grounds for suspecting that the person named in the application—
(a)has committed, or is about to commit, a confiscation offence; or
(b)was involved in the commission, or is about to be involved in the commission, of a confiscation offence; or
(c)has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a confiscation offence; or
(d)has been, or is about to be, involved in a serious crime related activity; or
(e)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

201What monitoring order must state

(1)The monitoring order must order a financial institution to give information obtained by the institution about transactions conducted through an account held by the named person with the institution and state—
(a)the name or names in which the account is believed to be held; and
(b)the type of information the institution is required to give; and
(c)the period, of not more than 3 months from the date of its making, the order is in force; and
(d)that the order applies to transactions conducted during the period stated in the order; and
(e)that the information is to be given to any police officer or to a stated police officer and the way in which the information is to be given.
(2)In this section—
transaction conducted through an account includes—
(a)the making of a fixed term deposit; and
(b)in relation to a fixed term deposit—the transfer of the amount deposited, or any part of it, at the end of the term.

202When period stated in monitoring order starts

A monitoring order has effect from the start of the day notice of the order is given to the financial institution.

203Offence to contravene monitoring order

A financial institution that has been given notice of a monitoring order must not knowingly—
(a)contravene the order; or
(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

204Existence and operation of monitoring order not to be disclosed

(1)A financial institution that is or has been subject to a monitoring order must not disclose the existence or the operation of the order to any person other than—
(a)a police officer; or
(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or
(c)a lawyer, for obtaining legal advice or representation in relation to the order.
(2)A person to whom the existence or operation of a monitoring order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—
(a)while the person is a police officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—
(i)if the person is a police officer—performing the person’s duties; or
(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or
(b)when the person is no longer a police officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3)Subsection (2) does not prevent a police officer disclosing the existence or operation of a monitoring order—
(a)for, or in relation to, a legal proceeding; or
(b)in a proceeding before a court.
(4)A police officer can not be required to disclose to any court the existence or operation of a monitoring order.
(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.
(7)In this section—
officer, of a financial institution, means—
(a)a secretary, executive officer or employee of the financial institution; or
(b)anyone who, under the Confiscation Act, is a director of the financial institution.

Part 3 Suspension orders

205Suspension order application

(1)A police officer may apply to a Supreme Court judge for an order (suspension order) directing a financial institution to give information to a police officer about a named person.
(2)The application—
(a)may be made without notice to any person; and
(b)must—
(i)be sworn and state the grounds on which the order is sought; and
(ii)include information required under the responsibilities code about any suspension orders issued within the previous year in relation to an account held with the financial institution by the named person.
(3)Subsection (2)(b)(ii) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the police officer otherwise actually knows.
(4)The judge may refuse to consider the application until the police officer gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

206Making of suspension order

The Supreme Court judge may make the suspension order only if satisfied there are reasonable grounds for suspecting that the person named in the application—
(a)has committed, or is about to commit, a confiscation offence; or
(b)was involved in the commission, or is about to be involved in the commission, of a confiscation offence; or
(c)has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a confiscation offence; or
(d)has been, or is about to be, involved in a serious crime related activity; or
(e)has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

207What suspension order must state

(1)The suspension order must order a financial institution—
(a)to notify a police officer immediately of any transaction that has been initiated in connection with an account held with the institution by a person named in the order; and
(b)to notify a police officer immediately if there are reasonable grounds for suspecting that a transaction is about to be initiated in connection with the account; and
(c)to refrain from completing or effecting the transaction for 48 hours, unless a named police officer gives the financial institution written consent to the transaction being completed immediately.
(2)In addition, the suspension order must state—
(a)the name or names in which the account is believed to be held; and
(b)the type of information the institution is required to give; and
(c)the period, of not more than 3 months from the date of its making, the order is in force; and
(d)that the order applies to transactions conducted during the period stated in the order; and
(e)that the information is to be given to any police officer or to a stated police officer and the way in which the information is to be given.

208When period stated in suspension order starts

A suspension order has effect from the time notice of the order is given to the financial institution.

209Contravention of suspension order

A financial institution that has been given notice of a suspension order must not knowingly—
(a)contravene the order; or
(b)provide false or misleading information in purported compliance with the order.

Maximum penalty—1,000 penalty units.

210Existence and operation of suspension order not to be disclosed

(1)A financial institution that is or has been subject to a suspension order must not disclose the existence or the operation of the order to any person other than—
(a)a police officer; or
(b)an officer or agent of the institution (an institution officer), for ensuring the order is complied with; or
(c)a lawyer, for obtaining legal advice or representation in relation to the order.
(2)A person to whom the existence or operation of a suspension order has been disclosed, whether under subsection (1) or under the provision as originally made or remade or otherwise, must not—
(a)while the person is a police officer, institution officer or lawyer, disclose the existence or operation of the order other than to another person to whom it may be disclosed under subsection (1) but only for—
(i)if the person is a police officer—performing the person’s duties; or
(ii)if the person is an institution officer—ensuring the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii)if the person is a lawyer—giving legal advice or making representations in relation to the order; or
(b)when the person is no longer a police officer, institution officer or lawyer, make a record of, or disclose, the existence or the operation of the order in any circumstances.
(3)Subsection (2) does not prevent a police officer disclosing the existence or operation of a suspension order—
(a)for, or in relation to, a legal proceeding; or
(b)in a proceeding before a court.
(4)A police officer can not be required to disclose to any court the existence or operation of a suspension order.
(5)A person who contravenes subsection (1) or (2) commits a crime.

Maximum penalty—350 penalty units or 7 years imprisonment.

(6)A reference in this section to disclosing the existence or operation of a suspension order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the suspension order.
(7)In this section—
officer, of a financial institution, means—
(a)a secretary, executive officer or employee of the financial institution; or
(b)anyone who, under the Confiscation Act, is a director of the financial institution.

Chapter 9 Covert searches

211Meaning of terrorist act and terrorism

(1)An action is a terrorist act if—
(a)it does any of the following—
(i)causes serious harm that is physical harm to a person;
(ii)causes serious damage to property;
(iii)causes a person’s death;
(iv)endangers the life of someone other than the person taking the action;
(v)creates a serious risk to the health or safety of the public or a section of the public;
(vi)seriously interferes with, seriously disrupts, or destroys an electronic system; and
(b)it is done with the intention of advancing a political, religious or ideological cause; and
(c)it is done with the intention of—
(i)coercing, or influencing by intimidation, the government of the Commonwealth, a State or a foreign country, or of part of a State or a foreign country; or
(ii)intimidating the public or a section of the public.
(2)A threat of action is a terrorist act if—
(a)the threatened action is likely to do anything mentioned in subsection (1)(a)(i) to (vi); and
(b)the threat is made with the intentions mentioned in subsection (1)(b) and (c).
(3)However, an action or threat of action is not a terrorist act if the action or threatened action—
(a)is advocacy, protest, dissent or industrial action; and
(b)is not intended—
(i)to cause serious harm that is physical harm to a person; or
(ii)to cause a person’s death; or
(iii)to endanger the life of a person, other than the person taking the action; or
(iv)to create a serious risk to the health or safety of the public or a section of the public.
(4)Terrorism is—
(a)criminal activity that involves a terrorist act; or
(b)something that is—
(i)preparatory to the commission of criminal activity that involves a terrorist act; or
(ii)undertaken to avoid detection of, or prosecution for, criminal activity that involves a terrorist act.
(5)A reference in this section to a person or property is a reference to a person or property wherever situated, within or outside the State (including within or outside Australia).
(6)In this section—
electronic system includes any of the following electronic systems—
(a)an information system;
(b)a telecommunications system;
(c)a financial system;
(d)a system used for the delivery of essential government services;
(e)a system used for, or by, an essential public utility;
(f)a system used for, or by, a transport system.
physical harm includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).
public includes the public of another State or of a country other than Australia.
serious harm means harm, including the cumulative effect of any harm, that—
(a)endangers, or is likely to endanger, a person’s life; or
(b)is, or is likely to be, significant and longstanding.
threat includes a threat made by conduct, whether express or implied and whether conditional or unconditional.

212Covert search warrant applications

(1)A police officer of at least the rank of inspector may apply to a Supreme Court judge for a warrant (covert search warrant) to enter and search a place for evidence of a designated offence, organised crime or terrorism.
(2)The application must—
(a)be sworn and state the grounds on which the warrant is sought; and
(b)include information required under the responsibilities code about any warrants issued within the previous year in relation to the place or person suspected of being involved in the designated offence, organised crime or terrorism to which the application relates.
(3)Subsection (2)(b) applies only to—
(a)information kept in a register that the police officer may inspect; and
(b)information the police officer otherwise actually knows.
(4)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(5)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

Example—

The judge may require additional information supporting the application to be given by statutory declaration.

213Who may be present at consideration of application

(1)The judge must hear an application for a covert search warrant in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge must hear the application—
(a)in the absence of the person who is the subject of the application (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

214Consideration of application

Before deciding the application the judge must, in particular, and being mindful of the highly intrusive nature of a covert search warrant, consider the following—
(a)the nature and seriousness of the suspected offence or terrorism;
(b)the extent to which issuing the warrant would help prevent, detect or provide evidence of, the offence or terrorism;
(c)the benefits derived from any previous covert search warrants, search warrants or surveillance device warrants in relation to the relevant person or place;
(d)the extent to which police officers investigating the matter have used or can use conventional ways of investigation;
(e)how much the use of conventional ways of investigation would be likely to help in the investigation of the matter;
(f)how much the use of conventional ways of investigation would prejudice the investigation of the matter;
(g)any submissions made by a monitor.

215Issue of covert search warrant

(1)After considering the application, the judge may issue the warrant for a period of not more than 30 days if satisfied there are reasonable grounds for believing evidence of a designated offence, organised crime or terrorism—
(a)is at the place; or
(b)is likely to be taken to the place within the next 72 hours.
(2)The judge may impose any conditions on the warrant that the judge considers are necessary in the public interest.

216What covert search warrant must state

A covert search warrant must state the following—
(a)that a police officer may exercise covert search powers under the warrant;
(b)the designated offence or organised crime related offence for which the warrant was issued or details of the terrorism for which the warrant was issued;
(c)any evidence or samples of evidence that may be seized under the warrant;
(d)that the warrant may be executed at any time of the day or night;
(e)that, if practicable, the search must be videotaped;
(f)the day and time the warrant starts and when the warrant ends;
(g)a report in relation to the warrant must be made under section 220 and to whom the report must be made.

217Duration and extension of covert search warrant

(1)A covert search warrant is in force until the earlier of the following—
(a)the day stated in the warrant;
(b)when the initial search is complete.
(2)However, the warrant may be extended from time to time on application.
(3)The provisions of this division for an application for a warrant apply to an application for an extension, with necessary changes.
(4)Despite the ending of the warrant under subsection (1), the police officer may continue to exercise powers under the warrant, but only to the extent necessary to return a thing seized under the warrant and taken to a place for a purpose mentioned in section 219(2)(a) or (b).

218Restriction about records and access to covert search warrant applications

(1)Despite the Recording of Evidence Act 1962, a transcript of an application for a covert search warrant and any order made on it must not be made.
(2)A person must not publish a report of a proceeding on an application for a covert search warrant or an extension of a covert search warrant.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)A person is not entitled to search information in the custody of the Supreme Court in relation to an application for a covert search warrant, unless a Supreme Court judge otherwise orders in the interests of justice.

219Powers under covert search warrant

(1)A police officer to whom a covert search warrant is directed may lawfully exercise the following powers under the warrant (covert search powers)—
(a)power to enter the place stated in the warrant (the relevant place), covertly or through subterfuge, as often as is reasonably necessary for the purposes of the warrant and stay on it for the time reasonably necessary;
(b)power to pass over, through, along or under another place to enter the relevant place;
(c)power to search the relevant place for anything sought under the warrant;
(d)power to open anything in the relevant place that is locked;
(e)power to seize a thing or part of a thing found on the relevant place that the police officer reasonably believes is evidence of the commission of a designated offence or an offence relating to organised crime stated in the warrant or terrorism;
(f)power to photograph anything the police officer reasonably believes may provide evidence of the commission of a designated offence or an offence relating to organised crime stated in the warrant or terrorism;
(g)power to inspect or test anything found on the place.
(2)Also, a police officer has the following powers under a covert search warrant if authorised under the warrant—
(a)power to take a thing, or part of a thing, seized under the warrant, as a sample, to a place with appropriate facilities for testing the thing for evidence of the commission of the designated offence or organised crime or of terrorism to which the warrant relates;
(b)power to do any of the following in relation to a vehicle a police officer enters under the warrant if the police officer reasonably suspects the vehicle has evidence of the commission of the designated offence or organised crime or of terrorism to which the warrant relates in or on it—
(i)seize the vehicle;
(ii)take the vehicle to a place with appropriate facilities for searching the vehicle;
(iii)remove walls, ceiling linings, panels or fittings of the vehicle for the purpose of searching the vehicle;
(iv)search the vehicle for evidence of the designated offence or organised crime or of terrorism to which the warrant relates.

220Report on covert search

(1)A police officer to whom a covert search warrant is issued, or who is primarily responsible for executing a covert search warrant, must make a report as required under this section.
(2)The report must be made to the Supreme Court judge who issued the warrant or to the public interest monitor as stated in the warrant.
(3)The report must be made within 7 days after the warrant is executed.
(4)If a report is given to the public interest monitor, the monitor may refer the report to a Supreme Court judge for the purpose of an order being made under subsection (6).
(5)If—
(a)the report is made to a Supreme Court judge; or
(b)the public interest monitor refers the report to a Supreme Court judge;

the police officer must, if practicable, also take before the judge anything seized under the warrant and any photograph taken during the search.

(6)On receiving a report, the judge may order that any thing seized under the warrant and any photograph taken during the search—
(a)be held by a police officer until any proceeding in which the thing may be evidence ends; or
(b)be dealt with in the way the judge orders.

Chapter 10 Controlled activities

221Object of ch 10

(1)The object of this chapter is to ensure the effective investigation of controlled activity offences by—
(a)ensuring anything that may be approved or authorised under this chapter is approved or authorised only in appropriate circumstances; and
(b)providing appropriate protection from civil and criminal liability for persons acting under this chapter; and
(c)clarifying the status of evidence obtained by persons who engage in controlled activities under this chapter.
(2)In this chapter—
controlled activity offence means—
(a)a seven year imprisonment offence; or
(b)an indictable offence mentioned in schedule 2; or
(c)an indictable or simple offence mentioned in schedule 5.

222Relationship to other laws and matters

(1)This chapter is not intended to affect any other law of this State that authorises, controls or monitors the conduct of activities—
(a)that are for the purpose of obtaining evidence that may lead to the prosecution of a person for an offence; and
(b)that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible.
(2)Also, this chapter is not intended to affect the investigation of minor matters or investigative activities that, by their nature, can not be planned but involve the participation of police officers in activities that may be unlawful.
(3)Subject to subsections (1) and (2), a controlled activity may be approved only under this chapter.

223Lawfulness of particular actions

To remove doubt, it is declared—
(a)that it is lawful for a police officer of at least the rank of inspector, acting in accordance with policies or procedures established by the commissioner, to authorise another police officer to engage in a stated controlled activity for the police service; and
(b)that it is lawful for a person acting under an authority given under section 224 to engage in a controlled activity in accordance with the authority and policies or procedures established by the commissioner.

224Authorised controlled activities

(1)This section applies if a police officer considers it is reasonably necessary for a police officer to engage in conduct that—
(a)is directed to obtaining evidence of the commission of a controlled activity offence against a person; and
(b)involves the following (a controlled activity)—
(i)1 or more meetings between the police officer and a person, whether or not the meetings were the result of a written or oral communication with the person;
(ii)deliberately concealing the true purpose of the communication between the police officer and the person;
(iii)the police officer engaging in conduct for which, apart from section 225, the police officer would be criminally responsible.
(2)A police officer of at least the rank of inspector (a senior police officer) may, in accordance with any policy of the police service, authorise another police officer to engage in a stated controlled activity.
(3)The authority must be written and state—
(a)the controlled activity the police officer is authorised to engage in; and
(b)the period, of not more than 7 days, for which the authority is in force.
(4)However, the senior police officer may authorise a police officer to engage in a controlled activity only if, having regard to the nature or extent of the relevant controlled activity offence, authorising a controlled activity is appropriate in the particular circumstances.
(5)A police officer authorised to engage in the controlled activity must comply with any relevant policy or procedure of the police service.
(6)In this section—
conduct includes any act or omission.

225Protection from liability

(1)This section applies to each of the following persons (a relevant person)—
(a)a person who authorised a controlled activity under section 224;
(b)a person who is or was authorised under this chapter to engage in a controlled activity.
(2)A relevant person does not incur civil liability for an act done, or omission made, in the honest belief that it was done or omitted to be done under this chapter.
(3)If subsection (2) prevents a civil liability attaching to the person, the liability attaches instead to the State.
(4)Also, a relevant person does not incur criminal liability for an act done, or omission made—
(a)under an authority given for a controlled activity; and
(b)in accordance with the policy or procedure about controlled activities applying to the particular controlled activity.
(5)In addition, a relevant person does not incur criminal liability for an act done, or omission made, that, because of a controlled activity, was reasonably necessary for protecting the safety of any person.
(6)However, subsection (5) does not relieve a police officer from criminal liability for an act done or omission made if the act or omission results in—
(a)injury to, or the death of, a person; or
(b)serious damage to property; or
(c)a serious loss of property.
(7)This section does not limit the Police Service Administration Act 1990, section 10.5.

226Admissibility of evidence obtained through controlled activities

It is declared that evidence gathered because of a controlled activity is not inadmissible only because it was obtained by a person while engaging in an unlawful act if the unlawful act was authorised under this chapter.

227Evidentiary provision

In a proceeding, a certificate of the commissioner that on a stated day a stated person approved the conduct of a stated controlled activity is evidence of the things it states.

Chapter 11 Controlled operations

Part 1 Preliminary

228Purposes of ch 11

The main purposes of this chapter are—
(a)to provide for the authorisation, conduct and monitoring of controlled operations, including operations conducted in this and 1 or more other jurisdictions, for the purpose of obtaining evidence that may lead to the prosecution of persons for particular offences and that involve or may involve conduct for which participants in the operation would, apart from this chapter, be criminally responsible; and
(b)to facilitate the recognition of things done in relation to controlled operations authorised under laws of other jurisdictions corresponding to this chapter; and
(c)to ensure, as far as practicable, only appropriately trained persons may act as participants in authorised operations; and
(d)to ensure a person who may act as a participant in an authorised operation engages in otherwise unlawful activities only as part of the authorised operation; and
(e)to provide appropriate protection from civil and criminal liability for persons acting under this chapter; and
(f)to clarify the status of evidence obtained by participants in authorised operations.

229Definitions for ch 11

In this chapter—
authorised operation means a controlled operation for which an authority is in force.
authority means an authority in force under part 3, and includes any variation of an authority.
civilian participant in an authorised operation means a participant in the operation who is not a law enforcement officer.
committee means the controlled operations committee established under section 232.
conduct includes any act or omission.
controlled conduct means conduct for which a person would, apart from section 258 or 265, be criminally responsible.
controlled operation means an operation that—
(a)is conducted, or intended to be conducted, for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence; and
(b)involves, or may involve, controlled conduct.
corresponding authorised operation means an operation in the nature of a controlled operation that is authorised by or under the provisions of a corresponding law.
corresponding authority means an authority authorising a controlled operation, within the meaning of a corresponding law, that is in force under the corresponding law.
corresponding participant means a person who is authorised by a corresponding authority to participate in a corresponding authorised operation.
criminal activity means conduct that involves the commission of an offence by 1 or more persons.
formal application see section 239(2)(a).
formal authority see section 245(1)(a).
formal variation application see section 248(3)(a).
formal variation of authority see section 253(1)(a).
illicit goods means goods the possession of which is a contravention of the law of this jurisdiction.
inspection entity, for a law enforcement agency, means—
(a)for the police service—the independent member of the committee; or
(b)for the CCC—the parliamentary commissioner.
law enforcement participant in an authorised operation—
(a)generally—means a participant in the operation who is a law enforcement officer; and
(b)for an authorised operation being conducted for the CCC—includes a participant in the operation who is a law enforcement officer of a declared agency engaged by the CCC for the operation.
participant in an authorised operation means a person who is authorised under this chapter to engage in controlled conduct for the purposes of the operation.
principal law enforcement officer for an authorised operation means the law enforcement officer who is responsible for the conduct of the operation.
relevant offence means—
(a)a seven year imprisonment offence; or
(b)an indictable offence included in schedule 2.
report entity, for a law enforcement agency, means—
(a)for the police service—the independent member of the committee; or
(b)for the CCC—the parliamentary commissioner.
suspect means a person reasonably suspected of having committed or being likely to have committed, or of committing or being likely to be committing, a relevant offence.
urgent application see section 239(2)(b).
urgent authority see section 245(1)(b).
urgent variation application see section 248(3)(b).
urgent variation of authority see section 253(1)(b).

230Relationship to other laws and matters

(1)This chapter is not intended to affect any other law of this jurisdiction that authorises, controls or monitors the conduct of operations entirely within this jurisdiction—
(a)that are for the purpose of obtaining evidence that may lead to the prosecution of a person for a relevant offence; and
(b)that involve, or may involve, conduct for which participants in the operation would otherwise be criminally responsible.
(2)Also, this chapter does not affect the Crime and Corruption Act 2001, chapter 3, part 6A.
(3)Also, this chapter is not intended to affect the investigation of minor matters or investigative activities in Queensland that, by their nature, can not be planned but involve the participation of law enforcement officers in activities that may be unlawful.
(4)Subject to subsections (1) to (3), a controlled operation may be approved only under this chapter.
(5)A function conferred in relation to the activities of the CCC under this chapter is only conferred for the purpose of a function conferred on the CCC under the Crime and Corruption Act 2001 relating to major crime as defined under that Act.
(6)In deciding whether evidence should be admitted or excluded in any proceeding, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if—
(a)the person was a participant or corresponding participant acting in the course of an authorised operation or corresponding authorised operation; and
(b)the criminal activity was—
(i)controlled conduct as defined under this chapter or controlled conduct as defined under a corresponding law; or
(ii)conduct for which the person is not criminally responsible because of section 258(2) or a corresponding provision of a corresponding law.
(7)In this section—
function includes power.

231When a controlled operation is conducted in this jurisdiction

For this chapter, a controlled operation in relation to a relevant offence is taken to be conducted in this jurisdiction, whether or not it is also conducted in another jurisdiction, if a participant in the operation is a law enforcement officer of this jurisdiction.

Note—

This provision is intended to cover the situation where an officer of this jurisdiction is conducting an operation in another jurisdiction for the purposes of investigating an offence of this jurisdiction, for example, a Queensland officer is investigating a conspiracy to import drugs into Queensland from New South Wales, and the operation is to be conducted entirely in New South Wales.

Part 2 Controlled operations committee

Division 1 Establishment

232Establishment of controlled operations committee

(1)The controlled operations committee is established.
(2)The committee must include—
(a)an independent member; and
(b)the commissioner or the commissioner’s nominee; and
(c)the CCC chairperson or the chairperson’s nominee.
(3)The committee may also include anyone else the commissioner considers has appropriate knowledge or experience relevant to the performance of the committee’s functions.

233Independent member

(1)The Minister may appoint a retired Supreme Court or District Court judge to be the independent member of the committee.
(2)Before appointing the independent member, the Minister must consult with the Premier and the Attorney-General about the proposed appointment.

234Acting independent member

(1)The Minister may appoint a retired Supreme Court or District Court judge to act as the independent member—
(a)during any vacancy in the office; or
(b)during any period, or all periods, when the independent member is absent from duty or from the State or, for another reason, can not perform the duties of the office.
(2)Before appointing the acting independent member, the Minister must consult with the Premier and the Attorney-General about the proposed appointment.

Division 2 Functions, business and recommendations

235Committee functions

The committee has the following functions—
(a)to consider, and make recommendations about, applications referred to the committee by a chief executive officer for—
(i)an authority to conduct a controlled operation; or
(ii)variation of an authority for a controlled operation;
(b)any other function conferred on it under this or another Act.

236Committee business

(1)The committee may conduct its business only if the independent member is present.
(2)The committee may otherwise conduct its business, including its meetings, in the way it considers appropriate.
(3)The independent member is the chairperson of the committee.
(4)The chairperson must record the committee recommendations in the way the chairperson considers appropriate.

237Committee recommendations

(1)After considering an application and any other relevant material referred to it by a chief executive officer, the committee may recommend that the officer grant or refuse to grant authority for a particular controlled operation.
(2)However, the committee may recommend the grant of authority for a controlled operation only if satisfied, having regard to the nature and seriousness of the offence being or to be investigated, it is appropriate for persons to engage in controlled conduct for the purposes of gathering evidence that may lead to the conviction of a person for the offence.

Division 3 Protection

238Protection for committee members

(1)A member of the committee does not incur civil liability for an act done, or omission made, under this chapter.
(2)If subsection (1) prevents a civil liability attaching to a member of the committee, the liability attaches instead to the State.
(3)Also, a member of the committee does not incur criminal liability for an act done, or omission made in accordance with an authority given for a controlled operation under this chapter because of a recommendation made by the committee.

Part 3 Authorisation of controlled operations

Division 1 Procedure for authorising controlled operations

239Application for authority to conduct controlled operation

(1)A law enforcement officer of a law enforcement agency may apply to the chief executive officer of the agency for authority to conduct a controlled operation on behalf of the agency.
(2)An application for an authority may be made—
(a)by way of a written document signed by the applicant (a formal application); or
(b)if the applicant reasonably believes that the delay caused by making a formal application may affect the success of the operation—orally in person or under section 800 (an urgent application).
(3)Nothing in this part prevents an application for an authority being made for a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.
(4)In an application, whether formal or urgent, the applicant must—
(a)provide sufficient information to enable the chief executive officer to decide whether or not to grant the application; and
(b)state—
(i)whether or not the proposed operation, or any other controlled operation in relation to the same criminal activity, has been the subject of an earlier application for an authority or variation of an authority; and
(ii)if the proposed operation, or any other controlled operation in relation to the same criminal activity, has been the subject of an earlier application for an authority or variation of an authority, whether or not the authority was given or variation granted; and
(iii)if the authority was given, the type of controlled operation authorised.
(5)In particular, the information mentioned in subsection (4)(a) must include the following for the proposed operation—
(a)an identifying name or number;
(b)a description of the criminal activity in relation to which it is proposed to conduct the operation;
(c)the name of each person who it is intended will act as a participant in the operation;
(d)a precise description of the controlled conduct a civilian participant will be required to engage in for the operation;
(e)a general description of the controlled conduct a law enforcement participant will be required to engage in for the operation.
(6)The chief executive officer may require the applicant to give additional information about the proposed controlled operation the chief executive officer considers appropriate for consideration of the application.
(7)As soon as practicable after making an urgent application, the applicant must make a record in writing of the application and give a copy of it to the chief executive officer.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

240Application must be referred to committee

(1)The chief executive officer must refer the application to the committee without deciding the application.
(2)However, if the chief executive officer considers the application does not have enough merit to justify referring it to the committee, the chief executive officer may refuse to refer the application to the committee.
(3)This section is subject to sections 241 and 242.

241Particular CCC controlled operations

(1)This section applies to an application made to the CCC chairperson for authority to conduct a controlled operation if a person to be investigated by the CCC under the proposed controlled operation is or may be a police officer.
(2)The chairperson may grant the authority without referring the application to the committee but, before granting the authority, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed operation.
(3)However, the chairperson may grant an authority on an urgent application made to the chairperson without complying with subsection (2), but must consult with the independent member about the controlled operation as soon as possible after granting the authority.
(4)Sections 243 and 244(2) do not apply to an application under this section.

242Procedure in urgent circumstances other than if s 241 applies

(1)This section applies to an urgent application for authority to conduct a controlled operation made to a chief executive officer.
(2)However, this section does not apply if section 241 applies.
(3)The chief executive officer may grant the authority without referring the application to the committee, but must refer the application to the committee as soon as practicable after granting the authority.
(4)Sections 243 and 244(2) do not apply to an application under this section.
(5)The committee may consider the application as if the application had not been granted.
(6)The chief executive officer must consider the committee’s recommendations on the application but is not bound by the recommendations.

243Deciding application

After considering an application for authority to conduct a controlled operation, any additional information given under section 239(6), and any recommendations of the committee, the chief executive officer—
(a)may authorise the operation by granting the authority, with or without conditions; or
(b)may refuse the application.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

244Matters to be taken into account

(1)An authority to conduct a controlled operation may not be granted unless the chief executive officer is satisfied on reasonable grounds—
(a)that a relevant offence has been, is being, or is likely to be committed; and
(b)that the nature and extent of the suspected criminal activity justifies the conduct of a controlled operation—
(i)in this jurisdiction; or
(ii)in this jurisdiction and a participating jurisdiction, if the controlled operation will be or is likely to be conducted in those jurisdictions; and
(c)that any unlawful conduct involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and
(d)that the operation will be conducted in a way that will minimise the risk of more illicit goods being under the control of persons, other than law enforcement officers, at the end of the operation than are reasonably necessary to enable the officers to achieve the purpose of the controlled operation; and
(e)that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of part 5 to be complied with; and
(f)that the operation will not be conducted in a way that makes it likely for a person to be induced to commit an offence against a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and
(g)that any conduct involved in the operation will not—
(i)seriously endanger the health or safety of any person; or
(ii)cause the death of, or serious injury to, any person; or
(iii)involve the commission of a sexual offence against any person; or
(iv)result in serious loss of or serious damage to property, other than illicit goods; and
(h)that any role given to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer; and
(i)that any proposed participant in the operation has received appropriate training for the purpose.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.
(2)Also, the chief executive officer must not grant authority for a controlled operation unless the committee has recommended that the authority be granted.

245Form of authority

(1)An authority to conduct a controlled operation may be granted—
(a)by way of a written document, signed by the chief executive officer (a formal authority); or
(b)if the chief executive officer is satisfied that the delay caused by granting a formal authority may affect the success of the operation—orally in person or under section 801 (an urgent authority).
(2)This part does not stop an authority being granted for a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority.
(3)An authority, whether formal or urgent, must—
(a)state an identifying name or number for the operation; and
(b)state the name and rank or position of the person granting the authority; and
(c)state the name of the principal law enforcement officer for the operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(d)state whether the application was a formal application or an urgent application; and
(e)identify each person who may engage in controlled conduct for the purposes of the operation; and
(f)state the participating jurisdiction in which the controlled conduct is, or is likely to be, engaged in; and
(g)identify the nature of the criminal activity, including the suspected relevant offences, in relation to which the controlled conduct is to be engaged in; and
(h)identify—
(i)in relation to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii)in relation to the civilian participants, the particular controlled conduct, if any, that each of the participants may engage in; and
(i)identify, to the extent known, any suspect; and
(j)state the period of validity of the authority, of not more than 6 months for a formal authority or 7 days for an urgent authority; and
(k)state any conditions to which the conduct of the operation is subject; and
(l)state the date and time when the authority is granted; and
(m)identify, to the extent known—
(i)the nature and quantity of any illicit goods that will be involved in the operation; and
(ii)the route through which those goods will pass in the course of the operation.
(4)A person is sufficiently identified for subsection (3)(e) if the person is identified—
(a)by an assumed name under which the person is operating; or
(b)by a code name or code number;

if the assumed name, code name or code number can be matched to the person’s identity.

(5)The chief executive officer must ensure that written notes are kept of the particulars mentioned in subsection (3) for each urgent authority and issue a written authority to the applicant as soon as practicable.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

246Duration of authority

Unless it is sooner cancelled, an authority has effect for the period of validity stated in it under section 245(3)(j).

Division 2 Variation and cancellation of authorities

247Variation of authority

(1)The chief executive officer may vary an authority granted by the chief executive officer—
(a)at any time on the chief executive officer’s own initiative; or
(b)on application under section 248.
(2)However, a variation can not be made that has the effect of extending the period of validity of an urgent authority.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

248Application for variation of authority

(1)The principal law enforcement officer for an authorised operation, or any other law enforcement officer on behalf of the principal law enforcement officer, may apply to the chief executive officer for a variation of authority for any 1 or more of the following purposes—
(a)to extend the period of validity of the authority, other than as provided by section 247(2);
(b)to authorise additional or alternative persons to engage in controlled conduct for the purposes of the operation;
(c)to authorise participants in the operation to engage in additional or alternative controlled conduct;
(d)to identify additional suspects, to the extent known.
(2)More than 1 application for a variation may be made in relation to the same authority, but no single variation may extend the period of validity of an authority for more than 6 months at a time.
(3)An application for a variation of an authority may be made—
(a)by way of a written document signed by the applicant (a formal variation application); or
(b)if the applicant reasonably believes that the delay caused by making a formal application for variation may affect the success of the operation—orally in person or under section 800 (an urgent variation application).
(4)In an application, whether formal or urgent, the applicant must state—
(a)sufficient information to enable the chief executive officer to decide whether or not to grant the application; and
(b)whether or not the proposed variation, or any other variation in relation to the same authorised operation, has been the subject of an earlier application for a variation; and
(c)if the proposed variation, or any other variation in relation to the same authorised operation, has been the subject of an earlier application for a variation—
(i)whether or not the variation was granted; and
(ii)if the variation was granted, the type of variation granted.
(5)The chief executive officer may require the applicant to give additional information about the proposed variation the chief executive officer considers appropriate for consideration of the application.

249Variation must be referred to committee

(1)The chief executive officer must refer the proposed variation to the committee without deciding it, whether the chief executive officer is acting under section 247(1)(a) or (b).
(2)However, if—
(a)the chief executive officer is acting under section 247(1)(b); and
(b)the chief executive officer considers the application does not have enough merit to justify referring it to the committee;

the chief executive officer may refuse to refer the application to the committee.

(3)This section is subject to sections 250 and 251.

250Particular CCC controlled operations

(1)This section applies if—
(a)an application for the variation of an authority for a controlled operation is made to the CCC chairperson under section 248; and
(b)the chairperson had granted the authority because the operation related to a person who was or who might be a police officer.
(2)The chairperson may vary the authority without referring the application to the committee but, before varying the authority, the chairperson must consult with the independent member and obtain the independent member’s agreement to the proposed variation.
(3)However, the chairperson may vary an authority on an application made to the chairperson in urgent circumstances without complying with subsection (2), but must consult with the independent member about the variation as soon as possible after granting it.

251Procedure in urgent circumstances other than if s 250 applies

(1)This section applies to an application for the variation of an authority for a controlled operation made to a chief executive officer in urgent circumstances.
(2)However, this section does not apply if section 250 applies.
(3)The chief executive officer may grant the application without referring it to the committee, but must refer the application to the committee as soon as practicable after granting it.
(4)The committee may consider the application as if the application had not been granted.
(5)Section 252(1) and (3) do not apply to the grant of a variation of an authority under this section.
(6)The chief executive officer must consider the committee’s recommendations on the application but is not bound by the recommendations.
(7)A variation under subsection (3) may only take effect for a maximum period of 7 days decided by the chief executive officer.

252Deciding the application to vary the authority

(1)After considering an application for a variation of authority, any additional information given under section 248(5), and any recommendations of the committee, the chief executive officer—
(a)may vary the authority in accordance with the application, with or without conditions; or
(b)may refuse the application.
(2)Section 244(1) applies to an application for a variation of authority under this division in the same way as it applies to an application for authority under section 239.
(3)Without limiting subsection (2), a variation of an authority may not be granted—
(a)unless the chief executive officer is satisfied on reasonable grounds that the variation will not authorise a significant change to the nature of the authorised operation concerned; and
(b)unless the committee has recommended the application be granted.

253Way to vary authority

(1)An authority may be varied, on application or otherwise, only—
(a)by way of a written document signed by the chief executive officer (a formal variation of authority); or
(b)if the person granting the variation is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation—orally in person or under section 801 (an urgent variation of authority).
(2)The chief executive officer—
(a)must ensure that written notes are kept of—
(i)the date and time when the authority was varied; and
(ii)the identity of the law enforcement officer to whom the variation of authority was granted; and
(b)must, as soon as practicable, prepare and give to the applicant a written document that complies with section 254.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

254Form of variation of authority

A variation of authority, whether formal or urgent, must state—
(a)an identifying name or number for the operation; and
(b)the name and rank or position of the person granting the variation of authority; and
(c)the date and time when the authority was varied; and
(d)the provision of this chapter under which the variation was made; and
(e)the period for which the variation has effect; and
(f)if the variation is made under section 248
(i)the name of the applicant; and
(ii)whether the application was a formal variation application or an urgent variation application; and
(g)a description of the variation having regard to the purposes mentioned in section 248(1) for which the application was made.

255Cancellation of authority

(1)The chief executive officer may, by notice in writing given to the principal law enforcement officer for an authorised operation, cancel the authority at any time and for any reason.
(2)Without limiting subsection (1), the chief executive officer may cancel an authority for an authorised operation at any time at the request of the principal law enforcement officer for the operation.
(3)Cancellation of an authority for a controlled operation takes effect at the time the notice is given or at the later time stated in the notice.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

Division 3 Effect of authority

256Effect of authority

(1)While it has effect, an authority for a controlled operation—
(a)authorises each law enforcement participant to engage in the controlled conduct stated in the authority in relation to the law enforcement participants; and
(b)authorises each civilian participant, if any, to engage in the particular controlled conduct, if any, stated in the authority in relation to that participant; and
(c)authorises each participant to engage in that conduct in this jurisdiction or any participating jurisdiction, subject to the corresponding law of the participating jurisdiction.
(2)The authority to engage in controlled conduct given to a participant can not be delegated to any other person.

257Defect in authority

An application for authority or variation of authority, and any authority or variation of authority granted on the basis of that type of application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.

Part 4 Conduct of controlled operations

Division 1 Controlled conduct engaged in for controlled operations

258Protection from criminal responsibility for controlled conduct during authorised operations

(1)Despite any other Act or law of this jurisdiction, a participant who engages in conduct, whether in this jurisdiction or elsewhere, in an authorised operation in the course of, and for the purposes of, the operation, is not, if engaging in that conduct is an offence, criminally responsible for the offence, if—
(a)the conduct is authorised by, and is engaged in, in accordance with, the authority for the operation; and
(b)the conduct does not involve the participant intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and
(c)the conduct does not involve the participant engaging in any conduct that is likely to—
(i)cause the death of, or serious injury to, any person; or
(ii)involve the commission of a sexual offence against any person; and
(d)if the participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer.
(2)Also, a law enforcement officer is not criminally responsible for conduct that, because of an authorised operation, was reasonably necessary to—
(a)protect the safety of any person; or
(b)protect the identity of a participant; or
(c)take advantage of an opportunity to gather evidence about a relevant offence not mentioned in the authority.
(3)However, subsection (2) does not relieve a law enforcement officer from criminal responsibility for conduct if the conduct results in—
(a)injury to, or the death of, a person; or
(b)serious damage to property; or
(c)a serious loss of property; or
(d)a person being encouraged or induced by the officer to engage in criminal activity of a kind the person could not reasonably be expected to have engaged in if not encouraged or induced by the officer to engage in it.

259Indemnification of participants against civil liability

(1)This section applies to a law enforcement agency if a controlled operation has been authorised by the chief executive officer of the agency under section 241, 242 or 243.
(2)The law enforcement agency must indemnify a participant in the authorised operation against any civil liability, including reasonable costs, the participant incurs because of conduct the participant engages in if—
(a)the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority for the operation; and
(b)the conduct does not involve the participant intentionally inducing a person to commit an offence under a law of any jurisdiction or the Commonwealth that the person would not otherwise have intended to commit; and
(c)the conduct does not involve the participant engaging in any conduct that is likely to—
(i)cause the death of, or serious injury to, any person; or
(ii)involve the commission of a sexual offence against any person; and
(d)if the participant is a civilian participant—the participant acts in accordance with the instructions of a law enforcement officer; and
(e)the requirements, if any, stated under a regulation have been met.

260Effect of ss 258259 on other laws relating to criminal investigation

Sections 258 and 259 do not apply to a person’s conduct that is, or could have been, authorised under this Act, apart from this chapter or another law of this jurisdiction, about the following—
(a)arrest or detention of individuals;
(b)searches of individuals;
(c)entry onto, or searches or inspection of, premises;
(d)searches, inspections or seizures of other property;
(e)forensic procedures;
(f)electronic surveillance devices;
(g)identification procedures;
(h)the acquisition or use of assumed identities;
(i)any other matter about powers of criminal investigation.

261Effect of being unaware of variation or cancellation of authority

(1)If an authority for a controlled operation is varied in a way that limits its scope, this part continues to apply to a participant in the operation as if the authority had not been varied in that way, for as long as the participant—
(a)is unaware of the variation; and
(b)is not reckless about the existence of the variation.
(2)If an authority for a controlled operation is cancelled, this part continues to apply to a participant in the operation as if the authority had not been cancelled, for as long as the participant—
(a)is unaware of the cancellation; and
(b)is not reckless about the existence of the cancellation.
(3)For this section, a person is reckless about the existence of the variation or cancellation of an authority if—
(a)the person is aware of a substantial risk that the variation or cancellation has happened; and
(b)having regard to the circumstances known to the person, it is unjustifiable to continue to engage in conduct that was, but may no longer be, authorised by the authority because of the variation or cancellation.

262Protection from criminal responsibility for particular ancillary conduct

(1)This section applies to conduct, for example aiding or enabling the commission of an offence or conspiring to commit an offence (ancillary conduct), for which a person may be criminally responsible because it involves conduct engaged in by another person that is controlled conduct for which the other person would, apart from section 258, be criminally responsible (the related controlled conduct).

Note—

The Criminal Code, section 7(1)(b) and (c) makes provision for a person who aids or enables the commission of an offence, and the Criminal Code, chapter 56, makes provision for conspiracy.
(2)Despite any other Act or law of this jurisdiction, a person who engages in ancillary conduct that is an offence, whether or not the person is a participant in a controlled operation, is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct the person believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in an authorised operation.

Division 2 Compensation and notification of third parties

263Compensation for property loss or serious damage

(1)If a person suffers loss of or serious damage to property as a direct result of an authorised operation conducted by the police service or the CCC, the State is liable to pay to the person compensation as agreed between the State and the person or, in default of agreement, as decided by civil proceedings for a debt of the amount claimed.
(2)However, if, apart from subsection (1), section 804 would apply in relation to the loss or damage, the person must apply for compensation, and the compensation is to be decided, under section 804 and not under this section.
(3)Subsection (1) does not apply if—
(a)the person suffered the loss or damage in the course of, or as a direct result of, engaging in any criminal activity, other than criminal activity that is controlled conduct; or
(b)the person was a law enforcement officer at the time of suffering the loss or damage.

264Notification requirements

(1)If any loss of or serious damage to property happens in the course of or as a direct result of an authorised operation, the principal law enforcement officer for the operation must report the loss or damage to the chief executive officer of the law enforcement agency as soon as practicable.
(2)The chief executive officer must take all reasonable steps to notify the owner of the property of the loss or damage.
(3)The chief executive officer is not required to notify the owner of property under this section until the chief executive officer is satisfied that notification would not—
(a)compromise or hinder the authorised operation; or
(b)compromise the identity of a participant in the authorised operation; or
(c)endanger the life or safety of any person; or
(d)prejudice any legal proceeding; or
(e)otherwise be contrary to the public interest.
(4)Subsection (1) does not apply to property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation.
(5)If any personal injury happens in the course of or as a direct result of an authorised operation, the principal law enforcement officer for the operation must report the injury to the chief executive of the law enforcement agency as soon as possible.

Note—

The chief executive officer may delegate powers under this section—see part 6, division 1.

Division 3 Recognition of corresponding authorities

265Recognition of corresponding authorities

The following provisions apply, with any necessary changes, to a corresponding authority under a corresponding law, and to a corresponding authorised operation under that law, as if the corresponding authority were an authority given under section 243 for a controlled operation—
(a)section 256 (Effect of authority);
(b)section 257 (Defect in authority);
(c)section 258(1) (Protection from criminal responsibility for controlled conduct during authorised operations);
(d)section 259 (Indemnification of participants against civil liability);
(e)section 260 (Effect of ss 258259 on other laws relating to criminal investigation);
(f)section 261 (Effect of being unaware of variation or cancellation of authority);
(g)section 262 (Protection from criminal responsibility for particular ancillary conduct).

Part 5 Compliance and monitoring

Division 1 Information restrictions

266Unauthorised disclosure of information

(1)A person commits an offence if—
(a)the person intentionally, knowingly or recklessly discloses any information; and
(b)the person knows that, or is reckless as to whether, the information relates to an authorised operation or a corresponding authorised operation; and
(c)the person knows that, or is reckless as to whether, the disclosure is not made—
(i)with the approval of the chief executive officer of the relevant law enforcement agency; or
(ii)in connection with the administration or execution of this chapter or a corresponding law; or
(iii)for the purposes of any legal proceeding arising out of or otherwise related to this chapter or a corresponding law or of any report of the proceeding; or
(iv)under any requirement imposed by law; or
(v)under another law.

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—
(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an authorised operation or a corresponding authorised operation; or
(b)knows that, or is reckless as to whether, the disclosure of the information—
(i)endangers or will endanger the health or safety of any person; or
(ii)prejudices or will prejudice the effective conduct of an authorised operation or a corresponding authorised operation.

Maximum penalty—10 years imprisonment.

(3)This section does not affect section 803 or the Crime and Corruption Act 2001, section 213(4).
(4)In this section—
relevant law enforcement agency, for a controlled operation, means the law enforcement agency whose officer was granted an authority to conduct the operation.

Division 2 Reporting and record keeping

267Principal law enforcement officer’s reports

(1)Within 2 months after the end of an authorised operation, the principal law enforcement officer for the operation must give a report under this section to the chief executive officer of the law enforcement agency.
(2)The report must include the following details—
(a)the date and time when the operation began and its duration;
(b)whether the operation was conducted in this jurisdiction or in this jurisdiction and a participating jurisdiction;
(c)the nature of the controlled conduct engaged in for the purposes of the operation;
(d)details of the outcome of the operation;
(e)if the operation involved illicit goods, a statement, to the extent known, of—
(i)the nature and quantity of the illicit goods; and
(ii)the route through which the illicit goods passed in the course of the operation;
(f)details of any loss of or serious damage to property, or any personal injuries, happening in the course of or as a direct result of the operation;
(g)details of any opportunity taken to gather evidence to which section 258(2)(c) applies.

268Chief executive officers’ reports

(1)As soon as practicable after 31 March and 30 September in each year, the chief executive officer of each law enforcement agency must give a report to the report entity for the agency stating the details required by subsection (2) for authorised operations conducted on behalf of the agency during the preceding 6 months.
(2)The report must include the following details—
(a)the number of formal authorities that have been granted or varied by the chief executive officer, and the number of formal applications for the granting or variation of authorities that have been refused by the chief executive officer, during the period of the report;
(b)the number of urgent authorities or urgent variations of authorities that have been granted by the chief executive officer, and the number of urgent applications for authorities or urgent variations of authorities that have been refused by the chief executive officer, during the period of the report;
(c)the nature of the criminal activities against which the authorised operations were directed;
(d)the nature of the controlled conduct engaged in for the purposes of the authorised operations;
(e)if any of the authorised operations involved illicit goods, a statement, to the extent known, of—
(i)the nature and quantity of the illicit goods; and
(ii)the route through which the illicit goods passed in the course of the operations;
(f)details of any loss of or serious damage to property, or any personal injuries, happening in the course of or as a direct result of the authorised operations;
(g)details of any opportunity taken to gather evidence to which section 258(2)(c) applies;
(h)the number of authorities cancelled by the chief executive officer or that have expired during the period to which the report relates.
(3)The details mentioned in subsection (2) must be classified into controlled operations conducted in this jurisdiction or conducted in this jurisdiction and a participating jurisdiction.
(4)The report entity may require the chief executive officer to give additional information about any authorised operation to which a report relates.
(5)Subsection (2)(d) or (e) does not require particulars of an authorised operation to be included in a report for a period of 6 months if the operation had not ended during that period.
(6)However, the particulars must instead be included in the report for the period of 6 months in which the operation ends.

269Annual report by report entity

(1)The report entity for a law enforcement agency must, as soon as practicable after 30 June in each year, prepare a report of the work and activities of the law enforcement agency under this chapter for the preceding 12 months.
(2)The report entity must give a copy of the report to the chief executive officer of the agency and—
(a)if the agency is the police service—the Minister; or
(b)if the agency is the CCC—the parliamentary committee chairperson.
(3)The report—
(a)must include comments on the comprehensiveness and adequacy of the reports that were given to the report entity by the chief executive officer of the law enforcement agency under section 268; and
(b)must not disclose any information that identifies any suspect or a participant in an operation or that is likely to lead to the person or participant being identified.
(4)The chief executive officer must advise the Minister or parliamentary committee chairperson of any information in the report that, in the chief executive officer’s opinion, should be excluded from the report before the report is tabled in the Legislative Assembly because the information, if made public, could reasonably be expected to—
(a)endanger a person’s safety; or
(b)prejudice an investigation or prosecution; or
(c)compromise any law enforcement agency’s operational activities or methodologies.
(5)The Minister or parliamentary committee chairperson must exclude information from the report if satisfied on the advice of the chief executive officer of any of the grounds mentioned in subsection (4).
(6)The Minister or chairperson must table the report in the Legislative Assembly within 14 sitting days after receiving the report.
(7)This section does not require particulars of an authorised operation to be included in a report for a year if the operation had not ended as at 30 June in that year.
(8)However, the particulars must instead be included in the report for the year in which the operation ends.

270Keeping documents connected with authorised operations

The chief executive officer of a law enforcement agency must cause to be kept—
(a)each formal application made by a law enforcement officer of the agency; and
(b)each formal authority granted to a law enforcement officer of the agency; and
(c)all written notes made under section 245(5); and
(d)each formal variation application made by a law enforcement officer of the agency; and
(e)each formal variation of authority granted to a law enforcement officer of the agency; and
(f)each notice cancelling an authority granted to a law enforcement officer of the agency; and
(g)all written notes made under section 253(2)(a); and
(h)each report of a principal law enforcement officer of the agency under section 264 or 267; and
(i)each recommendation made by the committee in relation to an application for an authority or a variation of an authority.

271General register

(1)The chief executive officer of a law enforcement agency must cause a general register to be kept.
(2)The register must be or form part of the register of covert acts kept under chapter 21, part 2.

Division 3 Inspections

272Inspection of records

(1)The inspection entity for a law enforcement agency must, from time to time and at least once every 12 months, inspect the records of the agency to find out the extent of compliance by the agency and law enforcement officers of the agency with this chapter and chapter 21, part 2, to the extent it applies to activities under this chapter.
(2)For an inspection under this section, the inspection entity—
(a)after notifying the chief executive officer of the agency, may enter at any reasonable time premises occupied by the agency; and
(b)is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c)may require a member of staff of the agency to give the inspection entity any information that the inspection entity considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection.
(3)The chief executive officer must ensure that members of staff of the agency give the inspection entity any help the inspection entity reasonably requires to enable the inspection entity to perform functions under this section.
(4)This section does not limit the parliamentary commissioner’s powers under the Crime and Corruption Act 2001, chapter 6, part 4, division 4 in relation to the functions of the CCC.

Part 6 General

Division 1 Delegation

273Delegation generally

Other than as provided by this division, and despite any other Act or law to the contrary, the powers of a chief executive officer under this chapter may not be delegated to any other person.

274Delegation—commissioner

The commissioner may delegate any of the commissioner’s powers under this chapter as chief executive officer relating to the authorisation of controlled operations, including the variation and cancellation of authorities for controlled operations and notifications under section 264(2), to—
(a)a person for the time being performing functions in the police service as a deputy commissioner of the police service; or
(b)the person for the time being performing functions in the police service as the assistant commissioner of the police service responsible for crime operations.

275Delegation—CCC chairperson

(1)The CCC chairperson may delegate any of the chairperson’s powers under this chapter as chief executive officer relating to the authorisation of controlled operations, including the variation and cancellation of authorities for controlled operations and notifications under section 264(2), to a CCC senior executive officer.
(2)However, subsection (1) does not authorise the CCC chairperson to exercise a power of delegation in relation to a controlled operation under which a person under investigation is or may be a police officer or was or may have been, at any time relevant to the investigation, a police officer.

276Delegations—ACC

Editor’s note—

This section will be inserted when section 36 of the Cross-Border Law Enforcement Legislation Amendment Act 2005 (2005 Act No. 45) commences. Section 36 inserts this section as section 186A. It will be immediately renumbered as section 276 as provided for by renumbered section 810(2) (previously section 459A(2)).

Division 2 Evidentiary provisions

277Evidence of authorities

(1)A document purporting to be an authority granted under section 243
(a)is admissible in any legal proceedings; and
(b)is evidence in any proceedings, other than criminal or disciplinary proceedings against a law enforcement officer, that the person granting the authority was satisfied of the facts the person was required to be satisfied of to grant the authority.
(2)A document purporting to be an authority within the meaning of a corresponding law granted under a provision of the corresponding law that corresponds to section 243
(a)is admissible in any legal proceedings in this jurisdiction; and
(b)is evidence in any proceedings, other than criminal or disciplinary proceedings against a law enforcement officer, that the person who granted the authority was satisfied of the facts the person was required to be satisfied of under the corresponding law to grant the authority.

Chapter 12 Assumed identities

Part 1 Preliminary

278Purpose of ch 12

The main purpose of this chapter is to facilitate, for law enforcement purposes, investigations and intelligence gathering in relation to criminal activity, including investigations extending beyond Queensland.

279How purpose is achieved

The purpose is to be achieved primarily by—
(a)providing for the lawful acquisition and use of an assumed identity; and
(b)facilitating the recognition of things done in relation to an assumed identity under a corresponding law.

280Definitions for ch 12

In this chapter—
acquire, an assumed identity, means acquire evidence, or take steps to acquire evidence, of the identity.
agency means—
(a)an issuing agency; or
(b)a law enforcement agency.
authorised civilian means a person, other than a law enforcement officer, who is authorised under an authority to acquire or use an assumed identity.
authorised officer means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity.
authorised person means—
(a)an authorised civilian; or
(b)an authorised officer.
authority means an authority granted under section 283 to acquire or use an assumed identity, including the authority as varied under section 286.
birth certificate approval see—
(a)section 288; or
(b)section 289.
chief executive officer means—
(a)for a law enforcement agency under a corresponding law—the chief executive officer, however described, of the law enforcement agency; or
(b)for an intelligence agency—the chief executive officer, however described, of the intelligence agency.
conduct includes any act or omission.
corresponding authority means—
(a)an authority under a corresponding law to acquire or use an assumed identity in this jurisdiction; or
(b)an authority under a corresponding law to request the production of evidence of an assumed identity in this jurisdiction.
criminal activity means conduct that involves the commission of an offence by 1 or more persons.
doing a thing, includes failing to do the thing.
evidence, of identity, means a document or other thing, including, for example, a driver licence, birth certificate, credit card or identity card, that evidences or indicates, or can be used to evidence or indicate, a person’s identity or any aspect of a person’s identity.
government issuing agency, in relation to an authority, means an entity that—
(a)is named in the authority; and
(b)issues evidence of identity as part of performing any function of the government of this jurisdiction.
intelligence agency see the Crimes Act 1914 (Cwlth), section 15K.
intelligence officer see the Crimes Act 1914 (Cwlth), section 15K.
issuing agency means—
(a)a government issuing agency; or
(b)a non-government issuing agency.
non-government issuing agency, in relation to an authority, means an entity, other than a government issuing agency, that—
(a)is named in the authority; and
(b)issues evidence of identity.
officer, of an agency, includes a person employed or engaged in the agency.
supervisor, of an authorised civilian, means the law enforcement officer, appointed under section 283(3), who supervises or is to supervise the acquisition or use of an assumed identity by the authorised civilian.
use an assumed identity, includes representing, whether expressly or impliedly, or by saying or doing something, the identity to be real when it is not.

281Relationship to other laws and matters

(1)A function conferred in relation to the activities of the CCC under this chapter is only conferred for the purpose of a function conferred on the CCC under the Crime and Corruption Act 2001 relating to major crime as defined under that Act.
(2)The Public Records Act does not apply to activities or records under parts 2 to 7.

Part 2 Authorities for assumed identities

282Application for authority to acquire or use assumed identity

(1)A law enforcement officer of a law enforcement agency may apply to the chief executive officer of the agency for an authority for the law enforcement officer or another person to do either or both of the following—
(a)acquire an assumed identity;
(b)use an assumed identity.
(2)A separate application must be made for each assumed identity to be acquired or used.
(3)An application—
(a)must be in writing in the form decided by the chief executive officer; and
(b)must contain all of the following information—
(i)the applicant’s name;
(ii)if a person other than the applicant is to be authorised to acquire or use an assumed identity—that person’s name;
(iii)if the person mentioned in subparagraph (ii) is not a law enforcement officer—the name and rank or position of the law enforcement officer proposed to be appointed as supervisor, and an explanation of why it is necessary for a person who is not a law enforcement officer to acquire or use the assumed identity;
(iv)details of the proposed assumed identity;
(v)reasons for the need to acquire or use an assumed identity;
(vi)details, to the extent known, of the investigation or intelligence gathering exercise in which the assumed identity will be used;
(vii)details of any issuing agencies and the types of evidence to be issued by them.
(4)The chief executive officer may require the applicant to give additional information about the application the chief executive officer considers appropriate for consideration of the application.

283Deciding application

(1)After considering an application for an authority to acquire or use an assumed identity, and any additional information given under section 282(4), the chief executive officer—
(a)may grant an authority to acquire or use the assumed identity, with or without conditions; or
(b)may refuse the application.
(2)The chief executive officer must not grant an authority to acquire or use an assumed identity unless the chief executive officer is satisfied on reasonable grounds of all of the following—
(a)the assumed identity is necessary for the purposes of an investigation or intelligence gathering in relation to criminal activity;
(b)the risk of abuse of the assumed identity by the authorised person under the authority is minimal;
(c)if the application is for authorisation of an assumed identity for a person who is not a law enforcement officer—it would be impossible or impracticable in the circumstances for a law enforcement officer to acquire or use the assumed identity for the purpose sought.
(3)If an authority is granted for an authorised civilian, the chief executive officer must appoint a law enforcement officer of the law enforcement agency to supervise the acquisition or use of the assumed identity by the authorised civilian.
(4)The law enforcement officer appointed as supervisor under subsection (3) must be—
(a)for the police service—of or above the rank of sergeant; or
(b)for the CCC—an authorised commission officer.
(5)An authority may also authorise 1 or more of the following—
(a)an application to the independent member for a birth certificate approval;
(b)an application under a corresponding law for an order for an entry in a register similar to the register of births, deaths or marriages kept under the Births, Deaths and Marriages Registration Act 2003;
(c)a request under section 294 or 307.
(6)A separate authority is required for each assumed identity.

284Form of authority

(1)An authority must be—
(a)in writing in the form decided by the chief executive officer; and
(b)signed by the person granting it.
(2)An authority must state all of the following—
(a)the name of the person granting the authority;
(b)the date of the authority;
(c)details of the assumed identity under the authority;
(d)details of the evidence of the assumed identity that may be acquired under the authority;
(e)the conditions, if any, to which the authority is subject;
(f)why the authority is granted;
(g)if the authority relates to an authorised officer—the name of the officer;
(h)if the authority relates to an authorised civilian—
(i)the name of the authorised civilian; and
(ii)the name of the civilian’s supervisor under the authority.
(3)The authority also must state the following—
(a)whether it authorises—
(i)an application to the independent member for a birth certificate approval; or
(ii)an application under a corresponding law for an order for an entry in a register similar to the register of births, deaths or marriages kept under the Births, Deaths and Marriages Registration Act 2003;
(b)each issuing agency to which a request may be made under section 294 or 307;
(c)the assumed identity may be used in this jurisdiction and a participating jurisdiction.

285Period of authority

An authority for an authorised officer or authorised civilian remains in force until—
(a)the end of any term stated in the authority; or
(b)the authority is cancelled under section 286.

286Variation or cancellation of authority

(1)The chief executive officer—
(a)may vary or cancel the authority at any time; and
(b)must cancel the authority if satisfied, on a review under section 287 or otherwise, that use of the assumed identity under the authority is no longer necessary.
(2)The chief executive officer must give written notice of the variation or cancellation to—
(a)the authorised person to whom the authority relates; and
(b)if the authorised person is an authorised civilian—the authorised person’s supervisor.
(3)The notice must state the reasons for the variation or cancellation.
(4)The variation or cancellation has effect on—
(a)the day the notice is given to the authorised person; or
(b)if a later day is stated in the notice—the later day.

287Review of authority

(1)The chief executive officer must, at least once a year, review each authority granted by the chief executive officer and in force under this chapter.
(2)The purpose of a review is to decide whether use of the assumed identity under the authority is still necessary.
(3)If the chief executive officer is satisfied on a review that use of the assumed identity is no longer necessary, the chief executive officer must cancel the authority under section 286.
(4)If the chief executive officer is satisfied on a review that use of the assumed identity is still necessary, the chief executive officer must record the chief executive officer’s opinion, and the reasons for it, in writing.

Part 3 Evidence of assumed identities

Division 1 Creation of birth certificates for assumed identities

288Approval for creation of birth certificate for assumed identity

(1)The chief executive officer of a law enforcement agency may apply to the independent member for authority to create a birth certificate (a birth certificate approval) for an assumed identity for an authorised person.
(2)The application must be written and include enough information to enable the independent member to properly consider whether the birth certificate approval should be granted.
(3)The independent member may grant the birth certificate approval only if satisfied granting the approval is justified having regard to the nature of the activities undertaken or to be undertaken by the authorised person under the authority for the assumed identity.
(4)A birth certificate approval granted under this section must be written, signed by the independent member, and state that a named law enforcement officer is authorised under this section to create a birth certificate for the purpose of concealing the identity of an authorised person.

289Order authorising creation of birth certificate for assumed identity under corresponding authority

(1)The chief executive officer of a law enforcement agency under a corresponding law may apply to the Supreme Court for an order (a birth certificate approval) authorising a named law enforcement officer of the agency to create a birth certificate for an assumed identity under a corresponding authority.
(2)Also, the chief executive officer of an intelligence agency may apply to the Supreme Court for an order (also a birth certificate approval) authorising a named intelligence officer of the agency to create a birth certificate for an assumed identity under a corresponding authority.
(3)The Supreme Court may make the order only if satisfied the order is justified having regard to the nature of the activities undertaken or to be undertaken by the law enforcement officer, intelligence officer or other person under the corresponding authority.
(4)The Supreme Court must hear the application in the absence of anyone other than the following—
(a)the applicant;
(b)someone the court permits to be present;
(c)a lawyer representing anyone mentioned in paragraph (a) or (b).
(5)The order has effect for the time stated in the order of not more than 28 days.

290Giving effect to birth certificate approval

(1)On the production to the registrar-general, for inspection, of a birth certificate approval—
(a)the law enforcement officer or intelligence officer named in the approval may create a birth certificate as authorised under the approval; and
(b)the registrar-general must give the officer any help the officer reasonably requires for the purpose.
(2)The law enforcement officer or intelligence officer must, if practicable, give the registrar-general at least 3 days notice of the day the officer intends to create the birth certificate under the birth certificate approval.

291Destruction of birth certificate created under s 290

(1)This section applies in relation to a birth certificate created under a birth certificate approval (a created birth certificate).
(2)As soon as practicable after the authority or corresponding authority for an assumed identity to which the created birth certificate relates is cancelled, the chief executive officer of the law enforcement agency or intelligence agency for which the certificate was created—
(a)must cause the created birth certificate to be destroyed; and
(b)must notify the registrar-general that the created birth certificate is no longer being used and has been destroyed.

292Cancelling authority affecting entry in participating jurisdiction’s register of births, deaths or marriages

(1)This section applies if—
(a)a chief executive officer cancels an authority for an assumed identity; and
(b)there is an entry in relation to that identity in a register of births, deaths or marriages in a participating jurisdiction because of an order under a corresponding law of the jurisdiction.
(2)The chief executive officer must apply for an order under the corresponding law to cancel the entry within 28 days after the day the authority is cancelled.

293Restriction about records and access to application for authority to create birth certificate

(1)This section applies to—
(a)a proceeding on an application under section 289 for a birth certificate approval in relation to the acquisition or use of an assumed identity under a corresponding authority; and
(b)an order given in the proceeding.
(2)Despite the Recording of Evidence Act 1962, a transcript of the proceeding must not be made.
(3)A person must not publish a report of the proceeding.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(4)A person is not entitled to search information in the custody of a court in relation to the proceeding, unless a Supreme Court judge otherwise orders in the interests of justice.

Division 2 Other provisions about evidence of assumed identities

294Request for evidence of assumed identity

(1)This section applies if an authority authorises a request under this section.
(2)The chief executive officer who grants the authority may ask the chief executive officer of an issuing agency stated in the authority to—
(a)produce evidence of an assumed identity in accordance with the authority; and
(b)give evidence of the assumed identity to the authorised person named in the authority.
(3)The request must state a reasonable period for compliance with the request.
(4)A request can not be made under this section for the creation of a birth certificate or a certified copy of a marriage certificate.
(5)In this section—
evidence means evidence similar to that ordinarily produced or given by the issuing agency.

295Government issuing agency to comply with request

The chief executive officer of a government issuing agency who receives a request under section 294 must comply with the request within the reasonable period stated in the request.

296Non-government issuing agency may comply with request

The chief executive officer of a non-government issuing agency who receives a request under section 294 may comply with the request.

297Cancelling evidence of assumed identity

(1)The chief executive officer of an issuing agency who produces evidence of an assumed identity under this part must cancel the evidence if directed in writing to do so by the chief executive officer who requested the evidence.
(2)In this section—
cancel includes delete or alter an entry in a record of information.

Division 3 Protections and indemnities

298Protection from criminal responsibility—officer of issuing agency

(1)A person who does something under division 1 or 2 that, apart from this section, would be an offence, is not criminally responsible for the offence, if the thing is done to give effect to a birth certificate approval.
(2)Also, the chief executive officer, or an officer, of an issuing agency who does something that, apart from this section, would be an offence, is not criminally responsible for the offence if the thing is done to comply with a request under section 294 or a direction under section 297.

299Indemnity for issuing agency and officers in relation to creation of birth certificates

(1)This section applies if a birth certificate approval is produced to the registrar-general under section 290.
(2)The law enforcement agency or intelligence agency to which the birth certificate approval relates must indemnify the registrar-general, or an officer of the registrar-general, for any civil liability incurred by the registrar-general or officer, including reasonable costs, if—
(a)the liability is incurred because of something done by the registrar-general or officer to comply with section 290; and
(b)the requirements, if any, prescribed under a regulation have been met.

300Indemnity for issuing agency and officers in relation to other evidence of assumed identities

(1)This section applies if the chief executive officer of a law enforcement agency makes a request under section 294 or gives a direction under section 297 to the chief executive officer of an issuing agency.
(2)The law enforcement agency must indemnify the issuing agency, or an officer of the agency, for any civil liability incurred by the agency or officer, including reasonable costs, if—
(a)the liability is incurred because of something done by the agency or officer to comply with the request or direction in the course of duty; and
(b)the requirements, if any, prescribed under a regulation have been met.

301Protection from criminal responsibility for particular ancillary conduct

(1)This section applies to conduct, for example aiding or enabling the commission of an offence or conspiring to commit an offence (ancillary conduct), for which a person may be criminally responsible because it involves conduct engaged in by another person for which the other person would, apart from section 298, be criminally responsible (the related conduct).

Note—

The Criminal Code, section 7(1)(b) and (c) makes provision for a person who aids or enables the commission of an offence, and the Criminal Code, chapter 56, makes provision for conspiracy.
(2)Despite any other Act or law of this jurisdiction, a person who engages in ancillary conduct that is an offence, whether or not the person is an authorised person or an officer of an issuing agency, is not criminally responsible for the offence if at the time the person engaged in the ancillary conduct the person believed the related conduct was being engaged in, or would be engaged in, by an authorised person or an issuing officer of an agency.

Part 4 Effect of authorities

302Assumed identity may be acquired and used

(1)An authorised officer may acquire or use an assumed identity if the acquisition or use is—
(a)in accordance with an authority; and
(b)in the course of duty.
(2)An authorised civilian may acquire or use an assumed identity if the acquisition or use is in accordance with—
(a)an authority; and
(b)the directions of the authorised civilian’s supervisor.

303Protection from criminal responsibility—authorised person

If an authorised person does something, whether in this jurisdiction or elsewhere, that, apart from this section, would be an offence, the authorised person is not criminally responsible for the offence if—
(a)the thing is done in the course of acquiring or using an assumed identity under an authority; and
(b)the thing is done—
(i)for an authorised officer—in the course of duty; or
(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and
(c)doing the thing would not be an offence if the assumed identity were the authorised person’s real identity.

304Indemnity for authorised person

(1)This section applies if the chief executive officer of a law enforcement agency grants an authority.
(2)The law enforcement agency must indemnify the authorised person under the authority against any civil liability, including reasonable costs, incurred by the person, because of something done by the person, whether in this jurisdiction or elsewhere, if—
(a)the thing is done in the course of acquiring or using an assumed identity under the authority; and
(b)the thing is done—
(i)for an authorised officer—in the course of duty; or
(ii)for an authorised civilian—in accordance with the directions of the authorised civilian’s supervisor; and
(c)the requirements, if any, prescribed under a regulation have been met.
(3)This section does not limit the Police Service Administration Act 1990, section 10.5.

305Particular qualifications

(1)Sections 303 and 304 do not apply to anything done by an authorised person if—
(a)a particular qualification is needed to do the thing; and
(b)the person does not have the qualification.
(2)Subsection (1) applies whether or not the authorised person has acquired, as evidence of an assumed identity, a document that indicates that the person has the qualification.

306Effect of being unaware of variation or cancellation of authority

(1)If an authority to acquire or use an assumed identity has been varied in a way that limits its scope, this part continues to apply to the authorised person to whom the authority relates as if it had not been varied in that way, for as long as the person—
(a)is unaware of the variation; and
(b)is not reckless about the existence of the variation.
(2)If an authority to acquire or use an assumed identity has been cancelled, this part continues to apply to the authorised person to whom the authority related as if it had not been cancelled, for as long as the person—
(a)is unaware of the cancellation; and
(b)is not reckless about the existence of the cancellation.
(3)For this section, a person is reckless about the existence of the variation or cancellation of an authority if—
(a)the person is aware of a substantial risk that the variation or cancellation has happened; and
(b)having regard to the circumstances known to the person, it is unjustifiable to continue to use the assumed name in a way that was, but may no longer be, authorised by the authority because of the variation or cancellation.

Part 5 Recognition of assumed identities

307Request to participating jurisdiction for evidence of assumed identity

(1)This section applies if an authority authorises a request under this section.
(2)The chief executive officer who grants the authority may ask the chief executive officer of an issuing agency of a participating jurisdiction stated in the authority—
(a)to produce evidence of an assumed identity in accordance with the authority; and
(b)to give evidence of the assumed identity to the authorised person named in the authority.

308Request from participating jurisdiction for evidence of assumed identity

(1)This section applies if—
(a)a corresponding authority authorises a request for—
(i)the production of evidence of an assumed identity in this jurisdiction; and
(ii)the giving of evidence of the assumed identity to the authorised person named in the authority; and
(b)the request is made to the chief executive officer of an issuing agency in this jurisdiction; and
(c)the request states a reasonable period for compliance with the request.
(2)The chief executive officer of a government issuing agency who receives the request must comply with the request within the reasonable period stated in the request.
(3)The chief executive officer of a non-government issuing agency who receives the request may comply with the request.

309Direction from participating jurisdiction to cancel evidence of assumed identity

(1)The chief executive officer of an issuing agency who produces evidence of an assumed identity because of a request mentioned in section 308 must cancel the evidence if directed in writing to do so by the chief executive officer who made the request.
(2)In this section—
cancel includes delete or alter an entry in a record of information.

310Indemnity for issuing agency and officer

(1)This section applies if the chief executive officer of a law enforcement agency makes a request to the chief executive officer of an issuing agency of a participating jurisdiction under section 307.
(2)The law enforcement agency must indemnify the issuing agency and any officer of the issuing agency for any civil liability incurred by the agency or officer, including reasonable costs, if—
(a)the liability is incurred because of something done, whether in this jurisdiction or elsewhere, by the agency or officer to comply with the request in the course of duty; and
(b)the requirements, if any, prescribed under a regulation have been met.

311Application of ch 12 to corresponding authority

The following provisions apply, with necessary changes, to anything done in this jurisdiction in relation to a corresponding authority as if it were an authority granted under section 283
(a)section 298 (Protection from criminal responsibility—officer of issuing agency);
(b)section 302 (Assumed identity may be acquired and used);
(c)section 303 (Protection from criminal liability—authorised person);
(d)section 305 (Particular qualifications);
(e)section 306 (Effect of being unaware of variation or cancellation of authority);
(f)section 312 (Misuse of assumed identity);
(g)section 313 (Disclosing information about assumed identity).

Part 6 Compliance and monitoring

Division 1 Misuse of assumed identity and information

312Misuse of assumed identity

(1)An authorised officer commits an offence if—
(a)the officer intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the officer’s authority; and
(b)the officer knows that, or is reckless as to whether, the acquisition or use is not—
(i)in accordance with the officer’s authority; or
(ii)in the course of duty.

Maximum penalty—2 years imprisonment.

(2)An authorised civilian commits an offence if—
(a)the person intentionally, knowingly or recklessly acquires evidence of, or uses, an assumed identity covered by the person’s authority; and
(b)the person knows that, or is reckless as to whether, the acquisition or use is not in accordance with—
(i)the person’s authority; or
(ii)the directions of the person’s supervisor under the authority.

Maximum penalty—2 years imprisonment.

313Disclosing information about assumed identity

(1)A person commits an offence if—
(a)the person intentionally, knowingly or recklessly discloses any information; and
(b)the person knows that, or is reckless as to whether, the information reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not the other person’s real identity; and
(c)the person knows that, or is reckless as to whether, the disclosure is not made—
(i)in connection with the administration or execution of this chapter or a corresponding law; or
(ii)for the purposes of any legal proceeding arising out of or otherwise related to this chapter or a corresponding law or of any report of the proceedings; or
(iii)in accordance with any requirement imposed by law.

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—
(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation or intelligence gathering in relation to criminal activity; or
(b)knows that, or is reckless as to whether, the disclosure of the information—
(i)endangers or will endanger the health or safety of any person; or
(ii)prejudices or will prejudice the effective conduct of an investigation or intelligence gathering in relation to criminal activity.

Maximum penalty—10 years imprisonment.

(3)This section does not affect section 803 or the Crime and Corruption Act 2001, section 213(4).

Division 2 Reporting and record keeping

314Report about authorities for assumed identities etc.

(1)As soon as practicable after the end of each financial year, the chief executive officer of a law enforcement agency must give to the agency’s report entity a written report containing the following information in relation to the agency for the financial year—
(a)the number of authorities granted;
(b)a general description of the activities undertaken by authorised persons when using assumed identities under this chapter;
(c)the number of applications for an authority that were refused;
(d)a statement about whether or not any fraud or other unlawful activity was identified by an audit under section 316;
(e)any other information relating to authorities, assumed identities or the administration of this chapter that the report entity considers appropriate.
(2)The report must not contain information that, if made public, could reasonably be expected to—
(a)endanger a person’s safety; or
(b)prejudice an investigation or prosecution; or
(c)compromise any law enforcement agency’s operational activities or methodologies.
(3)The report entity must table a copy of the report in the Legislative Assembly within 14 sitting days after receiving the report.
(4)In this section—
report entity, for a law enforcement agency, means—
(a)for the police service—the Minister; or
(b)for the CCC—the parliamentary committee chairperson.

315Record keeping

(1)The chief executive officer of a law enforcement agency must keep appropriate records about the agency’s operations under this chapter.
(2)The records must contain all of the following information about each authority granted under this chapter in relation to the agency—
(a)the date on which the authority was granted and the name of the person who granted it;
(b)if the authority was varied or cancelled under this chapter—the date it was varied or cancelled, and the name of the person who varied or cancelled it;
(c)the name of the authorised person under the authority;
(d)details of the assumed identity to which the authority relates;
(e)details of any request made to an issuing agency under section 294 in relation to the authority;
(f)the general nature of the duties undertaken by the authorised person under the assumed identity;
(g)general details of relevant financial transactions entered into using the assumed identity;
(h)details of reviews of the authority under section 287.

316Audit of records

(1)The chief executive officer of a law enforcement agency must have the records kept under section 315 for each authority granted in relation to the agency audited—
(a)at least once every 6 months while the authority is in force; and
(b)at least once in the 6 months after the cancellation or expiry of the authority.
(2)The parliamentary commissioner must audit the records kept by the CCC.
(3)The chief executive officer of a law enforcement agency, other than the CCC, must appoint a person to audit the records kept by the agency.
(4)The person appointed under subsection (3)—
(a)may, but need not, be an officer of the law enforcement agency; and
(b)must not be a person—
(i)who granted, varied or cancelled any of the authorities to which the records under section 315 relate; or
(ii)who is or was an authorised person under any of the authorities to which the records relate.
(5)A person who conducts an audit under this section for a law enforcement agency must give the chief executive officer of the agency a written report of the results of the audit.

Part 7 Delegation

317Delegation generally

Other than as provided by this part, and despite any other Act or law to the contrary, the powers of a chief executive officer under this chapter may not be delegated to any other person.

318Delegation—commissioner

(1)The commissioner may delegate any of the commissioner’s powers under this chapter relating to the following to a person for the time being performing functions in the police service as a deputy commissioner or an assistant commissioner of the police service—
(a)the granting, variation and cancellation of authorities;
(b)conducting reviews under section 287;
(c)authorising the making of an application to the independent member for a birth certificate approval for an assumed identity;
(d)making applications under section 292;
(e)making requests under section 294 or 307.
(2)Also, the commissioner may delegate to a police officer of or above the rank of inspector the commissioner’s power under section 288 to apply to the independent member for authority to create a birth certificate for an assumed identity.
(3)No more than 4 delegations may be in force under this section at any time.

319Delegation—CCC chairperson

(1)The CCC chairperson may delegate any of the chairperson’s powers under this chapter relating to the following to a CCC senior executive officer—
(a)the granting, variation and cancellation of authorities;
(b)conducting reviews under section 287;
(c)authorising the making of an application to the independent member for a birth certificate approval for an assumed identity;
(d)making applications under section 292;
(e)making requests under section 294 or 307.
(2)Also, the CCC chairperson may delegate to an authorised commission officer the chairperson’s power under section 288 to apply to the independent member for authority to create a birth certificate for an assumed identity.
(3)No more than 4 delegations may be in force under this section at any time.

320Delegation—ACC

Editor’s note—

This section will be inserted when section 42 of the Cross-Border Law Enforcement Legislation Amendment Act 2005 (2005 Act No. 45) commences. Section 42 inserts this section as section 197ZFA. It will be immediately renumbered as section 320 as provided for by renumbered section 810(2) (previously section 459A(2)).

Chapter 13 Surveillance devices

Part 1 Preliminary

321Purposes of ch 13

The main purposes of this chapter are—
(a)to establish procedures for law enforcement officers to obtain warrants or emergency authorisations for the installation, use, maintenance and retrieval of surveillance devices in criminal investigations, including criminal investigations extending beyond this jurisdiction; and
(b)to enable senior officers of the police service to authorise the installation, use, maintenance and retrieval of tracking devices in this jurisdiction in circumstances in which taking a person into custody may pose a serious risk to the safety of the person or another person; and
(c)to enable warrants to be obtained for the retrieval of surveillance devices installed under a tracking device authorisation or the Public Safety Preservation Act 1986; and
(d)to recognise warrants and emergency authorisations issued in other jurisdictions; and
(e)to restrict the use, communication and publication of information obtained through the use of surveillance devices or otherwise connected with surveillance device operations; and
(f)to impose requirements for the secure storage and destruction of records, and the making of reports to judges, magistrates and Parliament, in connection with surveillance device operations.

322Definitions for ch 13

In this chapter—
computer means any electronic device for storing or processing information.
corresponding emergency authorisation means an authorisation in the nature of an emergency authorisation given under the provisions of a corresponding law whether or not the emergency authorisation is of a kind that may be issued under this chapter.
corresponding warrant means a warrant in the nature of a surveillance device warrant or retrieval warrant issued under the provisions of a corresponding law in relation to a relevant offence under a corresponding law.
data surveillance device means any device or program capable of being used to record or monitor the input of information into or the output of information from a computer, but does not include an optical surveillance device.
device includes instrument, apparatus and equipment.
disciplinary proceeding means a proceeding of a disciplinary nature under a law of any jurisdiction or of the Commonwealth.
enhancement equipment, in relation to a surveillance device, means equipment capable of enhancing a signal, image or other information obtained by the use of the surveillance device.
inspection entity, for a law enforcement agency other than the ACC, means—
(a)for the police service—the public interest monitor; or
(b)for the CCC—the parliamentary commissioner.

Note—

For inspection requirements for the ACC, see the Surveillance Devices Act 2004 (Cwlth), section 55.
install includes attach.
maintain, in relation to a surveillance device, includes—
(a)adjust, relocate, repair or service the device; and
(b)replace a faulty device.
optical surveillance device means any device capable of being used to record visually or observe an activity, but does not include spectacles, contact lenses or a similar device used by a person with impaired sight to overcome that impairment.
place does not include a vehicle.
premises
(a)includes a place; and
(b)for parts 2, 3 and 5—includes premises or a place outside this jurisdiction; and
(c)does not include a vehicle.
protected information, for part 5, division 1, see section 351.
public officer means a person employed by, or holding an office established by or under a law of, this jurisdiction or a person employed by a public authority of this jurisdiction, and includes a law enforcement officer.
record includes—
(a)an audio, visual or audiovisual record; and
(b)a record in digital form; and
(c)a documentary record prepared from a record mentioned in paragraph (a) or (b).
relevant offence means—
(a)generally, see section 323; or
(b)for part 5, division 1, see section 351.
relevant proceeding, for part 5, division 1, see section 351.
remote application for a warrant, means an application under section 800 in relation to a warrant.
report of a conversation or activity, includes a report of the substance, meaning or purport of the conversation or activity.
senior officer means—
(a)for the police service—a police officer of at least the rank of inspector; or
(b)for the CCC—an authorised commission officer; or
(c)for the ACC—a member of staff of the ACC who is an SES employee within the meaning of the Public Service Act 1999 (Cwlth).
surveillance device means—
(a)a data surveillance device, a listening device, an optical surveillance device or a tracking device; or
(b)a device that is a combination of any 2 or more of the devices mentioned in paragraph (a).
three year imprisonment offence means an indictable offence for which the maximum penalty is at least 3 years imprisonment.
tracking device means any electronic device capable of being used to find or monitor the geographical location of a person, vehicle or object.
use of a surveillance device includes use of the device to record a conversation or other activity.
warrant means surveillance device warrant or retrieval warrant.

323Meaning of relevant offence

(1)A relevant offence is an offence against a law of this jurisdiction that is—
(a)a seven year imprisonment offence; or
(b)an indictable offence included in schedule 2.
(2)However, to the extent any provision of this Act applies to matters mentioned in subsection (3), a relevant offence is an offence against a law of this jurisdiction that is—
(a)a three year imprisonment offence; or
(b)an indictable offence included in schedule 2.
(3)For subsection (2), the matters are—
(a)an application for a surveillance device warrant—
(i)that authorises the use of a tracking device only; and
(ii)does not authorise covert entry to a building by a person installing it; and
(b)a surveillance device warrant mentioned in paragraph (a).

324When an investigation is conducted in this jurisdiction

For this chapter, an investigation into a relevant offence is taken to be conducted in this jurisdiction, whether or not it is also conducted in another jurisdiction, if a law enforcement officer participates in the investigation.

Note—

This provision is intended to cover the situation where an officer of this jurisdiction is conducting or participating in an investigation entirely in another jurisdiction for an offence of this jurisdiction, for example, a Queensland officer is investigating a conspiracy to import drugs into Queensland from New South Wales, and all the evidence of the offence is in New South Wales.

324A References to installation of surveillance device

In this chapter, a reference to the installation of a surveillance device includes a reference to doing anything to or in relation to a device to enable it to be used as a surveillance device.

Examples of things that may be done to or in relation to a device—

installing hardware or software on the device
connecting the device to another device using a wireless connection

325Relationship to other laws and matters

(1)This chapter is not intended to affect any other law of this jurisdiction that prohibits or regulates the use of surveillance devices entirely within this jurisdiction.
(2)To remove doubt, it is declared that it is intended that a warrant may be issued, or an emergency authorisation given, in this jurisdiction under this chapter for the installation, use, maintenance or retrieval of a surveillance device and any related enhancement equipment in this jurisdiction or a participating jurisdiction or both.
(3)However, a tracking device authorisation may authorise the installation, use, maintenance or retrieval of a tracking device and related enhancement equipment in this jurisdiction only.
(4)A function conferred under this chapter in relation to the activities of the CCC is only conferred for the purpose of a function conferred on the CCC under the Crime and Corruption Act 2001 relating to major crime as defined under that Act.
(5)A function or power conferred under this chapter in relation to the activities of the ACC is only conferred for the purpose of the function or power conferred on the ACC under the Australian Crime Commission (Queensland) Act 2003 relating to suspected serious and organised crime as defined under that Act.
(6)Also, nothing in this chapter authorises the doing of anything for which a warrant would be required under the Telecommunications (Interception and Access) Act 1979 (Cwlth).
(7)This chapter does not stop a law enforcement officer from using an optical surveillance device in a place where the presence of the police officer is not an offence.

Examples—

1The police officer may use an optical surveillance device to record activities in a public place or, with the occupier’s consent, install the device in a private place.
2A police officer who is lawfully at a place may use binoculars or a telescope to monitor activities at a place the police officer is not lawfully entitled to enter.
(8)The Public Records Act does not apply to activities and records under this chapter.
(9)In this section—
function includes power.

Part 2 Warrants

Division 1 Introduction

326Types of warrant

(1)The following types of warrant may be issued under this part—
(a)surveillance device warrants;
(b)retrieval warrants.
(2)A warrant issued by a Supreme Court judge may be issued in relation to 1 or more kinds of surveillance device.

327Who may issue warrants

(1)A Supreme Court judge may issue any warrant under this part.
(2)A magistrate may issue—
(a)a surveillance device warrant—
(i)that authorises the use of a tracking device only; and
(ii)that does not authorise covert entry to a building by a person installing it; and
(b)a retrieval warrant in relation to a tracking device authorised under a warrant mentioned in paragraph (a), if a magistrate issued the original warrant.

Division 2 Surveillance device warrants

328Application for surveillance device warrant

(1)A senior officer of a law enforcement agency may apply for the issue of a surveillance device warrant if the officer reasonably believes that—
(a)a relevant offence has been, is being, is about to be or is likely to be committed; and
(b)the use of a surveillance device in the course of an investigation is or will be necessary for the purpose of enabling evidence or information to be obtained of the commission of the relevant offence or the identity or location of the offender.
(2)The application may be made to—
(a)a Supreme Court judge in any case; or
(b)a magistrate for a surveillance device warrant that authorises the use of a tracking device only.
(3)The application must be sworn and state—
(a)the name of the applicant; and
(b)the nature and duration of the warrant sought, including the kind of surveillance device sought to be authorised; and
(c)the grounds on which the warrant is sought; and
(d)information required under a regulation, whether under this Act or the Crime and Corruption Act 2001, about any warrants issued within the previous year under either Act, or both Acts, in relation to the person stated in the application or wherever it is sought to use the surveillance device.
(4)The application must also fully disclose all matters of which the applicant is aware, both favourable and adverse to the issuing of the warrant.
(5)Without limiting this section, the application may seek the use of a surveillance device in a public place or in a place described by reference to a class of place.
(6)Subsection (3)(d) only applies to—
(a)information kept in a register that the applicant may inspect; and
(b)information the applicant otherwise actually knows.
(7)Subsections (5) and (6) do not apply to an application made under this Act for the ACC, but in that case the application must be supported by an affidavit as if it had been made under the Surveillance Devices Act 2004 (Cwlth), section 14.
(8)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(9)The judge or magistrate may refuse to consider the application until the applicant gives the judge or magistrate all the information the judge or magistrate requires about the application in the way the judge or magistrate requires.

Note—

An application made under this section by a lawyer appearing for the applicant is not a remote application.

329Who may be present at consideration of application

(1)The judge or magistrate must hear an application for a surveillance device warrant in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge or magistrate permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge or magistrate must hear the application—
(a)in the absence of the person proposed to be placed under surveillance (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

330Deciding application

(1)A Supreme Court judge or a magistrate may issue a surveillance device warrant if satisfied—
(a)there are reasonable grounds for the belief founding the application for the warrant; and
(b)for a remote application—that it would have been impracticable for the application to have been made in person.
(2)In deciding whether a surveillance device warrant should be issued, the judge or magistrate, being mindful of the highly intrusive nature of a surveillance device warrant, must have regard to—
(a)the nature and gravity of the relevant offence for which the warrant is sought; and
(b)the extent to which the privacy of any person is likely to be affected; and
(c)the existence of alternative ways of obtaining the evidence or information sought to be obtained and the extent to which those ways may help or prejudice the investigation; and
(d)the evidentiary or intelligence value of any information sought to be obtained; and
(e)any previous warrant of a similar kind sought or issued under this Act, the Crime and Corruption Act 2001 or a corresponding law, if known, in connection with the same offence; and
(f)any submissions made by a monitor.
(3)The judge or magistrate may issue a warrant for the use of a surveillance device in the office of a practising lawyer only if the application for the warrant relates to the lawyer’s involvement in a relevant offence.
(4)A magistrate may issue a warrant for the use of a tracking device only if the warrant does not authorise covert entry to a building by a person installing the device.

331What must a surveillance device warrant contain

(1)A surveillance device warrant must—
(a)state that the judge or magistrate is satisfied of the matters mentioned in section 330(1) and has had regard to the matters mentioned in section 330(2); and
(b)state—
(i)the applicant’s name; and
(ii)the relevant offence in relation to which the warrant is issued; and
(iii)the date and time the warrant is issued; and
(iv)the kind of surveillance device authorised to be used; and
(v)if the warrant authorises the use of a surveillance device on premises—the premises where the use of the surveillance device is authorised; and
(vi)if the warrant authorises the use of an optical surveillance device in a dwelling, other than a device that is portable or already in the dwelling—the parts of the dwelling in which the device may be installed; and
(vii)if the warrant authorises the use of a surveillance device in or on a vehicle, object or class of vehicle or object—the vehicle, object or class of vehicle or object in or on which the use of the surveillance device is authorised; and
(viii)if the warrant authorises the use of a surveillance device in relation to the conversations, activities or geographical location of a person—the name of the person, if known; and
(ix)the period, of not more than 90 days, during which the warrant is in force, and the day and time the warrant starts and when the warrant ends; and
(x)the name of the law enforcement officer primarily responsible for executing the warrant; and
(xi)any conditions subject to which premises may be entered, or a surveillance device may be used, under the warrant; and
(xii)the time within which a report in relation to the warrant must be made under section 357 and to whom the report must be made.
(2)For a warrant mentioned in subsection (1)(b)(viii), if the identity of the person is unknown, the warrant must state that fact.
(3)A warrant must be signed by the person issuing it and include their name.

Note—

See section 801(1) for records the issuer must keep for surveillance device warrants issued on a remote application.

332What a surveillance device warrant authorises

(1)A surveillance device warrant may authorise, as stated in the warrant, any 1 or more of the following—
(a)the use of a surveillance device on stated premises;
(b)the use of a surveillance device in or on a stated vehicle, object or class of vehicle or object;
(c)the use of a surveillance device in relation to the private conversations, activities or geographical location of a stated person or a person whose identity is unknown.
(2)A surveillance device warrant authorises—
(a)for a warrant of a kind mentioned in subsection (1)(a)—
(i)the installation, use and maintenance of a surveillance device of the kind stated in the warrant on the stated premises; and
(ii)the entry onto the stated premises, or other premises adjoining or providing access to the stated premises, for any of the purposes mentioned in subparagraph (i) or subsection (4); and
(b)for a warrant of a kind mentioned in subsection (1)(b)—
(i)the installation, use and maintenance of a surveillance device of the kind stated in the warrant in or on the stated vehicle or object, or a vehicle or object of the stated class; and
(ii)the entry onto any premises where the stated vehicle or object, or a vehicle or object of the stated class, is reasonably believed to be or is likely to be, or other premises adjoining or providing access to those premises, for any of the purposes mentioned in subparagraph (i) or subsection (4); and
(iii)the entry into the stated vehicle, a vehicle of the stated class, or a vehicle in which the stated object or an object of the stated class is reasonably believed to be or is likely to be, for any of the purposes mentioned in subparagraph (i) or subsection (4); and
(c)for a warrant of a kind mentioned in subsection (1)(c)—
(i)the installation, use and maintenance of a surveillance device of the kind stated in the warrant, on premises where the person is reasonably believed to be or is likely to be; and
(ii)the entry onto the premises mentioned in subparagraph (i), or other premises adjoining or providing access to those premises, for any of the purposes mentioned in subparagraph (i) or subsection (4).
(3)However, a surveillance device warrant of a kind mentioned in subsection (1)(a) does not authorise covert entry to a building on premises adjoining or providing access to the stated premises, unless the warrant specifically authorises the covert entry.
(4)A surveillance device warrant also authorises—
(a)the preparatory action reasonably necessary to facilitate the installation of the surveillance device, including, for example—
(i)inspecting and photographing the internal layout of premises; and
(ii)finding out whether or not there is a device on premises that could be used as a surveillance device and the location of the device; and
(iii)finding a way to connect to, or transmit from, a device on premises that could be used as a surveillance device; and
(b)the retrieval of the surveillance device; and
(c)the installation, use, maintenance and retrieval of any enhancement equipment in relation to the surveillance device; and
(d)the temporary removal of a vehicle or object from premises for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment and the return of the vehicle or object to the premises; and
(e)the breaking open of any thing for the purpose of the installation, maintenance or retrieval of the surveillance device or enhancement equipment; and
(f)the connection of the surveillance device or enhancement equipment to an electricity supply system and the use of electricity from that system to operate the device or equipment; and
(g)the connection of the surveillance device or enhancement equipment to an object or system that may be used to transmit information in any form and the use of that object or system in relation to the operation of the device or equipment.
(5)A surveillance device warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the installation, use, maintenance or retrieval of a surveillance device or enhancement equipment under the warrant.
(6)A law enforcement officer may use a surveillance device under a warrant only if the officer is acting in the performance of the officer’s duty.
(7)Subsections (2) and (4) apply to a warrant subject to any conditions stated in the warrant.

332A Surveillance device warrant authorises use of existing device

(1)This section applies to a surveillance device warrant of a kind mentioned in section 332(1)(a), (b) or (c) that authorises the use of a stated kind of surveillance device on premises, or in or on a vehicle, object or class of vehicle or object.
(2)The surveillance device warrant also authorises the use of a device (an existing device) that is on the premises, or in or on the vehicle or object, or a vehicle or object of the class, as a surveillance device of the stated kind.

Example of an existing device—

a security camera
(3)This section applies whether or not it is necessary to do anything to or in relation to the existing device to enable it to be used as a surveillance device.

333Extension and variation of surveillance device warrant

(1)A senior officer of a law enforcement agency to whom a surveillance device warrant has been issued may apply, at any time before the expiry of the warrant—
(a)for an extension of the warrant for a period of not more than 90 days from the day on which it would otherwise expire; or
(b)for a variation of any of the other terms of the warrant.
(2)The application must be made to—
(a)a Supreme Court judge, if the warrant was issued by a Supreme Court judge; or
(b)a magistrate, if the warrant was issued by a magistrate.
(3)Section 328 applies, with any necessary changes, to an application under this section as if it were an application for the warrant.
(4)The judge or magistrate may grant an application, subject to any conditions the judge or magistrate considers appropriate, if satisfied that the matters mentioned in section 330(1) still exist, having regard to the matters mentioned in section 330(2).
(5)If the judge or magistrate grants the application, the judge or magistrate must write the new expiry date or the other varied term on the original warrant.
(6)An application may be made under this section more than once.

334Revocation of surveillance device warrant

(1)A surveillance device warrant may be revoked at any time before the expiry of the period of validity stated in it by—
(a)a Supreme Court judge, if a Supreme Court judge issued the warrant; or
(b)a magistrate, if a magistrate issued the warrant.
(2)Also, a judge or magistrate may revoke a surveillance device warrant after receiving a report under section 357 about the warrant.
(3)A judge or magistrate who revokes a warrant must cause notice of the revocation to be given to the chief executive officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member.

335Discontinuance of use of surveillance device under warrant

(1)This section applies if a surveillance device warrant is issued to a senior officer of a law enforcement agency.
(2)If the senior officer to whom the warrant is issued, or the law enforcement officer who is primarily responsible for executing the warrant, believes that use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender, the officer must inform the chief executive officer of the law enforcement agency immediately.
(3)If the chief executive officer of the law enforcement agency is satisfied, whether because of subsection (2) or otherwise, that the use of a surveillance device under the warrant is no longer necessary for the purpose of enabling evidence to be obtained of the commission of the relevant offence or the identity or location of the offender, the chief executive officer—
(a)must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued as soon as practicable; and
(b)must give written notice of that fact to the public interest monitor.
(4)If notice is given under subsection (3)(b) for a surveillance device warrant, the warrant stops having effect other than to the extent it authorises the removal of a surveillance device and any enhancement equipment.
(5)Also, if the chief executive officer is notified that the warrant has been revoked by a judge or magistrate under section 334(1), the chief executive officer must take the steps necessary to ensure that use of the surveillance device authorised by the warrant is discontinued immediately.

Division 3 Retrieval warrants

336Application for retrieval warrant

(1)A law enforcement officer may apply for the issue of a retrieval warrant in relation to a surveillance device or enhancement equipment—
(a)that was lawfully installed on premises, or in or on a vehicle or object, under—
(i)a surveillance device warrant; or
(ii)a tracking device authorisation; or
(iii)a surveillance device authorisation under the Public Safety Preservation Act 1986; and
(b)that the law enforcement officer reasonably believes is still on those premises or in or on that vehicle or object, or on other premises or in or on another vehicle or object.
(2)The application may be made to—
(a)a Supreme Court judge in any case; or
(b)a magistrate for an application for a retrieval warrant—
(i)that authorises the retrieval of a tracking device only; and
(ii)that does not authorise covert entry to a building by a person retrieving it.
(3)The application must be sworn and state the grounds on which the warrant is sought.
(4)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(5)The judge or magistrate may refuse to consider the application until the applicant gives the judge all the information the judge or magistrate requires about the application in the way the judge or magistrate requires.

337Who may be present at consideration of application

(1)The judge or magistrate must hear an application for a retrieval warrant in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge or magistrate permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge or magistrate must hear the application—
(a)in the absence of the person placed under surveillance (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

338Deciding application

(1)A Supreme Court judge or a magistrate may issue a retrieval warrant if the judge or magistrate is satisfied—
(a)that there are reasonable grounds for the belief founding the application for the warrant; and
(b)for a remote application—that it would have been impracticable for the application to have been made in person.
(2)In deciding whether a retrieval warrant should be issued, the judge or magistrate must have regard to—
(a)the extent to which the privacy of any person is likely to be affected; and
(b)the public interest in retrieving the device sought to be retrieved; and
(c)any submissions made by a monitor.

339What must a retrieval warrant contain

(1)A retrieval warrant must—
(a)state that the judge or magistrate is satisfied of the matters mentioned in section 338(1) and has had regard to the matters mentioned in section 338(2); and
(b)state—
(i)the name of the applicant; and
(ii)the date and time the warrant is issued; and
(iii)the kind of surveillance device authorised to be retrieved; and
(iv)the premises, vehicle or object from which the surveillance device is to be retrieved; and
(v)the period, of not more than 90 days, during which the warrant is in force, including the date and time the warrant starts and when the warrant ends; and
(vi)the name of the law enforcement officer primarily responsible for executing the warrant; and
(vii)any conditions on which premises may be entered under the warrant; and
(viii)the time within which a report in relation to the warrant must be made under section 357 and to whom the report must be made.
(2)A warrant must be signed by the person issuing it and include their name.

Note—

See section 801(1) for records the issuer must keep for retrieval warrants issued on a remote application.

340What a retrieval warrant authorises

(1)A retrieval warrant, subject to any conditions stated in it, authorises—
(a)the retrieval of the surveillance device stated in the warrant and any enhancement equipment in relation to the device or, if the warrant relates to the retrieval of enhancement equipment only, the enhancement equipment; and
(b)the entry onto premises where the surveillance device is reasonably believed to be, or other premises adjoining or providing access to those premises, for the purpose of retrieving the device and equipment; and
(c)the breaking open of any thing for the purpose of the retrieval of the device and equipment; and
(d)if the device or equipment is installed on or in a vehicle or object, the temporary removal of the vehicle or object from any place where it is situated for the purpose of the retrieval of the device and equipment and the return of the vehicle or object to that place.
(2)Also, the warrant authorises the use of the surveillance device and any related enhancement equipment solely for the purpose of the retrieval of the device and any enhancement equipment.
(3)However, if the warrant authorises the use of the surveillance device in another jurisdiction, subsection (2) applies subject to the corresponding law of the jurisdiction.
(4)A retrieval warrant may authorise the doing of anything reasonably necessary to conceal the fact that anything has been done in relation to the retrieval of a surveillance device or enhancement equipment under the warrant.

341Revocation of retrieval warrant

(1)A retrieval warrant may be revoked at any time before the expiry of the period of validity stated in it by—
(a)a Supreme Court judge, if a Supreme Court judge issued the warrant; or
(b)a magistrate, if a magistrate issued the warrant.
(2)A judge or magistrate may revoke a retrieval warrant after receiving a report under section 357 about the warrant.
(3)A judge or magistrate who revokes a warrant must cause notice of the revocation to be given to the chief executive officer of the law enforcement agency of which the law enforcement officer to whom the warrant was issued is a member.

342Discontinuance of retrieval warrant

(1)If the law enforcement officer to whom a retrieval warrant has been issued, or who is primarily responsible for executing a retrieval warrant, believes that the grounds for issue of the warrant no longer exist, the law enforcement officer must inform the chief executive officer of the law enforcement agency immediately.
(2)If the chief executive officer of a law enforcement agency is satisfied, whether because of subsection (1) or otherwise, that the grounds for issue of a retrieval warrant to a law enforcement officer of the agency no longer exist, the chief executive officer must give written notice of that fact to the public interest monitor.
(3)If notice is given under subsection (2) for a retrieval warrant, the warrant stops having effect.

Part 3 Emergency authorisations

343Emergency authorisation—risk of serious personal violence or substantial property damage

(1)A law enforcement officer of a law enforcement agency may apply to a senior officer of the agency for an emergency authorisation for the use of a surveillance device if the law enforcement officer reasonably believes that—
(a)an imminent threat of serious violence to a person or substantial damage to property exists; and
(b)the use of a surveillance device is immediately necessary for the purpose of dealing with the threat; and
(c)the circumstances are of a degree of seriousness and the matter is of a degree of urgency that the use of a surveillance device is warranted; and
(d)it is not practicable in the circumstances to apply for a surveillance device warrant.
(2)An application may be made orally or in writing.

Note—

Applications may also be made under section 800.
(3)A senior officer may give an emergency authorisation for the use of a surveillance device on an application under subsection (1) if satisfied that there are reasonable grounds for the belief founding the application.
(4)An emergency authorisation given under this section may authorise the law enforcement officer to whom it is given to do anything that a surveillance device warrant may authorise them to do.

343A Emergency authorisation authorises use of existing device

(1)This section applies to an emergency authorisation that authorises the use of a stated kind of surveillance device on premises, or in or on a vehicle, object or class of vehicle or object.
(2)The emergency authorisation also authorises the use of a device (an existing device) that is on the premises, or in or on the vehicle or object, or a vehicle or object of the class, as a surveillance device of that kind.

Example of an existing device—

a security camera
(3)This section applies—
(a)whether or not it is necessary to do anything to or in relation to the existing device to enable it to be used as a surveillance device; and
(b)subject to any conditions of the emergency authorisation.

344Application for approval after use of surveillance device under emergency authorisation

(1)Within 2 business days after giving an emergency authorisation, a senior officer must apply to a Supreme Court judge for approval of the exercise of powers under the emergency authorisation.
(2)An application must be sworn and state—
(a)the name of the applicant; and
(b)the kind of surveillance device sought to be approved and, if a warrant is sought, the nature and duration of the warrant; and
(c)the grounds on which the approval, and warrant, if any, is sought.
(3)The applicant must advise the public interest monitor of the application under arrangements decided by the monitor.
(4)The judge may refuse to consider the application until the applicant gives the judge all the information the judge requires about the application in the way the judge requires.

345Who may be present at consideration of application

(1)The judge must hear the application for approval of the exercise of powers under the emergency authorisation in the absence of anyone other than the following—
(a)the applicant;
(b)a monitor;
(c)someone the judge permits to be present;
(d)a lawyer representing anyone mentioned in paragraphs (a) to (c).
(2)Also, the judge must hear the application—
(a)in the absence of the person placed under or proposed to be placed under surveillance (the relevant person) or anyone likely to inform the relevant person of the application; and
(b)without the relevant person having been informed of the application.

346Consideration of application

Before deciding an application for approval of the exercise of powers under an emergency authorisation given under section 343, the judge must, in particular, and being mindful of the highly intrusive nature of using a surveillance device, consider the following—
(a)the nature of the risk of serious violence to a person or substantial damage to property;
(b)the extent to which issuing a surveillance device warrant would have helped reduce or avoid the risk;
(c)the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk;
(d)how much the use of alternative methods of investigation could have helped reduce or avoid the risk;
(e)how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason;
(f)whether or not it was practicable in the circumstances to apply for a surveillance device warrant;
(g)any submissions made by a monitor.

347Judge may approve emergency use of powers

(1)After considering an application for approval of an emergency authorisation given under section 343, the judge may approve the application if satisfied that there were reasonable grounds to believe that—
(a)there was a risk of serious violence to a person or substantial damage to property; and
(b)using a surveillance device may have helped reduce the risk; and
(c)it was not practicable in the circumstances to apply for a surveillance device warrant.
(2)If the judge approves an application under this section, the judge may issue a surveillance device warrant for the continued use of the surveillance device as if the application were an application for a surveillance device warrant under part 2, division 2.
(3)If the judge does not approve an application under this section, the judge may—
(a)order that the use of the surveillance device cease; and
(b)authorise, on conditions the judge considers appropriate, the retrieval of the surveillance device.
(4)In any case, the judge may order that any information obtained from or relating to the exercise of powers under the emergency authorisation or any record of that information be dealt with in the way stated in the order.

348Admissibility of evidence

If the exercise of powers under an emergency authorisation is approved under section 347, evidence obtained because of the exercise of those powers is not inadmissible in any proceeding only because the evidence was obtained before the approval.

Part 3A Tracking device authorisations

348A Power to give tracking device authorisation

(1)A senior officer of the police service may authorise a police officer to use a tracking device for a stated period (the authorisation period) to find or monitor the geographical location of a person if—
(a)the person is to be taken into custody; and
(b)the senior officer is satisfied on reasonable grounds that—
(i)taking the person into custody may pose a serious risk to the safety of the person or another person; and
(ii)the use of a tracking device will help in taking the person into custody at a time or location that minimises the risk.
(2)An authorisation given under subsection (1) is a tracking device authorisation.
(3)The authorisation period for a tracking device authorisation must not be longer than 48 hours after the authorisation is given.
(4)Section 332(1) to (5) applies to a tracking device authorisation as if a reference in the subsections to a surveillance device warrant were a reference to a tracking device authorisation.
(5)However—
(a)section 332(2) and (4) applies to a tracking device authorisation subject to any conditions of the authorisation; and
(b)a tracking device authorisation must not authorise entry into a dwelling—
(i)to install a tracking device or enhancement equipment in the dwelling; or
(ii)to retrieve a tracking device or enhancement equipment from the dwelling.
(6)A tracking device authorisation authorises the use of the tracking device stated in the authorisation and any enhancement equipment for the purpose of retrieving the device and equipment.

348B Tracking device authorisation authorises use of existing device

(1)This section applies to a tracking device authorisation that authorises the use of a tracking device on premises, or in or on a vehicle, object or class of vehicle or object.
(2)The tracking device authorisation also authorises the use of a device (an existing device) that is on the premises, or in or on the vehicle or object, or a vehicle or object of the class, as a tracking device.
(3)This section applies—
(a)whether or not it is necessary to do anything to or in relation to the existing device to enable it to be used as a tracking device; and
(b)subject to any conditions of the tracking device authorisation.

348C Record of tracking device authorisation

As soon as reasonably practicable after a tracking device authorisation is given, the senior officer of the police service who gave the authorisation must make a written record stating—
(a)the date and time the authorisation was given; and
(b)the grounds for giving the authorisation.

348D When tracking device authorisation ends

(1)A tracking device authorisation ends when the first of the following happens—
(a)the person to whom the authorisation relates is taken into custody;
(b)the authorisation period for the authorisation ends or, if the authorisation period is extended under section 348E, the period as extended ends.
(2)If a tracking device authorisation ends under subsection (1), the authorisation stops having effect other than to the extent it authorises—
(a)the retrieval of the tracking device and any enhancement equipment; and
(b)the use of the tracking device and any enhancement equipment for the purpose of retrieving the device and equipment.
(3)However, after a tracking device authorisation ends, a police officer may exercise a power mentioned in subsection (2) only if a senior officer of the police service approves the exercise.
(4)This section does not stop a police officer from retrieving a tracking device and any enhancement equipment from premises if the presence of the police officer on the premises is not an offence.

348E Extension of tracking device authorisation

(1)Before a tracking device authorisation ends, a senior officer of the police service may extend the authorisation period for the authorisation, if the officer is satisfied on reasonable grounds of the matters mentioned in section 348A(1)(b).
(2)The authorisation period may be extended more than once, but must not be extended by more than 48 hours each time.
(3)As soon as reasonably practicable after extending the authorisation period, the senior officer of the police service must make a written record stating—
(a)the date and time the extension was given; and
(b)the length of the extension; and
(c)the grounds for the extension.

Part 4 Recognition of corresponding warrants and authorisations

349Corresponding warrants

(1)A corresponding warrant may be executed in this jurisdiction in accordance with its terms as if it were a surveillance device warrant or retrieval warrant, as the case requires, issued under part 2.
(2)To remove any doubt it is declared that subsection (1) applies even though the warrant—
(a)could not have been issued on an application made under this chapter; or
(b)if issued in this jurisdiction, would have been issued subject to stated conditions applying only in this jurisdiction.
(3)Also, subsection (1) applies even though the powers a law enforcement officer may exercise in the participating jurisdiction differ from powers a law enforcement officer may exercise under a warrant issued under this chapter.

350Corresponding emergency authorisations

(1)A corresponding emergency authorisation authorises the use of a surveillance device in accordance with its terms in this jurisdiction, as if it were an emergency authorisation given under part 3.
(2)Subsection (1) does not apply at any time after a judge orders, under a provision of a corresponding law that corresponds to section 347(3), that the use of a surveillance device under the corresponding emergency authorisation cease.
(3)To remove doubt it is declared that subsection (1) applies even though the corresponding emergency authorisation could not have been issued in this jurisdiction.

Part 5 Compliance and monitoring

Division 1 Restrictions on use, communication and publication of information

351Definitions for div 1

In this division—
protected information means—
(a)any information obtained from the use of a surveillance device under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
(b)any information relating to—
(i)an application for, issue of, variation of, existence of or expiry or revocation of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
(ii)an application for approval of powers exercised under an emergency authorisation; or
(iii)an application under a corresponding law for approval of powers exercised under a corresponding emergency authorisation.
relevant offence means an offence against a law of this jurisdiction that is—
(a)a three year imprisonment offence; or
(b)an offence included in schedule 3.
relevant proceeding means any of the following—
(a)the prosecution of a relevant offence;
(b)a bail application, or a review of a decision to grant or refuse bail, in relation to a relevant offence;
(c)a proceeding with a view to the committal of a person for trial for a relevant offence;
(d)an application for the exercise of a power in relation to a relevant offence—
(i)to a court or judicial officer; or
(ii)by a law enforcement officer to anyone under this chapter;
(e)a proceeding for the confiscation, forfeiture or restraint of property or for the imposition of a pecuniary penalty in connection with a relevant offence;
(f)a proceeding under the Confiscation Act or a corresponding law as defined under that Act for—
(i)the confiscation, forfeiture or restraint of property or for a pecuniary penalty order, an unexplained wealth order or a proceeds assessment order in connection with a serious crime related activity as defined under that Act; or
(ii)a serious drug offender confiscation order; or
(iii)a special forfeiture order;
(g)a proceeding for the protection of a child or a person with an impairment of the mind;
(h)a proceeding about the validity of a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation;
(i)a disciplinary proceeding against a public officer;
(j)a coronial inquest or inquiry if, in the opinion of the coroner, the event that is the subject of the inquest or inquiry may have resulted from the commission of a relevant offence;
(k)a proceeding under the Mutual Assistance in Criminal Matters Act 1987 (Cwlth), section 13, in relation to a criminal matter that concerns an offence against the laws of the foreign country that made the request resulting in the proceeding for which the maximum penalty is at least 3 years imprisonment or imprisonment for life;
(l)a proceeding for the taking of evidence under the Extradition Act 1988 (Cwlth), section 43, in so far as the proceeding relates to a relevant offence;
(m)a proceeding for the extradition of a person from another jurisdiction to this jurisdiction, in so far as the proceeding relates to a relevant offence;
(n)a proceeding under the International War Crimes Tribunals Act 1995 (Cwlth), part 4, division 1;
(o)a proceeding of the International Criminal Court.

352Prohibition on communication or publication of protected information

(1)A person commits an offence if—
(a)the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information; and
(b)the person knows that, or is reckless as to whether, the information is protected information; and
(c)the person knows that, or is reckless as to whether, the use, communication or publication of the information is not permitted by this division.

Maximum penalty—2 years imprisonment.

(2)A person commits a crime if the person commits an offence against subsection (1) in circumstances in which the person—
(a)intends to endanger the health or safety of any person or prejudice the effective conduct of an investigation into a relevant offence; or
(b)knows that, or is reckless as to whether, the disclosure of the information—
(i)endangers or will endanger the health or safety of any person; or
(ii)prejudices or will prejudice the effective conduct of an investigation into a relevant offence.

Maximum penalty—10 years imprisonment.

(3)Subsections (1) and (2) do not apply to—
(a)the use, communication or publication of any information that—
(i)has been disclosed in proceedings in open court; or
(ii)has entered the public domain; or
(b)the use or communication of protected information by a person who reasonably believes that the use or communication is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or
(c)the communication to the Director-General, as defined under the Australian Security Intelligence Organisation Act 1979 (Cwlth), of protected information that relates or appears to relate to activities prejudicial to security as defined under that Act; or
(d)the use or communication of information mentioned in paragraph (c) by an officer of the Australian Security Intelligence Organisation under the Australian Security Intelligence Organisation Act 1979 (Cwlth) in the performance of the officer’s official functions; or
(e)the use or communication of information to a foreign country or an appropriate authority of a foreign country under the Mutual Assistance in Criminal Matters Act 1987 (Cwlth); or
(f)the communication of information with the approval of the chief executive officer of the law enforcement agency communicating the information; or
(g)the communication by the monitor to the Commonwealth Ombudsman of information the monitor is satisfied is necessary to enable the Commonwealth Ombudsman to perform functions under the Surveillance Devices Act 2004 (Cwlth) in relation to the ACC; or
(h)the use or communication of information otherwise authorised under this division.

353Permitted use of protected information

(1)Protected information may be used, communicated or published if it is necessary to do so for any of the following purposes—
(a)the investigation of a relevant offence or a relevant offence as defined under a corresponding law;
(b)the making of a decision whether or not to bring—
(i)a relevant proceeding in relation to a relevant offence; or
(ii)a relevant proceeding as defined under a corresponding law in relation to a relevant offence as defined under that law;
(c)a relevant proceeding in relation to a relevant offence, or a relevant proceeding as defined under a corresponding law in relation to a relevant offence as defined under that law;
(d)an investigation of a complaint against, or the conduct of, a public officer as defined under this chapter or a public officer as defined under a corresponding law;
(e)the making of a decision in relation to the appointment, reappointment, term of appointment, termination or retirement of a person mentioned in paragraph (d);
(f)the keeping of records and the making of reports by a law enforcement agency under division 2 or a law enforcement agency, as defined under a corresponding law, under provisions of the corresponding law that correspond to division 2;
(g)an inspection by an inspection entity under section 362 or an inspection under a provision of a corresponding law that corresponds to section 362;
(h)an investigation under the law of this jurisdiction or a participating jurisdiction or of the Commonwealth about the privacy of personal information;
(i)the making of a decision whether or not to apply for a relevant order;
(j)the making of, or deciding, an application for a relevant order;
(k)the making of a decision whether or not to apply for an extension or further extension of a relevant order;
(l)the making of, or deciding, an application for an extension or further extension of a relevant order;
(m)the making of a decision whether or not to apply for the revocation of a relevant order;
(n)the making of, or deciding, an application for the revocation of a relevant order;
(o)a proceeding about varying or revoking a relevant order;
(p)the investigation or prosecution of an offence under a provision of a corresponding preventative detention law that corresponds to a provision of the Terrorism (Preventative Detention) Act 2005 mentioned in schedule 3.
(2)Subsection (1)(a) to (c) and (i) to (p) does not authorise the use, communication or publication of protected information in relation to an emergency authorisation or a corresponding emergency authorisation unless the use of powers under that emergency authorisation has been approved under section 347 or the provisions of a corresponding law that correspond to section 347.
(3)However, subsection (2) does not apply to the use or communication of protected information in an application under section 344 or the provisions of a corresponding law that corresponds to section 344 to obtain the approval under section 347 or the provisions of the corresponding law that correspond to section 347.
(4)Also, subsection (2) does not apply to the use or communication of protected information for a purpose mentioned in subsection (1)(i) to (l) relating to—
(a)an initial order under the Terrorism (Preventative Detention) Act 2005; or
(b)an order in the nature of an order mentioned in paragraph (a) made under a corresponding preventative detention law.
(5)A reference in subsection (1) to a relevant offence, whether of this jurisdiction or another jurisdiction, is a reference to any relevant offence of the relevant jurisdiction, whether or not the offence in relation to which the relevant warrant or emergency authorisation was issued or given.
(6)In this section—
corresponding preventative detention law means a corresponding law, as defined under the Terrorism (Preventative Detention) Act 2005, schedule.
relevant order means—
(a)a preventative detention order under the Terrorism (Preventative Detention) Act 2005; or
(b)a prohibited contact order under the Terrorism (Preventative Detention) Act 2005; or
(c)an order in the nature of an order mentioned in paragraph (a) or (b) made under—
(i)a corresponding preventative detention law; or
(ii)the Criminal Code of the Commonwealth, division 104.

354Dealing with records and reports obtained by use of surveillance devices

(1)This section applies to a record or report obtained by use of a surveillance device by a law enforcement officer of a law enforcement agency under—
(a)a warrant; or
(b)an emergency authorisation; or
(c)a corresponding warrant; or
(d)a corresponding emergency authorisation; or
(e)a tracking device authorisation.
(2)The chief executive of the law enforcement agency must—
(a)ensure the record or report is kept in a secure place that is not accessible to people who are not entitled to access or deal with the record or report; and
(b)ensure the record or report is destroyed if satisfied the record or report is not likely to be required in connection with a purpose mentioned in section 352(3) or 353(1).
(3)Subsection (2) does not apply to a record or report that is received into evidence in legal proceedings or disciplinary proceedings.
(4)Subsection (2) does not prevent information or other matter relevant to an offence of which someone has been convicted being preserved for any period or indefinitely if there is any possibility that an issue about the conviction may arise.

355Protection of surveillance device technologies and methods

(1)Despite the Recording of Evidence Act 1962, a transcript of a proceeding under this chapter for an application or order or approval must not be made.
(2)A person must not publish a report of a proceeding under this chapter for an application or order or approval.

Maximum penalty—85 penalty units or 1 year’s imprisonment.

(3)Subsection (4) applies to a proceeding before a court, a tribunal or a commission of inquiry under the Commissions of Inquiry Act 1950.
(4)Without limiting section 803, if the person conducting or presiding over a proceeding is satisfied that publication of any information disclosed in the proceeding could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices, the person must make any orders prohibiting or restricting publication of the information that the person considers necessary to ensure that those details are not revealed.
(5)Subsection (4) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.

356Protected information in the custody of a court

A person is not entitled to search any protected information in the custody of a court unless a Supreme Court judge otherwise orders in the interests of justice.

Division 2 Reporting and record keeping

357Report to judge or magistrate

(1)A law enforcement officer to whom a warrant is issued, or who is primarily responsible for executing a warrant issued, under this chapter must make a report as required under this section.
(2)The report must be made to the judge or magistrate who issued the warrant or to the public interest monitor as stated in the warrant.
(3)The report must be made—
(a)within the time stated in the warrant; or
(b)if the warrant is revoked before the end of the time stated in the warrant—as soon as practicable after the warrant is revoked and within the time stated in the warrant.
(4)For a surveillance device warrant, the report must—
(a)state whether the warrant was executed; and
(b)if so—
(i)state the name of each person involved in the execution of the warrant; and
(ii)state the kind of surveillance device used; and
(iii)state the period when the device was used; and
(iv)state the name, if known, of any person whose conversations or activities were overheard, recorded, monitored, listened to or observed by the use of the device; and
(v)state the name, if known, of any person whose geographical location was found by the use of a tracking device; and
(vi)give details of any premises on which the device was installed or any place where the device was used; and
(vii)give details of any vehicle or object in or on which the device was installed or any premises where the vehicle or object was located when the device was installed; and
(viii)give details of the benefit to the investigation of the use of the device and of the general use made or to be made of any evidence or information obtained by the use of the device; and
(ix)give details of the compliance with the conditions, if any, to which the warrant was subject; and
(c)if the warrant was extended or varied, state—
(i)the number of extensions or variations; and
(ii)the reasons for them; and
(d)if written notice was given to the public interest monitor under section 335, state the reasons for the notice.
(5)For a retrieval warrant, the report must—
(a)give details of any premises entered, anything opened and any vehicle or object removed and replaced under the warrant; and
(b)state whether the surveillance device was retrieved under the warrant; and
(c)if the device was not retrieved, state the reason that the device was not retrieved; and
(d)give details of the compliance with the conditions, if any, to which the warrant was subject; and
(e)if written notice was given to the public interest monitor under section 342, state the reasons for the notice.
(6)If a report is given to the public interest monitor, the monitor may refer the report to a judge or magistrate for the purpose of an order being made under subsection (7).
(7)On receiving a report, the judge or magistrate may order that any information obtained from or relating to the execution of the warrant or any record of that information be dealt with in the way stated in the order.
(8)The function imposed on a law enforcement officer by subsection (1) may be performed by the person for the time being occupying or acting in the office or position held by the law enforcement officer.

Note—

Provision for a statutory function to be performed by a person acting in an office is also made by the Acts Interpretation Act 1954, section 23(2).

358Annual reports

(1)The chief executive officer of a law enforcement agency must make a report under subsection (4) that includes the following information for each financial year—
(a)the number of applications for warrants by and the number of warrants issued to law enforcement officers of the agency during that year;
(b)the number of applications for emergency authorisations by and the number of emergency authorisations given to law enforcement officers of the agency during that year;
(c)the number of remote applications for warrants by law enforcement officers of the agency during that year;
(d)the number of applications for warrants or emergency authorisations by law enforcement officers of the agency that were refused during that year, and the reasons for refusal, if known;
(e)the number of applications for variations or extensions of warrants by law enforcement officers of the agency during that year, the number of variations or extensions granted or refused and, if refused, the reasons for refusal, if known;
(f)the number of arrests made by law enforcement officers of the agency during that year on the basis, entirely or partly, of information obtained by the use of a surveillance device under a warrant or emergency authorisation;
(g)the number of prosecutions that were started in this jurisdiction during that year in which information obtained by the use of a surveillance device under a warrant or emergency authorisation was given in evidence and the number of those prosecutions in which a person was found guilty;
(h)for the police service—
(i)the number of tracking device authorisations given to police officers during that year; and
(ii)the number of tracking device authorisations for which the authorisation period was extended under section 348E during that year; and
(iii)for each tracking device authorisation given during that year, a statement about whether or not the use of the tracking device helped in minimising the risk mentioned in section 348A(1)(b)(i);
(i)any other information about the use of surveillance devices and the administration of this chapter that the Minister considers appropriate.
(2)The information mentioned in subsection (1)(a) and (b) must be presented in a way that identifies the number of warrants issued and emergency authorisations given for each different kind of surveillance device.
(3)The report must not contain information that—
(a)discloses or may lead to the disclosure of the identity of any person who has been, is being or is to be investigated; or
(b)indicates a particular investigation has been, is being or is to be conducted.
(4)The report must be given as soon as practicable after the end of each financial year, and within 3 months after the end of the financial year, to—
(a)for the police service—the Minister; or
(b)for the CCC—the parliamentary committee chairperson.

Note—

The Surveillance Devices Act 2004 (Cwlth) makes provision for reports by the ACC about activities under State law.
(5)The Minister or parliamentary committee chairperson must cause a copy of the report to be tabled in the Legislative Assembly within 14 sitting days after the Minister or chairperson receives the report.

Note—

The Parliament of Queensland Act 2001, section 59 makes provision for the tabling of reports when the Assembly is not sitting.

359Keeping documents connected with warrants and authorisations

The chief executive officer of a law enforcement agency must cause the following or a copy of the following to be kept—
(a)each warrant issued to a law enforcement officer of the agency;
(b)each notice given to the chief executive officer under section 334(3) of revocation of a warrant;
(c)each application made by a law enforcement officer of the agency for an emergency authorisation;
(d)each emergency authorisation given to a law enforcement officer of the agency;
(e)each application made by a law enforcement officer of the agency for—
(i)a warrant; or
(ii)variation, extension or revocation of a warrant; or
(iii)approval of the exercise of powers under an emergency authorisation;
(f)each report made under section 357;
(g)each certificate issued by a senior officer of the agency under section 364;
(h)for the police service—each record made under section 348C or 348E(3).

360Other records to be kept

The chief executive officer of a law enforcement agency must cause the following to be kept—
(a)a statement as to whether each application made by a law enforcement officer of the agency for a warrant, or variation, extension or revocation of a warrant, was granted, refused or withdrawn;
(b)a statement as to whether each application made by a law enforcement officer of the agency for an emergency authorisation, or for approval of powers exercised under an emergency authorisation, was granted, refused or withdrawn;
(c)details of each use by the agency, or by a law enforcement officer of the agency, of information obtained by the use of a surveillance device by a law enforcement officer of the agency;
(d)details of each communication by a law enforcement officer of the agency to a person other than a law enforcement officer of the agency of information obtained by the use of a surveillance device by a law enforcement officer of the agency;
(e)details of each occasion when, to the knowledge of a law enforcement officer of the agency, information obtained by the use of a surveillance device by a law enforcement officer of the agency was given in evidence in a relevant proceeding as defined in section 351;
(f)details of the destruction of records or reports under section 354(2)(b).

361Register of warrants and authorisations

(1)The CCC chairperson must keep a register of warrants and emergency authorisations.
(2)The commissioner must keep a register of warrants, emergency authorisations and tracking device authorisations.
(3)A register kept under subsection (1) or (2) must be or form part of the register of covert acts kept under chapter 21, part 2, division 2.

Division 3 Inspections

362Inspection of records

(1)The inspection entity for a law enforcement agency must, from time to time, inspect the records of the law enforcement agency to decide the extent of compliance with this chapter by the agency and law enforcement officers of the agency.
(2)For the purpose of an inspection, the inspection entity—
(a)after notifying the chief executive officer of the agency, may enter at any reasonable time premises occupied by the agency; and
(b)is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c)may require a member of staff of the agency to give the inspection entity any information that the inspection entity considers necessary, being information that is in the member’s possession, or to which the member has access, and that is relevant to the inspection.
(3)The chief executive officer must ensure that members of staff of the agency give the inspection entity any help the inspection entity reasonably requires to enable the inspection entity to perform functions under this section.
(4)For applying this section to the parliamentary commissioner as inspection entity for the CCC, this section does not limit the parliamentary commissioner’s powers under the Crime and Corruption Act 2001, chapter 6, part 4, division 4.

363Report on inspection

(1)The inspection entity of a law enforcement agency must make a written report at 6 monthly intervals on the results of each inspection under section 362.
(2)The report may include comments or observations about the use and effectiveness of surveillance device warrants.
(3)The inspection entity must give the report to—
(a)if the inspection entity is the public interest monitor—the Minister; or
(b)if the inspection entity is the parliamentary commissioner—the parliamentary committee chairperson.
(4)The report must not contain information that—
(a)discloses or may lead to the disclosure of the identity of any person who has been, is being or is to be investigated; or
(b)indicates a particular investigation has been, is being or is to be conducted.
(5)The Minister or the parliamentary committee chairperson must cause a copy of the report to be tabled in the Legislative Assembly within 14 sitting days after receiving the report.

Note—

The Parliament of Queensland Act 2001, section 59 makes provision for the tabling of reports when the Assembly is not sitting.

Division 4 General

364Evidentiary certificates

(1)A senior officer of a law enforcement agency may issue a written certificate signed by the officer stating any facts the officer or person considers relevant about—
(a)anything done by a law enforcement officer of the agency, or by a person helping or providing technical expertise to him or her, in connection with the execution of a warrant or in accordance with an emergency authorisation; or
(b)anything done by a law enforcement officer of the agency in connection with—
(i)the communication by a person to another person; or
(ii)the making use of; or
(iii)the making of a record of; or
(iv)the custody of a record of;

information obtained by the use of a surveillance device under a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation.

(2)A document purporting to be a certificate issued under subsection (1) or under a provision of a corresponding law that corresponds to subsection (1) is admissible in any proceeding as evidence of the matters stated in it.
(3)Subsection (2) does not apply to a certificate to the extent that the certificate states facts about anything done in accordance with an emergency authorisation or corresponding emergency authorisation unless the use of powers under that authorisation has been approved under section 347 or under a provision of a corresponding law that corresponds to section 347.

Chapter 14 Arrest and custody powers

Part 1 Arrest without warrant

365Arrest without warrant

(1)It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—
(a)to prevent the continuation or repetition of an offence or the commission of another offence;
(b)to make inquiries to establish the person’s identity;
(c)to ensure the person’s appearance before a court;
(d)to obtain or preserve evidence relating to the offence;
(e)to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;
(f)to prevent the fabrication of evidence;
(g)to preserve the safety or welfare of any person, including the person arrested;
(h)to prevent a person fleeing from a police officer or the location of an offence;
(i)because the offence is an offence against section 790 or 791;
(j)because the offence is an offence against the Domestic and Family Violence Protection Act 2012, section 177, 178 or 179;
(k)because of the nature and seriousness of the offence;
(l)because the offence is—
(i)an offence against the Corrective Services Act 2006, section 135(4); or
(ii)an offence to which the Corrective Services Act 2006, section 136 applies.
(2)Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 15.
(3)Subject to the Youth Justice Act 1992, section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.

Note—

Under the youth justice principles in the Youth Justice Act 1992, schedule 1, it is a principle of that Act that a child should be detained in custody for an offence, whether on arrest, remand or sentence, only as a last resort and for the least time that is justified in the circumstances.

365AArrest without warrant upon instruction of another police officer

(1)It is lawful for a police officer (the arresting officer), without warrant, to arrest a person if instructed to do so by another police officer (the instructing officer).
(2)However, subsection (1) does not apply unless—
(a)the instructing officer reasonably suspects the person has committed or is committing an offence; and
(b)the arrest of the person is reasonably necessary for 1 or more of the reasons mentioned in section 365(1) or the reason mentioned in section 365(2); and
(c)if the person is a child—it is lawful for the instructing officer to arrest the child under section 365(3); and
(d)it is not practicable for the instructing officer to personally arrest the person; and
(e)it is not practicable, because of an emergency situation or other particular circumstances, for the arresting officer to personally form the suspicion mentioned in section 365(1), (2) or (3) and to lawfully arrest the person under section 365(1), (2) or (3).
(3)If a person is arrested under subsection (1), the instructing officer must—
(a)make a record of the instruction and the reasons under subsection (2) for giving the instruction; and
(b)take reasonable steps to give a copy of the record to the arresting officer.
(4)Also, the instructing officer must inform the arresting officer at the earliest reasonable opportunity if the instructing officer stops holding the suspicion mentioned in subsection (2)(a).
(5)A failure to give a copy of the record mentioned in subsection (3)(b) to the arresting officer does not affect the lawfulness of the arrest.
(6)In this section—
emergency situation see the Public Safety Preservation Act 1986, schedule.

366Arrest of escapees etc.

(1)It is lawful for a police officer to arrest, without warrant, a person the police officer reasonably suspects is escaping or has escaped from lawful custody.
(2)Also, it is lawful for a police officer to arrest, without warrant, a prisoner who is unlawfully at large within the meaning of the Corrective Services Act 2006, section 112.
(3)Also, a police officer has the same powers as a corrective services officer has under a warrant under the Corrective Services Act 2006, section 112.

367Arrest of person granted bail

(1)This section applies if a person has been granted bail for an offence, whether or not the person was arrested for the offence.
(2)It is lawful for a police officer to arrest the person, without warrant, if the police officer reasonably suspects—
(a)the person has left the precincts of the court that granted bail without entering into an undertaking as required by the court; or
(b)the person has left the precincts of the court without fulfilling any conditions the person must comply with before leaving the precincts of the court.
(3)Also, it is lawful for a police officer to arrest the person, without warrant, if—
(a)the police officer reasonably suspects—
(i)the person is likely to contravene, is contravening, or has contravened—
(A)the condition for the person’s appearance; or
(B)another condition of the undertaking on which the person was granted bail; or

Note—

For the matters a police officer must consider before arresting a child under this subparagraph, see the Youth Justice Act 1992, section 59A.
(ii)a surety for the person’s appearance is dead; or
(iii)for any reason, the security for the person’s appearance is no longer adequate; or
(iv)the person is likely to fail to appear before a court to answer a charge against the person for the offence; or
(b)a surety has given to a police officer written notice stating the surety wishes to be relieved of the obligation of being a surety for the person because the surety believes the person is likely to contravene the condition for the person’s appearance; or
(c)the police officer reasonably suspects the person is directly or indirectly harassing or interfering with a person who may be required to give evidence relating to the offence for which the person has been released on bail.
(4)However, before arresting a child under subsection (3), a police officer must consider whether, in all the circumstances, it would be more appropriate for an application to be made under the Bail Act 1980 for a variation or revocation of the child’s bail.
(5)Subsection (4) does not apply in relation to the arrest of a child under subsection (3)(a)(i) or (iv) or (c).
(5)Subsection (4) does not apply to the arrest of a child under subsection (3)(a)(i)(A), (a)(iv) or (c).
(6)In this section—
precincts of a court, means any land or building, or the part of any land or building, used for the purposes of the court.
undertaking means an undertaking under the Bail Act 1980.

368Arrest of person given notice to appear or summons

(1)This section applies to a person who has been given a notice to appear or a summons for an offence, whether or not the person has been arrested for the offence.
(2)It is lawful for a police officer to arrest a person, without warrant, if the police officer reasonably suspects the person—
(a)is directly or indirectly harassing or interfering with a person who may be required to give evidence relating to the offence for which the person has been given a notice to appear or summons; or
(b)is likely to fail to appear before a court to answer a charge against the person for the offence.
(3)This section does not apply to a child.

Part 2 Arrest under warrant

369Arrest under warrant

(1)It is lawful for a police officer acting under a warrant issued under any Act or law to arrest the person named in the warrant.
(2)In this section—
arrest includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

370Arrest warrant application

(1)A police officer may apply to a justice for a warrant to arrest a person for an offence (arrest warrant).
(2)The police officer may apply for the warrant whether or not a proceeding has been started against the person by complaint and summons or notice to appear.
(3)The application must be sworn and state the grounds on which the warrant is sought.
(4)If the application—
(a)relates to an offence other than an indictable offence; and
(b)is made because the applicant reasonably believes proceeding or continuing to proceed against the person named in the application by complaint and summons or notice to appear would be ineffective;

the application must state the belief and the reasons for the belief.

(5)The justice may refuse to consider the application until the police officer gives the justice all the information the justice requires about the application in the way the justice requires.

Example—

The justice may require additional information supporting the application to be given by statutory declaration.

371Issue of arrest warrant

The justice may issue an arrest warrant only if satisfied there are reasonable grounds for suspecting—
(a)that the person has committed the offence; and
(b)for an offence other than an indictable offence, proceedings by way of complaint and summons or notice to appear for the offence would be ineffective, including because the person can not currently be located or served with a complaint and summons or notice to appear for the offence.

372What arrest warrant must state

(1)An arrest warrant must state the following—
(a)the name of the applicant for the warrant and the applicant’s rank, registered number and station;
(b)that any police officer may arrest the person named in the warrant;
(c)the offence the person is alleged to have committed.
(2)It is sufficient to describe an offence in the words of the law defining it, or in similar words.
(3)A description of persons or things that would be sufficient in an indictment is sufficient in an arrest warrant.

373Compliance with limitation of proceedings

(1)This section applies to an arrest warrant issued under section 371(b).
(2)For the Justices Act 1886, section 52 or another provision of an Act that imposes a limitation of proceedings for the offence by reference to when a complaint was made for the offence or to when proceedings for the offence are started, a complaint is taken to be made, and the proceedings started, when the warrant is issued.

Part 3 Other provisions about arrest

374Power of arrest for offences committed outside the State

(1)This section applies to an offence (an extradition offence) that—
(a)is an offence against the law of another State; and
(b)in that other State, is an indictable offence or an offence for which the maximum penalty is at least 2 years imprisonment.
(2)It is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects is committing or has committed an extradition offence.
(3)The person may be detained in custody under chapter 15 and questioned in relation to the extradition offence by either of the following, as if the offence had been committed in Queensland—
(a)a police officer;
(b)a member of the police force or police service of the State where the offence happened.
(4)The Justices Act 1886 and the Bail Act 1980 apply to a person arrested for an extradition offence as if the offence were committed in Queensland, but only to allow a person to apply, within 7 days, for the extradition of the person to the State where the extradition offence is alleged to have been committed.
(5)If a proceeding for the person’s extradition is not started within 7 days—
(a)the person, if remanded in custody, must be released from custody; and
(b)any order for bail is discharged.

Part 4 Discontinuing arrest

375Effect of release under pt 4

If an arrested person is released under this part, any charge of an offence for which the arrested person is released is discontinued.

376When arrest may be discontinued—general rule

(1)It is the duty of a police officer to release an arrested person at the earliest reasonable opportunity if the person is no longer reasonably suspected of committing the offence for which the person was arrested.
(2)Subsection (1) does not apply if the person—
(a)is reasonably suspected of another offence, whether or not arising out of the circumstances of the offence for which the person was arrested; or
(b)may be detained for another reason, for example because of a breach of a bail condition; or
(c)is in custody for another offence.
(3)Also, it is the duty of a police officer to release an arrested person who is reasonably suspected of committing the offence for which the person was arrested if, within a reasonable time after the arrest, the police officer considers there is not enough evidence to bring the person before a court on a charge of the offence.

377Additional case when arrest of adult may be discontinued

(1)This section applies to an arrested person who is an adult.
(2)It is the duty of a police officer to release the person at t