NSW Law Enforcement Act (2023)

oz47 · August 29, 2023, 7:02pm

Law Enforcement Act 2023 (New South Wales)

Part 1 – Administration

Definitions

Public place – any location that is normally accessible by a member of the public where there is no physical or administrative barrier to entry. Examples include streets, parks, customer-only areas of banks, shops and stores.

Private premises – any location that is secured behind a physical seal such as a door, gate or otherwise barred to entry by members of the public as a result of formal membership. Examples include nightclubs, secure areas of workplaces and staff-only areas of premises. A property can be privately owned but may still have a public area within the boundary such as a driveway.

Police officer – any individual who (a) successfully completes the induction training delivered by an appointed training officer of the New South Wales Police Force or Australian Federal Police and (b) maintains an active employment status with the New South Wales Police Force or Australian Federal Police.

Senior police officer – any police officer of the New South Wales Police Force or Australian Federal Police who holds a current rank of Sergeant and above.

Executive police officer – any police officer of the New South Wales Police Force or Australian Federal Polcie who holds a position in the Police Administration team (ranking Inspector and above).

Cabinet – any police officer of the New South Wales Police Force or Australian Federal Police who holds a current rank of Assistant Commissioner and above.

Motor vehicle – any vehicle designed to be propelled by a motor, regardless of seat or wheel configuration or intended use of operation with regards to maritime, land or aviation environments.

Road (or ‘road related area’) - an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.

Authorised custody facility - a correctional centre or police station with facilities to hold prisoners.

Part 2 – General powers

Powers of entry

Power to enter premises in emergencies – a police officer may enter any premises if the police officer believes on reasonable grounds that a person in those premises has suffered a significant physical injury or there is an imminent danger of significant injury to a person in those premises and that immediate entry to the premises is required to prevent further danger.
Power to enter premises to arrest person – a police officer may enter a premises without warrant if the police officer reasonably suspects a person is in those premises that may have recently committed an offence.

Powers of identification

Power to demand identity from person – a police officer may require a person to supply adequate identification if the police officer reasonably suspects that person recently committed or was committing an offence.
Power to demand identity from driver of motor vehicle – a police officer may require a driver of a motor vehicle to supply their identification in the form of the correct licence class for the motor vehicle for which they are operating.
Power to demand identity from passenger of motor vehicle – a police officer may require a passenger of a motor vehicle to supply their identification if the police officer reasonably suspects that the vehicle was used in the commission of an offence.
Power to require proof of identification – a police officer may require a person to supply physical proof of that person’s identification (for example, a driver’s licence, firearms licence or any other government issued card with their name and date of birth on it).
Power to require removal of face covering – a police officer may require a person to remove their face covering such as mask, helmet, hat or any other object which obstructs the full view of the person’s face in order for the police officer to make enquiries into their identity.

Powers relating to searches and seizures of items

Power to search a person and/or vehicle without warrant – a police officer may detain a person and/or vehicle for the purposes of a search if the police officer suspects on reasonable grounds that the person and/or vehicle is being used in the commission of an offence or was recently used in the commission of an offence.
Power to search a person wearing tactical/combat apparel -

A police officer may search an individual under Section 8 of this Act if the individual is seen to be wearing apparel and/or equipment in public such as:

Visible body armour worn over the person’s clothing
Tactical/combat style helmets
Tactical vests
Exemption to wearing of military style equipment -

Emergency service workers and approved security providers carrying out their regular duties are exempt from the provisions of Section 8A. Hip holsters and thigh holsters are NOT considered to be tactical/combat-style equipment.

Power to search a person on arrest – a police officer may search a person upon their arrest.
Power to search detained person – a police officer may search a detained person.
Power to seize items following search – a police officer may, following the search of a person or vehicle, seize any located items and transport those items to an authorised evidence storage facility.

Powers relating to vehicles

Power to stop vehicles – a police officer may issue a direction for a vehicle to stop for the purpose of the police officer exercising another power under this Act. Once stopped, a police officer may also inspect a vehicle for defects as listed under Part 6 of the Criminal Offences Act 2021 (NSW).
Power to stop and board vessel – a police officer may board a maritime vessel for the purposes of exercising a power under this Part.

Powers relating to crime scenes

Power to establish crime scene in public place – a police officer may establish a crime scene in a public place for as long as reasonably necessary if the police officer believes on reasonable grounds that an offence recently occurred in that public place.
Power to establish crime scene in private premises – a police officer may establish a crime scene in private premises for a period of one hour if the police officer believes on reasonable grounds that an offence recently occurred in those private premises. A police officer may apply to a senior police officer for an extension of this time under Section 24 of this Act.
Power to take actions to secure a crime scene and seize evidence – a police officer may take any reasonable actions necessary to secure an established crime scene and to prevent interference with it. A police officer may also take any item from a crime scene if the officer suspects on reasonable grounds it may be evidence in an investigation.

Powers relating to investigations

Power to give reasonable direction – a police officer may issue a “reasonable direction” to a person or group of individuals in a public place to cease their behaviour if the behaviour is:
harassing in nature or causing fear to members of the public;
associated with drug buying/selling behaviour;
obstructing traffic;
interfering with a police crime scene.
Power to detain person for investigation – a police officer may detain a person for the purposes of investigating whether the person is connected to an offence if the police officer suspects on reasonable grounds that the person may be able to provide information relating to that offence. The person being detained must be clearly and immediately be informed of the reason for their detainment. It is an offence for a person not to comply with being detained.
Power to detain person for purpose of gunshot residue test– a police officer may detain a person who they reasonably suspect had involvement in an offence for the purpose of subjecting them to a field forensic procedure involving gunshot residue testing (otherwise known as a “GSR test”).
Power to issue infringement notices – a police officer may issue a Penalty Infringement Notice (“ticket” or “infringement”) to a person for certain offences. The person must be notified that a Penalty Infringement Notice is being issued.
Power to charge person or revoke relevant licence – a police officer may charge a person if they suspect on reasonable grounds that an offence did occur and that the person had a role as an offender. A police officer must be able to prove beyond reasonable doubt that a person committed an offence. A police officer must take a person to an authorised custody facility prior to being charged and sentenced where a period of imprisonment may apply. A police officer may also choose to revoke vehicle driver’s licences and firearms licences for relevant circumstances including those listed under Section 56 of this Act.
Power to use reasonable force – police officers and corrections officers may use as much force as is reasonable in the circumstances when arresting a person or affecting any of the powers under this Act.

Part 3 – Warrants

Arrest warrants – a police officer may issue a warrant for the arrest of a person if the police officer suspects on reasonable grounds that (a) the person may have recently committed an offence and (b) the issuing of an arrest warrant is necessary as the person could not be immediately arrested for the offence.
Search warrants – a police officer may apply to the Commissioner for a search warrant if the police officer suspects on reasonable grounds that a person, place, vehicle or specific records may hold evidence relating to the commission of an offence. A Commissioner of Police or authorised delegate in Cabinet must review the search warrant and apply for approval from an authorised Justice of the Department of Justice as soon as reasonably practicable.
Service of search warrants – a police officer must serve the search warrant to the subject of that search warrant by electronic means ((#city-messageboard)) provided that the search warrant is not issued under Section 23B of this Act. Service of covert search warrants may be completed at a later time and date when the risk can be appropriately managed.
Covert search warrant authorisation – a magistrate may, where appropriate to do so, authorise the New South Wales Police Force to act in a covert or otherwise deceptive manner to execute a search warrant if executing the search warrant through non-covert means would place a source of information in great danger, if it would compromise an ongoing high-risk criminal investigation or if the person who is subject to the warrant is no longer the holder of a valid visa to enter the city.
Assumed Search Warrant: If an individual who has been supplied with a warrant and raided within the last 60 days is found to possess any illegal firearms or supply quantity (Or greater) of illegal items (precursors or drugs) only approval from either Police and/or AFP cabinet and/or DOJ is required for an instant search of all assets IE properties and vehicles.
Crime scene warrants - a police officer may apply to a senior police officer for an hour-long extension if an established crime scene at private premises is required to remain in place for longer than one hour.

Part 4 – Senior officer powers

Power to declare martial law – a police officer of the rank Senior Sergeant and above may declare the imposition of Martial Law in accordance with the Police Protocol.
Power to authorise collection of forensic sample from person in custody – a police officer of the rank Sergeant and above may authorise another officer to collect a forensic sample from a person in custody for the purpose of identification of that person or to collect evidence for an investigation. The collection of the sample may be obtained by consent of the person or by using reasonable force if no consent exists.
Approved forensic samples - The collection of a forensic sample under Section 26 of this Act may be obtained from fingerprints, blood, saliva, skin, sweat or a hair sample obtained from the upper body of the person. A blood sample which is collected directly from a person in custody must only ever be obtained with the assistance of a qualified medical professional.
Requirement to store forensic samples and evidence – a police officer who obtains a forensic sample or other evidence must make efforts to securely store the forensic sample or evidence for future use. An application may be made by police to the Department of Justice to dispose of evidence.
Power to impose vehicle sanctions – a police officer who holds the rank Sergeant and above may issue a vehicle sanction or “strike” in response to incidents where a vehicle is used in the commission of an offence. A police officer who imposes a vehicle sanction must immediately record the strike in accordance with the Police Protocol.
Power to lift vehicle sanctions – a police officer who holds the rank Sergeant and above may lift an imposed vehicle sanction or “strike”.
Power to impose bail conditions on a person in custody – a police officer who holds a designation as a prosecutor or a member of the Cabinet of the New South Wales Police Force may impose relevant and reasonable bail conditions on a person in police custody for a reasonable period of time where the bail condition is likely to discourage and reduce the risk of re-offending. The authorised police officer must immediately record the bail condition imposed on the person and make them aware of the condition and length of time the condition(s) will remain in place. A bail condition should be implemented if a person in custody is released without charge pending further enquiries. The person must be informed of the bail condition and the expiry date of the condition.
Power to lift bail conditions – a police officer who holds the designation of Prosecutor or a member of Cabinet may lift bail conditions on a person before the conclusion of the reasonable period of time.

Part 5 – Investigation and custody management

Reasonable length of custody – a police officer must not hold an arrested or detained person for longer than is reasonably necessary.
Times disregarded when determining reasonable length of custody – the below situations do not factor into determining how long a “reasonable length of custody” should apply:
Time spent waiting for legal advisors to arrive to the police station or custody area;
Interview times;
Time allocated to forensic procedures such as fingerprints, gunshot residue testing, photographing or DNA collection;
Time spent writing a charge for an accused person;
Other times for certain situations that may result in a delay in processing a person through the custody system.
Information sharing with other agencies – the New South Wales Police Force may share relevant information with other New South Wales government agencies including other emergency services and the Department of Justice.
Information sharing with private businesses – the New South Wales Police Force may disclose a person’s criminal history and traffic history to authorised representatives of private businesses for the purpose of pre-employment checks of that person.
Information sharing with legal professionals – the New South Wales Police Force may disclose a person’s criminal history and traffic history to formally recognised legal professionals.

Part 6 – Safeguards when exercising powers

Officer must disclose identity when requested – a police officer must supply their callsign and rank when requested to do so by a person who is subject to a police power under this Act.
Officer must provide proof of office – a police officer who is not in police uniform who exercises a power under this Act, upon request by a person, must provide proof they are a police officer. The accepted method of proof of office is a blue police badge or darkened Major Crimes Division badge or vest.
Absent request for identification of an officer – a power exercised by a police officer is not automatically deemed to be invalid if the officer does not identify themselves without a request from a person for the officer’s identity. ((essentially if nobody asks for the police officer’s identification it does not make anything they do invalid/illegal))

Part 7 - Arrests

Arrest of person without warrant – a police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is committing or has committed an offence and the police officer is satisfied on reasonable grounds that the arrest is necessary for any one or more of the following reasons:

(i) to stop the person committing or repeating the offence or committing another offence,

(ii) to stop the person fleeing from a police officer or from the location of the offence,

(iii) to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,

(iv) to ensure that the person appears before a court in relation to the offence,

(v) to obtain property in the possession of the person that is connected with the offence,

(vi) to preserve evidence of the offence or prevent the fabrication of evidence,

(vii) to prevent the harassment or interference with witnesses,

(viii) to protect the safety or welfare of any person,

(ix) because of the nature and seriousness of the offence.

Arrest of person subject to arrest warrant – a police officer may arrest a person named in an arrest warrant. Upon execution of the arrest warrant, the warrant is to be removed and the person is not to be re-arrested for the same warrant.
Power to discontinue arrest or detainment – a police officer may discontinue an arrest or detainment at any time if the arrested person is no longer a suspect or the reason for arrest or detainment no longer exists OR if it is more appropriate that the matter for which they were arrested or detained be dealt with by other means.

Part 8 - Exemptions

Exemption for drivers of emergency service vehicles – an emergency services officer who is driving an emergency vehicle may disobey road rules if, in the circumstances, the driver is taking reasonable care and it is reasonable that the road rules should not apply.
Exemption for use of emergency lights by emergency services officers – an emergency services officer who is driving an emergency services vehicle may use red and blue flashing lights and sirens to warn other road users where the circumstances are reasonable to do so.

Part 9 - Conduct, disciplinary and legal matters

Internal investigations involving police officers – a police officer who holds the rank Inspector and above may commence and investigate a disciplinary matter against another police officer where reasonable circumstances exist. The outcome of the investigation must be documented and be available for review by the Department of Justice. The Department of Justice may order the New South Wales Police Force to re-investigate a matter.
External investigations involving senior executive police officers – the Department of Justice is the designated investigation agency that will investigate professional conduct matters relating to the Commissioner of the New South Wales Police Force.
Reporting of complaints – no person or entity shall be restricted from reporting a complaint against the New South Wales Police Force. The reporting of complaints must be in writing via the electronic Ethical Conduct Complaint reporting system.
Notification of complaint outcomes – the Ethical Conduct Command must notify voluntarily identifiable informants of a general nature of the outcome of their complaint.
Termination of employment – the employment of a police officer of the New South Wales Police Force may be terminated at the discretion of the Ethical Conduct Command, or involuntarily due to medical reasons or they may resign of their own accord.
Termination due to loss of confidence – the Commissioner or authorised delegate of their choosing may remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.
Negotiations involving legal proceedings – a person (including their legal representative) accused of committing a criminal offence and the New South Wales Police Force must make reasonable efforts to resolve legal matters prior to a court hearing being requested by the defence.
Requests for court hearings – only a defendant or an accredited lawyer on their behalf may elect to enter a “not guilty” plea and request a matter be dealt with in a court hearing overseen by a magistrate.
Immunity of individual emergency service officers (vicarious liability) – a police officer, emergency medical service officer or corrections officer may not be listed as a defendant for court matters unless they were committing a criminal offence while on-duty and the New South Wales Police Force have commenced proceedings against that officer. Civil matters may not be initiated against individual officers, however, civil matters may be initiated against the officer’s responsible entity.
Enforcement of other Acts – the New South Wales Police Force are responsible for enforcement of other laws and Acts where criminal offences and penalties are involved.

Part 10 - Serious Crime Prevention Order

Applications to initiate a Serious Crime Prevention Order – a police officer of the New South Wales Police Force ranked Sergeant and above may apply to a magistrate of the Department of Justice to issue a Serious Crime Prevention Order against a person who has committed offences listed under Section 56 of this Act.
Provisional applications for Serious Crime Prevention Orders – if a magistrate is not immediately available to approve a Serious Crime Prevention Order, a police officer ranked Sergeant and above may instead submit an application for a Serious Crime Prevention to a police officer holding a designation of prosecutor or an officer ranked Assistant Commissioner and above. Provisional orders applied for in this manner will only be enforceable for 3 days. If a magistrate signs the provisional order within the 3 days of it being served on the defendant then the expiry of that order will extend to be a total of 14 days from the time of service.
Criminal Organizations Serious Crime Prevention Orders: If an organization has a shootout or violent altercation at any whitelisted business that involves illegal firearms or items and video or photographic evidence is gathered of said offences, a Serious Crime Prevention Order will be placed on the involved organization(s).
Prescribed offences – the relevant offences (includes attempts/conspiracy) for which an application for a Serious Crime Prevention Order may be made against a defendant are:
Murder emergency services worker (including attempts/accessory of)
Armed robbery of a commercial premises
Armed robbery of a financial institution
Supply prohibited firearm to other person
Possession of explosive
Use or supply prohibited explosive
Commit act of terrorism (MANDATORY)
Person in authority commit act of espionage (MANDATORY)
Emergency services worker recklessly/intentionally act in corrupt manner (MANDATORY)
Appeal by defendants of Serious Crime Prevention Order – a defendant that has been served with a Serious Crime Prevention Order may request an appeal hearing with the Department of Justice in order to reduce the length of time the order is in place for or to revoke the order entirely.
Revocation of Serious Crime Prevention Order – a magistrate may at any time revoke a Serious Crime Prevention Order that has been served on a defendant.
Reduction/extension of enforceable time period of Serious Crime Prevention Order – a magistrate may at any time reduce or extend the enforceable time period of a Serious Crime Prevention Order.
Amending of conditions of Serious Crime Prevention Order – a magistrate may at any time amend or change the conditions of a Serious Crime Prevention Order.
Service of Serious Crime Prevention Orders – an approved Serious Crime Prevention Order must be served on a defendant (or an accredited lawyer on their behalf) either in person or electronically.
Breach of Serious Crime Prevention Orders – if a defendant listed on a Serious Crime Prevention Order breaches any condition(s) of that order, it will constitute a criminal offence. A police officer may, upon a breach of an order, apply to a magistrate to search any property or assets belonging to the defendant who breached the order to determine any further breaches that may have occurred.
Power to search a person or vehicle where Serious Crime Prevention Order is enforceable - A police officer may search any person or a vehicle that person is occupying if the person is subject to an enforceable Serious Crime Prevention Order to determine their compliance with that order.

Part 11 - Powers of corrections officers

Power to search any person in care or custody of correctional services – a corrections officer may search any person in their lawful custody or someone who is on correctional services property.
Power to seize contraband – a corrections officer may seize any contraband on a person who is searched under Section 64 of this Act.
Power to enforce a sentence of imprisonment – a corrections officer may take all reasonable steps to enforce a sentence of imprisonment against a convicted person.
Immunity of individual corrections officers (vicarious liability) – a corrections officer may not be listed as a defendant for court matters unless they were committing a criminal offence while on-duty and the New South Wales Police Force have commenced proceedings against that officer. Civil matters may not be initiated against individual police officers, however, civil matters may be initiated against the New South Wales Police Force as the responsible entity.

Part 12 - Evidence

Cautioning of suspects – a police officer must, before any questioning can be considered legally admissible evidence, tell someone who is being questioned as a suspect in relation to a criminal matter the following (or similar words to the effect of the following): “You don’t have to say or do anything if you don’t want to, do you understand that? Anything you do say can be used as evidence in court, do you understand that?”. A police officer should make an attempt to explain the caution if the person says, or through physical conduct indicates, they do not understand it. A police officer is not required to issue a caution to someone for a minor traffic offence. A police officer is not required to caution a witness or victim of a crime.
Justice Procedures and Regulations – the Justice Procedures and Regulations 2021 (NSW) are legally binding to all persons involved in a matter of law.

Part 13 - Mental health

Power of police officer to detain person for mental health assessment – a police officer may detain a person who recently committed an offence and is showing signs of mentally disordered behaviour for the purpose of a mental health assessment by a qualified EMS officer.
Power of EMS officer to detain person for mental health assessment – an EMS officer may detain a person who is showing signs of mentally disordered behaviour for the purpose of a mental health assessment. An EMS worker may enlist the assistance of police when detaining a person.

Part 14 - Proceeds of crime

Application by crown for seizure of assets – a police officer holding the rank of Senior Sergeant or designation within the Major Crimes Division may apply to a magistrate for assets (meeting one or more of the criteria set out in Section 74 of this Act) to be seized and forfeited to a victim of crime or the Crown.
A magistrate may proactively authorise any privately held asset or evidence held in secure storage under Section 11 of this Act to be forfeited to the crown if it meets the criteria under Section 74 of this Act or if the asset is to be seized due to a significant amount of infringement notices are unpaid by the property owner.
Application by accredited lawyer for seizure of assets – an accredited lawyer by the Department of Justice may apply to a magistrate for assets (meeting one or more of the criteria set out in Section 74 of this Act) to be seized and recovered back to a victim of crime being the original owner of the asset.
Relevant criteria – property or funds that are seized under an Asset Seizure Order must be:
unlawfully obtained by criminal and/or violent means and/or;
otherwise tainted due to the method by which it was obtained (ie, deception) and/or;
no longer of any evidentiary or forensic value to the New South Wales Police Force and/or;
in the public interest for the property to be seized and/or funds to be recovered.
Indefinite vehicle sanctions – a police officer ranked Sergeant and above may immediately and indefinitely strike (and must record the strike in accordance with the Police Protocol) any vehicle which was obtained from the original owner according to the criteria listed in Section 74 of this Act.
Enforcement of Asset Seizure Orders – a Department of Justice magistrate must engage a member of government or authorised debt collector to enforce an Asset Seizure Order when reasonable attempts have been made to have the relevant assets or funds seized.
Expiry of Asset Seizure Orders – an Asset Seizure Order will expire when the listed assets or funds are recovered back to the victim of crime or Crown.

Part 15 - Powers of security providers

Power to search any person on secured premises – an authorised security officer may, while carrying out relevant security duties, search any person other than a police officer who is acting in accordance with their duties. The searching officer may require the searched person to submit any items prior to entering or remaining on the secured premises;
Power to arrest other person – an authorised security officer may place a person who they observed to be committing an offence under arrest (citizen’s arrest) until such time that a police officer may continue that arrest. The security officer carrying out the arrest must state their name and the reason for the arrest as soon as reasonably practicable.
Exemption for possession and use of non-lethal conducted electrical weapons – an authorised security officer may possess and use a non-lethal conducted electrical weapon for the purpose of carrying out relevant security duties.
Immunity of individual security officers (vicarious liability) – an authorised security officer may not be listed as a defendant for court matters unless they were committing a criminal offence while on-duty and the New South Wales Police Force have commenced proceedings against that security officer. Civil matters may not be initiated against individual security officers, however, civil matters may be initiated against their employer as the responsible entity.
Authorised security officers to hold relevant licence – a person must not carry out security duties as part of regular employment unless they hold a government security licence.

Part 16 - Extended traffic powers of police

Power to subject driver of vehicle to random testing – a police officer may require the driver of a vehicle, a pilot of an aircraft or the operator of a maritime vessel to undergo testing for the presence of alcohol and/or relevant drugs in that person’s system.
Power to subject driver of vehicle to sobriety test – a police officer may subject the driver of a motor vehicle to a non-invasive observational sobriety test to determine their impairment.
Prescribed limits – the prescribed limits are defined under Part 4 “Schedule of Alcohol and Drug Testing” of the Road Rules 2022 (NSW).

Written by Hon. Thomas Mason (ozjackal)

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