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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIAN PROTECTIVE SERVICE AMENDMENT BILL 2003
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
AUSTRALIAN PROTECTIVE SERVICE AMENDMENT BILL 2003
GENERAL OUTLINE
The purpose of the Australian Protective
Service Amendment Bill is to ensure that the Australian Protective Service has
adequate powers and capabilities to support its functions of providing
protective security services.
The Bill proposes new powers for protective service officers undertaking protective security functions to request a person’s name, evidence of identification, address and reason for being in a place, or in the vicinity of a place, person or thing they are protecting. The Bill also proposes powers to stop, detain and search a person who is in the place, or in the vicinity of the place, person or thing, and a new power to seize things found on persons who are searched, if those things are likely to be used to cause death or serious harm to a person, or a person in a place, or in the vicinity of a person, place or thing that the Australian Protective Service is protecting.
The Australian Protective Service was established by the Australian Protective Service Act 1987 (the APS Act) and is the pre-eminent provider of protective security services for and on behalf of the Commonwealth. It provides a uniformed, disciplined and accountable force to protect the Commonwealth’s interests. One of the most important areas in which the Australian Protective Service performs its functions is the aviation environment. As the events of 11 September 2001, Bali 2002, and recent incidents on Australian domestic flights demonstrate, the aviation industry is particularly vulnerable to attacks by not only organised groups but also persons acting alone who are not connected to such groups. The Australian Protective Service also provides protective security functions at a number of diplomatic and consular premises, Defence establishments and other Commonwealth buildings around Australia.
Australia has an obligation under international law to take all appropriate steps to protect the premises of foreign diplomatic and consular missions against any intrusion or damage, to prevent any disturbance of the peace of foreign missions or the impairment of dignity, and to prevent any attack on the person, freedom or dignity of a diplomatic of consular official.
The APS Act sets out the functions of the Australian Protective Service, and the powers and duties of protective service officers. Protective service officers have the power to arrest without warrant in relation to certain Commonwealth offences. An example would be an offence against the terrorism provisions in Divisions 72 and 102 of the Criminal Code. Following a lawful arrest, powers of search and seizure are also available to protective service officers under the Act.
The new powers represent a proactive approach in the current security environment, providing another tool in the armoury of the Australian Protective Service. They will provide protective service officers with greater flexibility in suspicious circumstances where the exercise of the arrest power is not immediately necessary, but where it is necessary to act quickly to ensure the security of a person or place that is being protected is not compromised.
The expanded powers preserve the clear delineation between the protective security functions of the Australian Protective Service and the policing functions of the Australian Federal Police and State and Territory police services. They are less intrusive than the existing arrest and search powers and will provide for a graduated response to circumstances that may arise when protective service officers are performing protective security services.
FINANCIAL IMPACT
The amendments in this Bill have no financial impact on Government revenue.
This is a formal clause which provides for the Act, when it is enacted, to be cited as the Australian Protective Service Amendment Act 2003.
This clause provides for the commencement of the Act.
Subclause
2(1) provides that each provision of this Act specified in column 1 of the table
in that subclause commences or is taken to have commenced on the day or at the
time specified in column 2 of the table.
Item 1 of the table provides
that sections 1 to 3 and anything in this Act not elsewhere covered by this
table commence on the day on which this Act receives the Royal
Assent.
Item 2 of the table provides that Schedule 1 commences on the
twenty eighth day after the day on which this Act receives the Royal
Assent.
Subclause 2(2) provides that column 3 of the table in the
subclause is for additional information that is not part of this Act, and that
such additional information may be included in any published version of this
Act.
This clause is the formal enabling provision for the Bill. It provides
that each Act specified in a Schedule is amended in accordance with the
applicable items of the Schedule. In this Bill, the Australian Protective
Service Act 1987 is being amended.
The clause also provides that any
other item in a Schedule has effect according to its terms. This is a standard
enabling clause for transitional, savings and application items in amending
legislation.
This item inserts new sections after section 18 of the Australian
Protective Service Act 1987 (the APS Act). The purpose of these new
sections is to include new powers for protective service officers when they are
carrying out their protective security service functions under the APS Act.
Proposed section 18A contains a power to ask for a person’s name, evidence
of identification, address and reason for being in a particular place. Proposed
section 18B contains a power to stop, detain and search in certain
circumstances. Proposed section 18C contains a power to seize things found
during a search conduced under section 18B. Proposed sections 18D and 18E
provide for how things must be dealt with after seizure action has been taken
under section 18C.
Proposed section 18A
Proposed subsection
18A(1) provides for a power to ask a person for their name and evidence of their
identity, their residential address and reason for being in a place or in the
vicinity of a place, person or thing in respect of which the Australian
Protective Service is performing its functions. This power can be used at
locations where a protective service officer is providing protective security
services. Currently that would include airports, diplomatic and consular
missions, and Commonwealth government buildings.
The circumstances in
which a protective service officer can request this information are limited to
when a protective service officer suspects on reasonable grounds that a person
might have just committed, might be committing or might be about to commit an
offence to which section 13 of the APS Act applies. Section 13 of the APS Act
gives a protective service officer the power to arrest a person without warrant
if the protective service officer believes on reasonable grounds that the person
has committed or is committing certain Commonwealth offences, including offences
against various sections of the Crimes Act 1914, Crimes
(Internationally Protected Persons) Act 1976, Crimes (Aviation) Act 1991
and the terrorism offences covered by the Criminal Code.
The
power is comparable to powers in other Commonwealth legislation which enable
authorised officers to request information. It will enable a protective service
officer to intervene in a possible security threat to the Commonwealth’s
interests at the earliest point in time.
Proposed subsection 18A(2)
provides that, if a protective service officer makes a request under subsection
18A(1), the protective service officer must inform the person of the
officer’s authority to make such a request and that it may be an offence
not to comply with the request. A protective service officer must either be in
uniform or produce his or her identification card when making a request under
subsection 18A(1) (that is, they must comply with subsections 19(3) or
20(2) of the APS Act). The proposed subsection also provides that it is an
offence to fail to comply with the request of a protective service officer or to
give a false name or address, and provides for a penalty of 20 penalty units
($2,200).
A safeguard is provided in proposed subsection 18A(3), which
provides for a reasonable excuse defence. What is a reasonable excuse will
depend not only on the circumstances of the individual case but also on the
purpose of the provision to which the defence is an exception. In the
circumstances of this provision, a reasonable excuse may be that a person could
not comply with a request because they were rushing through a secure area to
catch their child who had broken away and was heading towards an open
doorway.
In addition to the offence provision in proposed subsection
18A(2), existing offences in Commonwealth legislation may be relevant in
circumstances where a person about whom a protective service officer is
exercising a power under section 18A, section 18B or section 18C, uses
force against the protective service officer. An example would be section 149.1
of the Criminal Code which creates an offence of obstruction, hindering
or intimidating an official, including a protective service officer in the
execution of his or her functions (maximum penalty of imprisonment for 2
years).
Proposed section 18B
Proposed subsection 18B(1)
provides the criteria necessary for exercising the stop and search power in
subsection 18B(2). Before the power can be exercised, the protective service
officer must have reasonable grounds to suspect that the person has a
thing that is likely to cause or is likely to be used by the
person or another person to cause substantial damage to a place or thing, or
death or serious harm to a person, where the Australian Protective Service is
performing its functions. The power can only be exercised where the damage or
serious harm is likely to involve the commission of an offence listed in section
13 of the APS Act.
Proposed subsection 18B(2) provides for a power to
stop and detain a person for the purpose of searching that person, or a thing
that person has in his or her possession or control (including a vehicle
operated or occupied by that person), or a thing that person has brought onto
premises at which the Australian Protective Service is performing its functions
under the Act.
This power provides another level of response for
protective service officers. Once a search has been conducted the person must
be allowed to leave or, if the protective service officer conducting the search
reasonably believes an offence under section 13 of the Act has been committed or
is being committed, the person may be arrested. If during the search the
protective service officer identifies evidence relating to a possible offence
which does not come within section 13 the protective service officer has no
authority under the new provisions to seize the item or arrest the person as
this would be outside the protective security functions of the Australian
Protective Service.
Proposed subsection 18B(2) provides for a protective
service officer to search the person for the thing, search any thing that is
under the person’s immediate control, and to search a vehicle operated or
occupied by the person. The protective service officer may conduct an ordinary
search or a frisk search. A search must be carried out by a protective service
officer of the same sex as the person being searched.
Where the
protective service officer is not the same sex as the person to be searched, the
protective service officer has three options. He or she may request another
protective service officer, or a police officer or a Customs officer, or another
person (who is the same sex as the person being searched) to conduct the search
(proposed subsection 18B(3)).
Proposed subsection 18B(5) provides
that protective service officers and others conducting a personal search must
act in good faith and must not use more force or subject the person to greater
indignity than is reasonable and necessary.
Proposed subsection 18B(4)
provides that persons conducting a search at the request of a protective service
officer are protected from civil and criminal proceedings relating to the
conduct of the search provided they comply with proposed subsection 18B(5).
This is consistent with comparable provisions in other legislation.
The
terms ordinary search and frisk search have the same meaning as those used in
section 3C of the Crimes Act 1914 (proposed subsection 18B(8)). The
proposed search provisions and the safeguards included are consistent with
similar provisions in other Commonwealth legislation. The provisions have been
drafted to balance the need for appropriate security arrangements with personal
rights and freedoms.
Proposed subsection 18B(6) provides that a
protective service officer can search in items that have been brought onto
premises at which the Australian Protective Service is performing its functions.
The provision authorises protective service officers to search in items that
have been left unattended for a thing that the officer suspects on reasonable
grounds is likely to be used to cause serious harm to a person, or damage to a
place or thing, in respect of which the Australian Protective Service is
performing its functions.
Proposed subsection 18B(7) provides that a
protective service officer may use necessary and reasonable force in the conduct
of a search of an item under subsections 18B(2) and (6). It does not
permit the thing being searched to be damaged by forcing it open unless the
person has been given an opportunity to open the thing or it is not possible to
give that opportunity.
Proposed section 18C
Proposed
subsection 18C(1) provides for a protective service officer to seize the thing
that either the protective service officer, or a person conducting a search at
the request of the protective service officer pursuant to subsection 18B(3), was
searching for. As the search power only enables an officer to search for a
thing that could be connected to an offence under section 13 of the APS Act, it
follows that the protective service officer can only seize a thing under this
subsection if that thing is likely to cause, or is likely to be used by the
person or another person to cause, damage or harm in circumstances that would be
likely to involve the commission of an offence under section 13.
Proposed
subsection 18C(2) provides a protective service officer with the power to also
seize any other weapon or other thing found during the course of a search where
the protective service officer has reasonable grounds to suspect that the weapon
or thing is likely to be used to cause death or serious harm to a person in
respect of whom the Australian Protective Service is performing its functions,
or a person in a place, or in the vicinity of a person, place or thing in
respect of which the Australian Protective Service is performing its functions
(proposed subparagraphs 18C(2)(a) and (b)). This will enable the protective
service officer to act immediately to prevent possible threats to relevant
persons.
Proposed new subsection 18C(3) provides that seized things must
be delivered into the custody of a police officer as soon as practicable. This
is consistent with the existing seizure provision in the APS Act.
Proposed section 18D
Proposed section 18D establishes how, and
the time frames in which, seized things are to be dealt with. Proposed
subsection 18D(1) requires a police officer to serve a seizure notice on either
the owner of the thing or, if the owner of the thing cannot be identified after
reasonable enquiries, the person from whom it was seized. The seizure notice is
required to be served within 7 days after the day on which the thing was
delivered into the custody of a police officer.
The seizure notice must
also identify the thing seized, the date on which it was seized, the ground or
grounds on which it was seized and also state that if the owner does not request
the return of the thing within 90 days after the date of the notice, the thing
is forfeited to the Commonwealth (see proposed subsection 18D(3)).
The
period of 90 days will allow sufficient time for an owner to make his or
her existence known to the police and make a request for the return of the thing
under proposed subsection 18D(4).
Proposed subsection 18D(2)
provides that where the thing was not seized from a person and, after making
reasonable enquiries, a police officer cannot identify the owner of the seized
thing, there is no obligation to serve a seizure notice. This will cover
situations where the thing seized was found in a bag that had been abandoned at
or in the vicinity of a place or person in relation to which the Australian
Protective Service is performing its functions. It will also cover situations
where a protective service officer has lawfully requested a person’s name
and address, conducted a search and seized a thing, but it is later discovered
that the person gave a false name and address.
If the owner requests the
return of the seized thing under subsection 18D(4), a police officer must return
the thing unless there are reasonable grounds to suspect that, if the thing is
returned to the owner, it is likely to cause or be used to cause substantial
damage to a place or thing in respect of which the Australian Protective Service
is performing its functions, or death or serious harm to a person in respect of
whom the Australian Protective Service is performing its functions, or a person
in a place, or in the vicinity of a person, place or thing in respect of which
the Australian Protective Service is performing its functions (see proposed
subsection 18D(5)). This provision makes it clear that a police officer can
only return seized weapons and things to a person if the officer is satisfied
that the person is in fact the owner and the reason for the seizure no longer
exists.
If the owner of a seized thing does not request its return
within 90 days of the date of the seizure notice, the thing will be forfeited to
the Commonwealth (proposed subsection 18D(6)). Where no seizure notice was
served under subsection 18D(2) because the owner could not be identified or
found, the thing will be forfeited to the Commonwealth if the owner has not
requested the return of the thing within 90 days of the thing being delivered
into the custody of a police officer.
Where a police officer does not
return a thing in response to a request under subsection 18D(5), and a period of
90 days has elapsed since the date of the seizure notice or, where applicable,
the date on which the thing was delivered into the custody of a police officer,
proposed subsection 18D(7) requires a police officer to either return the
thing to its owner or make an application to a magistrate for an order in
relation to the thing under proposed section 18E. The application must be
made within 95 days of the relevant date.
These safeguards are consistent
with general Commonwealth standards for the protection of a citizen’s
property, and at the same time do not unduly burden the police with the
responsibility for storing and maintaining such property.
Proposed
section 18E
Proposed subsection 18E(1) provides for an application to
be made to a magistrate for an order in relation to the thing where the
conditions in subsection 18D(7) are met. The application must be made by the
police officer who is responsible for the thing at the time of making the
application.
The owner of the thing must be allowed to appear before
the magistrate and be heard (proposed subsection 18E(2)).
If the
magistrate is satisfied there are reasonable grounds to suspect the seized thing
is likely to cause or be used to cause substantial damage to a place or thing in
respect of which the Australian Protective Service is performing its functions,
or death or serious harm to a person in respect of whom the Australian
Protective Service is performing its functions, or a person in a place, or in
the vicinity of a person, place or thing, in respect of which the Australian
Protective Service is performing its functions, a magistrate may make any of the
orders in proposed paragraphs 18E(3)(c), (d), (e) or (f). The magistrate may
order the police officer retain the thing for a specified period, the thing must
be forfeited to the Commonwealth, the thing must be sold and the proceeds given
to the owner, or the thing is to be otherwise sold or disposed
of.
Proposed subsection 18E(4) requires the magistrate to order the
return of the thing to the owner if the magistrate is not satisfied of the
matters in paragraphs 18E(3)(a) and (b).