Police Administration Act

Question 1

76 Breaches of discipline

Answer 1

A member commits a breach of discipline if the member:

(a) engages in disgraceful or improper conduct, either on or off duty; or
(b) is negligent, inefficient or careless in the discharge of the member’s duties; or
(c) contravenes or fails to comply with a provision of a Code of Conduct referred to in section 14A(2); or
(d) fails to obey a lawful direction, instruction or order given by, or caused to be issued by, the Commissioner or a member or person having authority over the member, including general orders and instructions issued under section 14A(1) and directions, instructions or orders given in relation to a breach of discipline or an alleged breach of discipline; or
(da) gives misleading information to the Commissioner or a member or person having authority over the member in relation to a breach of discipline or an alleged breach of discipline; or
(db) fails to be of good behaviour for a period fixed under section 84D(c); or
(e) uses a substance (including liquor or a drug) in a manner that results in unacceptable performance of the member’s duties or improper conduct whilst on duty; or
(f) is absent from duty except:
(i) where proper leave has been granted; or

(ii) with reasonable cause; or
(g) is convicted of an offence, whether within or outside the Territory; or

(h) aids, abets, counsels or procures, or, by any act or omission, is directly or indirectly knowingly concerned in or a party to, a breach of discipline committed by another member in circumstances referred to in paragraphs (a), (b), (c), (d), (da), (db), (e) or (f).

Question 2

79A Member to answer questions or give information in relation to breach of discipline

Answer 2

(1) This section applies to a member who is required by the Commissioner or a prescribed member to answer questions or provide information in relation to an alleged or suspected breach of discipline by a member, whether or not an investigation has been initiated under section 81(3).
(2) The member is not excused from answering a question or providing information when required to do so in relation to the breach of discipline or alleged breach of discipline on the ground that the answer to the question or the information may:
(a) incriminate the member; or

(b) make the member liable to a penalty.
(3) However, the answer to the question or the information is not admissible as evidence against the member:

(a) in any other proceedings against the member under this Act; or

(b) in civil or criminal proceedings in a court.
(4) Subsection (3) does not apply in relation to proceedings for the following matters:

(a) perjury;

(b) employment;
(c) a claim in tort against the Territory made by a member.
Note for section 79A
Failure to comply with this section may constitute a breach of discipline under section 76(d) or (da).

Question 3

79 Service of notice for alleged breach of discipline

Answer 3

Where:

(a) the Commissioner believes, on reasonable grounds, that a member; or
(b) a prescribed member believes, on reasonable grounds, that a member of a rank below that of the prescribed member,
has committed a breach of discipline and considers that the breach is serious enough to warrant action being taken under this Part, the Commissioner or prescribed member shall serve a notice under section 84F on the member.

Question 4

84F Notices

Answer 4

(1) A notice:
(a) under section 79 shall contain:

(i) details of the action or omission constituting the breach of discipline; and

(ii) a statement that a written response is required from the member within 7 days of receipt of the notice; or
(b) under section 84A shall contain details of the charge of the breach of discipline and the date, time and place of the hearing.

(2) A notice under section 79 or 84A shall be served on a member:
(a) by delivering it to the member personally; or
(b) by posting it to the member at the member’s last-known place of residence.

Question 5

116 Interpretation

Answer 5

(1) For the purposes of this Part, unless the contrary intention appears:
(a) anything with respect to which an offence has been committed or is believed on reasonable grounds to have been committed;

(b) anything with respect to which there are reasonable grounds for believing that it will offer evidence of the commission of any such offence; or
(c) anything with respect to which there are reasonable grounds for believing that it is intended to be used for the purposes of committing any such offence,
shall be taken to be a thing connected with or relating to an offence, and includes anything that has been unlawfully obtained in connection with or relating to an offence.
(2) In this Part unless the contrary intention appears:

aircraft includes any machine that can derive support in the atmosphere from the reactions of the air.

ammunition, see the Firearms Act.
at, a place, includes in or on the place.
explosive includes the following:
(a) a substance or compound that is, itself, or in combination with another substance or compound, by the application of a suitable stimulus to a small portion of its mass, capable of:
(i) being converted almost instantaneously into another substance, largely or entirely gaseous; and

(ii) creating an explosion;
(b) a device made or adapted to enable it to be used in combination with a substance or compound mentioned in paragraph (a) to create an explosion;

(c) anything prescribed by regulation to be an explosive.
firearm, see the Firearms Act.
place includes:
(a) vacant land;
(b) premises; and
(c) an aircraft, ship, train or vehicle.
premises includes:
(a) a building or structure;
(b) a part of a building or structure; and
(c) land on which a building or structure is situated.
ship means a vessel or boat of any description, and includes a floating structure and a hovercraft or similar craft, but does not include a ship under the control of the Australian Defence Force or the defence force of a foreign country.
vehicle means any vehicle propelled by internal combustion, steam, gas, oil, electricity or any other power and used or intended for use or adapted or capable of being adapted for use on roads, whether or not it is in a fit state for such use, and includes any trailer or caravan intended or adapted or capable of being adapted for use as an attachment to such a vehicle, any chassis or body, with or without wheels, appearing to form or to have formed part of such a vehicle, trailer or caravan and anything attached to such a vehicle, trailer or caravan.
(5) For the purposes of this Part, the term offensive weapon means a gun, pistol, sword, knife or bludgeon, or any article made or adapted to cause damage to property or to cause injury or fear of injury to the person or by which the person having it intends to cause damage to property or to cause injury or fear of injury to the person.

(6) A reference in this Part to an offence shall, unless the contrary intention appears, include a reference to a crime, a felony, a misdemeanour and any offence triable summarily and shall include an offence against a law of the Commonwealth or of the Territory.
(7) In this Part, a reference to an information, unless the contrary intention appears, includes a complaint, and informant includes a complainant.
(8) For the purposes of this Part, a person shall be deemed to have made an application to a Judge, magistrate or justice by telephone if his application, any submissions concerning his application, and any information required by the Judge, magistrate or justice in connection with his application are furnished to the Judge, magistrate or justice either wholly or in part, by means of telephone, telex, radio or similar facilities.
(9) For the purposes of this Part, a person shall not be taken to have been charged with an offence unless:
(a) subject to paragraph (b), particulars of the charge have been entered in a Police Station charge book; or

(b) where it is not practicable to comply with the requirements of paragraph (a), a person is held in custody following his arrest and has been advised by a member that he will be charged with an offence.

Question 6

116A Definitions

Answer 6

dangerous thing means any of the following:
(a) a dangerous drug;
(ab) a precursor;
(b) drug manufacturing equipment as defined in section 120A;
(d) a controlled weapon or prohibited weapon as defined in the Weapons Control Act;
(e) a firearm or ammunition;
(f) an explosive;
(g) a thing prescribed by regulation to be a dangerous thing;
(h) a thing mentioned in paragraphs (c) to (g) in connection with a target of an authorisation under the Terrorism (Emergency Powers) Act.
detection, of a dangerous thing, includes the following:
(a) deploying a detection dog in the vicinity of a person to ascertain whether the dog can detect the odour of a dangerous thing on the person;
(b) deploying a detection dog in the vicinity of or at a place to ascertain whether the dog can detect the odour of a dangerous thing at the place.
detection dog, in relation to the detection of a dangerous thing, means a police dog trained to detect that dangerous thing.

Question 7

116B Extended application of Division

Answer 7

(1) This Division extends to the use by the Police Force of dogs that:
(a) are provided to the Police Force by another body (including an agency or department of the Commonwealth) to be used under this Division; and

(b) are under the control of a handler who is not a member of the Police Force.
(2) If a police dog is under the control of a handler who is not a member of the Police Force:

(a) the handler is entitled to accompany the member using the dog and enter and remain at any place in accordance with section 116D; and
(b) sections 116E and 116G apply to the handler as if the handler were the member using the dog.

Question 8

116C Authority to use police dogs and police horses

Answer 8

(1) A member of the Police Force is authorised to use a police dog or a police horse to assist the member generally in the exercise of the member’s powers or performance of the member’s functions.
(2) A member is authorised to use a detection dog to assist the member in the exercise of the member’s powers or performance of the member’s functions relating to the detection of a dangerous thing.
(3) A member using a police dog or police horse must comply with this Division and any of the following that relate to the use of police dogs or police horses:
(a) general orders;

(b) orders, instructions or guidelines published in the Police Gazette.

Question 9

116D Authority for entry of police dogs and police horses

Answer 9

(1) Despite any other law in force in the Territory, if a member of the Police Force uses a police dog or police horse in accordance with section 116C, the dog or horse may accompany the member and enter and remain at any place the member may lawfully enter and remain.
(2) To avoid doubt, subsection (1) applies whether the member is authorised to enter the place:
(a) under a warrant; or

(b) by an Act, without a warrant.

Question 10

116E Control of police dogs and police horses

Answer 10

(1) A member of the Police Force using a police dog or police horse is required to keep the dog or horse under control to the extent that is reasonable in the circumstances.
(2) A member using a detection dog to assist in the detection of a dangerous thing must take all reasonable precautions to prevent the dog touching a person.

Question 11

116F Reasonable grounds for search without warrant on indication of detection dog

Answer 11

(1) Subsection (2) applies if, before exercising a power under an Act to search a person or place without a warrant, a member of the Police Force is required to form a suspicion on reasonable grounds that:
(a) the person is carrying or has in the person’s possession, or is in control of, a dangerous thing; or

(b) there is something at the place (including in a vehicle at a public place) that may be a dangerous thing.
(2) There are reasonable grounds for the suspicion if a detection dog indicates it has detected the odour of a dangerous thing:

(a) on the person or on, or in, a thing in the person’s immediate control; or

(b) on or in a thing, not in the person’s immediate control but which the member suspects on reasonable grounds is connected with the person, that is at the place where the detection is being carried out; or
(c) at the place

Question 12

116G Protection from liability for use of police dog or police horse

Answer 12

(1) A member of the Police Force is not civilly or criminally liable if a police dog or police horse, while being used by the member in good faith in the exercise of a power or performance of a function as a member:
(a) comes into physical contact with a person or a person’s clothing; or

(b) causes damage to a thing.
Example of physical contact for subsection (1)(a)
Restraining, pushing, biting or kicking a person.
(2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act of the dog or horse.

(3) A member of the Police Force or the Territory is not civilly or criminally liable merely because a police dog or police horse entered or was at a place.
(4) In this section:
exercise, of a power, includes the purported exercise of the power.

performance, of a function, includes the purported performance of the function

Question 13

116H Non-application of certain laws

Answer 13

(1) The following provisions do not apply in relation to a police dog:
(a) section 75A of the Summary Offences Act;

(b) Part X of the Law Reform (Miscellaneous Provisions) Act.
(2) Any other law of the Territory relating to dogs or horses does not apply in relation to police dogs or police horses.

Question 14

116J Reasonable grounds for search without warrant on indication of electronic drug detection system

Answer 14

(1) Subsection (2) applies if, before exercising a power under an Act to search a person or place without a warrant, a member is required to form a suspicion on reasonable grounds that:
(a) the person is carrying or has in the person’s possession, or is in control of, a dangerous substance; or

(b) there is something at the place (including in a vehicle at a public place) that may be a dangerous substance.
(2) There are reasonable grounds for the suspicion if an electronic drug detection system indicates the presence of a dangerous substance:

(a) on the person or on, or in, a thing in the person’s immediate control; or

(b) on or in a thing, not in the person’s immediate control but which the member suspects on reasonable grounds is connected with the person, that is at the place where the detection is being carried out; or
(c) at the place.
(3) In this section:

dangerous substance means any of the following:

(a) a dangerous drug;
(b) a precursor;
(c) a substance prescribed by regulation to be a dangerous substance.
electronic drug detection system, see section 19U of the Misuse of Drugs Act.

Question 15

117 Search warrants

Answer 15

(1) Where an information on oath is laid before a justice alleging that there are reasonable grounds for believing that anything connected with an offence may be concealed on the person of, in the clothing that is being worn by or in any property in the immediate control of, a person, the justice may issue a search warrant authorising a member of the Police Force named in the warrant to search the person of, the clothing that is being worn by or property in the immediate control of, the person and seize any such thing that he may find in the course of the search.
(2) Where an information on oath is laid before a justice alleging that there are reasonable grounds for believing that there is at a place anything relating to an offence, the justice may issue a search warrant authorising a member of the Police Force named in the warrant to enter and search the place and seize anything relating to an offence found in the course of the search at the place.
(3) A justice shall not issue a warrant under subsection (1) or (2) in relation to an information unless:
(a) the information sets out or has attached to it a written statement of the grounds upon which the issue of the warrant is sought;

(b) the informant or some other person has given to the justice, either orally or by affidavit, such further information, if any, as the justice requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the justice is satisfied that there are reasonable grounds for issuing the warrant.
(4) Where a justice issues a warrant under subsection (1) or (2) he shall record in writing the grounds upon which he relied to justify the issue of the warrant.

(5) There shall be stated in the warrant issued under this section the following particulars:
(a) the purpose for which the search or entry is authorised;

(b) a description of the nature of the things authorised to be seized; and
(c) the date, not being a date later than 14 days after the date of issue of the warrant, upon which the warrant ceases to have effect.
(6) A member may, at any time before a warrant issued under subsection (1) or (2) is executed, make application to a justice to withdraw the warrant.

Question 16

118 Search warrant may be issued by telephone

Answer 16

(1) Where it is impracticable for a member of the Police Force to make application in person to a justice for a search warrant under this Act, the member may make application for a search warrant to a justice by telephone in accordance with this section.
(2) Before making application to a justice by telephone under subsection (1), a member shall prepare an information on oath of a kind referred to in section 117(1) or (2) and, where required by the justice, an affidavit setting out the grounds on which the issue of the warrant is sought, but may, if it is necessary to do so, make the application before the information and the affidavit, if required, have been made on oath.
(3) Where a justice is satisfied, upon application made under subsection (1), that there are reasonable grounds for issuing a warrant, the justice may issue such a search warrant as he could issue under section 117 if the application had been made to him in accordance with that section.
(4) Where a justice issues a warrant under subsection (3):
(a) the justice shall complete and sign the warrant; and

(b) the justice shall inform the member by telephone of the terms of the warrant signed by him, and record on the warrant his reasons for issuing it; and
(c) the member shall complete in duplicate a form of warrant in the terms furnished to him by the justice and write on it the name of the justice who issued the warrant and the date on which and time at which it was issued.
(5) Where a justice issues a warrant under subsection (3), the member shall, not later than the day next following the date of the expiry of the warrant, forward to the justice who issued the warrant the form of warrant prepared by the member and the information and affidavit, if any, duly made in connection with the issue of the warrant.

(6) Upon receipt of the documents referred to in subsection (5), the justice shall compare the copy of the form of warrant forwarded to him with the warrant signed by him and, if he is satisfied that they are in substance identical, he shall note this fact on the warrant signed by him and forward the warrant together with the copy of the form of warrant and the information and affidavit, if any, to the Commissioner of Police or to such member of the Police Force as may be specified by the Commissioner.
(7) A form of warrant completed by a member in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the justice, authority for any entry or seizure that it authorises.
(8) Where it is necessary for a court, in any proceeding, to be satisfied that any entry or seizure was authorised by a warrant issued by a justice in accordance with this section, and the warrant signed by the justice in accordance with this section is not produced in evidence, the court shall assume, unless the contrary is proved, that the entry or seizure was not authorised by such warrant.
(9) Where an application has been made to a justice pursuant to subsection (1) and the application has been refused by the justice, subject to subsection (10), neither the member of the Police Force who made the application nor any other member who has any cause to suspect that an application has been made by another member under subsection (1) in respect of the same matter, shall make a further application to any justice pursuant to subsection (1) in respect of that matter.
(10) Where an application made pursuant to subsection (1) has been made to a justice and the application has been refused by that justice a further application may be made to a justice where a member satisfies a justice that the member has, since the time of the original application, received further information or evidence which is material to an application under subsection (1).

Question 17

118A Seizure authorised under search warrant

Answer 17

A member of the Police Force who executes a warrant issued under section 117 or 118 may, in addition to seizing anything of a nature described in the warrant, seize any other thing:

(a) found in the course of executing the warrant; and
(b) that the member believes on reasonable grounds is connected with any offence.

Question 18

119 Urgent searches without warrant

Answer 18

(1) A member of the Police Force may, in circumstances of such seriousness and urgency as to require and justify immediate search or entry without the authority of an order of a court or of a warrant issued under this Part, without warrant:
(a) search the person of, the clothing that is being worn by and property in the immediate control of, a person reasonably suspected by him to be carrying anything connected with an offence; or

(b) enter a place at which he believes, on reasonable grounds, that anything connected with an offence is situated and search the place.
(1A) A member who exercises a power under subsection (1) may seize anything found in the course of the search if the member believes on reasonable grounds it is necessary to do so because the thing:

(a) is connected with an offence; or

(b) may significantly increase the risk to the health or safety of a particular person or the public.
(2) A member of the Police Force who believes on reasonable grounds that a person is carrying an offensive weapon may search the person for any such weapon and seize such weapon if it is found on the person.

(3) A member of the Police Force who believes on reasonable grounds that an offensive weapon is being carried in an aircraft, ship, train or vehicle may enter the aircraft, ship, train or vehicle and seize an offensive weapon found in it.
(3A) The power of seizure under this section includes the power to:
(a) remove the thing that is seized from the place where it is found; and

(b) guard the thing that is seized at the place where it is found.
(4) The powers given by this section are in addition to and shall not derogate from any other powers of a member of the Police Force.

Question 19

119AA Search without warrant for explosive, offensive weapon etc.

Answer 19

(1) This section applies if a member of the Police Force suspects on reasonable grounds that an explosive, offensive weapon or ammunition, the possession of which is unlawful:
(a) is in the possession or control of a person in a public place; or

(b) is being carried in an aircraft, ship, train or vehicle; or
(c) is at any other place.
(2) The member may, without warrant:

(a) search the person, clothing worn by the person and property in the person’s immediate control; or

(b) enter the aircraft, ship, train, vehicle or other place and search the place and any person found at the place, clothing worn by the person and property in the person’s immediate control.
(3) The member may seize an explosive, offensive weapon or ammunition found during the search.

(4) The power of seizure under subsection (3) includes the power to:
(a) remove the thing that is seized from the place where it is found; and

(b) guard the thing that is seized at the place where it is found.
(5) The powers given by this section are in addition to and do not derogate from any other powers of a member of the Police Force.

Question 20

119A Powers incidental to search and entry powers

Answer 20

(1) This section applies if a member is authorised:
(a) to search a person, clothing being worn by a person or property in the immediate control of a person under:

(i) a warrant issued under section 117(1); or

(ii) a form of warrant completed by the member in accordance with section 118(4); or
(iii) section 119(1)(a) or (2); or
(iv) section 119AA(2)(a); or
(b) to enter a place under:

(i) a warrant issued under section 117(2); or

(ii) a form of warrant completed by the member in accordance with section 118(4); or
(iii) section 119(1)(b) or (3); or
(iv) section 119AA(2)(b).
(2) The member may exercise the power with the assistance, and using the force, that is necessary and reasonable in the circumstances.

(3) For exercising the power mentioned in subsection (1)(a), the member may:
(a) stop the person or an aircraft, ship, train or vehicle in which the member reasonably believes the person may be found; and

(b) detain the aircraft, ship, train or vehicle, and any persons found in or on it or who enter it while the search is in progress, for as long as reasonably required for the exercise of the power.
(4) For exercising the power mentioned in subsection (1)(b), the member may:

(a) if the place to which the power relates is an aircraft, ship, train or vehicle – stop and detain the aircraft, ship, train or vehicle for as long as reasonably required for the exercise of the power; and

(b) detain any persons found in or on the place, or who enter it while the search is in progress, for as long as reasonably required for the exercise of the power.
(5) For section 112(1) of the Criminal Code, a person detained under subsection (3)(b) or (4)(b) is in the lawful custody of the member while so detained.

Question 21

120 Power of police to enter place used for entertainment

Answer 21

(1) A member of the Police Force may, without warrant, enter land or premises:
(a) being used for any show, exhibition, sport, games, contest or entertainment and to which the public is admitted (whether admission thereto is obtained by payment of money or otherwise); or

(b) being used for the purposes of any form of racing.
(2) Where a member of the Police Force has entered land or premises pursuant to subsection (1) he may order any person who is a reputed thief or who is disorderly or indecent or who is soliciting for the purposes of prostitution to leave the land or premises.

(3) If any such person refuses or fails to leave the land or premises on being ordered by a member of the Police Force to do so, he commits an offence.
Maximum penalty: 1.7 penalty units.

(4) For the purposes of subsection (2), a reputed thief is a person who has on at least 2 occasions in the period of 5 years immediately preceding the occasion of the exercise of the powers given to the member by this section, been found guilty of an offence described in Part VII of the Criminal Code, Part IV of the Criminal Law Consolidation Act, as in force at any time during that period, or any similar offence in any other part of Australia.

Question 22

Division 2A Special provisions about dangerous drugs

120A Definitions

Answer 22

dangerous drug means:
(a) a dangerous drug as defined in section 3 of the Misuse of Drugs Act; or
(b) a prohibited substance as defined in section 12 of the Medicines, Poisons and Therapeutic Goods Act; or
(c) kava.
drug manufacturing equipment means anything that may be used in the manufacture of a dangerous drug.
kava means kava as defined in section 3 of the Kava Management Act.
manufacture, for a dangerous drug, has the same meaning as in the Misuse of Drugs Act.
public place includes the following:
(a) every place to which free access is permitted to the public with the express or tacit consent of the owner or occupier of the place;
(b) every place to which the public are admitted on payment of money, the test of the admittance being the payment of the money only;
(c) every road, street, footway, court, alley or thoroughfare that the public are allowed to use, even if the road, street, footway, court, alley or thoroughfare is on private property;
(d) every school, college, university or similar institution providing or offering to provide courses of instruction.

Question 23

120B Search warrants

Answer 23

(1) Where it is made to appear to a justice, by application on oath, that there are reasonable grounds for believing:
(a) that there is at a place a dangerous drug, precursor or drug manufacturing equipment;

(b) that a dangerous drug, precursor or drug manufacturing equipment may be concealed on a person or on or in property in the immediate control of a person; or
(ba) that a dangerous drug, precursor or drug manufacturing equipment may, within the next following 72 hours:
(i) be brought on or into a place; or

(ii) be concealed on a person or on or in property in the immediate control of a person,
the justice may issue a warrant authorising a member of the Police Force named in the warrant, with such assistance as the member thinks necessary, to search:

(c) in a case referred to in paragraph (a) or (ba)(i):
(i) the place;

(ii) any person found at the place; and
(iii) any person who enters the place while the search is in progress; and
(d) in a case referred to in paragraph (b) or (ba)(ii), or in respect of a person referred to in paragraph (c)(ii) or (iii):

(i) the person;

(ii) the clothing worn by the person; or
(iii) the property in the immediate control of the person.
(2) A warrant issued under subsection (1)(a) or (ba)(i) authorises the member to whom it is issued to direct a person referred to in subsection (1)(c)(ii) or (iii) to remain at the place for as long as is reasonably required for the purposes of the search of the place and of the person.

(3) Section 112(1) of the Criminal Code applies to and in relation to a person directed under subsection (2) as if the person were in the lawful custody of the member while so directed.
(4) Under this section:
(a) an application for a warrant and a submission concerning an application may be made in whole or in part;

(b) information concerning an application may be furnished in whole or in part; and
(c) an oath may be administered,
by telephone, telex, radio or other similar means.
(5) A warrant issued under this section shall remain in force for such period as the justice issuing it specifies in the warrant.

(6) Where a warrant is issued as the result of an action taken under or in pursuance of subsection (4), the justice issuing it shall send it to the Commissioner within 7 days after it is issued.
(7) Where it is necessary for a member to satisfy a person that a warrant under this section was issued authorising the member to conduct a search and, for reasonable cause, the member cannot, at the time of the search, produce the warrant, the member may produce a copy of the warrant completed and endorsed in accordance with subsection (8) and the production of the copy shall be deemed to be a production of the warrant.
(8) For the purposes of subsection (7), a member shall:
(a) complete a form of warrant substantially in the terms of the warrant issued; and

(b) write on that form of warrant a statement that a warrant in those terms was issued giving:
(i) the name of the justice who issued the warrant; and

(ii) the date, time and place on and at which it was issued.

Question 24

120BA Seizure

Answer 24

A member of the Police Force may seize:

(a) anything found in the possession of a person or as the result of a search, being a thing that the member suspects, on reasonable grounds, is a dangerous drug, precursor or drug manufacturing equipment;
(b) money, a valuable security or other thing:
(i) found in the possession of a person; or

(ii) found as the result of a search,
being money, a valuable security or thing that the member suspects, on reasonable grounds, was received or acquired by a person directly or indirectly as or from the proceeds or part of the proceeds of the supply of a dangerous drug, precursor or drug manufacturing equipment;

(c) an acknowledgement, note or other thing:
(i) found in the possession of a person; or

(ii) found as a result of a search,
being an acknowledgement, note or thing that the member suspects, on reasonable grounds:

(iii) entitles a person to receive; or

(iv) is evidence that a person is entitled to receive,
money or money’s worth that is the proceeds or part of the proceeds of the supply of a dangerous drug, precursor or drug manufacturing equipment;

(d) a thing found in the possession of a person as the result of a search, being a thing that the member suspects, on reasonable grounds, is evidence of the commission of an offence against the Misuse of Drugs Act;
(e) where a person is apprehended for an offence against the Misuse of Drugs Act, an article or thing:
(i) found in the possession of the person; or

(ii) found as the result of a search,
being an article or thing that is of a type used in the manufacture, production, cultivation, use or administration of a dangerous drug, precursor or drug manufacturing equipment; or

(f) an aircraft, ship, train or vehicle which a member believes on reasonable grounds is being or has been used or is intended to be used in the commission of an offence against the Misuse of Drugs Act.

Question 25

120BB Seizure authorised under search warrant

Answer 25

120BB Seizure authorised under search warrant

A member of the Police Force who executes a warrant issued under section 120B may, in addition to seizing anything mentioned in section 120BA, seize any other thing:

(a) found in the course of executing the warrant; and
(b) that the member believes on reasonable grounds is connected with any offence.

Question 26

120C Searching without warrant

Answer 26

120C Searching without warrant

A member of the Police Force may, without warrant, stop, detain and search the following:

(a) an aircraft, ship, train or vehicle if the member has reasonable grounds to suspect that a dangerous drug, precursor or drug manufacturing equipment may be found on or in it;
(b) any person found on or in an aircraft, ship, train or vehicle being searched under paragraph (a);
(c) a person in a public place if the member has reasonable grounds to suspect that the person has in his or her possession, or is in any way conveying, a dangerous drug, precursor or drug manufacturing equipment.

Question 27

120D Use of reasonable force

Answer 27

120D Use of reasonable force

The power to search conferred by section 120C or by a warrant issued under section 120B authorises a member:

(a) to use such reasonable force as is necessary to break into, enter and search the place to be searched;
(b) to use such reasonable force as is necessary to open any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, found at the place; and
(c) to use such reasonable force as is necessary to carry out a search of a person authorised by or under this Division.

Question 28

120E Search of females

Answer 28

(1) A search of a female under this Division shall be carried out only:
(a) by a female member of the Police Force;

(b) by a medical practitioner authorised by a member to carry out the search; or
(c) where there is neither a female member nor a medical practitioner available – by a female person authorised by a member to carry out the search.
(2) Where a medical practitioner or a female person is authorised under subsection (1) to carry out a search of a female, the medical practitioner or female person carrying out the search has, for the purposes of that search, the same powers, and is subject to the same protection, as a member.

Question 29

121 Arrest warrants

Answer 29

121 Arrest warrants

(1) Where an information on oath is laid before a justice alleging that there are reasonable grounds for believing that a person has committed an offence:
(a) the justice may, subject to subsection (3), issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law; or

(b) the justice may issue a summons requiring the person to appear before a court to answer to the information.
(2) At any time after a justice has issued a summons requiring a person to appear before a court to answer to an information under subsection (1) and before the summons has been duly served on the person, a justice may, subject to subsection (3), issue a warrant for the arrest of the person and for bringing him before a court specified in the warrant to answer to the information and to be further dealt with according to law.

(3) A justice shall not issue a warrant under subsection (1) or (2) in relation to an information unless:
(a) an affidavit has been furnished to the justice setting out the grounds on which the issue of the warrant is being sought;

(b) the informant or some other person has furnished to the justice such further information, if any, as the justice requires concerning the grounds on which the issue of the warrant is being sought; and
(c) the justice is satisfied that there are reasonable grounds for issuing the warrant.
(4) Where an informant furnishes information to a justice for the purposes of subsection (3)(b), he shall furnish the information on oath.

(5) Where a justice issues a warrant under subsection (1), he shall state on the affidavit furnished to him in accordance with subsection (3) which of the grounds, if any, specified in that affidavit he has relied on to justify the issue of the warrant and particulars of any other grounds relied on by him to justify the issue of the warrant.
(6) Nothing in this section affects the application of section 19A of the Service and Execution of Process Act 1992 of the Commonwealth.
(7) A member may, at any time before a warrant issued under subsection (1) is executed, make application to a justice to withdraw the warrant.
(8) Where a warrant issued under subsection (1) has been executed the person arrested shall be charged with the offence specified in the warrant.

Question 30

122 Arrest warrant may be issued by telephone

Answer 30

(1) Where it is impracticable for a member of the Police Force to make application to a justice for an arrest warrant under this Act, the member may make application for an arrest warrant to a justice by telephone in accordance with this section.
(2) Before making application to a justice by telephone under subsection (1), the member shall prepare an information of a kind referred to in section 121 and, where required by the justice, an affidavit setting out the grounds on which the issue of the warrant is sought, but may, if it is necessary to do so, make the application before the information and the affidavit, if required, have been made on oath.
(3) Where a justice is, upon application made under subsection (1), satisfied that there are reasonable grounds for issuing a warrant, the justice may issue such an arrest warrant as he could issue under section 121 if the application had been made to him in accordance with that section.
(4) Where a justice issues a warrant under subsection (3):
(a) the justice shall complete and sign the warrant; and

(b) the justice shall inform the member by telephone of the terms of the warrant signed by him, and record on the warrant his reasons for issuing it; and
(c) the member shall complete in duplicate a form of warrant in the terms furnished to him by the justice and write on it the name of the justice who issued the warrant and the date on which and time at which it was issued.
(5) Where a justice issues a warrant under subsection (3), the member shall, not later than the day next following the date of the execution of the warrant, forward to the justice who issued the warrant the form of warrant prepared by the member and the information and affidavit, if any, duly made in connection with the issue of the warrant.

(6) Upon receipt of the documents referred to in subsection (5), the justice shall compare the copy of the form of warrant forwarded to him with the warrant signed by him and, if he is satisfied that they are in substance identical, he shall note this fact on the warrant signed by him and forward the warrant together with the copy of the form of warrant and the information and affidavit, if any, to the Commissioner of Police or to such member of the Police Force as may be specified by the Commissioner.
(7) A form of warrant completed by a member in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the justice, authority for any arrest that it authorises.
(8) Where it is necessary for a court in any proceeding to be satisfied that an arrest was authorised by a warrant issued by a justice in accordance with this section, and the warrant signed by the justice in accordance with this section is not produced in evidence, the court shall assume, unless the contrary is proved, that the arrest was not authorised by such warrant.
(9) Where an application has been made to a justice pursuant to subsection (1) and the application has been refused by the justice, subject to subsection (10), neither the member of the Police Force who made the application nor any other member who has any cause to suspect that an application has been made by another member under subsection (1) in respect of the same matter, shall make a further application to any justice pursuant to subsection (1) in respect of that matter.
(10) Where an application made pursuant to subsection (1) has been made to a justice and the application has been refused by that justice a further application may be made to a justice where a member satisfies a justice that the member has, since the time of the original application, received further information or evidence which is material to an application under subsection (1).

Question 31

123 Arrest without warrant by members of Police Force-

Answer 31

A member of the Police Force may, without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, is committing or is about to commit an offence.

Question 32

124 Arrest of person where warrant issued

Answer 32

(1) A member of the Police Force may, without warrant, arrest and take into custody any person who the member has reasonable cause to believe is a person for whose apprehension or committal a warrant has been issued by any Judge, magistrate or justice.
(2) Where a member arrests a person under subsection (1), the member shall, as soon as reasonably practicable thereafter, produce or cause to be produced to the person the warrant authorising his apprehension or committal, where the person has been apprehended in pursuance of a warrant authorising his apprehension, and the person shall be charged with the offence specified in the warrant.

Question 33

125 Power to arrest interstate offenders

Answer 33

(1) A member of the Police Force may, without warrant, arrest and take into custody a person if the member believes on reasonable grounds that the person has, in a State or another Territory, committed an offence against the law of that State or Territory and there is under the law of the Northern Territory a similar offence that is punishable by imprisonment for a period exceeding 6 months.
(3) A justice before whom a person arrested under subsection (1) is brought may:
(a) discharge the person;

(b) admit the person to bail on such conditions and recognizances as the justice thinks fit; or
(c) authorise the detention of the person for a reasonable time pending the endorsement, under the Service and Execution of Process Act 1992 of the Commonwealth, of a warrant issued in the State or Territory in which the offence was committed.

Question 34

126 Power to enter to make arrest or preserve peace

Answer 34

(1) Where a member of the Police Force has, under a warrant, power to arrest a person, he may enter a place, by force if necessary, and with such assistance as he thinks necessary at any time of the day or night or between such times as may be specified in the warrant, for the purpose of arresting the person if the member believes on reasonable grounds that the person is at the place.
(2) Subject to subsection (3), where a member of the Police Force may, without warrant, arrest a person, the member may enter, by force if necessary, and with such assistance as he thinks necessary, a place at any time of the day or night for the purpose of arresting the person if the member believes on reasonable grounds that the person has committed an offence punishable by a term of imprisonment exceeding 6 months and that he is at the place.
(2A) A member of the Police Force may, by reasonable force if necessary, enter a place if he believes, on reasonable grounds, that:
(a) a person at the place has suffered, is suffering or is in imminent danger of suffering personal injury at the hands of another person; or

(b) a contravention of an order under the Domestic and Family Violence Act has occurred, is occurring or is about to occur at the place,
and remain at the place for such period, and take such reasonable actions, as the member considers necessary:
(c) to verify the grounds of the member’s belief;
(d) to ensure that, in the member’s opinion, the danger no longer exists;
(e) to prevent a breach of the peace or a contravention of the order; or
(f) where a person at the place has suffered personal injury, to give or arrange such assistance to that person as is reasonable in the circumstances.
(2AA) A member of the Police Force may, having entered a place under subsection (2A), search the place for firearms or offensive weapons if the member believes, on reasonable grounds, that:

(a) a firearm or offensive weapon is located at the place; and

(b) to leave it at the place could place a person in imminent danger of suffering personal injury or an aggravation of personal injury already received,
and may seize any firearm, offensive weapon or similar article found as the result of the search.
(2AB) A firearm seized under subsection (2AA) shall be dealt with in accordance with the Firearms Act.

(2AC) A member who searches a place under subsection (2AA) is authorised to use the force that is reasonably necessary:
(a) to open any cupboard, drawer, chest, trunk, box, package or other receptacle, whether a fixture or not, found at the place; and

(b) to carry out a search of a person at the place.
(3) Nothing in this section shall limit or prevent the exercise of any other powers of a member of the Police Force pursuant to any other law in force in the Territory whereby a member may enter a place, whether with or without a warrant.

Question 35

127 Persons to be informed of reason for arrest

Answer 35

(1) A member of the Police Force who arrests a person for an offence shall inform the person, at the time of the arrest or as soon as practicable thereafter, of the offence for which he is arrested.
(2) A member who arrests a person for an offence shall be taken to have complied with subsection (1) if he informs the person of the substance of the offence for which he is arrested, and it is not necessary for him to do so in language of a precise or technical nature.
(3) Subsection (1) does not apply to or in relation to the arrest of a person:
(a) if that person ought, by reason of the circumstances in which he is arrested, to know the substance of the offence for which he is arrested; or

(b) if the person arrested makes it impracticable by reason of his actions, for the member effecting the arrest to inform him of the offence for which he is arrested.

Question 36

127A Intoxicated person

Answer 36

For this Division, a person is intoxicated if:

(a) the person’s speech, balance, coordination or behaviour appears to be noticeably impaired; and
(b) it is reasonable in the circumstances to believe the impairment results from the consumption or use of alcohol or a drug.

Question 37

128 Circumstances in which a person may be apprehended

Answer 37

(1) A member may, without warrant, apprehend a person and take the person into custody if the member has reasonable grounds for believing:
(a) the person is intoxicated; and

(b) the person is in a public place or trespassing on private property; and
(c) because of the person’s intoxication, the person:
(i) is unable to adequately care for himself or herself and it is not practicable at that time for the person to be cared for by someone else; or

(ii) may cause harm to himself or herself or someone else; or
(iii) may intimidate, alarm or cause substantial annoyance to people; or
(iv) is likely to commit an offence.
(2) For the purposes of carrying out his duties under subsection (1), a member may, without warrant, enter upon private property.

(2A) A member who takes a person into custody under subsection (1), or any other member, must establish the person’s identity by taking and recording the person’s name and other information relevant to the person’s identification, including photographs, fingerprints and other biometric identifiers.

(3) A member of the Police Force who takes a person into custody under subsection (1) may:
(a) search or cause to be searched that person; and

(b) remove or cause to be removed from that person for safe keeping, until the person is released from custody, any money or valuables that are found on or about that person and any item on or about that person that is likely to cause harm to that person or any other person or that could be used by that person or any other person to cause harm to himself or another.
(4) For the purposes of subsection (3), the person of a woman shall not be searched except by a woman.

(5) All money or valuables taken from a person under subsection (3) shall be recorded in a register kept for that purpose and shall be returned to that person on receipt of a signature or other mark made by that person in the register.
(6) A member may use the force that is reasonably necessary to exercise a power under this section.

Question 38

128A Referral for assessment under Alcohol Mandatory Treatment Act

Answer 38

(1) This section applies if:
(a) a person is apprehended and taken into custody under section 128; and

(b) the person is an adult; and
(c) the person:
(i) is not an involuntary patient under the Mental Health and Related Services Act; and

(ii) is not a reportable offender under the Child Protection (Offender Reporting and Registration) Act; and
(iii) is not subject to a continuing detention order or supervision order under the Serious Sex Offenders Act; and
(d) the person has been apprehended and taken into custody under section 128 on at least 2 occasions in:

(i) if a period has not been prescribed by regulations, the 2 month period immediately preceding the occasion of the apprehension of the person as mentioned in paragraph (a); or

(ii) if a period has been prescribed by regulations, the prescribed period immediately preceding the apprehension of the person as mentioned in paragraph (a); and
(e) an order under section 35 or 41 of the Alcohol Mandatory Treatment Act is not in force in relation to the person.

(2) In calculating the number of occasions on which the person has been apprehended and taken into custody for subsection (1)(d):
(a) if a mandatory treatment order has been made in relation to the person – any occasions on which the person has been apprehended and taken into custody before the expiry or revocation of the order are to be excluded; and

(b) if the person has been assessed under the Alcohol Mandatory Treatment Act and released without a mandatory treatment order being made – any occasions on which the person was apprehended and taken into custody before the assessment was conducted are to be excluded.
(3) The member who takes the person into custody, or any other member, must determine whether the person has been charged, or will, on release from custody, be charged with a relevant offence as defined in section 9(3) of the Alcohol Mandatory Treatment Act.

(4) If the person has not been and will not be charged as mentioned in subsection (3), a member must contact a senior assessment clinician to ascertain whether a suitable assessment facility has capacity to conduct an assessment of the person and a suitable treatment centre has capacity to treat the person.
(5) If the member is advised that there is a suitable assessment facility with capacity to conduct an assessment of the person, and a suitable treatment centre with capacity to treat the person:
(a) the member must arrange for the person to be taken, as soon as reasonably practicable, to the assessment facility in accordance with the Alcohol Mandatory Treatment Act; and

(b) sections 129, 131, 132 and 133 do not apply to the person.
(6) However, before the person is taken to the assessment facility, the member must inform the person of the following:

(a) the person is not under arrest in relation to any alleged offence;

(b) the person must be taken to an assessment facility for an assessment in accordance with the Alcohol Mandatory Treatment Act;
(c) the person will be able to contact the person’s primary contact, guardian (if any) and another person on arrival at the facility.
(7) If either of the following apply, the person must be dealt with in accordance with this Division:

(a) the person has been or will be charged as mentioned in subsection (3);

(b) there is no capacity at a suitable assessment facility for the person to be assessed or at a suitable treatment centre for the person to be treated.
(8) In this section:

mandatory treatment order, see section 5 of the Alcohol Mandatory Treatment Act.

Question 39

128B Referral of person subject to order under Alcohol Mandatory Treatment Act

Answer 39

(1) This section applies if:
(a) a person is apprehended and taken into custody under section 128; and

(b) a mandatory community treatment order applies to the person.
(2) The member who takes the person into custody, or another member, must determine whether the person has been charged, or will, on release from custody, be charged with a relevant offence as defined in section 9(3) of the Alcohol Mandatory Treatment Act.

(3) If the person has not been and will not be charged as mentioned in subsection (2), a member must contact a senior assessment clinician to ascertain whether a suitable assessment facility has capacity to conduct an assessment of the person and a suitable treatment centre has capacity to treat the person.
(4) If the member is advised that there is a suitable assessment facility with capacity to conduct an assessment of the person, and a suitable treatment centre with capacity to treat the person:
(a) the member must arrange for the person to be taken, as soon as reasonably practicable, to the assessment facility in accordance with the Alcohol Mandatory Treatment Act; and

(b) sections 129, 131, 132 and 133 do not apply to the person.
(5) If either of the following apply, the person must be dealt with in accordance with this Division:

(a) the person has been or will be charged as mentioned in subsection (2);

(b) there is no capacity at a suitable assessment facility for the person to be assessed or at a suitable treatment centre for the person to be treated.
(6) In this section:

mandatory community treatment order, see section 5 of the Alcohol Mandatory Treatment Act.

Question 40

129 Period of apprehension

Answer 40

(1) Subject to this Division, a person who has been apprehended and taken into custody under section 128 shall be held in the custody of a member of the Police Force, but only for so long as it reasonably appears to the member of the Police Force in whose custody he is held that the person remains intoxicated.
(2) Subject to this Division, where it reasonably appears to a member of the Police Force in whose custody a person is held at the time under this section that the person is no longer intoxicated, the member shall, without any further or other authority than this subsection, release that person or cause him to be released from custody without his entering into any recognizance or bail.
(3) A person who has been taken into custody under section 128 and who is in custody after midnight and before half past 7 o’clock in the morning on that day, may be held in custody until half past 7 o’clock in the morning on that day, notwithstanding that the person is no longer intoxicated.

Question 41

130 Protection of apprehended person

Answer 41

(1) A person in custody after apprehension under section 128:
(a) shall not be charged with an offence; and

(b) shall not be questioned by a member in relation to an offence.
(2) Where a person is questioned in contravention of subsection (1)(b) any answers which he may give to any such question shall be inadmissible in evidence against him in any proceedings.

Question 42

130A Evidence for alcohol-related matters

Answer 42

130A Evidence for alcohol-related matters

(1) If a member reasonably believes a person in custody under this Division is intoxicated with alcohol, the member may do any of the following:
(a) require the person to submit to a breath test to determine whether there is alcohol in the person’s breath;

(b) require the person to provide a sample of the person’s breath for a breath analysis;
(c) take and record the person’s name and other information relevant to the person’s identification, including photographs, fingerprints and other biometric identifiers.
(2) A breath analysis must be carried out:

(a) by a person authorised to carry out a breath analysis under the Traffic Act (an authorised officer); and

(b) using a prescribed breath analysis instrument.
(4) A certificate signed by the authorised officer who carried out a breath test or breath analysis on a person is evidence that there was present in the person’s breath the concentration of alcohol stated in the certificate.

(5) A certificate signed by the member who records information about a person’s identity is evidence of the matters stated in the certificate.
(6) In this section:
breath analysis, see section 3(1) of the Traffic Act.

breath test, see section 3(1) of the Traffic Act.
prescribed breath analysis instrument, see section 3(1) of the Traffic Act.

Question 43

131 Release

Answer 43

(1) The member of the Police Force in whose custody a person is held under this Division may, at any time, without any further or other authority than this subsection, release that person or cause him to be released without his entering into a recognizance or bail, into the care of a person who the member reasonably believes is a person capable of taking adequate care of that person.
(2) A person in custody shall not be released under subsection (1) into the care of another person if the person in custody objects to being released into the care of that person.

Question 44

132 Continued detention of person taken into custody under section 128

Answer 44

(1) In this section:
health practitioner means one of the following who is available to attend to a person held in custody:

(a) a medical practitioner;
(b) a person registered under the Health Practitioner Regulation National Law (other than as a student) to practise in:
(i) the Aboriginal and Torres Strait Islander health practice profession; or

(ii) the nursing and midwifery profession as a nurse.
member of the Police Force in whose custody a person is held, in relation to a person being held in custody in a locality that is outside Alice Springs, Darwin, Katherine or Tennant Creek, means the member of the Police Force on duty in the locality who holds the highest rank.

(2) If:
(a) a person who was taken into custody under section 128 is held in custody for 6 hours; and

(b) after the 6 hours has expired, it reasonably appears to the member of the Police Force in whose custody the person is held that the person is still intoxicated with alcohol or a drug,
the member must:
(c) notify a member of the Police Force of or above the rank of superintendent that it reasonably appears to the member that the person is still intoxicated with alcohol or a drug;
(d) if instructed by the member of the Police Force of or above the rank of superintendent to do so – continue, subject to subsection (4), to hold the person in custody until:
(i) it reasonably appears to the member of the Police Force in whose custody the person is held that the person is no longer intoxicated; or

(ii) the expiry of 10 hours after the person was taken into custody under section 128,
whichever first occurs;

(e) make a record in the custody log (however described) of the time at which and manner in which he or she notified the superintendent or other member, the content of the notification and the instruction the superintendent or other member gave to him or her; and
(f) if the member continues to hold the person in custody – arrange for a health practitioner to examine the person as soon as practicable.
(3) Notification under subsection (2)(c) may be:

(a) made orally, whether in person or by radio, telephone or any other available means of communication; or

(b) made in writing by facsimile transmission or any other available electronic means of communication.
(4) On the person who continues to be held in custody under subsection (2) being examined by a health practitioner:

(a) if the health practitioner is of the opinion that the condition of the person is such that the person requires medical treatment – the person may be released from custody into the care of the health practitioner; or
(b) if the health practitioner is of the opinion that the condition of the person is such that the person does not require medical treatment – the member of the Police Force in whose custody the person is held must continue to hold the person in custody until the expiry of the period the member must hold the person in custody under subsection (2)(d).

Question 45

133 Application to member for release

Answer 45

(1) A person apprehended under section 128 may, at any time after such apprehension, request a member to take him before a justice in order that the person may make an application to the justice for his release.
(2) Where a request is made of a member under subsection (1) he shall, if it is reasonably practicable for the person to be brought before a justice forthwith, bring the person, or cause the person to be brought, before the justice forthwith unless sooner released

Question 46

133AB Taking person into custody for infringement notice offence

Answer 46

(1) This section applies if:
(a) a member of the Police Force has arrested a person without a warrant under section 123; and

(b) the person was arrested because the member believed on reasonable grounds that the person had committed, was committing or was about to commit, an offence that is an infringement notice offence.
(2) The member may take the person into custody and:

(a) hold the person for a period up to 4 hours; or

(b) if the person is intoxicated – hold the person for a period longer than 4 hours until the member believes on reasonable grounds that the person is no longer intoxicated.
(3) The member, or any other member, on the expiry of the period mentioned in subsection (2), may:

(a) release the person unconditionally; or

(b) release the person and issue the person with an infringement notice in relation to the infringement notice offence; or
(c) release the person on bail; or
(d) under section 137, bring the person before a justice or court for the infringement notice offence or another offence allegedly committed by the person.
(4) For deciding how to deal with the person under subsection (3), the member, or another member, may question the person about the infringement notice offence, or any other offence in relation to which the person is of interest to police.

Question 47

133AC When person taken into custody

Answer 47

(1) A member of the Police Force who takes a person into custody under section 133AB, or another member, must establish the person’s identity by taking and recording the person’s name and further information relevant to the person’s identification, including photographs, fingerprints and other biometric identifiers.
(2) A member who takes a person into custody under section 133AB may:
(a) search or cause the person to be searched; and

(b) remove, or cause to be removed, from the person for safekeeping:
(i) any money or valuables; and

(ii) any item that is likely to cause harm to the person or another person; and
(iii) any item that could be used by the person or another person to cause harm to the person or another person.
(3) Any item removed from a person under subsection (2)(b):

(a) must be recorded in a register kept for that purpose; and

(b) must be returned to the person on the person being released from custody.
(4) Subsection (3)(b) does not apply if possession of the item by the person would be unlawful.

(5) The person must acknowledge receipt of any items returned under subsection (3)(b) by signing or making a mark in the register.
(6) For subsection (2)(a), a search of a female may only be carried out:
(a) by a female member of the Police Force; or

(b) if a female member of the Police Force is not available, a female authorised by a member to carry out the search.
(7) A member, or a person authorised under subsection (6)(b), may use the force that is reasonably necessary to exercise a power under this section.

(8) A person authorised under subsection (6)(b) to carry out a search of a female has, for that search, the same powers and protections as a member.

Question 48

133B Member may issue and serve notice to appear

Answer 48

(1) A member who believes on reasonable grounds that a person has committed an offence may issue a notice requiring the person to appear before the Court in respect of the offence.
(2) The member must issue the notice to appear in triplicate and serve one copy personally on the person required to appear before the Court.

Question 49

133C Form of notice to appear

Answer 49

(1) A notice to appear is to:
(a) be directed to the person alleged to have committed the offence; and

(b) state the substance of the offence the person is alleged to have committed; and
(c) require the person to appear before the Court at a specified time and place in respect of the offence; and
(d) state, if the person does not appear before the Court as required by the notice, the consequences include that the Court may issue a warrant for the person’s arrest or proceed ex parte to a hearing of the offence and adjudicate on the offence as fully and effectually, to all intents and purposes, as if the person had personally appeared as required by the notice; and
(e) be signed by the member who issued the notice.
(2) The statement in the notice to appear of the substance of the offence need provide only general particulars of the offence, including:

(a) the nature of the offence; and

(b) the time and place it is alleged the offence was committed.
(3) The time specified in the notice to appear as the time when the person is required to appear before the Court is to be not less than 7 days after the notice is served.

(4) The place specified in the notice to appear as the place where the person is to appear before the Court is to be a place where the Court will be sitting at the time specified in the notice.

Question 50

133D Notice to appear to be filed

Answer 50

After a person has been served with a notice to appear, and as soon as practicable before the date on which the person is required to appear before the Court, one copy of the notice is to be filed with the clerk of the Court at the place where the person is required to appear.

Question 51

133E Person to be given complaint or information

Answer 51

A person who appears before the Court as required by a notice to appear is to be given a complaint or information (as the case requires) in accordance with section 190(1) of the Justices Act.

Question 52

134 Requirement to furnish names and addresses

Answer 52

(1) Where a member of the Police Force believes on reasonable grounds that a person whose name or address is unknown to the member may be able to assist him in his inquiries in connection with an offence that has been, may have been or may be committed, the member may request the person to furnish to the member the person’s name or address, or both.
(2) Where a member requests a person under subsection (1) to furnish his name or address, or both his name and address, to the member and informs the person of his reason for the request, the person:
(a) shall not refuse or fail to comply with the request;

(b) shall not furnish to the member a name that is false in a material particular; and
(c) shall not furnish to the member as his address an address other than the full and correct address of his ordinary place of residence.
Maximum penalty: 4 penalty units.
(3) Where a member who makes a request of a person under subsection (1) is requested by the person to furnish to the person the member’s name, or the address of his place of duty, or both, the member:

(a) shall not refuse or fail to comply with the request;

(b) shall not furnish to the person a name that is false in a material particular; and
(c) shall not furnish to the person as the address of his place of duty an address other than the correct address of his ordinary place of duty.
Maximum penalty: 4 penalty units.

Question 53

135 Disclosure of names

Answer 53

(1) A member of the Police Force shall, when requested to do so:
(a) by a legal practitioner representing a person held in custody under a law in force in the Territory; or

(b) by a spouse, de facto partner, parent or child of a person held in custody under a law in force in the Territory,
disclose to the person so requesting, whether or not a person is being held in custody and if so where that person is being so held.
(2) A disclosure under subsection (1) that a person is being held in custody shall only be made with the consent of the person being so held

Question 54

137 Time for bringing person before justice or court generally

Answer 54

(1) Without limiting the operation of section 123, but subject to subsections (2) and (3) of this section, a person taken into lawful custody under this or any other Act shall (subject to that Act where taken into custody under another Act) be brought before a justice or a court of competent jurisdiction as soon as is practicable after being taken into custody, unless he or she is sooner granted bail under the Bail Act or is released from custody.
(2) Notwithstanding any other law in force in the Territory (including the common law), but subject to subsection (3) a member of the Police Force may, for a reasonable period, continue to hold a person he has taken into lawful custody in custody to enable:
(a) the person to be questioned; or

(b) investigations to be carried out,
to obtain evidence of or in relation to an offence that the member believes on reasonable grounds involves the person, whether or not:
(c) it is the offence in respect of which the person was taken into custody; or
(d) the offence was committed in the Territory,
and the person shall not be granted bail under Part III or section 33 of the Bail Act while so detained, whether or not he or she has been charged with an offence.
(3) A member of the Police Force may continue to hold a person under subsection (2) for the purposes of enabling the person to be questioned or investigations to be carried out to obtain evidence of or in relation to:

(a) the offence in respect of which the person was taken into custody, only if it is an offence the maximum penalty for which, in the jurisdiction in which it is believed to have been committed, is imprisonment for any period; or
(b) an offence that is not the offence in respect of which the person was taken into custody, only if it is an offence the maximum penalty for which, in the jurisdiction in which it is believed to have been committed, is imprisonment for 5 years or more.

Question 55

138 Determining reasonable period during which person detained, &c., to be brought before justice or court

Answer 55

In determining what is a reasonable period for the purposes of section 137(2), but without limiting the discretion of the justice or the court, a justice or court before whom or which the question is brought shall, so far as it is relevant, take into account:

(a) the time taken for investigators with knowledge of or responsibility for the matter to attend to interview the person;
(b) the number and complexity of matters to be investigated;
(c) the time taken to interview available witnesses;
(d) the need of investigators to assess relevant material in preparation for interviewing the person;
(e) the need to transport the person from the place of detention to a place where appropriate facilities were available to conduct an interview or other investigation;
(f) the number of people who need to be questioned during the period of detention in respect of any offence reasonably believed to have been committed by the person;
(g) the need to visit the place where any offence under investigation is believed to have been committed or any other place reasonably connected with the investigation of any such offence;
(h) the time taken to communicate with a legal adviser, friend or relative of the detained person;
(j) the time taken by a legal adviser, friend or relative of the person or an interpreter to arrive at the place where the questioning or the investigation took place;
(k) the time taken in awaiting the completion of forensic investigations or procedures;
(m) the time during which the investigation or questioning of the person was suspended or delayed to allow the person to receive medical attention;
(n) the time taken by any examination of the person in pursuance of section 145;
(p) the time the person in custody has been in the company of police prior to and after the commencement of custody;
(q) the time during which the investigation or questioning of the person was suspended or delayed:
(i) to allow the person to rest; or

(ii) because of the intoxication of the person;
(r) the time taken to arrange and conduct an identification parade;

(s) the time taken for an operating electronic recording facility to become available to record the interviewing of the person; and
(t) any interruptions to the electronic recording of the interviewing of the person because of technical reasons (such as a breakdown in equipment or a power failure) beyond the control of the interviewing member.

Question 56

138A Time for holding intoxicated person before charging and bringing before justice or court

Answer 56

(1) This section applies in relation to a person under arrest, despite section 137(1) and any provision of the Bail Act to the contrary, if:
(a) a member of the Police Force has reasonable grounds to believe the person is intoxicated; and

(b) section 137(2) does not apply in relation to the person.
(2) The person may be held in lawful custody without being charged with an offence only for as long as it reasonably appears to the member that the person remains intoxicated.

(3) The member must charge the person with an offence and bring the person before a justice or court (unless already granted bail under the Bail Act) as soon as practicable after it reasonably appears to the member that the person is no longer intoxicated.
(4) In this section, intoxicated has the same meaning as in section 127A.

Question 57

140 Person to be warned and given opportunity to inform friend or relative of person’s whereabouts

Answer 57

Before any questioning or investigation under section 137(2) commences, the investigating member must inform the person in custody that the person:

(a) does not have to say anything but that anything the person does say or do may be given in evidence; and
(b) may communicate with or attempt to communicate with a friend or relative to inform the friend or relative of the person’s whereabouts,
and, unless the investigating member believes on reasonable grounds that:
(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed,
the investigating member must defer any questioning or investigation that involves the direct participation of the person for a time that is reasonable in the circumstances and afford the person reasonable facilities to enable the person to make or attempt to make the communication.

Question 58

144 Search of persons in lawful custody

Answer 58

144 Search of persons in lawful custody

(1) A member of the Police Force may search a person in lawful custody, including the clothing the person is wearing and any property in the person’s immediate possession, and may use the force that is reasonably necessary to conduct the search.
(2) A member may seize any weapon or other article capable of being used to inflict injury on a person or assist an escape from custody, or anything relating to an offence, found as a result of a search under subsection (1).
(3) Subsection (1) does not authorise a member to require a person to remove any clothing that he is wearing unless the member has reasonable grounds for believing that the removal and examination and detention of such clothing may afford evidence of the commission of an offence, and the person is provided with adequate clothing to replace the clothing removed.
(4) Any search carried out pursuant to subsection (1) shall, wherever practicable, be carried out by a member of the same sex as the person searched.
(5) Nothing in this section shall be taken to prevent the search of the person of a person, or of property under the control of a person and the removal from that person of any property for safe keeping upon his being admitted as an inmate of a lock-up, custodial correctional facility (as defined in section 11(1)(a) of the Correctional Services Act) or like place after being charged with an offence.

Question 59

145 Intimate procedures

Answer 59

(1) A member of the Police Force may arrange for a medical practitioner or registered dentist to carry out an intimate procedure on a person in lawful custody on a charge of an offence if the member believes on reasonable grounds that the procedure may provide evidence relating to the offence or any other offence punishable by imprisonment.
(2) The intimate procedure may be carried out if:
(a) the person consents in writing to it being carried out; or

(b) a magistrate approves it being carried out.
(3) The member of the Police Force may apply to a magistrate for the approval:

(a) in person; or

(b) if that is not practicable – by telephone.
(4) The magistrate may approve the intimate procedure being carried out if, after hearing:

(a) the member of the Police Force; and

(b) the person to whom the application relates,
he or she is satisfied that the member has reasonable grounds for the belief referred in subsection (1).
(5) The approval is to be in writing and given to the member of the Police Force.

(6) The member of the Police Force may proceed under the approval despite not having received it if he or she is informed of it by the magistrate by telephone.
(7) A medical practitioner or registered dentist may carry out the intimate procedure in accordance with the approval given under subsection (4).
(8) A member of the Police Force:
(a) may assist a medical practitioner or registered dentist to carry out the intimate procedure; and

(b) may use reasonable force when assisting the medical practitioner or registered dentist.
(9) Before arranging for the intimate procedure to be carried out, the member of the Police Force must inquire whether the person wishes to have a medical practitioner or registered dentist of his or her own choice present when the procedure is carried out.

(10) If the person wishes to have a medical practitioner or registered dentist present, the member of the Police Force must:
(a) provide reasonable facilities to enable the person to arrange for a medical practitioner or registered dentist to be present; and

(b) unless it would be impracticable to do so – arrange for the intimate procedure to be carried out at a time when the medical practitioner or registered dentist can be present.
(11) After the intimate procedure is carried out, the person must be provided with a copy of the report of the medical practitioner or registered dentist provided in respect of the procedure if the person requests it.

(12) No action or proceeding, civil or criminal, can be commenced against a medical practitioner or registered dentist in respect of anything reasonably done by him or her in carrying out an intimate procedure under this section.
(13) Nothing in this section prevents a medical practitioner or registered dentist from examining a person in lawful custody at the request of the person or treating the person for an illness or injury.

Question 60

145A Non-intimate procedures

Answer 60

(1) Subject to general orders, a member of the Police Force holding the rank of Senior Sergeant or a higher rank may approve the carrying out of a non-intimate procedure on a person:
(a) whom the member reasonably suspects has committed a crime; or

(b) who is in lawful custody charged with an offence punishable by imprisonment.
(2) A member of the Police Force may, in accordance with the approval, carry out the non-intimate procedure.

(2A) If the non-intimate procedure is the taking of a sample by buccal swab, a member of the Police Force may direct the person to provide the sample.

(3) A person is not to be taken to have provided a sample unless the sample is sufficient to enable an analysis of it to be carried out.
(4) A member of the Police Force may use reasonable force when exercising his or her powers under this section.

Question 61

145B Voluntary non-intimate procedures

Answer 61

(1) Subject to general orders, a member of the Police Force holding the rank of Senior Sergeant or a higher rank may carry out or cause to be carried out a non-intimate procedure on a person who consents to the non-intimate procedure being carried out.
(2) The person’s consent is to be in writing.

Question 62

146 Certain non-intimate procedures on persons in custody

Answer 62

146 Certain non-intimate procedures on persons in custody

(1) Subject to general orders, a member of the Police Force holding the rank of Sergeant or a higher rank, or for the time being in charge of a police station may, in respect of a person in lawful custody:
(a) on a charge of an offence; or

(b) in relation to a warrant issued in accordance with any law in force in the Territory,
carry out or cause to be carried out an identifying non-intimate procedure.
(2) In exercising his powers under subsection (1) a member of the Police Force may, for that purpose, use such force and may call upon such assistance as may be necessary.

(3) In this section, identifying non-intimate procedure means taking:
(a) prints of the hands, fingers, feet or toes; or

(b) photographs.

Question 63

Division 7A Crime scenes

147G Definitions

Answer 63

In this Division:

crime scene means a place established as a crime scene under section 147J.
crime scene powers means powers conferred by section 147N.
investigations includes any type of examination, analysis or process associated with the investigation of a relevant offence at a crime scene.
relevant offence means:
(a) an offence punishable by a term of imprisonment of 6 months or more; or
(b) in relation to an act or omission that occurs outside the Territory and is not an offence against a law of the Territory – an act or omission that if done or omitted to be done in the Territory would constitute an offence punishable by a term of imprisonment of 6 months or more.
responsible member, for a crime scene, means:
(a) the member of the Police Force who establishes the crime scene; or
(b) if another member assumes control of the crime scene after it is established – that member.
senior member means a member of the Police Force of or above the rank of Superintendent.

Question 64

147J Authority to enter place and establish crime scene

Answer 64

(1) If a member of the Police Force suspects on reasonable grounds that a relevant offence has been, is being, or is about to be, committed at a place, the member may:
(a) enter and take control of the place and anything at the place; and

(b) remain at the place to establish and maintain a crime scene if the member is satisfied it is reasonably necessary to do so to preserve, or search for and gather, evidence of the commission of a relevant offence; and
(c) exercise crime scene powers at the place.
(2) A member may enter any other place if it is necessary to do so to gain entry to a place mentioned in subsection (1).

(3) To establish a crime scene, a member must, whenever practicable:
(a) identify what is the crime scene; and

(b) decide the boundaries necessary to protect the crime scene; and
(c) mark the boundaries in a way that sufficiently identifies the crime scene to the public.
(4) A member who establishes a crime scene must comply with this Division and any of the following that relate to crime scenes:

(a) general orders;

(b) orders, instructions or guidelines published in the Police Gazette.
(5) As soon as reasonably practicable after a member has established a crime scene, the member must notify a senior member of its establishment.

Question 65

147K Restricting access to crime scene

Answer 65

(1) After establishing a crime scene, the responsible member must immediately take the steps the member considers reasonably necessary to protect anything at the crime scene from being damaged, interfered with or destroyed.
(2) A person (other than the responsible member) must not enter a crime scene unless:
(a) the person has a special reason, associated with the investigations at the crime scene, for entering; or

(b) the person is a member who is asked to enter the crime scene by the responsible member or another member; or
(c) the person is assisting the responsible member at the crime scene; or
(d) the presence of the person is necessary to preserve life or property at the crime scene; or
(e) the person is authorised to enter by the responsible member.

Question 66

147M Period for maintaining crime scene

Answer 66

(1) The responsible member for a crime scene may maintain the crime scene for a reasonable period to enable necessary investigations to be conducted.
(2) In deciding what is a reasonable period for maintaining a crime scene, the responsible member must take into account the following matters:
(a) the complexity of the relevant offence being investigated;

(b) the size of the crime scene;
(c) the availability of investigators or examiners with the appropriate knowledge to conduct investigations;
(d) any matter relevant to the exercise of crime scene powers.

Question 67

147N Crime scene powers

Answer 67

(1) During the period a crime scene is maintained, the responsible member has the power to do any of the following:
(a) direct a person to leave the crime scene or remove a thing or animal from the crime scene;

(b) remove from the crime scene:
(i) a person who fails to comply with a direction to leave the crime scene; or

(ii) a thing or animal that 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 a thing from or otherwise interfering with the crime scene or anything at the crime scene and, for that purpose, stop, detain and search the person;
(f) remove or direct the removal of an obstruction from the crime scene;
(g) conduct necessary investigations, including by searching the crime scene and inspecting anything at the crime scene to obtain evidence of the commission of a relevant offence;
(h) seize and detain all or part of a thing that might provide evidence of the commission of a relevant offence;
(i) open anything at the crime scene that is locked;
(j) take electricity, gas or any other utility for use at the crime scene;
(k) direct the occupier, or a person apparently involved in the management or control, of the place where the crime scene is located to maintain a continuous supply of electricity at the crime scene;
(l) photograph or otherwise record the crime scene and anything at the crime scene;
(m) dig up anything at the crime scene;
(n) remove walls, ceilings or floors of a building at the crime scene;
(o) dismantle anything in or at the crime scene;
(p) exercise any other power that:
(i) it is reasonably necessary to exercise; or

(ii) is reasonably incidental to a power conferred by this subsection.
(2) The power conferred by subsection (1)(h) to seize and detain a thing at the crime scene includes the power:

(a) to remove the thing from the crime scene; and

(b) to guard the thing at the crime scene.
(3) Crime scene powers may also be exercised by other members of the Police Force and other persons assisting the responsible member at the crime scene.

(4) A member or person assisting the responsible member at the crime scene is subject to the directions of the responsible member.