Powers Flashcards
What are the elements of the offence ‘possession of liquor by minors’?
Where in legislation is this offence found, and what is the penalty?
Summary Offences Act 1988 s11 (1)
Elements of offence:
- the accused
- is under age 18
- possesses or consumes liquor
- in a public place
- without supervision of a responsible adult or a reasonable excuse
Penalty: $20
What power do police have to seize alcohol from minors in a public place?
What are the criteria for using this power, and where in legislation is it found?
Summary Offences Act 1988 s11 (2) empowers police to seize alcohol in the possession of a person in a public place
Criteria: police officer must suspect on reasonable grounds that the person is committing an offence under s11 (1) [i.e. is minor with alcohol]
What power do police have to move-on intoxicated persons in public places?
What are the criteria for using this power, and where in legislation is it found?
What is the definition of intoxication under this section?
LEPRA s198 empowers police to direct an intoxicated person in a public place to:
- leave and not return for up to 6 hours
- not be intoxicated and disorderly in any other public place within 6 hours
Criteria for using power: officer must believe on reasonable grounds that:
- person’s behaviour is disorderly OR likely to cause injury / property damage / risk to public safety, AND
- person’s behaviour is a result of intoxication
Supporting definition: in this section ‘intoxicated’ means that the person’s speech, balance, coordination or behaviour is noticeably affected and it’s reasonable to believe this is due to consuming alcohol or any other drug.
What is the definition of intoxication under LEPRA S206?
For the purposes of LEPRA s206 (detaining intoxicated persons in public places) the definition is:
- “a person who appears to be seriously affected by alcohol or another drug or a combination of drugs”
What is the definition of intoxication under LEPRA 198?
LEPRA s198 (move-on directions for intoxicated persons in public) the definition of ‘intoxicated’ is:
- the person’s speech, balance, co-ordination or behaviour is noticeably affected AND
- it is reasonable in the circumstances to believe this is the result of consumption of liquor or any drugs
What is the definition of intoxication under the Liquor Act?
For the purposes of the Liquor Act 2007 (e.g. fail to quit offences) the definition of ‘intoxicated’ is:
- the person’s speech, balance, co-ordination or behaviour is noticeably affected AND
- it is reasonable in the circumstances to believe this is the result of consumption of liquor
In what circumstances can police detain a mentally ill or disordered person for the purpose of a mental health assessment?
Where in legislation is this power found?
Mental Health Act 2007 s22 allows police to detain a person who appears to be mentally ill or disordered for transport to a mental health facility
Criteria for use:
1. Officer must believe on reasonable grounds that
- the person committed / is committing an offence OR
- has attempted / will attempt to kill (themselves/another) or cause serious physical harm (to themselves/another)
2. officer believes on reasonable grounds that it would be beneficial to the person’s welfare to be dealt with under MHA rather than otherwise according to the law
What constitutes a ‘person search’ as opposed to a ‘strip search’
Where in LEPRA is this defined?
LEPRA s30 ‘searches generally’ outlines that a person search can include:
- running hands over outer clothing
- requiring the person to remove coats/jackets, gloves, shoes, socks, hats
- examining anything found
- running a metal detector over the person
A strip search is anything that goes beyond this, including searches that don’t remove inner clothing but allow a visual examination of the person’s genitals, buttocks, breasts or underwear (e.g. pulling jeans out to see undies)
What section of LEPRA allows police officers to conduct strip searches, and when is this allowed?
LEPRA s31 states that for a strip search to occur:
The officer must already have a power to search the person (e.g. under LEPRA s21, 23, 27, 28A)
AND
the officer must have the following state of mind:
- [if search carried out in a police station] the officer must suspect on reasonable grounds that a strip search is necessary ‘for the purposes of the search’ (i.e. to find the thing they were searching for in the first place)
- [if search carried out elsewhere] the officer must suspect on reasonable grounds that a strip search is necessary and that it must be done away from a police station because of ‘the seriousness and urgency’ of the circumstances
What steps must police officers take to preserve privacy and dignity when conducting searches (of any kind)?
Where in LEPRA is this specified?
LEPRA s32 requires that police officers conducting searches must, as far as reasonably practical, ensure that:
tell person being searched if they need to remove clothes, and explain why
ask for person’s cooperation
allow reasonable privacy
search as quickly as practicable
search in least invasive way practicable, including avoiding genital/breast areas unless suspect on reasonable grounds necessary
must be conducted by same sex officer
can’t question the person while searching
allow to re-dress as soon as search finished, and provide appropriate substitute clothing if you’ve seized any clothing
What rules must police officers follow when conducting strip searches?
Where in LEPRA is this specified?
LEPRA s33 requires that police officers conducting strip searches must, as far as reasonably practical, ensure that:
search conducted in a private area (not just ‘with reasonable privacy’ like a person search)
not conducted in view/presence of anyone of the opposite sex
not conducted in view/presence of anyone unnecessary
no cavity examinations
no examination by touching
for children 10-18yrs old, a parent/guardian or someone else acceptable to the child must be present to represent their interests
LEPRA s34 also states that strip searches are never allowed on children under the age of 10.
What power is provided by LEPRA s197? What are the criteria for using this power?
Power: to direct to people in public places to cease certain types of behaviour or to leave a certain public place
Criteria for use: CHOPS
The officer must believe on reasonable grounds that the person’s behaviour or presence in the place must:
- [causing fear] cause or be likely to cause fear to other persons, so long as it would also cause fear to a person as reasonable firmness
- [harrass / intimidate] constitute harassment/intimidation of other persons
- [obstruct] obstruct other persons or traffic
- [procure drugs] is for purpose of obtaining/procuring prohibited drugs
- [supply drugs] is for the purpose of supplying/soliciting someone to supply prohibited drugs
State LEPRA s99 (1)(a) and (1)(b) verbatim
Power of PO to arrest
- (1)(A) A police officer suspects on reasonable grounds that the person is
committing or has committed an offence
-AND-
- (1)(B) The police officer is satisfied that the arrest is reasonably necessary for
any one or more of the following reasons
I. To stop the person committing or repeating the offence or
committing another offence
II. To stop the person fleeing from a police officer or the location of the
offence
III. To enable enquiries to be made to establish the person’s identity if
it cannot be readily established, or the police officer suspects on
reasonable grounds that the identity information provided is false
IV. To ensure the person appears before a court in relation to the
offence
V. To obtain property in possession of the person that is connected
with the offence
VI. To preserve the evidence of the offence or prevent the fabrication
of evidence
VII. To prevent the harassment of or interference with any persons
giving evidence in relation to the offence
VIII. To protect the safety and welfare of any persons (including the
person arrested)
IX. Because of the nature and seriousness of the offence
What is LEPRA s105
A police officer may discontinue an arrest at any time.
What is LEPRA s101
Power to arrest with warrant
