Justice Legislation Amendment (Police Custody Officers) Bill 2015

Introduction Print

EXPLANATORY MEMORANDUM

General

This Bill establishes the statutory framework for civilian police custody officers. The Bill creates a mechanism for police custody officers to exercise and perform defined custody management duties, functions and powers to enable them to supervise and manage certain people in police custody including transport functions and certain functions incidental to the custody management function.

Clause Notes

Part 1—Preliminary

Clause 1 sets out the main purposes of the Bill, which are to amend—

the Victoria Police Act 2013 to provide for the authorisation and powers of police custody officers;

the Corrections Act 1986 to provide for the authorisation and powers of police custody officers under that Act, to make amendments in relation to certain powers of police officers under that Act and to otherwise improve the operation of that Act;

the Court Security Act 1980 to provide for the authorisation of police custody officers under that Act;

the Crimes Act 1958 in relation to the powers of police custody officers to carry out certain procedures; and

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the Road Safety Act 1986 to provide for the authorisation of police custody officers to take samples of oral fluid.

Clause 2 provides that the Act comes into operation on the day after the day on which it receives the Royal Assent.

Part 2—Victoria Police Act

Clause 3 amends section 3(1) of the Victorian Police Act 2013. Section 3(1) sets out the definitions of terms in that Act.

Clause 3 inserts the definition of drug of dependence and provides that the term has the same meaning as in the Drugs, Poisons and Controlled Substances Act 1981.

Clause 3 inserts the definition of police custody officer and provides that the term means a Victoria Police employee authorised to act as a police custody officer under new section 200D of the Victoria Police Act 2013. This definition is replicated in the Corrections Act 1986 (clause 8), the Court Security Act 1980 (clause 24), the Crimes Act 1958 (clause 25) and the Road Safety Act 1986 (clause 28). New section 200D of the Victoria Police Act 2013 is inserted by clause 7.

Clause 4 repeals the definition of drug of dependence in section 82 of the Victoria Police Act 2013. This definition is unnecessary because it duplicates the new definition inserted by clause 3.

Clause 5 inserts new section 89A into the Victoria Police Act 2013. New section 89A deals with targeted testing of police custody officers for consumption of alcohol or a drug of dependence. New section 89A ensures that police custody officers are subject to targeted testing directions similar to those applying to Victoria Police personnel other than Victoria Police employees.

New section 89A(1) provides that the section applies to police custody officers who are rostered on. The meaning of rostered on is given in section 84 of the Victoria Police Act 2013.

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New section 89A(2) provides that the Chief Commissioner may give a testing direction to a police custody officer who is rostered on if the Chief Commissioner reasonably suspects that the police custody officer has consumed alcohol or a drug of dependence and, because of that suspicion, reasonably believes that the policy custody officer ought to be tested for the good order and discipline of Victoria Police.

New section 89A(3) provides that the Chief Commissioner may give a testing direction to a police custody officer who is rostered on if the Chief Commissioner reasonably believes that the police custody officer appears to be unfit for work because the police custody officer has consumed alcohol or a drug of dependence.

Clause 6 amends section 94 of the Victoria Police Act 2013. Section 94 appears in Division 5, which concerns random testing for consumption of alcohol or a drug of dependence. Section 94 provides that Division 5 applies to members of Victoria Police personnel who are rostered on other than Victoria Police employees. Clause 6 inserts new subsection (2) into section 94 to provide that this Division also applies to police custody officers.

Clause 7 inserts new Part 11A into the Victoria Police Act 2013. New Part 11A sets out the definitions of relevant terms (Division 1) and deals with the duties and authorisation of police custody officers (Division 2), the powers of police custody officers in relation to arrested persons (Division 3) and the supervision of persons at court by police custody officers (Division 4).

Division 1 of new Part 11A comprises new section 200A and sets out the definitions of terms used in Part 11A.

New section 200A inserts the definition of police gaol and provides that the term has the same meaning as in the Corrections Act 1986. New section 200A inserts the definition of supervise and provides that the term, in relation to a person, includes to take charge of and to hold the person. New section 200A inserts the definition of transport and provides that the term includes escort, bring, transfer, convey, take and deliver.

Division 2 of new Part 11A comprises new sections 200B to 200F and deals with the duties and authorisation of police custody officers.

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New section 200B provides that police custody officers have the duty to assist with the management and operation of police gaols and police stations and to supervise and transport persons in accordance with the Victoria Police Act 2013 and the Corrections Act 1986. Police custody officers also have any other duties determined by the Chief Commissioner from time to time.

New section 200C provides that the Governor in Council may declare the police gaols at which or in relation to which police custody officers may exercise their powers conferred under new Division 2 and Division 3 of Part 9A of the Corrections Act 1986. Part 9A of the Corrections Act 1986 is amended by clauses 12 to 21, including the insertion of new Division headings. A declaration is to be made on the recommendation of the Minister and by Order published in the Government Gazette.

New section 200D(1) provides that the Chief Commissioner may, by instrument, authorise a Victoria Police employee to act as a police custody officer.

New section 200D(2) provides that the Chief Commissioner may give the authorisation subject to any conditions or limitations that are stated in it.

New section 200E(1) provides that the Chief Commissioner may, at any time, limit the scope of an authorisation given to a Victoria Police employee to act as a police custody officer by specifying what powers the employee may or may not exercise. This does not limit the conditions or limitations that the Chief Commissioner may impose under new section 200D(2).

New section 200E(2) provides that the Chief Commissioner must give the relevant employee written notice of any limitations that apply to the authorisation.

New section 200E(3) provides that a limitation on an authorisation takes effect when the employee receives the written notice of the limitation.

New section 200F provides that the Chief Commissioner may at any time vary, suspend or revoke an authorisation to act as a police custody officer.

Division 3 of new Part 11A comprises new sections 200G to 200K and deals with the powers of police custody officers in relation to arrested persons.

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New section 200G deals with supervision of arrested persons by police custody officers at the Chief Commissioner's direction.

New section 200G(1) and (2) empowers the Chief Commissioner to direct a police custody officer to supervise a person under lawful arrest at a police station, hospital or other medical facility.

New section 200G(3) provides that a police custody officer must comply with a direction of the Chief Commissioner.

New section 200G(4) provides that a person being supervised by a police custody officer at the direction of the Chief Commissioner is in the legal custody of the Chief Commissioner.

New section 200H deals with transport and supervision of arrested persons by police custody officers at the Chief Commissioner's direction.

New section 200H(1) empowers the Chief Commissioner to direct a police custody officer, in relation to a person under lawful arrest, to—

transport the person from a police station to a hospital, court, police gaol, another police station or any other place;

transport the person to a police station from a hospital, court, police gaol, another police station or any other place;

supervise the person who is being transported to or from a police station;

supervise the person at a place to which the person has been transported;

supervise the person at a place from which the person will be transported.

New section 200H(2) provides that, if the Chief Commissioner has directed a police custody officer to transport or supervise a person under new subsection (1), a police custody officer may, if it is necessary to do so, transport that person to, and supervise that person at, a hospital or other facility at which medical assessments, care or treatment are provided.

New section 200H(3) provides that a police custody officer must comply with a direction of the Chief Commissioner.

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New section 200H(4) provides that a person being transported or supervised by a police custody officer at the direction of the Chief Commissioner is in the legal custody of the Chief Commissioner.

New section 200I gives functions and powers to police custody officers in relation to persons they supervise or transport.

New section 200I(1) sets out the functions of a police custody officer in relation to a person the officer is supervising or transporting under Division 3, which are to take all reasonable steps to—

prevent the escape or attempted escape of the person from the physical custody of the police custody officer;

ensure that the person's safety and welfare are maintained;

prevent and detect the commission by the person of any unlawful act or attempt to commit an unlawful act;

ensure the good order and discipline of the person;

ensure the security of any property that is in the person's possession;

ensure that the person is transported to or from the appropriate place as directed by the Chief Commissioner; and

ensure that the person is supervised as directed by the Chief Commissioner.

New section 200I(2) sets out the powers of a police custody officer in relation to a person the officer is supervising or transporting at the Chief Commissioner's direction, which are to—

order the person to do or not to do anything that the police custody officer believes on reasonable grounds is necessary for the safety of the police custody officer, the person or any other person;

search and examine the person or any thing in the person's possession or control if the police custody

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officer believes on reasonable grounds that this is necessary for the safety of the police custody officer, the person or any other person;

seize any thing found on the person or in the person's possession or control if the police custody officer believes on reasonable grounds that this is necessary for the safety of the police custody officer, the person or any other person;

apply an instrument of restraint to the person for the duration of the supervision or transport if the Chief Commissioner believes on reasonable grounds that this is necessary to prevent the escape of the person or the assault of, or injury to, any person;

apply an instrument of restraint to the person during the supervision or transport of the person if the conduct of the person during that supervision or transport has been such that it is reasonable to believe that this is necessary to prevent the person's escape or the assault of, or injury to, any person; and

continue to apply an instrument of restraint to the person for the duration of the supervision or transport that has been applied by a police officer if the police officer believes on reasonable grounds the application of the instrument of restraint is necessary to prevent the escape of the person or the assault of, or injury to, any person.

New section 200I(3) requires a police custody officer who seizes any thing from a person being transported or supervised to inform a police officer as soon as practicable.

New section 200I(4) requires a police officer who is informed by a police custody officer of the seizure of any thing from the person being transported or supervised to deal with the thing in accordance with the Chief Commissioner's instructions (issued under section 60 of the Victoria Police Act 2013), unless the thing is a drug of dependence. If the thing is a drug of dependence, the officer must deal with the substance in accordance with the Drugs, Poisons and Controlled Substances Act 1981.

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New section 200J deals with the use of reasonable force by police custody officers.

New section 200J(1) empowers a police custody officer to use reasonable force where necessary to compel a person the officer is supervising or transporting to obey an order the officer has given in the exercise of any of the officer's functions or powers.

New section 200J(2) provides that, if the police custody officer uses force in accordance with new section 200J, the officer is not liable for injury or damage caused by the use of the force.

New section 200K deals with supervision or transport of persons where the supervision or transport is authorised under other enactments and instruments. This section allows for supervision or transport of persons under other Acts and instruments to be carried out by police custody officers at the Chief Commissioner's direction.

New section 200K(1) provides that any Act, regulation, warrant, court order, order or instrument that requires or authorises a police officer to supervise or transport a person also authorises a police custody officer to supervise or transport the person in place of the police officer in accordance with the relevant authorisation if the officer is directed to supervise or transport the person by the Chief Commissioner.

New section 200K(2) provides that the authorisation of police custody officers provided for in new subsection (1) does not prevent the authorised police officer from exercising the functions given to that police officer under the relevant Act, regulation, warrant, court order, order or instrument.

Division 4 of new Part 11A comprises new sections 200L and 200M and deals with the functions and powers of police custody officers in relation to persons detained in custody on court premises, in the custody of the court or attending court while being supervised and transported by a police custody officer at the Chief Commissioner's direction.

New section 200L deals with the supervision of persons at court by police custody officers.

New section 200L(1) requires a police custody officer to supervise at the court's direction a person who has been ordered by the court to be detained in custody on the court premises or a

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person who has surrendered to the custody of the court in answer to the person's bail.

New section 200L(2) provides that a police custody officer must comply with any lawful direction of the court when supervising a person who the court has directed the officer to supervise under new subsection (1) or a person who is attending court and who the Chief Commissioner has directed a police custody officer to supervise or transport under the Victoria Police Act 2013 or the Corrections Act 1986.

New section 200M deals with the functions and powers of police custody officers in relation to persons at court.

New section 200M(1) gives to police custody officers who have been directed by the court to supervise a person under section 200L(1) the functions and powers those officers have when performing the function of supervising a person at the Chief Commissioner's direction under new Division 3 of Part 11A, namely—

the functions given by new section 200I(1)(a) to (e) and (g) to prevent escape or attempted escape, ensure the person's safety and welfare are maintained, prevent or detect the commission by the person of an unlawful act or attempt to commit an unlawful act, ensure the good order and discipline of the person, ensure the security of property in the person's possession and ensure the person is supervised as directed;

the powers given by new section 200I(2)(a) to (e) to order, search and examine, seize and apply an instrument of restraint;

the power given by new section 200J(1) to use reasonable force to compel a person to obey an order given in the exercise of a power or function.

New section 200M(2) makes the necessary modifications to the functions and powers of police custody officers when exercised at the direction of the court, including that they are exercised at

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the direction of the court not at the direction of the Chief Commissioner.

New subsection (2) provides that, for the purpose of supervising persons at court under new subsection (1), new section 200I applies as if any reference to a person the police custody officer is supervising or transporting under Division 3 were a reference to the person being supervised at court and any reference to the Chief Commissioner or to the Chief Commissioner under Division 3 were a reference to the court under new subsection (1). New subsection (2) also provides that new section 200J applies as if the reference to the person the police custody officer is supervising or transporting under Division 3 were a reference to the person being supervised under section 200L(1) and the reference to a function or power the police custody officer has under Division 3 were a reference to a function or power the police custody officer has under new subsection (1).

New section 200M(3) empowers the court to direct the police custody officer to exercise one or more of the powers set out in sections 200I(2)(a) to (e) and 200J.

New section 200M(4) removes the requirement for the police custody officer to form a belief on reasonable grounds that the exercise of the power is necessary before exercising a power set out in section 200I(2)(a) to (e) if the police custody officer is exercising the power at the court's direction under section 200M(3).

Part 3—Corrections Act 1986

Clause 8 inserts the definition of police custody officer in section 3(1) of the Corrections Act 1986 to provide that the term has the same meaning as in the Victoria Police Act 2013. The definition of drug of dependence is also inserted in section 3(1) of the Corrections Act 1986 provide that the term has the same meaning as in the Drugs, Poisons and Controlled Substances Act 1981.

Clause 9 amends sections 6D and 6E of the Corrections Act 1986. Sections 6D and 6E, respectively, provide for the circumstances when a person is deemed to be in the legal custody of the Chief

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Commissioner and when a person ceases to be in the legal custody of the Chief Commissioner for the purposes of the Corrections Act 1986.

Subclause (1) amends section 6D, which relates to when persons are deemed to enter the legal custody of the Chief Commissioner. Subclause (1) amends section 6D by inserting new subsection (1B). New subsection (1B) clarifies that "lawful authority" in section 6D(1)(a) includes a power of arrest (with or without warrant) under any Act and a power of apprehension under any Act or at common law. However, new subsection (1B) is not an exhaustive definition of "lawful authority".

Subclause (2) amends section 6E, which relates to when a person ceases to be in the legal custody of the Chief Commissioner. Subclause (2) amends section 6E by inserting new subsection (3). New subsection (3) clarifies that "lawful direction or authority" in section 6E(1)(b) includes a power of arrest (with or without warrant) under any Act and a power of apprehension under any Act or at common law. However, new subsection (3) is not an exhaustive definition of "lawful direction or authority".

Clause 10 amends section 11(7A) of the Corrections Act 1986. Section 11(7A) provides that a police officer may take a person's fingerprints as soon as possible after the person is received into a police gaol to serve the whole or part of a prison sentence.

Subclause (1) expands section 11(7A) of the Corrections Act 1986 to provide that a police custody officer may also take a person's fingerprints in the same circumstances.

Subclause (2) inserts new subsection (8) after section 11(7A) of the Corrections Act 1986. New subsection (8) concerns the taking of a person's fingerprints after the person is received into a police gaol to serve the whole or part of a prison sentence. It allows a person's fingerprints to be taken in a police gaol or in the vicinity of a police gaol and within a police station.

Clause 11 amends section 55I of the Corrections Act 1986. Section 55I appears in Division 1A of Part 8, which concerns the functions and powers of escort officers in relation to transporting or supervising a person. Section 55I empowers a police officer to transport a person at the request of the Secretary, either in place of, or in conjunction with, the escort officer. The intention of

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Clause 11 is that the same provisions that apply to police officers in section 55I also apply to police custody officers.

Subclause (1) changes the heading of section 55I of the Corrections Act 1986 from "Powers of police officers" to "Powers of police officers and police custody officers".

Subclause (2) amends section 55I(1) of the Corrections Act 1986. Section 55I(1) provides that, in specified circumstances, a police officer may transport or assist an escort officer to transport a person to or from a prison, police gaol or other place. Subclause (2) expands this section to provide that, in the same specified circumstances, a police custody officer may also transport or assist an escort officer to transport a person to or from a prison, police gaol or other place.

Subclause (3) amends section 55I(2) of the Corrections Act 1986. Section 55I(2) provides that a police officer who is transporting or assisting with transporting the person may do anything in relation to that person that an escort officer transporting the person may do. Subclause (3) expands this section to provide that a police custody officer who is transporting or assisting with transporting the person may also do anything in relation to that person that an escort officer transporting the person may do.

Subclause (4) amends section 55I(3) of the Corrections Act 1986. Section 55I(3) provides that a person being transported only by police officers is deemed to be in the legal custody of the Chief Commissioner. Subclause (4) expands this section to provide that a person is also deemed to be in the legal custody of the Chief Commissioner when that person is being transported only by police custody officers or by a combination of police officers and police custody officers.

Subclause (5) amends section 55I(4) of the Corrections Act 1986. Section 55I(4) provides that a person being transported by an escort officer with the assistance of one or more police officers is deemed to be in the legal custody of the Secretary. Subclause (5) expands this section to provide that a person is also deemed to be in the legal custody of the Secretary when that person is being transported by an escort officer and one or more police custody officers or by an escort officer and a combination of police officers and police custody officers.

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Subclause (6) inserts a new section 55(5) into the Corrections Act 1986 to provide that a police custody officer may only exercise a power under section 55 if the Chief Commissioner has also directed the police custody officer under new section 104DA to transport the person.

Clause 12 changes the heading of Part 9A of the Corrections Act 1986 from "Search and seizure in police gaols" to "Management of police gaols and transfer, transport and supervision powers". The new heading is inserted to reflect amendments to Part 9A which are aimed at making the Part a coherent scheme for the management of police gaols and the management, transport and supervision powers of police custody officers under Part 9A. These amendments are outlined in clauses 12 to 21. These amendments insert new sections and divide Part 9A into Division 1—Preliminary, Division 2—Management powers in police gaols, Division 3—Search and seizure powers in police gaols, Division 4—Transport and supervision of persons by police custody officers and Division 5—General.

Clause 13 inserts the heading "Division 1—Preliminary" before section 104A of the Corrections Act 1986. New Division 1 comprises section 104A and new section 104AB (inserted by clause 15). Section 104A sets out the definitions of terms in Part 9A of the Corrections Act 1986 and is amended by clause 14. New section 104AB is inserted by clause 15.

Clause 14 substitutes the definition of officer in charge in section 104A of the Corrections Act 1986. The current definition provides that the term means a police officer for the time being in charge of a police gaol. Clause 14 substitutes this definition to provide that the term officer in charge means, in relation to a police gaol, the police officer for the time being in charge of the police gaol. The definitions in section 104A apply to Part 9A as amended, which concerns the management of police gaols generally.

Clause 15 inserts new section 104AB after section 104A of the Corrections Act 1986. New section 104AB provides that police custody officers may only exercise the management powers in Part 9A of the Corrections Act 1986 at or in relation to a police gaol that has been declared under section 200C of the Victoria Police Act 2013 to be a police gaol at which or in relation to which police custody officers may exercise their powers (see clause 7).

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Clause 16 inserts new Division 2 into Part 9A of the Corrections Act 1986 before section 104B. New Division 2 comprises new sections 104AC to 104AH and deals with management powers in police gaols.

New section 104AC deals with management of visitors in police gaols.

New section 104AC(1) provides that any person may enter the police gaol and visit a detained person with the permission of the officer in charge of a police gaol.

New section 104AC(2) provides that, if the person wishing to enter the police gaol to visit a detained person is a lawyer acting in the course of the lawyer's practice, the officer in charge of the police gaol must not unreasonably refuse permission to the lawyer to visit the police gaol. In deciding to give or refuse permission to the lawyer, the officer must have regard to the interests of the security of the police gaol and the safe custody of any person held at the police gaol and the principle that a person held in custody should, in the interests of justice, have reasonable access to a legal representative.

New section 104AC(3) provides that, if the person wishing to visit the police gaol is under 18 years of age, the officer in charge of the police gaol may require that the person be accompanied by a parent or guardian.

New section 104AC(4) requires a person wishing to visit or currently visiting a police gaol to provide certain information at the request of a police officer or police custody officer. The information to be provided is the prescribed identity information and the prescribed documents of the person's identity to the satisfaction of the police officer or police custody officer.

New section 104AC(5) provides that the information requested from a person under 18 years of age under new subsection (4) must be reasonable in the circumstances.

New section 104AC(6) makes it an offence to give any information, document or material which is false or misleading in response to a request to provide information under new subsection (4). The maximum penalty for this offence is 2 penalty units.

New section 104AC(7) provides that a police officer or police custody officer may make an order prohibiting a person from

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entering the police gaol to visit a detained person or order a person to immediately leave the police gaol if the person fails to comply with a request for information or documents under new subsection (4) or the police officer or police custody officer believes on reasonable grounds that, in response to a request for information or documents under new subsection (4), the person has provided any information, document or material which is false or misleading.

New section 104AC(8) makes it an offence to disobey an order made by a police officer or police custody officer under subsection (7). The maximum penalty for this offence is 2 penalty units.

New section 104AC(9) provides that the officer in charge of a police gaol may order a visitor to immediately leave the police gaol if the officer believes on reasonable grounds that the order is necessary for the security, good order and management of the police gaol or for the safety of any person at the police gaol.

New section 104AC(10) makes it an offence to disobey an order made by the officer in charge of the police gaol under new subsection (9). The maximum penalty for this offence is 5 penalty units.

New section 104AD deals with the information to be given by detained persons.

New section 104AD(1) provides that, at the request of a police officer or police custody officer, a detained person must give his or her full name, date of birth and most recent residential address. It is an offence to fail to provide the information requested. The maximum penalty for this offence is 2 penalty units.

New section 104AD(2) makes it an offence for a detained person, in response to a request for information under new subsection (1), to give information which is false or misleading without reasonable excuse. The maximum penalty for this offence is 2 penalty units.

New section 104AE empowers a police officer or police custody officer to give to a detained person any order that the officer believes on reasonable grounds is necessary for the security,

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good order or management of the police gaol or for the safety of any person at the police gaol.

New section 104AF deals with the taking of photographs of detained persons.

New section 104AF(1) empowers a police officer or police custody officer to take photographs of a detained person for the purpose of identification or the compilation of records concerning the person at any time after the person is detained.

New section 104AF(2) provides that such a photograph may be taken in a police gaol or in the vicinity of a police gaol and within a police station.

New section 104AF(3) provides that a police officer or police custody officer may give to a detained person all necessary orders to enable the taking of accurate photographs under new subsection (1).

New section 104AG provides that it is an offence for a detained person to disobey a lawful order given by a police officer or a police custody officer under new Division 2. The maximum penalty for this offence is 10 penalty units.

New section 104AH deals with restraint of detained persons.

New section 104AH(1) empowers the officer in charge of a police gaol to apply, or authorise a police officer or police custody officer to apply, an instrument of restraint to a detained person in the specified circumstances. These are—

in the case of a police officer, while the person is being moved under escort from one place to another if the officer in charge believes on reasonable grounds that the restraint is necessary to ensure the secure transfer of the person; or

in the case of a police custody officer, while the person is being moved under escort from one place to another within the police gaol if the officer in charge believes on reasonable grounds that the restraint is necessary to ensure the secure transfer of the person;

where exceptional circumstances exist and the restraint is necessary to prevent an assault on, or injury to, any person or substantial damage to property.

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New section 104AH(2) provides that the police officer or police custody officer applying the instrument of restraint must do so in the manner determined for the time being by the Chief Commissioner.

Clause 17 inserts the heading "Division 3—Search and seizure powers in police gaols" after Division 2 of Part 9A of the Corrections Act 1986. Amended Division 3 comprises current sections 104B to 104D, which are amended by clauses 18 to 20. Section 104B deals with formal searches in police gaols, which are defined in section 104B(2) to mean a search to detect the presence of drugs, weapons or metal articles carried out by an electronic or mechanical device. Section 104C deals with search powers of police officers in police gaols and officers in charge of police gaols. Section 104D deals with seizure powers of police officers in police gaols and officers in charge of police gaols.

Clause 18 amends section 104B of the Corrections Act 1986. Current section 104B(1) provides that a person who wishes to enter or remain in a police gaol as a visitor must, if asked, submit to a formal search.

Subclause (1) substitutes section 104B(1) of the Corrections Act 1986 to clarify that a person who wishes to enter or remain in a police gaol must submit to a formal search if asked to do so by either a police officer or a police custody officer.

Current section 104B(3) provides that, if a person does not submit to a formal search when asked, a police officer may prohibit the person from entering the police gaol or order the person to immediately leave the police gaol.

Subclause (2) amends section 104B(3) of the Corrections Act 1986 to provide that, if a person does not submit to a formal search when asked under new section 104B(1), a police officer or a police custody officer may prohibit the person from entering the police gaol or order the person to immediately leave the police gaol.

Clause 19 amends section 104C of the Corrections Act 1986. Section 104C deals with search powers of officers in charge of police gaols and police officers in police gaols.

Subclause (1) amends section 104C(1) of the Corrections Act 1986. Section 104C(1) provides that, for the good order or

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security of a police gaol or detained persons, the officer in charge of a police gaol may at any time exercise, or order a police officer to exercise, power to—

search any part of the police gaol;

search and examine any charged person, visitor, police officer or any other person (other than those persons specified in subsection (2)) in the police gaol;

search and examine any thing in the police gaol or held by the police on behalf of a detained person;

require a person (other than those persons specified in subsection (2)) wishing to enter a police gaol to submit to a search and examination of that person and of any thing in that person's possession or control.

The officer in charge may conduct or order a police officer to conduct any of these searches at random.

Subclause (1) expands this section to provide that the officer in charge of a police gaol may also order a police custody officer to exercise any of these search powers. It also enables a police custody officer in a police gaol to be searched. It also clarifies that the power to search and examine any thing in the police gaol extends to any thing held by Victoria Police on behalf of a detained person.

Subclause (2) amends section 104C(3) of the Corrections Act 1986. Section 104C(3) provides that the officer in charge of a police gaol may search or examine, or order a police officer to search or examine, a detained person (other than a charged person) if the officer in charge believes on reasonable grounds that the search or examination is necessary—

for the security or good order of the police gaol;

for the safety of the persons at the police gaol;

to locate a weapon or any thing that may be used to escape from a police gaol; or

to locate any thing connected with or affording evidence of, the commission of the offence for which the person is detained in the police gaol.

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Subclause (2) expands this section to provide that the officer in charge of a police gaol may also order a police custody officer to exercise any of these search powers.

Subclause (2) also replaces a semicolon in section 104C(3) with a full stop to correct a punctuation error.

Subclause (3) amends section 104C(4) of the Corrections Act 1986. Section 104C(4) empowers the officer in charge of a police gaol to order a person other than a detained person or a police officer to immediately leave the police gaol if the person refuses to submit to be searched. Subclause (3) extends the proviso to include a police custody officer to provide that the section cannot be used to order a detained person, a police officer or a police custody officer to leave the police gaol.

Clause 20 amends section 104D of the Corrections Act 1986. Section 104D deals with seizure of things in police gaols.

Subclause (1) amends section 104D(1) of the Corrections Act 1986. Section 104D(1) gives powers to police officers to seize specified items subject to specified conditions. Subclause (1) amends section 104D(1) so that it also gives powers to police custody officers to seize the same specified items subject to the same specified conditions. Subclause (1) has the effect that, in carrying out searches under sections 104B and 104C, police officers and police custody officers may seize—

any thing found in the police gaol, whether in a person's possession or not, which the police officer or police custody officer believes on reasonable grounds jeopardises or is likely to jeopardise the security or good order of the police gaol or the safety of persons in the police gaol;

any thing found on a detained person or in a detained person's possession, other than a thing which the detained person is authorised to wear or to possess under the regulations or a direction of the officer in charge of the police gaol;

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any thing which a detained person is authorised to wear or possess under the regulations or a direction of the officer in charge of the police gaol which the police officer or police custody officer believes on reasonable grounds jeopardises or is likely to jeopardise the security of the police gaol or the safety of persons in the police gaol;

any thing which the police officer or police custody officer believes on reasonable grounds is connected with, or affords evidence of, the commission of the offence for which the person is detained in the police gaol.

Subclause (2) amends section 104D(2) of the Corrections Act 1986. Section 104D(2) provides that a police officer who seizes any thing must immediately inform the officer in charge of the police gaol. Subclause (2) amends this section to also require a police custody officer who seizes any thing to immediately inform the officer in charge of the police gaol.

Subclause (3) repeals section 104D(3) of the Corrections Act 1986. Current section 104D(3) provides that the officer in charge of a police gaol must deal in accordance with the regulations with any thing seized under section 104D which is not a drug of dependence. The repealed section is unnecessary because clause 21 re-enacts the requirement to deal with seized things in accordance with the regulations into new section 104DE of the Corrections Act 1986, which applies to the whole of Part 9A. This allows the same set of requirements to apply to all things seized under Part 9A.

Clause 21 inserts new Division 4 and new Division 5 into Part 9A after section 104D of the Corrections Act 1986. New Division 4 comprises new sections 104DA to 104DC and deals with transport and supervision of persons by police custody officers at the Chief Commissioner's direction. New Division 5 comprises new sections 104DD to 104DF and deals with use of reasonable force by police custody officers, transfers of detained persons in the legal custody of the Chief Commissioner as authorised by the Chief Commissioner and dealing with seized items.

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New section 104DA deals with the Chief Commissioner's power to direct a police custody officer to transport or supervise persons.

New section 104DA(1) empowers the Chief Commissioner to direct a police custody officer to—

transport a person detained in a police gaol to a police station, hospital, court or any other place;

transport a person who is to be detained in a police gaol from a police station, hospital, court or any other place to the police gaol;

transport a patient from a designated mental health service to a court, police gaol or another designated mental health service;

transport a patient from a court or police gaol to a designated mental health service;

transport a person detained in a remand centre, youth residential centre or youth justice centre from that centre to a court or police gaol;

transport a person who is to be detained in a remand centre, youth residential centre or youth justice centre from a court or police gaol to such a centre;

supervise a person who is being transported to or from any of these places; or

supervise a person at a place to which the person has been transported or from which the person will be transported.

New section 104DA(2) provides that, if the Chief Commissioner has directed a police custody officer to transport or supervise a person under new subsection (1), a police custody officer may, if it is necessary to do so, transport that person to, and supervise that person at, a hospital or other facility at which medical assessments, care or treatment are provided.

New section 104DA(3) provides that a police custody officer must comply with a direction of the Chief Commissioner to transport a person to or from, or supervise a person at, any of the specified places.

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New section 104DA(4) provides, without limiting section 6D or 6E, that a person being transported or supervised by a police custody officer at the direction of the Chief Commissioner is in the legal custody of the Chief Commissioner.

New section 104DA(5) inserts definitions of terms in new section 104DA. New subsection (5) inserts definitions of designated mental health service and patient and provides that the terms have the same meaning as in the Mental Health Act 2014. New subsection (5) also inserts definitions of remand centre, youth justice centre and youth residential centre and provides that the terms have the same meaning as in the Children, Youth and Families Act 2005.

New section 104DB deals with the functions and powers of police custody officers in relation to persons they transport or supervise under Division 4.

New section 104DB(1) sets out the functions of a police custody officer in relation to a person the officer is transporting or supervising under Division 4, which are to take all reasonable steps to—

prevent the escape or attempted escape of the person from the physical custody of the police custody officer;

ensure that the person's safety and welfare are maintained;

prevent and detect the commission by the person of any unlawful act or attempt to commit an unlawful act;

ensure the good order and discipline of the person;

ensure the security of any property that is in the person's possession;

ensure that the person is transported to or from, or supervised at, the appropriate place as directed by the Chief Commissioner.

New section 104DB(2) sets out the powers of a police custody officer in relation to a person the officer is transporting or supervising at the Chief Commissioner's direction, which are to—

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order the person to do or not do anything that the police custody officer believes on reasonable grounds is necessary for the safety of the police custody officer, the person or any other person;

search and examine the person or any thing in the person's possession or control if the police custody officer believes on reasonable grounds that this is necessary for the safety of the police custody officer, the person or any other person;

seize any thing found on the person or in the person's possession or control if the police custody officer believes on reasonable grounds that this is necessary for the safety of the police custody officer, the person or any other person;

apply an instrument of restraint to the person for the duration of the transport or supervision if the Chief Commissioner believes on reasonable grounds that this is necessary to prevent the escape of the person or the assault of, or injury to, any person;

apply an instrument of restraint to the person during the transport or supervision of the person if the conduct of the person during that transport or supervision has been such that it is reasonable to believe that this is necessary to prevent the person's escape or the assault of, or injury to, any person.

New section 104DB(3) requires a police custody officer who seizes any thing from a person being transported or supervised to inform an officer in charge of a police gaol as soon as practicable.

New section 104DC deals with transport or supervision of persons where the transport or supervision is authorised under other enactments and instruments. This section allows for transport or supervision of persons under other Acts and instruments to be carried out by police custody officers at the Chief Commissioner's direction. It has a similar operation to new section 200K in the Victoria Police Act 2013, inserted by clause 7.

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New section 104DC(1) provides that any Act, regulation, warrant, court order, order or instrument that requires or authorises a police officer to transport or supervise a person also authorises a police custody officer to transport or supervise the person in place of the police officer in accordance with the relevant authorisation if the officer is directed to transport or supervise the person by the Chief Commissioner.

New section 104DC(2) provides that the authorisation of police custody officers provided for in new subsection (1) does not prevent the authorised police officer from exercising the functions given to that police officer under the relevant Act, regulation, warrant, court order, order or instrument.

New section 104DD deals with the use of reasonable force by police custody officers. It has a similar operation to new section 200J in the Victoria Police Act 2013, inserted by clause 7.

New section 104DD(1) empowers a police custody officer to use reasonable force where necessary to compel a person the officer is managing, transporting or supervising to obey an order the officer has given in the exercise of the officer's functions or powers under Part 9A of the Corrections Act 1986.

New section 104DD(2) provides that, if the police custody officer uses force in accordance with new section 104DD, the officer is not liable for injury or damage caused by the use of the force.

New section 104DE provides that the officer in charge of a police gaol must deal in accordance with the regulations with any thing that is seized under Part 9A of the Corrections Act 1986 unless the thing is a drug of dependence. If the thing is a drug of dependence, the officer must deal with the substance in accordance with the Drugs, Poisons and Controlled Substances Act 1981. This requirement is currently located in section 104D(3) of the Corrections Act 1986. Clause 20 repeals that section and new section 104DE re-enacts it.

New section 104DF(1) empowers the Chief Commissioner, by instrument, to authorise the transfer of a detained person in the legal custody of the Chief Commissioner from—

a police gaol to another police gaol;

a police gaol to a hospital or other facility for the purpose of medical assessment, care or treatment;

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a hospital or other facility to another hospital or other facility for the purpose of medical assessment, care or treatment;

a hospital or other facility to a police gaol.

New section 104DF(2) provides that the Chief Commissioner must not include in an instrument made under new section 104DF(1) a provision that is inconsistent with an order of a court that relates to the custody or place of detention of the detained person to be transferred.

Clause 22 amends section 112(1)(aa) of the Corrections Act 1986. The effect of the amendments is that regulations may be made under the Corrections Act 1986 for or with respect to the procedures for investigating, hearing and dealing with offences and acts of misconduct committed in a police gaol, or in the vicinity of a police gaol and within a police station, by people detained in police gaols.

Clause 23 removes the definition of drug of dependence in sections 29A(1)(b), 76A(3) and 99A(1)(b) of the Corrections Act 1986. These definitions are unnecessary because they duplicate the definition of drug of dependence that is inserted by clause 8.

Part 4—Court Security Act 1980

Clause 24 amends section 2(1) of the Court Security Act 1980. Section 2(1) sets out the definitions of terms in that Act.

Subclause (a) inserts the definitions of police custody officer and protective services officer and provides that both terms have the same meaning as in the Victoria Police Act 2013.

Subclause (b) amends the definition of authorized officer, which outlines that, for the purpose of court security, authorized officer means police officers, protective services officers and persons appointed as authorised officers by the chief executive officer or clerk of a court under section 2A of the Court Security Act 1980. Paragraph (b) expands this definition to include police custody officers. This clause empowers police custody officers to exercise the powers of an authorized officer under the Court Security Act 1980.

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Part 5—Crimes Act 1958

Clause 25 amends section 464(2) of the Crimes Act 1958. Section 464(2) sets out the definitions of terms in Subdivision 30A of that Act.

Clause 25(a) inserts a definition of police custody officer to provide that the term has the same meaning as in the Victoria Police Act 2013.

Clause 25(b)(i) amends paragraph (a) of the definition of held in a prison, police gaol, youth justice centre or youth residential centre to reflect amendments previously made to the Corrections Act 1986. The current paragraph (a) of the definition provides that held in a prison, police gaol, youth justice centre or youth residential centre means deemed by section 4 of the Corrections Act 1986 to be in the custody of the Secretary within the meaning of that Act. Clause 25(b)(i) updates the reference to section 4 of the Corrections Act 1986 to refer instead to section 6A of that Act, which deals with when a person is deemed to be in the custody of the Secretary in the meaning of that Act.

Clause 25(b)(ii) amends paragraph (b) of the definition of held in a prison, police gaol, youth justice centre or youth residential centre to reflect amendments previously made to the Corrections Act 1986. The current paragraph (b) of the definition provides that held in a prison, police gaol, youth justice centre or youth residential centre means deemed by section 11(7) of the Corrections Act 1986 to be in the custody of the Chief Commissioner. Clause 25(b)(ii) updates the reference to section 11(7) of the Corrections Act 1986 to refer instead to section 6D of that Act, which deals with when a person is deemed to be in the custody of the Chief Commissioner.

Clause 26 amends section 464NA of the Crimes Act 1958. Section 464NA deals with fingerscanning for identification purposes.

Subclause (1) amends section 464NA(2) of the Crimes Act 1958. Section 464NA(2) provides that a police officer may take a fingerscan of a person of or above the age of 15 years in specified circumstances. Subclause (1) expands this section to provide that a police officer may also, in the same specified circumstances, cause an authorised person to take the fingerscan. An authorised person means a person authorised to take fingerprints in accordance with section 464(3) of the Crimes

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Act 1958. It is envisaged that police custody officers will be authorised persons under section 464(3).

Subclause (2) amends section 464NA(3) of the Crimes Act 1958. Current section 464NA(3) provides that, before a police officer takes a fingerscan under section 464NA, they must inform the person from whom the fingerscan is to be taken that the fingerscan is only for identification purposes and is inadmissible in evidence. Subclause (2) amends this subsection to provide that a police officer intending to fingerscan a person under section 464NA must inform the person from whom the fingerscan is to be taken that the fingerscan is only for identification purposes and is inadmissible in evidence. This amendment is to make the language of section 464NA more consistent with similar provisions.

Clause 27 amends section 464Z of the Crimes Act 1958. Section 464Z deals with the procedure for taking samples and related matters.

Subclause (1) amends section 464Z(1A) of the Crimes Act 1958. Section 464Z(1A) provides that the Chief Commissioner may authorise a police officer or class of police officers to supervise the taking of scrapings from the mouth by the person from whom the scraping is to be taken. Subclause (1) expands this section to provide that the Chief Commissioner may also authorise a police custody officer or class of police custody officers to supervise the taking of scrapings from the mouth by the person from whom the scraping is to be taken.

Subclause (2) amends section 464Z(3A) of the Crimes Act 1958. Section 464Z(3A) provides that a person from whom a scraping of the mouth is to be taken may, in specified circumstances, take the scraping himself or herself under the supervision of an authorised police officer. Subclause (2) expands this section to provide that a person from whom a scraping of the mouth is to be taken may, in the same specified circumstances, take the scraping himself or herself also under the supervision of an authorised police custody officer.

Subclause (3) amends section 464Z(3B) of the Crimes Act 1958. Section 464Z(3B) provides that a police officer who, in accordance with section 464Z(3AA), allows a person to elect to provide a scraping from the mouth rather than a sample of hair, must provide a record of the election to the person within specified timeframes. Section 464Z(3B) also provides that a

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police officer who has been authorised to supervise and has supervised a person taking a scraping from his or her own mouth with the consent of that person must provide a record of the consent to the person within specified time frames. Subclause (3) expands this section to provide that a police custody officer who has been authorised to supervise and has supervised a person taking the scraping with consent must also provide the records of election or consent within the specified timeframes.

Subclause (4) amends section 464Z(6)(ab) and (c)(i) and (iv) of the Crimes Act 1958. Section 464Z(6) outlines certain conditions on taking samples from persons or conducting physical examinations of persons.

Section 464Z(6)(ab) provides that a sample must be taken or a physical examination must be conducted in the presence of a police officer who, if practicable, is of the same sex as the person from whom the sample is to be taken or who is to undergo the physical examination (this requirement does not apply if the sample to be taken is a scraping from the person's mouth taken by the person himself or herself). Subclause (4) expands this section to provide that, where the witness to the sample or the examination is a police custody officer, the police custody officer must also, if practicable, be of the same sex as the person from whom the sample is to be taken or who is to undergo the physical examination.

Section 464Z(6)(c)(i) provides that a sample must be taken or a physical examination must be conducted in the presence only of a police officer required by section 464Z(6)(ab) to be present (being a police officer who is of the same sex as the person from whom the sample is to be taken or who is to undergo the physical examination). Subclause (4) expands this section to provide that a sample must be taken or a physical examination must be conducted in the presence only of a police officer or a police custody officer required by section 464Z(6)(ab) to be present.

Section 464Z(6)(c)(iv) provides that a sample must be taken or a physical examination must be conducted in the presence only of a police officer referred to in section 464Z(3A) (being a police officer who is supervising a person taking a scraping from his or her own mouth). Subclause (4) expands this section to provide that a sample must be taken or a physical examination must be conducted in the presence only of a police officer or a police custody officer referred to in section 464Z(3A).

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Part 6—Road Safety Act 1986

Clause 28 inserts the definition of police custody officer into section 3(1) of the Road Safety Act 1986 to provide that the term has the same meaning as in the Victoria Police Act 2013.

Clause 29 amends section 55E of the Road Safety Act 1986. Section 55E deals with oral fluid testing and analysis.

Subclause (1) amends section 55E(1) of the Road Safety Act 1986 to replace the definition of authorised officer for the purpose of oral fluid testing and analysis under that section. Subclause (1) expands the definition to include police custody officers authorised by the Chief Commissioner. Subclause (1) also reformats the definition to clarify who is responsible for authorising officers and to update the reference to the Department of Transport, Planning and Local Infrastructure to refer instead to the Department of Economic Development, Jobs, Transport and Resources.

Subclause (2) substitutes section 55E(6) of the Road Safety Act 1986. Section 55E(6) sets out who may carry out the procedure for the provision of a sample of oral fluid. Current section 55E(6) provides that the only persons who may carry out the procedure are police officers authorised by the Chief Commissioner, officers of the Roads Corporation authorised by the Roads Corporation and officers of the Department of Transport, Planning and Local Infrastructure authorised by the Secretary. Subclause (2) amends this list to include police custody officers authorised by the Chief Commissioner. Subclause (2) also reformats the section to clarify who is responsible for the authorisation of officers and to update the reference to the Department of Transport, Planning and Local Infrastructure to refer instead to the Department of Economic Development, Jobs, Transport and Resources.

Subclause (3) amends section 55E(7) of the Road Safety Act 1986. Section 55E(7) provides that the Chief Commissioner, the Roads Corporation and the Department Secretary may only authorise an officer to carry out the procedure for the provision of a sample of oral fluid if satisfied that the officer has the appropriate training. Subclause (3) amends this section to provide that, in addition to only authorising a police officer if satisfied that the police officer has the appropriate training, the Chief Commissioner may only authorise a police custody officer

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if satisfied that the police custody officer has the appropriate training.

Subclause (4) amends section 55E(22) of the Road Safety Act 1986. Section 55E(22) deals with the admissibility and use in court of statements of police officers and of certificates purporting to be signed by the Chief Commissioner regarding a police officer's authority to carry out the procedure for the provision of a sample of oral fluid. Current section 55E(22) provides that the statement of a police officer that he or she was authorised to carry out the procedure and certificates purporting to be signed by the Chief Commissioner certifying that the police officer named in the certificate is authorised to carry out the procedure are, in any proceeding under the Road Safety Act 1986, admissible in evidence and proof of the authority of that officer in the absence of evidence to the contrary. Subclause (4) amends this section to provide that statements and certificates relating to the authority of police custody officers to carry out the procedure are also, in any proceeding under the Road Safety Act 1986, admissible in evidence and proof of the authority of that police custody officer in the absence of evidence to the contrary.

Part 7—Repeal of amending Act

Clause 30 provides for the automatic repeal of the amending Act on the first anniversary of its commencement. The repeal does not affect the continuing operation of the amendments made by the amending Act (see section 15(1) of the Interpretation of Legislation Act 1984).

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