Control of Weapons and Firearms Acts (Search Powers) Act 2003

i Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—AMENDMENT OF THE CONTROL OF WEAPONS ACT 1990 3 3. Definition inserted 3 4. Dangerous articles offence 3 5. New section 8G inserted 3 8G. Power to require production of approval 3 6. Substitution of section 10 4 10. Search without warrant 4 10A. Duty to make records concerning searches 6 10B. Chief Commissioner to report on searches without warrant 7 7. Regulations 7 8. New section 14 inserted 8 14. Transitional provision 8 PART 3—AMENDMENT OF THE FIREARMS ACT 1996 9 9. Section 149 substituted 9 149. Search of persons or vehicles 9 149A. Duty to make records concerning searches 11 10. Power to require production of licence 11 11. Authorised officers 11 12. New sections 153B and 153C inserted 14 153B. Duty to make records concerning searches 14 153C. Annual reports 14 13. Delegation 15 14. Regulations 15 15. New section 209 inserted 16 209. Transitional provisions—Control of Weapons and Firearms Acts (Search Powers) Act 2003 16 -- 1 of 20 -- Section Page ii 16. Consequential amendment 16 17. Wildlife Act 1975—new section 92 inserted 17 92. Transitional provision—Control of Weapons and Firearms Acts (Search Powers) Act 2003 17 ═══════════════ ENDNOTES 18 -- 2 of 20 -- 1 Control of Weapons and Firearms Acts (Search Powers) Act 2003 † [Assented to 6 May 2003] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The purpose of this Act is to amend the Control of Weapons Act 1990 and the Firearms Act 1996— (a) to amend provisions relating to the power to search without warrant under those Acts; and Victoria No. 9 of 2003 -- 3 of 20 -- Part 1—Preliminary Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 2 (b) to require annual reports to the Minister on the exercise of those powers; and (c) to make other miscellaneous amendments. 2. Commencement (1) This Part comes into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 January 2004, it comes into operation on that day. __________________ s. 2 -- 4 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 3 PART 2—AMENDMENT OF THE CONTROL OF WEAPONS ACT 1990 3. Definition inserted In section 3 of the Control of Weapons Act 1990, after the definition of "military officer" insert— ' "non-government school" means— (a) a school on the register of schools kept under section 37(1) of the Education Act 1958; or (b) a school which has been granted approval to open under section 42 of the Education Act 1958; or (c) the land or premises connected with a school referred to in paragraph (a) or (b);'. 4. Dangerous articles offence In section 7(1) of the Control of Weapons Act 1990, after "public place" insert "or a non- government school". 5. New section 8G inserted After section 8F of the Control of Weapons Act 1990 insert— "8G. Power to require production of approval (1) A member of the police force who— (a) has reasonable grounds for suspecting that a person has committed an offence against section 5 or is carrying or has in his or her possession a prohibited weapon; and s. 3 See: Act No. 24/1990. Reprint No. 3 as at 17 December 2000 and amending Act No. 7/2002. LawToday: www.dms. dpc.vic. gov.au -- 5 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 4 (b) produces his or her identification for inspection by the person— may demand that the person produce an approval under section 8C allowing the person to do the thing otherwise prohibited. (2) A person to whom a demand is directed under sub-section (1) must comply with the demand. Penalty: 30 penalty units. (3) This section does not apply to a person who is exempted under section 8B.". 6. Substitution of section 10 For section 10 of the Control of Weapons Act 1990 substitute— '10. Search without warrant (1) If— (a) a member of the police force has reasonable grounds for suspecting that a person is carrying or has in his or her possession in a public place or a non- government school a prohibited weapon, a controlled weapon or a dangerous article referred to in sub- section (6) contrary to this Act; and (b) the member informs the person of the grounds for his or her suspicion; and (c) the member complies with sub- section (3)— the member may without warrant— (d) search the person and any vehicle, package or thing in his or her possession or under his or her control for the prohibited weapon, controlled s. 6 -- 6 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 5 weapon or dangerous article referred to in sub-section (6); and (e) seize and detain any prohibited weapon, controlled weapon or dangerous article referred to in sub-section (6) which the member finds on the person or on or in the vehicle, package or thing. (2) For the purposes of sub-section (1)(a), the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds for suspecting that the person is carrying or has in his or her possession a prohibited weapon, a controlled weapon or a dangerous article referred to in sub-section (6). (3) Before a member of the police force commences a search of a person under sub- section (1), the member must— (a) inform the person of the member's name, rank and place of duty; and (b) if requested by the person, provide the information referred to in paragraph (a) in writing; and (c) produce his or her identification for inspection by the person, unless the member is in uniform. (4) In conducting a search of a person under sub-section (1), a member of the police force— (a) may request that the person produce any thing that the member has detected or seen during the search on the person or in a vehicle, package or thing in the possession or under the control of the person, which the member has s. 6 -- 7 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 6 reasonable grounds for suspecting is a prohibited weapon, a controlled weapon or a dangerous article referred to in sub-section (6); and (b) if a request is made under paragraph (a), must warn the person that refusal or failure to produce any thing so requested may be an offence. (5) A person must not, without reasonable excuse, refuse or fail to produce any thing in accordance with a request made under sub- section (4). Penalty: 30 penalty units. (6) This section applies to a dangerous article within the meaning of paragraph (b) of the definition of "dangerous article" in section 3. 10A. Duty to make records concerning searches (1) A member of the police force who conducts a search under section 10 must make a written record of the search containing the prescribed particulars. (2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the completion of the search. (3) A person subjected to a search under section 10 is entitled, on request and without charge, to a copy of the record of the search, if the request is made not later than 1 year after the date of the search. (4) A request under sub-section (3) is made to the officer in charge of the place of duty, referred to in section 10(3)(a), of the member who conducted the search. s. 6 -- 8 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 7 10B. Chief Commissioner to report on searches without warrant The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing— (a) the number of searches without warrant under section 10 conducted during that financial year; and (b) the number and type of weapons and dangerous articles found during the course of those searches; and (c) any other information requested by the Minister.'. 7. Regulations (1) In section 12(1) of the Control of Weapons Act 1990, after "Act" (where secondly occurring) insert "including, but not limited to the following matters— (a) the manner in which searches are to be conducted; (b) particulars to be included in records of searches". (2) After section 12(1) of the Control of Weapons Act 1990 insert— "(1A) The regulations— (a) may be of general or limited application; and (b) may differ according to differences in time, place or circumstances.". s. 7 -- 9 of 20 -- Part 2—Amendment of the Control of Weapons Act 1990 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 8 8. New section 14 inserted After section 13 of the Control of Weapons Act 1990 insert— "14. Transitional provision Section 10 as in force immediately before the commencement of section 6 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to searches conducted before that commencement.". __________________ s. 8 -- 10 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 9 PART 3—AMENDMENT OF THE FIREARMS ACT 1996 9. Section 149 substituted For section 149 of the Firearms Act 1996 substitute— "149. Search of persons or vehicles (1) If— (a) a member of the police force has reasonable grounds for suspecting that a person is committing or is about to commit an offence against this Act and that person has a firearm or cartridge ammunition in his or her possession; and (b) the member informs the person of the grounds for his or her suspicion; and (c) the member complies with sub- section (3)— the member may without warrant— (d) search the person and any vehicle, package or thing in the possession of the person; and (e) seize any firearm or cartridge ammunition found during the course of the search. (2) For the purposes of sub-section (1), the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds for suspecting that the person has a firearm or cartridge ammunition in his or her possession. s. 9 See: Act No. 66/1996. Reprint No. 2 as at 8 April 1999 and amending Act Nos 30/1999, 41/2000, 44/2001 and 72/2001. LawToday: www.dms. dpc.vic. gov.au -- 11 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 10 (3) Before a member of the police force commences a search of a person under sub- section (1), the member must— (a) inform the person of the member's name, rank and place of duty; and (b) if requested by the person, provide the information referred to in paragraph (a) in writing; and (c) produce his or her identification for inspection by the person, unless the member is in uniform. (4) In conducting a search of a person under sub-section (1), a member of the police force— (a) may request that the person produce any thing that the member has detected or seen during the search on the person or in a vehicle, package or thing in the possession or under the control of the person, which the member has reasonable grounds for suspecting is a firearm or cartridge ammunition; and (b) if a request is made under paragraph (a), must warn the person that refusal or failure to produce any thing so requested may be an offence. (5) A person must not, without reasonable excuse, refuse or fail to produce any thing in accordance with a request made under sub- section (4). Penalty: 30 penalty units. s. 9 -- 12 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 11 149A. Duty to make records concerning searches (1) A member of the police force who conducts a search under section 149 must make a written record of the search containing the prescribed particulars. (2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the completion of the search. (3) A person subjected to a search under section 149 is entitled, on request and without charge, to a copy of the record of the search, if the request is made not later than 1 year after the date of the search. (4) A request under sub-section (3) is made to the officer in charge of the place of duty, referred to in section 149(3)(a), of the member who conducted the search.". 10. Power to require production of licence In section 150(1)(a) of the Firearms Act 1996, for "believing" substitute "suspecting". 11. Authorised officers (1) For section 153A(1) of the Firearms Act 1996 substitute— "(1) If— (a) an authorised officer has reasonable grounds for suspecting that a person is committing or is about to commit an offence against this Act and that person has a firearm or cartridge ammunition in his or her possession and— (i) the offence is or is about to be committed on land administered by the Minister administering the s. 10 -- 13 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 12 Conservation, Forests and Lands Act 1987, or on a road adjacent to such land; or (ii) the authorised officer is acting under his or her duties under the Wildlife Act 1975 or the Fisheries Act 1995; and (b) the authorised officer informs the person of the grounds for his or her suspicion; and (c) the authorised officer complies with sub-section (1B)— the authorised officer may— (d) search the person and any vehicle, package or thing in the possession of the person; and (e) seize any firearm or cartridge ammunition found during the course of the search. (1A) Before an authorised officer commences a search of a person under sub-section (1), the authorised officer must— (a) inform the person of the officer's name, title, the agency employing the officer and the officer's place of employment; and (b) if requested by the person, provide the information referred to in paragraph (a) in writing; and (c) produce his or her identification for inspection by the person. s. 11 -- 14 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 13 (1B) In conducting a search of a person under sub-section (1), an authorised officer— (a) may request that the person produce any thing that the authorised officer has detected or seen during the search on the person or in a vehicle, package or thing in the possession of the person, which the authorised officer has reasonable grounds for suspecting is a firearm or cartridge ammunition; and (b) if a request is made under paragraph (a), must warn the person that refusal or failure to produce any thing so requested may be an offence. (1C) A person must not, without reasonable excuse, refuse or fail to produce any thing in accordance with a request made under sub- section (1B). Penalty: 30 penalty units.". (2) In section 153A(2)(a) of the Firearms Act 1996, for "believing" substitute "suspecting". (3) After section 153A(3) of the Firearms Act 1996 insert— "(3A) A person must not, without reasonable excuse, hinder or obstruct an authorised officer who is exercising a power under this section. Penalty: 30 penalty units.". (4) After section 153A(5) of the Firearms Act 1996 insert— "(5A) An authorised officer who institutes a prosecution referred to in sub-section (5) may appear in the proceeding by any other authorised officer.". s. 11 -- 15 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 14 12. New sections 153B and 153C inserted After section 153A of the Firearms Act 1996 insert— "153B. Duty to make records concerning searches (1) An authorised officer within the meaning of section 153A who conducts a search under section 153A(1) must make a written record of the search containing the prescribed particulars. (2) The record must be made immediately after the completion of the search or, if that is not practicable, as soon as practicable after the completion of the search. (3) A person subjected to a search under section 153A(1) is entitled, on request and without charge, to a copy of the record of the search if the request is made not later than 1 year after the date of the search. (4) A request under sub-section (3) is made to the officer in charge of the place of employment, referred to in section 153A(1A)(a), of the authorised officer who conducted the search. 153C. Annual reports (1) The Chief Commissioner of Police must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing— (a) the number of searches without warrant under section 149 conducted during that financial year; and s. 12 -- 16 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 15 (b) the number and type of firearms and cartridge ammunition found during the course of those searches; and (c) any other information requested by the Minister. (2) The Secretary of the Department of Sustainability and Environment must provide to the Minister for inclusion in the annual report of operations under Part 7 of the Financial Management Act 1994 a report containing— (a) the number of searches under section 153A(1) conducted during that financial year; and (b) the number and type of firearms and cartridge ammunition found during the course of those searches; and (c) any other information requested by the Minister.". 13. Delegation In section 176 of the Firearms Act 1996, after "except" insert "section 153C(1) and". 14. Regulations After section 191(1)(q) of the Firearms Act 1996 insert— "(qa) the manner in which searches are to be conducted; (qb) particulars to be included in records of searches;". s. 13 -- 17 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 16 15. New section 209 inserted After section 208 of the Firearms Act 1996 insert— "209. Transitional provisions—Control of Weapons and Firearms Acts (Search Powers) Act 2003 (1) Section 149 as in force immediately before the commencement of section 9 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to searches conducted before that commencement. (2) Section 150 as in force immediately before the commencement of section 10 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to demands made under section 150(1) before that commencement. (3) Section 153A(1) as in force immediately before the commencement of section 11(1) of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to searches conducted before that commencement. (4) Section 153A(2) as in force immediately before the commencement of section 11(2) of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to demands made under section 153A(2) before that commencement.". 16. Consequential amendment In section 60A(1)(a) of the Wildlife Act 1975, for "believing" substitute "suspecting". s. 15 -- 18 of 20 -- Part 3—Amendment of the Firearms Act 1996 Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 17 17. Wildlife Act 1975—new section 92 inserted In Part XII of the Wildlife Act 1975, after section 91 insert— "92. Transitional provision—Control of Weapons and Firearms Acts (Search Powers) Act 2003 Section 60A(1) as in force immediately before the commencement of section 16 of the Control of Weapons and Firearms Acts (Search Powers) Act 2003 continues to apply to demands made under section 60A(1) before that commencement.". ═══════════════ s. 17 -- 19 of 20 -- Control of Weapons and Firearms Acts (Search Powers) Act 2003 Act No. 9/2003 18 ENDNOTES † Minister's second reading speech— Legislative Council: 27 February 2003 Legislative Assembly: 25 March 2003 The long title for the Bill for this Act was "to amend the Control of Weapons Act 1990 and the Firearms Act 1996 and for other purposes." Endnotes -- 20 of 20 --