Part I
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Commonwealth act
This Act has been repealed and is no longer in force. It is retained for historical reference.
The law creates a federal Australian Protective Service, run by a Commissioner and Director under Ministerial direction, to provide protective and custodial services to designated Commonwealth, diplomatic and other protected persons and sites. It gives officers powers to stop, search, arrest and seize with procedural safeguards and timelines, requires uniforms/ID and coordination with police, allows limited cost recovery from private requesters, and affects people on or near protected sites who may be subject to these powers.
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Direct links to the current provisions in Australian Protective Service Act 1987.
This Act may be cited as the Australian Protective Service Act 1987.
This Act shall come into operation on a day to be fixed by Proclamation.
(1) In this Act, unless the contrary intention appears:
APS employee has the same meaning as in the Public Service Act 1999.
Commissioner means the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979.
Director means the Director of the Protective Service, being the person occupying the position in the Protective Service created under section 7.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member, however described, of a police force of a State or Territory; or
(c) a member, however described, of a police force of a foreign country.
Protective Service means the Australian Protective Service established by this Act.
protective service officer means the Director or a person occupying a position in the Protective Service created under section 8.
Special protective service officer means a person holding an appointment under subsection 9(1) as a special protective service officer.
(2) A reference in this Act (other than in subsection (1) of this section, section 8 and subsection 9(3)) to a protective service officer includes a reference to a special protective service officer.
This Act extends to every external Territory.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) The Australian Protective Service is established. (2) For the purposes of the Public Service Act 1999, the Protective Service is a Statutory Agency constituted by: (a) the Commissioner as Head of the Agency; and (b) the APS employees assisting the Commissioner under this Act. (3) The reference to APS employees in paragraph (2)(b) does not include a reference to special protective service officers who are APS employees in another Agency. (4) In this section:
Agency has the same meaning as in the Public Service Act 1999.
(1) Subject to subsection (4), the functions of the Protective Service are to provide such protective and custodial services for or on behalf of the Commonwealth as the Minister, by notice in writing published in the Gazette, directs. (2) Without limiting the generality of subsection (1), but subject to subsection (4), the functions of the Protective Service may include: (a) the protection of property in which: (i) the Commonwealth, a foreign country or an international organisation has an interest; or (ii) an authority of the Commonwealth, of a foreign country or of an international organisation has an interest; (ab) the protection of property in which a designated overseas mission has an interest; (b) the protection of, and of members of the family and household of, persons holding office under the Commonwealth; (c) the protection of internationally protected persons; (d) the keeping of persons in custody under the Migration Act 1958; and (e) functions incidental or conducive to a function referred to in paragraph (a), (ab), (b), (c) or (d). (3) Without limiting the generality of paragraph (2)(a), the Commonwealth, a foreign country or an international organisation, or an authority of the Commonwealth, of a foreign country or of an international organisation, as the case requires, shall be taken, for the purposes of that paragraph, to have an interest in any property that it owns, occupies or uses or that is in its possession or under its control. (3A) Without limiting the generality of paragraph (2)(ab), a designated overseas mission is taken, for the purposes of that paragraph, to have an interest in any property: (a) that it owns, occupies or uses; or (b) that is in its possession or under its control. (4) The functions of the Protective Service do not include the provision of bodyguard services. (5) In this section:
authority:
(a) in relation to the Commonwealth, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(B) by the Governor‑General or a Minister;
(ii) an incorporated company in which the Commonwealth or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the Commonwealth;
(b) in relation to a foreign country, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the foreign country;
(B) by the head of the foreign country in his or her public capacity; or
(C) by the executive government of the foreign country, including by a department or organ of the executive government of the foreign country;
(ii) an incorporated company in which the foreign country or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the foreign country; and
(c) in relation to an international organisation, includes an agency or instrumentality of the organisation.
designated overseas mission has the same meaning as in the Overseas Missions (Privileges and Immunities) Act 1995.
foreign country means any country outside Australia (whether or not an independent sovereign State), and includes a province, state, self‑governing territory or other political sub‑division (by whatever name known) of such a country.
international organisation has the same meaning as the term international organization in section 5A of the Diplomatic Privileges and Immunities Act 1967.
internationally protected person has the same meaning as in the Crimes (Internationally Protected Persons) Act 1976.
office under the Commonwealth includes:
(a) office as Governor‑General;
(b) office as a Minister;
(c) office as a Senator or member of the House of Representatives;
(d) office as a Justice of the High Court;
(e) an office established by, or an appointment made under, a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(f) an appointment made by the Governor‑General or a Minister otherwise than under such a law.
property means real and personal property of every description.
The Commissioner may, by notice in writing published in the Gazette, create a position in the Protective Service the occupant of which is the Director of the Protective Service.
The Commissioner may, by notice in writing published in the Gazette, create positions in the Protective Service the occupants of which are protective service officers.
(1) Subject to subsection (2), the Director may, by instrument signed by him or her, appoint as a special protective service officer a person who is appointed or engaged under the Public Service Act 1999. (2) The Director shall not appoint a person as a special protective service officer unless the Director has previously obtained the written consent of the person’s Agency Head within the meaning of the Public Service Act 1999. (3) A special protective service officer has all the powers and duties of a protective service officer except in so far as any of those powers or duties are excluded or limited in the instrument of his or her appointment, and any such exclusion or limitation may be expressed either generally or in relation to persons, places or things.
A protective service officer shall not perform the duties, or exercise the powers, of a protective service officer unless he or she has made and subscribed an oath or affirmation in the prescribed form before a person authorised, in writing, by the Commissioner.
The Director has, under the Commissioner, responsibility for the general administration of, and the control of the operations of, the Protective Service.
(1) The Director may, with the written approval of the Commissioner, issue directions (to be known as General Orders): (a) with respect to the general administration of the Protective Service; or (b) for the effective and efficient conduct of the operations of the Protective Service. (2) It is the duty of a protective service officer to comply with the General Orders. (3) Where a provision of the General Orders is inconsistent with: (a) a provision of this Act or any other Act; or (b) a provision of regulations made under this Act or any other Act; or (c) a determination made under section 24 of the Public Service Act 1999; or (d) a direction issued by the Public Service Commissioner under section 11, 15 or 36 of the Public Service Act 1999; or (e) a direction issued by the Prime Minister under section 21 of the Public Service Act 1999; or (f) the Classification Rules made under section 23 of the Public Service Act 1999; the latter prevails and the former, to the extent of the inconsistency, is invalid.
(1) A protective service officer may, without warrant, arrest a person for an offence to which this section applies if the protective service officer believes on reasonable grounds that: (a) the person has just committed, or is committing, the offence; (b) the arrest of the person is necessary for the purpose of: (i) ensuring the appearance of the person before a court of competent jurisdiction for the offence; (ii) preventing the continuation of, or a repetition of, the offence or the commission of a further offence to which this section applies; (iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence; or (iv) preserving the safety or welfare of the person; and (c) proceedings by way of summons against the person for the offence would not achieve such a purpose. (2) This section applies to: (a) an offence in relation to a person, place or thing in respect of which the Protective Service is performing its functions, being an offence under: (i) section 24AB, 29, 46 (other than paragraph (b)), 47, 47A, 79, 89 or 89A of the Crimes Act 1914; (ii) the Crimes (Internationally Protected Persons) Act 1976 or Part 2 of the Crimes (Aviation) Act 1991; (iii) the Defence (Special Undertakings) Act 1952 (other than subsection 31(2)); (iv) the Public Order (Protection of Persons and Property) Act 1971 (other than section 11); or (v) the Nuclear Non‑Proliferation (Safeguards) Act 1987 (other than section 25A, 27 or 28A, subsection 29(2), 30(1), 40(1), 58(2) or 65(1) or section 66); or (vi) section 91.1 of the Criminal Code; or (b) an offence against section 6 of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code, that relates to an offence referred to in paragraph (a); or (ba) an offence against Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or (bb) an offence against Division 101 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or (c) an offence in relation to a person, place or thing in respect of which the Protective Service is performing its functions, being an offence against section 131.1, 141.1, 142.1, 148.1, 147.1 or 149.1 of the Criminal Code.
(1) A protective service officer shall not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest or prevent the escape of the person. (2) Without limiting the generality of subsection (1), a protective service officer shall not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, do an act likely to cause death or grievous bodily harm to the person unless the officer believes on reasonable grounds that the doing of the act is necessary to protect life or prevent serious injury to the officer or any other person.
(1) A protective service officer who arrests a person for an offence shall inform the person, at the time of the arrest, of the offence for which the person is arrested. (2) It is sufficient compliance with subsection (1) if the protective service officer informs the person of the substance of the offence, and it is not necessary to do so in language of a precise or technical nature. (3) Subsection (1) does not apply to the arrest by a protective service officer of a person for an offence if the person, by his or her own actions, makes it impracticable for the protective service officer to inform the person of the offence. (4) Where a protective service officer who arrests a person for an offence believes or has reasonable grounds for believing that the person is unable, by reason of inadequate knowledge of the English language or any physical or mental disability, to understand the substance of the offence for which the person is arrested, the protective service officer shall forthwith take all reasonable steps to ensure that the person is provided with an explanation of the substance of the offence that the person is able to understand.
(1) A protective service officer may, upon lawfully arresting a person for an offence, search the person, the clothing that the person is wearing and any vessel, vehicle or other property under the person’s immediate control if the officer believes on reasonable grounds that it is necessary to do so: (a) to ascertain whether there is concealed on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from custody; or (b) to prevent the concealment, loss or destruction of evidence of, or relating to, the offence. (2) A search under this section of a person or the clothing that a person is wearing shall be conducted by: (a) a protective service officer of the same sex as the person; or (b) in a case where a protective service officer of the same sex as the person is not available to conduct the search—any other person who is of the same sex and is requested by a protective service officer to conduct the search. (3) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of a protective service officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (4). (4) A protective service officer or other person who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonable and necessary in order to conduct the search. (5) A protective service officer or other person who lawfully conducts a search under this section may seize: (a) any weapon or thing referred to in paragraph (1)(a); or (b) anything that the officer or other person has reasonable grounds to believe is a thing: (i) with respect to which an offence has been committed; (ii) that will afford evidence of the commission of an offence; or (iii) that was used, or intended to be used, for the purpose of committing an offence.
(1) A protective service officer who arrests a person for an offence shall ensure that the person is forthwith delivered into the custody of a police officer to be dealt with according to law. (2) Where a weapon or other thing has been seized from the person under subsection 16(5), the protective service officer shall ensure that the weapon or other thing is delivered to the police officer into whose custody the person is delivered.
Where: (a) a person has been arrested for an offence by a protective service officer; (b) the person is in the custody of the protective service officer or another protective service officer; and (c) the protective service officer who has the custody of the person: (i) ceases to have reasonable grounds for believing that the person committed, or was committing, an offence; (ii) ceases to have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve a purpose referred to in paragraph 13(1)(b), and does not have reasonable grounds for believing that the holding of the person in custody is necessary in order to achieve any other purpose referred to in that paragraph; or (iii) ceases to have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve a purpose referred to in paragraph 13(1)(b), and does not have reasonable grounds for believing that proceedings by way of summons against the person for the offence would not achieve any other purpose referred to in that paragraph; the protective service officer shall forthwith release the person from custody in respect of the offence.
(1) If: (a) a protective service officer suspects on reasonable grounds that a person might have just committed, might be committing, or might be about to commit, an offence to which section 13 applies; and (b) the person is in a place, or in the vicinity of a place, person or thing, in respect of which the Protective Service is performing functions under this Act; the officer may request the person to provide to the officer: (c) the person’s name; and (d) the person’s residential address; and (e) the person’s reason for being in the place, or in the vicinity of the place, person or thing, in respect of which the Protective Service is performing functions under this Act; and (f) evidence of the person’s identity. (2) If a protective service officer: (a) makes a request under subsection (1); and (b) informs the person of the officer’s authority to make the request; and (c) informs the person that it may be an offence not to comply with the request; and (d) complies with subsection 19(3) or 20(2); the person must not: (e) fail to comply with the request; or (f) give a name or address that is false in a material particular.
Penalty: 20 penalty units.
Note: A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(1) This section applies if a protective service officer suspects on reasonable grounds that: (a) a person: (i) has a thing under the person’s immediate control; or (ii) is occupying a thing; or (iii) has a thing in a vehicle operated or occupied by the person; or (iv) has brought a thing on to premises at which the Protective Service is performing functions under this Act; and (b) the thing is likely to cause, or is likely to be used by the person or another to cause: (i) substantial damage to a place or a thing in respect of which the Protective Service is performing functions under this Act; or (ii) death or serious harm to a person in respect of whom the Protective Service is performing functions under this Act; in circumstances that would be likely to involve the commission of an offence to which section 13 applies. (2) The protective service officer may: (a) stop and detain the person for the purpose of searching for the thing; and (b) do any or all of the following for the purpose of searching for the thing: (i) if the protective service officer is of the same sex as the person—conduct an ordinary search or a frisk search of the person; (ii) search any thing under the person’s immediate control; (iii) search any vehicle operated or occupied by the person. (3) If the protective service officer is not of the same sex as the person, an ordinary search or a frisk search of the person for the purpose of searching for the thing may be conducted by: (a) if a protective service officer of the same sex is reasonably available to conduct the search—a protective service officer of the same sex as the person; or (b) if a protective service officer of the same sex is not reasonably available to conduct the search: (i) a police officer; or (ii) an officer of Customs (within the meaning of subsection 4(1) of the Customs Act 1901); who is of the same sex as the person and who is reasonably available to conduct the search; or (c) otherwise—any other person: (i) who is of the same sex as the person to be searched; and (ii) who is requested by the protective service officer to conduct the search; and (iii) who freely consents to conduct the search. (3A) If the protective service officer makes a request of an officer of Customs pursuant to paragraph (3)(b), or of another person pursuant to paragraph (3)(c), to conduct the search, the protective service officer must explain to the officer of Customs or other person: (a) if the officer of Customs or other person has been requested to conduct an ordinary search, the meaning of an ordinary search pursuant to subsection (8); (b) if the officer of Customs or other person has been requested to conduct a frisk search, the meaning of a frisk search pursuant to subsection (8); (c) that, when conducting the search, the officer of Customs or other person must not use more force, or subject a person to greater indignity, than is reasonable and necessary in order to conduct the search. (4) An action or proceeding, whether civil or criminal, does not lie against a person who conducts a search under paragraph (3)(b) or (c) if the person acts in good faith and does not contravene subsection (5). (5) A protective service officer or other person who conducts a search of a person under this section must not use more force, or subject a person to greater indignity, than is reasonable and necessary in order to conduct the search. (5A) A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted in accordance with this section. (6) If subparagraph (1)(a)(iv) applies, the protective service officer may, for the purpose of searching for the thing mentioned in that subparagraph, search a thing that the officer suspects on reasonable grounds was brought by the person on to premises at which the Protective Service is performing functions under this Act. (7) In searching a thing under subsection (2) or (6), the protective service officer may use such force as is necessary and reasonable in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless: (a) if the search is under subsection (2)—the person mentioned in that subsection has been given a reasonable opportunity to open the thing or part of it; or (b) if the search is under subsection (6)—the person (if any) apparently in charge of the thing has been given a reasonable opportunity to open the thing or part of it; or (c) it is not possible to give that opportunity. (8) In this section:
frisk search means:
(a) a search of a person conducted by quickly running the hands over the person’s outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
ordinary search means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
vehicle includes any means of transport (and, without limitation, includes a vessel and an aircraft).
(1) If, as a result of conducting a search under section 18B, a protective service officer, or a person who conducted the search under subsection 18B(3) on behalf of the officer, finds the thing for which the officer or person was searching, the officer may seize the thing. (2) If, as a result of conducting a search under section 18B, a protective service officer, or a person who conducted the search under subsection 18B(3) on behalf of the officer, finds a weapon, or other thing, that the officer suspects on reasonable grounds is likely to be used by the person or another to cause death or serious harm to a person: (a) in respect of whom the Protective Service is performing functions under this Act; or (b) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Protective Service is performing functions under this Act; the officer may seize the weapon or thing. (3) A protective service officer must ensure that a thing seized by the officer is delivered into the custody of a police officer as soon as practicable.
(1) A police officer who is for the time being responsible for a thing seized under section 18C must, within 7 days after the day on which the thing was delivered into the custody of a police officer under subsection 18C(3), serve a seizure notice on: (a) the owner of the thing; or (b) if the owner of the thing cannot be identified after reasonable inquiries—the person from whom the thing was seized. (2) Subsection (1) does not apply if: (a) both: (i) the owner of the thing cannot be identified after reasonable inquiries; and (ii) the thing was not seized from a person; or (b) it is not possible to serve the person required to be served under subsection (1). (3) A seizure notice must: (a) identify the thing; and (b) state the date on which the thing was seized; and (c) state the ground or grounds on which the thing was seized; and (d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth. (4) The owner of a thing seized under section 18C may request the return of the thing. (5) A police officer who is for the time being responsible for a thing seized under section 18C must return the thing to its owner if: (a) the owner requests the return of the thing; and (b) in the case of a thing seized under subsection 18C(1)—the officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause: (i) substantial damage to a place or thing in respect of which the Protective Service is performing functions under this Act; or (ii) death or serious harm to a person in respect of whom the Protective Service is performing functions under this Act; in circumstances that would be likely to involve the commission of an offence to which section 13 applies; and (c) in the case of a thing seized under subsection 18C(2)—the officer does not suspect on reasonable grounds that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person: (i) in respect of whom the Protective Service is performing functions under this Act; or (ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Protective Service is performing functions under this Act. (6) A thing is forfeited to the Commonwealth if the owner of the thing does not request its return: (a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or (b) if subsection (2) applied in relation to the thing so that a seizure notice was not served—before the end of the 90th day after the day on which the thing was delivered into the custody of a police officer under subsection 18C(3). (7) If: (a) the owner of a thing requests the return of the thing: (i) within 90 days after the date of the seizure notice in relation to the thing; or (ii) if subsection (2) applied in relation to the thing so that a seizure notice was not served—within 90 days after the day on which the thing was delivered into the custody of a police officer under subsection 18C(3); and (b) the thing has not been returned to the owner by the end of the 90th day; the police officer who is for the time being responsible for the thing must, before the end of the 95th day: (c) return the thing to the owner; or (d) apply to a magistrate under section 18E.
(1) If subsection 18D(7) applies, the police officer may apply to a magistrate for an order in relation to the thing to which that subsection applies. (2) The magistrate must, in determining an application by a police officer under subsection (1), allow the owner of the thing to appear and be heard. (3) If the magistrate is satisfied that: (a) in the case of a thing seized under subsection 18C(1)—there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to cause, or is likely to be used by the owner or another to cause: (i) substantial damage to a place or thing in respect of which the Protective Service is performing functions under this Act; or (ii) death or serious harm to a person in respect of whom the Protective Service is performing functions under this Act; in circumstances that would be likely to involve the commission of an offence to which section 13 applies; and (b) in the case of a thing seized under subsection 18C(2)—there are reasonable grounds to suspect that, if the thing is returned to the owner, the thing is likely to be used by the owner or another to cause death or serious harm to a person: (i) in respect of whom the Protective Service is performing functions under this Act; or (ii) who is in a place, or in the vicinity of a person, place or thing, in respect of which the Protective Service is performing functions under this Act; the magistrate may make any of the following orders: (c) that the thing be retained by the police officer for the period specified in the order; (d) that the thing is forfeited to the Commonwealth; (e) that the thing is to be sold and the proceeds given to the owner; (f) that the thing is to be otherwise sold or disposed of. (4) If the magistrate is not satisfied as required by subsection (3), the magistrate must order that the thing be returned to the owner.
References to a protective service officer (1) A reference in: (a) section 18A; and (b) section 18B; and (c) section 18C (other than subsection 18C(3)); to a protective service officer includes a reference to a member or a special member of the Australian Federal Police. References to a person, place or thing in respect of which the Protective Service is performing functions (2) In relation to the exercise of a power under section 18A, 18B or 18C by a member or a special member of the Australian Federal Police, a reference in sections 18A, 18B, 18C, 18D and 18E to a person, place or thing in respect of which the Protective Service is performing functions includes a reference to a person, place or thing in respect of which the Protective Service has functions. References to an offence to which section 13 applies (3) In relation to the exercise of a power under section 18A, 18B or 18C by a member or a special member of the Australian Federal Police, a reference in: (a) paragraph 18A(1)(a); and (b) subsection 18B(1); and (c) paragraph 18D(5)(b); and (d) paragraph 18E(3)(a); to an offence to which section 13 applies includes a reference to an offence to which section 13 would apply if references in subsection 13(2) to a person, place or thing in respect of which the Protective Service is performing its functions were references to a person, place or thing in respect of which the Protective Service has functions. Modification of paragraph 18A(2)(d) (4) In relation to the exercise of a power under section 18A by a member or a special member of the Australian Federal Police, paragraph 18A(2)(d) is modified in the following way: (a) if a member exercises the power—the reference in paragraph 18A(2)(d) to subsection 19(3) or 20(2) of this Act is taken to be a reference to subsection 64A(1) of the Australian Federal Police Act 1979; and (b) if a special member exercises the power—paragraph 18A(2)(d) is taken to be omitted. References to the day on which a thing was delivered into the custody of a police officer (5) In relation to a thing seized under section 18C by a member or special member of the Australian Federal Police, a reference in subsections 18D(1), (6) and (7) to the day on which the thing was delivered into the custody of a police officer is taken to be a reference to the day on which the thing was seized.
(1) A protective service officer shall, at all times when on duty, wear a uniform of the kind that the protective service officer is, under the General Orders, required to wear when on duty. (2) Subsection (1) does not apply to a protective service officer during periods when the protective service officer is required or permitted by the Director not to wear uniform. (3) A protective service officer shall, at all times when in uniform, wear his or her identification number on, or attached to, the front of the uniform.
Penalty: $500.
(3A) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that the contravention of the subsection resulted from: (a) an act of another person (not being a protective service officer) done without the consent of the defendant; or (b) an unintentional omission of the defendant. (5) The Director shall take such steps as are necessary to enable protective service officers to comply with subsections (1) and (3). (6) Where a person in possession of a protective service officer’s uniform ceases to be a protective service officer, the person shall forthwith return the uniform to the APS employee in the Protective Service who is designated, in writing, by the Director.
Penalty: $100.
(7) Subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(1) The Director may cause an identity card, in a form approved in writing by the Director, to be issued to a protective service officer. (2) A protective service officer who is not in uniform shall not, in the course of his or her duties as a protective service officer, arrest a person or exercise any other power in relation to a person unless the protective service officer produces his or her identity card for the person’s inspection and, if the protective service officer fails to do so, the person is not obliged to comply with any request made by, or any requirement of, the protective service officer. (3) Subsection (2) does not apply if the person, by his or her own actions, makes it impracticable for the protective service officer to produce his or her identity card for the person’s inspection. (4) Where a person in possession of an identity card issued under subsection (1) ceases to be a protective service officer, the person shall forthwith return the identity card to the APS employee in the Protective Service who is designated, in writing, by the Director.
Penalty: $100.
(4A) Subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) The Director may, in writing, direct that identity cards issued before the commencement of this Act to persons who are, after that commencement, protective service officers shall be taken, after that commencement, to have been issued under subsection (1).
(1) The power of arrest conferred by section 13 on protective service officers is in addition to, and not in derogation of, powers of arrest available to protective service officers under any other law of the Commonwealth or the law of a State or Territory. (2) Subject to subsection (3), where a protective service officer, in the course of his or her duties as a protective service officer, arrests a person for any offence (whether the arrest is made under section 13, under any other law of the Commonwealth or under the law of a State or Territory), sections 14 to 18 (inclusive) and subsections 20(2) and (3) apply in relation to the arrest notwithstanding any other law of the Commonwealth or the law of a State or Territory. (3) Subsection (2) has effect subject to sections 37A, 38 and 39 of the Migration Act 1958. (4) Subject to subsection (2), the powers conferred, and duties imposed, by this Part on protective service officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Part is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory providing for such powers or duties in so far as it is capable of operating concurrently with this Part. (4A) The powers conferred, and duties imposed, by this Part on members and special members of the Australian Federal Police are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory, and this Part is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Part. (5) This Part in so far as it protects the individual is in addition to, and not in derogation of, any rights and freedoms of the individual, whether under the law of the Commonwealth or of a State or Territory, and this Part is not intended to exclude or limit the operation of any law of the Commonwealth or of a State or Territory providing for those rights and freedoms in so far as it is capable of operating concurrently with this Part.
A protective service officer is not bound by any law of a State or Territory that would require the officer to have permission (whether in the form of a licence or otherwise) to use or to have in his or her possession, or would require the officer to register, a vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth.
In any action or proceeding in a court (including a court of a State or Territory), a certificate signed by the Commissioner certifying that a person specified in the certificate was, at a specified time or during a specified period, the Director or another protective service officer, or an APS employee in the Protective Service, is prima facie evidence of the facts certified.
(1) The Director may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Director, delegate to another APS employee in the Protective Service all or any of the powers of the Director under this Act, other than: (a) this power of delegation; or (b) the power to issue General Orders; or (c) the powers the Director has because he or she is a protective service officer. (2) A power delegated under subsection (1) shall, when exercised by the delegate, be deemed to have been exercised by the Director. (3) A delegation of a power by the Director under subsection (1) does not prevent the exercise of the power by the Director.
(1) The Commissioner may, either generally or as otherwise provided in the instrument of delegation, by writing signed by the Commissioner, delegate to the Director or another APS employee in the Protective Service the power of the Commissioner to authorise persons under section 10. (2) The power shall, when exercised by the delegate, be deemed to have been exercised by the Commissioner. (3) A delegation by the Commissioner under subsection (1) does not prevent the exercise of the power by the Commissioner.
(1) If services are provided by the Protective Service at the request of a person other than: (a) a person holding office under the Commonwealth; or (b) an authority (as defined by subsection 6(5)) of the Commonwealth or a member or officer of such an authority; the Director may charge for the services. (2) A charge made under subsection (1) must be an amount reasonably related to the cost of providing the relevant services.
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act; and, in particular, may make regulations prescribing fines not exceeding $500 for offences against the regulations.
(1) As soon as practicable after each 30 June, the Commissioner must prepare and give to the Minister a report on the administration and operations of the Protective Service during the year that ended on that date. (2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sittings days of that House after the Minister receives the report. (3) The report may be combined with the report prepared by the Commissioner for that year under section 67 of the Australian Federal Police Act 1979.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This Act may be cited as the Australian Protective Service Act 1987.
This Act shall come into operation on a day to be fixed by Proclamation.
(1) In this Act, unless the contrary intention appears:
APS employee has the same meaning as in the Public Service Act 1999.
Commissioner means the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979.
Director means the Director of the Protective Service, being the person occupying the position in the Protective Service created under section 7.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member, however described, of a police force of a State or Territory; or
(c) a member, however described, of a police force of a foreign country.
Protective Service means the Australian Protective Service established by this Act.
protective service officer means the Director or a person occupying a position in the Protective Service created under section 8.
Special protective service officer means a person holding an appointment under subsection 9(1) as a special protective service officer.
(2) A reference in this Act (other than in subsection (1) of this section, section 8 and subsection 9(3)) to a protective service officer includes a reference to a special protective service officer.
This Act extends to every external Territory.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(1) The Australian Protective Service is established. (2) For the purposes of the Public Service Act 1999, the Protective Service is a Statutory Agency constituted by: (a) the Commissioner as Head of the Agency; and (b) the APS employees assisting the Commissioner under this Act. (3) The reference to APS employees in paragraph (2)(b) does not include a reference to special protective service officers who are APS employees in another Agency. (4) In this section:
Agency has the same meaning as in the Public Service Act 1999.
(1) Subject to subsection (4), the functions of the Protective Service are to provide such protective and custodial services for or on behalf of the Commonwealth as the Minister, by notice in writing published in the Gazette, directs. (2) Without limiting the generality of subsection (1), but subject to subsection (4), the functions of the Protective Service may include: (a) the protection of property in which: (i) the Commonwealth, a foreign country or an international organisation has an interest; or (ii) an authority of the Commonwealth, of a foreign country or of an international organisation has an interest; (ab) the protection of property in which a designated overseas mission has an interest; (b) the protection of, and of members of the family and household of, persons holding office under the Commonwealth; (c) the protection of internationally protected persons; (d) the keeping of persons in custody under the Migration Act 1958; and (e) functions incidental or conducive to a function referred to in paragraph (a), (ab), (b), (c) or (d). (3) Without limiting the generality of paragraph (2)(a), the Commonwealth, a foreign country or an international organisation, or an authority of the Commonwealth, of a foreign country or of an international organisation, as the case requires, shall be taken, for the purposes of that paragraph, to have an interest in any property that it owns, occupies or uses or that is in its possession or under its control. (3A) Without limiting the generality of paragraph (2)(ab), a designated overseas mission is taken, for the purposes of that paragraph, to have an interest in any property: (a) that it owns, occupies or uses; or (b) that is in its possession or under its control. (4) The functions of the Protective Service do not include the provision of bodyguard services. (5) In this section:
authority:
(a) in relation to the Commonwealth, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(B) by the Governor‑General or a Minister;
(ii) an incorporated company in which the Commonwealth or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the Commonwealth;
(b) in relation to a foreign country, means:
(i) a body, whether incorporated or unincorporated, established for a public purpose:
(A) by or under a law of the foreign country;
(B) by the head of the foreign country in his or her public capacity; or
(C) by the executive government of the foreign country, including by a department or organ of the executive government of the foreign country;
(ii) an incorporated company in which the foreign country or a body described in subparagraph (i) has a controlling interest; or
(iii) any other agency or instrumentality of the foreign country; and
(c) in relation to an international organisation, includes an agency or instrumentality of the organisation.
designated overseas mission has the same meaning as in the Overseas Missions (Privileges and Immunities) Act 1995.
foreign country means any country outside Australia (whether or not an independent sovereign State), and includes a province, state, self‑governing territory or other political sub‑division (by whatever name known) of such a country.
international organisation has the same meaning as the term international organization in section 5A of the Diplomatic Privileges and Immunities Act 1967.
internationally protected person has the same meaning as in the Crimes (Internationally Protected Persons) Act 1976.
office under the Commonwealth includes:
(a) office as Governor‑General;
(b) office as a Minister;
(c) office as a Senator or member of the House of Representatives;
(d) office as a Justice of the High Court;
(e) an office established by, or an appointment made under, a law of the Commonwealth or a law of a Territory other than the Northern Territory; or
(f) an appointment made by the Governor‑General or a Minister otherwise than under such a law.
property means real and personal property of every description.
The Commissioner may, by notice in writing published in the Gazette, create a position in the Protective Service the occupant of which is the Director of the Protective Service.
The Commissioner may, by notice in writing published in the Gazette, create positions in the Protective Service the occupants of which are protective service officers.
(1) Subject to subsection (2), the Director may, by instrument signed by him or her, appoint as a special protective service officer a person who is appointed or engaged under the Public Service Act 1999. (2) The Director shall not appoint a person as a special protective service officer unless the Director has previously obtained the written consent of the person’s Agency Head within the meaning of the Public Service Act 1999. (3) A special protective service officer has all the powers and duties of a protective service officer except in so far as any of those powers or duties are excluded or limited in the instrument of his or her appointment, and any such exclusion or limitation may be expressed either generally or in relation to persons, places or things.
A protective service officer shall not perform the duties, or exercise the powers, of a protective service officer unless he or she has made and subscribed an oath or affirmation in the prescribed form before a person authorised, in writing, by the Commissioner.
The Director has, under the Commissioner, responsibility for the general administration of, and the control of the operations of, the Protective Service.
(1) The Director may, with the written approval of the Commissioner, issue directions (to be known as General Orders): (a) with respect to the general administration of the Protective Service; or (b) for the effective and efficient conduct of the operations of the Protective Service. (2) It is the duty of a protective service officer to comply with the General Orders. (3) Where a provision of the General Orders is inconsistent with: (a) a provision of this Act or any other Act; or (b) a provision of regulations made under this Act or any other Act; or (c) a determination made under section 24 of the Public Service Act 1999; or (d) a direction issued by the Public Service Commissioner under section 11, 15 or 36 of the Public Service Act 1999; or (e) a direction issued by the Prime Minister under section 21 of the Public Service Act 1999; or (f) the Classification Rules made under section 23 of the Public Service Act 1999; the latter prevails and the former, to the extent of the inconsistency, is invalid.
(1) A protective service officer may, without warrant, arrest a person for an offence to which this section applies if the protective service officer believes on reasonable grounds that: (a) the person has just committed, or is committing, the offence; (b) the arrest of the person is necessary for the purpose of: (i) ensuring the appearance of the person before a court of competent jurisdiction for the offence; (ii) preventing the continuation of, or a repetition of, the offence or the commission of a further offence to which this section applies; (iii) preventing the concealment, loss or destruction of evidence of, or relating to, the offence; or (iv) preserving the safety or welfare of the person; and (c) proceedings by way of summons against the person for the offence would not achieve such a purpose. (2) This section applies to: (a) an offence in relation to a person, place or thing in respect of which the Protective Service is performing its functions, being an offence under: (i) section 24AB, 29, 46 (other than paragraph (b)), 47, 47A, 79, 89 or 89A of the Crimes Act 1914; (ii) the Crimes (Internationally Protected Persons) Act 1976 or Part 2 of the Crimes (Aviation) Act 1991; (iii) the Defence (Special Undertakings) Act 1952 (other than subsection 31(2)); (iv) the Public Order (Protection of Persons and Property) Act 1971 (other than section 11); or (v) the Nuclear Non‑Proliferation (Safeguards) Act 1987 (other than section 25A, 27 or 28A, subsection 29(2), 30(1), 40(1), 58(2) or 65(1) or section 66); or (vi) section 91.1 of the Criminal Code; or (b) an offence against section 6 of the Crimes Act 1914, or section 11.1 or 11.4 of the Criminal Code, that relates to an offence referred to in paragraph (a); or (ba) an offence against Division 72 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or (bb) an offence against Division 101 of the Criminal Code that relates to a person, place or thing in respect of which the Protective Service is performing its functions; or (c) an offence in relation to a person, place or thing in respect of which the Protective Service is performing its functions, being an offence against section 131.1, 141.1, 142.1, 148.1, 147.1 or 149.1 of the Criminal Code.
(1) A protective service officer shall not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, use more force, or subject the person to greater indignity, than is reasonable and necessary in order to make the arrest or prevent the escape of the person. (2) Without limiting the generality of subsection (1), a protective service officer shall not, in arresting or attempting to arrest a person for an offence or in preventing a person who has been arrested for an offence from escaping, do an act likely to cause death or grievous bodily harm to the person unless the officer believes on reasonable grounds that the doing of the act is necessary to protect life or prevent serious injury to the officer or any other person.
(1) A protective service officer who arrests a person for an offence shall inform the person, at the time of the arrest, of the offence for which the person is arrested. (2) It is sufficient compliance with subsection (1) if the protective service officer informs the person of the substance of the offence, and it is not necessary to do so in language of a precise or technical nature. (3) Subsection (1) does not apply to the arrest by a protective service officer of a person for an offence if the person, by his or her own actions, makes it impracticable for the protective service officer to inform the person of the offence. (4) Where a protective service officer who arrests a person for an offence believes or has reasonable grounds for believing that the person is unable, by reason of inadequate knowledge of the English language or any physical or mental disability, to understand the substance of the offence for which the person is arrested, the protective service officer shall forthwith take all reasonable steps to ensure that the person is provided with an explanation of the substance of the offence that the person is able to understand.
(1) A protective service officer may, upon lawfully arresting a person for an offence, search the person, the clothing that the person is wearing and any vessel, vehicle or other property under the person’s immediate control if the officer believes on reasonable grounds that it is necessary to do so: (a) to ascertain whether there is concealed on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to assist the person to escape from custody; or (b) to prevent the concealment, loss or destruction of evidence of, or relating to, the offence. (2) A search under this section of a person or the clothing that a person is wearing shall be conducted by: (a) a protective service officer of the same sex as the person; or (b) in a case where a protective service officer of the same sex as the person is not available to conduct the sea
This is an opening excerpt, not the complete document.