Law Enforcement (Powers and Responsibilities) Regulation 2016
In ForceNSW
Jurisdiction
New South Wales
Act Number
544 of 2016
Collection
regulation
Plain English Summary
7/10 complexity
This regulation sets out the practical steps police and courts must follow when issuing and executing warrants and orders (including search, arrest, detention, digital-evidence and drug-detection dog orders). It prescribes standard forms, record-keeping, custody-management rules, special protections and support for vulnerable persons, and a Code for move-on directions in public places. It affects police, magistrates/courts, detained persons (including children and vulnerable people) and occupiers; it matters because it defines procedural duties, evidence trails and compliance obligations.
The Law Enforcement (Powers and Responsibilities) Regulation 2016 (the Regulation) operationalises and supplements the Law Enforcement (Powers and Responsibilities) Act 2002 (the Act) by prescribing mandatory forms, record-keeping obligations, procedural safeguards and detailed rules that police must follow when exercising statutory powers. It does not itself confer new substantive powers; instead it supplies the machinery required for lawful exercise of powers already contained in the Act.
Part 2 (cll 4–14) is the warrant and notice machinery. Clause 4(1) prescribes that applications for Part 5 search warrants (other than covert or criminal organisation warrants) must use Part 1 of Form 1, while covert warrants use Part 1 of Form 2, criminal organisation warrants use Part 1 of Form 3, and other warrants use Part 1 of Form 4. Clause 4(1A) requires notices to produce documents under Division 3 of Part 5 of the Act to be sought using Part 1 of Form 8. Clause 5 mandates that an eligible issuing officer must complete a corresponding Part 2 record for each application. Clause 6 prescribes the form of the warrant or order itself (Forms 11–20, Form 35 for digital evidence access orders, Form 36 for DECCD access orders). Clause 7 prescribes occupier’s notices (Forms 21, 22, 24–26) and cl 8 authorises an adjoining occupier’s notice in or to the effect of Form 23. Clauses 9–12 govern receipts for seized things and the content of execution reports under ss 74 and 74A of the Act (Forms 27–30). Clause 13 imposes a six-year retention obligation for all associated documents at the relevant Local or Supreme Court registry, with inspection rights granted to occupiers, detained persons, authorised deposit-taking institutions and, in the case of drug detection dog warrants, any member of the public. Clause 14 permits an eligible issuing officer to certify that certain material is too sensitive for inspection.
Current sections
Direct links to the current provisions in Law Enforcement (Powers and Responsibilities) Regulation 2016.
detained person means a person who is detained under Part 9 of the Act.
impaired intellectual functioning, in relation to a person, has the meaning given by clause 27.
impaired physical functioning, in relation to a person, has the meaning given by clause 27.
Part 5 search warrant means a search warrant issued under Division 2 (Police and other law enforcement officers’ powers relating to warrants) of Part 5 of the Act.
protected suspect has the same meaning as in section 110 of the Act.
search warrant means any of the following search warrants—
(a) a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant),
(b) a covert search warrant,
(c) a criminal organisation search warrant,
(d) a search warrant issued under section 86 (Police may enter and search for firearms) of the Act,
(e) a search warrant issued under Division 1 (Drug premises) of Part 11 of the Act,
(f) a search warrant issued under a provision specified in Schedule 2 (Search warrants under other Acts) to the Act,
(g) a search warrant issued under a provision of, or a provision made under, an Act, being a provision that provides that Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under that provision.
support person means a person who is a support person for the purposes of Division 3 of Part 3.
vulnerable person has the meaning given by clause 28.
Note.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.
(3) Notes included in this Regulation (except in Schedule 1) do not form part of this Regulation.
Part 2
Warrants and notices to produce documents
Part 2 Warrants and notices to produce documents
Part 2 Warrants and notices to produce documents
4
Form of application for warrant, notice to produce or order
4 Form of application for warrant, notice to produce or order
4 Form of application for warrant, notice to produce or order
(1) For the purposes of section 60(1) of the Act—
(a) Part 1 of Form 1 is the form for an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Part 1 of Form 2 is the form for an application for a covert search warrant, and
(c) Part 1 of Form 3 is the form for an application for a criminal organisation search warrant, and
(d) Part 1 of Form 4 is the form for an application for a search warrant other than a Part 5 search warrant, and
(e) Part 1 of Form 5 is the form for an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Part 1 of Form 6 is the form for an application for a crime scene warrant issued under Part 7 of the Act, and
(g) Part 1 of Form 7 is the form for an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act,
(h) (Repealed)
(1A) An application for a notice to produce documents issued under Division 3 of Part 5 of the Act is to be made in the form of Part 1 of Form 8.
(2) An application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be made in the form of Part 1 of Form 9.
(3) An application for a detention warrant issued under Part 9 of the Act is to be made in the form of Part 1 of Form 10.
(4) For the Act, sections 76AC(2) and 76AD(2), an application for a digital evidence access order is to be in the form set out in Schedule 1, Form 33, Part 1.
(4A) For the Act, section 76AF(1)(f), an application for a digital evidence access order must include information about whether the applicant reasonably believes the specified person is under the age of 18 years.
(5) For the Act, sections 80C(2) and 80D(2), an application for a DECCD access order is to be in the form set out in Schedule 1, Form 34, Part 1.
(6) For the Act, section 80F(1)(d), an application for a DECCD access order must include information about whether the applicant reasonably believes the person in relation to whom it is proposed the DECCD access order will be issued is under the age of 18 years.
cl 4: Am 2019 No 10, Sch 1.16[1]–[3]; 2022 No 46, Sch 4.2[1]; 2022 No 47, Sch 2[1] [2]; 2023 (29), Sch 1[1] [2].
5
Determination of application for warrant, notice to produce or order—record by eligible issuing officer
5 Determination of application for warrant, notice to produce or order—record by eligible issuing officer
5 Determination of application for warrant, notice to produce or order—record by eligible issuing officer
(1) A record is to be made by or on behalf of an eligible issuing officer, in relation to each application for a warrant dealt with by the officer, in the following form—
(a) in the case of an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant)—Part 2 of Form 1,
(b) in the case of an application for a covert search warrant—Part 2 of Form 2,
(c) in the case of an application for a criminal organisation search warrant—Part 2 of Form 3,
(d) in the case of an application for a search warrant other than a Part 5 search warrant—Part 2 of Form 4,
(e) in the case of an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act—Part 2 of Form 5,
(f) in the case of an application for a crime scene warrant issued under Part 7 of the Act—Part 2 of Form 6,
(g) in the case of an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act—Part 2 of Form 7,
(h) in the case of an application for a notice to produce documents issued under Division 3 of Part 5 of the Act—Part 2 of Form 8,
(i) in the case of an application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act—Part 2 of Form 9,
(j) in the case of an application for a detention warrant issued under Part 9 of the Act—Part 2 of Form 10.
(2) For the Act, section 238(3)(a), an eligible issuing officer must keep a record of each application for a digital evidence access order in the form set out in Schedule 1, Form 33, Part 2.
(3) For the Act, section 238(3)(c), a Magistrate must keep a record of each application for a DECCD access order in the form set out in Schedule 1, Form 34, Part 2.
cl 5: Am 2023 (29), Sch 1[3] [4].
6
Form of warrant, notice to produce or order
6 Form of warrant, notice to produce or order
6 Form of warrant, notice to produce or order
(1) For the purposes of section 66 of the Act—
(a) Form 11 is the form for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 12 is the form for a covert search warrant, and
(c) Form 13 is the form for a criminal organisation search warrant, and
(d) Form 14 is the form for a search warrant other than a Part 5 search warrant, and
(e) Form 15 is the form for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Form 16 is the form for a crime scene warrant issued under Part 7 of the Act, and
(g) Form 17 is the form for a detention warrant issued under Part 9 of the Act, and
(h) Form 18 is the form for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act, and
(i) Form 19 is the form for a notice to produce documents issued under Division 3 of Part 5 of the Act.
(2) A warrant under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be issued in the form of Form 20.
(3) For the Act, section 76AK(1), a digital evidence access order is to be in the form set out in Schedule 1, Form 35.
(4) For the Act, section 80K(1), a DECCD access order is to be in the form set out in Schedule 1, Form 36.
cl 6: Am 2022 No 46, Sch 4.2[2]; 2022 No 47, Sch 2[3] [4]; 2023 (29), Sch 1[5] [6]; 2026 No 2, Sch 2.10[1] [2].
7
Form of occupier’s notice: section 67(2)(a)
7 Form of occupier’s notice: section 67(2)(a)
7 Form of occupier’s notice: section 67(2)(a)
For the purposes of section 67(2)(a) of the Act—
(a) Form 21 is the form for an occupier’s notice in relation to a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 22 is the form for an occupier’s notice in relation to a covert search warrant, and
(c) Form 24 is the form for an occupier’s notice in relation to a criminal organisation search warrant, and
(d) Form 25 is the form for an occupier’s notice in relation to a search warrant other than a Part 5 search warrant, and
(e) Form 26 is the form for an occupier’s notice in relation to a crime scene warrant issued under Part 7 of the Act.
Note.
An occupier’s notice is not required to be issued in connection with a search warrant issued under section 86 (Police may enter and search for firearms) of the Act.
8
Form of adjoining occupier’s notice: section 67B
8 Form of adjoining occupier’s notice: section 67B
8 Form of adjoining occupier’s notice: section 67B
An adjoining occupier’s notice under section 67B of the Act may be in or to the effect of Form 23.
9
Receipts for things seized
9 Receipts for things seized
9 Receipts for things seized
(1) A person who seizes a thing while executing a search warrant other than a covert search warrant, or a crime scene warrant issued under Part 7 of the Act, in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
(2) A person who seizes a dangerous article under section 85 or 87 of the Act while executing a warrant issued under section 83 of the Act in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
(3) A copy of a receipt issued under this clause, in relation to a thing seized while executing a warrant, is to be attached to the report about the execution of the warrant that is referred to in clause 11(1).
10
Receipts for things seized under covert search warrant
10 Receipts for things seized under covert search warrant
10 Receipts for things seized under covert search warrant
(1) A person who seizes a thing while executing a covert search warrant must, at the time the occupier’s notice under section 67 of the Act is served (the time of notification) on the person who was the occupier of the subject premises at the time the warrant was executed, provide the occupier of the premises with a receipt acknowledging seizure of the thing.
(2) However, any such receipt is not required to be provided at the time of notification if an eligible issuing officer issues a certificate to the effect that—
(a) the receipt contains matter—
(i) that could disclose a person’s identity, and
(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b) the receipt contains matter that, if disclosed, may seriously compromise the investigation of any matter.
11
Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
11 Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
11 Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
(1) A report to an eligible issuing officer under section 74 of the Act about the execution of a warrant (other than a covert search warrant) must be in or to the effect of Form 27 and must contain the particulars required to complete that Form.
(2) A report to an eligible issuing officer under section 74 of the Act about the giving of a notice to produce must be in or to the effect of Form 30 and must contain the particulars required to complete that Form.
12
Form of report to eligible issuing officer on execution of covert search warrant: section 74A
12 Form of report to eligible issuing officer on execution of covert search warrant: section 74A
12 Form of report to eligible issuing officer on execution of covert search warrant: section 74A
(1) A report to an eligible issuing officer under section 74A of the Act about the execution of a covert search warrant must be in or to the effect of Form 28 and must contain the particulars required to complete that Form.
(2) A report to an eligible issuing officer under section 74A of the Act about the return or retrieval of a thing under section 49A of the Act must be in or to the effect of Form 29 and must contain the particulars required to complete that Form.
13
Keeping and inspection of records
13 Keeping and inspection of records
13 Keeping and inspection of records
(1) The following documents must be kept in relation to each warrant or order to which this subclause applies that is issued—
(a) any written application for the warrant or order,
(b) any record relating to the warrant or order made by or on behalf of an authorised officer or eligible issuing officer (as the case requires),
(c) a copy of any occupier’s notice,
(d) a copy of any adjoining occupier’s notice,
(e) any report on the execution of the warrant (including a copy of any receipt provided to the occupier under clause 9 or 10) or order.
(2) Subclause (1) applies to the following warrants and orders—
(a) a search warrant (including a covert search warrant),
(b) a warrant under section 83 (Entry by warrant where entry denied) of the Act,
(c) a crime scene warrant under Part 7 of the Act,
(c1) a digital evidence access order,
(c2) a DECCD access order,
(d) a warrant under section 103 (Warrant for arrest of person unlawfully at large) of the Act,
(e) a detention warrant under Part 9 of the Act,
(f) a warrant under Division 2 (Use of drug detection dogs) of Part 11 of the Act.
(3) The following documents must be kept in relation to each notice to produce documents issued under Division 3 of Part 5 of the Act—
(a) any application for the notice,
(b) any record relating to the notice made by or on behalf of the authorised officer or eligible issuing officer (as the case requires),
(c) any report on the execution of the notice,
(d) any record of an application made for an order to access documents under section 56 of the Act,
(e) any order made under section 56 of the Act.
(4) The documents must be kept for at least 6 years from the date on which the warrant or notice was issued—
(a) at the Local Court registry or the Supreme Court registry (as the case may be) specified in the occupier’s notice, or
(b) if no occupier’s notice is issued, at the Local Court registry or the Supreme Court registry (as the case may be) at which the warrant or notice was issued or that is nearest to the place at which it was issued.
(5) The documents may be destroyed after the period referred to in subclause (4) has expired.
(6) During the hours that the Supreme Court registry is open to the public, the documents referred to in subclause (1) relating to a covert search warrant may be inspected by the occupier of the premises to which the covert search warrant relates or by any other person who is given an occupier’s notice relating to the warrant under the Act.
(7) During the hours that the Local Court registry or the Supreme Court registry (as the case may be) is open to the public, the documents, other than those referred to in subclause (6), may be inspected—
(a) in the case of any warrant other than a warrant referred to in paragraph (b) or (c)—by the occupier of the premises to which the warrant relates or by any other person on behalf of the occupier, or
(b) in the case of a detention warrant issued under Part 9 of the Act—by the detained person to whom the warrant relates or by any other person on behalf of that person, or
(c) in the case of a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act—by any member of the public, or
(d) in the case of a notice to produce documents issued under Division 3 of Part 5 of the Act—by a person who is an officer, or other person, acting on behalf of the authorised deposit-taking institution to which the notice to produce relates.
(8) In the case of a crime scene warrant under Part 7 of the Act that relates to more than one set of premises, subclause (7)(a) authorises the occupier of premises, or a person acting on behalf of the occupier, to inspect only so much of the documents as relate to the premises of the occupier.
cl 13: Am 2022 No 46, Sch 4.2[3]; 2022 No 47, Sch 2[5]–[8]; 2023 (29), Sch 1[7].
14
Certified records not available for inspection
14 Certified records not available for inspection
14 Certified records not available for inspection
(1) An eligible issuing officer may at any time issue a certificate to the effect that the officer is satisfied that—
(a) a document or part of a document referred to in clause 13 contains matter—
(i) that could disclose a person’s identity, and
(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b) a document or part of a document referred to in clause 13 contains matter that, if disclosed, may seriously compromise the investigation of any matter.
(2) The document or part of the document to which the certificate relates is not to be made available for inspection under clause 13(6) or (7).
(3) The certificate is to be kept with the document to which it relates.
(4) An eligible issuing officer (whether or not the one that issued the certificate) may revoke the certificate if satisfied (after consideration of submissions from any interested party) that disclosure of the matter to which it relates is no longer likely to jeopardise any person’s safety or seriously compromise the investigation of any matter.
Part 3
Investigations and questioning
Part 3 Investigations and questioning
Part 3 Investigations and questioning
Division 1
Custody managers
Division 1 Custody managers
Division 1 Custody managers
15
Designation of police stations and other places to be used for detaining persons
15 Designation of police stations and other places to be used for detaining persons
15 Designation of police stations and other places to be used for detaining persons
(1) The Commissioner of Police is to designate police stations, and other places in the State, for the purpose of detaining persons under Part 9 of the Act.
(2) A police station or other place is not to be designated unless it appears to the Commissioner to provide, or have access to, sufficient facilities for that purpose.
(3) Police stations and other places of detention designated under this clause are referred to in this Division as designated police stations and designated places of detention, respectively.
Note.
Section 31 of the Police Act 1990 enables the Commissioner of Police to delegate any function conferred on the Commissioner, including the functions set out in this and the next clause.
16
Appointment of custody managers for designated police stations and designated places of detention
16 Appointment of custody managers for designated police stations and designated places of detention
16 Appointment of custody managers for designated police stations and designated places of detention
The Commissioner of Police is to appoint one or more police officers (appointed custody managers) to act as custody managers at each designated police station and each designated place of detention.
17
Order of preference in relation to places of detention
17 Order of preference in relation to places of detention
17 Order of preference in relation to places of detention
(1) A police station or place of detention to which a person is taken to be detained under Part 9 of the Act must be a designated police station, or designated place of detention, at which there is an appointed custody manager who is available to act as the custody manager for the person.
(2) If it is not reasonably practicable to comply with subclause (1), the person may be detained at a designated police station, or designated place of detention, at which there is a police officer who (while not an appointed custody manager) is available to act as the custody manager for the person.
(3) If it is not reasonably practicable to comply with subclause (1) or (2), the person may be detained at any police station or place of detention at which there is a police officer who is available to act as the custody manager for the person.
(4) If it is not reasonably practicable to comply with subclause (1), (2) or (3), the person may be detained at any place of detention.
(5) This clause does not apply if the person is detained by a police officer in the officer’s capacity as a member of the staff of the New South Wales Crime Commission or a member of the staff of the Australian Crime Commission, as referred to in clause 19.
18
Order of preference in relation to custody managers
18 Order of preference in relation to custody managers
18 Order of preference in relation to custody managers
(1) Except as provided by subclause (2), if a person is detained under Part 9 of the Act at a designated police station or designated place of detention, only an appointed custody manager may act as the custody manager for the person.
(2) If an appointed custody manager is not available to act as the custody manager for the person under subclause (1) or the person is taken to a police station that is not a designated police station, the following police officers may act as the custody manager for the person—
(a) any police officer of or above the rank of Sergeant (or the officer for the time being in charge of the police station or designated place of detention (as the case may be)),
(b) if no such police officer is available to act as the custody manager for the person—any other police officer.
(3) The arresting or investigating officer for the person is not to act as the custody manager for the person under subclause (2) unless—
(a) no other police officer is available to act as the custody manager for the person, and
(b) a police officer holding one of the following positions has given written permission to the arresting or investigating officer to act as the custody manager for the person—
(i) duty officer at a designated police station,
(ii) District Inspector,
(iii) Officer in Charge of a Police Sector.
(4) Written permission for the purposes of subclause (3) may be obtained by facsimile.
(5) This clause does not apply if the person is detained by a police officer in the officer’s capacity as a member of the staff of the New South Wales Crime Commission or a member of the staff of the Australian Crime Commission, as referred to in clause 19.
cl 18: Am 2017 (675), Sch 1 [1].
19
Custody managers for New South Wales Crime Commission or Australian Crime Commission investigations
19 Custody managers for New South Wales Crime Commission or Australian Crime Commission investigations
19 Custody managers for New South Wales Crime Commission or Australian Crime Commission investigations
(1) A police officer who is a member of the staff of the Commission or a member of the staff of the ACC may act as the custody manager for a detained person who is the subject of an investigation conducted by the Commission or the ACC respectively.
(2) The arresting or investigating officer for the person is not to act as the custody manager for the person unless—
(a) no other police officer who is a member of the staff of the Commission or a member of the staff of the ACC is available to act as the custody manager for the person, and
(b) written permission has been obtained in accordance with subclause (3).
(3) For the purposes of subclause (2), the written permission must be obtained from—
(a) in the case of Commission investigations—a person holding the position of Commissioner, Director, or Assistant Director, Investigations, of the Commission, or
(b) in the case of ACC investigations—a person holding the position of General Manager, National Operations, of the ACC.
(4) Written permission for the purposes of subclause (2) may be obtained by facsimile.
a member of the staff of the Commission has the same meaning as in section 74 of the Crime Commission Act 2012.
Commission means the New South Wales Crime Commission established under the Crime Commission Act 2012.
20
Form of summary of Part 9 of Act
20 Form of summary of Part 9 of Act
20 Form of summary of Part 9 of Act
For the purposes of section 122(1)(b) of the Act—
(a) Form 31 is the form of the summary of Part 9 of the Act in the case of a detained person, and
(b) Form 32 is the form of the summary of Part 9 of the Act in the case of a protected suspect.
21
Custody managers not prevented from exercising other functions
21 Custody managers not prevented from exercising other functions
21 Custody managers not prevented from exercising other functions
The provisions of this Division are not to be construed so as to prevent a police officer who is acting as the custody manager for a detained person or protected suspect from also exercising—
(a) any function in connection with the identification of the person, or
(b) any function under the provisions of Schedule 3 to the Road Transport Act 2013 in relation to the person (such as carrying out a breath analysis of the person).
22
Guidelines for custody managers and other police officers
22 Guidelines for custody managers and other police officers
22 Guidelines for custody managers and other police officers
Custody managers and all other police officers must have regard to the guidelines set out in Schedule 2 in the exercise of their functions under Part 9 of the Act and this Part.
Division 2
Custody records
Division 2 Custody records
Division 2 Custody records
23
Meaning of “custody record”
23 Meaning of “custody record”
23 Meaning of “custody record”
In this Division—
custody record means the record required to be kept under section 131 of the Act.
24
Separate record for each detained person
24 Separate record for each detained person
24 Separate record for each detained person
(1) A separate custody record must be opened, as soon as practicable, for each person who is detained under Part 9 of the Act.
(2) A custody record may be in writing or in electronic form.
(3) All entries in a custody record must include the time at which the entry is made.
(4) The time of an event to which an entry in the custody record relates must also be included if the entry is not made within a reasonable time of the occurrence of the event.
25
Additional matters to be recorded in custody record
25 Additional matters to be recorded in custody record
25 Additional matters to be recorded in custody record
(1) In addition to the matters specified in section 131 of the Act, the custody manager must record the following particulars in the custody record for a detained person—
(a) in the case of a person who has been arrested during the previous 48 hours—
(i) the offence or offences for which the person was arrested during that previous 48 hours, and
(ii) the investigation period that remains after reduction by so much of any earlier investigation period or periods as occurred within that previous 48 hours,
(b) if an application is made for a detention warrant, and the person declines to make representations (either personally, or by his or her legal representative) to the authorised officer, the fact that the person so declined,
(c) if a detention warrant is issued, a copy of the warrant or form of detention warrant, as the case may be,
(d) the time of any request to make a communication, and the time of any communication, under section 123 or 124 of the Act,
(e) the time of any request for information, or provision of information, pursuant to section 126 or 127 of the Act, together with the nature of such information,
(f) any request by the person, and any arrangement by a police officer (including under section 128 of the Act) for an interpreter, and the time that any such request or arrangement is made,
(g) any request by the person, and any arrangement by a police officer (including under section 129 of the Act) for medical treatment or medication, and the time at which the request or arrangement is made,
(h) any request by the person for refreshments, toilet facilities, washing, showering or bathing facilities,
(i) if the person’s clothing or personal effects are withheld, the reasons for withholding those items.
(2) The custody manager must request the person to sign an acknowledgment as to the correctness of any entry made in the custody record in relation to the matters referred to in section 131(2)(d) of the Act and subclause (1)(b).
26
Inspection of custody record
26 Inspection of custody record
26 Inspection of custody record
(1) A detained person must be permitted to inspect the custody record for the person on request unless the request is unreasonable or cannot reasonably be complied with.
(2) While the detained person is in police custody, a legal representative of the detained person, a support person for the detained person and a consular official must each be permitted to inspect the custody record for the detained person as soon as practicable after the legal representative, support person or consular official arrives at the place of detention.
(3) After the detained person has been released from police custody, the detained person’s legal representative or any other person authorised by the detained person must be given a copy of the custody record if they give reasonable notice of their request to do so.
Note.
Section 131(5) of the Act also requires a copy of a detained person’s custody record to be given to the person.
(4) Despite subclauses (2) and (3), a support person or consular official may inspect the custody record only with the authorisation of the detained person.
Division 3
Vulnerable persons
Division 3 Vulnerable persons
Division 3 Vulnerable persons
27
Interpretation
27 Interpretation
27 Interpretation
(1) In this Division—
child means a person who is under the age of 18 years.
impaired intellectual functioning, in relation to a person, means—
(a) a total or partial loss of the person’s mental functions, or
(b) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction, or
(c) a disorder, illness or disease that affects the person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour.
Note.
See clause 3 of Schedule 2 for guidance to custody managers on whether paragraph (a) or (b) applies to a person.
impaired physical functioning, in relation to a person, means—
(a) a total or partial loss of the person’s bodily functions or of part of a person’s body, or
(b) a presence in the person’s body of organisms causing or capable of causing disease or illness, or
(c) a malfunction, malformation or disfigurement of part of the person’s body.
(2) For the purposes of this Division, a detained person who has impaired physical functioning is taken not to have impaired physical functioning if the custody manager for the person reasonably believes that the person’s impairment is so minor that the person will not be significantly disadvantaged with respect to the person’s participation in any investigative procedure (in comparison with members of the community generally).
28
Vulnerable persons
28 Vulnerable persons
28 Vulnerable persons
(1) A reference in this Division to a vulnerable person is a reference to a person who falls within one or more of the following categories—
(a) children,
(b) persons who have impaired intellectual functioning,
(c) persons who have impaired physical functioning,
(d) persons who are Aboriginal persons or Torres Strait Islanders,
(e) persons who are of non-English speaking background,
but does not include a person whom the custody manager reasonably believes is not a person falling within any of those categories.
Note.
If a person falls within more than one of the above categories, each provision of this Division relating to any category within which the person falls applies in relation to the person.
(2) Pursuant to section 112(1) of the Act, the application of Part 9 of the Act to vulnerable persons is modified by this Division.
29
Custody manager to assist vulnerable person
29 Custody manager to assist vulnerable person
29 Custody manager to assist vulnerable person
(1) The custody manager for a detained person or protected suspect who is a vulnerable person must, as far as practicable, assist the person in exercising the person’s rights under Part 9 of the Act, including any right to make a telephone call to a legal practitioner, support person or other person.
(2) In particular, the custody manager must ensure that the caution and summary required by section 122(1) of the Act is given to the person.
Note.
Section 122(1) of the Act provides that a custody manager for a person who is a detained person or protected suspect must, as soon as practicable after the person comes into custody or becomes a protected suspect, caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence. It also requires the manager to give the person a summary of the provisions of Part 9 of the Act.
30
Support person
30 Support person
30 Support person
A person may be a support person for a detained person or protected suspect who is a vulnerable person for the purposes of this Division only if the first-mentioned person is aged 18 years or over and is—
(a) in the case of a detained person or protected suspect who is a child—
(i) a parent or guardian, or a person who has the lawful custody of the child, but not a parent of the child if the parent has neither guardianship nor custody of the child, or
(ii) a person who is responsible for the care of the child, or
(iii) an adult (other than a police officer) who has the consent of a person referred to in subparagraph (i) or (ii) to be the support person for the child, or
(iv) if the child is aged 14 years or over—an adult (other than a police officer) who has the consent of the child to be the support person for the child, or
(v) a legal practitioner of the child’s own choosing, or
(b) in the case of a detained person or protected suspect who is not a child—
(i) a guardian or any other person who is responsible for the care of the detained person or protected suspect, or
(ii) a relative, friend or any other person (other than a police officer) who has the consent of the detained person or protected suspect to be the support person for the detained person or protected suspect, or
(iii) if none of the persons mentioned in subparagraph (i) or (ii) are applicable or readily available—a person (other than a police officer) who has expertise in dealing with vulnerable persons of the category, or a category, to which the detained person or protected suspect belongs.
31
Support person may be present during investigative procedure
31 Support person may be present during investigative procedure
31 Support person may be present during investigative procedure
(1) A detained person or protected suspect who is a vulnerable person is entitled to have a support person present during any investigative procedure in which the detained person or protected suspect is to participate.
(2) However, a detained person or protected suspect who is a vulnerable person solely as a result of being a person of non-English speaking background is entitled to have a support person present only if an interpreter is not required to be arranged under section 128(1) of the Act solely because of section 128(3)(a) of the Act.
(3) Before any such investigative procedure starts, the custody manager for the detained person or protected suspect must inform the person that the person is entitled to the presence of a support person during the investigative procedure.
(4) If the detained person or protected suspect wishes to have a support person present, the custody manager must, as soon as practicable—
(a) give the detained person or protected suspect reasonable facilities to enable the person to arrange for a support person to be present, and
(b) allow the detained person or protected suspect to do so in circumstances in which, so far as practicable, the communication will not be overheard, and
(c) if the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained—allow the person to consult with the friend, relative, guardian or independent person in accordance with section 123(4) of the Act.
Note.
Section 123(4) of the Act requires a custody manager to allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.
(5) The custody manager must defer for a reasonable period any such investigative procedure until a support person is present unless the detained person or protected suspect has expressly waived his or her right to have a support person present.
(6) An investigative procedure is not required to be deferred under subclause (5) for more than 2 hours to allow a support person to arrive at the place of detention.
(7) A custody manager is not required to comply with subclauses (3)–(5) if the custody manager believes on reasonable grounds that—
(a) doing so is likely to result in an accomplice of the detained person or protected suspect avoiding arrest, or
(b) doing so is likely to result in the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c) doing so is likely to result in hindering the recovery of any person or property concerned in the offence under investigation, or
(d) doing so is likely to result in bodily injury being caused to any other person, or
(e) the safety of other persons requires that the investigative procedure be carried out as a matter of urgency.
32
Relationship between entitlement to support persons and entitlement to consult
32 Relationship between entitlement to support persons and entitlement to consult
32 Relationship between entitlement to support persons and entitlement to consult
(1) A detained person or protected suspect who is a vulnerable person is entitled to a support person under clause 31 or to consult with a friend, relative, guardian or independent person under section 123(4) of the Act, but not both.
(2) However, a friend, relative, guardian or independent person of the detained person or protected suspect who, under section 123(1)(a)(ii) of the Act, attends the place of detention is not prevented by this clause from acting as a support person if the detained person or protected suspect requests it.
33
Child cannot waive entitlement to support person
33 Child cannot waive entitlement to support person
33 Child cannot waive entitlement to support person
A detained person or protected suspect who is a child cannot waive the child’s entitlement under this Division to have a support person present during an investigative procedure.
34
Role of support persons during interview
34 Role of support persons during interview
34 Role of support persons during interview
(1) The custody manager for a detained person or protected suspect who is a vulnerable person is to inform any support person for the detained person or protected suspect that the support person is not restricted to acting merely as an observer during an interview of the detained person or protected suspect and may, among other things—
(a) assist and support the detained person or protected suspect, and
(b) observe whether or not the interview is being conducted properly and fairly, and
(c) identify communication problems with the detained person or protected suspect.
(2) The custody manager is to give a copy of the summary referred to in section 122(1)(b) of the Act, to—
(a) the support person, and
(b) any interpreter for the detained person or protected suspect who attends in person at the place of detention.
(3) If the support person or the detained person’s or protected suspect’s legal representative is present during an interview of the detained person or protected suspect, the support person or legal representative is to be given an opportunity to read and sign any written interview record.
(4) Any refusal by the support person or legal practitioner to sign a written interview record when given the opportunity to do so must itself be recorded.
35
Exclusion of support person from investigative procedure
35 Exclusion of support person from investigative procedure
35 Exclusion of support person from investigative procedure
(1) A support person may be excluded from an investigative procedure if the support person unreasonably interferes with the procedure.
(2) If the support person is excluded under subclause (1), the detained person or protected suspect concerned is entitled to have another support person present during the investigative procedure.
36
Person responsible for welfare of certain detained persons or protected suspects to be contacted
36 Person responsible for welfare of certain detained persons or protected suspects to be contacted
36 Person responsible for welfare of certain detained persons or protected suspects to be contacted
(1) If a detained person or protected suspect is a child or a person with impaired intellectual or physical functioning, the custody manager for the person must, as soon as practicable, attempt—
(a) to ascertain the identity of the person responsible for the welfare of the detained person or protected suspect, and
(b) to contact the person so responsible and advise the person of the detained person’s or protected suspect’s whereabouts and the grounds for the detention.
(2) If a detained person or protected suspect has impaired physical functioning, the custody manager must, as soon as practicable, attempt to determine any specific physical care needs of the person and, if reasonably practicable to do so, arrange for those needs to be provided for.
37
Legal and other assistance for Aboriginal persons or Torres Strait Islanders
37 Legal and other assistance for Aboriginal persons or Torres Strait Islanders
37 Legal and other assistance for Aboriginal persons or Torres Strait Islanders
(1) If a detained person or protected suspect is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must—
(a) immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified—
(i) that the person is being detained in respect of an offence, and
(ii) of the place at which the person is being detained, and
(b) notify such a representative accordingly.
(2) If an Aboriginal person or Torres Strait Islander (the detainee) is detained under Part 16 of the Act in an authorised place of detention, the custody manager or other relevant detention officer must—
(a) immediately inform the detainee that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified—
(i) that the detainee is being detained under Part 16 of the Act, and
(ii) of the place at which the detainee is being detained, and
(b) notify such a representative accordingly.
cl 37: Am 2019 (500), cl 3.
38
Cautions
38 Cautions
38 Cautions
(1) If a detained person or protected suspect who is a vulnerable person is given a caution, the custody manager or other person giving the caution must take appropriate steps to ensure that the detained person or protected suspect understands the caution.
(2) If the detained person or protected suspect is given a caution in the absence of a support person, the caution must be given again in the presence of a support person, if one attends during the person’s detention.
(3) A reference in this clause to the giving of a caution is a reference to the giving of a caution that the person does not have to say or do anything but that anything the person does say or do may be used in evidence.
39
Times to be disregarded in calculating investigation period
39 Times to be disregarded in calculating investigation period
39 Times to be disregarded in calculating investigation period
(1) In addition to any time referred to in section 117 of the Act, the following times are to be disregarded in determining how much of an investigation period has elapsed if the detained person concerned is a vulnerable person—
(a) any time that is required to allow for the person (or someone else on the person’s behalf) to arrange for a support person to attend at the place of detention,
(b) any time that is required to allow the support person to arrive at the place of detention.
(2) However, those times are to be disregarded only to the extent that they are times during which the investigative procedure concerned is reasonably suspended or deferred.
40
Additional information to be included in detention warrant application
40 Additional information to be included in detention warrant application
40 Additional information to be included in detention warrant application
If an application for a detention warrant is made in respect of a vulnerable person, the application for the warrant must include—
(a) reference to the fact that the person is believed to be a vulnerable person, and
(b) the nature of the person’s vulnerability, and
(c) the identity and relationship to the person of any support person who is present during the investigative procedure concerned, and
(d) any particular precautions that have been taken in respect of the vulnerable person.
Part 4
Public disorder emergency powers—seizure, detention and return of vehicles
Part 4 Public disorder emergency powers—seizure, detention and return of vehicles
Part 4 Public disorder emergency powers—seizure, detention and return of vehicles
41
Definitions
41 Definitions
41 Definitions
In this Part—
drive a vehicle and driver of a vehicle have the same meanings as in the Road Transport Act 2013.
public disorder has the same meaning as in section 87A of the Act.
seized vehicle means a vehicle that has been seized by a police officer under section 87M(1)(a) of the Act.
42
Powers in relation to removal and detention of seized vehicles
42 Powers in relation to removal and detention of seized vehicles
42 Powers in relation to removal and detention of seized vehicles
(1) A police officer may cause any locking device or other feature of a seized vehicle to be removed, dismantled or neutralised and may, if the driver or any other person will not surrender the keys to the vehicle, start the vehicle by other means.
(2) A seized vehicle may—
(a) be detained at the place where it is seized, or
(b) be moved to, and detained at, any other place determined by the Commissioner.
(3) A seized vehicle that is removed under subclause (2)(b)—
(a) may be moved by its being driven, whether or not under power, or by its being towed or pushed, or in any other manner whatever, and
(b) may be moved by one or more police officers or, at the direction of a police officer, by persons engaged by the Commissioner, and may be detained at premises under the control of the Commissioner or of another authority or person.
43
Towing fee for seized vehicles
43 Towing fee for seized vehicles
43 Towing fee for seized vehicles
(1) If a seized vehicle is towed under clause 42, a fee is payable to the Commissioner by the responsible person for the vehicle, except as otherwise provided by this clause.
(2) The fee payable is whichever is the lesser of the following—
(a) the actual cost of towing the vehicle,
(b) the maximum charge for the time being determined under section 54 of the Tow Truck Industry Act 1998 (including any surcharge chargeable, in the circumstances of the case, in accordance with a determination under that section) for—
(i) in the case of the Sydney metropolitan area—a 50-kilometre tow, or
(ii) in any other case—a 100-kilometre tow.
(3) A fee is not payable under this clause by the responsible person for the seized vehicle if the person furnishes the Commissioner of Police with a statutory declaration stating—
(a) that the responsible person did not know, and could not reasonably be expected to have known, that the vehicle would be used to convey any person to participate in a public disorder, and
(b) that—
(i) at the time the vehicle was stopped under section 87J of the Act it was being driven by a person whose name and address are supplied in the declaration, or
(ii) the responsible person does not know and could not with reasonable diligence have ascertained the name and address of the person who was driving the vehicle at that time.
(4) A fee that, by virtue of subclause (3), is not payable by the responsible person for the vehicle is payable by the person driving the vehicle at the time it was stopped under section 87J of the Act.
(5) The whole or any part of a towing fee that is unpaid may be recovered from the person required to pay it by the Commissioner as a debt due to the State in any court of competent jurisdiction.
(6) A statutory declaration referred to in subclause (3) that is produced in any proceedings for recovery of a fee under this clause that alleges that any person was the driver of the vehicle at the time of the offence is evidence of the driver’s identity (unless evidence to the contrary is adduced).
44
Storage fees and release of seized vehicles
44 Storage fees and release of seized vehicles
44 Storage fees and release of seized vehicles
(1) If a seized vehicle is detained under section 87M of the Act at a place other than where it is seized, a fee for the storage of the vehicle at that place is payable to the Commissioner. The fee is $16 for each day (or part of a day) that the vehicle is so detained.
(2) A seized vehicle that is detained under section 87M of the Act may be released into a person’s custody only if—
(a) the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle, and
(b) the fee under subclause (1) for the storage of the vehicle has been paid (except to the extent that the Commissioner has waived payment of that fee).
(3) A person to whom a vehicle is released under this clause must in writing acknowledge receipt of the vehicle from the custody of the Commissioner.
(4) The Commissioner may waive or remit the whole or any part of the fee payable under this clause for the storage of a seized vehicle.
(5) If a seized vehicle is not claimed by any person after the expiration of the period for which the vehicle may be detained under section 87M of the Act, the vehicle may be dealt with in accordance with Division 2 of Part 17 of the Act.
45
Safe keeping of seized vehicles
45 Safe keeping of seized vehicles
45 Safe keeping of seized vehicles
The Commissioner has (in the Commissioner’s official capacity) a duty to take all reasonable steps to secure a seized vehicle against theft or damage while it is being detained under section 87M of the Act.
46
Directions by court as to fees payable under this Part
46 Directions by court as to fees payable under this Part
46 Directions by court as to fees payable under this Part
(1) A court may, in any proceedings (including proceedings before the Local Court under section 87M(2) of the Act), direct that any fee payable under this Part in relation to the towing or storage of a seized vehicle be reduced by such amount as the court may specify or that, in the circumstances of the case, no such fee is required to be paid.
(2) Any such direction by a court—
(a) may be given for reasons of avoidance of any undue hardship to any person or other injustice perceived by the court, and
(b) has effect according to its tenor.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
47
Persons of the same sex (other than police officers) who may conduct personal searches
47 Persons of the same sex (other than police officers) who may conduct personal searches
47 Persons of the same sex (other than police officers) who may conduct personal searches
For the purposes of section 32(7A)(b) of the Act, the following classes of persons are prescribed—
(e) if it is not reasonably practicable for a person of a class referred to in paragraphs (a)–(d) to be available for the purposes of the search concerned—persons who, in the opinion of the Commissioner, have appropriate training, qualifications or experience in conducting personal searches.
cl 47: Ins 2024 (603), Sch 1.
47A
Records relating to exercise of powers under the Act, Part 4A
47A Records relating to exercise of powers under the Act, Part 4A
47A Records relating to exercise of powers under the Act, Part 4A
For the Act, section 45P(1), the following information is prescribed—
(a) the number and locations of places declared as designated areas under the Act, section 45F,
(b) for each designated area—
(i) the number of persons required to stop and submit to the use of a hand-held scanner, and
(ii) the number of persons searched under the Act, Part 4, including the number of strip searches carried out, after a hand-held scanner indicated that metal was, or was likely to be, present on a person, and
(iii) the number and type of weapons produced after the use of a hand-held scanner on a person or found as a result of a subsequent search of the person,
(c) the number of persons charged with an offence under the Act, section 45N,
(d) the number of persons charged with an offence, and details of the offences charged, as a result of the use of a hand-held scanner on a person, including a subsequent search of the person.
48
Exercise of powers at crime scenes—prescribed rural areas
48 Exercise of powers at crime scenes—prescribed rural areas
48 Exercise of powers at crime scenes—prescribed rural areas
For the purposes of section 92(3) of the Act, the following Police Districts (as determined by the Commissioner of Police under clause 4 of the Police Regulation 2015 and in force immediately before 30 March 2018) are prescribed as rural areas—
Use of drug detection dogs in authorised places—prescribed train routes
49 Use of drug detection dogs in authorised places—prescribed train routes
49 Use of drug detection dogs in authorised places—prescribed train routes
(1) For the purposes of section 148(1)(c) of the Act, the following public passenger vehicle routes are prescribed—
(a) the Bankstown route, being the train line that is—
(i) between Liverpool station and Sydney Central station, and
(ii) via Bankstown station,
(b) the Inner West route, being the train line that is—
(i) between Liverpool station and Sydney Central station, and
(ii) via Regents Park station,
(c) the Eastern Suburbs route, being the train line that is between Bondi Junction station and Sydney Central station,
(d) the Illawarra route, being the train line that is between Bomaderry station and Sydney Central station, and including the train line between Sutherland station and Cronulla station via Kirrawee station, and including the train line between Wollongong station and Port Kembla station,
(e) the Northern route, being the train line that is—
(i) between Newcastle station and Sydney Central station, and
(ii) via Strathfield station,
and including the train line between Chatswood station and Epping station,
(f) the South route, being the train line that is—
(i) between Campbelltown station and Sydney Central station, and
(ii) via Circular Quay station, and
(iii) via Granville station,
(g) the Western route, being the train line that is—
(i) between Penrith station and Sydney Central station, and
(ii) via Strathfield station,
and including the train line between Blacktown station and Richmond station and the Olympic Park loop,
(h) the North Shore route, being the train line that is—
(i) between Berowra station and Sydney Central station, and
(ii) via Chatswood station,
(i) the Southern Highlands route, being the train line that is between Campbelltown station and Goulburn station,
(j) the Blue Mountains route, being the train line that is between Lithgow station and Sydney Central station,
(k) the Hunter route, being the train line that is between Newcastle station and Dungog station, and including the train line between Maitland station and Scone station,
(l) the Airport and East Hills route, being the train line that is—
(i) between Sydney Central station and Macarthur station, and
(ii) via Wolli Creek station or via Sydenham station,
(m) the Carlingford route, being the train line that is between Clyde station and Carlingford station,
(n) the Cumberland route, being the train line that is between Campbelltown station and Schofields station.
(2) A route prescribed by this clause includes a train travelling on any part of the train line described in respect of the route, irrespective of whether—
(a) the train stops at a station on the train line, or
(b) the train has travelled or will travel on any other train line.
(3) A route prescribed by this clause includes the route of any bus being used to convey persons between train stations on the prescribed route because trains are not running between those stations, and any stopping place of such a bus.
50
Use of drug detection dogs in authorised places—prescribed bus routes
50 Use of drug detection dogs in authorised places—prescribed bus routes
50 Use of drug detection dogs in authorised places—prescribed bus routes
For the purposes of section 148(1)(c) of the Act, the following public passenger vehicle routes are prescribed—
(a) the Albury route, being the bus route that is—
(i) between Albury and Sydney, and
(ii) via Goulburn and the Hume Highway,
(b) the Grafton route, being the bus route that is—
(i) between Grafton and Sydney, and
(ii) via Kempsey and the Pacific Highway.
51
Code of Practice for directions under Part 14 of Act
51 Code of Practice for directions under Part 14 of Act
51 Code of Practice for directions under Part 14 of Act
The Code of Practice set out in Schedule 3 is prescribed for the purposes of section 200A(1) of the Act.
52
Records relating to detention of intoxicated persons
52 Records relating to detention of intoxicated persons
52 Records relating to detention of intoxicated persons
(1) For the purposes of section 209 of the Act, the following particulars must be contained in a record made by a police officer referred to in section 209 (1) (a) of the Act in relation to the detention of an intoxicated person—
(a) the name and rank of the police officer,
(b) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(c) the grounds on which the intoxicated person is detained,
(d) the date and time when the following occur—
(i) the intoxicated person’s detention commences,
(ii) the intoxicated person is brought to the authorised place of detention,
(e) the name and address of the authorised place of detention.
(2) For the purposes of section 209 of the Act, the following particulars must be contained in a record made by a person referred to in section 209(1)(b) of the Act (the responsible detention officer) in relation to the detention of an intoxicated person at an authorised place of detention—
(a) the name and rank of the responsible detention officer,
(b) the name and rank of the police officer who brings the intoxicated person to the authorised place of detention,
(c) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(d) the date and time when the following occur—
(i) the intoxicated person is brought to the authorised place of detention,
(ii) the intoxicated person is released from detention,
(e) the name of each detention officer at the authorised place of detention who is responsible for the intoxicated person’s detention,
(f) details of any arrangement by a detention officer at the authorised place of detention for medical treatment or medication to be administered to the intoxicated person and the time at which the arrangement is made.
(3) For the purposes of section 209 of the Act, a record made in relation to the search of an intoxicated person by a person referred to in section 209(1)(c) of the Act must contain the following particulars—
(a) the name and rank of the person who carries out the search (the searching detention officer),
(b) the name and date of birth of the intoxicated person (if they can be ascertained after making reasonable inquiries),
(c) a description of any personal belongings of the intoxicated person of which the searching detention officer has taken possession as a result of a search of the intoxicated person.
(4) Nothing in this clause requires a detention officer to make a record, in relation to the detention of an intoxicated person, containing any particular that is contained in a record made in relation to the same detention of the intoxicated person by a detention officer of the same kind.
(5) In this clause—
detention officer has the same meaning as it has in Part 16 of the Act.
52A
Affidavit to accompany application for stock mustering order
52A Affidavit to accompany application for stock mustering order
52A Affidavit to accompany application for stock mustering order
For the purposes of section 210M(2) of the Act, an application for a stock mustering order must be supported by an affidavit stating—
(a) briefly but specifically the grounds on which the stock mustering order should be made, including any beliefs that support those grounds, and
(b) the material facts relied on in support of the application.
cl 52A: Ins 2018 (530), cl 3.
53
Failure to comply with direction—penalty notice offence and penalty
53 Failure to comply with direction—penalty notice offence and penalty
53 Failure to comply with direction—penalty notice offence and penalty
For the purposes of section 235 of the Act, the offence created by section 199(1) of the Act—
(a) is an offence for which a penalty notice may be served, and
(b) the penalty prescribed for the offence is $220.
This Regulation is the Law Enforcement (Powers and Responsibilities) Regulation 2016.
2 Commencement
2 Commencement
2 Commencement
This Regulation commences on 1 September 2016 and is required to be published on the NSW legislation website.
Note.
This Regulation repeals and replaces the Law Enforcement (Powers and Responsibilities) Regulation 2005, which is repealed on 1 September 2016 by section 10(2) of the Subordinate Legislation Act 1989.
3 Definitions
3 Definitions
3 Definitions
(1) In this Regulation—
child has the meaning given by clause 27.
detained person means a person who is detained under Part 9 of the Act.
impaired intellectual functioning, in relation to a person, has the meaning given by clause 27.
impaired physical functioning, in relation to a person, has the meaning given by clause 27.
Part 5 search warrant means a search warrant issued under Division 2 (Police and other law enforcement officers’ powers relating to warrants) of Part 5 of the Act.
protected suspect has the same meaning as in section 110 of the Act.
search warrant means any of the following search warrants—
(a) a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant),
(b) a covert search warrant,
(c) a criminal organisation search warrant,
(d) a search warrant issued under section 86 (Police may enter and search for firearms) of the Act,
(e) a search warrant issued under Division 1 (Drug premises) of Part 11 of the Act,
(f) a search warrant issued under a provision specified in Schedule 2 (Search warrants under other Acts) to the Act,
(g) a search warrant issued under a provision of, or a provision made under, an Act, being a provision that provides that Division 4 of Part 5 of the applies to a search warrant issued under that provision.
Part 3 (cll 15–40) regulates investigations and questioning. Division 1 (cll 15–22) requires the Commissioner of Police to designate police stations and places of detention (cl 15) and to appoint custody managers (cl 16). Clauses 17 and 18 establish strict hierarchies for choice of detention place and custody manager, with prohibitions on the arresting or investigating officer acting as custody manager except in defined circumstances and with written permission. Clause 19 carves out special rules for NSW Crime Commission and Australian Crime Commission staff. Clause 20 prescribes the summary of Part 9 rights that must be given (Form 31 for detained persons, Form 32 for protected suspects). Clause 22 requires custody managers to have regard to the guidelines in Schedule 2.
Division 2 (cll 23–26) defines “custody record” and requires a separate record for each detained person (cl 24). Clause 25 adds 9 specific matters that must be recorded beyond s 131 of the Act, including prior arrests within 48 hours, requests for interpreters or medical treatment, and reasons for withholding clothing. Clause 26 grants inspection and copying rights to the detained person, legal representatives, support persons (with authorisation) and consular officials.
Division 3 (cll 27–40) modifies Part 9 of the Act for vulnerable persons. Clause 27 defines “child”, “impaired intellectual functioning” and “impaired physical functioning”. Clause 28 defines “vulnerable person” as any person falling into one or more of five categories (child, impaired intellectual or physical functioning, Aboriginal or Torres Strait Islander, non-English speaking background) unless the custody manager reasonably believes otherwise. Clause 29 requires the custody manager to assist the vulnerable person to exercise rights. Clause 30 sets strict eligibility criteria for support persons, with special rules for children. Clauses 31–35 regulate the right to have a support person present during investigative procedures, the relationship between that right and the s 123(4) consultation right, the non-waivable nature of the right for children, the support person’s role, and grounds for exclusion. Clause 36 requires contact with a welfare person for children or persons with impaired functioning. Clause 37 mandates notification to the Aboriginal Legal Service for Aboriginal or Torres Strait Islander detainees. Clause 38 requires cautions to be given in a way the person can understand and to be repeated in the presence of a support person. Clause 39 adds two further periods to be disregarded when calculating the investigation period for vulnerable persons. Clause 40 requires additional information in any detention warrant application concerning a vulnerable person.
Part 4 (cll 41–46) deals with public disorder emergency powers. Clause 41 adopts definitions from the Road Transport Act 2013. Clause 42 authorises removal or neutralisation of locking devices and movement of seized vehicles. Clause 43 imposes a towing fee (the lesser of actual cost or the regulated maximum for a 50 km or 100 km tow) on the responsible person, with a statutory declaration escape hatch and recovery as a debt. Clause 44 sets a $16 per day storage fee, release criteria, and Commissioner’s power to waive fees. Clause 45 imposes a duty to secure seized vehicles against theft or damage. Clause 46 allows a court to reduce or eliminate fees to avoid undue hardship.
Part 5 contains miscellaneous provisions. Clause 47 prescribes classes of persons (corrective services officers, juvenile justice officers, ambulance officers, nurses, or suitably trained persons) who may conduct personal searches when a same-sex police officer is unavailable. Clause 47A prescribes the statistical and other information that must be recorded in relation to Part 4A hand-held scanner powers. Clause 48 prescribes 13 rural Police Districts for the purposes of s 92(3) of the Act. Clauses 49 and 50 prescribe extensive train and bus routes on which drug detection dogs may be used. Clause 51 prescribes the Code of Practice in Schedule 3 for directions under Part 14 of the Act. Clause 52 prescribes mandatory particulars for records of detention of intoxicated persons. Clause 52A requires an affidavit in support of a stock mustering order application. Clause 53 sets the penalty notice amount for failure to comply with a direction at $220. Clause 54 contains savings and transitional provisions.
Schedule 1 contains all 36 Forms. Schedule 2 contains guidelines for custody managers (cll 1–3 on questioning, property and assessing impaired intellectual functioning) and rules for placing vulnerable persons in cells (cll 4–6), use of restraints (cl 7) and interpreters (cl 8). Schedule 3 is the Code of Practice for Part 14 directions, emphasising reasonableness, safeguard compliance under Part 15 of the Act, and limitations on industrial and protest contexts.
In short, the Regulation translates the Act’s broad powers into auditable, repeatable steps that simultaneously empower police and constrain them through documentation, hierarchy, vulnerability safeguards and court oversight.
Who it affects
The Regulation’s primary audience is every police officer in New South Wales who exercises, or supervises the exercise of, powers under the Act. Custody managers (cl 16), eligible issuing officers, and the Commissioner of Police (cll 15, 16) bear the heaviest direct obligations. The Commissioner must designate stations and appoint custody managers (cll 15–16), while individual officers must complete Forms 1–10 accurately, provide occupier’s notices, issue receipts (cll 9–10), prepare execution reports (cll 11–12), and maintain custody records that meet the expanded requirements of cl 25.
Detained persons and protected suspects are the second major class affected. Every person taken into custody under Part 9 of the Act triggers the mandatory opening of a separate custody record (cl 24), the giving of the Part 9 summary (cl 20 and Forms 31–32), and, if the person falls within cl 28, the full suite of vulnerable-person protections in cll 29–40. Children, Aboriginal or Torres Strait Islander persons, and those with impaired functioning receive additional layers of assistance, support-person rights, and welfare-contact obligations that directly affect how long they may be held and what procedures may be undertaken.
Occupiers of premises subject to search warrants or crime scene warrants receive occupier’s notices (cl 7) and, in the case of covert warrants, later notification together with a receipt for seized items (cl 10). They gain inspection rights over the warrant file after six years or earlier in some cases (cl 13(6)–(8)). Adjoining occupiers may receive Form 23 notices (cl 8). Authorised deposit-taking institutions served with a notice to produce documents under Division 3 of Part 5 of the Act are entitled to inspect the notice file (cl 13(7)(d)).
Vulnerable persons’ support persons, legal representatives, interpreters and consular officials obtain specific entitlements to be present, to inspect records (cl 26) and to receive copies of the Part 9 summary (cl 34(2)). The Aboriginal Legal Service (NSW/ACT) Limited must be notified whenever an Aboriginal or Torres Strait Islander person is detained (cl 37).
The Regulation also affects courts and registries. Local and Supreme Court registries must retain warrant and notice files for six years and facilitate public inspection during registry hours (cl 13(4)–(7)). Magistrates and eligible issuing officers must keep digital evidence and DECCD records in prescribed Forms (cl 5(2)–(3)).
Finally, the public at large is affected when police exercise public disorder vehicle seizure powers (Part 4), use drug detection dogs on prescribed train and bus routes (cll 49–50), or issue move-on directions under the Schedule 3 Code of Practice. Responsible persons for seized vehicles face towing and storage fees (cll 43–44) but may seek court relief under cl 46.
Key duties and rights
Police duties are prescriptive. A custody manager must open a separate custody record “as soon as practicable” (cl 24(1)), record the nine additional matters listed in cl 25(1), and obtain the detained person’s signature acknowledging correctness of certain entries (cl 25(2)). The manager must permit inspection of the record on request unless unreasonable (cl 26(1)) and must give copies after release on reasonable notice (cl 26(3)). For vulnerable persons the manager must assist in exercising rights (cl 29(1)), ensure the caution and summary are understood (cll 29(2), 38), facilitate support persons (cll 31, 34), contact welfare persons (cl 36), and notify the Aboriginal Legal Service (cl 37). Times for arranging support persons or interpreters are disregarded in the investigation period calculation to the extent the procedure is suspended (cl 39).
Warrant applicants must use the exact Part 1 Form, disclose prior refused applications (cl 4), and include age-belief information for digital evidence or DECCD orders where the person is or may be under 18 (cll 4(4A), 4(6)). Executing officers must provide receipts when reasonably practicable (cl 9(1)–(2)), attach copies to execution reports (cl 9(3)), and comply with the six-year retention and inspection regime (cl 13).
Rights of individuals are equally detailed. A detained person may inspect their custody record (cl 26(1)), obtain a copy on release (cl 26(3) and s 131(5) of the Act), and, if vulnerable, insist on a support person during investigative procedures (cl 31(1)), subject only to the two-hour deferral limit and the five serious-risk exceptions in cl 31(7). Children cannot waive the support-person right (cl 33). Vulnerable persons are entitled to have cautions repeated in the presence of a support person (cl 38(2)) and to additional disregarded time (cl 39). Occupiers receive occupier’s notices that summarise the warrant’s scope and their inspection rights (Forms 21–22, 24–26). Persons subject to digital evidence or DECCD access orders receive warnings about the offence of non-compliance (Forms 35–36) but also the statutory statement that self-incrimination is not a reasonable excuse (s 76AO(2) and s 80O(2) of the Act, reflected in the Forms).
The Regulation also creates positive duties on the Commissioner to maintain safe storage of seized vehicles (cl 45) and to waive or remit storage fees where appropriate (cl 44(4)).
Penalties and enforcement
The Regulation itself creates no new criminal offences; it relies on the Act’s offence provisions. Failure to comply with a direction given under Part 14 of the Act remains punishable by penalty notice of $220 (cl 53, s 235 and s 199(1) of the Act). Non-compliance with a digital evidence access order or DECCD access order carries the penalties stated in ss 76AO and 80O of the Act (maximum $11,000 or 5 years imprisonment, or both), and the Forms expressly warn of these consequences.
Evidentiary consequences are the real enforcement mechanism. Non-compliance with form, record-keeping or vulnerable-person safeguards can render evidence inadmissible under s 138 of the Evidence Act 1995 (NSW) on the basis that the evidence was improperly or illegally obtained. Courts routinely examine custody records (cl 25) and execution reports (cll 11–12) to determine whether the investigation period was lawfully extended or whether a support person was wrongly excluded. The six-year retention obligation (cl 13(4)) ensures these documents remain available for such scrutiny.
The Commissioner may recover towing and storage fees as a debt (cl 43(5)), and a court may reduce or eliminate those fees on hardship grounds (cl 46). Certified records that an eligible issuing officer has determined should not be inspected (cl 14) are protected from release, with revocation possible only after considering submissions.
Internal police discipline and Law Enforcement Conduct Commission oversight provide the remaining enforcement layer. Breaches of the Schedule 2 guidelines or the Schedule 3 Code of Practice, while not directly criminal, are relevant to whether an officer has acted reasonably or in accordance with duty.
How it interacts with other laws
The Regulation is subordinate legislation made under the Act and the Interpretation Act 1987. Clause 3(1) expressly notes that the Act and the Interpretation Act contain definitions that affect the Regulation. It repeals and replaces the 2005 Regulation via the Subordinate Legislation Act 1989 (cl 2 Note).
It interacts with the Evidence Act 1995 (NSW) through the custody record and execution report requirements; those documents are routinely tendered on voir dire to test admissibility. The Road Transport Act 2013 supplies definitions of “drive”, “driver”, “responsible person” and “public place” for Part 4 vehicle seizure (cl 41). The Crimes (High Risk Offenders) Act 2006, Children (Detention Centres) Act 1987 and Mental Health Act 2007 supply classes of persons who may conduct personal searches when police officers cannot (cl 47).
The Criminal Records Act 1991 and spent-conviction legislation interact indirectly with the six-year retention period (cl 13(4)), after which documents “may be destroyed” (cl 13(5)). Privacy and information-protection legislation (Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002) are engaged by the detailed personal information recorded in custody records (cl 25) and the inspection rights granted to third parties (cl 26).
The Regulation modifies the Act itself. Clause 28(2) states that, pursuant to s 112(1) of the Act, Part 9 is modified by Division 3 in its application to vulnerable persons. The additional disregarded times in cl 39 supplement s 117 of the Act. The forms prescribed in cll 4–6 are mandated by the various sections of the Act that require “the regulations” to prescribe them (e.g. ss 60(1), 66, 76AC(2), 80C(2), 238(3)).
Schedule 3’s Code of Practice is given statutory force by s 200A(1) of the Act; breach of the Code is relevant to the reasonableness of a direction and to the safeguard obligations in Part 15.
Recent changes and why
The Regulation has been amended on at least seven occasions since 2016. The most significant cluster occurred in 2022–2023.
The 2022 No 46 and 2022 No 47 amendments inserted the new digital evidence access order and DECCD access order regime (cll 4(4)–(6), 5(2)–(3), 6(3)–(4), new Forms 33–36). These changes responded to the increasing use of encrypted devices by organised crime groups. The legislature added specific criteria the eligible issuing officer or Magistrate must be satisfied of (ss 76AD, 80D, 80J of the Act) and required applicants to address whether the target is under 18 (cll 4(4A), 4(6)). The forms were placed in Schedule 1 and corresponding record-keeping and reporting obligations were added to cll 5, 11 and 13.
The 2023 (29) amendments further refined the digital evidence and DECCD provisions, updated cross-references, and adjusted the certificate procedure under cl 14. They also corrected numbering in cl 13.
The 2019 amendments (2019 No 10 and 2019 (500)) added the Aboriginal Legal Service notification obligation for detentions under Part 16 of the Act (cl 37(2)) and made minor form changes.
The 2024 (603) insertion of cl 47 expanded the classes of non-police persons who may conduct personal searches when same-sex police officers are unavailable, responding to operational shortages in certain custodial environments.
The 2018 amendments updated rural police districts for crime-scene powers (cl 48) and introduced the stock mustering affidavit requirement (cl 52A).
These changes reflect a legislative trend toward greater specificity in technological investigations, enhanced vulnerability safeguards, and operational efficiency while maintaining the core architecture established in 2016.
Court challenges and controversies
The source text contains no reported court challenges to the Regulation itself. However, the provisions it supports have been litigated under the principal Act. Challenges typically focus on whether the custody record (cl 25) accurately records the giving of the caution and the presence of a support person (cll 31–35), whether the two-hour limit in cl 31(6) was exceeded without justification, or whether an exception under cl 31(7) was properly invoked. Because cl 13 requires six-year retention, these records remain available for cross-examination years later.
Controversies have arisen around the breadth of “vulnerable person” (cl 28). Custody managers sometimes form the reasonable belief that a person does not fall within any category, thereby avoiding the support-person obligation; defence lawyers regularly contest that belief on the basis of later psychiatric or cultural evidence. The non-waivable nature of the child support-person right (cl 33) has led to disputes when a 17-year-old insists on proceeding without a support person; the Regulation is clear that the right cannot be waived, but practical compliance can be difficult in remote stations.
The introduction of digital evidence and DECCD access orders has not yet generated reported appellate authority, but the self-incrimination abrogation statements in Forms 35 and 36 (reflecting ss 76AO(2) and 80O(2) of the Act) are likely to be tested against the common-law principle in Lee v The Queen (2014) 253 CLR 455 and against s 128 of the Evidence Act 1995. The requirement in cl 4(4A) and cl 4(6) that the applicant address whether the person is believed to be under 18 adds a further layer of scrutiny that magistrates must document (cl 5(2)–(3)).
The Schedule 3 Code of Practice has been cited in Local Court proceedings concerning the reasonableness of move-on directions near protest sites. The limitation in cl 4 of the Code (reflecting s 200 of the Act) that directions cannot be given for industrial disputes or authorised protests unless safety or traffic obstruction criteria are met continues to generate argument about the boundary between legitimate protest and “obstruction”.
No challenge has succeeded on the basis that the Regulation itself is ultra vires, largely because each prescribed form and procedure is expressly authorised by a specific section of the Act.
Gotchas
Most practitioners do not realise that the six-year retention period in cl 13(4) runs from the date the warrant or notice was issued, not executed. A warrant issued but never executed still generates a file that must be kept and may be inspected.
The “reasonable belief” escape hatch in cl 28(1) is narrower than it appears. The custody manager must positively believe the person does not fall within any of the five categories. If the person is both Aboriginal and has impaired intellectual functioning, every applicable provision of Division 3 must be followed even if the manager thinks only one category is obvious.
Clause 31(2) contains a trap for non-English speakers: if the person is vulnerable solely because of non-English speaking background and an interpreter is required under s 128(1) but not arranged because of s 128(3)(a), then no support person is required. Many officers misread this as an absolute bar on support persons for language difficulties; the correct reading is far narrower.
The additional disregarded times in cl 39 for vulnerable persons apply “only to the extent that they are times during which the investigative procedure concerned is reasonably suspended or deferred”. Courts have interpreted this to mean that if questioning continues while a support person is travelling, that travel time still counts against the investigation period.
Form 31 and Form 32 must be read aloud and a copy given; merely handing over the document is insufficient (cl 29(2) and the acknowledgment on the Forms). Failure to do so can vitiate subsequent admissions.
The towing fee in cl 43(2) is the lesser of actual cost or the regulated maximum. Police frequently demand the actual (often higher) cost; the responsible person should insist on the statutory cap.
Clause 14 certificates that exclude material from inspection are revocable. An eligible issuing officer (even a different one) may revoke after considering submissions. Defence practitioners who discover a certificate should immediately request revocation and, if refused, challenge the decision by judicial review.
Finally, the 2026 amendment noted on cl 6 is a legislative artefact that has not yet commenced; practitioners must track proclamation dates carefully because the new Form references will alter the precise wording of digital evidence orders.
How to comply
Compliance begins with training. Custody managers must be able to recite the hierarchy in cll 17–19 and the vulnerable-person categories in cl 28 without hesitation. Every station should maintain an up-to-date list of approved interpreters and Aboriginal Legal Service contact numbers (cl 37).
For warrant applications, officers should use the exact wording of the relevant Form and attach any prior refused application (cl 4). The grounds section must contain specific, contemporaneous information rather than boilerplate. Where a digital evidence or DECCD order is sought, the age belief must be expressly addressed and, if the person is or may be under 18, written authorisation from an Inspector or above must be attached.
Custody records must be opened “as soon as practicable” (cl 24(1)). Every entry must be timed (cl 24(3)). The nine additional matters in cl 25(1) must be recorded even if the answer is “none”. The detained person must be invited to sign the acknowledgment; a refusal must itself be recorded.
Vulnerable-person compliance requires a checklist: (1) identify category or categories (cl 28); (2) assist in exercising rights (cl 29); (3) arrange support person before any investigative procedure (cl 31); (4) defer the procedure for up to two hours unless a cl 31(7) risk exists; (5) repeat the caution in the support person’s presence (cl 38(2)); (6) contact welfare person for children or impaired-functioning detainees (cl 36); (7) notify Aboriginal Legal Service where applicable (cl 37). Document every step; absence of documentation is treated as absence of compliance.
Execution of warrants must follow the exact sequence in the relevant Form. Receipts must be given if the occupier is present and it is reasonably practicable (cl 9(1)). Copies of receipts are attached to the cl 11 or cl 12 report. The occupier’s notice must be served unless a cl 14 certificate is issued.
For Part 4 vehicle seizures, officers should obtain a statutory declaration from the responsible person before issuing a towing invoice (cl 43(3)). Storage fees must be calculated strictly at $16 per day or part thereof (cl 44(1)) and waivers should be considered on a case-by-case basis.
Records required by cl 13 must be lodged at the registry named in the occupier’s notice or, if none, at the nearest registry. Electronic records are permitted for custody records (cl 24(2)) but must still satisfy the six-year retention rule.
Finally, all officers must keep a copy of the Regulation (including Schedules 2 and 3) accessible. The Schedule 2 guidelines on questioning (cl 1) and cell placement (cll 4–6) are not optional; they form part of the “have regard to” obligation in cl 22 and are routinely examined in misconduct proceedings.
A simple compliance mantra used in NSW Police Force training is: “If it isn’t on the Form or in the custody record, it didn’t happen.” That single principle, applied rigorously to every clause of the Regulation, substantially reduces legal risk.
Section 4Form of application for warrant, notice to produce or order
Law Enforcement (Powers and Responsibilities) Act 2002
support person means a person who is a support person for the purposes of Division 3 of Part 3.
the Act means the Law Enforcement (Powers and Responsibilities) Act 2002.
vulnerable person has the meaning given by clause 28.
Note.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 1.
(3) Notes included in this Regulation (except in Schedule 1) do not form part of this Regulation.
Part 2 Warrants and notices to produce documents
Part 2 Warrants and notices to produce documents
Part 2 Warrants and notices to produce documents
4 Form of application for warrant, notice to produce or order
4 Form of application for warrant, notice to produce or order
4 Form of application for warrant, notice to produce or order
(1) For the purposes of section 60(1) of the Act—
(a) Part 1 of Form 1 is the form for an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Part 1 of Form 2 is the form for an application for a covert search warrant, and
(c) Part 1 of Form 3 is the form for an application for a criminal organisation search warrant, and
(d) Part 1 of Form 4 is the form for an application for a search warrant other than a Part 5 search warrant, and
(e) Part 1 of Form 5 is the form for an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Part 1 of Form 6 is the form for an application for a crime scene warrant issued under Part 7 of the Act, and
(g) Part 1 of Form 7 is the form for an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act,
(h) (Repealed)
(1A) An application for a notice to produce documents issued under Division 3 of Part 5 of the Act is to be made in the form of Part 1 of Form 8.
(2) An application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be made in the form of Part 1 of Form 9.
(3) An application for a detention warrant issued under Part 9 of the Act is to be made in the form of Part 1 of Form 10.
(4) For the Act, sections 76AC(2) and 76AD(2), an application for a digital evidence access order is to be in the form set out in Schedule 1, Form 33, Part 1.
(4A) For the Act, section 76AF(1)(f), an application for a digital evidence access order must include information about whether the applicant reasonably believes the specified person is under the age of 18 years.
(5) For the Act, sections 80C(2) and 80D(2), an application for a DECCD access order is to be in the form set out in Schedule 1, Form 34, Part 1.
(6) For the Act, section 80F(1)(d), an application for a DECCD access order must include information about whether the applicant reasonably believes the person in relation to whom it is proposed the DECCD access order will be issued is under the age of 18 years.
cl 4: Am 2019 No 10, Sch 1.16[1]–[3]; 2022 No 46, Sch 4.2[1]; 2022 No 47, Sch 2[1] [2]; 2023 (29), Sch 1[1] [2].
5 Determination of application for warrant, notice to produce or order—record by eligible issuing officer
5 Determination of application for warrant, notice to produce or order—record by eligible issuing officer
5 Determination of application for warrant, notice to produce or order—record by eligible issuing officer
(1) A record is to be made by or on behalf of an eligible issuing officer, in relation to each application for a warrant dealt with by the officer, in the following form—
(a) in the case of an application for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant)—Part 2 of Form 1,
(b) in the case of an application for a covert search warrant—Part 2 of Form 2,
(c) in the case of an application for a criminal organisation search warrant—Part 2 of Form 3,
(d) in the case of an application for a search warrant other than a Part 5 search warrant—Part 2 of Form 4,
(e) in the case of an application for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act—Part 2 of Form 5,
(f) in the case of an application for a crime scene warrant issued under Part 7 of the Act—Part 2 of Form 6,
(g) in the case of an application for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act—Part 2 of Form 7,
(h) in the case of an application for a notice to produce documents issued under Division 3 of Part 5 of the Act—Part 2 of Form 8,
(i) in the case of an application for a warrant issued under section 103 (Warrant for arrest of person unlawfully at large) of the Act—Part 2 of Form 9,
(j) in the case of an application for a detention warrant issued under Part 9 of the Act—Part 2 of Form 10.
(2) For the Act, section 238(3)(a), an eligible issuing officer must keep a record of each application for a digital evidence access order in the form set out in Schedule 1, Form 33, Part 2.
(3) For the Act, section 238(3)(c), a Magistrate must keep a record of each application for a DECCD access order in the form set out in Schedule 1, Form 34, Part 2.
cl 5: Am 2023 (29), Sch 1[3] [4].
6 Form of warrant, notice to produce or order
6 Form of warrant, notice to produce or order
6 Form of warrant, notice to produce or order
(1) For the purposes of section 66 of the Act—
(a) Form 11 is the form for a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 12 is the form for a covert search warrant, and
(c) Form 13 is the form for a criminal organisation search warrant, and
(d) Form 14 is the form for a search warrant other than a Part 5 search warrant, and
(e) Form 15 is the form for a warrant issued under section 83 (Entry by warrant where entry denied) of the Act, and
(f) Form 16 is the form for a crime scene warrant issued under Part 7 of the Act, and
(g) Form 17 is the form for a detention warrant issued under Part 9 of the Act, and
(h) Form 18 is the form for a warrant issued under Division 2 (Use of drug detection dogs) of Part 11 of the Act, and
(i) Form 19 is the form for a notice to produce documents issued under Division 3 of Part 5 of the Act.
(2) A warrant under section 103 (Warrant for arrest of person unlawfully at large) of the Act is to be issued in the form of Form 20.
(3) For the Act, section 76AK(1), a digital evidence access order is to be in the form set out in Schedule 1, Form 35.
(4) For the Act, section 80K(1), a DECCD access order is to be in the form set out in Schedule 1, Form 36.
cl 6: Am 2022 No 46, Sch 4.2[2]; 2022 No 47, Sch 2[3] [4]; 2023 (29), Sch 1[5] [6]; 2026 No 2, Sch 2.10[1] [2].
7 Form of occupier’s notice: section 67(2)(a)
7 Form of occupier’s notice: section 67(2)(a)
7 Form of occupier’s notice: section 67(2)(a)
For the purposes of section 67(2)(a) of the Act—
(a) Form 21 is the form for an occupier’s notice in relation to a Part 5 search warrant (other than a covert search warrant or a criminal organisation search warrant), and
(b) Form 22 is the form for an occupier’s notice in relation to a covert search warrant, and
(c) Form 24 is the form for an occupier’s notice in relation to a criminal organisation search warrant, and
(d) Form 25 is the form for an occupier’s notice in relation to a search warrant other than a Part 5 search warrant, and
(e) Form 26 is the form for an occupier’s notice in relation to a crime scene warrant issued under Part 7 of the Act.
Note.
An occupier’s notice is not required to be issued in connection with a search warrant issued under section 86 (Police may enter and search for firearms) of the Act.
8 Form of adjoining occupier’s notice: section 67B
8 Form of adjoining occupier’s notice: section 67B
8 Form of adjoining occupier’s notice: section 67B
An adjoining occupier’s notice under section 67B of the Act may be in or to the effect of Form 23.
9 Receipts for things seized
9 Receipts for things seized
9 Receipts for things seized
(1) A person who seizes a thing while executing a search warrant other than a covert search warrant, or a crime scene warrant issued under Part 7 of the Act, in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
(2) A person who seizes a dangerous article under section 85 or 87 of the Act while executing a warrant issued under section 83 of the Act in any premises must provide the occupier of the premises with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so.
(3) A copy of a receipt issued under this clause, in relation to a thing seized while executing a warrant, is to be attached to the report about the execution of the warrant that is referred to in clause 11(1).
10 Receipts for things seized under covert search warrant
10 Receipts for things seized under covert search warrant
10 Receipts for things seized under covert search warrant
(1) A person who seizes a thing while executing a covert search warrant must, at the time the occupier’s notice under section 67 of the Act is served (the time of notification) on the person who was the occupier of the subject premises at the time the warrant was executed, provide the occupier of the premises with a receipt acknowledging seizure of the thing.
(2) However, any such receipt is not required to be provided at the time of notification if an eligible issuing officer issues a certificate to the effect that—
(a) the receipt contains matter—
(i) that could disclose a person’s identity, and
(ii) that, if disclosed, is likely to jeopardise that or any other person’s safety, or
(b) the receipt contains matter that, if disclosed, may seriously compromise the investigation of any matter.
11 Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
11 Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
11 Form of report to eligible issuing officer on execution of warrant (other than covert search warrant) or giving of notice to produce: section 74
(1) A report to an eligible issuing officer under section 74 of the Act about the execution of a warrant (other than a covert search warrant) must be in or to the effect of Form 27 and must contain the particulars required to complete that Form.
(2) A report to an eligible issuing officer under section 74 of the Act about the giving of a notice to produce must be in or to the effect of Form 30 and must contain the particulars required to complete that Form.
12 Form of report to eligible issuing officer on execution of covert search warrant: section 74A
12 Form of report to eligible issuing officer on execution of covert search warrant: section 74A
12 Form of report to eligible issuing officer on execution of covert search warrant: section 74A
(1) A report to an eligible issuing officer under section 74A of the Act about the execution of a covert search warrant must be in or to the effect of Form 28 and must contain the particulars required to complete that Form.
(2) A report to an eligible issuing officer under section 74A of the Act about the return or retrieval of a thing under section 49A of the Act must be in or to the effect of Form 29 and must contain the particulars required to complete that Form.
13 Keeping and inspection of records
13 Keeping and inspection of records
13 Keeping and inspection of records
(1) The following documents must be kept in relation to each warrant or order to which this subclause applies that is issued—
(a) any written application for the warrant or order,
(b) any record relating to the warrant or order made by or on behalf of an authorised officer or eligible issuing officer (as the case requires),
(c) a copy of any occupier’s notice,
(d) a copy of any adjoining occupier’s notice,
(e) any report on the execution of the warrant (including a copy of any receipt provided to the occupier under clause 9 or 10) or order.
(2) Subclause (1) applies to the following warrants and orders—
(a) a search warrant (including a covert search warrant),
(b) a warrant under section 83 (Entry by warrant where entry denied) of the Act,
(c) a crime scene warrant under Part 7 of the Act,
(c1) a digital evidence access order,
(c2) a DECCD access order,
(d) a warrant under section 103 (Warrant for arrest of person unla
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