Law Enforcement (Powers and Responsibilities) Regulation 2016

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.

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)).

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.

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.

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.

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.

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.

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.