47Review of Act

47 Review of Act The Police Minister must, within 5 years after the commencement of the Terrorism (Emergency Powers) Amendment Act 2006: (a) review the operation of this Act; and (b) table a copy of the report of the review in the Legislative Assembly. Terrorism (Emergency Powers) Act 2003 89 section 40 1. Definitions In this Schedule: electronic metal detection device means an electronic device that is capable of detecting the presence of metallic objects. frisk search means: (a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing; and (b) an examination of a thing worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic metal detection device over or in close proximity to the thing. ordinary search means a search of a person, or of things in the possession of a person, that may include: (a) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and (b) an examination of those things. strip search means a search of a person, or of things in the possession of a person, that may include: (a) requiring the person to remove all of his or her clothes; and (b) an examination of the person's body (but not of the person's body cavities) and of those clothes. 2. Frisk searches and ordinary searches (1) A police officer who is authorised to search a person may carry out a frisk search or an ordinary search of the person for any purpose for which the search may be conducted. Terrorism (Emergency Powers) Act 2003 90 (2) In conducting a frisk search, a police officer may, if the police officer has asked the person to remove a coat or jacket, treat the person's outer clothing as being the person's outer clothing after the coat or jacket has been removed. 3. Strip searches A police officer who is authorised to search a person may conduct a strip search of the person: (a) if the person is suspected of being the target of an authorisation; and (b) if the police officer suspects on reasonable grounds that it is necessary to conduct a strip search of the person for the purposes of the search and that the seriousness and urgency of the circumstances require the strip search to be carried out. 4. Preservation of privacy and dignity during search (1) A police officer who searches a person must, as far as is reasonably practicable in the circumstances, comply with this clause. (2) The police officer must inform the person to be searched whether the person will be required to remove clothing during the search and why it is necessary to remove the clothing. (3) The police officer must ask for the person's co-operation. (4) The police officer must conduct the search: (a) in a way that provides reasonable privacy for the person searched; and (b) as quickly as is reasonably practicable. (5) The police officer must conduct the least invasive kind of search practicable in the circumstances. (6) The police officer must not search: (a) the genital area of the person searched; or (b) the breasts of a female or of a transgender person who identifies as a female, unless the police officer suspects on reasonable grounds that it is necessary to do so for the purposes of the search. Terrorism (Emergency Powers) Act 2003 91 (7) Only a police officer of the same sex as the person to be searched or a person of the same sex under the direction of the police officer may conduct a search of the person. (8) A search of a person is not to be carried out while the person is being questioned. (9) If questioning has not been completed before a search is carried out, questioning is to be suspended while the search is carried out. (10) A person is to be allowed to dress as soon as a search is finished. (11) If clothing is seized because of the search, the police officer must ensure the person searched is left with or given reasonably appropriate clothing. (12) In this clause: questioning of a person includes carrying out an investigation in which the person participates. transgender person means a person: (a) who identifies as a member of the opposite sex, by living, or seeking to live, as a member of the opposite sex; (b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, whether or not the person is a recognised transgender person, and includes a reference to a person who is thought of as a transgender person, whether or not the person is, or was, in fact a transgender person. 5. Rules for conduct of strip searches (1) A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances: (a) conduct the strip search in a private area; (b) ensure that the strip search is not conducted in the presence or view of a person who is of the opposite sex to the person being searched; and Terrorism (Emergency Powers) Act 2003 92 (c) except as provided by this clause – ensure that the strip search is not conducted in the presence or view of a person whose presence is not necessary for the purposes of the search. (2) A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present. (3) A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, is, unless it is not reasonably practicable in the circumstances, to be conducted in the presence of: (a) a parent or guardian of the person being searched; or (b) if it is not acceptable to the child or person to comply with paragraph (a) – in the presence of another person (other than a police officer) who is capable of representing the interests of the child or person and who is, or appears to be, acceptable to the child or person. (4) A strip search is not to involve a search of a person's body cavities or an examination of the body by touch. (5) A strip search is not to involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (6) A strip search is not to involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search. (7) A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if the person being searched has no objection to that person being present. (8) This clause is in addition to the other requirements of this Act relating to searches. (9) In this clause: impaired intellectual functioning means: (a) total or partial loss of a person's mental functions; (b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or Terrorism (Emergency Powers) Act 2003 93 (c) a disorder, illness or disease that: (i) affects a person's thought processes, perceptions of reality, emotions or judgment; or (ii) results in disturbed behaviour. 6. No strip searches of children under 10 years of age A strip search is not to be conducted on a person who is under the age of 10 years. Terrorism (Emergency Powers) Act 2003 94 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Terrorism (Emergency Powers) Act 2003 (Act No. 22, 2003) Assent date 29 May 2003 Commenced 2 July 2003 (Gaz G26, 2 July 2003, p 2) Police Administration Amendment (Powers and Liability) Act 2005 (Act No. 11, 2005) Assent date 17 March 2005 Commenced 20 April 2005 (Gaz G16, 20 April 2005, p 5) Statute Law Revision Act 2005 (Act No. 44, 2005) Assent date 14 December 2005 Commenced 14 December 2005 Terrorism (Emergency Powers) Amendment Act 2006 (Act No. 17, 2006) Assent date 18 May 2006 Commenced 28 June 2006 (Gaz G26, 28 June 2006, p 3) Statute Law Revision Act 2007 (Act No. 4, 2007) Assent date 8 March 2007 Commenced 8 March 2007 Legal Profession (Consequential Amendments) Act 2007 (Act No. 7, 2007) Assent date 17 May 2007 Commenced s 10: 1 July 2007; rem: 17 May 2007 (s 2 and Gaz G26, 27 June 2007, p 3) Statute Law Revision Act 2009 (Act No. 25, 2009) Assent date 1 September 2009 Commenced 16 September 2009 (Gaz G37, 16 September 2009, p 3) Terrorism (Emergency Powers) Act 2003 95 Oaths, Affidavits and Declarations (Consequential Amendments) Act 2010 (Act No. 40, 2010) Assent date 18 November 2010 Commenced 1 March 2011 (s 2, s 2 Oaths, Affidavits and Declarations Act 2010 (Act No. 39, 2010) and Gaz G7, 16 February 2011, p 4) Public and Environmental Health Act 2011 (Act No. 7, 2011) Assent date 16 March 2011 Commenced 1 July 2011 (Gaz S28, 3 June 2011) Penalties Amendment (Chief Minister's and Other Portfolios) Act 2011 (Act No. 27, 2011) Assent date 31 August 2011 Commenced 21 September 2011 (Gaz G38, 21 September 2011, p 5) Evidence (National Uniform Legislation) (Consequential Amendments) Act 2012 (Act No. 23, 2012) Assent date 21 November 2012 Commenced 1 January 2013 (Gaz G51, 19 December 2012, p 4) Advance Personal Planning (Consequential Amendments) Act 2013 (Act No. 36, 2013) Assent date 19 December 2013 Commenced pt 3: 5 February 2014 (Gaz G5, 5 February 2014, p 2); rem: 17 March 2014 (Gaz S14, 17 March 2014) Correctional Services (Related and Consequential Amendments) Act 2014 (Act No. 27, 2014) Assent date 4 September 2014 Commenced 9 September 2014 (Gaz S80, 9 September 2014, p 2) Statute Law Revision Act 2014 (Act No. 38, 2014) Assent date 13 November 2014 Commenced 13 November 2014 Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Terrorism (Emergency Powers) Amendment Act 2016 (Act No. 26, 2016) Assent date 29 June 2016 Commenced 29 June 2016 Youth Justice Legislation Amendment Act 2017 (Act No. 19, 2017) Assent date 30 October 2017 Commenced 5 January 2018 (Gaz G51, 20 December 2017, p 4) 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 4, 21A, 21ZB, 21ZC, 21ZL, 33 and 35. Terrorism (Emergency Powers) Act 2003 96 4 LIST OF AMENDMENTS lt sub No. 17, 2006, s 4 s 4 amd No. 17, 2006, s 5; No. 7, 2011, s 140; No. 27, 2014, s 57; No. 19, 2017, s 39 s 4A ins No. 17, 2006, s 6 s 5 amd No. 17, 2006, s 7 s 6 sub No. 17, 2006, s 8 s 7 amd No. 17, 2006, s 9 s 9 amd No. 17, 2006, s 10 s 12A ins No. 17, 2006, s 11 s 16 amd No. 27, 2011, s 4 s 19 amd No. 17, 2006, s 12 s 20 amd No. 17, 2006, s 13 pt 2A hdg ins No. 17, 2006, s 14 div 1 hdg ins No. 17, 2006, s 14 s 20A ins No. 17, 2006, s 14 div 2 hdg ins No. 17, 2006, s 14 ss 20B – 20J ins No. 17, 2006, s 14 div 3 hdg ins No. 17, 2006, s 14 s 20K ins No. 17, 2006, s 14 s 20L ins No. 17, 2006, s 14 ss 20M – 20N ins No. 17, 2006, s 14 div 4 hdg ins No. 17, 2006, s 14 ss 20P – 20R ins No. 17, 2006, s 14 ss 20S – 20T ins No. 17, 2006, s 14 pt 2B hdg ins No. 17, 2006, s 14 div 1 hdg ins No. 17, 2006, s 14 s 21 ins No. 17, 2006, s 14 s 21A ins No. 17, 2006, s 14 amd No. 7, 2007, s 16; No. 8, 2016, s 45 s 21B ins No. 17, 2006, s 14 s 21C ins No. 17, 2006, s 14 s 21D ins No. 17, 2006, s 14 div 2 hdg ins No. 17, 2006, s 14 ss 21E – 21HT ins No. 17, 2006, s 14 s 21J ins No. 17, 2006, s 14 amd No. 27, 2014, s 57; No. 19, 2017, s 39 ss 21K – 21R ins No. 17, 2006, s 14 ss 21S – 21T ins No. 17, 2006, s 14 amd No. 27, 2014, s 57; No. 19, 2017, s 39 s 21U ins No. 17, 2006, s 14 div 3 hdg ins No. 17, 2006, s 14 ss 21V – 21Y ins No. 17, 2006, s 14 s 21Z ins No. 17, 2006, s 14 Terrorism (Emergency Powers) Act 2003 97 ss 21ZA – 21ZB ins No. 17, 2006, s 14 s 21ZC ins No. 17, 2006, s 14 amd No. 4, 2007, s 7; No. 27, 2014, s 57 div 4 hdg ins No. 17, 2006, s 14 s 21ZD ins No. 17, 2006, s 14 ss 21ZE – 21ZF ins No. 17, 2006, s 14 div 5 hdg ins No. 17, 2006, s 14 s 21ZG ins No. 17, 2006, s 14 s 21ZH ins No. 17, 2006, s 14 s 21ZI ins No. 17, 2006, s 14 amd No. 38, 2014, s 2 ss 21ZJ – 21ZK ins No. 17, 2006, s 14 s 21ZL ins No. 17, 2006, s 14 amd No. 27, 2011, s 4; No. 36, 2013, s 139 ss 21ZM – 21ZN ins No. 17, 2006, s 14 s 21ZO – 21ZP ins No. 17, 2006, s 14 s 21ZQ ins No. 17, 2006, s 14 amd No. 27, 2011, s 4; No. 8, 2016, s 45 s 21ZR ins No. 17, 2006, s 14 div 6 hdg ins No. 17, 2006, s 14 s 21ZS ins No. 17, 2006, s 14 amd No. 4, 2007, s 7; No. 27, 2014, s 57 s 21ZT ins No. 17, 2006, s 14 amd No. 23, 2012, s 32 ss 21ZU – 21ZV ins No. 17, 2006, s 14 amd No. 26, 2016, s 3 s 21 renum No. 17, 2006, s 15 s 22 sub No. 17, 2006, s 16 s 22A ins No. 17, 2006, s 16 pt 3A hdg ins No. 17, 2006, s 17 div 1 hdg ins No. 17, 2006, s 17 s 27A ins No. 17, 2006, s 17 div 2 hdg ins No. 17, 2006, s 17 ss 27B – 27C ins No. 17, 2006, s 17 div 3 hdg ins No. 17, 2006, s 17 ss 27D – 27K ins No. 17, 2006, s 17 s 27L ins No. 17, 2006, s 17 div 4 hdg ins No. 17, 2006, s 17 Terrorism (Emergency Powers) Act 2003 98 subdiv 1 hdg ins No. 17, 2006, s 17 s 27M ins No. 17, 2006, s 17 subdiv 2 hdg ins No. 17, 2006, s 17 ss 27N – 27P ins No. 17, 2006, s 17 s 27Q ins No. 17, 2006, s 17 s 27R ins No. 17, 2006, s 17 subdiv 3 hdg ins No. 17, 2006, s 17 s 27S ins No. 17, 2006, s 17 s 27T ins No. 17, 2006, s 17 subdiv 4 hdg ins No. 17, 2006, s 17 s 27U ins No. 17, 2006, s 17 amd No. 25, 2009, s 9; No. 8, 2016, s 45 s 27V ins No. 17, 2006, s 17 div 5 hdg ins No. 17, 2006, s 17 s 27W ins No. 17, 2006, s 17 s 27X ins No. 17, 2006, s 17 amd No. 40, 2010, s 118; No. 27, 2011, s 4; No. 8, 2016, s 45 s 27Y ins No. 17, 2006, s 17 s 27Z ins No. 17, 2006, s 17 ss 30 – 31 amd No. 27, 2011, s 4 s 35 amd No. 11, 2005, s 26; No. 44, 2005, s 35 ss 36 – 38 amd No. 27, 2011, s 4 s 45 amd No. 17, 2006, s 18 s 46 amd No. 27, 2011, s 4 s 47 sub No. 17, 2006, s 19