Crimes Amendment Act 1991

No. 140 of 1991

An Act to amend the Crimes Act 1914

[Assented to 27 September 1991]

[Date of commencement 25 October 1991]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Crimes Amendment Act 1991.

(2) In this Act, “Principal Act” means the Crimes Act 1914¹.

Interpretation

2. Section 3 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘conveyance’ includes an aircraft, vehicle or vessel;

‘thing relevant to an indictable offence’ means:

(a) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; or

(b)    anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

(c)     anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence;

‘thing relevant to a summary offence’ means:

(a)     anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; or

(b)    anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

(c)     anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.”.

3. After section 10 of the Principal Act the following sections are inserted:

Searches without warrant in emergency situations

“10A. (1) This section applies when a constable suspects, on reasonable grounds, that:

(a)    a thing relevant to an indictable offence is in or on a conveyance; and

(b)   it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and

(c)    it is necessary to exercise the power without the authority of a search warrant because the circumstances are so serious and urgent.

“(2) The constable may:

(a)     stop and detain the conveyance; and

(b)    search the conveyance, and any receptacle in or on the conveyance, for the thing; and

(c)     seize the thing if he or she finds it there.

“(3) If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that thing if he or she suspects, on reasonable grounds, that:

(a)     it is necessary to seize it in order to prevent its concealment, loss or destruction; and

(b)    it is necessary to seize the thing without the authority of a

search warrant because the circumstances are so serious and urgent.

“(4) The constable must exercise his or her powers subject to section 10B.

How a constable exercises a power under section 10A

“10B. When a constable exercises a power under section 10A in relation to a conveyance, he or she:

(a)     may use such assistance as is necessary; and

(b)     must search the conveyance in a public place or in some other place to which members of the public have ready access; and

(c)     must not detain the conveyance for longer than is reasonable and necessary to search it and any receptacle found in or on the conveyance; and

(d)     may use such force as is necessary, but must not damage the conveyance or any receptacle found in or on the conveyance by forcing open a part of the conveyance or receptacle unless the person apparently in charge of the conveyance (if any) has been given a reasonable opportunity to open that part.

Territory law not to be limited or excluded

“10C. Sections 10A and 10B do not limit or exclude the operation of a law of a Territory relating to:

(a)     the stopping, detaining or searching of conveyances in connection with offences against any law of the Territory; or

(b)     the seizure of things in connection with offences against any law of the Territory.

Retention of things which are seized

“10D.(1) When a constable seizes a thing under section 10A, the constable may retain it until the end of 60 days after its seizure.

“(2) At the end of the 60 days, the constable must take reasonable steps to return the thing to the person from whom it was seized or (if that person is not entitled to possess it) the owner, unless:

(a)    proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b)    the constable may retain the thing by virtue of an order under section 10E; or

(c)    the constable is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy or dispose of the thing.

Court of summary jurisdiction may permit a thing to be retained

“10e. (1) Where:

(a)     before the end of 60 days after a thing is seized under section 10A by a constable; or

(b)    before the end of a period previously specified in an order of a court under this section;

proceedings in respect of which the thing may afford evidence have not commenced, the constable may apply to a court of summary jurisdiction for an order that he or she may retain the thing for a further period.

“(2) Where the court is satisfied that it is necessary for the constable to continue to retain the thing:

(a)     for the purposes of an investigation as to whether an offence has been committed; or

(b)    to enable evidence of an offence to be secured for the purposes of a prosecution;

the court may order that the constable may retain the thing for a period specified in the order.

“(3) Before the court hears the application, it may require notice of the application to be given to such persons as the court thinks fit.”.

NOTE

1. No. 12, 1914, as amended. For previous amendments, see No. 6, 1915; No. 54, 1920; No. 9, 1926; No. 13, 1928; No. 5, 1937; No. 77, 1946; No. 80, 1950; No. 10, 1955; No. 11, 1959; No. 84, 1960; No. 93, 1966; Nos. 33 and 216, 1973; No. 56, 1975; No. 37, 1976; Nos. 19 and 155, 1979; No. 70, 1980; No. 122, 1981; Nos. 67, 80 and 153, 1982; Nos. 91, 114 and 136, 1983; Nos. 10, 63 and 165, 1984; No. 193, 1985; Nos. 76, 102 and 168, 1986; No. 73, 1987; No. 120, 1987; Nos. 63 and 108, 1989; Nos. 4, 11 and 75, 1990; and Nos. 28, 59, 99 and 120, 1991.

[Minister’s second reading speech made in—

Senate on 14 August 1991

House of Representatives on 22 August 1991]