Protective Custody Act 2000

Reprint 1: The Act as at 2 June 2006


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Reprinted under the Reprints Act 1984 as

at 2 June 2006

Protective Custody Act 2000

CONTENTS

Part 1 — Preliminary

1.           Short title                                                                         2

2.           Commencement                                                               2

3.           Interpretation                                                                   2

4.           Relationship with other Acts                                              3

Part 2 — Seizing intoxicants from children

5.           Intoxicants may be seized from children using them            4

Part 3 — Apprehending and detaining intoxicated people

6.           Intoxicated people may be apprehended                             5

7.           Apprehended person may be detained, but for no longer than necessary    5

Part 4 — Dealing with apprehended people

8.           Apprehended person may be searched                               7

9.           Intoxicants and dangerous articles may be seized                7

10.         Apprehended person may be taken for medical examination 8

Part 5 — Releasing apprehended people

11.         Releasing apprehended children                                         9

12.         Releasing apprehended adults                                          10

13.         Release of adult into care of another person                     10

14.         Seized things to be returned                                             11

15.         Release procedure                                                          12

16.         Release to be unconditional                                             13

Part 6 — Judicial review

17.         Apprehended person may request review by JP                14

18.         Review of detention after 8 hours                                    14

19.         JP to review detention                                                     14

20.         Declaration by court as to state of intoxication                  15

21.         Apprehended person to be taken before a JP promptly      15

Part 7 — Miscellaneous

22.         Powers may be exercised without a warrant                    17

23.         Certain functions may be performed by people providing custodial services                  17

24.         Apprehended person not to be charged etc.                      17

25.         Escape of an apprehended person                                    18

26.         Approved places                                                             18

27.         Community officers                                                        18

28.         Protection from personal liability                                      19

29.         Regulations                                                                    20

Notes

             Compilation table                                                            21

Defined Terms

 

 

Crest

Reprinted under the Reprints Act 1984 as

at 2 June 2006

Protective Custody Act 2000

An Act to allow intoxicated people to be taken into protective custody and for related purposes.

Part 1 Preliminary

1.           Short title

             This Act may be cited as the Protective Custody Act 2000 1.

2.           Commencement

             This Act comes into operation on a day fixed by proclamation 1.

3.           Interpretation

             In this Act, unless the contrary intention appears —

              adult means a person who has reached 18 years of age;

              apprehended means apprehended under section 6(1);

              appropriate facility, in relation to an apprehended person, means an approved place to which the person may be taken in accordance with a notice published under section 26(1);

              approved place means a place approved under section 26(1);

              authorised officer means a community officer, a police officer, or a security officer as defined in the Public Transport Authority Act 2003 section 3;

              child means a person who is under 18 years of age;

              community officer means a person appointed under section 27;

              intoxicant means —

                      (a)    alcohol; or

                      (b)    a drug, or a volatile or other substance, capable of intoxicating a person;

              intoxicated means affected by, or apparently by, an intoxicant to such an extent that there is a significant impairment of judgment or behaviour;

              JP means Justice of the Peace;

              police officer means a person appointed under the Police Act 1892 to be —

                      (a)    a member of the Police Force;

                      (b)    a special constable; or

                      (c)    an aboriginal aide;

              public place includes —

                      (a)    a place to which the public are admitted on the payment of money or other consideration, the test of admittance being only the payment of money or other consideration;

                      (b)    a school, university or other place of education, other than a part of it to which neither students nor the public usually have access; and

                      (c)    a privately owned place —

                                   (i)    that is not occupied by, or with the authority of, the owner; or

                                  (ii)    to which the public has access with the express or implied approval of the owner, occupier or person who has the control or management of the place;

              volatile substance means a substance that produces a vapour at room temperature.

              [Section 3 amended by No. 31 of 2003 s. 206(2).]

4.           Relationship with other Acts

     (1)    This Act is in addition to and does not affect the operation of section 41 of the Children and Community Services Act 2004.

     (2)    This Act is in addition to and does not affect the operation of section 195 of the Mental Health Act 1996.

              [Section 4 amended by No. 34 of 2004 s. 251.]

Part 2 Seizing intoxicants from children

5.           Intoxicants may be seized from children using them

     (1)    An authorised officer may seize an intoxicant from a child who is in a public place if —

                 (a)    the child is consuming or inhaling the intoxicant; or

                 (b)    the officer reasonably suspects that the child is about to consume or inhale the intoxicant,

             and the officer reasonably suspects that the child is likely to become intoxicated if the intoxicant is not seized.

   (1a)    The power given by subsection (1) to an authorised officer who is a security officer as defined in the Public Transport Authority Act 2003 section 3 applies only if the public place is Authority property as defined in that Act.

     (2)    The intoxicant may be seized even if the child is not intoxicated.

     (3)    The officer may destroy the intoxicant.

     (4)    This section does not prevent an intoxicant that has been seized from being seized under another written law or under a legal process.

              [Section 5 amended by No. 31 of 2003 s. 206(3).]

Part 3 Apprehending and detaining intoxicated people

6.           Intoxicated people may be apprehended

     (1)    If an authorised officer reasonably suspects that a person who is in a public place or who is trespassing on private property —

                 (a)    is intoxicated; and

                 (b)    needs to be apprehended —

                              (i)    to protect the health or safety of the person or any other person; or

                             (ii)    to prevent the person causing serious damage to property,

             the officer may apprehend the person.

   (1a)    The power given by subsection (1) to an authorised officer who is a security officer as defined in the Public Transport Authority Act 2003 section 3 applies only if the person to be apprehended is in or on Authority property as defined in that Act.

     (2)    The authorised officer may use reasonable force and assistance to apprehend the person.

     (3)    An authorised officer who apprehends a person must record the date and time when the person is apprehended.

              [Section 6 amended by No. 31 of 2003 s. 206(4).]

7.           Apprehended person may be detained, but for no longer than necessary

     (1)    An authorised officer may detain an apprehended person but any detention of the person must be in accordance with subsections (2), (3) and (4).

     (2)    An authorised officer must not detain an apprehended person who is not, or who is no longer, intoxicated.

     (3)    An authorised officer must not detain an apprehended person who is intoxicated for any longer than is necessary —

                 (a)    to protect the health or safety of the person or any other person; or

                 (b)    to prevent the person causing serious damage to property.

     (4)    If an apprehended person is detained in a police station or lock‑up, then, despite subsections (2) and (3), a police officer may decide not to release the person between the hours of midnight and 7.30 a.m. if release during those hours is not in the best interests of the person.

     (5)    If a police officer makes a decision under subsection (4), he or she must record the reasons for the decision.

     (6)    The power to detain an apprehended person does not affect the duty under section 11(1) and 12(1) to release a person as soon as practicable after he or she is apprehended.

Part 4 Dealing with apprehended people

8.           Apprehended person may be searched

     (1)    An authorised officer may search an apprehended person, and any thing found on or with the person, for any thing that can be seized under section 9.

     (2)    The search of an apprehended person must be done by a person of the same sex as the apprehended person.

     (3)    An authorised officer may use reasonable force to do the search.

     (4)    If it is reasonably necessary in order to do the search, an authorised officer may authorise another person to do the search or to assist in doing the search.

     (5)    A person so authorised —

                 (a)    may do the search or assist in doing the search, as authorised; and

                 (b)    must obey any lawful and reasonable direction of the authorised officer.

9.           Intoxicants and dangerous articles may be seized

     (1)    An authorised officer may seize from an apprehended person —

                 (a)    any intoxicant;

                 (b)    any article (including any drug prescribed for the person) that could endanger the health or safety of the person or any other person.

     (2)    If alcohol or any substance containing alcohol, is seized from an apprehended person, an authorised officer may destroy it.

     (3)    If an intoxicant other than alcohol is seized from an apprehended person, an authorised officer may destroy it if the officer reasonably suspects that if it were returned to the person, the person is likely to use it to become intoxicated.

     (4)    Anything seized under subsection (1) that is not destroyed under subsection (2) or (3), must be dealt with under section 14.

     (5)    An authorised officer who seizes any thing under this section must record the fact and must record how the thing is dealt with.

10.         Apprehended person may be taken for medical examination

     (1)    If an apprehended person needs a medical examination, an authorised officer, as soon as practicable, is to arrange for the person to be medically examined by a suitably qualified person.

     (2)    The authorised officer is to continue detaining the apprehended person subject to section 7 unless —

                 (a)    under section 29 of the Mental Health Act 1996 the apprehended person is referred for examination by a psychiatrist; or

                 (b)    the person who medically examines the apprehended person directs that the person be left in his or her charge.

     (3)    If an authorised officer arranges for a person to be medically examined the officer must record the fact, the name of the person conducting the examination, and the date and time when the person was examined.

Part 5 Releasing apprehended people

11.         Releasing apprehended children

     (1)    As soon as practicable after a child is apprehended, an authorised officer must release the child —

                 (a)    into the care of a person who is the child’s parent or legal guardian;

                 (b)    into the care of a person —

                              (i)    whom the officer reasonably believes is a responsible person capable of taking care of the child; and

                             (ii)    who consents to taking charge of the child;

                         or

                 (c)    if the officer is unable to comply with paragraph (a) or (b), into the care of the person in charge of an appropriate facility.

     (2)    In deciding which option in subsection (1) to use an authorised officer must give paramount consideration to the safety and welfare of the child.

     (3)    Subsection (1) does not prevent an authorised officer from taking action under section 10 and, if directed to do so, from releasing a child into the care of another person under that section.

     (4)    If a child is apprehended by a community officer and it is not reasonably practicable to comply with subsection (1), a community officer may deliver the child to a police officer to be detained in accordance with section 7(1).

     (5)    Any detention under section 7(1) of a child by a police officer must not be in a police station or lock‑up unless —

                 (a)    in the time needed to comply with subsection (1) exceptional circumstances arise that justify detaining the child in a police station or lock‑up; or

                 (b)    exceptional circumstances make it impracticable to comply with subsection (1).

              [Section 11 amended by No. 34 of 2004 s. 251.]

12.         Releasing apprehended adults

     (1)    As soon as practicable after an adult is apprehended, an authorised officer must release the adult —

                 (a)    into the care of another person under section 13; or

                 (b)    into the care of the person in charge of an appropriate facility.

     (2)    Subsection (1) does not prevent an authorised officer from taking action under section 10 and, if directed to do so, from releasing an adult into the care of another person under that section.

     (3)    If an adult is apprehended by a community officer and it is not reasonably practicable to comply with subsection (1), a community officer may deliver the adult to a police officer to be detained in accordance with section 7(1).

     (4)    Any detention under section 7(1) of an adult by a police officer must not be in a police station or lock‑up unless —

                 (a)    in the time needed to comply with subsection (1) exceptional circumstances arise that justify detaining the adult in a police station or lock‑up; or

                 (b)    it is impracticable to comply with subsection (1) by taking reasonable measures.

13.         Release of adult into care of another person

     (1)    An authorised officer may at any time release an apprehended adult into the care of another person who applies for the adult’s release if —

                 (a)    the adult does not object to being released into the care of the applicant; and

                 (b)    the officer reasonably believes that the applicant is capable of taking care of the adult.

     (2)    If an officer refuses to release an adult under subsection (1) because the officer does not believe that the applicant is capable of taking care of the adult, the applicant may apply to a JP to review the officer’s decision.

     (3)    If an application is made to a JP and if it is reasonably practicable to do so —

                 (a)    an authorised officer, subject to section 21, must take the adult, or arrange for the adult to be taken, before the JP; and

                 (b)    the applicant and the officer are to appear before the JP,

             unless the adult is released before that can be done.

     (4)    On an application the JP may —

                 (a)    if the adult does not object, direct that the adult be released into the care of the applicant;

                 (b)    if the JP is satisfied that the applicant is not capable of taking care of the adult, direct that the adult continue to be detained in accordance with section 7; or

                 (c)    give any direction the JP thinks fit for the health and safety of the adult.

14.         Seized things to be returned

     (1)    A thing that is seized from an apprehended person under section 9 and not destroyed under that section must be kept in safe keeping and —

                 (a)    if the apprehended person is released into the care of another person, given to that other person at that time on behalf of the apprehended person; or

                 (b)    in any other case, returned to the apprehended person when he or she is released.

     (2)    Subsection (1) does not prevent the thing that has been seized from being seized under another written law or under a legal process.

15.         Release procedure

     (1)    When an apprehended person is released by an authorised officer —

                 (a)    the apprehended person must acknowledge in writing —

                              (i)    his or her release on the date and at the time recorded; and

                             (ii)    receipt of any thing returned to the person under section 14;

                 (b)    if the apprehended person is released into the care of another person, that other person must acknowledge in writing —

                              (i)    the release of the apprehended person on the date and at the time recorded; and

                             (ii)    receipt of any thing given to that other person under section 14;

                         or

                 (c)    if the apprehended person refuses or fails to comply with paragraph (a) or that other person refuses or fails to comply with paragraph (b), the authorised officer who releases the person must record —

                              (i)    the fact of the refusal or failure;

                             (ii)    the date and time when the person was released; and

                            (iii)    any thing given to that other person, or returned to the apprehended person, under section 14.

     (2)    Subsection (1) applies even if the apprehended person is released pursuant to an order made under section 19.

     (3)    An apprehended person is to be taken to have been released on the date and at the time recorded under this section, in the absence of evidence to the contrary.

16.         Release to be unconditional

             An apprehended person must not be required to enter into a bail undertaking or a recognizance of any kind before being released under this Act.

Part 6 Judicial review

17.         Apprehended person may request review by JP

     (1)    An apprehended person who has not been released may at any time request an authorised officer to take him or her before a JP so that the person can apply to the JP to be released.

     (2)    On such a request being made, the officer, subject to section 21, must take the apprehended person, or arrange for the person to be taken, before a JP, unless the person is released before that can be done.

18.         Review of detention after 8  hours

             If 8 hours after a person is apprehended an authorised officer who is detaining the person reasonably believes it is still not possible to comply with section 7, the officer, subject to section 21, must take the person, or arrange for the person to be taken, before a JP, unless the person is released before that can be done.

19.         JP to review detention

     (1)    When an apprehended person appears before a JP under section 17 or 18, the JP —

                 (a)    if satisfied that the person should be released under section 7 — must direct that the person be released; or

                 (b)    in any other case — may give the officer who has custody of the person such directions to ensure the health and safety of the person as the JP thinks fit, including —

                              (i)    if the apprehended person does not object, a direction that the person be released into the care of a person capable of taking care of the apprehended person;

                             (ii)    a direction that the person be released into the care of the person in charge of an appropriate facility;

                            (iii)    a direction that the person continue to be detained in accordance with section 7.

     (2)    If a JP gives a direction under subsection (1)(b)(iii), the JP may give a direction as to when another request under section 17 may be made.

     (3)    A direction that is given under this section must be complied with by any officer who is detaining the apprehended person.

20.         Declaration by court as to state of intoxication

     (1)    A person who has been apprehended may apply to the Magistrates Court for a declaration that at the time he or she was apprehended, he or she was not intoxicated.

     (2)    The application must be made within 30 days after the date when the person was released.

     (3)    In proceedings under this section the officer who apprehended the applicant and any officer who detained the applicant are entitled to appear.

     (4)    If the Magistrates Court is satisfied that the applicant was not intoxicated at the time he or she was apprehended it is to make a declaration accordingly.

     (5)    A declaration made under subsection (4) does not establish that the apprehension was unlawful.

              [Section 20 amended by No. 59 of 2004 s. 141.]

21.         Apprehended person to be taken before a JP promptly

     (1)    An authorised officer who under section 13(3), 17(2) or 18 is required to take an apprehended person, or arrange for the person to be taken, before a JP must do so as soon as practicable and must not delay doing so except, in the case of a police officer, for the minimum time necessary to meet the reasonable organizational requirements of the police station concerned.

     (2)    The reasons for any delay in taking a person, or arranging for a person to be taken, before a JP must be recorded by the officer.

Part 7 Miscellaneous

22.         Powers may be exercised without a warrant

             An authorised officer does not need a warrant to exercise the powers conferred on the officer by this Act.

23.         Certain functions may be performed by people providing custodial services

             If under section 80 or 81 of the Court Security and Custodial Services Act 1999 an authorised person (as defined in section 79 of that Act) takes charge of or moves a person who is detained under this Act, the functions conferred on an authorised officer by the sections in the Table to this section may be performed in respect of the detained person by the authorised person.

Table

s. 7

s. 11(1)

s. 17

s. 8

s. 12(1)

s. 18

s. 9

s. 13

s. 19(3)

s. 10

s. 14

s. 21

 

s. 15

 

24.         Apprehended person not to be charged etc.

     (1)    An apprehended person who has not been released —

                 (a)    is not to be questioned in relation to any offence that he or she is suspected of committing;

                 (b)    is not to be subjected to any procedure the purpose of which is to obtain information that can be used for forensic purposes; and

                 (c)    is not to be charged with an offence.

     (2)    If subsection (1)(a) is contravened, any answer that the person gives is not admissible in evidence against the person in any proceedings for an offence.

     (3)    If subsection (1)(b) is contravened —

                 (a)    the Commissioner of Police must ensure that any information obtained is destroyed; and

                 (b)    any information obtained is not admissible in evidence against the person in any proceedings for an offence.

25.         Escape of an apprehended person

             For the purposes of any law relating to escape from lawful custody, an apprehended person who has not been released is not to be taken as being in lawful custody.

26.         Approved places

     (1)    The Minister, by notice published in the Gazette —

                 (a)    may approve a place as a place to which an apprehended person may be taken for the purposes of this Act; and

                 (b)    in relation to the place, may specify that only certain apprehended people or certain classes of apprehended people may be taken to the place.

     (2)    The Minister, by notice published in the Gazette, may amend or cancel a notice made under subsection (1).

     (3)    Nothing in this Act permits the detention of an adult or a child in an approved place.

27.         Community officers

     (1)    The Commissioner of Police may appoint a person to be a community officer.

     (2)    The appointment must be in writing and for a term decided by the Commissioner.

     (3)    The appointment may state that the person appointed may exercise the powers of a community officer under this Act only in a place, or only in circumstances, specified in the appointment.

     (4)    The Commissioner is to issue a community officer with a certificate of appointment.

     (5)    The Commissioner, at any time, may amend or cancel such an appointment.

     (6)    The Commissioner, in writing, may delegate the functions in this section other than this power of delegation.

     (7)    A person who is appointed to be a community officer is not by virtue of the appointment a public service officer under the Public Sector Management Act 1994.

     (8)    The performance of any function under this Act by a community officer is to be voluntary and for no pay.

     (9)    For the purposes of the Workers’ Compensation and Injury Management Act 1981 —

                 (a)    a community officer, while performing functions under this Act, is to be regarded as an employee of the Crown; and

                 (b)    his or her weekly earnings are to be taken to be the amount that the Minister considers is reasonable in the circumstances.

              [Section 27 amended by No. 42 of 2004 s. 174.]

28.         Protection from personal liability

     (1)    An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.

     (2)    The protection given by subsection (1) applies even though the thing done as described in that subsection may have been capable of being done whether or not this Act had been enacted.

     (3)    Despite subsection (1), the Crown is not relieved from any liability that it might have for another person having done anything as described in that subsection.

     (4)    In this section, a reference to the doing of anything includes a reference to an omission to do anything.

     (5)    This section does not affect the operation of sections 137 and 138 of the Police Act 1892.

29.         Regulations

     (1)    The Governor may make regulations prescribing all matters that are necessary or convenient to be prescribed for giving effect to the purposes of this Act.

     (2)    Without limiting subsection (1), regulations may provide for the manner and form of recording any information that is required to be recorded under this Act.

[30.       Omitted under the Reprints Act 1984 s. 7(4)(e).]

[Schedule 1 omitted under the Reprints Act 1984 s. 7(4)(e).]

 

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Notes

1        This reprint is a compilation as at 2 June 2006 of the Protective Custody Act 2000 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.

Compilation table

Short title

Number and year

Assent

Commencement

Protective Custody Act 2000

50 of 2000

28 Nov 2000

1 Jan 2001 (see s. 2 and Gazette 29 Dec 2000 p. 7903)

Public Transport Authority Act 2003 s. 206

31 of 2003

26 May 2003

1 Jul 2003 (see s. 2(1) and Gazette 27 Jun 2003 p. 2384)

Children and Community Services Act 2004 s. 251

34 of 2004

20 Oct 2004

1 Mar 2006 (see s. 2 and Gazette 14 Feb 2006 p. 695)

Workers’ Compensation Reform Act 2004 s. 174

42 of 2004

9 Nov 2004

4 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7131)

Courts Legislation Amendment and Repeal Act 2004 s. 141 

59 of 2004

23 Nov 2004

1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)

Reprint 1: The Protective Custody Act 2000 as at 2 Jun 2006 (includes amendments listed above)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Defined Terms

 

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined Term                                                                                                Provision(s)

adult....................................................................................................................................3

apprehended......................................................................................................................3

appropriate facility............................................................................................................3

approved place..................................................................................................................3

authorised officer..............................................................................................................3

child....................................................................................................................................3

community officer.............................................................................................................3

intoxicant............................................................................................................................3

intoxicated..........................................................................................................................3

JP.........................................................................................................................................3

police officer......................................................................................................................3

public place........................................................................................................................3

volatile substance.............................................................................................................3

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By Authority: JOHN A. STRIJK, Government Printer