Criminal Investigation (Consequential Provisions) Act 2006

Western Australia

CONTENTS

Part 1 — Preliminary

1. Short title 2

2. Commencement 2

Part 2 — Bail Act 1982 amended

3. The Act amended by this Part 3

4. Section 6 replaced and consequential amendments 3

6. Duty on arresting officer and others to consider bail 3

5. Section 6A inserted 5

6A. Whether custody justified to be considered in certain cases 5

6. Section 12 amended 7

7. Sections 18 and 19 repealed and consequential amendment to section 27 7

Part 3 — Corruption and Crime Commission Act 2003 amended

8. The Act amended in this Part 8

9. Section 56 repealed 8

10. Section 101 amended 8

11. Section 184 amended 8

12. Section 223A inserted 9

223A. Disposal of things seized under this Act 10

Part 4 — Court Security and Custodial Services Act 1999 amended

13. The Act amended in this Part 11

14. Section 3 amended 11

15. Schedule 2 amended 11

7. Power to take identifying particulars of persons in custody 11

Part 5 — The Criminal Code amended

Division 1 — Amendments

16. The Criminal Code amended in this Part 13

17. Section 70A amended 13

18. Section 74A amended 13

19. Section 80J inserted 13

80J. Forfeiture of unlawful material 13

20. Section 231 amended 14

21. Section 232 repealed 14

22. Sections 236 and 237 repealed 14

23. Section 243 replaced 14

243. Prevention of violence by mentally impaired person 14

24. Section 473 amended 15

25. Section 557B repealed 15

26. Chapters LX and LXA repealed 15

27. Chapter LXXII repealed 15

28. Section 731 inserted 15

731. Forfeiture etc. of property used to commit offences 15

Division 2 — Transitional provisions

29. Search warrants and related matters 16

Part 6 — Criminal Investigation (Extra‑territorial Offences) Act 1987 amended

30. The Act amended in this Part 18

31. Long title replaced 18

32. Headings inserted 18

Part 1 — Preliminary

Part 2 — Search warrants

Part 5 — Miscellaneous

33. Certain references to “this Act” amended 19

34. Section 8 replaced by Parts 3 and 4 19

Part 3 — Searching vehicles

8. Vehicle in WA used to commit offence outside WA 19

Part 4 — Arrest powers

8A. Arrest power for foreign offence 21

Part 7 — Criminal Investigation (Identifying People) Act 2002 amended

35. The Act amended in this Part 24

36. Section 4 amended 24

37. Section 15 replaced 24

15. Warrants, applying for 24

38. Section 47 amended 26

39. Section 83 amended 27

40. Part 14 and Schedules 1 and 2 repealed 27

Part 8 — Criminal Procedure Act 2004 amended

41. The Act amended in this Part 28

42. Section 30 amended 28

43. Section 35 amended 30

44. Section 42 amended 30

45. Section 61 amended 30

46. Section 95 amended 30

Part 9 — Gaming and Wagering Commission Act 1987 amended

47. The Act amended in this Part 31

48. Section 31 amended 31

49. Section 31A inserted 31

31A. Powers to assist seizing things 31

50. Section 32 amended 31

51. Section 32A inserted 32

32A. Disposing of seized or forfeited things 32

52. Section 41 amended 32

Part 10 — Liquor Licensing Act 1988 amended

53. The Act amended in this Part 33

54. Section 113 amended 33

55. Section 155 amended 33

56. Section 172A inserted 33

172A. Forfeiture 34

57. Section 174A inserted 34

174A. Application of Criminal and Found Property Disposal Act 2006 34

Part 11 — Maritime Archaeology Act 1973 amended

58. The Act amended in this Part 35

59. Section 11 amended 35

Part 12 — Police Act 1892 amended

Division 1 — Amendments

60. The Act amended in this Part 36

61. Section 2 repealed 36

62. Section 7 amended 36

63. Part III replaced 36

Part III — Special constables

34. Interpretation 36

35. Appointing and terminating special constables37

36. Functions of special constables 37

37. Special constables not in the Police Force 39

64. Part V repealed 39

65. Part VI repealed 39

66. Section 123 repealed 39

67. Section 124 repealed 40

Division 2 — Transitional provisions

68. Existing special constables’ appointments terminated 40

69. Search warrants and related matters 40

70. Embargo notices 40

Part 13 — Prostitution Act 2000 amended

71. The Act amended in this Part 42

72. Section 34 replaced 42

34. Powers to assist seizing things 42

Part 14 — Various Acts amended

73. Various Acts amended (Sch. 1) 43

Schedule 1 — Various Acts amended

1. Betting Control Act 1954 44

2. Criminal Appeals Act 2004 44

3. Disposal of Uncollected Goods Act 1970 44

4. Energy Operators (Powers) Act 1979 44

5. Firearms Act 1973 45

6. Guardianship and Administration Act 1990 45

7. Industrial Relations Act 1979 45

8. Interpretation Act 1984 45

9. Magistrates Court Act 2004 46

10. Poisons Act 1964 46

11. Prisons Act 1981 46

12. Public Interest Disclosure Act 2003 46

13. Public Works Act 1902 46

14. Unclaimed Money Act 1990 47

15. Western Australian Meat Industry Authority Act 1976 47

16. The Western Australian Turf Club Act 1892 47

Western Australia

Criminal Investigation (Consequential Provisions) Act 2006

No. 59 of 2006

An Act to amend various Acts as a consequence of the enactment of the —

·Criminal Investigation Act 2006; and

·Criminal and Found Property Disposal Act 2006,

and for related purposes.

[Assented to 16 November 2006]

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary

1. Short title

This is the Criminal Investigation (Consequential Provisions) Act 2006.

2. Commencement

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

(2) Different days may be fixed under subsection (1) for different provisions.

Part 2 — Bail Act 1982 amended

3. The Act amended by this Part

The amendments in this Part are to the Bail Act 1982*.

[* Reprint 5 as at 1 April 2005.]

4. Section 6 replaced and consequential amendments

(1) Section 6 is repealed and the following section is inserted instead —

“

6. Duty on arresting officer and others to consider bail

(1) This section applies to a police officer or other person (the “arrester”) who —

(a) charges a person who is under arrest (the “accused”) with an offence; and

(b) does not release the accused unconditionally under section 142 of the Criminal Investigation Act 2006,

or who arrests a person under a warrant.

(2) This section is subject to —

(a) the exercise of the power conferred by section 9; and

(b) sections 10, 12 and 16 and clause 3A of Part C of Schedule 1.

(3) The duties in this section shall be performed whether or not an application for bail is made by or on behalf of the accused.

(4) As soon as is practicable after the accused is charged, or arrested under a warrant, as the case may be, the arrester shall either —

(a) bring the accused or cause the accused to be brought before a court; or

(b) perform the other duties of the arrester under this section.

(5) If the arrester has power to grant the accused bail, the arrester shall consider the accused’s case for bail.

(6) If the arrester does not have power to grant the accused bail, the arrester shall, unless subsection (8), (9) or (10) applies, bring or cause the accused to be brought before an authorised police officer or a justice or, in the case of a child, any authorised officer or a justice, who shall consider the accused’s case for bail as soon as is practicable.

(7) Even if the arrester has power to grant the accused bail, the arrester may, instead of complying with subsection (5), comply with subsection (6) as if the arrester did not.

(8) If under section 15 only a Judge of the Supreme Court or a Judge of the Children’s Court has power to grant the accused bail, the arrester shall bring the accused or cause the accused to be brought before a Judge of the Supreme Court or a Judge of the Children’s Court, as the case requires, who shall consider the accused’s case for bail as soon as is practicable.

(9) If under section 16 only a justice has power to grant the accused bail, the arrester shall bring the accused or cause the accused to be brought before a justice, who shall consider the accused’s case for bail as soon as is practicable.

(10) If section 16A applies, the arrester shall bring the accused or cause the accused to be brought before a court or Judge referred to in section 16A(1), who shall consider the accused’s case for bail as soon as is practicable.

”.

(2) Section 7(3)(a) is amended by deleting “section 6(3)” and inserting instead —

“ section 6(8) or (9) ”.

(3) Section 16(1) is amended by deleting “section 6(2)(b).” and inserting instead —

“ section 6(9). ”.

(4) Section 61(2)(b) is amended by deleting “section 6(2a).” and inserting instead —

“ section 6(7). ”.

5. Section 6A inserted

After section 6 the following section is inserted —

“

6A. Whether custody justified to be considered in certain cases

(1) In this section —

“accused” means an accused who is under arrest, other than pursuant to a warrant;

“released” means released from custody without being required to enter into, or without having entered into, a bail undertaking;

“serious offence” means an indictable offence the penalty specified by a written law for which is or includes imprisonment for 5 years or more or life;

“summary court” means the Magistrates Court or the Children’s Court.

(2) An authorised officer or justice who is considering an accused’s case for bail for an initial appearance in a summary court on a charge of an indictable offence that is not a serious offence may order that the accused be served with a summons under the Criminal Procedure Act 2004, and released, in respect of the charge unless satisfied —

(a) that there are reasonable grounds to suspect the accused would not obey the summons if served with it; or

(b) that not releasing the accused is justified under subsection (4) or for any other reason.

(3) An authorised officer or justice who is considering an accused’s case for bail for an initial appearance in a summary court on a charge of a simple offence must order that the accused be served with a court hearing notice under the Criminal Procedure Act 2004, and released, in respect of the charge unless satisfied —

(a) that the presence of the accused when the charge is dealt with is likely to be necessary for any reason or for sentencing purposes; or

(b) that not releasing the accused is justified under subsection (4) or for any other reason.

(4) Not releasing an accused is justified if there are reasonable grounds to suspect that if the accused were released —

(a) the accused —

(i) would commit an offence;

(ii) would continue or repeat an offence with which he or she is charged;

(iii) would endanger another person’s safety or property; or

(iv) would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to the accused or any other person;

(b) the accused’s safety would be endangered.

(5) This section does not affect the operation of section 28 or 30 of the Criminal Procedure Act 2004.

”.

6. Section 12 amended

Section 12 is amended as follows:

(a) by inserting after “requires” —

“ or permits ”;

(b) by deleting “section 236 of The Criminal Code, section 50AA of the Police Act 1892” and inserting instead —

“ Part 12 of the Criminal Investigation Act 2006 ”.

7. Sections 18 and 19 repealed and consequential amendment to section 27

(1) Sections 18 and 19 are repealed.

(2) Section 27(1) is amended by deleting “, an authorised police officer who dispenses with bail under section 18,”.

Part 3 — Corruption and Crime Commission Act 2003 amended

8. The Act amended in this Part

The amendments in this Part are to the Corruption and Crime Commission Act 2003*.

[* Reprint 1 as at 5 January 2004.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 96.]

9. Section 56 repealed

Section 56 is repealed.

10. Section 101 amended

(1) After section 101(2) the following subsection is inserted —

“

(2a) An application for a warrant must be made in accordance with section 13 of the Criminal Investigation Act 2006 which applies with any necessary changes.

”.

(2) Section 101(7) is repealed.

11. Section 184 amended

(1) Section 184(3) is repealed and the following subsections are inserted instead —

“

(3) For the purposes of the Criminal Investigation Act 2006 —

(a) the office of authorised officer is prescribed to be a public officer; and

(b) a holder of that office may exercise all of the powers of a public officer in that Act; and

(c) the Commissioner is prescribed to be a senior officer in relation to the authorised officer for the purposes of sections 44, 47, 97 and 133 of that Act.

(3a) In addition to the powers conferred by subsection (3), an authorised officer may exercise the powers of a police officer in section 40 of the Criminal Investigation Act 2006.

(3b) For the purposes of the Criminal Investigation (Identifying People) Act 2002 —

(a) the office of authorised officer is prescribed to be a public officer; and

(b) a holder of that office may exercise all of the powers of a public officer in that Act; and

(3c) An authorised officer has and may perform all of the functions that a police officer has and may perform under any law of the State, other than the Acts referred to in subsections (3) to (3b).

”.

(2) Section 184(4) is amended by deleting “subsection (3)” and inserting instead —

“ subsections (3) to (3c) ”.

12. Section 223A inserted

After section 223 the following section is inserted —

“

223A. Disposal of things seized under this Act

(1) The Criminal and Found Property Disposal Act 2006 applies to and in respect of anything seized under this Act, other than a thing seized under section 75(4).

(2) For the purposes of the Criminal and Found Property Disposal Act 2006 —

(a) the Commission is a prescribed agency; and

(b) the Commissioner is the chief officer of the Commission.

”.

Part 4 — Court Security and Custodial Services Act 1999 amended

13. The Act amended in this Part

The amendments in this Part are to the Court Security and Custodial Services Act 1999*.

[* Reprint 2 as at 9 September 2005.]

14. Section 3 amended

Section 3 is amended in the definition of “police officer” as follows:

(a) by inserting “or” after paragraph (a);

(b) by deleting paragraph (b) and “or” after it.

15. Schedule 2 amended

Schedule 2 clause 7 is repealed and the following clause is inserted instead —

“

7. Power to take identifying particulars of persons in custody

(1) In this clause —

“identifying particular” of a person means —

(a) a print of the person’s hands (including fingers), feet (including toes) or ears;

(b) a photograph of the person (including of an identifying feature of the person);

(2) In respect of a person in custody who is at a custodial place or being moved between custodial places, the power to take or cause to be taken from the person any identifying particular of the person that an authorised person suspects on reasonable grounds —

(a) is not or may not be held by the Police Force; or

(b) is or may be needed to verify the person’s identity with identification particulars already held by the Police Force.

(3) Sections 49 to 51 of the Criminal Investigation (Identifying People) Act 2002, with any necessary changes, apply to and in respect of taking an identifying particular from a person under subclause (2) as if the person were a charged suspect.

(4) The taking of an identifying particular under subclause (2) must be done in accordance with Part 8 of the Criminal Investigation (Identifying People) Act 2002 which applies with any necessary changes.

(5) Sections 67 and 69 of the Criminal Investigation (Identifying People) Act 2002, with any necessary changes, apply to and in respect of any identifying particular taken under this clause from a person as if the particular had been obtained under Part 7 of that Act and the person were a suspect.

”.

Part 5 — The Criminal Code amended

Division 1 — Amendments

16. The Criminal Code amended in this Part

The amendments in this Part are to The Criminal Code*.

[* Reprint 12 as at 1 June 2005 (see the Schedule to the Criminal Code Act 1913 appearing as Appendix B to the Criminal Code Compilation Act 1913).]

17. Section 70A amended

Section 70A(1) is amended in the definition of “police officer” by deleting “Part I, III” and inserting instead —

“ Part I ”.

18. Section 74A amended

Section 74A(4) is repealed.

19. Section 80J inserted

After section 80I the following section is inserted in Chapter XI —

“

80J. Forfeiture of unlawful material

A court that convicts a person of an offence under section 79, 80, 80C or 80D may make an order for the forfeiture to the State, or the destruction or disposal, of any written or pictorial material in respect of which the offence was committed.

”.

20. Section 231 amended

(1) Section 231 is amended by inserting before “It is lawful” the subsection designation “(1)”.

(2) At the end of section 231 the following subsection is inserted —

“

(2) In determining whether any process or warrant might have been executed, or any arrest made, in a less forcible manner, the following shall be taken into account —

(a) whether the person executing the process or warrant had it with him or her and produced it at the time;

(b) if it was practicable to do so at the time, whether the person making an arrest, whether with or without a warrant, gave notice of the process or warrant under which the person was acting or of the cause of the arrest.

”.

21. Section 232 repealed

Section 232 is repealed.

22. Sections 236 and 237 repealed

Sections 236 and 237 are repealed.

23. Section 243 replaced

Section 243 is repealed and the following section is inserted instead —

“

243. Prevention of violence by mentally impaired person

It is lawful for any person to use such force as is reasonably necessary in order to prevent a person whom he believes, on reasonable grounds, to be mentally impaired from doing violence to any person or property.

”.

24. Section 473 amended

After section 473(2) the following subsection is inserted —

“

(3) A court that convicts a person of an offence under this section may make an order for the forfeiture to the State, or the destruction or disposal, of any record in respect of which the offence was committed.

”.

25. Section 557B repealed

Section 557B is repealed.

26. Chapters LX and LXA repealed

Chapters LX and LXA are repealed.

27. Chapter LXXII repealed

Chapter LXXII is repealed.

28. Section 731 inserted

After section 730 the following section is inserted —

“

731. Forfeiture etc. of property used to commit offences

(1) A court that convicts a person of an offence under this Code may make an order for the forfeiture to the State, or the destruction or disposal, of any thing that was used in or in connection with the commission of the offence.

(2) A court must not make an order under subsection (1) in respect of any property unless the owner or any person who claims to be the owner of it has been afforded the opportunity to show cause why the order should not be made.

”.

Division 2 — Transitional provisions

29. Search warrants and related matters

(1) In this section —

“repeal day” means the day on which section 27 comes into operation.

(2) This section does not limit the operation of the Interpretation Act 1984 Part V.

(3) If immediately before repeal day a warrant issued under The Criminal Code section 711 is in force but not executed, then, subject to the terms of the warrant, the warrant may be executed on or after repeal day and, if any thing is seized under it —

(a) despite section 711 and the warrant, the thing must not be taken before a justice to be dealt with according to law; and

(b) the Criminal and Found Property Disposal Act 2006 applies to and in respect of the thing.

(4) If immediately before repeal day a warrant issued under The Criminal Code section 716 is in force but not executed, then, subject to the terms of the warrant, the warrant may be executed on or after repeal day and, if any person is found under it, then, despite section 716 and the warrant, the person must be released unless another written law provides to the contrary.

(5) If immediately before repeal day a person is in possession of any thing seized or taken under The Criminal Code, then on repeal day, subject to any order previously made in respect of the thing under The Criminal Code section 714, the thing is to be taken to be seized property for the purposes of the Criminal and Found Property Disposal Act 2006 and that Act applies to and in respect of it accordingly.

(6) If immediately before repeal day proceedings under The Criminal Code section 714A in respect of any property are pending in the Magistrates Court, then section 714A operates in respect of the property on and after repeal day despite its repeal on repeal day.

Part 6 — Criminal Investigation (Extra‑territorial Offences) Act 1987 amended

30. The Act amended in this Part

The amendments in this Part are to the Criminal Investigation (Extra‑territorial Offences) Act 1987*.

[* Reprinted as at 23 August 2002.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 111.]

31. Long title replaced

The long title is repealed and the following long title is inserted instead —

“

An Act to provide powers to investigate in this State certain offences against the law of other places, and for related purposes.

”.

32. Headings inserted

(1) Immediately before section 1 the following heading is inserted —

“

Part 1 — Preliminary

”.

(2) Immediately before section 3 the following heading is inserted —

“

Part 2 — Search warrants

”.

(3) Immediately before section 9 the following heading is inserted —

“

Part 5 — Miscellaneous

”.

33. Certain references to “this Act” amended

(1) Section 3(1) and (2) are amended by deleting “this Act” in each place it occurs and in each place inserting instead —

“ this Part ”.

(2) Section 4(1)(a) is amended by deleting “this Act” and inserting instead —

“ this Part ”.

(3) Section 7(1)(a) is amended by deleting “this Act” and inserting instead —

“ this Part ”.

34. Section 8 replaced by Parts 3 and 4

Section 8 is repealed and the following Parts are inserted instead —

“

Part 3 — Searching vehicles

8. Vehicle in WA used to commit offence outside WA

(1) In this section —

“vehicle” means any thing capable of transporting people or things by air, road, rail or water, and it does not matter how the thing is moved or propelled.

(2) If a member of the Police Force reasonably suspects that a vehicle in this State is being or may be used for a journey to a place outside this State for the purpose of doing or attempting to do an act that, if it were done in this State, would be an element of an offence, he —

(a) may stop, detain, enter and search the vehicle;

(b) may search any person on board; and

(i) may take charge of the vehicle and detain it at any place he thinks fit; or

(ii) may take any reasonably necessary action to prevent the vehicle from commencing or continuing its journey.

(3) Sections 18 and 19 of the Criminal Investigation Act 2006, with any necessary changes, apply to and in respect of the power in subsection (2)(a) to stop a vehicle.

(4) A member of the Police Force who has detained a vehicle under subsection (2)(c), or a person aggrieved by any action of such a member under subsection (2)(c), may apply to the Magistrates Court for an order under subsection (5).

(5) On such an application, the Magistrates Court may do any or all of the following —

(a) order that the vehicle be released —

(i) unconditionally; or

(ii) on conditions imposed by the court;

(b) order that the vehicle be detained for a period set by the court or until the court makes a further order;

(c) make an order as to the payment of expenses incurred or to be incurred by the Police Force in relation to the stopping, detaining or safe keeping of the vehicle;

(d) make an order as to the costs of the application.

(6) An order made under subsection (5)(a)(ii) may —

(a) impose conditions that not only relate to the release of the vehicle but also to the use that may be made of the vehicle during a period set by the court and specified in the order;

(b) require a person to enter into an undertaking, with or without sureties, to comply with the order.

(7) The amount of any expenses or costs ordered to be paid under subsection (5) may be recovered as a judgment debt in a court of competent jurisdiction from the person ordered to pay them.

(8) For the purposes of subsection (7) a registrar of the Magistrates Court may issue a certified copy of the order and that order may be registered in a court of competent jurisdiction.

Part 4 — Arrest powers

8A. Arrest power for foreign offence

(1) In this section —

“foreign offence” means an offence against the law of the Commonwealth or of a place outside this State (whether in or outside Australia) that, if committed in this State, would have a statutory penalty that is or includes imprisonment for 12 months or more or life.

(2) A member of the Police Force may arrest a person in this State for a foreign offence if he reasonably suspects that the person has committed or is committing the offence.

(3) A person arrested under subsection (2) must be taken to the Magistrates Court or, if he or she is under 18 years of age, the Children’s Court, as soon as practicable after being arrested.

(4) The court to which the arrested person is taken may —

(a) discharge the person from custody; or

(b) order that the person be kept in custody until, and brought before the court on, a date set by the court (the “return date”) that is not less than 7 days after the day on which the person was arrested unless before that date a warrant for the person’s arrest is executed under a law of the Commonwealth.

(5) A court that makes an order under subsection (4)(b) may grant the person bail to appear before the court on the return date.

(6) If the arrested person is brought or appears before the court on the return date, the court must discharge the person from custody unless the court is presented with a warrant for the person’s arrest that may be executed under a law of the Commonwealth.

(7) If under subsection (5) the court grants the person bail and the person enters into a bail undertaking under the Bail Act 1982, then —

(a) if a warrant for the person’s arrest is executed under a law of the Commonwealth before or on the date on which the person has undertaken to appear, the undertaking ceases to have effect when the warrant is executed;

(b) if paragraph (a) does not apply and the person does not appear in accordance with the undertaking, the Bail Act 1982 applies and the person may be dealt with accordingly.

(8) For the purposes this section, the Bail Act 1982 applies to and in respect of the arrested person as if the person had been charged with an offence against the law of this State.

(9) Proceedings under this section form part of the criminal jurisdiction of the Magistrates Court or the Children’s Court.

”.

Part 7 — Criminal Investigation (Identifying People) Act 2002 amended

35. The Act amended in this Part

The amendments in this Part are to the Criminal Investigation (Identifying People) Act 2002*.

[* Act No. 6 of 2002.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 111‑12 and Act No. 84 of 2004.]

36. Section 4 amended

Section 4 is amended by deleting “, acting in good faith,”.

37. Section 15 replaced

Section 15 is repealed and the following section is inserted instead —

“

15. Warrants, applying for

(1) In this section —

“judicial officer” means a JP or a magistrate, as the case requires.

(2) A reference in this section to making an application includes a reference to giving information in support of the application.

(3) This section applies to and in respect of an application to a judicial officer for a warrant if another section of this Act requires the application to be made under this section.

(4) The application must be made in person before the judicial officer unless —

(a) the warrant is needed urgently; and

(b) the applicant reasonably suspects that a judicial officer is not available within a reasonable distance of the applicant,

in which case —

(d) the judicial officer must not grant it unless satisfied about the matters in paragraphs (a) and (b).

(5) The application must be made in writing unless —

(a) the application is made by remote communication; and

(b) it is not practicable to send the judicial officer written material,

in which case —

(d) the judicial officer must make a written record of the application and any information given in support of it.

(6) The application must be made on oath unless —

(a) the application is made by remote communication; and

(b) it is not practicable for the judicial officer to administer an oath to the applicant,

in which case —

(d) if the judicial officer issues a warrant, the applicant must as soon as practicable send the judicial officer an affidavit verifying the application and any information given in support of it.

(7) If on an application made by remote communication a judicial officer issues a warrant, the judicial officer must, if practicable, send a copy of the original warrant to the applicant by remote communication, but otherwise —

(a) the judicial officer must give the applicant by remote communication any information that must be set out in the warrant;

(b) the applicant must complete a form of a warrant with the information received and give the judicial officer a copy of the form as soon as practicable after doing so; and

(c) the judicial officer must attach the copy of the form to the original warrant and any affidavit received from the applicant and make them available for collection by the applicant.

(8) The copy of the original warrant sent, or the form of the warrant completed, as the case may be, under subsection (7) has the same force and effect as the original warrant.

”.

38. Section 47 amended

(1) Section 47 is amended in the definition of “charged suspect” by deleting “a serious offence” and inserting instead —

“ an offence ”.

(2) Section 47 is amended by deleting the definition of “identifying particular” and inserting instead —

“

“identifying particular”, in relation to a charged suspect charged with a serious offence, means —

(a) a print of the suspect’s hands (including fingers), feet (including toes) or ears;

(b) a photograph of the suspect (including of an identifying feature of the suspect);

(d) the suspect’s DNA profile;

“identifying particular”, in relation to a charged suspect charged with an offence other than a serious offence, means —

(a) a print of the suspect’s hands (including fingers), feet (including toes) or ears;

(b) a photograph of the suspect (including of an identifying feature of the suspect);

”.

39. Section 83 amended

Section 83(3)(e) is deleted and the following paragraph is inserted instead —

“

(e) the court is of the opinion that the contravention arose out of a mistaken but reasonable belief as to whether a person was a protected person.

”.

40. Part 14 and Schedules 1 and 2 repealed

Part 14 and Schedules 1 and 2 are repealed.

Part 8 — Criminal Procedure Act 2004 amended

41. The Act amended in this Part

The amendments in this Part are to the Criminal Procedure Act 2004*.

[* Act No. 71 of 2004.]

42. Section 30 amended

(1) Section 30(4) is repealed and the following subsections are inserted instead —

“

(4) A magistrate to whom an application is made under section 28 for an arrest warrant for an accused for a charge of an indictable offence must not issue the warrant unless satisfied —

(a) that the prosecution notice containing the charge complies with section 23; and

(b) that there are reasonable grounds to suspect the accused committed the offence; and

(i) there are reasonable grounds to suspect that, if a summons were issued in relation to the prosecution notice, the accused would avoid service of the summons or would not obey the summons; or

(ii) the issue of the warrant is justified under subsection (5).

(4a) A magistrate to whom an application is made under section 28 for an arrest warrant for an accused for a charge of a simple offence must not issue the warrant unless satisfied —

(a) that the prosecution notice containing the charge complies with section 23; and

(b) that there are reasonable grounds to suspect the accused committed the offence; and

(i) there are reasonable grounds to suspect that if a court hearing notice were issued in relation to the prosecution notice, the accused would avoid service of the court hearing notice; or

(ii) the presence of the accused when the prosecution notice is dealt with is likely to be necessary for any reason or for sentencing purposes; or

(iii) the issue of the warrant is justified under subsection (5).

”.

(2) Section 30(5)(a) is deleted and the following paragraph is inserted instead —

“

(a) there are reasonable grounds to suspect that if the accused were not arrested, the accused —

(i) would commit an offence;

(ii) would continue or repeat an offence charged in the prosecution notice;

(iii) would endanger another person’s safety or property; or

(iv) would interfere with witnesses or otherwise obstruct the course of justice, whether in relation to the accused or any other person;

”.

43. Section 35 amended

(1) Section 35(1) is amended in the definition of “confessional material” by deleting “(within the meaning of The Criminal Code section 570)” and inserting instead —

“

(as that term is defined in the Criminal Investigation Act 2006 section 115)

”.

(2) Section 35(3) is amended by deleting “The Criminal Code section 570A.” and inserting instead —

“ the Criminal Investigation Act 2006 section 117. ”.

44. Section 42 amended

Section 42(4) is amended by deleting “The Criminal Code section 570A.” and inserting instead —

“ the Criminal Investigation Act 2006 section 117. ”.

45. Section 61 amended

Section 61(4) is amended by deleting “The Criminal Code section 570A.” and inserting instead —

“ the Criminal Investigation Act 2006 section 117. ”.

46. Section 95 amended

Section 95(4) is amended by deleting “The Criminal Code section 570A.” and inserting instead —

“ the Criminal Investigation Act 2006 section 117. ”.

Part 9 — Gaming and Wagering Commission Act 1987 amended

47. The Act amended in this Part

The amendments in this Part are to the Gaming and Wagering Commission Act 1987*.

[* Reprint 3 as at 3 September 2004.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 183.]

48. Section 31 amended

Section 31 is amended by deleting “and take before a justice”.

49. Section 31A inserted

After section 31 the following section is inserted —

“

31A. Powers to assist seizing things

Sections 146 to 150 of the Criminal Investigation Act 2006 apply to and in respect of seizing a thing that is or may be seized under this Act or the Betting Control Act 1954.

”.

50. Section 32 amended

(1) Section 32(1) is repealed.

(2) Section 32(2) is amended by deleting “and either destroyed or dealt with in such manner as the court, then or subsequently, may approve”.

51. Section 32A inserted

After section 32 the following section is inserted —

“

32A. Disposing of seized or forfeited things

(1) In this section —

“seized thing” means any thing that is seized under this Act or the Betting Control Act 1954.

(2) The Criminal and Found Property Disposal Act 2006 applies to and in respect of any seized thing and any thing that is forfeited to the Crown under this Act or the Betting Control Act 1954.

(3) For the purposes of the Criminal and Found Property Disposal Act 2006 —

(a) the Commission is a prescribed agency;

(b) the chief executive officer of the Department is the chief officer of the Commission.

”.

52. Section 41 amended

Section 41(5) is amended as follows:

(a) by deleting “Subject to sections 90B and 90C of the Police Act 1892, the” and inserting instead —

“ The ”;

(b) by deleting “is brought before the court or is the subject of an embargo notice under section 90B of the Police Act 1892” and inserting instead —

“ has been seized ”;

(c) by deleting “and either destroyed or dealt with in such other manner as the court may, then or subsequently, approve”.

Part 10 — Liquor Licensing Act 1988 amended

53. The Act amended in this Part

The amendments in this Part are to the Liquor Licensing Act 1988*.

[* Reprint 3 as at 23 April 2004.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 254-5.]

54. Section 113 amended

Section 113(3) is repealed.

55. Section 155 amended

(1) Section 155(4) is amended as follows:

(a) by deleting “, carry away and take before a justice”;

(b) by deleting “section 113” and inserting instead —

“ this Act ”.

(2) Section 155(5) is repealed and the following subsection is inserted instead —

“

(5) Subject to section 161, sections 146 to 150 of the Criminal Investigation Act 2006, with any necessary changes, apply to and in respect of seizing a thing that is or may be seized under this Act.

”.

56. Section 172A inserted

After section 172 the following section is inserted in Part 6 —

“

172A. Forfeiture

(1) If a court convicts a person of an offence under this Act of illegally selling, supplying, consuming or storing liquor, or of unlawfully possessing liquor, or of possessing liquor for an unlawful purpose, the court may declare all, or any specified part, of the liquor, including any container or packaging, that relates to the offence to be forfeited.

(2) If under section 167 an infringement notice is issued to an alleged offender in respect of an alleged offence under this Act of illegally selling, supplying, consuming or storing liquor, or of unlawfully possessing liquor, or of possessing liquor for an unlawful purpose, and the modified penalty is paid and the notice is not withdrawn, any liquor, including any container or packaging, that relates to the offence and has been seized is forfeited.

”.

57. Section 174A inserted

After section 174 the following section is inserted —

“

174A. Application of Criminal and Found Property Disposal Act 2006

(1) The Criminal and Found Property Disposal Act 2006 applies to and in respect of any thing that is seized or forfeited under this Act.

(2) For the purposes of the Criminal and Found Property Disposal Act 2006 the department of the Public Service that principally assists the Minister to administer this Act is a prescribed agency.

”.

Part 11 — Maritime Archaeology Act 1973 amended

58. The Act amended in this Part

The amendments in this Part are to the Maritime Archaeology Act 1973*.

[* Reprint 1 as at 3 October 2003.

For subsequent amendments see Western Australian Legislation Information Tables for 2004, Table 1, p. 273.]

59. Section 11 amended

(1) Section 11(1) is amended by deleting “and take the same forthwith before a Justice to be dealt with according to law”.

(2) Section 11(2) is repealed and the following subsection is inserted instead —

“

(2) The Criminal and Found Property Disposal Act 2006 applies to and in respect of any thing that is seized under this section and for the purposes of that Act —

(a) the Museum is a prescribed agency; and

(b) the Director is the chief officer of the Museum.

”.

Part 12 — Police Act 1892 amended

Division 1 — Amendments

60. The Act amended in this Part

The amendments in this Part are to the Police Act 1892*.

[* Reprint 12 as at 1 June 2005.]

61. Section 2 repealed

Section 2 is repealed.

62. Section 7 amended

Section 7(1) is amended by deleting “; and such non-commissioned officers and constables shall have all such powers and privileges, and be liable to all such duties and obligations as any constable duly appointed now or hereafter may have, or be liable to, either by the common law, or by virtue of any statute law now or hereafter to be in force in the said State”.

63. Part III replaced

Part III is repealed and the following Part is inserted instead —

“

Part III — Special constables

34. Interpretation

In this Part, unless the contrary intention appears —

“Commissioner” means the Commissioner of Police appointed under section 5;

“police officer” means a person appointed under Part I as an officer or constable of the Police Force, other than as the Commissioner;

“special constable” means a special constable appointed under section 35.

35. Appointing and terminating special constables

(1) The Commissioner may appoint any person as a special constable.

(2) The appointment of a special constable may be for such period and on such terms and conditions as the Commissioner decides.

(3) The appointment of a special constable must not include a term that provides for the payment of any remuneration to a special constable unless the Minister has approved the term.

(4) The Commissioner may at any time cancel the appointment of a special constable.

(5) The appointment of a special constable, its terms and conditions and any cancellation of it must be in writing and signed by the Commissioner.

(6) The Commissioner must issue a special constable with a certificate of his or her appointment as a special constable.

(7) A special constable whose appointment as such ceases must return any certificate issued to him or her under subsection (6) to the Commissioner.

Penalty: $500.

36. Functions of special constables

(1) Unless the document appointing a special constable says otherwise —

(a) a special constable has all of the powers, duties and obligations that a police officer or a member of the Police Force has under any written law other than this Act; and

(b) any authorisation, exemption or exception in any written law other than this Act that applies to a police officer or a member of the Police Force applies to a special constable,

unless that written law expressly says otherwise.

(2) If a provision of a written law other than this Act refers to a police officer or to a member of the Police Force but does not confer a power, duty or obligation on, or create an authorisation, exemption or exception for, a police officer or a member of the Police Force, the provision is to be taken to include a reference to a special constable, unless the contrary intention appears in the provision.

(3) The document appointing a special constable may limit the powers, duties or obligations of the special constable or the application of any authorisation, exemption or exception to the special constable in any way the Commissioner thinks fit.

(4) Without limiting subsection (3) or section 35(2), the document appointing a special constable may do any or all of the following —

(a) limit the powers that the special constable may exercise;

(b) limit when the special constable may exercise his or her powers or any of them;

(d) limit the circumstances in which the special constable may exercise his or her powers or any of them;

(e) limit the offences in respect of which the special constable may exercise his or her powers or any of them;

(f) limit the purposes for which the special constable may exercise his or her powers or any of them;

(g) limit or prohibit the possession or use of any thing that the special constable would otherwise be authorised under a written law to possess or use, despite the written law.

(5) The document appointing a special constable may require the special constable to inform the Commissioner about the exercise by the special constable of any power, or the performance of any duty or obligation, that he or she has under the appointment.

37. Special constables not in the Police Force

(1) A special constable is not a member of the Police Force of Western Australia for the purposes of this Act.

(2) Subsection (1) does not affect the operation of section 36(1) or (2) or 136.

”.

64. Part V repealed

Part V is repealed.

65. Part VI repealed

Part VI is repealed.

66. Section 123 repealed

Section 123 is repealed.

67. Section 124 repealed

Section 124 is repealed.

Division 2 — Transitional provisions

68. Existing special constables’ appointments terminated

(1) If immediately before the commencement of section 63 a person holds an appointment as a special constable made under the Police Act 1892 Part III, then on the commencement of section 63 the person ceases to be a special constable.

(2) Subsection (1) does not prevent the appointment of a person to whom it applies as a special constable under the Police Act 1892 Part III as inserted by section 63.

69. Search warrants and related matters

(1) In this section —

“repeal day” means the day on which section 64 comes into operation.

(2) This section does not limit the operation of the Interpretation Act 1984 Part V.

(3) If immediately before repeal day a warrant issued under the Police Act 1892 section 70 is in force but not executed, then, subject to the terms of the warrant, the warrant may be executed on or after repeal day and, if any thing is seized under it —

(a) despite section 70 and the warrant, the thing must not be taken before a Justice; and

(b) the Criminal and Found Property Disposal Act 2006 applies to and in respect of the thing.

70. Embargo notices

(1) In this section —

“repeal day” means the day on which section 65 comes into operation.

(2) If immediately before repeal day any property is subject to an embargo notice granted under the Police Act 1892 section 90B, whether the property was seized under Part V of that Act or under an Act that refers to that section, then on and after repeal day sections 90B and 90C of that Act apply to and in respect of the notice as if they had not been repealed.

Part 13 — Prostitution Act 2000 amended

71. The Act amended in this Part

The amendments in this Part are to the Prostitution Act 2000*.

[* Reprint 1 as at 22 July 2005.]

72. Section 34 replaced

Section 34 is repealed and the following section is inserted instead —

“

34. Powers to assist seizing things

Sections 146 to 150 of the Criminal Investigation Act 2006, with any necessary changes, apply to and in respect of seizing a thing that is or may be seized under this Act.

”.

Part 14 — Various Acts amended

73. Various Acts amended (Sch. 1)

Each Act listed in Schedule 1 is amended as set out in that Schedule immediately below the short title of the Act.

Schedule 1 — Various Acts amended

[s. 73]

1. Betting Control Act 1954

s. 31A(3)	Delete “and take before a justice”.

2. Criminal Appeals Act 2004

s. 6

In the definition of “decision”, insert after paragraph (h) —

“

(i) a decision made under the Criminal Investigation Act 2006 section 151;

”.

3. Disposal of Uncollected Goods Act 1970

Schedule

Delete the column headed “Number of Act.”.

Delete “Firearms and Guns Act 1931.”.

Delete “Police Act 1892.”.

Insert in the appropriate alphabetical positions —

“

Criminal and Found Property Disposal Act 2006.

Criminal Investigation Act 2006.

Firearms Act 1973.

”.

4. Energy Operators (Powers) Act 1979

s. 74(2)

Delete “or convey him before a justice to be dealt with” and insert instead —

“ who shall deal with him ”.

s. 78

Delete “or convey him before a Justice to be dealt with” and insert instead —

“ who shall deal with him ”.

5. Firearms Act 1973

s. 24(5)

Delete “taken before a Justice to be”.

s. 26(1)

Delete “and take”.

Delete “before a Justice to be dealt with according to law”.

6. Guardianship and Administration Act 1990

s. 97(1)

Delete “Advocate are — ” and insert instead —

“ Advocate are as follows — ”.

Delete “and” after paragraph (g).

Delete the full stop after paragraph (h) and insert instead a semicolon.

After paragraph (h) insert the following paragraph —

“

(i) any other function conferred on the Public Advocate by a written law.

”.

7. Industrial Relations Act 1979

Schedule 3

In clause 2(3), insert after “officer” —

“

or, in the case of a special constable, the cancellation of the constable’s appointment

”.

8. Interpretation Act 1984

s. 5

Delete the definition of “police officer” and insert instead —

“

“police officer” means a person appointed under Part I of the Police Act 1892 to be a member of the Police Force of Western Australia;

”.

9. Magistrates Court Act 2004

s. 11

After subsection (3), insert the following subsection —

“

(3a) The Court’s criminal jurisdiction includes any jurisdiction that is conferred on the Court by a written law other than this Act and that is expressly said to form part of the Court’s criminal jurisdiction.

”.

10. Poisons Act 1964

s. 53(2)	Delete “the Police Act 1892, or of”.

11. Prisons Act 1981

s. 3(1)

Amend the definition of “police officer” as follows:

(a) insert “or” after paragraph (a);

(b) delete paragraph (b) and “or” after it.

12. Public Interest Disclosure Act 2003

s. 3(1)

Amend the definition of “police officer” as follows —

(a) insert “or” after paragraph (a);

(b) delete paragraph (b) and “or” after it.

13. Public Works Act 1902

s. 109(3)

Delete “until he can be conveniently taken before some Justice of the Peace to be dealt with according to law.” and insert instead —

“

who shall as soon as practicable take him to a police officer or arrange for a police officer to attend.

”.

14. Unclaimed Money Act 1990

s. 9(1)(h)

Delete the paragraph and insert the following paragraph instead —

“

(h) is money that under the Criminal and Found Property Disposal Act 2006 is to be dealt with under this Act;

”.

15. Western Australian Meat Industry Authority Act 1976

s. 24H(2)

Repeal the subsection and insert the following subsection instead —

“

(2) If an inspector seizes any thing under this section, the inspector is a prescribed agency, as that term is defined in the Criminal and Found Property Disposal Act 2006, and that Act applies to and in respect of the seized thing.

”.

16. The Western Australian Turf Club Act 1892

s. 22

Delete “constable who shall convey him with all convenient dispatch before some justice without any warrant or other authority than this Act and such justice” and insert instead —

“ officer who ”.

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