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Thursday, 12 December 2002
Page: 7845


Senator ELLISON (Minister for Justice and Customs) (10:42 AM) —I move government amendment (21):

(21) Schedule 1, item 24, page 20 (after line 9), after section 34J, insert:

34JA Entering premises to take person into custody

(1) If:

(a) either a warrant issued under section 34D or subsection 34F(6) authorises a person to be taken into custody; and

(b) a police officer believes on reasonable grounds that the person is on any premises;

the officer may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or taking the person into custody.

(2) However, if subsection 34F(6) authorises a person to be taken into custody, a police officer must not enter a dwelling house under subsection (1) of this section at any time during the period:

(a) commencing at 9 pm on a day; and

(b) ending at 6 am on the following day;

unless the officer believes on reasonable grounds that it would not be practicable to take the person into custody under subsection 34F(6), either at the dwelling house or elsewhere, at another time.

(3) In this section:

dwelling house includes an aircraft, vehicle or vessel, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.

premises includes any land, place, vehicle, vessel or aircraft.

34JB Use of force in taking person into custody and detaining person

(1) A police officer may use such force as is necessary and reasonable in:

(a) taking a person into custody under:

(i) a warrant issued under section 34D; or

(ii) subsection 34F(6); or

(b) preventing the escape of a person from such custody; or

(c) bringing a person before a prescribed authority for questioning under such a warrant; or

(d) detaining a person in connection with such a warrant.

(2) However, a police officer must not, in the course of an act described in subsection (1) in relation to a person, use more force, or subject the person to greater indignity, than is necessary and reasonable to do the act.

(3) Without limiting the operation of subsection (2), a police officer must not, in the course of an act described in subsection (1) in relation to a person:

(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); or

(b) if the person is attempting to escape being taken into custody by fleeing—do such a thing unless:

(i) the officer believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the officer); and

(ii) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be taken into custody in any other manner.

This amendment inserts new proposed sections 34JA and 34JB into item 24 of schedule 1 of the bill. These are technical amendments to ensure consistency with the Crimes Act 1914. The new section 34JA makes it clear that a police officer has lawful authority to enter premises in order to take a person into custody in accordance with a warrant. It has always been envisaged that police may need to enter premises in order to take a person into custody. Police have a general power to enter premises when exercising powers under warrants. The government's amendments make it clear that these powers apply to action taken under warrants under the bill and substantially follow existing provisions in the Crimes Act. These amendments make it clear that the powers to take a person into custody are vested in the police and not ASIO.

New section 34JB provides that a police officer may use such force as is reasonable and necessary in order to take a person into custody and detain them pursuant to a warrant or a direction of a prescribed authority. Police officers, of course, have common law powers to use force in executing their duties. As a matter of safety for the public and for police officers themselves, it is sometimes necessary to use reasonable force to take a person into custody or detain them. The government amendment makes it clear that the common law powers of the police to use reasonable force extend to performing duties under a warrant. The Crimes Act includes specific limits on the use of force to ensure that police behave appropriately. For example, the Crimes Act provides that a police officer must not use more force than is necessary and reasonable. The government's amendment includes provisions based on those in the Crimes Act to ensure consistent standards are maintained.