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Court Security Bill 2013

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2010 - 2011 - 2012 - 2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

COURT SECURITY BILL 2013

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by the authority of the Attorney-General,

the Hon Mark Dreyfus, QC MP)



COURT SECURITY BILL 2013

GENERAL OUTLINE

1.                    This Bill creates a new framework for court security arrangements for federal courts and tribunals.  The new framework will meet the security needs of the modern court environment by providing a range of powers for security officers, and limited powers for authorised court officers, to ensure that court premises are safe and secure environments for court users, court staff, judicial officers and other persons on federal court and tribunal premises.  The Bill replaces the current security framework for federal courts and tribunals under Part IIA of the Public Order (Protection of Persons and Property) Act 1971 (Public Order Act).

2.                    For ease of reference, the use of the term ‘court’ in this document includes all federal courts, the Family Court of Western Australia (FCWA) and the Administrative Appeals Tribunal (AAT) unless otherwise specified.

3.                    Part 1 of the Bill deals with preliminary matters, including commencement and definitions.  It also provides a guide to the remainder of the Bill.

4.                    Part 2 of the Bill establishes the framework for the exercise of security powers on court premises.  Division 1 provides for the appointment of security officers and authorised court officers by administrative heads of courts and requires appointed officers to hold prescribed qualifications.  Divisions 2, 3 and 4 outline the powers available to security officers and authorised court officers and prescribes certain offences related to non-compliance with the exercise of these powers.  Division 5 authorises security officers to escort people to and from court premises as a protective measure.  Division 6 provides various safeguards around the exercise of security powers, including requiring security officers to be appropriately licensed under a law of a State or Territory, and to carry, and produce, identification when exercising a security power in relation to a person.  Division 7 provides for complaint procedures in relation to the exercise of powers by officers under the Bill, and an oversight role for the Commonwealth Ombudsman.

5.                    Part 3 of the Bill prescribes certain additional offences connected with court premises including possessing a weapon on court premises, making an unauthorised recording or transmission on court premises, and unreasonably obstructing a person’s entry to, or activity on court premises.

6.                    Part 4 of the Bill provides for judicial officers of courts exercising family law jurisdiction to make restraining or protection type orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts.

7.                    Part 5 of the Bill deals with miscellaneous matters including immunity from suit, compensation and delegations.  It also enables the Governor-General to make regulations.

8.                    The Court Security (Consequential Amendments) Bill 2013 removes the courts and tribunals covered by this Bill from the application of provisions of the Public Order Act.

FINANCIAL IMPACT STATEMENT

9.                    There will be financial implications for the courts in implementing the Bill, associated with training staff and contracted guards to exercise powers under the Bill.  These costs will be absorbed within existing resources.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Court Security Bill 2013

1.                    This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

2.                    The Bill improves court security by providing a security framework consistent with the needs of the modern court environment.  The Bill provides uniform security arrangements for all federal courts, the Family Court of Western Australia and the Administrative Appeals Tribunal.

3.                    The main purposes of the Bill are to ensure the secure and orderly operation of courts; and the safety of persons on, and going to and from, court premises.  Effective court security arrangements are a critical precondition for the effective administration of justice.  The framework established by the Bill:

·          allows courts to appoint persons as security officers and authorised court officers

·          prescribes a range of powers that security officers and authorised court officers are able to exercise to ensure the safety of judicial officers, court staff and court users

·          prescribes a number of offences relating to court security, and

·          contains safeguards around the exercise of powers under the Bill, including licensing and training requirements for appointed officers, identification requirements, complaints mechanisms and oversight by the Commonwealth Ombudsman.

 

Human Rights Implications

4.                    The Bill engages a number of rights under the International Covenant on Civil and Political Rights (ICCPR).  These include the right to access to justice under Articles 2 and 14; the right to liberty and security of person, and freedom from arbitrary arrest or detention, under Article 9; the right to liberty of movement under Article 12; the right to presumption of innocence under Article 14; and the right to privacy and reputation under Article 17.  The Bill also engages the right to enjoy and benefit from culture under Article 27 of the ICCPR and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

 

Right to access to justice

5.                    The Bill engages the right to access to justice, which is implied in the right to effective remedy under Article 2(3) of the ICCPR.  Article 2(3) protects the right to effective remedy for violation of rights or freedoms recognised by the ICCPR, and provides for a person’s right to be determined by competent judicial authorities, by administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.  Article 14(1) of the ICCPR protects the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, in the determination of any criminal charge against a person, or the determination of a person’s rights and obligations in a suit at law.

6.                    The right to access to justice is not absolute.  The Bill both promotes and limits elements of the right to access to justice.

7.                    Divisions 3 and 4 of the Bill authorise appointed security officers and authorised court officers to refuse, or prevent entry to, court premises in certain circumstances and to direct a person to leave, or to remove a person from, court premises in certain circumstances.  These circumstances are where a person fails to comply with a request made by a security officer or an authorised security officer (such as a request to undergo security screening or to give a dangerous item for safekeeping), or where a person is harassing or intimidating a person on the premises, threatening violence to a person or property on the premises, or committing an offence on the premises.  

8.                    The exercise of these powers may both limit and promote the right to access to justice.  It may limit the right to access to justice of a person in relation to whom the security powers are exercised.  However, the limitation is not arbitrary.   It is reasonable, necessary and proportionate to the objective of ensuring the security of court premises and safety of persons on court premises.  Authorising court administrators to appoint appropriately trained security officers to exercise security powers to ensure the security of court premises and safety of persons on court premises promotes the right to access to justice for all court users.  If court premises are not protected in this way, the effective administration of justice would be jeopardised.  Persons, particularly those against whom threats have been made, may reasonably fear attending court premises to enforce their rights, and consequently, their right to access to justice would be limited. 

9.                    Clause 41 of the Bill provides that certain courts may make orders restricting a person’s ability to enter or approach court premises if the person poses an ongoing risk of significant disruption to court proceedings, court administration or lawful activities on court premises; or a risk of violence to persons or property on court premises, or court members or staff.  

10.                An order under clause 41 may limit the right to access to justice of the person subject to the order.  However, the limitation is not arbitrary.   It is reasonable, necessary and proportionate to the objective of ensuring the effective administration of a court and the safety of judicial officers, court staff and persons on court premises.  In addition, subclause 41(4) of the Bill contains an important safeguard in relation to orders made under clause 41.  An order made under clause 41 must not prevent a person attending court premises to conduct legitimate court business.  This includes filing documents relating to proceedings to which the person is a party, or attending a hearing of court proceedings to which the person is a party.  Further, before making an order under clause 41, a judicial officer is required to consider any hardship that may be caused to the person and any arrangements that may need to be put in place to enable the person to access court premises for legitimate court business. 

11.                The provisions of the Bill balance a person’s right to enter and remain on court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.

12.                Article 14(1) of the ICCPR also provides a right to a public hearing, which incorporates the principle that justice should not only be done, but be seen to be done, by subjecting legal proceedings to public scrutiny.  However, Article 14(1) provides that the public may be excluded from all or part of a trial when the interests of the private lives of the parties so require or where publicity would prejudice the interests of justice. 

13.                Clause 17 of the Bill engages this element of the right by providing security officers and authorised court officers with the power to prevent the making of unauthorised recordings or transmissions on court premises and to delete unauthorised material on recording devices.  This power is necessary, reasonable and proportionate because proceedings in federal courts and tribunals, particularly family law matters, often disclose sensitive personal information about people, and it is appropriate that the public release of such information is restricted.  This is consistent with section 121 of the Family Law Act 1975 which makes it an offence, punishable by 12 months imprisonment, to publish proceedings or images that identify people involved in family law proceedings unless a Publication Order has been made or another section 121 exemption applies. 

14.                The Bill allows courts to permit devices to be used where this is considered appropriate.  This is consistent with the longstanding practice of federal courts and tribunals in relation to recording devices.  There are a range of other mechanisms that allow for public scrutiny, including allowing public access to court proceedings, and providing for the outcomes of proceedings and sometimes transcripts, to be made public (sometimes in anonymised form).

 

Right to liberty of movement

15.                Article 12 of the ICCPR protects the right to liberty of movement.  This right is not absolute.  Article 12(3) of the ICCPR provides for the express limitation of the right to liberty of movement in certain circumstances.  These circumstances include restrictions which are necessary to protect public order or the rights and freedoms of others.  The Bill may consequently limit aspects of the right to liberty of movement, consistent with this express limitation. 

16.                Divisions 3 and 4 of the Bill authorise appointed security officers and authorised court officers to refuse, or prevent entry to, court premises in certain circumstances and to direct a person to leave, or to remove a person from, court premises in certain circumstances.  These circumstances are where a person fails to comply with a request made by a security officer or an authorised security officer (such as a request to undergo security screening or to hand over a dangerous item for safekeeping), or where an officer reasonably believes that a person is harassing or intimidating a person on the premises, threatening violence to a person or property on the premises, or committing an offence on the premises.  

17.                The exercise of these powers may limit the right to liberty of movement of a person in relation to whom the security powers are exercised.  However, the limitation is not arbitrary.   It is reasonable, necessary and proportionate to the objective of ensuring public order on court premises and the safety of other persons on court premises.  If court premises are not protected in this way, the effective administration of justice would be jeopardised.  Persons, particularly those against whom threats have been made, may reasonably fear attending court premises to enforce their rights, and consequently, their right to access to justice would be limited. 

 

Right to privacy and reputation

18.                Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence and protects a person’s honour and reputation from personal attack.  Article 17 of the ICCPR is not absolute.  It does not prohibit lawful interference or interference which is not arbitrary.  The Bill both promotes and limits elements of this right.

19.                Clause 39 of the Bill promotes the right to privacy and reputation by prohibiting the making of an unauthorised recording or transmission of court proceedings or associated event.  This restriction applies to both audio and visual recording and transmitting devices.  As court proceedings often reveal sensitive personal details, it is important that unauthorised recordings or transmissions are not made and distributed.  The offence of making an unauthorised recording or transmission does not apply to certain recordings or transmissions, including recordings made in the operation of a hearing aid.   

20.                The Bill may also limit elements of the right to privacy and reputation. 

21.                Clause 14 of the Bill authorises appointed security officers to request a person who is seeking to enter, or is on, court premises to undergo a screening procedure.  An appointed security officer or an authorised court officer may request a person to remove outer garments of clothing or items from pockets, and require a person to produce an item for inspection.  If the officer reasonably believes that at item may be a dangerous item, the officer may request a person to answer reasonable questions about the item.  Clause 19 of the Bill authorises appointed security officers to request a person to undergo a frisk search. 

22.                Any interference with the right to privacy due to the exercise of these screening powers is authorised by law and is not arbitrary.  The objective is to ensure the safety of all persons on court premises by preventing dangerous items being brought on to court premises.  The powers are necessary, reasonable and proportionate to this objective.  The power to request a person to undergo a frisk search is limited to basic pat-down searches and does not extend to more invasive search techniques.  ‘Frisk search’ is defined in clause 5 of the Bill to mean ‘a search of a person by quickly running hands over the person’s outer garments and examining anything worn or carried by the person that is voluntarily removed by the person’. Clause 19 provides that a frisk search is required to be conducted by a person of the same sex as the person being searched, except in circumstances where a security officer or other officer of the same sex is not available. 

23.                A person is not required to undergo a screening procedure or a frisk search.  However, if a person refuses a request to do so, an authorised court officer or security officer may refuse a person entry or direct a person to leave the court premises.  This is necessary and reasonable to ensure that courts are able to reduce the risk of harm to other persons on their premises.  The provisions appropriately balance a person’s right to privacy against the right of others to security of person.

24.                Clause 15 of the Bill authorises appointed security officers and authorised court officers to request a person to provide identification information in certain circumstances.  The power limits a person’s right to privacy within the express limitation provided in Article 17 of the ICCPR, as it is neither arbitrary nor unlawful.  Officers may only exercise the power where they reasonably believe a person is harassing or intimidating a person on the premises, threatening violence to a person or property on the premises, or committing an offence on the premises.  The objective is to ensure that security officers and authorised court officers can appropriately respond to, and report, security incidents on court premises. The power is necessary, reasonable and proportionate to this objective.

25.                Clause 17 of the Bill authorises appointed security officers and authorised court officers to inspect recording and transmitting devices where an officer reasonably suspects that the device has been, is being, or will be used for making an unauthorised recording or transmission, and to delete any unauthorised recordings.  This power may interfere with a person’s right to privacy as personal data may be contained on the device.  However, the interference is neither arbitrary nor unlawful.  The threshold for exercising the power is high, as an officer may only inspect a device if he or she reasonably suspects that the device has been, is being, or will be used for making an unauthorised recording or transmission.  Further, the exercise of the power is reasonable, necessary and proportionate to the objective of protecting the privacy of others.  The Bill provides that where a device is damaged due to insufficient care being taken by a security officer or an authorised court officer inspecting the device, the owner of the device can seek compensation from the Commonwealth.

26.                The powers in clauses 14, 15, 17 and 19 of the Bill are therefore consistent with the right to privacy in Article 17 of the ICCPR.

 

Right to liberty and security of person 

27.                Article 9 of the ICCPR protects the right to liberty and security of person.  This right prohibits the arbitrary arrest or detention of a person.  Article 9(2) of the ICCPR provides that a person has the right to be informed at the time of arrest, of the reasons for his or her arrest.  

28.                Clause 28 of the Bill limits the right to liberty and security of person by authorising appointed security officers to detain a person for the purposes of delivering the person into the custody of a police officer.  This power can only be exercised where a security officer reasonably believes that the person has committed, or attempted to commit, an offence on the premises, and the person needs to be detained to prevent violence to a person on the court premises or serious damage to court premises.  A security officer exercising this power may only use such force as is necessary and reasonable in the circumstances to detain the person and must inform the person of the alleged offence unless it is reasonable to expect that the person already possesses this knowledge, or it is impracticable to do so. 

29.                A security officer exercising this power must also ensure that the person is delivered into police custody as soon as possible.  The objective is to ensure the safety and security of persons on court premises and court property.  The power is necessary, reasonable and proportionate to this objective and is therefore consistent with the prohibition against arbitrary detention of a person in Article 9 of the ICCPR.

 

Right to presumption of innocence

30.                Article 14(2) of the ICCPR protects the right of a person charged with a criminal offence ‘to be presumed innocent until proven guilty according to law’. 

31.                Clause 12 of the Bill engages the right to presumption of innocence by providing an offence of strict liability if a person ceases to be a security officer or an authorised court officer and does not, as soon as practicable, return their identity card to the court. 

32.                Generally speaking, offences comprise physical elements (such as conduct) and fault elements (which relate to the defendant’s state of mind at the time the physical elements are engaged in, or arise).  The Criminal Code, which is scheduled to the Criminal Code Act 1995  (Cth), codifies the general principles of criminal responsibility under the laws of the Commonwealth, and applies to any Commonwealth offence.  Section 6.1 of the Criminal Code states that ‘[i]f a law that creates an offence provides that the offence is an offence of strict liability… there are no fault elements for any of the physical elements of the offence.’  The physical elements giving rise to the offence still must be proved.  The strict liability nature of the offence is appropriate in this case given the importance of deterring the offence, and thereby reducing the potential for identity cards to be misused, and the fact that the penalty for the offence is very low. 

33.                The Bill also engages the right to presumption of innocence by providing a number of reverse evidential burdens on a defendant in relation to certain offences.  There are evidential burdens on the defendant as to whether an identity card is lost or destroyed (clause 12), whether a weapon was possessed by a person in the performance of his or her duties or constituted evidence in relevant proceedings (clause 38), or whether an exception to the offence of making an unauthorised recording or transmission on court premises applies (clause 39). 

34.                The reverse burden provisions have a legitimate aim and are reasonable, necessary and proportionate.  The penalties are low, the offences only impose an evidential burden, as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden, and the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

 

Right to enjoy and benefit from culture

35.                Articles 27 of the ICCPR and 15 of the ICESCR provide that everyone has the right to enjoy and benefit from culture. 

36.                Clause 14 of the Bill engages this right by providing security officers and authorised court officers with the power to request a person to remove certain items of outer clothing, including overcoat, coat or jacket and any gloves, shoes or hat.  The reference to certain clothing items is not intended to interfere with persons wearing traditional religious or cultural attire.  The purpose of the provision is to enable courts to ensure that dangerous items are not brought on to court premises.  The power is reasonable, necessary and proportionate to achieve this purpose.  The power enhances the right of others to access to justice and to security of person, by limiting the risk of harm to persons attending court premises. 

Conclusion

37.                The Bill is compatible with human rights because it advances the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate.



NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1 - Short title

1.                   This clause specifies that when the Bill is enacted, it is to be cited as the Court Security Act 2013 .

Clause 2 - Commencement

2.                    This clause contains a table setting out when the various parts of the Bill are to commence.  Clauses 1 and 2 of the Bill (and anything else in the Bill not otherwise covered in the table) will commence on the day on which the Bill receives Royal Assent.  Clauses 3 to 52 are to commence on a day to be fixed by proclamation.  However, if the provisions do not commence within 6 months of the day on which the Bill receives the Royal Assent, they are to commence on the day after the end of that period.

3.                    These commencement provisions allow time for the courts to put in place the necessary practices and procedures for the exercise of security powers by officers under the Bill.

Clause 3 - Objects of this Act

4.                    This clause explains that the main purpose of the Bill is to ensure the secure and orderly operation of courts, and the safety of persons on, and going to and from, court premises.

Clause 4 - Simplified outline of this Act

5.                    This clause sets out an outline of the Bill, including a brief description of the various Parts of the Bill.

Clause 5 - Definitions

6.                    This clause contains a list of every term that is defined in the Bill.  The definitions are explained below. 

Administrative head is defined in this clause to mean the person specified for each court in the table.

AFP member is defined in this clause to mean a member of the Australian Federal Police or a special member as defined in the Australian Federal Police Act 1979.

Authorised court officer is defined in this clause to mean a person appointed under clause 10.  Authorised court officers are able to exercise a limited range of powers under Divisions 2 and 3 of the Bill.  These powers primarily involve making requests of, and directing, persons on court premises. 

Court is defined in this clause to mean a federal court, the FCWA, the AAT, or a tribunal that is prescribed by the regulations for the purposes of this paragraph.

Court premises is broadly defined in this clause to mean any premises occupied or used in connection with the sittings or any other operations of a court, or premises specified in an order under clause 6.  The note to the definition provides some examples of premises which would be court premises.  These include court parking areas, driveways, courtyards and forecourts.  The examples are not intended to limit the definition of court premises.  This definition is based on the existing definition in section 13A of the Public Order (Protection of Persons and Property) Act 1971 .

Dangerous item is broadly defined in this clause to mean a weapon, or an item that is or could be used in a dangerous or threatening way.  The definition is intended to cover items which come within the ordinary meaning of weapon, for example, a firearm, as well as other items which would not normally come within the ordinary meaning of weapon, but which could be used in a dangerous or threatening way.  Examples of such items include umbrellas, screwdrivers, needles, scissors, and sports equipment.   This broad definition is required to ensure that access to weapons and other items which could be used in a dangerous or threatening way on court premises can be appropriately limited.

Data storage device is defined in this clause to mean any article or material (for example, a disk) from which a recording can be reproduced, with or without the aid of any other article or device. 

Frisk search is defined in this clause to mean a search of a person by quickly running hands over the person’s outer garments and examining anything worn or carried by the person that is voluntarily removed by the person.  This definition is the same as that in section 3C of the Crimes Act 1914 .

Identity card is defined in this clause to mean an identity card issued under clause 12 or referred to in clause 13.  An identity card issued under clause 12, is a card issued by an administrative head of a court to a person appointed as a security officer or an authorised court officer.  An identity card referred to in clause 13 is an identity card containing a recent photograph of the person that is issued by a State or Territory authority responsible for licensing persons to guard property, or a person or body prescribed by the regulations.

Member of a court is defined in this clause to mean a Justice (including a Chief Justice) of a court, a Judge (including a Chief Judge or Deputy Chief Judge) of a court, a registrar or deputy registrar of a court, or a member of the AAT or tribunal prescribed by the regulations for the purposes of paragraph (d) of the definition of court.

Police officer is defined in this clause to mean an AFP member or a member (however described) of a police force of a State or Territory.

Premises is broadly defined in this clause to mean an area of land or any place (whether or not it is enclosed or built-on), a building or other structure, or a part of any premises. This broad definition is necessary as courts can occupy parts of buildings, or sit ‘on country’.

Recording device is defined in this clause to mean a device for recording sound, or still or moving images.

Screening equipment is defined in this clause to mean a metal detector or device for detecting objects or particular substances.

Security officer is defined in this clause to mean a person appointed under clause 9 of the Bill, an AFP member, a protective service officer as defined in Australian Federal Police Act 1979 or a special protective service officer as defined in that Act .   A security officer has the legal authority to exercise the powers of a security officer under the Bill.  The definition ensures that if an AFP member or protective service officer attends a security incident at court premises, or is assigned to provide additional security at court premises, the officer is able to exercise the powers of a security officer under the Bill.  Clause 50 provides that these powers are additional to any powers those officers have apart from this Bill. 

Transmitting device is defined in this clause to mean a device for transmitting sound, or still or moving images, regardless of the means and form of the transmission or what additional equipment may be required to make any transmission audible or visible. 

Undergo a screening procedure is defined in this clause to mean if a person walks, or is moved through screening equipment; handheld screening equipment is passed over or around the person or things in the person’s possession; or things in a person’s possession are passed through screening equipment or examined by x-ray.

Clause 6 - Orders identifying court premises

7.                    This clause replicates section 13AA of the Public Order (Protection of Persons and Property) Act 1971 which applies to the Federal Court, but extends its application to the other federal courts, the FCWA and the AAT.  The purpose of the clause is to allow areas that are not normal court rooms or otherwise ‘court premises’ to be clearly designated for a period as court premises.  This is to make sure that it is clear where authorised court officers and security officers can exercise powers under the Bill in the interests of court security.  The clause is necessary because the federal courts undertake circuits and hold proceedings in a range of different locations, including hearings ‘on country’ in native title matters.

8.                    While it is not expected that court premises orders would be used frequently, it is important to provide a mechanism to designate certain premises (broadly defined in clause 5 to include an area of land) as court premises in circumstances where the perimeter of the premises may be unclear. 

9.                    Subclause 6(1) provides that the administrative head of a court, defined in clause 5, may make a written order, called a ‘court premises order’ which specifies that certain premises are court premises for the purposes of the definition of court premises in clause 5.

10.                 Subclause 6(2) provides that the administrative head of a court may make a court premises order in respect of particular premises only where he or she is satisfied that the premises are likely to be occupied or used in connection with sittings or other operations of the court. 

11.                 Paragraph 6(3)(a) requires that a court premises order must describe the premises to which it relates.  It is intended that a court premises order could describe buildings other than the court’s usual courthouses but also places other than buildings - such as where the court is sitting on open land.  Where the court is sitting on open land, the premises could be described as an area within a certain radius of the bench.

12.                 Paragraph 6(3)(b) provides that a court premises order has effect for the period specified in the order or until it is revoked.  The note below this paragraph cross-references subsection 33(3) of the Acts Interpretation Act 1901 which deals with revocation.

13.                 Subclause 6(4) requires that the administrative head of a court must give notice of the court premises order to anyone likely to be directly affected by the order.  Subclause 6(5) sets out how this notice may be given.  Subparagraph 6(5)(a)(i) requires that before the premises to which the order relates are occupied or used by the court, a copy of the order is to be posted in a prominent place in the vicinity of the premises.  Subparagraph 6(5)(a)(ii) requires that if the premises are occupied or used for the purposes of a sitting or proceeding, an announcement must be made at the beginning of, or during, the sitting or proceeding describing the order and its effect.  Additionally, paragraph 6(5)(b) provides that, if regulations are in force in relation to the giving of notice, the requirements prescribed by the regulations must also be complied with.  Subclause 6(6) provides that the regulations may prescribe the form and content of the notice and the manner in which it is given.

14.                 The requirement that members of the public be notified that a court premises order has been made and of the premises to which it applies is appropriate given that the powers conferred on officers under the Bill involve interference with the liberty of the individual and criminal sanctions may apply for non-compliance.  The notice requirements are consistent with notice provisions in comparable areas of Commonwealth law such as trespass.  Decisions to make court premises orders will be reviewable under the Administrative Decisions (Judicial Review) Act 1977 .

15.                 Subclause 6(7) states that a court premises order is not a legislative instrument.  This provision is included to avoid doubt, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

  Clause 7 - This Act binds the Crown

16.                This clause expressly provides that Bill will bind the Crown in each of its capacities, not only in right of the Commonwealth.  However, the Crown is not liable to be prosecuted for an offence under the Bill. 

Clause 8 - Extension to external Territories

17.                This clause provides that the Bill will apply to every external territory of Australia.  External territory has the meaning given to it by the Acts Interpretation Act 1901 .  On this basis, ‘external territory’ refers to a territory that is not an internal territory and for the government of which, as a territory, provision is made by any Act.

Part 2—Security officers and authorised court officers

18.                Part 2 of the Bill establishes the framework for the exercise of security powers on court premises.  Division 1 provides for the appointment of security officers and authorised court officers by administrative heads of courts and requires appointed officers to hold prescribed qualifications.  Divisions 2, 3 and 4 outline the powers available to security officers and authorised court officers and prescribes certain offences related to non-compliance with the exercise of these powers.  Division 5 authorises security officers to escort people to and from court premises as a protective measure.  Division 6 provides various safeguards around the exercise of security powers, including requiring security officers to be appropriately licensed under a law of a State or Territory and to carry and produce identification when exercising a security power in relation to a person.  Division 7 provides for complaint procedures in relation to the exercise of powers by officers under the Bill and an oversight role for the Commonwealth Ombudsman.

Division 1—Appointment of security officers and authorised court officers

Clause 9 - Appointment of security officers

19.                This clause enables an administrative head of a court, to appoint a ‘security officer’ for court premises generally or for specified court premises (‘court premises’ is defined in clause 5).  A person appointed under clause 9 has the legal authority to exercise the powers of a security officer under the Bill. 

20.                Security officers are able to exercise a broader range of powers than authorised court officers appointed under clause 10, but also need to meet additional training and licensing requirements.  These broader powers include the power to conduct a security screening procedure using electronic screening equipment (clause 14) or a frisk search (clause 19), and powers supported by the use of reasonable and necessary force (Division 4).  This two-tier appointment model gives courts and tribunals flexibility around the types of officers they are able to appoint.  This is desirable given that not all courts and tribunals face the same security risks and not all have the same security needs.  Under this model, courts will be able to ensure that, at a relevant court premises, there is the appropriate number, and type, of officers to be able to deal with the types of security incidents that are likely to arise at those premises.

21.                An administrative head of a court may only appoint a person as a security officer if the person holds the qualifications prescribed by the regulations.  Clause 33 (which is cross-referenced in the note under clause 9) additionally requires an appointed security officer to be licensed under the law of a State or Territory to guard property, or otherwise be a person prescribed by the regulations.  These two requirements ensure that appointed security officers have undergone appropriate probity checks and are appropriately trained. 

22.                 The requirement for appointments to be in writing is to ensure that there is appropriate accountability for, and record of, appointment decisions.  Clause 51 provides that an administrative head of a court may delegate, in writing, the administrative head’s powers and functions under clause 9.  This is to ensure that the Bill provides a sufficiently flexible framework to allow appropriate and timely guarding measures to be put in place in different court locations, while also ensuring that there is proper accountability for appointment decisions. 

Clause 10 - Appointment of authorised court officers

23.                This clause enables an administrative head of a court to appoint an ‘authorised court officer’ for court premises generally or for specified court premises (‘court premises’ is defined in clause 5).  A person appointed under clause 10 has the legal authority to exercise the powers of an authorised court officer under the Bill.  These powers are more limited than those of security officers appointed under clause 9.

24.                The powers of authorised court officers under Divisions 2 and 3 primarily involve making requests of, and directing, persons on court premises.  These powers are similar in nature to powers that court officers are able to exercise under the common law on behalf of the court as an ‘occupier of premises’.  The Bill does not authorise authorised court officers to use force in any circumstances.  This two-tier appointment model gives courts and tribunals flexibility around the types of officers they are able to appoint.  This is desirable given that not all courts and tribunals face the same security risks and not all have the same security needs.  Under this model, courts will be able to ensure that, at a relevant court premises, there is the appropriate number, and type, of officers to be able to deal with the types of security incidents that are likely to arise at those premises.

25.                 An administrative head of a court may only appoint a person as an authorised court officer if the person has completed the training prescribed by the regulations.  This is to ensure that all authorised court officers who will be exercising powers under the Bill have appropriate training. 

26.                The requirement for appointments to be in writing is to ensure that there is appropriate accountability for, and record of, appointment decisions.  Clause 51 provides that an administrative head of a court may delegate, in writing, the administrative head’s powers and functions under clause 10.  This is to ensure that the Bill provides a sufficiently flexible framework to allow appropriate and timely guarding measures to be put in place in different court locations, while also ensuring that there is proper accountability for appointment decisions. 

Clause 11 - Appointment may relate to any court premises

27.                This clause clarifies that an administrative head of a court may appoint a person as a security officer or an authorised court officer for the court premises of the administrative head’s ‘own’ court and/or the premises of other courts covered by the Bill.  This flexibility is required because it is common for a federal court or tribunal to share a building with other courts and tribunals.  In these circumstances it is desirable and efficient that, in accordance with any agreement between administrative heads, one court or tribunal can take responsibility for engaging security personnel for the whole building.  This will avoid the need for co-located courts and tribunals to individually appoint security officers.

Clause 12 - Identity cards

28.                This clause requires an administrative head of a court to issue an identity card to each appointed security officer or an authorised court officer, unless the exception in clause 13 applies.  The identity card must be in the form prescribed by the regulations and have a recent photograph of the person.

29.                Clause 34 requires that a security officer or an authorised court officer must carry, and produce on request, the officer’s identity card (or other specified identification) when exercising a power, or performing a duty under the Bill.  These provisions ensure that a security officer or an authorised court officer is, at all relevant times, able to identify himself or herself as a person with authority to exercise a power or perform a duty under the Bill.  Clause 34 also imposes additional requirements in respect of Division 4 powers, which authorise use of necessary and reasonable force, and the power under clause 31 to give a direction to a person beyond court premises.

30.                Given the serious consequences that could arise if an identity card is misused, s ubclauses 12(3) and (4) provide that a person commits a strict liability offence, carrying a maximum penalty of 1 penalty unit, if he or she fails to return the identity card to the administrative head of the court as soon as practicable after ceasing to be a security officer or an authorised court officer.  The note to subclause (4) cross-references section 6.1 of the Criminal Code Act 1995 for a definition of strict liability. 

31.                Subclause 12(5) provides that the offence does not apply if the identity card was lost or destroyed. The note to subclause (5) clarifies that a defendant bears an evidential burden in relation to this matter and cross-references subsection 13.3(3) of the Criminal Code Act 1995  In line with Commonwealth criminal law policy, the strict liability nature of the offence and the bearing of the evidential burden in relation to the loss or destruction of an identity card are appropriate due to the low penalty, the importance of officers being aware of the significance of the identity cards and the fact that the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

 

Clause 13 - Exception to requirement to issue identity card

32.                 This clause provides that an administrative head of a court is not required to issue an identity card under clause 12 if the person already has an identity card issued by a State or Territory authority responsible for licensing persons to guard property, or a person or body prescribed in the regulations, and the identity card contains a recent photograph of the person.

33.                This exception is intended to give the federal courts and tribunals flexibility to rely on photo identity cards issued by State and Territory bodies responsible for licensing security officers where necessary.  For example, where a security officer is required to commence duties urgently and there is insufficient time, or it is otherwise not feasible, for the administrative head of a court, or delegate, to issue an identity card to the person.  This may occur if there is an unanticipated security incident outside of business hours or at court sittings in a remote location. 

Division 2 - Requests that may be made of persons seeking to enter, or on, court premises

34.                Division 2 prescribes a range of ‘request’ type powers that may be exercised by authorised court officers and security officers in relation to persons seeking to enter, or on, court premises.  These powers include requests relating to screening procedures, provision of evidence of identification, giving dangerous items to a security officer or an authorised court officer for safekeeping, inspection and operation of recording, data storage and transmitting devices, and frisk searches.  The power to request a person seeking to enter, or on, court premises to undergo an electronic screening procedure or to undertake a frisk search can only be exercised by a security officer.  Division 2 also establishes offences for where a person fails to comply with a request.  

35.                The exercise of powers by officers under Division 2 is not intended to unduly prevent a person from accessing court premises.  The powers balance a person’s right to enter and remain upon court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.

Clause 14 - Requests relating to screening etc.

36.                Subclause 14(1) enables a security officer to request a person who seeks to enter, or is on, court premises to undergo a screening procedure.  Undergo a screening procedure is defined in clause 5 to mean if a person walks, or is moved through, screening equipment; handheld screening equipment is passed over or around the person or things in the person’s possession; or things in a person’s possession are passed through screening equipment or examined by x-ray.  Security screening is necessary to ensure that dangerous items are not brought on to court premises.

37.                Subclause 14(2) enables a security officer or an authorised court officer to request a person who seeks to enter, or is on, court premises to do any of the following:

  • remove items of outer clothing including an overcoat, coat or jacket and any gloves, shoes or hat
  • remove items from his or her pockets, and
  • produce an item in the person’s possession (including, for example, an item of baggage) for inspection.

38.                  Subclause 14(2) is not intended to authorise interference with persons wearing traditional religious or cultural attire. 

39.                If a security officer or an authorised court officer reasonably believes that the person has a ‘dangerous item’, he or she may request that the person answer reasonable questions about the item.  ‘Dangerous item’ is defined broadly in clause 5 of the Bill to mean a weapon or an item that is or could be used in a dangerous or threatening way.  The definition is intended to cover items which come within the ordinary meaning of weapon, for example, a firearm, as well as other items which would not normally come within the ordinary meaning of weapon, but which could be used in a dangerous or threatening way.  Examples of such items include umbrellas, screwdrivers, needles, scissors, and sports equipment.

40.                The note to subclause 14(2) cross-references Divisions 3 and 4, which deal with the powers of security officers and authorised court officers if a person does not comply with a request.  These powers include the power of a security officer or an authorised court officer to refuse a person entry to court premises or direct a person to leave court premises, and the power of security officer to prevent a person from entering court premises, or to remove a person from court premises.

Clause 15 - Requests relating to identification etc.

41.                Subclause 15(1) enables a security officer or an authorised court officer to request a person who seeks to enter, or is on, court premises to disclose their name, address and reason for being on court premises, and to provide evidence of identity (an identification request), if the security officer or authorised court officer reasonably believes that the person:

·        is harassing or intimidating another person

·        is causing a reasonable apprehension of either violence to a person on the court premises or damage to the court premises

·        is significantly disrupting proceedings, administration of a court or lawful activities on the court premises, or

·        has committed, or is likely to commit, an offence on, or in relation to, the court premises.

42.                This power is necessary to ensure that security officers and authorised court officers can appropriately respond to, and report, security incidents on court premises.

43.                The note to subclause 15(2) cross-references Divisions 3 and 4, which deal with the powers of security officers and authorised court officers if a person does not comply with a request.  These powers include the power of a security officer or an authorised court officer to refuse a person entry to court premises or direct a person to leave court premises, and the power of a security officer to prevent a person from entering court premises, or remove a person from court premises.

44.                Subclause 15(2) establishes an offence where a security officer or an authorised court officer has made an identification request of a person under subclause 15(1) and informed the person that it is an offence if they do not either comply with the request, immediately leave the premises, or stop trying to enter the premises, and the person does not do any of those things.  The penalty for the offence is 20 penalty units.

Clause 16 - Requests to leave dangerous items for safekeeping

45.                Subclause 16(1) enables a security officer or an authorised court officer to request a person who seeks to enter, or is on, court premises to give a dangerous item to a security officer for safekeeping while the person is on court premises.  This power is necessary to ensure that dangerous items are not brought on to court premises.  ‘Dangerous item’ is defined broadly in clause 5 of the Act to mean a weapon or an item that is or could be used in a dangerous or threatening way.  This definition is intended to cover items which come within the ordinary meaning of weapon, for example, a firearm, as well as other items which would not normally come within the ordinary meaning of weapon, but which could be used in a dangerous or threatening way.  Examples of such items include umbrellas, screwdrivers, needles, scissors, and sports equipment.

46.                The note to subclause 16(1) cross-references Divisions 3 and 4, which deal with the powers of security officers and authorised court officers if a person does not comply with a request.  These powers include the power of a security officer or an authorised court officer to refuse a person entry to court premises or direct a person to leave court premises, and the power of a security officer to prevent a person from entering court premises, or remove a person from court premises.

47.                Subclause 16(2) provides that a security officer or an authorised court officer must return a dangerous item obtained under subclause 16(1) when the person is about to leave the court premises, if so requested.  However, subclause 16(3) provides that despite subclause 16(2), a security officer or an authorised court officer has power to seize a dangerous item obtained under subclause 16(1), if the officer reasonably suspects that:

  • the item has been, or is likely to be, used in the commission of an offence on the court premises; or
  • the item is a firearm or other weapon whose possession by the person is prohibited by the law of the State or Territory in which the court premises are located; or
  • returning the item is likely to give rise to an imminent threat to the safety of any person.  Such a reasonable belief may exist in circumstances where a security officer is aware that a person has made threats of harm against a person on court premises.

48.                In these circumstances, it would be inappropriate for an officer to return a dangerous item.  The power to seize in this clause does not authorise the use of force.  It applies only to items that have been given under subclause 16(1).  Clause 27 of the Bill deals with seizure of dangerous items in other circumstances. 

49.                Subclause 16(4) requires a security officer or an authorised court officer who has seized a dangerous item to give the item to a police officer as soon as reasonably practicable. 

Clause 17 - Requests relating to recording devices and data storage devices

50.                Subclause 17(1) enables a security officer or an authorised court officer to request a person who seeks to enter, or is on, court premises to hand over a recording device, data storage device, or transmitting device.  An officer may only make this request if the officer reasonably suspects that the device was used, or will be used, for making an ‘unauthorised recording’ or an ‘unauthorised transmission’ as defined in subclause 17(2).   An example of behaviour that may give rise to a reasonable suspicion is a person operating a smart phone or camera in a court room.

51.                Subclause 17(2) defines ‘unauthorised recording’ and ‘unauthorised transmission’ as a recording or transmission that: (a) is or will be of proceedings in a court, made without express permission of a member of the court as defined in clause 5, or (b) is or will be of another event relating to proceedings or proposed proceedings in a court on the court premises, made without express permission of the relevant administrative head.   This clause is to apply to both actual court proceedings and related events such as mediation and conciliation conferences.

52.                If a person does not comply with a request under subclause 17(1) to give a device to a security officer or an authorised court officer, subclause 17(3) authorises a security officer to seize the device.  Subclause 17(4) authorises a security officer or an authorised court officer to determine whether a device has been, is being, or will be, used for making or storing an unauthorised recording or unauthorised transmission.  A security officer or an authorised court officer may inspect the device, request the person to allow a security officer or an authorised court officer to operate the device, request the person to help a security officer or an authorised court officer to operate the device, or request the person to operate the device.

53.                Subclause 17(5) authorises a security officer or an authorised court officer to request the person in possession of the device not to use the device in an unauthorised manner, and/or to delete any unauthorised recordings.  Prior to making this request the security officer or an authorised court officer must inform the person that making an unauthorised recording or unauthorised transmission may be an offence.  This ensures that the person is aware of the consequences of non-compliance with a request.

54.                If a person does not comply with a request under subclauses 17(4) or (5), subclause 17(6) authorises an authorised court officer or a security officer to seize and operate the device to determine whether it has been, is being or will be used for making an unauthorised recording or unauthorised transmission. If a device is found to have been used for making an unauthorised recording or unauthorised transmission the officer may stop and temporarily prevent that use (for example, until a particular part of proceedings are over), or give the device to a police officer.   If there are unauthorised recordings on the device, the officer may either delete them, or give the device to a police officer.  Subclause 17(7) requires a security officer or an authorised court officer to return a device to a person after deleting any unauthorised recordings.

55.                Note 1 to subclause 17(6) cross-references clause 18, which prescribes offences for non-compliance with a request of a security officer or an authorised court officer under subclauses 17(1), (4) and (5).  Note 2 to subclause 17(6) cross-references clause 49, which provides for compensation if a device is damaged in the course of being operated under this clause.

56.                Clause 39 in Part 3 of the Bill makes it an offence for a person on court premises to make a recording or transmission of sound associated with court proceedings or events associated with court proceedings without permission.  This offence provision and the powers of security officers and authorised court officers under this clause to inspect and give directions about the use of recording and transmitting devices are designed to protect the integrity of the court process, and the privacy of litigants, rather than the physical security of a court building.  However, the Bill is a logical place to locate provisions of this kind since courts often rely on security officers to control the use of recording and transmitting devices on court premises.  The provisions provide a clear statement as to the powers available to authorised court officers and security officers for this purpose and are consistent with the longstanding practice of federal courts in relation to recording devices.    

57.                The provisions promote the ability of courts to protect the privacy of litigants.  This is appropriate given that proceedings, particularly family law proceedings, often involve sensitive and private information.   Section 121 of the Family Law Act 1975 makes it an offence punishable by 12 months imprisonment to publish proceedings or images that identify people involved in family law proceedings unless a Publication Order has been made or another section 121 exemption applies.  

Clause 18 - Offence —non-compliance with a request under section 17

38.               Clause 18 creates offences for non-compliance with requests of security officers or authorised court officers under clause 17 in relation to recording, data storage and transmitting devices. 

39.               Subclause 18(1) creates an offence if a person of whom a request has been made under subclause 17(1) to hand over a device does not either comply with the request or stop trying to enter court premises.   Non-compliance is only an offence if a person is informed at the time the request is made or as soon as practicable after that, that non-compliance may be an offence.  This is to ensure that a person is aware of the consequences of non-compliance.  

40.               Subclause 18(2) creates an offence if a person fails to comply with a request of a security officer or an authorised court officer under subclauses 17(4) or (5) (relating to the inspection, operation and use of a device and the deletion of any unauthorised recordings).  Non-compliance is only an offence if a person is informed at the time the request is made or as soon as practicable after that, that non-compliance may be an offence.  This is to ensure that a person is aware of the consequences of non-compliance. 

41.               The penalty for each of the offences under clause 18 is 20 penalty units.  The offences are necessary and appropriate for deterring non-compliance with reasonable requests under clause 17.  The requirements under clause 17 are directed to preventing unauthorised recording and transmission of proceedings or related events on court premises.  These provisions are designed to enable courts to protect the integrity of the court process and the privacy of litigants.

Clause 19 - Requests to undergo a frisk search

42.               Subclause 19(2) authorises a security officer to request a person who is seeking to enter, or is on, court premises to undergo a frisk search.  This may be necessary where there is a suspicion that a person is concealing a weapon.  Frisk search is defined in clause 5 to mean a search of a person by quickly running hands over the person’s outer garments and examining anything worn or carried by the person that is conveniently and voluntarily removed by the person.  This definition is the same as that in section 3C of the Crimes Act 1914 .

43.               Subclause 19(2) sets out how frisk searches must be conducted. It ensures that a person of the same sex as the person being searched will conduct frisk searches, except in circumstances where an officer or suitable person of the same sex is not available. 

44.               The power to request a frisk search of a person is necessary to achieve the legitimate objective of ensuring that dangerous items are not brought on to court premises, for the safety of all persons on court premises.  The power to conduct a frisk search of a person on court premises is currently contained in section 13D of the Public Order (Protections of Persons and Property) Act 1971 .

45.               A person is not required to undergo a frisk search.  However, if a person refuses a request to do so, an authorised court officer or a security officer may refuse a person entry or direct a person to leave the court premises under Division 3 and a security officer may prevent a person from entering court premises or remove a person from court premises under Division 4.  This power is reasonable and necessary to ensure that courts are able to reduce the risk of harm to other persons on their premises.  The provisions appropriately balance a person’s right to privacy against the right of others to security of person.

Division 3 - Power to refuse entry to or direct a person to leave court premises etc.

46.               Division 3 provides further ‘direction’ type powers that may be exercised by authorised court officers and security officers in relation to persons seeking to enter, or on, court premises.  These powers include the power to refuse entry to court premises, to direct a person to leave court premises, or to give general directions to a person on court premises in certain circumstances.  Division 3 also creates an offence for non-compliance with directions given under this Division. 

47.               The exercise of powers by security officers and authorised court officers under Division 3 are not intended to unduly prevent a person from accessing court premises.  The powers balance a person’s right to enter and remain upon court premises with the right of other court users, court staff and members of the public to a safe and secure court environment. 

Clause 20 - Non-compliance with request under Division 2

48.               Clause 20 authorises a security officer or an authorised court officer to refuse a person entry to court premises, or direct a person to leave court premises if the person does not comply with a request of a security officer or an authorised court officer under Division 2.    Division 2 prescribes a range of ‘request’ type powers which are primarily directed towards ensuring that dangerous items are not brought on to court premises and that security officers and authorised court officers can appropriately respond to and report security threats and incidents on court premises.  It is appropriate that if a person refuses or fails to comply with such a request, a security officer or an authorised court officer is empowered to refuse a person entry to court premises or direct a person to leave court premises.

58.                The power of a security officer or an authorised court officer to refuse a person entry to court premises, or direct a person to leave court premises is consistent with the existing power of an ‘authorised officer’ to direct a person to leave court premises in section 13E of the Public Order (Protection of Persons and Property) Act 1971 and the common law power of an owner or occupier of premises, or their agent, to refuse to allow a person to enter, or remain on, the premises.

Clause 21 - Harassment etc.

59.                Clause 21 authorises a security officer or an authorised court officer to refuse a person entry to court premises, or direct a person to leave court premises in specified circumstances.  This power can only be exercised if the officer reasonably believes that the person:

·          is harassing or intimidating another person

·          is causing a reasonable apprehension of either violence to a person on the court premises or damage to the court premises

·          is significantly disrupting proceedings, administration of a court or lawful activities on the court premises, or

·          has committed, or is likely to commit, an offence on, or in relation to, the court premises.

49.               This power balances a person’s right to enter and remain upon court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.  Harassing behaviour, violence and actions which significantly disrupt court proceedings interfere with the administration of justice and the ability of other court users to safely attend court proceedings.

Clause 22 - General directions power

50.               Subclause 22(1) authorises a security officer or an authorised court officer to direct a person to do, or not to do a thing if the officer reasonably believes a person:

·          is harassing or intimidating another person

·          is causing a reasonable apprehension of either violence to a person on the court premises or damage to the court premises

·          is significantly disrupting proceedings, administration of a court or lawful activities on the court premises, or

·          has committed, or is likely to commit, an offence on, or in relation to, the court premises.

51.               For example, a security officer might direct a person on court premises to move away and to stop verbally harassing another person. 

52.                Subclause 22(2) provides a safeguard on the use of this power.  A direction under subclause 22(1) must be reasonable to reduce or stop the harassment, intimidation, fear of violence or damage, disruption, or deal with or prevent the offence.  This is to ensure that the exercise of this power by a security officer or an authorised court officer does not unreasonably interfere with a person on court premises conducting legitimate court business.  The power balances a person’s right to enter and remain upon court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.  Harassing behaviour, violence and actions which significantly disrupt court proceedings interfere with the administration of justice and the ability of other court users to safely attend court proceedings.

Clause 23 - Offence—non-compliance with a direction

53.                This clause establishes an offence where a person fails to comply with a direction given by a security officer or an authorised court officer under clauses 20, 21 or 22 after being informed that non-compliance may be an offence. The penalty for the offence is 20 penalty units.  The offence under this clause is appropriate to deter persons from non-compliance.  It is consistent with current section 13E of the Public Order (Protection of Persons and Property) Act 1971 which prescribes an offence for failure to comply with a direction given under that section.

Division 4 - Power to prevent entry to or remove a person from court premises etc.

54.                Division 4 authorises security officers to exercise a limited range of security powers supported by the use of necessary and reasonable force.  These powers include preventing a person from entering court premises, removing a person from court premises, seizing a dangerous item from a person on court premises, and detaining a person on court premises for the purpose of delivering the person into the custody of a police officer.  These powers can only be exercised in limited circumstances.  A security officer may only use such force as is necessary and reasonable in the circumstances in exercising a power.  A security officer must show a person the officer’s identity card before exercising a power under Division 4 in relation to the person, or, if this is not reasonably practicable, as soon as reasonably practicable after exercising the power (subclause 34(3)).

55.                A security officer is defined in clause 5 to mean a person appointed under clause 9, an AFP member, a protective service officer or special protective service officer as defined in the Australian Federal Police Act 1979.  A person can only be appointed under clause 9 if he or she has the necessary qualifications prescribed by the regulations.

Clause 24 - Non-compliance with request under Division 2 or direction under Division 3

56.                This clause authorises a security officer to prevent a person from entering court premises, or remove a person from court premises if the person does not comply with a request under Division 2 or a direction under Division 3.  Security officer is defined in clause 5 to mean a person appointed under clause 9, an AFP member, a protective service officer or special protective service officer as defined in the Australian Federal Police Act 1979.

57.                Division 2 prescribes a range of ‘request’ type powers which are primarily directed towards ensuring that dangerous items are not brought on to court premises and that security officers and authorised court officers can appropriately respond to, and report, security threats and incidents on court premises.  Division 3 authorises a security officer or an authorised court officer to refuse a person entry to court premises, direct a person to leave court premises, or to give general directions to a person on court premises in certain circumstances.  It is appropriate that if a person refuses or fails to comply with such a request or direction, a security officer is empowered to prevent a person from entering court premises or to remove a person from court premises.

58.                The power to prevent a person from entering court premises, or to remove a person from court premises if a person does not comply with a request under Division 2 or a direction under Division 3 balances a person’s right to enter and remain upon court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.  Section 13E of the Public Order (Protection of Persons and Property) Act 1971 currently authorises a constable to refuse entry to, or remove a person from court premises. 

Clause 25 - Harassment etc.

59.                This clause enables a security officer to prevent a person from entering court premises, or remove a person from court premises in specified circumstances.  This power can only be exercised if the officer reasonably believes the person:

·          is harassing or intimidating another person

·          is causing a reasonable apprehension of either violence to a person on the court premises or damage to the court premises

·          is significantly disrupting proceedings, administration of a court or lawful activities on the court premises, or

·          has committed, or is likely to commit, an offence on, or in relation to, the court premises.

60.                This power balances a person’s right to enter and remain on court premises with the right of other court users, court staff and members of the public to a safe and secure court environment.  Harassing behaviour, violence and actions which significantly disrupt court proceedings interfere with the administration of justice and the ability of other court users to safely attend court proceedings.

61.                Security officer is defined in clause 5 to mean a person appointed under clause 9, an AFP member, a protective service officer or special protective service officer as defined in the Australian Federal Police Act 1979. A person can only be appointed under clause 9 if he or she has the necessary qualifications prescribed by the regulations.

Clause 26 - Use of force in exercising power under this Division

62.                Circumstances may arise in the court security context where a degree of force may be necessary.  This may be where a person on court premises attempts to harm him or herself or another person, or where a person causing significant disruption to court proceedings refuses to comply with requests to stop disrupting or leave. 

63.                Clause 26 provides that a security officer may only use such force as is necessary and reasonable in carrying out a power under clauses 24 or 25 to prevent a person from entering court premises or remove a person from court premises.  What constitutes necessary and reasonable force is a question of fact and will depend upon the circumstances.

64.                Security officer is defined in clause 5 to mean a person appointed under clause 9, an AFP member, a protective service officer or special protective service officer as defined in the Australian Federal Police Act 1979. A person can only be appointed under clause 9 if he or she has the necessary qualifications prescribed by the regulations.

Clause 27 - Power to seize dangerous item

65.                Subclause 27(1) allows a security officer to seize a dangerous item from a person in specified circumstances.  These circumstances include where a person on court premises has failed or refused to comply with a request of a security officer or an authorised court officer under clause 16 to give a dangerous item over for safekeeping.  It also includes emergency situations where a security officer reasonably believes that it is necessary to seize the item to prevent imminent harm to a person on court premises or serious damage to property on court premises, or to prevent or stop the commission of an offence on court premises.

66.                 ‘Dangerous item’ is defined broadly in clause 5 of the Bill to mean a weapon or an item that is or could be used in a dangerous or threatening way.  This definition is intended to cover items which come within the ordinary meaning of weapon, for example, a firearm, as well as other items which would not normally come within the ordinary meaning of weapon, but which could be used in a dangerous or threatening way.  Examples of such items include umbrellas, screwdrivers, needles, scissors, and sports equipment.

67.                Subclause 27(2) authorises a security officer to use only such force as is necessary and reasonable in the circumstances in seizing a dangerous item under this clause.  What constitutes necessary and reasonable force is a question of fact and will depend upon the circumstances.

68.                Subclause 27(3) provides that a security officer who seizes a dangerous item must either give the item to a police officer as soon as reasonably practicable or return the item to the person when the person is about to leave the premises, if the person requests the return of the item and the security officer is satisfied that:

·          the item has not been, and is not likely to be, used in the commission of an offence on the court premises

·          the item is not a firearm or other weapon the possession of which is prohibited by the law of the State or Territory in which the court premises are located, and

·          that returning the item is not likely to give rise to an imminent threat to the safety of any person. 

69.                In these circumstances, it would be inappropriate for an officer to return a dangerous item. 

Clause 28 - Power to detain a person

70.                Subclause 28(1) enables a security officer to detain a person for the purpose of delivering the person into the custody of a police officer in specified circumstances.  This power can only be exercised if a security officer reasonably believes that a person has committed, or attempted to commit, an offence on court premises and must be detained to prevent violence to someone on court premises or serious damage to court premises.

71.                Subclause 28(2) authorises a security officer to use only such force as is necessary and reasonable in the circumstances to detain a person under this clause.  What constitutes necessary and reasonable force is a question of fact and will depend upon the circumstances. Subclause 28(3) provides that the security officer must deliver the detained person to police as soon as possible to be dealt with according to law for the alleged offence.  This is to ensure that a person is not detained for any longer than necessary.  A security officer must also inform the person in general terms of the alleged offence unless it is impracticable for the security officer to do so.

72.                The power is necessary to ensure that a security officer can appropriately respond to a situation where a person has committed a serious offence on the premises, for example, where an assault of another court user occurs, and the officer reasonably believes that the person must be detained to prevent further violence. 

Division 5—Power to escort people to and from court premises

73.                Proceedings in federal courts, particularly family law matters, are often emotionally charged and involve animosity between the parties in dispute.  It is not unusual for threats to be made against particular court users or judicial officers.  Division 5 authorises a security officer to escort a person to court premises from nearby transport, or from court premises to nearby transport, to assist in ensuring the person’s safety in connection with the person’s attendance at court premises.  It also provides related powers and a supporting offence provision.

74.               These provisions are consistent with the fundamental principle of the family law courts’ Family Violence Strategy, that all who attend the courts and work on its premises should be safe.  They further support the existing processes that the courts have in place to ensure that clients are safe when they attend a court event (for example separate interviews, attendance by phone or video link, use of safe rooms, and use of separate entry and exit points).

Clause 29 - Security officer may escort people

75.                Subclause 29(1) enables a security officer to escort a person to court premises from nearby transport, or from court premises to nearby transport (for example, the person’s car, parked in a nearby public car park, or a nearby bus stop or taxi rank).  A security officer may escort a person where the officer reasonably believes that escorting the person will help ensure the person’s safety in connection with the person’s attendance at court premises. 

76.                This power is to assist in ensuring that court users can safely attend proceedings in circumstances where threats may have been made against them, for example in family law proceedings involving family violence.

Clause 30 - Use of force in escorting

77.                In escorting a person under clause 29, a security officer may only use defensive force.  That is, only such force as is necessary and reasonable in the circumstances to prevent or lessen an imminent threat to the safety of the person or a security officer.  What constitutes necessary and reasonable force is a question of fact and will depend upon the circumstances.  

Clause 31 - General directions power

78.                This clause authorises a security officer to give a direction to a person when escorting another person to or from court premises under clause 29.  The security officer may only give a direction if he or she reasonably believes that the direction is necessary to ensure the safety of the person or security officer.  For example, a security officer might direct a person behaving in an aggressive or hostile manner to step back or to stop blocking a pathway.  Non-compliance with a direction is an offence under clause 32.  Subclause 34(4) requires that a security officer, before giving a direction under this clause, must show the person to whom the direction is given the officer’s identity card.  This is to ensure that a person knows the officer’s identity and his or her authority for giving the direction.

Clause 32 - Offence non-compliance with a direction

79.                This clause establishes an offence where a person fails to comply with a direction given by a security officer under clause 31, after being informed that non-compliance may be an offence.  The penalty for the offence is 20 penalty units.  The offence is necessary to deter persons from non-compliance.

Division 6—General provisions about exercise of security officers’ powers

80.                This Division contains two provisions which set out important safeguards around the exercise of powers by security officers and authorised court officers.  These safeguards include being appropriately appointed and licensed, and carrying, and producing upon request, an identity card or other identification. 

Clause 33 - Where powers may be exercised

81.                Paragraph 33(1)(a) provides that a person appointed as a security officer or an authorised court officer may only exercise the powers of a security officer or an authorised court officer in relation to court premises if the premises are ones for which the person is appointed as security officer or an authorised court officer.  Security officers and authorised court officers may be appointed by an administrative head of a court under clauses 9 and 10. 

82.                Paragraph 33(1)(b) provides an additional requirement that a person may only exercise the powers of a security officer in relation to court premises if the person is licensed under a law of the State or Territory to guard property or is otherwise prescribed by the regulations.  A person licensed in one State or Territory may exercise the powers of a security officer in relation to court premises in a different State or Territory.  

83.               Allowing persons, or categories of persons, who may not hold a license under a law of the State or Territory to guard property, to be prescribed in the regulations and thereby be authorised to exercise the powers of as security officer under the Bill, is appropriate and necessary to ensure that persons who hold qualifications and training equivalent in nature to those held by licensed guards are not prevented from being appointed as security officers. 

84.                The note below clause 33 clarifies that the clause does not limit an AFP member, a protective service officer (as defined in the Australian Federal Police Act 1979 ), or a special protective service officer from exercising the powers or functions of a security officer.  These officers come within the definition of security officer in clause 5 of the Bill.  It is not necessary or appropriate to require these officers to be separately appointed by an administrative head of court, or to be licensed under a law of a State or Territory, in order to be able to exercise powers under the Bill. 

Clause 34 - Production of identification when exercising power as a security officer or an authorised court officer

85.                Subclause 34(1) requires a security officer or an authorised court officer to carry an identity card or other identification at all times when exercising a power or performing a duty.  The identity card or other identification may be:

·         an identity card issued by an administrative head of a court under clause 12

·         an identity card issued by a State or Territory authority responsible for licensing persons to guard property (or other person or body prescribed by the regulations) and containing a recent photograph of the person under clause 13, or

·        identification as an AFP member, a protective service officer (as defined in the Australian Federal Police Act 1979 ) or a special protective service officer.

86.                Subclause 34(2) provides that if a person requests an officer to show his or her identity card, the officer must do so when requested, or if it is not practicable to do so, as soon as practicable afterwards.  This is to ensure that persons in relation to whom an officer is exercising a power under the Bill are able to know the identity of the person and the person’s source of authority for exercising the power. 

87.               Subclause 34(3) imposes a higher identification requirement in relation to the exercise of powers under Division 4.  It requires a security officer to show a person the officer’s identity card before exercising a power under Division 4 in relation to the person.  If that is not reasonably practicable, the officer must do so as soon as reasonably practicable after that.  It is appropriate to require a security officer to identify himself or herself prior to exercising Division 4 powers, which authorise use of reasonable and necessary force. 

88.               Subclause 34(4) imposes a similar higher identification requirement in relation to the exercise of the power of a security officer to give a direction to a person under clause 31 while escorting a person beyond court premises.  It is appropriate to require a security officer to identify himself or herself prior to exercising this power to ensure that persons in relation to whom the power is exercised know the identity of the person and the person’s source of authority for exercising the power.

Division  7—Complaints about security officers and authorised court officers

89.                This Division provides for complaints handling in relation to security officers and authorised court officers and for external oversight by the Commonwealth Ombudsman.    

Clause 35 - Complaints about security officers and authorised court officers

90.               Subclause 35(1) provides that a person may make a written complaint to the administrative head of a court about the conduct of a security officer or an authorised court officer.  The note to subclause 35(1) clarifies that the Commonwealth Ombudsman may also have power under the Ombudsman Act 1976 to investigate such conduct.  Subclause 35(2) provides that the administrative head must deal with the complaint in accordance with the regulations. Appropriate complaints handling procedures are important accountability mechanisms in relation to the exercise of powers under the Bill.

91.               Subclause 35(3) provides that this clause does not apply to the administrative head of the FCWA.  This is for constitutional reasons due to the fact that the FCWA is a State court.  Separate provisions about the handling of complaints made to the administrative head of the FCWA (defined in clause 5 of the Bill as the Director General of the Department of the Attorney General of Western Australia), are contained in clause 37. 

Clause 36 - Reports to Ombudsman about complaints

92.               Subclause 36(1) provides that as soon as practicable after the end of a financial year, the administrative head of a court must give the Commonwealth Ombudsman a report stating how each complaint in the financial year was dealt with (if any).  Oversight of complaints in relation to the conduct of security officers and authorised court officers is an important accountability mechanism in relation to the exercise of powers under the Bill.  Subclause 36(2) provides that this clause does not apply to the administrative head of the FCWA.  This is because the FCWA is a State court, not a federal court, and the administrative head of the FCWA is a State officer. 

Clause 37 - Complaints to the administrative head of the Family Court of Western Australia

93.               Subclause 37(1) provides that clause 37 applies if an arrangement is in force between the Commonwealth and Western Australia for the administrative head of the FCWA to perform duty imposed under the clause.  This is necessary for constitutional reasons due to the fact that the FCWA is a State court, not a federal court, and the administrative head of the FCWA is a State officer.

94.               Subclause 37(2) provides that the administrative head of the FCWA (defined in clause 5 of the Bill as the Director General of the Department of the Attorney General of Western Australia) must deal with a complaint about the conduct of a security officer or an authorised court officer purporting to exercise a power or perform a duty under the Bill in relation to FCWA court premises.  Appropriate complaints handling procedures are important accountability mechanisms in relation to the exercise of powers under the Bill.

Part 3—Offences

95.                 This Part establishes three offences relevant to court security.  These are possessing a weapon on court premises, using an unauthorised recording device or transmitting device on court premises and obstructing entry to, or activity on court premises.    

Clause 38 - Offence — possessing weapon on court premises

96.                Subclause 38(1) establishes an offence where a person possesses a weapon on court premises.  The penalty for the offence is 20 penalty units.  The offence is necessary and appropriate to deter persons from bring weapons on to court premises.  Subclause 38(2) provides exemptions to subclause 38(1) to cover the possession of a weapon:

  • by a member of a court, security officer, authorised court officer, police officer or member of staff of a court in the performance of his or her duties
  • by a person in the performance of duties providing services to a court under a contract, or
  • that is, or is to be, evidence before a court occupying or using the premises.

97.                The note to subclause 38(2) clarifies that the defendant bears an evidential burden in relation to a matter in this subclause and cross-references subsection 13.3(3) of the Criminal Code Act 1995 .  The reverse burden provision is reasonable in this context given the importance of ensuring that weapons are not brought on to court premises and that the burden relates to facts which are readily provable by the defendant.

Clause 39 - Offence — making an unauthorised recording or transmission on court premises

98.               Subclause 39(1) establishes an offence of making a recording or transmission of sound, or one or more still or moving images, of proceedings in a court or an associated event.  The penalty for the offence is 12 months imprisonment.  The purpose of the offence, and the related provisions in clauses 17 and 18, is to ensure that courts can appropriately control use of recording or transmitting devices on court premises.  This is desirable as often proceedings involve personal information about an applicant and others (including such matters as their health, domestic arrangements, financial circumstances etc.).  Proceedings may also involve classified or other sensitive information. 

99.                Subclause 39(2) sets out exemptions to the offence contained in subclause 39(1) in paragraphs 39(2)(a) to (h).  These exemptions cover a recording or transmission that is expressly permitted by a member of the court or the administrative head of the court, as appropriate; official surveillance for court security purposes; official transcript preparation; hearing aid use; a recording or transmission by a lawyer of the lawyer’s own voice outside of a court proceeding; and exemptions prescribed in the regulations.  The note to subclause 39(2) clarifies that the defendant bears an evidential burden in relation to a matter in this subclause and cross-references subsection 13.3(3) of the Criminal Code Act 1995 . The reverse burden provision is reasonable in this context given that the penalties are at the lower end of the scale, the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden), and the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

100.            Subclause 39(3) provides that it is a defence to an offence contained in subclause 39(1) for the making of a recording where a person, as soon as practicable after realising he or she contravened that subclause, either destroys the recording and any copies, or gives the recording and all copies to a security officer and permits a security officer or a police officer to destroy the recording and any copies.  This reverse burden provision is reasonable in this context given that the penalties are at the lower end of the scale, the offences only impose an evidential burden (as the prosecution must still disprove the matters beyond reasonable doubt if the defendant discharges the evidential burden), and the burden relates to facts which are readily provable by the defendant as matters within their own knowledge or to which they have ready access.

Clause 40 - Offence — obstructing entry to, or activity on, court premises

101.            This clause establishes an offence where a person unreasonably obstructs another person’s entry to, or activity on, court premises.  The penalty for the offence is 6 months imprisonment.   The purpose of this offence is to ensure that court staff, judicial officers and litigants are not prevented from accessing court premises without good reason. 

Part 4—Court security orders

102.            Proceedings in federal courts, particularly family law matters, are often emotionally charged and involve animosity between the parties in dispute, and actual or threatened violence.  Consequently, persons involved in those proceedings (including a party to a proceeding, a court officer, a court contractor, or a member of the judiciary) may become subject to threats of violence.  The threats of violence may relate to current or past proceedings and may extend to stalking behaviour off court premises.  There are also circumstances where a current or past litigant causes an ongoing significant disruption on, or in the immediate vicinity of court premises, which affects the operation of court business on court premises.

103.           To address these circumstances, Part 4 provides for an administrative head of a court to seek a court security order which can restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court.  Orders under this Part can only be sought in circumstances where a person poses an ongoing risk of significant disruption to court proceedings, court administration or lawful activities on court premises; or a risk of violence to persons or property on court premises, or to court members or staff.  The provisions are similar in nature to protection or restraining orders available under State and Territory legislation.  However, reliance on these existing orders is inadequate as the grounds on which such orders can be granted vary between jurisdictions, and not all jurisdictions provide for ‘workplace protection’ type orders which can be applied for by an employer on behalf of an employee.  The provisions in this Part are modelled on the Domestic Violence and Protection Orders Act 2008 (ACT) .

104.           The court security order provisions balance the need to protect the administration of justice and the safety of court staff and users with the personal rights and liberties of a person who is subject to a court security order to access court facilities and engage with court staff for the purposes of conducting legitimate court business.  The provisions are consistent with the fundamental principle of the family law courts’ Family Violence Strategy, that all who attend the courts and work on its premises should be safe. 

Clause 41 - Making a court security order

105.             Subclause 41(1) enables a member of a court exercising family law jurisdiction (the Family Court of Australia, the Federal Circuit Court and the FCWA), on application by an administrative head of a court under clause 42, to make an order prohibiting a specified person from doing something for a period of time.  The member may only make the order if satisfied that without the order, there is:

·          an ongoing risk of significant disruption to proceedings, administration, or lawful activities on court premises of the member’s court, or

·          a risk of violence affecting the member’s court, a member or official of the member’s court, or a person on court premises of the member’s court.

106.           Subclause 41(2) provides examples of acts that may be specified in the order. These include prohibiting a person from entering or coming within a specified distance of specified court premises, or contacting, harassing or intimidating a member or official of the member’s court.  Subclause 41(3) provides a safeguard to ensure that the order must not prevent the specified person from conducting legitimate court business.  Subclause 41(4) provides some examples of legitimate court business including filing or viewing documents relating to proceedings to which the person is a party or attending a hearing of court proceedings to which the person is a party.  Other things may also constitute legitimate court business.

107.           Subclause 41(5) requires the member to consider specific factors listed in paragraphs 41(5)(a) to (h) in deciding whether to make an order and in what terms to make the order.  These include the objects of the Act; any hardship that may be caused to anyone by the making of the order; any previous violence by the person to be specified in the order or contraventions by that person of other protection type orders; the need to ensure that persons and property on court premises are protected; and how achieve the objects of the Act and reduce to an acceptable level the risks in relation to which the court security order is sought, while minimising restrictions on the rights and liberties of the person to be specified in the order. 

108.           Given that a court security order must not prevent a person from conducting legitimate business the person has on court premises, paragraph 41(5)(h) requires a member to consider arrangements that may need to be made for the security and safety of persons and property on court premises when a person is required to attend for such business. Subclause 41(6) clarifies that subclause 41(5) does not limit the things the member may consider.

109.           Subclause 41(7) ensures that only judicial officers can make these orders by providing that a registrar or deputy registrar (currently included within the definition of member of a court in clause 5 of the Bill) cannot make a court security order unless the registrar is a Family Law Magistrate (defined in section 4 of the Family Law Act 1975 as ‘a person who holds office concurrently: (a) as a magistrate under the Magistrates Court Act 2004 (WA) ; and (b) as the Principal Registrar, or as a Registrar, of the Family Court of Western Australia’).

Clause 42 - Application for a court security order

110.            Subclause 42(1) enables a court security order under subclause 41(1) to be made on application by the administrative head of the court to which the order is proposed to relate. Subclause 42(2) requires the applicant to inform the person proposed to be specified in the order about the application.  Subclause 42(3) provides a right to the person proposed to be specified in the order to be heard on the application.

Clause 43 - Interim order

111.            Subclause 43(1) enables a member of a court, on application for an order under clause 41(1), to make an interim order without determining the merits of the application, considering the matters listed in subclause 41(5), except for 41(5)(h) (which deals with security arrangements that may need to put in place when a person is attending court premises for legitimate court business), or hearing the person proposed to be specified in the order.  Provision for interim court security orders enables orders to be made in circumstances of urgency.

112.            Subclause 43(2) requires a member who makes an interim court security order to determine the application for the order under clause 41 as soon as reasonably practicable.  This is to ensure that a person has a chance to be heard on the order as soon as reasonably practicable.

Clause 44 - When an order has effect

113.            Subclause 44(1) provides that an order under this Part takes effect when the person specified in the order is given written notice of it or, if the person is present at the making of the order, when the order is made.  Subclause 44(2) provides that an order made under clause 41 stops having effect at the end of the period specified in the order.  Subclause 44(3) provides that an interim order stops having effect when, if an order is made on the determination of the application under clause 41, at the time that order takes effect, or, if no order is made on the determination of the application, when the application is determined.

Clause 45 - Variation and revocation

114.            This clause enables a member of a court who may make a court security order to vary or revoke an order relating to the member’s court.                                

Clause 46 - Offence—contravening a court security order

115.            This clause establishes an offence if the person does an act which contravenes a court security order.   The penalty for the offence is 12 months imprisonment.  The purpose of the offence is to discourage non-compliance with a court security order.

Clause 47 - Maker of court security order need not be disqualified from certain proceedings

116.            This clause provides that a member of a court who makes a court security order is not required to disqualify himself or herself from hearing other proceedings to which the person specified in the order is or later becomes a party.

Part 5—Miscellaneous

117.            This Part deals with miscellaneous matters including the immunity of security officers and authorised court officers, clarification that this Bill does not limit certain powers, compensation and delegations.  It also enables the Governor-General to make regulations.

Clause 48 - Immunity of security officers and authorised court officers

118.            This clause provides that security officers and authorised court officers are immune from any action, suit or proceeding against them in relation to acts or omissions done in good faith in the performance or purported performance of any function, duty or power under the Bill.  This is necessary to protect them from suits that could arise out of actions or decisions that they take in good faith in the course of exercising their functions under the Bill, which may be in response to emergency situations.  This clause reflects provisions in other Commonwealth enforcement legislation.  Subclause 48(2) ensures that the immunity provision does not prevent a civil action that could otherwise have been brought against the Commonwealth or an employer of the officer in relation to an officer’s act or omission.

Clause 49 - Compensation for damage to recording, data storage or transmitting devices

119.            Subclause 49(1) provides that the clause applies if damage is caused to a device, or its data (except unauthorised recordings), as a result of a security officer not taking sufficient care when exercising powers under paragraphs 17(4)(b), 17(6)(b) or 17(6)(c).  These powers relate to the inspection, operation and use of recording, data storage and transmitting devices. Subclause 49(2) provides that the Commonwealth must pay the owner of the device or the damaged data reasonable compensation as agreed between them.  Subclause 49(3) provides that if the owner and the Commonwealth fail to agree, the owner may start proceedings in the Federal Court of Australia for compensation as the Court determines reasonable. Subclause 49(4) provides that the amount of compensation is to be determined with regard to whether the person from whom the device was obtained complied with an authorised request in relation to the device. Subclause 49(5) provides that for the purposes of subclause 49(1), the definition of ‘damage’ in relation to data includes the erasure of data. 

Clause 50 - Relationship between this Act and other powers and laws

120.            Subclause 50(1) provides that this Bill does not limit the powers that a court, a member of court, an administrative head of a court, and person who is a security officer, or an authorised court officer, have apart from their powers under the Bill. For example, the Bill does not limit a court’s power to regulate its proceedings.

121.            Subclause 50(2) clarifies that a power under the Bill does not extend to doing anything expressly forbidden by an order of a court or judicial officer.  This is to ensure that the Bill does not interfere with the ability of a court or judicial officer to manage issues relating to security and court access as relevant to proceedings before them.

122.            Subclause 50(3) clarifies that the Bill is not intended to exclude or limit the operation of any State or Territory law that is able to operate concurrently with the Bill.

Clause 51 - Delegation

123.            This clause enables the administrative head of a court to delegate in writing all or any of their powers and functions under clauses 9, 10, 11, 12 and 17(2)(b) and paragraphs 39(2)(b) and (c) of the Bill to a person identified in the table for the court.  These powers and functions relate to the appointment of security officers and authorised court officers, the issuing of identity cards, and the giving of permission in relation to the use of recording, transmitting and data storage devices.

124.            The federal courts occupy a large number of buildings on a permanent and temporary basis.  Certain federal courts also undertake circuits and sit ‘on country’.  In these circumstances the delegation of powers and functions under the Bill is necessary to ensure sufficient operational flexibility to allow appropriate and timely guarding measures to be put in place in different court locations, while also ensuring that there is proper accountability for appointment decisions. 

125.           Item 1 of the table in this clause provides that the administrative head of the Federal Court of Australia may delegate to the District Registrar of the Federal Court of Australia for each District Registry, and the Sheriff of the Federal Court of Australia appointed under section 18N of the Federal Court of Australia Act 1976 .  District Registrars are provided for in section 34 of the Federal Court of Australia Act 1976 .  A District Registrar has management responsibility for all activities in relation to that District Registry, including local security, and for all proceedings conducted in that District Registry.  The Sheriff is located in the Principal Registry and has a number of statutory responsibilities (including service and execution of process, custody of persons and jury management) and responsibility for security policy nationally.  A power of delegation to these officers will complement the existing security responsibility that these officers hold and ensure that in each District Registry and in the Principal Registry of the Court an officer will be available with relevant knowledge and experience.

126.           Item 2 of the table in this clause provides that the administrative head of the Family Court may delegate to the Marshal of the Family Court of Australia appointed under section 38N of the Family Law Act 1975 . The office of Marshal is established by section 38P of that Act which sets out specific security responsibilities for this position which include the security of the court and the personal security of the Judges, officers and staff of the court.

127.           Item 3 of the table in this clause provides that the administrative head of the Military Court of Australia may delegate to the Deputy Registrars and Sheriff of the Military Court of Australia appointed under section 38 of the Military Court of Australia Act 2013 .  These provisions are based on those for the Federal Court of Australia, on the basis that the management structure of the Military Court of Australia will be similar (although scaled differently) to those of the Federal Court of Australia.

128.           Item 4 of the table in this clause provides that the administrative head of the FCWA may delegate to the Marshal of the FCWA appointed under paragraph 25(1)(e) of the Family Court Act 1997 (WA) .  The Marshal of the FCWA has existing security responsibilities under section 29 of that Act.

129.           Item 5 of the table in this clause provides that the administrative head of the Federal Circuit Court of Australia may delegate to the Marshal of the Federal Circuit Court of Australia appointed under section 99 of the Federal Circuit Court of Australia Act 1999 .  Section 109 of that Act provides that Marshal has responsibility for the security of the court and the personal security of judges, officers and staff of the Federal Circuit Court.

130.           Item 6 of the table in this clause provides that the administrative head of a federal court, other than the High Court, not covered by any of the above items may delegate to an officer or member of staff of the court who is prescribed by the regulations.

131.           Item 7 of the table in this clause provides that the administrative head of the AAT may delegate to a District Registrar appointed under subsection 24N(2) of the Administrative Appeals Tribunal Act 1975 .

132.           Item 8 of the table in this clause provides that the administrative head of a tribunal covered by paragraph (d) of the definition of court in clause 5 of the Bill (being a tribunal that is prescribed by the regulations for the purpose of the definition) may delegate to a person prescribed by the regulations for the tribunal.

Clause 52 - Regulations

133.             This clause enables the Governor-General to make regulations prescribing matters required, permitted, as necessary or convenient for carrying out this Act.