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Legislative Assembly for the ACT: 1997 Week 1 Hansard (20 February) . . Page.. 203 ..

MR HUMPHRIES (Attorney-General) (11.50): Mr Speaker, I present the Crimes (Amendment) Bill 1997, together with its explanatory memorandum.

Title read by Clerk.

MR HUMPHRIES: Mr Speaker, I move:

That this Bill be agreed to in principle.

Mr Speaker, this Bill proposes several amendments to the Crimes Act 1900. The proposals have arisen from a number of different sources, mainly from the experience of officers who administer the legislation. Most of the amendments are to Part 10 of the Act, which regulates the way police conduct criminal investigations.

Clause 4 amends the definition of an "ordinary search" in section 349AA. The existing provision authorises a police officer who conducts such a search to require the person being searched to remove specified items of outer clothing. That fails to specify socks. The amendment corrects the omission. Clause 5 amends section 349ZJ, which provides that an arresting officer, or another officer who is present at an arrest, may conduct an ordinary search of the arrested person. In effect, this power is limited to a search at the scene of the arrest. The provision is unnecessarily limiting because it is not always possible for the police officer who arrests or is present at an arrest to be also available to conduct the ordinary search. The amendment enables another officer to do this.

Clause 6 amends section 349ZL. This section allows an ordinary search of a person in a police station, but only soon after arrest. There are, however, a number of situations where a person is in police custody where the arrest took place some time before - for example, prisoners transferred from a remand centre or from prison. The concern on such occasions is mainly about items with which a person could harm themselves or another person, with deaths in custody obviously in mind there. At present, the only course under the Act is for the watch-house sergeant to order a strip search; but it is not appropriate for the police to be obliged, unnecessarily, to take this more extreme measure in order to ensure the person's safety. The amendment enables an ordinary search or a frisk search to be conducted on any person who is in lawful custody in a police station and where the officer in charge suspects on reasonable grounds that the person may be carrying evidential material or seizable items. A seizable item is defined in the Act as anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

Clause 7 inserts section 349ZO into the Act. It requires a police officer who seizes a thing as a result of searching a person to hold it in safekeeping and return it at a later time. A similar provision was repealed in 1994. It was believed, at that time, that the common law of bailment would cover the situation. The Australian Federal Police, however, has subsequently expressed reservations about leaving this to the common law. It seems preferable, therefore, for the power to be made express in legislation and to include certain duties of care in relation to possessions.

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