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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Protective Custody Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Relationship with other Acts 3
Part 2 -- Seizing intoxicants from children
5. Intoxicants may be seized from children using them 4
Part 3 -- Apprehending and detaining
intoxicated people
6. Intoxicated people may be apprehended 5
7. Apprehended person may be detained, but for no
longer than necessary 5
Part 4 -- Dealing with apprehended people
8. Apprehended person may be searched 7
9. Intoxicants and dangerous articles may be seized 7
10. Apprehended person may be taken for medical
examination 8
Part 5 -- Releasing apprehended people
11. Releasing apprehended children 9
page i
97--1
Protective Custody Bill 2000
Contents
12. Releasing apprehended adults 10
13. Release of adult into care of another person 10
14. Seized things to be returned 11
15. Release procedure 12
16. Release to be unconditional 13
Part 6 -- Judicial review
17. Apprehended person may request review by JP 14
18. Review of detention after 8 hours 14
19. JP to review detention 14
20. Declaration by court as to state of intoxication 15
21. Apprehended person to be taken before a JP promptly 15
Part 7 -- Miscellaneous
22. Powers may be exercised without a warrant 17
23. Certain functions may be performed by people
providing custodial services 17
24. Apprehended person not to be charged etc. 17
25. Escape of an apprehended person 18
26. Approved places 18
27. Community officers 18
28. Protection from personal liability 19
29. Regulations 20
30. Consequential amendments 20
Schedule 1 -- Consequential amendments
1. Court Security and Custodial Services Act 1999 21
2. Police Act 1892 21
3. Young Offenders Act 1994 22
page ii
Western Australia
LEGISLATIVE ASSEMBLY
Protective Custody Bill 2000
A Bill for
An Act to allow intoxicated people to be taken into protective
custody and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Protective Custody Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Protective Custody Act 2000.
2. Commencement
5 This Act comes into operation on a day fixed by proclamation.
3. Interpretation
In this Act, unless the contrary intention appears --
"adult" means a person who has reached 18 years of age;
"apprehended" means apprehended under section 6(1);
10 "appropriate facility", in relation to an apprehended person,
means an approved place to which the person may be taken
in accordance with a notice published under section 26(1);
"approved place" means a place approved under section 26(1);
"authorized officer" means a community officer or a police
15 officer;
"child" means a person who is under 18 years of age;
"community officer" means a person appointed under section
27;
"intoxicant" means --
20 (a) alcohol; or
(b) a drug, or a volatile or other substance, capable of
intoxicating a person;
"intoxicated" means affected by, or apparently by, an
intoxicant to such an extent that there is a significant
25 impairment of judgment or behaviour;
"JP" means Justice of the Peace;
page 2
Protective Custody Bill 2000
Preliminary Part 1
s. 4
"police officer" means a person appointed under the Police Act
1892 to be --
(a) a member of the Police Force;
(b) a special constable; or
5 (c) an aboriginal aide;
"public place" includes --
(a) a place to which the public are admitted on the
payment of money or other consideration, the test of
admittance being only the payment of money or other
10 consideration;
(b) a school, university or other place of education, other
than a part of it to which neither students nor the
public usually have access; and
(c) a privately owned place --
15 (i) that is not occupied by, or with the authority
of, the owner; or
(ii) to which the public has access with the
express or implied approval of the owner,
occupier or person who has the control or
20 management of the place;
"volatile substance" means a substance that produces a vapour
at room temperature.
4. Relationship with other Acts
(1) This Act is in addition to and does not affect section 138B of the
25 Child Welfare Act 1947.
(2) This Act is in addition to and does not affect the operation of
section 195 of the Mental Health Act 1996.
page 3
Protective Custody Bill 2000
Part 2 Seizing intoxicants from children
s. 5
Part 2 -- Seizing intoxicants from children
5. Intoxicants may be seized from children using them
(1) An authorized officer may seize an intoxicant from a child who
is in a public place if --
5 (a) the child is consuming or inhaling the intoxicant; or
(b) the officer reasonably suspects that the child is about to
consume or inhale the intoxicant,
and the officer reasonably suspects that the child is likely to
become intoxicated if the intoxicant is not seized.
10 (2) The intoxicant may be seized even if the child is not intoxicated.
(3) The officer may destroy the intoxicant.
(4) This section does not prevent an intoxicant that has been seized
from being seized under another written law or under a legal
process.
15
page 4
Protective Custody Bill 2000
Apprehending and detaining intoxicated people Part 3
s. 6
Part 3 -- Apprehending and detaining
intoxicated people
6. Intoxicated people may be apprehended
(1) If an authorized officer reasonably suspects that a person who is
5 in a public place or who is trespassing on private property --
(a) is intoxicated; and
(b) needs to be apprehended --
(i) to protect the health or safety of the person or
any other person; or
10 (ii) to prevent the person causing serious damage to
property,
the officer may apprehend the person.
(2) The authorized officer may use reasonable force and assistance
to apprehend the person.
15 (3) An authorized officer who apprehends a person must record the
date and time when the person is apprehended.
7. Apprehended person may be detained, but for no longer
than necessary
(1) An authorized officer may detain an apprehended person but
20 any detention of the person must be in accordance with
subsections (2), (3) and (4).
(2) An authorized officer must not detain an apprehended person
who is not, or who is no longer, intoxicated.
(3) An authorized officer must not detain an apprehended person
25 who is intoxicated for any longer than is necessary --
(a) to protect the health or safety of the person or any other
person; or
page 5
Protective Custody Bill 2000
Part 3 Apprehending and detaining intoxicated people
s. 7
(b) to prevent the person causing serious damage to
property.
(4) If an apprehended person is detained in a police station or lock-
up, then, despite subsections (2) and (3), a police officer may
5 decide not to release the person between the hours of midnight
and 7.30 a.m. if release during those hours is not in the best
interests of the person.
(5) If a police officer makes a decision under subsection (4), he or
she must record the reasons for the decision.
10 (6) The power to detain an apprehended person does not affect the
duty under section 11(1) and 12(1) to release a person as soon
as practicable after he or she is apprehended.
page 6
Protective Custody Bill 2000
Dealing with apprehended people Part 4
s. 8
Part 4 -- Dealing with apprehended people
8. Apprehended person may be searched
(1) An authorized officer may search an apprehended person, and
any thing found on or with the person, for any thing that can be
5 seized under section 9.
(2) The search of an apprehended person must be made by an
authorized officer of the same sex as the person unless that is
impracticable.
(3) An authorized officer may use reasonable force to make the
10 search.
9. Intoxicants and dangerous articles may be seized
(1) An authorized officer may seize from an apprehended person --
(a) any intoxicant;
(b) any article (including any drug prescribed for the
15 person) that could endanger the health or safety of the
person or any other person.
(2) If alcohol or any substance containing alcohol, is seized from an
apprehended person, an authorized officer may destroy it.
(3) If an intoxicant other than alcohol is seized from an
20 apprehended person, an authorized officer may destroy it if the
officer reasonably suspects that if it were returned to the person,
the person is likely to use it to become intoxicated.
(4) Anything seized under subsection (1) that is not destroyed under
subsection (2) or (3), must be dealt with under section 14.
25 (5) An authorized officer who seizes any thing under this section
must record the fact and must record how the thing is dealt with.
page 7
Protective Custody Bill 2000
Part 4 Dealing with apprehended people
s. 10
10. Apprehended person may be taken for medical examination
(1) If an apprehended person needs a medical examination, an
authorized officer, as soon as practicable, is to arrange for the
person to be medically examined by a suitably qualified person.
5 (2) The authorized officer is to continue detaining the apprehended
person subject to section 7 unless --
(a) under section 29 of the Mental Health Act 1996 the
apprehended person is referred for examination by a
psychiatrist; or
10 (b) the person who medically examines the apprehended
person directs that the person be left in his or her charge.
(3) If an authorized officer arranges for a person to be medically
examined the officer must record the fact and the date and time
when the person was examined.
page 8
Protective Custody Bill 2000
Releasing apprehended people Part 5
s. 11
Part 5 -- Releasing apprehended people
11. Releasing apprehended children
(1) As soon as practicable after a child is apprehended, an
authorized officer must release the child --
5 (a) into the care of a person who is the child's parent or
legal guardian;
(b) into the care of a person --
(i) whom the officer reasonably believes is a
responsible person capable of taking care of the
10 child; and
(ii) who consents to taking charge of the child;
or
(c) if the officer is unable to comply with paragraph (a) or
(b), into the care of the person in charge of an
15 appropriate facility.
(2) In deciding which option in subsection (1) to use an authorized
officer must give paramount consideration to the safety and
welfare of the child.
(3) Subsection (1) does not prevent an authorized officer from taking
20 action under section 10 and, if directed to do so, from releasing a
child into the care of another person under that section.
(4) If a child is apprehended by a community officer and it is not
reasonably practicable to comply with subsection (1), a
community officer may deliver the child to a police officer to be
25 detained in accordance with section 7(1).
(5) If it is not reasonably practicable, or until it is practicable, to
comply with subsection (1), any detention under section 7(1) of
a child by a police officer may be in a police station or lock-up;
page 9
Protective Custody Bill 2000
Part 5 Releasing apprehended people
s. 12
but only if there are exceptional circumstances that justify
detaining the child in a police station or lock-up.
(6) Section 138B(2), (4) and (5) of the Child Welfare Act 1947
apply in respect of an apprehended child as if the child had been
5 apprehended under section 138B(1) of that Act.
12. Releasing apprehended adults
(1) As soon as practicable after an adult is apprehended, an
authorized officer must release the adult --
(a) into the care of another person under section 13; or
10 (b) into the care of the person in charge of an appropriate
facility.
(2) Subsection (1) does not prevent an authorized officer from
taking action under section 10 and, if directed to do so, from
releasing an adult into the care of another person under that
15 section.
(3) If an adult is apprehended by a community officer and it is not
reasonably practicable to comply with subsection (1), a
community officer may deliver the adult to a police officer to be
detained in accordance with section 7(1).
20 (4) If it is not reasonably practicable, or until it is practicable, to
comply with subsection (1), any detention under section 7(1) of
an adult by a police officer may be in a police station or lock-up.
13. Release of adult into care of another person
(1) An authorized officer may at any time release an apprehended
25 adult into the care of another person who applies for the adult's
release if --
(a) the adult does not object to being released into the care
of the applicant; and
page 10
Protective Custody Bill 2000
Releasing apprehended people Part 5
s. 14
(b) the officer reasonably believes that the applicant is
capable of taking care of the adult.
(2) If an officer refuses to release an adult under subsection (1)
because the officer does not believe that the applicant is capable
5 of taking care of the adult, the applicant may apply to a JP to
review the officer's decision.
(3) If an application is made to a JP and if it is reasonably
practicable to do so --
(a) an authorized officer, subject to section 21, must take
10 the adult, or arrange for the adult to be taken, before the
JP; and
(b) the applicant and the officer are to appear before the JP,
unless the adult is released before that can be done.
(4) On an application the JP may --
15 (a) if the adult does not object, direct that the adult be
released into the care of the applicant;
(b) if the JP is satisfied that the applicant is not capable of
taking care of the adult, direct that the adult continue to
be detained in accordance with section 7; or
20 (c) give any direction the JP thinks fit for the health and
safety of the adult.
14. Seized things to be returned
(1) A thing that is seized from an apprehended person under
section 9 and not destroyed under that section must be kept in
25 safe keeping and --
(a) if the apprehended person is released into the care of
another person, given to that other person at that time on
behalf of the apprehended person; or
page 11
Protective Custody Bill 2000
Part 5 Releasing apprehended people
s. 15
(b) in any other case, returned to the apprehended person
when he or she is released.
(2) Subsection (1) does not prevent the thing that has been seized
from being seized under another written law or under a legal
5 process.
15. Release procedure
(1) When an apprehended person is released by an authorized
officer --
(a) the apprehended person must acknowledge in writing --
10 (i) his or her release on the date and at the time
recorded; and
(ii) receipt of any thing returned to the person under
section 14;
(b) if the apprehended person is released into the care of
15 another person, that other person must acknowledge in
writing --
(i) the release of the apprehended person on the date
and at the time recorded; and
(ii) receipt of any thing given to that other person
20 under section 14;
or
(c) if the apprehended person refuses or fails to comply
with paragraph (a) or that other person refuses or fails to
comply with paragraph (b), the authorized officer who
25 releases the person must record --
(i) the fact of the refusal or failure;
(ii) the date and time when the person was released;
and
page 12
Protective Custody Bill 2000
Releasing apprehended people Part 5
s. 16
(iii) any thing given to that other person, or returned
to the apprehended person, under section 14.
(2) Subsection (1) applies even if the apprehended person is
released pursuant to an order made under section 19.
5 (3) An apprehended person is to be taken to have been released on
the date and at the time recorded under this section, in the
absence of evidence to the contrary.
16. Release to be unconditional
An apprehended person must not be required to enter into a bail
10 undertaking or a recognizance of any kind before being released
under this Act.
page 13
Protective Custody Bill 2000
Part 6 Judicial review
s. 17
Part 6 -- Judicial review
17. Apprehended person may request review by JP
(1) An apprehended person who has not been released may at any
time request an authorized officer to take him or her before a JP
5 so that the person can apply to the JP to be released.
(2) On such a request being made, the officer, subject to section 21,
must take the apprehended person, or arrange for the person to
be taken, before a JP, unless the person is released before that
can be done.
10 18. Review of detention after 8 hours
If 8 hours after a person is apprehended an authorized officer
who is detaining the person reasonably believes it is still not
possible to comply with section 7, the officer, subject to
section 21, must take the person, or arrange for the person to be
15 taken, before a JP, unless the person is released before that can
be done.
19. JP to review detention
(1) When an apprehended person appears before a JP under
section 17 or 18, the JP --
20 (a) if satisfied that the person should be released under
section 7 -- must direct that the person be released; or
(b) in any other case -- may give the officer who has
custody of the person such directions to ensure the
health and safety of the person as the JP thinks fit,
25 including --
(i) if the apprehended person does not object, a
direction that the person be released into the care
of a person capable of taking care of the
apprehended person;
page 14
Protective Custody Bill 2000
Judicial review Part 6
s. 20
(ii) a direction that the person be released into the
care of the person in charge of an appropriate
facility;
(iii) a direction that the person continue to be
5 detained in accordance with section 7.
(2) If a JP gives a direction under subsection (1)(b)(iii), the JP may
give a direction as to when another request under section 17
may be made.
(3) A direction that is given under this section must be complied
10 with by any officer who is detaining the apprehended person.
20. Declaration by court as to state of intoxication
(1) A person who has been apprehended may apply to a Local
Court for a declaration that at the time he or she was
apprehended, he or she was not intoxicated.
15 (2) The application must be made within 30 days after the date
when the person was released.
(3) In proceedings under this section the officer who apprehended
the applicant and any officer who detained the applicant are
entitled to appear.
20 (4) If the Local Court is satisfied that the applicant was not
intoxicated at the time he or she was apprehended it is to make a
declaration accordingly.
(5) A declaration made under subsection (4) does not establish that
the apprehension was unlawful.
25 21. Apprehended person to be taken before a JP promptly
(1) An authorized officer who under section 13(3), 17(2) or 18 is
required to take an apprehended person, or arrange for the
person to be taken, before a JP must do so as soon as practicable
page 15
Protective Custody Bill 2000
Part 6 Judicial review
s. 21
and must not delay doing so except, in the case of a police
officer, for the minimum time necessary to meet the reasonable
organizational requirements of the police station concerned.
(2) The reasons for any delay in taking a person, or arranging for a
5 person to be taken, before a JP must be recorded by the officer.
page 16
Protective Custody Bill 2000
Miscellaneous Part 7
s. 22
Part 7 -- Miscellaneous
22. Powers may be exercised without a warrant
An authorized officer does not need a warrant to exercise the
powers conferred on the officer by this Act.
5 23. Certain functions may be performed by people providing
custodial services
If under section 80 or 81 of the Court Security and Custodial
Services Act 1999 an authorized person (as defined in section 79
of that Act) takes charge of or moves a person who is detained
10 under this Act, the functions conferred on an authorized officer
by the sections in the Table to this section may be performed in
respect of the detained person by the authorized person.
Table
s. 7 s. 11(1) s. 17
s. 8 s. 12(1) s. 18
s. 9 s. 13 s. 19(3)
s. 10 s. 14 s. 21
s. 15
24. Apprehended person not to be charged etc.
15 (1) An apprehended person who has not been released --
(a) is not to be questioned in relation to any offence that he
or she is suspected of committing;
(b) is not to be subjected to any procedure the purpose of
which is to obtain information that can be used for
20 forensic purposes; and
(c) is not to be charged with an offence.
page 17
Protective Custody Bill 2000
Part 7 Miscellaneous
s. 25
(2) If subsection (1)(a) is contravened, any answer that the person
gives is not admissible in evidence against the person in any
proceedings for an offence.
(3) If subsection (1)(b) is contravened --
5 (a) the Commissioner of Police must ensure that any
information obtained is destroyed; and
(b) any information obtained is not admissible in evidence
against the person in any proceedings for an offence.
25. Escape of an apprehended person
10 For the purposes of any law relating to escape from lawful
custody, an apprehended person who has not been released is
not to be taken as being in lawful custody.
26. Approved places
(1) The Minister, by notice published in the Gazette --
15 (a) may approve a place as a place to which an apprehended
person may be taken for the purposes of this Act; and
(b) in relation to the place, may specify that only certain
apprehended people or certain classes of apprehended
people may be taken to the place.
20 (2) The Minister, by notice published in the Gazette, may amend or
cancel a notice made under subsection (1).
(3) Nothing in this Act permits the detention of an adult or a child
in an approved place.
27. Community officers
25 (1) The Commissioner of Police may appoint a person to be a
community officer.
page 18
Protective Custody Bill 2000
Miscellaneous Part 7
s. 28
(2) The appointment must be in writing and for a term decided by
the Commissioner.
(3) The appointment may state that the person appointed may
exercise the powers of a community officer under this Act only
5 in a place, or only in circumstances, specified in the
appointment.
(4) The Commissioner is to issue a community officer with a
certificate of appointment.
(5) The Commissioner, at any time, may amend or cancel such an
10 appointment.
(6) The Commissioner, in writing, may delegate the functions in
this section other than this power of delegation.
(7) A person who is appointed to be a community officer is not by
virtue of the appointment a public service officer under the
15 Public Sector Management Act 1994.
(8) The performance of any function under this Act by a
community officer is to be voluntary and for no pay.
(9) For the purposes of the Workers' Compensation and
Rehabilitation Act 1981 --
20 (a) a community officer, while performing functions under
this Act, is to be regarded as an employee of the Crown;
and
(b) his or her weekly earnings are to be taken to be the
amount that the Minister considers is reasonable in the
25 circumstances.
28. Protection from personal liability
(1) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the performance or
purported performance of a function under this Act.
page 19
Protective Custody Bill 2000
Part 7 Miscellaneous
s. 29
(2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
(3) Despite subsection (1), the Crown is not relieved from any
5 liability that it might have for another person having done
anything as described in that subsection.
(4) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
(5) This section does not affect the operation of sections 137 and
10 138 of the Police Act 1892.
29. Regulations
(1) The Governor may make regulations prescribing all matters that
are necessary or convenient to be prescribed for the giving
effect to the purposes of this Act.
15 (2) Without limiting subsection (1), regulations may provide for the
manner and form of recording any information that is required
to be recorded under this Act.
30. Consequential amendments
The Acts listed in Schedule 1 are amended as set out in that
20 Schedule.
page 20
Protective Custody Bill 2000
Consequential amendments Schedule 1
Schedule 1 -- Consequential amendments
[s. 30]
1. Court Security and Custodial Services Act 1999
(1) The amendments in this clause are to the Court Security and
5 Custodial Services Act 1999*.
[* Act No. 46 of 1999.]
(2) Section 3 is amended by deleting the definition of "intoxicated
detainee" and inserting instead --
"
10 "intoxicated detainee" means a person detained under the
Protective Custody Act 2000;
".
(3) Section 81(a)(iii) is deleted and the following subparagraph is inserted
instead --
15 "
(iii) an appropriate facility as defined in
section 3 of the Protective Custody
Act 2000;
".
20 (4) Schedule 3 clause 1(1)(d) is amended by deleting "Part VA of the
Police Act 1892." and inserting instead --
" the Protective Custody Act 2000. ".
2. Police Act 1892
Part VA of the Police Act 1892* is repealed.
25 [* Reprinted as at 31 January 1997.
For subsequent amendments see 1998 Index to the Statutes of Western
Australia, Table 1, p. 196 and Acts Nos. 18, 42 and 47 of 1999.]
page 21
Protective Custody Bill 2000
Schedule 1 Consequential amendments
3. Young Offenders Act 1994
Section 18 of the Young Offenders Act 1994* is repealed.
[* Reprinted as at 26 November 1996.
For subsequent amendments see 1998 Index to the Statutes of Western
5 Australia, Table 1, p. 279 and Act No. 47 of 1999.]
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