Admission to Courts (Lower Courts) Regulations 2006

Admission to Courts (Lower Courts) Regulations 2006

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council and on the recommendation of the magistrates, make the following regulations under the Admission to Courts Act 1916 .

W. J. E. COX

Governor

By His Excellency's Command,

STEVEN KONS

Minister for Justice and Workplace Relations

1.   Short title

These regulations may be cited as the Admission to Courts (Lower Courts) Regulations 2006 .

2.   Commencement

These regulations take effect on 1 January 2007.

3.   Interpretation

In these regulations –

ammunition has the same meaning as in the Firearms Act 1996 ;

appointed person means a person appointed under regulation 10(1) ;

chemical agent means –

(a) oleoresin capsicum (commonly known as pepper spray); and

(b) orthocololrobemzilemalonotrile (commonly known as tear gas);

controlled substance has the same meaning as in the Misuse of Drugs Act 2001 ;

dangerous article has the same meaning as in the Police Offences Act 1935 ;

device means any thing capable of –

(a) recording an image or sound, whether electronically or by any other means; or

(b) receiving or transmitting a radio signal;

explosive means any one or more of the following, either alone or in combination:

(a) a substance that is manufactured, or used, to produce an explosion;

(b) a modification of such a substance;

(c) a fuse;

(d) a detonator;

firearm has the same meaning as in the Firearms Act 1996 ;

frisk search has the same meaning as in the Search Warrants Act 1997 ;

inflammable liquid means a liquid –

(a) that is combustible or the vapour of which is combustible; and

(b) that is not intended for human consumption;

judicial officer means a person presiding in a lower court as defined in the Magistrates Court Act 1987 ;

liquor has the same meaning as in the Police Offences Act 1935 ;

offensive weapon means an article that is –

(a) made, or adapted, to be used to injure or incapacitate a person; or

(b) intended, by the person possessing the article, to be used to injure or incapacitate a person;

prohibited thing means –

(a) a thing that is in the possession of a person who is not legally entitled to possess the thing; or

(b) a controlled substance; or

(c) a device; or

(d) a thing the use of which is likely to adversely affect order or safety in, or the security or management of, a court, including any ammunition, chemical agent, dangerous article, explosive, firearm, firework, inflammable liquid, liquor, placard or instrument.

4.   Application of regulations

These regulations apply to lower courts.

5.   Admission of persons to courts

(1)  If a judicial officer is of the opinion that, due to the character of the proceedings, it is undesirable in the interests of public morals and decency that a particular member of the public, a member of a class of members of the public or all members of the public be admitted to, or permitted to remain in, the court, the judicial officer may make an order that –

(a) the particular member of the public, a member of the class of members of the public or all members of the public be sent out of the court; and

(b) the particular member of the public, a member of the class of members of the public or all members of the public be refused admission to the court.

(2)  If a judicial officer is of the opinion that it is necessary for the purpose of securing order or safety in, or the security or management of, a court that a particular member of the public, a member of a class of members of the public or all members of the public not be admitted to or not be permitted to remain in the court, the judicial officer may make an order that –

(a) the particular member of the public, a member of the class of members of the public or all members of the public be sent out of the court; and

(b) the particular member of the public, a member of the class of members of the public or all members of the public be refused admission to the court.

(3)  If the judicial officer, or a person authorised by the judicial officer, is of the opinion that there is sufficient reason for a person who is the subject of an order under subregulation (1) or (2) to be admitted to or to be permitted to remain in the court, the judicial officer, or person authorised by the judicial officer, may admit that person to or permit that person to remain in the court.

(4)  A person must not enter or refuse to leave a court in contravention of an order made under subregulation (1) or (2) .

Penalty:  Fine not exceeding 5 penalty units or imprisonment for a term not exceeding one month, or both.

6.   Power to require person to disclose identity

(1)  Except as otherwise determined in the form of a practice direction issued by the Chief Magistrate in respect of the lower courts, an authorized officer –

(a) may require a person who is in a court to state the person's name and address and give evidence of the person's identity; and

(b) may remove the person from the court if the person fails to comply with the requirement made under subregulation (1)(a) .

(2)  A person of whom a requirement is made under subregulation (1)(a) must not –

(a) fail to comply with the requirement; or

(b) in response to the requirement, state a false name or address or give false evidence of identity.

Penalty:  Fine not exceeding 5 penalty units.

7.   Powers of search and seizure

(1)  Except as otherwise determined in the form of a practice direction issued by the Chief Magistrate in respect of the lower courts, an authorized officer –

(a) may require a person entering, or in, a court to –

(i) submit to a search, including a search of any personal effects of that person which the authorized officer considers are reasonably capable of concealing a prohibited thing; or

(ii) deposit with the authorized officer any personal effects of that person which the authorized officer considers are reasonably capable of concealing a prohibited thing; or

(iii) deposit a prohibited thing with the authorized officer; or

(b) may seize a prohibited thing found on a person, or in a person's personal effects, searched under subregulation (1)(a) ; or

(c) may require a person who is in possession of a prohibited thing to leave, or not enter, a court or remove that person, or cause that person to be removed, from the court.

(2)  A person must comply with a requirement under subregulation (1) .

Penalty:  Fine not exceeding 10 penalty units.

(3)  A person, without lawful excuse, must not possess a prohibited thing in a court.

Penalty:  In the case of –

(a) a prohibited thing that is not a chemical agent, firearm, explosive, inflammable liquid or offensive weapon, a fine not exceeding 10 penalty units; or

(b) a prohibited thing that is a chemical agent, firearm, explosive, inflammable liquid or offensive weapon, a fine not exceeding 10 penalty units or imprisonment for a term not exceeding 6 months, or both.

(4)  A search under subregulation (1)(a)(i)  –

(a) may be conducted by one or more of the following means:

(i) using an animal or an electronic or other device that is designed to locate property that is the subject of the search;

(ii) visual inspection;

(iii) frisk search; and

(b) must be conducted expeditiously and with regard to decency and self-respect.

(5)  An authorized officer may require a person who is being searched under subregulation (1)(a)(i) to remove –

(a) an outer garment, but only if other clothing is worn underneath; and

(b) gloves, headwear or footwear.

(6)  A search under subregulation (1)(a)(i) of a person apparently 10 or more years of age that involves the removal of clothing –

(a) is not to be conducted unless the person to be searched –

(i) has been asked whether the person has with him or her any property that is likely to adversely affect order or safety in, or the security or management of, the court; and

(ii) has been given the opportunity to produce any such property; and

(iii) has been given the opportunity to have the search conducted in private and, if the person so chooses, the search is conducted in private; and

(b) is to be conducted –

(i) if practicable, by an authorized officer of the same sex as the person searched; and

(ii) if practicable, in the presence of only persons of the same sex as the person searched; and

(iii) in the presence of no more than 2 authorized officers.

(7)  A search under subregulation (1)(a)(i) of a person apparently under 10 years of age that involves the removal of clothing is to be conducted –

(a) by a female authorized officer; and

(b) subject to paragraph (c) , in the presence of only female persons; and

(c) in the presence of the person accompanying the child unless that person refuses to be present.

8.   Powers of removal and arrest

(1)  An authorized officer may require a person to leave or not enter a court, or remove a person or cause a person to be removed from a court, if the person –

(a) is behaving in an unlawful, disorderly, menacing or indecorous manner; or

(b) is the subject of an order under regulation 5(1) or (2) ; or

(c) refuses to submit to a search under regulation 7(1)(a)(i) .

(2)  A person must comply with a requirement under subregulation (1) .

Penalty:  Fine not exceeding 5 penalty units.

(3)  An authorized officer may arrest, without warrant, a person who –

(a) fails to comply with a requirement under subregulation (1)(a) or (b) ; or

(b) fails to comply with a requirement under regulation 7(1)(a) or (c) ; or

(c) is in possession of a prohibited thing in a court.

(4)  If an authorized officer who is not a police officer arrests a person under subregulation (3) , the authorized officer is to deliver that person to a police officer as soon as practicable to be dealt with according to law.

(5)  An authorized officer exercising a power under this regulation may use such force and assistance as is reasonably necessary to exercise the power.

9.   Duties of authorized officers

(1)  If a person has been required under regulation 7(1)(a) to deposit a thing with an authorized officer, the authorized officer is to –

(a) return the thing to the person, if the person so requests, when the person leaves the court unless the authorized officer has reasonable cause to believe that the person is not legally entitled to possess the thing; or

(b) if the authorized officer is not a police officer and he or she has reasonable cause to believe that the person is not legally entitled to possess the thing –

(i) advise a police officer as soon as practicable that the thing has been deposited with the authorized officer; and

(ii) give the thing to the police officer.

(2)  If an authorized officer has seized a prohibited thing from a person under regulation 7(1)(b) , the authorized officer is to –

(a) return the prohibited thing to the person, if the person so requests, when the person leaves the court unless the authorized officer has reasonable cause to believe that the prohibited thing is a thing that the person is not legally entitled to possess; or

(b) if the authorized officer is not a police officer and he or she has reasonable cause to believe that the prohibited thing is a thing that the person is not legally entitled to possess –

(i) advise a police officer as soon as practicable that the prohibited thing has been seized; and

(ii) give the prohibited thing to the police officer.

10.   Appointed persons

(1)  The Chief Magistrate, by instrument in writing, may appoint a person to give directions to an authorized officer in respect of the lower courts.

(2)  A person appointed under subregulation (1) may only give directions in accordance with any conditions specified in the instrument of appointment.

11.   Limitations on powers

An authorized officer may only exercise a power conferred by these regulations if the authorized officer –

(a) has reasonable cause to believe that the exercise of the power is necessary for the purpose of securing order or safety in, or the security or management of, a court; or

(b) is directed to do so by an appointed person.

12.   Limitation of liability

An authorized officer does not incur any personal liability in respect of an act done, or omitted to be done, in good faith in the exercise or purported exercise of a power under these regulations.

13.   Evidentiary provisions

(1)  If, in any proceeding for an offence against these regulations, the complaint contains an allegation that a person was in possession of a prohibited thing of a kind specified in the complaint, that allegation is evidence of that fact.

(2)  Subregulation (1) does not apply unless the defendant has been notified that the prohibited thing will be tested, or examined, on the request of the defendant and at the expense of the defendant.

14.   Effect of regulations

(1)  The powers conferred by these regulations are in addition to and do not derogate from any powers conferred on, or possessed by, a court, judicial officer or person in relation to the conduct of proceedings in a court or the regulation of the conduct of persons in a court.

(2)  Nothing in these regulations affects any power of the court in relation to contempt of court or any other similar power.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 27 December 2006

These regulations are administered in the Department of Justice.