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Unlike most NSW police, officers in Orange retain the power to take kids off the streets
December 24, 2022
By Peter Holmes
As of today - Christmas Eve 2022 - the Orange Local Government Area (LGA) has again been declared as an “Operational Area”’ under the Children (Protection and Parental Responsibility) Act 1997.
The status gives police in Orange certain powers that most other officers in NSW do not have.
It allows them to remove young people from a public area if they believe the child is under 16 and not subject to the supervision or control of a responsible adult, or is in the public place in circumstances that place the person at risk.
A young person is deemed at risk if they:
Are in danger of being physically harmed or injured
Are in danger of abuse (including assault, sexual assault, ill treatment and exposure to behaviour which may cause psychological harm)
Are about to commit an offence.
“If police remove a young person from a public place, they must take them to a parent, carer, close relative or, if that is not possible, the young person may be placed in the care of the Department of Communities and Justice for a period of up to 24 hours,” said a statement from NSW MLC Sam Farraway.
Orange deputy mayor Gerald Power was in favour of extending police powers in the city.
“Over many years the powers that come with this Act have been a valuable tool for local police in Orange to deal with difficult situations involving children,” Power said.
“The Act was passed in 1997 and since then police say it’s made a big difference in letting officers return children to their homes or a place that will be safe for them.
“The Parental Responsibility Act is all about children. When it’s been in force in Orange before, it lets police take action when they believe local kids on the street might be at risk. This is a good step for the community of Orange.”
Those involved in consultations included Orange City Council, state ministers, local police and “other stakeholders”, according to the statement.
Farraway said the declaration of Orange as an “Operational Area” would improve the overall safety of the city: “This is a fantastic win for families, parents and common sense in the Orange Local Government Area.
“Locals have been approaching me for weeks and calling for this important measure to be reinstated, in order to give police the powers to protect kids and to protect local facilities after hours.
“After working for two months with the deputy premier and minister for police Paul Toole; the attorney general of NSW, Mark Speakman; Orange City Council; and local police, I am glad to see the order returned.”
Deputy premier Paul Toole said it was “good news for local families and parents who once again have more certainty that their children will be kept out of harm’s way”.
It has not been made clear why Orange remains an outlier LGA in NSW in seeking these extended powers.
Police have said in community meetings in Orange this year that they believe the ability to take kids off the streets has kept many of them safe.
The Order remains in force until June 30, 2025, or until revoked.
Extract from the Children (Protection and Parental Responsibility) Act 1997 No 78
Current version for 25 November 2022
[Key sections underlined in red by The Orange News Examiner.]
Part 3 Welfare of children in public places
Division 1 Declaration of operational area
13 Object of Division
The object of this Division is to provide for the declaration of the areas (or portions of areas) in which the powers conferred by Division 2 of this Part on police officers to remove children from public places may be exercised.
Note—
An area is defined in section 3 to mean a local government area and to include a part of a local government area.
14 Operational area
(1) The council for an area may request the Attorney General to declare the area to be an operational area for the purposes of Division 2 of this Part.
(2) The Attorney General may, by order, declare an area described in the order to be an operational area for the purposes of Division 2 of this Part in accordance with a request under subsection (1), or may declare a portion only of that area to be an operational area.
(3) The Attorney General must not make an order declaring an area (or portion of an area) to be an operational area unless the Attorney General is satisfied that adequate crime prevention or youth support initiatives will be available in the area before the order takes effect.
(4) In considering a request under subsection (1) to declare an area (or a portion of an area) to be an operational area, the Attorney General is to have regard to the following—
(a) whether the council has adequately informed and consulted with the local community concerned, including young people and the Aboriginal community, and the views expressed,
(b) the extent and nature of crime in the area,
(c) the nature of any crime prevention or youth support initiatives that have been undertaken in the area, including whether any local crime prevention plan or safer community compact is in force for the area, or is in the course of being prepared by the council for the area, and the contents or proposed contents of that plan or compact,
(d) the effect of making the declaration on young people in the area, including the availability of safe and appropriate recreational amenities for young people in the area,
(e) the practicality of applying Division 2 of this Part in the area, including (but not limited to) any advice given by the Commissioner of Police relating to the operational capacity of police to carry out functions under the Division in the area,
(f) without limiting paragraph (e), whether appropriate arrangements have been made, or are able to be made, to cater for the needs of young people who are removed from public places in the area under Division 2 of this Part and who are not able to be taken home, including culturally appropriate arrangements for Aboriginal and Torres Strait Islander young people,
(g) whether the council has undertaken steps to include young people’s needs in its local planning processes.
(5) The Attorney General is to consult with the Minister for Community Services and the Minister for Police before declaring an area (or a portion of an area) to be an operational area.
15 Duration of declaration
(1) An order declaring an area (or a portion of an area) to be an operational area takes effect on a day specified in the order, being a day that is later than the day it is published in accordance with section 17.
(2) Unless it is sooner revoked, the declaration of an operational area remains in force for such period as is specified in the order.
(3) The declaration of a portion of an area as an operational area does not prevent the declaration of further portions of the same area as operational areas.
(4) The council of an area (or a portion of an area) declared to be an operational area must report to the Attorney General when requested to do so by the Attorney General on the implementation, and effectiveness, of the powers conferred by Division 2 of this Part.
16 Amendment or revocation of declaration
(1) The Attorney General may, by order, amend or revoke an order declaring an area (or a portion of an area) to be an operational area.
(2) An order under subsection (1) may be made at the request of the council for the area to which the declaration relates or on the Attorney General’s own initiative.
(3) The Attorney General is to consult with the Minister for Community Services and the Minister for Police before revoking or, unless the Attorney General considers the amendments are not substantial, amending an order declaring an area to be an operational area.
Removal of children from public places
18 Children to whom Division applies
This Division applies to a person—
(a) who is in a public place in an operational area, and
(b) who a police officer believes on reasonable grounds is a child under the age of 16 years.
19 When action may be taken under this Division
(1) A police officer may remove a person to whom this Division applies from any public place in an operational area if the police officer believes on reasonable grounds that the person—
(a) is not subject to the supervision or control of a responsible adult, and
(b) is in the public place in circumstances that place the person at risk.
(2) A police officer who removes a person from a public place under this section must escort (or arrange for another police officer to escort) the person to a place and place the person in the care of a person in accordance with section 22.
(3) For the purposes of this section, a person is at risk if—
(a) the person is in danger of being physically harmed or injured, or
(b) the person is in danger of abuse (including assault and sexual assault, ill treatment and exposure to behaviour that may cause psychological harm to the person), or
(c) the person is about to commit an offence.
20 Relationship to Children and Young Persons (Care and Protection) Act 1998
(1) This Division has effect in addition to and does not derogate from the Children and Young Persons (Care and Protection) Act 1998.
(2) In particular, and without limiting subsection (1), nothing in this Division limits the powers conferred under section 39, 43 or 44 or Chapter 15 of the Children and Young Persons (Care and Protection) Act 1998.
(3) Before taking action under section 22 in relation to a person to whom this Division applies, a police officer is to consider whether it would be more appropriate to take action under the Children and Young Persons (Care and Protection) Act 1998 to best meet the needs of the person.
(4) Section 27 (Mandatory reporting) of the Children and Young Persons (Care and Protection) Act 1998 applies to a police officer while exercising functions under this Division.
21 Guiding principles when taking action under this Division
(1) A police officer who removes a person to whom this Division applies from a public place under this Division is to use his or her best endeavours to escort the person to the home of a parent, relative or other person who is responsible for caring for the person and to leave the person in the care of the parent, relative or other responsible person.
(2) Despite subsection (1), the police officer’s paramount duty is to ensure that any action taken in respect of a person to whom this Division applies who is removed from a public place under this Division is in the best interests of the person and the police officer is to take such action as the police officer considers appropriate in the circumstances to promote the person’s best interests.
22 Action that may be taken
(1) A police officer who removes a person to whom this Division applies from any public place may escort (or arrange for another police officer to escort) the person to the residence of a parent of the person or, if the person has a carer, his or her care residence and leave the person there.
(2) A police officer who escorts a person to the residence of a parent of the person or his or her care residence must not leave the person at that residence unless—
(a) the parent or carer of the person or some other responsible adult is present at the residence and is able and willing to care for the person, or
(b) the police officer is satisfied that the person may safely be left at the residence in the absence of a responsible adult.
(3) If the police officer is unable to escort the person to, or leave the person, at a place referred to in subsection (2), the police officer may escort (or arrange for another police officer to escort) the person to the residence of a close relative nominated by the person and leave the person there.
(4) A police officer who escorts a person to the residence of a close relative must not leave the person at that residence unless the relative or some other responsible adult is present at the residence and is able and willing to care for the person.
(5) If for any reason a police officer is unable to escort a person to, or leave a person at, a place referred to in subsection (2) or (4), he or she may—
(a) place the person in the care of the Director-General of the Department of Community Services, or
(b) if the police officer is unable to place the person in the care of the Director-General, place the person in the care of an approved person who is able and willing to have the care of the person.
(6) A person in whose care a person is placed under subsection (5) may keep the person in his or her care for such period not exceeding 24 hours (or such shorter period as may be prescribed by the regulations) as may be necessary for arrangements to be made to return the person to the care of a parent or carer.
(7) If, on the expiration of the period referred to in subsection (6), a person has not been returned to the care of a parent or carer, the person is to be released or dealt with according to law.
(8) The Director-General of the Department of Community Services may place a person who is placed in the care of the Director-General under this section in the care of any person in whose care a child might be placed under the Children and Young Persons (Care and Protection) Act 1998.
23 Limitations on action that may be taken
(1) A police officer who removes a person to whom this Division applies from a public place must not in any circumstances escort (or arrange for another police officer to escort) the person to, or leave the person at, a police station.
(2) A police officer must not leave a person to whom this Division applies at any place to which the person has been escorted under section 22 if the police officer considers it would be detrimental to the best interests of the person to do so.
(3) Before escorting a person to a place under section 22, the police officer is to take into account any wishes or feelings of the person (considered in the light of the person’s apparent age and understanding) that are volunteered by the person. However, nothing in this subsection permits a police officer to require a person to express his or her wishes or feelings in relation to this matter.
24 Approved person
(1) The Director-General of the Department of Community Services may designate persons who reside in or in the vicinity of an operational area to be approved persons with whom a person to whom this Division applies (or a person within a specified class of such persons) removed from a public place in a specified operational area may be placed under section 22 (5) (b).
(2) In deciding which persons should be designated under this section in respect of an Aboriginal child, the Director-General is to take into account (so far as they are applicable) the principles for placement of Aboriginal children set out in section 13 of the Children and Young Persons (Care and Protection) Act 1998.
(3) In deciding which persons should be designated under this section in respect of children other than Aboriginal children, the Director-General is to take into account the principle that children with a particular cultural heritage should preferably be placed with persons who are of a similar background or who understand their special needs.
25 Notification requirements
(1) A police officer who places a person to whom this Division applies in the care of a person other than a parent or carer of the person, or who leaves a person at a residence in the absence of a parent or carer, is required to notify a parent of the person or, if the person has a carer, the person’s carer, if the parent or carer is known and notification is practicable.
(2) This section does not require a police officer to notify a person’s parent of the person’s whereabouts if—
(a) the person volunteers to the police officer that he or she does not wish his or her parent to be so notified, and
(b) the police officer is satisfied that it would not be in the person’s best interests to so notify the parent.
27 Police officer may request person to state name, age and address
For the purposes of enabling a police officer to escort a person removed from a public place under this Division to a place referred to in section 22, the police officer may request the person to state—
(a) his or her name and age, and
(b) his or her parent’s residential address or, if he or she has a carer, the address of his or her care residence.
28 Use of force
A police officer may use reasonable force for the purpose of removing a person from a public place under this Division or escorting the person under section 22.
29 Removal of concealed weapons
(1) A police officer who believes on reasonable grounds that a person to whom this Division applies may be carrying a concealed weapon may—
(a) frisk search the person, and
(b) take possession of any weapon found in the person’s possession if the police officer considers it may endanger the person, the police officer or any other person if the person is permitted to keep it in his or her possession.
(2) In this section—
frisk search means—
(a) a search of a person conducted by quickly running the hands over the person’s outer garments, and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
weapon includes—
(a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or
(b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, or
(c) a syringe, or
(d) a glass bottle or other instrument adapted for use for causing injury to a person.
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