Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 4 - Investigation of Commonwealth offences
Most of the amendments in this Schedule are the result of a review of Part 1C of the Crimes Act, and to further refinements following the report on the Bill by the Senate Legal and Constitutional Legislation Committee. Part 1C was inserted into the Crimes Act by the
Crimes (Investigation of Commonwealth Offences) Amendment Act 1991
. It was enacted in part as a response to the High Court decision in
Williams v R
(1986)
161 CLR 278
, which underlined the absence of any authority at common law on the part of investigating officials to detain a suspect for questioning.
Under the existing section 23C in that Part, a person who is lawfully arrested for a Commonwealth offence may be detained for a 'reasonable' time, to a maximum of 2 hours for a person who is or appears to be under 18, an Aboriginal person, or a Torres Strait Islander, and to a maximum of 4 hours for any other person. In calculating these periods, certain periods of time specified in subsection 23C(7) are to be disregarded. A magistrate or justice of the peace can extend this period, once only, by a maximum of 8 hours (section 23D).
Part 1C confers a range of rights on suspects, that are currently expressed to apply both in the situation of lawful arrest and detention, and in specified circumstances constituting deemed arrest. Some of the measures contained in this Schedule are directed to replacing the confusing distinction between lawful and deemed arrest with a clearer (and more clearly highlighted) distinction between lawful arrest, giving rise to a detain power and safeguards, and the circumstance of being a protected suspect who is not under lawful arrest, giving rise only to safeguards.
Among the rights conferred by Part 1C on those who are not under lawful arrest but who are under deemed arrest (old terminology prior to these amendments) or are protected suspects (new terminology under these amendments) are:
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- to communicate with a friend or relative and legal practitioner (section 23G);
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- in the case of an Aboriginal person or Torres Strait Islander or person under 18 - to have an interview friend present during questioning (section 23H);
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- in appropriate cases - to an interpreter (section 23N);
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- in the case of a foreign national (to become any non-Australian national under these amendments) - to communicate with his or her consular office (section 23P).
There are also requirements relating to recording of admissions and confessions (section 23V). This is an indicative list only, and does not detail the precise rules governing each of these rights, or all of the rights that are conferred.
This Schedule also contains some amendments to Part 1AA of the Crimes Act. Part 1AA was inserted in the Crimes Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 . The Part includes rules governing the issuing and execution of search warrants (Division 2), the stopping and searching of vehicles and other conveyances (Division 3), and arrest and related matters including strip search powers and identification procedures (Division 4). All of the proposed amendments are to Division 2.
Finally, the schedule contains amendments to the provisions governing search and seizure warrants under the Part XII of the Customs Act 1901 , inserted by the Customs, Excise and Bounty Legislation Amendment Act 1995 . These provisions are closely modelled on the Crimes Act search warrant provisions.
Some of the search warrant amendments reflect recommendations by the Senate Standing Committee for the Scrutiny of Bills in its fourth report of 2000 concerning entry powers.
Crimes Act 1914
The purpose of the amendments to the Crimes Act is to clarify and improve the operation of the provisions dealing with the investigation of Commonwealth offences under Parts 1AA and 1C.
This Item repeals the existing paragraph 3E(5)(e) and replaces it with a proposed new paragraph 3E(5)(e). Section 3E governs the issuing of search warrants. The existing paragraph 3E(5)(e) provides that the warrant must state:
'the period for which the warrant remains in force, which must not be more than 7 days.'
This formulation has created unnecessary uncertainty for readers of the legislation as to when a warrant expires. The proposed new paragraph will contain a cross-reference to proposed subsection 3E(5A) which will state more concretely when a warrant expires (see Item 2).
This Item inserts proposed subsection 3E(5A). Section 3E governs the issuing of search warrants. The proposed subsection will overcome uncertainty for readers of the existing paragraph 3E(5)(e) as to when a warrant expires (see Item 1). The proposed subsection states that a warrant expires at the end of the seventh day after it is issued.
This Item amends subsection 3E(8), consequential on the proposed amendments at Items 1 and 2. Subsection 3E(8) allows a subsequent search warrant to be issued in respect of premises or a person notwithstanding the earlier expiry of an initial warrant in respect of those premises or that person. The proposed amendment ensures that this rule also extends to proposed subsection 3E(5A), which also provides for warrant expiry.
This Item amends subsection 3E(9), consequential on the proposed amendments at Items 1 and 2. Subsection 3E(9) provides for shorter time limits to apply to the expiry of section 3R (telephone etc) search warrants. The new expiry rule in proposed subsection 3E(5A) will not apply to telephone etc search warrants, which will cease to be in force after a maximum of 48 hours, rather than at the end of a day.
This Item amends subsection 3E(9), consequential on the proposed amendments at Items 1 and 2. Subsection 3E(9) provides for shorter time limits to apply to the expiry of section 3R (telephone etc) search warrants. The existing subsection is premised on the basis that subsection 3E(5) refers to a warrant ceasing to be in force after 7 days. The amended subsection 3E(9) will reflect the fact that the proposed new paragraph 3E(5)(e) will require the issuing warrant to specify the time at which the warrant expires.
This Item repeals subsection 3R(2) and substitutes a new provision that re-enacts and expands on existing subsection 3R(2). Proposed paragraph 3R(2)(a) re-enacts existing subsection 3R(2), which provides that an issuing officer may accept an application for a warrant by voice. Proposed paragraph 3R(2)(b) provides that the issuing officer may make a recording of the whole or any part of such communication by voice. Although there is currently no legal barrier to such recording with the consent of all involved, express legal provision will encourage recording as a mechanism to provide reassurance that there will be no misunderstanding about the terms of an application and the terms of any warrant
This Item inserts the words or any other offence after the word arrested in paragraph 3ZH(2A)(a). Existing paragraph 3ZH(2A)(a) requires that where it becomes apparent during a strip search that a forensic procedure is likely to produce evidence relating to the offence for which the person has been arrested, the procedure must be carried out in accordance with the requirements prescribed by Part 1D.
Currently, the subsection contains a possible anomaly, whereby if a strip search is undertaken and reveals the need for a forensic procedure to find evidence of an offence other than the offence for which the person was arrested, there is no explicit requirement to follow the usual requirements for forensic procedures. Proposed paragraph 3ZH(2A)(a) removes the anomaly by expressly providing that the requirements in Part 1D must also be observed when carrying out forensic proceduresto obtain evidence relating to an offence other than the offence for which the person was arrested.
This Item inserts proposed subsection 3ZH(2B) into section 3ZH to clarify that an order authorising a strip search also authorises the taking of a photograph of evidential material found on the person. Existing section 3ZH allows for a strip search of an arrested person to be conducted, but at present it is not clear that an order by a senior police officer authorising a strip search authorises the photographing of material on the person. This amendment clarifies that evidential material found on the person may be photographed, whether or not this constitutes a forensic procedure under Part 1D.
This Item inserts a proposed a new title Division 1 - Introduction and a new section 23, which will outline the operation of Part 1C. (Part 1C sets out a number of obligations and limitations in relation to the investigation of Commonwealth offences.)
Division 1 will include provisions that relate to the operation of Part 1C including sections covering the application of the Part and definitions.
Section 23 - Outline of this Part
Proposed subsection 23(1) provides that Part 1C performs two functions:
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- Division 1 provides for the detention of people lawfully arrested for Commonwealth offences; and
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- Division 2 imposes obligations on investigating officials in relation to:
- -
- people lawfully arrested for Commonwealth offences; and
- -
- certain other people being investigated for Commonwealth offences.
The proposed outline is designed to clarify the operation of Part 1C with respect to two different groups: those lawfully arrested and those suspected of criminal activity who are not lawfully arrested but are the subject of rights and safeguards, as protected suspects (see the discussion of Item 15A of this schedule).
Proposed subsections 23(2) and (3) further clarify the operation of Part 1C and provide that the Part does not confer any power to arrest a person and that only a person lawfully arrested for a Commonwealth offence may be detained under the Part. (The proposed subsections replace existing section 23R - see Item 53.)
This Item repeals subsection 23A(6), which provides that the existing provisions of Part 1C apply to the investigation of Australian Capital Territory offences which are punishable by a period of more than 12 months and where the investigating official is a member of the Australian Federal Police. The Australian Capital Territory is considering a proposal to enact its own regime, essentially replicating the Commonwealths Part 1C, to apply to Australian Capital Territory offences. This is consistent with the fact that the Australian Capital Territory has enacted its own criminal investigation provisions in other contexts. However, the timing of any such measure has not yet been determined. It is therefore proposed that this Item commence on Proclamation, as set out in clause 2, to ensure that the Australian Capital Territory provisions have commenced before subsection 23A(6) is repealed.
This Item amends section 23AA, which governs the way that Part 1AA applies to persons arrested or questioned in the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands in relation to Commonwealth offences.
The amendment replaces the concept of deemed arrest with the new label protected suspect . This is a consequence of the amendment at Item 15A of this schedule, and is described and explained below in the discussion of that Item.
This Item repeals the definition of arrested or under arrest in subsection 23B(1) as a consequence of the proposal to define the expressions in proposed subsection 23B(1A) (see Item 16).
This Item inserts a definition of the term arrested into subsection 23B(1) to the effect that it refers to an arrest for a Commonwealth offence that has not ceased under subsections 23B(3) or (4).
This Item inserts a definition of the term inform into subsection 23B(1) and provides that in relation to providing information to a person under arrest, it means notify the person:
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- in a language in which the person is able to communicate fluently; and
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- in a manner that takes into account any apparent disability on the part of the person.
This definition is designed to ensure that the various requirements under Part 1C to give information to a person operate in a consistent way, that gives due regard to the capacity of the person to understand the information and particular attention to the needs of disabled persons. This would replace inconsistent formulations in the current Part 1C as to the scope of the proposed right.
The limb of the definition relating to disabled persons, along with the proposed amendment to section 23F in Item 41 of this schedule, implements recommendation 7 of the Senate Legal and Constitutional Legislation Committee report on the Bill.
This Item repeals the definition of magistrate in subsection 23B(1) as a consequence of the introduction of the term judicial officer (see Item 29). (A judicial officer will include, inter alia , a magistrate.)
This Item inserts in subsection 23B(1) a cross-reference to the definition of protected suspect . The definition would be contained in subsection 23B(2), as amended by Item 15A. That amendment described and explained below in the discussion of Item 15A.
This Item inserts a definition of the term under arrest into subsection 23B(1) to the effect that it refers to an arrest for a Commonwealth offence that has not ceased under subsections 23B(3) or (4). This is consistent with the definition of the term arrested , which would be inserted in subsection 23B(1) by Item 12.
This Item inserts a definition of protected suspect in subsection 23B(2).
This amendment responds to concerns reflected in recommendation 6 of the report on the Bill by the Senate Legal and Constitutional Legislation Committee. These concerns related to the lack of clarity in the use of the term arrest in Part 1C of the Crimes Act to mean two mean different things (lawful arrest and deemed arrest). The reason for the two concepts is that actual arrest gives rise to a detention power and safeguards for suspects, whereas deemed arrest gives rise only to safeguards for suspects.
The amendments centring on Item 15A respond to the Committees concerns about the use of the word arrest to mean two different things, by replacing the deemed arrest label with the phrase protected suspect. In other words, persons who are currently deemed to be under arrest would instead be termed protected suspects. This will make it clear that in the absence of lawful arrest, there is no other power of arrest or detention created by the fact that a person is in the company of an investigating official. Rather, the extended operation of many of the provisions of Part 1C (previously referred to as deemed arrest) is purely directed to conferring safeguards and protections, a fact that will be reflected in the new term protected suspect. The amendments employ a clearer label only, and have no substantive impact on the powers or rights conferred by Part 1C of the Crimes Act.
In keeping with the circumstances that currently constitute deemed arrest, the definition of protected suspect in proposed subsection 23B(2) will apply to a person who is in the company of an investigating official for the purpose of being questioned, if:
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- the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or
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- the official would not allow the person to leave if the person wished to do so; or
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- the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so.
Current exceptions to this definition (as amended by the Bill), would remain, namely where:
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- the official is performing functions in relation to persons or goods entering or leaving Australia and the official does not believe that the person has committed a Commonwealth offence; or
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- the official is exercising detention, search, information gathering or questioning power under a law of the Commonwealth.
The safeguards that arise in circumstances of deemed arrest (and that would therefore arise where a person is a protected suspect) include:
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- to communicate with a friend or relative and legal practitioner (section 23G);
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- in the case of an Aboriginal person or Torres Strait Islander or person under 18 - to have an interview friend present during questioning (section 23H);
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- in appropriate cases - to an interpreter (section 23N);
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- in the case of a foreign national or stateless person - to communicate with the appropriate consular office (section 23P).
(Items 16 to 19 were removed in the Senate.)
This Item repeals subsection 23B(3) and substitutes a new subsection to provide that:
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- a person does not cease to be under arrest for the purposes of Part 1C when the person is remanded under specified provisions of the Service and Execution of Process Act 1992 ; and
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- a person does cease to be under arrest for the purposes of Part 1C when the person is remanded by a person authorised to grant bail under the law of the State or Territory in which the person was arrested, as well as a magistrate or a justice of the peace.
Subsection 23B(3) currently provides that where a person who has been arrested for a Commonwealth offence is remanded by a magistrate (which is currently defined as including a justice of the peace) in respect that offence, then the person is no longer considered to be under arrest for the purposes of Part 1C.
The proposed amendment is designed to ensure that where a person is remanded into custody under specified provisions of the Service and Execution of Process Act 1992 , that the remand will not have the effect of precluding the application of Part 1C (that is, the person will continue to be under arrest).
Item 20A amends subsections 23B(4) and (5) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item inserts the proposed heading Division 2 - Powers of detention before section 23C and a clarifying note to the effect that the powers in Division 2 only apply to people lawfully arrested for Commonwealth offences and do not apply to protected suspects (as to which, see the discussion in respect of Item 15A).
Item 21A amends subsections 23B(4) and (5) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule). It is no longer necessary or appropriate to distinguish lawful arrest, as the term arrest would not only apply to lawful arrest.
This Item repeals subsection 23C(2) and substitutes a new subsection 23C(2) to clarify the circumstances in which a person may be detained for the purposes of investigating an offence other than the offence for which the person was arrested.
Existing subsection 23C(2) provides that a person who has been lawfully arrested for a Commonwealth offence may be detained for the purpose of investigating whether the person committed the offence or any other Commonwealth offence.
The purpose of the proposed amendment is to close an anomaly in this subsection, which allows scope for the arrest of an offender on a holding charge. While an investigating official must have reasonable grounds to believe that a person has committed an offence in order to arrest that person, and hence detain them pursuant to subsection 23C(3), under the current provision no such belief is required to justify detention and questioning in relation to other possible Commonwealth offences. Contemporary policing practice does not involve the use of holding charges.
Proposed subsection 23C(2) clarifies that a person may only be detained for the purposes of investigating an offence (not being the offence for which the person was arrested) if an investigating official reasonably suspects the person to have committed that other Commonwealth offence.
This Item amends paragraph 23C(3)(b) as a consequence on the proposed repeal of the term magistrate and the proposed introduction of the term judicial officer (see Item 29).
This Item inserts a proposed a clarifying note at the end of subsection 23C(3) cross-referring to the definition of judicial officer in proposed subsection 23C(9).
(Item 25 was removed in the Senate.)
This Item inserts a proposed new subsection 23C(6A) to provide that in relation to each first arrest in any 48-hour period the effect of subsection 23C(6), which is to ensure that in any given 48-hour period, a person cannot be questioned for more than the applicable investigation period, is to be disregarded in certain circumstances.
The proposed circumstances in which the limitations imposed by subsection 23C(6) are to be disregarded are:
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- if the later arrest is for a Commonwealth offence that is committed after the persons period of detention in respect of the first or earlier arrest; or
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- if the later arrest arose in different circumstances to the offence to which the first arrest relates and for which new evidence has been found since the first arrest.
The proposed provision also provides that the persons questioning associated with the later arrest must not relate to the Commonwealth offence to which the first arrest related, or circumstances in which such an offence was committed.
While subsection 23C(6) places a legitimate limitation on investigating officials, it is proposed that a person should not be able to avoid questioning for a new or unrelated offence merely because he or she has just been questioned in relation to an earlier offence.
This Item amends paragraph 23C(7)(g) to replace the expression to make and dispose with the expression in connection with making and disposing. The proposed amendment is designed to clarify that it is not just the actual time taken to make or dispose of an application for an order under sections 23D, 23WU or 23XB that should be disregarded for the purpose of calculating the applicable investigation period, it is also to include the time that is reasonably required in connection with making such an application.
The proposed amendment will mean, for example, that the time spent travelling to the location where the section 23D application is to be heard and the time spent waiting for the magistrate to hear the application will not count towards the investigation period allowed under subsection 23C(4).
This Item amends paragraph 23C(8)(a) as a consequence of the proposal to amend paragraph 23C(3)(b) by replacing the term magistrate with the proposed term judicial officer .
This Item inserts a proposed new subsection 23C(9) to define the proposed term judicial officer . The provision provides that a judicial officer means a magistrate, a justice of the peace or a person authorised to grant bail under the law of the State or Territory in which the person was arrested.
Currently subsection 23B(1) provides that for the purposes of Part 1C a reference to magistrate includes a justice of the peace. This extended definition of magistrate has been criticised because of the confusion it creates by being used to refer to someone who is not in fact a magistrate (ie, a justice of the peace). The proposed new term of judicial officer will replace references to magistrate where it is appropriate to do so. For example, the definition will be used for the purposes of remand in proposed paragraph 23C(3)(b) (see Item 23).
(Item 30 was removed by the Senate.)
This Item inserts a proposed clarifying statement at the end of subsection 23D(2) to provide that, the magistrate, justice of the peace or bail justice to whom the application is made under that subsection, is the judicial officer for the purposes of sections 23D and 23E. (The term judicial officer appears in subsections 23D(3) and (4) but has not previously been defined.)
The proposed amendment and the repeal of the definition of magistrate (see Item 14) will remove the inherent contradiction that currently exists in subsection 23D(2).
This Item amends subsection 23D(4) to require that an extension of the investigation period by a judicial officer must be by signed written authority.
This Item inserts proposed new subsections 23D(4A) and (4B). Proposed subsection 23D(4A) provides that the written authority extending the investigation period must set out the day and time when the extension was granted, the reasons for granting the extension and the terms of the extension.
Proposed subsection 23D(4B) provides that the judicial officer (who grants the extension) must give the investigating official a copy of the authority as soon as practicable after signing the authority.
The proposed amendments will mean that there must be a formal record of all decisions to extend investigation periods and not just those where the application is made in an electronic form under section 23E as is currently the case.
This Item omits the reference to radio or radio-telephone from subsection 23E(1) and proposes substituting a reference to telex, fax or other electronic means.
Existing section 23E sets out requirements that must be met where an application for extension of the investigation period is made by telephone, radio or radio-telephone. Other electronic means are not covered.
The proposed amendment to subsection 23E(1) provides that an extension of the investigation period may be sought or notified by any electronic means (eg, telephone, fax or email).
This Item replaces the word tell in subsection 23E(2) with the word inform as a consequence of the proposed introduction the word inform as a defined term in subsection 23B(1) (see Item 13). This means that an investigating official must communicate in a language in which the person being questioned is reasonably fluent about the right to make representations; and in doing so must take account of any apparent disability of the person.
(Item 36 was removed by the Senate.)
This Item repeals subsection 23E(3) (which sets out the contents of a written authority to extend an investigation period in response to an electronic request) and replaces it with a new provision as a consequence of proposed subsection 23D(4A) (see Item 33). Proposed subsection 23E(3) will provide that, if a judicial officer grants an electronic application to extend the investigating period, he or she must inform the investigating official of the matters set out in the authority under proposed subsection 23D(4A). This means that the information recorded for both electronic and other grants of extension of time is the same.
This Item omits the term receiving the authority from subsection 23E(4) and substitutes the term being informed of those matters as a consequence of the proposed amendment to subsection 23E(3) (see Item 37). The proposed amendment to subsection 23E(4) will remove an ambiguity in the existing provision so that it is clear that the investigating official need only be informed of the matters contained in the written authority, he or she need not actually receive a physical copy of that authority.
This Item repeals subsection 23E(7) (which currently defines judicial officer for the purposes of section 23E) as a consequence of the proposed amendment to subsection 23D(2) (which will define judicial officer for the purposes of both sections 23D and 23E) (see Item 31).
This Item inserts the proposed heading Division 3 - Obligations of investigating officials before section 23F and a clarifying note to the effect that the obligations in Division 3 apply in relation to protected suspects as well as those arrested for a Commonwealth offence (see discussion under Item 15A of this schedule).
Item 40A amends subsection 23F(1) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item repeals subsection 23F(2) and replaces it with a new provision as a consequence of the proposed introduction the word inform as a defined term in subsection 23B(1) (see Item 13). Existing subsection 23F(2) provides that a caution must be in a language in which the person is able to communicate, as the concept of communicating in a language other than English will be central to the new term inform , the proposed amendment of subsection 23F(2) will refer to an investigating official having to inform the person of the caution.
The amendment also implements recommendation 7 of the Senate Legal and Constitutional Legislation Committee report on the Bill, in providing that a caution need only be given in writing if that is the most appropriate means of informing the person.
Items 41A and 41B amend subsections 23G(1) and 23G(2) respectively, as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
Item 42 omits the words holding the person under arrest from subsection 23G(2) to clarify the application of those provisions. Section 23G confers a right on a person who is lawfully arrested or who falls within the extended meaning of arrest, to speak to a friend, relative or legal practitioner. As the term holding the person under arrest is inconsistent with the applicability of the section to persons who are not lawfully under arrest, the proposed amendments remove the words.
Item 42A amends subsection 23G(3) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
Item 43 omits the words holding the person under arrest from subsection 23G(3) for the same reasons that Item 42 removes these words from subsection 23G(2).
Items 43A and 43B amend subsection 23H(1) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item repeals paragraph 23H(2)(a) and replaces it with a new paragraph to raise the threshold test for when an investigating official must not question an Aboriginal person or a Torres Strait Islander unless the person has had access to an interview friend.
Existing subsection 23H(2) provides that this obligation arises where the investigating official:
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- suspects that a person may have committed a Commonwealth offence , or is of the opinion that information received by investigating officials may implicate a person in the commission of a Commonwealth offence , and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
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- believes on reasonable grounds that a person under arrest for a Commonwealth offence is an Aboriginal person or a Torres Strait Islander.
By contrast, the requirements for the application of the provisions governing the tape recordings of confessions and admissions has a higher threshold: that is the person is being interviewed as a suspect (whether under arrest or not).
The proposed amendment will make the application of interview friend provisions consistent with the requirements of the tape-recording provisions. This will mean that the requirement to cease questioning a person, unless they have had access to an interview friend, will apply where an investigating official interviews a person as a suspect (whether lawfully arrested or covered by the extended meaning of arrest or not) rather than in the current wider circumstances.
Item 44A amends paragraph 23H(2)(b) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item inserts proposed subsections 23H(2A) and (2B) to deal with the situation where an investigating official is to choose an interview friend for a person.
Under the existing provisions, if an interview friend is not present, except in certain circumstances, the investigating official must not question the person. However, there are no provisions that enable the investigating official to provide the person with an interview friend. While it is desirable that persons being interviewed have first choice as to who is to be their interview friend, there are limits to the extent to which a suspect can be given an unfettered choice, particularly where this results in an inability to question the person.
Proposed subsection 23H(2A) will provide that the suspect may choose his or her own interview friend unless he or she expressly and voluntarily waives this right, fails to exercise this right or the interview friend chosen does not arrive within 2 hours.
In such circumstances, proposed subsection 23H(2B) will provide that the investigating official must choose one of the following to be the persons interview friend:
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- a representative from an Aboriginal legal aid organisation; or
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- a person named in the relevant list maintained under subsection 23J(1) (that is, a list of names of persons who are suitable to assist an Aboriginal person or a Torres Strait Islander).
This Item inserts a proposed amendment to subsection 23H(4), consequent to the previous Item, to add that the burden is on the prosecution to prove that an Aboriginal person or a Torres Strait Islander has waived the right to an interview friend under proposed subsection 23H(2A) as well as under existing subsection 23H(2).
Item 46A amends subsection 23H(5) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item inserts a proposed consequential amendment to subsection 23H(8) to add that the investigating official does not have to comply with the requirements of proposed subsection 23H(2B) (as well as existing subsections 23H(1) and (2)) if the investigating official believes that the person being questioned would not be at a disadvantage because of the persons education and understanding.
This Item repeals paragraph 23K(1)(a) and replaces it with a new paragraph to raise the threshold test for when an investigating official must not question the person, unless the person has had access to an interview friend. This proposed amendment is equivalent to that proposed for paragraph 23H(2)(a) and the same reasoning applies (see Item 44).
Item 48A amends paragraph 23K(1)(b) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item inserts a proposed consequential amendment to subsection 23L(1) as a consequence of the proposed restructure of that provision (see Item 50).
Sections 23G, 23H, 23K, 23M and 23P impose a number of requirements on an investigating official in relation to a person under lawful or deemed arrest, such as deferring questioning to allow a legal practitioner to attend the questioning of the person.
These requirements are, however, subject to section 23L, which provides that a requirement imposed on the investigating official by one of the above sections does not apply in certain circumstances, for example, where compliance with that requirement is likely to result in the destruction of evidence or the intimidation of a witness.
This Item repeal and substitutes subsections 23L(2), (3) and (4) to restructure and simplify the drafting of the provisions (without changing the scope of the provisions) and to prescribe time limits within which certain things are to occur .
Proposed subsection 23L(2) provides that if the requirement under the Act relates to things done or in relation to a legal practitioner, then the ability to not comply with that requirement can only exist in exceptional circumstances, and if a senior police officer, or other prescribed person, has authorised the non-compliance. In addition the investigating official must make a record of the ground for the belief required for subsection 23L(1) (for example, the belief that complying with the provision is likely to result in an accomplice avoiding apprehension, the loss or concealment etc of evidence or prejudice the safety of a person).
Proposes subsection 23L(3) provides that if non-compliance with the requirements of the provision has been authorised, then the record of the investigating officers grounds for belief must be recorded as soon as practicable. The introduction of the time for the recording the investigating officers belief is designed to overcome the contrary intention that it must be done contemporaneously. In addition, the investigating officer must comply with the requirements as soon as possible. This is designed to preclude a continuation of the non-compliance in circumstances where the initial grounds for non-compliance no longer exist.
Proposed subsection 23L(4) provides that if non-compliance with the requirements of a provision results in a persons communication with a legal practitioner of his or her choice, or that legal practitioners attendance, being prevented or delayed, then the investigating official must offer the services of another legal practitioner. This means that the person must have access to legal advice as soon as possible even when the legal practitioner of his or her choice is not available.
This Item inserts a proposed a transitional provision which is designed to ensure that offices prescribed for the purposes of subsection 23L(4) before the commencement of this Act continue to be prescribed offices after the amendment proposed to section 23L (see Item 50).
Item 51A amends section 23M as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
The amendments also clarify the wording of section 23M, which sets out the procedures to be followed where a person asks about the whereabouts of a person who is under arrest or a protected suspect.
Item 51B amends section 23N as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item repeals and substitutes section 23P. Under existing section 23P, if a person under arrest for a Commonwealth offence is not an Australian citizen, the investigating official must, before starting to question the person, inform the person that he or she may communicate, or attempt to communicate, with the consular office of the country of which the person is a citizen, and the official must defer the questioning for a reasonable time to allow the person to so communicate. Existing section 23P does not deal with the rights of stateless persons which are provided for under certain international conventions and some Commonwealth laws (for example, to communicate with the nearest appropriate representative of the State in the territory of which the person has his or her habitual residence, and to be visited by a representative of that State).
The re-enacted section 23P proposes the conferral of a broader range of rights:
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- to be informed of the right to have a consular office notified;
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- to have the consular office notified;
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- to be informed of the right to notify a consular office directly;
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- to be given reasonable facilities to notify the office;
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- to have written communications forwarded to the consular office; and
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- to attempt to notify a consular offence.
Item 52A amends section 23Q as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
Existing section 23R is a declaratory provision that states that Part 1C does not confer any power to arrest a person or to detain a person who has not been lawfully arrested. As proposed subsections 23(2) and (3) (see Item 9) address this issue, this Item inserts a proposed the repeal of section 23R.
Items 53A and 53B amend subsection 23U(1) as a consequence of the replacement of the concept of deemed arrest with the concept of a protected suspect (described and explained in relation to Item 15A of this schedule).
This Item inserts a minor change to subsection 23V(1) to replace the reference to interviewed with a reference to questioned to clarify that the provision is to apply whenever a person is being questioned without the need for a formal interview to take place
These Items amend subparagraphs 23V(1)(b)(i) and (ii), respectively, to replace the concept of interview with the concept of questioning as a consequence of the proposed amendment of subsection 23V(1) (see Item 54).
This Item replaces the word notify in paragraph 23V(2)(b) with the word inform as a consequence of the proposed introduction that word as a defined term in subsection 23B(1) (see Item 13). This means that an investigating official must communicate in a language in which the person being questioned is reasonably fluent about the right to view a video recording of any confession or admission; and take account of the needs of any apparent disability in deciding how to communicate with the person.
This Item inserts proposed subsection 23V(6A) to clarify that subsection 23V(6) (which enables a court to admit confessional evidence when the court is satisfied that it was not practicable to comply with the requirements of subsection 23V(2) in relation to the provision of copies of the confession) does not limit the operation of subsection 23V(5). Subsection 23V(5) provides that a court may admit confessional evidence even if the requirements of subsection 23V(2) have not been complied with, if in the special circumstances of the case admission of the evidence would not be contrary to the interest of justice.
Customs Act 1901
Items 59 to 69 make equivalent proposed amendments to the search warrant and seizure warrant provisions in Part XII of the Customs Act as are proposed to the search warrant provisions in Part 1AA of the Crimes Act by Items 1 to 6 of this schedule. Items 59 to 63 relate to search warrants. Items 64 to 68 relate to seizure warrants. Item 69 relates to both. This is consistent with the existing consistency between the terms of the Crimes Act search warrant provisions and the Customs Act search warrant and seizure warrant provisions.
This Item repeals the existing paragraph 198(5)(e) and replaces it with a proposed new paragraph 198(5)(e), in an equivalent amendment to the proposed replacement of the existing paragraph 3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see Item 1).
This Item inserts proposed subsection 198(3A) in an equivalent amendment to the proposed insertion of subsection 3E(5A) in the Crimes Act (see Item 2).
This Item amends subsection 198(5) in an equivalent amendment to the proposed amendment of subsection 3E(8) of the Crimes Act (see Item 3).
This Item amends subsection 198(6) in an equivalent amendment to the proposed amendment of subsection 3E(9) of the Crimes Act (see Item 4).
This Item amends paragraph 198(6)(b) in an equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the Crimes Act (see Item 5).
This Item repeals the existing paragraph 203(5)(d) and replaces it with a proposed new paragraph 203(5)(d), in an equivalent amendment to the proposed replacement of the existing paragraph 3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see Item 1).
This Item inserts proposed subsection 203(5) in an equivalent amendment to the proposed insertion of subsection 3E(5A) in the Crimes Act (see Item 2).
This Item amends subsection 203(7) in an equivalent amendment to the proposed amendment of subsection 3E(8) of the Crimes Act (see Item 3).
This Item amends subsection 203(8) in an equivalent amendment to the proposed amendment of subsection 3E(9) of the Crimes Act (see Item 4).
This Item amends paragraph 203(8)(b) in an equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the Crimes Act (see Item 5).
This Item amends subsection 203M(2) of the Customs Act in an equivalent amendment to the proposed amendment of subsection 3R(2) of the Crimes Act (see Item 6).
Fisheries Management Act 1991
Item 70 amends paragraph 84A(2)(a) of the Fisheries Management Act 1991 . Section 84A of the Fisheries Management Actregulates the detention of persons suspected of committing certain offences against that Act. The detention power arises only where the officer has reasonable grounds to believe that the person is not an Australian citizen or an Australian resident, and was on a foreign boat when it was used in the commission of such an offence (paragraph 84(1)(ia)).
The safeguards generally applicable to persons questioned as suspects under Part 1C of the Crimes Act are expressed to apply to detainees under this Fisheries Management Act power, pursuant to subsection 84A(2) of the Fisheries Management Act. As no formal arrest is involved, the detention is treated as deemed arrest for the purposes of the application of Part 1C safeguards. The reference to the person being treated as if he or she was under arrest will be changed to a reference to the person being a protected suspect within the meaning of Part 1C, for the reasons outlined in relation to Item 15A.