House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 3 - Investigation of Commonwealth offences

Overview

At common law, a person must be brought before a judicial officer following arrest as soon as reasonably practicable. A person who is arrested may be detained only for the purpose of bringing the person before a judicial officer to be dealt with according to law. This common law principle was restated in Williams v R [1987] HCA 36; (1986) 161 CLR 278.

In Williams , the High Court looked at the issue of whether a suspect, after his arrest, was detained longer than was reasonably necessary to enable him to be brought before a magistrate. The relevant State law had provided that the suspect should be taken before a justice as soon as practicable. The High Court held that 'as soon as practicable' gave no power to question an arrested person about the offence for which they had been arrested or other offences and did not make justifiable a delay which resulted only from the fact that the arresting officers wished to question them.

Following the High Court decision in Williams , Part 1C was inserted into the Crimes Act 1914 (Crimes Act) to make it clear that an arrested person may be detained, prior to being brought before a magistrate or other judicial officer, for the purpose of:

•

investigating whether that person committed the offence for which they were arrested, and/or

•

investigating whether the person committed another Commonwealth offence that an investigating official suspects them of committing.

Part 1C provides a framework for how a person can be detained and questioned once they have been arrested for a Commonwealth offence. It also contains important investigatory safeguards to balance the practical consideration that police should be able to question a suspect about an offence before they are brought before a judicial officer.

Part 1C was amended in 2004 by the Anti-Terrorism Act 2004 . The purpose of the amendments was to provide for a longer investigation period for investigations of terrorism offences and provide for additional types of time which were excluded from the investigation period. Rather than creating a separate regime for the investigation of terrorism offences, the terrorism provisions were built into the existing Part 1C structure with many of the provisions being based on the existing provisions in Part 1C.

The provisions in Part 1C were considered by the Hon John Clarke QC, who was appointed by the Commonwealth Attorney-General to conduct an independent inquiry into the case of Dr Mohamed Haneef. Mr Clarke produced a Report (the Clarke Report) on his inquiry, which was tabled in Parliament on 23 December 2008. One aspect of the Report looked at deficiencies in the relevant laws of the Commonwealth that were connected to Dr Haneef's case, including Part 1C of the Crimes Act.

Schedule 3 will amend Part 1C in response to the findings in the Clarke Report. The proposed amendments will clarify the original policy intent of the terrorism investigation powers and improve the practical operation of Part 1C. The proposed amendments are designed to achieve the following general objectives:

•

clarify the interaction between the power of arrest without warrant under section 3W with the powers of investigation under Part 1C

•

set a maximum 7 day limit on the amount of time that can be specified by a magistrate and disregarded from the investigation period when a person has been arrested for a terrorism offence ('specified disregarded time')

•

clarify how the investigation period and time that is disregarded from the investigation period are calculated, and

•

clarify the procedures that apply when making an application to extend the period of investigation or apply for a period of specified disregarded time, including the enhancement of safeguards.

Crimes Act 1914

Item 1: Subsection 23B(1) - definition of 'arrested'

This item will repeal the definition of 'arrested' in existing section 23B(1) and substitute a revised definition.

The powers of detention under Part 1C only apply where the person is under a valid state of arrest. Currently, subsection 23B(1) provides that a person is 'arrested' if the person is arrested for a Commonwealth offence and the person's arrest has not ceased under subsection (3) or (4). Subsection 23B(3) provides that the person ceases to be arrested if the person is remanded in respect of that offence. Subsection 23B(4) provides that the person ceases to be arrested when an investigating official believes that the person is taking part in covert investigations and those investigations are being conducted by the official for the purpose of investigating whether another person has been involved in the commission of an offence or suspected offence.

The proposed revised definition will also provide that a person is arrested if 'the person has not been released' to make it clear that a person could cease to be arrested in other circumstances. For example, the person could be released under subsection 3W(2) which provides for the release of an arrested person if the constable in charge of the investigation no longer believes on reasonable grounds that the person committed the offence.

These proposed amendments will, in conjunction with the more substantial amendments to existing sections 23C and 23CA (see items 9, 10 and 16), clarify that a person is not arrested for a Commonwealth offence if the person has been released under subsection 3W(2).

Item 2: Subsection 23B(1) - new definition of 'authorising officer'

This item will insert a new definition of 'authorising officer'.

Currently, if a person is arrested for a terrorism offence, an investigating official may apply for an extension of the investigation period under section 23DA or for a specified period of time to be disregarded from the investigation period under section 23CB.

Item 16 will include an additional safeguard so that before an investigating official may make one of these applications, the application must be approved by an authorising officer.

Item 2 will define an authorising officer as the Commissioner, the Deputy Commissioner or a member or special member of the Australian Federal Police (AFP) of or above the rank of superintendent, where the investigating official is from the AFP. An authorising officer could also be a member of a State or Territory police force holding an equivalent rank (State police as well as the AFP utilise the terrorism provisions under Part 1C).

Item 3: Subsection 23B(1) - definition of 'investigation period'

This item contains a consequential amendment that will amend the definition of 'investigation period' by omitting reference to section '23CA' and substituting it with section '23DB'. This is because section 23CA will be replaced by proposed section 23DB in item 16.

Item 4: Subsection 23B(1) - definition of 'judicial officer'

This item will relocate the definition of 'judicial officer' at the beginning of Part 1C so that the term is located with the other definitions that apply to Part 1C. 'Judicial officer' is currently defined within subsections 23C(9) and 23CA(10) to mean a magistrate, 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.

The definition of 'judicial officer' in item 4 will replicate this current definition.

Item 5: Subsection 23B(1) - definition of 'serious Commonwealth offence'

This item will re-locate the definition of 'serious Commonwealth offence' so that it is located with other relevant definitions at the beginning of Part 1C.

It reflects the current definition of 'serious Commonwealth offence' contained in existing subsection 23D(6).

Item 6: Subsection 23B(1) - definition of 'under arrest'

This item will repeal and substitute the definition of 'under arrest' so that it is consistent with the revised definition of 'arrested' in item 1.

Item 7: Subsection 23B(3)

This item is a consequential amendment because the definition of 'judicial officer' will be centrally relocated to the beginning of Part 1C (see item 4).

Item 8: Before Section 23C

This item will insert a new Subdivision A - Non-terrorism offences into Division 2 of Part 1C.

Currently, Division 2 of Part 1C (Powers of detention) includes provisions relating to the investigation of both terrorism and non-terrorism offences. This is because the terrorism provisions were built into the existing Part 1C provisions. To facilitate a clearer understanding of the provisions, the terrorism and non-terrorism provisions in Division 2 of Part 1C will be separated into two separate subdivisions. Subdivision A will deal with the investigation of non-terrorism offences and Subdivision B will deal with the investigation of terrorism offences.

This item will also change the current heading to existing section 23C to reflect that this provision deals with the period of investigation if a person has been arrested for a non-terrorism offence. This title more accurately reflects the nature of the section.

Item 9: At the end of subsection 23C(1)

This item will add a note at the end of subsection 23C(1).

Existing subsection 23C(1) provides that the provisions in section 23C, which allow a person to be detained, only apply if a person is arrested for a Commonwealth offence (other than a terrorism offence).

There has been some uncertainty as to how the power of arrest under existing section 3W interacts with section 23C. Subsection 3W(1) provides that a constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that the person has committed or is committing a Commonwealth offence and that proceedings by summons against the person would not achieve one or more specified purposes, including ensuring the appearance of the person before a court in respect of the offence. Subsection 3W(2) provides that if the constable in charge of the investigation ceases to hold this belief, then the person must be released.

The proposed new note under subsection 23C(1) will reinforce that a person is not arrested for a Commonwealth offence if the person has been released under subsection 3W(2). This will make it clear that a person cannot be detained under section 23C if the person has been released under subsection 3W(2). This proposed amendment is part of a broader set of amendments that will clarify the relationship between section 3W and Part 1C (see item 10).

Item 10: Subsections 23C(2) and (3)

This item will repeal subsections 23C(2) and 23C(3) and replace them with new subsections 23C(2), (2A) and (3).

Currently, subsection 23C(2) provides that a person may be detained for the purpose of investigating:

•

whether the person committed the offence for which they were arrested and/or

•

whether the person committed another offence that an investigating official reasonably suspects the person to have committed.

If a person has been arrested under subsection 3W(1) for a Commonwealth offence, section 3W(2) provides that if the constable in charge of the investigation ceases to hold a reasonable belief that the person has committed the offence then the person must be released.

The Clarke Report suggested it is possible for some to misinterpret the second limb in subsection 23C(2) to mean that once a person is arrested, the person can be detained under the second limb regardless of whether the requisite belief under section 3W is maintained.

Proposed new subsection 23C(2) is based on the existing subsection but is designed to make it clear that a person may only be detained under that subsection while arrested for the Commonwealth offence . If a person is released under subsection 3W(2) the person may not be detained under subsection 23C(2) because they will no longer be arrested (see the revised definition of 'arrested' at item 1).

Proposed paragraph 23C(2)(a) will provide that the person may, while arrested for the Commonwealth offence, be detained for the purpose of investigating whether the person committed the offence.

Proposed paragraph 23C(2)(b) will provide that the person may, while arrested for the Commonwealth offence, be detained for the purpose of investigating whether the person committed another Commonwealth offence that an investigating official reasonably suspects the person has committed. The 'reasonable suspicion' requirement in paragraph 23C(2)(b) is a safeguard to ensure that a person could not be questioned about any other kind of offence if there was no basis or suspicion that the person committed that offence.

Proposed subsection 23C(2A) provides that the person must not be detained under subsection 23C(2) once the investigation period has ceased. To avoid doubt, it will also specify that this provision will not affect any other power to detain the person under other legislative regimes. This may include, for example, provisions which allow a person to be detained under State or Territory legislation or the Commonwealth preventative detention regime in Part 5.3 of the Criminal Code.

Proposed subsection 23C(3) reformulates the existing subsection 23C(3) so that if a person is not released within the investigation period, the person must be brought before a judicial officer within the investigation period or, if it is not practicable to do so within the investigation period, as soon as practicable after the end of the investigation period.

Item 11: Subsection 23C(4)

This item will omit reference to 'section 23D' and substitute 'section 23DA'. This amendment is consequential to the proposed repeal of existing section 23D and insertion of new proposed section 23DA (item 15).

Item 12: Paragraph 23C(6)(b)

This item will omit reference to 'section 23CA' and substitute 'section 23DB'. This amendment is consequential to the proposed repeal of existing section 23CA and insertion of new section 23DB (item 16).

Item 13: Subsection 23C(7)

This item will repeal subsection 23C(7) and substitute a reformulated version of subsection 23C(7).

Existing and proposed new section 23C sets out the period of time that a person, who has been arrested for a Commonwealth non-terrorism offence, can be detained for investigation purposes. The investigation period begins when the person is arrested and can last for a reasonable time, up to a maximum of four hours. If the person has been arrested for a serious Commonwealth non-terrorism offence, the investigation period may be extended for a period not exceeding 8 hours and must not be extended more than once. This amounts to a total maximum investigation period of 12 hours.

However, subsection 23C(7) currently provides for periods of time (often referred to as 'dead time' or 'disregarded time') that are disregarded in the calculation of the investigation period. Generally, the purpose of disregarded time is to suspend or delay questioning to ensure that a proper pre-charge interview can take place. The provisions recognise that there needs to be some flexibility in the maximum time limit for the investigation period to balance two competing considerations - the reasonable requirements of law enforcement and the protection of civil liberties of people who have been arrested for, but not yet charged with, a criminal offence. The types of time that can be disregarded from the investigation period fall into two general categories.

The first category is where questioning of the person is suspended or delayed because it cannot occur, or should not occur, for the benefit of the suspect. For example, a person must not be questioned during a forensic procedure. This time is excluded from the investigation period to prevent a situation where a forensic procedure is conducted early in the investigation period and the investigators lose all of their remaining questioning time. Questioning also cannot occur for a reasonable time if the arrested person has requested and arranged for a legal practitioner to attend, but the legal practitioner has not yet arrived at the place of questioning. Questioning of a suspect may also be suspended or delayed to allow for the suspect to rest, recuperate or receive medical attention. This takes away any incentive for investigating officials to rush the suspect in exercising these rights if they were not excluded from the investigation period.

The second category relates to complying with requirements of the legislation or procedural aspects of the investigation. For example, the time taken to make an application to extend the investigation period can be excluded from the investigation period. This is intended to prevent a situation where the investigation period runs out while a judicial officer is considering whether to grant an extension of the investigation period. There may also be situations where it is impractical to question a person when dealing with the logistical or procedural aspects of the investigation. For example, the time that is spent arranging and conducting an identification parade, or the time that is reasonably required to transport the suspect from the place they are arrested to the place where they are questioned. If these events affect the ability to properly question a person, it would be unfair if the investigation period were to include the time it took for these events to occur.

Overall, the fixed investigation period, coupled with the time that can be excluded from that period, provides a statutory framework for what is reasonable conduct in the course of investigating a person for a Commonwealth offence.

Proposed new subsection 23C(7) will replicate all the existing categories of time that may be disregarded from the investigation period and reinforce that the time may only be disregarded if it is a reasonable period during which questioning of the person is suspended or delayed. However, the amendments will clarify two issues identified in the Clarke Report about how disregarded time may be calculated.

First, there is some uncertainty about how disregarded time should be calculated if more than one event under subsection 23C(7) occurs at the same time. Proposed new subsection 23C(7) will clarify that questioning of the person may be suspended or delayed for one or more of the reasons outlined in paragraphs (a) through (l). This will put beyond doubt that the events outlined in paragraphs (a) through (l) may occur at the same time. However, if periods of disregarded time occur simultaneously, any overlapping time can only be disregarded once from the investigation period.

Second, there is some uncertainty about whether it is possible for investigating officials to resume questioning during a period of disregarded time. Many of the events listed in existing and proposed subsection 23C(7) are circumstances when it would simply not be possible to question a person. For example, it is not possible to question a person while a forensic procedure is taking place. However, there may be times when an event under subsection 23C(7) occurs, but there is no reason to suspend or delay the questioning of the person. For example, a magistrate may decide to take several hours before making a determination as to whether to extend a period of investigation. Under proposed paragraph 23C(7)(h) this time could be disregarded. However, there may be no reason why questioning could not occur during this time. Proposed subsection 23C(7A) will clarify that it is only when the questioning of the person is suspended or delayed that the time can be disregarded from the investigation period. Proposed subsection 23C(7A) will provide that subsection 23C(7) does not prevent the person being questioned during a time covered by the events listed in subsection 23C(7). However, if the person is questioned during such an event, the time must count as part of the investigation period. The proposed amendment could not be used as a way to extend the period of investigation time. For example, if investigators question a suspect during a time that falls under paragraph 23C(7)(h), then that questioning time counts towards the four hour investigation time allowed under section 23C or as extended.

However, proposed subsection 23C(7A) is not intended to affect the rights of individuals or obligations of investigating officials. Proposed section 23C(7A) does not suggest, for example, that the prohibition against questioning a person during a forensic procedure should be overridden. Nor does it override the requirement to delay questioning until a person's legal representative arrives. It simply clarifies that when questioning is able to occur, the investigation period should continue to run.

Item 14: Subsection 23C(9)

This item will repeal subsection 23C(9) which currently defines 'judicial officer' for the purpose of section 23C. Item 4 will relocate the definition of a 'judicial officer' to the beginning of Part 1C so that the term is centrally located with other definitions specific to Part 1C.

Item 15: Sections 23CA to 23E

This item will repeal sections 23CA, 23CB, 23D, 23DA and 23E.

Existing sections 23CA, 23CB and 23DA relate to the investigation of terrorism offences and will be reformulated into new Subdivision B (see item 16).

Existing section 23E is an evidentiary provision that will be reformulated into Subdivision C (see item 16).

Existing section 23D sets out the process for how the investigation period may be extended if the person has been arrested for a non-terrorism offence. Item 15 will repeal this section and replace it with new subsections 23D and 23DA. There will be two key differences between the existing and new process. The first is that only a magistrate will be able to grant an extension of the investigation period. The second is several amendments to ensure that sufficient procedural safeguards are in place when an investigating official makes an application to extend the investigation period.

Subsection 23D - Application to extend the investigation period

Proposed subsection 23D(1)

Currently, an application for an extension of the investigation period for non-terrorism offences must be made to and granted by a magistrate, any justice of the peace or a bail justice.

Historically, justices of the peace and bail justices were included in the category of persons who could perform this function on the basis that it may be difficult to secure the services of a magistrate in urgent circumstances. This is less of a concern in today's society. Whilst magistrates have expertise in dealing with a large portion of criminal issues and are therefore well suited to this role, the arguments for a justice of the peace or bail justice to perform this role are less compelling.

Proposed subsection 23D(1) will provide that an application for an extension of the investigation period can only be made to, and granted by, a magistrate. Although magistrates are the only category of persons who will be able to perform this role, this function is not judicial or incidental to a judicial function. Magistrates perform this role in their personal capacity.

Proposed subsection 23D(2)

Proposed subsection 23D(2) reflects existing subsection 23D(3) which provides for the application to extend the investigation period to be made before the magistrate, by telephone or in writing.

Proposed subsection 23D(3)

Currently, there is no requirement for an application to extend the investigation period to include any particular statements or information. Proposed new subsection 23D(3) will require the application to include certain information to ensure the magistrate is able to appropriately consider whether to grant the extension or not. For example, the application will need to include the reasons why the investigating official believes the investigation period should be extended.

Proposed subsection 23D(4)

Proposed subsection 23D(4) is an avoidance of doubt provision that will clarify that proposed subsection 23D(3) does not require information to be included in the application if disclosure of that information would be likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act)), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed subsections 23D(5) and 23D(6)

Currently, there is no requirement for an investigating official to provide a copy of the application, or information pertaining to it, to the arrested person or their legal representative. Proposed subsection 23D(5) will require that before an application for an extension of the investigation period is considered by a magistrate, the investigating official must, if the application is made in writing, provide a copy of the application to the person or their legal representative. If the application is not made in writing (i.e. by telephone or in person before the magistrate), then the investigating official must inform the person or their legal representative of all matters or information in the application (other than information of a kind mentioned in subsection 23D(4)).

Proposed subsection 23D(6) will also provide that if the application contains any information of the kind listed in subsection 23D(4), the investigating official may remove it from any copy of the application that is provided to the person or to their legal representative. This is consistent with provisions contained within subsections 104.12A(3) and 104.23(3A) of the Criminal Code which relate to information that must be given to a person in relation to a control order.

Proposed subsection 23D(7)

Proposed subsection 23D(7) will provide that the arrested person or their legal representative may make representations to the magistrate about the application (and proposed paragraph 23D(5)(b) requires the investigating official to so inform the person).

Collectively, the purpose of these amendments is to ensure that the arrested person and or their legal representative are able to make appropriate representations to the magistrate about the application, should they wish to do so.

Proposed section 23DA - Extension of the investigation period

Proposed section 23DA will set out how a magistrate may extend the investigation period. It is based on the process set out in existing section 23D.

Proposed subsection 23DA(1)

Proposed subsection 23DA will apply if a person is arrested for a serious Commonwealth offence (other than a terrorism offence) and an application to extend the investigation period has been made to a magistrate in respect of the person.

Proposed subsection 23DA(2)

Proposed subsection 23DA(2) will replicate existing subsection 23D(4) to make it clear that an application for the extension of the investigation period in relation to non-terrorism offences can only be granted by a magistrate by signed written instrument if the magistrate is satisfied that the factors listed in paragraphs (a) through (d) have been met.

Proposed subsection 23DA(3)

Proposed subsection 23DA(3) is based on existing subsection 23D(4A). The subsection will, subject to proposed new subsection 23DA(4), continue to provide for what the instrument must set out.

Proposed subsection 23DA(4)

Proposed subsection 23DA(4) will clarify that proposed subsection 23DA(3) does not require information to be included in the instrument if disclosure of that information would be likely to prejudice national security (within the meaning of the NSI Act), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed subsection 23DA(5)

Proposed paragraph 23DA(5)(a) is based on existing subsection 23D(4B) and will continue to require the magistrate to provide the investigating official with a copy of the written instrument as soon as practicable after signing it. Proposed paragraph 23DA(5)(b) will provide that if the instrument was made as a result of an application made by telephone, telex, fax or other electronic means, the magistrate must inform the investigating official of the matters included in the instrument. The proposed note at the end of subsection 23DA(5) will note that the provisions in proposed section 23E will apply if the magistrate informs the investigating official under paragraph 23DA(5)(b) (see item 16).

Proposed subsection 23DA(6)

Currently, there is no specific requirement for an investigating official to provide a copy of the instrument granting the extension of the investigation period for a non-terrorism offence to an arrested person or their legal representative. Proposed paragraph 23DA(6)(a) will provide that an investigating official must provide the detained person or their legal representative with a copy of the instrument under proposed paragraph (5)(a) as soon as practicable after receiving it from the magistrate. Proposed paragraph 23DA(6)(b) will provide that if the instrument was made as a result of an application made by telephone, telex, fax or other electronic means, the investigating official must inform the detained person or their legal representative of the matters included in the instrument as soon as practicable after being informed of them under proposed paragraph 23DA(5)(b).

Proposed subsection 23DA(7)

Proposed subsection 23DA(7) will replicate existing subsection 23D(5), which provides that the investigation period may be extended for a period not exceeding 8 hours and must not be extended more than once.

Item 16: At the end of Division 2 of Part 1C

This item will insert a new Subdivision B (Terrorism offences) into Division 2 of Part 1C.

Currently, Division 2 of Part 1C (Powers of detention) includes provisions relating to the investigation of both terrorism and non-terrorism offences. This is because the terrorism provisions were built into the existing Part 1C provisions. To facilitate a clearer understanding of the provisions, the terrorism and non-terrorism provisions in Division 2 of Part 1C will be separated into two separate subdivisions. Subdivision A will deal with the investigation of non-terrorism offences and Subdivision B will deal with the investigation of terrorism offences.

Item 15 will repeal existing sections 23CA, 23CB and 23DA. They relate to the investigation of terrorism offences and will be reformulated and inserted into new Subdivision B.

Proposed subsection 23DB - period of investigation

Item 16 will insert proposed new section 23DB. It is based on existing section 23CA with some modifications.

Proposed subsection 23DB(1)

The note at the end of proposed subsection 23DB(1) is designed to clarify that a person must be under a valid state of arrest for a terrorism offence for the section to apply. Existing subsection 23CA(1) provides that the provisions in section 23CA, which allow a person to be detained, only apply if a person is arrested for a terrorism offence. There has been some uncertainty as to how the power of arrest under existing section 3W interacts with section 23C.

Subsection 3W(1) provides that a constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that the person has committed or is committing a Commonwealth offence and that proceedings by summons against the person would not achieve one or more specified purposes, including ensuring the appearance of the person before a court in respect of the offence. Subsection 3W(2) provides that if the constable in charge of the investigation ceases to hold this belief, then the person must be released.

The note under proposed subsection 23DB(1) will reinforce that a person is not arrested for a terrorism offence if the person has been released under subsection 3W(2). This will make it clear that a person cannot be detained under section 23DB if the person has been released under subsection 3W(2). This proposed amendment is part of a broader set of amendments that will clarify the relationship between section 3W and Part 1C (see items 9 and 10).

Proposed subsection 23DB(2)

Currently, subsection 23CA(2) provides that if a person is arrested for a terrorism offence, the person may be detained for the purpose of investigating:

•

whether the person committed the terrorism offence for which they were arrested, and/or

•

whether the person committed another terrorism offence that an investigating official reasonably suspects the person to have committed.

If a person has been arrested under subsection 3W(1) for a Commonwealth offence, subsection 3W(2) provides that if the constable in charge of the investigation ceases to hold a reasonable belief that the person has committed the offence then the person must be released.

The Clarke Report suggested it is possible for some to misinterpret the second limb in subsection 23CA(2) to mean that once a person is arrested, the person can be detained under the second limb regardless of whether the requisite belief under section 3W is maintained.

Proposed new subsection 23DB(2) is modelled on existing subsection 23CA(2) but is designed to make it clear that a person may only be detained under that subsection while arrested for the terrorism offence . If a person is released under subsection 3W(2) the person may not be detained under subsection 23DB(2) because they will no longer be arrested (see the revised definition of 'arrested' at item 1).

Proposed paragraph 23DB(2)(a) will provide that the person may, while arrested for the Commonwealth offence, be detained for the purpose of investigating whether the person committed the offence.

Proposed paragraph 23DB(2)(b) will provide that the person may, while arrested for the terrorism offence, be detained for the purpose of investigating whether the person committed another Commonwealth offence that an investigating official reasonably suspects the person has committed. This differs from the existing paragraph 23CA(2)(b), which is limited to terrorism offences. Terrorist activity can often be linked to or overlap with other criminal activity including, for example, identity and credit card fraud offences. It is likely that future counter-terrorism investigations will involve an overlap of both terrorism and non-terrorism offences. Proposed paragraph 23DB(2)(b) will enable investigators to pursue the investigation of both the terrorism and non-terrorism offences together under the one regime. However, the person will only be able to be investigated for a non-terrorism offence under the terrorism offence regime if the person is under a valid state of arrest for a terrorism offence. The proposed amendment will not enable the suspect to be detained, or an extension of the investigation period sought, only on the basis of investigating the non-terrorism offence. The amendment is simply designed to remove an arbitrary distinction that prevents the simultaneous investigation of terrorism and related non-terrorism offences while a person is arrested for a terrorism offence.

Proposed subsection 23DB(3)

Proposed subsection 23DB(3) provides that the person must not be detained under subsection 23DB(2) once the investigation period has ceased. To avoid doubt, it will also specify that this provision will not affect any other power to detain the person under other legislative regimes. This may include, for example, provisions which allow a person to be detained under State or Territory legislation.

Proposed subsections 23DB(4) to (8)

Proposed subsections 23DB(4) to (8) are based on the existing subsections 23CA(3) to (7). They will set out how the investigation period is calculated. The investigation period begins when the person is arrested and can last for a reasonable time, up to a maximum of four hours. The investigation period may be extended any number of times, but the total length of the periods of extension cannot be more than 20 hours. This amounts to a total maximum investigation period of 24 hours if a person is arrested for a terrorism offence.

Proposed subsection 23DB(9)

Proposed subsection 23DB(9) will reformulate what is currently contained in existing subsection 23CA(8). Proposed subsection 23DB(9) will set out the periods of time that may be disregarded from the calculation of the investigation period.

Generally, the purpose of disregarded time is to suspend or delay questioning to ensure that a proper pre-charge interview can take place. The provisions recognise that there needs to be some flexibility in the maximum time limit for the investigation period to balance two competing considerations - the reasonable requirements of law enforcement and the protection of civil liberties of people who have been arrested for, but not yet charged with, a criminal offence. The types of time that can be disregarded from the investigation period when a person is arrested for a terrorism offence fall into three general categories. The first two categories are the same as those that apply when a person has been arrested for a non-terrorism Commonwealth offence. An explanation of these categories is set out at item 13 in relation to proposed subsection 23C(7).

The third category of disregarded time that applies specifically to the terrorism provisions in Part 1C enables an investigating official to apply to a magistrate to specify an amount of time that should be disregarded from the investigation period. The rationale for this category of disregarded time is that it is not always possible to predict the circumstances where time should be disregarded from the investigation period to enable a proper pre-charge interview to take place. Currently, paragraph 23CA(8)(m) provides that any reasonable time that is within a period specified under existing section 23CB may be disregarded from the investigation period. This includes, for example, the time needed to collate information from an overseas country before presenting it to a suspect during questioning, or waiting for overseas jurisdictions to respond to requests for critical information from the AFP. While it would be impossible to accurately predict every event that may arise in a complex investigation, paragraph 23CB(5)(c) includes an indicative list of events that may come up in complex terrorism investigations giving rise to a legitimate need for time taken for these events to occur to be disregarded from the investigation period.

Proposed new subsection 23DB(9) will replicate all the existing categories of time that may be disregarded from the investigation period under existing subsection 23CA(8) and reinforce that the time may only be disregarded if it is a reasonable period during which questioning of the person is suspended or delayed. The amendments will also clarify two issues identified in the Clarke Report about how disregarded time may be calculated.

First, there is currently uncertainty about how disregarded time should be calculated if more than one event under proposed subsection 23DB(9) occurs at the same time. Proposed new subsection 23C(9) will clarify that questioning of the person may be suspended or delayed for one or more of the reasons outlined in paragraphs (a) through (m). This will put beyond doubt that the events outlined in paragraphs (a) through (m) may occur at the same time. However, if periods of disregarded time occur simultaneously, any overlapping time can only be disregarded once from the investigation period.

Second, there is currently uncertainty about whether it is possible for investigating officials to resume questioning during a period of disregarded time. Many of the events listed in proposed subsection 23DB(9) are circumstances when it would simply not be possible to question a person. For example, it is not possible to question a person while a forensic procedure is taking place.

However, there may be times when an event under subsection 23DB(9) occurs, but it becomes apparent that suspending or delaying the questioning of the person is not necessary during the entirety of that event. For example, proposed paragraph 23DB(9)(m) (which will replace current paragraph 23CA(8)(m)) provides that any reasonable time that is a time during which the questioning of the person is reasonably suspended or delayed and is within a period specified under proposed section 23DD should be disregarded. A period of time specified under proposed section 23DD could be used by investigators to, for example, collate information from an overseas country that has a time zone difference. However, it could still be useful for investigators to question the suspect at certain times while they are waiting for this information from the overseas country.

Proposed subsection 23DB(10)

Proposed paragraph 23DB(10)(a) will clarify that, to avoid doubt, proposed subsection 23DB(9) does not prevent the person being questioned during a time covered by a paragraph of that subsection. In the above example, proposed paragraph 23DB(9)(m) would not prevent police from resuming questioning during a period of time specified under proposed section 23DD. However, proposed paragraph 23DB(10)(b) will ensure that this amendment should not be used as a way to extend a period of disregarded time specified under proposed section 23DD. For example, if an investigator has four hours of time available in the investigation period and a magistrate specified a period of two days under proposed section 23DD, the investigator could conduct a three hour questioning session during those two days. The three hours of questioning would be deducted from the four hours of investigation time, leaving one hour of investigation time remaining. The three hours would also be deducted from the specified two days, leaving 45 hours in the specified period for other activities.

However, proposed paragraph 23DB(10)(a) is not intended to affect the rights of individuals or obligations of investigating officials. Proposed paragraph 23DB(10)(a) does not suggest, for example, that the prohibition against questioning a person during a forensic procedure should be overridden. It will simply clarify that when questioning is able to occur, the investigation period should continue to run.

Proposed subsection 23DB(11) - Limit on time that may be disregarded under paragraph 23DB(9)(m)

Proposed subsection 23DB(11) will set a cap of seven days on the amount of time that can be disregarded from the investigation period under proposed paragraph 23DB(9)(m). Currently, there is no such limit, and unlike other categories of disregarded time which may be naturally capped because of the nature of the event, the length of time that could be disregarded under proposed paragraph 23DB(9)(m) is not as naturally confined. The proposed cap of 7 days will provide certainty as to the amount of time that can be disregarded under proposed paragraph 23DB(9)(m) and accordingly, greater certainty about the length of time a person may be detained under Part 1C when a person is arrested for a terrorism offence.

Proposed subsection 23DB(11) also has a safeguard so that if a suspect is arrested within 48 hours of a previous arrest relating to the same circumstances, the maximum 7 day cap on any time disregarded under proposed paragraph 23DB(9)(m) is reduced by any amount of time that was specified under proposed section 23DD and disregarded under paragraph 23DB(9)(m) in relation to the investigation period while the person was previously arrested.

Proposed subsection 23DB(12) - Evidentiary provision

Proposed subsection 23DB(12) provides that in any proceeding, the burden lies on the prosecution to prove that the person was brought before a judicial officer as soon as practicable and that any time that was disregarded from the investigation period was covered by one of the provisions in proposed subsection 23DB(9). This subsection replicates the evidentiary provisions contained in existing subsection 23CA(9).

Proposed sections 23DC and 23DD - application to and time specified by a magistrate

Item 16 will also insert proposed sections 23DC and 23DD. These proposed sections are based on existing section 23CB with some modifications. Proposed section 23DC will set out the process for making an application for a specified period of time that could then be disregarded under proposed paragraph 23DB(9)(m). Proposed section 23DD will set out the process by which a magistrate could specify a period of time that could then be disregarded under proposed paragraph 23DB(9)(m).

Proposed subsection 23DC(1)

Proposed subsection 23DC(1) will provide that proposed section 23DC will apply if a person is arrested for a terrorism offence and an investigation is being conducted into whether the person committed that terrorism offence or another terrorism offence. This subsection is based on existing subsection 23CB(1) and makes it clear that this kind of disregarded time can only apply if a person is arrested and being investigated for a terrorism offence. If a person who is arrested for a terrorism offence is also being investigated for a non-terrorism Commonwealth offence under proposed paragraph 23DB(2)(b), then the investigating official would not be prevented from applying for a specified period of time under proposed section 23DC, so long as an investigation is being conducted into whether the person committed the terrorism offence for which they were arrested or another terrorism offence. Proposed subsection 23DC(2 )

Proposed subsection 23DC(2) will provide that at or before the end of the investigation period an investigating official may apply, in writing, to a magistrate for a period of specified time that could be disregarded from the investigation period under proposed paragraph 23DB(9)(m).

This will differ from existing subsection 23CB(4) as proposed subsection 23DC(2) will require the application to be made in writing. Currently subsection 23CB(4) provides that an application for specified disregarded time may be made in person or in writing or by telephone, telex, fax or other electronic means.

An application under proposed section 23DC will also only be able to be made to and granted by a magistrate. Currently, subsection 23CB(4) enables an application to be made to and granted by a magistrate, a justice of the peace or a bail justice.

Proposed subsection 23DC(3)

Proposed subsection 23DC(3) will provide that an application for a specified period of disregarded time must not be made unless it is authorised, in writing, by an authorising officer. The proposed new definition of 'authorising officer' is set out at item 2.

Currently, an investigating official may apply for a specified period of time to be disregarded from the investigation period. There is no additional requirement for the investigating official to obtain the approval of a more senior officer prior to making the application. Proposed subsection 23DC(3) recognises that the task of settling the documents and making applications for this purpose should be overseen by a senior officer who is trained in the process and familiar with all the facts. It is an additional safeguard that will ensure that an application will be approved by a senior member of the AFP or senior member of a State or Territory police force before it can be made to a magistrate.

Proposed subsection 23DC(4)

Proposed subsection 23DC(4) will replicate existing subsection 23CB(5) and will continue to require applications for specified disregarded time to include all the statements that are listed in current subsection 23CB(5), including the reasons why the investigating official believes the period of time should be specified. However, given there will be a seven day cap on the amount of specified time that can be disregarded from the investigation period under proposed paragraph 23DB(9)(m), it will be important for the magistrate to have additional information before him or her. Accordingly, proposed subsection 23DC(4) will also require the application to include information on the outcome of any previous application under proposed section 23DC so that the magistrate can determine the amount of time that, at a maximum, could be specified. Proposed subsection 23DC(4) will also require the application to include the total amount of time that has already been disregarded from the investigation period under proposed subsection 23DB(9).

Proposed subsection 23DC(5)

Proposed subsection 23DC(5) is an avoidance of doubt provision that will clarify that proposed subsection 23DC(4) does not require information to be included in the application for disregarded time if disclosure of that information would be likely to prejudice national security (within the meaning of the NSI Act), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed subsection 23D(6)

Proposed subsection 23D(6) will require an investigating official to inform the person or their legal representative that they may make representations to the magistrate about the application. This is consistent with existing paragraph 23CB(4)(c). Proposed subsection 23D(6) will also require the investigating official to provide a copy of the application for specified disregarded time to the person or to his or her legal representative, prior to when the magistrate considers the application. This will be a new requirement to facilitate an arrested person and or their legal representative to make appropriate representations to the magistrate about the application, should they wish to do so.

Proposed subsection 23DC(7)

Proposed subsection 23DC(7) will provide that if the application for specified disregarded time contains information of a kind mentioned in proposed subsection 23DC(5), the investigating official may remove it from the copy of the application that is provided to the person and/or their legal representative.

Proposed subsection 23DC(8)

Proposed subsection 23DC(8) will replicate existing subsection 23CB(6) and provide that the arrested person, or his or her legal representative, may make representations to the magistrate about the application.

Proposed subsection 23DD(1)

Proposed section 23DD will apply if a person has been arrested for a terrorism offence and an application for specified disregarded time has been made under proposed subsection 23DC(2) to a magistrate in respect of the person.

Proposed subsection 23DD(2)

Proposed subsection 23DD(2) will replicate existing subsection 23CB(7). It will provide that a magistrate may, by signed instrument, specify a period of time for the purpose of proposed paragraph 23DB(9)(m) if it is appropriate to do so, the offence is a terrorism offence, detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another terrorism offence, the investigation into the offence is being conducted properly and without delay and the person or their legal representative has been given the opportunity to make representations about the application. It will also require the magistrate to be satisfied that the application has been authorised by an authorising officer (see proposed subsection 23DC(3)).

Proposed subsection 23DD(2) will only enable a magistrate to specify a period of time. Justices of the peace and bail justices will no longer be able to perform this function. Historically, justices of the peace and bail justices were included in the category of persons who could perform this function on the basis that it may be difficult to secure the services of a magistrate in urgent circumstances. This is less of a concern in today's society. Whilst magistrates have expertise in dealing with a large portion of criminal issues and are therefore well suited to this role, the arguments for a justice of the peace or bail justice to perform this role are less compelling. Although magistrates are the only category of persons who will be able to perform this role, this function is not judicial or incidental to a judicial function. Magistrates perform this role in their personal capacity.

Proposed subsection 23DD(3)

Proposed subsection 23DD(3) will replicate existing subsection 23CB(8) which provides that the instrument must specify the period of time, set out the day and time when it was signed and set out the reasons for specifying the period.

Proposed subsection 23DD(4)

Proposed subsection 23DD(4) will provide that proposed subsection 23DD(3) does not require information to be included in the instrument if disclosure of that information would be likely to prejudice national security (within the meaning of the NSI Act), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed subsection 23DD(5)

Proposed subsection 23DD(5) mirrors existing subsection 23CB(9). It will require the magistrate to give the investigating official a copy of the instrument as soon as practicable after signing it. If the instrument was made as a result of an application made by electronic means, the magistrate will be required to inform the investigating official of the matters included in the instrument.

The proposed note at the end of subsection 23DD(5) will note that the provisions in proposed section 23E will apply if the magistrate informs the investigating official under proposed paragraph 23DD(5)(b).

Proposed subsection 23DD(6)

Currently, there is no requirement for an investigating official to provide a copy of the instrument specifying the period of disregarded time to the detained person or their legal representative.

Proposed paragraph 23DD(6)(a) will insert a provision that will require an investigating official to provide the person or their legal representative with a copy of the instrument under proposed paragraph (5)(a) as soon as practicable after receiving it from the magistrate.

Proposed paragraph 23DD(6)(b) will provide that if the instrument was made as a result of an application made by electronic means, the investigating official must inform the detained person or their legal representative of the matters included in the instrument as soon as practicable after being informed of them by the magistrate.

Proposed sections 23DE and 23DF - application and extension of the investigation period

Item 16 will also insert sections 23DE and 23DF to replace existing section 23DA. It will set out the process for making an application to extend the investigation period and the granting of an extension where a person is arrested for a terrorism offence. The process for making an application to extend the investigation period for a terrorism offence will be similar to the process for applying for an extension of the investigation period for a non-terrorism offence under proposed section 23D. However, there will be an additional requirement that an application to extend the investigation period must be approved by an authorising officer and that the application must be in writing. These requirements will provide additional safeguards, given the investigation period where a person is arrested for a terrorism offence may be longer than if the person is arrested for a non-terrorism offence.

Proposed subsection 23DE(1)

Proposed subsection 23DE(1) will provide that if a person is arrested for a terrorism offence, an investigating official may, at or before the end of the investigation period, apply, in writing, to a magistrate for an extension of the investigation period. Only an investigating official that falls within paragraphs (a) and (b) of the definition in subsection 23B(1) will be able to make the application. This includes a member or special member of the AFP or a member of the police force of a State or Territory. A person that falls within paragraph (c) of the definition will not be able to make the application. This includes a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.

Currently, an application for an extension of the investigation period when a person is arrested for a terrorism offence must be made to and granted by a magistrate, a justice of the peace or a bail justice. Historically, justices of the peace and bail justices were included in the category of persons who could perform this function on the basis that it may be difficult to secure the services of a magistrate in urgent circumstances. This is less of a concern in today's society. Whilst magistrates have expertise in dealing with a large portion of criminal issues and are therefore well suited to this role, the arguments for a justice of the peace or bail justice to perform this role are less compelling.

Proposed subsection 23DE(1) will provide that an application for an extension of the investigation period can only be made to a magistrate. Although magistrates are the only category of persons who will be able to perform this role, this function is not judicial or incidental to a judicial function. Magistrates perform this role in their personal capacity.

Currently under subsection 23DA(3), an application to extend the investigation period may be made in a number of ways, either before a judicial officer, in writing, by telephone or other electronic means. Proposed subsection 23DE(1) will require the application to be made in writing.

Proposed subsection 23DE(2)

Proposed subsection 23DE(2) will insert a new requirement that an application for an extension of the investigation period for a terrorism offence must not be made unless it is authorised, in writing, by an authorising officer. The proposed new definition of 'authorising officer' is set out at item 2. Proposed subsection 23DE(2) recognises that the task of settling the documents and making applications for this purpose should be overseen by a senior officer who is trained in the process and familiar with all the facts. It is an additional safeguard that will ensure that an application will be approved by a senior member of the AFP or senior member of a State or Territory police force before it can be made to a magistrate.

Proposed subsection 23DE(3)

Currently, there is no requirement for an application to extend the investigation period to include any particular statements or information. Proposed new subsection 23DE(3) will require the application to include certain information to ensure the magistrate is able to appropriately consider whether to grant the extension or not. For example, the application will need to include the reasons why the investigating official believes the investigation period should be extended.

Proposed subsection 23DE(4)

Proposed subsection 23D(4) is an avoidance of doubt provision that will clarify that proposed subsection 23DE(3) does not require information to be included in the application if disclosure of that information would be likely to prejudice national security (within the meaning of the NSI Act), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed sections 23DE(5) and (6)

Currently, there is no requirement for an investigating official to provide a copy of the application to the arrested person or their legal representative. Proposed paragraph 23DE(5)(a) will require that before an application for an extension of the investigation period is considered by a magistrate, the investigating official must provide a copy of the application to the person or their legal representative. Proposed subsection 23DE(6) will also provide that if the application contains any information of the kind listed in subsection 23DE(4), the investigating official may remove it from any copy of the application that is provided to the person or to their legal representative. This is consistent with provisions contained within subsections 104.12A(3) and 104.23(3A) of the Criminal Code which relate to information that must be given to a person in relation to a control order.

In addition, proposed paragraph 23DE(5)(b) will provide that the investigating official must inform the person that they or their legal representative may make representations to the magistrate about the application.

Proposed subsection 23DE(7)

Proposed subsection 23DE(7) replicates existing subsection 23DA(3) and provides that the arrested person, or his or her legal representative, may make representations to the magistrate about the application.

Proposed subsection 23DF(1)

Proposed section 23DF will set out how a magistrate may extend the investigation period and is based on the process set out in existing section 23DA.

Proposed subsection 23DF will apply if a person has been arrested for a terrorism offence and an application to extend the investigation period has been made to a magistrate in respect of the person.

Proposed subsection 23DF(2)

Proposed subsection 23DF(2) is modelled on existing subsection 23DA(4). The proposed subsection will provide that the magistrate may extend the investigation period, by signed written instrument, if satisfied of the factors listed in paragraphs (a) through (e). The magistrate will need to be satisfied that the offence is a terrorism offence and that further detention of the person is necessary to either:

•

preserve or obtain evidence related to the offence or to another terrorism, or

•

complete the investigation into the offence or into another terrorism offence.

The magistrate will also need to be satisfied the investigation is being conducted properly and without delay, the application has been authorised by an authorising officer and the person or his or her legal representative has been given the opportunity to make representations about the application.

If a person who is arrested for a terrorism offence is also being investigated for a non-terrorism Commonwealth offence under proposed paragraph 23DB(2)(b), then the investigating official will not be able to use the investigation of the non-terrorism offence as a means to extend the investigation period under proposed subsection 23DF(2). This is because all of the factors that the magistrate must be satisfied of to grant an extension are linked to the investigation of a terrorism offence. However, if an extension is granted, it will not prevent the investigation of non-terrorism offences during this extended period under proposed paragraph 23DB(2)(b).

Proposed subsection 23DF(3)

Proposed subsection 23DF(3) replicates existing subsection 23DA(5). This subsection will, subject to proposed new subsection 23DF(4), continue to provide for what must be included in the instrument.

Proposed subsection 23DF(4)

Proposed subsection 23DF(4) will provide that proposed subsection 23DF(3) does not require information to be included in the instrument extending the investigation period if disclosure of that information would be likely to prejudice national security (within the meaning of the NSI Act), be protected by public interest immunity, put at risk ongoing operations by law enforcement or intelligence agencies or put at risk the safety of the community, law enforcement or intelligence officers.

Proposed subsection 23DF(5)

Proposed paragraph 23DF(5)(a) is based on existing subsection 23DA(6) and will continue to require the magistrate to provide the investigating official with a copy of the written instrument as soon as practicable after signing it. Proposed paragraph 23DF(5)(b) will provide that if the instrument was made as a result of an application made by electronic means, the magistrate must inform the investigating official of the matters included in the instrument. The proposed note at the end of subsection 23DF(5) will note that the provisions in proposed section 23E will apply if the magistrate informs the investigating official under proposed paragraph 23DF(5)(b).

Proposed subsection 23DF(6)

Currently, there is no specific requirement for an investigating official to provide a copy of the instrument extending the investigation period for a terrorism offence to a detained person or their legal representative. Proposed paragraph 23DF(6)(a) will provide that an investigating official must provide the detained person or their legal representative with a copy of the instrument under proposed paragraph (5)(a) as soon as practicable after receiving it from the magistrate. Proposed paragraph 23DF(6)(b) will provide that if the instrument was made as a result of an application made by electronic means, the investigating official must inform the detained person or their legal representative of the matters included in the instrument as soon as practicable after being informed of them under proposed paragraph 23DF(5)(b).

Proposed subsection 23DF(7)

Proposed subsection 23DF(7) will replicate existing subsection 23DA(7), which provides that the investigation period may be extended any number of times, but the total of the periods of extension cannot be more than 20 hours.

Subdivision C - Miscellaneous

Item 16 will also insert Subdivision C into Division 2 of Part 1C. It will contain proposed section 23E which is modelled on existing section 23E. It will apply in situations where a magistrate has, under proposed paragraphs 23DA(5)(b), 23DD(5)(b) or 23DF(5)(b), informed an investigating official of matters included in an instrument.

Proposed subsection 23E(2) will require the investigating official to, as soon as practicable after being informed of those matters, complete a form of the instrument and forward it to the magistrate. If the form of the instrument completed by the investigating official does not accord with the terms of the instrument signed by the magistrate, the instrument is taken to have had no effect.

Item 17: Paragraph 23XGD(2)(h)

This item is a consequential amendment so that the reference at paragraph 23XGD(2)(h) to existing subsection 23CA(8) corresponds with the appropriate reference to proposed new subsection 23DB(9).

Item 18: Application

Subitem 18(1) will provide that the proposed amendments to Part 1C will, subject to proposed subitem (2), apply in relation to a person who is arrested after the commencement of these provisions.

Subitem 18(2) will clarify that if a person has been arrested more than once within 48 hours and the first of those arrests was made before the commencement of these provisions, then the proposed amendments to Part 1C will not apply in relation to the person for any later arrest that is made within that 48 hour period. However, this subitem will not apply if a person is arrested a second time within 48 hours for conduct completely separate from their conduct which led to the original arrest, or where the later arrest is for a Commonwealth offence that arose in different circumstances to those to which the original arrest applies for which new evidence has been obtained since that earlier arrest.