Part IC
-
Investigation of Commonwealth offences
SECTION 23B
Definitions
(1)
In this Part:
Aboriginal legal aid organisation
(Repealed by No 75 of 2018)
History
Definition of
"
Aboriginal legal aid organisation
"
repealed by No 75 of 2018, s 3 and Sch 2 item 1, effective 25 August 2018. The definition formerly read:
Aboriginal legal aid organisation
means an organisation that provides legal assistance to Aboriginal persons and Torres Strait Islanders, being an organisation identified in the regulations for the purposes of this definition.
Aboriginal legal assistance organisation
means an organisation that is funded by the Commonwealth, a State or a Territory to provide legal assistance to Aboriginal persons and Torres Strait Islanders.
History
Definition of
"
Aboriginal legal assistance organisation
"
inserted by No 75 of 2018, s 3 and Sch 2 item 1, effective 25 August 2018.
arrested
:
a person is arrested if:
(a)
the person is arrested for a Commonwealth offence; and
(b)
the person
'
s arrest has not ceased under subsection (3) or (4); and
(c)
the person has not been released.
History
Definition of
"
arrested
"
substituted by No 127 of 2010, s 3 and Sch 3 item 1, effective 25 November 2010. The definition formerly read:
arrested
:
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).
Act No 127 of 2010, s 3 and Sch 3 item 18 contains the following application provisions, effective 25 November 2010:
18 Application
(1)
Subject to subitem (2), the amendments made by this Schedule apply in relation to a person who is arrested after the commencement of this item.
(2)
If:
(a)
a person has been arrested more than once within any period of 48 hours; and
(b)
the first of those arrests was made before the commencement of this item;
the amendments made by this Schedule do not apply in relation to the person for any later arrest that is made within that 48 hour period.
(3)
However, in relation to a first arrest, disregard subitem (2) for a later arrest if:
(a)
the later arrest is for a Commonwealth offence:
(i)
that was committed after the end of the person
'
s period of detention under Part
IC
of the
Crimes Act 1914
for the first arrest; or
(ii)
that arose in different circumstances to those in which any Commonwealth offence to which the first arrest relates arose, and for which new evidence has been found since the first arrest; and
(b)
the person
'
s questioning associated with the later arrest does not relate to:
(i)
a Commonwealth offence to which the first arrest relates; or
(ii)
the circumstances in which such an offence was committed.
(4)
In this item:
Commonwealth offence
has the same meaning as in Part
IC
of the
Crimes Act 1914
.
Definition of
"
arrested
"
inserted by No 136 of 2001, s 3 and Sch 4 item 12, effective 29 October 2001.
arrested or under arrest
(Repealed by No 136 of 2001)
History
Definition of
"
arrested or under arrest
"
repealed by No 136 of 2001, s 3 and Sch 4 item 11, effective 29 October 2001. The definition formerly read:
arrested or under arrest
has the meaning given by subsections (2), (3) and (4), and arrest has a corresponding meaning.
authorising officer
,
in relation to an investigating official, means:
(a)
if the investigating official is a member or special member of the Australian Federal Police
-
a person for the time being holding office or acting as:
(i)
the Commissioner; or
(ii)
a Deputy Commissioner; or
(iii)
a member or special member of the Australian Federal Police who is of the rank of superintendent or higher; or
(b)
if the investigating official is a member of the police force of a State or Territory
-
a person for the time being holding office or acting as:
(i)
the Commissioner or the person holding equivalent rank; or
(ii)
an Assistant Commissioner or a person holding equivalent rank; or
(iii)
a superintendent or a person holding equivalent rank;
of the police force of that State or Territory.
History
Definition of
"
authorising officer
"
inserted by No 127 of 2010, s 3 and Sch 3 item 2, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
.
Commonwealth offence
means:
(a)
an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the
Defence Force Discipline Act 1982
; or
(b)
a State offence that has a federal aspect.
History
Definition of
"
Commonwealth offence
"
substituted by No 64 of 2004, s 3 and Sch 3 item 12, effective 22 December 2004. The definition formerly read:
Commonwealth offence
means an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the
Defence Force Discipline Act 1982
.
designated official
means:
(a)
a member or special member of the Australian Federal Police; or
(b)
a member of the police force of a State or Territory; or
(c)
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.
History
Definition of
"
designated official
"
inserted by No 3 of 2021, s 3 and Sch 2 item 1, effective 17 February 2021.
inform
, in relation to an investigating official informing a person who is under arrest or a protected suspect, means notify the person:
(a)
in a language in which the person is able to communicate with reasonable fluency; and
(b)
in a manner that the official has reasonable grounds to believe is a manner that the person can understand having regard to any apparent disability the person has.
History
Definition of
"
inform
"
inserted by No 136 of 2001, s 3 and Sch 4 item 13, effective 29 October 2001.
investigating official
means:
(a)
a member or special member of the Australian Federal Police (other than a member or special member of the Australian Federal Police who is engaged in covert investigations under the orders of a superior); or
(b)
a member of the police force of a State or Territory (other than a member of the police force of a State or Territory who is engaged in covert investigations under the orders of a superior); or
(c)
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 (other than a person who is engaged in covert investigations under the orders of a superior).
History
Definition of
"
investigating official
"
amended by No 3 of 2021, s 3 and Sch 2 items 2
-
4, by inserting
"
(other than a member or special member of the Australian Federal Police who is engaged in covert investigations under the orders of a superior)
"
in para (a),
"
(other than a member of the police force of a State or Territory who is engaged in covert investigations under the orders of a superior)
"
in para (b) and
"
(other than a person who is engaged in covert investigations under the orders of a superior)
"
in para (c), effective 17 February 2021.
investigation period
means the investigation period prescribed by section
23C
or or
23DB
, as the case requires.
History
Definition of
"
investigation period
"
amended by No 127 of 2010, s 3 and Sch 3 item 3, by substituting
"
or 23DB
"
for
"
or 23CA
"
, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
.
Definition of
"
investigation period
"
substituted by No 104 of 2004, s 3 and Sch 1 item 1, effective 30 June 2004. The definition formerly read:
investigation period
means the investigation period prescribed by section 23C.
judicial officer
(Repealed by No 63 of 2023)
History
Definition of
"
judicial officer
"
repealed by No 63 of 2023, s 3 and Sch 3 item 1, applicable in relation to arrests made on or after 14 September 2023 in relation to conduct constituting the offence concerned engaged in before, on or after 14 September 2023. The definition formerly read:
judicial officer
,
in relation to a person who is arrested, means:
(a)
a magistrate; or
(b)
a justice of the peace; or
(c)
a person authorised to grant bail under the law of the State or Territory in which the person was arrested.
Definition of
"
judicial officer
"
inserted by No 127 of 2010, s 3 and Sch 3 item 4, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
.
magistrate
(Repealed by No 136 of 2001)
History
Definition of
"
magistrate
"
repealed by No 136 of 2001, s 3 and Sch 4 item 14, effective 29 October 2001. The definition formerly read:
magistrate
includes a justice of the peace.
protected suspect
has the meaning given by subsection (2).
History
Definition of
"
protected suspect
"
inserted by No 136 of 2001, s 3 and Sch 4 item 14A, effective 29 October 2001.
question
has the meaning given by subsection (6).
serious Commonwealth offence
means a Commonwealth offence that is punishable by imprisonment for a period exceeding 12 months.
History
Definition of
"
serious Commonwealth offence
"
inserted by No 127 of 2010, s 3 and Sch 3 item 5, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
.
tape recording
means audio recording, video recording or recording by other electronic means.
History
Definition of
"
tape recording
"
substituted by No 136 of 2005, s 3 and Sch 1 item 6, applicable to a recording made after 16 November 2005. The definition formerly read:
tape recording
includes audio recording and video recording.
under arrest
:
a person is under arrest if:
(a)
the person is arrested for a Commonwealth offence; and
(b)
the person
'
s arrest has not ceased under subsection (3) or (4); and
(c)
the person has not been released.
History
Definition of
"
under arrest
"
substituted by No 127 of 2010, s 3 and Sch 3 item 6, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
. The definition formerly read:
under arrest
:
a person is under arrest if the person has been arrested for a Commonwealth offence and the person
'
s arrest has not ceased under subsection (3) or (4).
Definition of
"
under arrest
"
inserted by No 136 of 2001, s 3 and Sch 4 item 15, effective 29 October 2001.
(2)
A person is a
protected suspect
if:
(a)
the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and
(b)
the person has not been arrested for the offence; and
(c)
one or more of the following applies in relation to the person:
(i)
the official believes that there is sufficient evidence to establish that the person has committed the offence;
(ii)
the official would not allow the person to leave if the person wished to do so;
(iii)
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; and
(d)
none of the following applies in relation to the person:
(i)
the official is performing functions in relation to persons or goods entering Australia, and the official does not believe that the person has committed a Commonwealth offence;
(ii)
the official is performing functions in relation to persons or goods leaving Australia, and the official does not believe that the person has committed a Commonwealth offence;
(iii)
the official is exercising a power under a law of the Commonwealth to detain and search the person;
(iv)
the official is exercising a power under a law of the Commonwealth to require the person to provide information or to answer questions; and
(e)
the person has not ceased to be a suspect under subsection
(4)
.
History
S 23B(2) substituted by No 136 of 2001, s 3 and Sch 4 item 15A, effective 29 October 2001. S 23B(2) formerly read:
(2)
Subject to subsections (3) and (4), a reference in this Part to a person who is arrested includes a reference to a person who is in the company of an investigating official for the purpose of being questioned, if:
(a)
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
(b)
the official would not allow the person to leave if the person wished to do so; or
(c)
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;
but a person is not treated as being arrested only because of this subsection if:
(d)
the official is performing functions in relation to persons or goods entering Australia and the official does not believe that the person has committed a Commonwealth offence; or
(e)
the official is exercising a power under a law of the Commonwealth to:
(i)
detain and search the person; or
(ii)
to require the person to provide information or to answer questions.
(3)
A person ceases, for the purposes of this Part, to be arrested for a Commonwealth offence if the person is remanded in respect of that offence by a bail authority otherwise than under any of the following provisions of the
Service and Execution of Process Act 1992
:
(a)
paragraph
83(3)(b)
,
(4)(b)
,
(8)(a)
or
(8)(b)
;
(b)
subsection
83(12)
;
(c)
paragraph
83(14)(a)
;
(d)
subparagraph
84(4)(a)(ii)
or
(6)(a)(i)
.
History
S 23B(3) amended by No 63 of 2023, s 3 and Sch 3 item 2, by substituting
"
bail authority
"
for
"
judicial officer
"
, applicable in relation to arrests made on or after 14 September 2023 in relation to conduct constituting the offence concerned engaged in before, on or after 14 September 2023.
S 23B(3) amended by No 127 of 2010, s 3 and Sch 3 item 7, by substituting all the words after
"
in respect of that offence by
"
, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
in s 23B(1). S 23B(3) formerly read:
(3)
A person ceases, for the purposes of this Part, to be arrested for a Commonwealth offence if the person is remanded in respect of that offence by one of the following:
(a)
a magistrate;
(b)
a justice of the peace;
(c)
a person authorised to grant bail under the law of the State or Territory in which the person was arrested;
otherwise than under paragraph
83(3)(b)
,
(4)(b)
,
(8)(a)
,
(8)(b)
, subsection
83(12)
, paragraph
83(14)(a)
, or subparagraph
84(4)(a)(ii)
or
(6)(a)(i)
of the
Service and Execution of Process Act 1992
.
S 23B(3) substituted by No 136 of 2001, s 3 and Sch 4 item 20, effective 29 October 2001. S 23B(3) formerly read:
(3)
Where a person who has been arrested for a Commonwealth offence is remanded by a magistrate in respect of that offence, the person ceases to be treated, for the purposes of this Part, as being under arrest for that offence.
(4)
A person ceases, for the purposes of this Part, to be arrested or a protected suspect if:
(a)
a designated official believes on reasonable grounds that the person is voluntarily taking part in covert investigations; and
(b)
those covert 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 (whether a Commonwealth offence or not).
History
S 23B(4) amended by No 3 of 2021, s 3 and Sch 2 item 5, by substituting
"
a designated official
"
for
"
an investigating official
"
in para (a), effective 17 February 2021.
S 23B(4) substituted by No 136 of 2001, s 3 and Sch 4 item 20A, effective 29 October 2001. S 23B(4) formerly read:
(4)
Where:
(a)
a person is under arrest for a Commonwealth offence; and
(b)
an investigating official believes on reasonable grounds that the person voluntarily takes part in covert investigations described in subsection (5);
the person is taken, for all purposes, to cease to be under arrest for the offence, but this subsection does not prevent the person from being re-arrested for the offence.
(5)
Subsection
(4)
does not prevent the person from being re-arrested or again becoming a protected suspect.
History
S 23B(5) substituted by No 136 of 2001, s 3 and Sch 4 item 20A, effective 29 October 2001. S 23B(5) formerly read:
(5)
Subsection (4) applies to covert investigations conducted by the investigating official for the purpose of investigating whether a person other than the arrested person has been involved in the commission of an offence or suspected offence (whether a Commonwealth offence or not).
(6)
In this Part, a reference to questioning a person:
(a)
is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and
(b)
does not include a reference to carrying out a forensic procedure on the person under Part
ID
.
History
S 23B(6) amended by No 41 of 2003, s 3 and Sch 3 item 39, by substituting
"
Part ID
"
for
"
Part 1D
"
in para (b), effective 3 June 2003. For saving provision, see note under s 23C(7).
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