Anti-terrorism Act 2004 (104 of 2004)

Schedule 1   Amendments

Crimes Act 1914

5   After section 23C

Insert:

23CA Period of arrest if arrested for terrorism offence

(1) If a person is arrested for a terrorism offence, the following provisions apply.

(2) The person may be detained for the purpose of investigating either or both of the following:

(a) whether the person committed the offence;

(b) whether the person committed another terrorism offence that an investigating official reasonably suspects the person to have committed;

but must not be detained for that purpose, or for purposes that include that purpose, after the end of the investigation period prescribed by this section.

(3) The person must be:

(a) released (whether unconditionally or on bail) within the investigation period; or

(b) brought before a judicial officer within that period or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

Note: For judicial officer , see subsection (10).

(4) For the purposes of this section, but subject to subsections (6) and (8), the investigation period begins when the person is arrested, and ends at a time thereafter that is reasonable, having regard to all the circumstances, but does not extend beyond:

(a) if the person is or appears to be under 18, an Aboriginal person or a Torres Strait Islander - 2 hours; or

(b) in any other case - 4 hours;

after the arrest, unless the period is extended under section 23DA.

(5) In ascertaining any period of time for the purposes of this section, regard shall be had to the number and complexity of matters being investigated.

(6) If the person has been arrested more than once within any period of 48 hours, the investigation period for each arrest other than the first is reduced by so much of any of the following periods as occurred within that 48 hours:

(a) any earlier investigation period or periods under this section;

(b) any earlier investigation period or periods under section 23C.

(7) However, in relation to each first arrest, disregard subsection (6) for any 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 this Part 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.

(8) In ascertaining any period of time for the purposes of subsection (4) or (6), the following times are to be disregarded:

(a) the time (if any) that is reasonably required to convey the person from the place at which the person is arrested to the nearest premises at which the investigating official has access to facilities for complying with this Part;

(b) any time during which the questioning of the person is suspended or delayed to allow the person, or someone else on the person’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter or other person as provided by this Part;

(c) any time during which the questioning of the person is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter or other person to arrive at the place where the questioning is to take place;

(d) any time during which the questioning of the person is suspended or delayed to allow the person to receive medical attention;

(e) any time during which the questioning of the person is suspended or delayed because of the person’s intoxication;

(f) any time during which the questioning of the person is suspended or delayed to allow for an identification parade to be arranged and conducted;

(g) any time during which the questioning of the person is suspended or delayed in order to allow the making of an application under section 3ZQB or the carrying out of a prescribed procedure within the meaning of Division 4A of Part IAA;

(h) the time (if any) that is reasonably required in connection with making and disposing of an application under section 23CB, 23DA, 23WU or 23XB;

(i) any time during which the constable is informing the person of matters specified in section 23WJ;

(j) any reasonable time during which the questioning of the person is suspended or delayed to allow the person to rest or recuperate;

(k) any time during which a forensic procedure is being carried out on the person by order of a magistrate under Division 5 of Part ID;

(l) any time during which the questioning of the person is suspended or delayed, if section 23XGD applies and that time is to be disregarded in working out a period of time for the purposes of that section;

(m) any reasonable time that:

(i) is a time during which the questioning of the person is reasonably suspended or delayed; and

(ii) is within a period specified under section 23CB.

(9) In any proceedings, the burden lies on the prosecution to prove that:

(a) the person was brought before a judicial officer as soon as practicable; or

(b) any particular time was covered by a provision of subsection (8).

(10) In this section:

judicial officer means any 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.

23CB Specifying time during which suspension or delay of questioning may be disregarded

(1) This section applies if the person mentioned in paragraph 23CA(8)(m) is detained under subsection 23CA(2) for the purpose of investigating whether the person committed a terrorism offence.

Note: The person may be detained under subsection 23CA(2) for the purpose of investigating whether the person committed a terrorism offence, whether the person was arrested for that terrorism offence or a different terrorism offence.

Application for specification of period

(2) At or before the end of the investigation period, an investigating official may apply for a period to be specified for the purpose of subparagraph 23CA(8)(m)(ii).

(3) The application must be made to:

(a) a magistrate; or

(b) if it cannot be made at a time when a magistrate is available - a justice of the peace employed in a court of a State or Territory or a bail justice; or

(c) if it cannot be made when any of the foregoing is available - any justice of the peace.

(4) The application may be made:

(a) in person before the magistrate, justice of the peace or bail justice; or

(b) in writing; or

(c) by telephone, telex, fax or other electronic means.

However, before making the application by means described in paragraph (c), the investigating official must inform the person that the person, or his or her legal representative, may make representations to the magistrate, justice of the peace or bail justice about the application.

(5) The application must include statements of all of the following:

(a) whether it appears to the investigating official that the person is under 18;

(b) whether it appears to the investigating official that the person is an Aboriginal person or a Torres Strait Islander;

(c) the reasons why the investigating official believes the period should be specified, which may, for example, be or include one or more of the following:

(i) the need to collate and analyse information relevant to the investigation from sources other than the questioning of the person (including, for example, information obtained from a place outside Australia);

(ii) the need to allow authorities in or outside Australia (other than authorities in an organisation of which the investigating official is part) time to collect information relevant to the investigation on the request of the investigating official;

(iii) the fact that the investigating official has requested the collection of information relevant to the investigation from a place outside Australia that is in a time zone different from the investigating official’s time zone;

(iv) the fact that translation is necessary to allow the investigating official to seek information from a place outside Australia and/or be provided with such information in a language that the official can readily understand;

(d) the period that the investigating official believes should be specified.

(6) The person, or his or her legal representative, may make representations about the application.

Decision about specifying period

(7) The magistrate, justice of the peace or bail justice may, by signed instrument, specify a period starting at the time the instrument is signed, if satisfied that:

(a) it is appropriate to do so, having regard to:

(i) the application; and

(ii) the representations (if any) made by the person, or his or her legal representative, about the application; and

(iii) any other relevant matters; and

(b) the offence is a terrorism offence; and

(c) detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another terrorism offence; and

(d) the investigation into the offence is being conducted properly and without delay; and

(e) the person, or his or her legal representative, has been given the opportunity to make representations about the application.

Instrument specifying period

(8) The instrument must:

(a) specify the period as a number (which may be less than one) of hours; and

(b) set out the day and time when it was signed; and

(c) set out the reasons for specifying the period.

(9) The magistrate, justice of the peace or bail justice must:

(a) give the investigating official a copy of the instrument as soon as practicable after signing it; and

(b) if the instrument was made as a result of an application made by means described in paragraph (4)(c) - inform the investigating official of the matters included in the instrument.

Evidentiary provisions if application was made by telephone, fax etc.

(10) As soon as practicable after being informed of those matters, the investigating official must:

(a) complete a form of the instrument and write on it the name of the magistrate, justice of the peace or bail justice and the particulars given by him or her; and

(b) forward it to the magistrate, justice of the peace or bail justice.

(11) If the form of the instrument completed by the investigating official does not, in all material respects, accord with the terms of the instrument signed by the magistrate, justice of the peace or bail justice, the specification of the period is taken to have had no effect.

(12) In any proceedings, if the instrument signed by the magistrate, justice of the peace or bail justice is not produced in evidence, the burden lies on the prosecution to prove that the period was specified.