National Security Legislation Amendment Act 2010 (127 of 2010)
Schedule 3 Investigation of Commonwealth offences
Crimes Act 1914
16 At the end of Division 2 of Part IC
Add:
Subdivision B - Terrorism offences
23DB Period of investigation if arrested for a terrorism offence
(1) If a person is arrested for a terrorism offence, the following provisions apply.
Note: A person would not be arrested for a terrorism offence if, for example, the person has been released under subsection 3W(2) - see the definition of arrested in subsection 23B(1).
(2) The person may, while arrested for the terrorism offence, 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 Commonwealth offence that an investigating official reasonably suspects that the person has committed.
(3) Subsection (2) ceases to apply at the end of the investigation period, but that cessation does not affect any other power to detain the person.
(4) If the 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.
(5) For the purposes of this section, but subject to subsections (7) and (9), the investigation period begins when the person is arrested, and ends at a later time 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 23DF.
(6) 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.
(7) 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.
(8) However, in relation to each first arrest, disregard subsection (7) 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.
(9) In ascertaining any period of time for the purposes of subsection (5) or (7), disregard any reasonable time during which the questioning of the person is suspended, or delayed, for one or more of the following reasons:
(a) to allow the person to be conveyed 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) 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) 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) to allow the person to receive medical attention;
(e) because of the person's intoxication;
(f) to allow for an identification parade to be arranged and conducted;
(g) 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) to allow the making and disposing of an application under section 23DC, 23DE, 23WU or 23XB;
(i) to allow a constable to inform the person of matters specified in section 23WJ;
(j) to allow the person to rest or recuperate;
(k) to allow a forensic procedure to be carried out on the person by order of a magistrate under Division 5 of Part ID;
(l) because section 23XGD applies and the time is to be disregarded in working out a period of time for the purposes of that section;
(m) subject to subsection (11), because the time is within a period specified under section 23DD, so long as the suspension or delay in the questioning of the person is reasonable.
(10) To avoid doubt:
(a) subsection (9) does not prevent the person being questioned during a time covered by a paragraph of subsection (9), but if the person is questioned during such a time, the time is not to be disregarded; and
(b) a period specified under section 23DD is not extended by any time covered by a paragraph of subsection (9).
Limit on time that may be disregarded under paragraph (9)(m)
(11) No more than 7 days may be disregarded under paragraph (9)(m) in relation to an arrest. However:
(a) if the person has been arrested more than once within any period of 48 hours, the 7 day period for each arrest other than the first arrest is reduced by any period or periods specified under section 23DD in relation to any earlier arrest; and
(b) subsection (8) applies as if the reference in that subsection to subsection (7) were a reference to this subsection.
Evidentiary provision
(12) 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 (9).
23DC Time during which suspension or delay of questioning may be disregarded - application
(1) This section applies if:
(a) a person is arrested for a terrorism offence; and
(b) an investigation is being conducted into whether the person committed that terrorism offence or another terrorism offence.
Application for specification of period
(2) At or before the end of the investigation period, an investigating official (within the meaning of paragraph (a) or (b) of the definition of that expression) may apply, in writing, to a magistrate for a period to be specified for the purpose of paragraph 23DB(9)(m).
(3) The application must not be made unless the application is authorised, in writing, by an authorising officer.
(4) Subject to subsection (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 outcome of any previous application under this section in relation to:
(i) the person and the arrest; and
(ii) if the person was arrested at any time during the period of 48 hours before the arrest - the person and the earlier arrest or arrests;
(d) the total amount of time that has been disregarded under subsection 23DB(9) in ascertaining the investigation period in relation to:
(i) the person and the arrest; and
(ii) if the person was arrested at any time during the period of 48 hours before the arrest - the person and the earlier arrest or arrests;
(e) 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;
(f) the period that the investigating official believes should be specified.
(5) Subsection (4) does not require any information to be included in the application if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(6) Before the application is considered by the magistrate, the investigating official must:
(a) provide a copy of the application to the person or to his or her legal representative; and
(b) inform the person that he or she, or his or her legal representative, may make representations to the magistrate about the application.
(7) If the application contains any information of a kind mentioned in subsection (5), the investigating official may remove it from the copy of the application that is provided to the person or to his or her legal representative.
(8) The person, or his or her legal representative, may make representations to the magistrate about the application.
23DD Time during which suspension or delay of questioning may be disregarded - time specified by magistrate
(1) This section applies if:
(a) a person is arrested for a terrorism offence; and
(b) an application has been made under subsection 23DC(2) to a magistrate in respect of the person.
Specification of period
(2) The magistrate 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 application has been authorised by an authorising officer; and
(f) the person, or his or her legal representative, has been given the opportunity to make representations about the application.
Instrument specifying period
(3) Subject to subsection (4), 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.
(4) Subsection (3) does not require any information to be included in the instrument if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(5) The magistrate 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 telex, fax or other electronic means - inform the investigating official of the matters included in the instrument.
Note: See section 23E.
(6) The investigating official must:
(a) as soon as practicable after receiving a copy of the instrument under paragraph (5)(a), give the person, or his or her legal representative, a copy of it; and
(b) if the instrument was made as a result of an application made by telex, fax or other electronic means - inform the person, or his or her legal representative, of the matters included in the instrument as soon as practicable after being informed of them under paragraph (5)(b).
23DE Application may be made for extension of investigation period
(1) If a person is arrested for a terrorism offence, an investigating official (within the meaning of paragraph (a) or (b) of the definition of that expression) may, at or before the end of the investigation period, apply, in writing, to a magistrate for an extension of the investigation period.
(2) The application must not be made unless the application is authorised, in writing, by an authorising officer.
(3) Subject to subsection (4), 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 outcome of any previous application under this section in relation to the person and the investigation period;
(d) the period (if any) by which the investigation period has been reduced under subsection 23DB(7);
(e) the total amount of time (if any) that has been disregarded under subsection 23DB(9) in ascertaining the investigation period;
(f) the maximum amount of time by which the investigation period could be extended;
(g) the reasons why the investigating official believes the investigation period should be extended;
(h) the period by which the investigating official believes the investigation period should be extended.
(4) Subsection (3) does not require any information to be included in the application if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(5) Before the application is considered by the magistrate, the investigating official must:
(a) provide a copy of the application to the person or to his or her legal representative; and
(b) inform the person that he or she, or his or her legal representative, may make representations to the magistrate about the application.
(6) If the application contains any information of a kind mentioned in subsection (4), the investigating official may remove it from the copy of the application that is provided to the person or to his or her legal representative.
(7) The person, or his or her legal representative, may make representations to the magistrate about the application.
23DF Magistrate may extend investigation period
(1) This section applies if:
(a) a person is arrested for a terrorism offence; and
(b) an application has been made under subsection 23DE(1) to a magistrate in respect of the person.
Extension of investigation period
(2) Subject to subsection (3), the magistrate may extend the investigation period, by signed written instrument, if satisfied that:
(a) the offence is a terrorism offence; and
(b) further detention of the person is necessary to:
(i) preserve or obtain evidence related to the offence or to another terrorism offence; or
(ii) complete the investigation into the offence or into another terrorism offence; and
(c) the investigation into the offence is being conducted properly and without delay; and
(d) the application has been authorised by an authorising officer; and
(e) the person, or his or her legal representative, has been given the opportunity to make representations about the application.
(3) Subject to subsection (4), the instrument must set out:
(a) the day and time when the extension was granted; and
(b) the reasons for granting the extension; and
(c) the terms of the extension.
(4) Subsection (3) does not require any information to be included in the instrument if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(5) The magistrate 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 telex, fax or other electronic means - inform the investigating official of the matters included in the instrument.
Note: See section 23E.
(6) The investigating official must:
(a) as soon as practicable after receiving a copy of the instrument under paragraph (5)(a), give the person, or his or her legal representative, a copy of it; and
(b) if the instrument was made as a result of an application made by telex, fax or other electronic means - inform the person, or his or her legal representative, of the matters included in the instrument as soon as practicable after being informed of them under paragraph (5)(b).
(7) 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
23E Evidentiary provisions if application made by electronic means
(1) This section applies if a magistrate has, under paragraph 23DA(5)(b), 23DD(5)(b) or 23DF(5)(b), informed an investigating official of matters included in an instrument.
(2) 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 and the particulars given by him or her; and
(b) forward it to the magistrate.
(3) 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, the instrument is taken to have had no effect.
(4) In any proceedings, if the instrument signed by the magistrate is not produced in evidence, the burden lies on the prosecution to prove that the instrument was made.