Crimes Act 1914
Part I - Preliminary
SECTION 1
1
Short title
This Act may be cited as the Crimes Act 1914. SECTION 3 INTERPRETATION (1)
In this Act, unless the contrary intention appears:
(a) in relation to an offence against section 233B of the Customs Act 1901 - an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(b) in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 - an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(c) in relation to an offence against a law of a State or Territory - an offence:
(a) a Commonwealth child sex offence; or
(b) an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of Schedule 7 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019; or
(c) an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010; or
(d) a State or Territory registrable child sex offence.
(a) an offence against any of the following provisions of the Criminal Code:
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.
(a) a person appointed or engaged under the Public Service Act 1999;
(aa) a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;
(b) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).
(c)-(d) (Repealed by No 67 of 2018)
(a) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(b) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
(a) information in any form; and
(b) any program (or part of a program).
(a) the Inspector-General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.
(a) misconduct (within the meaning of the Privacy Act 1988) of a serious nature by any of the following:
(b) conduct that may have the purpose or effect of inducing misconduct described in paragraph (a);
(c) fraud that has or may have a substantial adverse effect on the Commonwealth or a target entity;
(d) an offence against Chapter 7 of the Criminal Code (which is about the proper administration of Government).
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member of the police force of a State or Territory;
(ba) a staff member of the NACC;
(c) a member of the staff of the ACC;
(d) an officer of Customs;
(e) a member of a police force, or other law enforcement agency, of a foreign country.
(a) the adult is legally entitled to, and has, custody of the person; or
(b) the adult is legally responsible for the day-to-day care, welfare and development of the person and has the person in his or her care.
(a) that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and
(b) in respect of which:
(a) a Privacy Act agency; or
(b) a wholly-owned Commonwealth company.
(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(aa) an offence against Subdivision B of Division 80 of the Criminal Code; or
(b) an offence against Part 5.3 or 5.5 of the Criminal Code; or
(ba) an offence against Subdivision HA of Division 474 of the Criminal Code; or
(c) an offence against either of the following provisions of the Charter of the United Nations Act 1945:
(a) either of the following:
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
(a) either of the following:
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
(2)
In this Act, a reference to a fine includes a reference: (a) to a pecuniary penalty other than a pecuniary penalty imposed:
(3)
For the purposes of this Act, the relatives of a person are taken to include the following (without limitation): (a) a de facto partner of the person; (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section; (c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.
SECTION 3AA STATE OFFENCES THAT HAVE A FEDERAL ASPECT
Object
3AA(1A)
The object of this section is to identify State offences that have a federal aspect because:
(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
3AA(1)
For the purposes of this Act, a State offence has a federal aspect if, and only if:
(a) both:
(b) both:
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence - that provision would have been a valid law of the Commonwealth; or
(d) both:
Specificity of acts or omissions
3AA(2)
For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (1)(c)
3AA(3)
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(g) involved:
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
3AA(4)
Subsection (3) does not limit paragraph (1)(c).
Definitions
3AA(5)
In this section:
(a)an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
SECTION 3A 3A Operation of Act
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories. SECTION 3B Arrangements with States, Australian Capital Territory and Northern Territory (1)
The Governor-General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory or the Administrator of the Northern Territory for:
(a) officers of the State or Territory to exercise powers and perform functions; and
(b) facilities and procedures of the State or Territory to be made available;
(2)
In this Act:
(a) a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and
(b) a reference to a participating Territory:
(3)
In this section:
SECTION 3BA 3BA Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
SECTION 3BB
3BB
Application of Sections 4, 5, 7, 7A, 14, 15D AND 86
Part IAA - Search, information gathering, arrest and related powers (other than powers under delayed notification search warrants)
Division 1 - Preliminary
SECTION 3C
INTERPRETATION
3C(1)
In this Part, unless the contrary intention appears:
(a) a carrier within the meaning of the Telecommunications Act 1997; or
(b) a carriage service provider within the meaning of that Act.
(a) a person who is a constable and who is assisting in executing the warrant; or
(b) a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
(b) if that constable does not intend to be present at the execution of the warrant-another constable whose name has been written in the warrant by the constable so named; or
(c) another constable whose name has been written in the warrant by the constable last named in the warrant.
(a) a search of a person conducted by quickly running the hands over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
(a) a magistrate; or
(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.
(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or
(b) an offence against a law of a Territory; or
(c) a State offence that has a federal aspect.
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.
(a) that is punishable by imprisonment for 2 years or more; and
(b) that is one of the following:
(c) that is not a serious terrorism offence.
(a) a terrorism offence (other than offence against section 102.8, Division 104 or Division 105 of the Criminal Code); or
(b) an offence against a law of a State:
(c) an offence against a law of a Territory that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104 or Division 105 of the Criminal Code).
(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person's body (but not of the person's body cavities) and of those garments.
3C(2)
A person referred to in paragraph (b) of the definition of constable assisting in subsection (1) must not take part in searching or arresting a person.
SECTION 3CAA Account-based data (1)
For the purposes of this Part, if: (a) an electronic service has accounts for end-users; and (b) either:
(2)
For the purposes of this Part, if: (a) an electronic service has accounts for end-users; and (b) either:
(3)
For the purposes of this section, account has the same meaning as in the Online Safety Act 2021.
SECTION 3CA
NATURE OF FUNCTIONS OF MAGISTRATE
3CA(1)
A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
3CA(2)
Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
3CA(3)
A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
3CA(4)
The Governor-General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB.
SECTION 3D
Application of Part
(1)
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons.
(2)
To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
(3)
(Repealed by No 64 of 2004)
(4)
This Part is not intended to limit or exclude the operation of a law of a Territory relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons;
(5)
This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.
(6)
The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.
Division 2 - Search warrants SECTION 3E When search warrants can be issued (1)
An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
(2)
An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
(3)
If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.
(4)
If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.
(5)
If an issuing officer issues a warrant, the officer is to state in the warrant: (a) the offence to which the warrant relates; and (b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and (c) the kinds of evidential material that are to be searched for under the warrant; and (d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and (e) the time at which the warrant expires (see subsection (5A)); and (f) whether the warrant may be executed at any time or only during particular hours.
(5A)
The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
(6)
The issuing officer is also to state, in a warrant in relation to premises: (a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(7)
The issuing officer is also to state, in a warrant in relation to a person: (a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:
(8)
Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.
(9)
If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if: (a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and (b) paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(10)
An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(11)
An issuing officer in a State or internal Territory may: (a) issue a warrant in relation to premises or a person in that State or Territory; or (b) issue a warrant in relation to premises or a person in an external Territory; or (c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or (d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
SECTION 3F The things that are authorised by a search warrant
(1)
A warrant that is in force in relation to premises authorises the executing officer or a constable assisting: (a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and (b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and (c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and (d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(2)
A warrant that is in force in relation to a person authorises the executing officer or a constable assisting: (a) to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and (b) to:
(2A)
A warrant that is in force authorises the executing officer or a constable assisting: (a) to use:
(2B)
A warrant that is in force authorises the executing officer or a constable assisting: (a) to use:
(2C)
Subsections (2A) and (2B) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
(2D)
In the case of a warrant that is in force in relation to premises, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done: (a) at the premises; or (b) at any other place.
(2E)
In the case of a warrant that is in force in relation to a person, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done: (a) in the presence of the person; or (b) at any other place.
(3)
If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
(4)
If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.
(5)
(Repealed by No 4 of 2010)
(2)
A warrant that is in force in relation to a person authorises the executing officer or a constable assisting to seize a digital asset if:
(a) in the course of exercising powers under this Part, the executing officer or a constable assisting finds one or more things that suggest the existence of the digital asset; and
(b) the executing officer or a constable assisting reasonably suspects the digital asset to be:
(c) the executing officer or a constable assisting reasonably suspects that seizing the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.
Use of electronic equipment etc. to seize a digital asset etc.
(3)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(b) if necessary to achieve that purpose - to add, copy, delete or alter data in the computer or device mentioned in subparagraph (a)(i); and
(c) if it is reasonable in all the circumstances to do so for the purpose of seizing a digital asset under the warrant:
(d) to do any other thing reasonably incidental to any of the above.
Use of electronic equipment etc. to access data to determine the existence of a digital asset that may be seized etc.
(4)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(b) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(d) to copy any data to which access has been obtained, and that:
(e) to do any other thing reasonably incidental to any of the above.
(5)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(d) to copy any data to which access has been obtained, and that:
(e) to do any other thing reasonably incidental to any of the above.
Limitation
(6)
Subsections (3), (4) and (5) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(b) cause any other material loss or damage to other persons lawfully using a computer.
Operation of electronic equipment to seize a digital asset
(7)
A warrant that is in force also authorises the executing officer or a constable assisting:
(a) for a warrant in relation to premises - to operate electronic equipment at the premises for the purpose of seizing a digital asset under the warrant; and
(b) if electronic equipment is moved to another place under subsection 3K(2) - to operate the equipment for the purpose of seizing a digital asset under the warrant.
Additional ways of seizing digital assets
(8)
Seizing a digital asset under a warrant includes any of the following:
(a) transferring the digital asset from an existing digital wallet (or some other thing) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;
(b) transferring the digital asset:
(c) transferring the digital asset in circumstances prescribed by regulations made for the purposes of this paragraph.
Time limit for seizing digital assets etc.
(9)
The power to seize a digital asset under the warrant, or a power covered by subsection (3) or paragraph (7)(b) relating to seizing a digital asset under the warrant, may be exercised, to the extent that the exercise of the power relates to a thing referred to in paragraph (1)(a) or (2)(a) for the warrant, only during the period starting when the warrant is issued and ending at:
(a) if the thing is moved to another place under subsection 3K(2) - the time applicable under subsection 3K(3A) or that time as previously extended as described in subsection 3K(3B); or
(b) if the thing is seized under this Division - any time that the thing must be returned as described in Subdivision B of Division 4C of this Part; or
(c) if the thing is data that is copied under this Division - the time the Commissioner is satisfied that the data is not required (or is no longer required):
(d) otherwise - the end of the period of 30 days starting on the day the warrant is issued.
(10)
If the period applicable under subsection (9) ends after the warrant expires, the powers referred to in that subsection may be exercised during that period as if the warrant were still in force.
Things done in relation to warrants may be done remotely etc.
(11)
For a warrant related to premises, it is immaterial whether:
(a) a digital asset is seized, as described in this section, at the premises or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done at the premises or at any other place.
(12)
For a warrant related to a person, it is immaterial whether:
(a) a digital asset is seized, as described in this section, in the presence of the person or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done in the presence of the person or at any other place.
]
SECTION 3G
3G
Availability of assistance and use of force in executing a warrant
In executing a warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and
(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;
If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(2)
If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(3)
If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.
(4)
The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5)
The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.
SECTION 3J Specific powers available to constables executing warrant (1)
In executing a warrant in relation to premises, the executing officer or a constable assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
(2)
If a warrant in relation to premises is being executed, the executing officer and the constables assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(aa) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under section 3JA; or
(b) for a longer period if the occupier of the premises consents in writing.
(3)
If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
SECTION 3JA Extension of time to re-enter premises in emergency situations (1)
If:
(a) a warrant in relation to premises is being executed; and
(b) there is an emergency situation; and
(c) the executing officer or a constable assisting believes on reasonable grounds that the executing officer and the constables assisting will not be able to return to the premises within the 12 hour period mentioned in paragraph 3J(2)(aa);
(2)
Before making the application, the executing officer or a constable assisting must, if it is practicable to do so, give notice to the occupier of the premises of his or her intention to apply for an extension.
(3)
If an application mentioned in subsection (1) has been made, an issuing officer may extend the period during which the executing officer and constables assisting may be away from the premises if:
(a) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
SECTION 3K
USE OF EQUIPMENT TO EXAMINE OR PROCESS THINGS
Equipment may be brought to warrant premises
(1)
The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2)
A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply:
Notification of examination or processing and right to be present
(3)
If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so: (a) inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and (b) allow that person or his or her representative to be present during the examination or processing.
(3AA)
The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might: (a) endanger the safety of a person; or (b) prejudice an investigation or prosecution.
Time limit on moving a thing
(3A)
The thing may be moved to another place for examination or processing for no longer than whichever of the following is applicable: (a) if the thing is a computer or data storage device - 30 days; (b) otherwise - 14 days.
(3B)
An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within the time applicable under subsection (3A) or that time as previously extended.
(3C)
The executing officer must give notice of the application tothe person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.
(3D)
A single extension cannot exceed whichever of the following is applicable: (a) if the thing is a computer or data storage device - 14 days; (b) otherwise - 7 days.
Equipment at warrant premises may be operated
(4)
The executing officer of a warrant in relation to premises, or a constable assisting, may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that: (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing.
Extended powers of examination and processing
(5)
For the purposes of this section, if a computer or data storage device (the relevant computer or device ) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include: (a) using:
(6)
For the purposes of this section, if a computer (the relevant computer) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include: (a) using:
(7)
Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
(8)
In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done: (a) at the premises; or (b) at any other place.
(9)
In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done: (a) in the presence of the person; or (b) at any other place.
SECTION 3L USE OF ELECTRONIC EQUIPMENT AT PREMISES 3L(1)
The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material.
3L(1A)
If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may: (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or (b) if the occupier of the premises agrees in writing - copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;
3L(1B)
If: (a) the executing officer or constable assisting takes the device from the premises; and (b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
3L(2)
If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can, by using facilities at the premises, be put in documentary form-operate the facilities to put the material in that form and seize the documents so produced;
(c) (Repealed by No 161 of 2001)
3L(3)
A constable may seize equipment under paragraph (2)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or (b) possession by the occupier of the equipment could constitute an offence.
3L(4)
If the executing officer or a constable assisting suspects on reasonable grounds that: (a) evidential material may be accessible by operating electronic equipment at the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
3L(5)
The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
3L(6)
The equipment may be secured: (a) for a period not exceeding 24 hours; or (b) until the equipment has been operated by the expert;
3L(7)
If the executing officer or a constable assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.
3L(8)
The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
3L(9)
The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
SECTION 3LAA USE OF ELECTRONIC EQUIPMENT AT OTHER PLACE (1)
If electronic equipment is moved to another place under subsection 3K(2), the executing officer or a constable assisting may operate the equipment to: (a) access data (including data held at another place); or (b) access account-based data.
(2)
If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3)
If the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must arrange for: (a) the removal of the data from any device in the control of the Australian Federal Police; and (b) the destruction of any other reproduction of the data in the control of the Australian Federal Police.
(4)
If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can be put in documentary form - put the material in that form and seize the documents so produced.
(5)
A constable may seize equipment under paragraph (4)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or (b) possession of the equipment, by the person referred to in paragraph 3K(2)(a) or (b) (as the case requires), could constitute an offence.
SECTION 3LA
PERSON WITH KNOWLEDGE OF A COMPUTER OR A COMPUTER SYSTEM TO ASSIST ACCESS ETC.
(1)
A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following: (a) access data held in, or accessible from, a computer or data storage device that:
(2)
The magistrate may grant the order if the magistrate is satisfied that: (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and (b) the specified person is:
(3)
If: (a) the computer or data storage device that is the subject of the order is seized under this Division; and (b) the order was granted on the basis of an application made before the seizure;
(4)
If the computer or data storage device is not on warrant premises, the order must: (a) specify the period within which the person must provide the information or assistance; and (b) specify the place at which the person must provide the information or assistance; and (c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
Offences
(5)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement.
(6)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement; and (e) the offence to which the relevant warrant relates is:
Additional use of information etc.
(7)
If information or assistance is provided under this section in connection with an investigation into one or more alleged offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of an account takeover warrant (within the meaning of Part IAAC) that relates to that investigation.
SECTION 3LB
ACCESSING DATA HELD ON CERTAIN PREMISES - NOTIFICATION TO OCCUPIER OF THAT PREMISES
3LB(1)
If:
(a) data is accessed, in relation to a warrant, under subsection 3L(1) or 3LAA(1); and
(aa) either:
(b) it is practicable to notify the occupier of the premises on which the data is held that the data has been accessed under a warrant;
(c) do so as soon as practicable; and
(d) if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2) or 3LAA(2) or (4) - include that information in the notification.
3LB(2)
A notification under subsection (1) must include sufficient information to allow the occupier of the premises on which the data is held to contact the executing officer.
SECTION 3M
Compensation for damage to equipment
3M(1)
This section applies if: (a) as a result of equipment being operated as mentioned in section 3K, 3L or 3LAA:
3M(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
3M(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
3M(4)
In determining the amount of compensation payable, regard is to be had to whether any of the following persons, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment: (a) if the equipment was operated under a warrant issued in relation to premises - the occupier of the premises, or the occupier's employees or agents; (b) if the equipment was operated under a warrant issued in relation to a person - that person, or that person's agents.
3M(5)
Compensation is payable out of money appropriated by the Parliament.
(6)
For the purposes of subsection (1):
SECTION 3N
Copies of seized things to be provided
(1)
Subject to subsection (2), if a constable seizes, under a warrant relating to premises: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied;
(2)
Subsection (1) does not apply if: (a) the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or (aa) the thing embodies data that was accessed under the warrant at a place other than the premises; or (b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
SECTION 3P Occupier entitled to be present during search (1)
If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
SECTION 3Q Receipts for things seized under warrant or moved (1)
If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable assisting must provide a receipt for the thing.
(2)
If 2 or more things are seized or moved, they may be covered in the one receipt.
SECTION 3R Warrants by telephone or other electronic means (1)
A constable may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2)
The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3)
An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4)
If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
(5)
If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(6)
The applicant must then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.
(7)
The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8)
The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9)
If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
SECTION 3S 3S Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person's body cavities.
SECTION 3SA
3SA
Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 3 - Stopping and searching conveyances
SECTION 3T
Searches without warrant in emergency situations
(1)
This section applies if a constable suspects, on reasonable grounds, that:
(a) a thing relevant to an indictable offence is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2)
The constable may:
(a) stop and detain the conveyance; and
(b) search the conveyance and any container in or on the conveyance, for the thing; and
(c) seize the thing if he or she finds it there.
(3)
If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and
(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.
(4)
The constable must exercise his or her powers subject to section 3U.
SECTION 3U 3U How a constable exercises a power under section 3T
When a constable exercises a power under section 3T in relation to a conveyance, he or she:
(a) may use such assistance as is necessary; and
(b) must search the conveyance in a public place or in some other place to which members of the public have ready access; and
(c) must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and
(d) may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:
Subdivision A - Definitions
SECTION 3UA
3UA
DEFINITIONS
In this Division:
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member (within the meaning of that Act); or
(c) a member, however, described, of a police force of a State or Territory.
(a) may be used in a serious offence; or
(b) is connected with the preparation for, or the engagement of a person in, a serious offence; or
(c) is evidence of, or relating to, a serious offence.
(a) an agency, body or authority that; or
(b) a person who;
(a) may be used in a terrorist act; or
(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist act.
Subdivision B - Powers
SECTION 3UB
Application of Subdivision
(1)
A police officer may exercise the powers under this Subdivision in relation to a person if:
(a) the person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act; or
(b) the person is in a Commonwealth place in a prescribed security zone.
(2)
This section does not limit the operation of section 3UEA.
SECTION 3UC
Requirement to provide name etc.
(1)
A police officer may request the person to provide the officer with the following details:
(a) the person's name;
(b) the person's residential address;
(c) the person's reason for being in that particular Commonwealth place;
(d) evidence of the person's identity.
(2)
If a police officer:
(a) makes a request under subsection (1); and
(b) informs the person:
(c) the person fails to comply with the request; or
(d) the person gives a name or address that is false in a material particular.
(3)
Subsection (2) does not apply if the person has a reasonable excuse.
SECTION 3UD Stopping and searching (1)
A police officer may: (a) stop and detain the person for the purpose of conducting a search under paragraph (b); and (b) conduct one of the followingsearches for a terrorism related item:
Informing a person of a right to make a complaint
(1A)
A police officer who stops and detains a person under this section must inform the person of any right the person has to make a complaint to: (a) the Commonwealth Ombudsman; or (b) a State or Territory police oversight body;
(1B)
Subsection (1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so because of circumstances of urgency.
Conditions relating to conduct of search of persons
(2)
A police officer who conducts a search of a person under this section must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search.
(3)
A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.
Other conditions relating to conduct of search of person or thing
(4)
In searching a thing (including a vehicle) under subsection (1), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless: (a) the person has been given a reasonable opportunity to open the thing or part of it; or (b) it is not possible to give that opportunity.
SECTION 3UE 3UE Seizure of terrorism related items and serious offence related items
If a police officer:
(a) conducts a search under section 3UD; and
(b) finds, in the course of the search, a thing that is:
SECTION 3UEA
Emergency entry to premises without warrant
(1)
A police officer may enter premises in accordance with this section if the police officer suspects, on reasonable grounds, that:
(a) it is necessary to exercise a power under subsection (2) in order to prevent a thing that is on the premises from being used in connection with a terrorism offence; and
(b) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person's life, health or safety.
(2)
The police officer may:
(a) search the premises for the thing; and
(b) seize the thing if he or she finds it there.
(3)
If, in the course of searching for the thing, the police officer finds another thing that the police officer suspects, on reasonable grounds, to be relevant to an indictable offence or a summary offence, the police officer may secure the premises pending the obtaining of a warrant under Part IAA in relation to the premises.
(4)
Premises must not be secured under subsection (3) for longer than is reasonably necessary to obtain the warrant.
(5)
In the course of searching for the thing, the police officer may also seize any other thing, or do anything to make the premises safe, if the police officer suspects, on reasonable grounds, that it is necessary to do so:
(a) in order to protect a person's life, health or safety; and
(b) without the authority of a search warrant because the circumstances are serious and urgent.
(6)
In exercising powers under this section:
(a) the police officer may use such assistance; and
(b) the police officer, or a person who is also a police officer and who is assisting the police officer, may use such force against persons and things; and
(c) a person (other than a police officer) who is authorised by the police officer to assist the police officer may use such force against things;
Notification
(7)
If one or more police officers have entered premises in accordance with this section, a police officer must, within 24 hours after the entry:
(a) notify the occupier of the premises that the entry has taken place; or
(b) if it is not practicable so to notify the occupier - leave a written notice of the entry at the premises.
SECTION 3UEB
Emergency entry to premises without warrant - post-entry warrants
Requirement to apply for post-entry warrant
(1)
A police officer who has entered premises under, or purportedly under, subsection 3UEA(1) must: (a) apply to an assessment officer for a warrant (a post-entry warrant ) under this section in relation to the entry to the premises; and (b) do so as soon as practicable after the exercise, or purported exercise, of powers under section 3UEA in relation to the premises.
(2)
The application must: (a) be in writing; and (b) set out:
(3)
The information in the application must be sworn or affirmed by the police officer.
Requesting further information or documents
(4)
The assessment officer may request, in writing, that the police officer provide further information or documents relating to the application, and that the police officer do so in a particular way.
(5)
If the police officer is unable to provide some or all of the further information or documents requested, the police officer must, within a reasonable period, notify the assessment officer: (a) of the information or documents that cannot be provided; and (b) of the reasons why the information or documents cannot be provided.
(6)
If the assessment officer is notified in accordance with subsection (5) that some or all of the further information or documents cannot be provided, the assessment officer must (unless there is another reason not to) continue to consider the application despite having not received the further information or documents.
Issue of warrant
(7)
The assessment officer must: (a) issue the post-entry warrant if, and only if, the assessment officer is satisfied, on the balance of probabilities, that in entering the premises the police officer suspected, on reasonable grounds, the matters mentioned in paragraphs 3UEA(1)(a) and (b); and (b) otherwise, refuse to issue the post-entry warrant.
(8)
The issue of, or refusal to issue, the post-entry warrant does not affect whether or not the exercise, or purported exercise, of powers under section 3UEA was valid.
Content of warrant
(9)
The post-entry warrant, if issued, must include the following: (a) the information mentioned in paragraphs (2)(c), (d), (e) and (j); (b) a statement of the reasons for issuing the warrant; (c) a statement that the warrant has been issued under this section.
Notification requirements
(10)
If the assessment officer issues the post-entry warrant, the assessment officer must give a copy of the warrant to the persons mentioned in subsection (12) as soon as reasonably practicable after issuing the warrant.
(11)
If the assessment officer refuses to issue the post-entry warrant: (a) the assessment officer must give written notice of the refusal to the persons mentioned in subsection (12) as soon as reasonably practicable after refusing to issue the warrant; and (b) the notice must include a statement of reasons for refusing to issue the warrant; and (c) in the case of a notice given to a person mentioned in paragraph (12)(d) - the notice must also contain information about any right the person may have to:
(12)
For the purposes of subsections (10) and (11), the persons are the following: (a) the police officer; (b) if the police officer is a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979) or a special member (within the meaning of that Act) - the Commissioner; (c) if the police officer is a member, however described, of a police force of a State or Territory - the Commissioner of Police in that police force or the person holding equivalent rank; (d) any current or former owners or occupiers of the premises:
Protection of information
(13)
Despite subsections (9) and (11), a post-entry warrant or notice of refusal must not include information if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
SECTION 3UF
Seizure notices
(1)
Seizure notice to be served.
(a) the owner of the thing; or
(b) if the owner of the thing cannot be identified after reasonable inquiries - the person from whom the thing was seized.
(2)
Subsection (1) does not apply if:
(a) both:
(b) it is not possible to serve the person required to be served under subsection (1).
(3)
A seizure notice must:
(a) identify the thing; and
(b) state the date on which the thing was seized; and
(c) state the ground or grounds on which the thing was seized; and
(d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.
(4)
(Repealed by No 4 of 2010)
(5)
(Repealed by No 4 of 2010)
(6)
(Repealed by No 4 of 2010)
(7)
(Repealed by No 4 of 2010)
(8) Forfeiture of thing seized.
(a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or
(b) if subsection (2) applied in relation to the thing so that a seizure notice was not served - before the end of the 90th day after the day on which the thing was seized. (9)
(Repealed by No 4 of 2010)
SECTION 3UG
3UG
Application to magistrate
(Repealed by No 4 of 2010)
SECTION 3UH
Relationship of Subdivision to other laws
(1)
The powers conferred, and duties imposed, by this Subdivision on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law ofa State or Territory.
(2)
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Subdivision.
Subdivision C - Prescribed security zones
SECTION 3UI
3UI
Applications for declarations
A police officer may apply to the Minister for a declaration that a Commonwealth place be declared as a prescribed security zone.
SECTION 3UJ
Minister may make declarations
Declaration
(1)
The Minister may declare, in writing, a Commonwealth place to be a prescribed security zone if he or she considers that a declaration would assist: (a) in preventing a terrorist act occurring; or (b) in responding to a terrorist act that has occurred.
(1A)
In deciding whether to make a declaration under subsection (1) in relation to a Commonwealth place on the ground mentioned in paragraph (1)(a) or (b), the Minister must have regard to: (a) whether the impact of the declaration on the rights of persons in the Commonwealth place would be:
Declaration has effect
(2)
A declaration under this section has effect accordingly.
Duration of declaration
(3)
A declaration ceases to have effect: (a) at the end of 28 days after it is made; or (b) if a shorter period is specified in the declaration - at the end of the shorter period;
Revocation of declaration
(4)
The Minister must revoke a declaration, in writing, if he or she is satisfied that: (a) in the case of a declaration made on the ground mentioned in paragraph (1)(a) - there is no longer a terrorism threat that justifies the declaration being continued; or (b) in the case of a declaration made on the ground mentioned in paragraph (1)(b) - the declaration is no longer required.
Gazettal and publication of declaration
(5)
If a declaration of a Commonwealth place as a prescribed security zone under this section is made or revoked, the Minister must arrange for: (a) a statement to be prepared that:
Notification of declaration
(5A)
If a declaration of a Commonwealth place as a prescribed security zone under this section is made at a particular time, the Commissioner must: (a) as soon as practicable after that time; and (b) in any event, within 72 hours after that time;
Reasons for making determination
(5B)
If a declaration was made under this section in relation to a Commonwealth place, the Minister must: (a) give the Parliamentary Joint Committee on Intelligence and Security a written statement setting out the reasons for the making of the declaration; and (b) do so as soon as practicable after the declaration was made.
Effect of failure to publish or notify
(6)
A failure to comply with subsection (5) or (5A) does not make the declaration or its revocation ineffective to any extent.
Effect of failure to give statement of reasons
(6A)
A failure to comply with subsection (5B) does not make the declaration ineffective to any extent.
Declaration or revocation not legislative instruments
(7)
A declaration or revocation made under this section is not a legislative instrument.
Subdivision CA-Reporting on exercise of powers under this Division
SECTION 3UJA
Report after powers are exercised
(1)
As soon as practicable after the exercise of a power or powers by an AFP police officer (or officers) under Subdivision B in relation to an incident, the Commissioner must give a report to the following:
(a) the Minister;
(b) the Independent National Security Legislation Monitor;
(c) the Parliamentary Joint Committee on Intelligence and Security.
(2)
The report must state, in relation to the incident:
(a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF; and
(b) the circumstances in which an AFP police officer (or officers) exercised powers under section 3UC or 3UD.(a) for section 3UC - requirement to provide names etc.;
(b) for section 3UD - stopping and searching;
(c) for section 3UE - seizure of terrorism related items and serious offence related items;
(d) for section 3UEA - emergency entry to premises without a warrant;
(e) for section 3UF - seizure notices.
(3)
An
SECTION 3UJB
Annual report on exercise of powers
(1)
The Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the exercise of powers under this Division, during the year ended on that 30 June.
(2)
Without limiting subsection (1), a report relating to a year must include the following matters: (a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF; (b) the number of incidents when an AFP police officer (or officers) exercised powers under section 3UC or 3UD; (c) the number of applications made under section 3UI for declarations that Commonwealth places are prescribed security zones; (d) the number of declarations made under section 3UJ that Commonwealth places are prescribed security zones; (e) the number of applications made by AFP police officers under section 3UEB for post-entry warrants; (f) the number of post-entry warrants issued under section 3UEB in response to applications made by AFP police officers; (g) the number of refusals to issue a post-entry warrant under section 3UEB in response applications made by AFP police officers.
(3)
The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
(4)
An
Subdivision CB - Matters relating to post-entry warrants
SECTION 3UJC
Assessment officers
(1)
An assessment officer is: (a) a person:
(2)
A function or power conferred on a Judge by this Division is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3)
A Judge has, in relation to the performance or exercise of a function or power conferred on an assessment officer by this Division, the same protection and immunity as if the Judge were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
SECTION 3UJD
Consent of Judges
(1)
A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an assessment officer by the Minister administering the Judiciary Act 1903 under subsection (2).
(2)
The Minister administering the Judiciary Act 1903 may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an assessment officer for the purposes of this Division.
(3)
A consent or declaration under this section is not a legislative instrument.
SECTION 3UJE
Nominated ART members
(1)
The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister ) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue post-entry warrants and perform related functions under this Act: (a) Deputy President; (b) a senior member appointed on a salaried basis.
(2)
Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member on a salaried basis of the Tribunal unless the person: (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and (b) has been so enrolled for not less than 5 years.
(3)
A nomination ceases to be in force if: (a) the nominated ART member ceases to hold an appointment described in subsection (1); or (b) the ART Minister, by writing, withdraws the nomination.
Subdivision D - Sunset provision
SECTION 3UK
Sunset provision
(1)
A police officer must not exercise powers or perform duties under this Division (other than undersection 3UEB or 3UF) after 7 December 2026.
(2)
A declaration under section 3UJ that is in force at the end of 7 December 2026 ceases to be in force at that time.
(3)
A police officer cannot apply for, and the Minister cannot make, a declaration under section 3UJ after 7 December 2026.
Division 3B - Identity information requirements, and move-on powers, at airports
SECTION 3UL
3UL
Definitions - Division 3B
In this Division:
(a) the government of the Commonwealth or a State or Territory; or
(b) the government of a foreign country or part of a foreign country.
(a) means a document (such as a driver's licence, birth certificate, credit card or identity card) that evidences or indicates, or can be used to evidence or indicate, a person's identity or any aspect of a person's identity; but
(b) does not include a document prescribed by regulation for the purposes of this definition.
SECTION 3UM
Meaning of
major airport
(1)
For the purposes of this Division, each of the following airports is a major airport :
(a) Adelaide Airport;
(b) Alice Springs Airport;
(c) Brisbane Airport;
(d) Canberra Airport;
(e) Darwin International Airport;
(f) Gold Coast Airport;
(g) Hobart International Airport;
(h) Launceston Airport;
(i) Melbourne (Tullamarine) Airport;
(j) Perth Airport;
(k) Sydney (Kingsford-Smith) Airport;
(l) Townsville Airport;
(m) an airport determined by the Minister under section 3UO.
(2)
A reference in this Division to a major airport includes a reference to:
(a) for an airport mentioned in paragraphs (1)(a) to (l) - the place made up of the land described in relation to the airport in regulations made for the purposes of the definition of airport site in section 5 of the Airports Act 1996; and
(b) for an airport determined by the Minister under section 3UO - the place made up of the land described in the determination in relation to the airport; and
(c) for any airport mentioned in subsection (1) - any building, structure, installation or equipment situated on the relevant land mentioned in paragraph (a) or (b) of this subsection.
SECTION 3UN
Meaning of
public order and safe operation
(1)
In this Division, the public order and safe operation of a major airport means:
(a) the public order of the airport, or flights to and from the airport; or
(b) the safety of persons at the airport, or on flights to and from the airport; or
(c) the safe operation of the airport, or flights to and from the airport.
(2)
However, the exercise of a person's right to engage lawfully in advocacy, protest, dissent or industrial action is not, by itself, to be regarded as prejudicial to the public order and safe operation of a major airport.
SECTION 3UO
Determination of airports
(1)
The Minister may, by legislative instrument, determine an airport for the purposes of the definition of major airport in section 3UM.
(2)
A determination of an airport under subsection (1) must include a description of land in relation to the airport for the purposes of paragraph 3UM(2)(b).
(3)
This Division applies in relation to an airport determined under subsection (1) only if the airport is ordinarily used for the purposes of any of the following:
(a) flights that start or end in a Territory;
(b) flights between Australia and a foreign country in which aircraft are used in the course of trade or commerce, for the carriage of passengers;
(c) flights between one State and another State in which aircraft are used in the course of trade or commerce, for the carriage of passengers.
(4)
This Division may apply in relation to an airport determined under subsection (1) even if the airport is also used for a purpose other than a purpose mentioned in subsection (3).
SECTION 3UP
Identity information at airports
Direction togive identity information
(1)
A constable or a protective service officer may direct a person to give the constable or officer evidence of the person's identity if:
(a) the direction is given at a major airport; and
(b) the constable or officer:
Evidence of identity
(2)
A person must comply with a direction under subsection (1) by:
(a) producing a government photographic identity document issued in relation to the person; or
(b) if the person does not produce such a document - producing:
(c) if the person does not produce an identity document (or documents) under paragraph (a) or (b) - giving the constable or officer the person's name, address and date of birth.
SECTION 3UQ
Move-on directions at airports
When may a direction be given?
(1)
A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) one or more of the following applies:
(2)
Relevant criminal activity is criminal activity involving the commission of an offence that is punishable by imprisonment for 12 months or more, against either of the following:
(a) a law of the Commonwealth or a Territory;
(b) a law of a State having a federal aspect.
What type of direction may be given?
(3)
The constable or officer may give a written direction to the person requiring the person to do either or both of the following:
(a) not to take a specified flight, or any flight, to or from that airport, or any specified major airport, for a specified period of no more than 24 hours after the direction is given;
(b) to leave the airport as soon as practicable, and not enter that airport, or any other specified major airport, for a specified period of no more than 24 hours after the direction is given.
(4)
However, a direction covering a period of more than 12 hours must be given, or authorised (orally or in writing), by a senior police officer.
(5)
If a senior police officer orally authorises a direction under subsection (4), the senior police officer must record the authorisation in writing as soon as practicable afterwards.
(6)
A senior police officer is a constable:
(a) having the rank of sergeant or an equivalent rank, or higher; or
(b) with formal authorisation to act as a constable having such a rank.
(7)
A direction given to a person under this section must be in a form approved in writing by the Minister.
(8)
A form approved for the purposes of subsection (7) must, without limitation, include the following to assist a person to whom a direction is given to apply for judicial review, or interlocutory orders, in relation to the giving of the direction:
(a) details to enable the person to contact a Federal Court registry in the State or Territory in which the direction is given, or a requirement for the constable or officer giving the direction to include such details;
(b) any other information the Minister considers appropriate to assist the person to make such applications, for example information relating to the procedure for urgent or expedited applications.
Restriction on later directions within 7 days
(9)
After a direction (the earlier direction ) is given to a person under this section, a later direction under this section may be given to a person within 7 days after the earlier direction was given only if:
(a) subsection (1) applies (or continues to apply) in relation to the person at the time the later direction is given; and
(b) the later direction is given, or authorised (orally or in writing), by a senior police officer; and
(c) no more than one later direction under this section is given within that 7-day period; and
(d) the later direction covers a period that would end no later than 7 days after the earlier direction was given, at the same time of day at the place at which the earlier direction was given.
SECTION 3UR
3UR
Move-on directions at airports - alternative constitutional scope
Without limiting its effect apart from this section, section 3UQ also has the effect it would have if the definition of major airport in section 3UM did not include an airport determined by the Minister under section 3UO.
SECTION 3US
Stop and directions powers at airports
(1)
A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) the constable or officer considers on reasonable grounds that it is necessary to give the direction to facilitate the exercise of a power under section 3UP (identity information at airports) or section 3UQ (move-on directions at airports).
(2)
The constable or officer may direct the person:
(a) to stop; or
(b) to do anything else the constable or officer considers on reasonable grounds to be necessary to facilitate the exercise of a power under section 3UP or 3UQ.
SECTION 3UT
Constables' and protective service officers' duties at airports
Scope of section
(1)
A constable or protective service officer must comply with this section in relation to a direction given to a person under:
(a) section 3UP (identity information at airports); or
(b) section 3UQ (move-on directions at airports).
Evidence of constable's or protective service officer's status or identity etc.
(2)
The constable or officer must:
(a) if not in uniform - before the direction is given, show the person evidence that the constable is a constable, or that the officer is an officer; and
(b) if the person so requests before or after the direction is given - comply with subsection (3); and
(c) in any case - before the direction is given, inform the person that it may be an offence not to comply with the direction, or to give the constable or officer a false or misleading document, or false or misleading information, in response to the direction.
(3)
The constable or officer must give the person any of the following information if requested by the person:
(a) the constable's or officer's name;
(b) the address of the constable's or officer's place of duty;
(c) the constable's or officer's identification number (if any);
(d) if the constable or officer has no identification number - the constable's or officer's rank.
SECTION 3UU
Directions at airports - offences
Contravening directions
(1)
A person commits an offence if:
(a) the person is given a direction by a constable or protective service officer under:
(b) the person engages in conduct; and
(c) the conduct contravenes the direction; and
(d) in the case of a direction given under section 3UP or 3UQ - the constable or officer complies with section 3UT (constables' and protective service officers' duties at airports).
(2)
Absolute liability applies to paragraph (1)(d).(a) giving false or misleading information (see section 137.1 of the Criminal Code);
(b) producing a false or misleading document (see section 137.2 of the Criminal Code);
(c) obstructing a Commonwealth public official (see section 149.1 of the Criminal Code).
Failure by constable or protective service officer to give status or identity information etc.
(3)
A person commits an offence if:
(a) the person is subject to a requirement under section 3UT (constables' and protective service officers' duties at airports); and
(b) the person engages in conduct; and
(c) the conduct breaches the requirement.
(4)
In this section:
(a) do an act; or
(b) omit to perform an act.
SECTION 3UV
Review of Division
(1)
The Parliamentary Joint Committee on Intelligence and Security must review:
(a) the operation, effectiveness and implications of this Division; and
(b) security matters relating to major airports.
(2)
The Committee must begin the review before the end of the period of 3 years beginning on the day the Crimes Legislation Amendment (Police Powers at Airports) Act 2019 commenced.
(3)
The Committee must report on the review to each House of the Parliament before the end of the period of 9 months beginning on the day the review commences.
Division 4 - Arrest and related matters
SECTION 3V
Requirement to furnish name etc.
(1)
If a constable believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the constable may be able to assist the constable in inquiries in relation to an indictable offence that the constable has reason to believe has been or may have been committed, the constable may request the person to provide his or her name or address, or name and address, to the constable.
(2)
If a constable:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) complies with subsection (3) if the person makes a request under that subsection;
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
(2A)
Subsection (2) does not apply if the person has a reasonable excuse.
(3)
If a constable who makes a request of a person under subsection (1) is requested by the person to provide to the person:
(a) his or her name or the address of his or her place of duty; or
(b) his or her name and that address; or
(c) if he or she is not in uniform and it is practicable for the constable to provide the evidence-evidence that he or she is a constable;
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
SECTION 3W Power of arrest without warrant by constables (1)
A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code) if the constable believes on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(2)
If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds:
(3)
A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
SECTION 3WA Constables' power of arrest without warrant for a terrorism offence or offence of advocating terrorism (1)
A constable may, without warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(2)
If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to suspect on reasonable grounds:
SECTION 3X
Arrest of prisoner unlawfully at large
(1)
A constable may, without warrant, arrest a person whom the constable believes on reasonable grounds to be a prisoner unlawfully at large.
(2)
The constable must, as soon as practicable, take the person before a Magistrate.
(3)
If the Magistrate is satisfied that the person is a prisoner unlawfully at large, the Magistrate may issue a warrant:
(a) authorising any constable to convey the person to a prison or other place of detention specified in the warrant; and
(b) directing that the person, having been conveyed to that place in accordance with the warrant, be detained there to undergo the term of imprisonment or other detention that the person is required by law to undergo.
(4)
In this section:
SECTION 3Y Power of arrest without warrant of person on bail (1)
A constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is.
(2)
Subject to subsection (3), if a constable arrests a person under subsection (1), the constable must cause the person to be brought before a magistrate as soon as is practicable.
(3)
If a constable arrests a person under subsection (1) in the State or Territory in which the condition was imposed, the person is to be dealt with according to relevant laws of that State or Territory applied by section 68 of the Judiciary Act 1903.
(4)
When a person arrested under subsection (1) in a State or Territory other than the one in which the condition was imposed is brought before a magistrate in the State or Territory in which the arrest took place, the court may:
(a) release the person unconditionally; or
(b) admit the person to bail on such recognisances as the court thinks fit to appear again before the same court at such time as the court orders; or
(c) if the condition was not imposed by the Federal Court of Australia - remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from the State or Territory in which the condition was imposed; or
(d) if the condition was imposed by the Federal Court of Australia - remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from that Court.
(5)
A release referred to in paragraph (4)(a) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
SECTION 3Z Power of arrest without warrant by other persons (1)
A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that:
(a) the other person is committing or has just committed an indictable offence; and
(b) proceedings by summons against the other person would not achieve one or more of the purposes referred to in paragraph 3W(1)(b).
(2)
A person who arrests another person under subsection (1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.
SECTION 3ZA Warrants for arrest (1)
An issuing officer must not, under a law of a State or Territory applied by section 68 of the Judiciary Act 1903, issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless:
(a) the information is on oath; and
(b) except where the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country-the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including:
(c) if the issuing officer has requested further information concerning the reasons for which the issue of the warrant is sought-that information has been provided to the officer; and
(d) the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.
(2)
If an issuing officer issues such a warrant, the officer must write on the affidavit which of the reasons specified in the affidavit, and any other reasons, he or she has relied on as justifying the issue of the warrant.
SECTION 3ZB Power to enter premises to arrest offender (1)
Subject to subsection (3), if:
(a) a constable has, under a warrant, power to arrest a person for an offence; and
(b) the constable believes on reasonable grounds that the person is on any premises;
(2)
Subject to subsection (3), if:
(a) a constable may, under section 3W or 3WA, arrest a person without warrant for an offence; and
(b) the offence is an indictable offence; and
(c) the constable believes on reasonable grounds that the person is on any premises;
(3)
A constable must not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the constable believes on reasonable grounds that:
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4)
In subsection (3):
SECTION 3ZC Use of force in making arrest (1)
A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2)
Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or
(b) if the person is attempting to escape arrest by fleeing-do such a thing unless:
SECTION 3ZD Persons to be informed of grounds of arrest (1)
A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2)
It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3)
Subsection (1) does not apply to the arrest of the other person if:
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person's actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
SECTION 3ZE 3ZE Power to conduct a frisk search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at or soon after the time of arrest; and
(b) seize any seizable items found as a result of the search. SECTION 3ZF 3ZF Power to conduct an ordinary search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to that or another offence; or
(b) a seizable item;
A constable who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the constable believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence; or
(b) seizable items. SECTION 3ZH Power to conduct an ordinary search or a strip search (1)
If a person who has been arrested for an offence is brought to a police station, a constable may:
(a) if an ordinary search of the person has not been conducted - conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(2)
A strip search may be conducted if:
(a) a constable suspects on reasonable grounds that the person has in his or her possession:
(b) the constable suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item or evidential material; and
(c) a constable of the rank of superintendent or higher has approved the conduct of the search.
(2A)
If:
(a) in the course of carrying out a strip search, the constable comes to believe on reasonable grounds that the carrying out of a forensic procedure would be likely to produce evidence relating to the offence for which the person has been arrested or any other offence; and
(b) Part ID provides for the carrying out of such a forensic procedure;
(2B)
The conducting of a strip search may include taking photographs of evidential material found on the person, whether or not taking photographs is a forensic procedure provided for by Part ID.
(3)
Subject to section 3ZI, a strip search may also be conducted if the person consents in writing.
(3A)
Subsection (3) does not authorise the conduct of a strip search for the purpose of obtaining forensic material as defined in Part ID. Such a search must not be conducted except in accordance with Part ID.
(4)
Subject to section 3ZI, a strip search may be conducted in the presence of a medical practitioner who may assist in the search.
(5)
The approval may be obtained by telephone, telex, fax or other electronic means.
(6)
A constable who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
(7)
Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
(8)
Any item of a kind referred to in paragraph (2)(a) that is found during a strip search may be seized.
SECTION 3ZI Rules for conduct of strip search (1)
A strip search:
(a) must be conducted in a private area; and
(b) must be conducted by a constable who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10; and
(f) if the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs:
(g) must not involve a search of a person's body cavities; and
(h) must not involve the removal of more garments than the constable conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person's involvement in the offence; and
(i) must not involve more visual inspection than the constable believes on reasonable grounds to be necessary to establish the person's involvement in the offence.
(2)
In deciding whether to make an order referred to in paragraph (1)(f), the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(3)
A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(4)
Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(5)
If any of a person's garments are seized as a result of a strip search, the person must be provided with adequate clothing.
SECTION 3ZJ TAKING FINGERPRINTS, RECORDINGS, SAMPLES OF HANDWRITING OR PHOTOGRAPHS 3ZJ(1)
In this section and in sections 3ZK and 3ZL:
3ZJ(2)
A constable must not:
(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or
(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.
3ZJ(3)
If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the constable believes on reasonable grounds that it is necessary to do so to:
(ba) both of the following apply:
(c) the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.
3ZJ(4)
A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.
3ZJ(5)
Subject to subsection (9), a constable must not take identification material from a person who is under 10.
3ZJ(6)
Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
3ZJ(6A)
A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
3ZJ(7)
In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
3ZJ(8)
The taking of identification material from a person who:
(a) is under 18; or
(b) is incapable of managing his or her affairs;
(c) a parent or guardian of the person; or
(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
3ZJ(9)
Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is under 10 or is incapable of managing his or her affairs;
3ZJ(10)
Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is at least 10 but under 18; and
(c) is capable of managing his or her affairs;
(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;
(e) if:
3ZJ(11)
In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).
3ZJ(12)
Despite this section, identification material may be taken from a person who:
(a) is at least 18; and
(b) is capable of managing his or her affairs; and
(c) is not a suspect;
SECTION 3ZK Destruction of identification material (1)
If:
(a) identification material has been taken from a person under section 3ZJ; and
(b) a period of 12 months has elapsed since the identification material was taken; and
(c) proceedings in respect of an offence to which the investigationmaterial relates have not been instituted or have been discontinued;
(2)
If identification material has been taken from a person under section 3ZJ and:
(a) the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or
(b) the person is acquitted of such an offence and:
(3)
A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.
SECTION 3ZL Offence of refusing to allow identification material to be taken (1)
If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:
(a) the person to attend a police station; or
(b) that a constable be permitted to attend on the person in a place of detention;
(2)
A person must not, without reasonable excuse, refuse or fail to allow those impressions or a photograph of the person to be taken.
(3)
Subsection (2) does not apply if the person has a reasonable excuse.
(3A)
The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person's fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.
(3B)
A person commits an offence if:
(a) the person is subject to an order under subsection (3A); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the order.
(3C)
In this section:
(a) do an act; or
(b) omit to perform an act.
(4)
Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.
(5)
In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).
SECTION 3ZM Identification parades (1)
This section applies to identification parades held in relation to offences.
(2)
Subject to subsection (3) and to section 3ZN, an identification parade:
(a) may be held if the suspect agrees; or
(b) must be held if:
(2A)
Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(3)
An identification parade must not be held unless the suspect has been informed that:
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade:
(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect's choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4)
The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.
(5)
An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.
(6)
Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:
(a) the parade must consist of at least 9 persons;
(b) each of the persons who is not the suspect must:
(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than one witness is to view the parade:
(k) each witness must be told that:
(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording:
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7)
Nothing in this Act affects the determination of the following questions:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8)
If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.
SECTION 3ZN Identification parades for suspects under 18 etc. (1)
An identification parade must not be held for a suspect who is under 10.
(2)
An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.
(3)
An identification parade must not be held for a suspect who:
(a) is at least 10 but under 18; and
(b) is capable of managing his or her affairs;
(c) the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;
(d) if:
(4)
In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(5)
An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:
(a) a parent or guardian of the suspect; or
(b) if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.
SECTION 3ZO Identification by means of photographs (1)
If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:
(a) the suspect has refused to take part in an identification parade; or
(aa) the suspect's appearance has changed significantly since the offence was committed; or
(b) the holding of an identification parade would be:
(1A)
Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(2)
If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;
(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.
(3)
If:
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
(4)
If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5)
If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
(6)
If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.
(7)
If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
SECTION 3ZP 3ZP Identification procedures where there is more than one suspect
If:
(a) a constable is attempting to ascertain:
(b) for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;
If a description of a suspect is given to a constable in relation to an offence, the constable must ensure that a record of the description is made and that the record is retained until any proceedings in respect of the offence are completed.
(2)
Subject to subsection (4), a constable must, if requested to do so by a person who has been charged with an offence, provide the person with the name of every person who, to the knowledge of the constable, claims to have seen, at or about the time of the commission of the offence, a person who is suspected of being involved in its commission.
(3)
If:
(a) a record of a description of a person is made under subsection (1); and
(b) the person is charged with an offence to which the description relates;
(4)
If the constable suspects on reasonable grounds that providing the name of a person under subsection (2) could:
(a) place the person in danger; or
(b) expose the person to harassment or unreasonable interference;
Division 4A - Determining a person's age
Subdivision A - Preliminary
SECTION 3ZQA
Definitions
(1)
In this Division:
(a) having suitable professional qualifications or experience to carry out the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed procedure.
(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.
(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.
(2)
The regulations may specify a particular procedure to be a prescribed procedure for determining a person's age.
(3)
a procedure prescribed for the purposes of subsection (2):
(a) may involve the operation of particular equipment that is specified for the purpose; and
(b) must require that equipment to be operated by an appropriately qualified person.
(4)
Before the Governor-General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.
Subdivision B - Determination of age during investigation
SECTION 3ZQB
Circumstances where investigating official may seek authority to carry out a prescribed procedure
3ZQB(1)
If:
(a) an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person's detention, the investigation of the offence or the institution of criminal proceedings;
(c) the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.
3ZQB(2)
An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
3ZQB(3)
In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the application of the rules governing the person's detention, the investigation of the offence or the institution of criminal proceedings.
SECTION 3ZQC Obtaining of consents for the carrying out of a prescribed procedure 3ZQC(1)
For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the procedure;
(b) either:
3ZQC(2)
Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:
(a) the purpose and reasons for which the prescribed procedure is to be carried out; and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular equipment - the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and
(e) the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and
(ea) that the persons giving the requisite consent may withdraw that consent at any time; and
(f) that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a copy of that record; and
(h) that the person on whom the procedure is to be carried out may have, so far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.
3ZQC(3)
The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
3ZQC(4)
Nothing in this section affects the rights of a person under Part IC, in particular a person's rights under:
(a) section 23G (Right to communicate with friend, relative and legal practitioner); or
(b) section 23P (Right of foreign national to communicate with consular office).
SECTION 3ZQD 3ZQD Withdrawal of consent
If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person's conduct) before or during the carrying out of the procedure, the carrying out of the procedure is not to proceed otherwise than by order of a magistrate on the application of an investigating official.
SECTION 3ZQE
Recording of giving of information about carrying out a prescribed procedure and relevant responses
3ZQE(1)
An investigating official must, if practicable, ensure that:
(a) the giving of information about a prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
3ZQE(2)
If recording the giving of information and the responses (if any) of the persons to whom the information is given in the manner referred to in subsection (1) is not practicable, the investigating official must ensure that:
(a) a written record of the giving of the information and of the responses (if any) is made; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
Subdivision C - Determination of age during proceedings
SECTION 3ZQF
3ZQF
Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative
If:
(a) a person is being prosecuted for a Commonwealth offence; and
(b) the judge or magistrate presiding over the proceedings related to that offence is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of that offence, under 18;
Subdivision D - Communication of orders by judges or magistrates
SECTION 3ZQG
Orders made by judges or magistrates concerning carrying out of a prescribed procedure
3ZQG(1)
If a judge or a magistrate orders the carrying out of a prescribed procedure (whether as a result of a request by an investigating official or not), the judge or magistrate must:
(a) ensure that a written record of the order, and of the reasons for the making of the order, is kept; and
(b) ensure that the person on whom the procedure is to be carried out is told by an investigating official in a language in which the person is able to communicate with reasonable fluency:
3ZQG(2)
The judge or magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision E - Matters relating to the carrying out of prescribed procedures
SECTION 3ZQH
3ZQH
Appropriate medical or other standards to be applied
A prescribed procedure must be carried out in a manner consistent with either or both of the following:
(a) appropriate medical standards;
(b) appropriate other relevant professional standards.
SECTION 3ZQI
3ZQI
Reasonable and necessary force
Except where the carrying out of a prescribed procedure to determine a person's age is undertaken with the consent of that person and of an additional adult person in accordance with section 3ZQC, the person carrying out the procedure, and any person assisting that person, is entitled to use such force as is reasonable and necessary in the circumstances.
Subdivision F - Disclosure and destruction of age determination information
SECTION 3ZQJ
Disclosure of age determination information
(1)
A person commits an offence if:
(a) the person's conduct causes the disclosure of age determination information other than as provided by this section; and
(b) the person is reckless as to any such disclosure.
(2)
A person may only disclose age determination information:
(a) for a purpose related to establishing and complying with the rules governing:
(b) for a purpose related to the conduct of:
(c) for the purpose of an investigation by the Information Commissioner of the Commonwealth or the Commonwealth Ombudsman; or
(d) if the person to whom the age determination information relates consents in writing to the disclosure.
SECTION 3ZQK
Destruction of age determination information
3ZQK(1)
If, in relation to a Commonwealth offence:
(a) age determination information relating to a person has been obtained by carrying out a prescribed procedure; and
(b) 12 months have passed since the carrying out of the procedure; and
(c) proceedings in respect of the offence have not been instituted against the person from whom the information was taken or have discontinued;
3ZQK(2)
If, in relation to a Commonwealth offence, age determination information relating to a person has been obtained by carrying out a prescribed procedure and:
(a) the person is found to have committed the offence but no conviction is recorded; or
(b) the person is acquitted of the offence and:
3ZQK(3)
A magistrate may, on application by an investigating official, extend the period of 12 months referred to in subsection (1), or that period as previously extended under this subsection in relation to the information, if the magistrate is satisfied that there are special reasons for doing so.
Division 4B - Power to obtain information and documents
Subdivision A - Definitions
SECTION 3ZQL
3ZQL
Definition
In this Division:
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) a senior executive AFP employee who:
Subdivision B - Power to request information or documents about terrorist acts from operators of aircraft or ships
SECTION 3ZQM
POWER TO REQUEST INFORMATION OR DOCUMENTS ABOUT TERRORIST ACTS FROM OPERATORS OF AIRCRAFT OR SHIPS
3ZQM(1)
This section applies if an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents (including in electronic form) that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).
3ZQM(2)
The officer may:
(a) ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter; or
(b) request the operator to produce documents relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage:
3ZQM(3)
A person who is asked a question or requested to produce a document under subsection (2) must answer the question or produce the document as soon as practicable.
3ZQM(4) Offence.
(a) the person is an operator of an aircraft or ship; and
(b) the person is asked a question or requested to produce a document under subsection (2); and
(c) the person fails to answer the question or produce the document.
Subsection (4) is an offence of strict liability.
3ZQM(6)
It is a defence to a prosecution for an offence against subsection (4) if the person charged had a reasonable excuse for:
(a) failing to answer the question; or
(b) failing to produce the document.
3ZQM(7) Definitions.
Subdivision C - Power to obtain documents relating to serious terrorism and non-terrorism offences
SECTION 3ZQN
Power to obtain documents relating to serious terrorism offences
(1)
This section applies if an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious terrorism offence.
(2)
The officer may give the person a written notice requiring the person to produce documents that:
(a) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(b) are in the possession or under the control of the person.
(3)
The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) specify the day by which the person must comply with the notice, being a day that is at least:
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
SECTION 3ZQO
Power to obtain documents relating to serious offences
(1)
An authorised AFP officer may apply to a Judge of the Federal Circuit and Family Court of Australia (Division 2) for a notice under this section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence.
(2)
If the Judge is satisfied on the balance of probabilities, by information on oath or by affirmation, that: (a) the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence; and (b) giving the person a notice under this section is reasonably necessary, and reasonably appropriate and adapted, for the purpose of investigating the offence;
(3)
The Judge must not give the notice unless the authorised AFP officer or some other person has given to the Judge, either orally or by affidavit, such further information (if any) as the Judge requires concerning the grounds on which the issue of the notice is being sought.
(4)
The notice must: (a) specify the name of the person to whom the notice is given; and (b) specify the matters to which the documents to be produced relate; and (c) specify the manner in which the documents are to be produced; and (d) specify the place at which the documents are to be produced; and (e) state that the person must comply with the notice within 14 days after the day on which the notice is given; and (f) set out the effect of section 3ZQS (offence for failure to comply); and (g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
SECTION 3ZQP 3ZQP Matters to which documents must relate
A document to be produced under a notice under section 3ZQN or 3ZQO must relate to one or more of the following matters:
(a) determining whether an account is held by a specified person with a specified financial institution, and details relating to the account (including details of any related accounts);
(b) determining whether a specified person is a signatory to an account with a specified financial institution, and details relating to the account (including details of any related accounts);
(c) determining whether a transaction has been conducted by a specified financial institution on behalf of a specified person, and details relating to the transaction (including details relating to other parties to the transaction);
(d) determining whether a specified person travelled or will travel between specified dates or specified locations, and details relating to the travel (including details relating to other persons travelling with the specified person);
(e) determining whether assets have been transferred to or from a specified person between specified dates, and details relating to the transfers (including details relating to the names of any other persons to or from whom the assets were transferred);
(f) determining whether an account is held by a specified person in respect of a specified utility (such as gas, water or electricity), and details relating to the account (including the names of any other persons who also hold the account);
(g) determining who holds an account in respect of a specified utility (such as gas, water or electricity) at a specified place, and details relating to the account;
(h) determining whether a telephone account is held by a specified person, and details relating to the account (including:
(i) determining who holds a specified telephone account, and details relating to the account (including details mentioned in paragraph (h));
(j) determining whether a specified person resides at a specified place;
(k) determining who resides at a specified place.
SECTION 3ZQQ
Powers conferred on Judges of the Federal Circuit and Family Court of Australia (Division 2) in their personal capacity
(1)
A power conferred on a Judge of the Federal Circuit and Family Court of Australia (Division 2) by section 3ZQO is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(2)
A Judge of the Federal Circuit and Family Court of Australia (Division 2) need not accept the power conferred.
(3)
A Judge of the Federal Circuit and Family Court of Australia (Division 2) exercising a power conferred by section 3ZQO has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the Judge is a member.
SECTION 3ZQR
Documents must be produced
(1)
A person is not excused from producing a document under section 3ZQN or 3ZQO on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or
(c) would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or
(d) would be otherwise contrary to the public interest.
(2)
However, neither:
(a) the production of the document; nor
(b) any information, document or thing obtained as a direct or indirect consequence of producing the document;
(3)
A person is not liable to any penalty by reason of his or her producing a document when required to do so under section 3ZQN or 3ZQO.
(4)
The fact that a person is not excused under subsection (1) from producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.
SECTION 3ZQS 3ZQS Offence for failure to comply with notice under section 3ZQN or 3ZQO
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the person fails to comply with the notice.
SECTION 3ZQT
Offence for disclosing existence or nature of notice
(1)
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the notice specifies that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
(2)
Subsection (1) does not apply if:
(a) the person discloses the information to another person in order to obtain a document that is required by the notice in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or
(b) the disclosure is made to obtain legal advice or legal representation in relation to the notice; or
(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.
Divison 4C - Using, sharing and returning things seized and documents produced
Subdivision A - Using and sharing things seized and documents produced
SECTION 3ZQU
Purposes for which things and documents may be used and shared
Use and sharing of thing or document by constable or Commonwealth officer
(1)
A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose: (a) preventing, investigating or prosecuting an offence; (b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; (c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect; (d) proceedings for the forfeiture of the thing under a law of the Commonwealth; (e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105, 105A or 395 of the Criminal Code; (f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part; (g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act; (h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988; (i) conducting a NACC Act process (within the meaning of the National Anti-Corruption Commission Act 2022); (j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i); (k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection; (l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2)
A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3)
A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4)
To avoid doubt, this section does not limit any other law of the Commonwealth that: (a) requires or authorises the use of a document or other thing; or (b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5)
A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to: (a) a State or Territory law enforcement agency; or (b) an agency that has responsibility for:
Ministerial arrangements for sharing
(6)
This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for: (a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and (b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Definition
(7)
In this section:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad-based Anti-corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commission Against Corruption of South Australia.
SECTION 3ZQV
Operating seized electronic equipment
(1)
This section applies to electronic equipment seized under this Part or moved under section 3K.
(2)
The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
(3)
The data referred to in subsection (2) includes, but is not limited to, the following: (a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized; (b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(3A)
If the electronic equipment was seized under a warrant, subsection (2) does not apply to data that was generated after the expiry of the warrant.
(4)
If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.
(5)
This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.
SECTION 3ZQW
COMPENSATION FOR DAMAGE TO ELECTRONIC EQUIPMENT
3ZQW(1)
This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZQV:
(b) the damage or corruption occurs because:
3ZQW(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
3ZQW(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
3ZQW(4)
In determining the amount of compensation payable, regard is to be had to whether any appropriate warning or guidance was provided, before the equipment was operated, on the operation of the equipment.
3ZQW(5)
Compensation is payable out of money appropriated by the Parliament.
3ZQW(6)
For the purposes of subsection (1):
Subdivision B - Returning things seized and documents produced
SECTION 3ZQX
WHEN THINGS SEIZED OR DOCUMENTS PRODUCED UNDER DIVISION 2, 4 OR 4B MUST BE RETURNED
When things seized under Division 2 or 4 must be returned
3ZQX(1)
If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
3ZQX(2)
However, the Commissioner does not have to take those steps if:
(aa) either:
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
When documents produced under Division 4B must be returned
3ZQX(3)
If the Commissioner is satisfied that a document produced under Division 4B is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the document to the person who produced the document or to the owner if that person is not entitled to possess it.
3ZQX(4)
However, the Commissioner does not have to take those steps if:
(a) either:
(b) the document may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the document is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
Subdivision C - (Repealed by No 2 of 2011)
SECTION 3ZQY
WHEN THINGS SEIZED UNDER DIVISION 3 MUST BE RETURNED
3ZQY(1)
If:
(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(b) the period of 60 days after the thing's seizure ends;
3ZQY(2)
However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) either:
(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
SECTION 3ZQZ
3ZQZ
MAGISTRATE MAY PERMIT A THING SEIZED UNDER DIVISION 3 TO BE RETAINED
(Repealed by No 2 of 2011)
Subdivision D - (Repealed by No 2 of 2011)
SECTION 3ZQZA
WHEN THINGS SEIZED UNDER DIVISION 3A MUST BE RETURNED
3ZQZA(1)
The Commissioner must take reasonable steps to return a thing seized under Division 3A if the owner requests the return of the thing.
3ZQZA(2)
However, the Commissioner does not have to take those steps if:
(a) the Commissioner suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence; or
(b) the Commissioner is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(c) either:
(d) the thing may otherwise be retained, destroyed or disposed of under a law, or order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(e) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
3ZQZA(3)
Despite subsection (2), if:
(a) the owner of a thing requests the return of the thing:
(b) the thing has not been returned to the owner by the end of the 90th day;
(c) take reasonable steps to return the thing to the owner; or
(d) apply to a magistrate for an order under section 3ZQZB.
3ZQZA(4)
(Repealed by No 2 of 2011)
SECTION 3ZQZB
MAGISTRATE MAY PERMIT A THING SEIZED OR DOCUMENT PRODUCED UNDER THIS PART TO BE RETAINED, FORFEITED ETC.
3ZQZB(1)
A magistrate may, on application by the Commissioner, make an order under subsection (2) or (3) in relation to a thing seized or a document produced under this Part.
Use for purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings
3ZQZB(2)
The magistrate may order that a thing seized under Division 3 or 3A be retained for the period specified in the order if the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
Preventing use in committing terrorist act, terrorism offence or serious offence
3ZQZB(3)
The magistrate may make any of the orders referred to in subsection (4) if the magistrate is satisfied that there are reasonable grounds to suspect that, if a thing seized or document produced under this Part is returned to any of the following persons, it is likely to be used by that person or another person in the commission of a terrorist act, a terrorism offence or a serious offence:
(a) the owner of the thing or document;
(b) in the case of a thing - the person from whom the thing was seized;
(c) in the case of a document - the person who produced the document.
3ZQZB(4)
The orders are as follows:
(a) an order that the thing or document may be retained for the period specified in the order;
(b) an order that the thing or document is forfeited to the Commonwealth;
(c) for a thing that is not a document - an order that:
(d) an order that the thing or document is to be destroyed or otherwise disposed of.
Thing or document must be returned if magistrate not satisfied
3ZQZB(5)
The magistrate must order that a thing or document be returned to the following person if the magistrate is not satisfied as mentioned in subsection (2) or (3):
(a) in the case of a thing - the person from whom the thing was seized;
(b) in the case of a document - the person who produced the document;
(c) if the person referred to in paragraph (a) or (b) is not entitled to possess the thing or document - the owner of the thing or document.
Persons with an interest in thing or document
3ZQZB(6)
Before making an application under this section in relation to a thing or document, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the thing or document; and
(b) if it is practicable to do so, notify each person who the Commissioner believes to have such an interest of the proposed application.
3ZQZB(7)
The magistrate must allow a person who has an interest in the thing or document to appear and be heard in determining the application.
Special rule for things seized under Division 3
3ZQZB(8)
The Commissioner may only make an application under this section in relation to a thing seized under Division 3 if the application is made:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order in relation to the thing under this section.
Division 5 - General
SECTION 3ZR
3ZR
Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched. SECTION 3ZS Announcement before entry (1)
A constable must, before any person enters premises under a warrant or to arrest a person:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2)
A constable is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including a constable); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
SECTION 3ZT 3ZT Offence for making false statements in warrants
A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.
A person must not:
(a) state in a document that purports to be a form of warrant under section 3R the name of an issuing officer unless that officer issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(d) give to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
(Repealed by No 4 of 2010)
SECTION 3ZW
DELEGATION BY COMMISSIONER
3ZW(1)
The Commissioner may delegate to a constable any or all of the Commissioner's powers, functions or duties under this Part.
3ZW(2)
The Commissioner may delegate to a Commonwealth officer any or all of the Commissioner's powers, functions or duties under Division 4C of this Part if the Commissioner is satisfied on reasonable grounds that the officer is able to properly exercise those powers, functions or duties.
SECTION 3ZX
3ZX
Law relating to legal professional privilege not affected
This Part does not affect the law relating to legal professional privilege. Part IAAA - Delayed notification search warrants
Division 1 - Preliminary
SECTION 3ZZAA
Object of this Part
(1)
The object of this Part is to provide for eligible agencies to obtain search warrants:
(a) that relate to eligible offences; and
(b) that authorise the entry and search of premises without having to produce the warrant at the time of entry and search.
(2)
A warrant issued under this Part is a delayed notification search warrant .
(3)
An eligible agency is the Australian Federal Police.
(4)
An eligible offence is a terrorism offence that is punishable on conviction by imprisonment for 7 years or more.
SECTION 3ZZAB
Application of Part
(1)
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the seizure of things; or
(c) the use of an assumed identity; or
(d) the installation of surveillance devices (within the meaning of the Surveillance Devices Act 2004).
(2)
To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
SECTION 3ZZAC
3ZZAC
Definitions
In this Part:
(a) the eligible officer of the authorised agency who is named in the warrant by the eligible issuing officer as being responsible for executing the warrant; or
(b) if that eligible officerdoes not intend to be present at the execution of the warrant - another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer so named; or
(c) another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer of the authorised agency last named in the warrant.
(a) a person who is an eligible officer of the authorised agency and who is assisting in the execution of the warrant; or
(b) another person who has been authorised by the executing officer to assist in executing the warrant.
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the Crime Commission Act 2012 (NSW); or
(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 (NSW); or
(d) the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW); or
(e) the Independent Broad-based Anti-corruption Commission established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.); or
(f) the Crime and Corruption Commission established by the Crime and Corruption Act 2001 (Qld); or
(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 (WA); or
(h) the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 2012 (SA); or
(i) the Integrity Commission established by the Integrity Commission Act 2009 (Tas.).
SECTION 3ZZAD
Eligible issuing officers
(1)
An
(a) a person:
(b) a nominated ART member.
(2)
A function or power conferred on a Judge by this Part is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3)
A Judge has, in relation to the performance or exercise of a function or power conferred on an eligible issuing officer by this Part, the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
SECTION 3ZZAE
Consent of Judges
(1)
A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an eligible issuing officer by the Minister administering the Judiciary Act 1903 under subsection (2).
(2)
The Minister administering the Judiciary Act 1903 may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an eligible issuing officer for the purposes of this Part.
(3)
A consent or declaration under this section is not a legislative instrument.
SECTION 3ZZAF
Nominated ART members
(1)
The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue delayed notification search warrants and perform related functions under this Act: (a) Deputy President; (b) a senior member appointed on a salaried basis.
(2)
Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member on a salaried basis of the Tribunal unless the person: (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and (b) has been so enrolled for not less than 5 years.
(3)
A nomination ceases to be in force if: (a) the nominated ART member ceases to hold an appointment described in subsection (1); or (b) the ART Minister, by writing, withdraws the nomination.
Division 2 - Issue of delayed notification search warrants
Subdivision A - The normal process for applying for and issuing delayed notification search warrants
SECTION 3ZZBA
3ZZBA
Eligible officer may seek authorisation to apply for a delayed notification search warrant
If an eligible officer of an eligible agency:
(a) suspects, on reasonable grounds, that one or more eligible offences have been, are being, are about to be or are likely to be committed; and
(b) suspects, on reasonable grounds, that entry and search of particular premises will substantially assist in the prevention or investigation of one or more of those offences; and
(c) believes, on reasonable grounds, that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises;
SECTION 3ZZBB
Authorisation to apply for a delayed notification search warrant
Scope
(1A)
This section applies if an eligible officer of an eligible agency seeks the authorisation of the chief officer of the agency to apply for a delayed notification search warrant in respect of particular premises.
Authorisation
(1)
The chief officer may, in writing, authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that there are reasonable grounds for the eligible officer to have:
(a) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(b) the belief mentioned in paragraph 3ZZBA(c).
(2)
The chief officer may orally (in person or by telephone or other means of voice communication) authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that:
(a) there are reasonable grounds for the eligible officer to have:
(b) either:
(3)
If the chief officer of an eligible agency gives an authorisation under subsection (2), he or she must make a written record of the authorisation within 7 days.
SECTION 3ZZBC
Applying for a delayed notification search warrant
(1)
An eligible officer of an eligible agency may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if the officer is authorised under section 3ZZBB to apply for the warrant.(a) why there are reasonable grounds for suspecting that one or more eligible offences have been, are being, are about to be or are likely to be committed (see paragraph 3ZZBA(a)); and
(aa) why there are reasonable grounds for suspecting that entry and search of the premises will substantially assist in the prevention or investigation of one or more of those offences (see paragraph 3ZZBA(b)); and
(ab) why there are reasonable grounds for believing that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises (see paragraph 3ZZBA(c)); and
(b) other matters the eligible issuing officer must have regard to (see subsection 3ZZBD(2)); and
(c) matters that must be specified in the warrant (see subsection 3ZZBE(1)).
(2)
The eligible officer must provide the eligible issuing officer with:
(a) a copy of, or details of, the authorisation under section 3ZZBB; and
(b) particulars of any applications, and the outcomes, so far as known to the eligible officer, of any previous applications, in respect of the premises, for a warrant under this Part or Division 2 of Part IAA.
(3)
The application must be supported by an affidavit setting out the grounds on which the warrant is sought.
(4)
The eligible issuing officer may request further information relating to the application, and may require that the information be provided on oath or affirmation.
SECTION 3ZZBD
Issuing a delayed notification search warrant
(1)
If: (a) an eligible officer applies to an eligible issuing officer, in accordance with section 3ZZBC, for a delayed notification search warrant in respect of particular premises (the main premises ); and (b) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for the eligible officer to have:
(2)
In determining whether the delayed notification search warrant should be issued, the eligible issuing officer must have regard to the following: (a) the extent to which the exercise of the powers under the warrant would assist the prevention or investigation of the eligible offence or offences to which the application for the warrant relates; (b) the existence of alternative means of obtaining the evidence or information sought to be obtained; (c) the extent to which the privacy of any person is likely to be affected; (d) the nature and seriousness of that offence or those offences; (e) if it is proposed that adjoining premises be entered for the purpose of entering the main premises - whether allowing entry to the adjoining premises is reasonably necessary:
(3)
An eligible issuing officer of the Federal Court of Australia or the Administrative Review Tribunal may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.
(4)
An eligible issuing officer of the Supreme Court of a State or Territory may issue a delayed notification search warrant only in relation to premises located in that State or Territory.
SECTION 3ZZBE
Contents of a delayed notification search warrant
(1)
A delayed notification search warrant must specify the following:
(a) the name of the applicant;
(b) the name of the authorised agency;
(c) the name of the eligible officer of that agency who, unless he or she inserts the name of another such eligible officer in the warrant, is to be responsible for executing the warrant;
(d) the address, location or other description of the warrant premises;
(e) the eligible offence or offences to which the warrant relates;
(f) whether the warrant authorises the entry of adjoining premises, and if it does, the address, location or other description of the adjoining premises;
(g) the day on which, and the time at which, the warrant is issued;
(h) the day on which, and the time at which, the warrant expires (which must be a time on a day that is not more than 30 days after the day on which the warrant is issued);
(i) the time by which notice of entry of premises under the warrant is to be given (expressed as a time on a specified day that is not more than 6 months after the day on which the warrant is issued);
(j) a description of the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled;
(k) whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(l) whether the warrant authorises the re-entry of the warrant premises, and any adjoining premises authorised to be entered, to:
(m) if the warrant authorises such re-entry - that the re-entry must be within:
(n) any conditions to which the warrant is subject;
(o) that the eligible issuing officer is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to the matters specified in subsection 3ZZBD(2).(a) the specified time is the time by which a warrant premises occupier's notice, and any adjoining premises occupier's notice, must be given (subject to subsections 3ZZDA(4), 3ZZDB(4) and 3ZZDC(3)); and
(b) the specified time can be extended (see subsection 3ZZDC(5)).
(2)
The warrant must be signed by the eligible issuing officer who issued it and include his or her name.
Subdivision B - Delayed notification search warrants by telephone, fax etc.
SECTION 3ZZBF
Delayed notification search warrants by telephone, fax etc.
When this section applies
(1)
This section applies if the requirements specified in subsection 3ZZBC(1) for when an eligible officer of an eligible agency may apply for a delayed notification search warrant in respect of particular premises are satisfied.
Application for delayed notification search warrant
(2)
The eligible officer may apply to an eligible issuing officer by telephone, fax or other electronic means for a delayed notification search warrant in respect of the premises:
(a) if it is an urgent case; or
(b) if the delay that would occur if the application were made in person would frustrate the effective execution of the delayed notification search warrant.
(3)
The eligible issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(4)
The application must:
(a) include all information required to be provided in an ordinary application for a delayed notification search warrant, but the application may, if necessary, be made before the information is sworn or affirmed; and
(b) include details of, or be accompanied by a copy of, the authorisation under section 3ZZBB.
Eligible issuing officer may complete and sign warrant
(5)
The eligible issuing officer may complete and sign the same delayed notification search warrant that would have been issued under section 3ZZBD if, after:
(a) considering the information and having received and considered such further information (if any) as the eligible issuing officer required; and
(b) having regard to the matters specified in subsection 3ZZBD(2);
(c) that there are reasonable grounds for the eligible officer to have:
(d)that:
(6)
After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was signed.
Obligations on applicant
(7)
The applicant must then do the following:
(a) complete a form of delayed notification search warrant in the same terms as the warrant completed and signed by the eligible issuing officer;
(b) state on the form the following:
(c) send the following to the eligible issuing officer:
(8)
The applicant must comply with paragraph (7)(c) by the end of the day after the earlier of the following:
(a) the day on which the delayed notification search warrant expires;
(b) the day of execution of the warrant.
Eligible issuing officer to attach documents together
(9)
The eligible issuing officer must attach the documents provided under paragraph (7)(c) to the delayed notification search warrant signed by the eligible issuing officer.
SECTION 3ZZBG
Authority of delayed notification search warrant by telephone, fax etc.
(1)
A form of delayed notification search warrant duly completed under subsection 3ZZBF(7) is authority for the same powers as are authorised by the warrant signed by the eligible issuing officer under subsection 3ZZBF(5).
(2)
In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a delayed notification search warrant under section 3ZZBF if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was duly authorised by the warrant; and
(b) the delayed notification search warrant signed by the eligible issuing officer authorising the exercise of the power is not produced in evidence.
Subdivision C - Offences relating to applying for warrants etc.
SECTION 3ZZBH
3ZZBH
Offence for making false statement in application for delayed notification search warrant
A person must not make, in an application for a delayed notification search warrant, a statement that the person knows to be false or misleading in a material particular.
SECTION 3ZZBI
3ZZBI
Offence relating to delayed notification search warrant by telephone, fax etc.
A person must not:
(a) state in a document that purports to be a form of delayed notification search warrant under section 3ZZBF the name of an eligible issuing officer unless that eligible issuing officer issued the warrant; or
(b) state on a form of delayed notification search warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the eligible issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of delayed notification search warrant under that section that the person knows:
(d) give to an eligible issuing officer a form of delayed notification search warrant under that section that is not the form of warrant that the person purported to execute.
Subdivision D - Interaction with other provisions under which search warrants may be issued
SECTION 3ZZBJ
Issue of warrants under other provisions as well as or instead of delayed notification search warrants
When this section applies
(1)
This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the delayed notification search warrant application ) to an eligible issuing officer for a delayed notification search warrant:
(a) in respect of particular premises; and
(b) in relation to a particular eligible offence.
(2)
The applicable normal search warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for normal search warrant
(3)
The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.
(4)
If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.
Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime
(5)
If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:
(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and
(b) consider and deal with the application under that regime:
Division 3 - Exercise of powers under delayed notification search warrants
SECTION 3ZZCA
What is authorised by a delayed notification search warrant
(1)
A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:
(a) to enter the warrant premises;
(b) if the warrant authorises the entry of adjoining premises - to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;
(c) to impersonate another person to the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;
(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;
(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:
(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;
(i) if specified in the warrant - to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:
(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant - to re-enter:
(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.
(2)
The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.
(3)
If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.
SECTION 3ZZCB
Specific powers available to person executing warrant
Photography
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief interruption
(2)
If a delayed notification search warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:
Completion of execution of warrant after court proceedings
(3)
If:
(a) the execution of a delayed notification search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
SECTION 3ZZCC
Extension of time to re-enter premises left in emergency situation or to avoid discovery of law enforcement officer
(1)
If:
(a) a delayed notification search warrant in relation to premises is being executed; and
(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24-hour period mentioned in paragraph 3ZZCB(2)(b);
(2)
If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
SECTION 3ZZCD
Executing a warrant - assistance, use of force and related matters
(1)
In executing a delayed notification search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and
(c) a person assisting who is not an eligible officer may use such force against things;
(2)
At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under section 3ZZBF - a copy of the form of warrant completed under subsection 3ZZBF(7).
(3)
To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.
SECTION 3ZZCE
Use of equipment to examine or process things
Equipment may be brought onto warrant premises
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2)
A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and
(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.
Time limit on moving a thing
(3)
The thing may be moved to another place for examination or processing for no longer than 14 days.
(4)
An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(5)
A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6)
The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises, if the executing officer or person believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
SECTION 3ZZCF
Use of electronic equipment at warrant premises
Use of electronic equipment to access data
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2)
If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.
(3)
If:
(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and
(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
(c) the removal of the data from any device in the control of the authorised agency; and
(d) the destruction of any other reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating equipment
(4)
If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can, by using facilities at the warrant premises, be put in documentary form - operate the facilities to put the thing in that form and seize the documents so produced.
(5)
The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
SECTION 3ZZCG
Use of moved electronic equipment at other place
(1)
If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2)
If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3)
If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:
(a) the removal of the data from any device in the control of the authorised agency; and
(b) the destruction of any other reproduction of the data in the control of the authorised agency.
(4)
If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can be put in documentary form - put the thing in that form and seize the documents so produced.
(5)
The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
SECTION 3ZZCH
Operating seized or moved electronic equipment
(1)
This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.
(2)
The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.
(3)
The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4)
The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.
(5)
This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.
SECTION 3ZZCI
Compensation for damage to electronic equipment
(1)
This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(b) the damage or corruption occurs because:
(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.
Division 4 - Notice to occupiers
SECTION 3ZZDA
Warrant premises occupier's notice must be prepared and given
(1)
As soon as practicable after the exercise of powers under a delayed notification search warrant has been completed, the executing officer must prepare a written notice (the warrant premises occupier's notice ) that complies with subsection (2).
(2)
The warrant premises occupier's notice must:
(a) specify the name of the authorised agency; and
(b) specify the day on which, and the time at which, the warrant was issued; and
(c) specify the day of execution of the warrant; and
(d) specify the address, location or other description of the warrant premises; and
(e) specify the number of persons who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and
(f) include a summary of:
(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and
(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.
(3)
Subject to subsection (4), a staff member of the authorised agency must give the warrant premises occupier's notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the warrant premises when they were entered under the warrant. The notice, and the copy of the warrant (or form of warrant), must be given to the occupier by the time applicable under section 3ZZDC.
(4)
If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5)
A notice and a direction under this section are not legislative instruments.
SECTION 3ZZDB
Adjoining premises occupier's notice must be prepared and given
(1)
As soon as practicable after adjoining premises are entered under a delayed notification search warrant, the executing officer must prepare a written notice (the adjoining premises occupier's notice ) that complies with subsection (2).
(2)
The adjoining premises occupier's notice must specify:
(a) the name of the authorised agency; and
(b) the day on which, and the time at which, the warrant was issued; and
(c) the day of execution of the warrant; and
(d) the address, location or other description of:
(e) the purpose of delayed notification search warrants, including:
(3)
Subject to subsection (4), a staff member of the authorised agency must give the adjoining premises occupier's notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the adjoining premises when they were entered under the warrant. The notice, and the copy of the warrant, must be given to the occupier by the time applicable under section 3ZZDC.
(4)
If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5)
A notice and a direction under this section are not legislative instruments.
SECTION 3ZZDC
Time for giving warrant premises occupier's notice or adjoining premises occupier's notice
Section determines time by which notice must be given
(1)
This section:
(a) applies if a warrant premises occupier's notice, or an adjoining premises occupier's notice, is prepared in relation to a delayed notification search warrant; and
(b) determines the time by which the notice (and a copy of the warrant, or the form of warrant) must be given in accordance with subsection 3ZZDA(3) or 3ZZDB(3).
General rule
(2)
Subject to subsection (3), the notice (and the copy of the warrant or form of warrant) must be given by:
(a) the time specified under paragraph 3ZZBE(1)(i); or
(b) if that time has been extended under subsection (5), that time as so extended.
Rule if person is charged with an offence relying on evidence obtained under the warrant
(3)
If:
(a) a person is charged with an offence; and
(b) the prosecution proposes to rely on evidence obtained under the warrant;
(c) the time applicable under subsection (2);
(d) the time of service of the brief of evidence by the prosecution.
Extending the time specified in the warrant for giving notice
(4)
The chief officer of the authorised agency may, in writing, authorise an eligible officer of the agency to apply to an eligible issuing officer for an extension of the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given.
(5)
An eligible issuing officer may, on application by an eligible officer authorised under subsection (4), extend the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given if the eligible issuing officer is satisfied that there are reasonable grounds for continuing to delay notice of entry of the premises.
(6)
An eligible issuing officer may, under subsection (5), extend the time specified under paragraph 3ZZBE(1)(i) on more than one occasion, but:
(a) must not extend the time by more than 6 months on any one occasion; and
(b) must not extend the time to more than 12 months after the day on which the delayed notification search warrant was issued unless:
(7)
A certificate issued under subsection (6) is not a legislative instrument.
Division 5 - Using, sharing and returning things seized
Subdivision A - Using and sharing things seized
SECTION 3ZZEA
Purposes for which things may be used and shared
Use and sharing of thing by eligible officer or Commonwealth officer
(1)
An eligible officer of an eligible agency or a Commonwealth officer may use, or make available to another eligible officer or Commonwealth officer to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose: (a) preventing, investigating or prosecuting an offence; (b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; (c) proceedings for the forfeiture of the thing under a law of the Commonwealth; (d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105, 105A or 395 of the Criminal Code; (e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part; (f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act; (g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988; (h) conducting a NACC Act process (within the meaning of the National Anti-Corruption Commission Act 2022); (i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h); (j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection; (k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2)
An eligible officer of an eligible agency or a Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(3)
An eligible officer of an eligible agency may make available to another eligible officer of an eligible agency or a Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4)
To avoid doubt, this section does not limit any other law of the Commonwealth that: (a) requires or authorises the use of a thing; or (b) requires or authorises the making available (however described) of a thing.
Sharing thing for use by State, Territory or foreign agency
(5)
An eligible officer of an eligible agency or a Commonwealth officer may make a thing seized under this Part available to: (a) a State or Territory law enforcement agency; or (b) an agency that has responsibility for:
Ministerial arrangements for sharing
(6)
This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for: (a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part; and (b) the disposal by the agency of such things when they are no longer of use to that agency for those purposes.
Subdivision B - Returning things seized
SECTION 3ZZEB
When things seized must be returned
(1)
If the chief officer of the relevant eligible agency is satisfied that a thing seized under this Part is not required (or is no longer required) for a purpose mentioned in section 3ZZEA or for other judicial or administrative review proceedings, the chief officer must take reasonable steps to return the thing to the person from whom it was seized, or to the owner if that person is not entitled to possess it.
(2)
However, the chief officer does not have to take those steps if:
(a) either:
(b) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or
(d) a warrant premises occupier's notice has not been given in relation to the occupier of the warrant premises.
SECTION 3ZZEC
Eligible issuing officer may permit a thing seized to be retained, forfeited etc.
(1)
An eligible issuing officer may, on application by an eligible officer of an eligible agency, make any of the orders referred to in subsection (2) in relation to a thing seized under this Part if the eligible issuing officer is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing was seized, it is likely to be used by that person or another person in the commission of:
(a) a terrorist act or a terrorism offence; or
(b) a serious offence (within the meaning of Part IAA).
(2)
The orders are as follows:
(a) an order that the thing may be retained for the period specified in the order;
(b) an order that the thing is forfeited to the Commonwealth;
(c) an order that:
(d) an order that the thing is to be destroyed or otherwise disposed of.
(3)
If the eligible issuing officer is not satisfied as mentioned in subsection (1), the eligible issuing officer must order that the thing be returned to:
(a) the person from whom the thing was seized; or
(b) if that person is not entitled to possess the thing - the owner of the thing.
Division 6 - Reporting and record-keeping
SECTION 3ZZFA
Reporting on delayed notification search warrants
(1)
The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a written report on the warrant to the chief officer of the authorised agency.
(2)
The report must be given to the chief officer of the authorised agency as soon as practicable after:
(a) the day of execution of the warrant; or
(b) if the warrant was not executed - the expiry of the warrant.
(3)
The report must:
(a) specify the address, location or other description of the warrant premises; and
(b) state whether or not the warrant was executed; and
(c) state whether the application for the warrant was made in person or in accordance with section 3ZZBF.
(4)
If the warrant was executed, the report must also include the following information:
(a) the day of execution of the warrant;
(b) the name of the executing officer;
(c) the name of any persons assisting and the kind of assistance provided;
(d) the name of the occupier of the warrant premises, if known to the executing officer;
(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;
(f) the things that were done under the warrant;
(g) without limiting paragraph (f) - details of any thing at the warrant premises:
(h) whether or not the execution of the warrant assisted in the prevention or investigation of an eligible offence;
(i) details of compliance with any conditions to which the warrant was subject;
(j) details of any warrant premises occupier's notice given in relation to the warrant;
(k) details of any adjoining premises occupier's notice given in relation to the warrant;
(l) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(5)
To avoid doubt, if, at the time a report was given, the details in any of paragraphs (4)(j), (k) and (l) were not included because notice or directions had not been given at that time, but are given later, the person who gave the original report under subsection (1) must give a further report under that subsection including those details.
(6)
If the warrant was not executed, the report must state the reason why it was not executed.
(7)
If the warrant premises were entered after the warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the premises, a written report in relation to that entry must be provided to the chief officer of the authorised agency. The report must include the following information:
(a) the address, location or other description of the warrant premises;
(b) the date on which the warrant premises were entered for that purpose;
(c) the name of each person who so entered the warrant premises;
(d) details of the thing returned or retrieved;
(e) if the thing was not returned or retrieved - the reason why the thing was not returned or removed.
(8)
A report under subsection (7) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.
(9)
A report under this section is not a legislative instrument.
SECTION 3ZZFB
Annual reports to Minister
(1)
The chief officer of an eligible agency must give a written report to the Minister that includes the following information in respect of each financial year:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency;
(e) the number of delayed notification search warrants that were executed by an eligible officer of the agency under which:
(f) any other information relating to delayed notification search warrants and the administration of this Part that the Minister considers appropriate.
(2)
The report for a financial year must be given to the Minister as soon as practicable, and in any event not more than 3 months, after the end of the financial year.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
SECTION 3ZZFC
3ZZFC
Regular reports to Ombudsman
As soon as practicable after each 6-month period starting on 1 January or 1 July the chief officer of an eligible agency must give a written report to the Ombudsman that includes the following information in respect of the period:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency.
SECTION 3ZZFD
3ZZFD
Keeping documents connected with delayed notification search warrants
The chief officer of an eligible agency must cause the following to be kept:
(a) a copy of each authorisation given in writing by the chief officer under section 3ZZBB;
(b) a copy of the written record made under section 3ZZBB of each authorisation given orally by the chief officer under that section;
(c) a copy of each application for a delayed notification search warrant made by an eligible officer of the agency, and a statement of whether the application was granted or refused;
(d) each delayed notification search warrant issued to an eligible officer of the agency;
(e) a copy of each form of delayed notification search warrant completed under subsection 3ZZBF(7) by an eligible officer of the agency;
(f) a copy of the following:
(g) each report given to the chief officer of the agency under section 3ZZFA.
SECTION 3ZZFE
Register of delayed notification search warrants
(1)
The chief officer of an eligible agency must cause a register of delayed notification search warrants to be kept.
(2)
The register is to specify, for each delayed notification search warrant sought by an eligible officer of the eligible agency:
(a) the date the warrant was issued or refused; and
(b) the name of the eligible issuing officer who issued or refused to issue the warrant; and
(c) if the warrant was issued:
(3)
The register is not a legislative instrument.
Division 7 - Inspections by Ombudsman
SECTION 3ZZGA
Appointment of inspecting officers
(1)
The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Division.
(2)
An appointment under subsection (1) must be in writing.
SECTION 3ZZGB
Inspection of records by the Ombudsman
(1)
The Ombudsman must, from time to time and at least once in each 6-month period starting on 1 January or 1 July, inspect the records of each eligible agency to determine the extent of compliance with this Part by the agency, and eligible officers of the agency, in relation to delayed notification search warrants.
(2)
For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the chief officer of the eligible agency, enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c) may require a staff member of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.
(3)
The chief officer must ensure that staff members of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(4)
Nothing in this section requires the Ombudsman to inspect records that are relevant to the obtaining or execution of a delayed notification search warrant if a warrant premises occupier's notice has not yet been given in relation to the warrant, unless directions have been made under subsection 3ZZDA(4) or 3ZZDB(4) not requiring such notice to be given.
SECTION 3ZZGC
Power to obtain relevant information
(1)
If the Ombudsman has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency's records, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
(4)
If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency's records; and
(b) does not know the staff member's identity;
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
SECTION 3ZZGD
3ZZGD
Offence
A person commits an offence if:
(a) the person is required under section 3ZZGC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
SECTION 3ZZGE
Ombudsman to be given information etc. despite other laws
(1)
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(2)
However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
(3)
Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the agency to the Ombudsman or an inspecting officer;
(4)
Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5)
The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
SECTION 3ZZGF
Exchange of information between Ombudsman and State or Territory inspecting authorities
(1)
The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
(2)
The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3)
The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.
(4)
In this section:
SECTION 3ZZGG
Ombudsman not to be sued
(1)
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2)
A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
SECTION 3ZZGH
Report on inspection
(1)
As soon as practicable after each 6-month period starting on 1 January or 1 July the Ombudsman must give a written report to the Minister on the results of each inspection under section 3ZZGB in the period.
(2)
If, having regard to information obtained in the course of the inspection or a previous inspection, the Ombudsman considers that the requirements of section 3ZZFB or 3ZZFC have not been properly complied with in relation to an eligible agency, the Ombudsman may include a comment to that effect in the report.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
Division 8 - Unauthorised disclosure of information
SECTION 3ZZHA
Unauthorised disclosure of information
(1)
A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to:
(2)
Each of the following is an exception to the offence created by subsection (1):
(a) the disclosure is in connection with the administration or execution of this Part;
(aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;
(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to this Part or of any report of any such proceedings;
(c) the disclosure is in accordance with any requirement imposed by law;
(d) the disclosure is for the purposes of:
(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);
(e) the disclosure is made after a warrant premises occupier's notice or an adjoining premises occupier's notice has been given in relation to the warrant;
(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
Division 9 - Other matters
SECTION 3ZZIA
Delegation
Delegation by chief officer
(1)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under this Part to:
(a) a Deputy Commissioner of the Australian Federal Police; or
(b) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(2)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to the chief executive officer (however described) of a State or Territory law enforcement agency.
(3)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to a Commonwealth officer if the chief officer is satisfied on reasonable grounds that the Commonwealth officer is able to properly exercise those powers, functions or duties.
Delegation by Ombudsman
(4)
The Ombudsman may, in writing, delegate all or any of the Ombudsman's powers under this Part, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman.
Delegate must produce delegation on request
(5)
A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
SECTION 3ZZIB
3ZZIB
Law relating to legal professional privilege not affected
Except as expressly provided, this Part does not affect the law relating to legal professional privilege.
Part IAAB - Monitoring of compliance with Part 5.3 supervisory orders etc.
Division 1 - Introduction
SECTION 3ZZJA
3ZZJA
Simplified outline of this Part
(a) an interim control order;
(b) a confirmed control order;
(c) an interim supervision order;
(d) an extended supervision order.
(a) the person is the occupier of the premises and consents to the entry; or
(b) the entry is made under a monitoring warrant.
(a) the person consents to the search; or
(b) the search is conducted under a monitoring warrant.
(a) the protection of the public from a terrorist act;
(b) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(c) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;
(d) the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence;
(e) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
SECTION 3ZZJB
3ZZJB
Definitions
In this Part:
(a) in relation to premises - has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or
(b) in relation to a person - has the meaning given by section 3ZZLB.
(a) in relation to a control order - any of the following:
(b) in relation to an extended supervision order or interim supervision order - the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.
(a) a control order; or
(b) an extended supervision order or interim supervision order.
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
SECTION 3ZZJC
3ZZJC
Prescribed connection with premises
For the purposes of this Part, a person has a prescribed connection with premises if:
(a) the person:
(b) the person occupies, or resides on, the premises; or
(c) the person has possession or control of the premises (whether alone or together with one or more other persons); or
(d) the person performs any of the duties of his or her employment on the premises; or
(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or
(f) the person performs voluntary work on the premises; or
(g) both:
SECTION 3ZZJD
Privileges not abrogated
Self-incrimination
(1)
This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.
Legal professional privilege
(2)
This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3)
The fact that this section is included in this Part does not imply that the privilege against self-incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.
SECTION 3ZZJE
Application of Part
(1)
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the searching of persons or conveyances; or
(c) the seizure of things; or
(d) the requesting of information or documents from persons.
(2)
To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
Division 2 - Powers of constables in relation to premises
Subdivision A - Monitoring powers
SECTION 3ZZKA
Entering premises by consent or under a warrant
(1)
If: (a) a Part 5.3 supervisory order is in force in relation to a person; and (b) the person has a prescribed connection with particular premises;
(2)
However, a constable is not authorised to enter the premises unless: (a) the person:
SECTION 3ZZKB
3ZZKB
General monitoring powers
The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:
(a) the power to search the premises and any thing on the premises;
(b) the power to search for and record fingerprints found at the premises;
(c) the power to take samples of things found at the premises;
(d) the power to examine or observe any activity conducted on the premises;
(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(g) the power to inspect any document on the premises;
(h) the power to take extracts from, or make copies of, any such document;
(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;
(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).
SECTION 3ZZKC
Operating electronic equipment
(1)
The monitoring powers include the power to: (a) operate electronic equipment on the premises; and (b) use a disk, tape or other storage device that:
(2)
The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).
(3)
Relevant data means information relevant to: (a) a Part 5.3 object; or (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
(4)
The powers are as follows: (a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises; (b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(5)
A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
SECTION 3ZZKD
Securing electronic equipment to obtain expert assistance
Scope
(1)
This section applies if a constable enters premises under a monitoring warrant.
Securing equipment
(2)
The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:
(a) there is relevant data on the premises; and
(b) the relevant data may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.
(3)
The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the constable's intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4)
The equipment may be secured until the earlier of the following happens:
(a) the 24-hour period ends;
(b) the equipment has been operated by the expert.
Extensions
(5)
The constable may apply to an issuing officer for an extension of the 24-hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.
(6)
Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7)
The 24-hour period may be extended more than once.
Subdivision B - Powers to ask questions and seek production of documents
SECTION 3ZZKE
Asking questions and seeking production of documents
Scope
(1)
This section applies if a constable enters premises under section 3ZZKA.
Entry with consent
(2)
If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in: (a) achieving a Part 5.3 object; or (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
Entry under a monitoring warrant
(3)
If: (a) the entry is authorised by a monitoring warrant; and (b) the warrant authorises the constable to exercise powers under this subsection;
Legal professional privilege and privilege against self-incrimination
(4)
Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.
(5)
An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.
Exceptions to subsection (3)
(6)
A person is not subject to a requirement under subsection (3) if: (a) the person does not possess the information or document required; and (b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
(7)
A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.
Offence
(8)
A person commits an offence if: (a) the person is subject to a requirement under subsection (3); and (b) the person engages in conduct; and (c) the person's conduct breaches the requirement.
Subdivision C - Other powers
SECTION 3ZZKF
Other powers
Scope
(1)
This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Powers
(2)
The constable has the following powers in relation to the premises:
(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:
(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;
(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:
SECTION 3ZZKG
Availability of assistance and use of force in executing a warrant
Scope
(1)
This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Availability of assistance and use of force
(2)
In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZKF in relation to the premises;
(3)
In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) enter the premises; and
(b) exercise the monitoring powers in relation to the premises; and
(c) in:
(5)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:
(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and
(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
(6)
A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 3 - Powers of constables in relation to persons subject to Part 5.3 supervisory orders
SECTION 3ZZLA
Searching a person by consent or under a warrant
(1)
If a Part 5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for either of the following purposes: (a) achieving a Part 5.3 object; (b) determining whether the Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
(2)
However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless: (a) the person has consented to the search; or (b) the search is conducted under a monitoring warrant.
SECTION 3ZZLB
3ZZLB
Monitoring powers
The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:
(a) the power to search things found in the possession of the person;
(b) the power to search any recently used conveyance;
(c) the power to record fingerprints from things found in the course of:
(d) the power to take samples from things found in the course of:
SECTION 3ZZLC
Seizure powers
Scope
(1)
This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Powers
(2)
The constable has the following powers:
(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:
(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:
SECTION 3ZZLD
Availability of assistance and use of force in executing a warrant
Scope
(1)
This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Availability of assistance and use of force
(2)
In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;
(3)
In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and
(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.
(5)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.
(6)
A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Division 4 - Obligations and incidental powers of constables
SECTION 3ZZNA
Consent of occupier of premises
(1)
Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.
(2)
A consent has no effect unless the consent is voluntary.
(3)
A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4)
A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5)
If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.
(6)
If:
(a) a constable enters premises because of the consent of the occupier of the premises; and
(b) the constable has not shown the occupier his or her identity card before entering the premises;
SECTION 3ZZNB
Consent to search of a person
(1)
Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.
(2)
A consent has no effect unless the consent is voluntary.
(3)
A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4)
A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
SECTION 3ZZNC
3ZZNC
Announcement before entry under warrant
Before entering premises under a monitoring warrant, a constable must:
(a) announce that he or she is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
SECTION 3ZZND
3ZZND
Constable to be in possession of warrant
A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.
SECTION 3ZZNE
3ZZNE
Details of warrant etc. to be given to occupier
If:
(a) a monitoring warrant is being executed by a constable in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
SECTION 3ZZNF
Compensation for damage to electronic equipment
Scope
(1)
This section applies if: (a) as a result of electronic equipment being operated as mentioned in this Part:
Compensation
(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in: (a) the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2); or (b) a court of a State or Territory that has jurisdiction in relation to the matter;
(4)
In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
SECTION 3ZZNG
Occupier entitled to be present during search
(1)
If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
SECTION 3ZZNH
Person subject to a Part 5.3 supervisory order is entitled to be present during search
(1)
If: (a) a monitoring warrant in relation to premises is being executed; and (b) the warrant was issued on the basis that a Part 5.3 supervisory order is in force in relation to a person; and (c) the person is present at the premises;
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
Division 5 - Monitoring warrants
SECTION 3ZZOA
Monitoring warrant in relation to premises
Application for warrant
(1)
A constable may apply to an issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2)
The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a Part 5.3 supervisory order is in force in relation to a person; and (b) the person has a prescribed connection with the premises; and (c) having regard to:
(3)
The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4)
The matters referred to in subparagraph (2)(c)(ii) are the following: (a) in relation to a control order:
(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.
Content of warrant
(5)
The warrant must: (a) describe the premises to which the warrant relates; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:
(6)
To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7)
The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
(8)
Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.
SECTION 3ZZOB
Monitoring warrant in relation to a person
Application for warrant
(1)
A constable may apply to an issuing officer for a warrant under this section in relation to a person.
Issue of warrant
(2)
The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a Part 5.3 supervisory order is in force in relation to the person; and (b) having regard to:
(3)
The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4)
The matters referred to in subparagraph (2)(b)(i) are the following: (a) in relation to a control order:
Content of warrant
(5)
The warrant must: (a) state the name of the person; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:
(6)
To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7)
The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
(8)
Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person.
SECTION 3ZZOC
3ZZOC
Restrictions on personal searches
A monitoring warrant cannot authorise a strip search or a search of a person's body cavities.
SECTION 3ZZOD
Monitoring warrant must not be executed if the relevant Part 5.3 supervisory order is revoked etc.
(1)
If: (a) a monitoring warrant was issued on the basis that a Part 5.3 supervisory order was in force in relation to a person; and (b) any of the following happens:
Evidence
(2)
A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(3)
Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(4)
A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
Division 6 - Monitoring warrants by telephone or other electronic means
SECTION 3ZZPA
Monitoring warrants by telephone or other electronic means
(1)
A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2)
The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3)
An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn.
(4)
If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
(5)
If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed.
(6)
The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed.
(7)
The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8)
The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9)
If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
SECTION 3ZZPB
3ZZPB
Offences relating to telephone warrants
A person commits an offence if:
(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or
(b) the person states on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Division 7 - Extension of periods in which things secured
SECTION 3ZZQA
Extension of periods in which things secured
Application
(1)
This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.
Granting extension
(2)
The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.
(3)
The issuing officer must not grant the extension unless the constable or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.
Content of order
(4)
The order extending the period must:
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the constable is authorised to secure the thing for that period.
Division 8 - Things seized, documents produced, and answers given, under this Part
SECTION 3ZZRA
Receipts for things seized under this Part
(1)
If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.
(2)
If 2 or more things are seized, they may be covered in the one receipt.
SECTION 3ZZRB
3ZZRB
Using, sharing and returning things seized under this Part
Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.
SECTION 3ZZRC
Using, sharing and returning documents produced under section 3ZZKE
(1)
Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.
(2)
Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1): (a) achieving a Part 5.3 object; (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
SECTION 3ZZRD
3ZZRD
Answers to questions asked under section 3ZZKE
An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes: (a) achieving a Part 5.3 object; (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with; (c)-(d) (Repealed by No 131 of 2021) (e) preventing, investigating or prosecuting an offence.
Division 9 - Powers of issuing officers
SECTION 3ZZSA
Powers of issuing officers
Powers conferred personally
(1)
A power conferred on an issuing officer by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2)
The issuing officer need not accept the power conferred.
Protection and immunity
(3)
An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
Division 10 - General
SECTION 3ZZTA
3ZZTA
Conduct of ordinary searches and frisk searches
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
SECTION 3ZZTB
Protection of persons - control order declared to be void
(1)
If:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void;
(c) in the purported execution of the warrant; or
(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
(2)
Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.
SECTION 3ZZTC
Dealing with things, information or documents obtained under a monitoring warrant - control order declared to be void
Scope
(1)
This section applies if: (a) a monitoring warrant was issued on the basis that an interim control order was in force; and (b) a court subsequently declares the interim control order to be void; and (c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:
Dealing
(2)
A person may: (a) adduce the thing, information or document as evidence in a proceeding; or (b) use or communicate the information; or (c) use, or communicate the contents of, the document;
Purposes
(3)
The purposes are purposes connected with: (a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the Criminal Code, so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of the Criminal Code); or (b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).
Definition
(4)
In this section:
SECTION 3ZZTD
3ZZTD
Commissioner to keep documents connected with issue of monitoring warrants
The Commissioner must cause to be kept in the Australian Federal Police's records:
(a) each monitoring warrant issued to the Australian Federal Police; and
(b) each instrument revoking a monitoring warrant; and
(c) each order under section 3ZZQA granting an extension of a period.
SECTION 3ZZTE
Commissioner to notify Ombudsman in relation to monitoring warrants
(1)
Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2)
As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.
(3)
A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.
Division 11 - Inspections by Ombudsman
SECTION 3ZZUA
Appointment of inspecting officers
(1)
The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Division.
(2)
An appointment under subsection (1) must be in writing.
SECTION 3ZZUB
Inspection of records by the Ombudsman
(1)
The Ombudsman may inspect the records of the Australian Federal Police to determine the extent of compliance by the Australian Federal Police and members and special members of the Australian Federal Police with the provisions of:
(a) this Part; or
(b) monitoring warrants.
(2)
For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the Commissioner, enter at any reasonable time premises occupied by the Australian Federal Police; and
(b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police that are relevant to the inspection; and
(c) may require a staff member of the Australian Federal Police to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the staff member's possession, or to which the staff member has access, and that is relevant to the inspection.
(3)
The Commissioner must ensure that staff members of the Australian Federal Police give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
SECTION 3ZZUC
Power to obtain relevant information
(1)
If the Ombudsman has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
(4)
If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division; and
(b) does not know the staff member's identity;
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
SECTION 3ZZUD
3ZZUD
Offence
A person commits an offence if:
(a) the person is required under section 3ZZUC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
SECTION 3ZZUE
Ombudsman to be given information etc. despite other laws
(1)
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(2)
However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
(3)
Nothing in any other law prevents a staff member of the Australian Federal Police from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the Australian Federal Police to the Ombudsman or an inspecting officer;
(4)
Nothing in any other law prevents a staff member of the Australian Federal Police from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5)
The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
SECTION 3ZZUF
Exchange of information between Ombudsman and State or Territory inspecting authorities
(1)
The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
(2)
The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3)
The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.
(4)
In this Part:
SECTION 3ZZUG
Ombudsman not to be sued
(1)
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2)
A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
SECTION 3ZZUH
Annual report
(1)
The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the results of any inspections under section 3ZZUB in the year.
(2)
The report must include the number of contraventions by the Australian Federal Police and members and special members of the Australian Federal Police of the provisions of:
(a) this Part; or
(b) monitoring warrants;
(3)
The Ombudsman must give a copy of a report under this section to the Commissioner.
(4)
A report under this section must not include information which, if made public, could reasonably be expected to:
(a) endanger a person's safety; or
(b) prejudice an investigation, or prosecution, of an offence; or
(c) compromise the operational activities or methodologies of:
Part IAABA - Monitoring of compliance with community safety supervision orders etc.
SECTION 3ZZUHA
3ZZUHA
Simplified outline of this Part
SECTION 3ZZUHB
3ZZUHB
Definitions
In this Part:
SECTION 3ZZUHC
Application of Part IAAB to community safety supervision orders
(1)
Part IAAB (other than section 3ZZJA or 3ZZJB) applies as if: (a) a reference to a Part 5.3 supervisory order included a reference to a community safety supervision order; and (b) a reference to a Part 5.3 object included a reference to a Part 9.10 object.
(2)
Subsection 3ZZOA(4) applies as if the following paragraph were inserted after paragraph (b) of that subsection: (c) in relation to a community safety supervision order - the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(3)
Paragraph 3ZZOA(5)(l) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or
(4)
Subsection 3ZZOA(5) applies as if the following paragraph were inserted after paragraph (q) of that subsection: (qa) for a community safety supervision order:
(5)
Subsection 3ZZOB(4) applies as if the following paragraph were inserted after paragraph (c) of that subsection: (d) in relation to a community safety supervision order - the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(6)
Paragraph 3ZZOB(5)(j) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or
(7)
Subsection 3ZZOB(5) applies as if the following paragraph were inserted after paragraph (o) of that subsection: (oa) for a community safety supervision order:
(8)
Paragraph 3ZZOD(1)(b) applies as if the following subparagraph were inserted after subparagraph (iii) of that paragraph: (iiia) the community safety supervision order is revoked and no further community safety supervision order is made in relation to the serious offender;
Part IAAC - Account takeover warrants
Division 1 - Introduction
SECTION 3ZZUJ
3ZZUJ
Simplified outline of this Part
(a) one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and
(b) an investigation into those offences is being, will be, or is likely to be, conducted; and
(c) taking control of the online accounts is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.
(a) was obtained under an account takeover warrant or emergency authorisation; or
(b) relates to an application for, the issue of, the existence of, or the expiration of, an account takeover warrant or emergency authorisation; or
(c) relates to an application for approval of the giving of an emergency authorisation.
(a) the Australian Federal Police and the ACC; and
(b) law enforcement officers.
SECTION 3ZZUK
3ZZUK
Definitions
In this Part:
(a) a username;
(b) a password;
(c) a PIN;
(d) a security question or answer;
(e) a biometric form of identification.
(a) a carrier within the meaning of the Telecommunications Act 1997; or
(b) a carriage service provider within the meaning of that Act.
(a) in relation to the Australian Federal Police - the Commissioner of the Australian Federal Police;
(b) in relation to the ACC - the Chief Executive Officer of the ACC.
(a) one or more computers; or
(b) one or more computer systems; or
(c) one or more computer networks; or
(d) any combination of the above.
(a) the law enforcement officer named in the warrant by the issuing magistrate as being responsible for executing the warrant; or
(b) if that law enforcement officer does not intend to execute the warrant - another law enforcement officer whose name has been written in the warrant by the law enforcement officer so named; or
(c) another law enforcement officer whose name has been written in the warrant by the law enforcement officer last named in the warrant.
(a) the Inspector-General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.
(a) the Australian Federal Police; or
(b) the ACC.
(a) in relation to the Australian Federal Police:
(b) in relation to the ACC:
(a) the Ombudsman; or
(b) a Deputy Commonwealth Ombudsman; or
(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
(a) any information obtained under an account takeover warrant or an emergency authorisation; or
(b) information relating to:
(a) a serious Commonwealth offence; or
(b) a serious State offence that has a federal aspect.
SECTION 3ZZUL
When a person takes control of an online account
(1)
For the purposes of this Part, a person takes control of an online account if the person takes one or more steps that result in the person having exclusive access to the account.
(2)
The following are examples of such steps: (a) using existing account credentials to alter one or more account credentials; (b) removing a requirement for two-factor authentication; (c) altering the kind or kinds of account credentials that are required to access or operate the account.
SECTION 3ZZUM
Appropriate authorising officer
Australian Federal Police
(1)
For the purposes of this Part, an appropriate authorising officer of the Australian Federal Police is: (a) the chief officer of the Australian Federal Police; or (b) a Deputy Commissioner of the Australian Federal Police; or (c) a senior executive AFP employee who is authorised under subsection (2).
(2)
The chief officer of the Australian Federal Police may authorise, in writing, a person who is a senior executive AFP employee to be an appropriate authorising officer of the Australian Federal Police for the purposes of this Part.
ACC
(3)
For the purposes of this Part, an appropriate authorising officer of the ACC is: (a) the chief officer of the ACC; or (b) an executive level member of the staff of the ACC who is authorised under subsection (4).
(4)
The chief officer of the ACC may authorise, in writing, a person who is an executive level member of the staff of the ACC to be an appropriate authorising officer of the ACC for the purposes of this Part.
Division 2 - Account takeover warrants
SECTION 3ZZUMA
3ZZUMA
Sunsetting
This Division ceases to have effect 5 years after it commences.
SECTION 3ZZUN
Application for account takeover warrant
(1)
A law enforcement officer may apply to a magistrate for the issue of an account takeover warrant if the law enforcement officer suspects on reasonable grounds that: (a) one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and (b) an investigation into those offences is being, will be, or is likely to be, conducted; and (c) taking control of one or more online accounts (the target accounts ) is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.
(2)
An application for an account takeover warrant may be made: (a) in person (such an application is a formal application ); or (b) if the applicant believes that it is impracticable for the application to be made in person - by telephone, email, fax or any other means of communication (such an application is an urgent application ).
(2A)
An application: (a) must specify:
Unsworn applications
(2B)
If a law enforcement officer believes that: (a) taking control of the target accounts is immediately necessary, in the course of the investigation mentioned in paragraph (1)(c), for the purpose of enabling evidence to be obtained of the commission of the offences mentioned in that paragraph; and (b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;
(2C)
If subsection (2B) applies, the applicant must: (a) provide as much information as the magistrate considers is reasonably practicable in the circumstances; and (b) not later than 72 hours after the making of the application, send a duly sworn affidavit to the magistrate, whether or not a warrant has been issued.
(2D)
If: (a) subsection (2B) applies; and (b) transmission by fax is available; and (c) an affidavit has been prepared;
(3)
An application (whether formal or urgent) must provide sufficient information to enable the magistrate to decide whether or not to issue the warrant.
(4)
A magistrate may require an applicant to provide such additional information as is necessary for the proper consideration of the application.
(5)
As soon as practicable after making an urgent application that was not made in writing, the applicant must: (a) make a written record of the application; and (b) give a copy of the record to the magistrate to whom the application was made.
SECTION 3ZZUP
Determining the application
(1)
A magistrate may issue an account takeover warrant if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.
(2)
In determining whether an account takeover warrant should be issued, the magistrate must have regard to: (a) the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought; and (b) the existence of any alternative means of obtaining the evidence sought to be obtained; and (c) the extent to which the privacy of any person is likely to be affected; and (d) the likely evidentiary value of any evidence sought to be obtained; and (da) the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer, so far as that matter is known to the magistrate; and (db) the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:
(3)
For the purposes of having regard to the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought, the magistrate must give weight to the following matters: (a) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:
(4)
Subsection (3) does not limit the matters that may be considered by the magistrate.
(5)
To avoid doubt, this Act does not prevent an account takeover warrant from being issued in a case where the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought is not covered by subsection (3).
(6)
For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits: (a) the communication, divulging or publication of information; or (b) the production of, or the publication of the contents of, a document.
SECTION 3ZZUQ
What must an account takeover warrant contain?
(1)
An account takeover warrant must: (a) state that the magistrate issuing the warrant is satisfied of the matters referred to in subsection 3ZZUP(1) and has had regard to the matters referred to in subsection 3ZZUP(2); and (b) specify:
(2)
For the purposes of subparagraph (1)(b)(vi), a target account may be specified by identifying one or more matters or things that are sufficient to identify the target account.
(3)
A warrant may only be issued for a period of no more than 90 days.
(4)
A warrant must be signed by the person issuing it and include the person's name.
SECTION 3ZZUR
What an account takeover warrant authorises
(1)
An account takeover warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to each target account.
(2)
The things that may be specified are any of the following that the magistrate considers appropriate in the circumstances: (a) taking control of the target account at any time while the warrant is in force, if doing so is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; (b) using:
(3)
For the purposes of paragraph (2)(e), if: (a) access has been obtained to account-based data; and (b) the account-based data is subject to a form of electronic protection;
When account-based data is covered by a warrant
(4)
For the purposes of this section, account-based data is covered by a warrant if access to the data is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued.
Certain acts not authorised
(5)
Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
Concealment of access etc.
(6)
If any thing has been done under: (a) an account takeover warrant; or (b) this subsection;
(7)
Subsection (6) does not authorise the doing of a thing that is likely to: (a) materially interfere with, interrupt or obstruct:
Statutory conditions
(8)
An account takeover warrant is subject to the following conditions: (a) the warrant must not be executed in a manner that results in loss or damage to data unless the damage is justified and proportionate, having regard to the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; (b) the warrant must not be executed in a manner that causes a person to suffer a permanent loss of:
(9)
Subsection (8) does not, by implication, limit the conditions to which an account takeover warrant may be subject.
(10)
The conditions set out in subsection (8) must be specified in an account takeover warrant.
SECTION 3ZZUS
Variation of account takeover warrant
(1)
A law enforcement officer to whom an account takeover warrant has been issued may, by writing, apply at any time before the expiry of the warrant: (a) for an extension of the warrant for a period of no more than 90 days after the day the warrant would otherwise expire; or (b) for a variation of any of the other terms of the warrant.
(2)
The application is to be made to a magistrate and must be accompanied by the original warrant.
(3)
The magistrate may, by writing, grant an application if satisfied that the matters referred to in subsection 3ZZUP(1) still exist, having regard to the matters in subsection 3ZZUP(2).
(4)
If the magistrate grants the application, the magistrate must endorse the new expiry date or the other varied term on the original warrant.
(5)
An application may be made under this section more than once.
SECTION 3ZZUT
Revocation of account takeover warrant
(1)
If an account takeover warrant is in force, a magistrate may, by instrument in writing, revoke the warrant.
(2)
If the circumstances set out in subsection 3ZZUU(2) apply in relation to an account takeover warrant: (a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police - the chief officer of the Australian Federal Police must, by instrument in writing, revoke the warrant; or (b) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Crime Commission - the chief officer of the Australian Crime Commission must, by instrument in writing, revoke the warrant.
(3)
The instrument revoking a warrant must be signed by the magistrate or the chief officer, as the case requires.
(4)
If a magistrate revokes an account takeover warrant, the magistrate must give a copy of the instrument of revocation to: (a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police - the chief officer of the Australian Federal Police; or. (b) if the warrant was issued in response to an application made by a law enforcement officer of the ACC - the chief officer of the ACC.
(5)
If: (a) a magistrate revokes an account takeover warrant; and (b) at the time of the revocation, a law enforcement officer is executing the warrant;
SECTION 3ZZUU
Discontinuance of execution of account takeover warrant
Scope
(1)
This section applies if an account takeover warrant is issued.
Discontinuance of execution of account takeover warrant
(2)
If: (a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and (b) the chief officer is satisfied that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued;
(3)
If: (a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and (b) the chief officer is notified that the warrant has been revoked by a magistrate under section 3ZZUT;
(4)
If the executing officer believes that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued, the executing officer must immediately inform the chief officer of the law enforcement agency to which the executing officer belongs or is seconded.
SECTION 3ZZUV
3ZZUV
Restoration of online account
If: (a) an account takeover warrant ceases to be in force; and (b) it is lawful for the holder of a target account to operate the account; and (c) as a result of the execution of the warrant, the holder of the account cannot operate the account;
SECTION 3ZZUW
3ZZUW
Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following: (a) each House of the Parliament; (b) the members of each House of the Parliament; (c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 3 - Emergency authorisations
SECTION 3ZZUWA
3ZZUWA
Sunsetting
This Division ceases to have effect 5 years after it commences.
SECTION 3ZZUX
Emergency authorisation - serious risks to person or property
(1)
A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for taking control of an online account if, in the course of an investigation of one or more relevant offences, the law enforcement officer reasonably suspects that: (a) an imminent risk of serious violence to a person or substantial damage to property exists; and (b) taking control of the account is immediately necessary for the purpose of dealing with that risk; and (c) the circumstances are so serious and the matter is of such urgency that taking control of the account is warranted; and (d) it is not practicable in the circumstances to apply for an account takeover warrant.
(2)
The application may be made orally, in writing or by telephone, fax, email or any other means of communication.
(3)
The appropriate authorising officer may give the emergency authorisation if satisfied that there are reasonable grounds for the suspicion founding the application.
Statutory conditions
(4)
An emergency authorisation is subject to the following conditions: (a) the authorisation must not be executed in a manner that results in damage to data unless the damage is justified and proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1)(a); (b) the authorisation must not be executed in a manner that causes a person to suffer a permanent loss of:
SECTION 3ZZUY
3ZZUY
Record of emergency authorisations to be made
As soon as practicable after an appropriate authorising officer gives an emergency authorisation, the officer must make a written record of the giving of that authorisation, including in the record: (a) the name of the applicant for the authorisation; and (b) the date and time the authorisation was given; and (c) the nature of the authorisation given.
SECTION 3ZZUZ
Attributes of emergency authorisations
(1)
An emergency authorisation may authorise anything that an account takeover warrant may authorise.
(2)
A law enforcement officer may take control of an online account under an emergency authorisation only if the officer is acting in the performance of the officer's duty.
SECTION 3ZZVA
Application for approval of emergency authorisation
(1)
Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer's behalf) must apply to a magistrate for approval of the giving of the emergency authorisation.
(2)
The application must: (a) provide sufficient information to enable the magistrate to decide whether or not to approve the giving of the emergency authorisation; and (b) be accompanied by a copy of the written record made under section 3ZZUY in relation to the emergency authorisation.
SECTION 3ZZVB
3ZZVB
Consideration of application
Before deciding an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate considering the application must, in particular, and being mindful of the intrusive nature of taking control of the online account, consider the following: (a) the nature of the risk of serious violence to a person or substantial damage to property; (b) the extent to which issuing an account takeover warrant would have helped reduce or avoid the risk; (c) the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk; (d) how much the use of alternative methods of investigation could have helped reduce or avoid the risk; (e) how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason; (f) whether or not it was practicable in the circumstances to apply for an account takeover warrant.
SECTION 3ZZVC
Magistrate may approve giving of an emergency authorisation
(1)
After considering an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate may give the approval if satisfied that there were reasonable grounds to suspect that: (a) there was a risk of serious violence to a person or substantial damage to property; and (b) taking control of the online account may have helped reduce the risk; and (c) it was not practicable in the circumstances to apply for an account takeover warrant.
(2)
If the magistrate approves the giving of an emergency authorisation, the magistrate may: (a) unless paragraph (b) applies - issue an account takeover warrant relating to taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2; or (b) if the magistrate is satisfied that, since the application for the emergency authorisation, the activity that required taking control of an online account has ceased - order the cessation of taking control of the online account.
(3)
If the magistrate does not approve the giving of an emergency authorisation, the magistrate may: (a) order the cessation of taking control of the online account; or (b) if the magistrate is of the view that, although the situation did not warrant the emergency authorisation at the time when the authorisation was given, the use of an account takeover warrant under Division 2 is currently justified - issue an account takeover warrant relating to the taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2.
(4)
In any case, the magistrate may order that any information obtained from or relating to the exercise of powers under the emergency authorisation, or any record of that information, be dealt with in a manner specified in the order, so long as the manner does not involve the destruction of that information.
SECTION 3ZZVD
3ZZVD
Admissibility of evidence
If the giving of an emergency authorisation is approved under section 3ZZVC, any evidence obtained because of the exercise of powers under that authorisation is not inadmissible in any proceeding only because the evidence was obtained before the approval.
SECTION 3ZZVE
3ZZVE
Restoration of online account
If: (a) a magistrate orders the cessation of taking control of the online account to which an emergency authorisation relates; and (b) as a result of the execution of the authorisation, the holder of the account cannot operate the account;
SECTION 3ZZVF
3ZZVF
Relationship of this Division to parliamentary privileges and immunities
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following: (a) each House of the Parliament; (b) the members of each House of the Parliament; (c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
Division 4 - Assistance orders
SECTION 3ZZVG
Person with knowledge of an online account to provide assistance
(1)
If an account takeover warrant or emergency authorisation is in force, a law enforcement officer may apply to a magistrate for an order (the assistance order ) requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the law enforcement officer to take control of an online account that is the subject of the warrant or authorisation.
Grant of assistance order
(2)
The magistrate may grant the assistance order if the magistrate is satisfied that: (a) there are reasonable grounds for suspecting that taking control of the account is necessary, in the course of the investigation to which the account takeover warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; and (b) the specified person is:
(2A)
In determining whether the assistance order should be granted, the magistrate must have regard to whether the specified person is, or has been, subject to: (a) another order under this section; or (b) an order under section 3LA of this Act; or (c) an order under section 64A or 64B of the Surveillance Devices Act 2004;
(2B)
Subsection (2B) does not limit the matters to which the magistrate may have regard.
Duration of assistance order
(2C)
If an assistance order is granted in relation to a computer that is the subject of an account takeover warrant, the order ceases to be in force when the warrant ceases to be in force.
(2D)
If an assistance order is granted in relation to a computer that is the subject of an emergency authorisation, the order ceases to be in force when the emergency authorisation ceases to be in force.
Protection from civil liability
(2E)
A person is not subject to any civil liability in respect of an act done by the person: (a) in compliance with an assistance order; or (b) in good faith in purported compliance with an assistance order.
Offence
(3)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement.
Additional use of information etc.
(4)
If information or assistance is provided under this section in connection with an investigation into one or more alleged relevant offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of a section 3E warrant that relates to that investigation.
Division 5 - Restrictions on use and disclosure of information
SECTION 3ZZVH
Unauthorised use or disclosure of protected information
(1)
A person commits an offence if: (a) the person uses or discloses information; and (b) the information is protected information.
(2)
A person commits an offence if: (a) the person uses or discloses any information; and (b) the information is protected information; and (c) the use or disclosure of the information endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.
Exceptions
(3)
Subsections (1) and (2) do not apply if the use or disclosure was: (a) in connection with the administration or execution of this Part; or (b) in connection with the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979; or (c) in connection with the functions of the ACC under section 7A of the Australian Crime Commission Act 2002; or (d) in connection with preventing, investigating or prosecuting an offence; or (e) by a person who believes on reasonable grounds that the use or disclosure is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or (f) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or (g) for the purposes of obtaining legal advice in relation to this Part; or (h) in accordance with any requirement imposed by law; or (i) in connection with the performance of functions or duties, or the exercise of powers, under this Part; or (j) in connection with the performance of functions or duties, or the exercise of powers, by:
(4)
Subsections (1) and (2) do not apply if the disclosure was made by a person to an Ombudsman official (whether in connection with a complaint made to the Ombudsman or in any other circumstances).
(5)
Subsections (1) and (2) do not apply if the disclosure was made by a person to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
SECTION 3ZZVJ
3ZZVJ
Dealing with records obtained under, or relating to, account takeover warrants etc.
The chief officer of the Australian Federal Police or the ACC: (a) must ensure that every record or report comprising protected information is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and (b) must cause to be destroyed any record or report referred to in paragraph (a):
SECTION 3ZZVK
Protection of account takeover technologies and methods
(1)
In a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of account takeover technologies or methods.
(2)
If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, the person may order that the person who has the information not be required to disclose it in the proceeding.
(3)
In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information: (a) is necessary for the fair trial of the defendant; or (b) is in the public interest.
(4)
Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.
(5)
If the person conducting or presiding over a proceeding is satisfied that publication of any informationdisclosed in the proceeding could reasonably be expected to reveal details of account takeover technologies or methods, the person must make any orders prohibiting or restricting publication of the information that the person considers necessary to ensure that those details are not revealed.
(6)
Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.
(7)
In this section:
(a) technologies or methods relating to the use of:
(b) technologies or methods relating to adding, copying, deleting or altering account-based data, if doing so is necessary to achieve the purpose mentioned in paragraph (a); or
(c) technologies or methods relating to adding, copying, deleting or altering account credentials to which an online account relates, if doing so is necessary to achieve the purpose mentioned in paragraph (a);
Division 6 - Reporting and record keeping
SECTION 3ZZVL
Chief officers' annual reports to the Minister and the Ombudsman
(1)
As soon as practicable after 30 June in each year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister and the Ombudsman that sets out: (a) the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months, and the dates on which those applications were made; and (b) the number of account takeover warrants issued during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, and the dates on which those warrants were issued; and (c) if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:
(2)
The following information is listed for the purposes of subparagraph (1)(h)(vi): (a) the name of the executing officer; (b) the names of any other law enforcement officers involved in executing the warrant; (c) the period during which the warrant was executed; (d) the target account; (e) if the holder of the target account is known to the executing officer - the holder; (f) if one or more users of the target account (other than the holder of the target account) are known to the executing officer - those users; (g) details of the benefit of the execution of the warrant to the investigation of a relevant offence; (h) details of how information obtained under the warrant was used; (i) details of the communication of information obtained under the warrant to persons other than:
(3)
For the purposes of paragraph (2)(d), the target account may be specified by identifying one or more matters and things that are sufficient to identify the account.
SECTION 3ZZVM
Chief officers' annual reports to the Minister
(1)
As soon as practicable, and in any event within 3 months, after the end of each financial year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister that sets out: (a) the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (b) the number of account takeover warrants issued during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (c) if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (d) the number of urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (e) the number of account takeover warrants issued during the financial year in response to urgent applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (f) if one or more urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (g) if one or more variations of account takeover warrants were granted during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires - the number of those variations; and (h) if one or more applications for variations of account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (i) the number of applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (j) the number of emergency authorisations given during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (k) if one or more applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (l) if one or more applications for approval of the giving of emergency authorisations were made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year - the number of those applications; and (m) if the giving of one or more emergency authorisations were approved during the financial year in response to applications made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires - the number of those approvals; and (n) if one or more applications for approval of the giving of emergency authorisations made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (o) the types of relevant offences in respect of which account takeover warrants or emergency authorisations were sought by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (p) the number of arrests that were made during the financial year on the basis (wholly or partly) of information obtained under account takeover warrants issued, or emergency authorisations given, in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (q) the number of prosecutions for relevant offences that were commenced during the financial year in which information obtained under account takeover warrants or emergency authorisations was given in evidence, and the number of those prosecutions in which a person was found guilty.
(2)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives it.
(3)
A copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.
SECTION 3ZZVN
3ZZVN
Keeping documents connected with account takeover warrants
The chief officer of the Australian Federal Police or the ACC must cause the following to be kept: (a) a copy of each application for an account takeover warrant that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (b) a copy of each account takeover warrant that was issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (c) each written application for an emergency authorisation made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (d) a copy of each emergency authorisation that was given in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (e) a copy of each application made by or on behalf of an appropriate authorising officer for approval of the giving of an emergency authorisation to a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (f) a copy of each section 3ZZVG assistance order that was made in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (g) a copy of each application for a section 3ZZVG assistance order that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (h) if an application for a variation of an account takeover warrant was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires - a copy of the application; (i) if an account takeover warrant that was varied in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires - a copy of the variation; (j) if an account takeover warrant issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires, was revoked - a copy of the revocation; (k) each written record made under subsection 3ZZUN(5); (l) a copy of each report given to the Minister and the Ombudsman under section 3ZZVL.
SECTION 3ZZVP
Register of applications for account takeover warrants and emergency authorisations
(1)
The chief officer of the Australian Federal Police or the ACC must cause to be kept a register of: (a) applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (b) applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires.
(2)
The register is to specify, for each account takeover warrant sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires: (a) the date the warrant was issued or refused; and (b) the date of the application for the warrant; and (c) whether the application for the warrant was a formal application or an urgent application; and (d) the name of the magistrate who issued or refused to issue the warrant; and (e) the name of the applicant for the warrant; and (f) if the warrant was issued:
(3)
The register is to specify, for each emergency authorisation sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires: (a) the date the authorisation was given or refused; and (b) the name of the appropriate authorising officer who gave or refused to give the authorisation; and (c) if the authorisation was given:
(4)
A register kept under this section is not a legislative instrument.
Division 7 - Inspections
SECTION 3ZZVQ
3ZZVQ
Appointment of inspecting officers
The Ombudsman may, by writing, appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Part.
SECTION 3ZZVR
Inspection of records by the Ombudsman
(1)
The Ombudsman must, from time to time and at least once every 12 months, inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by: (a) the Australian Federal Police or the ACC, as the case requires; and (b) law enforcement officers of the Australian Federal Police or the ACC, as the case requires.
(2)
For the purpose of an inspection under this section, the Ombudsman: (a) may, after notifying the chief officer of the Australian Federal Police or the ACC, enter at any reasonable time premises occupied by the Australian Federal Police or the ACC, as the case requires; and (b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police or the ACC that are relevant to the inspection; and (c) may require a member of staff of the Australian Federal Police or the ACC to give the Ombudsman any information that the Ombudsman considers necessary, so long as:
(3)
The chief officer of the Australian Federal Police or the ACC must ensure that members of staff of the Australian Federal Police or the ACC, as the case requires, give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
SECTION 3ZZVS
Power to obtain relevant information
(1)
If the Ombudsman has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman: (a) by writing signed by the officer; and (b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend: (a) before a specified inspecting officer; and (b) at a specified place; and (c) within a specified period or at a specified time on a specified day;
(4)
If the Ombudsman: (a) has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC; and (b) does not know the officer's identity;
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
SECTION 3ZZVT
3ZZVT
Offence
A person commits an offence if: (a) the person is required under section 3ZZVS to attend before an inspecting officer, to give information or to answer questions; and (b) the person refuses or fails to do so.
SECTION 3ZZVU
Ombudsman to be given information and access despite other laws
(1)
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be: (a) would contravene a law; or (b) would be contrary to the public interest; or (c) might tend to incriminate the person; or (d) would disclose one of the following:
(2)
However, if the person is an individual: (a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and (b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
(3)
If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information, answering a question, or giving access to a document, as and when required under this Division, the individual is not excused from giving the information, answering the question, or giving access to the document, as the case may be, on that ground.
(4)
Nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the Australian Federal Police or the ACC from: (a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or (b) giving access to a record of the Australian Federal Police or the ACC, as the case requires, to an inspecting officer;
(5)
Nothing in section 3ZZVH or in any other law prevents a law enforcement officer from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (4).
(6)
The fact that a person is not excused under subsection (1) or (3) from giving information, answering a question or giving access to a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
(7)
In this section:
SECTION 3ZZVV
Delegation by Ombudsman
(1)
The Ombudsman may, by writing, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman's functions or powers under this Division, other than section 3ZZVX.
(2)
A delegate must, on request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
SECTION 3ZZVW
3ZZVW
Ombudsman not to be sued
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
SECTION 3ZZVX
Report on inspection
(1)
The Ombudsman must make a written report to the Minister at 12 monthly intervals on the results of each inspection under section 3ZZVR.
(2)
The report must not include information which, if made public, could reasonably be expected to: (a) prejudice an investigation or prosecution; or (b) compromise any law enforcement agency's operational activities or methodologies.
(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Division 8 - Miscellaneous
SECTION 3ZZVY
Minor defects in connection with account takeover warrant
(1)
If: (a) information is purportedly obtained under an account takeover warrant; and (b) there is a defect or irregularity in relation to the warrant; and (c) but for that defect or irregularity, the warrant would be a sufficient authority for obtaining the information;
(2)
A reference in subsection (1) to a defect or irregularity in relation to the warrant is a reference to a defect or irregularity (other than a substantial defect or irregularity): (a) in, or in connection with the issue of, a document purporting to be that warrant; or (b) in connection with the execution of that warrant or the purported execution of a document purporting to be that warrant.
SECTION 3ZZVZ
Evidentiary certificates
(1)
A law enforcement officer may issue a written certificate signed by the officer setting out any facts the officer considers relevant with respect to: (a) anything done by the law enforcement officer, or by a person assisting or providing technical expertise to the law enforcement officer, in connection with the execution of an account takeover warrant; or (b) anything done by the law enforcement officer in connection with:
(2)
A certificate issued under subsection (1) is admissible in evidence in any proceedings as prima facie evidence of the matters stated in the certificate.
SECTION 3ZZWA
Compensation for property loss or serious damage
(1)
If a person suffers: (a) loss of or serious damage to property; or (b) personal injury;
(2)
Subsection (1) does not apply if the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity.
Part IA - General
SECTION 4
4
Application of the common law
SECTION 4AAA
Commonwealth laws conferring non-judicial functions and powers on officers
(1)
Application.
(2)
Functions and powers conferred personally.
(3)
Function or power need not be accepted.
(4)
A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member).
(5)
A person referred to in paragraph (1)(c) performing a conferred function, or exercising a conferred power, has the same protection and immunity as he or she would have in performing functions and powers as part of the person's employment with a State or Territory court, as the case may be.
(6) This section applies regardless of when Commonwealth law made.
(7)
A law of the Commonwealth relating to criminal matters.
SECTION 4AAB
Arrangements for conferral of non-judicial functions and powers
4AAB(1)
Governor-General may make arrangements.
(a) the Governor of a State (excluding the Northern Territory); and
(b) the Chief Minister for the Australian Capital Territory; and
(c) the Administrator of the Northern Territory;
(d) (Repealed by No 59 of 2015)
(e) a State or Territory judge; or
(f) a magistrate; or
(g) a Justice of the Peace or other person:
4AAB(2)
Lack of arrangement does not affect validity of exercise of power or performance of function.
SECTION 4A
DEFINITION OF
WIDELY-HELD COMPLYING SUPERANNUATION FUND
4A(1)
[Term defined]
(a) it has 5 or more members; and
(b) it satisfies the test in either subsection (2) or (3).
4A(2)
Resident
funds.
(a) it is a superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and
(b) it is a non-resident superannuation fund (within the meaning of the Income Tax Assessment Act 1936); and
(c) it is established for the sole or principal purpose of providing retirement benefits for its members; and
(d) it complies with the applicable laws of a foreign country that regulate funds established for that purpose.
SECTION 4AA
Penalty units
(1)
In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:
(1A)
If the amount of a penalty unit is indexed under subsection (3), the Minister must, by notifiable instrument, publish the amount of a penalty unit. However, a failure by the Minister to do so does not invalidate the indexation.
(2)
In this section:
(a) was made under an Act providing for the acceptance, administration or government of a Territory; and
(b) has not become an enactment of the Australian Capital Territory;
Indexation of penalty unit
(3)
On 1 July 2026 and each third 1 July following that day (an indexation day ), the dollar amount mentioned in subsection (1) is replaced by the amount worked out using the following formula:
(4)
The indexation factor for an indexation day is the number worked out using the following formula:
(5)
An indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more).
(6)
Amounts worked out under subsection (3) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).
(7)
Calculations under subsection (4): (a) are to be made using only the index numbers published in terms of the most recently published index reference period; and (b) are to be made disregarding index numbers that are published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).
Application of indexed penalty unit
(8)
If the dollar amount mentioned in subsection (1) is increased in accordance with subsection (3), the increased amount only applies to offences committed on or after the indexation day.
SECTION 4AB Conversion of pecuniary penalties expressed in dollar amounts to penalty units (1)
A reference in a law of the Commonwealth or in a Territory Ordinance to a pecuniary penalty of D dollars, where D is a number, is taken to be a reference to a pecuniary penalty of P penalty units, where P is:
(a) if D ÷ 100 is a whole number-that whole number; or
(b) if D ÷ 100 is not a whole number-the next highest whole number.
(2)
Subsection (1) does not apply to a reference to the maximum amount of a penalty that is not imposed by a court, or by a service tribunal under the Defence Force Discipline Act 1982.
(3)
Subsection (1) does not apply to:
(a) section 76 of the Competition and Consumer Act 2010; or
(b) (Repealed by No 55 of 2001)
(c) a provision of a law of the Commonwealth prescribed for the purposes of this subsection.
(4)
In this section:
SECTION 4B Pecuniary penalties-natural persons and bodies corporate (1)
A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.
(2)
Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
(2A)
Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.
(3)
Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.
(3A)
Where an Act (whether enacted before or after the commencement of this subsection) confers power to make an instrument (including rules, regulations or by-laws but not including a law of a Territory) and specifies the maximum pecuniary penalty that can be imposed for offences created by such an instrument, then:
(a) unless the contrary intention appears, the specified penalty is taken to be the maximum penalty that the instrument can prescribe for such offences by natural persons; and
(b) where a body corporate is convicted of such an offence-the specifying of that penalty is not to be treated as an indication of a contrary intention for the purposes of applying subsection (3).
(4)
Where under a law of the Commonwealth any forfeiture, penalty or reparation is paid to a person aggrieved, it is payable to a body corporate where the body corporate is the person aggrieved.
SECTION 4C Offences under 2 or more laws (1)
Where an act or omission constitutes an offence:
(a) under 2 or more laws of the Commonwealth; or
(b) both under a law of the Commonwealth and at common law;
(2)
Where an act or omission constitutes an offence under both:
(a) a law of the Commonwealth and a law of a State; or
(b) a law of the Commonwealth and a law of a Territory;
(3)
Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.
SECTION 4D Penalties (1)
Except so far as the contrary intention appears, a penalty, whether pecuniary or otherwise, set out at the foot of any provision of an Act as described in a paragraph of subsection (1A) indicates:
(a) if the provision expressly creates an offence - that the offence is punishable on conviction by a penalty not exceeding the penalty so set out; or
(b) in any other case - that contravention of the provision is an offence against the provision, punishable on conviction by a penalty not exceeding the penalty so set out.
(1A)
Subsection (1) applies to a penalty set out:
(a) at the foot of a section of an Act; or
(b) at the foot of a subsection of an Act, but not at the foot of the section containing the subsection; or
(c) at the foot of a clause of any Schedule to an Act; or
(d) at the foot of a subclause of any Schedule to an Act, but not at the foot of the clause containing the subclause.
(1B)
Subsection (1) does not affect the operation of subsection 4B(2), (2A) or (3).
(2)
Subsection (1) applies to any instrument made under an Act (including rules, regulations or by-laws but not including a law of a Territory) as if the instrument were an Act and as if each such rule, regulation or by-law were a section of an Act.
SECTION 4E 4E Pecuniary penalties
A pecuniary penalty for an offence against a law of the Commonwealth may, unless the contrary intention appears, be recovered in any court of summary jurisdiction. SECTION 4F Effect of alterations in penalties (1)
Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.
(2)
Where a provision of a law of the Commonwealth reduces the penalty or maximum penalty for an offence, the penalty or maximum penalty as reduced extends to offences committed before the commencement of that provision, but the reduction does not affect any penalty imposed before that commencement.
SECTION 4G 4G Indictable offences
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears. SECTION 4H 4H Summary offences
Offences against a law of the Commonwealth, being offences which:
(a) are punishable by imprisonment for a period not exceeding 12 months; or
(b) are not punishable by imprisonment;
Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2)
Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3)
Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose: (a) where the offence is punishable by imprisonment for a period not exceeding 5 years - a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or (b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4)
A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5)
Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6)
A court of summary jurisdiction shall not impose under subsection (3) or (5): (a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment; (b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or (c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7)
This section does not apply to an offence against: (a) (Repealed by No 67 of 2018) (b) Division 80 (other than Subdivision CA) of the Criminal Code (treason, urging violence and advocating terrorism or genocide); or (c) Division 82 of the Criminal Code (sabotage); or (d) Division 91 of the Criminal Code (espionage); or. (e) Division 92 of the Criminal Code (foreign interference).
SECTION 4JA Some indictable offences punishable by fine only may be dealt with summarily (1)
A court of summary jurisdiction may hear and determine an indictable offence if:
(a) the offence is not punishable by imprisonment; and
(b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and
(c) the defendant and prosecution consent.
(2)
If the defendant is convicted, the court may impose a pecuniary penalty of:
(a) not more than 60 penalty units for an individual or 300 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 300 penalty units for an individual or 1,500 penalty units for a body corporate; or
(b) not more than 120 penalty units for an individual or 600 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate.
(3)
This section has effect subject to any contrary intention indicated by the law creating the offence.
(4)
Without limiting subsection (3), this section does not apply to an indictable offence:
(a) created by a law that provides that the offence may be heard and determined by a court of summary jurisdiction; or
(b) described in subsection 4J(4) (about offences relating to property valued at $5,000 or less).
SECTION 4K Continuing and multiple offences (1)
Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.
(2)
Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person commits an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.
(3)
Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
(4)
If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
SECTION 4L 4L Specified defences not to preclude other defences
Where a provision of a law of the Commonwealth provides a defence to a particular offence, the provision does not, unless the contrary intention appears, prevent the use of any defence that is otherwise available. SECTION 4M 4M Children under 10
A child under 10 years old cannot be liable for an offence against a law of the Commonwealth. SECTION 4N Children over 10 but under 14 (1)
A child aged 10 years or more but under 14 years old can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong.
(2)
The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
SECTION 5 5 Aiders and abettors
SECTION 6
6
Accessory after the fact
Any person who receives or assists another person, who has, to his or her knowledge, committed any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence commits an offence.
SECTION 7
7
Attempt
SECTION 7A
7A
Inciting to or urging the commission of offences
SECTION 9
Seizure and condemnation of forfeitable goods
(1)
Any constable may, without warrant, seize any articles which are forfeited or which he or she has reasonable ground to believe are forfeited under any law of the Commonwealth, and take them before a court of summary jurisdiction.
(2)
Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:
(a) if the court is satisfied that the articles are forfeited-shall order that the articles be condemned; or
(b) if the court is not so satisfied-shall order that the articles be delivered to such person as the court is satisfied is entitled to the articles.
(2A)
A court of summary jurisdiction may, before inquiring into a matter under subsection (2), require notice of the inquiry to be given to such persons as the court thinks fit.
(3)
Where any prosecution is pending, an order for the condemnation or the delivery to any persons of any articles relating thereto shall not be made until the prosecution is determined.
(4)
All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9A.
SECTION 9A 9A Forfeited articles to be dealt with by Official Trustee
Where articles are transferred to the Official Trustee under subsection 9(4), the Official Trustee must, subject to any direction by the Minister administering the Proceeds of Crime Act 2002 given in a particular case:
(a) sell or otherwise dispose of the articles; and
(b) apply the proceeds of the sale or disposition in payment of the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in section 9B payable to or incurred by it in connection with the sale or disposition; and
(c) credit the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.
SECTION 9B
Costs etc. payable to Official Trustee
(1)
The regulations may make provision in relation to:
(a) the costs, charges and expenses incurred in connection with; and
(b) the Official Trustee's remuneration in respect of;
(2)
An amount equal to each amount of remuneration that the Official Trustee receives under the regulations is to be paid to the Commonwealth.
(3)
Where there are no regulations in relation to a matter referred to in subsection (1):
(a) the regulations referred to in section 288 of the Proceeds of Crime Act 2002 apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and
(b) a reference in subsection (1) or (2) to regulations is taken to be a reference to the regulations referred to in section 288 of the Proceeds of Crime Act 2002.
SECTION 13 13 Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. SECTION 14 14 Proof of exceptions etc.
SECTION 15
15
Remand of defendant
Where a person is charged, before a court of summary jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the court before whom the accused person appears or is brought, may:
(a) by warrant from time to time remand the defendant to some gaol, lock-up, or other place of custody for such period as the court shall deem necessary to be there kept until the time appointed for continuing the hearing; or
(b) order the discharge of the defendant upon his or her entering into a recognizance conditioned for his or her appearance at the time and place appointed for continuing the hearing. SECTION 15AA Bail not to be granted in certain cases (1)
Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
Persons covered by this section
(2)
This subsection covers a person (the defendant ) charged with, or convicted of, any of the following offences: (a) a terrorism offence; (b) an offence against a law of the Commonwealth, if:
This Act may be cited as the Crimes Act 1914. SECTION 3 INTERPRETATION (1)
In this Act, unless the contrary intention appears:
Aboriginal person
means a person of the Aboriginal race of Australia.
ACC
means the Australian Crime Commission.
View history note
Hide history note
ACC authorising officer
(Repealed by No 3 of 2010, Sch 3 item 1, effective 19 February 2010.)
ACLEI authorising officer
(Repealed by No 3 of 2010, Sch 3 item 2, effective 19 February 2010.)
AFP authorising officer
(Repealed by No 3 of 2010, Sch 3 item 3, effective 19 February 2010.)
appropriate authorising officer
(Repealed by No 3 of 2010, Sch 3 item 4, effective 19 February 2010.)
(a) in relation to an offence against section 233B of the Customs Act 1901 - an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(i) an offence under section 236 or 237 of that Act that relates to the offence; or
(ii) an offence under section 7A or subsection 86(1) of this Act that relates to the offence; or
(b) in relation to an offence against section 10, 11, 12, 13 or 14 of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 - an ancillary offence (within the meaning of the Criminal Code) that relates to the offence; or
(c) in relation to an offence against a law of a State or Territory - an offence:
(i) under a provision of a law of that State or Territory that corresponds to a provision of Part 2.4 of the Criminal Code; and
(ii) that relates to the offence.
Australian law enforcement officer
means a law enforcement officer other than a member of a police force, or other law enforcement agency, of a foreign country.
authorising officer
(Repealed by No 3 of 2010, Sch 3 item 5, effective 19 February 2010.)
bail authority
means a court or person authorised to grant bail under a law of the Commonwealth, a State or a Territory.
child
: without limiting who is a child of a person for the purposes of this Act, someone is the
child
of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.
child abuse material
has the same meaning as in Part 10.6 of the Criminal Code.
child pornography material
(Repealed by No 72 of 2019)
child sexual abuse offence
means:
(a) a Commonwealth child sex offence; or
(b) an offence against section 273.5, 471.16, 471.17, 474.19 or 474.20 of the Criminal Code as in force at any time before the commencement of Schedule 7 to the Combatting Child Sexual Exploitation Legislation Amendment Act 2019; or
(c) an offence against Part IIIA of this Act as in force at any time before the commencement of Schedule 1 to the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010; or
(d) a State or Territory registrable child sex offence.
Commissioner
means the Commissioner of the Australian Federal Police.
Commonwealth child sex offence
means:
(a) an offence against any of the following provisions of the Criminal Code:
(i) Division 272 (Child sex offences outside Australia);
(ii) Division 273 (Offences involving child abuse material outside Australia);
(iia) Division 273A (Possession of child-like sex dolls etc.);
(iii) Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);
(iv) Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children ); or
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or
(c) an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.
Commonwealth child sexual abuse offence
means a Commonwealth child sex offence, other than an offence against subsection 272.8(1) or (2), 272.9(1) or (2), section 272.10, 272.11, 272.18, 272.19, 273.7, 471.22, 474.23A or 474.24A, subsection 474.25A(1) or (2) or section 474.25B or 474.25C of the Criminal Code.
Commonwealth entity
has the meaning given by section 10 of the Public Governance, Performance and Accountability Act 2013.
Commonwealth offence
, except in Part IC, means an offence against a law of the Commonwealth.
Commonwealth officer
means a person holding office under, or employed by, the Commonwealth, and includes:
(a) a person appointed or engaged under the Public Service Act 1999;
(aa) a person permanently or temporarily employed in the Public Service of a Territory or in, or in connection with, the Defence Force, or in the Service of a public authority under the Commonwealth;
(b) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979).
(c)-(d) (Repealed by No 67 of 2018)
confiscation proceedings
has a meaning affected by subsection 16AC(5).
constable
means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory.
controlled operation
(Repealed by No 3 of 2010, Sch 3 item 6, effective 19 February 2010.)
(a) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(b) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
conveyance
includes an aircraft, vehicle or vessel.
criminal detention
has the meaning given by section 45A.
cultural heritage
has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999, and includes sacred sites.
cultural heritage object
means an object that is important for cultural, religious, ethnological, archaeological, historical, literary, artistic, scientific or technological reasons.
(a) information in any form; and
(b) any program (or part of a program).
data storage device
means a thing containing, or designed to contain, data for use by a computer.
de facto partner
has the meaning given by the Acts Interpretation Act 1901.
Defence Department
means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
dentist
means a dental practitioner within the meaning of the Health Insurance Act 1973.
Deputy Commissioner
means a Deputy Commissioner of the Australian Federal Police.
federal aspect
, in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).
Note:
This subsection defines State to include the Northern Territory.
federal court
means the High Court or a court created by the Parliament, other than a court of a Territory.
federal criminal detention
has the meaning given by section 45A.
federal judicial proceeding
has the meaning given by section 31.
Foreign Affairs Department
means the Department administered bythe Minister administering the Diplomatic Privileges and Immunities Act 1967.
Foreign Affairs Minister
means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
have in possession
includes having under control in any place whatever, whether for the use or benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question.
IGIS official
(short for Inspector-General of Intelligence and Security official) means:
(a) the Inspector-General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.
illicit goods
means goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.
Immigration and Border Protection Department
means the Department administered by the Minister administering the Australian Border Force Act 2015.
Inspector of the National Anti-Corruption Commission
means the Inspector within the meaning of the National Anti-Corruption Commission Act 2022.
Integrity Commissioner
(Repealed by No 89 of 2022)
integrity purpose
means the purpose of preventing, detecting, investigating or dealing with any of the following:
(a) misconduct (within the meaning of the Privacy Act 1988) of a serious nature by any of the following:
(i) an official (as defined in section 13 of the Public Governance, Performance and Accountability Act 2013) of a Commonwealth entity;
(ii) a person employed by, or in the service of, a Privacy Act agency or a wholly owned Commonwealth company;
(iii) a person acting on behalf of, or for the purposes of activities of, a Privacy Act agency;
(iv) an officer of a wholly owned Commonwealth company;
(b) conduct that may have the purpose or effect of inducing misconduct described in paragraph (a);
(c) fraud that has or may have a substantial adverse effect on the Commonwealth or a target entity;
(d) an offence against Chapter 7 of the Criminal Code (which is about the proper administration of Government).
Note 1: An example of dealing with the matters described in paragraphs (a), (b), (c) and (d) is taking legal proceedings, disciplinary proceedings or other administrative action.
Note 2: An integrity purpose relating to misconduct of a person covered by a subparagraph of paragraph (a) does not cease to exist merely because the person ceases to be covered by that subparagraph after the misconduct occurs.
judicial proceeding
has the meaning given by section 31 (other than in section 3L).
judicial tribunal
has the meaning given by section 31.
law enforcement officer
(except in Part IAAC) means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member of the police force of a State or Territory;
(ba) a staff member of the NACC;
(c) a member of the staff of the ACC;
(d) an officer of Customs;
(e) a member of a police force, or other law enforcement agency, of a foreign country.
major controlled operation
(Repealed by No 3 of 2010, Sch 3 item 7, effective 19 February 2010.)
medical practitioner
has the same meaning as in the Health Insurance Act 1973.
member of the staff of the ACC
has the same meaning as in the Australian Crime Commission Act 2002.
narcotic goods
has the same meaning as in the Customs Act 1901.
"narcotic goods offence"
(Repealed by No 136 of 2001)
National Anti-Corruption Commissioner
means the Commissioner within the meaning of the National Anti-Corruption Commission Act 2022.
National Anti-Corruption Deputy Commissioner
means a Deputy Commissioner within the meaning of the National Anti-Corruption Commission Act 2022.
"NCA authorising officer"
(Repealed by No 125 of 2002)
nominated Tribunal member
(Repealed by No 3 of 2010, Sch 3 item 8, effective 19 February 2010.)
nurse
means a registered nurse within the meaning of the Health Insurance Act 1973.
officer of Customs
has the meaning given by subsection 4(1) of the Customs Act 1901.
Official Trustee
means the Official Trustee in Bankruptcy.
parent
, without limiting who is a parent of a person for the purposes of this Act, someone (the
adult
) is the
parent
of a person if:
(a) the adult is legally entitled to, and has, custody of the person; or
(b) the adult is legally responsible for the day-to-day care, welfare and development of the person and has the person in his or her care.
participating State
has the meaning given by subsection 3B(2).
participating Territory
has the meaning given by subsection 3B(2).
person assisting the NACC Inspector
means a person assisting the Inspector within the meaning of the National Anti-Corruption Commission Act 2022.
person targeted
(Repealed by No 3 of 2010, Sch 3 item 9, effective 19 February 2010.)
personal information
has the meaning given by section 6 of the Privacy Act 1988.
Privacy Act agency
has the same meaning as agency has in the Privacy Act 1988.
property
includes money and every thing, animate or inanimate, capable of being the subject of ownership.
public authority under the Commonwealth
means any authority or body constituted by or under a law of the Commonwealth or of a Territory.
quarter
means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.
quarter
means a period of 3 months ending on 31 January, 30 April, 31 July or 31 October.
Queen's dominions
(Repealed by No 67 of 2018)
relative
has a meaning affected by subsection (3).
senior executive AFP employee
has the same meaning as in the Australian Federal Police Act 1979.
sensitive information
has the meaning given by section 6 of the Privacy Act 1988.
staff member of ACLEI
(Repealed by No 89 of 2022)
staff member of the NACC
has the same meaning as in the National Anti-Corruption Commission Act 2022.
State
includes the Northern Territory.
State offence
means an offence against a law of a State or the Australian Capital Territory.
State or Territory registrable child sex offence
means an offence:
(a) that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and
(b) in respect of which:
(i) a child was a victim or an intended victim; or
(ii) the offending involved child abuse material.
substantial adverse effect
means an effect that is adverse and not insubstantial, insignificant or trivial.
(a) a Privacy Act agency; or
(b) a wholly-owned Commonwealth company.
Note: A target entity is an APP entity as defined in section 6 of the Privacy Act 1988, because it is either an agency or an organisation for the purposes of that Act (as a wholly owned Commonwealth company is an organisation as defined in section 6C of that Act).
Territory
does not include the Northern Territory.
(a) an offence against Subdivision A of Division 72 of the Criminal Code; or
(aa) an offence against Subdivision B of Division 80 of the Criminal Code; or
(b) an offence against Part 5.3 or 5.5 of the Criminal Code; or
(ba) an offence against Subdivision HA of Division 474 of the Criminal Code; or
(c) an offence against either of the following provisions of the Charter of the United Nations Act 1945:
(i) Part 4 of that Act;
(ii) Part 5 of that Act, to the extent that it relates to the Charter of the United Nations (Sanctions - Al-Qaida) Regulations 2008.
terrorist act
as the same meaning as in subsection 100.1(1) of the Criminal Code.
thing relevant to an indictable offence
means:
(a) either of the following:
(i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
thing relevant to a summary offence
means:
(a) either of the following:
(i) anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is a summary or simple offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or
(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or
(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.
Torres Strait Islander
means a descendent of an indigenous inhabitant of the Torres Strait Islands.
wholly owned Commonwealth company
has the meaning given by section 90 of the Public Governance, Performance and Accountability Act 2013.
(2)
In this Act, a reference to a fine includes a reference: (a) to a pecuniary penalty other than a pecuniary penalty imposed:
(i) under Division 3 of Part XIII of the Customs Act 1901; or
(ii) by a pecuniary penalty order, a literary proceeds order or an unexplained wealth order made under the Proceeds of Crime Act 2002; or
(iia) by a pecuniary penalty order made under the Proceeds of Crime Act 1987; or
(iii) by a superannuation order made under the Australian Federal Police Act 1979; or
(b) to costs or other amounts ordered to be paid by offenders.
(iv) by a superannuation order made under the Crimes (SuperannuationBenefits) Act 1989; or
(3)
For the purposes of this Act, the relatives of a person are taken to include the following (without limitation): (a) a de facto partner of the person; (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in this section; (c) anyone else who would be a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a relative of the person.
SECTION 3AA STATE OFFENCES THAT HAVE A FEDERAL ASPECT
Object
3AA(1A)
The object of this section is to identify State offences that have a federal aspect because:
(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.
State offences that have a federal aspect
3AA(1)
For the purposes of this Act, a State offence has a federal aspect if, and only if:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State - the provision would have been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a particular primary offence; and
(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State - the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence - that provision would have been a valid law of the Commonwealth; or
(d) both:
(i) the Australian Federal Police is investigating an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian Federal Police is investigating, or were to investigate, the State offence - that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).
Specificity of acts or omissions
3AA(2)
For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).
State offences covered by paragraph (1)(c)
3AA(3)
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.
3AA(4)
Subsection (3) does not limit paragraph (1)(c).
Definitions
3AA(5)
In this section:
ancillary offence,
in relation to an offence (the
primary offence
), means:
(a)an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.
Commonwealth place
has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970.
conduct
has the same meaning as in the Criminal Code.
constitutional corporation
means a corporation to which paragraph 51(xx) of the Constitution applies.
electronic communication
means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
engage in conduct
has the same meaning as in the Criminal Code.
State
includes the Australian Capital Territory and the Northern Territory.
State offence
means an offence against a law of a State.
Note:
Subsection 3(1) defines State to include the Northern Territory.
SECTION 3A 3A Operation of Act
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories. SECTION 3B Arrangements with States, Australian Capital Territory and Northern Territory (1)
The Governor-General may make arrangements with the Governor of a State, the Government of the Australian Capital Territory or the Administrator of the Northern Territory for:
(a) officers of the State or Territory to exercise powers and perform functions; and
(b) facilities and procedures of the State or Territory to be made available;
in relation to the carrying out or enforcement under this Act of orders made under this Act or another Act.
(2)
In this Act:
(a) a reference to a participating State is a reference to a State in relation to which an arrangement is in force under subsection (1) of this section; and
(b) a reference to a participating Territory:
(i) is a reference to a Territory other than the Australian Capital Territory or the Northern Territory; and
(ii) if an arrangement is in force under subsection (1) of this sectionin relation to the Australian Capital Territory - includes a reference to the Australian Capital Territory; and
(iii) if an arrangement is in force under subsection (1) of this section in relation to the Northern Territory - includes a reference to the Northern Territory.
(iv) (Repealed by No 59 of 2015)
(3)
In this section:
State
does not include the Australian Capital Territory or the Northern Territory.
SECTION 3BA 3BA Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(Repealed by No 24 of 2001)
In this Part, unless the contrary intention appears:
account-based data
has the meaning given by section 3CAA.
(a) a carrier within the meaning of the Telecommunications Act 1997; or
(b) a carriage service provider within the meaning of that Act.
communication in transit
means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).
constable assisting
, in relation to a warrant, means:
(a) a person who is a constable and who is assisting in executing the warrant; or
(b) a person who is not a constable and who has been authorised by the relevant executing officer to assist in executing the warrant.
data
(Repealed by No 42 of 2010)
data held in a computer
includes:
(a) data held in any removable data storage device for the time being held in a computer; or
(b) data held in a data storage device on a computer network of which the computer forms a part.
data storage device
(Repealed by No 42 of 2010)
[ CCH Note: Definition of "digital asset" will be inserted by No 93 of 2024, s 3 and Sch 1 item 1, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. The definition will read:
]digital asset
means:
(a) a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:
(i) a type of distributed ledger technology; or
(ii) another distributed cryptographically verifiable data structure; or
(b) a right or thing prescribed by the regulations;but does not include any right or thing that, under the regulations, is taken not to be a digital asset for the purposes of this Part.
electronic service
has the same meaning as in the Online Safety Act 2021.
emergency situation,
in relation to the execution of a warrant in relation to premises, means a situation that the executing officer or a constable assisting believes, on reasonable grounds, involves a serious and imminent threat to a person's life, health or safety that requires the executing officer and constables assisting to leave the premises.
evidential material
means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form.
executing officer
, in relation to a warrant, means:
(a) the constable named in the warrant by the issuing officer as being responsible for executing the warrant; or
(b) if that constable does not intend to be present at the execution of the warrant-another constable whose name has been written in the warrant by the constable so named; or
(c) another constable whose name has been written in the warrant by the constable last named in the warrant.
(a) a search of a person conducted by quickly running the hands over the person's outer garments; and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
issuing officer
, in relation to a warrant to search premises or a person or a warrant for arrest under this Part, means:
(a) a magistrate; or
(b) a justice of the peace or other person employed in a court of a State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be.
Note:
Under section 3ZZBJ, an eligible issuing officer (within the meaning of Part IAAA) may, as specified in that section, consider and deal with an application for a warrant as if the eligible issuing officer were an issuing officer within the meaning of this Part.
magistrate
, in sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB, has a meaning affected by section 3CA.
(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or
(b) an offence against a law of a Territory; or
(c) a State offence that has a federal aspect.
ordinary search
means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b) an examination of those items.
(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.
premises
includes a place and a conveyance.
recently used conveyance
, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
seizable item
means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.
[ CCH Note: Definition of "seize" will be inserted by No 93 of 2024, s 3 and Sch 1 item 1, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. The definition will read:
]seize
, for a digital asset, has a meaning affected by subsection 3FA(8).
serious offence
means an offence:
(a) that is punishable by imprisonment for 2 years or more; and
(b) that is one of the following:
(i) a Commonwealth offence;
(ii) an offence against a law of a State that has a federal aspect;
(iii) an offence against a law of a Territory; and
(c) that is not a serious terrorism offence.
serious terrorism offence
means:
(a) a terrorism offence (other than offence against section 102.8, Division 104 or Division 105 of the Criminal Code); or
(b) an offence against a law of a State:
(i) that has a federal aspect; and
(ii) that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104 or Division 105 of the Criminal Code); or
(c) an offence against a law of a Territory that has the characteristics of a terrorism offence (other than such an offence that has the characteristics of an offence against section 102.8, Division 104 or Division 105 of the Criminal Code).
strip search
means a search of a person or of articles in the possession of a person that may include:
(a) requiring the person to remove all of his or her garments; and
(b) an examination of the person's body (but not of the person's body cavities) and of those garments.
telecommunications facility
means a facility within the meaning of the Telecommunications Act 1997.
warrant
means a warrant under this Part.
warrant premises
means premises in relation to which a warrant is in force.
3C(2)
A person referred to in paragraph (b) of the definition of constable assisting in subsection (1) must not take part in searching or arresting a person.
SECTION 3CAA Account-based data (1)
For the purposes of this Part, if: (a) an electronic service has accounts for end-users; and (b) either:
(i) a person holds an account with the electronic service; or
(c) the person can (with the use of appropriate equipment) access particular data provided by the service;
(ii) a person is, or is likely to be, a user of an account with the electronic service; and
the data is account-based data in relation to the person.
(2)
For the purposes of this Part, if: (a) an electronic service has accounts for end-users; and (b) either:
(i) a deceased person held, before the person's death, an account with the electronic service; or
(c) the deceased person could, before the person's death (with the use of appropriate equipment), access particular data provided by the service;
(ii) a deceased person, before the person's death, was, or was likely to be, a user of an account with the electronic service; and
the data is account-based data in relation to the deceased person.
(3)
For the purposes of this section, account has the same meaning as in the Online Safety Act 2021.
A function of making an order conferred on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB is conferred on the magistrate in a personal capacity and not as a court or a member of a court.
3CA(2)
Without limiting the generality of subsection (1), an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has effect only by virtue of this Act and is not to be taken by implication to be made by a court.
3CA(3)
A magistrate performing a function of, or connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZQZB has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the magistrate is a member).
3CA(4)
The Governor-General may make arrangements with the Governor of a State, the Chief Minister of the Australian Capital Territory or the Administrator of the Northern Territory for the performance, by all or any of the persons who from time to time hold office as magistrates in that State or Territory, of the function of making orders under sections 3ZI, 3ZJ, 3ZK, 3ZN and 3ZQZB.
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons.
(2)
To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
(3)
(Repealed by No 64 of 2004)
(4)
This Part is not intended to limit or exclude the operation of a law of a Territory relating to:
(a) the search of premises; or
(b) arrest and related matters; or
(c) the stopping, detaining or searching of conveyances or persons; or
(d) the seizure of things; or
(e) the requesting of information or documents from persons;
in relation to offences against a law of that Territory.
(5)
This Part does not apply to the exercise by a constable of powers under the Defence Force Discipline Act 1982.
(6)
The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.
Note 1:
Subsection 3(1) defines State to include the Northern Territory.
Note 2:
Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.
Division 2 - Search warrants SECTION 3E When search warrants can be issued (1)
An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.
Note:
For the issue of delayed notification search warrants, see Part IAAA.
(2)
An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.
(3)
If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.
(4)
If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.
(5)
If an issuing officer issues a warrant, the officer is to state in the warrant: (a) the offence to which the warrant relates; and (b) a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and (c) the kinds of evidential material that are to be searched for under the warrant; and (d) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and (e) the time at which the warrant expires (see subsection (5A)); and (f) whether the warrant may be executed at any time or only during particular hours.
[ CCH Note: S 3E(5) will be amended by No 93 of 2024, s 3 and Sch 1 item 2, by inserting the note, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct oroffence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. The note will read:
]Note:
The power to seize a digital asset under the warrant and certain other powers may be exercised after the warrant expires: see subsection 3FA(10).
(5A)
The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example:
If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(6)
The issuing officer is also to state, in a warrant in relation to premises: (a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and (b) whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
[ CCH Note: S 3E(6) will be amended by No 93 of 2024, s 3 and Sch 1 item 3, by inserting para (aa) after para (a), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. Para (aa) will read:
]
(aa) that the warrant authorises the seizure of a digital asset if paragraphs 3FA(1)(a) to (c) are satisfied; and
(7)
The issuing officer is also to state, in a warrant in relation to a person: (a) that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and (b) the kind of search of a person that the warrant authorises.
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
[ CCH Note: S 3E(7) will be amended by No 93 of 2024, s 3 and Sch 1 item 4, by inserting para (aa) after para (a), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. Para (aa) will read:
]
(aa) that the warrant authorises the seizure of a digital asset if paragraphs 3FA(2)(a) to (c) are satisfied; and
(8)
Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.
(9)
If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if: (a) subsections (1) and (2) referred to 48 hours rather than 72 hours; and (b) paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.
(10)
An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.
(11)
An issuing officer in a State or internal Territory may: (a) issue a warrant in relation to premises or a person in that State or Territory; or (b) issue a warrant in relation to premises or a person in an external Territory; or (c) issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or (d) issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.
SECTION 3F The things that are authorised by a search warrant
[ CCH Note: S 3F heading will be substituted by No 93 of 2024, s 3 and Sch 1 item 5, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. The heading will read:
]3F The things authorised by a search warrant - general
A warrant that is in force in relation to premises authorises the executing officer or a constable assisting: (a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, wherever it is; and (b) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes; and (c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and (d) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and (e) to seize other things found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items; and (f) if the warrant so allows-to conduct an ordinary search or a frisk search of a person at or near the premises if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
(2)
A warrant that is in force in relation to a person authorises the executing officer or a constable assisting: (a) to search the person as specified in the warrant and things found in the possession of the person and any recently used conveyance for things of the kind specified in the warrant; and (b) to:
(i) seize things of that kind; or
(ii) record fingerprints from things; or
found in the course of the search; and (c) to seize other things found on or in the possession of the person or in the conveyance in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:
(iii) to take forensic samples from things;
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) a thing relevant to another offence that is an indictable offence; or
if the executing officer or a constable assisting believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence; and (d) to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items.
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act);
(2A)
A warrant that is in force authorises the executing officer or a constable assisting: (a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
for the purpose of obtaining access to data (the relevant data ) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data is evidential material of a kind specified in the warrant; and (b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and (c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(iv) a data storage device;
(i) to use any other computer or a communication in transit to access the relevant data; and
(d) to copy any data to which access has been obtained, and that:
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and
(i) appears to be relevant for the purposes of determining whether the relevant data is evidential material of a kind specified in the warrant; or
(e) to do any other thing reasonably incidental to any of the above.
(ii) is evidential material of a kind specified in the warrant; and
Note:
As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(2B)
A warrant that is in force authorises the executing officer or a constable assisting: (a) to use:
(i) a computer found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
for the purpose of obtaining access to data (the relevant account-based data ) that is account-based data in relation to:
(iii) any other electronic equipment;
(iv) a person who is the owner or lessee of the computer mentioned in subparagraph (i); or
(v) a person who uses or has used the computer mentioned in subparagraph (i); or
(vi) a deceased person who, before the person's death, was the owner or lessee of the computer mentioned in subparagraph (i); or
in order to determine whether the relevant account-based data is evidential material of a kind specified in the warrant; and (b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and (c) if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be aseffective, it is reasonable in all the circumstances to do so:
(vii) a deceased person who, before the person's death, used the computer mentioned in subparagraph (i);
(i) to use any other computer or a communication in transit to access the relevant account-based data; and
(d) to copy any data to which access has been obtained, and that:
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and
(i) appears to be relevant for the purposes of determining whether the relevant account-based data is evidential material of a kind specified in the warrant; or
(e) to do any other thing reasonably incidental to any of the above.
(ii) is evidential material of a kind specified in the warrant; and
(2C)
Subsections (2A) and (2B) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or (b) cause any other material loss or damage to other persons lawfully using a computer.
(ii) the lawful use by other persons of a computer;
(2D)
In the case of a warrant that is in force in relation to premises, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done: (a) at the premises; or (b) at any other place.
(2E)
In the case of a warrant that is in force in relation to a person, it is immaterial whether a thing mentioned in subsection (2A) or (2B) is done: (a) in the presence of the person; or (b) at any other place.
(3)
If the warrant states that it may be executed only during particular hours, the warrant must not be executed outside those hours.
(4)
If the warrant authorises an ordinary search or a frisk search of a person, a search of the person different to that so authorised must not be done under the warrant.
(5)
(Repealed by No 4 of 2010)
[
CCH Note:
S 3FA will be inserted by No 93 of 2024, s 3 and Sch 1 item 6, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. S 3FA will read:
For the purposes of paragraph (a), the digital asset need not be found at the premises. Data accessed using powers under this Part may suggest the existence of the digital asset. For example, a thing suggesting the existence of the digital asset could be found by accessing data using electronic equipment moved from the premises: see section 3LAA.
SECTION 3FA The things authorised by a search warrant - additional things for digital assets
Warrant in relation to premises - authority to seize digital assets
(1)
A warrant that is in force in relation to premises authorises the executing officer or a constable assisting to seize a digital asset if:
(a)
in the course of exercising powers under this Part, the executing officer or a constable assisting finds one or more things that suggest the existence of the digital asset; and
(b)
the executing officer or a constable assisting reasonably suspects the digital asset to be:
(i)
evidential material in relation to an offence to which the warrant relates; or
(ii)
evidential material in relation to another offence that is an indictable offence; or
(iii)
evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and
(c)
the executing officer or a constable assisting reasonably suspects that seizing the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.
Note:
Warrant in relation to person - authority to seize digital assets
(2)
A warrant that is in force in relation to a person authorises the executing officer or a constable assisting to seize a digital asset if:
(a) in the course of exercising powers under this Part, the executing officer or a constable assisting finds one or more things that suggest the existence of the digital asset; and
(b) the executing officer or a constable assisting reasonably suspects the digital asset to be:
(i) evidential material in relation to an offence to which the warrant relates; or
(ii) evidential material in relation to another offence that is an indictable offence; or
(iii) evidential material (within the meaning of the Proceeds of Crime Act 2002) or tainted property (within the meaning of that Act); and
(c) the executing officer or a constable assisting reasonably suspects that seizing the digital asset is necessary to prevent the digital asset's concealment, loss or destruction or its use in committing an offence.
Note:
For the purposes of paragraph (a), the digital asset need not be found in the person's possession. Data accessed using powers under this Part may suggest the existence of the digital asset. For example, a thing suggesting the existence of the digital asset could be found by accessing data using electronic equipment moved from the person's possession: see section 3LAA.
Use of electronic equipment etc. to seize a digital asset etc.
(3)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
for the purpose of seizing a digital asset under the warrant; and
(iv) a data storage device;
(b) if necessary to achieve that purpose - to add, copy, delete or alter data in the computer or device mentioned in subparagraph (a)(i); and
(c) if it is reasonable in all the circumstances to do so for the purpose of seizing a digital asset under the warrant:
(i) to use any other computer or a communication in transit; and
(ii) if necessary to achieve that purpose - to add, copy, delete or alter data in the other computer or the communication in transit; and
(d) to do any other thing reasonably incidental to any of the above.
Use of electronic equipment etc. to access data to determine the existence of a digital asset that may be seized etc.
(4)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer, or data storage device, found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
for the purpose of obtaining access to data (the relevant data ) that is held in the computer or device mentioned in subparagraph (i) at any time when the warrant is in force, in order to determine whether the relevant data suggests the existence of a digital asset that may be seized under the warrant; and
(iv) a data storage device;
(b) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or device mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant data; and
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the other computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant data suggests the existence of a digital asset that may be seized under the warrant; or
(ii) suggests the existence of a digital asset that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Note:
As a result of the warrant, a person who, by means of a telecommunications facility, obtains access to data stored in a computer etc. will not commit an offence under Part 10.7 of the Criminal Code or equivalent State or Territory laws (provided that the person acts within the authority of the warrant).
(5)
A warrant that is in force authorises the executing officer or a constable assisting:
(a) to use:
(i) a computer found in the course of a search authorised under the warrant; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
for the purpose of obtaining access to data (the relevant account-based data ) that is account-based data in relation to:
(iii) any other electronic equipment;
(iv) a person who is the owner or lessee of the computer mentioned in subparagraph (i); or
(v) a person who uses or has used the computer mentioned in subparagraph (i); or
(vi) a deceased person who, before the person's death, was the owner or lessee of the computer mentioned in subparagraph (i); or
in order to determine whether the relevant account-based data suggests the existence of a digital asset that may be seized under the warrant; and
(vii) a deceased person who, before the person's death, used the computer mentioned in subparagraph (i);
(b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the computer mentioned in subparagraph (a)(i); and
(c) if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) to use any other computer or a communication in transit to access the relevant account-based data; and
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the other computer or the communication in transit; and
(d) to copy any data to which access has been obtained, and that:
(i) appears to be relevant for the purposes of determining whether the relevant account-based data suggests the existence of a digital asset that may be seized under the warrant; or
(ii) suggests the existence of a digital asset that may be seized under the warrant; and
(e) to do any other thing reasonably incidental to any of the above.
Limitation
(6)
Subsections (3), (4) and (5) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to:
(a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or
(ii) the lawful use by other persons of a computer;
(b) cause any other material loss or damage to other persons lawfully using a computer.
Operation of electronic equipment to seize a digital asset
(7)
A warrant that is in force also authorises the executing officer or a constable assisting:
(a) for a warrant in relation to premises - to operate electronic equipment at the premises for the purpose of seizing a digital asset under the warrant; and
(b) if electronic equipment is moved to another place under subsection 3K(2) - to operate the equipment for the purpose of seizing a digital asset under the warrant.
Additional ways of seizing digital assets
(8)
Seizing a digital asset under a warrant includes any of the following:
(a) transferring the digital asset from an existing digital wallet (or some other thing) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;
(b) transferring the digital asset:
(i) from a digital wallet (or some other thing) recreated or recovered by the Australian Federal Police or a police force or police service of a State or Territory using things found in the course of the search authorised by the warrant; and
(ii) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;
(c) transferring the digital asset in circumstances prescribed by regulations made for the purposes of this paragraph.
Note:
The ordinary meaning of seizing a digital asset is extended by the additional ways mentioned in this subsection.
Time limit for seizing digital assets etc.
(9)
The power to seize a digital asset under the warrant, or a power covered by subsection (3) or paragraph (7)(b) relating to seizing a digital asset under the warrant, may be exercised, to the extent that the exercise of the power relates to a thing referred to in paragraph (1)(a) or (2)(a) for the warrant, only during the period starting when the warrant is issued and ending at:
(a) if the thing is moved to another place under subsection 3K(2) - the time applicable under subsection 3K(3A) or that time as previously extended as described in subsection 3K(3B); or
(b) if the thing is seized under this Division - any time that the thing must be returned as described in Subdivision B of Division 4C of this Part; or
(c) if the thing is data that is copied under this Division - the time the Commissioner is satisfied that the data is not required (or is no longer required):
(i) for a purpose mentioned in section 3ZQU; or
(ii) for other judicial or administrative review proceedings; or
(d) otherwise - the end of the period of 30 days starting on the day the warrant is issued.
Note:
This means the power to seize the digital asset may be exercised at different times if there is more than one thing referred to in paragraph (1)(a) or (2)(a) that suggests the existence of the digital asset.
For example, if 2 or more things referred to in paragraph (1)(a) or (2)(a) suggest the existence of the digital asset, seizure of the digital asset may occur during the longest period that applies to the digital asset as a result of the application of this subsection in relation to each of those things.
(10)
If the period applicable under subsection (9) ends after the warrant expires, the powers referred to in that subsection may be exercised during that period as if the warrant were still in force.
Things done in relation to warrants may be done remotely etc.
(11)
For a warrant related to premises, it is immaterial whether:
(a) a digital asset is seized, as described in this section, at the premises or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done at the premises or at any other place.
(12)
For a warrant related to a person, it is immaterial whether:
(a) a digital asset is seized, as described in this section, in the presence of the person or at any other place; or
(b) a thing mentioned in subsection (3), (4) or (5) is done in the presence of the person or at any other place.
]
In executing a warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant may use such force against persons and things; and
(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;
as is necessary and reasonable in the circumstances.
SECTION 3H Details of warrant to be given to occupier etc. (1)If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(2)
If a warrant in relation to a person is being executed, the executing officer or a constable assisting must make available to that person a copy of the warrant.
(3)
If a person is searched under a warrant in relation to premises, the executing officer or a constable assisting must show the person a copy of the warrant.
(4)
The executing officer must identify himself or herself to the person at the premises or the person being searched, as the case may be.
(5)
The copy of the warrant referred to in subsections (1) and (2) need not include the signature of the issuing officer or the seal of the relevant court.
SECTION 3J Specific powers available to constables executing warrant (1)
In executing a warrant in relation to premises, the executing officer or a constable assisting may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs (including video recordings) of the premises or of things at the premises.
(2)
If a warrant in relation to premises is being executed, the executing officer and the constables assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(aa) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under section 3JA; or
(b) for a longer period if the occupier of the premises consents in writing.
(3)
If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
SECTION 3JA Extension of time to re-enter premises in emergency situations (1)
If:
(a) a warrant in relation to premises is being executed; and
(b) there is an emergency situation; and
(c) the executing officer or a constable assisting believes on reasonable grounds that the executing officer and the constables assisting will not be able to return to the premises within the 12 hour period mentioned in paragraph 3J(2)(aa);
he or she may apply to an issuing officer for an extension of that period.
(2)
Before making the application, the executing officer or a constable assisting must, if it is practicable to do so, give notice to the occupier of the premises of his or her intention to apply for an extension.
(3)
If an application mentioned in subsection (1) has been made, an issuing officer may extend the period during which the executing officer and constables assisting may be away from the premises if:
(a) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
Equipment may be brought to warrant premises
(1)
The executing officer of a warrant in relation to premises, or constable assisting, may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
[ CCH Note: S 3K(1) will be amended by No 93 of 2024, s 3 and Sch 1 item 7, by inserting "or a thing that suggests the existence of a digital asset that may be seized under the warrant" at the end, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
Thing may be moved for examination or processing
(2)
A thing found at warrant premises, or a thing found during a search under a warrant that is in force in relation to a person, may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(b) for a thing found at warrant premises - the occupier of the premises consents in writing; or (c) for a thing found during a search under a warrant that is in force in relation to a person - the person consents in writing.
(ii) the executing officer or constable assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
[ CCH Note: S 3K(2) will be amended by No 93 of 2024, s 3 and Sch 1 items 8 and 9, by substituting "in order to determine whether the thing may be seized under a warrant, or the thing suggests the existence of a digital asset that may be seized under a warrant," for "in order to determine whether it may be seized under a warrant" and inserting "or the thing suggests the existence of a digital asset that may be seized under a warrant" after "evidential material" in para (a)(ii), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
Notification of examination or processing and right to be present
(3)
If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so: (a) inform the person referred to in paragraph (2)(b) or (c) (as the case requires) of the address of the place and the time at which the examination or processing will be carried out; and (b) allow that person or his or her representative to be present during the examination or processing.
(3AA)
The executing officer need not comply with paragraph (3)(a) or (b) if he or she believes on reasonable grounds that to do so might: (a) endanger the safety of a person; or (b) prejudice an investigation or prosecution.
Time limit on moving a thing
(3A)
The thing may be moved to another place for examination or processing for no longer than whichever of the following is applicable: (a) if the thing is a computer or data storage device - 30 days; (b) otherwise - 14 days.
(3B)
An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within the time applicable under subsection (3A) or that time as previously extended.
(3C)
The executing officer must give notice of the application tothe person referred to in paragraph (2)(b) or (c) (as the case requires), and that person is entitled to be heard in relation to the application.
(3D)
A single extension cannot exceed whichever of the following is applicable: (a) if the thing is a computer or data storage device - 14 days; (b) otherwise - 7 days.
Equipment at warrant premises may be operated
(4)
The executing officer of a warrant in relation to premises, or a constable assisting, may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the executing officer or constable believes on reasonable grounds that: (a) the equipment is suitable for the examination or processing; and (b) the examination or processing can be carried out without damage to the equipment or the thing.
[ CCH Note: S 3K(4) will be amended by No 93 of 2024, s 3 and Sch 1 item 10, by inserting ", or a thing that suggests the existence of a digital asset that may be seized under the warrant," after "thing that may be seized under the warrant", applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
Extended powers of examination and processing
(5)
For the purposes of this section, if a computer or data storage device (the relevant computer or device ) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer or device may include: (a) using:
(i) the relevant computer or device; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
for the purpose of obtaining access to data (the relevant data ) that is held in the relevant computer or device in order to determine whether the relevant computer or device is a thing that may be seized under the warrant; and (b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the relevant computer or device; and (c) if, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(iv) a data storage device;
(i) to use any other computer or a communication in transit to access the relevant data; and
(d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer or device is a thing that may be seized under the warrant; and (e) to do any other thing reasonably incidental to any of the above.
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and
[ CCH Note: S 3K(5) will be amended by No 93 of 2024, s 3 and Sch 1 item 11, by inserting "or a thing that suggests the existence of a digital asset that may be seized under the warrant" after "is a thing that may be seized under the warrant" in para (a) and (d), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(6)
For the purposes of this section, if a computer (the relevant computer) was found in the course of a search authorised under a warrant, the examination or processing of the relevant computer may include: (a) using:
(i) the relevant computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
for the purpose of obtaining accessto data (the relevant account-based data ) that is account-based data in relation to:
(iii) any other electronic equipment;
(iv) a person who is the owner or lessee of the relevant computer; or
(v) a person who uses or has used the relevant computer; or
(vi) a deceased person who, before the person's death, was the owner or lessee of the relevant computer; or
in order to determine whether the relevant computer is a thing that may be seized under the warrant; and (b) if necessary to achieve the purpose mentioned in paragraph (a) - to add, copy, delete or alter other data in the relevant computer; and (c) if, having regard to other methods (if any) of obtaining access to the relevant account-based data which are likely to be as effective, it is reasonable in all the circumstances to do so:
(vii) a deceased person who, before the person's death, used the relevant computer;
(i) to use any other computer or a communication in transit to access the relevant account-based data; and
(d) to copy any data to which access has been obtained, and that appears to be relevant for the purposes of determining whether the relevant computer is a thing that may be seized under the warrant; and (e) to do any other thing reasonably incidental to any of the above.
(ii) if necessary to achieve that purpose - to add, copy, delete or alter other data in the computer or the communication in transit; and
[ CCH Note: S 3K(6) will be amended by No 93 of 2024, s 3 and Sch 1 item 12, by inserting "or a thing that suggests the existence of a digital asset that may be seized under the warrant" after "is a thing that may be seized under the warrant" in para (a) and (d), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(7)
Subsections (5) and (6) do not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
unless the addition, deletion or alteration, or the doing of the thing, is necessary to determine:
(ii) the lawful use by other persons of a computer;
(iii) in the case of subsection (5) - whether the relevant computer or device is a thing that may be seized under the warrant referred to in that subsection; or
(b) cause any other material loss or damage to other persons lawfully using a computer.
(iv) in the case of subsection (6) - whether the relevant computer is a thing that may be seized under the warrant referred to in that subsection; or
[ CCH Note: S 3K(7) will be amended by No 93 of 2024, s 3 and Sch 1 item 13, by inserting ", or a thing that suggests the existence of a digital asset that may be seized under the warrant," after "is a thing that may be seized under the warrant" in para (a)(iii) and (iv), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(8)
In the case of a warrant that was in force in relation to premises, it is immaterial whether a thing mentioned in subsection (5) or (6) is done: (a) at the premises; or (b) at any other place.
(9)
In the case of a warrant that was in force in relation to a person, it is immaterial whether a thing mentioned in subsection (5) or (6) is done: (a) in the presence of the person; or (b) at any other place.
SECTION 3L USE OF ELECTRONIC EQUIPMENT AT PREMISES 3L(1)
The executing officer of a warrant in relation to premises, or a constable assisting, may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material.
Note:
A constable can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance: see section 3LA.
[ CCH Note: S 3L(1) will be amended by No 93 of 2024, s 3 and Sch 1 item 14, by inserting "or suggests the existence of a digital asset that may be seized under the warrant" at the end, applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
3L(1A)
If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may: (a) copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device brought to the premises; or (b) if the occupier of the premises agrees in writing - copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device at the premises;
and take the device from the premises.
[ CCH Note: S 3L(1A) will be amended by No 93 of 2024, s 3 and Sch 1 item 15, by inserting "or suggests the existence of a digital asset that may be seized under the warrant" after "constitutes evidential material", applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
3L(1B)
If: (a) the executing officer or constable assisting takes the device from the premises; and (b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
the Commissioner must arrange for:
(c) the removal of the data from any device in the control of the Australian Federal Police; and (d) the destruction of any other reproduction of the data in the control of the Australian Federal Police.3L(2)
If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can, by using facilities at the premises, be put in documentary form-operate the facilities to put the material in that form and seize the documents so produced;
(c) (Repealed by No 161 of 2001)
[ CCH Note: S 3L(2) will be amended by No 93 of 2024, s 3 and Sch 1 items 16 and 17, by inserting "or finds a thing (whether or not held on the equipment) that suggests the existence of a digital asset that may be seized under the warrant" after "doing so" and "or thing" after "material" (wherever occurring) in para (b), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
3L(3)
A constable may seize equipment under paragraph (2)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (1A) or to put the material in documentary form as mentioned in paragraph (2)(b); or (b) possession by the occupier of the equipment could constitute an offence.
[ CCH Note: S 3L(3) will be amended by No 93 of 2024, s 3 and Sch 1 item 18, by inserting "or thing" after "material" in para (a), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
3L(4)
If the executing officer or a constable assisting suspects on reasonable grounds that: (a) evidential material may be accessible by operating electronic equipment at the premises; and (b) expert assistance is required to operate the equipment; and (c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
3L(5)
The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
3L(6)
The equipment may be secured: (a) for a period not exceeding 24 hours; or (b) until the equipment has been operated by the expert;
whichever happens first.
3L(7)
If the executing officer or a constable assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to an issuing officer for an extension of that period.
3L(8)
The executing officer or a constable assisting must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.
3L(9)
The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
SECTION 3LAA USE OF ELECTRONIC EQUIPMENT AT OTHER PLACE (1)
If electronic equipment is moved to another place under subsection 3K(2), the executing officer or a constable assisting may operate the equipment to: (a) access data (including data held at another place); or (b) access account-based data.
(2)
If the executing officer or constable assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
[ CCH Note: S 3LAA(2) will be amended by No 93 of 2024, s 3 and Sch 1 item 19, by inserting "or suggests the existence of a digital asset that may be seized under a warrant," after "constitutes evidential material,", applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(3)
If the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must arrange for: (a) the removal of the data from any device in the control of the Australian Federal Police; and (b) the destruction of any other reproduction of the data in the control of the Australian Federal Police.
(4)
If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may: (a) seize the equipment and any disk, tape or other associated device; or (b) if the material can be put in documentary form - put the material in that form and seize the documents so produced.
[ CCH Note: S 3LAA(4) will be amended by No 93 of 2024, s 3 and Sch 1 items 20 and 21, by inserting "or finds a thing (whether or not held on the equipment) that suggests the existence of a digital asset that may be seized under a warrant" after "doing so" and "or thing" after "material" (wherever occurring) in para (b), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(5)
A constable may seize equipment under paragraph (4)(a) only if: (a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or (b) possession of the equipment, by the person referred to in paragraph 3K(2)(a) or (b) (as the case requires), could constitute an offence.
[ CCH Note: S 3LAA(5) will be amended by No 93 of 2024, s 3 and Sch 1 items 22 and 23, by inserting "or thing" after "material" in para (a) and substituting "paragraph 3K(2)(b) or (c)" for "paragraph 3K(2)(a) or (b)" in para (b), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
A constable may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a constable to do one or more of the following: (a) access data held in, or accessible from, a computer or data storage device that:
(i) is on warrant premises; or
(ia) is found in the course of an ordinary search of a person, or a frisk search of a person, authorised by a warrant under section 3E; or
(ii) has been moved under subsection 3K(2) and is at a place for examination or processing; or
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device; (c) convert into documentary form or another form intelligible to a constable:
(iii) has been seized under this Division;
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from warrant premises under subsection 3L(1A).
(2)
The magistrate may grant the order if the magistrate is satisfied that: (a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and (b) the specified person is:
(i) reasonably suspected of having committed the offence stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee ofthe computer or device; or
(v) a person who uses or has used the computer or device; or
(c) the specified person has relevant knowledge of:
(vi) a person who is or was a system administrator for the system including the computer or device; and
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(3)
If: (a) the computer or data storage device that is the subject of the order is seized under this Division; and (b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note:
An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(4)
If the computer or data storage device is not on warrant premises, the order must: (a) specify the period within which the person must provide the information or assistance; and (b) specify the place at which the person must provide the information or assistance; and (c) specify the conditions (if any) determined by the magistrate as the conditions to which the requirement on the person to provide the information or assistance is subject.
Offences
(5)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
(6)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement; and (e) the offence to which the relevant warrant relates is:
(i) a serious offence; or
(ii) a serious terrorism offence.
Penalty: Imprisonment for 10 years or 600 penalty units, or both.
Additional use of information etc.
(7)
If information or assistance is provided under this section in connection with an investigation into one or more alleged offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of an account takeover warrant (within the meaning of Part IAAC) that relates to that investigation.
If:
(a) data is accessed, in relation to a warrant, under subsection 3L(1) or 3LAA(1); and
(aa) either:
(i) if the warrant is in relation to premises - the data is held on premises other than the warrant premises; or
(ii) if the warrant is in relation to a person - the data is held on any premises; and
(b) it is practicable to notify the occupier of the premises on which the data is held that the data has been accessed under a warrant;
the executing officer must:
(c) do so as soon as practicable; and
(d) if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 3L(1A) or (2) or 3LAA(2) or (4) - include that information in the notification.
3LB(2)
A notification under subsection (1) must include sufficient information to allow the occupier of the premises on which the data is held to contact the executing officer.
This section applies if: (a) as a result of equipment being operated as mentioned in section 3K, 3L or 3LAA:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(b) the damage or corruption occurs because:
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
[ CCH Note: S 3M(1) will be amended by No 93 of 2024, s 3 and Sch 1 item 24, by inserting "subsection 3FA(7) or" before "section 3K" in para (a), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
3M(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
3M(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
3M(4)
In determining the amount of compensation payable, regard is to be had to whether any of the following persons, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment: (a) if the equipment was operated under a warrant issued in relation to premises - the occupier of the premises, or the occupier's employees or agents; (b) if the equipment was operated under a warrant issued in relation to a person - that person, or that person's agents.
3M(5)
Compensation is payable out of money appropriated by the Parliament.
(6)
For the purposes of subsection (1):
damage
, in relation to data, includes damage by erasure of data or addition of other data.
Subject to subsection (2), if a constable seizes, under a warrant relating to premises: (a) a document, film, computer file or other thing that can be readily copied; or (b) a storage device the information in which can be readily copied;
the constable must, if requested to do so by the occupier of the premises or another person who apparently represents the occupier and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.
(2)
Subsection (1) does not apply if: (a) the thing that has been seized was seized under subsection 3L(1A) or paragraph 3L(2)(b) or 3LAA(4)(b); or (aa) the thing embodies data that was accessed under the warrant at a place other than the premises; or (b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.
[ CCH Note: S 3N(2) will be amended by No 93 of 2024, s 3 and Sch 1 item 25, by inserting para (aaa) after para (a), applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024. Para (aaa) will read:
]
(aaa) the thing that has been seized is a digital asset or a thing that suggests the existence of a digital asset; or
SECTION 3P Occupier entitled to be present during search (1)
If a warrant in relation to premises is being executed and the occupier of the premises or another person who apparently represents the occupier is present at the premises, the person is, subject to Part IC, entitled to observe the search being conducted.
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
SECTION 3Q Receipts for things seized under warrant or moved (1)
If a thing is seized under a warrant or moved under subsection 3K(2), the executing officer or a constable assisting must provide a receipt for the thing.
(2)
If 2 or more things are seized or moved, they may be covered in the one receipt.
SECTION 3R Warrants by telephone or other electronic means (1)
A constable may make an application to an issuing officer for a warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2)
The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3)
An application under this section must include all information required to be provided in an ordinary application for a warrant, but the application may, if necessary, be made before the information is sworn.
(4)
If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 3E.
(5)
If the issuing officer decides to issue the warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed.
(6)
The applicant must then complete a form of warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which and the time at which the warrant was signed.
(7)
The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8)
The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9)
If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
SECTION 3S 3S Restrictions on personal searches
A warrant cannot authorise a strip search or a search of a person's body cavities.
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following:
(a) each House of the Parliament;
(b) the members of each House of the Parliament;
(c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
This section applies if a constable suspects, on reasonable grounds, that:
(a) a thing relevant to an indictable offence is in or on a conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a search warrant because the circumstances are serious and urgent.
(2)
The constable may:
(a) stop and detain the conveyance; and
(b) search the conveyance and any container in or on the conveyance, for the thing; and
(c) seize the thing if he or she finds it there.
(3)
If, in the course of searching for the thing, the constable finds another thing relevant to an indictable offence or a thing relevant to a summary offence, the constable may seize that thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss or destruction; and
(b) it is necessary to seize it without the authority of a search warrant because the circumstances are serious and urgent.
(4)
The constable must exercise his or her powers subject to section 3U.
SECTION 3U 3U How a constable exercises a power under section 3T
When a constable exercises a power under section 3T in relation to a conveyance, he or she:
(a) may use such assistance as is necessary; and
(b) must search the conveyance in a public place or in some other place to which members of the public have ready access; and
(c) must not detain the conveyance for longer than is necessary and reasonable to search it and any container found in or on the conveyance; and
(d) may use such force as is necessary and reasonable in the circumstances, but must not damage the conveyance or any container found in or on the conveyance by forcing open a part of the conveyance or container unless:
(i) the person (if any) apparently in charge of the conveyance has been given a reasonable opportunity to open that part or container; or
Division 3A - Powers in relation to terrorist acts and terrorism offences
(ii) it is not possible to give that person such an opportunity.
In this Division:
assessment officer
: see subsection 3UJC(1).
Commonwealth place
means a Commonwealth place within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
nominated AAT member
(Repealed by No 39 of 2024)
nominated ART member
means a person in relation to whom a nomination is in force under section 3UJE.
(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(b) a special member (within the meaning of that Act); or
(c) a member, however, described, of a police force of a State or Territory.
post-entry warrant
: see subsection 3UEB(1).
prescribed security zone
means a zone in respect of which a declaration under section 3UJ is in force.
serious offence related item
means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a serious offence; or
(b) is connected with the preparation for, or the engagement of a person in, a serious offence; or
(c) is evidence of, or relating to, a serious offence.
State or Territory police oversight body
means:
(a) an agency, body or authority that; or
(b) a person who;
under a law of a State or Territory, has functions relating to the investigation of complaints about the conduct of members of the police force of the State or Territory.
terrorism related item
means a thing that a police officer conducting a search under section 3UD reasonably suspects:
(a) may be used in a terrorist act; or
(b) is connected with the preparation for, or the engagement of a person in, a terrorist act; or
(c) is evidence of, or relating to, a terrorist act.
terrorist act
(Repealed by No 2 of 2011)
vehicle
includes any means of transport (and, without limitation, includes a vessel and an aircraft).
A police officer may exercise the powers under this Subdivision in relation to a person if:
(a) the person is in a Commonwealth place (other than a prescribed security zone) and the officer suspects on reasonable grounds that the person might have just committed, might be committing or might be about to commit, a terrorist act; or
(b) the person is in a Commonwealth place in a prescribed security zone.
(2)
This section does not limit the operation of section 3UEA.
A police officer may request the person to provide the officer with the following details:
(a) the person's name;
(b) the person's residential address;
(c) the person's reason for being in that particular Commonwealth place;
(d) evidence of the person's identity.
(2)
If a police officer:
(a) makes a request under subsection (1); and
(b) informs the person:
(i) of the officer's authority to make the request; and
(ii) that it may be an office not to comply with the request;
the person commits an offence if:
(c) the person fails to comply with the request; or
(d) the person gives a name or address that is false in a material particular.
Penalty: 20 penalty units.
Note:
A more serious offence of obstructing a Commonwealth public official may also apply (see section 149.1 of the Criminal Code).
(3)
Subsection (2) does not apply if the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
SECTION 3UD Stopping and searching (1)
A police officer may: (a) stop and detain the person for the purpose of conducting a search under paragraph (b); and (b) conduct one of the followingsearches for a terrorism related item:
(i) an ordinary search or a frisk search of the person;
(ii) a search of any thing that is, or that the officer suspects on reasonable grounds to be, under the person's immediate control;
(iii) a search of any vehicle that is operated or occupied by the person;
(iv) a search of any thing that the person has, or that the officer suspects on reasonable grounds that the person has, brought into the Commonwealth place.
Informing a person of a right to make a complaint
(1A)
A police officer who stops and detains a person under this section must inform the person of any right the person has to make a complaint to: (a) the Commonwealth Ombudsman; or (b) a State or Territory police oversight body;
about the conduct of the police officer in exercising the powers conferred by this section.
(1B)
Subsection (1A) does not require a police officer to inform a person of a right if it is not reasonably practicable to do so because of circumstances of urgency.
Conditions relating to conduct of search of persons
(2)
A police officer who conducts a search of a person under this section must not use more force, or subject the person to greater indignity, than is reasonable and necessary in order to conduct the search.
(3)
A person must not be detained under this section for longer than is reasonably necessary for a search to be conducted under this section.
Other conditions relating to conduct of search of person or thing
(4)
In searching a thing (including a vehicle) under subsection (1), a police officer may use such force as is reasonable and necessary in the circumstances, but must not damage the thing by forcing it, or a part of it, open unless: (a) the person has been given a reasonable opportunity to open the thing or part of it; or (b) it is not possible to give that opportunity.
SECTION 3UE 3UE Seizure of terrorism related items and serious offence related items
If a police officer:
(a) conducts a search under section 3UD; and
(b) finds, in the course of the search, a thing that is:
(i) a terrorism related item; or
(ii) a serious offence related item;
the officer may seize the thing.
A police officer may enter premises in accordance with this section if the police officer suspects, on reasonable grounds, that:
(a) it is necessary to exercise a power under subsection (2) in order to prevent a thing that is on the premises from being used in connection with a terrorism offence; and
(b) it is necessary to exercise the power without the authority of a search warrant because there is a serious and imminent threat to a person's life, health or safety.
(2)
The police officer may:
(a) search the premises for the thing; and
(b) seize the thing if he or she finds it there.
(3)
If, in the course of searching for the thing, the police officer finds another thing that the police officer suspects, on reasonable grounds, to be relevant to an indictable offence or a summary offence, the police officer may secure the premises pending the obtaining of a warrant under Part IAA in relation to the premises.
(4)
Premises must not be secured under subsection (3) for longer than is reasonably necessary to obtain the warrant.
(5)
In the course of searching for the thing, the police officer may also seize any other thing, or do anything to make the premises safe, if the police officer suspects, on reasonable grounds, that it is necessary to do so:
(a) in order to protect a person's life, health or safety; and
(b) without the authority of a search warrant because the circumstances are serious and urgent.
(6)
In exercising powers under this section:
(a) the police officer may use such assistance; and
(b) the police officer, or a person who is also a police officer and who is assisting the police officer, may use such force against persons and things; and
(c) a person (other than a police officer) who is authorised by the police officer to assist the police officer may use such force against things;
as is necessary and reasonable in the circumstances.
Notification
(7)
If one or more police officers have entered premises in accordance with this section, a police officer must, within 24 hours after the entry:
(a) notify the occupier of the premises that the entry has taken place; or
(b) if it is not practicable so to notify the occupier - leave a written notice of the entry at the premises.
Requirement to apply for post-entry warrant
(1)
A police officer who has entered premises under, or purportedly under, subsection 3UEA(1) must: (a) apply to an assessment officer for a warrant (a post-entry warrant ) under this section in relation to the entry to the premises; and (b) do so as soon as practicable after the exercise, or purported exercise, of powers under section 3UEA in relation to the premises.
(2)
The application must: (a) be in writing; and (b) set out:
(i) the nature of the matters suspected by the police officer for the purposes of paragraphs 3UEA(1)(a) and (b); and
(c) state whether the police officer is:
(ii) the grounds on which the police officer held the suspicion; and
(i) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(ii) a special member (within the meaning of that Act); or
(d) if the police officer is a member mentioned in subparagraph (c)(iii) of this subsection - identify the relevant State or Territory; and (e) state the police officer's name, rank, identification number (however described) and police station (if applicable and necessary); and (f) state the police officer's contact details, including details of how the assessment officer may give to the police officer the following:
(iii) a member, however described, of a police force of a State or Territory; and
(i) any request in writing under subsection (4) of this section for information or documents;
(g) ifthe police officer is a member, or special member, mentioned in subparagraph (c)(i) or (ii) of this subsection - include details of how the assessment officer may give to the Commissioner the post-entry warrant or a notice of refusal to issue the warrant; and (h) if the police officer is a member mentioned in subparagraph (c)(iii) of this subsection - include details of how the assessment officer may give to the Commissioner of Police in the police force of the relevant State or Territory, or the person holding equivalent rank, the post-entry warrant or a notice of refusal to issue the warrant; and (i) set out any information that:
(ii) the post-entry warrant or a notice of refusal to issue the warrant; and
(i) is known to the police officer; and
(j) set out the time, date and place of the entry; and (k) set out any other information, and be accompanied by any documents, the police officer considers relevant to the application.
(ii) the police officer considers may assist the assessment officer to give, to any current or former owners or occupiers of the premises who have been affected by the exercise, or purported exercise, of the powers under section 3UEA in relation to the premises, the post-entry warrant or a notice of refusal to issue the warrant; and
(3)
The information in the application must be sworn or affirmed by the police officer.
Requesting further information or documents
(4)
The assessment officer may request, in writing, that the police officer provide further information or documents relating to the application, and that the police officer do so in a particular way.
(5)
If the police officer is unable to provide some or all of the further information or documents requested, the police officer must, within a reasonable period, notify the assessment officer: (a) of the information or documents that cannot be provided; and (b) of the reasons why the information or documents cannot be provided.
(6)
If the assessment officer is notified in accordance with subsection (5) that some or all of the further information or documents cannot be provided, the assessment officer must (unless there is another reason not to) continue to consider the application despite having not received the further information or documents.
Issue of warrant
(7)
The assessment officer must: (a) issue the post-entry warrant if, and only if, the assessment officer is satisfied, on the balance of probabilities, that in entering the premises the police officer suspected, on reasonable grounds, the matters mentioned in paragraphs 3UEA(1)(a) and (b); and (b) otherwise, refuse to issue the post-entry warrant.
(8)
The issue of, or refusal to issue, the post-entry warrant does not affect whether or not the exercise, or purported exercise, of powers under section 3UEA was valid.
Note:
Section 138 of the Evidence Act 1995 (discretion to exclude improperly or illegally obtained evidence) may apply to evidence obtained as a result of the exercise, or purported exercise, of powers under section 3UEA of this Act.
Content of warrant
(9)
The post-entry warrant, if issued, must include the following: (a) the information mentioned in paragraphs (2)(c), (d), (e) and (j); (b) a statement of the reasons for issuing the warrant; (c) a statement that the warrant has been issued under this section.
Notification requirements
(10)
If the assessment officer issues the post-entry warrant, the assessment officer must give a copy of the warrant to the persons mentioned in subsection (12) as soon as reasonably practicable after issuing the warrant.
(11)
If the assessment officer refuses to issue the post-entry warrant: (a) the assessment officer must give written notice of the refusal to the persons mentioned in subsection (12) as soon as reasonably practicable after refusing to issue the warrant; and (b) the notice must include a statement of reasons for refusing to issue the warrant; and (c) in the case of a notice given to a person mentioned in paragraph (12)(d) - the notice must also contain information about any right the person may have to:
(i) make a complaint to the Commonwealth Ombudsman under the Ombudsman Act 1976; or
in relation to the entry to the premises or the exercise, or purported exercise, of powers under section 3UEA in relation to the premises.
(ii) take civil or other action;
(12)
For the purposes of subsections (10) and (11), the persons are the following: (a) the police officer; (b) if the police officer is a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979) or a special member (within the meaning of that Act) - the Commissioner; (c) if the police officer is a member, however described, of a police force of a State or Territory - the Commissioner of Police in that police force or the person holding equivalent rank; (d) any current or former owners or occupiers of the premises:
(i) whom the assessment officer considers have been affected by the exercise, or purported exercise, of the powers under section 3UEA in relation to the premises; and
(ii) to whom the assessment officer considers it is practicable to give the post-entry warrant or notice of refusal (as the case requires).
Protection of information
(13)
Despite subsections (9) and (11), a post-entry warrant or notice of refusal must not include information if disclosure of that information is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
A police officer who is for the time being responsible for a thing seized under section 3UE or 3UEA must, within 7 days after the day on which the thing was seized, serve a seizure notice on:
(a) the owner of the thing; or
(b) if the owner of the thing cannot be identified after reasonable inquiries - the person from whom the thing was seized.
Subsection (1) does not apply if:
(a) both:
(i) the owner of the thing cannot be identified after reasonable inquiries; and
(ii) the thing was not seized from a person; or
(b) it is not possible to serve the person required to be served under subsection (1).
(3)
A seizure notice must:
(a) identify the thing; and
(b) state the date on which the thing was seized; and
(c) state the ground or grounds on which the thing was seized; and
(d) state that, if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth.
(4)
(Repealed by No 4 of 2010)
(5)
(Repealed by No 4 of 2010)
(6)
(Repealed by No 4 of 2010)
(7)
(Repealed by No 4 of 2010)
(8) Forfeiture of thing seized.
A thing is forfeited to the Commonwealth if the owner of the thing does not request its return:
(a) before the end of the 90th day after the date of the seizure notice in relation to the thing; or
(b) if subsection (2) applied in relation to the thing so that a seizure notice was not served - before the end of the 90th day after the day on which the thing was seized. (9)
(Repealed by No 4 of 2010)
(Repealed by No 4 of 2010)
The powers conferred, and duties imposed, by this Subdivision on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law ofa State or Territory.
(2)
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or the law of a State or Territory in so far as it is capable of operating concurrently with this Subdivision.
Subdivision C - Prescribed security zones
A police officer may apply to the Minister for a declaration that a Commonwealth place be declared as a prescribed security zone.
Declaration
(1)
The Minister may declare, in writing, a Commonwealth place to be a prescribed security zone if he or she considers that a declaration would assist: (a) in preventing a terrorist act occurring; or (b) in responding to a terrorist act that has occurred.
(1A)
In deciding whether to make a declaration under subsection (1) in relation to a Commonwealth place on the ground mentioned in paragraph (1)(a) or (b), the Minister must have regard to: (a) whether the impact of the declaration on the rights of persons in the Commonwealth place would be:
(i) reasonable; and
(b) the appropriate duration of the declaration; and (c) in the case of a declaration made on the ground mentioned in paragraph (1)(a) - the availability and effectiveness of any powers that:
(ii) proportionate to that ground; and
(i) are conferred by a law of the Commonwealth (other than this Division) or a law of a State or Territory; and
(d) in the case of a declaration made on the ground mentioned in paragraph (1)(b) - the availability and effectiveness of any powers that:
(ii) would assist in preventing a terrorist act occurring; and
(i) are conferred by a law of the Commonwealth (other than this Division) or a law of a State or Territory; and
(e) in the case of a declaration that is one of a series of successive declarations under subsection (1) in relation to the Commonwealth place - the impact and proportionality of that series of successive declarations; and (f) such other matters (if any) as the Minister considers relevant.
(ii) would assist in responding to a terrorist act that has occurred; and
Declaration has effect
(2)
A declaration under this section has effect accordingly.
Duration of declaration
(3)
A declaration ceases to have effect: (a) at the end of 28 days after it is made; or (b) if a shorter period is specified in the declaration - at the end of the shorter period;
unless the declaration is revoked by the Minister before then.
Revocation of declaration
(4)
The Minister must revoke a declaration, in writing, if he or she is satisfied that: (a) in the case of a declaration made on the ground mentioned in paragraph (1)(a) - there is no longer a terrorism threat that justifies the declaration being continued; or (b) in the case of a declaration made on the ground mentioned in paragraph (1)(b) - the declaration is no longer required.
Gazettal and publication of declaration
(5)
If a declaration of a Commonwealth place as a prescribed security zone under this section is made or revoked, the Minister must arrange for: (a) a statement to be prepared that:
(i) states that the declaration has been made or revoked, as the case may be; and
(b) the statement to be:
(ii) identifies the prescribed security zone; and
(i) broadcast by a television or radio station so as to be capable of being received within the place; and
(ii) published in the Gazette; and
(iii) published on the internet.
Notification of declaration
(5A)
If a declaration of a Commonwealth place as a prescribed security zone under this section is made at a particular time, the Commissioner must: (a) as soon as practicable after that time; and (b) in any event, within 72 hours after that time;
arrange for:
(c) a statement to be prepared that:
(i) states that the declaration has been made; and
(d) the statement to be given to:
(ii) identifies the prescribed security zone; and
(i) the Commonwealth Ombudsman; and
(ii) the Independent National Security Legislation Monitor; and
(iii) the Parliamentary Joint Committee on Intelligence and Security.
Reasons for making determination
(5B)
If a declaration was made under this section in relation to a Commonwealth place, the Minister must: (a) give the Parliamentary Joint Committee on Intelligence and Security a written statement setting out the reasons for the making of the declaration; and (b) do so as soon as practicable after the declaration was made.
Effect of failure to publish or notify
(6)
A failure to comply with subsection (5) or (5A) does not make the declaration or its revocation ineffective to any extent.
Effect of failure to give statement of reasons
(6A)
A failure to comply with subsection (5B) does not make the declaration ineffective to any extent.
Declaration or revocation not legislative instruments
(7)
A declaration or revocation made under this section is not a legislative instrument.
Subdivision CA-Reporting on exercise of powers under this Division
As soon as practicable after the exercise of a power or powers by an AFP police officer (or officers) under Subdivision B in relation to an incident, the Commissioner must give a report to the following:
(a) the Minister;
(b) the Independent National Security Legislation Monitor;
(c) the Parliamentary Joint Committee on Intelligence and Security.
(2)
The report must state, in relation to the incident:
(a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF; and
(b) the circumstances in which an AFP police officer (or officers) exercised powers under section 3UC or 3UD.
Note: The nature of these powers is as follows:
(3)
An
AFP police officer
Note: AFP police officers are police officers within the meaning of this Division (see section 3UA).
The Minister must, as soon as practicable after each 30 June, cause to be prepared a report about the exercise of powers under this Division, during the year ended on that 30 June.
(2)
Without limiting subsection (1), a report relating to a year must include the following matters: (a) the number of instances when an AFP police officer (or officers) exercised a power under section 3UE, 3UEA or 3UF; (b) the number of incidents when an AFP police officer (or officers) exercised powers under section 3UC or 3UD; (c) the number of applications made under section 3UI for declarations that Commonwealth places are prescribed security zones; (d) the number of declarations made under section 3UJ that Commonwealth places are prescribed security zones; (e) the number of applications made by AFP police officers under section 3UEB for post-entry warrants; (f) the number of post-entry warrants issued under section 3UEB in response to applications made by AFP police officers; (g) the number of refusals to issue a post-entry warrant under section 3UEB in response applications made by AFP police officers.
(3)
The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
(4)
An
AFP police officer
Note: AFP police officers are police officers within the meaning of this Division (see section 3UA).
An assessment officer is: (a) a person:
(i) who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or Territory; and
(b) a nominated ART member.
(ii) in relation to whom a consent under subsection 3UJD(1), and a declaration under subsection 3UJD(2), are in force; or
(2)
A function or power conferred on a Judge by this Division is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3)
A Judge has, in relation to the performance or exercise of a function or power conferred on an assessment officer by this Division, the same protection and immunity as if the Judge were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
Note:
A member of the Administrative Review Tribunal has the same protection and immunity as a Justice of the High Court (see subsection 293(1) of the Administrative Review Tribunal Act 2024).
A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an assessment officer by the Minister administering the Judiciary Act 1903 under subsection (2).
(2)
The Minister administering the Judiciary Act 1903 may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an assessment officer for the purposes of this Division.
(3)
A consent or declaration under this section is not a legislative instrument.
The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister ) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue post-entry warrants and perform related functions under this Act: (a) Deputy President; (b) a senior member appointed on a salaried basis.
(2)
Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member on a salaried basis of the Tribunal unless the person: (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and (b) has been so enrolled for not less than 5 years.
(3)
A nomination ceases to be in force if: (a) the nominated ART member ceases to hold an appointment described in subsection (1); or (b) the ART Minister, by writing, withdraws the nomination.
A police officer must not exercise powers or perform duties under this Division (other than undersection 3UEB or 3UF) after 7 December 2026.
(2)
A declaration under section 3UJ that is in force at the end of 7 December 2026 ceases to be in force at that time.
(3)
A police officer cannot apply for, and the Minister cannot make, a declaration under section 3UJ after 7 December 2026.
Division 3B - Identity information requirements, and move-on powers, at airports
In this Division:
government photographic identity document
means an identity document providing photographic identification of a person that is issued by:
(a) the government of the Commonwealth or a State or Territory; or
(b) the government of a foreign country or part of a foreign country.
(a) means a document (such as a driver's licence, birth certificate, credit card or identity card) that evidences or indicates, or can be used to evidence or indicate, a person's identity or any aspect of a person's identity; but
(b) does not include a document prescribed by regulation for the purposes of this definition.
major airport
: see section 3UM.
protective service officer
means a protective service officer within the meaning of the Australian Federal Police Act 1979.
public order and safe operation of a major airport
: see section 3UN.
relevant criminal activity
: see section 3UQ.
senior police officer
: see section 3UQ.
For the purposes of this Division, each of the following airports is a major airport :
(a) Adelaide Airport;
(b) Alice Springs Airport;
(c) Brisbane Airport;
(d) Canberra Airport;
(e) Darwin International Airport;
(f) Gold Coast Airport;
(g) Hobart International Airport;
(h) Launceston Airport;
(i) Melbourne (Tullamarine) Airport;
(j) Perth Airport;
(k) Sydney (Kingsford-Smith) Airport;
(l) Townsville Airport;
(m) an airport determined by the Minister under section 3UO.
(2)
A reference in this Division to a major airport includes a reference to:
(a) for an airport mentioned in paragraphs (1)(a) to (l) - the place made up of the land described in relation to the airport in regulations made for the purposes of the definition of airport site in section 5 of the Airports Act 1996; and
(b) for an airport determined by the Minister under section 3UO - the place made up of the land described in the determination in relation to the airport; and
(c) for any airport mentioned in subsection (1) - any building, structure, installation or equipment situated on the relevant land mentioned in paragraph (a) or (b) of this subsection.
In this Division, the public order and safe operation of a major airport means:
(a) the public order of the airport, or flights to and from the airport; or
(b) the safety of persons at the airport, or on flights to and from the airport; or
(c) the safe operation of the airport, or flights to and from the airport.
(2)
However, the exercise of a person's right to engage lawfully in advocacy, protest, dissent or industrial action is not, by itself, to be regarded as prejudicial to the public order and safe operation of a major airport.
The Minister may, by legislative instrument, determine an airport for the purposes of the definition of major airport in section 3UM.
(2)
A determination of an airport under subsection (1) must include a description of land in relation to the airport for the purposes of paragraph 3UM(2)(b).
(3)
This Division applies in relation to an airport determined under subsection (1) only if the airport is ordinarily used for the purposes of any of the following:
(a) flights that start or end in a Territory;
(b) flights between Australia and a foreign country in which aircraft are used in the course of trade or commerce, for the carriage of passengers;
(c) flights between one State and another State in which aircraft are used in the course of trade or commerce, for the carriage of passengers.
(4)
This Division may apply in relation to an airport determined under subsection (1) even if the airport is also used for a purpose other than a purpose mentioned in subsection (3).
Note:
See also section 3UR (move-on directions at airports - alternative constitutional scope).
Direction togive identity information
(1)
A constable or a protective service officer may direct a person to give the constable or officer evidence of the person's identity if:
(a) the direction is given at a major airport; and
(b) the constable or officer:
(i) suspects on reasonable grounds that the person has committed, is committing, or intends to commit an offence against a law of the Commonwealth or a Territory, or a law of a State having a federal aspect, punishable by imprisonment for 12 months or more; or
(ii) considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.
Evidence of identity
(2)
A person must comply with a direction under subsection (1) by:
(a) producing a government photographic identity document issued in relation to the person; or
(b) if the person does not produce such a document - producing:
(i) another identity document in relation to the person; or
(ii) if so directed by the constable or officer - 2 different identity documents in relation to the person; or
(c) if the person does not produce an identity document (or documents) under paragraph (a) or (b) - giving the constable or officer the person's name, address and date of birth.
When may a direction be given?
(1)
A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) one or more of the following applies:
(i) the constable or officer considers on reasonable grounds that the person has contravened a direction given at that airport under section 3UP (identity information at airports) or section 3US (stop and directions powers at airports), and the constable or officer is not reasonably satisfied of the person's identity;
(ii) the constable or officer suspects on reasonable grounds that it is necessary to give the direction to prevent or disrupt relevant criminal activity occurring at any major airport, or in relation to a flight to or from any major airport;
(iii) the constable or officer considers on reasonable grounds that it is necessary to give the direction to safeguard the public order and safe operation of that airport or another major airport.
(2)
Relevant criminal activity is criminal activity involving the commission of an offence that is punishable by imprisonment for 12 months or more, against either of the following:
(a) a law of the Commonwealth or a Territory;
(b) a law of a State having a federal aspect.
What type of direction may be given?
(3)
The constable or officer may give a written direction to the person requiring the person to do either or both of the following:
(a) not to take a specified flight, or any flight, to or from that airport, or any specified major airport, for a specified period of no more than 24 hours after the direction is given;
(b) to leave the airport as soon as practicable, and not enter that airport, or any other specified major airport, for a specified period of no more than 24 hours after the direction is given.
(4)
However, a direction covering a period of more than 12 hours must be given, or authorised (orally or in writing), by a senior police officer.
Note:
In addition, if, before a direction (the later direction ) is given to a person, a direction had already been given to the same person within a period of 7 days before the later direction is given, the later direction must be given or authorised by a senior police officer even if the period covered by the later direction is 12 hours or less (see subsection (9)).
(5)
If a senior police officer orally authorises a direction under subsection (4), the senior police officer must record the authorisation in writing as soon as practicable afterwards.
(6)
A senior police officer is a constable:
(a) having the rank of sergeant or an equivalent rank, or higher; or
(b) with formal authorisation to act as a constable having such a rank.
(7)
A direction given to a person under this section must be in a form approved in writing by the Minister.
(8)
A form approved for the purposes of subsection (7) must, without limitation, include the following to assist a person to whom a direction is given to apply for judicial review, or interlocutory orders, in relation to the giving of the direction:
(a) details to enable the person to contact a Federal Court registry in the State or Territory in which the direction is given, or a requirement for the constable or officer giving the direction to include such details;
(b) any other information the Minister considers appropriate to assist the person to make such applications, for example information relating to the procedure for urgent or expedited applications.
Restriction on later directions within 7 days
(9)
After a direction (the earlier direction ) is given to a person under this section, a later direction under this section may be given to a person within 7 days after the earlier direction was given only if:
(a) subsection (1) applies (or continues to apply) in relation to the person at the time the later direction is given; and
(b) the later direction is given, or authorised (orally or in writing), by a senior police officer; and
(c) no more than one later direction under this section is given within that 7-day period; and
(d) the later direction covers a period that would end no later than 7 days after the earlier direction was given, at the same time of day at the place at which the earlier direction was given.
Without limiting its effect apart from this section, section 3UQ also has the effect it would have if the definition of major airport in section 3UM did not include an airport determined by the Minister under section 3UO.
A constable or a protective service officer may give a person a direction under this section if:
(a) the direction is given at a major airport; and
(b) the constable or officer considers on reasonable grounds that it is necessary to give the direction to facilitate the exercise of a power under section 3UP (identity information at airports) or section 3UQ (move-on directions at airports).
(2)
The constable or officer may direct the person:
(a) to stop; or
(b) to do anything else the constable or officer considers on reasonable grounds to be necessary to facilitate the exercise of a power under section 3UP or 3UQ.
Scope of section
(1)
A constable or protective service officer must comply with this section in relation to a direction given to a person under:
(a) section 3UP (identity information at airports); or
(b) section 3UQ (move-on directions at airports).
Evidence of constable's or protective service officer's status or identity etc.
(2)
The constable or officer must:
(a) if not in uniform - before the direction is given, show the person evidence that the constable is a constable, or that the officer is an officer; and
(b) if the person so requests before or after the direction is given - comply with subsection (3); and
(c) in any case - before the direction is given, inform the person that it may be an offence not to comply with the direction, or to give the constable or officer a false or misleading document, or false or misleading information, in response to the direction.
(3)
The constable or officer must give the person any of the following information if requested by the person:
(a) the constable's or officer's name;
(b) the address of the constable's or officer's place of duty;
(c) the constable's or officer's identification number (if any);
(d) if the constable or officer has no identification number - the constable's or officer's rank.
Contravening directions
(1)
A person commits an offence if:
(a) the person is given a direction by a constable or protective service officer under:
(i) section 3UP (identity information at airports); or
(ii) section 3UQ (move-on directions at airports); or
(iii) section 3US (stop and directions powers at airports); and
(b) the person engages in conduct; and
(c) the conduct contravenes the direction; and
(d) in the case of a direction given under section 3UP or 3UQ - the constable or officer complies with section 3UT (constables' and protective service officers' duties at airports).
Penalty: 20 penalty units.
(2)
Absolute liability applies to paragraph (1)(d).
Note 1:
For absolute liability, see section 6.2 of the Criminal Code.
Note 2:
For subsection (1), a person may contravene a direction by failing to comply with the direction (see the definition of contravene in section 2B of the Acts Interpretation Act 1901).
Note 3:
The following offences more serious than the offence under subsection (1) may also apply:
Failure by constable or protective service officer to give status or identity information etc.
(3)
A person commits an offence if:
(a) the person is subject to a requirement under section 3UT (constables' and protective service officers' duties at airports); and
(b) the person engages in conduct; and
(c) the conduct breaches the requirement.
Penalty: 5 penalty units.
(4)
In this section:
(a) do an act; or
(b) omit to perform an act.
The Parliamentary Joint Committee on Intelligence and Security must review:
(a) the operation, effectiveness and implications of this Division; and
(b) security matters relating to major airports.
(2)
The Committee must begin the review before the end of the period of 3 years beginning on the day the Crimes Legislation Amendment (Police Powers at Airports) Act 2019 commenced.
(3)
The Committee must report on the review to each House of the Parliament before the end of the period of 9 months beginning on the day the review commences.
If a constable believes on reasonable grounds that a person whose name or address is, or whose name and address are, unknown to the constable may be able to assist the constable in inquiries in relation to an indictable offence that the constable has reason to believe has been or may have been committed, the constable may request the person to provide his or her name or address, or name and address, to the constable.
(2)
If a constable:
(a) makes a request of a person under subsection (1); and
(b) informs the person of the reason for the request; and
(c) complies with subsection (3) if the person makes a request under that subsection;
the person must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
(2A)
Subsection (2) does not apply if the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
(3)
If a constable who makes a request of a person under subsection (1) is requested by the person to provide to the person:
(a) his or her name or the address of his or her place of duty; or
(b) his or her name and that address; or
(c) if he or she is not in uniform and it is practicable for the constable to provide the evidence-evidence that he or she is a constable;
the constable must not:
(d) refuse or fail to comply with the request; or
(e) give a name or address that is false in a material particular.
Penalty: 5 penalty units.
SECTION 3W Power of arrest without warrant by constables (1)
A constable may, without warrant, arrest a person for an offence (other than a terrorism offence and an offence against section 80.2C of the Criminal Code) if the constable believes on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2)
If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to believe on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
(3)
A constable may, without warrant, arrest a person whom he or she believes on reasonable grounds has escaped from lawful custody to which the person is still liable in respect of an offence.
SECTION 3WA Constables' power of arrest without warrant for a terrorism offence or offence of advocating terrorism (1)
A constable may, without warrant, arrest a person for a terrorism offence or an offence against section 80.2C of the Criminal Code if the constable suspects on reasonable grounds that:
(a) the person has committed or is committing the offence; and
(b) proceedings by summons against the person would not achieve one or more of the following purposes:
(i) ensuring the appearance of the person before a court in respect of the offence;
(ii) preventing a repetition or continuation of the offence or the commission of another offence;
(iii) preventing the concealment, loss or destruction of evidence relating to the offence;
(iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence;
(v) preventing the fabrication of evidence in respect of the offence;
(vi) preserving the safety or welfare of the person.
(2)
If:
(a) a person has been arrested for an offence under subsection (1); and
(b) before the person is charged with the offence, the constable in charge of the investigation ceases to suspect on reasonable grounds:
(i) that the person committed the offence; or
(ii) that holding the person in custody is necessary to achieve a purpose referred to in paragraph (1)(b);
the person must be released.
A constable may, without warrant, arrest a person whom the constable believes on reasonable grounds to be a prisoner unlawfully at large.
(2)
The constable must, as soon as practicable, take the person before a Magistrate.
(3)
If the Magistrate is satisfied that the person is a prisoner unlawfully at large, the Magistrate may issue a warrant:
(a) authorising any constable to convey the person to a prison or other place of detention specified in the warrant; and
(b) directing that the person, having been conveyed to that place in accordance with the warrant, be detained there to undergo the term of imprisonment or other detention that the person is required by law to undergo.
(4)
In this section:
prisoner
unlawfully at large
means a person who is at large (otherwise
than because the person has escaped from lawful custody) at a time when the
person is required by law to be detained under a provision of a law of the
Commonwealth, including Divisions 6
to 9, inclusive, of Part IB.
SECTION 3Y Power of arrest without warrant of person on bail (1)
A constable may, without warrant, arrest a person who has been released on bail if the constable believes on reasonable grounds that the person has contravened or is about to contravene a condition of a recognisance on which bail was granted to the person in respect of an offence, even though the condition was imposed in a State or Territory other than the one in which the person is.
(2)
Subject to subsection (3), if a constable arrests a person under subsection (1), the constable must cause the person to be brought before a magistrate as soon as is practicable.
(3)
If a constable arrests a person under subsection (1) in the State or Territory in which the condition was imposed, the person is to be dealt with according to relevant laws of that State or Territory applied by section 68 of the Judiciary Act 1903.
(4)
When a person arrested under subsection (1) in a State or Territory other than the one in which the condition was imposed is brought before a magistrate in the State or Territory in which the arrest took place, the court may:
(a) release the person unconditionally; or
(b) admit the person to bail on such recognisances as the court thinks fit to appear again before the same court at such time as the court orders; or
(c) if the condition was not imposed by the Federal Court of Australia - remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from the State or Territory in which the condition was imposed; or
(d) if the condition was imposed by the Federal Court of Australia - remand the person in custody for a reasonable time pending the obtaining of a warrant for the apprehension of the person from that Court.
(5)
A release referred to in paragraph (4)(a) does not affect the operation of the bail order or the conditions of the bail imposed in the other State or Territory.
SECTION 3Z Power of arrest without warrant by other persons (1)
A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that:
(a) the other person is committing or has just committed an indictable offence; and
(b) proceedings by summons against the other person would not achieve one or more of the purposes referred to in paragraph 3W(1)(b).
(2)
A person who arrests another person under subsection (1) must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.
SECTION 3ZA Warrants for arrest (1)
An issuing officer must not, under a law of a State or Territory applied by section 68 of the Judiciary Act 1903, issue a warrant for the arrest of a person for an offence as a result of an information laid before the officer unless:
(a) the information is on oath; and
(b) except where the issuing officer is informed that the warrant is sought for the purpose of making a request for the extradition of a person from a foreign country-the informant has given the issuing officer an affidavit setting out the reasons why the warrant is sought, including:
(i) the reasons why it is believed that the person committed the offence; and
(ii) the reasons why it is claimed that proceedings by summons would not achieve one or more of the purposes set out in paragraph 3W(1)(b); and
(c) if the issuing officer has requested further information concerning the reasons for which the issue of the warrant is sought-that information has been provided to the officer; and
(d) the issuing officer is satisfied that there are reasonable grounds for the issue of the warrant.
(2)
If an issuing officer issues such a warrant, the officer must write on the affidavit which of the reasons specified in the affidavit, and any other reasons, he or she has relied on as justifying the issue of the warrant.
SECTION 3ZB Power to enter premises to arrest offender (1)
Subject to subsection (3), if:
(a) a constable has, under a warrant, power to arrest a person for an offence; and
(b) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(2)
Subject to subsection (3), if:
(a) a constable may, under section 3W or 3WA, arrest a person without warrant for an offence; and
(b) the offence is an indictable offence; and
(c) the constable believes on reasonable grounds that the person is on any premises;
the constable may enter the premises, using such force as is necessary and reasonable in the circumstances, at any time of the day or night for the purpose of searching the premises for the person or arresting the person.
(3)
A constable must not enter a dwelling house under subsection (1) or (2) at any time during the period commencing at 9 p.m. on a day and ending at 6 a.m. on the following day unless the constable believes on reasonable grounds that:
(a) it would not be practicable to arrest the person, either at the dwelling house or elsewhere, at another time; or
(b) it is necessary to do so in order to prevent the concealment, loss or destruction of evidence relating to the offence.
(4)
In subsection (3):
dwelling house
includes a conveyance, and a room in a hotel, motel, boarding house or club, in which people ordinarily retire for the night.
SECTION 3ZC Use of force in making arrest (1)
A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
(2)
Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); or
(b) if the person is attempting to escape arrest by fleeing-do such a thing unless:
(i) the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and
(ii) the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.
SECTION 3ZD Persons to be informed of grounds of arrest (1)
A person who arrests another person for an offence must inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2)
It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3)
Subsection (1) does not apply to the arrest of the other person if:
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person's actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
SECTION 3ZE 3ZE Power to conduct a frisk search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that it is prudent to do so in order to ascertain whether the person is carrying any seizable items:
(a) conduct a frisk search of the person at or soon after the time of arrest; and
(b) seize any seizable items found as a result of the search. SECTION 3ZF 3ZF Power to conduct an ordinary search of an arrested person
A constable who arrests a person for an offence, or who is present at such an arrest, may, if the constable suspects on reasonable grounds that the person is carrying:
(a) evidential material in relation to that or another offence; or
(b) a seizable item;
conduct an ordinary search of the person at or soon after the time of arrest, and seize any such thing found as a result of the search.
SECTION 3ZG 3ZG Power to conduct search of arrested person's premisesA constable who arrests a person at premises for an offence, or who is present at such an arrest, may seize things in plain view at those premises that the constable believes on reasonable grounds to be:
(a) evidential material in relation to that or another offence; or
(b) seizable items. SECTION 3ZH Power to conduct an ordinary search or a strip search (1)
If a person who has been arrested for an offence is brought to a police station, a constable may:
(a) if an ordinary search of the person has not been conducted - conduct an ordinary search of the person; or
(b) subject to this section, conduct a strip search of the person.
(2)
A strip search may be conducted if:
(a) a constable suspects on reasonable grounds that the person has in his or her possession:
(i) a seizable item; or
(ii) evidential material (other than forensic material as defined in Part ID) in relation to that or another offence; and
(b) the constable suspects on reasonable grounds that it is necessary to conduct a strip search of the person in order to recover that item or evidential material; and
(c) a constable of the rank of superintendent or higher has approved the conduct of the search.
(2A)
If:
(a) in the course of carrying out a strip search, the constable comes to believe on reasonable grounds that the carrying out of a forensic procedure would be likely to produce evidence relating to the offence for which the person has been arrested or any other offence; and
(b) Part ID provides for the carrying out of such a forensic procedure;
the forensic procedure must not be carried out except in accordance with Part ID.
(2B)
The conducting of a strip search may include taking photographs of evidential material found on the person, whether or not taking photographs is a forensic procedure provided for by Part ID.
(3)
Subject to section 3ZI, a strip search may also be conducted if the person consents in writing.
(3A)
Subsection (3) does not authorise the conduct of a strip search for the purpose of obtaining forensic material as defined in Part ID. Such a search must not be conducted except in accordance with Part ID.
(4)
Subject to section 3ZI, a strip search may be conducted in the presence of a medical practitioner who may assist in the search.
(5)
The approval may be obtained by telephone, telex, fax or other electronic means.
(6)
A constable who gives or refuses to give an approval for the purposes of paragraph (2)(c) must make a record of the decision and of the reasons for the decision.
(7)
Such force as is necessary and reasonable in the circumstances may be used to conduct a strip search under subsection (2).
(8)
Any item of a kind referred to in paragraph (2)(a) that is found during a strip search may be seized.
SECTION 3ZI Rules for conduct of strip search (1)
A strip search:
(a) must be conducted in a private area; and
(b) must be conducted by a constable who is of the same sex as the person being searched; and
(c) subject to subsections (3) and (4), must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched; and
(d) must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search; and
(e) must not be conducted on a person who is under 10; and
(f) if the person being searched is at least 10 but under 18, or is incapable of managing his or her affairs:
(i) may only be conducted if the person has been arrested and charged or if a magistrate orders that it be conducted; and
(ii) must be conducted in the presence of a parent or guardian of the person being searched or, if that is not acceptable to the person, in the presence of another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person; and
(g) must not involve a search of a person's body cavities; and
(h) must not involve the removal of more garments than the constable conducting the search believes on reasonable grounds to be necessary to determine whether the person has in his or her possession the item searched for or to establish the person's involvement in the offence; and
(i) must not involve more visual inspection than the constable believes on reasonable grounds to be necessary to establish the person's involvement in the offence.
(2)
In deciding whether to make an order referred to in paragraph (1)(f), the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(3)
A strip search may be conducted in the presence of a medical practitioner of the opposite sex to the person searched if a medical practitioner of the same sex as the person being searched is not available within a reasonable time.
(4)
Paragraph (1)(c) does not apply to a parent, guardian or personal representative of the person being searched if the person being searched has no objection to the person being present.
(5)
If any of a person's garments are seized as a result of a strip search, the person must be provided with adequate clothing.
SECTION 3ZJ TAKING FINGERPRINTS, RECORDINGS, SAMPLES OF HANDWRITING OR PHOTOGRAPHS 3ZJ(1)
In this section and in sections 3ZK and 3ZL:
identification material
, in relation to a person, means prints of the person's hands, fingers, feet or toes, recordings of the person's voice, samples of the person's handwriting or photographs (including video recordings) of the person, but does not include tape recordings made for the purposes of section 23U or 23V.
3ZJ(2)
A constable must not:
(a) take identification material from a person who is in lawful custody in respect of an offence except in accordance with this section; or
(b) require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.
3ZJ(3)
If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:
(a) the person consents in writing; or
(b) the constable believes on reasonable grounds that it is necessary to do so to:
(i) establish who the person is; or
(ii) identify the person as the person who committed the offence; or
(iii) provide evidence of, or relating to, the offence; or
(ba) both of the following apply:
(i) the identification material taken, or caused to be taken, is fingerprints or photographs (including video recordings) of the person;
(ii) the offence is punishable by imprisonment for a period of 12 months or more; or
(c) the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.
3ZJ(4)
A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.
3ZJ(5)
Subject to subsection (9), a constable must not take identification material from a person who is under 10.
3ZJ(6)
Subject to this section, a constable must not take identification material (other than hand prints, finger prints, foot prints or toe prints) from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
unless a magistrate orders that the material be taken.
3ZJ(6A)
A constable must not take hand prints, finger prints, foot prints or toe prints from a suspect who:
(a) is at least 10 but under 18, or is incapable of managing his or her affairs; and
(b) has not been arrested and charged;
except in accordance with Part ID.
3ZJ(7)
In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
3ZJ(8)
The taking of identification material from a person who:
(a) is under 18; or
(b) is incapable of managing his or her affairs;
must be done in the presence of:
(c) a parent or guardian of the person; or
(d) if the parent or guardian of the person is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
3ZJ(9)
Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is under 10 or is incapable of managing his or her affairs;
if a magistrate orders that the material be taken.
3ZJ(10)
Despite this section, identification material may be taken from a person who:
(a) is not a suspect; and
(b) is at least 10 but under 18; and
(c) is capable of managing his or her affairs;
if one of the following paragraphs applies:
(d) the person agrees in writing to the taking of the material and a parent or guardian of the person also agrees in writing or, if a parent or guardian is not acceptable to the person, another person (other than a constable) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person also agrees in writing;
(e) if:
(i) one of those persons agrees in writing to the taking of the material but the other does not; and
(ii) a magistrate orders that the material be taken.
3ZJ(11)
In deciding whether to make such an order, the magistrate must have regard to the matters set out in subsection (7).
3ZJ(12)
Despite this section, identification material may be taken from a person who:
(a) is at least 18; and
(b) is capable of managing his or her affairs; and
(c) is not a suspect;
if the person consents in writing.
SECTION 3ZK Destruction of identification material (1)
If:
(a) identification material has been taken from a person under section 3ZJ; and
(b) a period of 12 months has elapsed since the identification material was taken; and
(c) proceedings in respect of an offence to which the investigationmaterial relates have not been instituted or have been discontinued;
the identification material must be destroyed as soon as practicable.
(2)
If identification material has been taken from a person under section 3ZJ and:
(a) the person is found to have committed an offence to which the identification material relates but no conviction is recorded; or
(b) the person is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the identification material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the person for, another offence to which the identification material relates is pending.
(3)
A magistrate may, on application by a constable, extend the period of 12 months referred to in subsection (1) or that period as previously extended under this subsection in relation to particular identification material if the magistrate is satisfied that there are special reasons for doing so.
SECTION 3ZL Offence of refusing to allow identification material to be taken (1)
If a person is convicted of an offence, the judge or magistrate presiding at the proceedings at which the person was convicted may order:
(a) the person to attend a police station; or
(b) that a constable be permitted to attend on the person in a place of detention;
within one month after the conviction to allow impressions of the person's fingerprints and/or a photograph of the person to be taken in accordance with the order.
(2)
A person must not, without reasonable excuse, refuse or fail to allow those impressions or a photograph of the person to be taken.
Penalty: Imprisonment for 12 months.
(3)
Subsection (2) does not apply if the person has a reasonable excuse.
(3A)
The judge or magistrate may also make any other orders that are reasonably necessary for ensuring that the impressions of the person's fingerprints and/or a photograph of the person are taken in accordance with the order under subsection (1). For example, the judge or magistrate may order the person to attend a specified police station at a specified time.
(3B)
A person commits an offence if:
(a) the person is subject to an order under subsection (3A); and
(b) the person engages in conduct; and
(c) the person's conduct contravenes the order.
Penalty: Imprisonment for 12 months.
(3C)
In this section:
(a) do an act; or
(b) omit to perform an act.
(4)
Nothing in this section derogates from the right to use the provisions of Part ID as authority for the taking of fingerprints from a prescribed offender or a serious offender.
(5)
In subsection (4), prescribed offender and serious offender have the meanings given in subsection 23WA(1).
SECTION 3ZM Identification parades (1)
This section applies to identification parades held in relation to offences.
(2)
Subject to subsection (3) and to section 3ZN, an identification parade:
(a) may be held if the suspect agrees; or
(b) must be held if:
(i) the suspect has requested that an identification parade be held; and
(ii) it is reasonable in the circumstances to do so.
(2A)
Without limiting the matters that may be taken into account in determining whether it is reasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade - to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case - to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(3)
An identification parade must not be held unless the suspect has been informed that:
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade:
(i) evidence of the refusal may be given in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held; and
(ii) evidence may be given in such proceedings of any identification of the suspect by a witness as a result of having seen a photograph or having seen the suspect otherwise than during an identification parade; and
(c) in addition to any requirement under section 3ZN, a legal representative or other person of the suspect's choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4)
The giving of the information referred to in subsection (3) must be recorded by a video recording or an audio recording.
(5)
An identification parade must be arranged and conducted in a manner that will not unfairly prejudice the suspect.
(6)
Without limiting the intent of subsection (5), an identification parade must be arranged and conducted in accordance with the following rules:
(a) the parade must consist of at least 9 persons;
(b) each of the persons who is not the suspect must:
(i) resemble the suspect in age, height and general appearance; and
(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c) unless it is impracticable for another constable to arrange or conduct the parade, no constable who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant in order to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in such a manner and:
(i) a legal representative or other person of the suspect's choice is present with the witness; or
(ii) the parade is recorded by a video recording;
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests, members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness must be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than one witness is to view the parade:
(i) each witness must view the parade alone; and
(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii) the suspect may change places in the parade after each viewing;
(k) each witness must be told that:
(i) the suspect may not be in the parade; and
(ii) if he or she is unable to identify the suspect with reasonable certainty he or she must say so;
(l) the parade must be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording must be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording:
(i) the parade must be photographed in colour; and
(ii) a print of a photograph of the parade that is at least 250mm ( 200mm in size must be made available to the suspect or his or her legal representative; and
(iii) the constable in charge of the parade must take all reasonable steps to record everything said and done at the parade and must make a copy of the record available to the suspect or his or her legal representative;
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7)
Nothing in this Act affects the determination of the following questions:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of such a refusal is admissible, what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8)
If a witness is, under the supervision of a constable, to attempt to identify a suspect otherwise than during an identification parade, the constable must ensure that the attempted identification is done in a manner that is fair to the suspect.
SECTION 3ZN Identification parades for suspects under 18 etc. (1)
An identification parade must not be held for a suspect who is under 10.
(2)
An identification parade must not be held for a suspect who is incapable of managing his or her affairs unless a magistrate orders that it be held.
(3)
An identification parade must not be held for a suspect who:
(a) is at least 10 but under 18; and
(b) is capable of managing his or her affairs;
unless one of the following paragraphs applies:
(c) the suspect agrees to or requests in writing the holding of the parade and a parent or guardian of the suspect agrees in writing to the holding of the parade or, if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect agrees in writing to the holding of the parade;
(d) if:
(i) one of those persons agrees in writing to the holding of the parade but the other does not; and
(ii) a magistrate orders that the parade be held.
(4)
In deciding whether to make such an order, the magistrate must have regard to:
(a) the seriousness of the offence; and
(b) the age or any disability of the person; and
(c) such other matters as the magistrate thinks fit.
(5)
An identification parade for a suspect who is under 18 or is incapable of managing his or her affairs must be held in the presence of:
(a) a parent or guardian of the suspect; or
(b) if the parent or guardian is not acceptable to the suspect, another person (other than a constable) who is capable of representing the interests of the suspect and who, as far as is practicable in the circumstances, is acceptable to the suspect.
SECTION 3ZO Identification by means of photographs (1)
If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a constable investigating the offence must not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless:
(a) the suspect has refused to take part in an identification parade; or
(aa) the suspect's appearance has changed significantly since the offence was committed; or
(b) the holding of an identification parade would be:
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
(1A)
Without limiting the matters that may be taken into account in determining whether it would be unreasonable in the circumstances to hold an identification parade, the following must be taken into account:
(a) the kind of offence, and the gravity of the offence, concerned;
(b) the likely importance in the circumstances of the evidence of identification;
(c) the practicality of holding an identification parade, having regard, among other things:
(i) if the suspect fails to cooperate in the conduct of the parade-to the manner and extent of, and the reason (if any) for, the failure; and
(ii) in any case-to whether an identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade, having regard, among other things, to the relationship (if any) between the suspect and the person who may make an identification at the identification parade.
(2)
If a constable investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the constable must show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect must be of a person who:
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(ba) the photographs or pictures shown to the witness must not suggest that they are photographs or pictures of persons in police custody;
(c) the constable must not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect must have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness must be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the constable must keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the constable must notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the constable must retain the photographs or pictures shown, and must allow the suspect or his or her legal representative, upon application, an opportunity to inspect the photographs or pictures.
(3)
If:
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
the jury must be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4)
If a suspect is in custody in respect of an offence, a constable investigating the offence must not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5)
If, after a constable investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4):
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
the constable in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6)
If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the constable in charge of investigating the offence must, upon application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness concerning the picture.
(7)
If a suspect is in custody in respect of an offence and a constable investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a constable from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
SECTION 3ZP 3ZP Identification procedures where there is more than one suspect
If:
(a) a constable is attempting to ascertain:
(i) which of 2 or more suspects committed an offence; or
(ii) the identities of 2 or more suspects who may have been jointly involved in an offence; and
(b) for that purpose, the constable intends to conduct an identification parade or to identify a person by showing a photograph or a picture of a suspect to a person;
the constable must undertake a separate identification process for each of the suspects.
SECTION 3ZQ Descriptions (1)If a description of a suspect is given to a constable in relation to an offence, the constable must ensure that a record of the description is made and that the record is retained until any proceedings in respect of the offence are completed.
(2)
Subject to subsection (4), a constable must, if requested to do so by a person who has been charged with an offence, provide the person with the name of every person who, to the knowledge of the constable, claims to have seen, at or about the time of the commission of the offence, a person who is suspected of being involved in its commission.
(3)
If:
(a) a record of a description of a person is made under subsection (1); and
(b) the person is charged with an offence to which the description relates;
a constable must notify the person or his or her legal representative in writing that a copy of the record, and of any other record of a description that the constable knows about of a person who is suspected of being involved in the commission of the offence, is available for the person.
(4)
If the constable suspects on reasonable grounds that providing the name of a person under subsection (2) could:
(a) place the person in danger; or
(b) expose the person to harassment or unreasonable interference;
the constable is not required to provide the name of the person.
Division 4A - Determining a person's age
In this Division:
age determination information
means a record, or information, relating to a person that is obtained by carrying out a prescribed procedure.
appropriately qualified
, in relation to the carrying out of a prescribed procedure, means:
(a) having suitable professional qualifications or experience to carry out the prescribed procedure; or
(b) qualified under the regulations to carry out the prescribed procedure.
(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.
(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.
prescribed procedure
means a procedure specified by regulations made for the purposes of subsection (2) to be a prescribed procedure for determining a person's age.
(2)
The regulations may specify a particular procedure to be a prescribed procedure for determining a person's age.
(3)
a procedure prescribed for the purposes of subsection (2):
(a) may involve the operation of particular equipment that is specified for the purpose; and
(b) must require that equipment to be operated by an appropriately qualified person.
(4)
Before the Governor-General makes a regulation for the purposes of subsection (2), the Minister must consult with the Minister responsible for the administration of the Therapeutic Goods Act 1989.
Subdivision B - Determination of age during investigation
If:
(a) an investigating official suspects, on reasonable grounds, that a person may have committed a Commonwealth offence; and
(b) it is necessary to determine whether or not the person is, or was, at the time of the alleged commission of the offence, under 18 because that question is relevant to the rules governing the person's detention, the investigation of the offence or the institution of criminal proceedings;
the investigating official may, whether or not the person is in custody at the time, arrange for the carrying out of a prescribed procedure in respect of the person only if:
(c) the investigating official obtains, in accordance with section 3ZQC, the requisite consents to the carrying out of the procedure in respect of the person; or
(d) a magistrate orders, on application by the investigating official, the carrying out of the procedure in respect of the person.
3ZQB(2)
An application to a magistrate by an investigating official for the purposes of paragraph (1)(d) may be made:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
3ZQB(3)
In deciding whether to make such an order on application by an investigating official, the magistrate must be satisfied that:
(a) there are reasonable grounds for the suspicion that the person has committed a Commonwealth offence; and
(b) there is uncertainty as to whether or not the person is, or was, at the time of the alleged commission of the offence, under 18; and
(c) the uncertainty will need to be resolved in order to determine the application of the rules governing the person's detention, the investigation of the offence or the institution of criminal proceedings.
SECTION 3ZQC Obtaining of consents for the carrying out of a prescribed procedure 3ZQC(1)
For the purposes of paragraph 3ZQB(1)(c), an investigating official is taken to have obtained the requisite consents to the carrying out of a prescribed procedure in respect of a person if the following persons agree in writing to the carrying out of the procedure:
(a) the person in respect of whom it is sought to carry out the procedure;
(b) either:
(i) a parent or guardian of the person; or
(ii) if a parent or guardian is not available or is not acceptable to the person - an independant adult person (other than an investigating official involved in the investigation of the person) who is capable of representing the interests of the person and who, as far as is practicable in the circumstances, is acceptable to the person.
3ZQC(2)
Before seeking the consents referred to in subsection (1), an investigating official must first inform each of the persons from whom such a consent is being sought, in a language in which the person is able to communicate with reasonable fluency:
(a) the purpose and reasons for which the prescribed procedure is to be carried out; and
(b) the nature of the procedure; and
(c) if the procedure involves the operation of particular equipment - the nature of that equipment; and
(d) that the information obtained from the carrying out of the procedure could affect the manner of dealing with the person on whom the procedure is to be carried out; and
(e) the known risks (if any) that would be posed to the health of the person on whom the procedure is to be carried out; and
(ea) that the persons giving the requisite consent may withdraw that consent at any time; and
(f) that the seeking of the requisite consent and any giving of such consent was being, or would be, recorded; and
(g) that the persons giving the requisite consent are each entitled to a copy of that record; and
(h) that the person on whom the procedure is to be carried out may have, so far as is reasonably practicable, a person of his or her choice present while the procedure is carried out.
3ZQC(3)
The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other electronic means.
3ZQC(4)
Nothing in this section affects the rights of a person under Part IC, in particular a person's rights under:
(a) section 23G (Right to communicate with friend, relative and legal practitioner); or
(b) section 23P (Right of foreign national to communicate with consular office).
SECTION 3ZQD 3ZQD Withdrawal of consent
If a person who has given consent to the carrying out of a prescribed procedure expressly withdraws consent to the carrying out of that procedure (or if the withdrawal of such consent can reasonably be inferred from the person's conduct) before or during the carrying out of the procedure, the carrying out of the procedure is not to proceed otherwise than by order of a magistrate on the application of an investigating official.
An investigating official must, if practicable, ensure that:
(a) the giving of information about a prescribed procedure and the responses (if any) of the persons to whom the information is given are recorded by audio tape, video tape or other electronic means; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
3ZQE(2)
If recording the giving of information and the responses (if any) of the persons to whom the information is given in the manner referred to in subsection (1) is not practicable, the investigating official must ensure that:
(a) a written record of the giving of the information and of the responses (if any) is made; and
(b) a copy of the record is made available to the person on whom it is sought to carry out the procedure.
Subdivision C - Determination of age during proceedings
If:
(a) a person is being prosecuted for a Commonwealth offence; and
(b) the judge or magistrate presiding over the proceedings related to that offence is satisfied that it is necessary to ascertain whether or not the person is, or was, at the time of the alleged commission of that offence, under 18;
the judge or magistrate presiding may make an order requiring the carrying out of a prescribed procedure in respect of the person.
If a judge or a magistrate orders the carrying out of a prescribed procedure (whether as a result of a request by an investigating official or not), the judge or magistrate must:
(a) ensure that a written record of the order, and of the reasons for the making of the order, is kept; and
(b) ensure that the person on whom the procedure is to be carried out is told by an investigating official in a language in which the person is able to communicate with reasonable fluency:
(i) that an order for the carrying out of the procedure has been made and of the reasons for the making of the order; and
(ii) of the arrangements for the carrying out of the procedure; and
(iii) of the fact that reasonable force may be used to secure the compliance of the person to whom the order relates.
3ZQG(2)
The judge or magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision E - Matters relating to the carrying out of prescribed procedures
A prescribed procedure must be carried out in a manner consistent with either or both of the following:
(a) appropriate medical standards;
(b) appropriate other relevant professional standards.
Except where the carrying out of a prescribed procedure to determine a person's age is undertaken with the consent of that person and of an additional adult person in accordance with section 3ZQC, the person carrying out the procedure, and any person assisting that person, is entitled to use such force as is reasonable and necessary in the circumstances.
A person commits an offence if:
(a) the person's conduct causes the disclosure of age determination information other than as provided by this section; and
(b) the person is reckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(2)
A person may only disclose age determination information:
(a) for a purpose related to establishing and complying with the rules governing:
(i) the detention of the person to whom the age determination information relates; or
(ii) the investigation of a Commonwealth offence by that person; or
(iii) the institution of criminal proceedings against that person for a Commonwealth offence; or
(b) for a purpose related to the conduct of:
(i) the investigation of the person to whom the age determination information relates for a Commonwealth offence; or
(ii) proceedings for a Commonwealth offence against that person; or
(c) for the purpose of an investigation by the Information Commissioner of the Commonwealth or the Commonwealth Ombudsman; or
(d) if the person to whom the age determination information relates consents in writing to the disclosure.
Note:
A defendant bears an evidential burden in relation to the matters referred to in subsection (2) - see subsection 13.3(3) of the Criminal Code.
If, in relation to a Commonwealth offence:
(a) age determination information relating to a person has been obtained by carrying out a prescribed procedure; and
(b) 12 months have passed since the carrying out of the procedure; and
(c) proceedings in respect of the offence have not been instituted against the person from whom the information was taken or have discontinued;
the information must be destroyed as soon as practicable.
3ZQK(2)
If, in relation to a Commonwealth offence, age determination information relating to a person has been obtained by carrying out a prescribed procedure and:
(a) the person is found to have committed the offence but no conviction is recorded; or
(b) the person is acquitted of the offence and:
(i) no appeal is lodged against the acquittal; or
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
the information must be destroyed as soon as practicable unless an investigation into, or a proceeding against, the person for another Commonwealth offence is pending.
3ZQK(3)
A magistrate may, on application by an investigating official, extend the period of 12 months referred to in subsection (1), or that period as previously extended under this subsection in relation to the information, if the magistrate is satisfied that there are special reasons for doing so.
Division 4B - Power to obtain information and documents
In this Division:
(a) the Commissioner; or
(b) a Deputy Commissioner; or
(c) a senior executive AFP employee who:
(i) is a member of the Australian Federal Police; and
(ii) is authorised in writing by the Commissioner for the purposes of this paragraph.
Federal Magistrate
(Repealed by No 13 of 2013)
This section applies if an authorised AFP officer believes on reasonable grounds that an operator of an aircraft or ship has information or documents (including in electronic form) that are relevant to a matter that relates to the doing of a terrorist act (whether or not a terrorist act has occurred or will occur).
3ZQM(2)
The officer may:
(a) ask the operator questions relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage, that are relevant to the matter; or
(b) request the operator to produce documents relating to the aircraft or ship, or its cargo, crew, passengers, stores or voyage:
(i) that are relevant to the matter; and
(ii) that are in the possession or under the control of the operator.
3ZQM(3)
A person who is asked a question or requested to produce a document under subsection (2) must answer the question or produce the document as soon as practicable.
3ZQM(4) Offence.
A person commits an offence if:
(a) the person is an operator of an aircraft or ship; and
(b) the person is asked a question or requested to produce a document under subsection (2); and
(c) the person fails to answer the question or produce the document.
Penalty: 60 penalty units.
3ZQM(5)Subsection (4) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
3ZQM(6)
It is a defence to a prosecution for an offence against subsection (4) if the person charged had a reasonable excuse for:
(a) failing to answer the question; or
(b) failing to produce the document.
3ZQM(7) Definitions.
In this section:
operator
has the meaning given by section 4 of the Customs Act 1901.
terrorist act
(Repealed by No 2 of 2011)
This section applies if an authorised AFP officer considers on reasonable grounds that a person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious terrorism offence.
(2)
The officer may give the person a written notice requiring the person to produce documents that:
(a) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and
(b) are in the possession or under the control of the person.
(3)
The notice must:
(a) specify the name of the person to whom the notice is given; and
(b) specify the matters to which the documents to be produced relate; and
(c) specify the manner in which the documents are to be produced; and
(d) specify the place at which the documents are to be produced; and
(e) specify the day by which the person must comply with the notice, being a day that is at least:
(i) 14 days after the giving of the notice; or
(ii) if the officer believes that it is appropriate, having regard to the urgency of the situation, to specify an earlier day - 3 days after the giving of the notice; and
(f) set out the effect of section 3ZQS (offence for failure to comply); and
(g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
An authorised AFP officer may apply to a Judge of the Federal Circuit and Family Court of Australia (Division 2) for a notice under this section in respect of a person if the AFP officer considers on reasonable grounds that the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence.
(2)
If the Judge is satisfied on the balance of probabilities, by information on oath or by affirmation, that: (a) the person has documents (including in electronic form) that are relevant to, and will assist, the investigation of a serious offence; and (b) giving the person a notice under this section is reasonably necessary, and reasonably appropriate and adapted, for the purpose of investigating the offence;
the Judge may give the person a written notice requiring the person to produce documents that:
(c) relate to one or more of the matters set out in section 3ZQP, as specified in the notice; and (d) are in the possession or under the control of the person.(3)
The Judge must not give the notice unless the authorised AFP officer or some other person has given to the Judge, either orally or by affidavit, such further information (if any) as the Judge requires concerning the grounds on which the issue of the notice is being sought.
(4)
The notice must: (a) specify the name of the person to whom the notice is given; and (b) specify the matters to which the documents to be produced relate; and (c) specify the manner in which the documents are to be produced; and (d) specify the place at which the documents are to be produced; and (e) state that the person must comply with the notice within 14 days after the day on which the notice is given; and (f) set out the effect of section 3ZQS (offence for failure to comply); and (g) if the notice specifies that information about the notice must not be disclosed - set out the effect of section 3ZQT (offence for disclosing existence or nature of a notice).
SECTION 3ZQP 3ZQP Matters to which documents must relate
A document to be produced under a notice under section 3ZQN or 3ZQO must relate to one or more of the following matters:
(a) determining whether an account is held by a specified person with a specified financial institution, and details relating to the account (including details of any related accounts);
(b) determining whether a specified person is a signatory to an account with a specified financial institution, and details relating to the account (including details of any related accounts);
(c) determining whether a transaction has been conducted by a specified financial institution on behalf of a specified person, and details relating to the transaction (including details relating to other parties to the transaction);
(d) determining whether a specified person travelled or will travel between specified dates or specified locations, and details relating to the travel (including details relating to other persons travelling with the specified person);
(e) determining whether assets have been transferred to or from a specified person between specified dates, and details relating to the transfers (including details relating to the names of any other persons to or from whom the assets were transferred);
(f) determining whether an account is held by a specified person in respect of a specified utility (such as gas, water or electricity), and details relating to the account (including the names of any other persons who also hold the account);
(g) determining who holds an account in respect of a specified utility (such as gas, water or electricity) at a specified place, and details relating to the account;
(h) determining whether a telephone account is held by a specified person, and details relating to the account (including:
(i) details in respect of calls made to or from the relevant telephone number; or
(ii) the times at which such calls were made or received; or
(iii) the lengths of such calls; or
(iv) the telephone numbers to which such calls were made and from which such calls were received);
(i) determining who holds a specified telephone account, and details relating to the account (including details mentioned in paragraph (h));
(j) determining whether a specified person resides at a specified place;
(k) determining who resides at a specified place.
A power conferred on a Judge of the Federal Circuit and Family Court of Australia (Division 2) by section 3ZQO is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(2)
A Judge of the Federal Circuit and Family Court of Australia (Division 2) need not accept the power conferred.
(3)
A Judge of the Federal Circuit and Family Court of Australia (Division 2) exercising a power conferred by section 3ZQO has the same protection and immunity as if he or she were exercising that power as, or as a member of, the court of which the Judge is a member.
A person is not excused from producing a document under section 3ZQN or 3ZQO on the ground that to do so:
(a) would contravene any other law; or
(b) might tend to incriminate the person or otherwise expose the person to a penalty or other liability; or
(c) would disclose material that is protected against disclosure by legal professional privilege or any other duty of confidence; or
(d) would be otherwise contrary to the public interest.
(2)
However, neither:
(a) the production of the document; nor
(b) any information, document or thing obtained as a direct or indirect consequence of producing the document;
is admissible in evidence against the person in proceedings other than proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this Act.
(3)
A person is not liable to any penalty by reason of his or her producing a document when required to do so under section 3ZQN or 3ZQO.
(4)
The fact that a person is not excused under subsection (1) from producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that document.
SECTION 3ZQS 3ZQS Offence for failure to comply with notice under section 3ZQN or 3ZQO
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the person fails to comply with the notice.
Penalty: 30 penalty units.
A person commits an offence if:
(a) the person is given a notice under section 3ZQN or 3ZQO; and
(b) the notice specifies that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(2)
Subsection (1) does not apply if:
(a) the person discloses the information to another person in order to obtain a document that is required by the notice in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or
(b) the disclosure is made to obtain legal advice or legal representation in relation to the notice; or
(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Divison 4C - Using, sharing and returning things seized and documents produced
Use and sharing of thing or document by constable or Commonwealth officer
(1)
A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose: (a) preventing, investigating or prosecuting an offence; (b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; (c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect; (d) proceedings for the forfeiture of the thing under a law of the Commonwealth; (e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105, 105A or 395 of the Criminal Code; (f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part; (g) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act; (h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988; (i) conducting a NACC Act process (within the meaning of the National Anti-Corruption Commission Act 2022); (j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i); (k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection; (l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2)
A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3)
A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4)
To avoid doubt, this section does not limit any other law of the Commonwealth that: (a) requires or authorises the use of a document or other thing; or (b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5)
A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to: (a) a State or Territory law enforcement agency; or (b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory; (d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002); (e) proceedings for the forfeiture of the thing under a law of a State or Territory; (f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.Ministerial arrangements for sharing
(6)
This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for: (a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and (b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note:
This subsection does not empower the Minister to make such an arrangement.
Definition
(7)
In this section:
State or Territory law enforcement agency
means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad-based Anti-corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commission Against Corruption of South Australia.
This section applies to electronic equipment seized under this Part or moved under section 3K.
(2)
The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
[ CCH Note: S 3ZQV(2) will be amended by No 93 of 2024, s 3 and Sch 1 item 26, by inserting ", or whether data that suggests the existence of a digital asset that may be seized under a warrant," after "evidential material", applicable in relation to an application for a warrant under Division 2 of Part IAA made on or after 24 November 2024: (a) whether the conduct or offence to which the application relates occurred before, on or after 24 November 2024; and (b) whether property or other things to which the application relates were acquired or came into existence before, on or after 24 November 2024.]
(3)
The data referred to in subsection (2) includes, but is not limited to, the following: (a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized; (b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(3A)
If the electronic equipment was seized under a warrant, subsection (2) does not apply to data that was generated after the expiry of the warrant.
(4)
If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.
(5)
This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.
Note:
For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing moved under that section.
This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZQV:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
3ZQW(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
3ZQW(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
3ZQW(4)
In determining the amount of compensation payable, regard is to be had to whether any appropriate warning or guidance was provided, before the equipment was operated, on the operation of the equipment.
3ZQW(5)
Compensation is payable out of money appropriated by the Parliament.
3ZQW(6)
For the purposes of subsection (1):
damage
, in relation to data, includes damage by erasure of data or addition of other data.
When things seized under Division 2 or 4 must be returned
3ZQX(1)
If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
3ZQX(2)
However, the Commissioner does not have to take those steps if:
(aa) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(3), or any other order under that subsection has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
When documents produced under Division 4B must be returned
3ZQX(3)
If the Commissioner is satisfied that a document produced under Division 4B is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the document to the person who produced the document or to the owner if that person is not entitled to possess it.
3ZQX(4)
However, the Commissioner does not have to take those steps if:
(a) either:
(i) the document may be retained because of an order under subsection 3ZQZB(3), or any other order under that subsection has been made in relation to the document; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(b) the document may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the document is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
If:
(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(b) the period of 60 days after the thing's seizure ends;
the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
3ZQY(2)
However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(2) or (3), or any other order under subsection 3ZQZB(3) has been made in relation to the thing; or
(ii) the Commissioner has applied for such an order and the application has not been determined; or
(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(Repealed by No 2 of 2011)
The Commissioner must take reasonable steps to return a thing seized under Division 3A if the owner requests the return of the thing.
3ZQZA(2)
However, the Commissioner does not have to take those steps if:
(a) the Commissioner suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence; or
(b) the Commissioner is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(c) either:
(i) the thing may be retained because of an order under subsection 3ZQZB(2) or (3), or any other order under subsection 3ZQZB(3) has been made in relation to the thing; or
(d) the thing may otherwise be retained, destroyed or disposed of under a law, or order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(e) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
3ZQZA(3)
Despite subsection (2), if:
(a) the owner of a thing requests the return of the thing:
(i) within 90 days after the date of the seizure notice served under section 3UF in relation to the thing; or
(ii) if subsection 3UF(2) applied in relation to the thing so that a seizure notice was not served - within 90 days after the day on which the thing was seized; and
(b) the thing has not been returned to the owner by the end of the 90th day;
the Commissioner must, before the end of the 95th day:
(c) take reasonable steps to return the thing to the owner; or
(d) apply to a magistrate for an order under section 3ZQZB.
3ZQZA(4)
(Repealed by No 2 of 2011)
A magistrate may, on application by the Commissioner, make an order under subsection (2) or (3) in relation to a thing seized or a document produced under this Part.
Use for purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings
3ZQZB(2)
The magistrate may order that a thing seized under Division 3 or 3A be retained for the period specified in the order if the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.
Preventing use in committing terrorist act, terrorism offence or serious offence
3ZQZB(3)
The magistrate may make any of the orders referred to in subsection (4) if the magistrate is satisfied that there are reasonable grounds to suspect that, if a thing seized or document produced under this Part is returned to any of the following persons, it is likely to be used by that person or another person in the commission of a terrorist act, a terrorism offence or a serious offence:
(a) the owner of the thing or document;
(b) in the case of a thing - the person from whom the thing was seized;
(c) in the case of a document - the person who produced the document.
3ZQZB(4)
The orders are as follows:
(a) an order that the thing or document may be retained for the period specified in the order;
(b) an order that the thing or document is forfeited to the Commonwealth;
(c) for a thing that is not a document - an order that:
(i) the thing be sold and the proceeds given to the owner of the thing; or
(ii) the thing be sold in some other way;
(d) an order that the thing or document is to be destroyed or otherwise disposed of.
Thing or document must be returned if magistrate not satisfied
3ZQZB(5)
The magistrate must order that a thing or document be returned to the following person if the magistrate is not satisfied as mentioned in subsection (2) or (3):
(a) in the case of a thing - the person from whom the thing was seized;
(b) in the case of a document - the person who produced the document;
(c) if the person referred to in paragraph (a) or (b) is not entitled to possess the thing or document - the owner of the thing or document.
Persons with an interest in thing or document
3ZQZB(6)
Before making an application under this section in relation to a thing or document, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the thing or document; and
(b) if it is practicable to do so, notify each person who the Commissioner believes to have such an interest of the proposed application.
3ZQZB(7)
The magistrate must allow a person who has an interest in the thing or document to appear and be heard in determining the application.
Special rule for things seized under Division 3
3ZQZB(8)
The Commissioner may only make an application under this section in relation to a thing seized under Division 3 if the application is made:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order in relation to the thing under this section.
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched. SECTION 3ZS Announcement before entry (1)
A constable must, before any person enters premises under a warrant or to arrest a person:
(a) announce that he or she is authorised to enter the premises; and
(b) give any person at the premises an opportunity to allow entry to the premises.
(2)
A constable is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:
(a) the safety of a person (including a constable); or
(b) that the effective execution of the warrant or the arrest is not frustrated.
SECTION 3ZT 3ZT Offence for making false statements in warrants
A person must not make, in an application for a warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
SECTION 3ZU 3ZU Offences relating to telephone warrantsA person must not:
(a) state in a document that purports to be a form of warrant under section 3R the name of an issuing officer unless that officer issued the warrant; or
(b) state on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) give to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
SECTION 3ZV 3ZV Retention of things which are seized(Repealed by No 4 of 2010)
The Commissioner may delegate to a constable any or all of the Commissioner's powers, functions or duties under this Part.
3ZW(2)
The Commissioner may delegate to a Commonwealth officer any or all of the Commissioner's powers, functions or duties under Division 4C of this Part if the Commissioner is satisfied on reasonable grounds that the officer is able to properly exercise those powers, functions or duties.
This Part does not affect the law relating to legal professional privilege. Part IAAA - Delayed notification search warrants
The object of this Part is to provide for eligible agencies to obtain search warrants:
(a) that relate to eligible offences; and
(b) that authorise the entry and search of premises without having to produce the warrant at the time of entry and search.
(2)
A warrant issued under this Part is a delayed notification search warrant .
(3)
An eligible agency is the Australian Federal Police.
(4)
An eligible offence is a terrorism offence that is punishable on conviction by imprisonment for 7 years or more.
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the seizure of things; or
(c) the use of an assumed identity; or
(d) the installation of surveillance devices (within the meaning of the Surveillance Devices Act 2004).
(2)
To avoid doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
In this Part:
adjoining premises
, in relation to particular premises, means premises adjoining, or providing access, to the premises.
adjoining premises occupier's notice
: see section 3ZZDB.
applicable normal search warrant regime
: see subsection 3ZZBJ(2).
authorised agency
means the Australian Federal Police.
chief officer
, in relation to an authorised agency or eligible agency, means the Commissioner.
conditions for issue
(Repealed by No 82 of 2016)
damage
, in relation to data, includes damage by erasure of data or addition of other data.
day of execution
of a delayed notification search warrant means the day on which the warrant premises were first entered under the warrant.
delayed notification search warrant
: see subsection 3ZZAA(2).
eligible agency
: see subsection 3ZZAA(3).
eligible issuing officer
: see subsection 3ZZAD(1).
eligible offence
: see subsection 3ZZAA(4).
eligible officer
of an authorised agency or eligible agency means a member or special member of the Australian Federal Police.
emergency situation
, in relation to the execution of a delayed notification search warrant in relation to premises, means a situation that the executing officer or a person assisting believes, on reasonable grounds, involves a serious and imminent threat to a person's life, health or safety that requires the executing officer and persons assisting to leave the premises.
evidential material
means a thing relevant to an eligible offence, or an indictable offence, that has been, is being, is about to be or is likely to be committed.
executing officer
, in relation to a delayed notification search warrant, means:
(a) the eligible officer of the authorised agency who is named in the warrant by the eligible issuing officer as being responsible for executing the warrant; or
(b) if that eligible officerdoes not intend to be present at the execution of the warrant - another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer so named; or
(c) another eligible officer of the authorised agency whose name has been written in the warrant by the eligible officer of the authorised agency last named in the warrant.
inspecting officer
means a person appointed under subsection 3ZZGA(1).
nominated AAT member
(Repealed by No 39 of 2024)
nominated ART member
means a person in relation to whom a nomination is in force under section 3ZZAF.
person assisting
, in relation to a delayed notification search warrant, means:
(a) a person who is an eligible officer of the authorised agency and who is assisting in the execution of the warrant; or
(b) another person who has been authorised by the executing officer to assist in executing the warrant.
premises
includes a place and a conveyance.
relevant eligible agency
, in relation to a thing seized under this Part, is the eligible agency whose chief officer authorised the application for the delayed notification search warrant under which the thing was seized.
staff member
of an authorised agency or eligible agency means a person referred to in paragraph (a) of the definition of
law enforcement officer
in subsection 3(1).
State or Territory agency
: see section 3ZZGF.
State or Territory inspecting authority
: see section 3ZZGF.
State or Territory law enforcement agency
means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the Crime Commission Act 2012 (NSW); or
(c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 (NSW); or
(d) the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW); or
(e) the Independent Broad-based Anti-corruption Commission established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.); or
(f) the Crime and Corruption Commission established by the Crime and Corruption Act 2001 (Qld); or
(g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 (WA); or
(h) the Independent Commission Against Corruption established by the Independent Commission Against Corruption Act 2012 (SA); or
(i) the Integrity Commission established by the Integrity Commission Act 2009 (Tas.).
thing
includes a thing in electronic form.
warrant premises
means premises in relation to which a delayed notification search warrant is in force, but does not include any adjoining premises that are also authorised to be entered under the warrant.
warrant premises occupier's notice
: see section 3ZZDA.
An
(a) a person:
(i) who is a Judge of the Federal Court of Australia, or a Judge of the Supreme Court of a State or Territory; and
(ii) in relation to whom a consent under subsection 3ZZAE(1), and a declaration under subsection 3ZZAE(2), are in force; or
(b) a nominated ART member.
(2)
A function or power conferred on a Judge by this Part is conferred on the Judge in a personal capacity and not as a court or a member of a court.
(3)
A Judge has, in relation to the performance or exercise of a function or power conferred on an eligible issuing officer by this Part, the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the Judge is a member).
Note:
A member of the Administrative Review Tribunal has the same protection and immunity as a Justice of the High Court (see subsection 293(1) of the Administrative Review Tribunal Act 2024).
A Judge of the Federal Court of Australia, or of the Supreme Court of a State or Territory, may, by writing, consent to be declared an eligible issuing officer by the Minister administering the Judiciary Act 1903 under subsection (2).
(2)
The Minister administering the Judiciary Act 1903 may, by writing, declare a Judge in relation to whom a consent under subsection (1) is in force to be an eligible issuing officer for the purposes of this Part.
(3)
A consent or declaration under this section is not a legislative instrument.
The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue delayed notification search warrants and perform related functions under this Act: (a) Deputy President; (b) a senior member appointed on a salaried basis.
(2)
Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member on a salaried basis of the Tribunal unless the person: (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and (b) has been so enrolled for not less than 5 years.
(3)
A nomination ceases to be in force if: (a) the nominated ART member ceases to hold an appointment described in subsection (1); or (b) the ART Minister, by writing, withdraws the nomination.
If an eligible officer of an eligible agency:
(a) suspects, on reasonable grounds, that one or more eligible offences have been, are being, are about to be or are likely to be committed; and
(b) suspects, on reasonable grounds, that entry and search of particular premises will substantially assist in the prevention or investigation of one or more of those offences; and
(c) believes, on reasonable grounds, that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises;
the eligible officer may seek the authorisation of the chief officer of the agency to apply for a delayed notification search warrant in respect of the premises.
Scope
(1A)
This section applies if an eligible officer of an eligible agency seeks the authorisation of the chief officer of the agency to apply for a delayed notification search warrant in respect of particular premises.
Authorisation
(1)
The chief officer may, in writing, authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that there are reasonable grounds for the eligible officer to have:
(a) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(b) the belief mentioned in paragraph 3ZZBA(c).
(2)
The chief officer may orally (in person or by telephone or other means of voice communication) authorise the eligible officer to apply for the delayed notification search warrant if the chief officer is satisfied that:
(a) there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c); and
(b) either:
(i) it is an urgent case; or
(ii) the delay that would occur if the authorisation were in writing would frustrate the effective execution of the delayed notification search warrant.
(3)
If the chief officer of an eligible agency gives an authorisation under subsection (2), he or she must make a written record of the authorisation within 7 days.
An eligible officer of an eligible agency may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if the officer is authorised under section 3ZZBB to apply for the warrant.
Note 1:
The application will need to address:
Note 2:
In urgent cases or certain other cases, an application may be made by telephone, fax or other electronic means: see section 3ZZBF.
(2)
The eligible officer must provide the eligible issuing officer with:
(a) a copy of, or details of, the authorisation under section 3ZZBB; and
(b) particulars of any applications, and the outcomes, so far as known to the eligible officer, of any previous applications, in respect of the premises, for a warrant under this Part or Division 2 of Part IAA.
(3)
The application must be supported by an affidavit setting out the grounds on which the warrant is sought.
(4)
The eligible issuing officer may request further information relating to the application, and may require that the information be provided on oath or affirmation.
If: (a) an eligible officer applies to an eligible issuing officer, in accordance with section 3ZZBC, for a delayed notification search warrant in respect of particular premises (the main premises ); and (b) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c);
the eligible issuing officer may issue a delayed notification search warrant in respect of the main premises.
(2)
In determining whether the delayed notification search warrant should be issued, the eligible issuing officer must have regard to the following: (a) the extent to which the exercise of the powers under the warrant would assist the prevention or investigation of the eligible offence or offences to which the application for the warrant relates; (b) the existence of alternative means of obtaining the evidence or information sought to be obtained; (c) the extent to which the privacy of any person is likely to be affected; (d) the nature and seriousness of that offence or those offences; (e) if it is proposed that adjoining premises be entered for the purpose of entering the main premises - whether allowing entry to the adjoining premises is reasonably necessary:
(i) to enable entry to the main premises; and
(f) any conditions to which the warrant should be subject; (g) the outcome, so far as known to the eligible issuing officer, of any previous application, in respect of the main premises, for a warrant under this Part or Division 2 of Part IAA.
(ii) to avoid compromising the prevention or investigation of that offence or those offences;
(3)
An eligible issuing officer of the Federal Court of Australia or the Administrative Review Tribunal may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.
(4)
An eligible issuing officer of the Supreme Court of a State or Territory may issue a delayed notification search warrant only in relation to premises located in that State or Territory.
A delayed notification search warrant must specify the following:
(a) the name of the applicant;
(b) the name of the authorised agency;
(c) the name of the eligible officer of that agency who, unless he or she inserts the name of another such eligible officer in the warrant, is to be responsible for executing the warrant;
(d) the address, location or other description of the warrant premises;
(e) the eligible offence or offences to which the warrant relates;
(f) whether the warrant authorises the entry of adjoining premises, and if it does, the address, location or other description of the adjoining premises;
(g) the day on which, and the time at which, the warrant is issued;
(h) the day on which, and the time at which, the warrant expires (which must be a time on a day that is not more than 30 days after the day on which the warrant is issued);
(i) the time by which notice of entry of premises under the warrant is to be given (expressed as a time on a specified day that is not more than 6 months after the day on which the warrant is issued);
(j) a description of the kinds of things that may be searched for, seized, copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled;
(k) whether the warrant authorises a thing to be placed in substitution for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(l) whether the warrant authorises the re-entry of the warrant premises, and any adjoining premises authorised to be entered, to:
(i) return to the warrant premises any thing seized under the warrant or moved under subsection 3ZZCE(2); or
(ii) retrieve any thing substituted at the warrant premises for a thing seized under the warrant or moved under subsection 3ZZCE(2);
(m) if the warrant authorises such re-entry - that the re-entry must be within:
(i) 14 days of the day of execution of the warrant; or
(ii) if a thing is moved under subsection 3ZZCE(2) and the time for which it may be examined or processed is more than 14 days because of an extension under section 3ZZCE - that time as extended under that section;
(n) any conditions to which the warrant is subject;
(o) that the eligible issuing officer is satisfied as mentioned in paragraph 3ZZBD(1)(b), and has had regard to the matters specified in subsection 3ZZBD(2).
Note 1:
Regarding paragraph (i):
Note 2:
Regarding the period described in paragraph (m), see also subsection 3ZZCA(3).
(2)
The warrant must be signed by the eligible issuing officer who issued it and include his or her name.
When this section applies
(1)
This section applies if the requirements specified in subsection 3ZZBC(1) for when an eligible officer of an eligible agency may apply for a delayed notification search warrant in respect of particular premises are satisfied.
Note:
This section sets out an alternative method of applying for and issuing delayed notification search warrants.
Application for delayed notification search warrant
(2)
The eligible officer may apply to an eligible issuing officer by telephone, fax or other electronic means for a delayed notification search warrant in respect of the premises:
(a) if it is an urgent case; or
(b) if the delay that would occur if the application were made in person would frustrate the effective execution of the delayed notification search warrant.
(3)
The eligible issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(4)
The application must:
(a) include all information required to be provided in an ordinary application for a delayed notification search warrant, but the application may, if necessary, be made before the information is sworn or affirmed; and
(b) include details of, or be accompanied by a copy of, the authorisation under section 3ZZBB.
Eligible issuing officer may complete and sign warrant
(5)
The eligible issuing officer may complete and sign the same delayed notification search warrant that would have been issued under section 3ZZBD if, after:
(a) considering the information and having received and considered such further information (if any) as the eligible issuing officer required; and
(b) having regard to the matters specified in subsection 3ZZBD(2);
the eligible issuing officer is satisfied:
(c) that there are reasonable grounds for the eligible officer to have:
(i) the suspicions mentioned in paragraphs 3ZZBA(a) and (b); and
(ii) the belief mentioned in paragraph 3ZZBA(c); and
(d)that:
(i) a delayed notification search warrant in the terms of the application should be issued urgently; or
(ii) the delay that would occur if an application were made in person would frustrate the effective execution of the delayed notification search warrant.
(6)
After completing and signing the delayed notification search warrant, the eligible issuing officer must inform the applicant, by telephone, fax or other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at which, the warrant was signed.
Obligations on applicant
(7)
The applicant must then do the following:
(a) complete a form of delayed notification search warrant in the same terms as the warrant completed and signed by the eligible issuing officer;
(b) state on the form the following:
(i) the name of the eligible issuing officer;
(ii) the day and time of signing of the warrant;
(c) send the following to the eligible issuing officer:
(i) the form of warrant completed by the applicant;
(ii) the information referred to in subsection (4), which must have been duly sworn or affirmed.
(8)
The applicant must comply with paragraph (7)(c) by the end of the day after the earlier of the following:
(a) the day on which the delayed notification search warrant expires;
(b) the day of execution of the warrant.
Eligible issuing officer to attach documents together
(9)
The eligible issuing officer must attach the documents provided under paragraph (7)(c) to the delayed notification search warrant signed by the eligible issuing officer.
A form of delayed notification search warrant duly completed under subsection 3ZZBF(7) is authority for the same powers as are authorised by the warrant signed by the eligible issuing officer under subsection 3ZZBF(5).
(2)
In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a delayed notification search warrant under section 3ZZBF if:
(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was duly authorised by the warrant; and
(b) the delayed notification search warrant signed by the eligible issuing officer authorising the exercise of the power is not produced in evidence.
A person must not make, in an application for a delayed notification search warrant, a statement that the person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 2 years.
A person must not:
(a) state in a document that purports to be a form of delayed notification search warrant under section 3ZZBF the name of an eligible issuing officer unless that eligible issuing officer issued the warrant; or
(b) state on a form of delayed notification search warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the eligible issuing officer; or
(c) purport to execute, or present to a person, a document that purports to be a form of delayed notification search warrant under that section that the person knows:
(i) has not been approved by an eligible issuing officer under that section; or
(ii) departs in a material particular from the terms authorised by an eligible issuing officer under that section; or
(d) give to an eligible issuing officer a form of delayed notification search warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
When this section applies
(1)
This section applies if an eligible officer of an eligible agency, under an authorisation under section 3ZZBB from the chief officer of the agency, makes an application (the delayed notification search warrant application ) to an eligible issuing officer for a delayed notification search warrant:
(a) in respect of particular premises; and
(b) in relation to a particular eligible offence.
(2)
The applicable normal search warrant regime is Division 2 of Part IAA.
Application may be made to eligible issuing officer for normal search warrant
(3)
The eligible officer may, at the same time or subsequently, make an application to the eligible issuing officer for the issue of a warrant, under the applicable normal search warrant regime, to search the premises or other premises for evidential material relevant to the eligible offence or to another offence connected to the eligible offence.
(4)
If the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime, the eligible issuing officer may consider and deal with an application made as mentioned in subsection (3) as if the eligible issuing officer were such a person.
Eligible issuing officer may instead treat application as if it were made under applicable normal search warrant regime
(5)
If the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued, the eligible issuing officer may:
(a) treat the delayed notification search warrant application as if it were an application for a warrant under the applicable normal search warrant regime (even if such an application has not been made); and
(b) consider and deal with the application under that regime:
(i) as if the application had been validly made under that regime; and
(ii) if the eligible issuing officer is not a person who is authorised to issue warrants under the applicable normal search warrant regime - as if the eligible issuing officer were such a person.
A delayed notification search warrant authorises the executing officer or a person assisting to do any of the following:
(a) to enter the warrant premises;
(b) if the warrant authorises the entry of adjoining premises - to enter the adjoining premises solely for the purpose of entering or leaving the warrant premises;
(c) to impersonate another person to the extent reasonably necessary for executing the warrant;
(d) to search the warrant premises for the kinds of things (if any) specified in the warrant as the kinds of things that may be searched for;
(e) to seize any thing of a kind specified in the warrant as a kind of thing that may be seized;
(f) to seize other things found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds to be evidential material, if the executing officer or a person assisting believes on reasonable grounds that the seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing any offence;
(g) to seize any thing found in the course of executing the warrant at the warrant premises that the executing officer or a person assisting believes on reasonable grounds:
(i) would present a danger to a person; or
(ii) could be used to assist a person to escape from lawful custody;
(h) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;
(i) if specified in the warrant - to place a thing in substitution for a thing seized or moved under subsection 3ZZCE(2);
(j) to do any of the following acts to a thing found in the course of executing the warrant at the warrant premises that is of a kind specified in the warrant as the kind of thing to which the act may be done, or that the executing officer or a person assisting believes on reasonable grounds to be evidential material:
(i) copy the thing;
(ii) photograph or otherwise record the thing;
(iii) mark or tag the thing (whether or not the mark or tag can be detected only with the use of a device);
(iv) operate the thing;
(v) print the thing;
(vi) test the thing;
(vii) sample the thing;
(k) to do anything reasonably necessary to conceal the fact that any thing has been done under the warrant;
(l) if specified in the warrant - to re-enter:
(i) the warrant premises; and
within the perioddescribed in paragraph 3ZZBE(1)(m), for the purpose of returning any thing seized from the warrant premises or moved under subsection 3ZZCE(2), or retrieving any thing substituted at the premises for a thing seized or moved under that subsection;
(ii) if the warrant authorises the entry of adjoining premises - the adjoining premises solely for the purpose of entering or leaving the warrant premises;
(m) to exercise the other powers conferred on the executing officer, or a person assisting, by the other provisions of this Division.
Note:
Paragraph (c) does not authorise the acquisition or use of an assumed identity (see Part IAC). The protection provided by Part IAC only applies if the requirements of that Part have been complied with.
(2)
The entry of premises under a paragraph of subsection (1) may be effected without the knowledge of the occupier of the premises or any other person present at the premises.
(3)
If the period referred to in paragraph (1)(l) ends after the delayed notification search warrant expires, the powers referred to in that paragraph may be exercised during that period as if the warrant were still in force.
Photography
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.
Completion of execution of warrant after brief interruption
(2)
If a delayed notification search warrant in relation to premises is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:
(a) for not more than one hour; or
(b) for not more than 24 hours, or such longer period as allowed by an eligible issuing officer under section 3ZZCC, if they leave the premises:
(i) because of an emergency situation; or
(ii) to reduce the risk of discovery of the fact that a law enforcement officer has been on the premises.
Completion of execution of warrant after court proceedings
(3)
If:
(a) the execution of a delayed notification search warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
If:
(a) a delayed notification search warrant in relation to premises is being executed; and
(b) the executing officer and the persons assisting (if any) leave the premises for a reason described in subparagraph 3ZZCB(2)(b)(i) or (ii); and
(c) the executing officer or a person assisting believes on reasonable grounds that the executing officer and the persons assisting will not be able to return to the premises within the 24-hour period mentioned in paragraph 3ZZCB(2)(b);
he or she may apply to an eligible issuing officer for an extension of that period.
(2)
If an application mentioned in subsection (1) has been made, an eligible issuing officer may extend the period during which the executing officer and persons assisting may be away from the premises if:
(a) the eligible issuing officer is satisfied, by information on oath or affirmation, that there are circumstances that justify the extension; and
(b) the extension would not result in the period ending after the expiry of the warrant.
In executing a delayed notification search warrant:
(a) the executing officer may obtain such assistance; and
(b) the executing officer, or an eligible officer who is a person assisting, may use such force against persons and things; and
(c) a person assisting who is not an eligible officer may use such force against things;
as is necessary and reasonable in the circumstances.
(2)
At any time when the executing officer is at warrant premises, or adjoining premises, under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:
(a) a copy of the warrant; or
(b) if the warrant was issued under section 3ZZBF - a copy of the form of warrant completed under subsection 3ZZBF(7).
(3)
To avoid doubt, subsection (2) does not require the executing officer to produce a copy of the warrant or the form of warrant.
Equipment may be brought onto warrant premises
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant.
Thing may be moved for examination or processing
(2)
A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it may be seized under the delayed notification search warrant if:
(a) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; and
(b) the executing officer or a person assisting suspects on reasonable grounds that the thing contains or constitutes a thing that may be seized under the warrant.
Note:
Sections 3ZZCG and 3ZZCH authorise operation of electronic equipment moved under this section.
Time limit on moving a thing
(3)
The thing may be moved to another place for examination or processing for no longer than 14 days.
(4)
An executing officer may apply to an eligible issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(5)
A single extension cannot exceed 7 days.
Equipment at warrant premises may be operated
(6)
The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises, if the executing officer or person believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
Use of electronic equipment to access data
(1)
In executing a delayed notification search warrant, the executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes a thing that may be seized under the warrant.
Copy of data onto disk, tape or other device
(2)
If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy the data to a disk, tape or other associated device and take the disk tape or device from the warrant premises.
(3)
If:
(a) under subsection (2), the executing officer or person assisting copies data to a disk, tape or device; and
(b) the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA;
the chief officer must arrange for:
(c) the removal of the data from any device in the control of the authorised agency; and
(d) the destruction of any other reproduction of the data in the control of the authorised agency.
Powers if thing that may be seized is accessible by operating equipment
(4)
If the executing officer or a person assisting, after operating the electronic equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can, by using facilities at the warrant premises, be put in documentary form - operate the facilities to put the thing in that form and seize the documents so produced.
(5)
The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
If electronic equipment is moved to another place under subsection 3ZZCE(2), the executing officer or a person assisting may operate the equipment to access data (including data held at another place).
(2)
If the executing officer or person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes a thing that may be seized under the warrant, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(3)
If the chief officer of the authorised agency is satisfied that the data is not required, is no longer required, or is not likely to be required, for a purpose mentioned in section 3ZZEA, the chief officer must arrange for:
(a) the removal of the data from any device in the control of the authorised agency; and
(b) the destruction of any other reproduction of the data in the control of the authorised agency.
(4)
If the executing officer or a person assisting, after operating the equipment, finds that a thing that may be seized under the warrant is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the thing can be put in documentary form - put the thing in that form and seize the documents so produced.
(5)
The executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the thing that may be seized in documentary form as mentioned in paragraph (4)(b); or
(b) possession of the equipment, by the occupier of the warrant premises, could constitute an offence.
This section applies to electronic equipment seized under this Part or moved under section 3ZZCE.
(2)
The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is a thing that may be seized under the relevant delayed notification search warrant is held on or accessible from the electronic equipment, and obtaining access to such data.
(3)
The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4)
The electronic equipment may be operated before or after the expiry of the relevant delayed notification search warrant.
(5)
This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3ZZCE.
Note:
For example, this section does not affect the operation of the time limits in section 3ZZCE on examination or processing of a thing moved under that section.
This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZZCE, 3ZZCF, 3ZZCG or 3ZZCH:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficientcare was exercised by the person operating the equipment.
(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the court determines.
As soon as practicable after the exercise of powers under a delayed notification search warrant has been completed, the executing officer must prepare a written notice (the warrant premises occupier's notice ) that complies with subsection (2).
(2)
The warrant premises occupier's notice must:
(a) specify the name of the authorised agency; and
(b) specify the day on which, and the time at which, the warrant was issued; and
(c) specify the day of execution of the warrant; and
(d) specify the address, location or other description of the warrant premises; and
(e) specify the number of persons who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and
(f) include a summary of:
(i) the purpose of delayed notification search warrants (including a statement to the effect that they are to authorise entry and search of premises to be conducted without the knowledge of the occupier of the premises or any other person present at the premises); and
(ii) the things done under the warrant; and
(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and
(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.
(3)
Subject to subsection (4), a staff member of the authorised agency must give the warrant premises occupier's notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the warrant premises when they were entered under the warrant. The notice, and the copy of the warrant (or form of warrant), must be given to the occupier by the time applicable under section 3ZZDC.
(4)
If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5)
A notice and a direction under this section are not legislative instruments.
As soon as practicable after adjoining premises are entered under a delayed notification search warrant, the executing officer must prepare a written notice (the adjoining premises occupier's notice ) that complies with subsection (2).
(2)
The adjoining premises occupier's notice must specify:
(a) the name of the authorised agency; and
(b) the day on which, and the time at which, the warrant was issued; and
(c) the day of execution of the warrant; and
(d) the address, location or other description of:
(i) the warrant premises; and
(ii) the adjoining premises; and
(e) the purpose of delayed notification search warrants, including:
(i) a statement to the effect that they are to authorise entry and search of warrant premises to be conducted without the knowledge of the occupier of those premises or any other person present at those premises; and
(ii) a statement that adjoining premises may be entered solely for the purpose of entering or leaving the warrant premises.
(3)
Subject to subsection (4), a staff member of the authorised agency must give the adjoining premises occupier's notice, and a copy of the warrant (or the form of warrant completed under subsection 3ZZBF(7)), to the person (the occupier ) who was the occupier of the adjoining premises when they were entered under the warrant. The notice, and the copy of the warrant, must be given to the occupier by the time applicable under section 3ZZDC.
(4)
If the occupier cannot be identified or located, a staff member of the authorised agency must report back to an eligible issuing officer, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.
(5)
A notice and a direction under this section are not legislative instruments.
Section determines time by which notice must be given
(1)
This section:
(a) applies if a warrant premises occupier's notice, or an adjoining premises occupier's notice, is prepared in relation to a delayed notification search warrant; and
(b) determines the time by which the notice (and a copy of the warrant, or the form of warrant) must be given in accordance with subsection 3ZZDA(3) or 3ZZDB(3).
Note:
This section has effect subject to any directions given under subsection 3ZZDA(4) or 3ZZDB(4).
General rule
(2)
Subject to subsection (3), the notice (and the copy of the warrant or form of warrant) must be given by:
(a) the time specified under paragraph 3ZZBE(1)(i); or
(b) if that time has been extended under subsection (5), that time as so extended.
Rule if person is charged with an offence relying on evidence obtained under the warrant
(3)
If:
(a) a person is charged with an offence; and
(b) the prosecution proposes to rely on evidence obtained under the warrant;
the notice (and the copy of the warrant or of the form of the warrant completed under subsection 3ZZBF(7)) must be given as soon as practicable after the person is charged with the offence, but no later than the earlier of the following times:
(c) the time applicable under subsection (2);
(d) the time of service of the brief of evidence by the prosecution.
Extending the time specified in the warrant for giving notice
(4)
The chief officer of the authorised agency may, in writing, authorise an eligible officer of the agency to apply to an eligible issuing officer for an extension of the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given.
(5)
An eligible issuing officer may, on application by an eligible officer authorised under subsection (4), extend the time specified under paragraph 3ZZBE(1)(i) by which notice of entry of premises under a delayed notification search warrant is to be given if the eligible issuing officer is satisfied that there are reasonable grounds for continuing to delay notice of entry of the premises.
(6)
An eligible issuing officer may, under subsection (5), extend the time specified under paragraph 3ZZBE(1)(i) on more than one occasion, but:
(a) must not extend the time by more than 6 months on any one occasion; and
(b) must not extend the time to more than 12 months after the day on which the delayed notification search warrant was issued unless:
(i) the Minister is satisfied on reasonable grounds that there are exceptional circumstances justifying the extension, and that it is in the public interest to do so; and
(ii) the Minister has issued a certificate approving the application for the extension; and
(iii) the eligible issuing officer is satisfied that there are exceptional circumstances justifying such an extension.
(7)
A certificate issued under subsection (6) is not a legislative instrument.
Use and sharing of thing by eligible officer or Commonwealth officer
(1)
An eligible officer of an eligible agency or a Commonwealth officer may use, or make available to another eligible officer or Commonwealth officer to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose: (a) preventing, investigating or prosecuting an offence; (b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002; (c) proceedings for the forfeiture of the thing under a law of the Commonwealth; (d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105, 105A or 395 of the Criminal Code; (e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part; (f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act; (g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988; (h) conducting a NACC Act process (within the meaning of the National Anti-Corruption Commission Act 2022); (i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h); (j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection; (k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(2)
An eligible officer of an eligible agency or a Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(3)
An eligible officer of an eligible agency may make available to another eligible officer of an eligible agency or a Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4)
To avoid doubt, this section does not limit any other law of the Commonwealth that: (a) requires or authorises the use of a thing; or (b) requires or authorises the making available (however described) of a thing.
Sharing thing for use by State, Territory or foreign agency
(5)
An eligible officer of an eligible agency or a Commonwealth officer may make a thing seized under this Part available to: (a) a State or Territory law enforcement agency; or (b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory; (d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002); (e) proceedings for the forfeiture of the thing under a law of a State or Territory; (f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (k) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.Ministerial arrangements for sharing
(6)
This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for: (a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part; and (b) the disposal by the agency of such things when they are no longer of use to that agency for those purposes.
Note:
This subsection does not empower the Minister to make such an arrangement.
If the chief officer of the relevant eligible agency is satisfied that a thing seized under this Part is not required (or is no longer required) for a purpose mentioned in section 3ZZEA or for other judicial or administrative review proceedings, the chief officer must take reasonable steps to return the thing to the person from whom it was seized, or to the owner if that person is not entitled to possess it.
(2)
However, the chief officer does not have to take those steps if:
(a) either:
(i) the thing may be retained because of an order under subsection 3ZZEC(1), or any other order under that subsection has been made in relation to the thing; or
(ii) the chief officer has applied for such an order and the application has not been determined; or
(b) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(c) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership; or
(d) a warrant premises occupier's notice has not been given in relation to the occupier of the warrant premises.
An eligible issuing officer may, on application by an eligible officer of an eligible agency, make any of the orders referred to in subsection (2) in relation to a thing seized under this Part if the eligible issuing officer is satisfied that there are reasonable grounds to suspect that, if the thing is returned to the owner of the thing, or the person from whom the thing was seized, it is likely to be used by that person or another person in the commission of:
(a) a terrorist act or a terrorism offence; or
(b) a serious offence (within the meaning of Part IAA).
(2)
The orders are as follows:
(a) an order that the thing may be retained for the period specified in the order;
(b) an order that the thing is forfeited to the Commonwealth;
(c) an order that:
(i) the thing be sold and the proceeds given to the owner of the thing; or
(ii) the thing be sold in some other way;
(d) an order that the thing is to be destroyed or otherwise disposed of.
(3)
If the eligible issuing officer is not satisfied as mentioned in subsection (1), the eligible issuing officer must order that the thing be returned to:
(a) the person from whom the thing was seized; or
(b) if that person is not entitled to possess the thing - the owner of the thing.
The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a written report on the warrant to the chief officer of the authorised agency.
(2)
The report must be given to the chief officer of the authorised agency as soon as practicable after:
(a) the day of execution of the warrant; or
(b) if the warrant was not executed - the expiry of the warrant.
(3)
The report must:
(a) specify the address, location or other description of the warrant premises; and
(b) state whether or not the warrant was executed; and
(c) state whether the application for the warrant was made in person or in accordance with section 3ZZBF.
(4)
If the warrant was executed, the report must also include the following information:
(a) the day of execution of the warrant;
(b) the name of the executing officer;
(c) the name of any persons assisting and the kind of assistance provided;
(d) the name of the occupier of the warrant premises, if known to the executing officer;
(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;
(f) the things that were done under the warrant;
(g) without limiting paragraph (f) - details of any thing at the warrant premises:
(i) seized; or
(ii) replaced with a substitute; or
(iii) copied, photographed or otherwise recorded; or
(iv) marked or tagged; or
(v) operated, printed, tested or sampled;
(h) whether or not the execution of the warrant assisted in the prevention or investigation of an eligible offence;
(i) details of compliance with any conditions to which the warrant was subject;
(j) details of any warrant premises occupier's notice given in relation to the warrant;
(k) details of any adjoining premises occupier's notice given in relation to the warrant;
(l) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(5)
To avoid doubt, if, at the time a report was given, the details in any of paragraphs (4)(j), (k) and (l) were not included because notice or directions had not been given at that time, but are given later, the person who gave the original report under subsection (1) must give a further report under that subsection including those details.
(6)
If the warrant was not executed, the report must state the reason why it was not executed.
(7)
If the warrant premises were entered after the warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the premises, a written report in relation to that entry must be provided to the chief officer of the authorised agency. The report must include the following information:
(a) the address, location or other description of the warrant premises;
(b) the date on which the warrant premises were entered for that purpose;
(c) the name of each person who so entered the warrant premises;
(d) details of the thing returned or retrieved;
(e) if the thing was not returned or retrieved - the reason why the thing was not returned or removed.
(8)
A report under subsection (7) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.
(9)
A report under this section is not a legislative instrument.
The chief officer of an eligible agency must give a written report to the Minister that includes the following information in respect of each financial year:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency;
(e) the number of delayed notification search warrants that were executed by an eligible officer of the agency under which:
(i) one or more things were seized from the warrant premises; or
(ii) one or more things were placed in substitution at the warrant premises for a seized thing; or
(iii) one or more things were returned to, or retrieved from, the warrant premises; or
(iv) one or more things were copied, photographed, recorded, marked, tagged, operated, printed, tested or sampled at the warrant premises;
(f) any other information relating to delayed notification search warrants and the administration of this Part that the Minister considers appropriate.
(2)
The report for a financial year must be given to the Minister as soon as practicable, and in any event not more than 3 months, after the end of the financial year.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
As soon as practicable after each 6-month period starting on 1 January or 1 July the chief officer of an eligible agency must give a written report to the Ombudsman that includes the following information in respect of the period:
(a) the number of applications for delayed notification search warrants made in person by eligible officers of the agency;
(b) the number of applications for delayed notification search warrants made under section 3ZZBF by eligible officers of the agency;
(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the eligible offences to which they related;
(d) the number of delayed notification search warrants that were executed by an eligible officer of the agency.
The chief officer of an eligible agency must cause the following to be kept:
(a) a copy of each authorisation given in writing by the chief officer under section 3ZZBB;
(b) a copy of the written record made under section 3ZZBB of each authorisation given orally by the chief officer under that section;
(c) a copy of each application for a delayed notification search warrant made by an eligible officer of the agency, and a statement of whether the application was granted or refused;
(d) each delayed notification search warrant issued to an eligible officer of the agency;
(e) a copy of each form of delayed notification search warrant completed under subsection 3ZZBF(7) by an eligible officer of the agency;
(f) a copy of the following:
(i) each warrant premises occupier's notice given in relation to a delayed notification search warrant issued to an eligible officer of the agency;
(ii) each adjoining premises occupier's notice given in relation to such a warrant;
(iii) each application made by an eligible officer of the agency under section 3ZZCC;
(iv) any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to such a warrant;
(v) each authorisation given by the chief officer of the agency under subsection 3ZZDC(4);
(vi) each application made by an eligible officer of the agency as mentioned in subsection 3ZZDC(5);
(vii) each extension of time granted under subsection 3ZZDC(5) in response to such an application;
(g) each report given to the chief officer of the agency under section 3ZZFA.
The chief officer of an eligible agency must cause a register of delayed notification search warrants to be kept.
(2)
The register is to specify, for each delayed notification search warrant sought by an eligible officer of the eligible agency:
(a) the date the warrant was issued or refused; and
(b) the name of the eligible issuing officer who issued or refused to issue the warrant; and
(c) if the warrant was issued:
(i) the name of the applicant for the warrant and the executing officer; and
(ii) the eligible offence or offences to which the warrant relates; and
(iii) if the warrant was executed - the day of execution of the warrant; and
(iv) the day and time of issue of the warrant, and the time of expiry of the warrant; and
(v) the time by which notice of entry of premises under the warrant is to be given; and
(vi) whether a warrant premises occupier's notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and
(vii) whether an adjoining premises occupier's notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and
(viii) details of any extension of time granted under subsection 3ZZDC(5) in relation to the warrant; and
(ix) details of any directions given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
(3)
The register is not a legislative instrument.
The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Division.
(2)
An appointment under subsection (1) must be in writing.
The Ombudsman must, from time to time and at least once in each 6-month period starting on 1 January or 1 July, inspect the records of each eligible agency to determine the extent of compliance with this Part by the agency, and eligible officers of the agency, in relation to delayed notification search warrants.
(2)
For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the chief officer of the eligible agency, enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c) may require a staff member of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.
(3)
The chief officer must ensure that staff members of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(4)
Nothing in this section requires the Ombudsman to inspect records that are relevant to the obtaining or execution of a delayed notification search warrant if a warrant premises occupier's notice has not yet been given in relation to the warrant, unless directions have been made under subsection 3ZZDA(4) or 3ZZDB(4) not requiring such notice to be given.
If the Ombudsman has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency's records, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4)
If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of an eligible agency is able to give information relevant to an inspection under this Division of the agency's records; and
(b) does not know the staff member's identity;
the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
A person commits an offence if:
(a) the person is required under section 3ZZGC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);
(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.
(2)
However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3ZZHA or against Part 7.4 or 7.7 of the Criminal Code.
(3)
Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the agency to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division of the agency's records.
(4)
Nothing in section 3ZZHA or any other law prevents a staff member of an eligible agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5)
The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(2)
The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3)
The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.
(4)
In this section:
State or Territory agency
means the police force or police service of a State or Territory.
State or Territory inspecting authority
, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZGB.
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2)
A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
As soon as practicable after each 6-month period starting on 1 January or 1 July the Ombudsman must give a written report to the Minister on the results of each inspection under section 3ZZGB in the period.
(2)
If, having regard to information obtained in the course of the inspection or a previous inspection, the Ombudsman considers that the requirements of section 3ZZFB or 3ZZFC have not been properly complied with in relation to an eligible agency, the Ombudsman may include a comment to that effect in the report.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
A person commits an offence if:
(a) the person discloses information; and
(b) the information relates to:
(i) an application for a delayed notification search warrant; or
(ii) the execution of a delayed notification search warrant; or
(iii) a report under section 3ZZFA in relation to a delayed notification search warrant; or
(iv) a warrant premises occupier's notice or an adjoining premises occupier's notice prepared in relation to a delayed notification search warrant.
Penalty: Imprisonment for 2 years.
(2)
Each of the following is an exception to the offence created by subsection (1):
(a) the disclosure is in connection with the administration or execution of this Part;
(aa) the disclosure is for the purposes of obtaining or providing legal advice related to this Part;
(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to this Part or of any report of any such proceedings;
(c) the disclosure is in accordance with any requirement imposed by law;
(d) the disclosure is for the purposes of:
(i) the performance of duties or functions or the exercise of powers under or in relation to this Part; or
(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer, an officer of the Australian Security Intelligence Organisation, a staff member of the Australian Secret Intelligence Service or a person seconded to either of those bodies;
(da) the disclosure is made by anyone to the Ombudsman, a Deputy Commonwealth Ombudsman or a member of the Ombudsman's staff (whether in connection with the exercise of powers or performance of functions under Division 7, in connection with a complaint made to the Ombudsman or in any other circumstances);
(e) the disclosure is made after a warrant premises occupier's notice or an adjoining premises occupier's notice has been given in relation to the warrant;
(f) the disclosure is made after a direction has been given under subsection 3ZZDA(4) or 3ZZDB(4) in relation to the warrant.
Note:
A defendant bears an evidential burden in relation to a matter in subsection (2) - see subsection 13.3(3) of the Criminal Code.
Delegation by chief officer
(1)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under this Part to:
(a) a Deputy Commissioner of the Australian Federal Police; or
(b) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(2)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to the chief executive officer (however described) of a State or Territory law enforcement agency.
(3)
The chief officer of an authorised agency or eligible agency may, in writing, delegate all or any of the chief officer's powers, functions or duties under Division 5 to a Commonwealth officer if the chief officer is satisfied on reasonable grounds that the Commonwealth officer is able to properly exercise those powers, functions or duties.
Delegation by Ombudsman
(4)
The Ombudsman may, in writing, delegate all or any of the Ombudsman's powers under this Part, other than a power to report to the Minister, to an APS employee responsible to the Ombudsman.
Delegate must produce delegation on request
(5)
A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
Except as expressly provided, this Part does not affect the law relating to legal professional privilege.
Note:
Section 3ZZGE expressly overrides legal professional privilege.
A Part 5.3 supervisory order is any one of the following orders made under Part 5.3 of the Criminal Code:
If a Part 5.3 supervisory order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:
If a Part 5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:
A search must be for any of the following purposes (most of which are called Part 5.3 objects):
In this Part:
confirmed control order
has the same meaning as in Part 5.3 of the Criminal Code.
control order
has the same meaning as in Part 5.3 of the Criminal Code.
damage
, in relation to data, includes damage by erasure of data or addition of other data.
engage in a hostile activity
has the same meaning as in Part 5.3 of the Criminal Code.
evidential material
has the same meaning as in Part IAA.
extended supervision order
has the meaning given by section 105A.2 of the Criminal Code.
foreign country
, when used in the expression
hostile activity in a foreign country
, has the same meaning as in the Criminal Code.
frisk search
has the same meaning as in Part IAA.
inspecting officer
means a person appointed under subsection 3ZZUA(1).
interim control order
has the same meaning as in Part 5.3 of the Criminal Code.
interim supervision order
has the meaning given by section 105A.2 of the Criminal Code.
issuing officer
means a magistrate.
(a) in relation to premises - has the meaning given by sections 3ZZKB, 3ZZKC and 3ZZKD; or
(b) in relation to a person - has the meaning given by section 3ZZLB.
monitoring warrant
means a warrant under section 3ZZOA or 3ZZOB.
ordinary search
has the same meaning as in Part IAA.
(a) in relation to a control order - any of the following:
(i) the protection of the public from a terrorist act;
(ii) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(iii) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(b) in relation to an extended supervision order or interim supervision order - the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.
Part 5.3 supervisory order
means:
(a) a control order; or
(b) an extended supervision order or interim supervision order.
premises
includes the following:
(a) a structure, building or conveyance;
(b) a place (whether or not enclosed or built on);
(c) a part of a thing referred to in paragraph (a) or (b).
prescribed connection
with premises has the meaning given by section 3ZZJC.
recently used conveyance
, in relation to a search of a person, means a conveyance that the person had operated or occupied at any time within 24 hours before the search commenced.
relevant data
has the meaning given by subsection 3ZZKC(3).
seizable item
has the same meaning as in Part IAA.
serious Part 5.3 offence
has the meaning given by section 105A.2 of the Criminal Code.
staff member
of the Australian Federal Police means a person referred to in paragraph (a) of the definition of
law enforcement officer
in subsection 3(1).
State or Territory agency
: see section 3ZZUF.
State or Territory inspecting authority
: see section 3ZZUF.
strip search
has the same meaning as in Part IAA.
terrorist offender
has the meaning given by section 105A.2 of the Criminal Code.
For the purposes of this Part, a person has a prescribed connection with premises if:
(a) the person:
(i) is the legal or beneficial owner of the premises (whether alone or together with one or more other persons); or
(ii) has any other legal or equitable estate or interest in the premises; or
(b) the person occupies, or resides on, the premises; or
(c) the person has possession or control of the premises (whether alone or together with one or more other persons); or
(d) the person performs any of the duties of his or her employment on the premises; or
(e) the person carries on a business on the premises (whether alone or together with one or more other persons); or
(f) the person performs voluntary work on the premises; or
(g) both:
(i) the premises are used by a school, college, university or other educational institution; and
(ii) the person attends the premises in his or her capacity as a student at the school, college, university or other educational institution.
Self-incrimination
(1)
This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that the answer to the question, the information, or the production of the document, might tend to incriminate him or her or make him or her liable to a penalty.
Legal professional privilege
(2)
This Part (other than section 3ZZUE) does not affect the right of a person to refuse to answer a question, give information, or produce a document, on the ground that:
(a) the answer to the question or the information would be privileged from being given on the ground of legal professional privilege; or
(b) the document would be privileged from being produced on the ground of legal professional privilege.
Other legislation not affected
(3)
The fact that this section is included in this Part does not imply that the privilege against self-incrimination or legal professional privilege is abrogated in any other law of the Commonwealth.
This Part is not intended to limit or exclude the operation of another law of the Commonwealth (including other provisions of this Act) relating to:
(a) the search of premises; or
(b) the searching of persons or conveyances; or
(c) the seizure of things; or
(d) the requesting of information or documents from persons.
(2)
To avoid any doubt, it is declared that even though another law of the Commonwealth (including other provisions of this Act) provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
If: (a) a Part 5.3 supervisory order is in force in relation to a person; and (b) the person has a prescribed connection with particular premises;
a constable may enter the premises, and exercise the monitoring powers, for either of the following purposes:
(c) achieving a Part 5.3 object; (d) determining whether the Part 5.3 supervisory order has been, or is being, complied with. (e)-(f) (Repealed by No 131 of 2021)Note:
The monitoring powers are set out in sections 3ZZKB, 3ZZKC and 3ZZKD.
(2)
However, a constable is not authorised to enter the premises unless: (a) the person:
(i) is the occupier of the premises; and
(b) the entry is made under a monitoring warrant.
(ii) has consented to the entry; or
Note:
If entry to the premises is with the occupier's consent, the constable must leave the premises if the consent ceases to have effect (see section 3ZZNA).
The following are the monitoring powers that a constable may exercise in relation to premises under section 3ZZKA:
(a) the power to search the premises and any thing on the premises;
(b) the power to search for and record fingerprints found at the premises;
(c) the power to take samples of things found at the premises;
(d) the power to examine or observe any activity conducted on the premises;
(e) the power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
(f) the power to make any still or moving image or any recording of the premises or any thing on the premises;
(g) the power to inspect any document on the premises;
(h) the power to take extracts from, or make copies of, any such document;
(i) the power to take onto the premises such equipment and materials as the constable requires for the purpose of exercising powers in relation to the premises;
(j) the powers set out in subsections 3ZZKC(1) and (4) and 3ZZKD(2).
The monitoring powers include the power to: (a) operate electronic equipment on the premises; and (b) use a disk, tape or other storage device that:
(i) is on the premises; and
(ii) can be used with the equipment or is associated with it.
(2)
The monitoring powers include the powers mentioned in subsection (4) if relevant data is found in the exercise of the power under subsection (1).
(3)
Relevant data means information relevant to: (a) a Part 5.3 object; or (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
(4)
The powers are as follows: (a) the power to operate electronic equipment on the premises to put the relevant data in documentary form and remove the documents so produced from the premises; (b) the power to operate electronic equipment on the premises to transfer the relevant data to a disk, tape or other storage device that:
(i) is brought to the premises for the exercise of the power; or
and remove the disk, tape or other storage device from the premises.
(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;
(5)
A constable may operate electronic equipment as mentioned in subsection (1) or (4) only if the constable believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment.
Note:
For compensation for damage to electronic equipment, see section 3ZZNF.
Scope
(1)
This section applies if a constable enters premises under a monitoring warrant.
Securing equipment
(2)
The monitoring powers include the power to secure any electronic equipment that is on the premises if the constable suspects on reasonable grounds that:
(a) there is relevant data on the premises; and
(b) the relevant data may be accessible by operating the equipment; and
(c) expert assistance is required to operate the equipment; and
(d) the relevant data may be destroyed, altered or otherwise interfered with, if the constable does not take action under this subsection.
The equipment may be secured by locking it up, placing a guard or any other means.
(3)
The constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:
(a) the constable's intention to secure the equipment; and
(b) the fact that the equipment may be secured for up to 24 hours.
Period equipment may be secured
(4)
The equipment may be secured until the earlier of the following happens:
(a) the 24-hour period ends;
(b) the equipment has been operated by the expert.
Note:
For compensation for damage to electronic equipment, see section 3ZZNF.
Extensions
(5)
The constable may apply to an issuing officer for an extension of the 24-hour period if the constable believes on reasonable grounds that the equipment needs to be secured for longer than that period.
(6)
Before making the application, the constable must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.
(7)
The 24-hour period may be extended more than once.
Note:
For the process by which an issuing officer may extend the period, see section 3ZZQA.
Scope
(1)
This section applies if a constable enters premises under section 3ZZKA.
Entry with consent
(2)
If the entry is authorised because the occupier of the premises consented to the entry, the constable may ask the occupier to answer any questions, and produce any document, that is likely to assist in: (a) achieving a Part 5.3 object; or (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
Note 1:
A person is not required to answer a question, or produce a document, in response to a request under this subsection.
Note 2:
See also sections 3ZZRC and 3ZZRD.
Entry under a monitoring warrant
(3)
If: (a) the entry is authorised by a monitoring warrant; and (b) the warrant authorises the constable to exercise powers under this subsection;
the constable may (subject to subsections (4) to (7)) require any person on the premises to answer any questions, and produce any document, that is likely to assist in:
(c) achieving a Part 5.3 object; or (d) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (e)-(f) (Repealed by No 131 of 2021)Note:
See also sections 3ZZRC and 3ZZRD.
Legal professional privilege and privilege against self-incrimination
(4)
Before a constable requires a person to answer a question or produce a document under subsection (3), the constable must explain the effect of section 3ZZJD to the person.
(5)
An answer to a question or a document produced under subsection (3) by a person is not admissible in evidence against him or her in criminal proceedings if a constable fails to explain the effect of section 3ZZJD to the person in accordance with subsection (4). The failure does not otherwise affect the use of the answer or document.
Note:
For the uses that may be made of the answer or document, see sections 3ZZRC and 3ZZRD.
Exceptions to subsection (3)
(6)
A person is not subject to a requirement under subsection (3) if: (a) the person does not possess the information or document required; and (b) the person has taken all reasonable steps available to the person to obtain the information or document required and has been unable to obtain it.
(7)
A person is not subject to a requirement under subsection (3) to produce a document if the document is not at the premises.
Offence
(8)
A person commits an offence if: (a) the person is subject to a requirement under subsection (3); and (b) the person engages in conduct; and (c) the person's conduct breaches the requirement.
Penalty for contravention of this subsection: 30 penalty units.
Scope
(1)
This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Powers
(2)
The constable has the following powers in relation to the premises:
(a) the power to seize things found during the exercise of monitoring powers on the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items;
(b) the power to conduct an ordinary search or a frisk search of a person at or near the premises if the constable suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession;
(c) the power to seize other things found while conducting an ordinary search or a frisk search of a person at or near the premises that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) evidential material (within the meaning of the Proceeds of Crime Act 2003); or
(iii) tainted property (within the meaning of that Act); or
(iv) seizable items.
Scope
(1)
This section applies if:
(a) a constable enters premises under section 3ZZKA; and
(b) the entry is authorised by a monitoring warrant.
Availability of assistance and use of force
(2)
In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZKF in relation to the premises;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3)
In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) enter the premises; and
(b) exercise the monitoring powers in relation to the premises; and
(c) in:
(i) entering the premises; or
use such force against things as is necessary and reasonable in the circumstances.
(ii) exercising the monitoring powers;
(5)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant:
(a) the person may only exercise the monitoring powers set out in subsection 3ZZKD(2) if the constable forms the suspicion mentioned in that subsection; and
(b) the person must not exercise a power set out in subsection 3ZZKD(5) or section 3ZZKE or 3ZZKF.
(6)
A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
If a Part 5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers, for either of the following purposes: (a) achieving a Part 5.3 object; (b) determining whether the Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
Note:
The monitoring powers are set out in section 3ZZLB.
(2)
However, a constable is not authorised to conduct an ordinary search or a frisk search of the person unless: (a) the person has consented to the search; or (b) the search is conducted under a monitoring warrant.
The following are the monitoring powers that a constable may exercise in relation to a person under section 3ZZLA:
(a) the power to search things found in the possession of the person;
(b) the power to search any recently used conveyance;
(c) the power to record fingerprints from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section;
(d) the power to take samples from things found in the course of:
(i) a search under section 3ZZLA; or
(ii) a search under paragraph (a) or (b) of this section.
Scope
(1)
This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Powers
(2)
The constable has the following powers:
(a) the power to seize things found in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material; or
(ii) seizable items;
(b) the power to seize other things found on or in the possession of the person, or in the recently used conveyance, in the course of the search that the constable suspects on reasonable grounds to be:
(i) evidential material (within the meaning of the Proceeds of Crime Act 2002); or
(ii) tainted property (within the meaning of that Act).
Scope
(1)
This section applies if:
(a) a constable conducts a search of a person, or of a recently used conveyance, under section 3ZZLA; and
(b) the search is authorised by a monitoring warrant.
Availability of assistance and use of force
(2)
In:
(a) executing the warrant; or
(b) exercising the powers set out in section 3ZZLC in relation to the person or conveyance;
the constable may use such force against persons and things as is necessary and reasonable in the circumstances.
(3)
In executing the warrant, the constable may obtain such assistance as is necessary and reasonable in the circumstances.
(4)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person may:
(a) exercise the monitoring powers in relation to the person mentioned in paragraph (1)(a); and
(b) in exercising the monitoring powers, use such force against things as is necessary and reasonable in the circumstances.
(5)
If a person (other than a constable) has been authorised by the constable to assist in executing the warrant, the person must not exercise a power set out in section 3ZZLC.
(6)
A power exercised by a person assisting the constable as mentioned in subsection (4) is taken to have been exercised by the constable.
Before obtaining the consent of an occupier of premises for the purposes of paragraph 3ZZKA(2)(a), a constable must inform the occupier that the occupier may refuse consent.
(2)
A consent has no effect unless the consent is voluntary.
(3)
A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4)
A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
(5)
If a constable entered premises because of the consent of the occupier of the premises, the constable, and any person assisting the constable, must leave the premises if the consent ceases to have effect.
(6)
If:
(a) a constable enters premises because of the consent of the occupier of the premises; and
(b) the constable has not shown the occupier his or her identity card before entering the premises;
the constable must do so on, or as soon as is reasonably practicable after, entering the premises.
Before obtaining the consent of a person for the purposes of paragraph 3ZZLA(2)(a), a constable must inform the person that the person may refuse consent.
(2)
A consent has no effect unless the consent is voluntary.
(3)
A consent may be expressed to be limited to a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.
(4)
A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.
Before entering premises under a monitoring warrant, a constable must:
(a) announce that he or she is authorised to enter the premises; and
(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an opportunity to allow entry to the premises.
A constable executing a monitoring warrant must be in possession of the warrant or a copy of the warrant.
If:
(a) a monitoring warrant is being executed by a constable in relation to premises; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the constable must, as soon as practicable, make a copy of the warrant available to the occupier or other person.
Scope
(1)
This section applies if: (a) as a result of electronic equipment being operated as mentioned in this Part:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(b) the damage or corruption occurs because:
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
Compensation
(2)
The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3)
However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in: (a) the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2); or (b) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4)
In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
If:
(a) a monitoring warrant in relation to premises is being executed; and
(b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises;
the person is entitled to observe the search being conducted.
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
If: (a) a monitoring warrant in relation to premises is being executed; and (b) the warrant was issued on the basis that a Part 5.3 supervisory order is in force in relation to a person; and (c) the person is present at the premises;
the person is entitled to observe the search being conducted.
(2)
The right to observe the search being conducted ceases if the person impedes the search.
(3)
This section does not prevent 2 or more areas of the premises being searched at the same time.
Application for warrant
(1)
A constable may apply to an issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2)
The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a Part 5.3 supervisory order is in force in relation to a person; and (b) the person has a prescribed connection with the premises; and (c) having regard to:
(i) the nature of the person's prescribed connection with the premises; and
(ii) one or more of the matters set out in paragraphs (4)(a) to (f), and the matter set out in paragraph (4)(g); and
it is reasonably necessary that one or more constables should have access to the premises for the purposes of:
(iii) such other matters (if any) as the issuing officer considers relevant;
(iv) achieving a Part 5.3 object; or
(v) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
(vi)-(vii) (Repealed by No 131 of 2021)
(3)
The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4)
The matters referred to in subparagraph (2)(c)(ii) are the following: (a) in relation to a control order:
(i) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(ii) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(iii) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(iv) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(b) in relation to an extended supervision order or interim supervision order - the possibility that the person has committed, is committing, or will commit, a serious Part 5.3 offence; (c)-(e) (Repealed by No 131 of 2021) (f) in relation to any Part 5.3 supervisory order - the possibility that the person has contravened, is contravening, or will contravene, the order;
(v) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
(g) whether allowing one or more constables to have access to the premises, and exercise the monitoring powers in relation to the premises and the powers set out in section 3ZZKF in relation to the premises, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.
Content of warrant
(5)
The warrant must: (a) describe the premises to which the warrant relates; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise one or more constables (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to enter the premises; and
(ii) to exercise the monitoring powers in relation to the premises; and
(e) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and (f) specify the time at which the warrant expires (see subsection (7)); and (g) state whether the warrant authorises a constable to exercise powers under subsection 3ZZKE(3) in relation to the entry; and (h) state that a person who is not a constable may be authorised under section 3ZZKG to assist in executing the warrant; and (i) state the name of the person to whom the relevant Part 5.3 supervisory order relates; and (j) describe the nature of the person's prescribed connection with the premises; and (k) state that the Part 5.3 supervisory order is in force; and (l) state whether the Part 5.3 supervisory order is:
(iii) to exercise the powers set out in section 3ZZKF in relation to the premises; and
(i) an interim control order; or
(ii) a confirmed control order; or
(iii) an interim supervision order; or
(m) specify the date the Part 5.3 supervisory order was made; and (n) specify the court that made the Part 5.3 supervisory order; and (o) if the Part 5.3 supervisory order is an interim control order - specify the date the order was served on the person; and (p) if the Part 5.3 supervisory order is an extended supervision order or an interim supervision order - specify when the order comes into force; and (q) if the Part 5.3 supervisory order is a confirmed control order, an extended supervision order or an interim supervision order - specify the end of the period during which the order is in force; and (r) if the warrant is issued for the purposes of determining whether the Part 5.3 supervisory order has been, or is being, complied with - include, in an attachment to the warrant, a copy of the order.
(iv) an extended supervision order; and
(6)
To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7)
The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example:
If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8)
Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same premises.
Application for warrant
(1)
A constable may apply to an issuing officer for a warrant under this section in relation to a person.
Issue of warrant
(2)
The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that: (a) a Part 5.3 supervisory order is in force in relation to the person; and (b) having regard to:
(i) one or more of the matters set out in paragraphs (4)(a) to (c), and the matter set out in paragraph (4)(g); and
it is reasonably necessary that a constable should conduct an ordinary search or a frisk search of the person for the purposes of:
(ii) such other matters (if any) as the issuing officer considers relevant;
(iii) achieving a Part 5.3 object; or
(iv) determining whether the Part 5.3 supervisory order has been, or is being, complied with.
(v)-(vi) (Repealed by No 131 of 2021)
(3)
The issuing officer must not issue the warrant unless the applicant or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.
(4)
The matters referred to in subparagraph (2)(b)(i) are the following: (a) in relation to a control order:
(i) the possibility that the person has engaged, is engaging, or will engage, in a terrorist act;
(ii) the possibility that the person has provided, is providing, or will provide, support for a terrorist act;
(iii) the possibility that the person has facilitated, is facilitating, or will facilitate, a terrorist act;
(iv) the possibility that the person has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country;
(b) in relation to an extended supervision order or interim supervision order - the possibility that the person has committed, is committing, or will commit, a serious Part 5.3 offence; (c) in relation to any Part 5.3 supervisory order - the possibility that the person has contravened, is contravening, or will contravene, the order; (g) whether allowing one or more constables to conduct an ordinary search or a frisk search of the person, and exercise the monitoring powers in relation to the person and the powers set out in section 3ZZLC in relation to the person or a recently used conveyance, would be likely to have the least interference with any person's liberty and privacy that is necessary in the circumstances.
(v) the possibility that the person has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country;
Content of warrant
(5)
The warrant must: (a) state the name of the person; and (b) state that the warrant is issued under this section; and (c) state the purpose or purposes for which the warrant is issued; and (d) authorise a constable (whether or not named in the warrant) from time to time while the warrant remains in force:
(i) to conduct an ordinary search or a frisk search of the person; and
(ii) to exercise the monitoring powers in relation to the person; and
(e) state whether the search is authorised to be carried out at any time of the day or during specified hours of the day; and (f) specify the time at which the warrant expires (see subsection (7)); and (g) state that a person who is not a constable may be authorised under section 3ZZLD to assist in executing the warrant; and (h) state the name of the person to whom the relevant Part 5.3 supervisory order relates; and (i) state that the Part 5.3 supervisory order is in force; and (j) state whether the Part 5.3 supervisory order is:
(iii) to exercise the powers set out in section 3ZZLC in relation to the person or a recently used conveyance; and
(i) an interim control order; or
(ii) a confirmed control order; or
(iii) an interim supervision order; or
(k) specify the date the Part 5.3 supervisory order was made; and (l) specify the court that made the Part 5.3 supervisory order; and (m) if the Part 5.3 supervisory order is an interim control order - specify the date the order was served on the person; and (n) if the Part 5.3 supervisory order is an extended supervision order or an interim supervision order - specify when the order comes into force; and (o) if the Part 5.3 supervisory order is a confirmed control order, an extended supervision order or an interim supervision order - specify the end of the period during which the order is in force; and (p) if the warrant is issued for the purposes of determining whether the Part 5.3 supervisory order has been, or is being, complied with - include, in an attachment to the warrant, a copy of the order.
(iv) an extended supervision order; and
(6)
To avoid doubt, paragraph (5)(c) does not require the purpose or purposes for which the warrant is issued to be specified in the warrant if disclosure of that purpose, or those purposes, is likely to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004).
(7)
The time stated in the warrant under paragraph (5)(f) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.
Example:
If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.
(8)
Paragraph (5)(f) and subsection (7) do not prevent the issue of successive monitoring warrants in relation to the same person.
A monitoring warrant cannot authorise a strip search or a search of a person's body cavities.
If: (a) a monitoring warrant was issued on the basis that a Part 5.3 supervisory order was in force in relation to a person; and (b) any of the following happens:
(i) the Part 5.3 supervisory order is a control order that is revoked;
(ii) the Part 5.3 supervisory order is an extended supervision order or interim supervision order in relation to a terrorist offender that is revoked and no further extended supervision order or interim supervision order is made in relation to the terrorist offender;
(iii) the Part 5.3 supervisory order is an interim control order that a court declares to be void;
(iv) a court varies the Part 5.3 supervisory order by removing one or more conditions imposed on the person by the order;
a constable must not:
(c) execute the warrant; or (d) exercise a power under Division 2 or 3, if the exercise of the power is consequential on the warrant.Evidence
(2)
A thing seized in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(3)
Information obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
(4)
A document obtained in breach of subsection (1) is not admissible in evidence in criminal proceedings other than proceedings covered by paragraph 3ZQU(1)(j).
A constable may make an application to an issuing officer for a monitoring warrant by telephone, telex, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.
(2)
The issuing officer:
(a) may require communication by voice to the extent that it is practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such communication by voice.
(3)
An application under this section must include all information required to be provided in an ordinary application for a monitoring warrant, but the application may, if necessary, be made before the information is sworn.
(4)
If an application is made to an issuing officer under this section and the issuing officer, after considering the information and having received and considered such further information (if any) as the issuing officer required, is satisfied that:
(a) a monitoring warrant in the terms of the application should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;
the issuing officer may complete and sign the same form of warrant that would be issued under section 3ZZOA or 3ZZOB, as the case requires.
(5)
If the issuing officer decides to issue the monitoring warrant, the issuing officer is to inform the applicant, by telephone, telex, fax or other electronic means, of the terms of the warrant and the day on which, and the time at which, it was signed.
(6)
The applicant must then complete a form of monitoring warrant in terms substantially corresponding to those given by the issuing officer, stating on the form the name of the issuing officer and the day on which, and the time at which, the warrant was signed.
(7)
The applicant must, not later than the day after the day of expiry of the warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the issuing officer the form of warrant completed by the applicant and, if the information referred to in subsection (3) was not sworn, that information duly sworn.
(8)
The issuing officer is to attach to the documents provided under subsection (7) the form of warrant completed by the issuing officer.
(9)
If:
(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a monitoring warrant issued under this section was duly authorised; and
(b) the form of warrant signed by the issuing officer is not produced in evidence;
the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.
A person commits an offence if:
(a) the person states in a document that purports to be a form of warrant under section 3ZZPA the name of an issuing officer unless that officer issued the warrant; or
(b) the person states on a form of warrant under that section a matter that, to the person's knowledge, departs in a material particular from the form authorised by the issuing officer; or
(c) the person purports to execute, or present to a person, a document that purports to be a form of warrant under that section that the person knows:
(i) has not been approved by an issuing officer under that section; or
(ii) to depart in a material particular from the terms authorised by an issuing officer under that section; or
(d) the person gives to an issuing officer a form of warrant under that section that is not the form of warrant that the person purported to execute.
Penalty: Imprisonment for 2 years.
Application
(1)
This section applies if a constable applies to an issuing officer under subsection 3ZZKD(5) for an extension of the period during which a thing may be secured.
Granting extension
(2)
The issuing officer may, by order, grant an extension of the period if the issuing officer is satisfied, by information on oath or affirmation, that it is necessary to secure the thing to ensure that relevant data is not destroyed, altered or otherwise interfered with.
(3)
The issuing officer must not grant the extension unless the constable or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the extension is being sought.
Content of order
(4)
The order extending the period must:
(a) describe the thing to which the order relates; and
(b) state the period for which the extension is granted; and
(c) state that the order is made under this section; and
(d) state that the constable is authorised to secure the thing for that period.
If a thing is seized by a constable under this Part, the constable must provide a receipt for the thing.
(2)
If 2 or more things are seized, they may be covered in the one receipt.
Division 4C of Part IAA applies to a thing seized under this Part in a corresponding way to the way in which it applies to a thing seized under Division 2 of Part IAA.
Subject to subsection (2), Division 4C of Part IAA applies to a document produced under section 3ZZKE in a corresponding way to the way in which it applies to a document produced under Division 4B of Part IAA.
(2)
Section 3ZQU has effect, in relation to a document produced under section 3ZZKE, as if the following additional purposes were set out in subsection 3ZQU(1): (a) achieving a Part 5.3 object; (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with. (c)-(d) (Repealed by No 131 of 2021)
An answer given to a question asked under subsection 3ZZKE(2) or (3) may only be used for one or more of the following purposes: (a) achieving a Part 5.3 object; (b) determining whether the relevant Part 5.3 supervisory order has been, or is being, complied with; (c)-(d) (Repealed by No 131 of 2021) (e) preventing, investigating or prosecuting an offence.
Powers conferred personally
(1)
A power conferred on an issuing officer by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) not as a court or a member of a court.
Powers need not be accepted
(2)
The issuing officer need not accept the power conferred.
Protection and immunity
(3)
An issuing officer exercising a power conferred by this Part has the same protection and immunity as if the issuing officer were exercising the power:
(a) as the court of which the issuing officer is a member; or
(b) as a member of the court of which the issuing officer is a member.
An ordinary search or a frisk search of a person under this Part must, if practicable, be conducted by a person of the same sex as the person being searched.
If:
(a) a monitoring warrant was issued on the basis that an interim control order was in force; and
(b) a court subsequently declares the interim control order to be void;
a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:
(c) in the purported execution of the warrant; or
(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.
(2)
Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.
Scope
(1)
This section applies if: (a) a monitoring warrant was issued on the basis that an interim control order was in force; and (b) a court subsequently declares the interim control order to be void; and (c) before the declaration was made, a thing was seized, information was obtained, or a document was produced, as a result of:
(i) the purported execution of the warrant; or
(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of thefunction or duty, is consequential on the warrant.
Dealing
(2)
A person may: (a) adduce the thing, information or document as evidence in a proceeding; or (b) use or communicate the information; or (c) use, or communicate the contents of, the document;
if:
(d) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk of:
(i) the commission of a terrorist act; or
(ii) serious harm to a person; or
(e) the person does so for one or more purposes set out in subsection (3).
(iii) serious damage to property; or
Purposes
(3)
The purposes are purposes connected with: (a) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Division 105 of the Criminal Code, so far as the function, duty or power relates to a preventative detention order (within the meaning of Part 5.3 of the Criminal Code); or (b) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (c) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (d) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Qld), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (e) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2006 (WA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (f) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (SA), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (g) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, the Terrorism (Preventative Detention) Act 2005 (Tas.), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Act); or (h) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part); or (i) the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT), so far as the function, duty or power relates to a preventative detention order (within the meaning of that Part).
Definition
(4)
In this section:
serious harm
has the same meaning as in the Criminal Code.
The Commissioner must cause to be kept in the Australian Federal Police's records:
(a) each monitoring warrant issued to the Australian Federal Police; and
(b) each instrument revoking a monitoring warrant; and
(c) each order under section 3ZZQA granting an extension of a period.
Within 6 months after a monitoring warrant is issued in response to an application by the Australian Federal Police, the Commissioner must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2)
As soon as practicable after a member or special member of the Australian Federal Police has contravened a provision of this Part or of a monitoring warrant, the Commissioner must notify the Ombudsman of the contravention.
(3)
A failure to comply with subsection (1) or (2) does not affect the validity of a monitoring warrant.
The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Division.
(2)
An appointment under subsection (1) must be in writing.
The Ombudsman may inspect the records of the Australian Federal Police to determine the extent of compliance by the Australian Federal Police and members and special members of the Australian Federal Police with the provisions of:
(a) this Part; or
(b) monitoring warrants.
(2)
For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the Commissioner, enter at any reasonable time premises occupied by the Australian Federal Police; and
(b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police that are relevant to the inspection; and
(c) may require a staff member of the Australian Federal Police to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the staff member's possession, or to which the staff member has access, and that is relevant to the inspection.
(3)
The Commissioner must ensure that staff members of the Australian Federal Police give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
If the Ombudsman has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the staff member, require the staff member to give the information to the Ombudsman:
(a) by writing signed by the staff member; and
(b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the staff member, require the staff member to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4)
If the Ombudsman:
(a) has reasonable grounds to believe that a staff member of the Australian Federal Police is able to give information relevant to an inspection under this Division; and
(b) does not know the staff member's identity;
the Ombudsman may, by writing given to the Commissioner, require the Commissioner, or a person nominated by the Commissioner, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
A person commits an offence if:
(a) the person is required under section 3ZZUC to attend before another person, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister or a Department, or a prescribed authority (within the meaning of the Ombudsman Act 1976);
(ii) a communication between an officer of a Department or of a prescribed authority (within the meaning of the Ombudsman Act 1976) and another person or body, being a communication protected against disclosure by legal professional privilege.
(2)
However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
are not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against Part 7.4 or 7.7 of the Criminal Code.
(3)
Nothing in any other law prevents a staff member of the Australian Federal Police from:
(a) giving information to the Ombudsman or an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the Australian Federal Police to the Ombudsman or an inspecting officer;
for the purposes of an inspection under this Division.
(4)
Nothing in any other law prevents a staff member of the Australian Federal Police from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5)
The fact that a person is not excused under subsection (1) from giving information, answering a question or producing a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(2)
The Ombudsman may only give information to an authority under subsection (1) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(3)
The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.
(4)
In this Part:
State or Territory agency
means the police force or police service of a State or Territory.
State or Territory inspecting authority
, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3ZZUB.
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
(2)
A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.
The Ombudsman must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the results of any inspections under section 3ZZUB in the year.
Note:
The report is included in a report under section 104.29 of the Criminal Code.
(2)
The report must include the number of contraventions by the Australian Federal Police and members and special members of the Australian Federal Police of the provisions of:
(a) this Part; or
(b) monitoring warrants;
identified by the Ombudsman in the year.
(3)
The Ombudsman must give a copy of a report under this section to the Commissioner.
(4)
A report under this section must not include information which, if made public, could reasonably be expected to:
(a) endanger a person's safety; or
(b) prejudice an investigation, or prosecution, of an offence; or
(c) compromise the operational activities or methodologies of:
(i) the Australian Federal Police; or
(ii) any other Commonwealth, State, Territory or foreign law enforcement, intelligence or security agency.
This Part affects how Part IAAB operates, so that that Part (with some modifications set out in this Part) also applies in relation to community safety supervision orders made under Division 395 of the Criminal Code.
In this Part:
community safety supervision order
has the same meaning as in Division 395 of the Criminal Code.
Part 9.10 object
means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing a serious violent or sexual offence.
serious offender
has the same meaning as in Division 395 of the Criminal Code.
serious violent or sexual offence
has the same meaning as in Division 395 of the Criminal Code.
Part IAAB (other than section 3ZZJA or 3ZZJB) applies as if: (a) a reference to a Part 5.3 supervisory order included a reference to a community safety supervision order; and (b) a reference to a Part 5.3 object included a reference to a Part 9.10 object.
(2)
Subsection 3ZZOA(4) applies as if the following paragraph were inserted after paragraph (b) of that subsection: (c) in relation to a community safety supervision order - the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(3)
Paragraph 3ZZOA(5)(l) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or
(4)
Subsection 3ZZOA(5) applies as if the following paragraph were inserted after paragraph (q) of that subsection: (qa) for a community safety supervision order:
(i) specify when the community safety supervision order comes into force; and
(ii) specify the end of the period during which the community safety supervision order is in force; and
(5)
Subsection 3ZZOB(4) applies as if the following paragraph were inserted after paragraph (c) of that subsection: (d) in relation to a community safety supervision order - the possibility that the person has committed, is committing, or will commit, a serious violent or sexual offence;
(6)
Paragraph 3ZZOB(5)(j) applies as if the following subparagraph were inserted before subparagraph (i) of that paragraph: (ia) a community safety supervision order; or
(7)
Subsection 3ZZOB(5) applies as if the following paragraph were inserted after paragraph (o) of that subsection: (oa) for a community safety supervision order:
(i) specify when the community safety supervision order comes into force; and
(ii) specify the end of the period during which the community safety supervision order is in force; and
(8)
Paragraph 3ZZOD(1)(b) applies as if the following subparagraph were inserted after subparagraph (iii) of that paragraph: (iiia) the community safety supervision order is revoked and no further community safety supervision order is made in relation to the serious offender;
• An account takeover warrant may be issued by a magistrate.
• An account takeover warrant authorises the Australian Federal Police or the ACC to take control of one or more online accounts.
• The applicant for an account takeover warrant must suspect on reasonable grounds that:
• An emergency authorisation for taking control of an online account may be given by an appropriate authorising officer.
• An emergency authorisation is subject to approval by a magistrate.
• A magistrate may make an order requiring a person to provide any information or assistance that is reasonable and necessary to allow a law enforcement officer to take control of an online account that is the subject of an account takeover warrant or emergency authorisation.
• A person must not use or disclose information that:
• The Australian Federal Police and the ACC must comply with reporting and record keeping requirements relating to account takeover warrants and emergency authorisations.
• The Ombudsman must inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by:
Note:
This Part confers non-judicial functions and powers on magistrates. Section 4AAA deals with the conferral of non-judicial functions and powers on magistrates.
In this Part:
account
has the same meaning as in the Online Safety Act 2021.
account-based data
has the same meaning as in Part IAA.
account credentials
means information that a user of an online account requires in order to access or operate the account, and includes (for example) each of the following:
(a) a username;
(b) a password;
(c) a PIN;
(d) a security question or answer;
(e) a biometric form of identification.
account takeover warrant
means a warrant issued under section 3ZZUP or subsection 3ZZVC(2) or (3).
appropriate authorising officer
has the meaning given by section 3ZZUM.
(a) a carrier within the meaning of the Telecommunications Act 1997; or
(b) a carriage service provider within the meaning of that Act.
chief officer
means the following:
(a) in relation to the Australian Federal Police - the Commissioner of the Australian Federal Police;
(b) in relation to the ACC - the Chief Executive Officer of the ACC.
communication in transit
means a communication (within the meaning of the Telecommunications Act 1997) passing over a telecommunications network (within the meaning of that Act).
computer
means all or part of:
(a) one or more computers; or
(b) one or more computer systems; or
(c) one or more computer networks; or
(d) any combination of the above.
electronic service
has the same meaning as in the Online Safety Act 2021.
emergency authorisation
means an emergency authorisation given under section 3ZZUX.
executing officer
, in relation to an account takeover warrant, means:
(a) the law enforcement officer named in the warrant by the issuing magistrate as being responsible for executing the warrant; or
(b) if that law enforcement officer does not intend to execute the warrant - another law enforcement officer whose name has been written in the warrant by the law enforcement officer so named; or
(c) another law enforcement officer whose name has been written in the warrant by the law enforcement officer last named in the warrant.
formal application
has the meaning given by paragraph 3ZZUN(2)(a).
(a) the Inspector-General of Intelligence and Security; or
(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.
(a) the Australian Federal Police; or
(b) the ACC.
law enforcement officer
means the following:
(a) in relation to the Australian Federal Police:
(i) the Commissioner of the Australian Federal Police; or
(ii) a Deputy Commissioner of the Australian Federal Police; or
(iii) an AFP employee (within the meaning of the Australian Federal Police Act 1979); or
(iv) a special member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
(v) a person seconded to the Australian Federal Police;
(b) in relation to the ACC:
(i) the Chief Executive Officer of the ACC; or
(ii) a member of the staff of the ACC.
(a) the Ombudsman; or
(b) a Deputy Commonwealth Ombudsman; or
(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
online account
means an account that an electronic service has for an end-user.
(a) any information obtained under an account takeover warrant or an emergency authorisation; or
(b) information relating to:
(i) an application for, the issue of, the existence of, or the expiration of, an account takeover warrant or emergency authorisation; or
(ii) an application for approval of the giving of an emergency authorisation.
(a) a serious Commonwealth offence; or
(b) a serious State offence that has a federal aspect.
serious Commonwealth offence
has the same meaning as in Part IAB.
serious State offence that has a federal aspect
has the same meaning as in Part IAB.
takes control
has the meaning given by section 3ZZUL.
telecommunications facility
means a facility within the meaning of the Telecommunications Act 1997.
urgent application
has the meaning given by paragraph 3ZZUN(2)(b).
For the purposes of this Part, a person takes control of an online account if the person takes one or more steps that result in the person having exclusive access to the account.
(2)
The following are examples of such steps: (a) using existing account credentials to alter one or more account credentials; (b) removing a requirement for two-factor authentication; (c) altering the kind or kinds of account credentials that are required to access or operate the account.
Australian Federal Police
(1)
For the purposes of this Part, an appropriate authorising officer of the Australian Federal Police is: (a) the chief officer of the Australian Federal Police; or (b) a Deputy Commissioner of the Australian Federal Police; or (c) a senior executive AFP employee who is authorised under subsection (2).
(2)
The chief officer of the Australian Federal Police may authorise, in writing, a person who is a senior executive AFP employee to be an appropriate authorising officer of the Australian Federal Police for the purposes of this Part.
ACC
(3)
For the purposes of this Part, an appropriate authorising officer of the ACC is: (a) the chief officer of the ACC; or (b) an executive level member of the staff of the ACC who is authorised under subsection (4).
(4)
The chief officer of the ACC may authorise, in writing, a person who is an executive level member of the staff of the ACC to be an appropriate authorising officer of the ACC for the purposes of this Part.
This Division ceases to have effect 5 years after it commences.
A law enforcement officer may apply to a magistrate for the issue of an account takeover warrant if the law enforcement officer suspects on reasonable grounds that: (a) one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and (b) an investigation into those offences is being, will be, or is likely to be, conducted; and (c) taking control of one or more online accounts (the target accounts ) is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.
(2)
An application for an account takeover warrant may be made: (a) in person (such an application is a formal application ); or (b) if the applicant believes that it is impracticable for the application to be made in person - by telephone, email, fax or any other means of communication (such an application is an urgent application ).
(2A)
An application: (a) must specify:
(i) the name of the applicant; and
(b) subject to this section, must be supported by an affidavit setting out the grounds on which the warrant is sought.
(ii) the nature and duration of the warrant sought; and
Unsworn applications
(2B)
If a law enforcement officer believes that: (a) taking control of the target accounts is immediately necessary, in the course of the investigation mentioned in paragraph (1)(c), for the purpose of enabling evidence to be obtained of the commission of the offences mentioned in that paragraph; and (b) it is impracticable for an affidavit to be prepared or sworn before an application for a warrant is made;
an application for an account takeover warrant under subsection (1) may be made before an affidavit is prepared or sworn.
(2C)
If subsection (2B) applies, the applicant must: (a) provide as much information as the magistrate considers is reasonably practicable in the circumstances; and (b) not later than 72 hours after the making of the application, send a duly sworn affidavit to the magistrate, whether or not a warrant has been issued.
(2D)
If: (a) subsection (2B) applies; and (b) transmission by fax is available; and (c) an affidavit has been prepared;
the person applying must transmit a copy of the affidavit, whether sworn or unsworn, to the magistrate who is to determine the application.
(3)
An application (whether formal or urgent) must provide sufficient information to enable the magistrate to decide whether or not to issue the warrant.
(4)
A magistrate may require an applicant to provide such additional information as is necessary for the proper consideration of the application.
(5)
As soon as practicable after making an urgent application that was not made in writing, the applicant must: (a) make a written record of the application; and (b) give a copy of the record to the magistrate to whom the application was made.
A magistrate may issue an account takeover warrant if satisfied that there are reasonable grounds for the suspicion founding the application for the warrant.
(2)
In determining whether an account takeover warrant should be issued, the magistrate must have regard to: (a) the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought; and (b) the existence of any alternative means of obtaining the evidence sought to be obtained; and (c) the extent to which the privacy of any person is likely to be affected; and (d) the likely evidentiary value of any evidence sought to be obtained; and (da) the extent to which the execution of the warrant is likely to impact on persons lawfully using a computer, so far as that matter is known to the magistrate; and (db) the extent to which the execution of the warrant is likely to cause a person to suffer a temporary loss of:
(i) money; or
(ii) digital currency; or
so far as that matter is known to the magistrate; and (dc) if:
(iii) property (other than data);
(i) the magistrate believes on reasonable grounds that each target account is held by a person who is working in a professional capacity as a journalist or of an employer of such a person; and
whether the public interest in issuing the warrant outweighs:
(ii) the alleged relevant offence, or each of the alleged relevant offences, in respect of which the warrant is sought is an offence against a secrecy provision;
(iii) the public interest in protecting the confidentiality of the identity of the journalist's source; and
(e) any previous warrant sought or issued under this Division in connection with the same online account; and (f) any previous warrant sought or issued under this Division in connection with the same alleged relevant offence or the same alleged relevant offences.
(iv) the public interest in facilitating the exchange of information between journalists and members of the public so as to facilitate reporting of matters in the public interest; and
(3)
For the purposes of having regard to the nature and gravity of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought, the magistrate must give weight to the following matters: (a) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:
(i) an activity against the security of the Commonwealth; or
(b) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought amounts to:
(ii) an offence against Chapter 5 of the Criminal Code;
(i) an activity against the proper administration of Government; or
(c) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(ii) an offence against Chapter 7 of the Criminal Code;
(i) causes, or has the potential to cause, serious violence, or serious harm, to a person; or
(d) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(ii) amounts to an offence against Chapter 8 of the Criminal Code;
(i) causes, or has the potential to cause, a danger to the community; or
(e) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought:
(ii) amounts to an offence against Chapter 9 of the Criminal Code;
(i) causes, or has the potential to cause, substantial damage to, or loss of, data, property or critical infrastructure; or
(f) whether the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought involves, or is related to, the commission of:
(ii) amounts to an offence against Chapter 10 of the Criminal Code;
(i) transnational crime; or
(ii) serious crime; or
that is not covered by any of the preceding paragraphs.
(iii) organised crime;
(4)
Subsection (3) does not limit the matters that may be considered by the magistrate.
(5)
To avoid doubt, this Act does not prevent an account takeover warrant from being issued in a case where the conduct constituting the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is sought is not covered by subsection (3).
(6)
For the purposes of this section, secrecy provision means a provision of a law of the Commonwealth or of a State that prohibits: (a) the communication, divulging or publication of information; or (b) the production of, or the publication of the contents of, a document.
An account takeover warrant must: (a) state that the magistrate issuing the warrant is satisfied of the matters referred to in subsection 3ZZUP(1) and has had regard to the matters referred to in subsection 3ZZUP(2); and (b) specify:
(i) the name of the applicant; and
(ii) the name of the law enforcement officer who, unless the officer inserts the name of another law enforcement officer in the warrant, is to be responsible for executing the warrant; and
(iii) the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; and
(iv) the date the warrant is issued; and
(v) the period during which the warrant is in force (see subsection (3)); and
(vi) each target account; and
(vii) for each target account where the holder of the target account is known to the applicant - the holder; and
(viii) for each target account where one or more users of the target account (other than the holder of the target account) are known to the applicant - those users; and
(c) set out an outline of the investigation to which the warrant relates.
(ix) any conditions subject to which things may be done under the warrant; and
(2)
For the purposes of subparagraph (1)(b)(vi), a target account may be specified by identifying one or more matters or things that are sufficient to identify the target account.
(3)
A warrant may only be issued for a period of no more than 90 days.
Note:
The execution of a warrant may be discontinued earlier - see section 3ZZUU.
(4)
A warrant must be signed by the person issuing it and include the person's name.
An account takeover warrant must authorise the doing of specified things (subject to any restrictions or conditions specified in the warrant) in relation to each target account.
(2)
The things that may be specified are any of the following that the magistrate considers appropriate in the circumstances: (a) taking control of the target account at any time while the warrant is in force, if doing so is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; (b) using:
(i) a computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
for the purpose of taking control of the target account as mentioned in paragraph (a); (c) if necessary for the purpose of taking control of the target account as mentioned in paragraph (a):
(iv) a data storage device;
(i) accessing account-based data to which the target account relates; or
(ii) adding, copying, deleting or altering account credentials to which the target account relates; or
(d) if, having regard to other methods (if any) of taking control of the target account which are likely to be as effective, it is reasonable in all the circumstances to do so:
(iii) adding, copying, deleting or altering data in a computer;
(i) using a communication in transit for the purpose of taking control of the target account as mentioned in paragraph (a); and
(e) copying any account-based data to which the target account relates, and that:
(ii) if necessary to achieve that purpose - adding, copying, deleting or altering data in the communication in transit;
(i) appears to be relevant for the purposes of determining whether the account-based data is covered by the warrant; or
(f) copying any account credentials to which the target account relates; (g) any other thing reasonably incidental to any of the above.
(ii) is covered by the warrant;
(3)
For the purposes of paragraph (2)(e), if: (a) access has been obtained to account-based data; and (b) the account-based data is subject to a form of electronic protection;
the account-based data is taken to be relevant for the purposes of determining whether the account-based data is covered by the warrant.
When account-based data is covered by a warrant
(4)
For the purposes of this section, account-based data is covered by a warrant if access to the data is necessary, in the course of the investigation to which the warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued.
Certain acts not authorised
(5)
Subsection (2) does not authorise the addition, deletion or alteration of data, or the doing of any thing, that is likely to: (a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
unless the addition, deletion or alteration, or the doing of the thing, is necessary to do one or more of the things specified in the warrant; or (b) cause any other material loss or damage to other persons lawfully using a computer.
(ii) the lawful use by other persons of a computer;
Concealment of access etc.
(6)
If any thing has been done under: (a) an account takeover warrant; or (b) this subsection;
then, in addition to the things specified in the warrant, the warrant authorises the doing of any of the following:
(c) any thing reasonably necessary to conceal the fact that any thing has been done under the warrant or under this subsection; (d) if, having regard to other methods (if any) of doing the things mentioned in paragraph (c) which are likely to be as effective, it is reasonable in all the circumstances to do so:
(i) using a computer or a communication in transit to do those things; and
(e) any other thing reasonably incidental to any of the above;
(ii) if necessary to achieve that purpose - adding, copying, deleting or altering other data in the computer or the communication in transit;
at the following time:
(f) at any time while the warrant is in force or within 28 days after it ceases to be in force; (g) if none of the things mentioned in paragraph (c) are done within the 28-day period mentioned in paragraph (f) - at the earliest time after that 28-day period at which it is reasonably practicable to do the things mentioned in paragraph (c).(7)
Subsection (6) does not authorise the doing of a thing that is likely to: (a) materially interfere with, interrupt or obstruct:
(i) a communication in transit; or
unless the doing of the thing is necessary to do one or more of the things specified in subsection (6); or (b) cause any other material loss or damage to other persons lawfully using a computer.
(ii) the lawful use by other persons of a computer;
Statutory conditions
(8)
An account takeover warrant is subject to the following conditions: (a) the warrant must not be executed in a manner that results in loss or damage to data unless the damage is justified and proportionate, having regard to the alleged relevant offence, or alleged relevant offences, in respect of which the warrant is issued; (b) the warrant must not be executed in a manner that causes a person to suffer a permanent loss of:
(i) money; or
(ii) digital currency; or
(iii) property (other than data).
(9)
Subsection (8) does not, by implication, limit the conditions to which an account takeover warrant may be subject.
(10)
The conditions set out in subsection (8) must be specified in an account takeover warrant.
A law enforcement officer to whom an account takeover warrant has been issued may, by writing, apply at any time before the expiry of the warrant: (a) for an extension of the warrant for a period of no more than 90 days after the day the warrant would otherwise expire; or (b) for a variation of any of the other terms of the warrant.
(2)
The application is to be made to a magistrate and must be accompanied by the original warrant.
(3)
The magistrate may, by writing, grant an application if satisfied that the matters referred to in subsection 3ZZUP(1) still exist, having regard to the matters in subsection 3ZZUP(2).
(4)
If the magistrate grants the application, the magistrate must endorse the new expiry date or the other varied term on the original warrant.
(5)
An application may be made under this section more than once.
If an account takeover warrant is in force, a magistrate may, by instrument in writing, revoke the warrant.
(2)
If the circumstances set out in subsection 3ZZUU(2) apply in relation to an account takeover warrant: (a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police - the chief officer of the Australian Federal Police must, by instrument in writing, revoke the warrant; or (b) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Crime Commission - the chief officer of the Australian Crime Commission must, by instrument in writing, revoke the warrant.
(3)
The instrument revoking a warrant must be signed by the magistrate or the chief officer, as the case requires.
(4)
If a magistrate revokes an account takeover warrant, the magistrate must give a copy of the instrument of revocation to: (a) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police - the chief officer of the Australian Federal Police; or. (b) if the warrant was issued in response to an application made by a law enforcement officer of the ACC - the chief officer of the ACC.
(5)
If: (a) a magistrate revokes an account takeover warrant; and (b) at the time of the revocation, a law enforcement officer is executing the warrant;
the law enforcement officer is not subject to any civil or criminal liability for any act done in the proper execution of that warrant before the officer is made aware of the revocation.
Scope
(1)
This section applies if an account takeover warrant is issued.
Discontinuance of execution of account takeover warrant
(2)
If: (a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and (b) the chief officer is satisfied that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued;
the chief officer must, in addition to revoking the warrant under section 3ZZUT, take the steps necessary to ensure that the execution of the warrant is discontinued.
(3)
If: (a) the warrant was sought by a law enforcement officer of the Australian Federal Police or the Australian Crime Commission; and (b) the chief officer is notified that the warrant has been revoked by a magistrate under section 3ZZUT;
the chief officer must take the steps necessary to ensure that the execution of the warrant is discontinued as soon as practicable.
(4)
If the executing officer believes that taking control of the target account is no longer required for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued, the executing officer must immediately inform the chief officer of the law enforcement agency to which the executing officer belongs or is seconded.
If: (a) an account takeover warrant ceases to be in force; and (b) it is lawful for the holder of a target account to operate the account; and (c) as a result of the execution of the warrant, the holder of the account cannot operate the account;
the executing officer must take all reasonable steps to ensure the holder of the account is able to operate the account.
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following: (a) each House of the Parliament; (b) the members of each House of the Parliament; (c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
This Division ceases to have effect 5 years after it commences.
A law enforcement officer may apply to an appropriate authorising officer for an emergency authorisation for taking control of an online account if, in the course of an investigation of one or more relevant offences, the law enforcement officer reasonably suspects that: (a) an imminent risk of serious violence to a person or substantial damage to property exists; and (b) taking control of the account is immediately necessary for the purpose of dealing with that risk; and (c) the circumstances are so serious and the matter is of such urgency that taking control of the account is warranted; and (d) it is not practicable in the circumstances to apply for an account takeover warrant.
(2)
The application may be made orally, in writing or by telephone, fax, email or any other means of communication.
(3)
The appropriate authorising officer may give the emergency authorisation if satisfied that there are reasonable grounds for the suspicion founding the application.
Statutory conditions
(4)
An emergency authorisation is subject to the following conditions: (a) the authorisation must not be executed in a manner that results in damage to data unless the damage is justified and proportionate, having regard to the risk of serious violence or substantial damage referred to in paragraph (1)(a); (b) the authorisation must not be executed in a manner that causes a person to suffer a permanent loss of:
(i) money; or
(ii) digital currency; or
(iii) property (other than data).
As soon as practicable after an appropriate authorising officer gives an emergency authorisation, the officer must make a written record of the giving of that authorisation, including in the record: (a) the name of the applicant for the authorisation; and (b) the date and time the authorisation was given; and (c) the nature of the authorisation given.
An emergency authorisation may authorise anything that an account takeover warrant may authorise.
(2)
A law enforcement officer may take control of an online account under an emergency authorisation only if the officer is acting in the performance of the officer's duty.
Within 48 hours after giving an emergency authorisation to a law enforcement officer, the appropriate authorising officer who gave the authorisation (or another person on that appropriate authorising officer's behalf) must apply to a magistrate for approval of the giving of the emergency authorisation.
(2)
The application must: (a) provide sufficient information to enable the magistrate to decide whether or not to approve the giving of the emergency authorisation; and (b) be accompanied by a copy of the written record made under section 3ZZUY in relation to the emergency authorisation.
Before deciding an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate considering the application must, in particular, and being mindful of the intrusive nature of taking control of the online account, consider the following: (a) the nature of the risk of serious violence to a person or substantial damage to property; (b) the extent to which issuing an account takeover warrant would have helped reduce or avoid the risk; (c) the extent to which law enforcement officers could have used alternative methods of investigation to help reduce or avoid the risk; (d) how much the use of alternative methods of investigation could have helped reduce or avoid the risk; (e) how much the use of alternative methods of investigation would have prejudiced the safety of the person or property because of delay or for another reason; (f) whether or not it was practicable in the circumstances to apply for an account takeover warrant.
After considering an application for approval of the giving of an emergency authorisation that relates to an online account, the magistrate may give the approval if satisfied that there were reasonable grounds to suspect that: (a) there was a risk of serious violence to a person or substantial damage to property; and (b) taking control of the online account may have helped reduce the risk; and (c) it was not practicable in the circumstances to apply for an account takeover warrant.
(2)
If the magistrate approves the giving of an emergency authorisation, the magistrate may: (a) unless paragraph (b) applies - issue an account takeover warrant relating to taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2; or (b) if the magistrate is satisfied that, since the application for the emergency authorisation, the activity that required taking control of an online account has ceased - order the cessation of taking control of the online account.
(3)
If the magistrate does not approve the giving of an emergency authorisation, the magistrate may: (a) order the cessation of taking control of the online account; or (b) if the magistrate is of the view that, although the situation did not warrant the emergency authorisation at the time when the authorisation was given, the use of an account takeover warrant under Division 2 is currently justified - issue an account takeover warrant relating to the taking control of the online account as if the application for the approval were an application for an account takeover warrant under Division 2.
(4)
In any case, the magistrate may order that any information obtained from or relating to the exercise of powers under the emergency authorisation, or any record of that information, be dealt with in a manner specified in the order, so long as the manner does not involve the destruction of that information.
If the giving of an emergency authorisation is approved under section 3ZZVC, any evidence obtained because of the exercise of powers under that authorisation is not inadmissible in any proceeding only because the evidence was obtained before the approval.
If: (a) a magistrate orders the cessation of taking control of the online account to which an emergency authorisation relates; and (b) as a result of the execution of the authorisation, the holder of the account cannot operate the account;
the law enforcement officer who applied for the authorisation must take all reasonable steps to ensure the holder of the account is able to operate the account.
To avoid doubt, this Division does not affect the law relating to the powers, privileges and immunities of any of the following: (a) each House of the Parliament; (b) the members of each House of the Parliament; (c) the committees of each House of the Parliament and joint committees of both Houses of the Parliament.
If an account takeover warrant or emergency authorisation is in force, a law enforcement officer may apply to a magistrate for an order (the assistance order ) requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the law enforcement officer to take control of an online account that is the subject of the warrant or authorisation.
Grant of assistance order
(2)
The magistrate may grant the assistance order if the magistrate is satisfied that: (a) there are reasonable grounds for suspecting that taking control of the account is necessary, in the course of the investigation to which the account takeover warrant relates, for the purpose of enabling evidence to be obtained of the commission of the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; and (b) the specified person is:
(i) reasonably suspected of having committed the alleged relevant offence, or any of the alleged relevant offences, in respect of which the warrant is issued; or
(ii) the holder of the account; or
(iii) an employee of the holder of the account; or
(iv) a person engaged under a contract for services by the holder of the account; or
(v) a person who uses or has used the account; or
(c) the specified person has relevant knowledge of:
(vi) a person who is or was a system administrator for the electronic service to which the account relates; and
(i) the account; or
(ii) the electronic service to which the account relates; or
(iii) measures applied to protect account-based data to which the account relates.
(2A)
In determining whether the assistance order should be granted, the magistrate must have regard to whether the specified person is, or has been, subject to: (a) another order under this section; or (b) an order under section 3LA of this Act; or (c) an order under section 64A or 64B of the Surveillance Devices Act 2004;
so far as that matter is known to the magistrate.
(2B)
Subsection (2B) does not limit the matters to which the magistrate may have regard.
Duration of assistance order
(2C)
If an assistance order is granted in relation to a computer that is the subject of an account takeover warrant, the order ceases to be in force when the warrant ceases to be in force.
(2D)
If an assistance order is granted in relation to a computer that is the subject of an emergency authorisation, the order ceases to be in force when the emergency authorisation ceases to be in force.
Protection from civil liability
(2E)
A person is not subject to any civil liability in respect of an act done by the person: (a) in compliance with an assistance order; or (b) in good faith in purported compliance with an assistance order.
Offence
(3)
A person commits an offence if: (a) the person is subject to an order under this section; and (b) the person is capable of complying with a requirement in the order; and (c) the person omits to do an act; and (d) the omission contravenes the requirement.
Penalty: Imprisonment for 10 years or 600 penalty units, or both.
Additional use of information etc.
(4)
If information or assistance is provided under this section in connection with an investigation into one or more alleged relevant offences, this Act does not, by implication, prevent the information or assistance from being used in connection with the execution of a section 3E warrant that relates to that investigation.
A person commits an offence if: (a) the person uses or discloses information; and (b) the information is protected information.
Penalty: Imprisonment for 2 years.
(2)
A person commits an offence if: (a) the person uses or discloses any information; and (b) the information is protected information; and (c) the use or disclosure of the information endangers the health or safety of any person or prejudices the effective conduct of an investigation into a relevant offence.
Penalty: Imprisonment for 10 years.
Exceptions
(3)
Subsections (1) and (2) do not apply if the use or disclosure was: (a) in connection with the administration or execution of this Part; or (b) in connection with the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979; or (c) in connection with the functions of the ACC under section 7A of the Australian Crime Commission Act 2002; or (d) in connection with preventing, investigating or prosecuting an offence; or (e) by a person who believes on reasonable grounds that the use or disclosure is necessary to help prevent or reduce the risk of serious violence to a person or substantial damage to property; or (f) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or (g) for the purposes of obtaining legal advice in relation to this Part; or (h) in accordance with any requirement imposed by law; or (i) in connection with the performance of functions or duties, or the exercise of powers, under this Part; or (j) in connection with the performance of functions or duties, or the exercise of powers, by:
(i) a law enforcement officer; or
(ii) the Director-General (within the meaning of the Australian Security Intelligence Organisation Act 1979), an ASIO employee (within the meaning of that Act) or an ASIO affiliate (within the meaning of that Act); or
(k) for the purposes of the admission of evidence in a proceeding that is not a criminal proceeding.
(iii) the agency head (within the meaning of the Intelligence Services Act 2001), or a staff member (within the meaning of that Act), of an agency (within the meaning of that Act); or
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
(4)
Subsections (1) and (2) do not apply if the disclosure was made by a person to an Ombudsman official (whether in connection with a complaint made to the Ombudsman or in any other circumstances).
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
(5)
Subsections (1) and (2) do not apply if the disclosure was made by a person to an IGIS official for the purposes of the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
The chief officer of the Australian Federal Police or the ACC: (a) must ensure that every record or report comprising protected information is kept in a secure place that is not accessible to people who are not entitled to deal with the record or report; and (b) must cause to be destroyed any record or report referred to in paragraph (a):
(i) as soon as practicable after the making of the record or report if the chief officer is satisfied that no civil or criminal proceeding to which the material contained in the record or report relates has been, or is likely to be, commenced and that the material contained in the record or report is not likely to be required in connection with an activity or purpose referred to in subsection 3ZZVH(2), (3) or (4); and
(ii) within the period of 5 years after the making of the record or report, and within each period of 5 years thereafter, unless, before the end of that period, the chief officer is satisfied in relation to the material contained in the record or report of a matter referred to in subparagraph (i) and certifies to that effect.
In a proceeding, a person may object to the disclosure of information on the ground that the information, if disclosed, could reasonably be expected to reveal details of account takeover technologies or methods.
(2)
If the person conducting or presiding over the proceeding is satisfied that the ground of objection is made out, the person may order that the person who has the information not be required to disclose it in the proceeding.
(3)
In determining whether or not to make an order under subsection (2), the person conducting or presiding over the proceeding must take into account whether disclosure of the information: (a) is necessary for the fair trial of the defendant; or (b) is in the public interest.
(4)
Subsection (2) does not affect a provision of another law under which a law enforcement officer cannot be compelled to disclose information or make statements in relation to the information.
(5)
If the person conducting or presiding over a proceeding is satisfied that publication of any informationdisclosed in the proceeding could reasonably be expected to reveal details of account takeover technologies or methods, the person must make any orders prohibiting or restricting publication of the information that the person considers necessary to ensure that those details are not revealed.
(6)
Subsection (5) does not apply to the extent that the person conducting or presiding over the proceeding considers that the interests of justice require otherwise.
(7)
In this section:
account takeover technologies or methods
means:
(a) technologies or methods relating to the use of:
(i) a computer; or
(ii) a telecommunications facility operated or provided by the Commonwealth or a carrier; or
(iii) any other electronic equipment; or
(iv) a data storage device;
for the purpose of taking control of an online account; or
(b) technologies or methods relating to adding, copying, deleting or altering account-based data, if doing so is necessary to achieve the purpose mentioned in paragraph (a); or
(c) technologies or methods relating to adding, copying, deleting or altering account credentials to which an online account relates, if doing so is necessary to achieve the purpose mentioned in paragraph (a);
where the technologies or methods have been, or are being, deployed in giving effect to an account takeover warrant or emergency authorisation.
proceeding
includes a proceeding before a court, tribunal or Royal Commission.
As soon as practicable after 30 June in each year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister and the Ombudsman that sets out: (a) the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months, and the dates on which those applications were made; and (b) the number of account takeover warrants issued during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, and the dates on which those warrants were issued; and (c) if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:
(i) the number of those refusals; and
(d) if one or more applications for variations of account takeover warrants were made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months:
(ii) the dates on which those refusals occurred; and
(i) the number of those applications; and
(e) if one or more variations of account takeover warrants were made during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires:
(ii) the dates on which those applications were made; and
(i) the number of those variations; and
(f) if one or more applications for variations of account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:
(ii) the dates on which those variations were made; and
(i) the number of those refusals; and
(g) if one or more account takeover warrants issued in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, were revoked during the previous 12 months:
(ii) the dates on which those refusals occurred; and
(i) the number of those revocations; and
(h) for each account takeover warrant that:
(ii) the dates on which those revocations occurred; and
(i) was issued in response to an application made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and
the following information:
(ii) ceased to be in force during the previous 12 months;
(iii) the date the warrant ceased to be in force;
(iv) whether the warrant expired or was revoked;
(v) whether or not the warrant was executed;
(vi) if the warrant was executed - the information listed in subsection (2);
(i) the number of applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months, and the dates on which those applications were made; and (j) the number of emergency authorisations given during the previous 12 months in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, and the dates on which those authorisations were given; and (k) if one or more applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:
(vii) if the warrant was not executed - the reason why the warrant was not executed; and
(i) the number of those refusals; and
(l) if one or more applications for approval of the giving of emergency authorisations were made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months:
(ii) the dates on which those refusals occurred; and
(i) the number of those applications; and
(m) if the giving of one or more emergency authorisations were approved during the previous 12 months in response to applications made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires:
(ii) the dates on which those applications were made; and
(i) the number of those approvals; and
(n) if one or more applications for approval of the giving of emergency authorisations made by oron behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the previous 12 months were refused:
(ii) the dates on which those approvals were given; and
(i) the number of those refusals; and
(ii) the dates on which those refusals occurred.
(2)
The following information is listed for the purposes of subparagraph (1)(h)(vi): (a) the name of the executing officer; (b) the names of any other law enforcement officers involved in executing the warrant; (c) the period during which the warrant was executed; (d) the target account; (e) if the holder of the target account is known to the executing officer - the holder; (f) if one or more users of the target account (other than the holder of the target account) are known to the executing officer - those users; (g) details of the benefit of the execution of the warrant to the investigation of a relevant offence; (h) details of how information obtained under the warrant was used; (i) details of the communication of information obtained under the warrant to persons other than:
(i) if the warrant was issued in response to an application made by a law enforcement officer of the Australian Federal Police - law enforcement officers of the Australian Federal Police; or
(j) details of the compliance with the conditions (if any) to which the warrant was subject.
(ii) if the warrant was issued in response to an application made by a law enforcement officer of the ACC - law enforcement officers of the ACC;
(3)
For the purposes of paragraph (2)(d), the target account may be specified by identifying one or more matters and things that are sufficient to identify the account.
As soon as practicable, and in any event within 3 months, after the end of each financial year, the chief officer of the Australian Federal Police or the ACC must submit a report to the Minister that sets out: (a) the number of applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (b) the number of account takeover warrants issued during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (c) if one or more applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (d) the number of urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (e) the number of account takeover warrants issued during the financial year in response to urgent applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (f) if one or more urgent applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (g) if one or more variations of account takeover warrants were granted during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires - the number of those variations; and (h) if one or more applications for variations of account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (i) the number of applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (j) the number of emergency authorisations given during the financial year in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (k) if one or more applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (l) if one or more applications for approval of the giving of emergency authorisations were made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year - the number of those applications; and (m) if the giving of one or more emergency authorisations were approved during the financial year in response to applications made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires - the number of those approvals; and (n) if one or more applications for approval of the giving of emergency authorisations made by or on behalf of appropriate authorising officers of the Australian Federal Police or the ACC, as the case requires, during the financial year were refused - the number of those refusals; and (o) the types of relevant offences in respect of which account takeover warrants or emergency authorisations were sought by law enforcement officers of the Australian Federal Police or the ACC, as the case requires, during the financial year; and (p) the number of arrests that were made during the financial year on the basis (wholly or partly) of information obtained under account takeover warrants issued, or emergency authorisations given, in response to applications made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (q) the number of prosecutions for relevant offences that were commenced during the financial year in which information obtained under account takeover warrants or emergency authorisations was given in evidence, and the number of those prosecutions in which a person was found guilty.
(2)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives it.
(3)
A copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.
The chief officer of the Australian Federal Police or the ACC must cause the following to be kept: (a) a copy of each application for an account takeover warrant that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (b) a copy of each account takeover warrant that was issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (c) each written application for an emergency authorisation made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (d) a copy of each emergency authorisation that was given in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (e) a copy of each application made by or on behalf of an appropriate authorising officer for approval of the giving of an emergency authorisation to a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (f) a copy of each section 3ZZVG assistance order that was made in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (g) a copy of each application for a section 3ZZVG assistance order that was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires; (h) if an application for a variation of an account takeover warrant was made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires - a copy of the application; (i) if an account takeover warrant that was varied in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires - a copy of the variation; (j) if an account takeover warrant issued in response to an application made by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires, was revoked - a copy of the revocation; (k) each written record made under subsection 3ZZUN(5); (l) a copy of each report given to the Minister and the Ombudsman under section 3ZZVL.
The chief officer of the Australian Federal Police or the ACC must cause to be kept a register of: (a) applications for account takeover warrants made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires; and (b) applications for emergency authorisations made by law enforcement officers of the Australian Federal Police or the ACC, as the case requires.
(2)
The register is to specify, for each account takeover warrant sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires: (a) the date the warrant was issued or refused; and (b) the date of the application for the warrant; and (c) whether the application for the warrant was a formal application or an urgent application; and (d) the name of the magistrate who issued or refused to issue the warrant; and (e) the name of the applicant for the warrant; and (f) if the warrant was issued:
(i) the name of the executing officer; and
(ii) the alleged relevant offence, or alleged relevant offences, in respect of which the warrant was issued; and
(iii) the period during which the warrant is in force; and
(iv) details of any variations or extensions of the warrant; and
(v) whether the warrant has expired or been revoked.
(3)
The register is to specify, for each emergency authorisation sought by a law enforcement officer of the Australian Federal Police or the ACC, as the case requires: (a) the date the authorisation was given or refused; and (b) the name of the appropriate authorising officer who gave or refused to give the authorisation; and (c) if the authorisation was given:
(i) the name of the law enforcement officer to whom the authorisation was given; and
(ii) the alleged relevant offence, or alleged relevant offences, in respect of which the authorisation was given; and
(iii) the date on which the application for approval of the giving of the authorisation was made; and
(iv) whether that application for approval of the giving of the authorisation was successful or not.
(4)
A register kept under this section is not a legislative instrument.
The Ombudsman may, by writing, appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Part.
The Ombudsman must, from time to time and at least once every 12 months, inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by: (a) the Australian Federal Police or the ACC, as the case requires; and (b) law enforcement officers of the Australian Federal Police or the ACC, as the case requires.
(2)
For the purpose of an inspection under this section, the Ombudsman: (a) may, after notifying the chief officer of the Australian Federal Police or the ACC, enter at any reasonable time premises occupied by the Australian Federal Police or the ACC, as the case requires; and (b) is entitled to have full and free access at all reasonable times to all records of the Australian Federal Police or the ACC that are relevant to the inspection; and (c) may require a member of staff of the Australian Federal Police or the ACC to give the Ombudsman any information that the Ombudsman considers necessary, so long as:
(i) the information is in the member's possession, or the member has access to the information; and
(d) may, despite any other law, make copies of, and take extracts from, records of the Australian Federal Police or the ACC.
(ii) the information is relevant to the inspection; and
(3)
The chief officer of the Australian Federal Police or the ACC must ensure that members of staff of the Australian Federal Police or the ACC, as the case requires, give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
If the Ombudsman has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman: (a) by writing signed by the officer; and (b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend: (a) before a specified inspecting officer; and (b) at a specified place; and (c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4)
If the Ombudsman: (a) has reasonable grounds to believe that a law enforcement officer of the Australian Federal Police or the ACC is able to give information relevant to an inspection under this Division of the records of the Australian Federal Police or the ACC; and (b) does not know the officer's identity;
the Ombudsman may, by writing given to the chief officer of the Australian Federal Police or the ACC, as the case requires, require the chief officer, or a person nominated by the chief officer, to attend:
(c) before a specified inspecting officer; and (d) at a specified place; and (e) within a specified period or at a specified time on a specified day;to answer questions relevant to the inspection.
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
A person commits an offence if: (a) the person is required under section 3ZZVS to attend before an inspecting officer, to give information or to answer questions; and (b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be: (a) would contravene a law; or (b) would be contrary to the public interest; or (c) might tend to incriminate the person; or (d) would disclose one of the following:
(i) a legal advice given to a Minister, a Department or a prescribed authority;
(ii) a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege.
(2)
However, if the person is an individual: (a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and (b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3ZZVH of this Act or Part 7.4 or 7.7 of the Criminal Code.
(3)
If, at general law, an individual would otherwise be able to claim the privilege against self-exposure to a penalty (other than a penalty for an offence) in relation to giving information, answering a question, or giving access to a document, as and when required under this Division, the individual is not excused from giving the information, answering the question, or giving access to the document, as the case may be, on that ground.
Note:
A body corporate is not entitled to claim the privilege against self-exposure to a penalty.
(4)
Nothing in section 3ZZVH or in any other law prevents a law enforcement officer of the Australian Federal Police or the ACC from: (a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or (b) giving access to a record of the Australian Federal Police or the ACC, as the case requires, to an inspecting officer;
for the purposes of an inspection under this Division of the records of the Australian Federal Police or the ACC, as the case requires.
(5)
Nothing in section 3ZZVH or in any other law prevents a law enforcement officer from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (4).
(6)
The fact that a person is not excused under subsection (1) or (3) from giving information, answering a question or giving access to a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
(7)
In this section:
prescribed authority
has the same meaning as in the Ombudsman Act 1976.
The Ombudsman may, by writing, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman's functions or powers under this Division, other than section 3ZZVX.
(2)
A delegate must, on request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
The Ombudsman must make a written report to the Minister at 12 monthly intervals on the results of each inspection under section 3ZZVR.
(2)
The report must not include information which, if made public, could reasonably be expected to: (a) prejudice an investigation or prosecution; or (b) compromise any law enforcement agency's operational activities or methodologies.
(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
If: (a) information is purportedly obtained under an account takeover warrant; and (b) there is a defect or irregularity in relation to the warrant; and (c) but for that defect or irregularity, the warrant would be a sufficient authority for obtaining the information;
then:
(d) obtaining the information is taken to be as valid; and (e) the information obtained may be dealt with, or given in evidence in any proceeding;as if the warrant did not have that defect or irregularity.
(2)
A reference in subsection (1) to a defect or irregularity in relation to the warrant is a reference to a defect or irregularity (other than a substantial defect or irregularity): (a) in, or in connection with the issue of, a document purporting to be that warrant; or (b) in connection with the execution of that warrant or the purported execution of a document purporting to be that warrant.
A law enforcement officer may issue a written certificate signed by the officer setting out any facts the officer considers relevant with respect to: (a) anything done by the law enforcement officer, or by a person assisting or providing technical expertise to the law enforcement officer, in connection with the execution of an account takeover warrant; or (b) anything done by the law enforcement officer in connection with:
(i) the communication by a person to another person; or
(ii) the making use of; or
(iii) the making of a record of; or
information obtained under an account takeover warrant.
(iv) the custody of a record of;
(2)
A certificate issued under subsection (1) is admissible in evidence in any proceedings as prima facie evidence of the matters stated in the certificate.
If a person suffers: (a) loss of or serious damage to property; or (b) personal injury;
in the course of, or as a direct result of, the execution of an account takeover warrant, the Commonwealth is liable to pay to the person compensation as agreed between the Commonwealth and the person or, in default of agreement, as determined by action against the Commonwealth in:
(c) the Federal Court of Australia; or (d) the Supreme Court of a State or Territory.(2)
Subsection (1) does not apply if the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity.
(Repealed by No 24 of 2001)
This section sets out the rules that apply if, under a law of the Commonwealth relating to criminal matters, a function or power that is neither judicial nor incidental to a judicial function or power, is conferred on one or more of the following persons:
(aa) a Judge of the Federal Court of Australia; (ab) a Judge of the Federal Circuit and Family Court of Australia (Division 2); (a) a State or Territory judge; (b) a magistrate; (c) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1:
Magistrate is defined in section 16C of the Acts Interpretation Act 1901.
Note 2:
Justice of the Peace is defined in section 2B of the Acts Interpretation Act 1901.
The function or power is conferred on the person only in a personal capacity and not, in the case of a Judge of the Federal Court of Australia, Judge of the Federal Circuit and Family Court of Australia (Division 2), State or Territory judge or magistrate, as a court or a member of a court.
The person need not accept the function or power conferred.
(3A) Protection and immunity provided.A Judge of the Federal Court of Australia or a Judge of the Federal Circuit and Family Court of Australia (Division 2) performing a conferred function, or exercising a conferred power, has the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
A State or Territory judge or magistrate performing a conferred function, or exercising a conferred power, has the same protection and immunity as if he or she were performing that function, or exercising that power, as, or as a member of, a court (being the court of which the judge or magistrate is a member).
(5)
A person referred to in paragraph (1)(c) performing a conferred function, or exercising a conferred power, has the same protection and immunity as he or she would have in performing functions and powers as part of the person's employment with a State or Territory court, as the case may be.
(6) This section applies regardless of when Commonwealth law made.
This section applies whether the law conferring a function or power was made before, on or after, the commencement of this section.
(6A) Contrary intention.Despite subsection (1), a rule set out in this section does not apply if the contrary intention appears.
In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.
The Governor-General may make arrangements with:
(a) the Governor of a State (excluding the Northern Territory); and
(b) the Chief Minister for the Australian Capital Territory; and
(c) the Administrator of the Northern Territory;
(d) (Repealed by No 59 of 2015)
for the performance of functions, and the exercise of powers, that are neither judicial nor incidental to a judicial function or power, conferred by a law of the Commonwealth relating to criminal matters on:
(e) a State or Territory judge; or
(f) a magistrate; or
(g) a Justice of the Peace or other person:
(i) employed in a State or Territory court; and
(ii) authorised to issue search warrants, or warrants of arrest.
Note 1:
Magistrate is defined in section 16C of the Acts Interpretation Act 1901.
Note 2:
Justice of the Peace is defined in section 2B of the Acts Interpretation Act 1901.
The validity of the performance of a function, or the exercise of a power, is not affected by the absence of an arrangement under this section covering the performance of the function or exercise of the power.
4AAB(3) This section applies regardless of when Commonwealth law made.This section applies to functions or powers conferred by laws made before, on or after the commencement of this section.
4AAB(4) A law of the Commonwealth relating to criminal matters.In this section, a reference to a law of the Commonwealth relating to criminal matters includes a reference to this Act.
For the purposes of this Act, a fund is a widely-held complying superannuation fund if:
(a) it has 5 or more members; and
(b) it satisfies the test in either subsection (2) or (3).
A fund satisfies the test in this subsection at a particular time during a year of income of the fund (within the meaning of the Income Tax Assessment Act 1936) if it is a complying superannuation fund for the purposes of Part IX of that Act in relation to the year of income.
4A(3) Non-resident funds.A fund satisfies the test in this subsection if:
(a) it is a superannuation fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and
(b) it is a non-resident superannuation fund (within the meaning of the Income Tax Assessment Act 1936); and
(c) it is established for the sole or principal purpose of providing retirement benefits for its members; and
(d) it complies with the applicable laws of a foreign country that regulate funds established for that purpose.
In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:
penalty unit
means the amount of $330 (subject to indexation under subsection (3)).
(1A)
If the amount of a penalty unit is indexed under subsection (3), the Minister must, by notifiable instrument, publish the amount of a penalty unit. However, a failure by the Minister to do so does not invalidate the indexation.
(2)
In this section:
Territory Ordinance
means an ordinance that:
(a) was made under an Act providing for the acceptance, administration or government of a Territory; and
(b) has not become an enactment of the Australian Capital Territory;
and includes a regulation made under such an ordinance.
Indexation of penalty unit
(3)
On 1 July 2026 and each third 1 July following that day (an indexation day ), the dollar amount mentioned in subsection (1) is replaced by the amount worked out using the following formula:
| Indexation factor
for the indexation day |
× | Dollar amount
immediately before the indexation day |
(4)
The indexation factor for an indexation day is the number worked out using the following formula:
|
Index number for the reference quarter
Index number for the base quarter |
where:
base quarter
means the March quarter 3 years before the reference quarter.
index number
, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.
March quarter
means a quarter ending on 31 March.
reference quarter
means the March quarter immediately before the indexation day.
(5)
An indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more).
(6)
Amounts worked out under subsection (3) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).
(7)
Calculations under subsection (4): (a) are to be made using only the index numbers published in terms of the most recently published index reference period; and (b) are to be made disregarding index numbers that are published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).
Application of indexed penalty unit
(8)
If the dollar amount mentioned in subsection (1) is increased in accordance with subsection (3), the increased amount only applies to offences committed on or after the indexation day.
SECTION 4AB Conversion of pecuniary penalties expressed in dollar amounts to penalty units (1)
A reference in a law of the Commonwealth or in a Territory Ordinance to a pecuniary penalty of D dollars, where D is a number, is taken to be a reference to a pecuniary penalty of P penalty units, where P is:
(a) if D ÷ 100 is a whole number-that whole number; or
(b) if D ÷ 100 is not a whole number-the next highest whole number.
(2)
Subsection (1) does not apply to a reference to the maximum amount of a penalty that is not imposed by a court, or by a service tribunal under the Defence Force Discipline Act 1982.
(3)
Subsection (1) does not apply to:
(a) section 76 of the Competition and Consumer Act 2010; or
(b) (Repealed by No 55 of 2001)
(c) a provision of a law of the Commonwealth prescribed for the purposes of this subsection.
(4)
In this section:
Territory Ordinance
has the same meaning as in section 4AA.
SECTION 4B Pecuniary penalties-natural persons and bodies corporate (1)
A provision of a law of the Commonwealth relating to indictable offences or summary offences shall, unless the contrary intention appears, be deemed to refer to bodies corporate as well as to natural persons.
(2)
Where a natural person is convicted of an offence against a law of the Commonwealth punishable by imprisonment only, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated using the formula:
Term of Imprisonment x 5
where:
Term of Imprisonment
is the maximum term of imprisonment, expressed in months, by which
the offence is punishable.
(2A)
Where a natural person is convicted of an offence against a law of the Commonwealth in respect of which a court may impose a penalty of imprisonment for life, the court may, if the contrary intention does not appear and the court thinks it appropriate in all the circumstances of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary penalty not exceeding 2,000 penalty units.
(3)
Where a body corporate is convicted of an offence against a law of the Commonwealth, the court may, if the contrary intention does not appear and the court thinks fit, impose a pecuniary penalty not exceeding an amount equal to 5 times the amount of the maximum pecuniary penalty that could be imposed by the court on a natural person convicted of the same offence.
(3A)
Where an Act (whether enacted before or after the commencement of this subsection) confers power to make an instrument (including rules, regulations or by-laws but not including a law of a Territory) and specifies the maximum pecuniary penalty that can be imposed for offences created by such an instrument, then:
(a) unless the contrary intention appears, the specified penalty is taken to be the maximum penalty that the instrument can prescribe for such offences by natural persons; and
(b) where a body corporate is convicted of such an offence-the specifying of that penalty is not to be treated as an indication of a contrary intention for the purposes of applying subsection (3).
(4)
Where under a law of the Commonwealth any forfeiture, penalty or reparation is paid to a person aggrieved, it is payable to a body corporate where the body corporate is the person aggrieved.
SECTION 4C Offences under 2 or more laws (1)
Where an act or omission constitutes an offence:
(a) under 2 or more laws of the Commonwealth; or
(b) both under a law of the Commonwealth and at common law;
the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.
(2)
Where an act or omission constitutes an offence under both:
(a) a law of the Commonwealth and a law of a State; or
(b) a law of the Commonwealth and a law of a Territory;
and the offender has been punished for that offence under the law of the State or the law of the Territory, as the case may be, the offender shall not be liable to be punished for the offence under the law of the Commonwealth.
(3)
Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected merely because the act or omission also constitutes an offence against a law of the Commonwealth.
SECTION 4D Penalties (1)
Except so far as the contrary intention appears, a penalty, whether pecuniary or otherwise, set out at the foot of any provision of an Act as described in a paragraph of subsection (1A) indicates:
(a) if the provision expressly creates an offence - that the offence is punishable on conviction by a penalty not exceeding the penalty so set out; or
(b) in any other case - that contravention of the provision is an offence against the provision, punishable on conviction by a penalty not exceeding the penalty so set out.
(1A)
Subsection (1) applies to a penalty set out:
(a) at the foot of a section of an Act; or
(b) at the foot of a subsection of an Act, but not at the foot of the section containing the subsection; or
(c) at the foot of a clause of any Schedule to an Act; or
(d) at the foot of a subclause of any Schedule to an Act, but not at the foot of the clause containing the subclause.
(1B)
Subsection (1) does not affect the operation of subsection 4B(2), (2A) or (3).
(2)
Subsection (1) applies to any instrument made under an Act (including rules, regulations or by-laws but not including a law of a Territory) as if the instrument were an Act and as if each such rule, regulation or by-law were a section of an Act.
SECTION 4E 4E Pecuniary penalties
A pecuniary penalty for an offence against a law of the Commonwealth may, unless the contrary intention appears, be recovered in any court of summary jurisdiction. SECTION 4F Effect of alterations in penalties (1)
Where a provision of a law of the Commonwealth increases the penalty or maximum penalty for an offence, the penalty or maximum penalty as increased applies only to offences committed after the commencement of that provision.
(2)
Where a provision of a law of the Commonwealth reduces the penalty or maximum penalty for an offence, the penalty or maximum penalty as reduced extends to offences committed before the commencement of that provision, but the reduction does not affect any penalty imposed before that commencement.
SECTION 4G 4G Indictable offences
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears. SECTION 4H 4H Summary offences
Offences against a law of the Commonwealth, being offences which:
(a) are punishable by imprisonment for a period not exceeding 12 months; or
(b) are not punishable by imprisonment;
are summary offences, unless the contrary intention appears.
SECTION 4J Certain indictable offences may be dealt with summarily (1)Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.
(2)
Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.
(3)
Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose: (a) where the offence is punishable by imprisonment for a period not exceeding 5 years - a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or (b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years - a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.
(4)
A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.
(5)
Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (4), the court may impose a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both.
(6)
A court of summary jurisdiction shall not impose under subsection (3) or (5): (a) a sentence of imprisonment for a period exceeding the maximum period that could have been imposed had the offence been tried on indictment; (b) a fine exceeding the maximum fine that could have been imposed had the offence been so tried; or (c) both a sentence of imprisonment and a fine if the offence is punishable on trial on indictment by a sentence of imprisonment or a fine, but not both.
(7)
This section does not apply to an offence against: (a) (Repealed by No 67 of 2018) (b) Division 80 (other than Subdivision CA) of the Criminal Code (treason, urging violence and advocating terrorism or genocide); or (c) Division 82 of the Criminal Code (sabotage); or (d) Division 91 of the Criminal Code (espionage); or. (e) Division 92 of the Criminal Code (foreign interference).
SECTION 4JA Some indictable offences punishable by fine only may be dealt with summarily (1)
A court of summary jurisdiction may hear and determine an indictable offence if:
(a) the offence is not punishable by imprisonment; and
(b) the pecuniary penalty for the offence is not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate; and
(c) the defendant and prosecution consent.
(2)
If the defendant is convicted, the court may impose a pecuniary penalty of:
(a) not more than 60 penalty units for an individual or 300 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 300 penalty units for an individual or 1,500 penalty units for a body corporate; or
(b) not more than 120 penalty units for an individual or 600 penalty units for a body corporate if the offence would be punishable on indictment by a pecuniary penalty of not more than 600 penalty units for an individual or 3,000 penalty units for a body corporate.
However, the court may not impose a pecuniary penalty greater than the penalty that could have been imposed if the offence had been prosecuted on indictment.
(3)
This section has effect subject to any contrary intention indicated by the law creating the offence.
(4)
Without limiting subsection (3), this section does not apply to an indictable offence:
(a) created by a law that provides that the offence may be heard and determined by a court of summary jurisdiction; or
(b) described in subsection 4J(4) (about offences relating to property valued at $5,000 or less).
SECTION 4K Continuing and multiple offences (1)
Where, under a law of the Commonwealth, an act or thing is required to be done within a particular period or before a particular time, then, unless the contrary intention appears, the obligation to do that act or thing continues, notwithstanding that the period has expired or the time has passed, until the act or thing is done.
(2)
Where a refusal or failure to comply with a requirement referred to in subsection (1) is an offence against a law of the Commonwealth, a person commits an offence in respect of each day during which the person refuses or fails to comply with that requirement, including the day of a conviction for any such offence or any later day.
(3)
Charges against the same person for any number of offences against the same provision of a law of the Commonwealth may be joined in the same information, complaint or summons if those charges are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character.
(4)
If a person is convicted of 2 or more offences referred to in subsection (3), the court may impose one penalty in respect of both or all of those offences, but that penalty shall not exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
SECTION 4L 4L Specified defences not to preclude other defences
Where a provision of a law of the Commonwealth provides a defence to a particular offence, the provision does not, unless the contrary intention appears, prevent the use of any defence that is otherwise available. SECTION 4M 4M Children under 10
A child under 10 years old cannot be liable for an offence against a law of the Commonwealth. SECTION 4N Children over 10 but under 14 (1)
A child aged 10 years or more but under 14 years old can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong.
(2)
The question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving this is on the prosecution.
SECTION 5 5 Aiders and abettors
(Repealed by No 24 of 2001)
Any person who receives or assists another person, who has, to his or her knowledge, committed any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence commits an offence.
Penalty: Imprisonment for 2 years.
(Repealed by No 24 of 2001)
(Repealed by No 24 of 2001)
Any constable may, without warrant, seize any articles which are forfeited or which he or she has reasonable ground to believe are forfeited under any law of the Commonwealth, and take them before a court of summary jurisdiction.
(2)
Where articles are taken before a court of summary jurisdiction under subsection (1), the court shall inquire into the matter and:
(a) if the court is satisfied that the articles are forfeited-shall order that the articles be condemned; or
(b) if the court is not so satisfied-shall order that the articles be delivered to such person as the court is satisfied is entitled to the articles.
(2A)
A court of summary jurisdiction may, before inquiring into a matter under subsection (2), require notice of the inquiry to be given to such persons as the court thinks fit.
(3)
Where any prosecution is pending, an order for the condemnation or the delivery to any persons of any articles relating thereto shall not be made until the prosecution is determined.
(4)
All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9A.
SECTION 9A 9A Forfeited articles to be dealt with by Official Trustee
Where articles are transferred to the Official Trustee under subsection 9(4), the Official Trustee must, subject to any direction by the Minister administering the Proceeds of Crime Act 2002 given in a particular case:
(a) sell or otherwise dispose of the articles; and
(b) apply the proceeds of the sale or disposition in payment of the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in section 9B payable to or incurred by it in connection with the sale or disposition; and
(c) credit the remainder of those proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act 2002.
The regulations may make provision in relation to:
(a) the costs, charges and expenses incurred in connection with; and
(b) the Official Trustee's remuneration in respect of;
the performance or exercise by the Official Trustee of functions, duties or powers under section 9A.
(2)
An amount equal to each amount of remuneration that the Official Trustee receives under the regulations is to be paid to the Commonwealth.
(3)
Where there are no regulations in relation to a matter referred to in subsection (1):
(a) the regulations referred to in section 288 of the Proceeds of Crime Act 2002 apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and
(b) a reference in subsection (1) or (2) to regulations is taken to be a reference to the regulations referred to in section 288 of the Proceeds of Crime Act 2002.
SECTION 13 13 Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. SECTION 14 14 Proof of exceptions etc.
(Repealed by No 24 of 2001)
Where a person is charged, before a court of summary jurisdiction, with an offence against the law of the Commonwealth, if, from the absence of witnesses or from any other reasonable cause, it becomes necessary or advisable to defer the hearing of the case, the court before whom the accused person appears or is brought, may:
(a) by warrant from time to time remand the defendant to some gaol, lock-up, or other place of custody for such period as the court shall deem necessary to be there kept until the time appointed for continuing the hearing; or
(b) order the discharge of the defendant upon his or her entering into a recognizance conditioned for his or her appearance at the time and place appointed for continuing the hearing. SECTION 15AA Bail not to be granted in certain cases (1)
Despite any other law of the Commonwealth, a bail authority must not grant bail to a person covered by subsection (2) or (2A), in relation to an offence against a law of the Commonwealth, unless the bail authority is satisfied that exceptional circumstances exist to justify bail.
Note:
For persons under 18 years of age, see subsection (3AA).
Persons covered by this section
(2)
This subsection covers a person (the defendant ) charged with, or convicted of, any of the following offences: (a) a terrorism offence; (b) an offence against a law of the Commonwealth, if:
(i) a physical element of the offence is that the defendant engaged in conduct that caused the death of a person; and
(c) an offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if:
(ii) the fault element for that physical element is that the defendant intentionally engaged in that conduct (whether or not the defendant intended to cause the death, or knew or was reckless as to whether the conduct would result in the death);
(i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or
(d) an ancillary offence against a provision of Division 80 (other than Subdivision CA) (treason, urging violence and advocating terrorism or genocide) or Division 91 (espionage) of the Criminal Code if, had the defendant engaged in conduct that is a physical element of the primary offence to which the ancillary offence relates, there would have been a substantial risk that the conduct would have caused the death of a person; (e) an offence against subsection 92.2(1) or 92.3(1) (intentional or reckless offence of foreign interference), if:
(ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person;
(i) the death of a person is alleged to have been caused by conduct that is a physical element of the offence; or
(ii) conduct that is a physical element of the offence carried a substantial risk of causing the death of a person.
(2A)
This subsection covers the following persons: (a) a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism); (b) a person who the bail authority is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.
(3)
To avoid doubt, the express reference in paragraph (2)(d) to an ancillary offence does not imply that references in paragraphs (2)(a), (b) or (c) to an offence do not include references to ancillary offences.
Entering reasons in court records if court grants bail
(3AAA)
If the bail authority is a court and it grants bail, the court must: (a) state its reasons; and (b) cause those reasons to be entered in the court's records.
Determining exceptional circumstances in relation to persons under 18 years of age
(3AA)
In determining whether exceptional circumstances exist to justify granting bail to a person who is under 18 years of age, without limiting the matters the bail authority may have regard to, the bail authority must have regard to: (a) the protection of the community as the paramount consideration; and (b) the best interests of the person as a primary consideration.
Appealing decisions of bail authority
(3A)
Despite any law of the Commonwealth, the Director of Public Prosecutions, or a person covered by subsection (2) or (2A), may appeal against a decision of a bail authority: (a) to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is satisfied that exceptional circumstances exist; or (b) to refuse to grant bail to a person covered by subsection (2) or (2A) on the basis that the bail authority is not satisfied that exceptional circumstances exist.
(3B)
An appeal under subsection (3A): (a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (3A), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and (b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.
Staying decisions to grant bail if decision appealed
(3C)
If: (a) a bail authority decides to grant bail to a person covered by subsection (2) or (2A); and (b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision under subsection (3A);
the decision to grant bail is stayed with effect from the time of the notification.
(3D)
A stay under subsection (3C) ends: (a) when a decision on the appeal is made; or (b) when the Director of Public Prosecutions notifies:
(i) the bail authority; or
that he or she does not intend to proceed with the appeal; or (c) 72 hours after the stay comes into effect;
(ii) if an appeal has already been instituted in a court - the court;
whichever occurs first.
Relationship with laws of States and Territories
(4)
To avoid doubt, except as provided by subsections (1), (3AA), (3A), (3B), (3C) and (3D), this section does not affect the operation of a law of a State or a Territory.
Note:
These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
Definitions
(5)
In this section:
ancillary offence
has the meaning given in the Criminal Code.
bail authority
(Repealed by No 171 of 2006)
primary offence
has the meaning given in the Criminal Code.
SECTION 15AAA Bail not to be granted to various persons charged with, or convicted of, certain Commonwealth child sex offences (1)
Despite any other law of the Commonwealth, a bail authority must not grant bail to a person who:
(a) is charged with, or convicted of, an offence described in column 1 of an item in the table in section 16AAA; or
(b) is charged with, or convicted of, an offence described in column 1 of an item in the table in subsection 16AAB(2) and who has previously been convicted of a child sexual abuse offence;
unless the bail authority is satisfied by the person that circumstances exist to grant bail.
(2)
In addition to any other matters, in determining whether the bail authority is satisfied that circumstances exist to grant bail to a person, the bail authority must take into account such of the following matters as are relevant and known to the bail authority:
(a) whether the bail authority considers that the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail;
(b) whether the bail authority considers that the person would be likely to commit a further offence if the person were granted bail;
(c) whether the bail authority considers that the person would be likely to put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail;
(d) whether the bail authority considers that the person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail;
(e) whether the person was aged 18 years or over when the offence was committed;
(f) if the person has pleaded guilty to the charge in respect of the offence or been convicted of the offence - whether the bail authority considers that the person would not be likely to undertake a rehabilitation program, or not be likely to comply with any bail conditions relating to rehabilitation or treatment, while released on bail.
(3)
If the bail authority is a court and it grants bail, the court must:
(a) state its reasons; and
(b) cause those reasons to be entered in the court's records.
(4)
Despite any law of the Commonwealth, the Director of Public Prosecutions or the person may appeal against a decision of a bail authority:
(a) to grant bail to the person despite subsection (1) on the basis that the bail authority is satisfied that circumstances exist to grant bail; or
(b) to refuse to grant bail to the person on the basis that the bail authority is not satisfied that circumstances exist to grant bail.
(5)
An appeal under subsection (4):
(a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (4), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and
(b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.
(6)
If:
(a) a bail authority decides to grant bail to the person; and
(b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision mentioned in subsection (4);
the decision to grant bail is stayed with effect from the time of the notification.
(7)
A stay under subsection (6) ends:
(a) when a decision on the appeal is made; or
(b) when the Director of Public Prosecutions notifies:
(i) the bail authority; or
that he or she does not intend to proceed with the appeal; or
(ii) if an appeal has already been instituted in a court - the court;
(c) 72 hours after the stay comes into effect;
whichever occurs first.
(8)
To avoid doubt, except as provided by subsections (1), (4), (5), (6) and (7), this section does not affect the operation of a law of a State or a Territory.
Note:
These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
In determining whether to grant bail to a person charged with, or convicted of, an offence against a law of the Commonwealth or the Northern Territory, or in determining conditions to which bail granted to such a person should be subject, a bail authority: (a) must take into consideration the potential impact of granting bail on:
(i) any person against whom the offence is, or was, alleged to have been committed; and
(b) must not take into consideration any form of customary law or cultural practice as a reason for:
(ii) any witness, or potential witness, inproceedings relating to the alleged offence, or offence; and
(ii) excusing, justifying, authorising, requiring or lessening the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates; or
(ii) aggravating the seriousness of the alleged criminal behaviour to which the alleged offence relates, or the criminal behaviour to which the offence relates.
(2)
If a person referred to in subparagraph (1)(a)(i) or (ii) is living in, or otherwise located in, a remote community, the bail authority must also take into consideration that fact in considering the potential impact of granting bail on that person.
(3)
In paragraph (1)(b):
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(3A)
Paragraph (1)(b) does not apply in relation to an offence against the following: (a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984; (b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999; (c) section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986; (d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976; (e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; (f) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
(g) (Repealed by No 63 of 2023) (h) section 4 of the Aboriginal Land Act 1978 (NT); (i) sections 111, 112 and 113 of the Heritage Act 2011 (NT); (j) any other law prescribed by the regulations that relates to:
(i) entering, remaining on or damaging culturalheritage; or
(ii) damaging or removing a cultural heritage object.
(4)
To avoid doubt, except as provided by subsections (1), (2) and (3A), this section does not affect: (a) any other matters that a bail authority must, must not or may take into consideration in determining whether to grant bail or in determining conditions to which bail should be subject; or (b) the operation of a law of a State or a Territory.
Note:
Subsections (1) and (2) indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.
A law of a State or Territory relating to the enforcement or recovery of a fine imposed on an offender applies to a person convicted in the State or Territory of an offence against a law of the Commonwealth. The law applies:
(a) so far as it is not inconsistent with a law of the Commonwealth; and
(b) with the modifications (if any) made by or under this section.
(1AA)
If a law of a State or Territory requires or permits a person or authority other than a court to take action to impose a penalty described in subsection (1AB) for failure to pay a fine, the law applies under subsection (1) as if the law did not require or permit the person or authority to take the action but instead:
(a) allowed any person to apply to a court of summary jurisdiction of the State or Territory for an order imposing the penalty; and
(b) allowed the court to make the order; and
(c) provided for the order to have the same effect that the taking of the action by the person or authority has under the law without the modifications made by or under this subsection; and
(d) were subject to any prescribed modifications consequential on the other modifications described in this subsection, or facilitating the operation of the law with those modifications.
(1AB)
Subsection (1AA) applies in relation to any of the following penalties:
(a) (Repealed by No 24 of 2012)
(b) (Repealed by No 24 of 2012)
(c) (Repealed by No 24 of 2012)
(d) (Repealed by No 24 of 2012)
(e) community service by a person who failed to pay a fine;
(f) detention or imprisonment of a person who failed to pay a fine;
(g) a penalty that is similar to a penalty described in paragraph (e) or (f);
(h) a penalty prescribed by the regulations.
(1AC)
Jurisdiction is conferred on a court of summary jurisdiction of a State or Territory to make orders described in subsection (1AA).
(1ACA)
(Repealed by No 46 of 2011)
(1ACB)
To avoid doubt, if a court makes an order imposing a penalty for failure to pay a fine, whether or not the penalty is described in subsection (1AB), a person or authority other than a court may take action to enforce the penalty without making an application under paragraph (1AA)(a), even if the penalty is imposed as an alternative penalty.
(1AD)
If a law of a State or Territory requires or permits a court or a court officer to:
(a) refer a matter to a person or organisation; or
(b) notify a person or organisation; or
(c) provide information to a person or organisation;
in relation to the enforcement or recovery of a fine imposed by the court, the law applies under subsection (1) in relation to a federal court in the same way as it applies to a court of the State or Territory.
(1A)
Where there is a law of a State or Territory with respect to the enforcement or recovery of fines ordered to be paid by offenders (including a law described in subsection (1AA)) that applies in relation to fines ordered to be paid by offenders convicted by courts of summary jurisdiction:
(a) subsection (1) operates to require that law to apply and be applied to persons who are convicted summarily of federal offences by a federal court in the same manner as that law would apply and be applied if the federal court were a court of summary jurisdiction; and
(b) that subsection does not operate in relation to any law of that State or Territory that applies in relation to fines ordered to be paid by offenders convicted by superior courts.
(1B)
If a law of a State or Territory:
(a) is with respect to the enforcement or recovery of fines ordered to be paid by offenders (including a law described in subsection (1AA)); and
(b) applies in relation to fines ordered to be paid by offenders convicted on indictment;
subsection (1) operates to require that law to apply and be applied in the same manner to persons who are convicted on indictment of federal offences by a federal court.
(2)
Without limiting the generality of subsection (1), in the application to a person convicted of a federal offence of any State or Territory laws with respect to the enforcement or recovery of fines, a requirement that the amount of a fine be paid to a State or Territory office or officer is to be treated as a requirement that the amount of the fine be paid in accordance with the law of the Commonwealth.
(3)
Where a court imposes a sentence or sentences of imprisonment on a person in respect of a failure to pay a fine or fines imposed for a federal offence or offences, the court must direct that the sentence, or all the sentences, commence to be served from the earliest practicable day despite the fact that the person may, on that day, already be serving another sentence of imprisonment for a federal, State or Territory offence.
(4)
Despite subsection (3), a court may, where it is of the opinion that, in all the circumstances of the case, it is more appropriate to do so, direct that a period of imprisonment imposed on a person in respect of a failure to pay a fine imposed in respect of a federal offence commence to be served during, or at the end of, a period of imprisonment imposed for a similar failure in respect of another federal offence.
(5)
In this section:
federal offence
means an offence against the law of the Commonwealth.
modifications
includes additions, omissions and substitutions.
SECTION 15B Time for commencement of prosecutions (1)
Subject to subsection (1B), a prosecution of an individual for an offence against any law of the Commonwealth may be commenced as follows:
(a) if the maximum penalty which may be imposed for the offence in respect of an individual is, or includes, a term of imprisonment of more than 6 months in the case of a first conviction-at any time;
(b) in any other case-at any time within one year after the commission of the offence.
(1A)
A prosecution of a body corporate for an offence against any law of the Commonwealth may be commenced as follows:
(a) if the maximum penalty which may be imposed for the offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction-at any time;
(b) in any other case-at any time within one year after the commission of the offence.
(1B)
A prosecution of an individual for an offence that is taken to have been committed because of section 11.2 or 11.2A of the Criminal Code, or against another law of the Commonwealth dealing with aiding and abetting, in relation to an offence committed by a body corporate may be commenced as follows:
(a) if the maximum penalty which may be imposed for the principal offence in respect of a body corporate is, or includes, a fine of more than 150 penalty units in the case of a first conviction-at any time;
(b) in any other case-at any time within one year after the commission of the offence by the individual.
(2)
Notwithstanding any provision in any law of the Commonwealth passed before the commencement of this Act and providing any shorter time for the commencement of the prosecution, any prosecution for an offence against the law may be commenced at any time within one year after the commission of the offence.
(3)
Where by any law of the Commonwealth any longer time than the time provided by this section is provided for the commencement of a prosecution in respect of an offence against that law, a prosecution in respect of the offence may be commenced at any time within that longer time.
SECTION 15C Form of indictments, informations and summonses (1)
At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.
(2)
If in any such case the court considers that the defendant has been misled by the form in which the indictment, information or summons has been made out, it may adjourn the hearing of the case for such period as it thinks fit and may make such order as to the costs of the adjournment as it thinks proper.
(3)
The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant.
SECTION 15D 15D Burden of proof of lawful authority
(Repealed by No 24 of 2001)
Nothing in this Act shall derogate from any power or privilege of either House of the Parliament or of the members or committees of either House of Parliament as existing at the commencement of this Act. SECTION 15F 15F Civil rights not affected
Nothing in this Act shall affect the right of any person aggrieved by any act or omission which is punishable as an offence against this Act to institute civil proceedings in any court in respect of such act or omission. SECTION 15FA 15FA Nature of functions conferred on magistrate
(Repealed by No 22 of 2001)
The main objects of this Part are:
(a) to provide for the authorisation, conduct and monitoring of controlled operations; and
(b) to exempt from criminal liability, and to indemnify from civil liability:
(i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and
(ii) certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.
Subject to subsection (2) and section 15HZ, this Part is not intended to limit a discretion that a court has:
(a) to admit or exclude evidence in any proceedings; or
(b) to stay criminal proceedings in the interests of justice.
(2)
In determining whether evidence should be admitted of excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if:
(a) both:
(i) the person was a participant in a controlled operation authorised under this Part acting in the course of the controlled operation; and
(ii) the criminal activity was controlled conduct; or
(b) both:
(i) the person was a participant in an operation authorised under a corresponding State controlled operations law acting in the course of that operation; and
(ii) the criminal activity was conduct constituting an offence for which a person would, but for section 15HH, be criminally responsible.
It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.
In this Part:
ACC authorising officer
has the meaning given by subsection 15GF(3).
ACLEI authorising officer
(Repealed by No 89 of 2022)
AFP authorising officer
has the meaning given by subsection 15GF(2).
appropriate authorising officer
, for a controlled operation authorised under this Part, means the following:
(aa) if the controlled operation is a major controlled operation conducted by the Australian Federal Police - the Commissioner or a Deputy Commissioner;
(a) if the controlled operation is not a major controlled operation conducted by the Australian Federal Police - any AFP authorising officer;
(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer - any ACC authorising officer;
(c) if the authority to conduct the controlled operation was granted by a NACC authorising officer - any NACC authorising officer.
authorising agency
, for a controlled operation authorised under this Part, means the following:
(a) if the authority to conduct the controlled operation was granted by an AFP authorising officer - the Australian Federal Police;
(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer - the ACC;
(c) if the authority to conduct the controlled operation was granted by a NACC authorising officer - the National Anti-Corruption Commission.
authorising officer
has the meaning given by subsection 15GF(1).
authority
means an authority (whether formal or urgent) to conduct a controlled operation granted under section 15GI, and includes any such authority as varied.
chief officer
means the following:
(a) in relation to the Australian Federal Police - the Commissioner;
(b) in relation to the police force of a State or Territory - the Commissioner of Police in that police force or the person holding equivalent rank;
(c) in relation to the Immigration and Border Protection Department - the Secretary of that Department;
(d) in relation to the ACC - the Chief Executive Officer of the ACC;
(e) in relation to the National Anti-Corruption Commission - the National Anti-Corruption Commissioner.
civilian participant
in a controlled operation means a participant in the controlled operation who is not a law enforcement officer.
conduct
has the same meaning as in the Criminal Code.
controlled conduct
means conduct constituting an offence for which a person would, but for section 15HA, be criminally responsible.
controlled operation
has the meaning given by subsection 15GD(1).
corresponding State controlled operations law
means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
disciplinary or legal action
, in relation to a staff member of a target agency, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
(a) means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and
(b) includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979.
(a) a participant in a controlled operation; or
(b) any of the following:
(i) the Commissioner or an AFP appointee (within the meaning of the Australian Federal Police Act 1979);
(ii) a member of the police force of a State or Territory;
(iii) a staff member (within the meaning of section 12 of the National Anti-Corruption Commission Act 2022) of the Immigration and Border Protection Department;
(iv) the Chief Executive Officer of the ACC, a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002) or a person appointed under subsection 46B(1) of that Act;
(v) a staff member of the NACC (within the meaning of the National Anti-Corruption Commission Act 2022); or
(c) an officer or staff member of a Commonwealth agency, or a State or Territory government entity, with which the National Anti-Corruption Commissioner is jointly conducting a corruption investigation under paragraph 41(1)(b) of the National Anti-Corruption Commission Act 2022, if a controlled operation relates to the investigation; or
(d) an officer (within the meaning of section 35 of the Ombudsman Act 1976); or
(e) a person who has entered into a contract, agreement or arrangement with:
(i) a law enforcement agency; or
(ii) a government agency, or an integrity agency, mentioned in paragraph (c); or
(iii) the Commonwealth Ombudsman;
(other than as a person mentioned in paragraphs (b) to (d)).
exercise
a function includes perform a duty.
formal application
has the meaning given by paragraph 15GH(2)(a).
formal authority
has the meaning given by paragraph 15GJ(1)(a).
formal variation application
:
(a) in relation to an application under subsection 15GP(1) - has the meaning given by paragraph 15GP(3)(a); and
(b) in relation to an application under subsection 15GU(1) - has the meaning given by paragraph 15GU(3)(a).
formal variation of authority
:
(a) in relation to a variation made by an appropriate authorising officer - has the meaning given by paragraph 15GR(1)(a); and
(b) in relation to a variation made by a nominated Tribunal member - has the meaning given by paragraph 15GW(1)(a).
function
includes a power, authority or duty.
integrity testing authority
means an authority granted under Part IABA, and includes any such authority as varied.
integrity testing controlled operation authority
means an authority granted under section 15GI on the basis that an integrity testing authority is in effect.
Note:
See subparagraph 15GI(2)(a)(ii).
law enforcement agency
means any of the following:
(a) the Australian Federal Police;
(b) the police force of a State or Territory;
(c) the Immigration and Border Protection Department;
(d) the ACC;
(e) the National Anti-Corruption Commission.
law enforcement participant
in a controlled operation means a participant in the controlled operation who is a law enforcement officer.
major controlled operation
has the meaning given by subsection 15GD(2).
NACC authorising officer
has the meaning given by subsection 15GF(4).
nominated Tribunal member
means a person in respect of whom a nomination under subsection 15GG(1) is in force.
participant
in a controlled operation means a person who is authorised under this Part to engage in controlled conduct for the purposes of the controlled operation.
person targeted
, in relation to a controlled operation, means the person about whom, as a result of the controlled operation:
(a) it is intended to obtain evidence; or
(b) evidence is being, or has been, obtained.
principal law enforcement officer
, for a controlled operation authorised under this Part, means the Australian law enforcement officer specified in the authority to conduct the controlled operation as the officer who is responsible for the conduct of the controlled operation.
serious Commonwealth offence
has the meaning given by subsections 15GE(1) and (3).
serious State offence that has a federal aspect
has the meaning given by subsection 15GE(4).
staff member
of a target agency has the same meaning in relation to that agency as in section 12 of the National Anti-Corruption Commission Act 2022.
target agency
means any of the following:
(a) the ACC;
(b) the Australian Federal Police;
(c) the Immigration and Border Protection Department;
(d) any other Commonwealth agency (within the meaning of the National Anti-Corruption Commission Act 2022).
urgent application
has the meaning given by paragraph 15GH(2)(b).
urgent authority
has the meaning given by paragraph 15GJ(1)(b).
urgent variation application
:
(a) in relation to an application under subsection 15GP(1) - has the meaning given by paragraph 15GP(3)(b); and
(b) in relation to an application under subsection 15GU(1) - has the meaning given by paragraph 15GU(3)(b).
urgent variation of authority
:
(a) in relation to a variation made by an appropriate authorising officer - has the meaning given by paragraph 15GR(1)(b); and
(b) in relation to a variation made by a nominated Tribunal member - has the meaning given by paragraph 15GW(1)(b).
A controlled operation is an operation that:
(a) involves the participation of law enforcement officers; and
(b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and
(c) may involve a law enforcement officer or other person in conduct that would, apart from section 15HA, constitute a Commonwealth offence or an offence against a law of a State or Territory.
Note:
Section 15GN specifies when a controlled operation begins and ends.
(2)
A major controlled operation is a controlled operation that is likely to:
(a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or
(b) continue for more than 3 months; or
(c) be directed against suspected criminal activity that includes a threat to human life.
Note:
Section 15GN specifies when a controlled operation begins and ends.
Meaning of serious Commonwealth offence
(1)
For the purposes of this Part, serious Commonwealth offence means a Commonwealth offence that: (a) involves a matter mentioned in subsection (2); and (b) is punishable on conviction by imprisonment for a period of 3 years or more.
(2)
The matters are as follows: (a) theft; (b) fraud; (c) tax evasion; (d) currency violations; (e) controlled substances; (f) illegal gambling; (g) obtaining financial benefit by vice engaged in by others; (h) extortion; (i) money laundering; (j) perverting the course of justice; (k) bribery or corruption of, or by, an officer of the Commonwealth, of a State or of a Territory; (l) bankruptcy and company violations; (m) harbouring of criminals (n) forgery (including forging of passports); (o) armament dealings; (p) illegal importation or exportation of fauna into or out of Australia; (q) espionage, sabotage or threats to national security; (r) misuse of a computer or electronic communications; (s) people smuggling; (t) slavery; (u) piracy; (v) the organisation, financing or perpetration of sexual servitude or a sexual offence against a person who is under 18 outside Australia; (w) dealings in child abuse material; (x) importation of prohibited imports; (y) exportation of prohibited exports; (z) violence; (za) firearms; (zb) a matter that is of the same general nature as a matter mentioned in one of the preceding paragraphs; (zc) a matter that is prescribed by the regulations for the purposes of this paragraph.
(3)
Without limiting subsections (1) and (2), an offence against one of the following provisions of the Criminal Code is a serious Commonwealth offence for the purposes of this Part: (a) Part 5.3 (Terrorism); (aa) Division 273A (Possession of child-like sex dolls etc.); (b) Subdivision B of Division 471 (Use of postal or similar service for child abuse material); (c) Subdivision C of Division 471 (Use of postal or similar service involving sexual activity with person under 16); (d) Subdivision D of Division 474 (Use of carriage service for child abuse material); (e) Subdivision F of Division 474 (Use of carriage service involving sexual activity with person under 16); (f) Subdivision HA of Division 474 (Use of carriage service for violent extremist material).
Meaning of serious State offence that has a federal aspect
(4)
For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that would be a serious Commonwealth offence if it were a Commonwealth offence.
Note:
For when a State offence has a federal aspect , see section 3AA.
Any of the following is an authorising officer for a controlled operation: (a) if the operation is a major controlled operation and the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police - the Commissioner or a Deputy Commissioner; (b) if the operation is not a major controlled operation, but the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police - any AFP authorising officer; (c) if the investigation of the offence to which the controlled operation relates is within the functions of the ACC - any ACC authorising officer; (d) if the controlled operation relates to the conduct of a corruption investigation (within the meaning of the National Anti-Corruption Commission Act 2022) - any NACC authorising officer.
(2)
The following are AFP authorising officers : (a) the Commissioner; (b) a Deputy Commissioner; (c) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.
(3)
The following are ACC authorising officers : (a) the Chief Executive Officer of the ACC; (b) a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.
(4)
The following are NACC authorising officers : (a) the National Anti-Corruption Commissioner; (b) a National Anti-Corruption Deputy Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022); (c) another staff member of the NACC (within the meaning of that Act) who:
(i) is an SES employee; and
(ii) is authorised in writing by the National Anti-Corruption Commissioner for the purposes of this paragraph.
The Minister administering the Administrative Review Tribunal Act 2024 (the ART Minister ) may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to deal with applications under subsection 15GU(1) (which deals with extending authorities for controlled operations beyond 3 months): (a) Deputy President; (b) a senior member; (c) a general member.
(d) (Repealed by No 60 of 2015)
(2)
Despite subsection (1), the ART Minister must not nominate a person who holds an appointment as a senior member appointed on a sessional basis or a general member of the Tribunal unless the person: (a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and (b) has been so enrolled for not less than 5 years;
(3)
A nomination ceases to have effect if: (a) the nominated Tribunal member ceases to hold an appointment described in subsection (1); or (b) the ART Minister, by writing, withdraws the nomination.
(4)
A nominated Tribunal member has, in relation to the performance or exercise of a function or power conferred on a nominated Tribunal member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
An Australian law enforcement officer of a law enforcement agency may apply to an authorising officer for an authority to conduct a controlled operation on behalf of the law enforcement agency.
(2)
An application for an authority may be made:
(a) by means of a written document signed by the applicant (such an application isa formal application ); or
(b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the controlled operation - orally in person, or by telephone or any other means of communication (such an application is an urgent application ).
(3)
Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.
Note:
An urgent authority can be varied, but not so as to extend its duration - see sections 15GO and 15GS.
(4)
An application (whether formal or urgent) must:
(a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and
(b) state whether or not the proposed controlled operation, or any other controlled operation with respect to the same criminal activity, has been the subject of an earlier application (whether formal or urgent) for an authority or variation of an authority and, if so, whether or not the authority was given or the variation granted; and
(c) state the proposed period of effect of the authority, which must not exceed:
(i) in the case of a formal application - 3 months; and
(ii) in the case of an urgent application - 7 days.
(5)
An authorising officer may require an applicant to provide such additional information concerning the proposed controlled operation as is necessary for the proper consideration of the application.
(6)
As soon as practicable after making an urgent application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made.
An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GH(5): (a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or (b) refuse the application.
(2)
An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds: (a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and (c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) so far as the conduct involved in the controlled operation is not conducted online - that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not:
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
Note 1:
Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2:
The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).
(3)
To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF.
(4)
An authority granted under this section is not a legislative instrument.
An authority to conduct a controlled operation may be granted:
(a) in the case of a formal application (other than a formal application referred to in subparagraph (b)(ii) - by means of a written document, signed by the authorising officer (such an authority is a formal authority ); or
(b) in the case of:
(i) an urgent application; or
orally in person, or by telephone or any other means of communication (such an authority is an urgent authority ).
(ii) a formal application, if the authorising officer is satisfied that the delay caused by granting a formal authority may affect the success of the controlled operation;
(2)
Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority.
Note:
An urgent authority can be varied, but not so as to extend its duration - see sections 15GO and 15GS.
A formal authority must:
(a) state the name and rank or position of the person granting the authority; and
(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state that the application was a formal application; and
(d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da) in the case of an integrity testing controlled operation authority - identify the integrity testing authority concerned; and
(e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g) identify (to the extent known) the person or persons targeted; and
(h) specify the period of effect of the authority, being a period not exceeding 3 months; and
(i) specify any conditions to which the conduct of the controlled operation is subject; and
(j) state the date and time when the authority is granted; and
(k) identify the following details (to the extent to which they are known and are relevant):
(i) the nature and quantity of any illicit goods that will be involved in the controlled operation;
(ii) the foreign countries through which those goods are likely to pass in the course of the controlled operation;
(iii) the place or places at which those goods are likely to be dealt with by an officer of Customs;
(iv) if subparagraph (iii) does not apply - the place or places where those goods are likely to enter into Australia;
(v) the time or times when, and the day or days on which, those goods are likely to be dealt with by an officer of Customs.
(2)
An urgent authority must:
(a) state the name and rank or position of the person who granted the authority; and
(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and
(c) state whether the application was a formal application or an urgent application; and
(d) identify the nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in; and
(da) in the case of an integrity testing controlled operation authority - identify the integrity testing authority concerned; and
(e) state the identity of the persons authorised to engage in controlled conduct for the purposes of the controlled operation; and
(f) specify:
(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in; and
(g) identify (to the extent known) the person or persons targeted; and
(h) specify the period of effect of the authority, being a period not exceeding 7 days beginning on the day on which the authority was granted; and
(i) specify any conditions to which the conduct of the operation is subject; and
(j) state the date and time when the authority was granted.
(3)
A person is sufficiently identified for the purposes of paragraph (1)(e) or (2)(e) if the person is identified:
(a) by an assumed name under which the person is operating; or
(b) by a code name or code number;
as long as the chief officer of the authorising agency for the controlled operation can match the assumed name, code name or code number to the person's identity.
(4)
An authority must not identify persons for the purposes of paragraph (1)(e) or (2)(e) by identifying a class of persons.
If an authorising officer grants an urgent authority, the authorising officer must, within 7 days, issue a written record of the urgent authority that complies with subsection 15GK(2) to the principal law enforcement officer for the controlled operation.
S 15GL inserted by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. For application and transitional provisions, see note under Part IAB heading.
If an authorising officer in relation to a controlled operation becomes satisfied that the principal law enforcement officer for the controlled operation ceases for any reason to have responsibility for the controlled operation:
(a) the authorising officer may, by instrument in writing, nominate another person as the principal law enforcement officer for the controlled operation; and
(b) with effect from the execution of the instrument or such later time as is specified in the instrument, that other person becomes the principal law enforcement officer for the controlled operation.
An authority to conduct a controlled operation comes into force, and the controlled operation is taken to commence, at the time the authority is granted under section 15GI.
(2)
To avoid doubt, an urgent authority is granted when the authorising officer tells the applicant that the urgent authority is granted.
Note:
An authority is granted under subsection 15GI(1). Paragraph 15GJ(1)(b) enables an authority to be granted orally in specified circumstances.
(3)
An authority (whether formal or urgent) has effect for the period of effect specified in it under paragraph 15GK(1)(h) or (2)(h) unless:
(a) it is cancelled before the end of the period of effect; or
(b) in the case of a formal authority - the period of effect is extended under Subdivision B or C; or
(c) in the case of an integrity testing controlled operation authority - the integrity testing authority concerned (the earlier ITA ) stops being in effect under Part IABA (see section 15JJ).
Note:
For integrity testing controlled operation authorities, see subparagraph 15GI(2)(a)(ii).
(4)
Paragraph (3)(c) does not apply if a further integrity testing authority is granted under Part IABA that continues the effect of the earlier ITA.
An appropriate authorising officer may vary an authority:
(a) at any time on the authorising officer's own initiative; or
(b) on application under subsection 15GP(1).
(2)
A variation may:
(a) extend the period of effect of the authority (subject to subsections (3) and (4)); or
(b) authorise additional persons to engage in controlled conduct for the purposes of the controlled operation and specify:
(i) with respect to additional law enforcement participants - the nature of the controlled conduct that those participants may engage in; and
(ii) with respect to additional civilian participants - the particular controlled conduct (if any) that each such participant may engage in; or
(c) provide that specified persons are no longer authorised to engage in controlled conduct for the purposes of the controlled operation; or
(d) authorise participants in the controlled operation to engage in additional or alternative controlled conduct.
(3)
A variation cannot be made that has the effect of extending the period of effect of an urgent authority.
(4)
A formal authority must not be varied in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(5)
An authority must not be varied unless the authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation concerned, including an alteration that would change the nature of the criminal offences to which the controlled operation relates.
(6)
A variation is not a legislative instrument.
The principal law enforcement officer for a controlled operation, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply under this section to an appropriate authorising officer for a variation of an authority in respect of a matter mentioned in subsection 15GO(2).
(2)
An application cannot be made under subsection (1) for a variation that would extend the period of effect of a formal authority in such a way that the period of effect of the authority will, after the variation is made, exceed 3 months (including any previous extensions).
(3)
An application for the variation may be made:
(a) by means of a written document that is signed by the applicant (such an application is a formal variation application ); or
(b) if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the controlled operation to which the authority relates - orally in person, or by telephone or any other means of communication (such an application is an urgent variation application ).
(4)
More than one application for a variation under this section may be made in respect of the same authority. However, if an urgent variation of authority was granted as a result of an application under this section, the next application must be a formal variation application.
(5)
The application (whether a formal variation application or an urgent variation application) must state whether or not the controlled operation has been the subject of an earlier urgent variation application under this section and, if so:
(a) whether the urgent variation application was the last application under this section for a variation; and
(b) whether or not the variation was granted.
(6)
If the variation would extend the period of effect of a formal authority, the application (whether a formal variation application or an urgent variation application) must state the proposed period of the extension, which must not exceed:
(a) in the case of a formal variation application - the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation application - the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
(7)
The authorising officer to whom the application is made may require the applicant to provide such information concerning the proposed variation as is necessary for the authorising officer's proper consideration of the application.
(8)
As soon as practicable after making an urgent variation application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the authorising officer to whom the application was made.
After considering an application for a variation of an authority, and any additional information provided under subsection 15GP(7), an appropriate authorising officer: (a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or (b) may refuse the application.
(1A)
Despite subsection (1), an appropriate authorising officer must refer an application for a variation of an authority to the Commissioner or a Deputy Commissioner if varying the authority would have the effect that the controlled operation would be a major controlled operation by virtue of paragraph 15GD(2)(a).
(2)
An appropriate authorising officer must not vary an authority, whether on application or on the authorising officer's own initiative, unless the authorising officer is satisfied on reasonable grounds: (a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(b) that the nature and extent of the suspected criminal activity are such as to justify the variation; and (c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) so far as the conduct involved in the controlled operation is not conducted online - that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not:
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
Note 1:
Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2:
The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).
(3)
Despite subsection (2), an appropriate authorising officer (other than the Commissioner or a Deputy Commissioner) must not vary an authority on the authorising officer's own initiative if doing so would have the effect that the controlled operation would be a major controlled operation by virtue of paragraph 15GD(2)(a).
An authority may be varied by an appropriate authorising officer (whether on application or on the authorising officer's own initiative) only:
(a) in the case of a variation on the authorising officer's own initiative or on a formal variation application (other than a variation referred to in subparagraph (b)(ii)) - by means of a written document, signed by the authorising officer (such a variation is a formal variation of authority ); or
(b) in the case of a variation on:
(i) an urgent variation application; or
orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority ).
(ii) the authorising officer's own initiative or a formal variation application, if the authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation;
(2)
The authorising officer must, as soon as practicable, prepare and give a written document that complies with section 15GS to the applicant or, if the variation was on the initiative of the authorising officer, to the principal law enforcement officer for the controlled operation.
A variation of an authority by an appropriate authorising officer (whether formal or urgent) must:
(a) identify the controlled operation to which the authority relates; and
(b) state the name and rank or position of the person varying the authority; and
(c) if the authority was varied on an application made under section 15GP, state:
(i) the name of the applicant; and
(ii) whether the application was a formal variation application or an urgent variation application; and
(d) state the date and time when the variation of authority is or was granted; and
(e) describe the variation having regard to the matters referred to in subsection 15GO(2); and
(f) if the variation extends the period of effect of a formal authority - state the period of the extension.
(2)
For the purposes of paragraph (1)(f), the period of the extension must not exceed:
(a) in the case of a formal variation of authority - the period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions); and
(b) in the case of an urgent variation of authority - the lesser of:
(i) 7 days; and
(ii) a period that would result in the period of effect of the authority exceeding 3 months (including any previous extensions).
A nominated Tribunal member may vary a formal authority on application under subsection 15GU(1).
(2)
Subject to subsection (3), a variation may extend the period of effect of the authority.
(3)
For the purposes of subsection (2), the period of the extension must not exceed the lesser of:
(a) 3 months; and
(b) a period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B).
(4)
A nominated Tribunal member may only vary a formal authority during the period of 2 weeks before the end of the period of effect of the authority.
The principal law enforcement officer for a controlled operation for which there is a formal authority, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to a nominated Tribunal member for a variation of the authority that would extend its period of effect:
(a) if the period of effect of the authority is 3 months or more (including any previous extensions); or
(b) in such a way that the period of effect of the authority will, after the variation is made, be 3 months or more (including any previous extensions).
(2)
An application cannot be made under subsection (1) for a variation that would extend the period of effect of a formal authority in such a way that the period of effect of the authority will, after the variation is made, exceed 24 months (including any previous extensions under this Subdivision or Subdivision B).
(3)
An application for the variation may be made:
(a) by means of a written document that is signed by the applicant (such an application is a formal variation application ); or
(b) if the applicant has reason to believe that the delay caused by making a formal application for the variation may affect the success of the controlled operation to which the authority relates - orally in person, or by telephone or any other means of communication (such an application is an urgent variation application ).
(4)
More than one application for a variation under this section may be made in respect of the same authority. However, if an urgent variation of authority was granted as a result of an application under this section, the next application must be a formal variation application.
(5)
An application for a variation (whether a formal variation application or an urgent variation application) must state:
(a) whether or not the controlled operation has been the subject of an earlier urgent variation application under this section and, if so:
(i) whether the urgent variation application was the last application under this section for a variation; and
(ii) whether or not the variation was granted; and
(b) the proposed period of the extension, which must be such as to comply with subsection (2) and must not exceed:
(i) in the case of a formal variation application - 3 months; and
(ii) in the case of an urgent variation application - 7 days.
(6)
The nominated Tribunal member may require the applicant to provide such information concerning the proposed variation as is necessary for the nominated Tribunal member's proper consideration of the application.
(7)
As soon as practicable after making an urgent variation application that was not made in writing, the applicant must make a written record of the application and give a copy of it to the nominated Tribunal member to whom the application was made.
After considering an application for a variation of a formal authority, and any additional information provided under subsection 15GU(6), the nominated Tribunal member concerned: (a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or (b) may refuse the application.
(2)
The nominated Tribunal member must not grant the variation unless the nominated Tribunal member is satisfied on reasonable grounds: (a) that either:
(i) a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be committed; or
(b) that the nature and extent of the suspected criminal activity are such as to justify the variation; and (c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and (d) so far as the conduct involved in the controlled operation is not conducted online - that the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and (e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and (f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and (g) that any conduct involved in the controlled operation will not:
(ii) an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency (see the notes at the foot of this subsection); and
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person; or
(h) that any role assigned to a civilianparticipant in the operation is not one that could be adequately performed by a law enforcement officer.
(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and
Note 1:
Subparagraph (a)(ii) applies in relation to offences punishable on conviction by imprisonment for 12 months or more (see section 15JG).
Note 2:
The target agencies mentioned in subparagraph (a)(ii) are the ACC, the Australian Federal Police and the Immigration and Border Protection Department (see section 15GC).
(3)
A variation is not a legislative instrument.
A formal authority may be varied by a nominated Tribunal member only:
(a) in the case of a formal variation application (other than a formal variation application referred to in subparagraph (b)(ii)) - by means of a written document, signed by the nominated Tribunal member (such a variation is a formal variation of authority ); or
(b) in the case of:
(i) an urgent variation application; or
orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority ).
(ii) a formal variation application, if the nominated Tribunal member is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation;
(2)
The nominated Tribunal member must, as soon as practicable, prepare and give a written document that complies with section 15GX to the applicant.
A variation of a formal authority by a nominated Tribunal member (whether formal or urgent) must:
(a) identify the controlled operation to which the authority relates; and
(b) state the name and position of the person varying the authority; and
(c) state the name of the applicant; and
(d) state whether the application for the variation was a formal variation application or an urgent variation application; and
(e) state the date and time when the variation of authority is or was granted; and
(f) state the period of the extension.
(2)
The period of the extension:
(a) must not exceed the period that would result in the period of effect of the authority exceeding 24 months (including any previous extensions under this Subdivision or Subdivision B); and
(b) must not exceed:
(i) in the case of a formal variation of authority - 3 months; and
(ii) in the case of an urgent variation of authority - 7 days.
An appropriate authorising officer may, by order in writing given to the principal law enforcement officer for a controlled operation, cancel the authority to conduct the controlled operation at any time and for any reason.
(2)
Without limiting subsection (1), an appropriate authorising officer may cancel an authority at any time at the request of the principal law enforcement officer for the controlled operation concerned.
(3)
Cancellation of an authority takes effect at the time the order is made or at the later time specified in the order.
Subject to subsection (2), an authority:
(a) authorises each law enforcement participant in the controlled operation to which the authority relates who is identified in the authority to engage in the controlled conduct specified in the authority in respect of that participant; and
(b) authorises each civilian participant (if any) in the controlled operation to which the authority relates who is identified in the authority to engage in the particular controlled conduct (if any) specified in the authority in respect of that participant.
(2)
A person identified in an authority as being authorised to engage in controlled conduct for the purposes of the controlled operation is authorised to do so for the period of effect of the authority, unless:
(a) the authority specifies a shorter period during which the person is so authorised; or
(b) the authority is varied to provide that the person is no longer so authorised; or
(c) the authority is cancelled before the end of that period.
(3)
The authority to engage in controlled conduct given to a participant cannot be delegated to any other person.
(Repealed by No 75 of 2018)
This section applies if:
(a) a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and
(b) engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory.
(2)
Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if:
(a) the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and
(b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and
(d) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(e) if the participant is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement officer.
The Commonwealth must indemnify a participant in a controlled operation against any civil liability (including reasonable costs) the participant incurs because of conduct the participant engages in if:
(a) the participant engages in the conduct in the course of, and for the purposes of, the controlled operation in accordance with the authority to conduct the controlled operation; and
(b) the participant is identified in the authority as a person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and
(d) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(e) if the participant is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement officer; and
(f) the requirements (if any) specified in the regulations have been met.
Sections 15HA and 15HB do not apply to a person's conduct that is, or could have been, authorised under Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
If an authority to conduct a controlled operation is varied in a way that limits its scope, this Part continues to apply to a participant in the controlled operation as if the authority had not been varied in that way, for so long as the participant:
(a) is unaware of the variation; and
(b) is not reckless about the existence of the variation.
(2)
If an authority to conduct a controlled operation is cancelled, this Part continues to apply to a person who was a participant in the controlled operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
(3)
For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an authority if:
(a) the person is aware of a substantial risk that the variation or cancellation has happened; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.
(4)
In this section, a reference to an authority that is cancelled includes, in the case of an integrity testing controlled operation authority, a reference to an authority that has stopped being in effect because the integrity testing authority concerned has stopped being in effect.
Note:
See paragraph 15GN(3)(c).
This section applies if:
(a) a person engages in conduct (the ancillary conduct ) that relates to controlled conduct (the related controlled conduct ) engaged in by another person; and
(b) engaging in the ancillary conduct is an ancillary offence in relation to the offence constituted by the related controlled conduct.
(2)
Despite any other law of the Commonwealth, a State or a Territory, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in a controlled operation authorised under this Part.
(3)
In this section:
ancillary offence
, in relation to an offence constituted by related controlled conduct, means a Commonwealth offence or an offence under a law of a State or Territory:
(a) of conspiring to commit the offence constituted by the related controlled conduct; or
(b) of aiding, abetting, counselling or procuring, inciting or being in any way knowingly concerned in, the commission of the offence constituted by the related controlled conduct.
If a person suffers loss of or serious damage to property, or personal injury, in the course of, or as a direct result of a controlled operation authorised under this Part, the Commonwealth is liable to pay to the person compensation as agreed between the Commonwealth and the person or, in default of agreement, as determined by action against the Commonwealth in a court of competent jurisdiction.
(2)
Subsection (1) does not apply if:
(a) the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity (other than criminal activity that is controlled conduct); or
(b) the person was a law enforcement participant at the time of suffering the loss, damage or injury.
If: (a) any loss of or serious damage to property occurs in the course of, or as a direct result of, a controlled operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation); or (b) any personal injury occurs in the course of, or as a direct result of, such an operation;
the principal law enforcement officer for the controlled operation must report the loss, damage or injury to the chief officer of the law enforcement agency as soon as practicable.
(2)
If loss or serious damage to property is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the owner of the property of the loss or damage.
(3)
If a personal injury is reported to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the person that the injury occurred in the course of, or as a direct result of, the controlled operation.
(4)
The chief officer is not required to give a notification under subsection (2) or (3) until the chief officer is satisfied that the notification would not: (a) compromise or hinder the controlled operation or any related investigation; or (b) compromise the identity of a participant in the controlled operation; or (c) endanger the life or safety of any person; or (d) prejudice any legal proceeding; or (e) otherwise be contrary to the public interest.
(5)
A chief officer may, by written instrument, delegate any of the chief officer's powers or functions under this section to: (a) in relation to the Australian Federal Police - a Deputy Commissioner or a person of equivalent or higher rank; or (b) in relation to the Immigration and Border Protection Department - a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in that Department; or (c) in relation to the ACC:
(i) an Executive Director or a person occupying an equivalent or higher position; or
(d) in relation to the National Anti-Corruption Commission - a National Anti-Corruption Deputy Commissioner (within the meaning of the National Anti-Corruption Commission Act 2022); or (e) in relation to the police force of a State or Territory - a Deputy Commissioner or a person of equivalent or higher rank.
(ii) a person occupying a position prescribed by the regulations; or
This section applies to a participant in an operation authorised under a corresponding State controlled operations law if:
(a) the participant engages in conduct in the course of, and for the purposes of, the operation; and
(b) engaging in that conduct is a Commonwealth offence.
(2)
Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:
(a) the conduct is authorised by, and is engaged in in accordance with, the authority to conduct the controlled operation; and
(b) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(c) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(d) if the person is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement officer.
(3)
Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the operation was authorised.
Section 15HH does not apply to a person's conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
This section applies if:
(a) a person engages in conduct (the ancillary conduct ) that relates to conduct (the related conduct ) that:
(i) was engaged in by another person; and
(ii) constitutes an offence for which a person would, but for section 15HH, be criminally responsible; and
(b) engaging in the ancillary conduct is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related conduct.
(2)
Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in an operation authorised under a corresponding State controlled operations law.
(3)
Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the person believed the controlled conduct was being engaged in.
Disclosures by entrusted persons
(1)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation.
Note: Recklessness is the fault element for paragraphs (1)(b) and (d) - see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 2 years.
(1A)
Strict liability applies to paragraph (1)(a).
Note: For strict liability, see section 6.1 of the Criminal Code.
(1B)
A person commits an offence if: (a) the person is, or has been, an entrusted person; and (b) information came to the knowledge or into the possession of the person in the person's capacity as an entrusted person; and (c) the person discloses the information; and (d) the information relates to a controlled operation; and (e) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.Note: Recklessness is the fault element for paragraphs (1)(b) and (d) and subparagraph (1B)(e)(ii) - see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 10 years.
(1C)
Strict liability applies to paragraph (1B)(a).
Note: For strict liability, see section 6.1 of the Criminal Code.
Other disclosures
(1D)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Note: Recklessness is the fault element for paragraphs (1D)(b) and (c) - see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 2 years.
(1E)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to a controlled operation; and (c) either or both of the following subparagraphs apply:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation;
(ii) the person knows that the disclosure will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.
Recklessness is the fault element for paragraph (1E)(b) - see section 5.6 of the Criminal Code.
Penalty: Imprisonment for 10 years.
Exceptions - general
(2)
Subsections (1) to (1E) do not apply if the disclosure was: (a) in connection with the administration or execution of this Part; or (b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or (c) for the purposes of obtaining legal advice in relation to the controlled operation; or (d) in accordance with any requirement imposed by law; or (e) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
Exceptions - integrity testing controlled operation authority
(2A)
Subsections (1) to (1E) do not apply, in the case of a controlled operation authorised by an integrity testing controlled operation authority (granted on the basis that an integrity testing authority is in effect), if the disclosure was: (a) in any of the circumstances mentioned in paragraphs (2)(a) to (e); or (b) in connection with the administration or execution of Part IABA, or the National Anti-Corruption Commission Act 2022, in relation to the integrity testing authority; or (c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the controlled operation; or (d) in relation to the integrity testing authority:
(i) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, an integrity testing operation authorised by the authority; or
(ii) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority.
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
Exception - misconduct
(3)
Subsections (1) to (1E) do not apply if: (a) the person (the discloser ) discloses the information to the Ombudsman, the National Anti-Corruption Commissioner or the Inspector of the National Anti-Corruption Commission; and (b) the discloser informs the person to whom the disclosure is made of the discloser's identity before making the disclosure; and (c) the information concerns:
(i) a corruption issue (within the meaning of the National Anti-Corruption Commission Act 2022) or a NACC corruption issue (within the meaning of that Act) in relation to a controlled operation; or
(d) the discloser considers that the information may assist a person referred to in paragraph (a) to perform the person's functions or duties; and (e) the discloser makes the disclosure in good faith.
(ii) misconduct in relation to a controlled operation; and
Note:
A defendant bears an evidential burden in relation to the matters in this subsection - see subsection 13.3(3) of the Criminal Code.
Exception - previously published information
(4)
Subsections (1D) and (1E) do not apply to a person disclosing information if: (a) the information has already been communicated, or made available, to the public (the prior publication); and (b) the person was not involved in the prior publication (whether directly or indirectly); and (c) at the time of the disclosure, the person believes that the disclosure:
(i) will not endanger the health or safety of any person; and
(d) having regard to the nature, extent and place of the prior publication, the person has reasonable grounds for that belief.
(ii) will not prejudice the effective conduct of a controlled operation; and
Note: A defendant bears an evidential burden in relation to the matters in subsection (4) - see subsection 13.3(3) of the Criminal Code.
(Repealed by No 75 of 2018)
As soon as practicable after 30 June and 31 December in each year, the chief officer of each authorising agency must submit a report to the Ombudsman setting out the details required by subsection (2) in relation to controlled operations for which the agency was the authorising agency during the previous 6 months.
(2)
The report must include the following details:
(a) the number of formal authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(b) the number of formal applications for the grant of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(c) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(d) the number of urgent authorities that were granted or varied by an authorising officer of the agency during the period to which the report relates;
(e) the number of formal applications and urgent applications for the granting of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(f) the number of formal variation applications and urgent variation applications for the variation of urgent authorities that were refused by an authorising officer of the agency during the period to which the report relates, the date of those applications and the date of the refusals;
(g) the number of formal authorities that were varied by a nominated Tribunal member during the period to which the report relates;
(h) the number of formal variation applications and urgent variation applications for the variation of formal authorities that were refused by a nominated Tribunal member during the period to which the report relates, the date of those applications and the date of the refusals;
(i) for each authority that was in force at any time during the period to which the report relates:
(i) the date the controlled operation commenced; and
(ii) if the controlled operation ceased during that period - the date of cessation and the outcomes of the controlled operation; and
(iii) if subparagraph (ii) does not apply - the last day of the period of effect of the authority (including any extensions);
(j) for each authority that was varied by an authorising officer of the agency during the period to which the report relates - the date of the application for the variation and the date of the variation;
(k) for each authority in relation to which an application for variation was refused by an authorising officer of the agency during the period to which the report relates - the date of the application and the date of the refusal;
(l) for each authority that was varied by a nominated Tribunal member during the period to which the report relates - the date of the application for the variation and the date of the variation;
(m) for each authority in relation to which an application for variation was refused by a nominated Tribunal member during the period to which the report relates - the date of the application and the date of the refusal;
(n) the nature of the criminal activities against which the controlled operations were directed;
(o) the identity of each person targeted under controlled operations;
(p) the nature of the controlled conduct engaged in for the purposes of the controlled operations;
(q) if any of the controlled operations involved illicit goods, a statement (to the extent known) of:
(i) the nature and quantity of the illicit goods; and
(ii) the route through which the illicit goods passed in the course of the operations; and
(iii) all foreign countries through which the illicit goods passed in the course of the operation;
(r) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operations;
(s) details of any personal injuries occurring in the course of or as a direct result of the operations;
(t) the number of authorities for controlled operations that were cancelled by an authorising officer of the agency or that expired during the period to which the report relates.
(2A)
If the controlled operation involved illicit goods that are narcotic goods, the report is to:
(a) identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and
(b) identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and
(c) state whether the narcotic goods have been destroyed; and
(d) if the narcotic goods have not been destroyed - contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.
(2B)
If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the report is to:
(a) if the person is a law enforcement officer - identify the law enforcement agency of which the person is an officer; or
(b) otherwise - identify the person.
(2C)
If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:
(a) endanger the safety of the person; or
(b) prejudice an investigation or prosecution;
then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:
(c) by an assumed name under which the person is operating; or
(d) by a code name or code number;
as long as the chief officer can match the assumed name, code name or code number to the person's identity.
(3)
The Ombudsman may require the chief officer of an authorising agency to give additional information covering any controlled operation to which a report relates.
(4)
Nothing in paragraphs (2)(o) to (t) requires particulars of a controlled operation to be included in a report for a period of 6 months if the operation had not been completed during that period, but the particulars must instead be included in the report for the period of 6 months in which the operation is completed.
(5)
A copy of a report given to the Ombudsman under this section must be given to the Minister at the same time as it is given to the Ombudsman.
As soon as practicable after 30 June in each year, the chief officer of each authorising agency must submit a report to the Minister setting out the details required by subsections 15HM(2), (2A), (2B) and (2C) in relation to controlled operations for which the agency was the authorising agency during the previous 12 months.
(2)
Each chief officer must advise the Minister of any information in a report that, in the chief officer's opinion, should be excluded from the report before the report is laid before the Parliament because:
(a) the information, if made public, could reasonably be expected to:
(i) endanger a person's safety; or
(ii) prejudice an investigation or prosecution; or
(iii) compromise any law enforcement agency's operational activities or methodologies; or
(b) making the information public would be contrary to the public interest for any other reason.
(3)
The Minister must exclude information from a report if the Minister is satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must then cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
(4)
A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.
(5)
Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.
(6)
If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.
(7)
A copy of a report given to the Minister under this section must be given to the Ombudsman at the same time as it is given to the Minister.
The Ombudsman must, as soon as practicable after 30 June in each year:
(a) prepare a report of the work and activities under this Part of the Ombudsman for the preceding 12 months and give a copy of the report to the Minister and to the chief officer of the law enforcement agency to which the report relates;
(b) prepare a report of the work and activities of the Ombudsman for the preceding 12 months, being work or activities under a corresponding State controlled operations law, and give a copy of the report to the Minister and to the chief officer of the ACC.
(2)
A report under this section must not include information which, if made public, could reasonably be expected to:
(a) endanger a person's safety; or
(b) prejudice an investigation or prosecution; or
(c) compromise any law enforcement agency's operational activities or methodologies.
(3)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.
(4)
A report must include, for each authorising agency concerned, comments on the comprehensiveness and adequacy of the reports which were provided to the Ombudsman by the chief officer of the authorising agency under sections 15HM and 15HN.
(5)
A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.
(6)
Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.
(7)
If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.
The chief officer of an authorising agency must cause the following to be kept:
(a) each formal application made to an authorising officer of the agency;
(b) each written record of an urgent application made to such an authorising officer;
(c) each formal authority granted by such an authorising officer;
(d) each written record of an urgent authority issued under section 15GL;
(e) each formal variation application made to such an authorising officer or to a nominated Tribunal member;
(f) each written record of an urgent variation application made to such an authorising officer or to a nominated Tribunal member;
(g) each formal variation of authority by such an authorising officer or by a nominated Tribunal member;
(h) each written document given under subsection 15GR(2) in relation to a variation of an authority by such an authorising officer;
(i) each written document given under subsection 15GW(2) in relation to a variation of a formal authority by a nominated Tribunal member;
(j) each order cancelling an authority granted by such an authorising officer.
The chief officer of each authorising agency must cause a general register to be kept.
(2)
The general register is to specify:
(a) for each application under this Part made to an authorising officer of the agency (including an application for a variation of an authority):
(i) the date of the application; and
(ii) whether the application was formal or urgent; and
(iii) whether the application was granted, refused or withdrawn; and
(iv) if the application was refused or withdrawn - the date and time of the refusal or withdrawal; and
(b) for each authority under this Part granted by an authorising officer of the agency:
(i) the date and time the authority was granted; and
(ii) whether the authority was formal or urgent; and
(iii) the name and rank or position of the person who granted the authority; and
(iv) each serious Commonwealth offence or serious State offence that has a federal aspect in respect of which controlled conduct under the authority was to be engaged in; and
(v) the period of effect of the authority; and
(vi) the identity of each person authorised to engage in controlled conduct for the purposes of the controlled operation; and
(vii) with respect to the law enforcement participants, the nature of the controlled conduct that those participants were authorised to engage in; and
(viii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant was authorised to engage in; and
(viiia) the nature of the controlled conduct that was engaged in by law enforcement participants and civilian participants (if any); and
(ix) if the authority was cancelled, the date and time of cancellation; and
(x) the date and time the controlled operation began, the date on which the operation ceased, and the outcomes of the operation; and
(xi) if the controlled operation involved illicit goods (to the extent known), the nature and quantity of the illicit goods and the route and all foreign countries through which the illicit goods passed in the course of the operation; and
(xii) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operation; and
(xiii) details of any personal injuries occurring in the course of or as a direct result of the operation; and
(c) for each variation of an authority under this Part made by an authorising officer of the agency:
(i) the date and time the variation was made; and
(ii) whether the variation was formal or urgent; and
(iii) the name and rank or position of the person who made the variation.
(2A)
If the controlled operation involved illicit goods that are narcotic goods, the general register is to:
(a) identify each law enforcement agency an officer of which had possession of the narcotic goods in the course of the controlled operation; and
(b) identify to the extent known any other person who had possession of the narcotic goods in the course of the controlled operation; and
(c) state whether the narcotic goods have been destroyed; and
(d) if the narcotic goods have not been destroyed - contain the information specified in subsection (2B) relating to the possession of the narcotic goods, or state that it is not known who has possession of them.
(2B)
If the controlled operation involved narcotic goods that have not been destroyed, and the identity of the person who has possession of the narcotic goods is known, the general register is to:
(a) if the person is a law enforcement officer - identify the law enforcement agency of which the person is an officer; or
(b) otherwise - identify the person.
(2C)
If the chief officer of the authorising agency is of the view that disclosing the identity of a person may:
(a) endanger the safety of the person; or
(b) prejudice an investigation or prosecution;
then the person is sufficiently identified for the purposes of paragraphs (2A)(b) and (2B)(b) if the person is identified:
(c) by an assumed name under which the person is operating; or
(d) by a code name or code number;
as long as the chief officer can match the assumed name, code name or code number to the person's identity.
(3)
A register kept under this section is not a legislative instrument.
S 15HQ inserted by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. For application and transitional provisions, see note under Part IAB heading.
The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Part.
(2)
An appointment under subsection (1) must be in writing.
The Ombudsman must, from time to time and at least once every 12 months, inspect the records of each authorising agency to determine the extent of compliance with this Part by the agency and by law enforcement officers.
(2)
The Ombudsman must also, from time to time and at least once every 12 months, inspect the records of the ACC to determine the extent of compliance with corresponding State controlled operations laws, in relation to any authorities (within the meaning of each such law):
(a) for which a law enforcement officer of the ACC applied; or
(b) that were granted to a law enforcement officer of the ACC;
unless the corresponding State controlled operations law provides for the inspection of records of the ACC to determine the extent of compliance with that law.
(3)
For the purpose of an inspection under this section, the Ombudsman:
(a) may, after notifying the chief officer of the agency, enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and
(c) may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection; and
(d) may, despite any other law, make copies of, and take extracts from, records of the agency.
(4)
The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.
(5)
Nothing in this section requires the Ombudsman to inspect records relating to operations that have not been completed at the time of the inspection.
If the Ombudsman has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency's records, subsections (2) and (3) have effect.
(2)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman:
(a) by writing signed by the officer; and
(b) at a specified place and within a specified period.
(3)
The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend:
(a) before a specified inspecting officer; and
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(4)
If the Ombudsman:
(a) has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency's records; and
(b) does not know the officer's identity;
the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:
(c) before a specified inspecting officer; and
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
to answer questions relevant to the inspection.
(5)
The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.
A person commits an offence if:
(a) the person is required under section 15HT to attend before an inspecting officer, to give information or to answer questions; and
(b) the person refuses or fails to do so.
Penalty: Imprisonment for 6 months.
Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:
(a) would contravene a law; or
(b) would be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty; or
(d) would disclose one of the following:
(i) a legal advice given to a Minister, a Department or a prescribed authority;
(ii) a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege.
(2)
However, if the person is a natural person:
(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and
(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;
is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 15HK of this Act or Part 7.4 or 7.7 of the Criminal Code.
(3)
Nothing in section 15HK or in any other law prevents an officer of an agency from:
(a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or
(b) giving access to a record of the agency to an inspecting officer;
for the purposes of an inspection under this Division of the agency's records.
(4)
Nothing in section 15HK or in any other law prevents an officer of an agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).
(5)
The fact that a person is not excused under subsection (1) from giving information, answering a question or giving access to a document does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, answer or document.
(6)
In this section:
prescribed authority
has the same meaning as in the Ombudsman Act 1976.
In this section:
State or Territory agency
means a law enforcement agency of a State or Territory within the meaning of a corresponding State controlled operations law.
State or Territory inspecting authority
, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 15HS when the State or Territory agency is exercising powers under a corresponding State controlled operations law.
(2)
The Ombudsman may give information that:
(a) relates to a State or Territory agency; and
(b) was obtained by the Ombudsman under this Division;
to the State or Territory inspecting authority in relation to the agency.
(3)
The Ombudsman may only give information to an authority under subsection (2) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.
(4)
The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.
The Ombudsman may, by written instrument, delegate to an APS employee responsible to the Ombudsman all or any of the Ombudsman's powers under this Division, other than a power to report to the Minister.
(2)
A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.
The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.
A document purporting to be an authority granted under section 15GI or under a corresponding Statecontrolled operations law:
(a) is admissible in any legal proceedings; and
(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.
This section applies if: (a) an authority is granted under section 15GI by an AFP authorising officer, an ACC authorising officer or a NACC authorising officer; and (b) the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by an officer of Customs.
(2)
The applicant must, as soon as practicable after the authority is granted, notify the Secretary of the Immigration and Border Protection Department, or a person (the nominated person ) nominated by him or her for the purposes of this section, in writing of: (a) the applicant's name; and (b) the date on which the authority was granted; and (c) to the extent to which it is known:
(i) the place or places at which the illicit goods will pass into customs control under the Customs Act 1901; and
(ii) the time or times when, and the day or days on which, the illicit goods are expected to pass into customs control under the Customs Act 1901.
(3)
A failure to comply with this section does not affect the validity of an authority.
The following is a simplified outline of this Part:
This Part provides for the authorisation of operations (called integrity testing operations) that are designed to test the integrity of staff members of target agencies using controlled or simulated situations.
Operations can be authorised only if there is a reasonable suspicion that a staff member has committed, is committing or is likely to commit an offence punishable on conviction by imprisonment for 12 months or more.
Authorisations for integrity testing operations may form the basis for the authorisation of controlled operations under Part IAB.
Integrity testing operations may be authorised by the ACC, the Australian Federal Police and the Immigration and Border Protection Department in relation to their own agencies, or (if a corruption investigation is involved) the National Anti-Corruption Commission.
Law enforcement officers and others may take part in integrity testing operations.
Participants in integrity testing operations are indemnified against civil liability in relation to the conduct of the operations in accordance with the authorisations concerned.
Information relating to an integrity testing operation may only be disclosed for the purposes of disciplinary or legal action in relation to the staff member concerned, or a number of related purposes.
It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.
In this Part:
appropriate authorising officer
, for an integrity testing operation, has the meaning given by the table in subsection 15JE(1).
authorising officer
means any of the appropriate authorising officers.
Note:
These officers are listed in the table in subsection 15JE(1).
civilian participant
, in an integrity testing operation, means a participant in the operation who is not a law enforcement participant (as defined in this section).
corruption investigation
has the same meaning as in the National Anti-Corruption Commission Act 2022.
corruption issue
has the same meaning as in the National Anti-Corruption Commission Act 2022.
Note:
See section 9 of the National Anti-Corruption Commission Act 2022.
disciplinary or legal action
, in relation to a staff member of a target agency, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
(a) means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and
(b) includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979.
(a) do an act; or
(b) omit to perform an act.
integrity testing agency
means any of the following:
(a) the ACC;
(b) (Repealed by No 89 of 2022)
(c) the Australian Federal Police;
(d) the Immigration and Border Protection Department;
(e) the National Anti-Corruption Commission.
integrity testing authority
means an authority granted under section 15JG to conduct an integrity testing operation.
integrity testing operation
: see section 15JD.
law enforcement participant
, in an integrity testing operation, means a participant in the operation who is:
(a) a law enforcement officer; or
(b) an employee or officer of a body (whether incorporated or not) that is established by the law of a State or Territory for purposes that include the purpose of investigating corruption in State or Territory government entities.
Note:
Staff members of integrity testing agencies (as defined in this section) are law enforcement officers. Law enforcement officers also include members of State and Territory police forces, and police forces of foreign countries (see section 3).
participant
, in an integrity testing operation authorised by an integrity testing authority, means a person who is authorised under this Part to participate in the operation.
responsible staff member
, for an integrity testing operation authorised by an integrity testing authority, means the staff member of an integrity testing agency identified in the authority as the staff member responsible for the conduct of the operation.
staff member
of an integrity testing agency has the same meaning in relation to that agency as in section 12 of the National Anti-Corruption Commission Act 2022.
target agency
means any of the following:
(a) the ACC;
(b) the Australian Federal Police;
(c) the Immigration and Border Protection Department;
(d) any other Commonwealth agency (within the meaning of the National Anti-Corruption Commission Act 2022).
An integrity testing operation is an operation conducted in relation to a target agency using controlled or simulated situations to test the integrity of a staff member of the agency.
(2)
An integrity testing operation includes an operation that offers the staff member an opportunity to engage in conduct, whether lawful or unlawful, so as to contravene principles of behaviour required (by law or otherwise) of persons occupying the position of such a staff member.
Note 1:
For target agency , see section 15JC.
Note 2:
References to a staff member include references to more than one staff member (see section 23 of the Acts Interpretation Act 1901).
The following table has effect:
| Integrity testing - circumstances in which applications may be made | |||
| Item | If a proposed integrity testing operation is concerned with … | a staff member of the following agency may apply for authority for the operation … | from the following officer (an appropriate authorising officer ) … |
| 1 | the integrity of a staff member of the ACC | the ACC | (a) the Chief Executive Officer of the ACC; or
(b) an SES employee in the ACC. |
| 2 | the integrity of a staff member of the Australian Federal Police | the Australian Federal Police | (a) the Commissioner; or
(b) a Deputy Commissioner; or (c) an SES employee in the Australian Federal Police. |
| 3 | the integrity of a staff member of the Immigration and Border Protection Department | the Immigration and Border Protection Department | (a) the Secretary of the Immigration and Border Protection Department; or
(b) an SES employee in the Immigration and Border Protection Department. |
| 4 | a corruption investigation that relates to a staff member of a target agency | (a) the National Anti-Corruption Commission; or
(b) if the corruption issue being investigated relates to a staff member of the ACC - the ACC; or (c) if the corruption issue being investigated relates to a staff member of the Australian Federal Police - the Australian Federal Police; or (d) if the corruption issue being investigated relates to a staff member of the Immigration and Border Protection Department - that Department |
(a) the National Anti-Corruption Commissioner; or
(b) a National Anti-Corruption Deputy Commissioner; or (c) an SES employee in the National Anti-Corruption Commission. |
Note 1:
For target agency , see section 15JC.
Note 2:
References to a staff member include references to more than one staff member (see section 23 of the Acts Interpretation Act 1901).
(2)
The application of item 4 of the table in subsection (1) in relation to a staff member of the ACC, the Australian Federal Policy or the Immigration and Border Protection Department does not prevent the application of any of the other items in the table in relation to the integrity of the staff member.
(3)
A reference in a cell in the table in subsection (1) to an SES employee of an integrity testing agency is taken to be a reference to an SES employee authorised in writing by the officer of the agency mentioned in paragraph (a) in the cell.
An application under section 15JE must:
(a) be in writing; and
(b) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and
(c) state whether or not the proposed integrity testing operation is related to any past, current or proposed:
(i) integrity testing operation; or
(ii) controlled operation under Part IAB; and
(d) state the proposed period of effect of the authority, which must not exceed 12 months.
(2)
The appropriate authorising officer may require the applicant to provide such additional information concerning the proposed integrity testing operation as is necessary for the proper consideration of the application.
Note:
See the table in section 15JE for which staff members may apply to conduct an integrity testing operation, and to which authorising officers (called appropriate authorising officers ) such applications may be made.
The appropriate authorising officer may, after considering an application for an authority to conduct an integrity testing operation in relation to a target agency, and any additional information provided under subsection 15JF(2): (a) authorise the operation by granting the authority, in writing, either unconditionally or subject to conditions; or (b) refuse the application.
(2)
The authorising officer must not grant the authority to conduct the integrity testing operation unless the authorising officer is satisfied that: (a) there are reasonable grounds to suspect that a Commonwealth offence or a State offence, punishable on conviction by imprisonment for 12 months or more, has been, is being or is likely to be committed by a staff member of the target agency (whether or not the identity of the staff member is suspected or known); and (b) it is appropriate in all the circumstances to conduct the operation; and (c) if the authorising officer is an officer of the National Anti-Corruption Commission - in addition to the matters mentioned in paragraphs (a) and (b), the operation is part of a corruption investigation.
(3)
The authorising officer may grant an integrity testing authority even if the operation has been authorised by a previous integrity testing authority, or has been the subject of a previous application for such an authority.
Example:
The authorising officer may grant an integrity testing authority that authorises the continuation or resumption of an operation authorised by an earlier authority.
(4)
An integrity testing authority is not a legislative instrument.
Note:
See the table in section 15JE for who are the appropriate authorising officers for a proposed integrity testing operation in relation to a target agency.
Contents of integrity testing authority
(1)
An integrity testing authority must:
(a) state the name and rank or position of the appropriate authorising officer; and
(b) identify the responsible staff member for the integrity testing operation and, if he or she is not the applicant for the authority, state the name of the applicant; and
(c) identify the nature of the criminal activity (including the suspected offence mentioned in paragraph 15JG(2)(a)) in relation to which the integrity testing operation is to be conducted; and
(d) identify the persons authorised to participate in the integrity testing operation; and
(e) describe the nature of the integrity testing operation; and
(f) identify (to the extent known) the staff member or staff members who are the target of the operation; and
(g) state a period of effect of the authority of not more than 12 months after the day the authority is granted; and
(h) state any conditions to which the conduct of the controlled operation is subject; and
(i) state the day and time when the authority is granted.
Note:
The period of effect may be extended (or further extended) for up to 12 months, but not so the period of effect of the authority ends more than 24 months after it is granted (see section 15JK).
Identity of persons authorised to conduct the integrity testing operation
(2)
A person is sufficiently identified for the purposes of paragraph (1)(d) if the person is identified:
(a) by an assumed name under which the person is operating that the authorising officer can match to the person's identity; or
(b) by a code name or code number that the authorising officer can match to the person's identity.
(3)
An authority must not identify persons for the purposes of paragraph (1)(d) by identifying a class of persons.
As soon as practicable after granting an integrity testing authority for an integrity testing operation, the authorising officer must give a copy of the authority to: (a) the responsible staff member for the operation; and (b) the National Anti-Corruption Commissioner (unless the authorising officer is an officer of the National Anti-Corruption Commission).
An integrity testing authority comes into force when the authority is granted (see section 15JG).
(2)
The authority has effect for the period stated in the authority, as extended by any variation under section 15JK, unless earlier cancelled (see section 15JL).
Note:
The maximum period of effect for an integrity testing authority (taking into account any extension) is 24 months after it is granted (see paragraph 15JH(1)(g) and subsection 15JK(2)).
An appropriate authorising officer for an integrity testing operation that is authorised by an integrity testing authority may, in writing, vary the authority: (a) at any time on the authorising officer's own initiative; or (b) on application, in writing, by the responsible staff member for the operation.
(2)
A variation may extend, or further extend, the period of effect of the authority for up to 12 months, but not so that the period of effect ends more than 24 months after the authority was granted.
(3)
As soon as practicable after varying an integrity testing authority for an integrity testing operation, the authorising officer must give a copy of the variation to: (a) the responsible staff member for the operation; and (b) the National Anti-Corruption Commissioner (unless the authorising officer is an officer of the National Anti-Corruption Commission).
Note:
If the variation has the effect of changing the responsible staff member, the authorising officer would be required to give a copy of the variation to the new responsible staff member.
(4)
Subsection 33(3) of the Acts Interpretation Act 1901 applies in relation to the variation of the authority, subject to this Act.
Note:
Subsection 33(3) of the Acts Interpretation Act 1901 has the effect that the power to grant an instrument (such as an integrity testing authority) includes the power to vary the instrument in the like manner and subject to the like conditions.
(5)
A variation is not a legislative instrument.
An appropriate authorising officer for an integrity testing operation may, by order in writing given to the responsible staff member for the operation, cancel the authority at any time and for any reason.
(2)
The reasons for cancelling an integrity testing authority under subsection (1) include (but are not limited to) cancellation at the request of the responsible staff member.
(3)
Cancellation of an integrity testing authority takes effect at the time the order is made or at a later time stated in the order.
An application for an integrity testing authority or for the variation of an authority, and any integrity testing authority or variation granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.
Subject to subsection (2), an integrity testing authority for an integrity testing operation authorises each person identified in the authority as a participant to take part in the operation, subject to any conditions set out in the authority.
Note:
Paragraphs 15JH(1)(d) and (e) require participants to be identified, and the nature of the operation to be described, in the authority. Subsection 15JH(2), however, allows for participants to be identified in the authority by an assumed identity, or by code.
(2)
A participant is authorised to take part in the integrity testing operation for the period of effect of the authority, unless:
(a) the authority states (or is varied to state) a shorter period during which the person is so authorised; or
(b) the authority is varied to provide that the person is no longer so authorised; or
(c) the authority is cancelled before the end of that period.
(3)
An integrity testing authority does not authorise a participant identified in the authority to delegate participation to another person.
The Commonwealth must indemnify a participant in an integrity testing operation that is authorised by an integrity testing authority against any civil liability (including reasonable costs) the participant incurs because of conduct the participant engages in if:
(a) the participant engages in the conduct in the course of, and for the purposes of, the operation in accordance with the authority; and
(b) the participant is identified in the authority; and
(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or a State offence that the person would not otherwise have intended to commit; and
(d) the conduct does not involve the participant engaging in any conduct that is likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(e) if the participant is a civilian participant in the operation - he or she acts in accordance with the instructions of a law enforcement participant in the operation; and
(f) the requirements (if any) prescribed by regulation have been met.
If an integrity testing authority for an integrity testing operation is varied in a way that limits the scope of the operation, this Part continues to apply to a participant in the operation as if the authority had not been varied in that way, for so long as the participant:
(a) is unaware of the variation; and
(b) is not reckless about the existence of the variation.
(2)
If an integrity testing authority to conduct an integrity testing operation is cancelled, this Part continues to apply to a person who was a participant in the operation immediately before the cancellation as if the authority had not been cancelled in that way, for so long as the person:
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
(3)
For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an integrity testing authority if:
(a) the person is aware of a substantial risk that the variation or cancellation has happened; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.
Disclosure - offence
(1)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to an integrity testing operation.
Penalty: Imprisonment for 2 years.
Exception - authorised disclosure
(2)
Subsection (1) does not apply if the disclosure was: (a) in connection with the administration or execution of this Part; or (b) for the purposes of obtaining legal advice in relation to the integrity testing operation; or (c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the integrity testing operation; or (d) in connection with the administration or execution of the National Anti-Corruption Commission Act 2022; or (e) to an authority of the Commonwealth, a State or a Territory, if the disclosure relates to the misconduct of an employee or officer of the authority; or (f) in accordance with any requirement imposed by law; or (g) in connection with the performance of functions or duties, or the exercise of powers, of the target agency in relation to which the operation was conducted.
Exception - corruption issue or misconduct
(3)
Subsection (1) does not apply if: (a) the person (the discloser ) discloses the information to the National Anti-Corruption Commissioner; and (b) the discloser informs the person to whom the disclosure is made of the discloser's identity before making the disclosure; and (c) the information concerns a corruption issue, or misconduct, in relation to an integrity testing operation; and (d) the discloser considers that the information may assist the National Anti-Corruption Commissioner to perform the Commissioner's functions or duties; and (e) the discloser makes the disclosure in good faith.
Note:
A defendant bears an evidential burden in relation to the matters in subsections (2) and (3) - see subsection 13.3(3) of the Criminal Code.
Offence - disclosure endangering safety etc.
(1)
A person commits an offence if: (a) the person discloses information; and (b) the information relates to an integrity testing operation; and (c) either:
(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation; or
(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation.
Penalty: Imprisonment for 10 years.
Exceptions - authorised disclosure
(2)
Subsection (1) does not apply if the disclosure was: (a) in connection with the administration or execution of this Part; or (b) for the purposes of obtaining legal advice in relation to the integrity testing operation; or (c) for the purposes of any disciplinary or legal action in relation to a staff member of a target agency, if arising out of, or otherwise related to, the integrity testing operation; or (d) in connection with the administration or execution of the National Anti-Corruption Commission Act 2022; or (e) a disclosure to an authority of the Commonwealth, a State or a Territory; or (f) in accordance with any requirement imposed by law; or (g) in connection with the performance of functions or duties, or the exercise of powers, of the target agency in relation to which the operation was conducted.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2) - see subsection 13.3(3) of the Criminal Code.
Exception - corruption issue or misconduct
(3)
Subsection (1) does not apply if: (a) the person (the discloser ) discloses the information to the National Anti-Corruption Commissioner; and (b) the discloser informs the person to whom the disclosure is made of the discloser's identity before making the disclosure; and (c) the information concerns a corruption issue, or misconduct, in relation to an integrity testing operation; and (d) the discloser considers that the information may assist the National Anti-Corruption Commissioner to perform the Commissioner's functions or duties; and (e) the discloser makes the disclosure in good faith.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3) - see subsection 13.3(3) of the Criminal Code.
As soon as practicable after 30 June in each year, the chief officer of each integrity testing agency must submit a report to the Law Enforcement Minister setting out the details required by subsection (2) in relation to integrity testing operations authorised by an authorising officer of the agency during the previous 12 months.
(2)
The details to be set out in the report are as follows: (a) the number of integrity testing authorities granted by authorising officers of the agency; (b) the nature of the suspected criminal activity in relation to which each authority was given; (c) the period of effect of each authority (including any extension of the period granted by variation); (d) if an authority was cancelled - the reasons for cancellation.
(3)
A report must not disclose any information that identifies any person involved in an integrity testing operation or that is likely to lead to such a person being identified.
(4)
Nothing in this section requires particulars of an integrity testing operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.
(5)
In this section:
chief officer
, of an integrity testing agency, means:
(a) for the ACC - the Chief Executive Officer of the ACC; or
(b)for the Australian Federal Police - the Commissioner; or
(c) for the Immigration and Border Protection Department - the Secretary of that Department; or
(d) for the National Anti-Corruption Commission - the National Anti-Corruption Commissioner.
Law Enforcement Minister
means the Minister responsible for the administration of the National Anti-Corruption Commission Act 2022.
A document purporting to be an integrity testing authority:
(a) is admissible in any legal proceedings; and
(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.
In this Part:
acquire
an assumed identity, means acquire evidence of the assumed identity and includes taking steps towards acquiring evidence of the identity.
agency
means one or more of the following:
(a) an issuing agency;
(b) an intelligence agency;
(c) a law enforcement agency.
authorised civilian
means a person who is authorised under an authority to acquire or use an assumed identity, but does not include an officer of an intelligence agency, an officer of a law enforcement agency, or a foreign officer.
authorised foreign officer
means a foreign officer who is authorised under an authority to acquire or use an assumed identity.
authorised intelligence officer
means an intelligence officer who is authorised under an authority to acquire or use an assumed identity.
authorised law enforcement officer
means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity.
(a) an authorised civilian; and
(b) an authorised intelligence officer; and
(c) an authorised law enforcement officer; and
(d) an authorised foreign officer.
authority
means an authority granted under section 15KB to acquire and use an assumed identity, including the authority as varied under section 15KE.
(a) of an intelligence agency - means the following:
(i) in relation to the Australian Security Intelligence Organisation - the Director-General of Security;
(ii) in relation to the Australian Secret Intelligence Service - the Director-General of Australian Secret Intelligence Service;
(iii) in relation to the Office of National Intelligence - the Director-General of National Intelligence;
(iv) in relation to the Australian Signals Directorate - the Director-General of the Australian Signals Directorate; and
(b) of an issuing agency - means the chief executive officer (however described) of the agency; and
(c) of a law enforcement agency - means the following:
(i) in relation to the Australian Federal Police - the Commissioner of the Australian Federal Police;
(ii) in relation to the Immigration and Border Protection Department - the Secretary of that Department;
(iii) in relation to the ACC - the Chief Executive Officer of the ACC;
(iv)in relation to the National Anti-Corruption Commission - the National Anti-Corruption Commissioner;
(v) in relation to the Australian Taxation Office - the Commissioner of Taxation;
(vi) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency - the officer specified in the regulations as the chief officer of that agency.
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth government issuing agency
means a Commonwealth agency that issues evidence of identity and that is named in an authority.
conduct
includes any act or omission.
corresponding assumed identity law
means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
corresponding authority
means:
(a) an authority under a corresponding assumed identity law to acquire or use an assumed identity; or
(b) an authority under a corresponding assumed identity law to request the production of evidence of an assumed identity from a Commonwealth government issuing agency.
doing
a thing, includes failing to do the thing.
evidence
of identity, means a document or other thing (such as a driver's licence, birth certificate, credit card or identity card) that evidences or indicates, or can be used to evidence or indicate, a person's identity or any aspect of a person's identity.
foreign officer
means an officer, however described, of an agency that has responsibility for:
(a) law enforcement in a foreign country; or
(b) intelligence gathering for a foreign country; or
(c) security of a foreign country.
(a) the Australian Security Intelligence Organisation; or
(b) the Australian Secret Intelligence Service; or
(c) the Office of National Intelligence; or
(d) the Australian Signals Directorate.
(a) for an intelligence agency other than the Office of National Intelligence - a person who is a staff member (within the meaning of the Intelligence Services Act 2001) of the agency; and
(b) for the Office of National Intelligence - a staff member (within the meaning of the Office of National Intelligence Act 2018) of the Office of National Intelligence;
(c) (Repealed by No 31 of 2022)
and includes a person who is seconded to an intelligence agency.
(a) a Commonwealth government issuing agency; or
(b) a non-Commonwealth government issuing agency.
jurisdiction
means the Commonwealth or a State or Territory of the Commonwealth.
law enforcement agency
means the following agencies:
(a) the Australian Federal Police;
(b) the Immigration and Border Protection Department;
(c) the ACC;
(d) the National Anti-Corruption Commission;
(e) the Australian Taxation Office;
(f) any other Commonwealth agency specified in the regulations.
law enforcement officer
means:
(a) in relation to the Australian Federal Police - the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); and
(b) in relation to the Immigration and Border Protection Department - an officer of Customs; and
(c) in relation to the ACC - a member of the staff of the ACC; and
(d) in relation to the National Anti-Corruption Commission - a staff member of the NACC; and
(e) in relation to the Australian Taxation Office - a person engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office; and
(f) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency - an officer specified in the regulations as an officer of the agency;
and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction.
National Witness Protection Program
means the program by that name established by the Witness Protection Act 1994.
non-Commonwealth government issuing agency
means a person, body or entity (other than a Commonwealth government issuing agency) that issues evidence of identity and that is named in an authority.
officer
of an agency, includes a person employed or engaged in the agency.
(a) in relation to the transfer of an authority under subsection 15KV(1) - has the meaning given by that subsection; and
(b) in relation to the transfer of an authority under subsection 15KV(2) - has the meaning given by that subsection.
participating jurisdiction
means a jurisdiction in which a corresponding assumed identity law is in force.
(a) in relation to the transfer of an authority under subsection 15KV(1) - has the meaning given by that subsection; and
(b) in relation to the transfer of an authority under subsection 15KV(2) - has the meaning given by that subsection.
supervisor
of an authorised civilian means the law enforcement officer or the intelligence officer who supervises or is to supervise the acquisition or use of an assumed identity by the authorised civilian.
use
an assumed identity, includes representing (whether expressly or impliedly, or by saying or doing something) the assumed identity to be real when it is not.
A law enforcement officer of a law enforcement agency may apply to the chief officer mentioned in subsection (2) for an authority for the officer or any other person to do either or both of the following:
(a) acquire an assumed identity;
(b) use an assumed identity.
(2)
An application by a law enforcement officer of a law enforcement agency under subsection (1) is to be made to:
(a) if the person who is to acquire or use the assumed identity is a foreign officer, or the assumed identity is to be used in a foreign country:
(i) if the applicant is a member of the staff of the ACC - the chief officer of the ACC; or
(ii) in any other case - the chief officer of the Australian Federal Police; or
(b) in any other case - the chief officer of the law enforcement agency.
(3)
An intelligence officer of an intelligence agency may apply to the chief officer of the agency for an authority for the officer or any other person (including a foreign officer) to do either or both of the following:
(a) acquire an assumed identity;
(b) use an assumed identity.
(3A)
An application may only be made under subsection (3) by an intelligence officer of the Office of National Intelligence ( ONI ) for the purpose of ONI carrying out its function under paragraph 7(1)(g) of the Office of National Intelligence Act 2018.
(4)
A separate application must be made in respect of each assumed identity to be acquired or used.
(5)
An application:
(a) must be in writing in the form approved by the chief officer; and
(b) must contain:
(i) the name of the applicant; and
(ii) the name of the person to be authorised to acquire or use an assumed identity (if not the applicant); and
(iii) if the person referred to in subparagraph (ii) is not an officer of either an intelligence agency or a law enforcement agency or a foreign officer - the name and rank or position of the person proposed to be appointed as supervisor and an explanation of why it is necessary for a person who is not an officer to acquire or use the assumed identity; and
(iv) details of the proposed assumed identity; and
(v) reasons for the need to acquire or use an assumed identity; and
(vi) if the assumed identity is necessary for a purpose mentioned in subparagraph 15KB(2)(a)(i) or (ii) - details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent known); and
(vii) details of any issuing agencies and the types of evidence to be issued by them; and
(viii) details of any application of a kind referred to in section 15KG (making entries in register of births, deaths or marriages) that is to be made under a corresponding assumed identity law.
(6)
The chief officer may require the applicant to give such additional information concerning the application as is necessary for the chief officer's proper consideration of the application.
Note:
The chief officer may delegate functions under this section - see section 15LH.
After considering an application for an authority to acquire or use an assumed identity, and any additional information under subsection 15KA(6), the chief officer: (a) may grant an authority to acquire or use the assumed identity, either unconditionally or subject to conditions; or (b) may refuse the application.
(2)
An authority to acquire or use an assumed identity may not be granted unless the chief officer is satisfied on reasonable grounds: (a) that the assumed identity is necessary for one or more of the following purposes:
(i) investigation of, or intelligence gathering in relation to, criminal activity (whether a particular criminal activity or criminal activity generally);
(ii) the exercise of powers and performance of functions of an intelligence agency;
(iii) the exercise of powers and performance of functions for the purposes of the National Witness Protection Program;
(iv) the training of persons for any of the purposes mentioned in subparagraphs (i) to (iii);
(b) that the risk of abuse of the assumed identity by the authorised person is minimal; and (c) if the application is for authorisation of an assumed identity for a person who is not an officer of either an intelligence agency or a law enforcement agency - that it would be impossible or impracticable in the circumstances for an officer to acquire or use the assumed identity for the purpose sought.
(v) any administrative function in support of any of the purposes mentioned in subparagraphs (i) to (iv); and
(3)
If an authority is granted for an authorised civilian, the chief officer must appoint an officer of the law enforcement agency or the intelligence agency (as the case may be) to supervise the acquisition or use of the assumed identity by the authorised civilian.
(4)
The officer appointed as supervisor must be: (a) in the case of the Australian Federal Police - a person who holds the rank of sergeant or an equivalent or higher rank; or (b) in the case of the Immigration and Border Protection Department - an APS employee who holds or performs the duties of an Executive Level 1 position, or an equivalent or higher position, in that Department; or (c) in the case of the ACC - a person who holds the position, or performs the duties, of either a senior investigator or of an APS Executive Level 1 position, or an equivalent or higher position, in the ACC; or (d) in the case of the National Anti-Corruption Commission - a staff member of the NACC who is authorised in writing by the National Anti-Corruption Commissioner to act as a supervisor; or (e) in the case of the Australian Taxation Office - a person who holds the position, or performs the duties, of an APS Executive Level 2 position, or an equivalent or higher position, in the Australian Taxation Office; or (f) in the case of the Australian Security Intelligence Organisation - a person who holds the position, or performs the duties, of an ASIO Executive Officer Level 1 position, or an equivalent or higher position, in the Australian Security Intelligence Organisation; or (g) in the case of the Australian Secret Intelligence Service - an intelligence officer of the Australian Secret Intelligence Service who is determined by the Director-General of the Australian Secret Intelligence Service; or (h) in the case of the Office of National Intelligence - a person who holds the position, or performs the duties, of an APS Executive Officer Level 1 position, or an equivalent or higher position, in the Office of National Intelligence; or (i) in the case of the Australian Signals Directorate - a person who holds the position, or performs the duties, of an APS Executive Officer Level 1 position, or an equivalent or higher position, in the Australian Signals Directorate.
(5)
An authority may also authorise any one or more of the following: (a) an application of a kind referred to in section 15KG for an order for an entry in a register of births, deaths or marriages under a corresponding assumed identity law; (b) a request under section 15KI or 15KX; (c) the use of an assumed identity in a foreign country.
(6)
However, the chief officer of the ACC, the chief officer of the Australian Federal Police or the chief officer of an intelligence agency may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.
Note:
This subsection does not affect any obligation to obtain authority to use the assumed identity in the foreign country.
(7)
A separate authority is required for each assumed identity.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(8)
An authority is not a legislative instrument.
An authority must be:
(a) in writing in the form approved by the chief officer; and
(b) signed by the person granting it.
(2)
An authority must state the following:
(a) the name of the person granting the authority;
(b) the date of the authority;
(c) details of the assumed identity authorised;
(d) details of any evidence of the assumed identity that may be acquired under the authority;
(e) the conditions (if any) to which the authority is subject;
(f) why the authority is granted;
(g) if the authority relates to an authorised intelligence officer, an authorised law enforcement officer or a foreign officer - the name of the officer;
(h) if the authority relates to an authorised civilian whose supervisor is a law enforcement officer:
(i) the name of the authorised civilian; and
(ii) the name of his or her supervisor under the authority; and
(iii) the period for which the authority will remain in force, being a period not exceeding 3 months;
(i) if the authority relates to an authorised civilian whose supervisor is an intelligence officer:
(i) the name of the authorised civilian; and
(ii) the name of his or her supervisor under the authority.
(3)
The authority must also state the following:
(a) each issuing agency to which a request may be made under section 15KI or 15KX;
(b) whether it authorises an application under a corresponding assumed identity law for an order for an entry in a register of births, deaths or marriages;
(c) whether the assumed identity can be used in a foreign country and the reasons for the need for this use.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(4)
To avoid doubt, subparagraph (2)(h)(iii) does not prevent the grant of one or more further authorities in relation to an authorised civilian.
An authority for an authorised person (other than an authorised civilian of a kind covered by paragraph 15KC(2)(h)) remains in force until cancelled under section 15KE.
(2)
An authority for an authorised civilian of a kind covered by paragraph 15KC(2)(h) remains in force until the end of the period specified in the authority in accordance with subparagraph 15KC(2)(h)(iii), unless the authority is cancelled sooner under section 15KE.
The chief officer of an agency:
(a) may, at any time, vary or cancel an authority that was granted by the chief officer of the agency; and
(b) must cancel the authority if the chief officer is satisfied (on a review under section 15KF or otherwise) that use of the assumed identity is no longer necessary.
Note:
Section 15KW modifies the effect of this provision if control of the authority is transferred.
(2)
The chief officer must give written notice of the variation or cancellation to:
(a) where practicable, the authorised person to whom it relates; and
(b) if the authorised person is an authorised civilian - the authorised person's supervisor.
(3)
The notice must state why the authority is varied or cancelled.
(4)
The variation or cancellation takes effect:
(a) if the written notice is given to the authorised person and the authorised person is not an authorised civilian - on the day the written notice is given to the authorised person or, if a later day is stated in the notice, on the later day; or
(b) if the authorised person is an authorised civilian and the written notice is given to the authorised person's supervisor - on the day the written notice is given to the authorised person's supervisor or, if a later day is stated in the notice, on the later day; or
(c) in any other case - on the day stated in the notice.
Note 1:
The chief officer may delegate functions under this section - see section 15LH.
Note 2:
Despite the variation or cancellation of an authority, a person is, in certain circumstances, protected from prosecution for offences even if the person is unaware of the variation or cancellation - see section 15KU.
(5)
A variation of an authority is not a legislative instrument.
The chief officer of an agency must periodically review each authority granted by the chief officer or a delegate of the chief officer under this Part.
(2)
A review of an authority under this section is to be conducted:
(a) in the case of an authority granted by the chief officer or a delegate of the chief officer of an intelligence agency to an authorised intelligence officer - at least once every 3 years; or
(b) in all other cases - at least once every 12 months.
Note:
Section 15KW modifies the effect of this provision if control of the authority is transferred.
(3)
The purpose of a review is to determine whether use of the assumed identity under the authority is still necessary.
(4)
If the chief officer is satisfied on a review that use of the assumed identity under the authority is no longer necessary, he or she must cancel the authority under section 15KE.
(5)
If the chief officer is satisfied on a review that use of the assumed identity under the authority is still necessary, he or she must record his or her opinion, and the reasons for it, in writing.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(6)
Failure to comply with the requirements of this section does not invalidate an authority or anything lawfully done under the authority.
The chief officer of: (a) a law enforcement agency; or (b) an intelligence agency (other than the Office of National Intelligence or the Australian Signals Directorate);
may apply, under a corresponding assumed identity law, to the Supreme Court of a State or Territory of a participating jurisdiction for an order that an entry be made in a register of births, deaths or marriages under the relevant law of that jurisdiction in relation to the acquisition of an assumed identity under an authority or corresponding authority.
This section applies if: (a) an authority for an assumed identity ceases to be in force; and (b) there is an entry in relation to that assumed identity in a register of births, deaths or marriagesbecause of an order under a corresponding assumed identity law.
(2)
The chief officer of a law enforcement agency or an intelligence agency (other than the Office of National Intelligence or the Australian Signals Directorate) must apply for an order under the corresponding assumed identity law to cancel the entry within 28 days after the day the authority ceases to be in force.
This section applies if an authority granted under section 15KB authorises a request under this section.
(2)
The person specified in subsection (2A) may request the chief officer of an issuing agency stated in the authority to: (a) produce evidence of an assumed identity in accordance with the authority; and (b) give evidence of the assumed identity to the following:
(i) the authorised person named in the authority;
(ii) an officer of the law enforcement agency or the intelligence agency specified by the chief officer of that agency in the request.
Note:
Section 15KW modifies the effect of this provision if control of the authority is transferred.
(2A)
For the purposes of subsection (2), the person who may make the request is: (a) the chief officer of a law enforcement agency who granted the authority; or (b) the chief officer of an intelligence agency (other than the Office of National Intelligence or the Australian Signals Directorate) who granted the authority; or (c) if the chief officer of the Office of National Intelligence granted the authority - the chief officer of the Australian Security Intelligence Organisation or the Australian Secret Intelligence Service; or (d) if the chief officer of the Australian Signals Directorate granted the authority - the chief officer of the Australian Security Intelligence Organisation or the Australian Secret Intelligence Service.
(3)
The request must state a reasonable period for compliance with the request.
(4)
The request must include: (a) the date of the authority granted under section 15KB; and (b) details of the assumed identity authorised; and (c) details of any evidence of the assumed identity that may be acquired under the authority.
(5)
A request must not be made under this section for an entry in a register of births, deaths or marriages.
(6)
In this section:
evidence
means evidence similar to that ordinarily produced or given by the issuing agency.
Note:
The chief officer may delegate functions under this section - see section 15LH.
The chief officer of a Commonwealth government issuing agency who receives a request under section 15KI must comply with the request within the reasonable period stated in the request.
S 15KJ inserted by No 3 of 2010, s 3 and Sch 3 item 10, effective 20 February 2010. For application and transitional provisions, see note under Part IAB heading.
The chief officer of a non-Commonwealth government issuing agency who receives a request under section 15KI may comply with the request.
The chief officer of an issuing agency who produces evidence of an assumed identity under this Part must cancel the evidence if directed in writing to do so by the chief officer who requested the evidence.
Note 1:
The chief officer who requested the evidence may delegate functions under this section - see section 15LH.
Note 2:
Section 15KW modifies the effect of this provision if control of the authority is transferred.
(2)
In this section:
cancel
includes delete or alter an entry in a record of information.
This section applies if an authority for a person to acquire or use an assumed identity ceases to be in force.
(2)
The chief officer of a law enforcement agency or the chief officer of an intelligence agency may, in writing, request the person to return to the chief officer any evidence of the assumed identity acquired under the authority.
(3)
A person commits an offence if:
(a) a request has been made to the person under subsection (2); and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
The chief officer, or an officer, of an issuing agency who does something that, apart from this section, would be a Commonwealth offence or an offence against a law of a State or Territory, is not criminally responsible for the offence if the thing is done to comply with a request under section 15KI or a direction under section 15KL.
This section applies if the chief officer of either a law enforcement agency or an intelligence agency makes a request under section 15KI or gives a direction under section 15KL to the chief officer of an issuing agency.
(2)
The Commonwealth must indemnify the issuing agency, or an officer of the issuing agency, for any liability incurred by the agency or officer (including reasonable costs) if:
(a) the liability is incurred because of something done by the agency or officer in the course of duty to comply with the request or direction in the course of duty; and
(b) any requirements prescribed under the regulations have been met.
A person may acquire or use an assumed identity if:
(a) the person is an authorised person (other than an authorised civilian) and the acquisition or use is:
(i) in accordance with an authority; and
(ii) in the course of duty; or
(b) the person is an authorised civilian and the acquisition or use is in accordance with:
(i) an authority; and
(ii) any direction by the person's supervisor under the authority.
If an authorised person does something that, apart from this section, would be a Commonwealth offence or an offence under a law of a State or Territory, the person is not criminally responsible for the offence if:
(a) the thing is done in the course of acquiring or using an assumed identity in accordance with an authority; and
(b) the thing is done:
(i) in the case of an authorised intelligence officer, an authorised law enforcement officer or an authorised foreign officer - in the course of his or her duty; or
(ii) in the case of an authorised civilian - in accordance with any direction by his or her supervisor under the authority; and
(c) doing the thing would not be an offence if the assumed identity were the person's real identity.
If a person does something that, apart from this section, would be a Commonwealth offence or an offence under a law of a State or Territory, the person is not criminally responsible for the offence if:
(a) the person is a Commonwealth officer; and
(b) the thing is done in the course of the person's duty' and
(c) the chief officer who granted the authority has authorised the doing of the thing; and
(d) if an authorised person had done the thing in accordance with an authority, the authorised person would not have been criminally responsible for the offence because of the application of section 15KQ.
This section applies if the chief officer of either a law enforcement agency or an intelligence agency grants an authority.
(2)
The Commonwealth must indemnify the authorised person under the authority for any liability incurred by the person (including reasonable costs) because of something done by the person if:
(a) the thing is done in the course of acquiring or using an assumed identity in accordance with the authority; and
(b) the thing is done:
(i) in the case of an authorised intelligence officer, an authorised law enforcement officer or an authorised foreign officer - in the course of his or her duty; or
(ii) in the case of an authorised civilian - in accordance with any direction by his or her supervisor under the authority; and
(c) any requirements prescribed under the regulations have been met.
Sections 15KQ, 15KR and 15KS do not apply to anything done by an authorised person if:
(a) a particular qualification is needed to do the thing; and
(b) the person does not have that qualification.
(2)
Subsection (1) applies whether or not the person has acquired, as evidence of an assumed identity, a document that indicates that he or she has that qualification.
Example:
An officer who cannot fly a plane is not authorised to fly even though he or she has acquired a pilot's licence under an assumed identity.
If an authority has been varied in a way that limits its scope, this Part continues to apply to the authorised person to whom it relates as if it had not been varied in that way, for as long as the person:
(a) is unaware of the variation; and
(b) is not reckless about the existence of the variation.
(2)
If an authority has been cancelled, this Part continues to apply to the authorised person to whom it related as if it had not been cancelled, for as long as the person:
(a) is unaware of the cancellation; and
(b) is not reckless about the existence of the cancellation.
(3)
For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an authority or authorisation if:
(a) the person is aware of a substantial risk that the variation or cancellation has happened; and
(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.
The chief officer of an intelligence agency (the originating agency ) may agree in writing with the chief officer of another intelligence agency (the receiving agency ) to transfer control of an authority to the chief officer of the receiving agency if:
(a) the authority was granted by the chief officer of the originating agency; or
(b) control of the authority was transferred to the chief officer of the originating agency under a previous application of this subsection.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(2)
The chief officer of a law enforcement agency (the originating agency ) may agree in writing with the chief officer of another law enforcement agency (the receiving agency ) to transfer control of an authority to the chief officer of the receiving agency if:
(a) the authority was granted by the chief officer of the originating agency; or
(b) control of the authority was transferred to the chief officer of the originating agency under a previous application of this subsection.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(3)
The chief officer of the originating agency must give the chief officer of the receiving agency a written document setting out:
(a) whether the authority has been reviewed under section 15KF, and if so, when a review was last conducted; and
(b) whether control of the authority has previously been transferred under this section, and if so:
(i) the date of each such transfer; and
(ii) the name of the originating agency and receiving agency in relation to each such transfer.
(4)
Control of the authority is transferred at the time when the chief officer of the receiving agency signs and dates a copy of the authority.
(5)
Despite subsection (4), if the authority relates to an authorised civilian, control of the authority is not transferred until the chief officer of the receiving agency appoints an officer of that agency to be the authorised civilian's supervisor.
(6)
The chief officer of the receiving agency must vary the authority in accordance with section 15KE to state the name of the supervisor appointed under subsection (5).
(7)
Control of an authority must not be transferred under this section if:
(a) the person who is to acquire or use the assumed identity, or who has acquired or used the assumed identity, is a foreign officer authorised to acquire or use the assumed identity by the chief officer of a law enforcement agency; or
(b) the assumed identity is to be, is being or has been used in a foreign country and the authority was granted by the chief officer of a law enforcement agency.
This section sets out the consequences of the transfer of control of an authority under section 15KV.
(2)
The authority continues to be in force after the transfer.
(3)
The following provisions have effect, after the transfer, as if the chief officer of the receiving agency had granted the authority instead of the chief officer of the originating agency:
(a) section 15KE (which deals with variation and cancellation of authorities);
(b) section 15KF (which deals with review of authorities);
(c) sections 15KI and 15KX (which deal with requests for evidence of assumed identities).
(4)
To avoid doubt, the obligation under section 15KF, as that section has effect because of subsection (3), for the chief officer of the receiving agency to review the authority, only arises:
(a) in the case of an authority transferred under subsection 15KV(1):
(i) 3 years after the last review of the authority by the chief officer of an intelligence agency; or
(ii) if no such review has been undertaken - 3 years after the authority was granted; and
(b) in the case of an authority transferred under subsection 15KV(2):
(i) 12 months after the last review of the authority by the chief officer of a law enforcement agency; or
(ii) if no such review has been undertaken - 12 months after the authority was granted.
(5)
Section 15KL (which deals with cancellation of evidence of assumed identity) has effect as if the chief officer of the receiving agency had made the request under section 15KI.
This section applies if an authority granted under section 15KB authorises a request under this section.
(2)
The person specified in subsection (2A) may request the chief officer of an issuing agency of a participating jurisdiction stated in the authority to: (a) produce evidence of the assumed identity in accordance with the authority; and (b) give evidence of the assumed identity to the following:
(i) the authorised person named in the authority;
(ii) an officer of the law enforcement agency or the intelligence agency who is named in the request.
Note:
Section 15KW modifies the effect of this provision if control of the authority is transferred.
(2A)
For the purposes of subsection (2), the person who may make the request is: (a) the chief officer of a law enforcement agency who granted the authority; or (b) the chief officer of an intelligence agency (other than the Office of National Intelligence or the Australian Signals Directorate) who granted the authority; or (c) if the chief officer of the Office of National Intelligence granted the authority - the chief officer of the Australian Security Intelligence Organisation or the Australian Secret Intelligence Service; or (d) if the chief officer of the Australian Signals Directorate granted the authority - the chief officer of the Australian Security Intelligence Organisation or the Australian Secret Intelligence Service.
Note:
The chief officer may delegate functions under this section - see section 15LH.
(3)
The request must state that it is a request under this section.
(4)
A request must not be made under this section for an entry in a register of births, deaths or marriages.
This section applies if: (a) an authority under a corresponding assumed identity law authorises a request for:
(i) the production of evidence of an assumed identity from a Commonwealth government issuing agency; and
(b) the request is made to the chief officer of the Commonwealth government issuing agency; and (c) the request states a reasonable period for compliance with the request.
(ii) the giving of evidence of the assumed identity to the authorised person named in the authority; and
(2)
Subject to subsection (3), the chief officer of the agency who receives the request must comply with the request within the reasonable period stated in the request.
(3)
This section does not require any of the following to comply with a request made as mentioned in paragraph (1)(b): (a) the chief officer of an intelligence agency (other than the Office of National Intelligence);
(b) (Repealed by No 31 of 2022) (c) the chief officer of the Australian Geospatial-Intelligence Organisation.
The chief officer of an issuing agency who produces evidence of an assumed identity because of a request mentioned in section 15KY must cancel the evidence if directed in writing to do so by the chief officer who authorised the request.
(2)
In this section:
cancel
includes delete or alter an entry in a record of information.
This section applies if the chief officer of either a law enforcement agency or an intelligence agency makes a request to the chief officer of an issuing agency of a participating jurisdiction under section 15KX.
(2)
The agency that makes the request must indemnify the issuing agency and any officer of the issuing agency, for any liability incurred by the issuing agency or the officer of the issuing agency (includingreasonable costs) if:
(a) the liability is incurred because of something done in the course of duty by the issuing agency or the officer of the issuing agency to comply with the request; and
(b) any requirements prescribed under the regulations have been met.
The following provisions apply to anything done in relation to a corresponding authority as if it were an authority granted under section 15KB:
(a) section 15KP (assumed identity may be acquired and used);
(b) section 15KT (particular qualifications);
(c) section 15KU (effect of being unaware of variation or cancellation of authority);
(d) section 15LB (misuse of assumed identity);
(e) section 15LC (disclosing information about assumed identity).
(2)
Sections 15KN, 15KQ and 15KR apply to anything done in relation to a corresponding authority as if:
(a) the corresponding authority were an authority granted under section 15KB; and
(b) references in those sections to an offence under a law of a State or Territory were omitted.
A person commits an offence if:
(a) the person is an authorised person (other than an authorised civilian); and
(b) the person acquires evidence of, or uses, an assumed identity; and
(c) the acquisition or use is not both:
(i) in accordance with an authority; and
(ii) in the course of duty; and
(d) the person is reckless as to the circumstance mentioned in paragraph (c).
Penalty: Imprisonment for 2 years.
(2)
An authorised civilian commits an offence if:
(a) the authorised civilian acquires evidence of, or uses, an assumed identity; and
(b) the acquisition or use is not in accordance with both:
(i) an authority; and
(ii) the directions of the authorised civilian's supervisor under the authority; and
(c) the authorised civilian is reckless as to the circumstance mentioned in paragraph (b).
Penalty: Imprisonment for 2 years.
A person commits an offence if: (a) the person engages in conduct; and (b) the conduct causes the disclosure of information; and (c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity.
Penalty: Imprisonment for 2 years.
(2)
A person commits an offence if: (a) the person engages in conduct; and (b) the conduct causes the disclosure of information; and (c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and (d) the person is reckless as to whether his or her conduct will endanger the health or safety of any person.
Penalty: Imprisonment for 10 years.
(3)
A person commits an offence if: (a) the person engages in conduct; and (b) the conduct causes the disclosure of information; and (c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and (d) the person is reckless as to whether his or her conduct will prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity.
Penalty: Imprisonment for 10 years.
(4)
A person does not commit an offence under subsection (1), (2) or (3) if the person causes the disclosure of information mentioned in paragraph (1)(c), (2)(c) or (3)(c) (as the case may be) and the disclosure is: (a) in connection with the administration or execution of this Part or a corresponding assumed identity law; or (b) for the purposes of any legal proceeding arising out of or otherwise related to this Part or a corresponding assumed identity law or of any report of any such proceedings; or (c) made by the Commonwealth Director of Public Prosecutions for the purposes of a legal proceeding; or (d) in accordance with the exercise of powers or performance of functions of a law enforcement agency or an intelligence agency; or (db) for the purpose of an IGIS official exercising a power, or performing a function or duty, as an IGIS official; or (da) in connection with the exercise of a power, or the performance of a function or duty, of the Inspector of the National Anti-Corruption Commission or a person assisting the NACC Inspector; or (e) in accordance with any requirement imposed by law.
Note 1:
A defendant bears an evidential burden in relation to the matters in subsection (4) - see subsection 13.3(3) of the Criminal Code.
Note 2:
The mere existence of an exception under subsection (4) does not mean that a person might not commit an offence under a provision of another Act (such as under Division 1 of Part 6 of the Intelligence Services Act 2001) if the person causes the disclosure of information mentioned in paragraph (1)(c), (2)(c) or (3)(c).
As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit a report to the Minister administering the National Anti-Corruption Commission Act 2022 (the NACC Minister ) that includes the following information for the year: (a) the number of authorities granted during the year; (b) a general description of the activities undertaken by authorised civilians and authorised law enforcement officers when using assumed identities under this Part during the year; (c) the number of applications for authorities that were refused during the year; (d) the number of authorities of which control was transferred by the chief officer under section 15KV during the year; (e) the number of authorities of which control was transferred to the chief officer under section 15KV during the year; (f) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15LG during the year; (g) any other information relating to authorities and assumed identities and the administration of this Part that the NACC Minister considers appropriate.
(2)
The chief officer must advise the NACC Minister of any information in the report that, in the chief officer's opinion, should be excluded from the report before the report is laid before the Parliament because the information, if made public, could reasonably be expected to: (a) endanger a person's safety; or (b) prejudice an investigation or prosecution; or (c) compromise any law enforcement agency's operational activities or methodologies.
(3)
The NACC Minister must exclude information from the report if satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the NACC Minister receives the report.
As soon as practicable after the end of each financial year, the chief officer of an intelligence agency must submit a report to the Inspector-General of Intelligence and Security (the Inspector-General ) that includes the following information for the year:
(a) the number of authorities granted during the year;
(b) a general description of the activities undertaken by authorised civilians and authorised intelligence officers when using assumed identities under this Part during the year;
(c) the number of applications for authorities that were refused during the year;
(d) the number of authorities of which control was transferred by the chief officer under section 15KV during the year;
(e) the number of authorities of which control was transferred to the chief officer under section 15KV during the year;
(f) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15LG during the year;
(g) any other information relating to authorities and assumed identities and the administration of this Part that the Inspector-General considers appropriate.
The chief officer of either a law enforcement agency or an intelligence agency must keep appropriate records about the operation of this Part in respect of the agency.
(2)
The records must include the following, in respect of authorities granted, varied or cancelled under this Part in respect of the agency:
(a) the date on which an authority was granted, varied or cancelled and the name of the person who granted, varied or cancelled it;
(b) the name of the authorised person under the authority, together with details of the assumed identity to which the authority applies;
(c) details of any request made to an issuing agency under section 15KI or 15KX (request for evidence of assumed identity) in respect of the authority;
(d) the general nature of the duties undertaken by the authorised person under the assumed identity;
(e) general details of relevant financial transactions entered into using the assumed identity;
(f) details of reviews of the authority under section 15KF (yearly review of authority).
(3)
The records must include the following in respect of authorities the control of which has been transferred to or from the chief officer of the agency under section 15KV:
(a) the names of the chief officers of the originating agency and the receiving agency in relation to the transfer;
(b) the name of the originating agency and the receiving agency in relation to the transfer;
(c) the date of the transfer;
(d) if control of the authority had previously been transferred under section 15KV:
(i) the date of each such transfer; and
(ii) the name of the originating agency and receiving agency in relation to each such transfer.
The chief officer of either a law enforcement agency or an intelligence agency must cause the records kept under section 15LF for each authority in respect of the agency to be audited:
(a) at least once every 6 months while the authority is in force; and
(b) at least once in the 6 months after the cancellation or expiry of the authority.
(2)
The audit is to be conducted by a person appointed by the chief officer.
(3)
The person appointed to conduct the audit:
(a) may, but need not be, an officer of the agency; and
(b) must not be a person:
(i) who granted, varied or cancelled any of the authorities to which the records under section 15LF relate; or
(ii) to whom control of any of the authorities to which the records under section 15LF relate was transferred; or
(iii) who is or was an authorised person under any of the authorities to which those records relate.
(4)
The results of an audit must be reported to the chief officer.
Except as provided by this section (and despite any other Act or law to the contrary) the functions of a chief officer under this Part may not be delegated to any other person.
(2)
A chief officer may delegate to a senior officer of the law enforcement agency or the intelligence agency (as the case may be) any of the chief officer's functions under this Part relating to the granting, variation, cancellation and transfer of control of authorities (including, but not limited to conducting reviews under section 15KF, making applications under section 15KG, giving directions under section 15KL and making requests under section 15KI or 15KX.
(3)
In this section:
(a) in relation to the Australian Federal Police:
(i) any senior executive AFP employee of the Australian Federal Police within the meaning of section 25 of the Australian Federal Police Act 1979; or
(ii) any Deputy Commissioner of Police within the meaning of section 6 of the Australian Federal Police Act 1979; or
(iii) a person occupying a position in the Australian Federal Police that is equivalent to or higher than the positions mentioned in subparagraphs (i) and (ii); and
(b) in relation to the Immigration and Border Protection Department - any SES employee in that Department; and
(c) in relation to the ACC - any SES employee who is a member of the staff of the ACC within the meaning of section 47 of the Australian Crime Commission Act 2002, or a person occupying an equivalent or higher position in the ACC; and
(d) in relation to the National Anti-Corruption Commission:
(i) a National Anti-Corruption Deputy Commissioner; or
(ii) another staff member of the NACC who is an SES employee, or a person occupying an equivalent or higher position, and who is authorised in writing by the National Anti-Corruption Commissioner for the purposes of this provision; and
(e) in relation to the Australian Taxation Office - any Deputy Commissioner as defined in section 2 of the Taxation Administration Act 1953, or a person occupying an equivalent or higher position in the Australian Taxation Office; and
(f) in relation to the Australian Security Intelligence Organisation - any senior position-holder within the meaning of the Australian Security Intelligence Organisation Act 1979; and
(g) in relation to the Australian Secret Intelligence Service ( ASIS ) - an intelligence officer who holds, or is acting in, a position in ASIS that is equivalent to, or higher than, a position occupied by an SES employee; and
(ga) in relation to the Office of National Intelligence - an SES employee in the Office of National Intelligence, or a person occupying an equivalent or higher position in the Office of National Intelligence; and
(gb) in relation to the Australian Signals Directorate - an intelligence officer who holds, or is acting in, a position in the Australian Signals Directorate that is equivalent to, or higher than, a position occupied by an SES employee in the Australian Signals Directorate; and
(h) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency - an officer specified in the regulations to be a senior officer of the agency.
In this Part:
assumed name
of an operative has the meaning given by paragraph 15MG(1)(a)(i).
chief officer
of a law enforcement agency means the following:
(a) in relation to the Australian Federal Police - the Commissioner of the Australian Federal Police;
(b) in relation to the Immigration and Border Protection Department - the Secretary of that Department;
(c) in relation to the ACC - the Chief Executive Officer of the ACC;
(d) in relation to the National Anti-Corruption Commission - the National Anti-Corruption Commissioner;
(e) in relation to the Australian Taxation Office - the Commissioner of Taxation;
(f) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency - the officer specified in the regulations as the chief officer of that agency.
conduct
includes any act or omission.
corresponding witness identity protection certificate
means a certificate given under a provision of a corresponding witness identity protection law that corresponds to section 15ME.
corresponding witness identity protection law
means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
court
includes any tribunal or person authorised by law or consent of parties to receive evidence.
court name
for an operative in relation to a proceeding, means a name (other than the operative's real name) or code used to identify the operative in the proceeding.
false representation
does not include a representation made under an authority under:
(a) Part IAB (about controlled operations); or
(b) Part IAC (about assumed identities).
"investigation"
means an investigation in relation to criminal activity, including an investigation extending beyond the Commonwealth.
jurisdiction
means the Commonwealth or a State or Territory of the Commonwealth.
law enforcement agency
means the following:
(a) the Australian Federal Police;
(b) the Immigration and Border Protection Department;
(c) the ACC;
(d) the National Anti-Corruption Commission;
(e) the Australian Taxation Office;
(f) any other Commonwealth agency specified in the regulations.
operative
means a person who is or was:
(a) a participant in a controlled operation authorised under Part IAB; or
(b) authorised to acquire and use an assumed identity under Part IAC by the chief officer of a law enforcement agency;
but does not include a person who is or was an intelligence officer (within the meaning of Part IAC).
(a) for a criminal proceeding - the prosecutor and each accused person; or
(b) for a civil proceeding - each person who is a party to the proceeding.
presiding officer
in relation to a proceeding, means the person constituting the court, or presiding over the court, in the proceeding.
proceeding
means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration.
professional misconduct
means fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty.
security
has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.
witness identity protection certificate
means a certificate given under section 15ME.
(2)
For the purposes of this Part:
(a) anything permitted to be done by a party to a proceeding may be done by the party's lawyer; and
(b) any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party's lawyer.
In this Part, criminal proceeding means a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences.
(2)
To avoid doubt, each of the following is part of a criminal proceeding :
(a) a bail proceeding;
(b) a committal proceeding;
(c) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;
(d) a sentencing proceeding;
(e) an appeal proceeding;
(f) a proceeding with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (within the meaning of subsection 39B(1B) of the Judiciary Act 1903) in relation to:
(i) a decision to prosecute a person for one or more offences against a law of the Commonwealth; or
(ii) a related criminal justice process decision (within the meaning of subsection 39B(3) of that Act);
(g) any other pre-trial, interlocutory or post-trial proceeding prescribed by regulations for the purposes of this paragraph.
In this Part, civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.
(2)
To avoid doubt, each of the following is part of a civil proceeding :
(a) any proceeding on an ex parte application (including an application made before pleadings are filed in a court);
(b) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;
(c) an appeal proceeding;
(d) any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.
For the purposes of this Part:
(a) a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways:
(i) the charge is withdrawn;
(ii) the charge is dismissed by a court;
(iii) the person is discharged by a court following a committal hearing;
(iv) the person is acquitted or found guilty of the offence by a court; and
(b) a charge against a person for an offence is pending if the person has not yet been charged with the offence, but:
(i) the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or
(ii) a summons to appear before a court to answer a charge for the offence has been served on the person; and
(c) an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with in accordance with the procedures that apply for the purposes of dealing with an allegation of that kind.
This Part applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.
(2)
To avoid doubt, this Part does not affect the operation of any law in relation to the protection of a person who gives, or intends to give, evidence in a proceeding.
(3)
To avoid doubt, this Part does not, other than as expressly provided, limit the power of a court to control proceedings in relation to a matter before it.
The chief officer of a law enforcement agency may give a witness identity protection certificate for an operative in relation to a proceeding if:
(a) the operative is, or may be required, to give evidence in the proceeding; and
(b) the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to:
(i) endanger the safety of the operative or another person; or
(ii) prejudice any current or future investigation; or
(iii) prejudice any current or future activity relating to security.
(2)
The chief officer must make all reasonable enquiries to enable the chief officer to ascertain the information required tobe included in the certificate by section 15MG.
(3)
The chief officer cannot give a certificate for an operative until the chief officer has obtained a statutory declaration from the operative under section 15MF.
Note:
The chief officer may delegate functions under this section - see section 15MX.
(4)
A decision to give a witness identity protection certificate:
(a) is final; and
(b) cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.
(5)
Subsection (4) does not prevent a decision to give a witness identity protection certificate being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.
(6)
A witness identity protection certificate purporting to be issued under subsection (1):
(a) must be taken to be such a certificate and to have been properly issued; and
(b) is prima facie evidence of the matters in the certificate.
(7)
A witness identity protection certificate is not a legislative instrument.
Before a witness identity protection certificate is given for an operative, the operative must make a statutory declaration of the following matters:
(a) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence;
(b) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge;
(c) if the operative is or was a law enforcement officer:
(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and
(ii) whether, to the operative's knowledge, any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation;
(d) whether, to the operative's knowledge, a court has made any adverse comment about the operative's credibility and, if so, particulars of the comment;
(e) whether the operative has made a false representation when the truth was required and, if so, particulars of the representation;
(f) if there is anything else known to the operative that may be relevant to the operative's credibility - particulars of the thing.
(2)
Subject to subsection (3), a person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceeding.
(3)
Subsection (2) does not apply to:
(a) proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or
(b) proceedings of a disciplinary nature against a law enforcement officer; or
(c) investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer.
A witness identity protection certificate for an operative in relation to a proceeding must state the following:
(a) if the operative:
(i) is known to a party to the proceeding or a party's lawyer by a name other than the operative's real name - that name (the assumed name ); or
(ii) is not known to any party to the proceeding or any party's lawyer by a name - the operative's court name for the proceeding;
(b) the period the operative was involved in the investigation to which the proceeding relates;
(c) the name of the agency;
(d) the date of the certificate;
(e) the grounds for giving the certificate;
(f) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence;
(g) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge;
(h) if the operative is or was a law enforcement officer:
(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and
(ii) whether any allegations of professional misconduct against the operative are outstanding and, if so, particulars of each allegation;
(i) whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative's credibility and, if so, particulars of the comment;
(j) whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation;
(k) if there is anything else known to the person giving the certificate that may be relevant to the operative's credibility - particulars of the thing.
(2)
A witness identity protection certificate for an operative must not contain information that may allow the operative's identity, or where the operative lives, to be revealed.
A witness identity protection certificate for an operative in relation to a proceeding must be filed in the court before the operative gives evidence in the proceeding.
(2)
The person who files the certificate must give a copy of it to each party to the proceeding at least 14 days (or the shorter period agreed to by the party) before the day the operative is to give evidence.
(3)
The court may order the person filing the certificate to give a copy of it to a person stated in the order.
(4)
This section applies subject to section 15MI.
The person who has filed, or proposes to file, a witness identity protection certificate may apply to the court for leave not to comply with the requirement under subsection 15MH(2) in relation to the time within which a copy of the certificate is to be given.
(2)
However, the court must not give such leave unless it is satisfied that it was not reasonably practicable to comply with the requirement referred to in subsection (1).
This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2)
If this section applies:
(a) the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and
(b) subject to section 15MM:
(i) a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; and
(ii) a witness, including the operative, cannot be required to (and must not) answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; and
(iii) a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.
(3)
For the purposes of this section, a person involved in a proceeding includes:
(a) the court; and
(b) a party to the proceeding; and
(c) a person given leave to be heard or make submissions in the proceeding; and
(d) a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceeding; and
(e) any other officer of the court or person assisting the court in the proceeding; and
(f) a person acting in the execution of any process or the enforcement of any order in the proceeding.
The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative for whom the certificate is given or to prevent the disclosure of where the operative lives.
(4)
The court must make an order suppressing the publication of anything said when an order is made as mentioned in subsection (1).
(5)
To avoid doubt, subsection (4) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
(6)
A person commits an offence if:
(a) an order has been made under subsection (1), (4) or (5); and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(7)
Subsection (6) does not limit the court's powers, including, but not limited to, the court's power to punish for contempt.
This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2)
The presiding officer in the proceeding may require the operative to do one or both of the following:
(a) to disclose the operative's true identity to the presiding officer;
(b) to provide the presiding officer with photographic evidence of that identity.
(3)
The presiding officer must not:
(a) record information disclosed to the presiding officer under subsection (2); or
(b) retain or copy a document or other thing provided to the presiding officer under that subsection.
This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.
(2)
A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court:
(a) for leave:
(i) to ask a question of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; or
(ii) for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; or
(b) for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.
(3)
In this section:
person involved in the proceeding
has the same meaning as in subsection 15MJ(3).
(4)
The court may do either or both of the following:
(a) give leave for the party or lawyer to do anything mentioned in paragraph (2)(a);
(b) make an order requiring a witness to do anything mentioned in paragraph (2)(b).
(5)
However, the court must not giveleave or make an order unless it is satisfied about each of the following:
(a) there is evidence that, if accepted, would substantially call into question the operative's credibility;
(b) it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative's identity or where the operative lives;
(c) it is in the interests of justice for the operative's credibility to be able to be tested.
(6)
If there is a jury in the proceeding, the application must be heard in the absence of the jury.
(7)
Unless the court considers that the interests of justice require otherwise, the court must be closed when:
(a) the application is made; and
(b) if leave is given or an order is made - the question is asked (and answered), the evidence is given, the information is provided or the statement is made.
(8)
The court must make an order suppressing the publication of anything said when:
(a) the application is made; and
(b) if leave is given or an order is made - the question is asked (and answered), the evidence is given, the information is provided or the statement is made.
(9)
To avoid doubt, subsection (8) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.
(10)
The court may make any other order it considers appropriate to protect the operative's identity or to prevent the disclosure of where the operative lives.
(11)
A person commits an offence if:
(a) an order has been made under subsection (8), (9) or (10); and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(12)
Subsection (11) does not limit the court's powers, including, but not limited to, the court's power to punish for contempt.
This section applies if:
(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and
(b) a person applies:
(i) for leave under section 15MI or 15MM; or
(ii) for an order under section 15MK or 15MM.
(2)
The court in which the application is pending may allow a person to join the application as a respondent if:
(a) the person is:
(i) the operative in relation to whom the witness identity protection certificate is given; or
(ii) the chief officer of the agency who gave the witness identity protection certificate; and
(b) the person applies to be joined to the application as a respondent; and
(c) the person has sufficient interest in the subject matter of the application.
(3)
If a court allows a person to join the application as a respondent under subsection (2), the court must allow the person, or the person's legal representative, to appear and be heard.
This section applies if:
(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and
(b) there is a jury in the proceeding; and
(c) the operative gives evidence.
(2)
The court must (unless it considers it inappropriate) direct the jury not to give the operative's evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because:
(a) there is a witness identity protection certificate for the operative; or
(b) the court has made an order under section 15MK or subsection 15MM(8), (9) or (10).
This section applies if, in proceedings before a court (the original court ):
(a) the original court gives, or refuses, leave under section 15MI or 15MM in relation to a witness identity protection certificate for an operative; or
(b) the original court makes, or refuses to make, an order under section 15MK or 15MM in relation to a witness identity protection certificate for an operative.
(2)
A court (the appeal court ) that has jurisdiction to hear and determine appeals from a judgment, order or direction in the proceedings has jurisdiction to hear and determine an appeal against the decision to give or refuse leave, or to make or refuse to make the order.
(3)
The following persons may appeal against the decision to give or refuse leave, or to make or refuse to make the order:
(a) a party to the proceedings;
(b) if the appeal court is satisfied that the operative to whom the certificate relates or the chief officer who gave the certificate has a sufficient interest in the decision - the operative or the chief officer.
(4)
If a party to the proceedings appeals against the decision to give or refuse leave, or to make or refuse to make the order, the appeal court may allow the operative to whom the certificate relates, or the chief officer who gave the certificate, to join the appeal as a respondent, if the appeal court is satisfied that the operative or chief officer has a sufficient interest in the decision.
(5)
A party to the proceedings, the operative to whom the certificate relates or the chief officer who gave the certificate may apply to the original court for an adjournment:
(a) to appeal against the decision of the original court to give or refuse leave, or to make or refuse to make the order; or
(b) to decide whether to appeal or seek leave to appeal against the decision.
(6)
If an application is made under subsection (5), the original court must grant the adjournment.
This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2)
The chief officer must cancel the witness identity protection certificate if the chief officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative's identity or where the operative lives.
(3)
If the chief officer cancels the certificate after it has been filed in a court, the chief officer must immediately give notice to the court and each party to the proceeding, in writing, that the certificate has been cancelled.
Note:
The chief officer may delegate functions under this section - see section 15MX.
This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2)
The chief officer may, in writing, permit a person to give information (otherwise than in the proceeding) that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives if the chief officer considers it necessary or appropriate for the information to be given.
(3)
The permission:
(a) must name the person who may give the information; and
(b) must name the person to whom the information may be given; and
(c) must state the information that may be given; and
(d) may state how the information may be given.
Note:
The chief officer may delegate functions under this section - see section 15MX.
A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR.
Penalty: Imprisonment for 2 years.
(2)
A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR.
(f) the person is reckless as to whether his or her conduct will endanger the health or safety of another person.
Penalty: Imprisonment for 10 years.
(3)
A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR; and
(f) the person is reckless as to whether his or her conduct will:
(i) prejudice any current or future investigation; or
(ii) prejudice any current or future activity relating to security.
Penalty: Imprisonment for 10 years.
A chief officer of a law enforcement agency may sign a certificate stating any of the following:
(a) that, for the purposes of paragraph 15MS(1)(b), (2)(b) or (3)(b), a witness identity protection certificate for an operative in relation to a proceeding has not been cancelled under section 15MQ;
(b) whether, for the purposes of subparagraph 15MS(1)(e)(i), (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the offence was required by section 15ML;
(c) whether, for the purposes of subparagraph 15MS(1)(e)(ii), (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the offence was authorised by leave or by an order under section 15MM;
(d) whether, for the purposes of subparagraph 15MS(1)(e)(iii), (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the offence was permitted under section 15MR.
(2)
In any proceedings, a certificate given under this section is prima facie evidence of the matters certified in it.
As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit to the Minister a report about witness identity protection certificates given by the chief officer during that year.
(2)
The report must include the following:
(a) the number of witness identity protection certificates given;
(b) on what basis the chief officer was satisfied about the matters mentioned in paragraph 15ME(1)(b) for each certificate;
(c) if disclosure of an operative's identity to a presiding officer was required by section 15ML - details of the proceeding in relation to which disclosure was required and details of the things that the presiding officer required the operative to do under that section;
(d) if leave was given or an order made under section 15MM in a proceeding in which a witness identity protection certificate for an operative was filed - details of the proceeding that relate to the leave or order;
(e) if leave was given for joinder of a person as a respondent to proceedings under section 15MN - details of the person who was joined and who appeared on their behalf;
(f) if leave was given for an adjournment under section 15MP - details of whether an appeal was made against the decision under that section;
(g) if a witness identity protection certificate was cancelled under section 15MQ - the reasons why the certificate was cancelled;
(h) if a permission was given under section 15MR - the reasons why the permission was given;
(i) any other information relating to witness identity protection certificates and the administration of this Part that the Minister considers appropriate.
(3)
A report must not include information that discloses, or may lead to the disclosure of, an operative's identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.
(4)
The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
The following provisions apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 15ME:
(a) section 15MH (filing and notification);
(b) section 15MI (leave for non-compliance);
(c) section 15MJ (effect of witness identity protection certificate);
(d) section 15MK (orders to protect operative's identity etc);
(e) section 15ML (disclosure of operative's identity to presiding officer);
(f) section 15MM (disclosure of operative's identity etc despite certificate);
(g) section 15MN (application for leave - joinder as respondent);
(h) section 15MO (directions to jury);
(i) section 15MP (adjournment for appeal decision);
(j) section 15MS (disclosure offences);
(k) section 15MT (evidentiary certificates).
Except as provided by this section (and despite any other Act or law to the contrary), the functions of a chief officer under this Part may not be delegated to any other person.
(2)
A chief officer may delegate any of the chief officer's functions under this Part (except this power of delegation) to a senior officer of the law enforcement agency.
(3)
In this section:
(a) in relation to the Australian Federal Police - a Deputy Commissioner, an Assistant Commissioner, or a person occupying an equivalent or higher rank in the Australian Federal Police; and
(b) in relation to the Immigration and Border Protection Department - a person who holds or performs the duties of an SES Band 3 position, or an equivalent or higher position, in that Department; and
(c) in relation to the ACC, either of the following:
(i) the Executive Director Operational Strategies, the Executive Director Intelligence Strategies, or a person occupying an equivalent or higher position in the ACC;
(ii) a person occupying a position prescribed by the regulations; and
(d) in relation to the Australian Taxation Office - an Assistant Commissioner, or a person occupying an equivalent or higher position in the Australian Taxation Office; and
(e) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency - an officer of the agency specified in the regulations to be a senior officer of the agency.
Proceedings involving children
(1)
This Part contains special rules for children involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(a) (Repealed by No 42 of 2010)
(b) an offence against section 71.8 of the Criminal Code (sexual assault of United Nations and associated personnel);
(c) an offence against Division 270 of the Criminal Code (slavery and slavery-like offences);
(caa) an offence against Division 271 of the Criminal Code (trafficking in persons);
(cab) an offence against Division 272 of the Criminal Code (child sex offences outside Australia);
(cac) an offence against Division 273 of the Criminal Code (offences involving child abuse material outside Australia);
(cad) an offence against Division 273B of the Criminal Code (protection of children);
(ca) an offence against Subdivision B or C of Division 471 of the Criminal Code (offences relating to use of postal or similar service involving sexual activity with person under 16);
(cba) an offence against Subdivision D or F of Division 474 of the Criminal Code (offences relating to use of carriage service involving sexual activity with, or harm to, person under 16);
(cb) an aggravated offence against Subdivision C of Division 12 of Part 2 of the Migration Act 1958;
(d) a sexual offence specified in the regulations;
(e) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in one of the preceding paragraphs of this subsection;
(f) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
an offence of a kind referred to in one of the preceding paragraphs of this subsection.
(iii) inciting the commission of;
Proceedings involving adult complainants
(2)
This Part contains special rules for adult complainants involved in proceedings to which this subsection applies. This subsection applies to proceedings for any of the following offences:
(a) an offence against Division 270 of the Criminal Code (slavery and slavery-like offences);
(b) an offence against Division 271 of the Criminal Code (trafficking in persons);
(c) an offence that includes the commission of, or the intention to commit, an offence of a kind referred to in paragraph (a) or (b);
(d) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
an offence of a kind referred to in paragraph (a), (b) or (c).
(iii) inciting the commission of;
Proceedings involving special witnesses
(3)
This Part contains special rules that can apply for special witnesses involved in proceedings for any Commonwealth offence.
Related proceedings included
(4)
Each of subsections (1), (2) and (3) also applies to any proceedings connected with a proceeding referred to in that subsection.
Example:
Committal proceedings.
(5)
Similarly, subsection 15YAB(1) (about special witnesses) also applies to any proceedings connected with a proceeding for a Commonwealth offence.
In this Part, unless the contrary intention appears:
adult
means a person who is 18 or over.
child
means a person who is under 18.
child complainant
, in relation to a child proceeding, means a child who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(1), to which the proceeding relates. The child need not be involved in the proceeding or the initiation of the proceeding.
child proceeding
means a proceeding to which subsection 15Y(1) applies.
child witness
, in relation to a child proceeding, means a child (including a child complainant) who is a witness in the proceeding.
closed-circuit television
includes any similar technology specified in the regulations.
credibility
has the meaning given by the Evidence Act 1995.
cross-examination
has the meaning given by the Evidence Act 1995.
evidence in chief
means evidence given in examination in chief within the meaning of the Evidence Act 1995.
party
to a proceeding includes the prosecutor, each defendant and each person named in evidence given in the proceeding.
proceeding
means a proceeding to which one or more of subsections 15Y(1), (2) and (3) apply.
special witness
has the meaning given by subsection 15YAB(1).
special witness proceeding
means a proceeding to which subsection 15Y(3) applies.
vulnerable adult complainant
has the meaning given by section 15YAA.
vulnerable adult proceeding
means a proceeding to which subsection 15Y(2) applies.
A vulnerable adult complainant , in relation to a vulnerable adult proceeding, is an adult who is, or is alleged to be, a victim of an offence, of a kind referred to in subsection 15Y(2), to which the proceeding relates.
(2)
However, the adult is not a vulnerable adult complainant if the adult informs the court that he or she does not wish to be treated as such a complainant.
(3)
A vulnerable adult complainant need not be involved in the vulnerable adult proceeding or the initiation of that proceeding.
Meaning of special witness
(1)
In a proceeding for a Commonwealth offence, the court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:
(a) a disability; or
(b) intimidation, distress or emotional trauma arising from:
(i) the person's age, cultural background or relationship to a party to the proceeding; or
(ii) the nature of the evidence; or
(iii) some other relevant factor.
Note:
Such a declaration can also be made in a related proceeding (see subsection 15Y(5)).
(2)
A declaration under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the proceeding.
Orders that certain protections apply to a special witness
(3)
In a special witness proceeding, the court may order that one or more of the following sections apply to a special witness:
(a) section 15YG (about unrepresented defendants);
(b) section 15YH (about represented defendants);
(ba) section 15YHA (about cross-examinations at committal proceedings);
(c) section 15YI (about closed-circuit television);
(d) section 15YL (about alternative arrangements);
(e) section 15YM (about use of video recordings);
(f) section 15YO (about accompanying adults);
(g) section 15YP (about excluding people from the courtroom).
(4)
An order under subsection (3) may be made on the court's own initiative or on application by or on behalf of the special witness.
Evidence of a child witness' or child complainant's reputation with respect to sexual activities is inadmissible in a child proceeding, unless the court gives leave.
(2)
The court must not give leave unless satisfied that the evidence is substantially relevant to facts in issue in the proceeding.
(3)
The evidence is not to be treated as substantially relevant to facts in issue merely because of inferences it may raise as to the child witness' or child complainant's general disposition.
(4)
If the evidence is admitted, it must not be treated as relevant to the child witness' or child complainant's credibility.
(5)
This section does not apply if the child is a defendant in the proceeding.
SECTION 15YC Evidence of sexual experience (1)
Evidence of a child witness' or child complainant's experience with respect to sexual activities is inadmissible in a child proceeding, unless:
(a) the court gives leave; or
(b) the evidence is of sexual activities with a defendant in the proceeding.
(2)
The court must not give leave unless satisfied that:
(a) the evidence is substantially relevant to facts in issue in the proceeding; or
(b) if the evidence relates to the credibility of a child witness and is to be adduced in cross-examination of the child - the evidence has substantial probative value.
(3)
The evidence is not to be treated as being substantially relevant to facts in issue merely because of inferences it may raise as to the child witness' or child complainant's general disposition.
(4)
Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
(5)
This section does not apply if the child is a defendant in the proceeding.
SECTION 15YD Leave under this division (1)
An application for leave under this Division:
(a) must be in writing; and
(b) if there is a jury in the proceeding in question - must be made in the jury's absence; and
(c) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(2)
If the court gives leave under this Division, the court must:
(a) state its reasons in writing; and
(b) cause those reasons to be entered in the court's records.
Division 3 - Cross-examination
The court must disallow a question put to a person in cross-examination in a proceeding if:
(a) the question is inappropriate or unnecessarily aggressive; and
(b) the person is a person to whom subsection (3) applies.
(2)
In considering whether a question is inappropriate or unnecessarily aggressive, the court is to have regard to the person's personal characteristics, including his or her age, culture, mental capacity and gender.
(3)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness.
SECTION 15YF Unrepresented defendants - cross-examination of child complainants (1)
A defendant in a child proceeding who is not represented by counsel is not to cross-examine a child complainant.
Note:
A person is not to cross-examine certain persons at committal proceedings or proceedings of a similar kind - see section 15YHA.
(2)
A person appointed by the court is to ask the child any questions that the defendant requests the person to ask the child.
SECTION 15YG Unrepresented defendants - cross-examination of vulnerable persons (1)
A defendant in a proceeding who is not represented by counsel is not to cross-examine a person to whom subsection (1A) applies (the vulnerable person ), unless the court gives leave.
Note:
A person is not to cross-examine certain persons at committal proceedings or proceedings of a similar kind - see section 15YHA.
(1A)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness (other than a child complainant);
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(2)
The court must not give leave under subsection (1) unless satisfied that the vulnerable person's ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination.
(3)
In considering whether that ability will be adversely affected, the court is to have regard to any trauma that could be caused if the defendant conducts the cross-examination.
(4)
An application for leave under this section:
(aa) if the vulnerable person is a vulnerable adult complainant - may be made by or on behalf of the defendant or the vulnerable person; and
(a) must be in writing; and
(b) must not be determined before the court has considered such submissions and other evidence as it thinks necessary for determining the application.
(5)
If the court refuses leave, a person appointed by the court is to ask the vulnerable person any questions that the defendant requests the person to ask the vulnerable person.
SECTION 15YH Represented defendants - cross-examination of vulnerable persons (1)
A defendant in a proceeding who is represented by counsel is not to cross-examine, except through counsel, a person to whom subsection (2) applies.
Note:
A person is not to cross-examine certain persons at committal proceedings or proceedings of a similar kind - see section 15YHA.
(2)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is inforce for this section.
A person is not to cross-examine, at committal proceedings or proceedings of a similar kind, a person to whom subsection (2) applies.
(2)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.
Evidence in a proceeding from a person to whom subsection (1A) applies (the vulnerable person ) must be given by means of closed-circuit television unless:
(a) the vulnerable person is at least 16 and chooses not to give evidence by that means; or
(b) the court orders that the vulnerable person is not to give evidence by that means; or
(c) the court is not equipped with facilities for evidence to be given by means of closed-circuit television.
Note:
Section 15YL provides for alternative arrangements if a vulnerable person does not give evidence by means of closed-circuit television.
(1A)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(2)
The court must not make an order under paragraph (1)(b) unless satisfied that it is not in the interests of justice for the vulnerable person's evidence to be given by means of closed-circuit television.
(3)
This section does not affect the operation of any law in relation to the competence of a person to give evidence.
SECTION 15YJ Giving evidence by closed-circuit television (1)
If the vulnerable person's evidence is given by means of closed-circuit television from a location outside a courtroom:
(a) that location is taken to be part of the courtroom in which the proceeding is being held; and
(b) the court may order that a court officer be present at that location; and
(c) the court may order that another person be present with the vulnerable person:
(i) to act as an interpreter; or
(ii) to assist the vulnerable person with any difficulty in giving evidence associated with a disability; or
(iii) to provide the vulnerable person with other support.
(2)
An order under paragraph (1)(b) or (c) does not limit the operation of section 15YO (about accompanying adults).
(3)
The court may adjourn the proceeding, or a part of the proceeding, to a court or other place that is equipped with facilities for evidence to be given by means of closed-circuit television if:
(a) the court is not equipped with facilities for evidence to be given by means of closed-circuit television; or
(b) the court otherwise considers it appropriate to do so.
SECTION 15YK 15YK Viewing evidence given by closed-circuit television
If the vulnerable person's evidence is given by means of closed-circuit television, the facilities used are to be operated in such a way that the people who have an interest in the proceeding can see the vulnerable person, and any person present with the vulnerable person, on one or more television monitors.
If evidence in a proceeding from a person to whom subsection (3) applies is not to be given by means of closed-circuit television, the court:
(a) must make arrangements in order to restrict contact (including visual contact) that the person may have with any defendant while giving evidence; and
(b) may make arrangements in order to restrict contact (including visual contact) that the person may have with members of the public while giving evidence.
(2)
The arrangements may include either of the following:
(a) using screens;
(b) planning seating arrangements for people who have an interest in the proceeding, including:
(i) the level at which they are seated; and
(ii) the people in the person's line of vision.
Persons to whom these alternative arrangements apply
(3)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section;unless that person is at least 16 and chooses not to give evidence under the arrangements.
Division 5 - Use of video recordings
A video recording of an interview of a person to whom subsection (1A) applies in a proceeding may be admitted as evidence in chief if a constable, or a person of a kind specified in the regulations, conducted the interview.
(1A)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.
(2)
(Repealed by No 70 of 2020)
(3)
(Repealed by No 70 of 2020)
(4)
Subject to Division 3, the person must be available for cross-examination and re-examination if he or she gives evidence in chief by a video recording.
Note 1:
Division 4 provides for this evidence to be given using closed-circuit television or other arrangements.
Note 2:
Division 3 imposes limitations on cross-examinations. For example, a person is not to cross-examine certain persons at committal proceedings or proceedings of a similar kind - see section 15YHA.
SECTION 15YN Admissibility of evidence given using video recordings (1)
The admissibility of the evidence given by video recording is not affected by the fact that it is evidence of previousrepresentations that the person made in the interview that was being recorded.
(2)
Evidence given by video recording under section 15YM is not admissible if the court is satisfied that:
(a) any defendant in the proceeding (other than the person if the person is a defendant); or
(b) the defendant's lawyer (if any);
was not given a reasonable opportunity to listen to and view the recording.
(3)
The court may refuse to admit the whole or part of the contents of a recording adduced as evidence under section 15YM.
Division 5A - Special rules for later trials
This Division applies if a proceeding (the original proceeding ) involving the trial of one or more defendants:
(a) concludes and, on appeal, a new proceeding involving the trial of any or all of the defendants is ordered; or
(b) is discontinued and a new proceeding involving the trial of any or all of the defendants is ordered.
For the new proceeding, the prosecutor may prepare a record of all the evidence given by any person to whom subsection (4) applies (the vulnerable person ) in the original proceeding if:
(a) the record is in a form, and is authenticated in a way, prescribed under subsection (5); and
(b) the prosecutor gives written notice to the court, and to the defendants in the new proceeding, of the prosecutor's intention to tender that record as evidence in the new proceeding; and
(c) that notice is so given:
(i) at least 21 days before the court commences hearing the new proceeding; or
(ii) within such other period as the court allows.
Note:
The record would include all the evidence given in the original proceeding by the vulnerable person (whether evidence on examination in chief, on cross-examination or on re-examination).
(2)
However, the prosecutor may alter or edit that record with the agreement of each defendant in the new proceeding.
(3)
Both of the following are admissible as evidence in the new proceeding:
(a) a record of evidence prepared under subsection (1) and (2);
(b) the exhibits tendered in the original proceeding in connection with that evidence.
(4)
This subsection applies to the following persons:
(a) if the original proceeding was a child proceeding - a child complainant;
(b) if the original proceeding was a vulnerable adult proceeding - a vulnerable adult complainant.
(5)
The Minister may, in writing, prescribe the form, and ways for authenticating, records prepared under subsection (1).
SECTION 15YNC Vulnerable person not to be made to give further evidence (1)
A vulnerable person whose evidence is included in a record admitted under section 15YNB need not give any further evidence in the new proceeding unless the court orders that this is necessary:
(a) to clarify the vulnerable person's evidence given in the original proceeding; or
(b) to give proper consideration of information or material that has become available since the original proceeding; or
(c) in the interests of justice.
Note:
This subsection covers further evidence that could otherwise be given on examination in chief, on cross-examination or on re-examination.
(2)
If the court makes an order under subsection (1), the court is to ensure that the vulnerable person is questioned in the new proceeding only about the matters specified in the order.
(3)
An order under subsection (1) may be made on the court's own initiative or on application by or on behalf of a party to the new proceeding.
(4)
Despite subsection (1), the vulnerable person may seek leave of the court to give further evidence in the new proceeding. Subsections (1) and (2) cease to apply to the person if leave is given.
SECTION 15YND Defendants' access to video recordings (1)
If a record prepared under subsections 15YNB(1) and (2) includes a video recording, neither:
(a) the defendants in the new proceeding; nor
(b) their legal representatives in the new proceeding;
are entitled to be given the video recording or a copy of it.
(2)
However, they must be given reasonable access to the video recording in order to view it.
Note:
This may require access on more than one occasion.
If there is a jury in the new proceeding, the judge is not to warn the jury, or suggest to the jury in any way, that the law requires greater or lesser weight to be given to evidence that is included in a record admitted under section 15YNB.
This Division has effect despite the Evidence Act 1995, any other law and any other rules of evidence or procedure.
A person to whom subsection (1A) applies may choose an adult to accompany the person while the person is giving evidence in a proceeding (including while giving evidence by closed-circuit television).
(1A)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section;
(2)
The adult chosen under subsection (1) may accompany the person as mentioned in subsection (1), unless the court determines that it is not appropriate for the adult to accompany the person.
(3)
The court may permit more than one adult to accompany the person if the court considers it in the interests of justice to do so.
(4)
An adult accompanying the person under this section must not:
(a) prompt the person or otherwise influence the person's answers; or
(b) disrupt the questioning of the person.
(5)
Any words spoken by an adult accompanying the person under this section must be able to be heard by:
(a) the judge; and
(b) if there is a jury in the proceeding - the members of the jury.
SECTION 15YP 15YP Excluding people from the courtroom
The court may order that some or all of the members of the public be excluded from the courtroom in which any of the following persons is giving evidence in a proceeding:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness for whom an order under subsection 15YAB(3) is in force for this section.
If there is a jury in a proceeding in which a person to whom subsection (2) applies has given or will give evidence, the judge is not to warn the jury, or suggest to the jury in any way:
(a) that the law regards persons to whom subsection (2) applies as an unreliable class of witness; or
(b) that the law requires greater or lesser weight to be given to evidence that is given by closed-circuit television or alternative arrangements under Division 4; or
(c) that the law requires greater or lesser weight to be given to evidence that is given by a video recording under Division 5; or
(d) that the law requires greater or lesser weight to be given to evidence because an adult accompanies the person under section 15YO.
(2)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant;
(c) for a special witness proceeding - a special witness.
A person commits an offence if:
(a) the person publishes any matter; and
(b) the person does not have the leave of the court to publish the matter; and
(c) the matter:
(i) identifies another person, who is a person to whom subsection (1A) applies (the vulnerable person ) in relation to a proceeding, as being a child witness, child complainant or vulnerable adult complainant; or
(ii) is likely to lead to the vulnerable person being identified as such a person; and
(d) the vulnerable person is not a defendant in the proceeding.
(1A)
This subsection applies to the following persons:
(a) for a child proceeding - a child witness or child complainant;
(b) for a vulnerable adult proceeding - a vulnerable adult complainant.
(2)
This section does not apply if the publication is in:
(a) an official publication in the course of, and for the purpose of, the proceeding; or
(b) a document prepared for use in particular legal proceedings (whether or not the legal proceedings are a proceeding within the meaning of this Part).
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3)
The court may give leave to a person to publish the matter.
(4)
In deciding whether to give leave, the court is to have regard to:
(a) any trauma to the vulnerable person that the publication could cause; and
(b) any damage to the reputation of the vulnerable person that the publication could cause; and
(c) whether the publication is:
(i) for the purpose of supplying transcripts of the proceedings to persons with a genuine interest in the proceedings; or
(ii) for genuine research purposes.
(5)
Leave may be given after the proceedings have finished. For this purpose, the court need not be constituted by the same judicial officers who constituted the court in the proceedings.
(6)
An application for leave under this section must be in writing.
(7)
A person who makes an application for leave under this section must take reasonable steps to give written notice of the application to each of the following:
(a) the prosecutor in the proceeding;
(b) each defendant in the proceeding;
(c) each other party to the proceeding to whom subsection (1A) applies.
(8)
If a party referred to in paragraph (7)(c) is a child at the time the application is made, the notice must be given to a parent, guardian or legal representative of the party.
(9)
A notice under subsection (7) must:
(a) be given no later than 3 business days before the day the application is to be heard; and
(b) be accompanied by a copy of the application.
(10)
An application for leave under this section must not be determined unless the court:
(a) is satisfied the applicant has taken reasonable steps to give notice of the application in accordance with subsections (7), (8) and (9); and
(b) has considered such submissions and other evidence as it thinks necessary for determining the application.
The power of a court to control the conduct of a proceeding is not affected by this Part, except so far as this Part provides otherwise expressly or by necessary intendment.
(2)
In particular, the powers of a court to control the questioning of witnesses are not affected.
(3)
The power of a court to give leave under this Part includes the power to give such leave subject to conditions.
SECTION 15YT 15YT Other video link evidence provisions are unaffected
Nothing in this Part affects the operation of Division 279 of the Criminal Code (about video link evidence in offences against humanity).
This Part applies to any proceedings for:
(a) an offence against subsection 34GD(8) of the Australian Security Intelligence Organisation Act 1979, if the questioning warrant to which the offence relates is a PMV-related questioning warrant; or (b) an offence against section 49 of the Aviation Transport Security Act 2004; or (c) an offence against section 21 of the Charter of the United Nations Act 1945; or (d) an offence against Subdivision A of Division 72 of the Criminal Code; or (da) an offence against Subdivision B of Division 80 of the Criminal Code (treason); or (db) an offence against Division 82 of the Criminal Code (sabotage); or (e) an offence against Part 5.3 of the Criminal Code; or (f) an offence against Part 5.4 of the Criminal Code; or (fa) an offence against Part 5.5 of the Criminal Code; or(g) (Repealed by No 67 of 2018) (h) an offence against Division 1 of Part 2 of the Crimes (Aviation) Act 1991; or (i) an offence against section 8 of the Crimes (Biological Weapons) Act 1976; or
(j) (Repealed by No 116 of 2014) (k) an offence againstsection 8 of the Crimes (Hostages) Act 1989; or (l) an offence against the Crimes (Internationally Protected Persons) Act 1976; or (m) an offence against section 6 of this Act that relates to an offence mentioned in any of the above paragraphs.
Note 1:
For the definitions of PMV-related questioning warrant and questioning warrant , see subsection (5).
Note 2:
For other ancillary offences, see section 11.6 of the Criminal Code.
(a) any proceedings, including committal proceedings or proceedings of a similar kind, connected with proceedings covered by subsection (1); and
(b) proceedings under the Proceeds of Crime Act 2002 in relation to an offence referred to in subsection (1). (3) Timing of proceedings.
It is immaterial whether proceedings covered by subsection (1) or (2) were instituted before or after the commencement of this Part.
(4) Extended meaning of prosecutor and defendant .This Part has effect, in relation to a proceeding under the Proceeds of Crime Act 2002, as if:
(a) the responsible authority for the proceeding under that Act were the prosecutor; and
(b) each other party to the proceeding were a defendant in the proceeding.
Note:
Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).
In this section:
PMV-related questioning warrant
means a questioning warrant that is issued in relation to politically motivated violence (within the meaning of the Australian Security Intelligence Organisation Act 1979).
questioning warrant
has the same meaning as in Division 3 of Part III of the Australian Security Intelligence Organisation Act 1979.
In a proceeding, the court must:
(a) direct; or
(b) by order, allow;
a witness to give evidence by video link if:
(c) both:
(i) the prosecutor applies for the direction or order; and
(ii) the court is satisfied that the prosecutor gave the court reasonable notice of his or her intention to make the application; and
(d) the witness is not a defendant in the proceeding; and
(e) the witness is available, or will reasonably be available, to give evidence by video link; and
(f) the facilities required by section 15YY are available or can reasonably be made available;
unless the court is satisfied that giving the direction or making the order would have a substantial adverse effect on the right of a defendant in the proceeding to receive a fair hearing.
(2) Application by defendant.In a proceeding, the court must:
(a) direct; or
(b) by order, allow;
a witness to give evidence by video link if:
(c) both:
(i) a defendant in the proceeding applies for the direction or order; and
(ii) the court is satisfied that the defendant gave the court reasonable notice of his or her intention to make the application; and
(d) the witness is not a defendant in the proceeding; and
(e) the witness is available, or will reasonably be available, to give evidence by video link; and
(f) the facilities required by section 15YY are available or can reasonably be made available;
unless the court is satisfied that it would be inconsistent with the interests of justice for the evidence to be given by video link.
(3)(Repealed by No 75 of 2018)
SECTION 15YW Observers (1) Observer.
The court may, in a section 15YV direction or order, provide that the witness can give evidence under the direction or order only if, when the witness is giving evidence by video link, there is physically present, at the place where the evidence is given, a person specified in the direction or order for the purposes of this section.
(2)If a section 15YV direction or order is in force, the court may vary the direction or order so as to provide that, after the variation, the witness can give evidence under the direction or order only if, when the witness is giving evidence by video link, there is physically present, at the place where the evidence is given, a person specified in the direction or order for the purposes of this section.
(3) Substitution of observer.
(a) a direction or order is in force under section 15YV; and
(b) the direction or order specifies a person for the purposes of this section;
the court may vary the direction or order so as to substitute another specified person.
(4) Who can be an observer.A person specified for the purposes of this section may be:
(a) an Australian diplomatic officer; or
(b) an Australian consular officer; or
(c) any other person. (5)
The court must not specify a person for the purposes of this section unless the court is satisfied that the person is:
(a) independent of the prosecutor; and
(b) independent of each defendant in the proceeding; and
(c) in a position to give a report to the court about what the person observes in relation to the giving of evidence by the witness; and
(d) reasonably available to observe the giving of evidence by the witness; and
(e) an appropriate person to be specified for the purposes of this section.
(6)
For the purposes of this section, the mere fact that a person is an Australian diplomatic officer or Australian consular officer does not mean that the person is not independent of the prosecutor.
(7) Report of observer.
(a) a direction or order is in force under section 15YV; and
(b) the direction or order specifies a person for the purposes of this section;
the court may:
(c) direct or allow the specified person to give the court a report, in such form and by such time as the court requires, about what the person observed in relation to the giving of evidence by the witness; and
(d) make such use of the report as the court considers appropriate for the purpose of deciding whether evidence given by the witness under the section 15YV direction or order should be admitted as evidence in the proceeding. (8) Definitions.
In this section:
Australian consular officer
has the
same meaning as in the Consular Fees Act 1955.
Australian
diplomatic officer
has the same meaning as in the Consular Fees Act 1955.
(a) a court gives a section 15YV direction or makes a section 15YV order; and
(b) the prosecutor applied for the direction or order;
a defendant in the proceeding may apply to the court for an adjournment of the proceeding to allow time for the defendant to:
(c) decide whether to appeal against the direction or order; and
(d) if the defendant decides to do so - make the appeal. (2)
If:
(a) a court gives a section 15YV direction or makes a section 15YV order; and
(b) a defendant in the proceeding applied for the direction or order;
the prosecutor may apply to the court for an adjournment of the proceeding to allow time for the prosecutor to:
(c) decide whether to:
(i) appeal against the direction or order; or
(ii) withdraw the proceeding; and
(d) if the prosecutor decides to do so - make the appeal or withdrawal.
(3) Court refuses to give a direction or make an order.
(a) a court refuses to give a section 15YV direction or refuses to make a section 15YV order; and
(b) the prosecutor applied for the direction or order;
the prosecutor may apply to the court for an adjournment of the proceeding to allow time for the prosecutor to:
(c) decide whether to:
(i) appeal against the refusal; or
(ii) withdraw the proceeding; and
(d) if the prosecutor decides to do so - make the appeal or withdrawal. (4)
If:
(a) a court refuses to give a section 15YV direction or refuses to make a section 15YV order; and
(b) a defendant in the proceeding applied for the direction or order;
the defendant may apply to the court for an adjournment of the proceeding to allow time for the defendant to:
(c) decide whether to appeal against the refusal; and
(d) if the defendant decides to do so - make the appeal.
(5) Grant of adjournment.
If an application is made under this section,
the court must grant the adjournment.
Note:
For appeals, see section 15YZD.
A witness can give evidence under a section 15YV direction or order only if:
(a) the courtroom or other place where the court is sitting (the courtroom point ); and
(b) the place where the evidence is given (the witness point );
are equipped with video facilities that:
(c) enable appropriate persons at the courtroom point to see and hear the witness give the evidence; and
(d) enable appropriate persons at the witness point to see and hear appropriate persons at the courtroom point.
(2)
In subsection (1):
appropriate
persons
means such persons as the court considers appropriate.
SECTION 15YZ Direction to jury (1)
If:
(a) a proceeding involves a jury; and
(b) a witness gives evidence under a section 15YV direction or order; and
(c) the evidence is admissible in the proceeding;
the judge must give the jury such direction as the judge thinks necessary to ensure that the jury gives the same weight to the evidence as if it had been given by the witness in the courtroom or other place where the court is sitting.
(2)
Disregard subsection (1) in determining:
(a) the directions (if any) that should be given by a judge in proceedings to which this Part does not apply; and
(b) the weight that should be given to evidence given by video link in proceedings to which this Part does not apply.
SECTION 15YZA Application of laws about witnesses (1)
A person who gives evidence under a section 15YV direction or order is taken to give it at the courtroom or other place where the court is sitting.
(2)
Subsection (1) has effect, for example, for the purposes of laws relating to evidence, procedure, contempt of court and perjury.
SECTION 15YZB 15YZB Administration of oaths and affirmations
An oath or affirmation to be sworn or made by a witness who is to give evidence under a section 15YV direction or order may be administered either:
(a) by means of the video link, in as nearly as practicable the same way as if the witness were to give the evidence at the courtoom or other place where the court is sitting; or
(b) as follows:
(i) on behalf of the court and as directed by it;
(ii) by a person (whether an Australian official or not) authorised by the court;
(iii) at the place where the witness is to give the evidence.
A court may make such orders as are just for payment of expenses incurred in connection with giving evidence under a section 15YV direction given, or a section 15YV order made, by the court.
(a) a court gives a section 15YV direction or makes a section 15YVorder; and
(b) the prosecutor applied for the direction or order;
a defendant in the proceeding may appeal against the direction or order.
(2)If:
(a) a court gives a section 15YV direction or makes a section 15YV order; and
(b) a defendant in the proceeding applied for the direction or order;
the prosecutor may appeal against the direction or order.
(3) Court refuses to give a direction or make an order.
(a) a court refuses to give a section 15YV direction or refuses to make a section 15YV order; and
(b) the prosecutor applied for the direction or order;
the prosecutor may appeal against the refusal.
(4)If:
(a) a court refuses to give a section 15YV direction or refuses to make a section 15YV order; and
(b) a defendant in the proceeding applied for the direction or order;
the defendant may appeal against the refusal.
(5) Jurisdiction.
A court that has jurisdiction to hear and determine appeals from a judgment, order or direction in the proceeding has jurisdiction to hear and determine any appeal under this section.
This Part does not prevent any other law about taking evidence of a witness from applying for the purposes of a proceeding.
This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
In this Part, unless the contrary intention appears:
aggregate
, in relation to 2 or more sentences or terms of imprisonment, or in relation to the unserved portions of such sentences or terms, means the total effective sentence or term of imprisonment imposed, or remaining unserved, as the case may be, having regard to whether the sentences or terms are to be served cumulatively, partly cumulatively or concurrently.
Examples demonstrating meaning of aggregate
Example 1: The aggregate of 3 sentences, each of 2 years, to be served concurrently, is 2 years.
Example 2: The aggregate of 3 sentences, each of 2 years, where 2 sentences are to be served concurrently and one is to be served cumulatively, is 4 years.
Example 3: The aggregate of a one year unserved portion of a sentence, a 2 year unserved portion of another sentence, to be served concurrently with the first sentence, and a 2 year sentence to be served cumulatively, is 4 years.
Australian travel document
has the same meaning as in the Australian Passports Act 2005.
family
has a meaning affected by subsection 16A(4).
federal court
(Repealed by No 106 of 2009)
federal offence
means an offence against the law of the Commonwealth.
federal offender
means a person convicted of a federal offence.
federal sentence
means a sentence imposed for a federal offence.
fit to be tried
includes fit to plead.
(a) physical, psychological and emotional suffering; and
(b) economic and other loss; and
(c) damage.
law
, in relation to the Commonwealth, a State or a Territory, includes the common law, and any Imperial Act or order, that comprises a part of that law.
licence
means a licence granted under section 19AP.
licence period
, for a person who is released on licence for a federal sentence, means the period starting on the day of release on licence and ending:
(a) if a recognizance release order has been made for the federal sentence - at the end of the day before the person is eligible for release in accordance with the recognizance release order; and
(b) in any other case:
(i) at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served; or
(ii) if the person has been given a federal life sentence - at the end of the day specified in the licence as the day on which the licence period ends.
maximum penalty
, in relation to an offence at common law, means imprisonment for life.
non-parole period
, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
offence
means a federal offence, a State offence or a Territory offence.
offender
means a federal offender, a State offender or a Territory offender.
(a) an officer of a State, the Australian Capital Territory or the Northern Territory in respect of whom there applies:
(i) an arrangement in force under paragraph 21F(1)(b); or
(ii) an arrangement having a substantially similar effect in force under section 3B; or
(b) a person appointed or engaged under the Public Service Act 1999 in respect of whom an appointment under subsection 21F(3) is in force.
parole order
means an order made under subsection 19AL(1) or (1A), paragraph 19AL(2)(b) or subsection 19AL(2A), (6) or (7) directing that a person be released from prison on parole.
parole period
, for a person for whom a parole order has been made, has the meaning given by section 19AMA.
pre-release period
, in relation to a recognizance release order made in respect of a federal sentence or sentences, means the period of imprisonment specified in that order as the period of imprisonment in respect of that sentence or those sentences after service of which the offender may be released on the giving of security in accordance with that order.
(a) a person who holds office as a Magistrate of a State, the Australian Capital Territory or the Northern Territory and in respect of whom an arrangement in force under paragraph 21F(1)(a) is applicable; or
(b) a person who holds office as a Magistrate of a Territory (other than the Australian Capital Territory or the Northern Territory); or
(c) unless an arrangement has been entered into under paragraph 21F(1)(a) in respect of persons holding office as Magistrates of the Australian Capital Territory - a person who holds office as a Magistrate of the Australian Capital Territory.
prison
includes gaol, lock-up or other place of detention.
recognizance release order
means an order made under paragraph 20(1)(b).
released on licence
means released from prison under section 19AP.
released on parole
means released from prison under a parole order in accordance with section 19AM.
sentence
, in sections 16B to 19AZD, means a sentence of imprisonment.
State
includes the Australian Capital Territory and the Northern Territory.
State offence
means an offence against the law of a State.
State offender
means a person convicted of a State offence.
State sentence
means a sentence imposed for a State offence.
supervision period
, in relation to a person who is released on parole or on licence, means the period:
(a) starting when the person is released from prison on parole or licence; and
(b) ending at the earlier of the following times:
(i) the end of the person's parole period or licence period;
(ii) if the parole order or licence specifies an earlier time at which the supervision period is to end - that earlier time.
Territory
does not include the Australian Capital Territory or the Northern Territory.
Territory offence
means an offence against the law of a Territory.
Territory offender
means a person convicted of a Territory offence.
Territory sentence
means a sentence imposed for a Territory offence.
unfit to be tried
includes unfit to plead.
victim impact statement
has the meaning given by section 16AAAA.
(2)
In this Part, expressions in the plural do not imply that expressions in the singular do not include the plural.
SECTION 16AAAA Victim impact statements (1)
A victim impact statement , for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied:
(a) the statement must be made by one of the following:
(i) the individual;
(ii) if the court gives leave, a member of the individual's family;
(iii) a person appointed by the court;
(b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence;
(c) if the statement is written, the statement must be:
(i) signed or otherwise acknowledged by the maker of the statement; and
(ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender;
(d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender.
(2)
However, the court may order that the requirement in paragraph (1)(d) does not apply to a particular oral statement.
(3)
The Minister may, in writing, prescribe a form for victim impact statements. Such a form does not restricthow victim impact statements may be made.
(4)
The Minister may delegate, in writing, his or her power under subsection (3) to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Note:
Minimum penalties apply for certain offences - see sections 16AAA, 16AAB and 16AAC.
(2)
In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (a) the nature and circumstances of the offence; (b) other offences (if any) that are required or permitted to be taken into account; (c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct; (d) the personal circumstances of any victim of the offence; (e) any injury, loss or damage resulting from the offence; (ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim; (f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(fa) the extent to which the person has failed to comply with:
(ii) in any other manner;
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence; (g) if the person has pleaded guilty to the charge in respect of the offence:
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
(i) that fact; and
(ii) the timing of the plea; and
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences; (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; (k) the need to ensure that the person is adequately punished for the offence; (m) the character, antecedents, age, means and physical or mental condition of the person; (ma) if the person's standing in the community was used by the person to aid in the commission of the offence - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; (n) the prospect of rehabilitation of the person; (p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
(2AAA)
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order - to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program.
(2A)
However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates.
(2AA)
Subsection (2A) does not apply in relation to an offence against the following: (a) section 22 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984; (b) sections 15A, 15C, 17B, 22A, 27A, 74AA, 142A, 142B, 207B, 354A, 355A and 470 of the Environment Protection and Biodiversity Conservation Act 1999; (c) section 48 of the Aboriginal Land and Waters (Jervis Bay Territory) Act 1986; (d) sections 69 and 70 of the Aboriginal Land Rights (Northern Territory) Act 1976; (e) section 30 of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987; (f) any other law prescribed by the regulations that relates to:
(i) entering, remaining on or damaging cultural heritage; or
(ii) damaging or removing a cultural heritage object.
(2B)
In subsection (2A):
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(3)
Without limiting the generality of subsections (1), (2) and (2AAA), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.
(4)
For the purposes of a reference in this Part to a family, the members of a person's family are taken to include the following (without limitation): (a) a de facto partner of the person; (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 3; (c) anyone else who would be a member of the person's family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family.
SECTION 16AA Matters to which court to have regard when passing sentence etc. - Northern Territory offences (1)
In determining the sentence to be passed, or the order to be made, in relation to any person for an offence against a law of the Northern Territory, a court must not take into account any form of customary law or cultural practice as a reason for: (a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or (b) aggravating the seriousness of the criminal behaviour to which the offence relates.
(2)
Subsection (1) does not apply in relation to an offence against the following: (a) sections 33, 34 and 35 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT);
(b) (Repealed by No 63 of 2023) (c) section 4 of the Aboriginal Land Act 1978 (NT); (d) sections 111, 112 and 113 of the Heritage Act 2011 (NT); (e) any other law prescribed by the regulations that relates to:
(i) entering, remaining on or damaging cultural heritage; or
(ii) damaging or removing a cultural heritage object.
(3)
In subsection (1):
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.
| Minimum penalty | ||
| Item | Column 1 | Column 2 |
| Offence | Sentence of imprisonment | |
| 1 | offence against subsection 272.8(1) of the Criminal Code | 6 years |
| 2 | offence against subsection 272.8(2) of the Criminal Code | 6 years |
| 3 | offence against subsection 272.9(1) of the Criminal Code | 5 years |
| 4 | offence against subsection 272.9(2) of the Criminal Code | 5 years |
| 5 | offence against section 272.10 of the Criminal Code | 7 years |
| 6 | offence against section 272.11 of the Criminal Code | 7 years |
| 7 | offence against section 272.18 of the Criminal Code | 6 years |
| 8 | offence against section 272.19 of the Criminal Code | 6 years |
| 9 | offence against section 273.7 of the Criminal Code | 7 years |
| 10 | offence against section 471.22 of the Criminal Code | 7 years |
| 11 | offence against section 474.23A of the Criminal Code | 5 years |
| 12 | offence against section 474.24A of the Criminal Code | 7 years |
| 13 | offence against subsection 474.25A(1) of the Criminal Code | 5 years |
| 14 | offence against subsection 474.25A(2) of the Criminal Code | 5 years |
| 15 | offence against section 474.25B of the Criminal Code | 7 years |
This section applies in respect of a person if:
(a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence ); and
(b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.
(2)
Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.
| Minimum penalty | ||
| Item | Column 1 | Column 2 |
| Current offence | Sentence of imprisonment | |
| 1 | offence against subsection 272.12(1) of the Criminal Code | 3 years |
| 2 | offence against subsection 272.12(2) of the Criminal Code | 3 years |
| 3 | offence against subsection 272.13(1) of the Criminal Code | 2 years |
| 4 | offence against subsection 272.13(2) of the Criminal Code | 2 years |
| 5 | offence against subsection 272.14(1) of the Criminal Code | 4 years |
| 6 | offence against subsection 272.15(1) of the Criminal Code | 4 years |
| 7 | offence against subsection 272.15A(1) of the Criminal Code | 4 years |
| 8 | offence against subsection 272.20(1) of the Criminal Code | 3 years |
| 9 | offence against subsection 272.20(2) of the Criminal Code | 1 year |
| 10 | offence against subsection 273.6(1) of the Criminal Code | 4 years |
| 10A | offence against section 273A.1 of the Criminal Code | 4 years |
| 11 | offence against subsection 471.19(1) of the Criminal Code | 4 years |
| 12 | offence against subsection 471.19(2)of the Criminal Code | 4 years |
| 13 | offence against subsection 471.20(1) of the Criminal Code | 4 years |
| 14 | offence against subsection 471.24(1) of the Criminal Code | 4 years |
| 15 | offence against subsection 471.24(2) of the Criminal Code | 4 years |
| 16 | offence against subsection 471.24(3) of the Criminal Code | 4 years |
| 17 | offence against subsection 471.25(1) of the Criminal Code | 4 years |
| 18 | offence against subsection 471.25(2) of the Criminal Code | 4 years |
| 19 | offence against subsection 471.25(3) of the Criminal Code | 4 years |
| 20 | offence against subsection 471.25A(1) of the Criminal Code | 4 years |
| 21 | offence against subsection 471.25A(2) of the Criminal Code | 4 years |
| 22 | offence against subsection 471.25A(3) of the Criminal Code | 4 years |
| 23 | offence against subsection 471.26(1) of the Criminal Code | 3 years |
| 24 | offence against subsection 474.22(1) of the Criminal Code | 4 years |
| 24A | offence against subsection 474.22A(1) of the Criminal Code | 4 years |
| 25 | offence against subsection 474.23(1) of the Criminal Code | 4 years |
| 26 | offence against subsection 474.26(1) of the Criminal Code | 4 years |
| 27 | offence against subsection 474.26(2) of the Criminal Code | 4 years |
| 28 | offence against subsection 474.26(3) of the Criminal Code | 4 years |
| 29 | offence against subsection 474.27(1) of the Criminal Code | 4 years |
| 30 | offence against subsection 474.27(2) of the Criminal Code | 4 years |
| 31 | offence against subsection 474.27(3) of the Criminal Code | 4 years |
| 32 | offence against subsection 474.27AA(1) of the Criminal Code | 4 years |
| 33 | offence against subsection 474.27AA(2) of the Criminal Code | 4 years |
| 34 | offence against subsection 474.27AA(3) of the Criminal Code | 4 years |
| 35 | offence against subsection 474.27A(1) of the Criminal Code | 3 years |
People aged under 18
(1)
Section 16AAA and subsection 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
Reduction of minimum penalty
(2)
A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:
(a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;
(b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
(3)
If a court may reduce a sentence, the court may reduce the sentence as follows:
(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty - by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence - by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;
(c) if the court is taking into account both of the matters in paragraphs (a) and (b) - by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.
This section applies in relation to victim impact statements made known to a court as described in paragraph 16A(2)(ea).
(2)
Only one victim impact statement may be made for each victim of an offence, unless the court gives leave.
(3)
No implication is to be drawn from the absence of a victim impact statement for a victim.
(4)
All or part of a victim impact statement for a victim may be read to the court by or on behalf of the victim.
(5)
A victim impact statement is not to be read to the court, or otherwise taken into account, to the extent that:
(a) it expresses an opinion about an appropriate sentence; or
(b) it is offensive, threatening, intimidating or harassing; or
(c) admitting it into evidence would otherwise not be in the interests of justice.
(6)
The person convicted of the offence may only test the facts in a victim impact statement:
(a) by way of cross-examining the maker of the statement; and
(b) if the court gives leave to do so.
(7)
For the purposes of Part IAD (about protecting vulnerable persons):
(a) giving evidence includes giving a reading under subsection (4); and
(b) a cross-examination includes a cross-examination under subsection (6).
Note:
This confirms that any protections available under Part IAD will be available for the reading or the cross-examination.
SECTION 16AC Reduction for cooperation with law enforcement agencies (1)
This section applies if a court imposing a sentence, or making an order, for a federal offence:
(a) reduces the severity of the sentence or order; or
(b) reduces the non-parole period in relation to the sentence (if applicable);
because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence.
(2)
The court must:
(a) state that the sentence, order or non-parole period is being reduced for that reason; and
(b) specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction.
Example:
The court imposes a fine of $1,000 and specifies that, but for the offender undertaking to cooperate with law enforcement agencies, the court would have imposed a fine of $10,000.
Promised cooperation refused
(3)
The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non-parole period if:
(a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and
(b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice.
(4)
The court hearing the appeal:
(a) if it is satisfied that the person has failed entirely to cooperate in accordance with the undertaking - must substitute for the reduced sentence, reduced order or reduced non-parole period the sentence, order or non-parole period that would have been imposed, made or fixed but for that reduction; and
(b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking - may substitute:
(i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or
(ii) for the reduced non-parole period such a non-parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate.
Meaning of confiscation proceedings
(5)
In this Act:
confiscation proceedings
includes:
(a) proceedings for freezing orders, forfeiture orders, pecuniary penalty orders, literary proceeds orders and restraining orders under the Proceeds of Crime Act 2002; and
(b) proceedings for forfeiture orders, pecuniary penalty orders and restraining orders under the Proceeds of Crime Act 1987; and
(c) proceedings for restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901.
In sentencing a person convicted of a federal offence, a court must have regard to:
(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and
(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory. SECTION 16BA Taking other offences into account (1)
Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;
(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
and by the person convicted;
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2)
Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
(3)
The court shall not take into account under this section any indictable offence that it would not have jurisdiction to try even if the defendant consented to the court hearing and determining proceedings for the offence or the prosecutor requested the court to hear and determine those proceedings.
(3A)
Subsection (3) does not prevent a court from taking into account an indictable offence where the court has jurisdiction to sentence a person charged with that offence.
(4)
Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his or her guilt, the sentence passed on him or her for any of the offences of which he or she has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him or herfor the offence if no offence had been so taken into account.
(5)
Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.
(6)
Where the court makes an order under subsection (5) in respect of an offence taken into account under this section, there shall be such rights of appeal in respect of the order as there would have been if the order had been an order made upon the conviction of the person for that offence.
(7)
An order made under subsection (5) in respect of an offence taken into account under this section lapses, by force of this subsection, if the conviction or each conviction, as the case may be, in respect of which the offence was taken into account is quashed or set aside.
(8)
Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.
(9)
An admission of guilt made under and for the purposes of this section is not admissible in evidence in any proceedings taken or continued in respect of the offence in respect of which the admission was made or in respect of any other offence specified in the list contained in the document filed in the court.
(10)
An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.
(11)
In or in relation to any criminal proceeding, reference may lawfully be made to, or evidence may lawfully be given of, the fact that an offence was taken into account under this section in passing sentence for an offence for which a person was convicted if, in or in relation to that proceeding:
(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the person was convicted of the last-mentioned offence; and
(b) had the person been convicted of the offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the person had been convicted of that offence.
(12)
The fact that an offence was taken into account under this section may be proved in the same manner as the conviction or any of the convictions, as the case may be, in relation to which it was taken into account may be proved.
SECTION 16C Fines (1)
Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the court is required or permitted to take into account.
(2)
Nothing in subsection (1) prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the court.
SECTION 16D No corporal punishment (1)
A court must not impose any form of corporal punishment for a federal offence.
(2)
A person serving a federal sentence must not be subjected to any form of corporal punishment.
Division 3 - Sentences of imprisonment SECTION 16E Commencement of sentences (1)
Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence.
(2)
Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence:
(a) may be reduced by the period that the person has been in custody for the offence; or
(b) is to commence on the day on which the person was taken into custody for the offence;
the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence.
(3)
Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned.
SECTION 16F Court to explain sentence (1)
Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and (b) that, if a parole order is made, the order will be subject to conditions; and (c) that the parole order may be amended or revoked; and (d) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.
Note:
A court that is sentencing a person who has been convicted of an offence referred to in paragraph 105A.3(1)(a) of the Criminal Code must warn the person about continuing detention orders and extended supervision orders (see section 105A.23 of the Code).
(2)
Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation: (a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and (b) of the conditions to which the order is subject; and (c) of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and (d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
SECTION 16G 16G Federal sentence to be adjusted if no State or Territory remission laws apply
(Repealed by No 141 of 2002)
A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2)
Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
(a) shall state the reasons for its decision that no other sentence is appropriate; and
(b) shall cause those reasons to be entered in the records of the court.
(3)
The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4)
This section applies subject to any contrary intention in the law creating the offence.
SECTION 17B Restriction on imposing sentences for certain minor offences (1)
If:
(a) a person is convicted of one or more section 17B offences relating to property, money or both, whose total value is not more than $2,000; and
(b) the person has not previously been sentenced to imprisonment for any federal, State or Territory offence;
the court convicting the person is not to pass a sentence of imprisonment for that offence, or for any of those offences, unless the court is satisfied that there are exceptional circumstances that warrant it.
(2)
In calculating the total value for the purposes of paragraph (1)(a), a section 17B offence which the court, with the consent of the person charged, has taken into account in passing sentence on the person for another federal offence (whether a section 17B offence or not) is taken to be an offence of which the person is convicted.
(3)
In this section:
section
17B offence
means an offence against section 29 of this Act, an offence against section 131.1, 132.1, 132.6, 132.7, 134.1, 134.2, 135.1, 135.2, 135.4, 145.4 or 145.5 of the Criminal
Code, or an offence against a provision of a federal law prescribed
for the purposes of this section.
SECTION 18 Sentence of imprisonment 18(1)
Where imprisonment is imposed in respect of any offence against any law of the Commonwealth it may (unless the contrary intention appears in the law) be imposed either with or without hard labour.
(2)
Where under the law of a State or Territory a convicted person may in particular cases be imprisoned in a particular kind or class of prison, a person convicted of an offence against the law of the Commonwealth may, in corresponding cases, be imprisoned in the kind or class of prison appropriate to the circumstances.
SECTION 19 Cumulative, partly cumulative or concurrent sentences
General requirements
19(1)
Where a person who is convicted of a federal offence or federal offences is at the time of that conviction or those convictions, serving, or subject to, one or more federal, State or Territory sentences, the court must, when imposing a federal sentence for that federal offence, or for each of those federal offences, by order direct when the federal sentence commences, but so that:
(a) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b) if a non-parole period applies in respect of any State or Territory sentences-the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
(2)
Where:
(a) a person is convicted of 2 or more federal offences at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
(3)
Where:
(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences-the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
(4)
For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.
Additional requirements for Commonwealth child sex offences
(5)
An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for:
(a) another Commonwealth child sex offence; or
(b) a State or Territory registrable child sex offence.
(6)
Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.
(7)
If the court imposes a term of imprisonment other than in accordance with subsection (5), the court must:
(a) state its reasons for imposing the sentence in that manner; and
(b) cause the reasons to be entered in the records of the court.
SECTION 19A 19A Detention of person in State or Territory prisons
A federal offender who is ordered by a court or a prescribed authority to be detained in prison in a State or Territory, may be detained in any prison in that State or Territory and may be removed from one prison to another prison in that State or Territory as if the person were detained as a State offender or Territory offender.
(Repealed by No 129 of 2021)
Subject to subsection (3), a court must fix a single non-parole period in respect of a federal sentence or federal sentences if: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes the sentence or sentences on the person; and (c) either or both of the following subparagraphs apply:
(i) any of the sentences is a federal life sentence;
(d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.
(ii) the sentences, in the aggregate, exceed 3 years; and
(2)
Subject to subsection (3), a court must fix a single non-parole period in respect of all federal sentences a person is to serve or complete if: (a) while the person is in prison and is serving or subject to a federal sentence, the court imposes a further federal sentence on the person; and (b) the result is that the person is to serve or to complete:
(i) a federal life sentence; or
(c) when the court imposes the further federal sentence, the person is not already subject to a non-parole period or recognizance release order in respect of a federal sentence.
(ii) federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and
Non-parole period not appropriate
(3)
A court may decline to fix a non-parole period under this section if: (a) the court is satisfied that a non-parole period is not appropriate, having regard to:
(i) the nature and circumstances of the offence or offences; and
(b) the person is expected to beserving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.
(ii) the antecedents of the person; or
(4)
If the court declines to fix a non-parole period, the court must: (a) state its reasons for so declining; and (b) cause the reasons to be entered in the records of the court.
Subject to subsections (3) and (4), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and (c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;
the court must make a single recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period.
(2)
Subject to subsections (3) and (4), where: (a) while a person is in prison and is serving or subject to a federal sentence, a further federal sentence is imposed on the person; and (b) the result is that the person is to serve or to complete federal sentences the unserved portions of which do not exceed, in the aggregate, 3 years; and (c) at the time the further federal sentence is imposed, the person is not already subject to a recognizance release order in respect of a federal sentence;
the court imposing the further sentence must make a single recognizance release order in respect of all federal sentences to be served or completed by the person and must not fix a non-parole period.
(3)
Where: (a) the federal sentence or federal sentences referred to in paragraph (1)(b); or (b) the unserved portions of the federal sentences referred to in paragraph (2)(b);
in the aggregate, do not exceed 6 months, the court is not required to make a recognizance release order.
(4)
A court may decline to make a recognizance release order in respect of a person if: (a) the courtis satisfied that such an order is not appropriate, having regard to:
(i) the nature and circumstances of the offence or offences concerned; and
(b) the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.
(ii) the antecedents of the person; or
(5)
If the court declines to make a recognizance release order, the court must: (a) state its reasons for so declining; and (b) cause the reasons to be entered in the records of the court.
SECTION 19AD Persons already subject to a non-parole period (1)
Where:
(a) a non-parole period (in this section called the existing non-parole period ) has been fixed in respect of a federal sentence or federal sentences; and
(b) while the offender is serving the existing non-parole period, a court imposes a further federal sentence on the person;
this section applies.
(2)
Where this section applies, the court must, after considering the relevant circumstances, including:
(a) the existing non-parole period; and
(b) the nature and circumstances of the offence or offences concerned; and
(c) the antecedents of the person;
do one of the following things:
(d) make an order confirming the existing non-parole period;
(e) fix a new single non-parole period in respect of all federal sentences the person is to serve or complete;
(f) where the court decides that, in the circumstances, a non-parole period is not appropriate-cancel the existing non-parole period and decline to fix a new non-parole period.
(3)
Where, under paragraph (2)(e), the court fixes a new single non-parole period, it:
(a) is to be treated as having superseded the existing non-parole period; and
(b) must not be such as to allow the person to be released on parole earlier then would have been the case if the further sentence had not been imposed.
(4)
Where this section applies, the court must not make a recognizance release order.
(5)
Where, under paragraph (2)(f), the court declines to fix a new non-parole period, the court must:
(a) state its reasons for deciding that a non-parole period is not appropriate; and
(b) cause the reasons to be entered in the records of the court.
SECTION 19AE Persons already subject to recognizance release order (1)
Where:
(a) a person is subject to a recognizance release order (in this section called the existing recognizance release order ) made in respect of a federal sentence or federal sentences; and
(b) before the person is released under that order, the court imposes a further federal sentence on the person;
this section applies.
(2)
Where this section applies, the court must, after considering the relevant circumstances, including:
(a) the existing recognizance release order; and
(b) the nature and circumstances of the offence or offences concerned; and
(c) the antecedents of the person;
do one of the following things:
(d) make an order confirming the existing recognizance release order;
(e) make a new recognizance release order in respect of all federal sentences the person is to serve or complete;
(f) where, as a result of the further federal sentence being imposed, the person is to serve or to complete a federal life sentence or federal sentences the unserved portions of which, in the aggregate, exceed 3 years and the court decides that it is appropriate to fix a non-parole period-fix a single non-parole period in respect of all federal sentences the person is to serve or complete;
(g) where the court decides that, in the circumstances, neither a recognizance release order nor a non-parole period is appropriate-cancel the existing recognizance release order and decline to make a new recognizance release order.
(3)
Where, under paragraph (2)(e), the court makes a new recognizance release order, that order:
(a) is to be treated as having superseded the existing recognizance release order; and
(b) must not be such as to allow the person to be released earlier than would have been the case if the further sentence had not been imposed.
(4)
Where, under paragraph (2)(f), the court fixes a single non-parole period, it:
(a) is to be treated as having superseded the existing recognizance release order; and
(b) must not be such as to allow the person to be released on parole earlier than he or she would have been released if the further sentence had not been imposed.
(5)
Where, under paragraph (2)(g), the court declines to make a new recognizance release order, the court must:
(a) state its reasons for deciding that neither a recognizance release order nor a non-parole period is appropriate; and
(b) cause the reasons to be entered in the records of the court.
SECTION 19AF Non-parole period or pre-release periods not to exceed sentence (1)
Where a court is required to fix a non-parole period or make a recognizance release order in respect of a federal sentence or sentences, the court must fix a non-parole period that ends, or make a recognizance release order such that the pre-release period ends, not later than the end of the sentence, or of the last to be served of the sentences.
(2)
This section does not restrict the length of the non-parole period or the pre-release period in respect of a life sentence or sentences that include such a sentence.
SECTION 19AG Non-parole periods for sentences for certain offences (1)
This section applies if a person is convicted of one of the following offences (each of which is a minimum non-parole offence ) and a court imposes a sentence for the offence:
(a) (Repealed by No 67 of 2018) (b) a terrorism offence; (c) an offence against Division 80 (other than Subdivision CA) of the Criminal Code; (d) an offence against subsection 91.1(1) or 91.2(1) of the Criminal Code.
Note:
A sentence for a minimum non-parole offence is a federal sentence, because such an offence is a federal offence.
(2)
The court must fix a single non-parole period of at least ¾ of: (a) the sentence for the minimum non-parole offence; or (b) if 2 or more sentences have been imposed on the person for minimum non-parole offences - the aggregate of those sentences.
The non-parole period is in respect of all federal sentences the person is to serve or complete.
(3)
For the purposes of subsection (2): (a) a sentence of imprisonment for life for a minimum non-parole offence is taken to be a sentence of imprisonment for 30 years for the offence; and (b) it does not matter:
(i) whether or not the sentences mentioned in that subsection were imposed at the same sitting; or
(ii) whether or not the convictions giving rise to those sentences were at the same sitting; or
(iii) whether or not all the federal sentences mentioned in that subsection are for minimum non-parole offences.
(4)
If the person was subject to a recognizance release order, the non-parole period supersedes the order.
Fixing non-parole periods for persons under 18 years of age
(4A)
In imposing a sentence for an offence covered by this section on a person who is under 18 years of age, the court must comply with subsection (2) unless the court is satisfied that exceptional circumstances exist to justify fixing a shorter single non-parole period.
(4B)
In determining whether exceptional circumstances exist to justify fixing a shorter single non-parole period in relation to the person, without limiting the matters the court may have regard to, the court must have regard to: (a) the protection of the community as the paramount consideration; and (b) the best interests of the person as a primary consideration.
Relationship with sections 19AB, 19AC, 19AD, 19AE and 19AR
(5)
Sections 19AB, 19AC, 19AD, 19AE and 19AR have effect subject to this section.
Note:
The effects of this include preventing a court from:
(Repealed by No 141 of 2002)
Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:
(a) that failure does not affect the validity of any sentence imposed on a person; and
(b) the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act.
(2)
A court shall not, for the purposes of subsection (1), be taken to have failed to fix a non-parole period in respect of a sentence or sentences in respect of which it has made a recognizance release order or to have failed to make a recognizance release order in respect of a sentence or sentences in respect of which it has fixed a non-parole period.
(3)
Application under subsection (1) to the court that has sentenced a person may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the person was sentenced.
SECTION 19AHA Rectification of errors etc. in sentences, non-parole periods and recognizance release orders (1)
This section applies if a sentencing order made by a court under this Part in relation to a person:
(a) reflects an error of a technical nature made by the court; or
(b) has a defect of form; or
(c) contains an ambiguity.
Note:
For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.
(2)
An error, defect or ambiguity mentioned in subsection (1) does not affect the validity of any sentence imposed on the person.
(3)
The court may, on its own initiative, at any time, by order, amend the sentencing order to rectify the error, defect or ambiguity.
(4)
The court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, amend the sentencing order to rectify the error, defect or ambiguity.
(5)
The court may amend the sentencing order whether or not the court is constituted in the way in which it was constituted when the person was sentenced.
(6)
An amendment of a sentencing order under this section does not affect any right of appeal against a sentence.
(7)
Unless the court orders otherwise, an amendment of a sentencing order under this section is taken to have had effect from the date of effect of the sentencing order.
(8)
In this section:
sentencing order
means any of the following:
(a) an order imposing, or purporting to impose, a sentence;
(b)an order fixing a non-parole period;
(c) a recognizance release order.
This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment. SECTION 19AK 19AK Possible deportation no impediment to fixing non-parole period
Where a person is convicted of a federal offence, a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia. Division 5 - Conditional release on parole or licence Subdivision A - Release on parole or licence
The purposes of parole are the following:
(a) the protection of the community;
(b) the rehabilitation of the offender;
(c) the reintegration of the offender into the community.
The Attorney-General must, before the end of a non-parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order ).
Note 1:
See subsection (5) if the person is subject to a State or Territory sentence.
Note 2:
See also sections 19ALA (matters that may be considered in decisions about parole orders) and 19ALB (decisions about parole orders - terrorism and control orders).
(1A)
If the Attorney-General does not, under subsection (1), make, or refuse to make, a parole order for a person before the end of the non-parole period referred to in that subsection, the Attorney-General must, as soon as practicable after the end of that period, make, or refuse to make, a parole order for the person.
(2)
If the Attorney-General refuses to make a parole order for a person under subsection (1) or (1A), paragraph (b) of this subsection, or subsection (2A), (6) or (7), the Attorney-General must: (a) give the person a written notice, within 14 days after the refusal, that:
(i) informs the person of the refusal; and
(ii) includes a statement of reasons for the refusal; and
(b) reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal.
(iii) sets out the effect of paragraph (b) of this subsection; and
Note:
See subsection (5) if the person is subject to aState or Territory sentence.
[
CCH Note:
No 24 of 2012, s 3 and Sch 7 item 12 also contains the following application provision:
This means the Attorney-General will be required to reconsider making a parole order for the person within 12 months of the commencement.
12 Application of amendments
…
Parole
(2)
The amendments made by items 2, 3, 4, 6 and 8 of this Schedule:
(a)
apply in relation to a person for whom a non parole period has been fixed, whether the person is sentenced before, at or after the commencement; but
(b)
do not apply in relation to a person if a parole order has been made for the person under section 19AL of the old law.
(3)
Paragraph 19AL(2)(b) of the amended law applies in accordance with subitem (2) in relation to a person for whom an order has been made under paragraph 19AL(2)(b) of the old law (directing that the person not be released on parole) as if the Attorney General had refused to make a parole order for the person at the commencement.
Note:
…
(2A)
If the Attorney-General does not, under paragraph (2)(b), reconsider the making of a parole order for a person and either make, or refuse to make, such an order before the end of the 12 month period referred to in that paragraph, the Attorney-General must, as soon as practicable after the end of that period, reconsider and either make, or refuse to make, a parole order for the person.
Contents of parole order
(3)
A parole order must: (a) be in writing; and (b) specify whether or not the person is to be released subject to supervision; and (c) if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person's parole period - specify the day on which the supervision period ends.
Note 1:
For when a person is released on parole in accordance with a parole order, see section 19AM.
Note 2:
A person released on parole must comply with any conditions of the parole order during the parole period (see sections
(3A)
If the Attorney-General considers that in all the circumstances it is appropriate to do so, the Attorney-General may specify in a parole order that a person is to be released from prison on a day that is before the end of the non-parole period, but is not earlier than 30 days before the end of the non-parole period.
Person subject to State or Territory sentence
(4)
Subsections (5) to (7) apply if the person is subject to a State or Territory sentence.
(5)
The Attorney-General is not required to make, or to refuse to make, a parole order under subsection (1) or (1A), paragraph (2)(b) or subsection (2A) if: (a) the State or Territory sentence is a life sentence for which a non-parole period has not been fixed; or (b) the State or Territory sentence ends after the end of the last of the federal sentences to end; or (c) the non-parole period for the State or Territory sentence ends after the end of the federal non-parole period; or (d) the State or Territory sentence ends after the end of the federal non-parole period.
(6)
However, the Attorney-General must either make, or refuse to make, a parole order before: (a) if paragraph (5)(c) applies (and paragraphs (5)(a) and (b) do not) - the end of the non-parole period for the State or Territory sentence; or (b) if paragraph (5)(d) applies (and paragraphs (5)(a), (b) and (c) do not) - the person's expected release from prison for the State or Territory offence.
Note:
The effect of subsections (4) to (7) and subsection 19AM(2) is that a parole order may sometimes still be made for a person while the person is serving a State or Territory sentence, but the person will not be released in accordance with the parole order until the person is released from prison for the State or Territory sentence.
(7)
If the Attorney-General does not, in accordance with subsection (6), make, or refuse to make, a parole order for a person before: (a) the end of the period referred to in paragraph (6)(a); or (b) the date of the expected release referred to in paragraph (6)(b);
the Attorney-General must, as soon as practicable after the end of that period or the date of that expected release, make, or refuse to make, a parole order for the person.
In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision:
(a) the risk to the community of releasing the person on parole;
(b) the person's conduct while serving his or her sentence;
(c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency;
(d) the likely effect on the victim, or victim's family, of releasing the person on parole;
(e) the nature and circumstances of the offence to which the person's sentence relates;
(f) any comments made by the sentencing court;
(g) the person's criminal history;
(h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency;
(i) the behaviour of the person when subject to any previous parole order or licence;
(j) the likelihood that the person will comply with the conditions of the parole order;
(k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life;
(l) whether the length of the parole period is sufficient to achieve the purposes of parole;
(m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release.
(2)
Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.
Despite any law of the Commonwealth, the Attorney-General must not make a parole order in relation to a person covered by subsection (2) unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order.
(2)
This subsection covers the following persons:
(a) a person who has been convicted of a terrorism offence, including a person currently serving a sentence for a terrorism offence;
(b) a person who is subject to a control order within the meaning of Part 5.3 of the Criminal Code (terrorism);
(c) a person who the Attorney-General is satisfied has made statements or carried out activities supporting, or advocating support for, terrorist acts within the meaning of that Part.
Determining exceptional circumstances in relation to persons under 18 years of age
(3)
In determining whether exceptional circumstances exist to justify making a parole order in relation to a person who is under 18 years of age, without limiting the matters the Attorney-General may have regard to, the Attorney-General must have regard to:
(a) the protection of the community as the paramount consideration; and
(b) the best interests of the person as a primary consideration.
A person must be released from prison on parole in accordance with a parole order on whichever of the following days is applicable (subject to subsections (2) and (3) and 19AZD(2)):
(a) for a parole order made before the end of the non-parole period - the earlier of the following days:
(i) the last day of the non-parole period;
(ii) an earlier day (if any) specified in the parole order under subsection 19AL(3A);
(b) for a parole order made after the end of the non-parole period - the later of the following days:
(i) the day after the parole order is made;
(ii) a later day (if any) specified in the parole order for the purposes of this subparagraph (not being later than 30 days after the order is made).
Note 1:
Subsection (2) of this section provides a different release day if the person is imprisoned for a State or Territory offence on the release day that would otherwise apply under this subsection.
Note 2:
Subsection (3) requires the person to certify his or her acceptance of the parole order conditions before he or she may be released.
Note 3:
Subsection 19AZD(2) may allow a person to be released slightly earlier than the day that would otherwise apply under this subsection (for example if the release day would otherwise fall on a weekend or public holiday).
(2)
However, if the person is imprisoned for a State or Territory offence on the day he or she would otherwise be eligible for release under subsection (1), the person must be released from prison on parole in accordance with the parole order on the same day he or she is released from prison (including on parole) for the State or Territory offence.
(3)
Despite subsections (1) and (2), the person must not be released from prison on parole in accordance with the parole order unless, before, on or after the release day provided by subsection (1) or (2), the person certifies on the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject.
Note:
A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AN and 19AU).
For the purposes of this Part, the parole period for a person for whom a parole order has been made is the period starting in accordance with subsection (2) and ending in accordance with subsection (3).
Note:
A person released on parole must comply with any conditions of the parole order during the parole period (see sections 19AN and 19AU).
(2)
The person's parole period starts at the earlier of the following times: (a) when the person is released from prison on parole; (b) if the person is serving a State or Territory sentence at the time the parole order is made - when the person certifies on the parole order (or a copy of the order) that he or she accepts the conditions to which the order is subject.
(3)
The person's parole period ends: (a) at the end of the last day of any federal sentence that is, on the day of the release, being served or to be served; or (b) if the person has been given a federal life sentence - at the later of the following times:
(i) 5 years after the person is released from prison on parole in accordance with section 19AM;
(ii) the end of a later day (if any) specified in the parole order for the purposes of this subparagraph (not being a day earlier than 5 years after the person's expected release from prison in accordance with the order).
A parole order:
(a) is subject to the condition that the offender must, during the parole period, be of good behaviour and not violate any law; and
(b) if the parole order specifies in accordance with subsection 19AL(3) that the person is to be released subject to supervision - is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a parole officer or other person specified in the order and obey all reasonable directions of that officer or other person; and
(c) is subject to such other conditions (if any) as the Attorney-General specifies in the order.
(Repealed by No 153 of 2015)
(3)
(Repealed by No 153 of 2015)
SECTION 19AP Release on licence (1)
Where a person is serving a federal sentence (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), the Attorney-General may grant a licence under this subsection for the person to be released from prison.
(2)
A person who is serving a federal sentence of imprisonment (whether or not a non-parole period has been fixed, or a recognizance release order made, in relation to that sentence), or another person acting on that person's behalf, may apply to the Attorney-General for a licence under this subsection for the first-mentioned person to be released from prison.
(3)
An application under subsection (2) must:
(a) be in writing; and
(b) specify the exceptional circumstances relied on to justify the grant of the licence.
(4)
The Attorney-General must not grant a licence under this section unless he or she is satisfied that exceptional circumstances exist which justify the grant of the licence.
(4A)
Without limiting the matters to which the Attorney-General may have regard for the purposes of subsection (4), the Attorney-General may have regard to:
(a) any extensive cooperation by the person with law enforcement agencies before sentencing that the sentencing court did not take into account; or
(b) any extensive cooperation by the person with law enforcement agencies after sentencing; or
(c) any serious medical condition the person has that cannot adequately be treated or managed within the prison system.
(5)
The Attorney-General is not required to consider an application under subsection (2) in respect of a person if an application has been made under that subsection in respect of that person within one year before the first-mentioned application.
(6)
A licence in relation to a person:
(a) if the person is subject to a federal life sentence-must specify the day on which the licence period ends, being a day not earlier than 5 years after the person is released on licence; and
(b) specify whether or not the person is to be released subject to supervision; and
(c) if it is proposed that the supervision period for a person released on licence subject to supervision should end before the end of the person's licence period - specify the day on which the supervision period ends.
(7)
A licence:
(a) is subject to the condition that the offender must, during the licence period, be of good behaviour and not violate any law; and
(b) if the licence specifies in accordance with subsection (6) that the person is to be released subject to supervision - is subject to the condition that the offender must, during the supervision period, be subject to the supervision of a person specified in the licence and obey all reasonable directions of that person; and
(c) is subject to such other conditions (if any) as the Attorney-General specifies in the licence.
(8)
(Repealed by No 153 of 2015)
(9)
(Repealed by No 153 of 2015)
(10)
A licence directing that the offender be released from prison is sufficient authority for the release.
SECTION 19APA Amendment of parole orders and licences
Amendment of conditions
(1)
The Attorney-General may, at any time before the end of:
(a) a parole period for a person for whom a parole order has been made; or
(b) a licence period for a person who is released on licence for a federal sentence;
by order in writing, amend the parole order or licence by doing any or all of the following:
(c) imposing additional conditions on the parole order or licence;
(d) varying or revoking a condition of the parole order or licence specified under paragraph 19AN(c) or 19AP(7)(c) or imposed under paragraph (c);
(e) if the supervision period has not ended - changing the day on which the supervision period ends.
Amendments to rectify errors etc.
(2)
If a parole order or licence:
(a) contains an error of a technical nature; or
(b) has a defect of form; or
(c) contains an ambiguity;
the Attorney-General may, at any time, by order in writing, amend the parole order or licence to rectify the error, defect or ambiguity.
Note:
For paragraph (a), the following are examples of errors of a technical nature: a clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.
When amendments take effect
(3)
An amendment of a parole order or licence under subsection (1) takes effect when notice in writing of the amendment is given to the offender.
(4)
An amendment of a parole order or licence under subsection (2) is taken to have had effect from the date of effect of the parole order or licence.
If a parole order is made, or a licence is granted, in relation to a person:
(a) the person is taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period, until:
(i) the parole period or licence period ends without the parole order or licence being revoked; or
(ii) the person is otherwise discharged from imprisonment; and
(b) the person is taken:
(i) to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period; and
if the parole period or licence period ends without the parole order or licence being revoked.
(ii) to have been discharged from imprisonment;
(2)
Subsection (1) has effect as if the parole period or the licence period had not ended without the parole order or licence being revoked, if in relation to the parole order or licence:
(a) a determination referred to in subsection 19AQ(1) or (2) is made at a time after the end of the parole period or licence period; and
(b) the time the parole order or licence is taken to have been revoked under subsection 19AQ(1) or (2) is during the parole period or licence period.
Revocation time
(1)
If a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence (the new offence ) committed during the parole period, the court that sentences the person for the new offence must determine the time (the revocation time ) when the parole order is taken to have been revoked.
(2)
If a person to whom a licence relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence (the new offence ) committed during the licence period, the court that sentences the person for the new offence must determine the time (the revocation time ) when the licence is taken to have been revoked.
(3)
A revocation time determined under subsection (1) or (2) must be one of the following times:
(a) the time at which the court determines the new offence was committed;
(b) the time at which the court determines the new offence was most likely to have been committed;
(c) the time at which the court determines the new offence was most likely to have first begun to have been committed.
Time person liable to serve
(4)
If the parole order or licence relating to a person is taken to have been revoked under subsection (1) or (2), the person becomes liable to serve:
(a) that part of the sentence or of each sentence for a federal offence that the person had not served at the time of his or her release under that order or licence; or
(b) if the court considers it appropriate taking into account the good behaviour of the person during the period (the clean street period ) starting at the time the person was released under that order or licence and ending at the revocation time - the sentence or aggregate sentence that would be imposed under paragraph (a) reduced by the period that is the same as the clean street period.
Suspended sentences
(5)
This section does not apply where the sentence or each sentence referred to in subsection (1) or (2) is a suspended sentence.
New federal offence etc.
(1)
Subject to subsection (4), if: (a) a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and (b) the person is later sentenced (the new sentence or sentences ) to a term of imprisonment in respect of a federal offence or federal offences committed during the parole period or licence period; and (c) under section 19AQ:
(i) the parole order or licence is to be taken to have been revoked; and
(ii) the person becomes liable to serve a part of a sentence or sentences (the outstanding sentence or sentences );
the court imposing the new sentence or sentences:
(d) must not make a recognizance release order; and (e) must fix a single new non-parole period in respect of the new sentence or sentences and the outstanding sentence or sentences having regard to the total period of imprisonment that the person is liable to serve.(2)
(Repealed by No 70 of 2020)
New State or Territory offence etc.
(3)
Subject to subsection (4), if: (a) a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and (b) the person is later sentenced (the new sentence or sentences ) to a term of imprisonment in respect of one or more State or Territory offences committed during the parole period or licence period; and (c) under section 19AQ:
(i) the parole order or licence is to be taken to have been revoked; and
(ii) the person becomes liable to serve a part of a sentence or sentences (the outstanding sentence or sentences );
the court imposing the new sentence or sentences:
(d) must not make a recognizance release order; and (e) must fix a single newnon-parole period in respect of the outstanding sentence or sentences having regard to the total period of imprisonment that the person is liable to serve.General
(4)
A court may decline to fix a non-parole period if: (a) the court is satisfied that doing so is appropriate, having regard to:
(i) the serious nature and circumstances of the offence or offences; and
(b) the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.
(ii) the antecedents of the person; or
(5)
Where a court decides, under this section, that it is inappropriate to fix a non-parole period, the court: (a) must state its reasons for so deciding; and (b) must cause these reasons to be entered in the records of the court.
(6)
Without limiting, by implication, the application of any other provision of Division 4, sections 19AF, 19AJ and 19AK apply, according to their terms, in relation to the fixing of non-parole periods under this section in the same way as they apply to the fixing of such periods under Division 4.
(7)
Without limiting, by implication, the application of any other provision of Division 4, section 19AH applies, according to its terms, in relation to the failure to fix, or properly to fix, non-parole periods under this section in the same way as it applies to such failures in relation to the fixing of such periods under Division 4.
SECTION 19AS Court to issue warrant of detention where person required to serve balance of sentence (1)
If:
(a) a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and
(b) the person is later sentenced (the new sentence or sentences ) to a term of imprisonment in respect of one or more federal, State or Territory offences committed during the parole period or licence period; and
(c) under section 19AQ:
(i) the parole order or licence is to be taken to have been revoked; and
(ii) the person becomes liable to serve a part of a sentence or sentences (the outstanding sentence or sentences );
then:
(d) the court imposing the new sentence or sentences must issue a warrant authorising the person to be detained in prison to undergo imprisonment for the unserved part of the outstanding sentence or sentences; and
(e) the person must begin to serve the unserved part of the outstanding sentence or of the first to be served of the outstanding sentences on the day that the new sentence is, or the new sentences are, imposed; and
(f) the unserved part of the outstanding sentence or of each of the outstanding sentences must be served in the State or Territory where the new sentence is, or the new sentences are, imposed.
(2)
Where the court fails to issue a warrant under paragraph (1)(d), the Director of Public Prosecutions may apply to that court for such a warrant.
SECTION 19AT What happens when later conviction is quashed? (1)
Where:
(a) a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and
(b) the person is later sentenced (the new sentence or sentences ) to a term of imprisonment in respect of one or more federal, State or Territory offences committed during the parole period or licence period; and
(ba) under section 19AQ:
(i) the parole order or licence is to be taken to have been revoked; and
(ii) the person becomes liable to serve a part of a sentence or sentences (the outstanding sentence or sentences );
then:
(c) if the person appeals against the conviction or each conviction giving rise to a new sentence and is granted bail, pending the hearing of the appeal or appeals:
(i) this Act has effect, pending the hearing of that appeal or those appeals, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and
(ii) the person must be released from prison on the day the person is granted bail; and
(d) if the appeal court sets aside the conviction or each of the convictions and the person concerned is granted bail or bail is extended pending a retrial of the offence or offences concerned:
(i) this Act has effect, or continues to have effect, pending the completion of the retrial, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and
(ii) if the person had not already been released from prison under paragraph (c), the person is to be released on the day the person is granted bail or bail is extended; and
(e) if the conviction or each conviction appealed against is quashed on appeal or the person is found, on a retrial, not to be guilty of the offence or each of the offences:
(i) this Act has effect, or continues to have effect, as if the revoked order or licence had not been revoked and as if any warrant for the detention of the person issued under section 19AS were of no effect; and
(ii) if the person had not already been released from prison under paragraph (c) or (d), the person must be released from prison on the day the conviction or each conviction is quashed on appeal or the person is found, on a retrial not to be guilty of the offence or offences; and
(f) if paragraph (c), (d) or (e) applies-the unserved part of the outstanding sentence or sentences shall (except in the case of an outstanding sentence of life imprisonment) be reduced by the period spent in prison after the day the new sentence is or the new sentences are imposed and before the day of the person's release on bail or, if the person is not so released, before the resolution of the appeal.
(2)
If the appeal against the conviction or each conviction giving rise to a new sentence is unsuccessful, section 19AS applies, with effect from the day the appeal proceedings are completed, as if the new sentence or new sentences were imposed on that day by the court to which the appeal was made.
(3)
Nothing in subsection (1) prevents a person from being detained in prison under any other law.
SECTION 19AU Attorney-General may revoke parole order or licence (1)
The Attorney-General may, by instrument in writing, revoke a parole order or licence at any time before the end of the parole period or licence period:
(a) if the offender has, during that period, failed to comply with a condition of the order or licence; or
(b) if there are reasonable grounds for suspecting that the offender has, during that period, so failed to comply;
and the instrument of revocation must specify the condition that was breached or is suspected of having been breached.
(2)
Before revoking a parole order or a licence, the Attorney-General must, subject to subsection (3), by notice in the prescribed form, notify the person to whom the order or licence relates of:
(a) the condition of the order or licence alleged to have been breached; and
(b) the fact that the Attorney-General proposes to revoke the order or licence at the end of 14 days after the day the notice is issued unless the person, within that period, gives the Attorney-General written reasons why the order or licence should not be revoked and those reasons are accepted by the Attorney-General.
(3)
Subsection (2) does not apply where:
(a) the person's whereabouts are and remain, after reasonable inquiries on behalf of the Attorney-General, unknown to the Attorney-General; or
(b) there are circumstances of urgency that, in the opinion of the Attorney-General, require the parole order or licence to be revoked without notice being given to the person; or
(ba) in the opinion of the Attorney-General it is necessary to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person; or
(c) the person has left Australia; or
(d) in the opinion of the Attorney-General it is necessary, in the interests of the administration of justice, to revoke the parole order or licence without giving notice to the person.
SECTION 19AV Arrest of person whose parole order or licence revoked by Attorney-General (1)
A constable may, without warrant, arrest a person whose parole order or licence has been revoked by the Attorney-General.
(2)
The Attorney-General or the Director of Public Prosecutions may, in relation to a person whose parole order or licence has been revoked by the Attorney-General, apply to a prescribed authority for a warrant in the form prescribed for the purposes of this subsection for the arrest of the person.
(3)
A person who is arrested under subsection (1) or (2), must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
SECTION 19AW Where person on parole or licence notified of revocation (1)
Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied: (a) that the person is the person named in that revocation order; and (b) that the person was notified by the Attorney-General of the proposal to make the revocation order; and (c) that the revocation order is still in force;
the prescribed authority must issue a warrant, in the prescribed form:
(d) authorising any constable to take the person to a specified prison in the State or Territory in which the person was arrested; and (e) directing that the person be detained in prison in that State or Territory to undergo imprisonment for the unserved part of the sentence, or of each sentence, of imprisonment (in this section called the outstanding sentence or sentences ) that the person was serving or had yet to serve at the time of his or her release; and (f) subject to subsections (3) and (3A), fixing a non-parole period in respect of the outstanding sentence or sentences.(2)
If the prescribed authority cannot complete the hearing under subsection (1) immediately, the prescribed authority must issue a warrant for the remand of the person in custody pending completion of the hearing.
(3)
The prescribed authority is not required to fix a non-parole period under paragraph (1)(f) if: (a) the prescribed authority considers it inappropriate to do so because of the serious nature of the breach of the conditions of the order or licence that led to its revocation; or (b) the unserved part of the outstanding sentence or sentences is, or aggregates, 3 months or less.
(3A)
Before fixing a non-parole period under paragraph (1)(f) in respect of the outstanding sentence or sentences, the prescribed authority must have regard to the period of time spent by the person on parole or licence before the parole order or licence was revoked under subsection 19AU(1).
(4)
Where a prescribed authority issues a warrant, the prescribed authority must specify in the warrant the particulars of the unserved part of each outstanding sentence and, if a non-parole period is fixed, particulars of that period.
(5)
A non-parole period fixed under this section has effect as if it had been fixed by a court in respect of the outstanding sentence or sentences and section 19AL applies in relation to that non-parole period according to its terms.
(6)
Where a person brought before a prescribed authority under section 19AV is dealt with in accordance with this section, the unserved part of any outstanding sentence or sentences that the person was serving or had yet to serve at the time of his or her release, is to be reduced by any period of remand under subsection (2).
SECTION 19AX Where person on parole or licence not notified of revocation (1)
Where a prescribed authority before whom a person is brought under section 19AV because of an order revoking a parole order or licence is satisfied that the person so brought is the person named in that revocation order but is not satisfied that the person was notified by the Attorney-General of the proposal to make that revocation order, the prescribed authority must:
(a) immediately notify the Attorney-General that the person has been brought before that prescribed authority; and
(b) order that the person be detained in custody until the Attorney-General orders that the revocation order be rescinded or until the completion of proceedings under subsection 19AW(1) as applied by subsection (6) of this section.
(2)
Where the Attorney-General is notified that a person has been brought before a particular prescribed authority, the Attorney-General must, as soon as practicable, notify the person, in writing, of the conditions of the parole order or licence alleged to have been breached and request that the person give him or her, within 14 days of notification of those reasons, a written submission stating why that parole order or licence should not have been revoked.
(3)
If, within 14 days of a person receiving notification under subsection (2), the person fails to make a written submission to the Attorney-General, the Attorney-General must, as soon as practicable after the end of that period, notify the prescribed authority of a decision not to rescind the revocation order.
(4)
If, within 14 days of notification under subsection (2), the person makes a written submission to the Attorney-General, the Attorney-General must decide, as soon as practicable after receiving that submission, and on the basis of that submission and any other material the Attorney-General considers to be relevant, whether or not to rescind the revocation order and must, as soon as practicable after so deciding, inform the prescribed authority and the person, in writing, of the decision.
(5)
If the prescribed authority is notified of a decision to rescind the revocation order, the prescribed authority must immediately order the person to be released from prison.
(6)
If the prescribed authority is notified of a decision not to rescind the revocation order made in respect of the person, subsection 19AW(1) applies to the person so as to authorise the issue of a warrant as if the prescribed authority had been satisfied of the matters referred to in paragraphs 19AW(1)(a), (b) and (c) and subsections 19AW(3), (4), (5) and (6) apply to that person according to their terms.
SECTION 19AY Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied (1)
Where a prescribed authority issues a warrant in respect of a person under subsection 19AW(1), or under that subsection as applied by section 19AX, the person may appeal to the Supreme Court of the State or Territory in which the person was arrested against:
(a) the issue of the warrant; or
(b) the calculation, for the purposes of the warrant, of the unserved part of any outstanding sentence; or
(c) the fixing, for the purposes of the warrant, of a non-parole period or the refusal to fix such a period.
(2)
An appeal may be begun by lodging a notice of appeal with the court within 21 days after the day on which the warrant to which the appeal relates was issued.
(3)
An appeal is to be by way of rehearing, but the court may have regard to any evidence given before the prescribed authority.
(4)
The court may, on the application of the person making the appeal, order the release of the person from prison pending the disposal of the appeal, on such conditions as the court determines, and, upon the court's so doing, the warrant appealed against shall not, unless the person breaks a condition of his or her release, be executed or further executed before the appeal is disposed of.
(5)
The court must:
(a) if the appeal is against the issue of the warrant-either confirm or revoke the warrant; or
(b) if the appeal is against the calculation of the unserved part of any outstanding sentence-either confirm the warrant or vary the warrant, so far as it relates to that calculation, as specified in the order; or
(c) if the appeal is against the fixing of a non-parole period or the refusal to fix such a period-either confirm the warrant or vary the warrant, if it fixes a non-parole period, as specified in the order.
(6)
Where a warrant is revoked under paragraph (5)(a), the person to whom the warrant relates, if the court has not already ordered the person's release under subsection (4), is to be released from prison immediately.
(7)
In this section:
outstanding
sentence
has the same meaning as in section 19AW.
SECTION 19AZ Evidence before prescribed authority (1)
A prescribed authority exercising any powers under this Division may take evidence on oath or affirmation and for that purpose may administer an oath or affirmation.
(2)
A prescribed authority exercising any powers under this Division may summon a person to appear before the prescribed authority to give evidence and to produce such documents and articles (if any) as are referred to in the summons.
(3)
A summons under this section shall be served in the same manner as a summons to a witness to appear before a court of summary jurisdiction in the State or Territory where the summons under this section is issued.
SECTION 19AZA Disobedience of summons etc. (1)
A person who has been served with a summons to appear before a prescribed authority must not fail to appear in obedience to the summons.
Penalty: 10 penalty units.
(2)
A person who has been served with a summons to produce a document or article to a prescribed authority shall not fail to produce the document or article.
Penalty: 10 penalty units.
(3)
A person who appears before a prescribed authority shall not refuse to be sworn or make an affirmation or refuse to produce documents or articles, or to answer questions, that he or she is required by the prescribed authority to produce or answer.
Penalty: 10 penalty units.
(4)
Subsections (1), (2) and (3) do not apply if the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(5)
Subsections (1) and (2) are offences of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
SECTION 19AZB 19AZB Can person be released on parole or licence if earlier parole order or licence revoked?
A parole order may be made or a licence granted, even if a previous parole order or licence has been revoked. SECTION 19AZC 19AZC Effect of parole order and licence on sentence
(Repealed by No 153 of 2015)
A law of a State or Territory providing for a State or Territory offender to be granted leave of absence from prison, including leave of absence granted by order of a court, applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
(2)
A law of a State or Territory providing for a State or Territory offender imprisoned in that State or Territory to be released:
(a) up to 24 hours before the time at which his or her sentence would otherwise have ended; or
(b) where the release day falls on a Saturday, a Sunday or a day which is a public holiday-on the last day before such a day which is not a Saturday, a Sunday or a public holiday;
applies to a federal offender who is serving a sentence in that State or Territory as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
(3)
A law of a State or Territory providing for a State or Territory offender to be released from prison under a pre-release permit scheme (however called) that is prescribed for the purposes of this subsection, applies to a federal offender who is serving a sentence in that State or Territory, subject to any conditions relating to eligibility to participate that are specified in the regulations that prescribe that scheme, as if the federal offender were a State or Territory offender serving an equivalent State or Territory sentence in that State or Territory.
Subdivision D - Discharge without conviction, conditional release and sentencing alternatives
Where:
(a) a person is charged before a court with an offence against the law of the Commonwealth; and
(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i) the character, antecedents, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
(iii) the extent (if any) to which the offence was committed under extenuating circumstances;
the court may, by order:
(c) dismiss the charge or charges in respect of which the court is so satisfied; or
(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs-by specified instalments as provided in the order; and
(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
(1A)
However, the court must not take into account under subsection (1) any form of customary law or cultural practice as a reason for:
(a) excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b) aggravating the seriousness of the criminal behaviour to which the offence relates.
(1B)
In subsection (1A):
(a) any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question; and
(b) any fault element relating to such a physical element.
(2)
Where a court proposes to discharge a person in pursuance of an order made under subsection (1), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him:
(a) the purpose and effect of the proposed order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A)
A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under this section.
(3)
Where a charge or charges against a person is or are dismissed, or a person is discharged, in pursuance of an order made under subsection (1):
(a) the person shall have such rights of appeal on the ground that he or she was not guilty of the offence or offences concerned with which he or she was charged as he or she would have had if the court had convicted him or her of the offence or offences concerned; and
(b) there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offences concerned as there would have been if:
(i) the court had, immediately before so dealing with him, convicted him or her of the offence or offences concerned; and
(ii) the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction.
(4)
Where a person is discharged in pursuance of an order made under subsection (1), the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
SECTION 20 Conditional release of offenders after conviction 20(1)
Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a) by order, release the person, without passing sentence on him, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs - by specified instalments as provided in the order;
(iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
Example:
A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
(i) if none of the offences is a Commonwealth child sex offence - either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances - after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
(iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances - immediately.
(1A)
Subject to subsection (1B), if the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer;
the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
(1B)
If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period:
(a) be subject to the supervision of a probation officer appointed in accordance with the order; and
(b) obey all reasonable directions of the probation officer; and
(c) not travel interstate or overseas without the written permission of the probation officer; and
(d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
(2)
Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him:
(a) the purpose and effect of the proposed order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A)
A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.
(3)
Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence.
(4)
Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
(5)
The maximum amount of the penalty that a court may specify in respect of the offence or each offence in an order made under subsection (1) in relation to a person is:
(a) where the offence is punishable by a fine - the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b) where the offence is not punishable by a fine:
(i) if the court is not a court of summary jurisdiction - 300 penalty units; or
(ii) if the court is a court of summary jurisdiction - 60 penalty units.
(6)
Paragraph (1)(b) does not apply in relation to a minimum non-parole offence mentioned in section 19AG, or offences that include one or more such minimum non-parole offences. This subsection has effect despite subsection (1) and sections 19AC and 19AE (which permit or require a court to make a recognizance release order in certain circumstances).
Note:
If the court sentences the person to imprisonment for a minimum non-parole offence, it must fix a non-parole period under section 19AG.
SECTION 20A Failure to comply with condition of discharge or release (1)
Where a person has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective-issue a warrant for the apprehension of the person.
(1A)
Subsection (1) does not apply to a failure by a person to comply with a condition of an order (other than a failure constituted by the commission by the person of an offence) unless the information is laid before the end of the period for which the person is required by the order to give security to be of good behaviour.
(2)
Where:
(a) a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or
(b) a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of his or her bail;
the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.
(3)
A warrant issued under subsection (1) or (2) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his or her apprehension and the detention of the person in custody until he or she is released by order of the court or in accordance with subsection (4).
(4)
Where a person is apprehended in pursuance of a warrant issued under subsection (1) or (2) and the court before which he or she is to be brought is not sitting at the time of his or her arrest, the person shall be brought before a magistrate, who may:
(a) admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit and on the condition that the person appears, onsuch date, at such time and at such place as the magistrate specifies, before that court; or
(b) direct that the person be kept in custody in accordance with the warrant.
(5)
Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
(a) in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1):
(i) revoke the order, convict the person of the offence or offences in respect of which the order was made and, subject to subsection (6), deal with the person, for that offence or those offences, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made; or
(ii) take no action; or
(b) in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a):
(i) without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(ii) revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made and he or she was before the court for sentence in respect of the offence or offences; or
(iii) take no action; or
(c) in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia) impose on the person a monetary penalty of not more than $1000; or
(ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic) revoke the order and make an order under section 20AB; or
(i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her or her release; or
(ii) take no action.
(5A)
The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.
(5B)
If a court, under subparagraph (5)(c)(ib), amends an order made in respect of a person under paragraph 20(1)(b), the security given by the person under that subsection is, by this section, taken to be a security that the person will be of good behaviour for the period stated in the order as amended.
(6)
Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the order was made;
(b) anything done under the order; and
(c) any other order made in respect of the offence or offences.
(7)
Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court may, in addition to dealing with him or her for that offence or those offences, order that any recognizance entered into by him, or by a surety for him, shall be estreated and any other security given by or in respect of him or her shall be enforced.
(8)
Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence or those offences as there would have been if:
(a) in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1)-the manner in which he or she is dealt with had been a sentence or sentences passed upon his or her conviction for the offence; or
(b) in the case of a person who has been released in pursuance of an order made under subsection 20(1):
(i) the court had, immediately before so dealing with him, convicted him or her of the offence or offences; and
(ii) the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction.
(9)
A pecuniary penalty imposed on a person by virtue of subparagraph (5)(b)(i) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his or her conviction for an offence against the law of the Commonwealth.
SECTION 20AA Power to discharge or vary conditions of recognizance (1)
Where a person has entered into a recognizance in pursuance of an order made under subsection 19B(1) or 20(1), any of the following persons may apply to the court by which the order was made for the discharge of the recognizance or for a variation of its terms:
(a) an authorized person;
(b) the person who entered into the recognizance;
(c) a surety for the person who entered into the recognizance;
(d) a probation officer appointed in accordance with the order (in this section referred to as a probation officer ).
(2)
Where an application is made under subsection (1) for the discharge of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and that the conduct of the person who entered into the recognizance has been such as to make it unnecessary that he or she should remain bound by the recognizance, discharge the recognizance.
(3)
Where an application is made under subsection (1) for a variation of the terms of a recognizance, the court (whether or not constituted by the judge or magistrate who made the order in pursuance of which the recognizance was entered into) may, if it is satisfied that notice as required by subsection (5) or (6) has been given and it thinks fit to do so, vary the terms of the recognizance in all or any of the following ways:
(a) by extending or reducing the duration of the recognizance;
(b) by altering the conditions of the recognizance;
(c) by inserting additional conditions in the recognizance;
(d) by reducing any liability to make reparation or restitution, by reducing any instalment of any reparation or restitution or by reducing the amount of, or of any instalment of, any costs, compensation or penalty; or
(e) by altering the manner in which any reparation, restitution, compensation, costs or penalty, or any instalment or any reparation, restitution, compensation, costs or penalty, is or are to be made or paid.
(4)
The court shall not extend the duration of a recognizance beyond:
(a) in the case of a recognizance entered into in pursuance of an order made under subsection 19B(1)-the period of 3 years from the date on which the recognizance was entered into; or
(b) in the case of a recognizance entered into in pursuance of an order made under subsection 20(1)-the period of 5 years from the dateon which the recognizance was entered into.
(5)
Where an application is made under subsection (1) by an authorized person, the authorized person shall cause notice of the application and the date, time and place fixed for the hearing of the application, to be served on the person who entered into the recognizance in relation to which the application is made and:
(a) if that person has a surety in respect of the recognizance-on the surety; and
(b) if that person has a probation officer in respect of the recognizance-on the probation officer.
(6)
Where an application is made under subsection (1) by a person other than an authorized person, the person making the application shall cause notice of the application, and of the date, time and place fixed for the hearing of the application, to be served on the Director of Public Prosecutions or, if the Director of Public Prosecutions has not established an office in the State or Territory in which the application is made, on the Director of Legal Services, in that State or Territory, in the Attorney-General's Department, and:
(a) if the application is made by the person who entered into the recognizance and that person has a surety-on the surety;
(b) if the application is made by a surety in respect of the recognizance-on the person who entered into the recognizance; or
(c) if the application is made by a probation officer in respect of the recognizance-on the person who entered into the recognizance and, if that person has a surety in respect of the recognizance, on the surety.
(7)
Where notice of an application under subsection (1) is served on a surety, the surety is entitled to appear on the hearing of the application and seek to be released from his or her liability as a surety in respect of the recognizance.
(8)
Subject to subsections (9) and (10), where under this section a court varies the terms of a recognizance, a person who is a surety in respect of the recognizance, and is not released by the court from his or her liability, continues to be liable as a surety in respect of the recognizance as so varied.
(9)
Where under this section a court varies the terms of a recognizance in respect of which a person is a surety:
(a) if the recognizance is varied by extending its duration-the surety ceases to be liable after the expiration of the period for which he or she agreed to be liable when he or she became a surety;
(b) if the recognizance is varied by altering a condition-the surety is not liable in respect of non-compliance with that condition as altered; and
(c) if the recognizance is altered by the addition of a condition-the surety is not liable in respect of non-compliance with the additional condition;
unless he or she agrees to be liable in respect of the recognizance as so varied.
(10)
Where under this section a court varies the terms of a recognizance in respect of which a person is a surety by altering a condition, the court shall give directions as to the extent (if any) to which the surety is to continue to be liable in respect of the condition as it existed before the alteration, and the surety continues to be liable in respect of the condition to that extent but not otherwise.
(11)
Where under this section a court varies the terms of a recognizance:
(a) corresponding variations shall, by force of this subsection, be deemed to have been made to the conditions of the order in pursuance of which the recognizance was entered into; and
(b) section 20A applies to and in relation to the order, in respect of acts or things done or omitted to be done after the variation, as if references in that section to the conditions of the order were references to the conditions of the order as so deemed to be varied.
(12)
In this section, authorized person means the Attorney-General, the Director of Public Prosecutions or a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable offences against the laws of the Commonwealth.
SECTION 20AB Additional sentencing alternatives (1)
A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a) subsection (1AA) applies to the sentence or order; and
(b) under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
(c) the first-mentioned court is:
(i) empowered as mentioned in paragraph (b); or
(ii) a federal court.
(1AA)
This subsection applies to a sentence or order that is:
(a) known as any of the following:
(i) an attendance centre order or attendance order;
(ii) a community based order;
(iii) a community correction order;
(iv) a community custody order;
(v) a community service order;
(vi) a community work order;
(vii) a drug or alcohol treatment order or rehabilitation order;
(viia) a residential treatment order;
(viii) a good behaviour order;
(ix) an intensive correction order;
(x) an intensive supervision order;
(xi) a sentence of periodic detention or a periodic detention order;
(xii) a sentence of weekend detention or a weekend detention order;
(xiii) a work order; or
(b) similar to a sentence or order to which paragraph (a) applies; or
(c) prescribed for the purposes of this subsection.
(1A)
Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.
(1B)
A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.
(2)
Where a court proposes to pass a sentence, or make an order, under subsection (1), it shall, before passing the sentence or making the order, explain or cause to be explained to the person in respect of whom it is proposed to pass the sentence or make the order, in language likely to be readily understood by him:
(a) the purpose and effect of the proposed sentence or order;
(b) the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the provisions of the laws of the relevant State or Territory that will apply in relation to the proposed sentence or order by virtue of subsection (3); and
(c) if the proposed sentence or order may be revoked or varied under those provisions - that the proposed sentence or order may be so revoked or varied.
(3)
Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
(4)
Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:
(a) impose any fine or other pecuniary penalty that the court is empowered to impose onthe person for the offence;
(b) make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;
(c) make any other order that the court is empowered to make.
(5)
Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.
(6)
Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.
Note:
If the court sentences the person to imprisonment for the minimum non-parole offence, it must fix a non-parole period under section 19AG.
SECTION 20AC Failure to comply with sentence passed, or order made, under subsection 20AB(1) (1)
In this section, the applied provisions , in relation to a sentence passed or an order made under subsection 20AB(1), means the provisions of the laws of a State or Territory that apply to and in relation to the sentence or order by virtue of subsection 20AB(3).
(2)
Where a sentence has been passed, or an order has been made, under subsection 20AB(1) in respect of a person and information is laid before a magistrate, whether before or after the expiration of the period for which the sentence or order is to operate or operated, alleging that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, the magistrate may:
(a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the sentence was passed or the order was made; or
(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective-issue a warrant for the apprehension of the person.
(3)
Where:
(a) a person who is served with a summons issued under subsection (2) fails to attend before the court as required by the summons; or
(b) a person who has been admitted to bail under subsection (5) fails to attend before the court as required by the condition of his or her bail;
the court may, on proof of the service of the summons or of the admission of the person to bail, as the case may be, issue a warrant for the apprehension of the person.
(4)
A warrant issued under subsection (2) or (3) shall authorize the apprehension of the person, the bringing of the person before the court as soon as practicable after his or her apprehension and the detention of the person in custody until he or she is released by order of the court or in accordance with subsection (5).
(5)
Where a person is apprehended in pursuance of a warrant issued under subsection (2) or (3) and the court before which he or she is to be brought is not sitting at the time of his or her arrest, the person shall be brought before a magistrate, who may:
(a) admit the person to bail, on such recognizance (with or without sureties) as the magistrate thinks fit, on the condition that the person appears, on such date, at such time and at such place as the magistrate specifies, before that court; or
(b) direct that the person be kept in custody in accordance with the warrant.
(6)
Where, in accordance with this section, a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) appears or is brought before the court by which the sentence was passed or the order was made, the court (whether or not constituted by the judge or magistrate who passed the sentence or made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions, may:
(a) without prejudice to the continuance of the sentence or order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(b) revoke the sentence or order and, subject to subsection (7), deal with the person, for the offence in respect of which the sentence was passed or the order was made, in any manner in which he or she could have been dealt with for that offence if the sentence had not been passed or the order had not been made and he or she was before the court for sentence in respect of the offence; or
(c) take no action.
(7)
Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the sentence was passed or the order was made;
(b) anything done under the sentence or order; and
(c) any fine or other pecuniary penalty imposed, and any other order made, for or in respect of the offence.
(8)
Where a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) is dealt with under subsection (6) for the offence in respect of which the sentence was passed or the order was made, there shall be such rights of appeal in respect of the manner in which the person is dealt with for that offence as there would have been if:
(a) the court had, immediately before so dealing with him, convicted him or her of the offence; and
(b) the manner in which he or she is dealt with had been a sentence passed upon that conviction.
(9)
Nothing in this section shall be taken to prevent a sentence passed, or an order made, under subsection 20AB(1) being revoked or varied under the applied provisions otherwise than for a failure to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions.
(10)
A pecuniary penalty imposed on a person by virtue of paragraph (6)(a) shall, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, be deemed to be a fine imposed on the person upon his or her conviction for a federal offence.
Division 6 - Unfitness to be tried SECTION 20B Consequences of preliminary finding that person unfit to be tried (1)
Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.
(2)
If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.
(3)
Where a court:
(a) to which proceedings have been referred under subsection (1); or
(b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;
finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.
(4)
Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(5)
Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(6)
For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.
(7)
In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:
(a) the person may give evidence or make an unsworn statement; and
(b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and
(c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.
SECTION 20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months (1)
Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.
(2)
Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:
(a) the character, antecedents, age, health or mental condition of the person; or
(b) the extent (if any) to which the offence is of a trivial nature; or
(c) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.
(3)
Where the court orders that the person be released from custody, the person must be released accordingly.
(4)
Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.
(5)
A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.
(6)
Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.
SECTION 20BB Persons found by a court to be likely to be fit within 12 months (1)
Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within a period of 12 months after that finding, the court must, at the time of making that determination, also determine:
(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and
(b) if so-whether the person objects to being detained in a hospital.
(2)
Where a court has made a determination under subsection (1), the court must:
(a) where the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital-order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or
(b) otherwise:
(i) order that the person be taken to and detained in a place other than a hospital (including a prison); or
(ii) grant the person bail on condition that the person live at an address or in a place specified by the court;
for a period ending:
(c) when the person becomes fit to be tried; or
(d) when, as soon as practicable after the end of the 12 months referred to in subsection (1), the court makes an order under subsection 20BC(2) or (5) as applied under subsection (4);
whichever happens first.
(3)
Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within 12 months after that finding then, if the person becomes fit within that period:
(a) if the person had been indicted on the charge before being found unfit-the proceedings on the indictment must be continued as soon as practicable; and
(b) if proceedings for the commitment of the person had been referred to the court under section 20B-those proceedings must be continued as soon as practicable as if they had not been so referred.
(4)
Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried, within 12 months after that finding but the person does not become fit within that period, then, at the end of that period, subsections 20BC(2) and (5) apply as if the court had originally determined, at that time, that the person would not become fit to be tried and had made, under subsection 20BC(1), a further determination of the kind that it made under subsection (1) of this section.
(5)
Where subsections 20BC(2) and (5) apply in relation to a person in the circumstances set out in subsection (4), then:
(a) in an order under subsection 20BC(2) as so applied the court must, in fixing the period of detention, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section; and
(b) in an order under subsection 20BC(5) as so applied the court must:
(i) in the case of a person already on bail-order, in lieu of the person's release from custody, the continuance of the person's release on bail; and
(ii) in fixing the period of the person's release for which conditions apply, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section.
(6)
Where a court determines, under subsection 20BA(4), thata person who was found unfit to be tried will become fit to be tried within 12 months after that finding but the person does not become fit within that period, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.
SECTION 20BC Persons found by a court not to be likely to be fit within 12 months (1)
Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine:
(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and
(b) if so-whether the person objects to being detained in a hospital.
(2)
Where a court has made a determination under subsection (1), the court must:
(a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital-order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or
(b) otherwise-order that the person be detained in a place other than a hospital, including a prison;
for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(3)
The Attorney-General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section.
(4)
Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation.
(5)
Despite subsection (2), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (2), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(6)
The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and
(c) any other condition that the court thinks fit.
(7)
Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
(8)
Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person, in respect of the offence.
SECTION 20BD Review by Attorney-General (1)
Where a court makes an order under subsection 20BC(2), the Attorney-General must, at least once in each period of 6 months after the day the person is detained under the order, consider whether or not the person should be released from detention.
(2)
In considering whether the person should be released from detention the Attorney-General:
(a) must obtain and consider:
(i)a report from a duly qualified psychiatrist or psychologist; and
(ii) a report from another duly qualified medical practitioner; and
(b) may obtain and consider such other reports as the Attorney-General considers necessary; and
(c) must take into account any representations made to the Attorney-General by the person or on the person's behalf.
SECTION 20BE Attorney-General may order release (1)
The Attorney-General may, after considering under subsection 20BD(1) whether or not the person should be released from detention, order that the person be released from detention.
(2)
The Attorney-General must not order a person's release from detention unless the Attorney-General is satisfied that the person is not a threat or danger either to himself or herself or to the community.
(3)
An order:
(a) must be in writing; and
(b) remains in force for such period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention under subsection 20BC(2)) or for a period of 5 years, whichever is the lesser; and
(c) is subject to such conditions (if any) as are specified in the order.
(4)
Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:
(a) a condition that the person reside at an address specified in the order;
(b) a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times as are specified in the order;
(c) a condition that the person undertake such medical or mental health therapy as is specified in the order;
(d) a condition that the person undertake such social, vocational or educational counselling as is specified in the order;
(e) a condition that the person participate in such programs relating to financial management, behaviour modification or inter-personal relationships as are specified in the order.
SECTION 20BF Release order may be revoked (1)
The Attorney-General may, by instrument in writing, revoke an order made under subsection 20BE(1) (in this section called a release order ) at any time while that release order remains in force:
(a) if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or
(b) if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;
and, where the Attorney-General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.
(2)
Before revoking a release order, the Attorney-General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.
(3)
Where a release order in relation to a person is revoked:
(a) a constable may arrest the person without warrant; or
(b) the Attorney-General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.
(4)
A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
(5)
Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:
(a) the person is the person named in the instrument revoking the release order; and
(b) the release order has been revoked and the revocation is still in force;
the prescribed authority must issue a warrant:
(c) authorising any constable to take the person to a specified prison or hospital in the State or Territory; and
(d) directing that the person be detained in prison or in hospital in that State or Territory for such part of the period fixed by the court to be the period of detention under subsection 20BC(2) as had not elapsed at the time of the making of the release order.
(6)
If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.
(7)
The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.
(8)
Where for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for that variation.
SECTION 20BG Attorney-General to review detention of persons taken back into detention (1)
Where, under subsection 20BF(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration ) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2)
Subsection 20BD(2) and, subject to the modification set out in subsection (3), section 20BE, apply in relation to an initial consideration and to any reconsideration under subsection (1).
(3)
For the purposes of applying section 20BE, subsection 20BE(1) has effect as if the reference in that subsection to subsection 20BD(1) were a reference to subsection (1) of this section.
SECTION 20BH 20BH State or Territory mental health authorities to be notified of certain releases
Where a person detained by authority of an order under subsection 20BC(2) or a warrant under subsection 20BF(5) for a specified period in a State or Territory is due to be released because the period of that person's detention has ended, the Attorney-General must notify the mental health authorities of the State or Territory of the proposed release of the person. SECTION 20BI Appeals against some Victorian jury findings of unfitness to be tried (1)
This section applies if:
(a) in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a question arises whether the accused is fit to stand trial; and
(b) a jury finds that the accused is unfit.
Right to appeal
(2)
The accused may appeal to the Court of Appeal of Victoria against the finding:
(a) on a ground involving only one or more questions of law alone; or
(b) on a ground involving one or more questions of fact alone, or one or more questions of mixed law and fact, if the judge before whom the accused came for trial certifies the ground is fit for appeal; or
(c) on any ground if the Court of Appeal gives leave.
Decision on appeal
(3)
The Court of Appeal must allow the appeal if the court thinks that:
(a) the finding should be set aside because it is unreasonable or cannot be supported having regard to the evidence; or
(b) the order of the Supreme Court or County Court giving effect to the finding should be set aside because of a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
(4)
Otherwise, the Court of Appeal must dismiss the appeal.
(5)
Despite subsection (3), the Court of Appeal may dismiss the appeal if the Court of Appeal thinks that no substantial miscarriage of justice has occurred.
Consequences if appeal allowed
(6)
If the Court of Appeal allows the appeal:
(a) the accused may be tried for the federal offence; and
(b) the Court of Appeal may make orders for the custody or bail of the accused.
Rules of court
(7)
Rules of court for the Court of Appeal of Victoria may make provision relating to appeals under subsection (2) and proceedings relating to orders under paragraph (6)(b).
Relationship with the rest of this Division
(8)
This Division has effect subject to this section.
Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(2)
The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1).
(3)
Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation.
(4)
Despite subsection (1), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (1), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5)
The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment.
(6)
Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
SECTION 20BK Review by Attorney-General (1)
Where, under subsection 20BJ(1), a court orders that a person be detained in safe custody in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration ) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2)
In considering whether a person should be released from custody the Attorney-General:
(a) must obtain and consider:
(i) a report from a duly qualified psychiatrist or psychologist; and
(ii) a report from another duly qualified medical practitioner; and
(b) may obtain and consider such other reports as the Attorney-General considers necessary; and
(c) must take into account any representations made to the Attorney-General by the person or on the person's behalf.
SECTION 20BL Attorney-General may order release (1)
The Attorney-General may, after considering under subsection 20BK(1) whether or not the person should be released from custody, order that the person be released from custody.
(2)
The Attorney-General must not order a person's release from detention unless the Attorney-General is satisfied that the person is not a threat or danger either to himself or herself or to the community.
(3)
An order:
(a) must be in writing; and
(b) remains in force for such a period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention in safe custody under subsection 20BJ(1)) or for a period of 5 years, whichever is the lesser; and
(c) is subject to such conditions (if any) as are specified in the order.
(4)
Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:
(a) a condition that the person reside at an address specified in the order;
(b) a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times and places as are specified in the order;
(c) a condition that the person undertake such medical or mental health therapy as is specified in the order;
(d) a condition that the person undertake such social, vocational or educational counselling as is specified in the order;
(e) a condition that the person participate in such programs relating to financial management, behaviour modification or inter-personal relationships as are specified in the order.
SECTION 20BM Release order may be revoked (1)
The Attorney-General may, by instrument in writing, revoke an order made under subsection 20BL(1) (in this section called a release order ) at any time while that release order remains in force:
(a) if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or
(b) if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;
and, where the Attorney-General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.
(2)
Before revoking a release order, the Attorney-General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.
(3)
Where a release order in relation to a person is revoked:
(a) a constable may arrest the person without warrant; or
(b) the Attorney-General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.
(4)
A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
(5)
Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:
(a) the person is the person named in the instrument revoking the release order; and
(b) the release order has been revoked and the revocation is still in force;
the prescribed authority may issue a warrant:
(c) authorising any constable to take the person to a specified prison or hospital in the State or Territory; and
(d) directing that the person be detained in prison or in hospital in the State or Territory for such part of the period fixed by the court to be the period of detention in safe custody under subsection 20BJ(1) as had not elapsed at the time of the making of the release order.
(6)
If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.
(7)
The Attorney-General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.
(8)
Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which the person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for that variation.
SECTION 20BN Attorney-General to review detention of persons taken back into detention (1)
Where, under subsection 20BM(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney-General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration ) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2)
Subsection 20BK(2) and, subject to the modification in subsection (3), section 20BL, apply in relation to an initial consideration and a reconsideration under subsection (1).
(3)
For the purposes of applying section 20BL, subsection 20BL(1) has effect as if the reference in that subsection to subsection 20BK(1) were a reference to subsection (1) of this section.
SECTION 20BP 20BP State or Territory authorities to be notified of certain releases
Where a person detained by authority of an order under subsection 20BJ(1) or a warrant under subsection 20BM(5) for a specified period in a State or Territory is due to be released because the period of the person's detention has ended, the Attorney-General must notify the mental health authorities of that State or Territory of the proposed release of the person. Division 8 - Summary disposition of persons suffering from mental illness or intellectual disability SECTION 20BQ Person suffering from mental illness or intellectual disability (1)
Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:
(a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and
(b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;
the court may, by order:
(c) dismiss the charge and discharge the person:
(i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or
(ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or
(iii) unconditionally; or
(d) do one or more of the following:
(i) adjourn the proceedings;
(ii) remand the person on bail;
(iii) make any other order that the court considers appropriate.
(2)
Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.
(3)
Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB (other than an order covered by subparagraph 20AB(1AA)(a)(viia)) or 21B in respect of the person in respect of the offence.
SECTION 20BR 20BR Means by which court may be informed
For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself. Division 9 - Sentencing alternatives for persons suffering from mental illness or intellectual disability SECTION 20BS Hospital orders (1)
Where a person is convicted in a State or Territory, on indictment, of a federal offence and the court before which the person is convicted is satisfied that:
(a) the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and
(b) the illness contributed to the commission of the offence by the person; and
(c) appropriate treatment for the person is available in a hospital in that State or Territory; and
(d) the proposed treatment cannot be provided to the person other than as an inmate of a hospital in the State or Territory;
the court may, without passing sentence on the person, make an order (in this section called a hospital order ) that the person be detained in a hospital specified in the order for a period specified in the order for the purposes of receiving treatment specified in the order.
(2)
A court must not make a hospital order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment.
(3)
A court must not specify a period of detention in a hospital that is longer than the period of imprisonment to which the person would have been sentenced had the hospital order not been made.
(4)
Where the court orders a person to be detained in a hospital for a specified period, the court may fix a lesser period of detention during which the person is not to be eligible to be released from the hospital.
(5)
Before reaching an opinion on the matters specified in subsection (1) in relation to a person, the court must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness.
(6)
A court may make a hospital order in respect of a person even if the person is serving a federal sentence at the time when, under the order, the person is to begin to be detained in hospital and, where a hospital order is made in such circumstances:
(a) the hospital order is sufficient authority for the person to be detained outside the prison during the period of involuntary hospitalisation under the order; and
(b) the person is to be treated, for the purposes ofthat sentence, as serving that sentence during the period of involuntary hospitalisation under the order; and
(c) if the person is still liable to serve a part of that sentence when the hospital order ends or is discharged, the person is to be returned for that purpose to the prison where he or she was serving that sentence before the making of the order.
(7)
Subsection (4) does not enable a court, in the case of a person who is serving a federal sentence at the time when the hospital order begins, to fix a lesser period of detention ending:
(a) if a non-parole period has been fixed in respect of the sentence-before the end of that non-parole period; and
(b) otherwise-before the end of that sentence.
SECTION 20BT Lesser periods of imprisonment fixed under hospital orders (1)
Where a lesser period of detention is fixed under subsection 20BS(4) in relation to a person detained in hospital under a hospital order, the Attorney-General must, at the end of the lesser period, obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness so as to determine whether or not to release the person from the detention.
(2)
Unless:
(a) either of the reports of the psychiatrists recommends that the person not be released because of a continuing need for hospital treatment; or
(b) the person continues, at the end of the lesser period of detention, to be required to serve a federal sentence of imprisonment that the person was serving at the time when the hospital order began;
the Attorney-General must order the person to be released on such conditions (including conditions relating to release into the care of another person specified in the order) for the balance of the period of the hospital order as the Attorney-General considers appropriate having regard to the reports and to such other matters as he or she considers relevant.
(3)
Sections 20BM and 20BN apply in relation to a person released from involuntary hospitalisation by order under subsection (2) as if:
(a) the order under that subsection were a release order made under subsection 20BL(1); and
(b) the references in each of those sections to detention in a prison or a hospital were references only to detention in a hospital; and
(c) the reference in subsection 20BM(5) to the period of detention in safe custody under subsection 20BJ(1) were a reference to the period of detention in a hospital specified in the order under subsection 20BS(1).
SECTION 20BU Discharge of hospital orders (1)
Where a person is subject to a hospital order, the person or the Director of Public Prosecutions may, at any time while the order is in force, apply to the court that imposed the order to discharge the order and to impose such other sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made.
(2)
The court must not discharge a hospital order unless the court is satisfied:
(a) that the person has sufficiently recovered from mental illness no longer to require involuntary hospitalisation; or
(b) that the mental illness will not respond or respond further to hospital treatment.
(3)
Where the court discharges a hospital order and imposes another sentence instead of the order:
(a) the new sentence must commence on the date of commencement of the order; and
(b) the length of the new sentence must not exceed the length of the order; and
(c) if the sentence is a sentence of imprisonment-the person concerned is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation.
(4)
Before reaching an opinion on the matters specified in subsection (2) in relation to a person, the court:
(a) must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness; and
(b) if the person has been released, under section 20BR, into the care of another person for the balance of the hospital order-must obtain and consider the report of that other person; and
(c) may obtain and consider such other information as it thinks relevant.
(5)
An application under subsection (1) to the court that made a hospital order may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the order was made.
SECTION 20BV Psychiatric probation orders (1)
Where a person is convicted in a State or Territory of a federal offence and the court is satisfied that:
(a) the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and
(b) the illness contributed to the commission of the offence by the person; and
(c) appropriate psychiatric treatment for the person is available in a hospital or other place in the State or Territory; and
(d) the person consents to the order being made;
the court may, without passing sentence on the person, make an order (in this section called a psychiatric probation order ) that the person reside at, or attend at, a specified hospital or other place for the purpose of receiving that psychiatric treatment.
(2)
The court must not make an order unless the person, or the person's legal guardian, consents to the proposed treatment.
(3)
An order is subject to the following additional conditions:
(a) that the person will, during such period, not exceeding 2 years, as the court specifies in the order, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed;
(b) that the person will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order.
(4)
The court may, on the application of the person, of the probation officer appointed to supervise the person or of the person in charge of the hospital or other place where the treatment is being undertaken, vary the treatment that the person is to undertake.
SECTION 20BW Breach of psychiatric probation orders (1)
Where an order has been made under section 20BV and information is laid before a magistrate, whether before or after the end of the period referred to in paragraph 20BV(3)(a) or (b), alleging that the person has, without reasonable excuse, failed to comply with a condition of the order, the magistrate may:
(a) issue a summons directing the person to appear, on a date, and at a time and place, fixed in the summons, before the court by which the order was made; or
(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective-issue a warrant for the arrest of the person.
(2)
Where:
(a) a person who is served with a summons issued under subsection (1) fails to attend before the court as required by the summons; or
(b) a person who has been admitted to bail under subsection (4) fails to attend before the court as required by the conditions of that bail;
the court may issue a warrant for the arrest of the person.
(3)
A warrant for the arrest of a person issued under subsection (1) or (2) also authorises the bringing of the person before the court as soon as practicable after the person's arrest and the detention of the person in custody until the person is released by order of the court or under subsection (4).
(4)
Where a person is arrested under a warrant issued under subsection (1) or (2) and the court before which the person is to be brought is not sitting at the time of the arrest, the person must be brought before a magistrate who may:
(a) remand the person to bail on such recognizance (with or without sureties) as the magistrate thinks fit and on the condition that the person appears before the court on such date, and at such time and place, as the magistrate specifies; or
(b) direct that the person be kept in custody in accordance with the warrant.
SECTION 20BX Enforcement of psychiatric probation orders (1)
Where a person who is subject to an order under section 20BV appears before the court by which the order was made and the court is satisfied that the person has, without reasonable excuse, failed to comply with a condition of the order, the court may:
(a) without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person; or
(b) discharge the order and make an order under section 20; or
(c) revoke the order and, subject to subsection (2), deal with the person for the offence in respect of which the order was made, in any way in which the person could have been dealt with for that offence if the order had not been made and the person was before the court for sentence in respect of the offence; or
(d) take no action.
(2)
Where a person who is subject to an order under section 20BV is dealt with under subsection (1) for the offence in respect of which the order was made, the court must, in so dealing with the person, in addition to any other matters, take into account:
(a) the fact that the order was made; and
(b) anything done under the order; and
(c) any other order made in respect of the offence.
(3)
Where a person who has been released in accordance with an order under section 20BV is dealt with under subsection (1) for the offence in respect of which the order was made, the person has such rights of appeal in respect of the way in which the person was dealt with for that offence as the person would have if:
(a) the court had, immediately before so dealing with the person, convicted the person of the offence; and
(b) the manner in which the person is dealt with had been a sentence passed upon that conviction.
(4)
A pecuniary penalty imposed on a person under paragraph (1)(a) is to be treated, for the purposes of the laws of the Commonwealth, and of the States and Territories, with respect to the enforcement and recovery of fines ordered to be paid by offenders, as a fine imposed on the person because of the person's conviction for an offence against a law of the Commonwealth.
SECTION 20BY Program probation orders (1)
Where a person is convicted in a State or Territory of a federal offence and the court before which the person is convicted is satisfied that:
(a) the person is suffering from an intellectual disability; and
(b) the disability contributed to the commission of the offence by the person; and
(c) an appropriate education program or treatment is available for the person in that State or Territory;
the court may, without passing sentence on the person, order that the person be released, on condition that the person undertake the program or treatment specified in the order for a period specified in the order.
(2)
Subsections 20BV(2), (3) and (4) and sections 20BW and 20BX apply to a person in respect of whom an order has been made under subsection (1) of this section in the same way as they apply to a person in respect of whom an order has been made under subsection 20BV(1) and, for that purpose, references in those provisions to treatment have effect as if they were references to an education program or treatment of the kind referred to in subsection (1) of this section.
Division 9A - Sharing information relevant to federal offenders
In this Division:
(a) the Attorney-General; or
(b) the Secretary of the Department.
Note:
The Attorney-General's powers and functions under this Division may be delegated under section 17 of the Law Officers Act 1964. The Secretary's powers and functions under this Division may be delegated under section 20BZC of this Act.
relevant person
means any of the following:
(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);
(b) a member of the police force or police service of a State or Territory;
(c) a person who exercises powers under, or performs functions or duties in connection with, any of the following:
(i) the Australian Crime Commission Act 2002;
(ii) the Crime Commission Act 2012 (NSW);
(iii) the Independent Commission Against Corruption Act 1988 (NSW);
(iv) the Law Enforcement Conduct Commission Act 2016 (NSW);
(v) the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.);
(vi) the Crime and Corruption Act 2001 (Qld);
(vii) the Corruption and Crime Commission Act 2003 (WA);
(viii) the Independent Commission Against Corruption Act 2012 (SA);
(ix) the Integrity Commission Act 2009 (Tas.);
(d) the Director of Public Prosecutions or a person performing a similar function under a law of a State or Territory;
(e) a member of the staff of the Office of the Director of Public Prosecutions (within the meaning of the Director of Public Prosecutions Act 1983) or of a similar body established under a law of a State or Territory;
(f) an officer or employee of a State or Territory, or of an authority of a State or Territory, whose duties relate to corrective services (including prison medical services), justice or parole;
(g) a person who provides services for, or on behalf of, a State or Territory, or an authority of a State or Territory, in relation to corrective services (including prison medical services), justice or parole;
(h) an officer of Customs;
(i) an officer oremployee of a Department responsible for administering:
(i) the Australian Passports Act 2005; or
(ii) the Defence Force Discipline Act 1982; or
(iii) the Migration Act 1958;
(j) a member of the Defence Force;
(k) a staff member (within the meaning of the Australian Securities and Investments Commission Act 2001);
(l) a taxation officer (within the meaning of Schedule 1 to the Taxation Administration Act 1953);
(m) an officer or employee of the State Debt Recovery Office of New South Wales, or of a similar body established under a law of a State or Territory;
(n) the Registrar or another appropriate officer of a court;
(o) a person who performs functions or duties in connection with a superannuation scheme (within the meaning of the Crimes (Superannuation Benefits) Act 1989) of a person who is or was an employee (within the meaning of that Act);
(p) a practitioner (within the meaning of Part VAA of the Health Insurance Act 1973) who has provided services (within the meaning of that Part) to a federal offender.
Requesting information to be given
(1)
An authorised officer may request a relevant person, or a person prescribed by regulation for the purposes of this subsection, to give the officer information that the officer reasonably believes to be relevant to:
(a) the administration or execution of:
(i) this Part; or
(ii) section 15A (enforcement of fines); or
(iii) Division 5 (escape from criminal detention) of Part III; or
(iv) the Crimes (Superannuation Benefits) Act 1989; or
(v) the Transfer of Prisoners Act 1983; or
(b) the exercise of a power under, or the performance of a function or duty in connection with, a law of a State or Territory applied by paragraph 68(1)(d) of the Judiciary Act 1903 (procedure for hearing and determining appeals arising out of trials, convictions and connected proceedings); or
(c) the exercise of the Royal prerogative of mercy by the Crown in right of the Commonwealth.
(2)
The request need not be in writing.
Requiring information to be given
(3)
An authorised officer may, by written notice, require a relevant person, or a person prescribed by regulation for the purposes of this subsection, to give the officer information of a kind mentioned in subsection (1).
(4)
A person given a notice under subsection (3) must, as soon as practicable after the notice is given, comply with it to the extent that he or she has, or can reasonably acquire, the information.
(5)
Subsection (4) applies despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
(6)
Despite subsection (4), the Registrar or another officer of a court is not required to comply with a notice given under subsection (3) to the extent that the information relates to proceedings that have not been finally determined by the court.
An authorised officer may disclose federal offender information to a relevant person if the officer reasonably believes that the disclosure is necessary to enable the relevant person to exercise the person's powers, or to perform the person's functions or duties.
(2)
An authorised officer may disclose federal offender information to a person prescribed by regulation for the purposes of this subsection in a circumstance prescribed by regulation in relation to the person.
(3)
Subsections (1) and (2) apply despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
(4)
In this section:
federal offender information
means:
(a) information acquired by an authorised officer, or an APS employee in the Department, in the exercise of a power under, or the performance of a function or duty in connection with:
(i) this Part; or
(ii) section 15A (enforcement of fines); or
(iii) Division 5 (escape from criminal detention) of Part III; or
(iv) the Crimes (Superannuation Benefits) Act 1989; or
(v) the Transfer of Prisoners Act 1983; or
(vi) a law of a State or Territory applied by paragraph 68(1)(d) of the Judiciary Act 1903 (procedure for hearing and determining appeals arising out of trials, convictions and connected proceedings); or
(b) information acquired by an authorised officer in the performance of a function or duty in connection with the exercise of the Royal prerogative of mercy by the Crown in right of the Commonwealth.
The Secretary of the Department may, in writing, delegate any of his or her powers or functions under this Division to an APS employee in the Department who performs duties in connection with:
(a) the administration or execution of:
(i) this Part; or
(ii) section 15A (enforcement of fines); or
(iii) Division 5 (escape from criminal detention) of Part III; or
(iv) the Crimes (Superannuation Benefits) Act 1989; or
(v) the Transfer of Prisoners Act 1983; or
(b) a law of a State or Territory applied by paragraph 68(1)(d) of the Judiciary Act 1903 (procedure for hearing and determining appeals arising out of trials, convictions and connected proceedings); or
(c) the exercise of the Royal prerogative of mercy by the Crown in right of the Commonwealth.
A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.
(Repealed by No 75 of 2018)
Where:
(a) a person is convicted of an offence against the law of the Commonwealth; or
(b) an order is made under section 19B in relation to a federal offence committed by a person;
the court may, in addition to the penalty, if any, imposed upon the person, order the offender:
(c) to make reparation to the Commonwealth or to a public authority under the Commonwealth, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the Commonwealth or the authority, as the case may be, by reason of the offence; or
(d) to make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the person by reason of the offence.
(2)
A person is not to be imprisoned for a failure to pay an amount required to be paid under an order made under subsection (1).
(3)
Where:
(a) the court orders a federal offender to make reparation to the Commonwealth, to a public authority of the Commonwealth or to any other person by way of payment of an amount of money; and
(b) the clerk, or other appropriate officer, of the court signs a certificate specifying:
(i) the amount of money to be paid by way of reparation; and
(ii) the identity of the person to whom the amount of money is to be paid; and
(iii) the identity of the person by whom the amount is to be paid; and
(c) the certificate is filed in a court (which may be the first-mentioned court) having civil jurisdiction to the extent of the amount to be paid;
the certificate is enforceable in all respects as a final judgment of the court in which it is filed in favour of the Commonwealth, of that public authority or of that person.
SECTION 21D Prerogative of mercy and other Commonwealth laws unaffected (1)
Nothing in this Part shall be construed as affecting the powers vested in the Governor-General in the exercise of the Royal prerogative of mercy.
(2)
This Part does not affect the operation of any other law of the Commonwealth, or of any law in force in a Territory, relating to the release of offenders.
SECTION 21E 21E Director of Public Prosecutions may appeal against reductions where promised co-operation with law enforcement agencies refused
(Repealed by No 153 of 2015)
Subject to subsection (2), the Governor-General may arrange with the Governor of a State, the Australian Capital Territory Executive or the Administrator of the Northern Territory:
(a) for the performance by persons who hold office as Magistrates in that State or Territory of the functions of a prescribed authority under this Part; and
(b) for the performance by officers of that State or Territory of the functions of a parole officer under this Part.
(2)
Subsection (1) does not authorise an arrangement of the kind referred to in paragraph (1)(a) to be entered into between the Governor-General and the Australian Capital Territory Executive before 1 July 1990.
(3)
The Attorney-General may appoint persons appointed or engaged under the Public Service Act 1999 to be parole officers for the purposes of this Part.
(4)
Notice of an arrangement under subsection (1) must be published in the Gazette.
(5)
In this section:
State
does not include the Australian Capital Territory or the Northern Territory.
SECTION 22 Conditions etc. that a court may impose on certain offenders 22(1)
Where a court makes a relevant order or passes a relevant sentence in respect of a person charged with, or convicted of:
(a) an offence against a law of the Commonwealth or of a Territory, being an offence that is a serious drug offence; or
(b) a prescribed offence against a law of the Commonwealth or of a Territory;
it may, at the same time or at a later time, order the person to do all or any of the following things:
(c) to remain in Australia;
(d) to refrain from applying for, or obtaining, an Australian travel document;
(e) to surrender possession of any Australian travel document held by the person.
22(2)
Subject to subsection (3), an order made under subsection (1) has effect during such reasonable period as is specified by the court in the order.
22(3)
The court may, by order, revoke an order made under subsection (1) or vary such an order as the court sees fit.
22(4)
If the court makes an order under subsection (1) or (3), the Registrar or other appropriate officer of the court, as the case requires, must, as soon as practicable, give to the Secretary of the Department administered by the Minister administering the Passports Act 1938 a copy of the order.
22(5)
If the court makes an order under paragraph (1)(e):
(a) the Australian travel document must be given to the Registrar or other appropriate officer of the court; and
(b) the Registrar or officer must cause the Australian travel document to be kept in such custody as he or she thinks fit until:
(i) the Australian travel document is required to be released under subsection (6); or
whichever happens first.
(ii) the Australian travel document is cancelled or expires;
22(6)
If an Australian travel document surrendered under an order under paragraph (1)(e) is in force when that order ceases to have effect, the person having the custody of the Australian travel document at that time must, on the application of the person to whom it was issued, cause it to be returned to that person.
22(7)
In this section:
narcotic substance
(Repealed by No 129 of 2005)
possession
(Repealed by No 129 of 2005)
production
(Repealed by No 129 of 2005)
relevant order
means an order:
(a) remanding a person, whether on bail or in custody; or
(b) suspending the sentence passed on a person upon his or her entering into a recognizance; or
(c) releasing the person on conditions under subsection 20(1).
(a) a sentence of imprisonment other than a suspended sentence; or
(b) a sentence under section 20AB.
serious drug offence
means an offence:
(a) involving, or relating to, controlled substances; and
(b) punishable by a maximum penalty of imprisonment for 2 years or more.
serious narcotics offence
(Repealed by No 129 of 2005)
trafficable quantity
(Repealed by No 129 of 2005)
SECTION 22A State orders relating to Australian travel documents 22A(1)
If, under a law of a State, a court makes an order requiring a person charged with, or convicted of:
(a) a serious drug offence against a law of that State; or
(b) such other serious offence against a law of that State as is specified in the first-mentioned law;
to surrender possession of any Australian travel document held by the person, the person must surrender the Australian travel document to the Registrar, or other appropriate officer, of the court to be dealt with in accordance with that law.
22A(2)
In this section:
serious drug offence
has the same meaning as in section 22.
Part IC - Investigation of Commonwealth offences Division 1 - Introduction
This Part:
(a) provides for the detention of people arrested for Commonwealth offences (see Division 2); and
(b)imposes obligations on investigating officials in relation to:
(i) people arrested for Commonwealth offences; and
(see Division 3).
(ii) certain other people who are being investigated for Commonwealth offences;
(2)
To avoid doubt, this Part does not confer any power to arrest a person.
(3)
To avoid doubt, only a person arrested for a Commonwealth offence may be detained under this Part.
SECTION 23A Application of Part (1)
Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part.
(2)
This Part does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently with this Part.
(3)
In subsection (2):
law of a State or Territory
includes such a law that is given a particular application by a law of the Commonwealth.
(4)
Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part.
(5)
The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.
(6)
(Repealed by No 136 of 2001)
SECTION 23AA How this Part applies to the Antarctic Territories (1)
This Part applies in relation to a person as if he or she were arrested on arrival in a State or Territory if:
(a) the person was arrested within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and
(b) the person was brought, while under arrest, to the State or Territory; and
(c) this Part applies in the State or Territory.
(2)
This Part applies in relation to a person as if he or she first became a protected suspect on arrival in a State or Territory if:
(a) the person was a protected suspect within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and
(b) the person travelled, while a protected suspect, to the State or Territory; and
(c) this Part applies in the State or Territory.
(3)
This Part does not otherwise apply within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands.
SECTION 23B Definitions (1)
In this Part:
Aboriginal legal aid organisation
(Repealed by No 75 of 2018)
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.
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.
arrested or under arrest
(Repealed by No 136 of 2001)
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.
(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.
(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.
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.
(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).
investigation period
means the investigation period prescribed by section 23C or or 23DB, as the case requires.
judicial officer
(Repealed by No 63 of 2023)
magistrate
(Repealed by No 136 of 2001)
protected suspect
has the meaning given by subsection (2).
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.
tape recording
means audio recording, video recording or recording by other electronic means.
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.
(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;
(d) none of the following applies in relation to the person:
(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
(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;
(e) theperson has not ceased to be a suspect under subsection (4).
(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
(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).
(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).
(5)
Subsection (4) does not prevent the person from being re-arrested or again becoming a protected suspect.
(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.
Division 2 - Powers of detention
Note:
The powers in this Division only apply in relation to people under arrest. They do not apply in relation to protected suspects.
If a person is arrested for a Commonwealth offence (other than a terrorism offence), the following provisions apply.
Note:
A person would not be arrested for a Commonwealth 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 Commonwealth 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.
(2A)
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.
(3)
If the person is not released within the investigation period, the person must be brought before a bail authority 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.
(4)
For the purposes of this section, but subject to subsections (6) and (7), 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 23DB.
(6A)
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
(b) the person's questioning associated with the later arrest does not relate to:
(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
(i) a Commonwealth offence to which the first arrest relates; or
(ii) the circumstances in which such an offence was committed.
(7)
In ascertaining any period of time for the purposes of subsection (4) or (6), 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 23D, 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.
(7A)
To avoid doubt, subsection (7) does not prevent the person being questioned during a time covered by a paragraph of subsection (7), but if the person is questioned during such a time, the time is not to be disregarded.
Evidentiary provision
(8)
In any proceedings, the burden lies on the prosecution to prove that: (a) the person was brought before a bail authority as soon as practicable; or (b) any particular time was covered by a provision of subsection (7).
(9)
(Repealed by No 127 of 2010)
SECTION 23CA 23CA Period of arrest if arrested for terrorism offence
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
If a person is arrested for a serious Commonwealth offence (other than a terrorism offence), an investigating official may, at or before the end of the investigation period, apply to a magistrate for an extension of the investigation period.
(2)
The application must be made before the magistrate, by telephone or in writing.
(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 23C(6);
(e) the total amount of time (if any) that has been disregarded under subsection 23C(7) in ascertaining the investigation period under subsection 23C(4);
(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:
(a) must:
(i) if the application is to be made in writing - provide a copy of the application to the person, or to his or her legal representative; or
(ii) otherwise - inform the person, or his or her legal representative, of all matters or information in the application (other than information of a kind mentioned in subsection (4)); and
(b) must 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 any 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.
This section applies if:
(a) a person is arrested for a serious Commonwealth offence (other than a terrorism offence); and
(b) an application has been made under subsection 23D(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 satisfiedthat:
(a) the offence is a serious Commonwealth offence (other than a terrorism offence); and
(b) further detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another serious Commonwealth offence; and
(c) the investigation into the offence is being conducted properly and without delay; and
(d) 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 telephone, 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 telephone, 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 for a period not exceeding 8 hours, and must not be extended more than once.
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 3WA(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 bail authority 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
(b) the person's questioning associated with the later arrest does not relate to:
(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
(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 bail authority as soon as practicable; or (b) any particular time was covered by a provision of subsection (9).
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) inascertaining 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.
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).
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.
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.
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.
Note:
These obligations apply in relation to protected suspects as well as to people under arrest.
Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2)
The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3)
Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
SECTION 23G Right to communicate with friend, relative and legal practitioner (1)
Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
(2)
Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must:
(a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and
(b) in the case of a communication with a legal practitioner-allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard.
(3)
Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must:
(a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and
(b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning.
SECTION 23H Aboriginal persons and Torres Strait Islanders (1)
Subject to section 23L, if the investigating official in charge of investigating a Commonwealth offence believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, and whom it is intended to question about the offence is an Aboriginal person or a Torres Strait Islander, then, unless the official is aware that the person has arranged for a legal practitioner to be present during the questioning, the official must, before starting to question the person:
(a) inform the person that a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located will be notified that the person is under arrest or is a protected suspect (as the case requires); and
(b) notify such a representative that the person is under arrest or is a protected suspect (as the case requires).
(1A)
To avoid doubt, the obligations imposed by subsection (1) do not limit and are not limited by any other obligations imposed, or rights conferred, by this section.
(1AB)
If a representative of an Aboriginal legal assistance organisation is notified under subsection (1), the investigating official must not question the person until the earlier of the following times:
(a) the representative has communicated with the person;
(b) 2 hours have elapsed since the representative was notified.
(2)
Subject to subsection (7) and section 23L, if an investigating official:
(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
(b) believes on reasonable grounds that a person who is under arrest or a protected suspect is an Aboriginal person or a Torres Strait Islander;
the official must not question the person unless:
(c) an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communicationwill not be overheard; or
(d) the person has expressly and voluntarily waived his or her right to have such a person present.
(2A)
The person suspected, or under arrest, may choose his or her own interview friend unless:
(a) he or she expressly and voluntarily waives this right; or
(b) he or she fails to exercise this right within a reasonable period; or
(c) the interview friend chosen does not arrive within 2 hours of the person's first opportunity to contact an interview friend.
(2B)
If an interview friend is not chosen under subsection (2A), the investigating official must choose a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located to be the person's interview friend.
(3)
An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
(4)
In any proceedings, the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived the right referred to in subsection (2) or (2A), and the burden is not discharged unless the court is satisfied that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
(5)
In any proceedings, the burden lies on the prosecution to prove that, at the relevant time, a person who is under arrest or a protected suspect had, to the knowledge of the investigating official concerned, made an arrangement of the kind referred to in subsection (1).
(6)
The rights conferred by this section are in addition to those conferred by section 23G but, to the extent (if any) that compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
(7)
If the person is under 18, subsection (2) does not apply and section 23K applies.
(8)
An investigating official is not required to comply with subsection (1), (2) or (2B) in respect of a person if the official believes on reasonable grounds that, having regard to the person's level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally.
(9)
In this section:
interview friend
, in relation to a person to whom subsection (2) applies, means:
(a) a relative or other person chosen by the person; or
(b) a legal practitioner acting for the person; or
(c) a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
(d) (Repealed by No 75 of 2018)
SECTION 23J Lists of interview friends and interpreters
(Repealed by No 75 of 2018)
Subject to section 23L, if an investigating official:
(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is under 18; or
(b) believes on reasonable grounds that a person who is under arrest or a protected suspec is under 18;
the official must not question the person unless an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard.
(2)
An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
(3)
In this section:
interview friend
, in relation to a person to whom subsection (1) applies, means:
(a) a parent or guardian of the person or a legal practitioner acting for the person; or
(b) if none of the previously mentioned persons is available - a relative or friend of the person who is acceptable to the person; or
(c) if the person is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available-a person who is a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located; or
(d) if no person covered by paragraph (a), (b) or (c) is available - an independent person.
(4)
The rights conferred by this section are in addition to those conferred by section 23G but, so far as compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
SECTION 23L Exceptions (1)
Subject to subsections (2) and (4), if a requirement imposed on an investigating official by this Part is expressed as being subject to this section, the requirement does not apply if, and for so long as, the official believes on reasonable grounds that:
(a) compliance with the requirement is likely to result in:
(i) an accomplice of the person taking steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) if the requirement relates to the deferral of questioning-the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by compliance with that requirement.
(2)
If the requirement relates to things done by or in relation to a legal practitioner, subsection (1) only applies:
(a) in exceptional circumstances; and
(b) if:
(i) an officer of a police force of the rank of Superintendent or higher; or
has authorised the application of subsection (1) and has made a record of the investigating official's grounds for belief.
(ii) the holder of an office prescribed for the purposes of this section, other than an office in a police force;
(3)
If the application of subsection (1) is so authorised:
(a) the record of the investigating official's grounds for belief must be made as soon as practicable; and
(b) the investigating official must comply with the requirement as soon as possible after subsection (1) ceases to apply.
(4)
If the application of subsection (1) results in:
(a) preventing or delaying the person from communicating with a legal practitioner of his or her choice; or
(b) preventing or delaying a legal practitioner of the person's choice from attending at any questioning;
the investigating official must offer the services of another legal practitioner and, if the person accepts, make the necessary arrangements.
SECTION 23M Providing information relating to persons who are under arrest or protected suspects (1)
An investigating official must inform a person (the first person ) who is under arrest or a protected suspect of any request for information as to his or her whereabouts by any of his or her relatives, friends or legal representatives.
(2)
The investigating official must then provide that information to the other person unless:
(a) the first person does not agree to the provision of that information; or
(b) the investigating official believes on reasonable grounds that the other person is not the first person's relative, friend or legal representative.
(3)
This section has effect subject to section 23L.
SECTION 23N 23N Right to interpreter
Where an investigating official believes on reasonable grounds that a person who is under arrest or a protected suspect is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in that language, the official must, before starting to question the person, arrange for the presence of an interpreter and defer the questioning or investigation until the interpreter is present.
Subject to section 23L, if a person who is under arrest or a protected suspect is not an Australian citizen, an investigating official must, as soon as practicable:
(a) inform the person that if he or she requests that the consular office of:
(i) the country of which he or she is a citizen; or
be notified that he or she is under arrest or a protected suspect (as the case requires), that consular office will be notified accordingly; and
(ii) the country to which he or she claims a special connection;
(b) if the person so requests - notify that consular office accordingly; and
(c) inform the person that he or she may communicate with, or attempt to communicate with, that consular office; and
(d) give the person reasonable facilities to do so; and
(e) forward any written communication from the person to that consular office; and
(f) allow the person a reasonable time to, or to attempt to, communicate with that consular office.
(2)
Without limiting subsection (1), an investigating official must not start to question the person unless paragraphs (1)(c), (d) and (f) have been complied with.
SECTION 23Q 23Q Treatment of persons under arrest
A person who is under arrest or a protected suspect must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment.
(Repealed by No 136 of 2001)
Nothing in this Part affects:
(a) the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act; or
(b) any burden on the prosecution to prove the voluntariness of an admission or confession made by a person; or
(ba) any burden on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c) the discretion of a court to exclude unfairly obtained evidence; or
(d) the discretion of a court to exclude illegally or improperly obtained evidence. SECTION 23T 23T Acts authorised under other laws
Nothing in this Part prevents an investigating official from asking or causing a person to do a particular thing that the official is authorised to ask or cause the person to do under:
(a) another law of the Commonwealth; or
(b) a provision of a law of the Australian Capital Territory. SECTION 23U Tape recording of information required to be given to person under arrest (1)
If a person is under arrest or a protected suspect, an investigating official who is required by this Part to give the person certain information (including a caution) must tape record, if practicable, the giving of that information and the person's responses (if any).
(2)
In any proceedings, the burden lies on the prosecution to prove whether it was practicable to tape record the giving of that information and the person's responses (if any).
SECTION 23V Tape recording of confessions and admissions (1)
If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission-the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b) in any other case:
(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and
(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and
(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and
(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and
(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).
(2)
If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:
(a) if the recording is an audio recording only or a video recording only-make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and
(b) if both an audio recording and a video recording were made-make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and
(c) if a transcript of the tape recording is prepared-make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.
(3)
(Repealed by No 3 of 2021)
(4)
Despite any arrangement made under the Commonwealth Places (Application of Laws) Act 1970 or the Crimes at Sea Act 1979, this section applies to any offence under a law applied by either of those Acts if the investigating official is a member or special member of the Australian Federal Police.
(5)
A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non-compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
(6)
A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non-compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A)
To avoid doubt, subsection (6) does not limit subsection (5).
(7)
If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non-compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.
SECTION 23W 23W Proof of belief
In any proceedings, the burden lies on the prosecution to prove that an investigating official had a belief on reasonable grounds as to a matter referred to in this Part. Part ID - Forensic procedures
Simplified outline of operation of Part
This Part provides for forensic procedures to be carried out on:
If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division 6.
If a forensic procedure covered by this Part is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division 7).
However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division 9A).
This Part also:
In this Part:
Aboriginal legal aid organisation
(Repealed by No 75 of 2018)
Aboriginal legal assistance organisation
has the same meaning as in Part IC.
(a) a forensic laboratory accredited by the National Association of Testing Authorities, Australia; or
(b) a forensic laboratory that is of a kind prescribed by the regulations for the purposes of this paragraph.
adult
means a person of or above 18 years of age.
AFP function
means a function of the Australian Federal Police set out in section 8 of the Australian Federal Police Act 1979.
appropriately qualified
, in relation to carrying out a forensic procedure, means:
(a) having suitable professional qualifications or experience to carry out the forensic procedure; or
(b) qualified under the regulations to carry out the forensic procedure.
authorised applicant
for an order for the carrying out of a forensic procedure means:
(a) if the procedure will be carried out on a suspect - the constable in charge of a police station or the investigating constable in relation to a relevant offence; or
(b) if the procedure will be carried out on an offender - the constable in charge of a police station, the investigating constable in relation to a relevant offence or the Director of Public Prosecutions.
authorising provision
, in relation to a request by a foreign country or international tribunal, means whichever of the following provisions that refers to the request:
(a) section 28B of the Mutual Assistance in Criminal Matters Act 1987;
(b) section 76A of the International Criminal Court Act 2002;
(c) section 32B of the International War Crimes Tribunals Act 1995.
child
means a person who is at least 10 years of age but under 18 years of age.
Commissioner
means the Commissioner of the Australian Federal Police and includes a constable or AFP appointee (within the meaning of the Australian Federal Police Act 1979) to whom the Commissioner has delegated the functions and powers conferred or imposed on the Commissioner under this Act.
Note:
See section 23YQ for the Commissioner's power to delegate.
Commonwealth DNA database system
is defined in section 23YDAC.
corresponding law
is defined in section 23YUA.
crime within the jurisdiction of the ICC
has the same meaning as in the International Criminal Court Act 2002.
destroy
is defined in subsection (5).
DNA database system
(Repealed by No 130 of 2006)
exercise a function
includes perform a duty.
foreign law enforcement agency
means:
(a) a police force (however described) of a foreign country; or
(b) any other authority or person responsible for the enforcement of the laws of the foreign country; or
(c) any other authority or person responsible to the ICC for investigating or prosecuting a crime within the jurisdiction of the ICC; or
(d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.
foreign serious offence
means:
(a) a foreign serious offence (within the meaning of the Mutual Assistance in Criminal Matters Act 1987); or
(b) a crime within the jurisdiction of the ICC; or
(c) a War Crimes Tribunal offence.
forensic evidence
means one or more of the following:
(a) evidence of forensic material, or evidence consisting of forensic material, taken from a suspect or a volunteer by a forensic procedure;
(b) evidence of any results of the analysis of the forensic material;
(c) any other evidence obtained as a result of or in connection with the carrying out of the forensic procedure.
(a) samples; or
(b) hand prints, finger prints, foot prints or toe prints; or
(c) photographs or video recordings; or
(d) casts or impressions;
taken from or of a person's body by a forensic procedure.
(a) an intimate forensic procedure; or
(b) a non-intimate forensic procedure;
but does not include any intrusion into a person's body cavities except the mouth or the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample is taken.
function
includes a power, authority or duty.
ICC
has the same meaning as in the International Criminal Court Act 2002.
incapable person
means an adult who:
(a) is incapable of understanding the general nature and effect of, and purposes of carrying out, a forensic procedure; or
(b) is incapable of indicating whether he or she consents or does not consent to a forensic procedure being carried out.
in custody
is explained in subsection (2).
(a) an indictable offence against a law of the Commonwealth; or
(b) a State offence that has a federal aspect and that is an indictable offence against the law of that State.
inform
is explained in subsection (4).
informed consent
is explained in sections 23WF, 23WG, 23XWG and 23XWR.
(a) the ICC; or
(b) a War Crimes Tribunal.
interview friend
is explained in section 23WB.
intimate forensic procedure
means the following forensic procedures:
(a) an external examination of the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(b) the taking of a sample of blood (other than by a finger prick);
(c) (Repealed by No 24 of 2012)
(d) the taking of a sample of pubic hair;
(e) the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(f) the taking of a sample by vacuum suction, by scraping or by lifting by tape from the external genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(g) the taking of a dental impression;
(h) the taking of a photograph or video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.
investigating constable
means:
(a) in the case of a request by a foreign country, an international tribunal or a foreign law enforcement agency - the constable in charge of coordinating the response to the request; and
(b) in any other case - the constable in charge of the investigation of the commission of an offence in relation to which a forensic procedure is carried out or proposed to be carried out.
judge
means a State or Territory judge.
legal representative of a suspect
means a legal practitioner acting for the suspect.
member of the opposite sex of a person
is defined in subsection (7).
member of the same sex as a person
is defined in subsection (7).
National Criminal Investigation DNA Database
or
NCIDD
is defined in section 23YDAC.
non-intimate forensic procedure
means the following forensic procedures:
(a) an examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts, that requires touching of the body or removal of clothing;
(aa) the taking of a sample of blood by a finger prick;
(ab) the taking of a sample of saliva, or a sample by buccal swab;
(b) the taking of a sample of hair other than pubic hair;
(c) the taking of a sample from a nail or under a nail;
(d) the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(e) the taking of a sample by vacuum suction, by scraping or by lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts;
(f) the taking of a hand print, finger print, foot print or toe print;
(g) the taking of a photograph or video recording of, or an impression or cast of a wound from, a part of the body other than the genital or anal area, the buttocks or, in the case of a female or a transgender person who identifies as a female, the breasts.
offence
does not include an offence against a law of a Territory other than the Australian Capital Territory.
Note:
Subsection 3(1) provides that Territory does not include the Northern Territory.
(a) a serious offender; or
(b) a prescribed offender.
(a) in relation to a suspect - an order of a magistrate under section 23WS or interim order of a magistrate under section 23XA; or
(b) in relation to an offender - an order of a judge or magistrate under section 23XWO; or
(c) in relation to a volunteer - an order of a magistrate under section 23XWU.
parent
(Repealed by No 144 of 2008)
participating jurisdiction
is defined in section 23YUA.
(a) a police station of a State or Territory; and
(b) a building occupied by the Australian Federal Police.
prescribed offence
means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 2 or more years.
prescribed offender
means a person who is under sentence for a prescribed offence.
Note:
For the meaning of under sentence , see subsection (8).
prison medical officer
means, in relation to a prison or other place of detention, a person appointed or acting as medical officer for the prison or other place of detention.
recognised transgender person
means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 of New South Wales, or under the corresponding provisions of a law of another Australian jurisdiction.
(a) in relation to a person who is a suspect:
(i) the indictable offence in relation to which the person is a suspect; or
(ii) any other indictable offence arising out of the same circumstances; or
(iii) any other indictable offence in respect of which the evidence likely to be obtained as a result of a proposed forensic procedure carried out on the suspect is likely to have probative value; or
(b) in relation to an offender - the offence for which the offender was convicted and to which an application for an order authorising a forensic procedure relates.
request
, by a foreign country, international tribunal or foreign law enforcement agency, means:
(a) in the case of a foreign country - a request, referred to in section 28B of the Mutual Assistance in Criminal Matters Act 1987, by the country; or
(b) in the case of an international tribunal:
(i) a request referred to in section 76A of the International Criminal Court Act 2002, if the tribunal is the ICC; or
(ii) a request referred to in section 32B of the International War Crimes Tribunals Act 1995, if the tribunal is a War Crimes Tribunal; or
(c) in the case of a foreign law enforcement agency - a request, to which Subdivision B of Division 9A applies, by the agency.
responsible person
, in relation to the Commonwealth DNA database system, means the person responsible for the care, control and management of the system.
sample
has a meaning affected by subsection (3).
senior constable
(Repealed by No 24 of 2012)
senior police officer
means a constable of the rank of sergeant or higher.
serious offence
means an offence under a law of the Commonwealth, or a State offence that has a federal aspect, punishable by a maximum penalty of imprisonment for life or 5 or more years.
serious offender
means a person who is under sentence for a serious offence.
Note:
For the meaning of under sentence , see subsection (8).
suspect
, in relation to an indictable offence, means:
(a) a person whom a constable suspects on reasonable grounds has committed the indictable offence; or
(b) a person charged with the indictable offence; or
(c) a person who has been summonsed to appear before a court in relation to the indictable offence; or
(d) a person for whom a forensic procedure has been requested by a foreign country, international tribunal or a foreign law enforcement agency because that country, tribunal or agency has:
(i) started investigating whether the person has committed an indictable offence; or
(ii) started proceedings against the person for an indictable offence.
tape recording
means audio recording, video recording or recording by other electronic means.
transgender person
is defined in subsection (6).
volunteer
is defined in section 23XWQ.
War Crimes Tribunal
has the same meaning as
Tribunal
in the International War Crimes Tribunals Act 1995.
War Crimes Tribunal offence
has the same meaning as
Tribunal offence
in the International War Crimes Tribunals Act 1995.
(2)
In this Part, a person is in custody if he or she is in the lawful custody of a constable.
(3)
In this Part, a sample taken from a person includes a sample taken from the person that consists of matter from another person's body.
(4)
In this Part, a person informs another person of a matter if the person informs the other person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the other person is able to communicate with reasonable fluency.
(5) Destroy forensic material or information.
For the purposes of this Part, a person destroys forensic material taken from another person by a forensic procedure, the results of the analysis of the material or other information gained from it if the person destroys any means of identifying the forensic material or information with the person from whom it was taken or to whom it relates.
In this Part, a reference to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:
(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex; or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex; or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex;and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
In this Part (other than subsection (6)), a reference: (a) to a member of the opposite sex of a person means, if the person is a transgender person, a member of the opposite sex to the sex with which the transgender person identifies; and (b) to a member of the same sex as a person means, if the person is a transgender person, a member of the same sex as the sex with which the transgender person identifies.
(8)
For the purposes of the definitions of prescribed offender and serious offender , a person is under sentence in relation to a prescribed offence or a serious offence if the person: (a) is serving a sentence in a prison (including a gaol, lock-up or other place of detention); or (b) is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20AB(1) as a sentence or order that may be passed or made by a court, under that section, in respect of a person convicted of an offence against the law of the Commonwealth; or (c) is released under a parole order made under subsection 19AL(1) or (1A), paragraph 19AL(2)(b) or subsection 19AL(2A), (6) or (7); or (d) is released on a licence granted under section 19AP; or (e) being a child or young person, is serving a sentence of a kind, or subject to an order of a kind, provided for in subsection 20C as a sentence or order that, under that section, may be imposed on the child or young person who in a State or Territory is convicted of an offence against the law of the Commonwealth; or (f) is subject to an order made under Division 9 of Part IB; or (g) is convicted and conditionally released as provided for in subsection 20(1), either:
(i) in the case of paragraph 20(1)(a) - without sentence being passed; or
(ii) in the case of paragraph 20(1)(b) - after sentence has been passed.
Requests by a foreign country, international tribunal or foreign law enforcement agency
(9)
The provisions of this Part apply in relation to a forensic procedure carried out because of a request by a foreign country, international tribunal or foreign law enforcement agency, as if a reference to an indictable offence were a reference to a foreign serious offence.
SECTION 23WB Interview friends 23WB(1)
This section lists the people who may act as an interview friend of a suspect, offender or volunteer for the purposes of a provision of this Part referring to an interview friend. Different people may act as interview friends of a suspect, offender or volunteer for the purposes of different provisions of this Part.
23WB(2)
Where the suspect, offender or volunteer is a child or an incapable person, the following people may act as interview friends :
(a) a parent, guardian or other person chosen by, or acceptable to, the suspect, offender or volunteer;
(b) a legal practitioner acting for the suspect;
(c) if the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available - a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located who is chosen by, or acceptable to, the suspect, offender or volunteer;
(d) if there is no available person who is covered by paragraph (a), (b) or (c) - an independent person who is not a constable.
23WB(3)
Where the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the following people may act as interview friends :
(a) a relative or other person chosen by the suspect, offender or volunteer;
(b) a legal practitioner acting for the suspect, offender or volunteer;
(c) if there is no available person who is covered by paragraph (a) or (b) - a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
23WB(4)
A suspect, offender or volunteer who has a legal representative may also have an interview friend who is not the suspect's, offender's or volunteer's legal representative.
Division 2 - Authority and time limits for forensic procedures on suspects: summary of rules
The following table shows the circumstances in which a forensic procedure may be carried out on a suspect, and shows the provisions that authorise the carrying out of the procedure.
| Authority for forensic procedures | |||
| Suspect | Intimate forensic procedure | Non-intimate forensic procedure | |
| 1 | adult not in custody | with informed consent under Division 3
by order of a magistrate under Division 5 |
with informed consent under Division 3
by order of a magistrate under Division 5 |
| 2 | adult not in custody | with informed consent under Division 3
by order of a magistrate under Division 5 |
with informed consent under Division 3
by order of senior police officer under Division 4 by order of a magistrate under Division 5 |
| 3 | incapable person (whether or not in custody) | by order of a magistrate under Division 5 | by order of a magistrate under Division 5 |
| 4 | child at least 10 but under 18 (whetheror not in custody) | by order of a magistrate under Division 5 | by order of a magistrate under Division 5 |
The following table sets out in general terms the time limits that apply to the carrying out of a forensic procedure depending on the status of the suspect and the source of the authority to carry out the procedure.
| Time limits for forensic procedures | ||||
| Suspect's status | Procedure with suspect's consent (Division 3) | Procedure by order of a constable (Division 4) | Procedure by order of a magistrate (Division 5) | |
| 1 | Child or incapable person not in custody | Not applicable | Not applicable | Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding ``dead time'' described in subsection 23XGB(2) (see section 23XGB). |
| 2 | Aboriginal person or Torres Strait Islander (not a child or incapable person) not in custody | Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding ``dead time'' described in subsection 23WLA(2) (see section 23WLA). | Not applicable | Procedure must be carried out within 2 hours after suspect presents to investigating constable, disregarding ``dead time'' described in subsection 23XGB(2) (see section 23XGB). |
| 3 | Suspect (not covered by item 1 or 2) not in custody | Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding ``dead time'' described in subsection 23WLA(2) (see section 23WLA). | Not applicable | Procedure must be carried out within 4 hours after suspect presents to investigating constable, disregarding ``dead time'' described in subsection 23XGB(2) (see section 23XGB). |
| 4 | Child or incapable person in custody | Not applicable | Not applicable | In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate's order or suspect's arrest, disregarding ``dead time'' described in subsection 23XGD(2) (see Subdivision D of Division 5). |
| 5 | Aboriginal person or Torres Strait Islander (not a child or incapable person) in custody | Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)). | Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)). | In addition to the detention period permitted under Part IC, suspect may be detained for up to 2 hours after magistrate's order or suspect's arrest, disregarding ``dead time'' described in subsection 23XGD(2) (see Subdivision D of Division 5). |
| 6 | Suspect (not covered by item 4 or 5) in custody | Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WD(3) and (4)). | Suspect may be detained in accordance with Part IC, but the detention period permitted by Part IC is not extended in connection with carrying out the procedure (see subsections 23WM(3) and (4)). | In addition to the detention period permitted under Part IC, suspect may be detained for up to 4 hours after magistrate's order or suspect's arrest, disregarding ``dead time'' described in subsection 23XGD(2) (see Subdivision D of Division 5). |
A person is authorised to carry out a forensic procedure on a suspect with the informed consent of the suspect. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
(2)
This Division does not authorise the carrying out of a forensic procedure on a suspect who is:
(a) a child; or
(b) an incapable person.
(3)
This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.
Note:
If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.
(4)
Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, with the informed consent of the suspect, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delay associated with carrying out the forensic procedure, operates to extend the investigation period provided for by Part IC.
Note:
By contrast, the carrying out of a forensic procedure in accordance with a magistrate's order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.
SECTION 23WE People who cannot consent to forensic procedures (1)
A child cannot consent to a forensic procedure.
(2)
An incapable person cannot consent to a forensic procedure.
SECTION 23WF Informed consent to forensic procedures-general (1)
This section applies where:
(a) a constable intends to ask a suspect to consent to a forensic procedure; and
(b) the constable does not believe on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.
(2)
A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:
(a) asks the suspect to consent to the forensic procedure under section 23WH; and
(b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and
(c) (Repealed by No 24 of 2012)
(d) gives the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect's choice and, subject to subsection (3), to do so in private.
(3)
If the suspect is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with the legal practitioner in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
SECTION 23WG Informed consent to forensic procedures - Aboriginal persons and Torres Strait Islanders (1)
This section applies where:
(a) a constable intends to ask a suspect to consent to a forensic procedure; and
(b) the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander.
(2)
A suspect not covered by section 23WE gives informed consent to a forensic procedure if the suspect consents after a constable:
(a) asks the suspect to consent to the forensic procedure under section 23WH; and
(b) informs the suspect, in accordance with the regulations and section 23WJ, of the matters mentioned in that section; and
(c) complies with the rest of this section.
(3)
The constable must not ask the suspect to consent to the forensic procedure unless:
(a) an interview friend is present; or
(b) the suspect has expressly and voluntarily waived his or her right to have an interview friend present; or
(c) the constable is a senior police officer and he or she believes on reasonable grounds that, having regard to the suspect's level of education and understanding, the suspect is not at a disadvantage in relation to the request to consent by comparison with members of the Australian community generally.
Note:
Section 23YK relates to proving a waiver under paragraph (3)(b) of this section.
(4)
Before asking the suspect to consent to a forensic procedure, the constable must:
(a) inform the suspect that a representative of an Aboriginal legal assistance organisation will be notified that the suspect is to be asked to consent to a forensic procedure; and
(b) notify such a representative that the suspect is to be asked to consent to a forensic procedure.
(5)
The constable is not required to comply with subsection (4) if:
(a) he or she is aware that the suspect has arranged for a legal practitioner to be present while the suspect is asked to consent to the forensic procedure; or
(b) paragraph (3)(b) or (c) applies.
(6)
After asking a suspect covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must give the suspect a reasonable opportunity to communicate, or attempt to communicate, with a legal practitioner of the suspect's choice and, subject to subsection (8), to do so in private.
(7)
After asking a suspect not covered by paragraph (3)(b) or (c) to consent to a forensic procedure, the constable must allow the suspect to communicate with the interview friend (if any), and with the suspect's legal representative (if any), and, subject to subsection (8), to do so in private.
(8)
If a suspect covered by subsection (6) or (7) is in custody, the constable need not allow the suspect to communicate, or attempt to communicate, with a legal practitioner, or the suspect's interview friend or legal representative, in private if the constable suspects on reasonable grounds that the suspect might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
(9)
An interview friend (other than a legal representative) of the suspect may be excluded from the presence of the constable and the suspect if the interview friend unreasonably interferes with or obstructs the constable in asking the suspect to consent to the forensic procedure, or in informing the suspect as required by section 23WJ.
SECTION 23WH 23WH Constable may request suspect to consent to forensic procedure
A constable may ask a suspect to undergo a forensic procedure if the constable is satisfied as required by section 23WI. SECTION 23WI Matters to be considered by constable before requesting consent to forensic procedure (1)
The constable must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(c) the request for consent to the forensic procedure is justified in all the circumstances; and
(d) the person on whom the forensic procedure is proposed to be carried out is not a child or an incapable person.
(2)
In determining whether a request is justified in all the circumstances, the constable must:
(a) if the forensic procedure has been requested by a foreign law enforcement agency - balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case-balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)
In balancing those interests, the constable must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect's alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the constable or can reasonably be discovered by the constable (by asking the suspect or otherwise);
(d) (Repealed by No 171 of 2006)
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(f) any other matter considered relevant to balancing those interests.
(4)
Without limiting the matters that the constable may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the constable must (where appropriate) take into account the religious beliefs of the suspect.
SECTION 23WJ Matters that suspect must be informed of before giving consent (1)
The constable must inform the suspect of the following matters:
(a) that the giving of information under this section, and the giving of consent (if any) by the suspect, is being or will be recorded by audio tape, videotape or other electronic means, or in writing, and that the suspect has a right to a copy of that record in a form provided by section 23YF;
(b) the purpose for which the forensic procedure is required;
(c) the offence in relation to which the constable wants the forensic procedure carried out;
(d) the way in which the forensic procedure is to be carried out;
(e) that the forensic procedure may produce evidence against the suspect that might be used in a court of law;
(f) that the forensic procedure will be carried out by an appropriately qualified person;
(g) if relevant, the matters specified in subsection (2);
(h) if the constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander-that the suspect's interview friend may be present while the forensic procedure is carried out;
(i) that the suspect may refuse to consent to the carrying out of the forensic procedure;
(ia) the effect of section 23XZ;
(ib) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:
(i) the name of the foreign law enforcement agency that has made the request;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;
(iii) that the forensic evidence may be used in proceedings against the suspect in the foreign country;
(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;
(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;
(vi) the content of those undertakings;
(ic) if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:
(i) the name of the international tribunal for which the request was made;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;
(iii) that the forensic evidence may be used in proceedings against the suspect in the international tribunal;
(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;
(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;
(vi) the content of those undertakings;
(j) the consequences of not consenting, as specified in subsection (3), (4) or (5) (whichever is applicable);
(k) that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and the rules that will apply to its disclosure and use under this Part.
(2) Suspect's right to have medical practitioner or dentist present during intimate forensic procedures.
The constable must inform the suspect that the suspect may ask that a medical practitioner or dentist (depending on the kind of forensic procedure) of his or her choice be present while the forensic procedure is carried out (unless the forensic procedure is a non-intimate forensic procedure).
If the suspect is in custody and the forensic procedure is a non-intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent:
(a) a senior police officer may order the carrying out of the forensic procedure under Division 4 if he or she is satisfied of the matters referred to in subsection 23WO(1); or
(b) an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
If the suspect is in custody and the forensic procedure is an intimate forensic procedure, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
Exception-requests by foreign law enforcement agency
(4A)
Subsections (3) and (4) do not apply if the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency.
(5) Failure to consent to forensic procedure - suspect not in custody.
If the suspect is not in custody and is not being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency, the constable must inform the suspect that, if the suspect does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
Failure to consent to forensic procedure - procedure requested by foreign law enforcement agency
(6)
The constable must inform the suspect (whether or not the suspect is in custody) that if:
(a) the suspect is being asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and
(b) the suspect does not consent;
the Attorney-General may be requested to authorise (under an authorising provision) an authorised applicant to apply to a magistrate for an order for the carrying out of the forensic procedure.
SECTION 23WK 23WK Withdrawal of consent
If a person expressly withdraws consent to the carrying out of a forensic procedure under this Part (or if the withdrawal of such consent can reasonably be inferred from the person's conduct) before or during the carrying out of the forensic procedure, then:
(a) the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and
(b) the forensic procedure is not to proceed except by order of a constable under Division 4 or a magistrate under Division 5. SECTION 23WL Recording of giving of information and suspect's responses (1)
The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the suspect's responses (if any) are tape recorded.
(2)
If tape recording the giving of the information and the suspect's responses (if any) is not practicable, the constable must ensure that a written record of the giving of the information and the suspect's responses (if any) is made, and that a copy of the record is made available to the suspect.
Note 1:
Division 9 contains provisions about making copies of material (including copies of tapes) available to the suspect.
Note 2:
If a foreign law enforcement agency requests that a forensic procedure be carried out on a suspect, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).
SECTION 23WLA Time for carrying out forensic procedure-suspect not in custody (1)
If a suspect who is not in custody:
(a) consents to a forensic procedure; and
(b) presents himself or herself to the investigating constable to undergo the procedure;
the procedure must be carried out as quickly as reasonably possible but in any case within the following period:
(c) if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander-2 hours after the suspect so presents himself or herself;
(d) in any other case-4 hours after the suspect so presents himself or herself.
(2)
In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect's intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which carrying out the procedure is suspended or delayed at the request of the suspect.
Division 4 - Non-intimate forensic procedures on suspect by order of senior police officer
A person is authorised to carry out a non-intimate forensic procedure on a suspect by order of a senior police officer under section 23WN. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
(2)
This Division does not authorise the carrying out of a forensic procedure on a suspect who is:
(a) a child; or
(b) an incapable person.
(2A)
This Division does not authorise the carrying out of a forensic procedure on a suspect if the procedure has been requested by:
(a) a foreign country or international tribunal; or
(b) a foreign law enforcement agency.
(3)
This Division does not authorise keeping a suspect in custody, in order to carry out a forensic procedure, after the expiration of the investigation period provided for by Part IC.
Note:
If it is necessary to keep a suspect in custody after the expiration of the Part IC investigation period in order to carry out a forensic procedure, an order of a magistrate under Division 5 will have to be obtained to authorise this.
(4)
Nothing in this Part or Part IC prevents the carrying out of a forensic procedure, in accordance with a constable's order under section 23WN, during the investigation period provided for by Part IC. However, neither carrying out the forensic procedure, nor any delays associated with carrying out the forensic procedure, operate to extend the investigation period provided for by Part IC.
Note:
By contrast, the carrying out of a forensic procedure in accordance with a magistrate's order under Division 5, and associated delays, may delay the expiration of the investigation period provided for by Part IC.
SECTION 23WN 23WN Circumstances in which senior police officer may order non-intimate forensic procedures
A senior police officer may order the carrying out of a non-intimate forensic procedure on a suspect who is in custody if:
(a) the suspect has been asked under Division 3 to consent to the carrying out of the forensic procedure; and
(b) the suspect has not consented; and
(c) the senior police officer is satisfied as required by section 23WO.
The senior police officer must be satisfied on the balance of probabilities that:
(a) the suspect is in the lawful custody of a constable; and
(b) there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(d) the carrying out of the forensic procedure without consent is justified in all the circumstances.
(2)
In determining whether the carrying out of the forensic procedure without consent is justified in all the circumstances, the senior police officer must balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)
In balancing those interests, the senior police officer must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect's alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the senior police officer or can reasonably be discovered by the senior police officer (by asking the suspect or otherwise);
(d) (Repealed by No 171 of 2006)
(e) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(f) if the suspect gives any reasons for refusing to consent-the reasons;
(g) any other matter considered relevant to balancing those interests.
(4)
Without limiting the matters that the senior police officer may take into account in considering, for the purposes of paragraph (3)(e), the intrusiveness of the forensic procedure, the senior police officer must (where appropriate) take into account the religious beliefs of the suspect.
The senior police officer must, at the time of, or as soon as practicable after, make an order under section 23WN, make a record of:
(a) the order made; and
(b) the date and time when the order was made; and
(c) the reasons for making it;
and must sign the record.
(2)
The senior police officer must ensure that a copy of the record is made available to the suspect as soon as practicable after the record is made.
Division 5 - Forensic procedures on suspect by order of a magistrate
A person is authorised to carry out a forensic procedure on a suspect by order of a magistrate under section 23WS or 23XA. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise. SECTION 23WR Circumstances in which magistrate may order forensic procedure (1)
A magistrate may, under section 23WS or 23XA, order the carrying out of a forensic procedure on a suspect if:
(a) the suspect is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(b) the suspect is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(c) under section 23WE, the suspect cannot consent to the forensic procedure; or
(d) the forensic procedure has been requested by a foreign country or an international tribunal.
(2)
However, a magistrate is not authorised to order the carrying out of a forensic procedure on a suspect if the procedure has been requested by a foreign law enforcement agency.
Subdivision B - Final orders SECTION 23WS 23WS Final order for carrying out of forensic procedure
A magistrate may order the carrying out of a forensic procedure on a suspect if:
(a) subsection 23WR(1) applies; and
(b) the magistrate is satisfied as required by section 23WT.
The magistrate must be satisfied on the balance of probabilities that:
(a) the person on whom the procedure is proposed to be carried out is a suspect; and
(b) on the evidence before him or her, there are reasonable grounds to believe that the suspect committed a relevant offence; and
(c) there are reasonable grounds to believe that the forensic procedure is likely to produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(ca) if the forensic procedure has been requested by a foreign country or an international tribunal - a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part; and
(d) the carrying out of the forensic procedure is justified in all the circumstances.
(2)
In determining whether the carrying out of the forensic procedure is justified in all the circumstances, the magistrate must:
(a) if the forensic procedure has been requested by a foreign country or an international tribunal - balance the public interest in Australia providing and receiving international assistance in criminal matters against the public interest in upholding the physical integrity of the suspect; and
(b) in any other case - balance the public interest in obtaining evidence tending to confirm or disprove that the suspect committed the offence concerned against the public interest in upholding the physical integrity of the suspect.
(3)
In balancing those interests, the magistrate must have regard to the following matters:
(a) the seriousness of the circumstances surrounding the commission of the relevant offence and the gravity of the relevant offence;
(b) the degree of the suspect's alleged participation in the commission of the relevant offence;
(c) the age, physical health and mental health of the suspect, to the extent that they are known to the magistrate or can reasonably be discovered by the magistrate (by asking the suspect or otherwise);
(d) (Repealed by No 171 of 2006)
(e) if the suspect is a child or an incapable person-the welfare of the suspect;
(f) whether there is a less intrusive but reasonably practicable way of obtaining evidence tending to confirm or disprove that the suspect committed the relevant offence;
(g) if the suspect gives any reasons for refusing to consent-the reasons;
(h) if the suspect is in custody:
(i) the period for which the suspect has already been detained; and
(ii) the reasons for any delay in proposing the carrying out of the forensic procedure;
(i) any other matter considered relevant to balancing those interests.
(4)
Without limiting the matters that the magistrate may take into account in considering, for the purposes of paragraph (3)(f), the intrusiveness of the forensic procedure, the magistrate must (where appropriate) take into account the religious beliefs of the suspect.
SECTION 23WU Application for order (1)
An authorised applicant (but no other person) may apply to a magistrate for an order under section 23WS authorising him or her to arrange the carrying out of a forensic procedure on a suspect.
(2)
An application for an order must:
(a) be made in writing; and
(b) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23WT(1)(a), (b), (c), (ca) and (d); and
(c) specify the type of forensic procedure sought to be carried out; and
(d) be made in the presence of the suspect (subject to any contrary order made by the magistrate).
SECTION 23WV Securing the presence of suspect at hearing-suspect in custody (1)
If the suspect is in the custody of another constable or is otherwise detained under a law of the Commonwealth, a State or a Territory ( original custody ), the magistrate may, on the application of a constable, issue a warrant directing the person holding the suspect in original custody to deliver the suspect into the custody of the constable ( temporary custody ) for the hearing of an application for an order under this Division.
(2)
The constable given temporary custody must return the suspect to the place of original custody:
(a) if the application for the order is refused-without delay; or
(b) if the order is made-without delay at the end of the period for which the suspect may be detained in custody under section 23XGD.
SECTION 23WW Securing the presence of suspect at hearing-suspect not in custody (1)
If the suspect is not in custody, the magistrate may, on the application of a constable:
(a) issue a summons for the appearance of the suspect at the hearing of the application; or
(b) issue a warrant for the arrest of the suspect for the purpose of bringing the suspect before the magistrate for the hearing of the application.
(2)
An application for a summons under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3)
The magistrate may issue a summons only if satisfied:
(a) that the issue of the summons is necessary to ensure the appearance of the suspect at the hearing of the application; or
(b) that the issue of the summons is otherwise justified.
(4)
An application for a warrant under subsection (1) must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5)
The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure the appearance of the suspect at the hearing of the application, and that the issue of a summons would not ensure that appearance; or
(b) that the suspect might destroy evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is otherwise justified.
SECTION 23WX Procedure at hearing of application for order (1)
An order may only be made in the presence of the suspect concerned, subject to any contrary order made by the magistrate.
(2)
A suspect who is:
(a) a child; or
(b) an incapable person;
must be represented by an interview friend and may also be represented by a legal practitioner.
(3)
If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (2), the suspect must be represented by an interview friend and may also be represented by a legal practitioner.
(4)
Subsection (3) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect's level of education and understanding, the suspect is not at a disadvantage in relation to the hearing by comparison with members of the Australian community generally.
(5)
Any other suspect (including a suspect covered by subsection (4)) may be represented by a legal practitioner.
(6)
The suspect or his or her representative:
(a) may call or cross-examine the applicant for the order; and
(b) may, with the leave of the magistrate, call or cross-examine any other witnesses; and
(c) may address the magistrate.
(6A)
A magistrate must not give leave under paragraph (6)(b) unless the magistrate is of the opinion that there are substantial reasons why, in the interests of justice, the witness should be called or cross-examined.
(7)
In spite of subsection (2) or (3), the suspect's interview friend may be excluded from the hearing if the interview friend unreasonably interferes with or obstructs the hearing of the application.
SECTION 23WY Making of order (1)
If a magistrate makes an order for the carrying out of a forensic procedure, the magistrate must:
(a) give reasons for making the order; and
(b) ensure that a written record of the order is kept; and
(c) order the suspect to attend for the carrying out of the forensic procedure; and
(d) inform the suspect that reasonable force may be used to ensure that he or she complies with the order for the carrying out of the forensic procedure.
(2)
The magistrate may give directions as to the time, place and manner in which the procedure is to be carried out.
Subdivision C - Interim orders SECTION 23XA Interim order for carrying out of a forensic procedure (1)
A magistrate may make an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay if:
(a) subsection 23WR(1) applies; and
(b) the magistrate is satisfied that the probative value of evidence obtained as a result of the forensic procedure concerned is likely to be lost or destroyed if there is delay in carrying out the procedure; and
(c) the magistrate is satisfied that there is sufficient evidence to indicate that a magistrate is reasonably likely to be satisfied of the existence of the matters referred to in subsection 23WT(1) when the application is finally determined.
(2)
An interim order operates as provided by this Subdivision until a magistrate, at a hearing held under Subdivision B, confirms the interim order or disallows the interim order.
Note:
Subsection 23XD(2) requires that an interim order specify the intended date, time and place of the later hearing.
(3)
Subdivision B applies in relation to an order confirming the interim order in the same way it applies in relation to an order under section 23WS, and an order confirming the interim order is taken to be an order under section 23WS.
SECTION 23XB Application for interim order (1)
An authorised applicant may, without bringing a suspect before a magistrate and without obtaining an order under section 23WS, make an application seeking an interim order authorising the carrying out of a forensic procedure on a suspect that must be carried out without delay.
(2)
An application for an interim order must:
(a) be supported by evidence on oath or by affidavit dealing with the matters referred to in paragraphs 23XA(1)(a), (b) and (c); and
(b) specify the type of forensic procedure sought to be carried out.
(3)
An application for an interim order may be made in person or, if that is not practicable, by telephone, radio, telex, fax or other means of transmission.
(4)
The suspect must be in the presence of the authorised applicant when the application is made.
(5)
If the suspect is:
(a) a child; or
(b) an incapable person;
an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(6)
If the applicant believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by subsection (5), an interview friend or legal representative of the suspect must also be in the presence of the authorised applicant.
(7)
Subsection (6) does not apply if the applicant believes on reasonable grounds that, having regard to the suspect's level of education and understanding, the suspect is not at a disadvantage in relation to the application by comparison with members of the Australian community generally.
(8)
If the suspect is not covered by subsection (5) or (6), the suspect's legal representative (if any) must also be in the presence of the authorised applicant.
(9)
In spite of subsection (5) or (6), the suspect's interview friend may be excluded from the presence of the authorised applicant if the interview friend unreasonably interferes with or obstructs the making of the application.
SECTION 23XC Procedure at hearing of application for interim order (1)
If the application is made in person, or by telephone or radio or other form of oral communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect's legal representative, if any; and
(c) the suspect's interview friend, if any;
are given an opportunity to speak to the magistrate.
(2)
If the application is made by telex, fax or other form of written communication, the magistrate must ensure that:
(a) the suspect; and
(b) the suspect's legal representative, if any; and
(c) the suspect's interview friend, if any;
are given an opportunity to make a written submission to accompany the application, or to speak to the magistrate by telephone, radio or other form of oral communication.
SECTION 23XD Making of interim order (1)
A magistrate who makes an interim order must inform the applicant for the order personally, or by telephone, radio, telex, fax or other means of transmission:
(a) that the order has been made; and
(b) of the terms of the order, including the matters mentioned in subsection (2); and
(c) of any orders made or directions given under subsection (3) in relation to the order.
(2)
An interim order must specify the date, time and place at which a further hearing on the application will take place and the application will be finally determined.
(3)
A magistrate may make such orders and give such directions in relation to an interim order as the magistrate may make or give in relation to an order under section 23WS.
SECTION 23XE Records of application and interim order (1)
The applicant for an interim order must, at the time of, or as soon as practicable after, applying for the interim order, make a record (the applicant's record ) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the magistrate's name;
and sign the record.
(2)
The applicant must send a copy of the applicant's record to the magistrate as soon as practicable after it is made.
(3)
The magistrate must, at the time of, or as soon as practicable after, making an interim order, make a record (the magistrate's record ) of:
(a) the application; and
(b) the grounds for seeking the order; and
(c) the order made; and
(d) the date and time when the order was made; and
(e) the reasons for making it;
and sign the record.
(4)
The magistrate must send a copy of the magistrate's record to the applicant as soon as practicable after the record is made.
(5)
The applicant must ensure that a copy of the magistrate's record and a copy of the applicant's record are made available to the suspect as soon as practicable after the applicant receives the magistrate's record.
(6)
If the applicant's record does not, in all material respects, accord with the magistrate's record, the order is taken to have had no effect.
SECTION 23XF Suspect may be prevented from destroying or contaminating evidence (1)
A constable may, while waiting for the application seeking an interim order to be determined, use reasonable force to prevent the suspect destroying or contaminating any evidence that might be obtained by carrying out the forensic procedure if the order is made.
(2)
Nothing in this section authorises any person to carry out a forensic procedure before an interim order is made.
SECTION 23XG Results of forensic procedure carried out under interim order (1)
A sample taken under an interim order must not be analysed unless:
(a) the sample is likely to perish before a final order is made; or
(b) a final order is made.
(2)
A person who conducts an analysis in the circumstances set out in paragraph (1)(a) must not intentionally disclose the results of the analysis to any person:
(a) during the period before a final order is made; or
(b) if the interim order is disallowed.
Penalty for a contravention of subsection (2): Imprisonment for 12 months.
Subdivision D - Time limits for forensic procedures ordered by magistrates SECTION 23XGA 23XGA Application
This Subdivision applies where a magistrate orders the carrying out of a forensic procedure on a suspect under this Part. SECTION 23XGB Time for carrying out forensic procedure-suspect not in custody (1)
If a suspect who is not in custody presents himself or herself to the investigating constable to undergo the procedure ordered by the magistrate, the procedure must be carried out as quickly as reasonably possible but in any case within the following period:
(a) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander-2 hours after the suspect so presents himself or herself;
(b) in any other case-4 hours after the suspect so presents himself or herself.
(2)
In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect presents himself or herself to the investigating constable to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect's intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which carrying out the procedure is suspended or delayed at the request of the suspect.
SECTION 23XGC Arrest of suspect not in custody (1)
If the suspect is not in custody, the magistrate may, on the application of a constable, issue a warrant for the arrest of the suspect for the purpose of carrying out the forensic procedure.
(2)
An application for a warrant must be:
(a) made by information on oath; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3)
The magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure that the forensic procedure can be carried out; or
(b) that the issue of the warrant is otherwise justified.
(4)
A magistrate must not issue a warrant for the arrest of a suspect for the purpose of carrying out a forensic procedure if a warrant has previously been issued (by any magistrate) for the arrest of the suspect for the purpose of carrying out that forensic procedure.
SECTION 23XGD Time for carrying out forensic procedure - suspect in custody (1)
If the suspect is in custody (whether or not as the result of the issue of a warrant under section 23XGC), he or she may be detained in custody for such period (the detention period ) as is reasonably necessary to carry out the forensic procedure but in any case for no longer than a period starting when:
(a) the magistrate orders the carrying out of the procedure; or
(b) the suspect is arrested pursuant to a warrant under section 23XGC;
whichever is later, and ending:
(c) if the suspect is a child or an incapable person, or the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander - 2 hours later; or
(d) in any other case - 4 hours later.
(2)
In working out any period of time for the purposes of subsection (1), the following times are to be disregarded:
(a) the time (if any) that is reasonably required to convey the suspect from the place where the suspect is when the detention period starts to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to the investigating constable;
(b) any time during which carrying out the procedure is suspended or delayed to allow the suspect, or someone else on the suspect's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person as provided by this Part;
(c) any time during which carrying out the procedure is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter, medical practitioner, dentist or other person to arrive at the place where the procedure is to be carried out;
(d) any time during which carrying out the procedure is suspended or delayed to allow the suspect to receive medical attention;
(e) any time during which carrying out the procedure is suspended or delayed because of the suspect's intoxication;
(f) any reasonable time during which carrying out the procedure is suspended or delayed to allow the suspect to rest or recuperate;
(g) any time during which the suspect is being questioned under Part IC;
(h) any time that is to be disregarded under subsection 23C(7) or 23DB(9).
Subdivision E - Reports of proceedings under Division SECTION 23XH 23XH Restrictions on publication
A person must not intentionally, in any report of a proceeding under this Division, publish:
(a) the name of the suspect; or
(b) any information likely to enable the identification of the suspect;
unless the suspect has been charged with a relevant offence or the magistrate, by order, has authorised such publication.
Penalty: Imprisonment for 12 months.
A forensic procedure:
(a) must be carried out in circumstances affording reasonable privacy to the suspect; and
(b) except as permitted (expressly or impliedly) by other provisions of this Part, must not be carried out in the presence or view of a person who is of the opposite sex to the suspect; and
(c) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the forensic procedure or required or permitted by another provision of this Part; and
(d) must not involve the removal of more clothing than is necessary for the carrying out of the procedure; and
(e) must not involve more visual inspection than is necessary for the carrying out of the procedure. SECTION 23XIA 23XIA No questioning during forensic procedure
A forensic procedure must not be carried out while the suspect is being questioned as defined in subsection 23B(6). If questioning has not been completed before the forensic procedure is to be carried out, it must be suspended while the forensic procedure is carried out. SECTION 23XIB 23XIB Suspect must be cautioned before forensic procedure starts
Before anyone starts to carry out a forensic procedure on a suspect, a constable must caution the suspect that he or she does not have to say anything while the procedure is carried out but that anything the person does say may be used in evidence. SECTION 23XJ Use of force in carrying out forensic procedures (1)
Subject to subsection (2) and section 23XK, a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:
(a) to enable a forensic procedure to be carried out; or
(b) to prevent loss, destruction or contamination of any sample.
(2)
All forensic procedures are to be carried out in a manner consistent with appropriate medical or other relevant professional standards.
SECTION 23XK 23XK Forensic procedures not to be carried out in cruel, inhuman or degrading manner
For the purpose of this Part, the carrying out of a forensic procedure is not of itself taken to be cruel, inhuman or degrading. However, nothing in this Part authorises the carrying out of a forensic procedure in a cruel, inhuman or degrading manner. SECTION 23XL 23XL Taking of hair samples
A person is authorised to take a sample of hair of a suspect by removing the root of the hair only if:
(a) the person takes only so much hair as the person believes is necessary for analysis of the sample, or other examination of the hair, to be carried out for the purpose of investigating the offence; and
(b) the sample is taken using the least painful technique known and available to the person.
The table following subsection (4) shows, for each forensic procedure, the persons who may carry out the procedure under this Part. A person not specified in the second column of the table is not authorised to carry out a forensic procedure under this Part except as mentioned in section 23XO.
(2)
The third column of the table following subsection (4) shows, for each forensic procedure, whether the suspect is entitled to request that a medical practitioner or dentist of the suspect's choice is present while the forensic procedure is carried out.
Note:
Section 23XP makes detailed provision for the presence of a medical practitioner or dentist of the suspect's choice while a forensic procedure is carried out.
(3)
A person is authorised to carry out a particular forensic procedure if he or she is an appropriately qualified person in relation to the procedure even if the person also satisfies another description specified in the following table that is not specified in relation to the particular forensic procedure.
Example:
A constable who is an appropriately qualified person to take samples of blood may take such samples even though the table does not expressly list constables as persons who may take samples of blood.
(4)
This section does not prevent a suspect from taking a sample of saliva, or a sample by buccal swab, from himself or herself under the supervision of an appropriately qualified person.
| Who may carry out forensic procedures | |||
| Forensic procedure | Persons who may carry out forensic procedure | Is suspect entitled to request presence of medical practitioner or dentist of suspect's choice? | |
| 1 | external examination of the genital or anal area, the buttocks or, in the case of a female, the breasts | medical practitioner
nurse appropriately qualified person |
yes (medical practitioner) |
| 2 | the taking of a sample of blood (other than by a finger prick) | medical practitioner
nurse appropriately qualified person |
yes (medical practitioner) |
| 3 | (Repealed by No 24 of 2012) | ||
| 4 | the taking of a sample of pubic hair | medical practitioner
nurse appropriately qualified person |
yes (medical practitioner) |
| 5 | the taking of a sample by swab or washing from the external genital or anal area, the buttocks or, in the case of a female, the breasts | medical practitioner
nurse appropriately qualified person |
yes (medical practitioner) |
| 6 | the taking of a sample by vacuum suction, scraping or lifting by tape from the external genital or anal area, the buttocks or, in the case of a female, the breasts | medical practitioner
nurse appropriately qualified person |
yes (medical practitioner) |
| 7 | the taking of a dental impression | medical practitioner
dentist dental technician |
yes (dentist or medical practitioner) |
| 8 | the taking of a photograph or a video recording of, or an impression or cast of a wound from, the genital or anal area, the buttocks or, in the case of a female, the breasts | appropriately qualified person | yes (medical practitioner) |
| 9 | external examination of a part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts, that requires touching of the body or removal of clothing | medical practitioner
nurse appropriately qualified person |
no |
| 9A | the taking of a sample of blood by a finger prick | medical practitioner
nurse constable appropriately qualified person |
no |
| 9B | the taking of a sample of saliva, or a sample by buccal swab | medical practitioner
dentist dental technician nurse constable appropriately qualified person |
no |
| 10 | the taking of a sample of hair other than pubic hair | medical practitioner
nurse constable appropriately qualified person |
no |
| 11 | the taking of a sample from a nail or from under a nail | medical practitioner
nurse constable appropriately qualified person |
no |
| 12 | the taking of a sample by swab or washing from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts | medical practitioner
nurse appropriately qualified person |
no |
| 13 | the taking of a sample by vacuum suction, scraping or lifting by tape from any external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts | medical practitioner
nurse appropriately qualified person |
no |
| 14 | the taking of a hand print, finger print, foot print or toe print | appropriately qualified person | no |
| 15 | the taking of a photograph or a video recording of, or an impression or cast of a wound from, an external part of the body other than the genital or anal area, the buttocks or, in the case of a female, the breasts | appropriately qualified person | no |
Note:
Appropriately qualified (as used in the expression ``appropriately qualified person'') is defined in section 23WA.
Subdivision C - Further provisions about who may carry out forensic procedures SECTION 23XN Certain forensic procedures generally to be carried out by person of same sex as suspect (1)
If practicable, an intimate forensic procedure (other than the taking of a sample of blood or a dental impression) is to be carried out:
(a) if the suspect is an adult-by a person of the same sex as the suspect; or
(b) if the suspect is a child-by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(2)
If practicable, a non-intimate forensic procedure for which the suspect is required to remove clothing other than his or her overcoat, coat, jacket, gloves, socks, shoes and hat is to be carried out:
(a) if the suspect is an adult-by a person of the same sex as the suspect; or
(b) if the suspect is a child-by a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect.
(3)
If practicable, a person asked under section 23XO to help carry out a forensic procedure covered by subsection (1) or (2):
(a) is to be:
(i) if the suspect is an adult-a person of the same sex as the suspect; or
(ii) if the suspect is a child-a person of the sex chosen by the suspect or, if the suspect does not wish to make such a choice, by a person of the same sex as the suspect; and
(b) is to be a person who is not inappropriate to help carry out the forensic procedure.
SECTION 23XO Person may get help to carry out forensic procedures (1)
A person who is authorised to carry out a forensic procedure under the table in section 23XM is authorised to ask another person to help him or her to carry out the procedure, and the other person is authorised to give that help.
(2)
A person who is asked to help carry out a forensic procedure need not be a person mentioned in the table in section 23XM.
(3)
A person who is asked to help carry out a forensic procedure may use reasonable force to enable the forensic procedure to be carried out.
Subdivision D - Presence of other people while forensic procedure is carried out SECTION 23XP Medical practitioner or dentist of suspect's choice may be present for intimate forensic procedures (1)
A suspect is entitled to request a medical practitioner or dentist (the expert ) of his or her choice as shown in the table in section 23XM to be present while a forensic procedure (other than a non-intimate forensic procedure) is carried out.
Note:
Section 23YE provides that the request may be made by the suspect's legal representative or interview friend.
(2)
The expert chosen is to be present at the forensic procedure unless he or she:
(a) is unable, or does not wish, to attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time in which the person responsible for the effective carrying out of the forensic procedure considers theforensic procedure should be carried out if it is to be effective in affording evidence of the relevant offence.
SECTION 23XQ Presence of interview friend or legal representative-children and incapable persons (1)
This section applies if the suspect is:
(a) a child; or
(b) an incapable person.
(2)
Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3)
An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
SECTION 23XR Presence of interview friend or legal representative-Aboriginal persons and Torres Strait Islanders (1)
This section applies if the investigating constable believes on reasonable grounds that the suspect is an Aboriginal person or a Torres Strait Islander not covered by section 23XQ.
(2)
Either an interview friend or a legal representative (if he or she is not the interview friend) of the suspect must be present while the forensic procedure is carried out. Both an interview friend and a legal representative may be present.
(3)
Subsection (2) does not apply if:
(a) the investigating constable believes on reasonable grounds that, having regard to the suspect's level of education and understanding, the suspect is not at a disadvantage in respect of the carrying out of the forensic procedure by comparison with members of the Australian community generally; or
(b) the suspect expressly and voluntarily waives his or her right to have an interview friend present.
Note:
Section 23YK relates to proving a waiver under subsection (3).
(4)
An interview friend (other than a legal representative) of the suspect may be excluded from the place where the forensic procedure is being carried out if the interview friend unreasonably interferes with or obstructs the carrying out of the procedure.
SECTION 23XS Presence of constables (1)
The number of constables that may be present during the carrying out of a forensic procedure must not exceed that which is reasonably necessary to ensure that the procedure is carried out effectively and in accordance with this Part.
(2)
Where the presence of a constable (other than a constable who is carrying out or helping to carry out the procedure) is reasonably necessary to ensure that a forensic procedure is carried out effectively and in accordance with this Part, the constable is:
(a) if the suspect is a child-to be of the same sex as the suspect; or
(b) in any other case-to be of the same sex as the suspect unless it is not practicable for such a constable to attend within a reasonable time.
Note:
Section 23XN provides that, if practicable, most forensic procedures are to be carried out by persons of the same sex as the suspect.
(3)
This section does not apply to the following forensic procedures:
(a) the taking of hand prints, finger prints, foot prints or toe prints;
(b) any non-intimate forensic procedure that may be carried out without requiring the suspect to remove any clothing except his or her overcoat, coat, jacket, gloves, socks, shoes and hat.
SECTION 23XSA 23XSA Presence of prison officers
If:
one or more prison officers may be present while the forensic procedure is carried out.
The carrying out of a forensic procedure (other than the taking of a hand print, finger print, foot print or toe print) must be video recorded unless:
(a) the suspect objects to the video recording; or
(b) the video recording is not practicable.
(2)
Before the forensic procedure is carried out, the suspect must be informed:
(a) of the reasons for video recording the carrying out of the forensic procedure, including the protection that the video recording provides for the suspect; and
(b) that the suspect may object to the video recording.
(3)
In spite of section 23YE, an interview friend of an Aboriginal person or a Torres Strait Islander not covered by section 23XQ has no right to object to the video recording of the forensic procedure.
Note:
Section 23YE gives interview friends and legal representatives general powers to act on behalf of suspects. Section 23XQ applies to children and incapable persons, including children or incapable persons who are Aboriginal persons or Torres Strait Islanders, but does not apply to other Aboriginal persons or Torres Strait Islanders.
(4)
If the carrying out of the forensic procedure is not to be video recorded, the forensic procedure must be carried out in the presence of an independent person (not a constable).
Subdivision F - Procedure after forensic procedure is carried out SECTION 23XU Samples - sufficient material to share 23XU(1)
This section applies if:
(a) a sample is taken from a suspect under this Part; and
(b) the suspect requests the investigating constable that the sample be shared; and
(c) there is sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect.
23XU(2)
The investigating constable must invite the suspect to nominate an accredited laboratory to which a partof the material sufficient for analysis will be provided on behalf of the suspect.
23XU(3)
If the suspect nominates an accredited laboratory, the investigating constable must ensure that:
(a) a part of the material sufficient for analysis is provided to that laboratory, on behalf of the suspect, within the period of 28 days beginning on the day of the nomination; and
(b) reasonable care is taken to ensure that the suspect's part of the material is protected and preserved until it is provided to that laboratory.
Note:
Division 9 contains provisions about making material available to the suspect.
23XU(4)
The suspect must bear the costs in relation to any analysis of that part of the material provided to that laboratory.
This section applies to a sample taken from a suspect under this Part if:
(a) there is not sufficient material to be analysed both in the investigation of the offence and on behalf of the suspect; and
(b) the material does not need to be analysed immediately after the sample is taken.
(2)
The suspect is entitled to request the investigating constable that a person (the attendee ) of the suspect's choice be present while the material is analysed in the investigation of the offence.
Note:
Section 23YE provides that the request may be made by the suspect's legal representative or interview friend.
(2A)
The investigating constable must then inform the suspect that the attendee may be directed by the person (the analyst ) responsible for analysing the material to leave the premises at which the analysis is being conducted if the attendee does not comply with instructions given by the analyst in relation to the analysis of the material.
(3)
Subject to this section, the attendee is to be present at the analysis of the material unless he or she:
(a) is unable, or does not wish, to attend; or
(b) cannot be contacted;
within a reasonable time or, if relevant, within the time in which the analyst considers the analysis should be carried out if it is to provide valid results.
(4)
The analyst may give instructions to the attendee relating to the analysis of the material.
(5)
The analyst may give a direction to the attendee to leave the premises at which the analysis is being conducted if the attendee fails to comply with such an instruction.
(6)
If the analyst gives such a direction, the analyst must inform the attendee that a failure to comply with the direction is an offence against subsection (7). A failure to comply with this subsection does not affect the validity of the direction.
(7)
The attendee commits an offence if:
(a) the attendee is given a direction under subsection (5); and
(b) the attendee fails to comply with the direction.
Penalty: 30 penalty units.
(8)
An offence against subsection (7) is an offence of strict liability.
Note:
For strict liability, see section 6.1 of the Criminal Code.
SECTION 23XV 23XV Photographs
Where a forensic procedure involves the taking of a photograph of a part of a suspect's body, the investigating constable must ensure that a copy of the photograph is made available to the suspect.
Note:
Division 9 contains provisions about making copies of material available to the suspect.
SECTION 23XW 23XW Results of analysisIf:
(a) material from a sample taken from a suspect is analysed in the investigation of the offence; and
(b) before or after the analysis, the suspect has requested the investigating constable that a copy of the results of any analysis be provided to the suspect;
then the investigating constable must ensure that, within 14 days of the analysis or of the request (whichever is the later):
(c) a copy of the results of the analysis is provided to the suspect; and
(d) if the DNA profile derived from that material has been matched, as part of the investigation of the offence, under section 23YDAF with a DNA profile placed on the crime scene index in relation to the offence-the suspect is informed in writing of that match.
A person commits an offence if the person obstructs, hinders or resists a person carrying out a forensic procedure in accordance with this Part.
Penalty: Imprisonment for 2 years.
Intimate forensic procedure to which Division applies
(1)
This Division applies to an intimate forensic procedure that is the taking of a sample of blood (other than by a finger prick).
Non-intimate forensic procedures to which Division applies
(2)
This Division applies to the following non-intimate forensic procedures:
(a) the taking of samples of hair other than pubic hair;
(b) the taking of fingerprints;
(c) the taking of a sample of blood by a finger prick;
(d) the taking of a sample of saliva, or a sample by buccal swab.
Application of Division
(3)
A person is authorised by this section to carry out a forensic procedure under this Division on a serious offender or a prescribed offender whether convicted of the serious or prescribed offence concerned before or after the commencement of this section.
A person is authorised to carry out a non-intimate forensic procedure to which this Division applies on a person (other than a child or an incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a constable under section 23XWK; or
(c) by order of a judge or magistrate under section 23XWO.
(2)
A person is authorised to take the fingerprints of a prescribed offender (other than a child or an incapable person):
(a) with the informed consent of the prescribed offender; or
(b) by order of a constable under section 23XWK.
(3)
A person is authorised to carry out a non-intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender, or to take the fingerprints of a child or incapable person who is a prescribed offender, by order of a judge or magistrate under section 23XWO.
A person is authorised to carry out an intimate forensic procedure to which this Division applies on a person (other than a child or incapable person) who is a serious offender:
(a) with the informed consent of the serious offender; or
(b) by order of a judge or magistrate under section 23XWO.
Division 66 applies in relation to the carrying out under this Division of a forensic procedure on an offender. For this purpose:
(a) references in Division 66 to the suspect are taken to be references to the offender; and
(b) references in Subdivision F of Division 6 to the investigating constable are taken to be references to the Commissioner.
Note:
By applying Division 6, sections 23XJ (about use of force in carrying out forensic procedures) and 23XK (about forensic procedures not being carried out in a cruel, inhuman or degrading manner) apply to the carrying out of a forensic procedure under this Division.
(2)
A person is authorised by section 23XWC or 23XWD to carry out a forensic procedure under this Division in accordance with Division 6 as applied by this section and not otherwise.
SECTION 23XWF Scope of authorisation (1)
A person is not authorised to carry out a forensic procedure under this Division on a serious offender or a prescribed offender if the serious offender or prescribed offender is a suspect or a volunteer.
(2)
A forensic procedure may be carried out on a serious offender or prescribed offender who is a suspect only if authorised by and in accordance with Divisions 2 to 5.
(3)
A forensic procedure may be carried out on a serious offender or prescribed offender who is a volunteer only if authorised by and in accordance with Division 6B.
SECTION 23XWG Informed consent to forensic procedures (1)
An offender gives informed consent to a forensic procedure if the offender consents after a constable:
(a) requests the offender to consent to the forensic procedure under section 23XWH; and
(b) informs the offender, in accordance with the regulations and section 23XWJ, of the matters mentioned in that section; and
(c) gives the offender the opportunity to communicate, or attempt to communicate, with a legal practitioner of the offender's choice.
(2)
The constable must allow the offender to communicate, or attempt to communicate, with the legal practitioner in private unless the constable suspects on reasonable grounds that the offender might attempt to destroy or contaminate any evidence that might be obtained by carrying out the forensic procedure.
Note:
Section 23YI statesthat the burden lies on the prosecution to prove on the balance of probabilities that a constable had a suspicion on reasonable grounds.
SECTION 23XWH 23XWH Constable may request offender to consent to forensic procedure
A constable may request:
(a) a serious offender (other than a child or an incapable person) to consent to an intimate or non-intimate forensic procedure to which this Division applies being carried out on the serious offender; or
(b) a prescribed offender (other than a child or an incapable person) to consent to the taking of the offender's fingerprints.
Before a request is made under section 23XWH, the constable must be satisfied on the balance of probabilities that:
(a) in the case of a person on whom the procedure is proposed to be carried out who is not serving a sentence of imprisonment in a prison or other place of detention - that the person is an offender; and
(b) the request for consent to carry out the forensic procedure is justified in all the circumstances.
The constable must inform the offender of the following:
(a) the purpose for which the forensic procedure is required;
(b) if the constable wants the forensic procedure carried out in relation to an offence - the offence concerned;
(c) the way in which the forensic procedure is to be carried out;
(d) that the forensic procedure may produce evidence against the offender that might be used in a court of law;
(e) that the forensic procedure will be carried out by a person who may carry out the procedure under Division 6 as applied by section 23XWE;
Note:
See section 23XM.
(f) if the forensic procedure is the taking of a sample of blood, that the offender may request that:
(i) if the offender is serving a sentence of imprisonment in a prison or other place of detention - the prison medical officer be present while the blood is taken; or
(ii) if the offender is not serving a sentence of imprisonment - a medical practitioner of the offender's choice be present while the blood is taken;
(g) that the offender may refuse consent to the carrying out of the forensic procedure;
(h) the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);
(i) the effect of section 23XZ (if applicable);
(j) that information obtained from analysis of forensic material obtained may be placed on the Commonwealth DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the Commonwealth DNA database system may be used under Division 8A.
(2) Effect of failure to consent to non-intimate forensic procedure.
The constable must inform a serious offender requested to undergo a non-intimate forensic procedure to which this Division applies or a prescribed offender requested to consent to the taking of his or her fingerprints that, if the offender does not consent, a constable may order the carrying out of the forensic procedure under section 23XWK if the constable has taken into account the matters set out in section 23XWL.
(3) Effect of failure to consent to intimate forensic procedure.The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.
A constable may order the carrying out of a non-intimate forensic procedure to which this Division applies on a serious offender or the taking of the fingerprints of a prescribed offender other than a child or an incapable person if:
(a) the offender has been asked under section 23XWH to consent to the carrying out of the forensic procedure; and
(b) the offender has not consented; and
(c) the constable has taken into account the matters set out in section 23XWL.
In determining whether to make an order under section 23XWK, the constable is to take into account:
(a) whether this part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the offence committed by the offender; and
(c) (Repealed by No 24 for 2012)
(d) whether the carrying out of the forensic procedure without consent is justified in all the circumstances.
The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the offender's responses (if any) are tape recorded.
(2)
If tape recording the giving of the information and the offender's responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the offender's responses (if any) is made; and
(b) a copy of the record is made available to the serious offender.
Note:
Division 9 contains provisions about making copies of material (including tapes) available to the serious offender.
SECTION 23XWN Record of constable's order (1)
The constable must, at the time of, or as soon as practicable after, making an order under section 23XWK, make a record of:
(a) the order; and
(b) the date and time when the order was made; and
(c) the reasons for making it, and sign the record.
(2)
The constable must ensure that a copy of the record is made available to the offender as soon as practicable after the record is made.
SECTION 23XWNA 23XWNA Circumstances in which judge or magistrate may order forensic procedure
A judge or magistrate may, under section 23XWO, order the carrying out of a forensic procedure on an offender if:
(a) the offender is not in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(b) the offender is in custody and has not consented to the forensic procedure (whether or not consent has been sought); or
(c) under section 23WE, the offender cannot consent to the forensic procedure.
An authorised applicant may apply to any judge or magistrate for an order for the carrying out of an intimate forensic procedure, or a non-intimate forensic procedure, to which this Division applies on a serious offender (other than a child or an incapable person).
(2)
An authorised applicant may apply to any judge or magistrate for an order for the carrying out of a non-intimate forensic procedure to which this Division applies on a child or an incapable person who is a serious offender.
(3)
An application under subsection (1) or (2) must be accompanied by an affidavit by the authorised applicant dealing with the matters referred to in subsection (7).
(4)
An authorised applicant may apply to any judge or magistrate for an order for the taking of the fingerprints under this Division of a child or an incapable person who is a prescribed offender.
(5)
An authorised applicant may make an application under this section to the judge or magistrate that is sentencing an offender or to any other judge or magistrate at a later time.
(6)
A judge or magistrate may order the carrying out of a forensic procedure under this Division if satisfied that the carrying out of the forensic procedure is justified in all the circumstances.
(7)
In determining whether to make an order under this section, a judge or magistrate is to take into account:
(a) whether this Part would authorise the forensic procedure to be carried out in the absence of the order; and
(b) the seriousness of the circumstances surrounding the commission of the offence by the offender; and
(c) (Repealed by No 24 of 2012)
(d) whether the carrying out of the forensic procedure is justified in all the circumstances.
(8)
An order under this section takes effect immediately. However, the person who conducts any analysis of forensic material obtained as a result of carrying out the forensic procedure on an offender must not disclose the results of the analysis:
(a) until the expiration of any appeal period or after the final determination of any appeal in relation to the offence concerned, whichever is the later; or
(b) if the conviction is quashed.
SECTION 23XWOA Securing the presence of offender at hearing - offender in custody (1)
If:
(a) an application is made under section 23XWO to a judge or magistrate for an order under that section for the carrying out of a forensic procedure on an offender; and
(b) the offender is in custody or is otherwise detained under a law of the Commonwealth, a State or a Territory ( original custody );
the judge or magistrate may, on the application of a constable, issue a warrant directing the person holding the offender to deliver the offender into the custody ( temporary custody ) of the constable for the hearing of the application.
(2)
If the judge or magistrate refuses to make the order under section 23XWO, the constable given temporary custody of the offender must return the offender to the place of original custody without delay.
(3)
If the judge or magistrate makes the order under section 23XWO, the judge or magistrate may:
(a) order the constable given temporary custody of the offender:
(i) to convey the offender to the nearest premises where facilities for carrying out the procedure in accordance with this Part are available to that constable; and
(ii) to return the offender to the place of original custody without delay after the procedure is carried out; or
(b) order the constable given temporary custody of the offender to return the offender to the place of original custody without delay.
If:
(a) an application is made under section 23XWO to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender; and
(b) the offender is neither in custody nor detained under a law of the Commonwealth, a State or a Territory;
the judge or magistrate may, on the application of a constable:
(c) issue a summons for the appearance of the offender at the hearing of the application; or
(d) issue a warrant for the arrest of the offender for the purpose of bringing the offender before the judge or magistrate for the hearing of the application.
(2)
An application for a summons under subsection (1) must be:
(a) made by information on oath or affirmation; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (3)(a) and (b).
(3)
The judge or magistrate may issue a summons only if satisfied:
(a) that the issue of the summons is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO; or
(b) that the issue of the summons is otherwise justified.
(4)
An application for a warrant under subsection (1) must be:
(a) made by information on oath or affirmation; and
(b) accompanied by an affidavit dealing with matters referred to in paragraphs (5)(a), (b) and (c).
(5)
The judge or magistrate may issue a warrant only if satisfied:
(a) that the arrest is necessary to ensure the appearance of the offender at the hearing of the application made under section 23XWO, and that the issue of a summons would not ensure that appearance; or
(b) that the offender might destroy evidence that might be obtained by carrying out the forensic procedure; or
(c) that the issue of the warrant is otherwise justified.
If:
(a) an offender is in prison or another place of detention; and
(b) a judge or magistrate orders the carrying out of a forensic procedure under this Division on the offender;
the judge or magistrate may order that a constable and a Division 6 person be permitted to attend on the offender in the prison or place of detention to allow the forensic procedure to be carried out.
(2)
In subsection (1), Division 6 person means a person who, under Division 6 as applied by section 23XWE, may carry out the forensic procedure.
(3)
If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender who is not in a prison or another place of detention, the judge or magistrate may order the offender to attend at a police station (or other place specified by the judge or magistrate) within a period specified by the judge or magistrate to allow the forensic procedure to be carried out.
(4)
If a judge or magistrate orders the carrying out of a forensic procedure under this Division on an offender, the offender commits an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.
Penalty: Imprisonment for 12 months.
Note:
A defendant bears the evidential burden in relation to the exception of reasonable excuse - see subsection 13.3(3) of the Criminal Code.
In this Part:
(a) who volunteers to a constable to undergo a forensic procedure; or
(b) in the case of a child or incapable person - whose parent or guardian volunteers on the child or incapable person's behalf to a constable that the child or incapable person undergo a forensic procedure.
(2)
A person (the authorised person ) is authorised to carry out a forensic procedure:
(a) on a volunteer other than a child or an incapable person - with the informed consent of the volunteer given in accordance with section 23XWR; or
(b) on a volunteer who is a child or an incapable person:
(i) with the informed consent of the parent or guardian of the volunteer given in accordance with section 23XWR or by order of a magistrate under section 23XWU; and
(ia) in a case where the informed consent of the parent or guardian of the volunteer is given in accordance with section 23XWR - after the constable concerned has informed the child or incapable person that, even though consent has been given, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out; and
(ii) after the authorised person has informed the child or incapable person that, even though consent has been given or an order made, if he or she objects to or resists the carrying out of the forensic procedure it will not be carried out.
(3)
This section only authorises a person to carry out a forensic procedure if the procedure is necessary, or incidental to, the carrying out of an AFP function.
(4)
This section does not authorise a person to carry out a forensic procedure on a child or an incapable person who objects to or resists the carrying out of the forensic procedure.
(5)
Division 6 applies to the carrying out of a forensic procedure under this Division as if the references to a suspect in that Division were references to a volunteer referred to in this section. A person is authorised by this section to carry out a forensic procedure on a volunteer in accordance with Division 6 as so applied and not otherwise.
SECTION 23XWR Informed consent of volunteer or parent or guardian of volunteer (1)
A volunteer, or parent or guardian of a volunteer, gives informed consent in accordance with this section if the volunteer, parent or guardian consents in the presence of an independent person (not being a constable) after a constable informs the volunteer, parent or guardian, in accordance with the regulations, of the following matters:
(a) the way in which the forensic procedure is to be carried out;
(b) that the volunteer is under no obligation to undergo the forensic procedure;
(c) that the forensic procedure may produce evidence that might be used in a court of law;
(d) to the extent that they are relevant, the matters specified in subsection (2);
(e) that the volunteer, parent or guardian may consult a legal practitioner of the volunteer's, parent's or guardian's choice before deciding whether or not to consent to the forensic procedure;
(f) that the volunteer, parent or guardian may at any time withdraw consent to:
(i) the volunteer undergoing the forensic procedure; or
(ii) retention of the forensic material taken; or
(iii) retention of information obtained from the analysis of that material.
(2)
The constable must inform the volunteer, or parent or guardian of the volunteer, of the following:
(a) that information obtained from analysis of forensic material taken from a person under this Division, and as to the identity of the person, may be placed on the Commonwealth DNA database system;
(b) that the information will be stored on the volunteers (limited purposes) index of that system unless the volunteer (or, in the case of a volunteer who is a child or an incapable person, the parent or guardian of the volunteer) chooses for the information to be stored on the volunteers (unlimited purposes) index of that system; and
(ba) if the information is placed on the volunteers (limited purposes) index - the purpose for which the information is placed on the index and that the information may only be used for that purpose;
(c) if the information is placed on the volunteers (unlimited purposes) index - that the information may be used for the purposes of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under Division 8A;
(d) that information placed on the Commonwealth DNA database system will be retained for such period as the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer) agree and must then be removed from the system;
(da) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency (other than an agency responsible to an international tribunal) - the following:
(i) the name of the foreign law enforcement agency that has made the request;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the foreign law enforcement agency;
(iii) that the forensic evidence may be used in proceedings in the foreign country;
(iv) that the retention of the forensic evidence will be governed by the laws of the foreign country;
(v) that the retention of the forensic evidence will be subject to undertakings given by the foreign law enforcement agency;
(vi) the content of those undertakings;
(db) if the volunteer undergoes a forensic procedure because of a request by a foreign law enforcement agency responsible to an international tribunal - the following:
(i) the name of the international tribunal for which the request was made;
(ii) that forensic evidence resulting from the forensic procedure will be provided to the agency;
(iii) that the forensic evidence may be used in proceedings in the international tribunal;
(iv) that the retention of the forensic evidence will be governed by the rules of the international tribunal;
(v) that the retention of the forensic evidence will be subject to undertakings given by the agency;
(vi) the content of those undertakings;
(e) any other matters prescribed by the regulations.
SECTION 23XWS Recording of giving of information and consent (1)
The constable must, if practicable, ensure that the giving of the information about the proposed forensic procedure and the volunteer's or volunteer's parent's or guardian's responses (if any) are tape recorded.
(2)
If tape recording the giving of information and the volunteer's, parent's or guardian's responses (if any) is not practicable, the constable must ensure that:
(a) a written record of the giving of the information and the volunteer's, parent's or guardian's responses (if any) is made; and
(b) a copy of the record is made available to the volunteer, parent or guardian.
Note 1:
Division 9 contains provisions about making copies of material (including copies of tapes) available to volunteers.
Note 2:
If a foreign law enforcement agency requests that a forensic procedure be carried out on a volunteer, a copy of the tape recording or the written record may also be provided to the foreign law enforcement agency: see subsection 23YQD(2).
If a volunteer, or parent or guardian of the volunteer, expressly withdraws consent to the carrying out of a forensic procedure under this Division (or if the withdrawal of such consent can reasonably be inferred from the volunteer's, parent's or guardian's conduct) before or during the carrying out of the forensic procedure:
(a) the forensic procedure is to be treated from the time of the withdrawal as a forensic procedure for which consent has been refused; and
(b) the forensic procedure is not to proceed except (in the case of a child or incapable person) by order of a magistrate under section 23XWU.
(2)
If:
(a) a forensic procedure is carried out on a volunteer under this Division; and
(b) after the procedure is carried out, the volunteer, or the parent or guardian of the volunteer, expressly withdraws consent to retention of the forensic material taken or of information obtained from the analysis of that material;
then, subject to any order made under section 23XWV, the forensic material and any information obtained from analysis of the material is to be destroyed as soon as practicable after the consent is withdrawn.
(3)
A constable may request, but cannot require, a parent or guardian who withdraws consent to the carrying out of a forensic procedure under this Division to confirm the withdrawal of consent in writing.
SECTION 23XWU Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person (1)
A magistrate may order the carrying out of a forensic procedure on a child or incapable person if:
(a) the consent of the parent or guardian of the child or incapable person to the carrying out of the forensic procedure cannot reasonably be obtained from a parent or guardian of the child or incapable person; or
(b) the parent or guardian of the child or incapable person refuses consent to the carrying out of the forensic procedure and the magistrate is satisfied that there are reasonable grounds to believe:
(i) that the parent or guardian is a suspect; and
(ii) that the forensic procedure is likely to produce evidence tending to confirm or disprove that he or she committed an offence; or
(c) the parent or guardian of the child or incapable person consented to the carrying out of the forensic procedure, but subsequently withdraws that consent; or
(d) in the case of a forensic procedure requested by a foreign country or an international tribunal - a constable has been authorised by the Attorney-General, under the authorising provision relating to the request, to apply for an order under this Part.
(1A)
However, a magistrate is not authorised to order the carrying out of a forensic procedure on a child or incapable person if the procedure has been requested by a foreign law enforcement agency.
(2)
In determining whether to make an order under this section, the magistrate is to take into account the following:
(a) whether this Part would authorise the carrying out of the forensic procedure apart from this section;
(b) if the forensic procedure is being carried out for the purposes of the investigation of a particular offence - the seriousness of the circumstances surrounding the commission of the offence;
(c) the best interests of the child or incapable person;
(d) so far as they can be ascertained, any wishes of the child or incapable person with respect to whether the forensic procedure should be carried out;
Note:
A forensic procedure cannot be carried out on a child or an incapable person who objects to or resists the carrying out of the procedure even if the magistrate makes an order. See subparagraph 23XWQ(2)(b)(ii) and subsection 23XWQ(3).
(e) except in the circumstances referred to in paragraph (1)(b), any wishes expressed by the parent or guardian of the child or incapable person with respect to whether the forensic procedure should be carried out;
(f) whether the carrying out of the forensic procedure is justified in all the circumstances.
(3)
An order under this section may:
(a) require the forensic procedure to be carried out at a time, or place, or in a manner, specified in the order; or
(b) specify the period for which forensic material obtained from carrying out the procedure may be retained.
SECTION 23XWV Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent (1)
An authorised applicant may apply to a magistrate for an order under subsection (2).
(2)
Subject to subsection (2A), a magistrate may order that forensic material taken or information obtained from carrying out a forensic procedure on a volunteer who withdraws consent, or parent or guardian of a volunteer who withdraws consent, as the case may be, to the retention of the material be retained if the magistrate is satisfied that:
(a) during an investigation into the commission of a serious offence, material reasonably believed to be from the body of a person who committed the offence had been found:
(i) at the scene of the offence; or
(ii) on the victim of the offence or anything reasonably believed to have been worn or carried by the victim when the offence was committed; or
(iii) on the volunteer or anything reasonably believed to have been worn or carried by the volunteer at the scene of the offence or when the offence was committed; or
(iv) on an object or person reasonably believed to have been associated with the commission of the offence; and
(b) there are reasonable grounds to believe that information obtained from analysis of the forensic material taken from the volunteer is likely to produce evidence of probative value in relation to the serious offence being investigated; and
(c) the retention of the forensic material taken from the volunteer is justified in all the circumstances.
(2A)
Despite subsection (2), a magistrate may not make an order if:
(a) the volunteer was asked to undergo a forensic procedure because of a request by a foreign law enforcement agency; and
(b) the forensic evidence has already been provided to the foreign law enforcement agency.
(3)
The order may specify the period for which the forensic material taken or information obtained from carrying out the procedure may be retained.
Division 7 - Admissibility of evidence Subdivision A - Forensic evidence SECTION 23XX Inadmissibility of evidence from improper forensic procedures etc. (1)
This section applies where:
(a) a forensic procedure has been carried out on a person; and
(b) there has been a breach of, or failure to comply with:
(i) any provision of this Part in relation to a forensic procedure carried out on the person (including, but not limited to, any breach or failure to comply with a provision requiring things to be done at any time before or after the forensic procedure is carried out); or
(ii) any provision of Division 8A with respect to recording or use of information on the Commonwealth DNA database system.
(2)
This section does not apply where:
(a) a provision of this Part required forensic material to be destroyed; and
(b) the forensic material has not been destroyed.
Note:
Section 23XY applies where this Part requires forensic material to have been destroyed.
(3)
This section applies to:
(a) evidence of forensic material, or evidence consisting of forensic material, taken from the person by the forensic procedure; and
(b) evidence of any results of the analysis of the forensic material; and
(c) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(4)
Where this section applies, evidence described in subsection (3) is not admissible in any proceedings against the person in a court unless:
(a) the person does not object to the admission of the evidence; or
(b) the court is satisfied on the balance of probabilities of matters that, in the court's opinion, justify the admission of the evidence in the proceedings in spite of the failure to comply with the provisions of this Part.
(5)
The matters that may be considered by the court for the purposes of paragraph (4)(b) are the following:
(a) the probative value of the evidence, including whether equivalent evidence or evidence of equivalent probative value could have been obtained by other means;
(b) the reasons given for the failure to comply with the provisions of this Part;
(c) the gravity of the failure to comply with the provisions of this Part, and whether the failure deprived the person of a significant protection under this Part;
(d) whether the failure to comply with the provisions of this Part was intentional or reckless;
(e) the nature of the provision of this Part that was not complied with;
(f) the nature of the offence concerned and the subject matter of the proceedings;
(g) whether admitting the evidence would seriously undermine the protection given to persons by this Part;
(h) any other matters the court considers to be relevant.
(6)
The probative value of the evidence does not by itself justify the admission of the evidence.
(7)
If a judge permits evidence to be given before a jury under subsection (4), the judge must:
(a) inform the jury of the breach of, or failure to comply with, a provision of this Part; and
(b) give the jury such warning about the evidence as the judge thinks appropriate in the circumstances.
SECTION 23XY Inadmissibility of evidence where forensic material required to be destroyed (1)
If a provision of this Part requires forensic material taken from a person by a forensic procedure to be destroyed, subsection (2) applies to:
(a) evidence of the forensic material; and
(b) if the material has not been destroyed-evidence consisting of the forensic material; and
(c) any results of the analysis of the forensic material; and
(d) any other evidence made or obtained as a result of or in connection with the carrying out of the forensic procedure.
(2)
The results of the analysis, and the other evidence, are not admissible if adduced by the prosecution in any proceedings against the person, but may be admissible if adduced in such proceedings by the person.
Subdivision B - Other evidence SECTION 23XZ 23XZ Admissibility of evidence relating to consent to forensic procedure
Evidence of a person's refusal or failure to consent, or withdrawal of consent, to a forensic procedure is not admissible in proceedings against the person except to establish or rebut an allegation that a constable or another person investigating the commission of the offence concerned acted contrary to law in carrying out that investigation. SECTION 23YA 23YA Admissibility of evidence relating to carrying out of forensic procedure
In spite of subsection 23XX(4), evidence of how a forensic procedure was carried out is admissible in proceedings against the person in a court:
(a) to establish or rebut an allegation that unreasonable force was used to enable the procedure to be carried out; or
(b) to determine the admissibility of a confession or admission or other evidence adverse to the person where the person alleges that the evidence was induced or obtained by the use of unreasonable force; or
(c) to establish or rebut an allegation that the forensic procedure was not carried out in accordance with Division 6.
This section applies where a constable or magistrate has ordered the carrying out of a forensic procedure on a suspect under this Part.
(2)
Subject to subsections (3) and (4), evidence that the suspect:
(a) refused to comply with any reasonable direction in connection with the carrying out of the forensic procedure; or
(b) obstructed, resisted, hindered, used violence against, threatened or intimidated a person in connection with the carrying out of the forensic procedure;
is admissible in any proceedings against the suspect in respect of a relevant offence.
(3)
Evidence described in subsection (2) is not admissible if the forensic procedure was in fact carried out satisfactorily.
(4)
Evidence described in subsection (2) is not admissible unless it is established that the suspect:
(a) had been informed by a constable as described in subsection 23WA(4); or
(b) otherwise knew;
that the fact of refusing to comply with the direction, or obstructing, resisting, hindering, using violence against, threatening or intimidating the person, in connection with the carrying out of the forensic procedure might be used in evidence against the suspect.
(5)
The court or jury may draw such inferences from the evidence described in subsection (2) as appear to the court or jury to be proper in the circumstances, having regard to any evidence given by or on behalf of the suspect.
Subdivision C - Application
To avoid doubt, this Division does not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:
(a) a foreign country; or
(b) an international tribunal; or
(c) a foreign law enforcement agency.
This Division does not apply to forensic evidence provided in response to a request by a foreign country, an international tribunal or a foreign law enforcement agency.
If an interim order for the carrying out of a forensic procedure made under section 23XA is disallowed after the forensic procedure is carried out, the investigating constable must ensure that:
(a) all forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the disallowance; and
(b) a copy of the results of any analysis of the forensic material are made available to the suspect.
Note:
Division 9 contains provisions about making copies of material available to the suspect.
(2)
If an order for the carrying out of a forensic procedure made under section 23XWU or for the retention of forensic material under section 23XWV specifies a period for which forensic material obtained as a result of the carrying out of the procedure may be retained, the forensic material is to be destroyed as soon as practicable after the end of the period.
SECTION 23YD Destruction of forensic material after 12 months (1)
This section applies where forensic material has been taken from a suspect by a forensic procedure carried out under this Part (except section Divisions 6A and 6B).
(2)
If:
(a) a period of 12 months has elapsed since the forensic material was taken; and
(b) proceedings in respect of a relevant offence have not been instituted against the suspect, or have been discontinued;
the forensic material must be destroyed as soon as practicable unless a warrant for apprehension of the suspect has been issued.
(3)
If:
(a) the suspect is found to have committed a relevant offence but no conviction is recorded; or
(b) the suspect is acquitted of such an offence and:
(i) no appeal is lodged against the acquittal; or
the forensic material must be destroyed as soon as practicable unless an investigation into, or a proceeding against the suspect for, another relevant offence is pending.
(ii) an appeal is lodged against the acquittal and the acquittal is confirmed or the appeal is withdrawn;
(4)
If a warrant for the apprehension of the suspect is issued during the period of 12 months after forensic material is taken, the forensic material must be destroyed as soon as practicable after:
(a) the warrant lapses; or
(b) a period of 12 months elapses after the suspect is apprehended.
(5)
A magistrate may, on application by a constable or the Director of Public Prosecutions, extend for a period not exceeding 12 months the period for which forensic material may be retained under this section, if the magistrate is satisfied there are special reasons for doing so.
(6)
A magistrate to whom an application is made under subsection (5) is not to extend the period unless:
(a) the person from whom the forensic material was taken has been notified by the applicant for the extension that the application has been made; and
(b) the person or his or her legal representative or interview friend (if any) has been given the opportunity to speak to or make a submission to the magistrate concerning the extension.
(7)
An extension in relation to particular forensic material may be given on more than one occasion.
(8)
The magistrate is to ensure that the responsible person in relation to the Commonwealth DNA database system is notified of any extension given under this section.
SECTION 23YDAA 23YDAA Destruction of forensic material taken from offender after conviction quashed
The constable who obtained an authority under section 23XWG, 23XWK or 23XWO for the carrying out of a forensic procedure on an offender whose conviction is quashed after the making of the order must ensure that any forensic material obtained as a result of the carrying out of the procedure is destroyed as soon as practicable after the conviction is quashed.
If a magistrate finds that evidence described in subsection 23XX(3) relating to a forensic procedure is inadmissible under section 23XX, the Commissioner must, as soon as practicable, ensure that any forensic material taken from the person by that forensic procedure is destroyed.
In this Part:
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth DNA database system
means a database (whether in computerised or other form and however described) that is managed by the Commonwealth and that contains:
(a) the following indexes of DNA profiles (in so far as they relate to material taken or obtained by a Commonwealth agency and, in relation to a crime scene index, in so far as it also relates to material taken or obtained by a foreign law enforcement agency (within the meaning of the Australian Crime Commission Act 2002)):
(i) a crime scene index;
(ii) a missing persons index;
(iii) an unknown deceased persons index;
(iv) a serious offenders index;
(v) a volunteers (unlimited purposes) index;
(vi) a volunteers (limited purposes) index;
and, if the material is forensic material, information that may be used to identify the person from whose forensic material each DNA profile was derived; and
(vii) a suspects index;
(b) a statistical index (in so far as it relates to forensic material taken in accordance with this Part); and
(c) any other index prescribed by the regulations for the purposes of this definition.
crime scene index
means an index of DNA profiles derived from forensic material found:
(a) at any place (whether within or outside Australia) where an offence (whether a prescribed offence or an offence under the law of a participating jurisdiction) was, or is reasonably suspected of having been, committed; or
(aa) at any place outside Australia where an offence under the law of a foreign country was, or is reasonably suspected of having been, committed; or
(ab) at any place outside Australia where:
(i) a crime within the jurisdiction of the ICC; or
(ii) a War Crimes Tribunal offence;
was, or is reasonably suspected of having been, committed; or
(b) on or within the body of the victim, or a person reasonably suspected of being a victim, of a prescribed offence; or
(c) on anything worn or carried by the victim at the time when a prescribed offence was, or is reasonably suspected of having been, committed; or
(d) on or within the body of any person, on any thing, or at any place, associated with the commission of a prescribed offence.
DNA database system
(Repealed by No 130 of 2006)
missing persons index
means an index of DNA profiles derived from forensic material of:
(a) persons who are missing; and
(c) volunteers who are relatives by blood of missing persons.
National Criminal Investigation DNA Database
or
NCIDD
means the database that is known as the National Criminal Investigation DNA Database and that is managed by the Commonwealth.
NCIDD
: see
National Criminal Investigation DNA Database
.
serious offenders index
means an index of DNA profiles derived from forensic material taken from:
(a) serious offenders in accordance with Division 6A, or under a corresponding law of a participating jurisdiction; and
(b) suspects who have been convicted of a prescribed offence or an offence under a corresponding law of a participating jurisdiction.
State/Territory DNA database system
means a database (whether in computerised or other form and however described) held by, or on behalf of, a participating jurisdiction for the purposes of a corresponding law.
Note:
See also subsection (2).
statistical index
means an index of information that:
(a) is obtained from the analysis of forensic material taken from persons in accordance with this Part or under a corresponding law of a participating jurisdiction; and
(b) has been compiled for statistical purposes; and
(c) cannot be used to discover the identity of persons from whom the forensic material was taken.
suspects index
means an index of DNA profiles derived from forensic material taken from suspects in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction.
unknown deceased persons index
means an index of DNA profiles derived from forensic material of deceased persons whose identities are unknown.
volunteers (limited purposes) index
means an index of DNA profiles derived from forensic material taken in accordance with Division 6B or under a corresponding law of a participating jurisdiction from volunteers who (or whose parents or guardians) have been informed that information obtained will be used only for a purpose specified to them under paragraph 23XWR(2)(ba).
volunteers (unlimited purposes) index
means an index of DNA profiles derived from forensic material taken:
(a) from volunteers who (or whose parents or guardians) have been informed under paragraph 23XWR(2)(c) that information obtained may be used for the purpose of a criminal investigation or any other purpose for which the Commonwealth DNA database system may be used under this Division, in accordance with Division 6B, or under a corresponding law of a participating jurisdiction; and
(b) from deceased persons whose identity is known.
(2)
For a participating jurisdiction, the database referred to in the definition of State/Territory DNA database system in subsection (1) may be that part of NCIDD that relates to that participating jurisdiction.
SECTION 23YDACA Integration of Commonwealth DNA database system and State/Territory DNA database systems (1)
The whole or a part of the Commonwealth DNA database system, or information obtained from the Commonwealth DNA database system, may be integrated (whether electronically or otherwise) with:
(a) the whole or a part of one or more State/Territory DNA database systems; or
(b) information obtained from one or more State/Territory DNA database systems;
to form part of NCIDD.
(2)
A participating jurisdiction, or an authority of a participating jurisdiction, may access NCIDD to the extent that it consists of:
(a) the whole or a part of the State/Territory DNA database system of the participating jurisdiction; or
(b) information obtained from the State/Territory DNA database system of the participating jurisdiction;but only if the participating jurisdiction, or the authority of the participating jurisdiction, is required or authorised by or under a law of the participating jurisdiction to access the State/Territory DNA database system of the participating jurisdiction.
(3)
No part of a State/Territory DNA database system, and no information obtained from a State/Territory DNA database system, forms part of the Commonwealth DNA database system by reason only of any integration referred to in subsection (1).
(4)
No part of the Commonwealth DNA database system, and no information obtained from the Commonwealth DNA database system, forms part of a State/Territory DNA database system by reason only of any integration referred to in subsection (1).
(5)
The existence of the Commonwealth DNA database system or a State/Territory DNA database system is not affected by reason only of any integration referred to in subsection (1).
A person commits an offence if:
(a) the person engages in conduct; and
(b) the person's conduct results in the forensic material taken from any person, and which is required to be destroyed, under this Part or under a corresponding law of a participating jurisdiction, to be supplied to another person; and
(c) the person is reckless as to whether the forensic material is required to be destroyed and the supply of the material to the other person; and
(d) the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(2)
A person commits an offence if:
(a) the person engages in conduct; and
(b) that conduct results in the supply of forensic material to any person and the person is reckless as to that result; and
(c) the person is reckless as to whether the forensic material is not excluded forensic material; and
(d) the person intends that the forensic material be analysed for the purpose of deriving a DNA profile for inclusion on an index of the Commonwealth DNA database system.
Penalty: Imprisonment for 2 years.
(3)
In this section:
excluded forensic material
means forensic material:
(a) found at a crime scene; or
(b) taken from a suspect in accordance with Division 3, 4 or 5 or under a corresponding law of a participating jurisdiction; or
(c) taken from a serious offender or a volunteer in accordance with Division 6A or 6B or under a corresponding law of a participating jurisdiction; or
(d) taken from the body of a deceased person; or
(e) that is from the body of a missing person; or
(f) taken from a volunteer who is a relative by blood of a deceased or missing person.
A person commits an offence if the person accesses information stored on the Commonwealth DNA database system or NCIDD otherwise than in accordance with this section.
Penalty: Imprisonment for 2 years.
(2)
A person may access information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:
(a) the purpose of forensic comparison permitted under section 23YDAF (permissible matching);
(b) the purpose of making the information available, in accordance with the regulations, to the person to whom the information relates;
(c) the purpose of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;
(d) the purpose of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;
(da) the purpose of assisting a foreign country or international tribunal to decide whether to make a request;
(e) the purpose of and in accordance with the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;
(f) the purpose of a coronial inquest or inquiry;
(g) the purpose of an investigation of a complaint by the Information Commissioner of the Commonwealth or of a participating jurisdiction.
(3)
This section does not apply to information that cannot be used to discover the identity of any person.
A matching of a DNA profile on an index of the Commonwealth DNA database system specified in column 1 of the following table with a DNA profile on another index of the system specified in column 2, 3, 4, 5, 6, 7 or 8 of the table is not permitted by this Part if:
(a) "no" is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the index specified in column 1; or
(b) "only if within purpose" is shown in relation to the index specified in column 2, 3, 4, 5, 6, 7 or 8 opposite the volunteers (limited purposes) index specified in column 1 and the matching is carried out for a purpose other than a purpose for which the DNA profile placed on the volunteers (limited purposes) index specified in column 1 was so placed.
| Profile to be matched | Is matching permitted? | ||||||
| Column 1 | Column 2 | Column 3 | Column 4 | Column 5 | Column 6 | Column 7 | Column 8 |
| Crime scene | Suspects | Volunteers (limited purposes) | Volunteers (unlimited purposes) | Serious offenders | Missing persons | Unknown deceased persons | |
| 1. crime scene | yes | yes | only if within purpose | yes | yes | yes | yes |
| 2. suspects | yes | yes | only if within purpose | yes | yes | yes | yes |
| 3. volunteers (limited purposes) | only if within purpose | only if within purpose | only if within purpose | only if within purpose | only if within purpose | only if within purpose | only if within purpose |
| 4. volunteers (unlimited purposes) | yes | yes | only if within purpose | yes | yes | yes | yes |
| 5. serious offenders | yes | yes | only if within purpose | yes | yes | yes | yes |
| 6. missing persons | yes | yes | only if within purpose | yes | yes | yes | yes |
| 7. unknown deceased persons | yes | yes | only if within purpose | yes | yes | yes | yes |
(2)
A person commits an offence if:
(a) the person's conduct causes the matching that is not permitted by this Part of a DNA profile on an index of the Commonwealth DNA database system with a DNA profile on the same or another index of the Commonwealth DNA database system; and
(b) the person is reckless as to any such matching of profiles.
Penalty: Imprisonment for 2 years.
(3)
This section does not make it an offence for conduct to cause a matching that is not permitted by this Part if the matching is solely for the purpose of administering the Commonwealth DNA database system.
Note:
A defendant bears the evidential burden in relation to the matter in subsection (3) - see subsection 13.3(3) of the Criminal Code.
SECTION 23YDAG Recording, retention and removal of identifying information on Commonwealth DNA database system (1)
A person commits an offence if:
(a) the persons conduct causes any identifying information about a person obtained from forensic material taken from the person under this Part to be recorded or retained in the Commonwealth DNA database system at any time after this Part requires the forensic material to be destroyed; and
(b) the person is reckless as to the recording or retention or whether the forensic material is required to be destroyed.
Penalty: Imprisonment for 2 years.
(2)
The responsible person commits an offence if he or she does not ensure that any identifying information, relating to a person from whose forensic material a DNA profile on the volunteers (unlimited purposes) index or volunteers (limited purposes) index of the Commonwealth DNA database system was derived, is removed from the system as soon as practicable after the end of the identifying period for the profile.
Penalty: Imprisonment for 2 years.
Note:
See subsection 23WA(1) for responsible person .
(3)
The responsible person commits an offence if he or she does not ensure that any identifying information relating to a DNA profile of an offender on the serious offenders index of the Commonwealth DNA database system is removed from the system as soon as practicable after becoming aware that the offender has been pardoned or acquitted of the offence concerned or if the conviction has been quashed.
Penalty: Imprisonment for 2 years.
Note:
See subsection 23WA(1) for responsible person .
(4)
In this section:
identifying information
means any information that could be used:
(a) to discover the identity of the person from whose forensic material the DNA profile was derived; or
(b) to get information about an identifiable person.
identifying period
for a DNA profile means the following:
(a) except as provided by paragraphs (b) and (c), the period of 12 months after the DNA profile is placed on the Commonwealth DNA database system;
(b) if the DNA profile is derived from forensic material taken from a volunteer - such period after the DNA profile is placed on the Commonwealth DNA database system as is agreed by the Commissioner and the volunteer (or, in the case of a volunteer who is a child or an incapable person, a parent or guardian of the volunteer);
(c) if the DNA profile is derived from forensic material taken from a deceased person (not being a person who was a volunteer) whose identity is known - such period as the Commissioner orders the responsible person to retain identifying information relating to the profile.
Division 9 - General provisions relating to operation of this Part SECTION 23YDA Interpreters (1)
Where:
(a) a constable proposes to take an action listed in subsection (2); and
(b) the constable believes on reasonable grounds that the suspect, offender or volunteer is unable, because of inadequate knowledge of the English language or a physical disability, to communicate orally with reasonable fluency in the English language;
the constable must, before taking the proposed action, arrange for the presence of an interpreter, and defer taking the proposed action until the interpreter is present.
(2)
The actions are as follows:
(a) asking a suspect to consent to a forensic procedure (Division 3), asking an offender to consent to a forensic procedure (Division 6A) or asking a volunteer to consent to a forensic procedure (Division 6B);
(b) ordering the carrying out of a non-intimate forensic procedure on a suspect who is in custody (Division 4) or on an offender who is in custody (Division 6A);
(c) applying to a magistrate for a final order or an interim order for the carrying out of a forensic procedure on a suspect (Division 5), applying to a judge or magistrate for an order for the carrying out of a forensic procedure on an offender (Division 6A) or applying to a magistrate for an order under section 23XWU for the carrying out of a forensic procedure on a child or incapable person;
(d) cautioning a suspect, offender or volunteer (Division 6);
(e) carrying out, or arranging for the carrying out of, a forensic procedure on a suspect, offender or volunteer (Division 6);
(f) giving a suspect, offender or volunteer an opportunity to view a video recording made under this Part (section 23YF).
SECTION 23YE Powers etc. of legal representatives and interview friends (1)
A request or objection that may be made by a suspect or offender under this Part may be made on the suspect's or offender's behalf by:
(a) in any case-the suspect's or offender's legal representative; or
(b) if the suspect or offender is a child or an incapable person-an interview friend of the suspect or offender; or
(c) if the investigating constable believes on reasonable grounds that the suspect or offender is an Aboriginal person or a Torres Strait Islander-an interview friend of the suspect or offender.
(2)
If:
(a) a provision of this Part requires a suspect or offender to be informed of a matter; and
(b) an interview friend or legal representative of the suspect is present when the suspect is to be so informed; and
(c) the suspect or offender is so informed in a language (including in sign language or braille) in which the suspect's or offender's interview friend or legal representative is not able to communicate with reasonable fluency;
the interview friend or legal representative must also be informed of the matter in a language in which the interview friend or legal representative is able to communicate with reasonable fluency.
[ †CCH Note: Act No 22 of 2001, s 3 and Sch 1 item 68, provides for the insertion of ``or offender'' after ``suspect'' in s 23YE(2)(b). Since ``suspect'' appears twice in para (b), the consolidation was not able to be effected.]
SECTION 23YF Obligation of investigating constables relating to tape recordings (1)
If a tape recording is made as required by a provision of this Part, the investigating constable must ensure that:
(a) if an audio recording only or a video recording only is made - the recording, or a copy of it, is made available to the suspect, offender or volunteer; and
(b) if both an audio recording and a video recording are made:
(i) the audio recording, or a copy of it, is made available to the suspect, offender or volunteer; and
(ii) the suspect, offender or volunteer is given an opportunity to view the video recording; and
(c) in any case, if a transcript of the tape recording is made - a copy of the transcript is made available to the suspect, offender or volunteer.
Note 1:
If a forensic procedure is carried out as a result of a request by a foreign country or an international tribunal, a copy of anything made may also be provided to that country or tribunal: see section 23YQB.
Note 2:
If a forensic procedure is carried out as a result of a request by a foreign law enforcement agency, a copy of anything made may also be provided to the foreign law enforcement agency: see subsections 23YQD(3) and (4).
(2)
Where an investigating constable is required to ensure that a suspect, offender or volunteer is given an opportunity to view a video recording made under this Part, the investigating constable must ensure that the same opportunity is given to:
(a) in any case - the suspect's, offender's or volunteer's legal representative; and
(b) if the suspect, offender or volunteer is a child or an incapable person - an interview friend of the suspect, offender or volunteer; and
(c) if the investigating constable believes on reasonable grounds that the suspect, offender or volunteer is an Aboriginal person or a Torres Strait Islander - an interview friend of the suspect, offender or volunteer.
(3)
If section 23YD requires forensic material taken from a suspect, offender or volunteer by a forensic procedure to be destroyed, the investigating constable must ensure that any video recording of the carrying out of the forensic procedure is also destroyed.
SECTION 23YG Material required to be made available to suspect (1)
Material from samples, copies, or any other material, that must be made available to a suspect, offender or volunteer under this Part:
(a) may be sent to the suspect, offender or volunteer at his or her last known address (if any), or to the suspect's, offender's or volunteer's legal representative (if any) at his or her last known address; or
(b) if there is no known address as mentioned in paragraph (a)-may be made available for collection by the suspect, offender or volunteer at the police station where the investigating constable was based at the time the forensic procedure was carried out.
(2)
Subject to subsection (3), material of any kind that is required by this Part to be made available to a suspect, offender or volunteer must be made available in accordance with subsection (1):
(a) within 14 days after the material comes into existence; or
(b) if the material is requested by the suspect, offender or volunteer or the suspect's, offender's or volunteer's interview friend or legal representative, within 14 days of the request.
(3)
Subsection (2) does not apply to:
(a) copies of records required to be made available under subsection 23XE(5); and
(b) material required to be provided under section 23XU; and
(c) copies of results of analysis and other information required to be provided under section 23XW.
SECTION 23YH 23YH No charge to be made for giving material etc. to suspects, offenders and volunteers
If a provision of this Part requires material of any kind to be given to a suspect, offender or volunteer, or an opportunity to view a video recording to be given to a suspect, offender or volunteer, the material or the opportunity to view the video must be given without charge.
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that a constable had a belief on reasonable grounds, or suspected on reasonable grounds, as to a matter referred to in this Part. SECTION 23YJ 23YJ Proof of impracticability
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that it was not practicable to do something required by this Part to be done if practicable. SECTION 23YJA 23YJA Proof that time should be disregarded
In any proceedings, the burden lies on the prosecution to prove on the balance of probabilities that any particular time was covered by a provision of subsection 23WLA(2), 23XGB(2) or 23XGD(2). SECTION 23YK 23YK Proof of voluntary waiver of certain rights
In any proceedings:
(a) the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived a right as mentioned in subsection 23WG(3) or subsection 23XR(3); and
(b) the burden is not discharged unless the court is satisfied on the balance of probabilities that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing. SECTION 23YKA 23YKA Application of sections 23YI to 23YK
To avoid doubt, sections 23YI to 23YK do not apply in relation to a proceeding in a foreign country or international tribunal in which forensic evidence is provided in response to a request by:
(a) a foreign country; or
(b) an international tribunal; or
(c) a foreign law enforcement agency.
No civil or criminal liability is incurred by any person (including a constable) who carries out, or helps to carry out, a forensic procedure under this Part in respect of anything properly and necessarily done in good faith by the person in carrying out or helping to carry out the forensic procedure if the person believed on reasonable grounds that:
(a) informed consent had been given to the carrying out of the forensic procedure; or
(b) the carrying out of the forensic procedure without informed consent had been duly ordered by a constable or magistrate under this Part.
Note:
This section does not provide any protection in respect of action taken maliciously.
Nothing in this Part requires a medical practitioner, nurse, dentist, dental technician or appropriately qualified person to carry out a forensic procedure. SECTION 23YN Retention of electronic recordings (1)
A tape recording made by a constable in accordance with this Part that is no longer required for investigative or evidentiary purposes may be retained for such other purposes, and for such period, as the Commissioner directs.
(2)
A recording that is retained under this section is to be stored so as to protect it against unauthorised access or use by any person.
SECTION 23YO DISCLOSURE OF INFORMATION (1)
A person commits an offence if:
(a) the person has access to any information stored on the Commonwealth DNA database system or NCIDD or to any other information revealed by a forensic procedure carried out on a suspect, offender or volunteer; and
(b) the person's conduct causes the disclosure of information other than as provided by this section; and
(c) the person isreckless as to any such disclosure.
Penalty: Imprisonment for 2 years.
(1A)
Paragraph (1)(a) does not apply to access to information stored on NCIDD in the circumstances permitted by subsection 23YDACA(2).
(2)
A person may only disclose information stored on the Commonwealth DNA database system or NCIDD for one or more of the following purposes:
(a) the purposes of forensic comparison in the course of a criminal investigation by a constable or other person prescribed by the regulations;
(b) the purposes of making the information available, in accordance with the regulations, to the person to whom the information relates;
(c) the purposes of administering the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;
(d) the purposes of any arrangement mentioned in subsection 23YUD(1) or (1A) entered into between the Commonwealth and a State or Territory for the provision of access to information contained in the Commonwealth DNA database system or a State/Territory DNA database system by law enforcement officers or by any other persons prescribed by the regulations;
(da) the purposes of assisting a foreign country or international tribunal to decide whether to make a request;
(e) the purposes of, and in accordance with, the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;
(f) the purpose of a coronial inquest or inquiry;
(g) the purposes of an investigation by the Information Commissioner or the Ombudsman of the Commonwealth or of a participating jurisdiction.
(3)
A person may only disclose information revealed by the carrying out of a forensic procedure as follows:
(a) if the person is the suspect, offender or volunteer to whom the information relates;
(b) if the information is already publicly available;
(c) in accordance with any other provision of this Part;
(d) in accordance with the Mutual Assistance in Criminal Matters Act 1987, the International Criminal Court Act 2002, the International War Crimes Tribunals Act 1995 or the Extradition Act 1988;
(e) for the purposes of the investigation of any offence or offences generally;
(f) for the purpose of a decision whether to institute proceedings for any offence;
(g) for the purpose of proceedings for any offence;
(h) for the purpose of a coronial inquest or inquiry;
(i) for the purpose of civil proceedings (including disciplinary proceedings) that relate to the way in which the procedure is carried out;
(ia) for the purpose of dealing with or investigating, under Part V or the Australian Federal Police Act 1979, an AFP conduct or practices issue (within the meaning of that Act) that relates to the way in which the procedure is carried out;
(j) for the purposes of the suspect's, offender's or volunteer's medical treatment;
(k) for the purpose of the medical treatment of the victim of an offence that there are reasonable grounds to believe was committed by the suspect;
(l) if the suspect, offender or volunteer consents in writing to the disclosure.
(4)
This section does not apply to information that cannot be used to discover the identity of any person.
Nothing in this Part affects the taking, retention or use of forensic material, or information obtained from forensic material, if the taking, retention or use of the material is authorised by or under a law of a State or a Territory.
(2)Forensic material, or information obtained from it, that was taken in accordance with a law of a State or a Territory may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.
(3) Use and retention of forensic material taken before commencement of subsection.
Forensic material, or information obtained from it, that is taken in accordance with a law of a State or a Territory, as in force immediately before the commencement of this subsection, may be retained or used for investigative, evidentiary or statistical purposes of the Commonwealth. The material or information may be retained or used even if its retention or use would, but for this subsection, constitute a breach of, or failure to comply with, any provision of this Part relating to the carrying out of forensic procedures.
The analysis for the Commonwealth of forensic material obtained as a result of the carrying out of a forensic procedure under this Part must be carried out in an accredited laboratory.
The Commissioner of the Australian Federal Police may delegate all or any of his or her functions and powers under this Part to a constable or AFP appointee.
(2)
In subsection (1), AFP appointee has the meaning it has in the Australian Federal Police Act 1979.
This Subdivision applies if:
(a) a request is made by a foreign country or an international tribunal (the requesting entity ) for a forensic procedure to be carried out on a person; and
(b) the Attorney-General authorises, under the authorising provision relating to the request, an authorised applicant to apply to a magistrate for the carrying out of the forensic procedure on the person.
Any forensic evidence resulting from the forensic procedure must be provided to the requesting entity in accordance with a direction described in subsection (3).
(2)
Material (or a copy) relating to the request that was made available to, or viewed by, a person under subsection 23YF(1) (about recordings) may only be provided to the requesting entity in accordance with a direction described in subsection (3).
(3)
The direction is one given by the Attorney-General under the following provision:
(a) section 28C of the Mutual Assistance in Criminal Matters Act 1987, if the request was made by a foreign country;
(b) section 76B of the International Criminal Court Act 2002, if the request was made by the ICC;
(c) section 32C of the International War Crimes Tribunals Act 1995, if the request was made by a War Crimes Tribunal.
(4)
This section does not limit the directions that can be given under that provision.
This Subdivision applies if a request is made by a foreign law enforcement agency that a forensic procedure be carried out on:
(a) a suspect in relation to a foreign serious offence who has given informed consent to the forensic procedure; or
(b) a volunteer.
Note:
This includes a request by an authority or person responsible to an international tribunal for investigating or prosecuting a crime or an offence within the jurisdiction of the tribunal.
The Commissioner may provide forensic evidence to a foreign law enforcement agency if the Commissioner is satisfied that:
(a) the foreign law enforcement agency has given appropriate undertakings in relation to the retention, use and destruction of the forensic evidence; and
(b) it is appropriate, in all the circumstances of the case, to do so.
(2)
If forensic evidence is to be provided to the foreign law enforcement agency, a copy of the tape recording or the written record mentioned in section 23WL (suspects) or 23XWS (volunteers) may also be provided to the foreign law enforcement agency.
(3)
If an audio recording, a copy of it, or a copy of a transcript of a tape recording is made available to a suspect or volunteer (as required by subsection 23YF(1)), a copy of the audio recording or the transcript, or both, as the case may be, may also be provided to the foreign law enforcement agency.
(4)
If:
(a) a video recording or a copy of it is made available to a suspect or volunteer (as required by subsection 23YF(1)); or
(b) both an audio recording and a video recording are made and the suspect or volunteer is given an opportunity to view the video recording (as required by subsection 23YF(1));
a copy of the video recording may also be provided to the foreign law enforcement agency.
This Part does not authorise the carrying out of a forensic procedure on a person who is under 10 years of age.
This Part does not apply to the taking of hand prints, finger prints, foot prints or toe prints:
(a) from a suspect who is under 18 years of age or is incapable of managing his or her affairs, if the suspect has been arrested and charged as mentioned in section 3ZJ; or
(b) from a suspect who is at least 18 years of age and is capable of managing his or her affairs, if the suspect is in lawful custody in respect of an offence as mentioned in section 3ZJ.
Note:
Part IAA deals with the taking of identification material as defined in subsection 3ZJ(1) (which includes prints) from suspects described in paragraphs 23YR(a) and (b).
Nothing in this Part is intended to limit the rights and protections provided by Part IC to the extent that the provisions of that Part can operate in circumstances covered by this Part.
(2)
The rights and protections conferred by this Part are in addition to those conferred by Part IC but, to the extent (if any) that compliance with this Part results in compliance with Part IC, the requirements of Part IC are satisfied.
SECTION 23YT 23YT Part does not apply to forensic procedures on non-suspects
(Repealed by No 22 of 2001)
This Part is not intended to limit or exclude the operation of another law of the Commonwealth or of a law of a State or Territory relating to:
(a) the carrying out of forensic procedures, including procedures not referred to in this Part; or
(aa) without limiting paragraph (a), the carrying out of breath analysis or a breath test or the production of samples of blood and urine to determine the level of alcohol or drugs, if any, present in a person's body; or
(b) thetaking of forensic samples, including samples not referred to in this Part; or
(c) the taking of identification evidence; or
(d) the carrying out of searches of the person; or
(e) the retention or use of forensic material or information obtained as a result of activities described in paragraphs (a), (b), (c) and (d).
(2)
To avoid any doubt, it is declared that even though another law of the Commonwealth provides power to do one or more of the things referred to in subsection (1), a similar power conferred by this Part may be used despite the existence of the power under the other law.
Division 11 - Interjurisdictional enforcement
In this Part:
(a) in relation to a participating jurisdiction other than the Australian Capital Territory - an authority exercising, in relation to the police force of that jurisdiction, functions corresponding to those of the Commissioner and any other authority prescribed by the regulations; or
(b) in relation to the Australian Capital Territory - the Commissioner and any other authority prescribed by the regulations.
corresponding
law
means a law that:
(a) relates to the carrying out of forensic procedures and DNA databases; and
(b) either:
(i) substantially corresponds to this Part; or
(ii) is prescribed by the regulations for the purposes of this definition.
(Repealed by No 41 of 2003)
participating jurisdiction
means a
State or Territory in which there is a corresponding law in force.
responsible
Minister
of a participating jurisdiction means a Minister
of that jurisdiction who is responsible for administration of a corresponding
law.
The Minister may enter into arrangements with the responsible Ministers of the participating jurisdictions for the establishment and maintenance, in one or more of those jurisdictions, of a register of orders for the carrying out of forensic procedures made under this Part or corresponding laws of participating jurisdictions.
(1A)
The orders mentioned in subsection (1) do not include an order made in response to a request by a foreign country or international tribunal.
(2)
An order is registered when a copy of the order (being a copy certified by the person who made it) is registered in accordance with the law of the participating jurisdiction in which the register is kept.
(3)
An application for registration of an order, or for cancellation of registration of an order, may be made by an appropriate authority.
SECTION 23YUC Carrying out of registered orders (1)
A person is authorised to carry out an intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 and not otherwise.
(1A)
A person is authorised to carry out a non-intimate forensic procedure authorised by an order under this Part that is registered in accordance with an arrangement referred to in subsection 23YUB(1) anywhere in the Commonwealth. The person is authorised to carry out the procedure in accordance with Division 6 or a corresponding law of a participating jurisdiction, and not otherwise.
(2)
A constable, or other person assisting a constable in accordance with this Part or a corresponding law of a participating jurisdiction, is not compelled by this Part, or an arrangement referred to in subsection 23YUB(1), to execute an order registered under such an arrangement.
SECTION 23YUD Database Information (1)
The Minister may, on behalf of the Commonwealth, enter into arrangements with a responsible Minister of a participating jurisdiction under which:
(a) information from the Commonwealth DNA database system is to be transmitted to the appropriate authority in the participating jurisdiction; and
(b) information from the State/Territory DNA database system of the participating jurisdiction is to be transmitted to the Commissioner.
These arrangements may deal with keeping, and otherwise managing, such information. Subject to subsection (1B), these arrangements may also deal with using such information
(1A)
The ACC may, on behalf of the Commonwealth, enter into an arrangement with a participating jurisdiction in relation to:
(a) transmission of information to or from the Commonwealth DNA database system, or any State/Territory DNA database system; or
(b) keeping, and otherwise managing, such information; or
(c) subject to subsection (1B), using such information.
(1AA)
Subject to subsection (1B), an arrangement with a participating jurisdiction under subsection (1A) may deal with:
(a)the ACC comparing information transmitted in accordance with that arrangement with other information on NCIDD; and
(b) the ACC identifying matches that are found because of such comparisons and the ACC transmitting information arising from such matches to that participating jurisdiction.
(1AB)
Subsection (1AA) does not limit subsection (1A).
(1B)
Information that is transmitted under this section must not be used except for the purpose of:
(a) the investigation of a matter relating to the participating jurisdiction, or proceedings in respect of that matter; or
(b) the investigation of a matter relating to the Commonwealth, or proceedings in respect of that matter.
(2)
Information that is transmitted under this section must not be recorded, or maintained in any database of information that may be used to discover the identity of a person or to obtain information about an identifiable person at any time after this Part or a corresponding law of a participating jurisdiction requires the forensic material to which it relates to be destroyed.
(3)
In this section:
CrimTrac
(Repealed by No 45 of 2016)
investigation of a matter
means:
(a) in relation to a participating jurisdiction:
(i) an investigation of an offence against the law of that jurisdiction; or
(ii) an investigation of a missing person; or
(iii) an investigation for the purpose of identifying a deceased person; or
(b) in relation to the Commonwealth:
(i) an investigation of an offence against the law of the Commonwealth; or
(ii) an investigation of a missing person; or
(iii) an investigation for the purpose of identifying a deceased person.
SECTION 23YUDA 23YUDA Arrangements with prisons or other places of detention
The Commissioner may, on behalf of the Commonwealth, enter into an arrangement with the head (however described) of a prison or other place of detention in a State or Territory in relation to the carrying out of forensic procedures under this Part on offenders who are serving sentences of imprisonment in that prison or other place of detention.
In this Division:
incident
includes
a series of incidents.
permitted purpose
means
either or both of the following:
(a) the purpose of identifying an unidentified person who died in or as a result of an incident in relation to which this Division applies;
(b) the purpose of conducting a criminal investigation in relation to such an incident.
This Division applies in relation to the following incidents:
(a) the bombings that occurred in Bali, Indonesia on 12 October 2002 (local time);
(b) any incident that the Minister, by legislative instrument, determines to be an incident in relation to which this Division applies.
23YUF(2)
Before making a determination under paragraph (1)(b), the Minister must be satisfied that:
(a) if the determination would relate to an incident occurring wholly outside Australia and Norfolk Island - one or more Australian citizens or Australian residents have died in or as a result of the incident; and
(b) it is appropriate in the circumstances for this Division to apply in relation to the incident.
23YUF(2A)
The Minister must not make a determination under paragraph (1)(b) relating to an incident occurring wholly within Australia or Norfolk Island unless:
(a) the Minister suspects on reasonable grounds that the incident involves the commission of:
(i) an offence against a law of the Commonwealth; or
(ii) a State offence that has a federal aspect; or
(iii) an offence against a law of a Territory; or
(b) the Minister suspects on reasonable grounds that victims of the incident are persons of a kind with respect to whom the Commonwealth Parliament has power to make laws; or
(c) the Minister is satisfied that the incident is or has created a national emergency, including an emergency to which a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) relates.
23YUF(2B)
Without limiting paragraph (2A)(b), the reference in that paragraph to persons of a kind with respect to whom the Commonwealth Parliament has power to make laws includes references to the following:
(a) aliens;
(b) persons receiving pensions, benefits or allowances from the Commonwealth;
(c) members of the Australian Defence Force;
(d) persons employed by, or holding an office in, the Commonwealth;
(e) residents of a Territory.
23YUF(2C)
(Repealed by No 125 of 2004)
23YUF(3)
(Repealed by No 103 of 2013)
SECTION 23YUG Use of information on DNA database systems 23YUG(1)
Despite section 23YDAE, a person may access information stored on the Commonwealth DNA database system or NCIDD if:
(a) the access is for the purpose of forensic comparison under a law of a State or Territory relating to forensic procedures and DNA databases; and
(b) the forensic comparison is for a permitted purpose.
23YUG(2)
Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:
(a) the access is for the purpose of forensic comparison under this Part; and
(b) the forensic comparison is for a permitted purpose.
23YUG(3)
Despite section 23YDAE or any law of a State or Territory relating to forensic procedures and DNA databases, a person may access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if the access is for the purpose of disclosing that information under section 23YUI.
SECTION 23YUH Permissible matching of DNA profiles 23YUH(1)
Despite section 23YDAF, a person may match a DNA profile on the unknown deceased persons index of the Commonwealth DNA database system with another DNA profile on that index if the matching is for a permitted purpose.
23YUH(2)
Despite any law of a State or Territory relating to forensic procedures and DNA databases, a person may match a DNA profile on the unknown deceased persons index of a State/Territory DNA database system with another DNA profile on that index, or with another DNA profile on the unknown deceased persons index of the Commonwealth DNA database system, if the matching is for a permitted purpose.
SECTION 23YUI Disclosure of information 23YUI(1)
Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:
(a) the disclosure is to:
(i) any law enforcement agency (within the meaning of the Australian Crime Commission Act 2002); or
(ii) a foreign law enforcement agency (within the meaning of that Act); or
(iii) the International Criminal Police Organisation; or
(iv) any other agency or body of the Commonwealth, a State or a Territory, or of a foreign country, prescribed by the regulations; and
(b) the information is relevant to the activities of that agency or body; and
(c) the disclosure is for a permitted purpose.
23YUI(2)
Despite section 23YO, or any law of a State or Territory relating to forensic procedures and DNA databases, a person may disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system if:
(a) the information concerns the result of a match of an unknown deceased person's DNA profile with a missing person's DNA profile; and
(b) the disclosure is made to a relative, guardian, spouse, de facto partner or friend of the deceased person.
SECTION 23YUJ 23YUJ This Division does not restrict operation of this Part
This Division does not limit the circumstances in which a person may:
(a) access information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system; or
(b) match a DNA profile on an index of the Commonwealth DNA database system or a State/Territory DNA database system; or
(c) disclose information stored on the Commonwealth DNA database system, NCIDD or a State/Territory DNA database system;under this Part.
Note:
See section 23YU on the effect of this Part on other laws.
(Repealed by No 31 of 2018)
The Minister must cause an independent review of:
(a) the operation of this Part; and
(b) the extent to which the forensic procedures permitted by this Part have contributed to the conviction of suspects; and
(ba) the effectiveness of independent oversight and accountability mechanisms for the DNA database system; and
(bb) any disparities between the legislative and regulatory regimes of the Commonwealth and participating jurisdictions for the collection and use of DNA evidence; and
(bc) any issues relating to privacy or civil liberties arising from forensic procedures permitted by this part; and
(c) any other matter in relation to this Part which, in the Minister's view, should be considered;
to be undertaken as soon as possible after the first anniversary of the commencement of Schedule 1 to the Crimes Amendment (Forensic Procedures) Act 2001 referred to in subsection 2(2) of that Act.
(2)
A person who undertakes the review must give the Minister a written report of the review.
(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
(4)
In this section:
independent review
means a review undertaken by persons who:
(a) in the Minister's opinion, possess appropriate qualifications to undertake the review; and
(b) include a nominee of the Attorney-General, a nominee of the Commissioner of the Australian Federal Police, a nominee of the Director of Public Prosecutions, a nominee of the Ombudsman and a person nominated by the Information Commissioner in the performance of the privacy functions (within the meaning of the Australian Information Commissioner Act 2009).
(5)
If a written report tabled under subsection (3) identifies inadequacies in respect of the matters referred to in subsection (1):
(a) the Minister must cause persons to commence, no later than 1 November 2009, a further independent review to ascertain whether the inadequacies have been effectively dealt with; and
(b) subsections (2), (3) and (4) apply in relation to the report of that further review in the same manner as they apply in respect of the report of the original review.
Part IE - Forfeiture of child abuse material
This Part applies to a thing (the forfeitable thing ) that is:
(a) child abuse material; or
(b) (Repealed by No 72 of 2019)
(c) any of the following that contains child abuse material:
(i) a computer;
(ii) a data storage device;
(iii) another piece of electronic equipment.
Application
(1)
This section applies if a constable reasonably believes that the forfeitable thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence.
Power to give forfeiture notice
(2)
The constable may give a notice (the forfeiture notice ) described in subsection (3) to:
(a) a person who owns the forfeitable thing (either alone or with other persons); or
(b) if the constable is unable, after reasonable inquiry, to identify such a person:
(i) the person who possesses the thing; or
(ii) if the thing has been seized under a law of the Commonwealth, a State, a Territory or a foreign country - the person who would possess it apart from that seizure.
Content of forfeiture notice
(3)
The forfeiture notice is a notice that:
(a) identifies the forfeitable thing; and
(b) states the constable's belief that the thing is derived from, or was used in connection with, the commission of a Commonwealth child sex offence; and
(c) states that the thing will be forfeited to the Commonwealth 30 days after the notice is given, unless any of the following persons object to the forfeiture by written notice given before the end of that period to the head of the police force that includes the constable:
(i) a person who owns the thing (either alone or with other persons);
(ii) a person who has a right to possess the thing; and
(d) explains the circumstances in which, under section 23ZC, a person may be given a copy of parts of the thing, or of data contained in the thing, on request to the head of the police force made within 30 days after the notice is given; and
(e) explains the effect of forfeiture of the thing; and
(f) explains the circumstances in which compensation is payable in connection with forfeiture of the thing; and
(g) requests a person claiming compensation for forfeiture of the thing to notify the head of the police force of the claim.
Giving copy of forfeiture notice to others affected
(4)
If the constable gives the forfeiture notice to a person described in subsection (2), the constable may also give a copy of the notice to anyone whom the constable reasonably believes will be directly or indirectly affected by the proposed forfeiture of the forfeitable thing.
Effect of giving forfeiture notice
(5)
If there is not an objection described in paragraph (3)(c), the forfeitable thing is forfeited to the Commonwealth (by force of this subsection) at the end of the period described in that paragraph.
(6)
If there is an objection described in paragraph (3)(c) but the head of the police force that includes the constable considers that the forfeitable thing should be forfeited to the Commonwealth despite the objection:
(a) the head of the police force must instruct the Director of Public Prosecutions to apply for an order under section 23ZD for the forfeiture of the thing; and
(b) the Director must make the application.
Objection or lack of one does not affect prosecution
(7)
Evidence of the fact that a person described in paragraph (3)(c) objected or did not object as described in that paragraph is not admissible against the person in a prosecution of the person for a Commonwealth child sex offence.
This section applies if:
(a) the forfeitable thing is identified in a forfeiture notice given by a constable; and
(b) less than 30 days after the notice is given, a person who was given the notice or who would be directly or indirectly affected by the proposed forfeiture of the thing gives a written request to the head of the police force that includes the constable; and
(c) the request is for the person to be given a copy of parts of the thing, or of data contained in the thing, that:
(i) are specified in the request clearly enough to enable the parts or data to be identified readily; and
(ii) are not child abuse material.
(2)
The head of the police force must comply with the request if he or she is satisfied that it is reasonably practicable to do so.
(3)
However, the head of the police force need not comply with the request if he or she reasonably believes:
(a) that to do so might endanger the safety of anyone or prejudice an investigation or prosecution; or
(b) that possession by the person of the copy could constitute an offence against a law of the Commonwealth, a State or a Territory.
(4)
If:
(a) the head of the police force complies with the request; and
(b) a court convicts the person of a Commonwealth child sex offence and is satisfied on the balance of probabilities that the forfeitable thing is derived from, or was used in connection with, the commission of the offence;
the court may order the person to pay the Commonwealth, State or Territory whose police force incurred costs in complying with the request those costs.
Court to order forfeiture on application if offence committed
(1)
If, on application by the Director of Public Prosecutions to a court of a State or Territory, the court is satisfied that a Commonwealth child sex offence has been committed or that a person is or has been convicted of a Commonwealth child sex offence (by the court or another court), the court must order the forfeiture to the Commonwealth of all the things that the court is satisfied:
(a) are forfeitable things derived from, or used in connection with, the commission of the offence; and
(b) have not already become property of the Commonwealth.
Note 1:
It does not matter whether the Director of Public Prosecutions makes the application on his or her own initiative or because of section 23ZB.
Note 2:
It does not matter whether the court is satisfied in the course of criminal proceedings or civil proceedings that the Commonwealth child sex offence has been committed.
Notice of application
(2)
The Director of Public Prosecutions must give written notice of the application to anyone:
(a) who claims to own, or have a right to possess, a thing covered by the application; or
(b) whom the Director reasonably believes would be directly or indirectly affected by the proposed forfeiture.
Interim orders
(3)
At any time after the application is made to the court, it may make any interim orders it considers appropriate (such as orders relating to the delivery or retention of things pending the court's decision on the application, and orders relating to the making and provision of copies of things).
Circumstances that do not prevent court ordering forfeiture
(4)
An order under subsection (1):
(a) may be made even if a person entitled to be given notice of the application fails to appear at the hearing of the application; and
(b) need not be based on a finding as to the commission of a particular Commonwealth child sex offence; and
(c) can be based on a finding that some such offence was committed; and
(d) need not be based on a finding that a particular person committed a Commonwealth child sex offence.
Court may order compensation for forfeiture
(5)
The court may order the Commonwealth to pay a specified reasonable amount of compensation to a person who owns, has a right to possess or has other property in a thing whose forfeiture the court orders if the thing is a computer, data storage device or other electronic equipment and the court is satisfied that:
(a) the person has appeared at the hearing of the application; and
(b) the person did not commit, is not and has not been convicted (by the court or another court) of, and has not been found by another court in civil proceedings to have committed, the Commonwealth child sex offence; and
(c) the person is not the subject of proceedings in another court relating to the Commonwealth child sex offence and has not been the subject of such proceedings in connection with which an appeal may still be lodged as of right; and
(d) the person is not the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence.
Standard of proof for forfeiture and compensation orders
(6)
The standard of proof for subsections (1) and (5) is the balance of probabilities.
This section applies if a thing is forfeited to the Commonwealth under this Part.
(2)
When the thing is forfeited it becomes the property of the Commonwealth.
(3)
A constable may, without warrant, seize the thing.
(4)
The Commissioner may deal with the thing in any way he or she considers appropriate (including by destroying the thing).
(5)
However, if the thing is in the custody of a constable who is a member of a police force of a State or Territory, the head of the police force may deal with the thing in any way he or she considers appropriate (including by destroying the thing).
(6)
Subsections (3), (4) and (5) have effect despite section 9.
This section applies to a person if:
(a) a thing that is a computer, data storage device or other electronic equipment is forfeited under this Part; and
(b) the person owned, had a right to possess or had other property in the thing immediately before the forfeiture.
(2)
The Commonwealth is liable to pay the person a reasonable amount of compensation for the forfeiture.
(3)
If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction of a State or Territory for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(4)
However, the court is not to determine an amount of compensation for the person while:
(a) the person is the subject of an investigation into a Commonwealth child sex offence of which the thing provides evidence; or
(b) the person is the subject of proceedings (other than those under subsection (3)) relating to a Commonwealth child sex offence from which the thing was allegedly derived or in connection with which the thing was allegedly used; or
(c) an appeal may be lodged as of right in relation to proceedings covered by paragraph (b).
(5)
Subsection (2) does not apply if the person is or has been convicted of, or found by a court in civil proceedings (including proceedings under subsection (3)) to have committed, a Commonwealth child sex offence to which the forfeiture relates.
The head of a police force (including the Commissioner) may, by writing, delegate to a constable who is a member of the force all or any of the head's powers, functions and duties under this Part.
(Repealed by No 65 of 2002)
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
(Repealed by No 144 of 2005)
(Repealed by No 144 of 2005)
(Repealed by No 144 of 2005)
(Repealed by No 144 of 2005)
(Repealed by No 144 of 2005)
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
SECTION 27
27
Unlawful drilling
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
(Repealed by No 67 of 2018)
(Repealed by No 137 of 2000)
(Repealed by No 137 of 2000)
(Repealed by No 137 of 2000)
(Repealed by No 137 of 2000)
(Repealed by No 137 of 2000)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
(Repealed by No 127 of 2010)
If at any time the Governor-General is of opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States, he or she may make a Proclamation to that effect, which Proclamation shall be and remain in operation for the purposes of this section until it is revoked.
(2)
Any person who, during the operation of such Proclamation, takes part in or continues, or incites to, urges, aids or encourages the taking part in, or continuance of, a lock-out or strike:
(a) in relation to employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States; or
(b) in relation to employment in, or in connexion with, the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
commits an offence, and shall be liable on conviction to imprisonment for any period not exceeding one year.
(3)
For the purposes of this section:
employee
includes any person whose usual occupation is as an employee.
employer
includes any person whose usual occupation is as an employer.
lock-out
includes the closing of a place or part of a place of employment, if the closing is unreasonable, and the total or partial refusal of employers, acting in combination, to give work, if the refusal is unreasonable, or the total or partial suspension of work by an employer, if the suspension is unreasonable, with a view to compel his or her employees, or to aid another employer in compelling his or her employees, to accept any term or condition of employment.
strike
includes the total or partial cessation of work by employees, acting in combination, if the cessation is unreasonable, as a means of enforcing compliance with demands made by them or by other employees on employers, and the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable, and also includes job control.
SECTION 30K 30K Obstructing or hindering the performance of services
Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind to whomsoever directed, or, without reasonable cause or excuse, by boycott or threat of boycott of person or property:
(a) (Repealed by No 137 of 2000)
(b) compels or induces any person employed in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth to surrender or depart from his or her employment;
(c) prevents any person from offering or accepting employment in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
(d) obstructs or hinders the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;
(e) compels or induces any person employed in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States to surrender or depart from his or her employment; or
(f) prevents any person from offering or accepting employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;
commits an offence.
Penalty: Imprisonment for 1 year.
(Repealed by No 127 of 2010)
In this Act:
federal judicial proceeding
means:
(a) a judicial proceeding in or before:
(i) a federal court; or
(ii) a court exercising federal jurisdiction; or
(iii) a court of a Territory; or
(b) a judicial proceeding before a body or person acting under a law of:
(i) the Commonwealth; or
(ii) a Territory.
judicial proceeding
means (other than in section 3L):
(a) a proceeding in or before a court; or
(b) a proceeding:
(i) before a body, or a person, acting under a law of the Commonwealth, of a State or of a Territory; and
(ii) in which evidence may be taken on oath.
judicial tribunal
means a body or person (other than a court) before whom a judicial proceeding is conducted.
(Repealed by No 137 of 2000)
(Repealed by No 137 of 2000)
Excessive and unreasonable bail
34(1)
A person commits an offence if:
(a) the person is a judge or magistrate; and
(b) the judge or magistrate is required or authorised by law to admit a person accused of an offence to bail; and
(c) the judge or magistrate requires excessive and unreasonable bail; and
(d) the requirement is an abuse of the judge's or magistrate's office; and
(e) the offence referred to in paragraph (b) is an offence against a law of the Commonwealth.
Penalty: Imprisonment for 2 years.
34(2)
Subsection (1) does not apply if the judge or magistrate has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
34(3)
Absolute liability applies to the paragraph (1)(e) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
Acting when interested
34(4)
A person commits an offence if:
(a) the person is a judge or magistrate; and
(b) the judge or magistrate perversely exercises jurisdiction in a matter; and
(c) the judge or magistrate has a personal interest in the matter; and
(d) the jurisdiction is federal jurisdiction.
Penalty: Imprisonment for 2 years.
34(5)
Absolute liability applies to the paragraph (4)(d) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
A person commits an offence if:
(a) the person gives false testimony touching a matter; and
(b) the person does so:
(i) in a judicial proceeding; or
(ii) with the intention of instituting a judicial proceeding; and
(c) the matter is material in the judicial proceeding; and
(d) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
35(2)
Strict liability applies to the paragraph (1)(c) element of the offence,
Note:
For strict liability, see section 6.1 of the Criminal Code.
35(3)
Absolute liability applies to the paragraph (1)(d) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
35(4)
For the purposes of this section, it is immaterial:
(a) whether the testimony is given:
(i) on oath or not on oath; or
(ii) orally or in writing; or
(b) whether the court or judicial tribunal to which the testimony is given:
(i) is properly constituted; or
(ii) is held in the proper place; or
(c) whether the person who gave the testimony is a competent witness; or
(d) whether the testimony is admissible.
A person commits an offence if:
(a) the person:
(i) fabricates evidence; or
(ii) makes use of fabricated evidence; and
(b) the person does so with the intention of misleading a court or judicial tribunal in a judicial proceeding; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
36(2)
Absolute liability applies to the paragraph (1)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
A person (the first person ) commits an offence if:
(a) the first person:
(i) threatens, intimates or restrains another person; or
(ii) uses violence to, or inflicts an injury on, another person; or
(iii) causes or procures violence, damage, loss or disadvantage to another person; or
(iv) causes or procures the punishment of another person; and
(b) the first person does so on account of the other person having appeared, or being about to appear, as a witness in a judicial proceeding; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
36A(2)
Absolute liability applies to the paragraph (1)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
Agreements or understandings
37(1)
A person (the first person ) commits an offence if:
(a) the first person:
(i) gives, confers or procures any property, or benefit, of any kind to, upon or for another person; or
(ii) promises or offers to give, to confer, to procure or to attempt to procure any property, or benefit, of any kind to, upon or for another person; or
(iii) asks for, receives or obtains any property, or benefit, or any kind for himself or herself or another person; or
(iv) agrees to receive or to obtain any property, or benefit, or any kind for himself or herself or another person; and
(b) the first person does so upon an agreement or understanding that any person called, or to be called, as a witness in a judicial proceeding will:
(i) give false testimony; or
(ii) withhold true testimony; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
37(2)
Absolute liability applies to the paragraph (1)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
Inducing false testimony
37(3)
A person commits an offence if:
(a) the person does an act; and
(b) the person does so with the intention of inducing a person called, or to be called, as a witness in a judicial proceeding:
(i) to give false testimony; or
(ii) to withhold true testimony; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
37(4)
Absolute liability applies to the paragraph (3)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
A person (the first person ) commits an offence if:
(a) the first person:
(i) practises any fraud or deceit to a person called, or to be called, as a witness in a judicial proceeding; or
(ii) makes or exhibits any false statement, representation, token or writing to a person called, or to be called, as a witness in a judicial proceeding; and
(b) the first person does so with the intention of affecting the testimony of the other person; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 2 years.
38(2)
Absolute liability applies to the paragraph (1)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
A person commits an offence if:
(a) the person knows that a book, document or thing of any kind is, or may be, required in evidence in a judicial proceeding; and
(b) the person:
(i) destroys the book, document or thing; or
(ii) renders the book, document or thing illegible, undecipherable or incapable of identification; and
(c) the person does so with the intention of preventing the book, document or thing from being used in evidence; and
(d) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 5 years.
39(2)
Absolute liability applies to the paragraph (1)(d) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.
A person (the first person ) commits an offence if:
(a) another person has been subpoenaed or summoned to attend as a witness in a judicial proceeding; and
(b) the first person prevents the other person from attending as a witness, or from producing anything in evidence, pursuant to the subpoena or summons; and
(c) the judicial proceeding is a federal judicial proceeding.
Penalty: Imprisonment for 1 year.
40(2)
Absolute liability applies to the paragraph (1)(c) element of the offence.
Note:
For absolute liability, see section 6.2 of the Criminal Code.