An Act relating to Offences against the Commonwealth
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Crimes
Act 1914.
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.
ACC authorising officer has the meaning given
in subsection 15J(4).
ACLEI authorising officer has the meaning
given in subsection 15J(3A).
AFP authorising officer has the meaning given
in subsection 15J(3).
appropriate authorising officer, in relation
to a certificate given under section 15M, means:
(a) if the certificate is given by an
AFP authorising officer—any AFP authorising officer; or
(aa) if the certificate is given by an
ACLEI authorising officer—any ACLEI authorising officer; or
(b) if the certificate is given by an
ACC authorising officer—any ACC authorising officer.
associated offence means:
(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:
(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, in relation to a
controlled operation, has the meaning given in section 15J.
bail authority means a court or person
authorised to grant bail under a law of the Commonwealth, a State or a
Territory.
Commissioner means the Commissioner of the
Australian Federal Police.
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); and
(c) for the purposes of section 70,
a person who, although not holding office under, or employed by, the
Commonwealth, a Territory or a public authority under the Commonwealth,
performs services for or on behalf of the Commonwealth, a Territory or a public
authority under the Commonwealth; and
(d) for
the purposes of section 70:
(i) a person who is an
employee of the Australian Postal Corporation;
(ii) a person who performs
services for or on behalf of the Australian Postal Corporation; and
(iii) an employee of a
person who performs services for or on behalf of the Australian Postal
Corporation.
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 has the meaning given by
section 15H.
controlled substance means:
(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.
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.
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.
illicit goods means goods the possession of
which is a contravention of a law of the Commonwealth, a State or a Territory.
Integrity Commissioner has the same meaning
as in the Law Enforcement Integrity Commissioner Act 2006.
law enforcement officer 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 ACLEI;
(c) a member of the staff of the ACC;
(d) an officer of the Australian
Customs Service;
(e) a member of a police force, or
other law enforcement agency, of a foreign country.
major controlled operation has the meaning
given in subsection 15J(2A).
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.
nominated Tribunal member has the meaning
given in section 15OC.
nurse means a registered nurse within the
meaning of the Health Insurance Act 1973.
Official Trustee means the Official Trustee
in Bankruptcy.
person targeted, in relation to a controlled
operation, means the person:
(a) about whom it is intended to
obtain evidence; or
(b) about whom evidence is being, or
has been, obtained;
through the operation.
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 January, 30 April, 31 July or 31 October.
Queen’s dominions includes a British
protectorate and a British protected State.
senior executive AFP employee has the same
meaning as in the Australian Federal Police Act 1979.
staff member of ACLEI has the same meaning as
in the Law Enforcement Integrity Commissioner Act 2006.
State includes the Northern Territory.
State offence means an offence against a law
of a State or the Australian Capital Territory.
Territory does not include the Northern
Territory.
terrorism offence means:
(a) an offence against Subdivision A
of Division 72 of the Criminal Code; or
(b) an offence against Part 5.3
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.
(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 or a literary proceeds 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
(iv) by a superannuation
order made under the Crimes (Superannuation Benefits) Act 1989; or
(b) to costs or other amounts ordered
to be paid by offenders.
3AA
State offences that have a federal aspect
Object
(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
(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 a matter relating to a relevant criminal activity that
relates to an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian
Federal Police is investigating, or were to investigate, a matter relating to a
relevant criminal activity that relates to the State offence—that investigation
is, or would be, incidental to the investigation mentioned in subparagraph (i).
Specificity of acts or omissions
(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)
(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.
(4) Subsection (3) does not limit paragraph (1)(c).
Definitions
(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.
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.
3B
Arrangements with States, Australian Capital Territory, Northern Territory
and Norfolk Island
(1) The Governor‑General may make
arrangements with the Governor of a State, the Government of the Australian
Capital Territory, the Administrator of the Northern Territory or the
Administrator of Norfolk Island 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 section 20AB:
(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, the Northern Territory
or Norfolk Island; and
(ii) if an arrangement is
in force under subsection (1) of this section in 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; and
(iv) if an arrangement is in
force under subsection (1) of this section in relation to Norfolk Island—includes
a reference to Norfolk Island.
(3) In this
section:
order includes a sentence.
State does not include the Australian Capital
Territory or the Northern Territory.
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.
Part IAA—Search, information gathering, arrest and related powers
Division 1—Preliminary
3C
Interpretation
(1) In this Part, unless the contrary
intention appears:
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 includes:
(a) information in any form; or
(b) any program (or part of a
program).
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 means a thing containing,
or designed to contain, data for use by a computer.
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.
frisk search means:
(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.
magistrate, in sections 3ZI, 3ZJ, 3ZK,
3ZN and 3ZW, has a meaning affected by section 3CA.
offence means:
(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.
police station includes:
(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.
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.
warrant means a warrant under this Part.
warrant premises means premises in relation
to which a warrant is in force.
(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.
3CA
Nature of functions of magistrate
(1) A function of making an order conferred
on a magistrate by section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW is conferred on the
magistrate in a personal capacity and not as a court or a member of a court.
(2) Without limiting the generality of subsection (1),
an order made by a magistrate under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW has
effect only by virtue of this Act and is not to be taken by implication to be
made by a court.
(3) A magistrate performing a function of, or
connected with, making an order under section 3ZI, 3ZJ, 3ZK, 3ZN or 3ZW
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).
(4) The Governor‑General may make
arrangements with the Governor of a State, the Chief Minister of the Australian
Capital Territory, the Administrator of the Northern Territory or the
Administrator of Norfolk Island 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 3ZW.
3D
Application of Part
(1) This Part is not intended to limit or
exclude the operation of another law of the Commonwealth 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 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.
(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
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 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 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.
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
(iii) evidential material
(within the meaning of the Proceeds of Crime Act 2002) or tainted
property (within the meaning of that Act);
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.
(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
(iii) evidential material
(within the meaning of the Proceeds of Crime Act 2002) or tainted
property (within the meaning of that Act);
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.
(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.
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:
(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);
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.
(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
(iii) to take forensic
samples from things;
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:
(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
(iii) evidential material
(within the meaning of the Proceeds of Crime Act 2002) or tainted property
(within the meaning of that Act);
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.
(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) If things are seized under a warrant, the
warrant authorises the executing officer to make the things available to
officers of other agencies if it is necessary to do so for the purpose of
investigating or prosecuting an offence to which the things relate.
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;
as is necessary and reasonable in the circumstances.
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.
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
(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.
3K Use
of equipment to examine or process things
(1) The
executing officer 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.
(2) A thing found at the premises 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;
(ii) there are reasonable
grounds to believe that the thing contains or constitutes evidential material;
or
(b) the occupier of the premises
consents in writing.
(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 occupier of the address
of the place and the time at which the examination or processing will be
carried out; and
(b) allow the occupier or his or her
representative to be present during the examination or processing.
(3A) The thing may be moved to another place for
examination or processing for no longer than 72 hours.
(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 72 hours or that time as previously extended.
(3C) The executing officer must give notice of
the application to the occupier of the premises, and the occupier is entitled
to be heard in relation to the application.
(4) The executing officer 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.
3L Use
of electronic equipment at premises
(1) The executing officer 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 believes on
reasonable grounds that:
(a) the data might constitute
evidential material; and
(b) the equipment can be operated
without damaging it.
Note: An executing officer can obtain an order
requiring a person with knowledge of a computer or computer system to provide
assistance: see section 3LA.
(1A) If the executing officer or constable
assisting believes on reasonable grounds that any data accessed by operating
the electronic equipment might constitute evidential material, he or she may:
(a) copy the data to a disk, tape or
other associated device brought to the premises; or
(b) if the occupier of the premises
agrees in writing—copy the data to a disk, tape or other associated device at
the premises;
and take the device from the premises.
(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:
(i) investigating an
offence against the law of the Commonwealth, a State or a Territory; or
(ii) judicial proceedings
or administrative review proceedings; or
(iii) investigating or
resolving a complaint under the Ombudsman Act 1976 in relation to the
Australian Federal Police or the Privacy Act 1988; or
(iv) 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;
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.
(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.
(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.
(4) If the executing officer or a constable
assisting believes 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.
(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.
(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.
(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 the issuing officer for an
extension of that period.
(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.
(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.
3LA
Person with knowledge of a computer or a computer system to assist access etc.
(1) The executing officer 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 the officer to do one
or more of the following:
(a) access data held in, or accessible
from, a computer that is on warrant premises;
(b) copy the data to a data storage
device;
(c) convert the data into documentary
form.
(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; 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
(iii) an employee of the
owner or lessee of the computer; and
(c) the specified person has relevant
knowledge of:
(i) the computer or a
computer network of which the computer forms a part; or
(ii) measures applied to
protect data held in, or accessible from, the computer.
(3) A person commits an offence if the person
fails to comply with the order.
Penalty: 6 months imprisonment.
3LB
Accessing data held on other premises—notification to occupier of that premises
(1) If:
(a) data that is held on premises
other than the warrant premises is accessed under subsection 3L(1); and
(b) it is practicable to notify the
occupier of the other premises 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)—include that information in the notification.
(2) A notification under subsection (1)
must include sufficient information to allow the occupier of the other premises
to contact the executing officer.
3M
Compensation for damage to electronic equipment
(1) If:
(a) damage is caused to equipment as a
result of it being operated as mentioned in section 3K or 3L; and
(b) the damage was caused as a result
of:
(i) insufficient care
being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient
care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the
equipment.
(2) Compensation is payable out of money
appropriated by the Parliament for the purpose.
(3) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises and his or
her employees and agents, if they were available at the time, had provided any
warning or guidance as to the operation of the equipment that was appropriate
in the circumstances.
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;
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
(b) possession by the occupier of the
document, film, computer file, thing or information could constitute an
offence.
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.
3Q
Receipts for things seized under warrant
(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.
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, facsimile 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, facsimile 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.
3S
Restrictions on personal searches
A warrant cannot authorise a strip
search or a search of a person’s body cavities.
Division 3—Stopping and searching conveyances
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.
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
(ii) it is not possible to
give that person such an opportunity.
Division 3A—Powers to stop, question and search persons in relation to
terrorist acts
Subdivision A—Definitions
3UA
Definitions
In this Division:
Commonwealth place means a Commonwealth place
within the meaning of the Commonwealth Places (Application of Laws) Act 1970.
police officer means:
(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.
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.
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 has the same meaning as in
subsection 100.1(1) of the Criminal Code.
vehicle includes any means of transport (and,
without limitation, includes a vessel and an aircraft).
Subdivision B—Powers
3UB
Application of Subdivision
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.
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:
(i) of the officer’s
authority to make the request; and
(ii) that it may be an
offence 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).
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 following
searches 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.
Conditions relating to conduct of search of person
(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.
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.
3UF
How seized things must be dealt with
Seizure notice to be served
(1) A police officer who is for the time
being responsible for a thing seized under section 3UE 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.
(2) 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.
Return of thing seized
(4) The owner of a thing seized under section 3UE
may request the return of the thing.
(5) A police officer who is for the time
being responsible for a thing seized under section 3UE must return the
thing to its owner if:
(a) the owner requests the return of
the thing; and
(b) neither subsection (6) nor
(7) applies.
(6) This subsection applies if the police
officer 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 or serious offence.
(7) This subsection applies if the thing is
evidence of, or relating to, a terrorist act or serious offence.
Forfeiture of thing seized
(8) 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.
Application to magistrate
(9) If:
(a) the owner of a thing requests the
return of the thing:
(i) within 90 days after
the date of the seizure notice in relation to the thing; or
(ii) if subsection (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 police officer who is for the time being responsible
for the thing must, before the end of the 95th day:
(c) return the thing to the owner; or
(d) apply to a magistrate for an order
under section 3UG.
3UG
Application to magistrate
(1) If subsection 3UF(9) applies, the police
officer may apply to a magistrate for an order in relation to the thing.
(2) The magistrate must, in determining an
application by a police officer under subsection (1), allow the owner of
the thing to appear and be heard.
(3) If the magistrate is satisfied that the
thing is evidence of, or relating to, a terrorist act or serious offence, the
magistrate must order that the thing be retained by the police officer for the
period specified in the order.
(4) If the magistrate is satisfied that there
are reasonable grounds to suspect 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 or serious offence, the magistrate may make any of the
following orders:
(a) that the thing be retained by the
police officer for the period specified in the order;
(b) that the thing is forfeited to the
Commonwealth;
(c) that the thing is to be sold and
the proceeds given to the owner;
(d) that the thing is to be otherwise
sold or disposed of.
(5) If the magistrate is not satisfied as
mentioned in subsection (3) or (4), the magistrate must order that the
thing be returned to the owner.
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 of a 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
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.
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.
Declaration has effect
(2) A declaration under this section has
effect accordingly.
Duration of declaration
(3) A declaration ceases to have effect at
the end of 28 days after it is made, 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
(ii) identifies the
prescribed security zone; and
(b) the statement to be:
(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.
Effect of failure to publish
(6) A failure to comply with subsection (5)
does not make the declaration or its revocation 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 D—Sunset provision
3UK
Sunset provision
(1) A police officer must not exercise powers
or perform duties under this Division (other than under sections 3UF and
3UG) after the end of 10 years after the day on which the Division commences.
(2) A declaration under section 3UJ that
is in force at the end of 10 years after the day on which this Division
commences 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 the end of
10 years after the day on which this Division commences.
Division 4—Arrest and related matters
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;
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.
3W
Power of arrest without warrant by constables
(1) A
constable may, without warrant, arrest a person for an offence 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.
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:
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.
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) 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.
(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.
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.
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.
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,
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.
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.
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.
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.
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.
3ZG
Power to conduct search of arrested person’s premises
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.
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, facsimile 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.
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.
3ZJ
Taking fingerprints, recordings, samples of handwriting or photographs
(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.
(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.
(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
(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.
(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.
(5) Subject to subsection (9), a
constable must not take identification material from a person who is under 10.
(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.
(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.
(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.
(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.
(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.
(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.
(11) In deciding whether to make such an order,
the magistrate must have regard to the matters set out in subsection (7).
(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.
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 investigation material 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.
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 or a photograph of the person to be taken
in accordance with the order.
(2) A person must not 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.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(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:
engage in conduct means:
(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).
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
admissable, 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.
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.
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.
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.
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
Subdivision A—Preliminary
3ZQA
Definitions
(1) In this Division:
age determination information means a
photograph (including an X‑ray photograph) or any other 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.
Commonwealth offence means:
(a) an offence against a law of the
Commonwealth, other than an offence that is a service offence for the purposes
of the Defence Force Discipline Act 1982; or
(b) a State offence that has a federal
aspect.
investigating official means:
(a) a member or special member of the
Australian Federal Police; or
(b) a member of the police force of a
State or Territory; or
(c) a person who holds an office the
functions of which include the investigation of Commonwealth offences and who
is empowered by a law of the Commonwealth because of the holding of that office
to make arrests in respect of such offences.
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, which may include the taking of an X‑ray of a part of a
person’s body, 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
3ZQB
Circumstances where investigating official may seek authority to carry out a
prescribed procedure
(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;
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.
(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.
(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.
3ZQC
Obtaining of consents for the carrying out of a prescribed procedure
(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 independent 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.
(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.
(3) The requisite consents may be given:
(a) in person; or
(b) by telephone, telex, fax or other
electronic means.
(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).
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.
3ZQE
Recording of giving of information about carrying out a prescribed procedure
and relevant responses
(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.
(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
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;
the judge or magistrate presiding may make an order
requiring the carrying out of a prescribed procedure in respect of the person.
Subdivision D—Communication of orders by judges or magistrates
3ZQG
Orders made by judges or magistrates concerning carrying out of a prescribed
procedure
(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:
(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.
(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
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.
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
3ZQJ
Disclosure of age determination information
(1) A person is guilty of 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 Privacy 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.
3ZQK
Destruction of age determination information
(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;
the information must be destroyed as soon as practicable.
(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.
(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
3ZQL
Definitions
In this Division:
authorised AFP officer means:
(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 has the meaning given by
the Federal Magistrates Act 1999.
Subdivision B—Power to request information or documents about terrorist
acts from operators of aircraft or ships
3ZQM
Power to request information or documents about terrorist acts from operators
of aircraft or ships
(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).
(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.
(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.
Offence
(4) 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.
(5) Subsection (4) is an offence of
strict liability.
Note: For strict liability, see section 6.1 of
the Criminal Code.
(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.
Definitions
(7) In this section:
operator has the meaning given by section 4
of the Customs Act 1901.
terrorist act has the meaning given by
section 100.1 of the Criminal Code.
Subdivision C—Power to obtain documents relating to serious terrorism and
non‑terrorism offences
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) state that the person must comply
with the notice as soon as practicable; 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).
3ZQO
Power to obtain documents relating to serious offences
(1) An authorised AFP officer may apply to a
Federal Magistrate 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 Magistrate 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 Magistrate 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 Magistrate must not give the notice
unless the authorised AFP officer or some other person has given to the
Magistrate, either orally or by affidavit, such further information (if any) as
the Magistrate 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).
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.
3ZQQ
Powers conferred on Federal Magistrates in their personal capacity
(1) A power conferred on a Federal Magistrate
by section 3ZQO is conferred on the Magistrate in a personal capacity and
not as a court or a member of a court.
(2) A Federal Magistrate need not accept the
power conferred.
(3) A Federal Magistrate 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
Magistrate is a member.
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;
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.
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.
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.
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).
Division 5—General
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.
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.
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.
3ZU
Offences relating to telephone warrants
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:
(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.
3ZV
Retention of things which are seized
(1) Subject to any contrary order of a court,
if a constable seizes a thing under this Part, the constable must return it if:
(a) the reason for its seizure no
longer exists or it is decided that it is not to be used in evidence; or
(b) if the thing was seized under
section 3T:
(i) the reason for its
seizure no longer exists or it is decided that it is not to be used in
evidence; or
(ii) the period of 60 days
after its seizure ends;
whichever first occurs;
unless the thing is forfeited or forfeitable to the
Commonwealth or is the subject of a dispute as to ownership.
(2) If a thing is seized under section 3T,
at the end of the 60 days specified in subsection (1) the constable 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 unless:
(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) the constable may retain the thing
because of an order under section 3ZW; or
(c) the constable is otherwise
authorised (by a law, or an order of a court, of the Commonwealth or of a State
or Territory) to retain, destroy or dispose of the thing.
3ZW
Magistrate may permit a thing to be retained
(1) If a thing
is seized under section 3T, and:
(a) before the end of 60 days after
the seizure; or
(b) before
the end of a period previously specified in an order of a magistrate under this
section;
proceedings in respect of which the thing may afford
evidence have not commenced, the constable may apply to a magistrate for an
order that he or she may retain the thing for a further period.
(2) If the magistrate is satisfied that it is
necessary for the constable to continue to retain the thing:
(a) for the purposes of an
investigation as to whether an offence has been committed; or
(b) to enable evidence of an offence
to be secured for the purposes of a prosecution;
the magistrate may order that the constable may retain the
thing for a period specified in the order.
(3) Before making the application, the
constable must:
(a) take reasonable steps to discover
who has an interest in the retention of the thing; and
(b) if it is practicable to do so,
notify each person who the constable believes to have such an interest of the
proposed application.
3ZX
Law relating to legal professional privilege not affected
This Part does not affect the law
relating to legal professional privilege.
Part IA—General
4AAA
Commonwealth laws conferring non‑judicial functions and powers on
officers
Application
(1) 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 Federal Magistrate;
(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 paragraph 26(e) of the Acts Interpretation Act 1901.
Functions and powers conferred personally
(2) 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, Federal Magistrate, State or Territory judge or
magistrate, as a court or a member of a court.
Function or power need not be accepted
(3) The person need not accept the function
or power conferred.
Protection and immunity provided
(3A) A Judge of the Federal Court of Australia
or a Federal Magistrate 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.
(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.
This section applies regardless of when Commonwealth
law made
(6) This section applies whether the law
conferring a function or power was made before, on or after, the commencement
of this section.
Contrary intention
(6A) Despite subsection (1), a rule set out
in this section does not apply if the contrary intention appears.
A law of the Commonwealth relating to criminal matters
(7) In this section, a reference to a
law of the Commonwealth relating to criminal matters includes a
reference to this Act.
4AAB
Arrangements for conferral of non‑judicial functions and powers
Governor‑General may make arrangements
(1) 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; and
(d) the Administrator of Norfolk
Island;
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 paragraph 26(e) of the Acts Interpretation Act 1901.
Lack of arrangement does not affect validity of exercise
of power or performance of function
(2) 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.
This section applies regardless of when Commonwealth
law made
(3) This section applies to functions or
powers conferred by laws made before, on or after the commencement of this
section.
A law of the Commonwealth relating to criminal matters
(4) In this section, a reference to a
law of the Commonwealth relating to criminal matters includes a
reference to this Act.
4A
Meaning of certain words
In a law of the Commonwealth, unless the
contrary intention appears:
committed for trial, in relation to a person,
means committed to prison with a view to the person being tried before a judge
and jury, or admitted to bail upon a recognizance to appear and be so tried.
indictment includes an information and a
presentment.
4AA
Penalty units
(1) In a law
of the Commonwealth or a Territory Ordinance, unless the contrary intention
appears:
penalty unit means $110.
(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 other than the Territory
of Norfolk Island; and
(b) has not become an enactment of the
Australian Capital Territory;
and includes a regulation made under such an ordinance.
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 Trade
Practices Act 1974; or
(c) a provision of a law of the
Commonwealth prescribed for the purposes of this subsection.
(4) In this
section:
penalty
includes a fine.
Territory Ordinance has the same meaning as
in section 4AA.
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:
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.
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.
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.
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.
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.
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.
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.
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) section 24AA or 24AB or
subsection 79(2) or (5) of this Act; or
(b) Division 80 or section 91.1
of the Criminal Code.
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).
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 is guilty of 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.
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.
4M
Children under 10
A child under 10 years old cannot be
liable for an offence against a law of the Commonwealth.
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.
6
Accessory after the fact
Any person who receives or assists
another person, who is, to his knowledge, guilty of any offence against a law
of the Commonwealth, in order to enable him to escape punishment or to dispose
of the proceeds of the offence shall be guilty of an offence.
Penalty: Imprisonment for 2 years.
9
Seizure and condemnation of forfeitable goods
(1) Any constable may, without warrant, seize
any articles which are forfeited or which he 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.
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 Attorney‑General 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.
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;
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.
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.
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 entering into a recognizance conditioned for his appearance
at the time and place appointed for continuing the hearing.
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 (the defendant)
charged with, or convicted of, an offence covered by subsection (2) unless
the bail authority is satisfied that exceptional circumstances exist to justify
bail.
(2) This subsection covers:
(a) a terrorism offence (other than an
offence against section 102.8 of the Criminal Code); and
(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
(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); and
(c) an offence against a provision of
Division 80 or Division 91 of the Criminal Code, or
against section 24AA of this Act, if:
(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; and
(d) an ancillary offence against a
provision of Division 80 or Division 91 of the Criminal Code,
or against section 24AA of this Act, 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.
(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.
(4) To avoid doubt, except as provided by subsection (1),
this section does not affect the operation of a law of a State or a Territory.
Note: Subsection (1) indirectly affects laws of
the States and Territories because it affects section 68 of the Judiciary
Act 1903.
(5) In this section:
ancillary offence has the meaning given in
the Criminal Code.
primary offence has the meaning given in the Criminal
Code.
15AB
Matters to be considered in certain bail applications
(1) In determining whether to grant bail to a
person charged with, or convicted of, an offence against a law of the
Commonwealth, 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
(ii) any witness, or
potential witness, in proceedings relating to the alleged offence, or offence;
and
(b) must not take into consideration
any form of customary law or cultural practice as a reason for:
(i) 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):
criminal behaviour includes:
(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.
(4) To avoid doubt, except as provided by
subsections (1) and (2), 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.
15A
Enforcement of fines etc.
(1) 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 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) garnishment of a debt, wage or
salary;
(b) a charge or caveat on property;
(c) seizure of property;
(d) forfeiture of property;
(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 (a), (b), (c), (d), (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) Paragraph 26(d) of the Acts Interpretation
Act 1901 does not apply in relation to subsections (1AA) and (1AC).
(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
the Federal Court of Australia and the Family Court of Australia 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 of
federal offences by the Federal Court of Australia in the same manner as that
law would apply and be applied if that 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.
(2) Without limiting the generality of subsection (1),
in the application to federal offenders 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:
modifications includes additions, omissions
and substitutions.
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 arising under section 5, or under 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.
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.
15E
Privilege of Parliament not affected
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.
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.
Part IAB—Controlled operations for obtaining evidence about
Commonwealth offences
Division 1—Objects of Part
15G
Objects of Part
(1) The objects of this Part are:
(a) to exempt from criminal liability,
and to indemnify from civil liability:
(i) law enforcement
officers who, in the course of a controlled operation authorised as provided
under this Part; and
(ii) certain other persons
who, when authorised by a law enforcement officer and in the course of a
controlled operation authorised as provided under this Part;
take an active part, or are
otherwise involved, in the commission of a Commonwealth offence or an offence
against a law of a State or Territory; and
(b) to require:
(i) the Commissioner, the
Integrity Commissioner and the Chief Executive Officer of the ACC to report to
the Minister on requests to authorise controlled operations and on the action
taken in respect of controlled operations authorised under this Part; and
(ii) the Minister to report
on these matters to Parliament; and
(c) to provide that evidence of
importation of narcotic goods obtained through a controlled operation:
(i) started before the
commencement of this Part; and
(ii) in which the
Australian Federal Police and the Australian Customs Service acted in concert
to allow the narcotic goods to pass through the Customs;
is not to be rejected because of
the unlawful conduct of law enforcement officers who took an active part, or
were otherwise involved, in the importation of the narcotic goods.
(2) Subject to
section 15X, this Part is not intended to limit a discretion that a court
has:
(a) to admit or exclude evidence in
criminal proceedings; or
(b) to stay criminal proceedings in
the interests of justice.
15GA
Concurrent operation of State and Territory laws
It is the Parliament’s intention that a
law of a State or Territory should be able to operate concurrently with this
Part unless the law is directly inconsistent with this Part.
Division 2—General
15H
What is a controlled operation?
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 acts, or omissions to act, that would, apart from
subsection 15I(1) or (2), constitute a Commonwealth offence or an offence
against a law of a State or Territory.
15HA
Meaning of engage in conduct etc.
In this Part:
(a) a reference to engaging in conduct
includes a reference to omitting to act; and
(b) a reference to a person’s conduct
includes a reference to the person’s omissions.
15HB
What is a serious Commonwealth offence or a serious State offence
that has a federal aspect?
(1) For the purposes of this Part, serious
Commonwealth offence means an offence against a law of the
Commonwealth:
(a) that
involves theft, fraud, tax evasion, currency violations, controlled
substances, illegal gambling, obtaining
financial benefit by vice engaged in by others, extortion, money laundering,
perverting the course of justice, bribery or corruption of, or by, an officer
of the Commonwealth, an officer of a State or an officer of a Territory,
bankruptcy and company violations, harbouring of criminals, forgery including
forging of passports, armament dealings, illegal importation or exportation of
fauna into or out of Australia, espionage, sabotage or threats to national
security, misuse of a computer or electronic communications, people smuggling,
slavery, piracy, the organisation, financing or perpetration of sexual
servitude or child sex tourism, dealings in child pornography or material depicting
child abuse, importation of prohibited imports or exportation of prohibited
exports, or that involves matters of the same general nature as one or more of
the foregoing or that is of any other prescribed kind; and
(b) that is punishable on conviction by
imprisonment for a period of 3 years or more.
(1A) Without limiting subsection (1), an
offence against section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27
of the Criminal Code is a serious Commonwealth offence for
the purposes of this Part.
(2) 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 has the characteristics of a serious Commonwealth
offence.
15I
Law enforcement officers etc. not liable for offences committed for purposes of
authorised controlled operation
(1) A law enforcement officer who engages in
conduct that, apart from this subsection, would constitute a Commonwealth
offence or an offence against a law of a State or Territory is not criminally
responsible for that offence if:
(a) he or she engages in that conduct
in the course of duty for the purposes of a controlled operation; and
(b) the conduct meets the requirements
of subsection 15IB(1).
(2) A person who is not a law enforcement
officer and who engages in conduct that, apart from this subsection, would
constitute a Commonwealth offence or an offence against a law of a State or
Territory is not criminally responsible for that offence if:
(a) he or she engages in that conduct
for the purposes of a controlled operation; and
(b) a law enforcement officer has
authorised the person to engage in that conduct; and
(c) the conduct meets the requirements
of subsection 15IB(2).
(2A) Subsection (2) does not apply to a
person who:
(a) is an informant of a law
enforcement officer; or
(b) is believed to have been involved,
other than for law enforcement purposes, in the criminal activity in respect of
which the controlled operation was authorised.
(3) The fact that, because of subsection (1)
or (2), a person whose conduct is covered by a certificate given under section 15M
is not criminally responsible for an offence does not affect the liability, for
that offence or any other offence, of any person whose conduct is not covered
by the certificate.
(4) Subsection (3) applies despite any
provision of Chapter 2 of the Criminal Code to the contrary.
(5) If:
(a) the importation of goods of a
particular kind into Australia is an offence against a law of the Commonwealth;
and
(b) a person imports goods of that
kind into Australia; and
(c) because of this section, that
person is not liable for an offence against that law in respect of the
importation; and
(d) that law provides for another
consequence, other than that person’s criminal liability, to arise from the
importation (for example, forfeiture of the goods);
this section does not prevent that consequence from
arising under that law.
(6) For the purposes of this section, a
member of a police force or other law enforcement agency of a foreign country
is taken to be acting in the course of duty to the extent that he or she takes
part in the controlled operation in accordance with the instructions given by
an Australian law enforcement officer.
15IA
Indemnification of law enforcement officers etc.
(1) The Commonwealth must indemnify a law
enforcement officer against any liability (including reasonable costs) the
officer incurs because of conduct the officer engages in if:
(a) he or she engages in that conduct
in the course of duty for the purposes of a controlled operation; and
(b) the conduct meets the requirements
of subsection 15IB(1); and
(c) the requirements (if any)
specified in the regulations have been met.
(2) The Commonwealth must indemnify a person
who is not a law enforcement officer against any liability (including
reasonable costs) the person incurs because of conduct the person engages in
if:
(a) he or she engages in that conduct
for the purposes of a controlled operation; and
(b) a law enforcement officer has
authorised the person to engage in that conduct; and
(c) the conduct meets the requirements
of subsection 15IB(2); and
(d) the requirements (if any)
specified in the regulations have been met.
(2A) Subsection (2) does not apply to a
person who:
(a) is an informant of a law enforcement
officer; or
(b) is believed to have been involved,
other than for law enforcement purposes, in the criminal activity in respect of
which the controlled operation was authorised.
(3) For the purposes of this section, a
member of a police force or other law enforcement agency of a foreign country
is taken to be acting in the course of duty to the extent that he or she takes
part in the controlled operation in accordance with the instructions given by
an Australian law enforcement officer.
15IB
Requirements that must be met for the purposes of sections 15I and 15IA
(1) A law enforcement officer’s conduct
relating to a controlled operation meets the requirements of this subsection
if:
(a) at the time when he or she engages
in that conduct there is in force a certificate given under section 15M
that authorises the operation; and
(b) the conduct is within the nature
of the activities covered by the certificate; and
(c) the conduct does not breach any
conditions to which the certificate is subject; and
(d) the conduct does not involve
intentionally inducing a person to commit a Commonwealth offence, or an offence
against a law of a State or Territory, if that person would not otherwise have
intended to commit:
(i) that offence; or
(ii) an offence of that
kind; and
(e) the conduct does not involve the
commission of a sexual offence against any person or an offence involving the
death of or serious injury to any person.
(2) Any other person’s conduct relating to a
controlled operation meets the requirements of this subsection if:
(a) at the time when he or she engages
in that conduct there is in force a certificate given under section 15M
that authorises the operation; and
(b) the certificate identifies the
person as being permitted to be involved in the operation; and
(c) the conduct is within the nature
of the activities covered by the certificate; and
(d) the conduct does not breach any
conditions to which the certificate is subject; and
(e) the conduct does not involve
intentionally inducing a person to commit a Commonwealth offence, or an offence
against a law of a State or Territory, if that person would not otherwise have
intended to commit:
(i) that offence; or
(ii) an offence of that
kind; and
(f) the conduct does not involve the
commission of a sexual offence against any person or an offence involving the
death of or serious injury to any person.
15IC
Effect of sections 15I and 15IA on other laws relating to criminal
investigation
Sections 15I and 15IA do not apply
to a person’s conduct that is authorised, or could have been authorised, under
a law of the Commonwealth, a State or a Territory relating to:
(a) arrest or detention of
individuals; or
(b) searches of individuals; or
(c) entry onto, or searches or
inspections of, premises; or
(d) searches, inspections or seizures
of other property; or
(e) forensic procedures; or
(f) electronic surveillance devices
or telecommunications interception; or
(g) identification procedures; or
(h) any other matter concerning powers
of criminal investigation.
15ID
Compensation for loss or injury
Where a person suffers loss or injury as
a result of a controlled operation, the Commonwealth is liable to pay to the
person who has suffered the loss or injury such compensation as is agreed on
between the Commonwealth and that person or, in default of agreement, is
determined by action against the Commonwealth in a court of competent
jurisdiction.
15J
Application for certificate authorising a controlled operation—by whom and to
whom made
(1) An Australian law enforcement officer may
apply to an authorising officer for a certificate authorising a controlled
operation.
(2) Any of the following is an authorising
officer for the controlled operation:
(a) if the operation is a major
controlled operation that relates to investigating a serious Commonwealth
offence, or a possible serious Commonwealth offence, the investigation of which
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 relates to investigating a serious Commonwealth
offence, or a possible serious Commonwealth offence, the investigation of which
is within the functions of the Australian Federal Police—any AFP authorising
officer;
(ba) if the operation relates to the
investigation of a corruption issue (within the meaning of the Law
Enforcement Integrity Commissioner Act 2006) concerning conduct that
involves a serious Commonwealth offence or possible conduct that would involve
a serious Commonwealth offence—any ACLEI authorising officer;
(c) if the operation relates to
investigating a serious Commonwealth offence, or a possible serious
Commonwealth offence, the investigation of which is within the functions of the
ACC—any ACC authorising officer.
(2A) 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.
(3) 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.
(3A) The following are ACLEI authorising
officers:
(a) the Integrity Commissioner;
(b) an Assistant Integrity Commissioner;
(c) a staff member of ACLEI who is an
SES employee and who is authorised in writing by the Integrity Commissioner for
the purposes of this paragraph.
(4) 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.
15K
Form and contents of application
Subject to section 15L, an
application for a certificate authorising a controlled operation must:
(a) be in writing signed by the
applicant; and
(b) state whether any previous
application has been made in relation to the operation; and
(c) if any previous application has
been made—state whether it was granted or refused; and
(d) contain, or be accompanied by,
such information, in writing, as the authorising officer requires to decide
whether or not to grant the application.
15L
Urgent applications
(1) An applicant may make an application under
this section for a certificate authorising a controlled operation if he or she
has reason to believe that the delay caused by making an application that
complies with section 15K may affect the success of the operation.
(2) The
application may be made:
(a) orally in person; or
(b) by telephone; or
(c) by any other means of
communication.
(3) The applicant must give to the
authorising officer, either orally or otherwise, such information as the
authorising officer requires to decide whether or not to grant the application.
(4) The applicant must tell the authorising
officer:
(a) whether any previous application
has been made in relation to the operation; and
(b) if any previous application has
been made—whether it was granted or refused.
(5) If the authorising officer decides to
grant the application, the authorising officer must:
(a) immediately inform the applicant
of his or her decision orally in person or by telephone or any other means of
communication; and
(b) as soon as practicable, give to
the applicant a certificate that complies with section 15N.
(6) The applicant must, as soon as
practicable, prepare and give to the authorising officer an application, in
writing, that complies with section 15K.
15M On
what grounds may a certificate authorising a controlled operation be given?
On receiving an application that
complies with section 15K or 15L in relation to a controlled operation,
the authorising officer may give a certificate authorising the operation if he
or she is reasonably satisfied that:
(a) it is likely that a serious
Commonwealth offence has been, is being or will be committed; and
(b) the nature and extent of the
offence, and any suspected criminal activity that is related to it, justifies a
controlled operation; and
(c) conducting the operation would not
involve intentionally inducing a person to commit a Commonwealth offence, or an
offence against a law of a State or Territory, if that person would not
otherwise have intended to commit:
(i) that offence; or
(ii) an offence of that
kind; and
(d) any unlawful activity involved in
conducting the operation will be limited to the maximum extent consistent with
conducting an effective controlled operation; and
(e) the operation will be conducted in
a way that ensures that, to the maximum extent possible, any illicit goods
involved in the operation will be under the control of an Australian law
enforcement officer at the end of the operation; and
(f) any unlawful activity involved in
conducting the operation will not:
(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
(iv) result in loss of, or
serious damage to, property (other than illicit goods); and
(g) the operation will be conducted in
a way that is consistent with the reporting and accountability requirements of
this Part; and
(h) if a person who is not a law
enforcement officer is to be involved in the operation—the role to be assigned
to the person could not adequately be performed by a law enforcement officer.
15N
Form and contents of certificate
(1) A certificate authorising a controlled
operation must be in writing and signed by the authorising officer.
(2) The certificate must:
(a) state the name of the applicant
for the certificate; and
(b) state whether the application for
the certificate was made in accordance with section 15K or 15L; and
(c) give a brief description of the
operation that includes (but is not limited to) the following details to the
extent to which they are known and are relevant:
(i) the name of the person
targeted;
(ii) the nature and
quantity of any illicit goods to which the operation relates;
(iii) the foreign countries
through which any such illicit goods have passed, or are likely to pass, in the
course of the operation;
(iv) the place or places at
which any such illicit goods have been, or will be, dealt with by the
Australian Customs Service;
(v) if subparagraph (iv)
does not apply—the place or places where any such illicit goods have entered,
or are likely to enter, into Australia; and
(ca) state the nature of the activities
covered by the certificate; and
(cb) identify each person who:
(i) is not a law
enforcement officer; and
(ii) is permitted to be
involved in the operation; and
(cc) for each person identified, state
the nature of the activities covered by the certificate in relation to that
person; and
(cd) state any conditions to which the
certificate is subject; and
(d) state that the authorising officer
authorises the operation to be carried out; and
(e) specify the day on which, and the
time when, the certificate was given.
(2A) A person referred to in paragraph (2)(cb)
may be identified, for the purposes of that paragraph, by a false name or a
code if:
(a) the Commissioner; or
(aa) the Integrity Commissioner; or
(b) the Chief Executive Officer of the
ACC;
holds a document that enables the person to be identified
from that false name or code.
(3) If the application for the certificate
was made under section 15L, the certificate must specify the day on which,
and the time when, the applicant was informed of the decision of the
authorising officer to give the certificate.
(4) The certificate may specify a day (not
later than 6 months after the day on which it was given) as the day on which
the certificate is to cease to be in force.
Note: A certificate must be reviewed in order for it
to remain in force longer than 3 months: see section 15OB.
(5) A failure to comply with this section
does not affect the validity of a certificate authorising a controlled
operation.
15NA
Variation of certificate
(1) An Australian law enforcement officer may
apply to an appropriate authorising officer for variation of a certificate given
under section 15M.
(2) The application must:
(a) be in writing signed by the
applicant; and
(b) contain, or be accompanied by,
such information, in writing, as the appropriate authorising officer requires
to decide whether or not to grant the application.
(3) If the application complies with this
section, the appropriate authorising officer may vary the certificate if he or
she is reasonably satisfied that:
(a) the certificate as varied could
have been given under section 15M; and
(b) the variation is necessary for:
(i) the success of the
controlled operation; or
(ii) the protection of the
health or safety of any person; or
(iii) the protection of
property from loss or damage; or
(iv) ensuring that all those
involved in the operation have appropriate exemption under section 15I and
appropriate indemnity under section 15IA.
(4) The appropriate authorising officer must
give the applicant a written notice:
(a) stating whether the certificate is
varied; and
(b) if the certificate is
varied—setting out each variation.
(5) A variation of the certificate takes
effect when the notice is given.
15O
Surrender of certificate
(1) The Australian law enforcement officer in
charge of a controlled operation authorised by a certificate given under
section 15M may surrender the certificate by sending to the authorising
officer a notice in writing signed by him or her to the effect that he or she
surrenders the certificate.
(2) The notice must specify the time when the
notice is to have effect.
15OA
Termination of certificate
(1) Any AFP authorising officer may terminate
a certificate given under section 15M by that or any other AFP authorising
officer.
(1A) Any ACLEI authorising officer may terminate
a certificate given under section 15M by that or any other ACLEI
authorising officer.
(2) Any ACC authorising officer may terminate
a certificate given under section 15M by that or any other ACC authorising
officer.
(4) The AFP authorising officer, ACLEI
authorising officer or ACC authorising officer (as the case requires) must send
written notice of the termination to the Australian law enforcement officer in
charge of the controlled operation to which the certificate relates.
(5) The notice:
(a) must state that the certificate is
terminated; and
(b) must be signed by the AFP
authorising officer, ACLEI authorising officer or ACC authorising officer (as
the case requires); and
(c) must specify the time when the
notice is to have effect.
15OB
Expiry of certificate after 6 months or 3 months
(1) A certificate given under section 15M
expires at the end of the period of 6 months after the day on which it was
given, unless subsection (2) applies.
(2) A certificate given under section 15M
expires at the end of the period of 3 months after the day on which it was given
unless, during the period, a nominated Tribunal member has:
(a) reviewed the certificate; and
(b) decided that the certificate
should be in force for 6 months.
Note: A certificate can also cease to be in force
after a time specified in the certificate: see paragraph 15P(3)(a).
(3) The certificate must be reviewed by a
nominated Tribunal member during the last 2 weeks of the period of 3 months
after the day on which the certificate was given under section 15M. The
nominated Tribunal member must decide whether the certificate should be in
force for 6 months.
(4) The nominated Tribunal member must not
decide that the certificate should be in force for 6 months unless he or she is
reasonably satisfied as to all the matters referred to in paragraphs 15M(a) to
(h).
(5) The nominated Tribunal member must give
written notice of his or her decision on the review to the Australian law
enforcement officer in charge of the controlled operation to which the
certificate relates.
15OC
Who are nominated Tribunal members?
(1) A nominated Tribunal member
is a member of the Administrative Appeals Tribunal in respect of whom a written
nomination by the Minister is in force that permits the member to conduct
reviews and to make decisions under section 15OB.
(2) The Minister must not nominate a person
unless the person:
(a) is a Deputy President or full‑time
senior member; or
(b) is enrolled as a legal
practitioner of a federal court or of the Supreme Court of a State or Territory
and has been enrolled for at least 5 years.
(3) A nominated Tribunal member has, in
conducting a review or making a decision under section 15OB, the same
protection and immunity that a Justice of the High Court has in relation to a
proceeding of that court.
15P
Period for which certificate is in force
(1) If a certificate authorising a controlled
operation was given as a result of an application made under section 15L,
the certificate is taken to have come into force at the time when the
authorising officer told the applicant that he or she had decided to give the
certificate.
(2) In any other case, a certificate
authorising the controlled operation comes into force at the time when it was
given.
(3) A certificate remains in force:
(a) if the certificate specifies a day
on which it is to cease to be in force—until the end of that day; or
(b) if the certificate is surrendered
under section 15O—until the time specified in the surrender notice; or
(c) if the certificate is terminated
under section 15OA—until the time specified in the termination notice; or
(d) in any other case—until the
certificate expires under section 15OB.
15PA
Effect of being unaware etc. of variation, surrender, termination or expiry of
certificate
(1) If a certificate given under section 15M
has been varied in a way that limits the scope of the certificate, sections 15I
and 15IA continue to apply to a person whose conduct is covered by the
certificate, as if the certificate had not been varied in that way, for so long
as he or she:
(a) is unaware of the variation; and
(b) is not reckless with respect to
the existence of the variation.
(2) If a certificate given under section 15M
ceases to be in force because:
(a) it has been surrendered or
terminated; or
(b) it has expired at the end of the
period of 3 months after the day on which it was given;
sections 15I and 15IA continue to apply to a person
whose conduct is covered by the certificate, as if there had been no surrender,
termination or expiry, for so long as he or she:
(c) is unaware of the surrender, termination
or expiry; and
(d) is not reckless with respect to
the existence of the surrender, termination or expiry.
(3) For the purposes of this section, a
person is reckless with respect to the existence of the variation, surrender,
termination or expiry of a certificate given under section 15M if:
(a) he or she is aware of a
substantial risk that the variation, surrender, termination or expiry existed;
and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
15Q
Chief Executive Officer of Customs to be notified of certain certificates
(1) This
section applies if:
(a) a certificate authorising a
controlled operation is given under section 15M by an AFP authorising
officer, an ACLEI authorising officer or an ACC authorising officer; and
(b) the applicant for the certificate
believes that illicit goods involved in the conduct of the operation may be
dealt with by the Australian Customs Service.
(2) The applicant for the certificate must,
as soon as practicable after the certificate is given, notify the Chief
Executive Officer of Customs, or a person nominated by him or her for the
purposes of this subsection, in writing of:
(a) the applicant’s name; and
(b) the date on which the certificate
is given; and
(c) to the extent to which it is
known:
(i) the place or places at
which the illicit goods will pass into the control of the Australian Customs
Service; and
(ii) the time or times
when, and the day or days on which, the illicit goods are expected to pass into
the control of the Australian Customs Service.
(3) A failure to comply with this section
does not affect the validity of the certificate authorising the controlled
operation.
15R
Quarterly reports to the Minister
(1) The Commissioner must, within 2 weeks
after the end of each quarter, give to the Minister a report informing the
Minister of the following that occurred during the quarter:
(a) each decision by an AFP
authorising officer to grant or refuse an application for a controlled
operation;
(b) each variation of a certificate
under section 15NA by such a person;
(c) each review of a certificate under
subsection 15OB(3) that had initially been given by such a person under section 15M;
(d) each occasion on which a
certificate, given by such a person, is surrendered under section 15O or
terminated under section 15OA;
(e) each certificate, given by such a
person, that is still in force at the end of the quarter.
(1A) The Integrity Commissioner must, within 2
weeks after the end of each quarter, give to the Minister a report informing
the Minister of the following that occurred during the quarter:
(a) each decision by an ACLEI
authorising officer to grant or refuse an application for a controlled
operation;
(b) each variation of a certificate
under section 15NA by such a person;
(c) each review of a certificate under
subsection 15OB(3) that had initially been given by such a person under
section 15M;
(d) each occasion on which a
certificate, given by such a person, is surrendered under section 15O or
terminated under section 15OA;
(e) each certificate, given by such a
person, that is still in force at the end of the quarter.
(2) The Chief Executive Officer of the ACC
must, within 2 weeks after the end of each quarter, give to the Minister a report
informing the Minister of the following that occurred during the quarter:
(a) each decision by an ACC
authorising officer to grant or refuse an application for a controlled
operation;
(b) each variation of a certificate
under section 15NA by such a person;
(c) each review of a certificate under
subsection 15OB(3) that had initially been given by such a person under section 15M;
(d) each occasion on which a
certificate, given by such a person, is surrendered under section 15O or
terminated under section 15OA;
(e) each certificate, given by such a
person, that is still in force at the end of the quarter.
15S
Contents of quarterly reports
(1) A report under section 15R must:
(a) include the reasons for each of
the following decisions that is covered by the report:
(i) each decision referred
to in paragraph 15R(1)(a) or (2)(a);
(ii) each variation
referred to in paragraph 15R(1)(b) or (2)(b);
(iii) the decision on each
review referred to in paragraph 15R(1)(c) or (2)(c); and
(b) include sufficient details of:
(i) each surrender or
termination of a certificate referred to in paragraph 15R(1)(d) or (2)(d); and
(ii) each certificate
referred to in paragraph 15R(1)(e) or (2)(e);
to identify the certificate.
(1A) The reasons included in the report for a
decision giving a certificate authorising a controlled operation must include
an indication of the extent to which the authorising officer, in making the
decision, took into account the seriousness of:
(a) the serious Commonwealth offence
in relation to which the certificate was given; and
(b) any suspected criminal activity
that is related to that offence.
(2) If a controlled operation was carried
out, and the certificate relating to the operation ceased to be in force,
during the quarter to which the report relates, the report must also:
(a) identify each person targeted by
the operation; and
(b) identify each person whose conduct
was covered by the certificate, and state whether the person was a law
enforcement officer at the time of the operation; and
(c) state the nature of the activities
engaged in for the purposes of the operation; and
(d) if the operation involved illicit
goods, state, to the extent known:
(i) the nature and
quantity of the illicit goods; and
(ii) the route through
which the illicit goods passed in the course of the operation; and
(e) if the operation involved illicit
goods that are narcotic goods:
(i) identify the agency to
which any law enforcement officer who, in the course of the operation, had
possession of the narcotic goods belonged; and
(ii) identify, to the
extent known, any person (other than a law enforcement officer) who, in the
course of the operation, had possession of the narcotic goods; and
(iii) state whether or not
the narcotic goods have been destroyed; and
(iv) if the narcotic goods
have not been destroyed—contain the information specified in subsection (3)
relating to the possession of the narcotic goods, or state that it is not known
who has possession of them.
(3) If the controlled operation involved
narcotic goods that have not been destroyed and the identity of the person in
whose possession they are is known, the report must:
(a) if the person is a law enforcement
officer—identify the agency to which the officer belongs; or
(b) otherwise—identify the person.
(5) If the person giving the report 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;
paragraph (2)(b), subparagraph (2)(e)(ii) or paragraph (3)(b)
is satisfied if:
(c) a code is used to refer to the
person; and
(d) the reason for not disclosing the
identity of the person is given.
15T
Minister to table report before Parliament
(1) The Minister must lay before each House
of the Parliament, not later than the first sitting day of that House after 1 October
each year, a report about controlled operations that includes the information
required by subsection (2).
(2) Subject to subsections (3) and (4),
the report must include (but is not limited to):
(a) the following information in
respect of each application for a certificate authorising a controlled
operation made in the financial year ending on the previous 30 June:
(i) the date on which the
application was made;
(ii) the decision taken
about the application;
(iii) the
reasons for that decision; and
(b) the information in reports given
to the Minister under section 15R during that financial year.
(3) The report is not to mention any
information about a person (including the person’s name) that has not already
been published about the person.
(4) If, on information given by the
Commissioner, the Integrity Commissioner or the Chief Executive Officer of the
ACC, the Minister is of the view that it is likely that the inclusion of any information
in a report may:
(a) endanger the safety of a person;
or
(b) prejudice an investigation or
prosecution;
the Minister must exclude the information from the report.
The Minister must then include that information in the first report laid before
the Houses of Parliament after the Minister considers that the information will
no longer endanger the safety of the person or prejudice the investigation or
prosecution.
15U
Evidentiary certificates
(1) In a prosecution for a serious
Commonwealth offence in respect of which a controlled operation was conducted,
a document purporting to be a certificate, given under section 15M,
authorising the operation:
(a) may be tendered in evidence; and
(b) is conclusive evidence that the
authorising officer who gave the certificate was satisfied as to the facts
stated in the document, to the extent that they are facts of a kind that are
required under section 15N to be included in a certificate.
(2) A document certified in writing by the
Commissioner, the Integrity Commissioner or the Chief Executive Officer of the
ACC, as the case may be, to be a true copy of a certificate referred to in subsection (1)
may be tendered in evidence in a prosecution referred to in subsection (1)
as if it were the original certificate.
Division 2A—Monitoring of controlled operations by the Ombudsman
15UA
Ombudsman to be notified of certain matters
(1) Within 2 weeks after the end of each
quarter:
(a) the Commissioner; and
(aa) the Integrity Commissioner; and
(b) the Chief Executive Officer of the
ACC;
must give to the Ombudsman a copy of the report given to
the Minister under section 15R for that quarter.
(2) The Ombudsman may require the
Commissioner, the Integrity Commissioner or the Chief Executive Officer of the
ACC to furnish such information about an application, a certificate, a
variation of a certificate or a surrender or termination of a certificate as is
necessary for the Ombudsman’s proper consideration of it.
15UB
Inspection of records by Ombudsman
(1) The Ombudsman:
(a) must inspect the records of the
Australian Federal Police, the Australian Commission for Law Enforcement
Integrity and the ACC in relation to controlled operations at least once every
12 months; and
(b) may inspect the records of the
Australian Federal Police, the Australian Commission for Law Enforcement
Integrity or the ACC at any time, for the purpose of ascertaining whether the
requirements of this Part are being complied with.
(2) Nothing in this section requires the
Ombudsman to inspect records in relation to a controlled operation that has not
been completed.
15UC
Annual reports by Ombudsman
(1) The Ombudsman must, as soon as
practicable after 30 June each year, prepare a report of the Ombudsman’s
work and activities under this Division during the preceding 12 months and give
copies of the report to the President of the Senate and the Speaker of the
House of Representatives for presentation to the Senate and the House of
Representatives, respectively.
(2) The report must include, for each law
enforcement agency concerned, comments as to the comprehensiveness and adequacy
of the reports which were provided to the Parliament by that law enforcement
agency.
(3) Nothing in this section requires
participants of the controlled operation to be included in a report for the
year if the operation had not been completed 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.
15UD
Ancillary matters concerning reports
(1) A report prepared under this Division
must not include any information which, if made public, could reasonably be
expected:
(a) to endanger a person’s safety; or
(b) prejudice an investigation or
prosecution; or
(c) compromise the agency’s
operational activities or methodologies.
(2) The Ombudsman must give a copy of any
report prepared under this Division to the chief executive officer of the law
enforcement agency to which it relates and to the Minister responsible for that
agency.
Division 3—Controlled operations started before commencement of this
Part
15V
Interpretation
(1) In this Division, a reference to a
controlled operation is a reference to a controlled operation started before
the commencement of this Part.
(2) In this Division:
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
Ministerial Agreement means the agreement:
(a) concerning the relationship
between the Australian Customs Service on the one hand, and the National Crime
Authority and the Australian Federal Police on the other, with respect to
narcotic drug law enforcement; and
(b) made by the Minister for Industry,
Technology and Commerce and the Special Minister of State on 3 June 1987.
Regional Director for a State or Territory
means:
(a) a Regional Director for a State or
Territory within the meaning of the Customs Act 1901; or
(b) a Collector of Customs for a State
or Territory within the meaning of the Customs Act 1901 as in force from
time to time before 1 July 1995.
15W
Minister may give certificate about controlled operation that involved unlawful
importation of narcotic goods by law enforcement officer
(1) If:
(a) evidence leading to the
prosecution of a person for an offence against section 233B of the Customs
Act 1901 or an associated offence was obtained through a controlled
operation; and
(b) a
law enforcement officer, acting in the course of duty for the purposes of the
operation:
(i) imported narcotic
goods contrary to paragraph 233B(1)(b) of the Customs Act 1901; or
(ii) engaged in conduct
contrary to Part 2.4 of the Criminal Code in relation to paragraph
233B(1)(b) of the Customs Act 1901; and
(c) for the purposes of the operation:
(i) the Australian Federal
Police, by written request signed by one of its members and purported to be made
in accordance with the Ministerial Agreement, asked a Regional Director for a
State or Territory that the narcotic goods, while subject to the control of the
Customs (within the meaning of the Customs Act 1901), be exempted from
detailed scrutiny by officers of the Australian Customs Service; and
(ii) the
request for exemption was granted;
the Minister may give a certificate in writing to the
effect that, for the purposes of the controlled operation described in the
certificate:
(d) a request of the kind referred to
in paragraph (c) was made by the person named in the certificate on the
day specified in the certificate; and
(e) the request was granted on the day
specified in the certificate.
(2) In a prosecution for an offence against
section 233B of the Customs Act 1901 or an associated offence, a
document purporting to be a certificate given under subsection (1) is,
upon mere production, admissible as prima facie evidence of the facts stated in
the document.
15X
Evidence of illegal importation etc. of narcotic goods not to be rejected on
ground of unlawful conduct by law enforcement officer
In determining, for the purposes of a
prosecution for an offence against section 233B of the Customs Act 1901
or an associated offence, whether evidence that narcotic goods were
imported into Australia in contravention of the Customs Act 1901 should
be admitted, the fact that a law enforcement officer committed an offence in
importing the narcotic goods, or engaged in conduct contrary to Part 2.4
of the Criminal Code in relation to such an offence, is to be
disregarded, if:
(a) the law enforcement officer, when
committing the offence, was acting in the course of duty for the purposes of a
controlled operation; and
(b) for
the purposes of the operation:
(i) the Australian Federal
Police, by written request signed by one of its members and purported to be
made in accordance with the Ministerial Agreement, asked a Regional Director
for a State or Territory that the narcotic goods, while subject to the control
of the Customs (within the meaning of the Customs Act 1901), be exempted
from detailed scrutiny by officers of the Australian Customs Service; and
(ii) the request for
exemption was granted.
Part IAC—Assumed identities
Division 1—Definitions etc.
15XA
Definitions etc.
(1) In this Part:
approved officer means an officer or foreign
officer referred to in an authorisation under paragraph 15XI(2)(c).
approved person means a person referred to in
an authorisation under subparagraph 15XI(2)(d)(i).
authorisation means an authorisation that is
in force under section 15XG or 15XH.
authorisation conditions means conditions to
which an authorisation is subject under paragraph 15XI(2)(j).
authorising person means:
(a) the head of a participating
agency; or
(b) a person in a participating
agency, included in a prescribed class of persons, who is authorised in writing
by the head of the agency.
Commonwealth agency means:
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth participating agency means one
of the following agencies:
(a) the Australian Federal Police;
(b) the Australian Customs Service;
(ba) the Australian Commission for Law
Enforcement Integrity;
(c) the ACC;
(d) the Australian Security
Intelligence Organisation;
(e) the Australian Secret Intelligence
Service;
(h) the Australian Taxation Office;
(i) any other Commonwealth agency
specified in the regulations.
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.
issuing agency means:
(a) a Commonwealth agency; or
(aa) a State agency; or
(ab) a Territory agency; or
(b) a non‑government body;
that is referred to in an authorisation under paragraph
15XI(2)(f).
issuing evidence of an assumed identity includes
making an entry in a record of information in respect of the assumed identity.
non‑government body means a body that
is not managed or controlled by or on behalf of the Commonwealth or the
Government of a State or Territory.
participating agency means either a
Commonwealth participating agency or a State or Territory participating agency.
State agency, in relation to a particular
State, means that State or an authority of that State.
State or Territory participating agency means:
(a) the police force of a State or
Territory; or
(b) one of the following bodies:
(i) the Independent
Commission Against Corruption established under the Independent Commission
Against Corruption Act 1988 of New South Wales;
(ii) the Crime and
Misconduct Commission of Queensland;
(iiia) the Western Australian
Corruption and Crime Commission established by the Corruption and Crime
Commission Act 2003 of Western Australia;
(iv) a similar body
established under a law of a State or Territory; or
(c) one
of the following bodies:
(i) the New South Wales
Crime Commission established under the New South Wales Crime Commission Act
1985 of New South Wales;
(iii) a similar body established
under a law of a State or Territory; or
(ca) the Police Integrity Commission
established by the Police Integrity Commission Act 1996 of New South
Wales; or
(d) any other body or agency of a
State or Territory specified in the regulations.
supervising officer means the officer
referred to in an authorisation under subparagraph 15XI(2)(d)(ii).
Territory agency, in relation to a particular
Territory, means that Territory or an authority of that Territory.
(2) A reference in this Part to an approved
officer or an approved person using an assumed identity includes a reference
to:
(a) the officer or person representing
the identity covered by his or her authorisation to be his or her real identity
when it is not (whether that representation is express or implied, and whether
it is by words, conduct or omission); or
(b) such an officer or person acting
in a way that is consistent with such an identity, rather than the person’s
real identity.
(3) A reference in this Part to an approved
officer or approved person acquiring evidence of an assumed identity includes a
reference to the officer or person obtaining, or taking any steps towards
obtaining, a document or other thing that purports to evidence the identity
covered by his or her authorisation, when it is not the real identity of the
person.
(4) A reference in this Part to a person
engaging in conduct includes a reference to the person omitting to do an act.
Division 2—Effect of an assumed identity
15XB
Assumed identities may be acquired and used
(1) An approved officer may acquire evidence
of, and use, an assumed identity if the acquisition or use:
(a) is in the course of duty; and
(b) is in accordance with the
authorisation conditions (if any).
(2) An approved person may acquire evidence
of, and use, an assumed identity if the acquisition or use is in accordance
with:
(a) directions given by the
supervising officer mentioned in the person’s authorisation; and
(b) the authorisation conditions (if
any).
Note: The acquisition of evidence, and use, of an
assumed identity is authorised by the authorising person of a participating
agency under Division 3.
15XC
Protection from criminal liability
(1) An approved officer, who engages in
conduct that, apart from this subsection, would constitute an offence against a
law of the Commonwealth, a State or Territory, is not criminally responsible
for that offence if:
(a) the officer engages in the conduct
in the course of acquiring evidence of, or using, an assumed identity; and
(b) the officer engages in the conduct
in the course of duty; and
(c) the conduct is in accordance with
the authorisation conditions (if any); and
(d) the conduct would not constitute
that offence if the assumed identity were the officer’s real identity.
Example: This subsection could apply if an approved
officer, when using an assumed identity, makes the false representation that he
or she is unemployed (but that representation would be true if the assumed
identity were real).
(2) An approved person who engages in conduct
that, apart from this subsection, would constitute an offence against a law of
the Commonwealth, a State or Territory, is not criminally responsible for that
offence if:
(a) the person engages in the conduct
in the course of acquiring evidence of, or using, an assumed identity; and
(b) the conduct is in accordance with:
(i) directions given by
the supervising officer; and
(ii) the authorisation
conditions (if any); and
(c) the conduct would not constitute
that offence if the assumed identity were the person’s real identity.
Note: Division 5 has offences relating to the
misuse etc. of assumed identities.
15XD
Indemnification of approved officers and persons
(1) A Commonwealth participating agency whose
authorising person issues an authorisation must indemnify an approved officer
against any liability (including reasonable costs) that the officer incurs
because of conduct the officer engages in if:
(a) the officer is covered by the
authorisation; and
(b) the officer engages in the conduct
in acquiring evidence of, or using, an assumed identity in the course of duty;
and
(c) the conduct is in accordance with
the authorisation conditions (if any); and
(d) the requirements (if any)
specified in the regulations have been met.
(2) A Commonwealth participating agency whose
authorising person issues an authorisation must indemnify an approved person
against any liability (including reasonable costs) that the person incurs
because of conduct the person engages in if:
(a) the person is covered by an
authorisation; and
(b) the person engages in conduct in
acquiring evidence of, or using, an assumed identity; and
(c) the
conduct is in accordance with:
(i) any
directions given by the supervising officer; and
(ii) the authorisation
conditions (if any); and
(d) the requirements (if any)
specified in the regulations have been met.
15XE
Effect of being unaware of variation or revocation of authorisation
(1) If an approved officer’s or approved
person’s authorisation has been varied in a way that limits its scope, this
Division continues to apply to the officer or person, as if the authorisation
had not been varied in that way, for so long as he or she:
(a) is unaware of the variation; and
(b) is not reckless with respect to
the existence of the variation.
(2) If an approved officer’s or approved
person’s authorisation is revoked, this Division continues to apply to the
officer or person, as if the authorisation had not been revoked, for so long as
he or she:
(a) is unaware of the revocation; and
(b) is not reckless with respect to
the existence of the revocation.
(3) For the purposes of this section, a
person is reckless with respect to the variation or revocation of an
authorisation if:
(a) he or she is aware of a
substantial risk that the variation or revocation occurred; and
(b) having regard to the circumstances
known to him or her, it is unjustifiable to take the risk.
15XF
Documents authorising use of skill or qualification
Sections 15XC and 15XD do not apply
to an approved officer or approved person engaging in conduct if:
(a) a particular skill or
qualification is needed to engage in that conduct; and
(b) the
person does not have that skill or qualification;
whether or not the officer or person has acquired, as
evidence of an assumed identity, a document that establishes that he or she has
that skill or 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.
Division 3—Authorising the acquisition or use of assumed identities
15XG
Commonwealth authorisations of the acquisition or use of assumed identities
(1) An authorising person of a Commonwealth
participating agency may, if satisfied that it is appropriate to do so,
authorise a person to do either or both of the following:
(a) acquire evidence of an assumed
identity from:
(i) any Commonwealth
agency; or
(ia) any State agency; or
(ib) any Territory agency;
or
(ii) any non‑government
body;
(b) use the assumed identity.
(2) However, the authorising person 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.
(3) An authorising person of a Commonwealth
participating agency may, if satisfied that it is reasonably necessary to do
so, authorise a foreign officer to do either or both of the following:
(a) acquire evidence of an assumed
identity from:
(i) any Commonwealth
agency; or
(ia) any State agency; or
(ib) any Territory agency;
or
(ii) any non‑government
body;
(b) use an assumed identity.
15XH
State or Territory authorisations of the acquisition or use of assumed
identities
(1) An authorising person of a State or
Territory participating agency may, if satisfied that it is appropriate to do
so, authorise a person (other than a foreign officer) to do either or both of
the following:
(a) acquire evidence of an assumed
identity from any Commonwealth agency;
(b) use the assumed identity.
Note: Only a Commonwealth participating agency can
authorise a foreign officer to acquire evidence of, or use, an assumed
identity: see subsection 15XG(3).
(2) However, the authorising person 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.
15XI
Contents of an authorisation for an assumed identity
(1) An authorisation to acquire evidence of,
and use, an assumed identity must be in writing and signed by the authorising
person.
(2) The authorisation must specify:
(a) the authorising person’s name; and
(b) the date on which the
authorisation is given; and
(c) if the person who is authorised to
acquire or use the assumed identity is an officer in the authorising person’s
participating agency or a foreign officer—that officer’s name; and
(d) if the person who is authorised to
acquire or use the assumed identity is not such an officer:
(i) the name of the person
who is authorised to acquire or use the assumed identity; and
(ii) the name of the
officer in the authorising person’s participating agency who will supervise
that acquisition or use; and
(e) details of the assumed identity
which the authorisation covers; and
(f) all Commonwealth agencies, State
agencies, Territory agencies or non‑government bodies who are to be
requested to issue evidence of the assumed identity; and
(g) details of each such request; and
(h) the reasons for the need to use
the assumed identity; and
(i) whether the assumed identity can
be used in a foreign country and the reasons for the need for this use; and
(j) any conditions to which the
authorisation is subject, including in relation to use in a foreign country.
(3) An authorisation can cover more than one
assumed identity.
15XJ
When an authorisation is in force
An authorisation is in force until it is
revoked.
15XK
Variation and revocation of authorisations
(1) An authorising person who issues an
authorisation, or any other authorising person in the same participating
agency, may vary or revoke the authorisation at any time.
(2) The approved officer or approved
person covered by the authorisation must be given a written notice of
the variation or revocation.
(3) The notice must state:
(a) the date from which the variation
or revocation takes effect; and
(b) the nature of the variation (if
any); and
(c) the reasons for the variation or
revocation.
Division 4—Issuing and cancelling evidence of assumed identities
15XL
Authorising person may request agencies and bodies to issue evidence of assumed
identities etc.
An authorising person who issues an
authorisation may request an issuing agency that is specified in the
authorisation under paragraph 15XI(2)(f) to issue evidence of an assumed
identity covered by the authorisation to the approved officer or approved
person.
15XM Requesting
Commonwealth agencies to issue evidence of assumed identities etc.
(1) An issuing agency of the Commonwealth
that receives a request under section 15XL from an authorising
person in a Commonwealth participating agency must comply with the request.
(2) An issuing agency of the Commonwealth
that receives such a request from an authorising person in a State or Territory
participating agency may comply with the request, but does not have to do so.
15XMA Requesting
State agencies or Territory agencies to issue evidence of assumed identities
etc.
(1) An issuing agency that is a State agency
of a particular State and that receives a request under section 15XL must
comply with the request to the extent that the laws of the State require it to
do so.
(2) An issuing agency that is a Territory
agency of a particular Territory and that receives a request under section 15XL
must comply with the request to the extent that the laws of the Territory
require it to do so.
15XN
Requesting non‑government bodies to issue evidence of assumed identities
etc.
An issuing agency that is a non‑government
body that receives a request under section 15XL may comply with the
request, but does not have to do so.
Note: Only Commonwealth participating agencies can
request non‑government bodies to issue evidence of an assumed identity.
15XO
Cancelling evidence of assumed identities etc.
An issuing agency that has issued
evidence of an assumed identity because of a request under section 15XL,
must cancel the evidence (including by deleting or altering an entry in a
record of information) on the written request of:
(a) the authorising person who made
the request; or
(b) any other authorising person in
the same participating agency.
15XP
Protection from criminal liability
An employee in an issuing agency, who
engages in conduct that, apart from this section, would constitute an offence
against a law of the Commonwealth, a State or Territory, is not criminally
responsible for the offence if the employee engages in the conduct in
responding to the request in the course of duty.
15XQ
Indemnification of issuing agencies etc.
A Commonwealth participating agency
whose authorising person makes a request under section 15XL must
indemnify:
(a) an employee of an issuing agency;
and
(b) an issuing agency;
against any liability (including reasonable costs)
incurred by that employee or agency because of conduct engaged in by the
employee if:
(c) the employee engages in the
conduct in responding to the request in the course of duty; and
(d) the requirements (if any)
specified in the regulations have been met.
Division 5—Offences relating to assumed identities
15XR
Misuse of assumed identities
(1) A person commits an offence if:
(a) the person is an approved officer;
and
(b) the person acquires evidence of,
or uses, an assumed identity covered by the person’s authorisation; and
(c) the acquisition or use is not in
the course of duty.
Penalty: 12 months imprisonment.
(2) A person commits an offence if:
(a) the person is an approved person;
and
(b) the person acquires evidence of,
or uses, an assumed identity covered by the person’s authorisation; and
(c) the acquisition or use is not in
accordance with the directions of the supervising officer.
Penalty: 12 months imprisonment.
(3) A person commits an offence if:
(a) the person is an approved officer
or an approved person; and
(b) the person acquires evidence of,
or uses, an assumed identity covered by the person’s authorisation; and
(c) in doing so, the person engages in
conduct that breaches an authorisation condition.
Penalty: 12 months imprisonment.
15XS
Disclosing information relating to assumed identities
(1) A person commits an offence if:
(a) the person discloses information;
and
(b) the disclosure reveals, or is
likely to reveal, that an assumed identity acquired or used by another person
is not that other person’s real identity; and
(c) the disclosure:
(i) endangers, or is
likely to endanger, the health or safety of any person; or
(ii) prejudices, or is
likely to prejudice, the effective conduct of an operation carried out by any
participating agency; and
(d) the assumed identity is or was
covered by an authorisation.
Penalty: 10 years imprisonment.
(2) A person commits an offence if:
(a) the person discloses information;
and
(b) the disclosure reveals, or is
likely to reveal, that an assumed identity acquired or used by another person
is not that other person’s real identity; and
(c) the assumed identity is or was
covered by an authorisation.
Penalty: 2 years imprisonment.
Division 6—Miscellaneous
15XT
Disclosing real identities during court proceedings etc.
(1) If the real identity of an approved
officer or approved person who is or was covered by an authorisation, might be
disclosed in proceedings before a court, tribunal or a Royal Commission or
other commission of inquiry, then the court, tribunal or commission must:
(a) ensure that the parts of the
proceedings that relate to the real identity of the officer or person are held
in private; and
(b) make such orders relating to the
suppression of the publication of evidence given by the court, tribunal or
commission as will, in its opinion, ensure that the real identity of the
officer or person is not disclosed.
(2) However, this section does not apply to
the extent that the court, tribunal or commission considers that the interests
of justice require otherwise.
15XU
Keeping and auditing records of assumed identities
(1) The head of a Commonwealth participating
agency must:
(a) cause appropriate records to be kept:
(i) while an authorisation
is in force; and
(ii) for at least 12 months
after an authorisation has been revoked; and
(b) cause those records to be audited:
(i) at least once every 6
months while the authorisation is in force; and
(ii) at least once in the 6
month period after the revocation of the authorisation.
(1A) An audit of these records must not be
conducted by:
(a) an authorising person who has
issued, varied or revoked an authorisation to which one or more of the records
relate; or
(b) an approved officer or approved
person who is covered by an authorisation to which one or more of the records
relate.
(2) In this
section:
appropriate records means records relating to
the operation of this Part as it affects the participating agency, including
any authorisations and any variations or revocations of those authorisations
under section 15XK.
15XUA
Matters to be reported
Commonwealth participating agencies must report
annually
(1) Each of the following Commonwealth
participating agencies:
(a) the Australian Security
Intelligence Organisation;
(b) the Australian Secret Intelligence
Service;
must, as soon as practicable after 30 June in each
year, prepare and give to the Inspector‑General of Intelligence and
Security a report for the year ending on that 30 June.
(2) Each other Commonwealth participating
agency must, within 3 months after 30 June in each year, prepare and give
to the Minister responsible for the agency a report for the year ending on that
30 June.
(3) The Minister receiving a report under subsection (2)
must table a copy of the report before each House of the Parliament within 15 sitting
days of that House after the day on which the Minister receives the report.
What reports must include
(4) An agency’s report must include the
following information:
(a) the number of authorisations
issued by an authorising person from the agency during the year covered by the
report;
(b) a general description of the
activities undertaken by approved officers and approved persons when using their
assumed identities during the year covered by the report;
(c) a statement whether or not any
fraud or other unlawful activity was identified by an audit under paragraph
15XU(1)(b) during the year covered by the report.
(5) Before the report is tabled in the
Parliament, the Minister must, on the advice of the relevant agency head,
remove information from the report if the Minister is of the view that its
inclusion may:
(a) endanger a person’s safety; or
(b) prejudice an investigation or
prosecution; or
(c) compromise the agency’s
operational activities or methodologies.
15XV
Concurrent operation of State and Territory laws
It is the Parliament’s intention that a
law of a State or Territory should be able to operate concurrently with this
Part unless the law is directly inconsistent with this Part.
15XW
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Part
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Part.
Part IAD—Protection of children in proceedings for sexual offences
Division 1—Introduction
15Y
Proceedings to which this Part applies
(1) This Part applies to any proceedings for:
(a) an offence against Part IIIA
of this Act (Child sex tourism); or
(b) an offence against section 71.8
of the Criminal Code (Sexual assault of United Nations and associated
personnel); or
(c) an offence against Division 270
of the Criminal Code (Slavery, sexual servitude and deceptive recruiting);
or
(caa) an offence against Division 271
of the Criminal Code (trafficking in persons, trafficking in children,
debt bondage); or
(ca) an offence against section 474.26
or 474.27 of the Criminal Code (use of carriage service to procure or
groom persons under 16 years of age); or
(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; or
(e) an offence that includes the
commission of, or the intention to commit, an offence of a kind referred to in paragraph (a),
(b), (c), (caa) or (d); or
(f) an offence of:
(i) attempting to commit;
or
(ii) conspiring to commit;
or
(iii) inciting the
commission of;
an offence of a kind referred to
in paragraph (a), (b), (c), (caa), (d) or (e).
(2) This Part also applies to any
proceedings, including committal proceedings or proceedings of a similar kind,
connected with proceedings of a kind referred to in subsection (1).
15YA
Definitions
In this
Part, unless the contrary intention appears:
child means a person who is under 18.
child complainant, in relation to a
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 witness, in relation to a 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.
proceeding means a proceeding to which this
Part applies under section 15Y.
Division 2—Admissibility of evidence
15YB
Evidence of sexual reputation
(1) Evidence of a child witness’ or child
complainant’s reputation with respect to sexual activities is inadmissible in a
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.
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
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.
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
15YE
Disallowing inappropriate or aggressive cross‑examination
(1) The court may disallow a question put to
a child witness in cross‑examination in a proceeding if the question is
inappropriate or unnecessarily aggressive.
(2) In considering whether a question is
inappropriate or unnecessarily aggressive, the court is to have regard to the
child witness’ personal characteristics, including his or her age, culture,
mental capacity and gender.
15YF
Unrepresented defendants—cross‑examination of child complainants
(1) A defendant in a proceeding who is not represented
by counsel is not to cross‑examine a child complainant.
(2) A person appointed by the court is to ask
the child any questions that the defendant requests the person to ask the
child.
15YG
Unrepresented defendants—cross‑examination of child witnesses
(1) A defendant in a proceeding who is not
represented by counsel is not to cross‑examine a child witness (other
than a child complainant), unless the court gives leave.
(2) The court must not give leave unless
satisfied that the child’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:
(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 child any questions that the defendant
requests the person to ask the child.
15YH
Represented defendants—cross‑examination of child witnesses and child
complainants
A defendant in a proceeding who is
represented by counsel is not to cross‑examine a child witness or a child
complainant except through counsel.
Division 4—Special facilities for child witnesses to give evidence
15YI
Closed‑circuit television
(1) A child witness’ evidence in a proceeding
must be given by means of closed‑circuit television unless:
(a) the child is at least 16 and
chooses not to give evidence by that means; or
(b) the court orders that the child 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 child witness does not give evidence by means of closed‑circuit
television.
(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 child
witness’ 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.
15YJ
Giving evidence by closed‑circuit television
(1) If the child witness’ 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 child:
(i) to act as an interpreter;
or
(ii) to assist the child
with any difficulty in giving evidence associated with a disability; or
(iii) to provide the child
with other support.
(2) An order under paragraph (1)(b) or
(c) does not limit the operation of section 15YM.
(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.
15YK
Viewing evidence given by closed‑circuit television
If the child witness’ 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 child, and any person present with the child, on one or more
television monitors.
15YL
Alternative arrangements for giving evidence
(1) If a child witness’ evidence in a
proceeding 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 child may have with any
defendant while giving evidence; and
(b) may make arrangements in order to
restrict contact (including visual contact) that the child 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
child’s line of vision.
(3) This section does not apply if the child
is at least 16 and chooses not to give evidence under the arrangements.
Division 5—Use of video recordings
15YM
Use of video recordings
(1) A video recording of an interview of a
child witness in a proceeding may be admitted as evidence in chief if:
(a) a constable, or a person of a kind
specified in the regulations, conducted the interview; and
(b) the court gives leave.
(2) The court must not give leave if
satisfied that it is not in the interest of justice for the child’s evidence in
chief to be given by a video recording.
(3) An application for leave under this
section:
(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.
(4) The child witness must be available for
cross‑examination and re‑examination if he or she gives evidence in
chief by a video recording.
Note: Division 4 provides for this evidence to
be given using closed‑circuit television or other arrangements.
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 previous
representations that the child witness 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 child witness if the child 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 6—Miscellaneous
15YO
Adults accompanying child witnesses
(1) A child witness may choose an adult to
accompany the child while the child is giving evidence in a proceeding
(including while giving evidence by closed‑circuit television).
(2) The adult so chosen may accompany the
child as mentioned in subsection (1), unless the court determines that it
is not appropriate for the adult to accompany the child.
(3) The court may permit more than one adult
to accompany the child if the court considers it in the interests of justice to
do so.
(4) An adult accompanying the child under
this section must not:
(a) prompt the child or otherwise
influence the child’s answers; or
(b) disrupt the questioning of the
child.
(5) Any words spoken by an adult accompanying
the child 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.
15YP
Exclusion of 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 a child
witness is giving evidence in a proceeding.
15YQ
Warnings etc. not to be given about children’s evidence
If there is a jury in a proceeding in
which a child witness 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 children 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 child
under section 15YO.
15YR
Publication identifying child witnesses or child complainants
(1) 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 not a defendant in the proceeding) as a child witness or a child
complainant in relation to the proceeding; or
(ii) is likely to lead to
the other person being identified as such a child witness or child complainant.
Penalty: Imprisonment for 12 months, or 60 penalty units, or
both.
(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 child witness or
child complainant that the publication could cause; and
(b) any damage to the reputation of
the child witness or child complainant 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:
(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.
15YS
General powers of a court
(1) 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.
15YT
Division 5 of Part IIIA unaffected
Nothing in this Part affects the
operation of Division 5 of Part IIIA (Child sex tourism—video link
evidence).
Part IAE—Video link evidence in proceedings for terrorism and related
offences etc.
15YU
Proceedings to which this Part applies
Criminal proceedings
(1) This Part applies to any proceedings for:
(a) an offence against subsection
34L(4) of the Australian Security Intelligence Organisation Act 1979; 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
(e) an offence against Part 5.3
of the Criminal Code; or
(f) an offence against Part 5.4
of the Criminal Code; or
(g) an offence against section 24AA
or 24AB of this Act; or
(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) an offence against the Crimes
(Foreign Incursions and Recruitment) Act 1978; or
(k) an offence against section 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: For other ancillary offences, see section 11.6
of the Criminal Code.
Other proceedings
(2) This Part
also applies to:
(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).
Timing of proceedings
(3) It is immaterial whether proceedings
covered by subsection (1) or (2) were instituted before or after the
commencement of this Part.
Extended meaning of prosecutor and defendant
(4) This Part has effect, in relation to a
proceeding under the Proceeds of Crime Act 2002, as if:
(a) the Director of Public
Prosecutions were the prosecutor; and
(b) each other party to the proceeding
were a defendant in the proceeding.
15YV
When court may take evidence by video link
Application by prosecutor
(1) 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.
Application by defendant
(2) 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.
Definition
(3) In this section:
substantial adverse effect means an effect
that is adverse and not insubstantial, insignificant or trivial.
15YW
Observers
Observer
(1) 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.
Substitution of observer
(3) If:
(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.
Who can be an observer
(4) 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.
Report of observer
(7) If:
(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.
Definitions
(8) 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.
15YX
Adjournment after a section 15YV direction or order etc.
Court gives a direction or makes an order
(1) If:
(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.
Court refuses to give a direction or make an order
(3) If:
(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.
Grant of adjournment
(5) If an application is made under this
section, the court must grant the adjournment.
Note: For appeals, see section 15YZD.
15YY
Technical requirements for video link
(1) 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.
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.
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.
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 courtroom 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.
15YZC
Expenses
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.
15YZD
Appeals against section 15YV directions or orders etc.
Court gives a direction or makes an order
(1) If:
(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 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.
Court refuses to give a direction or make an order
(3) If:
(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.
Jurisdiction
(5) 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.
15YZE
Other laws about evidence not affected
This Part does not prevent any other law
about taking evidence of a witness from applying for the purposes of a
proceeding.
15YZF
Saving of other laws
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.
Part IB—Sentencing, imprisonment and release of federal offenders
Division 1—Interpretation
16
Interpretation
(1) 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.
federal court means the High Court or a court
created by the Parliament, other than a court of a Territory.
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.
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,
in relation to a person who is released on licence, means:
(a) where the person has not been given
a federal life sentence—the period commencing on the day of release on licence
and ending:
(i) if the last day of any
federal sentence that is, on the day of the release, being served or to be
served, after deducting any remission or reduction that is applicable, occurs
earlier than 5 years after the day of release on licence—at the end of that
last day; or
(ii) in any other case—at
the end of the day that occurs 5 years after the day of release on licence; and
(b) where the person has been given a
federal life sentence—the period commencing on the day of release on licence
and ending 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.
parole includes probation.
parole officer
means:
(a) an officer of a State, the
Australian Capital Territory, the Northern Territory or Norfolk Island 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 under subsection
19AL(1) or (2).
parole period,
in relation to a person who is released on parole under section 19AL,
means:
(a) where the person has not been
given a federal life sentence—the period commencing on the day of release on
parole and ending:
(i) if the last day of any
federal sentence that is, on the day of the release, being served or to be
served, after deducting any remission or reduction that is applicable, occurs
earlier than 5 years after the day of release on parole—at the end of that last
day; or
(ii) in any other case—at
the end of the day that occurs 5 years after the day of release on parole; and
(b) where the person has been given a
federal life sentence—the period commencing on the day of release on parole and
ending at the end of the day specified in the parole order as the day on which
the parole period ends.
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.
prescribed authority
means:
(a) a person who holds office as a
Magistrate of a State, the Australian Capital Territory, the Northern Territory
or Norfolk Island 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, the Northern
Territory or Norfolk Island); 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 section 19AL.
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:
(a) where the person has not been
given a federal life sentence—the period commencing on the day of release on
parole or licence and ending at the end of a day specified in the parole order
or licence as the day on which the supervision period ends, being a day not
later than:
(i) if the last day of any
federal sentence of imprisonment that is, on the day of the release, being
served or to be served, after deducting any remission or reduction that is
applicable, occurs earlier than 3 years after the day of release on parole or
licence—that last day; or
(ii) in any other case—the
day that occurs 3 years after the day of release on parole or licence; and
(b) where the person has been given a
federal life sentence—the period commencing on the day of release on parole or
licence and ending at the end of the day specified in the parole order or
licence as the day on which the supervision ends, being a day not later than
the day on which the parole period or licence period ends.
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.
(2) In this Part, expressions in the plural
do not imply that expressions in the singular do not include the plural.
Division 2—General sentencing principles
16A
Matters to which court to have regard when passing sentence etc.
(1) 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.
(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;
(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
(ii) in any other manner;
(g) if the person has pleaded guilty
to the charge in respect of the offence—that fact;
(h) the degree to which the person has
co‑operated 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;
(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;
(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.
(2A) However, the court must not take into
account under subsection (1) or (2) 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.
(2B) In subsection (2A):
criminal behaviour includes:
(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)
and (2), 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.
16B
Court to have regard to other periods of imprisonment required to be served
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.
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
(iii) by a person appointed
under section 69 of the Judiciary Act 1903 to prosecute indictable
federal offences;
and by the person convicted;
(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 whether he admits his 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 for the offence
or offences of which he has been convicted.
(2) Subject to subsection (3), if the
person admits his 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 for the offence or offences of which he has been convicted, the
court may, if it thinks fit, in passing sentence on him for the offence or
offences of which he has been convicted, take into account all or any of the
offences in respect of which the person has admitted his 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 guilt, the sentence passed on him for any of the offences of which
he has been convicted shall not exceed the maximum penalty that the court would
have been empowered to impose on him for 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.
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.
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
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.
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.
(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.
17A
Restriction on imposing sentences
(1) 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.
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.
18
Sentence of imprisonment
(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.
19
Cumulative, partly cumulative or concurrent sentences
(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.
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.
19AA
Remissions and reductions of sentences
(1) A law of a State or Territory that
provides for the remission or reduction of State or Territory sentences (other
than such part of the law as relates to the remission or reduction of non‑parole
periods of imprisonment or of periods of imprisonment equivalent to pre‑release
periods of imprisonment in respect of recognizance release orders) applies in
the same way to the remission or reduction of a federal sentence in a prison of
that State or Territory, being a sentence imposed after the commencement of
this section.
(2) Where a law of a State or Territory
provides that a person is to be taken to be serving a State or Territory
sentence during the period from the time of release under a parole order or
licence (however called) until the parole order or licence is, or is taken to
be, revoked, the law:
(a) is, for the purposes of subsection (1),
to be taken to be providing for the remission or reduction of sentences; and
(b) applies to any calculation of the
part of a federal sentence remaining to be served at the time of a federal
offender’s release under a federal parole order or licence as if the sentence
were a State or Territory sentence.
(3) Where a federal offender who is released
on parole or licence and whose parole order or licence has subsequently been
revoked does not get the benefit of subsection (2) in calculating the part
of any federal sentence of imprisonment remaining to be served at the time of
release:
(a) a court fixing a new non‑parole
period in respect of such a person under section 19AR; or
(b) a
prescribed authority fixing a non‑parole period in respect of such a
person under section 19AW;
must have regard to the period of time spent by the person
on parole or licence before that parole order or licence is revoked or is to be
taken to have been revoked.
(4) A law of a State or Territory that
provides for the remission or reduction, by reason of industrial action taken
by prison warders, of the non‑parole period of a State or Territory
sentence applies in the same way to the remission or reduction:
(a) of a federal non‑parole
period to be served in a prison in that State or Territory; and
(b) of a federal pre‑release
period to be served in that State or Territory.
Division 4—The fixing of non‑parole periods and the making of
recognizance release orders
19AB
When court must fix non‑parole period or make a recognizance release
order
(1) Subject to subsection (3), where:
(a) a person is convicted of a federal
offence, or of 2 or more federal offences at the same sitting; and
(b) a court imposes on the person a
federal life sentence, or a federal sentence that exceeds, or federal sentences
that, in the aggregate, 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 either:
(d) fix a single non‑parole period
in respect of that sentence or those sentences; or
(e) make a recognizance release order.
(2) Subject to subsection (3), 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 a federal life sentence or federal sentences the
unserved portions of which, in the aggregate, exceed 3 years; and
(c) at the time the further federal
sentence is imposed, the person is not already subject to a non‑parole
period or recognizance release order in respect of a federal sentence;
the court imposing the further sentence must either:
(d) fix a single non‑parole
period in respect of all federal sentences the person is to serve or complete;
or
(e) make a recognizance release order.
(3) Where, but for this subsection, a court
would be required by this section to fix a non‑parole period, or make a
recognizance release order, in respect of a person, the court may decline to do
either if, having regard to the nature and circumstances of the offence or
offences concerned and to the antecedents of the person, the court is satisfied
that neither is appropriate.
(4) Where the
court decides that neither a non‑parole period nor a recognizance release
order is appropriate, the court must:
(a) state its reasons for so deciding;
and
(b) cause the reasons to be entered in
the records of the court.
19AC
When court must fix a recognizance release order
(1) 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 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
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) Where, but for this subsection, a court
would be required by this section to make a recognizance release order in
respect of a person, the court may decline to do so if, having regard to the
nature and circumstances of the offence or offences concerned and to the antecedents
of the person, the court is satisfied that such an order is not appropriate.
(5) Where the court decides that a
recognizance release order is not appropriate, the court must:
(a) state its reasons for so deciding;
and
(b) cause the reasons to be entered in
the records of the court.
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.
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.
19AF
Non‑parole period or pre‑release periods not to exceed remitted
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,
as reduced by any remissions or reductions under section 19AA.
(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.
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) an offence against section 24AA;
(b) a terrorism offence;
(c) an offence against Division 80
or 91 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 3/4 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.
(5) Sections 19AB, 19AC, 19AD, 19AE and
19AR have effect subject to this section.
Note: The effects of this include preventing a court
from:
(a) making a recognizance release order under
paragraph 19AB(1)(e) or (2)(e), 19AE(2)(e) or 19AR(2)(e); or
(b) confirming (under paragraph 19AD(2)(d)) a pre‑existing
non‑parole period; or
(c) confirming (under paragraph 19AE(2)(d)) a
recognizance release order; or
(d) declining (under subsection 19AB(3) or 19AC(1)
or (2) or paragraph 19AD(2)(f)) to fix a non‑parole period.
19AH
Failure to fix non‑parole period or make recognizance release order
(1) 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.
19AJ
Court may only fix non‑parole periods or make recognizance release orders
for federal sentences of imprisonment
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.
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
19AL
Release on parole
(1) Subject to section 19AM, where there
has been imposed on a person a federal sentence of, or federal sentences
aggregating, more than 3 years but less than 10 years and a non‑parole
period has been fixed in relation to the sentence or sentences, the Attorney‑General
must, by order in writing, direct that the person be released from prison on
parole:
(a) at the end of the non‑parole
period; or
(b) if the Attorney‑General
considers that in all the circumstances it would be appropriate to do so, on a
specified day, not being earlier than 30 days before the end of the non‑parole
period.
(2) Subject to section 19AM, where there
has been imposed on a person a federal life sentence or a federal sentence of,
or federal sentences aggregating, 10 years or more and a non‑parole
period has been fixed in relation to the person in respect of the sentence or
sentences, the Attorney‑General must, by order in writing:
(a) direct that the person be released
from prison on parole:
(i) at the end of the non‑parole
period; or
(ii) if the Attorney‑General
considers that in all the circumstances it would be appropriate to do so, on a
specified day, not being earlier than 30 days before the end of the non‑parole
period; or
(b) direct that the person is not to
be released on parole at, or at any time before, the end of the non‑parole
period.
(3) An order directing that a person not be
released at, or at any time before, the end of the non‑parole period:
(a) must not be made later than 3
months before the end of the non‑parole period; and
(b) must include a statement of
reasons why the order was made; and
(c) if the Attorney‑General
proposes to reconsider, at a later time, the question of the release of the
person on parole—must indicate when the Attorney‑General proposes to
reconsider the question;
and a copy of the order must be given to the person within
14 days after it was made.
(4) A parole order in relation to a federal
sentence:
(a) if the sentence is imprisonment
for life in respect of that federal offence or any of those federal
offences—must specify the day on which the parole period ends, being a day not
earlier than 5 years after the person is released on parole; and
(b) if it is proposed that, for any
part of the parole period, the person should be subject to supervision—must
specify the day on which the supervision period ends, being a day fixed in
accordance with the requirements of the definition of supervision period
in subsection 16(1).
(5) A parole order directing that a person be
released from prison is sufficient authority for the release if, and only if,
the person indicates, in writing, his or her acceptance of the conditions to
which the order is subject by certifying to that effect either on the original
parole order or on a copy of that order.
19AM
Person not to be released on parole if still serving State or Territory
sentence
(1) Where:
(a) at the time when a federal non‑parole
period (not being in respect of a life sentence) ends, the offender is serving,
or is to serve, a State or Territory sentence (other than a life sentence for
which a non‑parole period has not been fixed); and
(b) if a federal parole order were
made at that time, the parole period would end while the offender would still
be imprisoned in respect of the State or Territory offence;
the parole order must not be made.
(2) Where:
(a) at the time when a federal non‑parole
period (not being in respect of a life sentence) ends, the offender is serving,
or is to serve, a State or Territory sentence (other than a life sentence for
which a non‑parole period has not been fixed); and
(b) if a federal parole order were
made at that time, the parole period would end after the offender was released,
or released on parole, in respect of the State or Territory offence;
the Attorney‑General must make the parole order, but
it does not take effect before the offender is eligible to be so released.
(3) Where, at the time when a federal non‑parole
period in respect of a life sentence, or sentences that include a life
sentence, ends, the offender is serving, or is to serve, a State or Territory
sentence (other than a life sentence for which a non‑parole period has
not been fixed), the Attorney‑General must not make a parole order such
that the parole period would end while the offender would still be imprisoned
in respect of the State or Territory offence.
(4) Where, at the time when a federal non‑parole
period ends, the offender is serving, or is to serve, a State or Territory life
sentence for which a non‑parole period has not been fixed, a federal
parole order must not be made.
19AN
Parole order is subject to conditions
(1) A parole order under section 19AL:
(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, under subsection 19AL(4), the
day on which a supervision period ends is fixed in the parole order—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.
(2) The Attorney‑General may, at any
time before the end of the parole period, by order in writing, amend a parole
order by varying or revoking a condition of the parole order or by imposing
additional conditions in the parole order.
(3) An amendment of the parole order does not
have effect until notice in writing of the amendment is given to the offender,
being notice given before the end of the parole period.
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.
(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) if it is proposed that, for any
part of the licence period, the person should be subject to supervision—must
specify the day on which the supervision period ends, being a day fixed in
accordance with the requirements of the definition of supervision period
in subsection 16(1).
(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, under subsection (6), the
day on which a supervision period ends is fixed in the licence—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) The Attorney‑General may, at any
time before the end of the licence period, by order in writing, amend a licence
by varying or revoking a condition of a licence or by imposing additional
conditions on a licence or by any or all of those means.
(9) An amendment of a licence does not have
effect until notice of the amendment is given to the offender, being notice
given before the end of the licence period.
(10) A licence directing that the offender be
released from prison is sufficient authority for the release.
19AQ
When parole order or licence automatically revoked
(1) Where 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 committed during the parole period, the parole order is to be taken to
have been revoked upon the imposition of the sentence or sentences.
(2) If, at the time of imposition of the
sentence or sentences, the federal parole period has already ended, the parole
order is to be taken to have been revoked as from the time immediately before
the end of the parole period.
(3) Where 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 committed during the licence period, the licence is to be taken to have
been revoked upon the imposition of the sentence or sentences.
(4) If, at the time of imposition of the
sentence or sentences, the licence period has already ended, the licence is to
be taken to have been revoked as from the time immediately before the end of
the licence period.
(5) Where the parole order or licence
relating to a person is revoked under subsection (1) or (3), the person
becomes liable to serve that part of the sentence or 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, subject to the operation of subsection
19AA(2) and subject (except in the case of a life sentence) to any further
remission or reduction of that sentence.
(6) This section does not apply where the
sentence or each sentence referred to in subsection (1) or (3) is a
suspended sentence.
19AR
Fixing of non‑parole period etc. where parole or licence automatically
revoked
(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 to
life imprisonment or to a term of imprisonment of, or terms of imprisonment
aggregating, more than 3 years in respect of a federal offence or federal
offences committed during the parole period or licence period; and
(c) under section 19AQ, because
of the imposition of the sentence or sentences referred to in paragraph (b)
(in this subsection called the new sentence or sentences):
(i) the parole order or
licence is to be taken to have been revoked; and
(ii) the person becomes
liable to serve that part of each of the sentences referred to in paragraph (a)
(in this subsection called the outstanding sentence or sentences)
that the person had not served at the time of release;
the court imposing the new sentence or sentences 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) 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 to a
term of imprisonment of, or terms of imprisonment aggregating, 3 years or less
in respect of a federal offence or federal offences committed during the parole
period or licence period; and
(c) under section 19AQ, because
of the imposition of the sentence or sentences referred to in paragraph (b)
(in this subsection called the new sentence or sentences):
(i) the parole order or
licence is to be taken to have been revoked; and
(ii) the
person becomes liable to serve that part of each of the sentences referred to
in paragraph (a) (in this subsection called the outstanding sentence
or sentences) that the person had not served at the time of release;
then:
(d) if one of the outstanding
sentences is a sentence of life imprisonment or the new sentence or sentences
and the unserved part of the outstanding sentence or sentences aggregate more
than 3 years—the court imposing the new sentence or sentences must fix a single
new non‑parole period in respect of the new sentence or sentences and the
outstanding sentence or sentences; and
(e) if
the new sentence or sentences and the unserved part of the outstanding sentence
or sentences aggregate 3 years or less—the court imposing the new sentence or
sentences must not fix a non‑parole period but may make a recognizance
release order in respect of the new sentence or sentences and the outstanding
sentence or sentences;
and, in doing so, the court must have regard to the total
period of imprisonment that the person is liable to serve.
(3) 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 to a
term or terms 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, because
of the imposition of the sentence or sentences referred to in paragraph (b)
(in this subsection called the new sentence or sentences):
(i) the parole order or licence
is to be taken to have been revoked; and
(ii) the
person becomes liable to serve that part of each of the sentences referred to
in paragraph (a) (in this subsection called the outstanding sentence
or sentences) that the person had not served at the time of release;
then:
(d) if one of the outstanding
sentences is a life sentence or the unserved part of the outstanding sentence
or sentences is or aggregates more than 3 years—the court imposing the new
sentence or sentences must fix a single new non‑parole period in respect
of the outstanding sentence or sentences; and
(e) if the unserved part of the
outstanding sentence or sentences is or aggregates 3 years or less—the court
imposing the new sentence or sentences must not fix a non‑parole period
but may make a recognizance release order in respect of the outstanding
sentence or sentences.
(4) Where, but for this subsection, the court
would be required by subsection (1), (2) or (3) to fix a non‑parole
period, the court is not required to do so if it is satisfied, having regard to
the nature and circumstances of the offence or offences concerned and to the
antecedents of the offender, that it is not appropriate to do so.
(5) Where a court decides, under this
section, that it is inappropriate either to fix a non‑parole period, or
to make a recognizance release order, 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 or the making of recognizance release orders under this section in the
same way as they apply to the fixing of such periods or the making of such
orders 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 or the failure to make, or properly to make,
recognizance release orders under this section in the same way as it applies to
such failures in relation to the fixing of such periods or the making of such
orders under Division 4.
19AS
Court to issue warrant of detention where person required to serve balance of
sentence
(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) under
section 19AQ, because of the imposition of one or more federal, State or
Territory sentences (in this subsection called the new sentence or
sentences):
(i) that parole order or
licence is to be taken to have been revoked; and
(ii) the person becomes
liable to serve that part of each of the sentences referred to in paragraph (a)
(in this subsection called the outstanding sentence or sentences)
that he or she had not served at the time of release;
then:
(c) 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
(d) 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
(e) 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)(c), the Director of Public Prosecutions may apply to
that court for such a warrant.
19AT
What happens when later conviction is quashed?
(1) Where:
(a) a person who is serving or is to
serve a federal sentence or sentences of imprisonment is released on parole or
licence under this Act; and
(b) under section 19AQ, because
of the imposition of one or more federal, State or Territory sentences (in this
subsection called the new sentence or sentences):
(i) that parole order or
licence is to be taken to have been revoked; and
(ii) the
person becomes liable to serve that part of each of the sentences referred to
in paragraph (a) (in this subsection called the outstanding sentence
or sentences) that he or she had not served at the time of release;
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.
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
(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.
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.
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 subsection (3),
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 may 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 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.
(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).
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.
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.
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.
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.
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.
19AZC
Effect of parole order and licence on sentence
(1) Where a
parole order is made, or a licence is granted, in relation to a person:
(a) until the parole period or licence
period ends without the parole order or licence being revoked, or until the
person is otherwise discharged from imprisonment, the person is to be 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;
and
(b) if the parole period or licence
period ends without the parole order or licence being revoked, the person is to
be taken to have served the part of any sentence that remained to be served at
the beginning of the parole period or licence period and to have been
discharged from imprisonment.
(2) Where a
parole order or licence in relation to a person is, under subsection 19AQ(2) or
(4), to be taken to have been revoked as from the time immediately before the
end of the parole period or licence period, subsection (1) has effect as
if the parole period or the licence period had not ended without the parole
order or the licence being revoked.
19AZD
State and Territory laws providing for leave of absence, pre‑release etc.
to apply to federal offenders
(1) 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.
19B
Discharge of offenders without proceeding to conviction
(1) Where:
(a) a person is charged before a court
with a federal offence or federal offences; 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
(iii) the extent (if any) to
which the offence was committed under extenuating circumstances;
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;
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 giving security, with or without sureties, by recognizance or
otherwise, to the satisfaction of the court, that he will comply with the
following conditions:
(i) that he will be of
good behaviour for such period, not exceeding 3 years, as the court specifies
in the order;
(ii) that he 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 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 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):
criminal behaviour includes:
(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 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 was not guilty of the offence or offences
concerned with which he was charged as he would have had if the court had
convicted him 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 of the offence or
offences concerned; and
(ii) the manner in which he
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.
20
Conditional release of offenders after conviction
(1) Where a person is convicted of a federal
offence or federal offences, the court before which he is convicted may, if it
thinks fit:
(a) by order, release the person,
without passing sentence on him, upon his giving security, with or without
sureties, by recognizance or otherwise, to the satisfaction of the court, that
he will comply with the following conditions:
(i) that he will be of
good behaviour for such period, not exceeding 5 years, as the court specifies
in the order;
(ii) that he 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 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 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; and
(iv) that he 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,
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; or
(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)
either forthwith or after he or she has served a specified period of
imprisonment in respect of that offence or those offences that is calculated in
accordance with subsection 19AF(1).
(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 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 is dealt with
had been a sentence passed upon his 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 19AB,
19AC, 19AE and 19AR (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.
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 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 apprehension and the
detention of the person in custody until he 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 is to be brought is not sitting at the time of his 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, 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.
(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 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
could have been dealt with for that offence or those offences if the order had
not been made and he 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 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 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 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 is dealt with had been a sentence or sentences passed upon
his 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 of the offence or
offences; and
(ii) the manner in which he
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 conviction for an offence against the
law of the Commonwealth.
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 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 date on 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 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 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 agreed to be liable when he 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 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.
20AB
Additional sentencing alternatives
(1) Where under the law of a participating
State or a participating Territory a court is empowered in particular cases to
pass a sentence or make an order known as a community service order, a work
order, a sentence of periodic detention, an attendance centre order, a sentence
of weekend detention or an attendance order, or to pass or make a similar
sentence or order or a sentence or order that is prescribed for the purposes of
this section, in respect of a State or Territory offender, such a sentence or
order may in corresponding cases be passed or made by that court or any federal
court in respect of a person convicted before that first‑mentioned court,
or before that federal court in that State or Territory, of a federal offence.
(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 subsection (1) 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 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 on the 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.
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 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 apprehension and the
detention of the person in custody until he 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 is to be brought is not sitting at the
time of his 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 could have been dealt with for that offence if the sentence had not
been passed or the order had not been made and he 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 of the offence; and
(b) the manner in which he 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 conviction for a federal offence.
Division 6—Unfitness to be tried
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.
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.
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), 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, 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.
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.
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.
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.
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.
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.
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.
Division 7—Acquittal because of mental illness
20BJ
Acquittal where person mentally ill
(1) 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.
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.
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.
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.
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.
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
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 or
21B in respect of the person in respect of the offence.
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
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 of that 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.
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).
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.
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.
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.
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.
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 10—Miscellaneous
20C
Offences by children and young persons
(1) 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.
(2) Where a person under the age of 18 years
is convicted of an offence against a law of the Commonwealth that is punishable
by death, he shall not be sentenced to death but the court shall impose such
other punishment as the court thinks fit.
21B
Reparation for offences
(1) Where:
(a) a person is convicted of a federal
offence; 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 by the
person as a direct result 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.
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.
21E
Director of Public Prosecutions may appeal against reductions where promised co‑operation
with law enforcement agencies refused
(1) Where a federal sentence, or a federal
non‑parole period, is reduced by the court imposing the sentence or
fixing the non‑parole period because the offender has undertaken to co‑operate
with law enforcement agencies in proceedings, including confiscation
proceedings, relating to any offence, the court must:
(a) if the sentence imposed is
reduced—specify that the sentence is being reduced for that reason and state
the sentence that would have been imposed but for that reduction; and
(b) if the non‑parole period is
reduced—specify that the non‑parole period is being reduced for that
reason and state what the period would have been but for that reduction.
(2) Where:
(a) a federal sentence is imposed or a
federal non‑parole period is fixed; and
(b) the sentence or non‑parole
period is reduced because the offender has undertaken to co‑operate with
law enforcement agencies as described in subsection (1); and
(c) after sentence, the offender,
without reasonable excuse, does not co‑operate in accordance with the
undertaking;
the Director of Public Prosecutions may, at any time while
the offender is under sentence, if the Director of Public Prosecutions is of
the opinion that it is in the interests of the administration of justice to do
so, appeal against the inadequacy of the sentence or of the non‑parole
period.
(3) Where an appeal is begun under this
section against the inadequacy of a sentence, or of a non‑parole period,
that was reduced because of a person’s undertaking to co‑operate with law
enforcement agencies, the court hearing the appeal:
(a) if it is satisfied that the person
has failed entirely to co‑operate in accordance with the undertaking—must
substitute for the reduced sentence or reduced non‑parole period the
sentence, or non‑parole period, that would have been imposed on, or fixed
in respect of, the person but for that reduction; and
(b) if it is satisfied that the person
has failed in part to co‑operate in accordance with the undertaking—may
substitute for the reduced sentence or reduced non‑parole period such a
sentence, or such a non‑parole period, not exceeding in length the
sentence that could be imposed, or the non‑parole period that could be
fixed, under paragraph (a), as it thinks appropriate.
(4) In subsection (1):
confiscation
proceedings includes:
(a) proceedings for 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.
21F
Prescribed authorities and parole officers
(1) Subject to subsection (2), the
Governor‑General may arrange with the Governor of a State, the Australian
Capital Territory Executive, the Administrator of the Northern Territory or the
Administrator of Norfolk Island:
(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.
22
Conditions etc. that a court may impose on certain offenders
(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 passport;
(e) to surrender possession of any
Australian passport held by the person.
(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.
(3) The court may, by order, revoke an order
made under subsection (1) or vary such an order as the court sees fit.
(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 to the Department
administering the Australian Passports Act 2005 a copy of the order.
(5) If the court makes an order under paragraph (1)(e):
(a) the passport must be given to the
Registrar or other appropriate officer of the court; and
(b) the Registrar or officer must
cause the passport to be kept in such custody as he or she thinks fit until:
(i) the passport is required
to be released under subsection (6); or
(ii) the passport is
cancelled or expires;
whichever happens first.
(6) If a passport 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 passport at that time must, on the
application of the person to whom it was issued, cause it to be returned to
that person.
(7) In this section:
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).
relevant sentence means:
(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.
22A
State orders relating to passports
(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 passport held by
the person, the person must surrender the passport to the Registrar, or other
appropriate officer, of the court to be dealt with in accordance with that law.
(2) In this
section:
serious drug offence has the same meaning as
in section 22.
Part IC—Investigation of Commonwealth offences
Division 1—Introduction
23
Outline of this Part
(1) 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
(ii) certain other people
who are being investigated for Commonwealth offences;
(see Division 3).
(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.
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) If an offence against a law of the
Australian Capital Territory is punishable by imprisonment for a period
exceeding 12 months and the investigating official concerned is a member or
special member of the Australian Federal Police, this Part applies to that
offence as if:
(a) references to Commonwealth
offences included references to that offence; and
(b) references to a law of the
Commonwealth included references to a law of that Territory.
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.
23B
Definitions
(1) In this
Part:
Aboriginal legal aid
organisation means an organisation that provides legal assistance to
Aboriginal persons and Torres Strait Islanders, being an organisation identified
in the regulations for the purposes of this definition.
arrested: a person is arrested if the person
is arrested for a Commonwealth offence and the person’s arrest has not ceased
under subsection (3) or (4).
Commonwealth offence means:
(a) an offence against a law of the
Commonwealth, other than an offence that is a service offence for the purposes
of the Defence Force Discipline Act 1982; or
(b) a State offence that has a federal
aspect.
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.
investigating official means:
(a) a member or special member of the
Australian Federal Police; or
(b) a member of the police force of a
State or Territory; or
(c) a person who holds an office the
functions of which include the investigation of Commonwealth offences and who
is empowered by a law of the Commonwealth because of the holding of that office
to make arrests in respect of such offences.
investigation period means the investigation
period prescribed by section 23C or 23CA, as the case requires.
protected suspect has the meaning given by subsection (2).
question has the meaning given by subsection (6).
tape recording means audio recording, video
recording or recording by other electronic means.
under arrest: a person is under arrest if the
person has been arrested for a Commonwealth offence and the person’s arrest has
not ceased under subsection (3) or (4).
(2) A person is a protected suspect
if:
(a) the person is in the company of an
investigating official for the purpose of being questioned about a Commonwealth
offence; and
(b) the person has not been arrested
for the offence; and
(c) one or more of the following
applies in relation to the person:
(i) the official believes
that there is sufficient evidence to establish that the person has committed
the offence;
(ii) the official would not
allow the person to leave if the person wished to do so;
(iii) the official has given
the person reasonable grounds for believing that the person would not be
allowed to leave if he or she wished to do so; and
(d) none of the following applies in
relation to the person:
(i) the official is
performing functions in relation to persons or goods entering Australia, and
the official does not believe that the person has committed a Commonwealth
offence;
(ii) the official is
performing functions in relation to persons or goods leaving Australia, and the
official does not believe that the person has committed a Commonwealth offence;
(iii) the official is
exercising a power under a law of the Commonwealth to detain and search the
person;
(iv) the official is
exercising a power under a law of the Commonwealth to require the person to
provide information or to answer questions; and
(e) the person has not ceased to be a
suspect under subsection (4).
(3) A person ceases, for the purposes of this
Part, to be arrested for a Commonwealth offence if the person is remanded in
respect of that offence by one of the following:
(a) a magistrate;
(b) a justice of the peace;
(c) a person authorised to grant bail
under the law of the State or Territory in which the person was arrested;
otherwise than under paragraph 83(3)(b), (4)(b), (8)(a),
(8)(b), subsection 83(12), paragraph 83(14)(a), or subparagraph 84(4)(a)(ii) or
(6)(a)(i) of the Service and Execution of Process Act 1992.
(4) A person ceases, for the purposes of this
Part, to be arrested or a protected suspect if:
(a) an investigating 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.
23C
Period of arrest if arrested for non‑terrorism offence
(1) If a person is arrested for a
Commonwealth offence (other than a terrorism offence), the following provisions
apply.
(2) The person may be detained for the
purpose of investigating either or both of the following:
(a) whether the person committed the
offence;
(b) whether the person committed
another Commonwealth offence that an investigating official reasonably suspects
the person to have committed;
but must not be detained for that purpose, or for purposes
that include that purpose, after the end of the investigation period prescribed
by this section.
(3) The person must be:
(a) released (whether unconditionally
or on bail) within the investigation period; or
(b) brought before a judicial officer
within that period or, if it is not practicable to do so within that period, as
soon as practicable after the end of that period.
Note: For judicial officer, see subsection (9).
(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 23D.
(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 23CA.
(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
(ii) that arose in
different circumstances to those in which any Commonwealth offence to which the
first arrest relates arose, and for which new evidence has been found since the
first arrest; and
(b) the person’s questioning
associated with the later arrest does not relate to:
(i) a Commonwealth offence
to which the first arrest relates; or
(ii) the circumstances in
which such an offence was committed.
(7) In ascertaining any period of time for
the purposes of subsection (4) or (6), the following times are to be
disregarded:
(a) the time (if any) that is
reasonably required to convey the person from the place at which the person is
arrested to the nearest premises at which the investigating official has access
to facilities for complying with this Part;
(b) any time during which the
questioning of the person is suspended or delayed to allow the person, or
someone else on the person’s behalf, to communicate with a legal practitioner,
friend, relative, parent, guardian, interpreter or other person as provided by
this Part;
(c) any time during which the
questioning of the person is suspended or delayed to allow such a legal
practitioner, friend, relative, parent, guardian, interpreter or other person
to arrive at the place where the questioning is to take place;
(d) any time during which the
questioning of the person is suspended or delayed to allow the person to
receive medical attention;
(e) any time during which the
questioning of the person is suspended or delayed because of the person’s
intoxication;
(f) any time during which the
questioning of the person is suspended or delayed to allow for an
identification parade to be arranged and conducted;
(fa) any time during which the
questioning of the person is suspended or delayed in order to allow the making
of an application under section 3ZQB or the carrying out of a prescribed
procedure within the meaning of Division 4A of Part IAA;
(g) the time (if any) that is
reasonably required in connection with making and disposing of an application
under section 23D, 23WU or 23XB;
(ga) any time during which the
constable is informing the person of matters specified in section 23WJ;
(h) any reasonable time during which
the questioning of the person is suspended or delayed to allow the person to
rest or recuperate;
(i) any time during which a forensic
procedure is being carried out on the person by order of a magistrate under Division 5
of Part ID;
(j) any time during which the
questioning of the person is suspended or delayed, if section 23XGD
applies and that time is to be disregarded in working out a period of time for
the purposes of that section.
(8) In any proceedings, the burden lies on
the prosecution to prove that:
(a) the person was brought before a
judicial officer as soon as practicable; or
(b) any particular time was covered by
a provision of subsection (7).
(9) In this section:
judicial officer means any of the following:
(a) a magistrate;
(b) a justice of the peace;
(c) a person authorised to grant bail
under the law of the State or Territory in which the person was arrested.
23CA
Period of arrest if arrested for terrorism offence
(1) If a person is arrested for a terrorism
offence, the following provisions apply.
(2) The person may be detained for the
purpose of investigating either or both of the following:
(a) whether the person committed the
offence;
(b) whether the person committed
another terrorism offence that an investigating official reasonably suspects
the person to have committed;
but must not be detained for that purpose, or for purposes
that include that purpose, after the end of the investigation period prescribed
by this section.
(3) The person must be:
(a) released (whether unconditionally
or on bail) within the investigation period; or
(b) brought before a judicial officer
within that period or, if it is not practicable to do so within that period, as
soon as practicable after the end of that period.
Note: For judicial officer, see subsection (10).
(4) For the purposes of this section, but
subject to subsections (6) and (8), the investigation period begins when
the person is arrested, and ends at a time thereafter that is reasonable, having
regard to all the circumstances, but does not extend beyond:
(a) if the person is or appears to be
under 18, an Aboriginal person or a Torres Strait Islander—2 hours; or
(b) in any other case—4 hours;
after the arrest, unless the period is extended under
section 23DA.
(5) In ascertaining any period of time for
the purposes of this section, regard shall be had to the number and complexity
of matters being investigated.
(6) If the person has been arrested more than
once within any period of 48 hours, the investigation period for each arrest
other than the first is reduced by so much of any of the following periods as
occurred within that 48 hours:
(a) any earlier investigation period
or periods under this section;
(b) any earlier investigation period or
periods under section 23C.
(7) However, in relation to each first
arrest, disregard subsection (6) for any later arrest if:
(a) the later arrest is for a
Commonwealth offence:
(i) that was committed
after the end of the person’s period of detention under this Part for the first
arrest; or
(ii) that arose in
different circumstances to those in which any Commonwealth offence to which the
first arrest relates arose, and for which new evidence has been found since the
first arrest; and
(b) the person’s questioning
associated with the later arrest does not relate to:
(i) a Commonwealth offence
to which the first arrest relates; or
(ii) the circumstances in
which such an offence was committed.
(8) In ascertaining any period of time for
the purposes of subsection (4) or (6), the following times are to be
disregarded:
(a) the time (if any) that is
reasonably required to convey the person from the place at which the person is
arrested to the nearest premises at which the investigating official has access
to facilities for complying with this Part;
(b) any time during which the
questioning of the person is suspended or delayed to allow the person, or
someone else on the person’s behalf, to communicate with a legal practitioner,
friend, relative, parent, guardian, interpreter or other person as provided by
this Part;
(c) any time during which the
questioning of the person is suspended or delayed to allow such a legal
practitioner, friend, relative, parent, guardian, interpreter or other person
to arrive at the place where the questioning is to take place;
(d) any time during which the
questioning of the person is suspended or delayed to allow the person to
receive medical attention;
(e) any time during which the
questioning of the person is suspended or delayed because of the person’s
intoxication;
(f) any time during which the
questioning of the person is suspended or delayed to allow for an
identification parade to be arranged and conducted;
(g) any time during which the
questioning of the person is suspended or delayed in order to allow the making
of an application under section 3ZQB or the carrying out of a prescribed
procedure within the meaning of Division 4A of Part IAA;
(h) the time (if any) that is
reasonably required in connection with making and disposing of an application
under section 23CB, 23DA, 23WU or 23XB;
(i) any time during which the
constable is informing the person of matters specified in section 23WJ;
(j) any reasonable time during which
the questioning of the person is suspended or delayed to allow the person to
rest or recuperate;
(k) any time during which a forensic
procedure is being carried out on the person by order of a magistrate under
Division 5 of Part ID;
(l) any time during which the
questioning of the person is suspended or delayed, if section 23XGD
applies and that time is to be disregarded in working out a period of time for
the purposes of that section;
(m) any reasonable time that:
(i) is a time during which
the questioning of the person is reasonably suspended or delayed; and
(ii) is within a period
specified under section 23CB.
(9) In any proceedings, the burden lies on
the prosecution to prove that:
(a) the person was brought before a
judicial officer as soon as practicable; or
(b) any particular time was covered by
a provision of subsection (8).
(10) In this section:
judicial officer means any of the following:
(a) a magistrate;
(b) a justice of the peace;
(c) a person authorised to grant bail
under the law of the State or Territory in which the person was arrested.
23CB
Specifying time during which suspension or delay of questioning may be
disregarded
(1) This section applies if the person
mentioned in paragraph 23CA(8)(m) is detained under subsection 23CA(2) for the
purpose of investigating whether the person committed a terrorism offence.
Note: The person may be detained under subsection
23CA(2) for the purpose of investigating whether the person committed a
terrorism offence, whether the person was arrested for that terrorism offence
or a different terrorism offence.
Application for specification of period
(2) At or before the end of the investigation
period, an investigating official may apply for a period to be specified for
the purpose of subparagraph 23CA(8)(m)(ii).
(3) The application must be made to:
(a) a magistrate; or
(b) if it cannot be made at a time
when a magistrate is available—a justice of the peace employed in a court of a
State or Territory or a bail justice; or
(c) if it cannot be made when any of
the foregoing is available—any justice of the peace.
(4) The application may be made:
(a) in person before the magistrate,
justice of the peace or bail justice; or
(b) in writing; or
(c) by telephone, telex, fax or other
electronic means.
However, before making the application by means described
in paragraph (c), the investigating official must inform the person that
the person, or his or her legal representative, may make representations to the
magistrate, justice of the peace or bail justice about the application.
(5) The application must include statements
of all of the following:
(a) whether it appears to the
investigating official that the person is under 18;
(b) whether it appears to the
investigating official that the person is an Aboriginal person or a Torres
Strait Islander;
(c) the reasons why the investigating
official believes the period should be specified, which may, for example, be or
include one or more of the following:
(i) the need to collate
and analyse information relevant to the investigation from sources other than
the questioning of the person (including, for example, information obtained
from a place outside Australia);
(ii) the need to allow
authorities in or outside Australia (other than authorities in an organisation
of which the investigating official is part) time to collect information
relevant to the investigation on the request of the investigating official;
(iii) the fact that the
investigating official has requested the collection of information relevant to
the investigation from a place outside Australia that is in a time zone
different from the investigating official’s time zone;
(iv) the fact that
translation is necessary to allow the investigating official to seek
information from a place outside Australia and/or be provided with such
information in a language that the official can readily understand;
(d) the period that the investigating
official believes should be specified.
(6) The person, or his or her legal
representative, may make representations about the application.
Decision about specifying period
(7) The magistrate, justice of the peace or
bail justice may, by signed instrument, specify a period starting at the time
the instrument is signed, if satisfied that:
(a) it is appropriate to do so, having
regard to:
(i) the application; and
(ii) the representations
(if any) made by the person, or his or her legal representative, about the
application; and
(iii) any other relevant
matters; and
(b) the offence is a terrorism
offence; and
(c) detention of the person is
necessary to preserve or obtain evidence or to complete the investigation into
the offence or into another terrorism offence; and
(d) the investigation into the offence
is being conducted properly and without delay; and
(e) the person, or his or her legal
representative, has been given the opportunity to make representations about
the application.
Instrument specifying period
(8) The instrument must:
(a) specify the period as a number
(which may be less than one) of hours; and
(b) set out the day and time when it
was signed; and
(c) set out the reasons for specifying
the period.
(9) The magistrate, justice of the peace or
bail justice must:
(a) give the investigating official a
copy of the instrument as soon as practicable after signing it; and
(b) if the instrument was made as a
result of an application made by means described in paragraph (4)(c)—inform
the investigating official of the matters included in the instrument.
Evidentiary provisions if application was made by
telephone, fax etc.
(10) As soon as practicable after being
informed of those matters, the investigating official must:
(a) complete a form of the instrument
and write on it the name of the magistrate, justice of the peace or bail
justice and the particulars given by him or her; and
(b) forward it to the magistrate,
justice of the peace or bail justice.
(11) If the form of the instrument completed by
the investigating official does not, in all material respects, accord with the
terms of the instrument signed by the magistrate, justice of the peace or bail
justice, the specification of the period is taken to have had no effect.
(12) In any proceedings, if the instrument
signed by the magistrate, justice of the peace or bail justice is not produced
in evidence, the burden lies on the prosecution to prove that the period was
specified.
23D
Extension of investigation period if arrested for non‑terrorism offence
(1) If a person is under arrest for a serious
offence (other than a terrorism offence), an investigating official may, at or
before the end of the investigation period, apply for an extension of the
investigation period.
(2) The
application must be made to:
(a) a magistrate; or
(b) if it cannot be made at a time
when a magistrate is available—a justice of the peace employed in a court of a
State or Territory or a bail justice; or
(c) if it cannot be made when any of
the foregoing is available—any justice of the peace.
The magistrate, justice of the peace or bail justice to
whom the application is made is the judicial officer for the
purposes of this section and section 23E.
(3) The application may be made before the
judicial officer, or in writing, or as prescribed by section 23E, and the
person or his or her legal representative may make representations to the
judicial officer about the application.
(4) Subject to subsection (5), the
judicial officer may extend the investigation period, by signed written
authority, if satisfied that:
(a) the offence is a serious 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 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.
(4A) The authority 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.
(4B) The judicial officer must give the
investigating official a copy of the authority as soon as practicable after
signing the authority.
(5) The investigation period may be extended
for a period not exceeding 8 hours, and must not be extended more than once.
(6) In this section:
serious offence means a Commonwealth offence
that is punishable by imprisonment for a period exceeding 12 months.
23DA
Extension of investigation period if arrested for terrorism offence
(1) If a person is under arrest for a
terrorism offence, an investigating official may, at or before the end of the
investigation period, apply for an extension of the investigation period.
(2) The
application must be made to:
(a) a magistrate; or
(b) if it cannot be made at a time
when a magistrate is available—a justice of the peace employed in a court of a
State or Territory or a bail justice; or
(c) if it cannot be made when any of
the foregoing is available—any justice of the peace.
The magistrate, justice of the peace or bail justice to
whom the application is made is the judicial officer for the
purposes of this section and section 23E.
(3) The application may be made before the
judicial officer, or in writing, or as prescribed by section 23E, and the
person or his or her legal representative may make representations to the
judicial officer about the application.
(4) Subject to subsection (7), the
judicial officer may extend the investigation period, by signed written
authority, if satisfied that:
(a) the offence is 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 terrorism 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.
(5) The authority 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.
(6) The judicial officer must give the
investigating official a copy of the authority as soon as practicable after
signing the authority.
(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.
23E
Applications by telephone etc.
(1) An application under section 23D or
23DA for extension of the investigation period may be made by telephone, telex,
fax or other electronic means in accordance with this section.
(2) Before making the application, the
investigating official must inform the person under arrest that he or she, or
his or her legal representative, may make representations to the judicial
officer about the application.
(3) If the judicial officer extends the
investigation period, he or she must inform the investigating official of the
matters set out in the authority under subsection 23D(4A) or 23DA(5) (as the
case requires).
(4) As soon as practicable after being informed
of those matters, the investigating official must:
(a) complete a form of authority and
write on it the name of the judicial officer and the particulars given by the
judicial officer; and
(b) forward it to the judicial
officer.
(5) If the form of authority completed by the
investigating official does not, in all material respects, accord with the
terms of the authority signed by the judicial officer, the authority granted by
the judicial officer is taken to have had no effect.
(6) In any proceedings, if the authority
signed by the judicial officer is not produced in evidence, the burden lies on
the prosecution to prove that the authority was granted.
Division 3—Obligations of investigating officials
Note: These obligations apply in relation to protected
suspects as well as to people under arrest.
23F
Cautioning persons who are under arrest or protected suspects
(1) 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.
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.
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:
(a) immediately inform the person that
a representative of an Aboriginal legal aid organisation will be notified that
the person is under arrest or a protected suspect (as the case requires); and
(b) notify such a representative
accordingly.
(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 communication will 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 one of the following to be the person’s interview
friend:
(a) a representative of an Aboriginal
legal aid organisation;
(b) a person whose name is included in
the relevant list maintained under subsection 23J(1).
(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 aid organisation; or
(d) a person whose name is included in
the relevant list maintained under subsection 23J(1).
23J
Lists of interview friends and interpreters
(1) The Minister must, so far as is
reasonably practicable, establish and update at such intervals as the Minister
thinks appropriate, a list, in relation to a region where there are likely to
be persons under arrest and under investigation for Commonwealth offences, of
the names of persons (not being constables) who:
(a) are suitable to help Aboriginal
persons or Torres Strait Islanders under arrest and under investigation for
Commonwealth offences; and
(b) are willing to give such help in
that region.
(2) In establishing and maintaining a list in
relation to a region, the Minister or his or her delegate must, from time to
time, consult with any Aboriginal legal aid organisation providing legal
assistance to Aboriginal persons or Torres Strait Islanders in that region.
(3) The Minister must, so far as is
reasonably practicable, establish and update at such intervals as the Minister
thinks appropriate, a list, in relation to such a region, of the names of
persons who are able and willing to act as interpreters for Aboriginal persons
or Torres Strait Islanders who:
(a) because of inadequate knowledge of
the English language, or a physical disability, are unable to communicate
orally with reasonable fluency in that language; and
(b) are under arrest and under
investigation in that region for Commonwealth offences.
(4) The list of names referred to in subsection (3)
must, so far as is reasonably practicable, specify the languages that each
person on the list is able to understand and converse in.
(5) The Minister may, in writing, delegate to
an officer of the Department all or any of the powers of the Minister under
this section.
23K
Persons under 18
(1) 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 suspect 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 whose name is included in the relevant list maintained
under subsection 23J(1); 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.
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
(ii) the holder of an
office prescribed for the purposes of this section, other than an office in a
police force;
has authorised the application
of subsection (1) and has made a record of the investigating official’s
grounds for belief.
(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.
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.
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.
23P
Right of non‑Australian nationals to communicate with consular office
(1) 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
(ii) the country to which
he or she claims a special connection;
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
(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.
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.
23S
Right to remain silent etc. not affected
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.
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.
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).
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) Where a confession or admission is made
to an investigating official who was, at the time when it was made, engaged in
covert investigations under the orders of a superior, this section applies as
if the acts required by paragraph (1)(b) and subsection (2) to be
performed were required to be performed by the official at a time when they
could reasonably be performed without prejudice to the covert investigations.
(4) Despite any arrangement made under the
Commonwealth Places (Application of Laws) Act 1970, this section applies to
any offence under a law applied by that Act 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.
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.