An Ordinance relating to law
enforcement in the Territory
Part 1 Preliminary
1 Short
title [see Note 1]
This Ordinance may be cited as the Criminal
Procedure Ordinance 1993.
2 Commencement
This Ordinance comes into operation on 1 December
1993.
3 Application
of this Ordinance
This Ordinance does not apply to a voyage
leader, or a deputy voyage leader, in the capacity of special constable on a
ship in relation to a person on the ship who is:
(a) the master; or
(b) a seaman; or
(c) a pilot; or
(d) a person temporarily employed on the ship in
port; or
(e) a passenger;
within the meaning of the Navigation Act 1912, unless the
person is a member of the Australian expedition to the Territory of which the
special constable is the voyage leader or deputy voyage leader.
4 Interpretation
(1) In this Ordinance, unless the contrary intention
appears:
AFP means Australian Federal Police.
aircraft does not include hovercraft.
arrested person means person arrested
under Part 3, but does not include a charged person or a detainee.
certificate of bail means certificate
referred to in paragraph 29 (6) (a).
charge means charge under section 24.
charged person means person against whom a
charge is made, but does not include a detainee.
court means court that has criminal
jurisdiction in the Territory.
deputy voyage leader means person appointed
by the Commonwealth to be the deputy of a voyage leader.
detainee means person detained under a
warrant of detention.
field leader means person appointed by the
Commonwealth to be the leader of the members of an Australian expedition in the
Territory, except those on a ship.
identity card means identity card issued
under subsection 5 (1).
investigating officer means:
(a) a special constable; or
(b) another person who holds an office the
functions of which include the investigation of an offence.
leader means field leader, voyage leader or
deputy voyage leader.
legal representative means barrister or
solicitor of the High Court or of the Supreme Court of a State or Territory.
Magistrate and Magistrates Court
have the same respective meanings as in the Magistrates Court Act 1930
of the Australian Capital Territory:
(a) as in force in the Jervis Bay Territory; and
(b) in its application to the Territory of Heard
Island and McDonald Islands.
medical officer means person who is:
(a) a registered medical practitioner; and
(b) appointed by the Commonwealth to be the
medical officer of an Australian expedition in the the Territory or of a ship
carrying members of an Australian expedition to or from the Territory.
mental dysfunction means disturbance
or defect, to a substantially disabling degree, of perceptual interpretation,
comprehension, reasoning, learning, judgment, memory, motivation or emotion.
offence means offence against a law in force
in:
(a) the Territory; or
(b) a State or another Territory.
person in custody means:
(a) an arrested person; or
(b) a charged person; or
(c) a detainee.
place of detention means place of detention
designated under section 6.
police officer means member or special member
of the AFP.
premises includes:
(a) a structure, building, aircraft, vehicle or
vessel; and
(b) land or a place (whether enclosed or built
upon or not); and
(c) part of premises, including premises of a
kind referred to in paragraph (a) or (b).
search warrant means search warrant granted
under subsection 8 (3).
special constable means:
(a) leader; or
(b) police officer.
substance includes mixture of substances.
summons means summons issued under subsection
17 (1) or 30 (6).
telecommunications means
communications carried by means of guided or unguided electromagnetic energy,
or both.
thing includes substance.
vehicle includes hovercraft and sled.
vessel does not include hovercraft.
voyage leader means person appointed by the
Commonwealth to be the leader of the members of an Australian expedition to the
Territory who are on a ship that is on a voyage to or from the Territory.
warrant for apprehension means warrant
issued under subsection 47 (1).
warrant of detention means warrant issued
under subsection 28 (6) or granted under subsection 30 (4).
warrant to arrest means warrant granted under
subsection 16 (1).
(2) In this Ordinance, a thing:
(a) obtained by the commission of an offence,
used for the purpose of committing an offence or in respect of which an offence
has been committed; or
(b) that may afford evidence of the commission of
an offence; or
(c) that is intended to be used for the purpose
of committing an offence;
is taken to be a thing connected with the offence.
(3) In this Ordinance, unless the contrary intention
appears, a reference to the entry and search of premises includes a reference
to an act referred to in subparagraph 8 (3) (a) (iii), (iv), (v)
or (vi) (‘other searches’).
(4) In this Ordinance, a reference to oral communication
between persons includes a reference to oral communication between those
persons by means of telecommunications.
(5) In this Ordinance, a reference to the giving or
issuing of a document, or of a copy of a document, by a person to another
person includes a reference to the transmission of the document or copy by
telecommunications.
(6) In this Ordinance, a reference to a form by number
is a reference to the form so numbered in Schedule 1.
4A Application
of the Criminal Code
Chapter 2 of the Criminal Code applies to
offences against this Ordinance.
Note Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
5 Identity
cards
(1) The Minister is to issue to each leader an identity
card that specifies:
(a) the name of the person; and
(b) his or her capacity for the purposes of this
Ordinance;
to which is attached a recent photograph of the person.
(2) A person who ceases to be a leader must not, unless
he or she has a reasonable excuse, fail to return his or her identity card to
the Minister as soon as practicable after ceasing to be a leader.
Penalty: 1 penalty unit.
(3) An offence under subsection (2) is an offence of
strict liability.
Note 1 For strict liability,
see section 6.1 of the Criminal Code.
Note 2 A defendant bears an
evidential burden in relation to whether or not he or she had a reasonable
excuse (see section 13.3 of the Criminal Code).
6 Places
of detention
(1) A field leader may designate in writing a building,
or a part of a building, to be a place of detention in the Territory.
(2) A voyage leader or deputy voyage leader may
designate in writing a ship, or a part of a ship, in respect of which he or she
is appointed to be a place of detention.
Part 2 Search
7 Searches
in emergencies
(1) This section has effect subject to section 22
(‘searching persons’).
(2) A special constable, with such assistance as
is necessary and reasonable may, without a search warrant:
(a) search a person, if he or she reasonably
suspects that the person is in possession of a thing connected with an offence;
or
(b) enter and search premises and, if necessary
and reasonable, use force to enter and search when he or she reasonably
suspects that a thing connected with an offence is on the premises;
if the constable reasonably believes that the search or entry, as
the case may be, is:
(c) made in circumstances of such seriousness
and urgency as to justify immediate search or entry; or
(d) necessary to prevent concealment, loss or
destruction of evidence or use of the thing in committing an offence.
(3) If a special constable searches a person or enters
premises under subsection (2), he or she must:
(a) if he or she is a leader — produce his
or her identity card; and
(b) if he or she is a police officer —
produce written evidence of the fact that he or she is a police officer;
for inspection by the person to be searched or the person
apparently in charge of the premises and, if the constable does not do so, he
or she is not authorised to search the person or enter and search the premises.
(4) Subsection (3) does not apply if the actions of the
person make it impracticable for the special constable to produce his or her
identity card or the written evidence referred to in paragraph (3) (b).
(5) A special constable must not, in searching premises,
damage the premises or a thing on the premises to a greater extent than is
necessary and reasonable for the purposes of the search.
8 Other
searches
(1) This section has effect subject to section 22
(‘searching persons’).
(2) If a special constable reasonably suspects
that there is, or will be in the next 7 days:
(a) on premises; or
(b) in the possession of a person;
a particular thing, or a thing of a particular kind, that is
connected with a particular offence, the constable may apply to a Magistrate
for a warrant to search the person or to enter the premises and search for the
thing on the premises.
(3) A Magistrate may, in accordance with Part 4 (‘search
warrants and warrants to arrest’) grant a search warrant authorising the
special constable named in the warrant, with such assistance as is necessary
and reasonable and, if necessary and reasonable by force:
(a) in relation to premises:
(i) to enter premises; and
(ii) to search the premises; and
(iii) to examine or photograph, or make
another record of, or secure, the premises or a thing found on the premises;
and
(iv) to take samples of the thing
(including parts of premises); and
(v) to seize and remove a thing found
in the search that he or she reasonably believes to be connected with an
offence; and
(vi) to take extracts from, or make
copies of, a document found on the premises; and
(b) in relation to a person:
(i) to search the person; and
(ii) to enter and search premises where
the person is or was, within the period of 24 hours before the search
commenced, located.
(4) A special constable may give effect to a search
warrant at any time in the period beginning when the warrant takes effect and
ending at the end of:
(a) 7 days after the day on which the warrant
takes effect; or
(b) an earlier day stated in the warrant.
(5) A special constable who gives effect to a search
warrant must produce the warrant, or a copy of the warrant, for inspection by:
(a) the person to be searched in accordance with
the warrant; or
(b) the person apparently in charge of the
premises to which the warrant relates;
and, if the constable does not do so, he or she is not authorised
to give effect to the warrant.
(6) Subsection (3) does not prevent the grant of
successive warrants in relation to the same premises or person.
(7) Subsection (5) does not apply if the actions of the
person make it impracticable for the special constable to produce the search
warrant or a copy of the warrant.
(8) A search warrant must be in accordance with Form 1.
9 Things
that have been seized
(1) If:
(a) a thing is seized under this Ordinance; and
(b) proceedings for an offence for which the
thing may be evidence are not begun within the period of 60 days from the day
on which the person charged with the offence first arrives in Australia after
leaving the Territory;
at the end of that period, or such longer period as may be
determined by a Magistrate on application, the thing must be returned to the
person from whom it was seized or (if that person is not entitled to possess
it) to its owner.
(2) If:
(a) a thing is seized under this Ordinance; and
(b) proceedings for an offence for which the
thing may be evidence are begun within the period referred to in paragraph
(1) (b);
the thing may be retained until the proceedings (including an
appeal to a court in relation to those proceedings) are completed.
(3) The Minister may authorise the release of a thing
referred to in subsection (2) to its owner or to the person from whom it was
seized, either:
(a) unconditionally; or
(b) on reasonable conditions, which may include
conditions as to giving security for payment of its value if it is forfeited.
(4) If, in proceedings for an offence before a court:
(a) the defendant is the owner of a thing seized
under this Ordinance; and
(b) the offence is proved;
the court may order the forfeiture of the thing to the
Commonwealth.
(5) In considering whether it is appropriate to make an
order referred to in subsection (4) in respect of a thing, the court may have
regard to:
(a) any hardship that may reasonably be expected
to be caused to a person by the operation of the order; and
(b) the use that is ordinarily made, or was
intended to be made, of the thing.
Part 3 Arrest
and summons
10 Arrest
without warrant
A special constable, with such assistance as
is necessary and reasonable and if necessary and reasonable by force, may
arrest a person without a warrant to arrest, if there are reasonable grounds to
believe:
(a) that the person is committing, or has
committed, an offence; and
(b) that proceeding against the person by summons
in respect of the offence would not achieve 1 or more of the following
purposes:
(i) to ensure the appearance of the
person before a court in respect of the offence;
(ii) to prevent the continuation or a
repetition of the offence or another offence;
(iii) to prevent the concealment, loss
or destruction of evidence relating to that offence;
(iv) to prevent the harassment or
intimidation of, or interference with, a person who may be required to give
evidence in proceedings for the offence;
(v) to prevent the fabrication of
evidence to be given or produced in proceedings for the offence;
(vi) to preserve the safety or welfare
of a person.
11 Application
for warrant to arrest
If there are reasonable grounds to believe that:
(a) a person is committing or has committed an
offence; and
(b) that proceeding against the person by summons
would not achieve 1 or more of the following purposes:
(i) to ensure the appearance of the
person before a court in respect of the offence;
(ii) to prevent the continuation or a
repetition of the offence or another offence;
(iii) to prevent the concealment, loss
or destruction of evidence relating to that offence;
(iv) to prevent the harassment or
intimidation of, or interference with, a person who may be required to give
evidence in proceedings for the offence;
(v) to prevent the fabrication of
evidence to be given or produced in proceedings for the offence;
(vi) to preserve the safety or welfare
of any person;
a special constable may apply to a Magistrate under Part 4 (‘search
warrants and warrants to arrest’) for a warrant to arrest the person.
12 Procedure
at the time of arrest
(1) A special constable must, at the time of the arrest
of a person:
(a) if the constable has a warrant to arrest the
person — produce the warrant, or a copy of the warrant; or
(b) if the constable is arresting the person without
a warrant or there are reasonable grounds to believe that a warrant to arrest
the person has been granted — tell the person of the offence for which the
person is being arrested and produce:
(i) in the case of a leader — his
or her identity card; and
(ii) in the case of a police
officer — written evidence of the fact that he or she is a police officer;
for inspection by the person and if the constable does not do so,
he or she is not authorised to arrest that person.
(2) A special constable is taken to have complied with
paragraph (1) (b) if the constable tells the arrested person of the
substance of the offence, but it is not necessary for him or her to do so in
precise or technical language.
(3) Subsection (1) does not apply to the arrest of a person
if the actions of the person make it impracticable for the special constable:
(a) to tell him or her of the offence; or
(b) to produce his or her identity card or
written evidence referred to in subparagraph (1) (b) (ii).
(4) If there are reasonable grounds to believe at the
time of arrest of a person that the person is unable to understand the
substance of the offence in relation to which the arrest was made, because of:
(a) inadequate knowledge of the English
language; or
(b) mental dysfunction; or
(c) physical disability or disease;
the special constable who arrests the person must take all
reasonable steps to ensure that the person is provided with an explanation of
the substance of the offence that he or she is able to understand.
(5) A person who arrests a person, or who assists in the
arrest of a person, must not use more force, or subject the person being
arrested to greater indignity, than is reasonably necessary.
(6) A special constable must ensure that an arrested
person in the custody of the constable is not subjected to:
(a) more force, or greater indignity, than is
reasonably necessary to detain the arrested person and to prevent his or her
escape from custody; or
(b) cruel, inhuman or degrading treatment.
13 Arrested
persons to be placed in custody
(1) A special constable who arrests a person must place
the person in custody in a place of detention as soon as practicable after the
arrest.
(2) For the purposes of subsection (1):
(a) the special constable may use the assistance
of another person or other persons; and
(b) the special constable and the person or
persons assisting him or her may use force to the extent that is reasonably
necessary.
14 Release
of certain arrested persons
If:
(a) a person has been arrested by a special
constable without a warrant to arrest; and
(b) the arrested person is in the custody of the
special constable or another special constable; and
(c) the special constable who has custody of the
arrested person does not, or ceases to, have reasonable grounds to believe:
(i) that the person committed, or was
committing, an offence; or
(ii) that holding the person in custody
is necessary to achieve a purpose specified in paragraph 10 (b); or
(iii) that proceeding against the
person by summons would not achieve a purpose of that kind;
the special constable must release the person from custody.
15 Procedure
following arrest without warrant
(1) As soon as practicable after a special
constable arrests a person without a warrant, the constable must, unless the
person has been released under section 14, tell a Magistrate:
(a) the name of the constable; and
(b) if he or she is a police officer:
(i) his or her rank; and
(ii) his or her AFP service number; and
(c) the name or other description of the arrested
person and a statement of the offence for which the person was arrested; and
(d) the facts and other matters in relation to
which the person has been arrested, including the reasons why the constable
believes that:
(i) the person committed the offence;
and
(ii) proceeding against the person by
summons would not achieve a purpose specified in paragraph 10 (b); and
(e) the time and
date of the arrest; and
(f) the place where the arrest occurred; and
(g) the place of detention where the arrested
person is in custody.
(2) The information may be given to a Magistrate:
(a) in writing; or
(b) orally, if it is impracticable to tell the
Magistrate in writing.
(3) A special constable who has informed a Magistrate
orally must, as soon as practicable:
(a) make a statement in writing of the
information given to the Magistrate; and
(b) if the information is given to the
Magistrate:
(i) in person — take an oath
before the Magistrate; or
(ii) orally, but not in person —
undertake in writing to take an oath;
that each matter in the statement is
correct to the best of his or her knowledge; and
(c) sign the statement and certify on the
statement the time at, and the date on, which it was made and any undertaking
was given; and
(d) give the statement and undertaking (if any),
or a copy of the statement and undertaking, to the Magistrate.
(4) The special constable must take an oath in
accordance with an undertaking given to the Magistrate.
(5) The oath must be:
(a) in accordance with the form in Schedule 2;
and
(b) taken before a Magistrate or a leader or
medical officer.
(6) Unless a special constable takes the oath before the
Magistrate, the constable must give an instrument setting out the oath taken by
the constable, or a copy of the instrument, to the Magistrate as soon as
practicable.
(7) The Magistrate must file in the Magistrates Court
the statement and undertaking (if any) and any instrument setting out the oath
of the special constable, or a copy of the statement, undertaking or
instrument.
16 Warrants
to arrest
(1) A Magistrate may, under Part 4 (‘search warrants and
warrants to arrest’), grant a warrant authorising a special constable to arrest
a person named or otherwise described in the warrant.
(2) A Magistrate must not grant a warrant to arrest a
person in relation to an offence unless there are reasonable grounds to believe
that proceeding by summons against the person would not achieve 1 or more of
the purposes specified in paragraph 11 (b).
(3) If a special constable has a warrant to arrest a
person and it is reasonable to believe that the person is on premises, the
constable may enter the premises, with such assistance as is necessary and
reasonable and if necessary and reasonable by force, at any time for the
purpose of searching the premises for the person or arresting the person.
(4) Unless sooner revoked, a warrant to arrest a person
authorises the detention of the person until:
(a) a leader declines to charge the person in
accordance with subsection 24 (1); or
(b) a Magistrate declines to grant a warrant of
detention in respect of the person under subsection 30 (4); or
(c) a certificate of bail is granted in relation
to the person; or
(d) a warrant of detention is granted in respect
of the person;
whichever happens first.
(5) A warrant to arrest must be in accordance with Form
2.
17 Summons
(1) If a Magistrate does not grant an application for a
warrant to arrest a person, the Magistrate may issue a summons to the person.
(2) A summons must be in accordance with Form 3.
Part 4 Search
warrants and warrants to arrest
18 Interpretation
In this Part, warrant means search
warrant or warrant to arrest.
19 Application
for warrants
(1) A special constable may apply for a warrant:
(a) in writing; or
(b) orally, if it is impracticable to apply in
writing.
(2) An applicant for a warrant must tell the Magistrate:
(a) his or her name; and
(b) if he or she is a police officer:
(i) his or her rank; and
(ii) his or her AFP service number; and
(c) the place where the applicant is located
when making the application; and
(d) the offence to which the application relates;
and
(e) in the case of an application for a search
warrant in respect of premises:
(i) a description of the premises to
which the application relates; and
(ii) the things or kinds of things to
be searched for under the warrant; and
(f) in the case of an application for a search
warrant in respect of a person or a warrant to arrest — the name or a
description of the person to whom the application relates; and
(g) in the case of an application for a warrant
to arrest — the grounds on which the application is made, including
matters referred to in section 11 (‘application for warrant to arrest’).
(3) If an application for a warrant is made in
person, the applicant must take an oath before the Magistrate that each
statement in the application is correct to the best of his or her knowledge.
(4) If an application to a Magistrate by a special
constable for a warrant has been made orally but not in person, the constable
must, as soon as practicable, give a written statement of the matters referred
to in subsection (2) to the Magistrate.
(5) As soon as practicable after an application, except
an application made in person, is made:
(a) the applicant must take an oath in
accordance with the form in Schedule 2 before:
(i) a leader; or
(ii) a medical officer;
that each statement in the application is
correct to the best of his or her knowledge; and
(b) the applicant must give the instrument
setting out the oath taken by the applicant, or a copy of the instrument, to
the Magistrate.
20 Grant
of warrants
(1) A Magistrate must not grant a warrant unless:
(a) the special constable making the application
(or another person) has provided the Magistrate with any further information
that the Magistrate requires concerning the application; and
(b) the Magistrate is reasonably satisfied that
there are grounds to issue the warrant.
(2) If a Magistrate grants a warrant, the
Magistrate must:
(a) state in writing:
(i) the facts and other matters
specified in the application; and
(ii) details of any other matters;
on which he or she has relied to grant the
warrant; and
(b) attach the statement to the warrant, or the
copy of the warrant, filed under paragraph (4) (b).
(3) A Magistrate who grants a warrant must, if
practicable, tell the applicant orally of its terms and the time at, and date
on, which it was granted.
(4) As soon as practicable after the grant of a warrant,
the Magistrate who granted the warrant:
(a) must give the warrant, or a copy of the
warrant, to the applicant; and
(b) must file in the Magistrates Court:
(i) if the applicant applied for the
warrant in writing — the application; and
(ii) the warrant or a copy of the
warrant; and
(iii) the written statement (if any),
or a copy of the statement, referred to in subsection 19 (4) (‘application
for warrants’); and
(iv) the instrument (if any), or a copy
of the instrument, referred to in subsection 19 (5).
21 Giving
effect to warrants
(1) A special constable must not, in searching premises,
damage the premises or a thing in or on the premises to a greater extent than
is reasonably necessary to give effect to the warrant.
(2) In order to give effect to a warrant,
a special constable may:
(a) require an aircraft, vehicle or vessel to be
taken to a place where a search of the aircraft, vehicle or vessel may be
conveniently carried out; or
(b) detain an aircraft or a vehicle or vessel for
the period necessary to give effect to the warrant.
(3) The special constable must produce:
(a) the warrant or a copy of the warrant; and
(b) if he or she is a leader — his or her
identity card; and
(c) if he or she is a police officer —
written evidence of the fact that he or she is a police officer;
for inspection by the person apparently in charge of the aircraft,
vehicle or vessel to which the warrant relates and, if the constable does not
do so, he or she is not authorised to give effect to the warrant.
(4) Subsection (3) does not apply if the actions of the
person make it impracticable for the special constable to produce the
documents.
(5) A person must not fail to give effect to a
requirement of a special constable under subsection (2), unless he or she has a
reasonable excuse.
Penalty: 10 penalty units.
(6) An offence under subsection (5) is an offence of
strict liability.
Note 1 For strict liability,
see section 6.1 of the Criminal Code.
Note 2 A defendant bears an
evidential burden in relation to whether or not he or she had a reasonable
excuse (see section 13.3 of the Criminal Code).
Part 5 Persons
being searched and persons in custody
Division 1 Search of persons
22 Searching
persons
(1) In this section, a reference to the search of a
person is a reference to a search conducted by quickly running the hands of the
searcher over the clothing of the person who is being searched after the
removal of his or her headwear, handwear, footwear or other outer clothing.
(2) This section does not authorise:
(a) the removal of the clothing, other than
headwear, handwear, footwear or other outer clothing of one person by another
person; or
(b) requiring a person to remove his or her
clothing that is not headwear, handwear, footwear or other outer clothing.
(3) Before a person searches another person, the
searcher must:
(a) advise that other person of his or her right
to request that the search be conducted in a place that would reasonably
provide privacy to the person during the search; and
(b) if the person so requests, take him or her to
a place of that kind for the purposes of the search.
(4) A person who searches another person, or who assists
in the search of another person, must not subject that person to greater
indignity than is reasonably necessary.
(5) A special constable may search, with such
assistance as is necessary and reasonable:
(a) a person; and
(b) the headwear, handwear, footwear and other
outer clothing of a person; and
(c) other
personal property apparently in the immediate control of a person;
if the constable reasonably suspects that it is necessary to do so
to find out whether there is in the possession of the person:
(d) a thing that is capable of causing death,
injury or damage or assisting the person to escape from arrest or detention; or
(e) a thing that is connected with an offence.
(6) A special constable must not seize and remove a
thing found in the course of a search unless the constable reasonably believes
that it is a thing to which paragraph (5) (d) or (e) applies.
(7) If a person is searched under this section, the
search must, if practicable, be carried out by a person of the same sex.
Division 2 Persons in custody
23 Warning
to be given to persons in custody
(1) As soon as practicable after the arrest of a
person, a special constable must warn the person in accordance with the form in
Schedule 3.
(2) An investigating officer must warn a person in
custody in accordance with the form in Schedule 3 before questioning the person
for the purpose of investigating his or her involvement (if any) in an offence.
(3) If a person in custody is unable to understand a
warning because of:
(a) inadequate knowledge of the English
language; or
(b) mental dysfunction; or
(c) physical disability or disease;
the investigating officer must take all reasonable steps to ensure
that the person is provided with an explanation of the warning that he or she
is able to understand.
24 Charging
of arrested persons
(1) A leader must charge an arrested person in relation
to the offence for which the person was arrested as soon as practicable after the
arrest, unless:
(a) if a warrant to arrest the person has been
given effect — the warrant is revoked; or
(b) if the person has been arrested without a
warrant — the leader has reasonable grounds to believe that the person did
not commit the offence.
(2) If a leader, in the capacity of special constable,
arrests a person who is to be charged, the charge must be made, if practicable,
by another leader.
(3) As soon as practicable after charging a
person, the leader who charged the person must:
(a) write down the charge, but it is not
necessary for him or her to do so in precise or technical language; and
(b) in the case of a person arrested under a
warrant — give the charge, or a copy of the charge, to the Magistrate who
issued the warrant; and
(c) in the case of a person arrested without a
warrant — give the charge, or a copy of the charge, to the Magistrate
referred to in section 15 (‘procedure following arrest without warrant’).
(4) If a leader declines to charge an arrested person,
as soon as practicable the leader must inform:
(a) in the case of a person arrested under a
warrant — the Magistrate who issued the warrant; and
(b) in the case of a person arrested without a
warrant — the Magistrate referred to in section 15;
of the reasons why the arrested person was not charged.
(5) A Magistrate may be informed of the reasons:
(a) in writing; or
(b) orally, if it is impracticable to give them
in writing.
(6) If a Magistrate is informed orally, the Magistrate
must write down, or otherwise record, the reasons as soon as practicable after
being so informed.
(7) The Magistrate must file the charge or information,
or a copy of the charge or information, in the Magistrates Court.
25 Information
and directions about persons in custody
(1) A Magistrate may request information orally or in
writing from a leader about a person in the custody of the leader and the
leader must provide the Magistrate with the information to the best of his or
her knowledge.
(2) A Magistrate may give directions to a leader orally
or in writing about the conditions under which a person in the custody of the
leader is to be detained and the person must be detained in accordance with the
directions.
(3) If information is requested by a Magistrate orally
from a leader, the Magistrate must write down, or otherwise record, the request
as soon as practicable after the request is made.
(4) If information is given by a leader to
a Magistrate orally, the Magistrate must write down, or otherwise record, the
information as soon as practicable after it is received.
(5) If a direction is given to a leader orally, the
Magistrate must write down the direction and give the direction, or a copy of
the direction, to the leader as soon as practicable after the direction is
given.
(6) A Magistrate must file the request, information or
direction, or a copy of the request, information or direction, in the
Magistrates Court.
26 Facilities
to be made available to persons in custody
(1) As soon as practicable after the arrest and
charging of a person, a special constable must tell the person of the
requirement referred to in subsection (2).
(2) As far as practicable, a leader must make facilities
available to a person in the custody of the leader that will enable the person
to communicate, or attempt to communicate, with his or her legal representative
or another person.
(3) If the person in custody wishes to communicate
orally with a legal practitioner, the leader must allow the legal practitioner
to communicate with the person in circumstances in which, as far as
practicable, the communication will not be overheard.
(4) A leader is not required to comply with subsection
(1), (2) or (3) if he or she reasonably believes that compliance with that
requirement might result in:
(a) action by an accomplice of the person in
custody to avoid arrest; or
(b) concealment, fabrication or destruction of
evidence in proceedings in respect of an offence; or
(c) harassment or intimidation of, or
interference with, a person who may be required to give evidence in proceedings
in respect of an offence.
(5) If a person in custody is unable to
understand what is told to him or her under subsection (1) because of:
(a) inadequate knowledge of the English
language; or
(b) mental dysfunction; or
(c) physical disability or disease;
a leader must take all reasonable steps to ensure that the person
is given an explanation of the requirement under subsection (2) that he or she
is able to understand.
27 Provision
of information about persons in custody
If a friend, legal representative or
relative of a person in the custody of a leader asks the leader for information
about the whereabouts of the person, the leader must give that information to
the person who made the request unless:
(a) the person in custody does not agree to the
giving of that information; or
(b) the leader reasonably believes that the
person requesting the information is not a friend, legal representative or
relative of the person in custody; or
(c) the leader reasonably believes that giving
the information might result in:
(i) action by an accomplice of the
person in custody to avoid arrest; or
(ii) concealment, fabrication or
destruction of evidence in proceedings in respect of an offence; or
(iii) harassment or intimidation of, or
interference with, a person who may be required to give evidence in proceedings
in respect of an offence.
Part 6 Bail
and detention
Division 1 Bail
28 Applications
for bail
(1) As soon as practicable after a person has been
charged, a special constable must tell the person in writing or, if that is
impracticable, orally, that he or she may apply for bail.
(2) A charged person or a detainee may apply to a
Magistrate for bail.
(3) Application for bail may be made orally or in
writing.
(4) A leader must make facilities available to the
charged person or detainee that will enable him or her to apply for bail.
(5) Subsection (2) does not prevent the making of
further applications.
(6) If a Magistrate does not grant an application for
bail by a charged person or detainee, the Magistrate must immediately issue to
the leader with custody of that person a warrant of detention in respect of the
person in accordance with Form 5 unless a warrant of detention in respect of
the person is already in force.
29 Grant
of bail
(1) The Magistrate must grant bail if:
(a) an applicant for bail gives in the
application an undertaking required by a Magistrate concerning his or her good
behaviour while on bail; and
(b) an amount of money (if any) specified by a
Magistrate as security for the good behaviour of the applicant while on bail is
deposited with the Magistrate or a leader; and
(c) the Magistrate reasonably believes that the
applicant would comply with the terms of bail and that grant of bail would not
result in an unacceptable risk of:
(i) the applicant not appearing before
a court;
(ii) continuation or repetition of the
offence with which the applicant has been charged or of another offence; or
(iii) concealment, loss or destruction
of evidence relating to that offence; or
(iv) harassment or intimidation of, or
interference with, a person who may be required to give evidence in proceedings
for the offence; or
(v) fabrication of evidence to be given
or produced in proceedings for the offence; or
(vi) the injury or death of a person.
(2) A Magistrate may grant bail unconditionally or
subject to conditions or restrictions specified by the Magistrate in the
certificate of bail.
(3) A Magistrate must not impose a condition or
restriction on the grant of bail unless there are reasonable grounds to believe
that imposition of the condition is necessary to prevent an unacceptable risk
of a result mentioned in paragraph (1) (c).
(4) A person to whom bail has been granted must be
released from detention, subject to any condition or restriction specified in
the certificate of bail.
(5) The Magistrate or leader must record a deposit under
paragraph (1) (b) and, in the case of the Magistrate, file the record in
the Magistrates Court.
(6) If a Magistrate grants an application by a person for
bail, the Magistrate must, as soon as practicable:
(a) give a certificate of bail, or a copy of the
certificate, to which is attached a copy of the undertakings (if any) referred
to in paragraph (1) (a), to:
(i) the applicant; and
(ii) the leader who charged the person;
and
(iii) the special constable who
arrested the person; and
(b) file the application and the certificate, or
a copy of the application or certificate, in the Magistrates Court.
(7) If a person on bail contravenes an undertaking given
by the person in the application for, or a condition or restriction specified
in the certificate of, bail:
(a) the person may be arrested without a warrant
as if he or she had committed an offence; and
(b) any amount of money deposited as security for
the good behaviour of the person while on bail is forfeited to the
Commonwealth.
(8) A certificate of bail must be in accordance with
Form 4.
Division 2 Detention
30 Warrants
of detention
(1) As soon as practicable after a person is
charged in relation to an offence, a leader must apply to a Magistrate for a
warrant to detain the person.
(2) Application under this section may be made:
(a) in writing; or
(b) orally, if it is impracticable to apply in
writing.
(3) In the case of an oral application, the Magistrate
must write down the statements of fact and other matters made by the leader in
the application.
(4) The Magistrate may grant the warrant of detention.
(5) A warrant of detention:
(a) unless sooner revoked, authorises detention
of the person named or otherwise described in the warrant until:
(i) bail is granted to the person; or
(ii) the charge against the person is
dismissed; or
(iii) the person is convicted of an
offence;
whichever happens first; and
(b) may specify conditions or restrictions to
which detention of the person is subject.
(6) If:
(a) a Magistrate declines to grant a warrant of
detention; or
(b) the warrant of detention in respect of a
charged person is revoked;
the Magistrate must issue a summons to the charged person in
accordance with Form 3.
(7) As soon as practicable after the issue or grant of a
warrant of detention, the Magistrate:
(a) if practicable, must inform the leader
orally of its terms and the time at, and the date on, which it was issued or
granted; and
(b) give the warrant, or a copy of the warrant,
to the leader.
(8) A leader must ensure that a person in the custody of
the leader is not subjected to:
(a) more force, or greater indignity, than is
reasonably necessary to prevent the escape of the charged person from
detention; or
(b) cruel, inhuman or degrading treatment.
(9) The Magistrate must file any written application, or
writing referred to in subsection (3), and the warrant, or a copy of any
application or writing or of the warrant, in the Magistrates Court.
(10) A warrant of detention must be in accordance with
Form 5.
31 Detainees
(1) A detainee must be brought before a court as soon as
practicable.
(2) As soon as practicable after the end of each period
of 28 days during which a detainee is in the custody of a leader, the leader
must report to a Magistrate the fact that the detainee remains in custody.
Part 7 Evidence
32 Interpretation
(1) In this Part:
tape recording means audio recording or video
recording.
(2) In this Part, a reference to questioning a person is
a reference to questioning the person, or carrying out an investigation in
which the person participates, to investigate his or her involvement (if any)
in an offence.
33 Right
to remain silent etc. not affected
Nothing in this Ordinance affects:
(a) the right of a person in custody to refuse
to answer questions or to participate in an investigation of an offence except
where the person is required to do so by or under a law in force in the
Territory; or
(b) the burden on the prosecution to prove the
voluntariness of an admission or confession made by a person in custody; or
(c) the discretion of a court to exclude
illegally, improperly or unfairly obtained evidence.
34 Certain
statements to be admissible as evidence
(1) This section applies subject to section 37.
(2) If, in an interview with an investigating officer, a
person in custody answers a question of the officer or makes an admission or a
confession to the officer, that answer, admission or confession is not admissible
as evidence against the person in proceedings for an offence, unless sections
35 and 36 have been complied with.
35 Records
of answers, admissions and confessions
(1) If an answer to a question was given, or an
admission or confession was made, in circumstances where it was reasonably
practicable to tape record the answer, admission or confession, anything said
by or to the person in the interview must be tape recorded.
(2) If an answer to a question was given, or an
admission or confession was made, in circumstances where it was not reasonably
practicable to tape record the answer, admission or confession, then:
(a) at the time of, or as soon as practicable
after, the interview, anything said by or to the person in the interview must
be recorded in writing:
(i) in English; or
(ii) if another language was used by
the person in the interview — if practicable, in the other language; and
(b) as soon as practicable after the record was
made, it must be read, and a copy of the record must be given to, the person:
(i) in English; or
(ii) if another language was used by
the person in the interview — if practicable, in the other language; and
(c) the person must be 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 claims has been made in or from the record;
and
(d) at the end of the reading, the person must be
given the opportunity to state whether the person claims that there are any
errors in or omissions from the record in addition to any to which he or she
had drawn attention during the reading; and
(e) if it is reasonably practicable, a tape
recording must be made of the reading referred to in paragraph (b) and of
anything said by or to the person as a result of compliance with paragraphs (c)
and (d); and
(f) before the
reading referred to in paragraph (b):
(i) if the reading is in
English — an explanation, in accordance with the form in Schedule 4, must
be given to the person of the procedure that would be followed for the purposes
of compliance with paragraphs (b), (c) and (d) and (if applicable) paragraph
(e); and
(ii) if the reading is in another
language — if practicable, that explanation in the other language.
36 Records
of statements to be made available without charge
If the answer, admission or confession of a person
in custody is recorded in accordance with this section, the investigating
officer must, without charge:
(a) if the recording is an audio recording only
or a video recording only — make the recording, or a copy of the
recording, available to the person or to his or her legal representative as
soon as practicable after the making of the recording; and
(b) if both an audio recording and a video
recording were made:
(i) make the audio recording, or a
copy of the audio recording, available to the person or to his or her legal
representative as soon as practicable after the making of the recording; and
(ii) notify 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 to his
or her legal representative as soon as practicable after the preparation of the
transcript.
37 Court
may admit non‑complying evidence in certain circumstances
(1) A court may admit
evidence to which section 34 applies even if:
(a) the requirements of sections 35 and 36 have
not been complied with; or
(b) there is insufficient evidence of compliance
with those requirements;
where, 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 admission of the evidence would not be contrary to the interests
of justice.
(2) A court may admit evidence to which section 34
applies even if a provision of section 35 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.
(3) If a court permits evidence to be given before a
jury under this section, the judge must inform the jury of:
(a) the non‑compliance with the
requirements of section 35 or 36, as the case may be; or
(b) 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.
38 Certain
acts or omissions to be proved
(1) In this section, warrant means search
warrant, warrant for apprehension, warrant of detention or warrant to arrest.
(2) If it is relevant in proceedings for an
offence for a court to be satisfied that an act or omission was authorised or
required by:
(a) a certificate of bail; or
(b) a summons or
warrant;
that is not produced in evidence, the court is to presume, unless
the contrary is proved, that the act or omission was not authorised or required
by the certificate, summons or warrant.
39 Evidentiary
certificates
In proceedings for an offence, a certificate signed
by:
(a) the Minister, stating that a person
specified in the certificate was a leader; or
(b) a field leader stating that a building, or
part of a building, specified in the certificate was a place of detention; or
(c) a voyage leader or a deputy voyage leader,
stating that a ship, or a part of a ship, specified in the certificate was a
place of detention;
at a time, or during a period, specified in the certificate is
evidence of the matter stated in the certificate.
40 Copies
of documents
(1) For the purposes of this Ordinance, a document (in
this section called the copy) is only taken to be a copy of
another document (in this section called the original document):
(a) if the copy is identical in all relevant
respects with the original document; and
(b) if the original document is signed by a
Magistrate and the copy does not include the signature of the Magistrate —
if the copy includes a statement, endorsed by the Magistrates Court, that it is
a copy of the original document.
Part 8 Removal
of detainees from the Territory
41 Interpretation
In this Part:
custodian means:
(a) a special constable; or
(b) a member of the police force of a State or
another Territory; or
(c) a prison officer of a State or another Territory.
prison means a prison, or other place where a
person may be held in lawful custody, in a State or another Territory.
42 Detainees
may be taken from, and detained outside, the Territory
(1) A detainee may be:
(a) conveyed by a custodian to and from a
prison; and
(b) delivered by a custodian into the custody of
the officer for the time being in charge of the prison;
as if the detainee were being so conveyed and delivered under a law
of the State or Territory where the prison is located that has a similar effect
to:
(c) this Ordinance; and
(d) the warrant of detention under which he or
she is detained.
(2) The detainee may be conveyed to the prison by
whatever route is reasonable, including a route that requires transit:
(a) through a State or Territory; and
(b) between the Territory and a place in a State
or another Territory.
43 Imprisonment
in a State or another Territory
A detainee:
(a) may be detained in a prison for a period
that is necessary to give effect to the warrant of detention under which the
detainee is detained; and
(b) is taken to be imprisoned under the warrant.
44 Manner
of imprisonment
Subject to this Ordinance, a detainee in a prison:
(a) must be dealt with in the same manner; and
(b) is subject to the same laws;
as if the detainee were detained under a law of the State or
Territory where the prison is located that has a similar effect to:
(c) this Ordinance; and
(d) the warrant of detention under which he or
she is detained.
45 Conveying
of detainees to appear before courts
(1) When a detainee is required to be brought to a place
in a State or another Territory so that the detainee can appear before a court,
a person in whose custody the detainee is placed must, as soon as practicable,
arrange for the detainee to be conveyed in custody to that place.
(2) The detainee may be conveyed to the place by
whatever route is reasonable, including a route that requires transit:
(a) through a State or Territory; and
(b) between the Territory and a place in a State
or another Territory.
Part 9 Miscellaneous
Division 1 General
46 Interpretation
In this Division, unless the contrary intention
appears:
warrant means search warrant, warrant for
apprehension, warrant of detention or warrant to arrest.
47 Warrants
for apprehension
(1) If a person to whom a summons has been issued or
bail has been granted does not attend a court as required by the summons or
certificate of bail, the court or a Magistrate may issue a warrant for the
apprehension of the person if the court or Magistrate is satisfied that the
person received the summons or certificate.
(2) A warrant for apprehension:
(a) applies in a State or another Territory
where it is given effect; and
(b) authorises the apprehension of the person
named or otherwise described in that warrant; and
(c) unless sooner revoked, authorises the
holding of the person in custody until:
(i) the charge against the person is
dismissed; or
(ii) the person is convicted of an
offence; and
(d) authorises the bringing of the person before
a court as soon as practicable after his or her arrest; and
(e) may specify conditions or restrictions to
which the custody of the person is subject; and
(f) must be filed in the court.
(3) A person named or otherwise described in a
warrant for apprehension is subject to the same laws:
(a) in the case of a person giving effect to the
warrant — as if the person were exercising a function or performing a
duty; and
(b) in the case of a person who is, or has been,
apprehended under the warrant — as if the person were being dealt with;
under a law of the State or Territory concerned that has a similar
effect to this Ordinance and the warrant.
48 Effect
of warrants, summons and certificates of bail
(1) Subject to subsections (2), (3) and (4), a warrant,
summons or certificate of bail has effect according to its terms.
(2) A warrant or summons takes effect when the person to
whom the Magistrate is required to grant or issue the warrant or summons, as
the case may be, receives the warrant or summons, or a copy of the warrant or
summons.
(3) A certificate of bail takes effect when the person
who has custody of the applicant for bail receives the certificate or a copy of
the certificate.
(4) A special constable or leader, in addition to the
special constable or leader to whom a warrant is granted or issued, may give
effect to the warrant.
49 Discontinuance
or variation of charge, summons or warrant
(1) As soon as practicable after a court or Magistrate
is satisfied that the facts or other grounds on which:
(a) a warrant or summons was granted or issued,
as the case may be; or
(b) a charge was made;
did not, or have ceased to, exist the court or
Magistrate must, in writing:
(c) revoke the warrant or summons; or
(d) dismiss the charge.
(2) As soon as practicable,
the court or Magistrate must:
(a) take reasonable steps to advise:
(i) the person to whom the warrant is
granted or issued of the revocation of the warrant; or
(ii) the person to whom the summons is
issued of the withdrawal of the summons; or
(iii) the person who made the charge of
the dismissal of the charge; and
(b) take any other steps necessary to ensure that
action authorised or required by the warrant, summons or charge is
discontinued; and
(c) give the instrument, or a copy of the
instrument, by which:
(i) the warrant or summons is revoked;
or
(ii) the charge is dismissed;
to the relevant person mentioned in
paragraph (a); and
(d) file the instrument, or a copy of the
instrument, in the court.
(3) The court or Magistrate may act under subsection
(1):
(a) on its or his or her own initiative; and
(b) on the application of a person:
(i) in respect of whom the warrant is
granted or issued; or
(ii) to whom the summons is issued; or
(iii) against whom the charge is made.
(4) A person:
(a) to whom a summons is issued; or
(b) in custody under a warrant for apprehension
or a warrant of detention; or
(c) against whom the charge is made;
may apply to a court or Magistrate to have the summons, warrant or
charge varied.
(5) Subsection (4) does not prevent the making of
further applications.
Division 2 Other offences
50 Requirement
to give name and address
(1) If:
(a) an investigating officer reasonably believes
that a person whose name or address is not known to the officer may be able to
assist the officer in relation to an offence that the officer reasonably
believes has been, may have been or is likely to have been committed; and
(b) the investigating officer tells the person of
the reason for the request; and
(c) the investigating officer produces:
(i) in the case of a leader — his
or her identity card; and
(ii) in any other case — written
evidence of the capacity in which the officer is making the request;
the investigating officer may request the person to provide his or
her name or address to the officer.
(2) If an investigating officer requests a person to
provide his or her name or address the person must not:
(a) fail to comply with the request; or
(b) give a name or address that is false in a
relevant detail.
Penalty: 5 penalty units.
(3) An offence under subsection (2) is an offence of
strict liability.
Note For strict liability,
see section 6.1 of the Criminal Code.
Division 3 Other matters
52 Use
of force generally
The powers and functions conferred on an
investigating officer must not be exercised or performed in relation to another
person in a manner that is likely to cause injury to, or the death of, the
other person to a greater extent than is reasonably necessary to prevent injury
to, or protect the life of, any person.
53 Jurisdiction
and powers of Supreme Court
This Ordinance does not affect any jurisdiction or
powers that the Supreme Court has apart from this Ordinance.
54 Arrangements
with States and Territories
The Minister may arrange with a State or another
Territory for the performance of functions and the exercise of powers under
Part 8 by:
(a) officers or employees of the State or
Territory; and
(b) officers or employees of an authority of the
State or Territory.
55 Delegation
The Minister may delegate in writing to the
Director of the Antarctic Division of the Department any of his or her powers
under this Ordinance, other than the power to make regulations.
56 Liability
for wrongful acts of certain persons
(1) In this section:
auxiliary means:
(a) a leader; or
(b) a person other than:
(i) a police officer; or
(ii) a member of the police force, or a
prison officer, of a State or another Territory;
who, at the request of a special constable, assists the special
constable under a provision of this Ordinance.
plaintiff includes a defendant counter‑claiming.
(2) The Commonwealth is:
(a) liable for a tort committed by an auxiliary
in the exercise or performance, or purported exercise or performance, of his or
her powers or functions in the same way as a person is liable for a tort
committed by his or her employee in the course of his or her employment; and
(b) to be treated for all purposes as a joint
tortfeasor with the auxiliary in respect of the tort.
(3) In a claim by the Commonwealth for damages in
respect of a tort, an act or omission of an auxiliary in the exercise or
performance, or purported exercise or performance, of his or her powers or
functions may be relied on as constituting contributory negligence by the
Commonwealth if the act or omission could have been so relied on if it had been
done by an employee of the Commonwealth in the course of his or her employment.
(4) The liability of the Commonwealth under subsection
(2) does not extend to a liability to pay punitive damages.
(5) Without limiting the application of subsection (2),
the Commonwealth may:
(a) if proceedings have been begun against an
auxiliary with respect to a tort committed by the auxiliary in the exercise or
performance, or purported exercise or performance, of his or her powers or
functions — as joint tortfeasor with the auxiliary (whether or not the
Commonwealth is a party to the proceedings):
(i) pay to the plaintiff, on behalf of
the auxiliary, the whole or a part of any damages or costs (except punitive
damages) that the auxiliary has been ordered by the court in the proceedings to
pay to the plaintiff; and
(ii) pay to the auxiliary any costs
that are incurred by him or her in the proceedings and not recovered from the
plaintiff; or
(b) if an auxiliary has entered into a settlement
of a claim by another person that has, or might have, given rise to proceedings
of a kind referred to in paragraph (a) — as joint tortfeasor with the
auxiliary (whether or not the Commonwealth is a party to the settlement), pay
to that other person the whole or a part of the amount that, under the terms of
the settlement, the auxiliary is liable to pay to the other person.
57 Regulations
The Minister may make regulations prescribing
matters:
(a) required or permitted by this Ordinance to
be prescribed; or
(b) necessary or convenient to be prescribed for
carrying out or giving effect to this Ordinance.