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Crimes Act 1914

  • - C2005C00113
  • In force - Superseded Version
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Act No. 12 of 1914 as amended, taking into account amendments up to Act No. 8 of 2005
An Act relating to Offences against the Commonwealth
Administered by: Attorney-General's
Registered 02 Mar 2005
Start Date 01 Mar 2005
End Date 30 Jun 2005
Table of contents.
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Collapse Volume 1Volume 1
Part I—Preliminary
1 Short title [see Note 1]
3 Interpretation
3AA State offences that have a federal aspect
3A Operation of Act
3B Arrangements with States, Australian Capital Territory, Northern Territory and Norfolk Island [see Note 2]
3BA Application of the Criminal Code
Part IAA—Search warrants and powers of arrest
Division 1—Preliminary
3C Interpretation
3CA Nature of functions of magistrate
3D Application of Part
Division 2—Search warrants
3E When search warrants can be issued
3F The things that are authorised by a search warrant
3G Availability of assistance and use of force in executing a warrant
3H Details of warrant to be given to occupier etc.
3J Specific powers available to constables executing warrant
3K Use of equipment to examine or process things
3L Use of electronic equipment at premises
3LA Person with knowledge of a computer or a computer system to assist access etc.
3LB Accessing data held on other premises—notification to occupier of that premises
3M Compensation for damage to electronic equipment
3N Copies of seized things to be provided
3P Occupier entitled to be present during search
3Q Receipts for things seized under warrant
3R Warrants by telephone or other electronic means
3S Restrictions on personal searches
Division 3—Stopping and searching conveyances
3T Searches without warrant in emergency situations
3U How a constable exercises a power under section 3T
Division 4—Arrest and related matters
3V Requirement to furnish name etc.
3W Power of arrest without warrant by constables
3X Arrest of prisoner unlawfully at large
3Y Power of arrest without warrant of person on bail
3Z Power of arrest without warrant by other persons
3ZA Warrants for arrest
3ZB Power to enter premises to arrest offender
3ZC Use of force in making arrest
3ZD Persons to be informed of grounds of arrest
3ZE Power to conduct a frisk search of an arrested person
3ZF Power to conduc t an ordinary search of an arrested person
3ZG Power to conduct search of arrested person’s premises
3ZH Power to conduct an ordinary search or a strip search
3ZI Rules for conduct of strip search
3ZJ Taking fingerprints, recordings, samples of handwriting or photographs
3ZK Destruction of identification material
3ZL Offence of refusing to allow identification material to be taken
3ZM Identification parades
3ZN Identification parades for suspects under 18 etc.
3ZO Identification by means of photographs
3ZP Identification procedures where there is more than one suspect
3ZQ Descriptions
Division 4A—Determining a person’s age
Subdivision A—Preliminary
3ZQA Definitions
Subdivision B—Determination of age during investigation
3ZQB Circumstances where investigating official may seek authority to carry out a prescribed procedure
3ZQC Obtaining of consents for the carrying out of a prescribed procedure
3ZQD Withdrawal of consent
3ZQE Recording of giving of information about carrying out a prescribed procedure and relevant responses
Subdivision C—Determination of age during proceedings
3ZQF Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative
Subdivision D—Communication of orders by judges or magistrates
3ZQG Orders made by judges or magistrates concerning carrying out of a prescribed procedure
Subdivision E—Matters relating to the carrying out of prescribed procedures
3ZQH Appropriate medical or other standards to be applied
3ZQI Reasonable and necessary force
Subdivision F—Disclosure and destruction of age determination information
3ZQJ Disclosure of age determination information
3ZQK Destruction of age determination information
Division 5—General
3ZR Conduct of ordinary searches and frisk searches
3ZS Announcement before entry
3ZT Offence for making false statements in warrants
3ZU Offences relating to telephone warrants
3ZV Retention of things which are seized
3ZW Magistrate may permit a thing to be retained
3ZX Law relating to legal professional privilege not affected
Part IA—General
4AAA Commonwealth laws conferring non ‑judicial functions and powers on officers
4AAB Arrangements for conferral of non‑judicial functions and powers
4A Meaning of certain words
4AA Penalty units
4AB Conversion of pecuniary penalties expressed in dollar amounts to penalty units
4B Pecuniary penalties—natural persons and bodies corporate
4C Offences under 2 or more laws
4D Penalties
4E Pecuniary penalties
4F Effect of alterations in penalties
4G Indictable offences
4H Summary offences
4J Certain indictable offences may be dealt with summarily [see Note 3]
4JA Some indictable offences punishable by fine only may be dealt with summarily
4K Continuing and multiple offences
4L Specified defences not to preclude other defences
4M Children under 10
4N Children over 10 but under 14
6 Accessory after the fact
9 Seizure and condemnation of forfeitable goods
9A Forfeited articles to be dealt with by Official Trustee
9B Costs etc. payable to Official Trustee
13 Institution of proceedings in respect of offences
15 Remand of defendant
15AA Bail not to be granted in certain cases
15A Enforcement of fines etc.
15B Time for commencement of prosecutions
15C Form of indictments, informations and summonses
15E Privilege of Parliament not affected
15F Civil rights not affected
Part IAB—Controlled operations for obtaining evidence about Commonwealth offences
Division 1—Objects of Part
15G Objects of Part
15GA Concurrent operation of State and Territory laws
Division 2—General
15H What is a controlled operation?
15HA Meaning of engage in conduct etc.
15HB What is a serious Commonwealth offence or a serious State offence that has a federal aspect?
15I Law enforcement officers etc. not liable for offences committed for purposes of authorised controlled operation
15IA Indemnification of law enforcement officers etc.
15IB Requirements that must be met for the purposes of sections 15I and 15IA
15IC Effect of sections 15I and 15IA on other laws relating to criminal investigation
15ID Compensation for loss or injury
15J Application for certificate authorising a controlled operation—by whom and to whom made
15K Form and contents of application
15L Urgent applications
15M On what grounds may a certificate authorising a controlled operation be given?
15N Form and contents of certificate
15NA Variation of certificate
15O Surrender of certificate
15OA Termination of certificate
15OB Expiry of certificate after 6 months or 3 months
15OC Who are nominated Tribunal members?
15P Period for which certificate is in force
15Q Chief Executive Officer of Customs to be notified of certain certificates
15R Quarterly reports to the Minister
15S Contents of quarterly reports
15T Minister to table report before Parliament
15U Evidentiary certificates
Division 2A—Monitoring of controlled operations by the Ombudsman
15UA Ombudsman to be notified of certain matters
15UB Inspection of records by Ombudsman
15UC Annual reports by Ombudsman
15UD Ancillary matters concerning reports
Division 3—Controlled operations started before commencement of this Part
15V Interpretation
15W Minister may give certificate about controlled operation that involved unlawful importation of narcotic goods by law enforcement officer
15X Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer
Part IAC—Assumed identities
Division 1—Definitions etc.
15XA Definitions etc.
Division 2—Effect of an assumed identity
15XB Assumed identities may be acquired and used
15XC Protection from criminal liability
15XD Indemnification of approved officers and persons
15XE Effect of being unaware of variation or revocation of authorisation
15XF Documents authorising use of skill or qualification
Division 3—Authorising the acquisition or use of assumed identities
15XG Commonwealth authorisations of the acquisition or use of assumed identities
15XH State or Territory authorisations of the acquisition or use of assumed identities
15XI Contents of an authorisation for an assumed identity
15XJ When an authorisation is in force
15XK Variation and revocation of authorisations
Division 4—Issuing and cancelling evidence of assumed identities
15XL Authorising person may request agencies and bodies to issue evidence of assumed identities etc.
15XM Requesting Commonwealth agencies to issue evidence of assumed identities etc.
15XN Requesting non‑government bodies to issue evidence of assumed identities etc.
15XO Cancelling evidence of assumed identities etc.
15XP Protection from criminal liability
15XQ Indemnification of issuing agencies etc.
Div ision 5—Offences relating to assumed identities
15XR Misuse of assumed identities
15XS Disclosing information relating to assumed identities
Division 6—Miscellaneous
15XT Disclosing real identities during court proceedings etc.
15XU Keeping and auditing records of assumed identities
15XUA Matters to be reported
15XV Concurrent operation of State and Territory laws
15XW Regulations
Part IAD—Protection of children in proceedings for sexual offences
Division 1—Introduction
15Y Proceedings to which this Part applies
15YA Definitions
Division 2—Admissibility of evidence
15YB Evidence of sexual reputation
15YC Evidence of sexual experience
15YD Leave under this Division
Division 3—Cross‑examination
15YE Disallowing inappropriate or aggressive cross‑examination
15YF Unrepresented defendants—cross‑examination of child complainants
15YG Unrepresented defendants—cross‑examination of child witnesses
15YH Represented defendants—cross‑examination of child witnesses and child complainants
Division 4—Special facilities for child witnesses to give evidence
15YI Closed‑circuit television
15YJ Giving evidence by closed‑circuit television
15YK Viewing evidence given by closed‑circuit television
15YL Alternative arrangements for giving evidence
Division 5—Use of video recordings
15YM Use of video recordings
15YN Admissibility of evidence given using video recordings
Division 6—Miscellaneous
15YO Adults accompanying child witnesses
15YP Exclusion of people from the courtroom
15YQ Warnings etc. not to be given about children’s evidence
15YR Publication identifying child witnesses or child complainants
15YS General powers of a court
15YT Division 5 of Part IIIA unaffected
Part IB—Sentencing, imprisonment and release of federal offenders
Division 1—Interpretation
16 Interpretation
Division 2—General sentencing principles
16A Matters to which court to have regard when passing sentence etc.
16B Court to have regard to other periods of imprisonment required to be served
16BA Taking other offences into account
16C Fines
16D No corporal punishment
Division 3—Sentences of imprisonment
16E Commencement of sentences
16F Court to explain sentence
17A Restriction on imposing sentences
17B Restriction on imposing sentences for certain minor offences
18 Sentence of imprisonment
19 Cumulative, partly cumulative or concurrent sentences
19A Detention of person in State or Territory prisons
19AA Remissions and reductions of sentences
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
19AC When court must fix a recognizance release order
19AD Persons already subject to a non‑parole period
19AE Persons already subject to recognizance release order
19AF Non‑parole period or pre‑release periods not to exceed remitted sentence
19AG Non‑parole periods for sentences for certain offences
19AH Failure to fix non‑parole period or make recognizance release order
19AJ Court may only fix non‑parole periods or make recognizance release orders for federal sentences of imprisonment
19AK Possible deportation no impediment to fixing non‑parole period
Division 5—Conditional release on parole or licence
19AL Release on parole
19AM Person not to be released on parole if still serving State or Territory sentence
19AN Parole order is subject to conditions
19AP Release on licence
19AQ When parole order or licence automatically revoked
19AR Fixing of non‑parole period etc. where parole or licence automatically revoked
19AS Court to issue warrant of detention where person required to serve balance of sentence
19AT What happens when later conviction is quashed?
19AU Attorney‑General may revoke parole order or licence
19AV Arrest of person whose parole order or licence revoked by Attorney‑General
19AW Where person on parole or licence notified of revocation
19AX Where person on parole or licence not notified of revocation
19AY Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied
19AZ Evidence before prescribed authority
19AZA Disobedience of summons etc.
19AZB Can person be released on parole or licence if earlier parole order or licence revoked?
19AZC Effect of parole order and licence on sentence
19AZD State and Territory laws providing for leave of absence, pre‑release etc. to apply to federal offenders
19B Discharge of offenders without proceeding to conviction
20 Conditional release of offenders after conviction
20A Failure to comply with condition of discharge or release
20AA Power to discharge or vary conditions of recognizance
20AB Additional sentencing alternatives
20AC Failure to comply with sentence passed, or order made, under subsection 20AB(1)
Division 6—Unfitness to be tried
20B Consequences of preliminary finding that person unfit to be tried
20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months
20BB Persons found by a court to be likely to be fit within 12 months
20BC Persons found by a court not to be likely to be fit within 12 months
20BD Review by Attorney‑General
20BE Attorney‑General may order release
20BF Release order may be revoked
20BG Attorney‑General to review detention of persons taken back into detention
20BH State or Territory mental health authorities to be notified of certain releases
Division 7—Acquittal because of mental illness
20BJ Acquittal where person mentally ill
20BK Review by Attorney‑General
20BL Attorney‑General may order release
20BM Release order may be revoked
20BN Attorney‑General to review detention of persons taken back into detention
20BP State or Territory authorities to be notified of certain releases
Division 8—Summary disposition of persons suffering from mental illness or intellectual disability
20BQ Person suffering from mental illness or intellectual disability
20BR Means by which court may be informed
Division 9—Sentencing alternatives for persons suffering from mental illness or intellectual disability
20BS Hospital orders
20BT Lesser periods of imprisonment fixed under hospital orders
20BU Discharge of hospital orders
20BV Psychiatric probation orders
20BW Breach of psychiatric probation orders
20BY Program probation orders
Division 10—Miscellaneous
20C Offences by children and young persons
21B Reparation for offences
21D Prerogative of mercy and other Commonwealth laws unaffected
21E Director of Public Prosecutions may appeal against reductions where promised co‑operation with law enforcement agencies refused
21F Prescribed authorities and parole officers
22 Conditions etc. that a court may impose on certain offenders
22A State orders relating to passports
Part IC—Investigation of Commonwealth offences
Division 1—Introduction
23 Outline of this Part
23A Application of Part [see Note 4]
23AA How this Part applies to the Antarctic Territories
23B Definitions
Division 2—Powers of detention
23C Period of arrest if arrested for non‑terrorism offence
23CA Period of arrest if arrested for terrorism offence
23CB Specifying time during which suspension or delay of questioning may be disregarded
23D Extension of investigation period if arrested for non‑terrorism offence
23DA Extension of investigation period if arrested for terrorism offence
23E Applications by telephone etc.
Division 3—Obligations of investigating officials
23F Cautioning persons who are under arrest or protected suspects
23G Right to communicate with friend, relative and legal practitioner
23H Aboriginal persons and Torres Strait Islanders
23J Lists of interview friends and interpreters
23K Persons under 18
23L Exceptions
23M Providing information relating to persons who are under arrest or protected suspects
23N Right to interpreter
23P Right of non‑Australian nationals to communicate with consular office
23Q Treatment of persons under arrest
23S Right to remain silent etc. not affected
23T Acts authorised under other laws
23U Tape recording of information required to be given to person under arrest
23V Tape recording of confessions and admissions
23W Proof of belief
Part ID—Forensic procedures
23WA Definitions
23WB Interview friends
Division 2—Authority and time limits for forensic procedures on suspects: summary of rules
23WC How forensic procedures may be authorised in different circumstances
23WCA Time limits for carrying out forensic procedures
Division 3—Forensic procedures on suspect by consent
23WD Forensic procedure may be carried out with informed consent of suspect
23WE People who cannot consent to forensic procedures
23WF Informed consent to forensic procedures—general
23WG Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders
23WH Constable may request suspect to consent to forensic procedure
23WI Matters to be considered by constable before requesting consent to forensic procedure
23WJ Matters that suspect must be informed of before giving consent
23WK Withdrawal of consent
23WL Recording of giving of information and suspect’s responses
23WLA Time for carrying out forensic procedure—suspect not in custody
Expand Volume 2Volume 2

Crimes Act 1914

Act No. 12 of 1914 as amended

Volume 1 includes:    Table of Contents

Sections 1–23WLA

This compilation was prepared on 1 March 2005
taking into account amendments up to Act No. 8 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:    Table of Contents
                                 Sections 23WM–91

Schedule

Table of Acts

Act Notes

Table of Amendments

End Notes

Table A

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

 

 

 

 


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

3............ Interpretation...................................................................................... 1

3AA...... State offences that have a federal aspect............................................ 6

3A......... Operation of Act.............................................................................. 10

3B......... Arrangements with States, Australian Capital Territory, Northern Territory and Norfolk Island [see Note 2]    10

3BA...... Application of the Criminal Code.................................................... 11

Part IAA—Search warrants and powers of arrest                                              12

Division 1—Preliminary                                                                                            12

3C......... Interpretation.................................................................................... 12

3CA...... Nature of functions of magistrate..................................................... 14

3D......... Application of Part........................................................................... 15

Division 2—Search warrants                                                                                   16

3E.......... When search warrants can be issued................................................. 16

3F.......... The things that are authorised by a search warrant.......................... 19

3G......... Availability of assistance and use of force in executing a warrant.... 21

3H......... Details of warrant to be given to occupier etc.................................. 21

3J.......... Specific powers available to constables executing warrant............... 22

3K......... Use of equipment to examine or process things............................... 22

3L.......... Use of electronic equipment at premises.......................................... 23

3LA....... Person with knowledge of a computer or a computer system to assist access etc. 26

3LB....... Accessing data held on other premises—notification to occupier of that premises                27

3M........ Compensation for damage to electronic equipment.......................... 27

3N......... Copies of seized things to be provided............................................ 28

3P.......... Occupier entitled to be present during search.................................. 28

3Q......... Receipts for things seized under warrant......................................... 28

3R......... Warrants by telephone or other electronic means............................ 29

3S.......... Restrictions on personal searches..................................................... 30

Division 3—Stopping and searching conveyances                                      31

3T......... Searches without warrant in emergency situations........................... 31

3U......... How a constable exercises a power under section 3T...................... 31

Division 4—Arrest and related matters                                                           33

3V......... Requirement to furnish name etc...................................................... 33

3W........ Power of arrest without warrant by constables............................... 34

3X......... Arrest of prisoner unlawfully at large.............................................. 35

3Y......... Power of arrest without warrant of person on bail.......................... 35

3Z......... Power of arrest without warrant by other persons.......................... 36

3ZA...... Warrants for arrest............................................................................ 36

3ZB....... Power to enter premises to arrest offender...................................... 37

3ZC....... Use of force in making arrest............................................................ 38

3ZD...... Persons to be informed of grounds of arrest..................................... 39

3ZE....... Power to conduct a frisk search of an arrested person..................... 39

3ZF....... Power to conduct an ordinary search of an arrested person............. 39

3ZG...... Power to conduct search of arrested person’s premises.................. 40

3ZH...... Power to conduct an ordinary search or a strip search..................... 40

3ZI........ Rules for conduct of strip search...................................................... 41

3ZJ........ Taking fingerprints, recordings, samples of handwriting or photographs               43

3ZK...... Destruction of identification material............................................... 46

3ZL....... Offence of refusing to allow identification material to be taken....... 46

3ZM..... Identification parades....................................................................... 48

3ZN...... Identification parades for suspects under 18 etc.............................. 51

3ZO...... Identification by means of photographs........................................... 52

3ZP....... Identification procedures where there is more than one suspect...... 55

3ZQ...... Descriptions..................................................................................... 56

Division 4A—Determining a person’s age                                                     57

Subdivision A—Preliminary                                                                                   57

3ZQA... Definitions........................................................................................ 57

Subdivision B—Determination of age during investigation                              58

3ZQB.... Circumstances where investigating official may seek authority to carry out a prescribed procedure     58

3ZQC.... Obtaining of consents for the carrying out of a prescribed procedure 59

3ZQD... Withdrawal of consent...................................................................... 60

3ZQE.... Recording of giving of information about carrying out a prescribed procedure and relevant responses  61

Subdivision C—Determination of age during proceedings                               61

3ZQF.... Circumstances where judge or magistrate may order carrying out of a prescribed procedure on own initiative     61

Subdivision D—Communication of orders by judges or magistrates              62

3ZQG... Orders made by judges or magistrates concerning carrying out of a prescribed procedure     62

Subdivision E—Matters relating to the carrying out of prescribed procedures  62

3ZQH... Appropriate medical or other standards to be applied..................... 62

3ZQI..... Reasonable and necessary force........................................................ 62

Subdivision F—Disclosure and destruction of age determination information 63

3ZQJ..... Disclosure of age determination information.................................... 63

3ZQK... Destruction of age determination information.................................. 64

Division 5—General                                                                                                    65

3ZR....... Conduct of ordinary searches and frisk searches.............................. 65

3ZS....... Announcement before entry............................................................. 65

3ZT....... Offence for making false statements in warrants.............................. 65

3ZU...... Offences relating to telephone warrants........................................... 65

3ZV....... Retention of things which are seized................................................ 66

3ZW...... Magistrate may permit a thing to be retained................................... 67

3ZX...... Law relating to legal professional privilege not affected................... 67

Part IA—General                                                                                                                  68

4AAA... Commonwealth laws conferring non-judicial functions and powers on officers     68

4AAB... Arrangements for conferral of non-judicial functions and powers... 69

4A......... Meaning of certain words................................................................. 70

4AA...... Penalty units..................................................................................... 71

4AB...... Conversion of pecuniary penalties expressed in dollar amounts to penalty units  71

4B......... Pecuniary penalties—natural persons and bodies corporate............ 72

4C......... Offences under 2 or more laws......................................................... 73

4D......... Penalties............................................................................................ 73

4E.......... Pecuniary penalties........................................................................... 74

4F.......... Effect of alterations in penalties....................................................... 74

4G......... Indictable offences............................................................................ 75

4H......... Summary offences............................................................................ 75

4J.......... Certain indictable offences may be dealt with summarily [see Note 3]  75

4JA....... Some indictable offences punishable by fine only may be dealt with summarily   76

4K......... Continuing and multiple offences..................................................... 77

4L.......... Specified defences not to preclude other defences........................... 78

4M........ Children under 10............................................................................. 78

4N......... Children over 10 but under 14.......................................................... 78

6............ Accessory after the fact.................................................................... 78

9............ Seizure and condemnation of forfeitable goods................................ 79

9A......... Forfeited articles to be dealt with by Official Trustee..................... 79

9B......... Costs etc. payable to Official Trustee.............................................. 80

13.......... Institution of proceedings in respect of offences............................. 80

15.......... Remand of defendant........................................................................ 81

15AA.... Bail not to be granted in certain cases............................................... 81

15A....... Enforcement of fines etc................................................................... 82

15B....... Time for commencement of prosecutions........................................ 85

15C....... Form of indictments, informations and summonses......................... 86

15E........ Privilege of Parliament not affected.................................................. 86

15F........ Civil rights not affected.................................................................... 86

Part IAB—Controlled operations for obtaining evidence about Commonwealth offences               88

Division 1—Objects of Part                                                                                     88

15G....... Objects of Part.................................................................................. 88

15GA.... Concurrent operation of State and Territory laws........................... 89

Division 2—General                                                                                                    90

15H....... What is a controlled operation?........................................................ 90

15HA.... Meaning of engage in conduct etc.................................................... 90

15HB.... What is a serious Commonwealth offence or a serious State offence that has a federal aspect?              90

15I......... Law enforcement officers etc. not liable for offences committed for purposes of authorised controlled operation.......................................................................................................... 91

15IA...... Indemnification of law enforcement officers etc............................... 92

15IB...... Requirements that must be met for the purposes of sections 15I and 15IA           93

15IC...... Effect of sections 15I and 15IA on other laws relating to criminal investigation    94

15ID...... Compensation for loss or injury....................................................... 95

15J........ Application for certificate authorising a controlled operation—by whom and to whom made              95

15K....... Form and contents of application..................................................... 96

15L........ Urgent applications.......................................................................... 97

15M...... On what grounds may a certificate authorising a controlled operation be given?    97

15N....... Form and contents of certificate....................................................... 98

15NA.... Variation of certificate.................................................................... 100

15O....... Surrender of certificate.................................................................... 101

15OA.... Termination of certificate............................................................... 101

15OB.... Expiry of certificate after 6 months or 3 months........................... 101

15OC.... Who are nominated Tribunal members?......................................... 102

15P........ Period for which certificate is in force............................................ 103

15PA..... Effect of being unaware etc. of variation, surrender, termination or expiry of certificate        103

15Q....... Chief Executive Officer of Customs to be notified of certain certificates                104

15R....... Quarterly reports to the Minister.................................................. 105

15S........ Contents of quarterly reports......................................................... 105

15T....... Minister to table report before Parliament..................................... 107

15U....... Evidentiary certificates................................................................... 108

Division 2A—Monitoring of controlled operations by the Ombudsman               109

15UA.... Ombudsman to be notified of certain matters................................ 109

15UB.... Inspection of records by Ombudsman........................................... 109

15UC.... Annual reports by Ombudsman..................................................... 109

15UD.... Ancillary matters concerning reports............................................. 110

Division 3—Controlled operations started before commencement of this Part               111

15V....... Interpretation.................................................................................. 111

15W...... Minister may give certificate about controlled operation that involved unlawful importation of narcotic goods by law enforcement officer......................................................................... 111

15X....... Evidence of illegal importation etc. of narcotic goods not to be rejected on ground of unlawful conduct by law enforcement officer......................................................................... 112

Part IAC—Assumed identities                                                                                    114

Division 1—Definitions etc.                                                                                  114

15XA.... Definitions etc................................................................................ 114

Division 2—Effect of an assumed identity                                                     117

15XB.... Assumed identities may be acquired and used............................... 117

15XC.... Protection from criminal liability.................................................... 117

15XD.... Indemnification of approved officers and persons......................... 118

15XE..... Effect of being unaware of variation or revocation of authorisation 119

15XF..... Documents authorising use of skill or qualification........................ 119

Division 3—Authorising the acquisition or use of assumed identities   120

15XG.... Commonwealth authorisations of the acquisition or use of assumed identities      120

15XH.... State or Territory authorisations of the acquisition or use of assumed identities   120

15XI...... Contents of an authorisation for an assumed identity.................... 121

15XJ..... When an authorisation is in force................................................... 121

15XK.... Variation and revocation of authorisations..................................... 122

Division 4—Issuing and cancelling evidence of assumed identities 123

15XL..... Authorising person may request agencies and bodies to issue evidence of assumed identities etc.        123

15XM... Requesting Commonwealth agencies to issue evidence of assumed identities etc.  123

15XN.... Requesting non-government bodies to issue evidence of assumed identities etc.    123

15XO.... Cancelling evidence of assumed identities etc................................. 123

15XP..... Protection from criminal liability.................................................... 124

15XQ.... Indemnification of issuing agencies etc........................................... 124

Division 5—Offences relating to assumed identities                              125

15XR.... Misuse of assumed identities......................................................... 125

15XS..... Disclosing information relating to assumed identities.................... 125

Division 6—Miscellaneous                                                                                    127

15XT.... Disclosing real identities during court proceedings etc................... 127

15XU.... Keeping and auditing records of assumed identities....................... 127

15XUA. Matters to be reported................................................................... 128

15XV.... Concurrent operation of State and Territory laws......................... 129

15XW... Regulations..................................................................................... 129

Part IAD—Protection of children in proceedings for sexual offences  130

Division 1—Introduction                                                                                        130

15Y....... Proceedings to which this Part applies........................................... 130

15YA.... Definitions...................................................................................... 130

Division 2—Admissibility of evidence                                                             132

15YB..... Evidence of sexual reputation......................................................... 132

15YC..... Evidence of sexual experience......................................................... 132

15YD.... Leave under this Division............................................................... 133

Division 3—Cross-examination                                                                          134

15YE..... Disallowing inappropriate or aggressive cross-examination........... 134

15YF..... Unrepresented defendants—cross-examination of child complainants 134

15YG.... Unrepresented defendants—cross-examination of child witnesses 134

15YH.... Represented defendants—cross-examination of child witnesses and child complainants       135

Division 4—Special facilities for child witnesses to give evidence  136

15YI...... Closed-circuit television................................................................. 136

15YJ...... Giving evidence by closed-circuit television................................... 136

15YK.... Viewing evidence given by closed-circuit television....................... 137

15YL..... Alternative arrangements for giving evidence................................. 137

Division 5—Use of video recordings                                                               138

15YM... Use of video recordings.................................................................. 138

15YN.... Admissibility of evidence given using video recordings................. 138

Division 6—Miscellaneous                                                                                    140

15YO.... Adults accompanying child witnesses............................................ 140

15YP..... Exclusion of people from the courtroom........................................ 140

15YQ.... Warnings etc. not to be given about children’s evidence................ 140

15YR..... Publication identifying child witnesses or child complainants....... 141

15YS..... General powers of a court.............................................................. 142

15YT..... Division 5 of Part IIIA unaffected.................................................. 142

Part IB—Sentencing, imprisonment and release of federal offenders 143

Division 1—Interpretation                                                                                     143

16.......... Interpretation.................................................................................. 143

Division 2—General sentencing principles                                                  148

16A....... Matters to which court to have regard when passing sentence etc. 148

16B....... Court to have regard to other periods of imprisonment required to be served        149

16BA.... Taking other offences into account................................................. 149

16C....... Fines............................................................................................... 152

16D....... No corporal punishment................................................................. 152

Division 3—Sentences of imprisonment                                                        153

16E........ Commencement of sentences.......................................................... 153

16F........ Court to explain sentence............................................................... 153

17A....... Restriction on imposing sentences................................................. 154

17B....... Restriction on imposing sentences for certain minor offences....... 155

18.......... Sentence of imprisonment.............................................................. 155

19.......... Cumulative, partly cumulative or concurrent sentences................. 156

19A....... Detention of person in State or Territory prisons......................... 157

19AA.... Remissions and reductions of sentences......................................... 157

Division 4—The fixing of non-parole periods and the making of recognizance release orders               159

19AB.... When court must fix non-parole period or make a recognizance release order        159

19AC.... When court must fix a recognizance release order.......................... 160

19AD.... Persons already subject to a non-parole period.............................. 161

19AE..... Persons already subject to recognizance release order.................... 162

19AF..... Non-parole period or pre-release periods not to exceed remitted sentence             164

19AG.... Non-parole periods for sentences for certain offences................... 164

19AH.... Failure to fix non-parole period or make recognizance release order 165

19AJ..... Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment........................................................................................................ 166

19AK.... Possible deportation no impediment to fixing non-parole period.. 166

Division 5—Conditional release on parole or licence                             167

19AL..... Release on parole............................................................................ 167

19AM... Person not to be released on parole if still serving State or Territory sentence       168

19AN.... Parole order is subject to conditions............................................... 169

19AP..... Release on licence........................................................................... 170

19AQ.... When parole order or licence automatically revoked...................... 171

19AR.... Fixing of non-parole period etc. where parole or licence automatically revoked     172

19AS..... Court to issue warrant of detention where person required to serve balance of sentence       175

19AT.... What happens when later conviction is quashed?.......................... 176

19AU.... Attorney-General may revoke parole order or licence................... 178

19AV.... Arrest of person whose parole order or licence revoked by Attorney-General      179

19AW... Where person on parole or licence notified of revocation.............. 179

19AX.... Where person on parole or licence not notified of revocation........ 181

19AY.... Appeals in respect of warrants issued under subsection 19AW(1) or that subsection as applied         182

19AZ.... Evidence before prescribed authority............................................. 183

19AZA. Disobedience of summons etc........................................................ 184

19AZB.. Can person be released on parole or licence if earlier parole order or licence revoked?           184

19AZC.. Effect of parole order and licence on sentence................................ 184

19AZD. State and Territory laws providing for leave of absence, pre-release etc. to apply to federal offenders 185

19B....... Discharge of offenders without proceeding to conviction.............. 186

20.......... Conditional release of offenders after conviction........................... 188

20A....... Failure to comply with condition of discharge or release............... 190

20AA.... Power to discharge or vary conditions of recognizance.................. 194

20AB.... Additional sentencing alternatives.................................................. 197

20AC.... Failure to comply with sentence passed, or order made, under subsection 20AB(1)             199

Division 6—Unfitness to be tried                                                                       203

20B....... Consequences of preliminary finding that person unfit to be tried 203

20BA.... Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months 204

20BB..... Persons found by a court to be likely to be fit within 12 months.. 205

20BC..... Persons found by a court not to be likely to be fit within 12 months 207

20BD.... Review by Attorney-General......................................................... 209

20BE..... Attorney-General may order release.............................................. 209

20BF..... Release order may be revoked........................................................ 210

20BG.... Attorney-General to review detention of persons taken back into detention         212

20BH.... State or Territory mental health authorities to be notified of certain releases         212

Division 7—Acquittal because of mental illness                                        213

20BJ...... Acquittal where person mentally ill............................................... 213

20BK.... Review by Attorney-General......................................................... 214

20BL..... Attorney-General may order release.............................................. 214

20BM... Release order may be revoked........................................................ 215

20BN.... Attorney-General to review detention of persons taken back into detention         217

20BP..... State or Territory authorities to be notified of certain releases...... 217

Division 8—Summary disposition of persons suffering from mental illness or intellectual disability    218

20BQ.... Person suffering from mental illness or intellectual disability........ 218

20BR..... Means by which court may be informed........................................ 219

Division 9—Sentencing alternatives for persons suffering from mental illness or intellectual disability                                                                                                                    220

20BS..... Hospital orders............................................................................... 220

20BT..... Lesser periods of imprisonment fixed under hospital orders......... 221

20BU.... Discharge of hospital orders........................................................... 222

20BV..... Psychiatric probation orders.......................................................... 223

20BW.... Breach of psychiatric probation orders.......................................... 224

20BX.... Enforcement of psychiatric probation orders................................. 225

20BY..... Program probation orders............................................................... 226

Division 10—Miscellaneous                                                                                 228

20C....... Offences by children and young persons....................................... 228

21B....... Reparation for offences.................................................................. 228

21D....... Prerogative of mercy and other Commonwealth laws unaffected.. 229

21E........ Director of Public Prosecutions may appeal against reductions where promised co-operation with law enforcement agencies refused.............................................................................. 229

21F........ Prescribed authorities and parole officers....................................... 231

22.......... Conditions etc. that a court may impose on certain offenders....... 232

22A....... State orders relating to passports................................................... 234

Part IC—Investigation of Commonwealth offences                                        235

Division 1—Introduction                                                                                        235

23.......... Outline of this Part......................................................................... 235

23A....... Application of Part [see Note 4].................................................... 235

23AA.... How this Part applies to the Antarctic Territories........................ 236

23B....... Definitions...................................................................................... 237

Division 2—Powers of detention                                                                        240

23C....... Period of arrest if arrested for non-terrorism offence..................... 240

23CA.... Period of arrest if arrested for terrorism offence............................ 243

23CB..... Specifying time during which suspension or delay of questioning may be disregarded          246

23D....... Extension of investigation period if arrested for non-terrorism offence  249

23DA.... Extension of investigation period if arrested for terrorism offence 250

23E........ Applications by telephone etc....................................................... 251

Division 3—Obligations of investigating officials                                      253

23F........ Cautioning persons who are under arrest or protected suspects.... 253

23G....... Right to communicate with friend, relative and legal practitioner.. 253

23H....... Aboriginal persons and Torres Strait Islanders.............................. 254

23J........ Lists of interview friends and interpreters..................................... 256

23K....... Persons under 18............................................................................ 257

23L........ Exceptions...................................................................................... 258

23M...... Providing information relating to persons who are under arrest or protected suspects          259

23N....... Right to interpreter......................................................................... 260

23P........ Right of non-Australian nationals to communicate with consular office 260

23Q....... Treatment of persons under arrest................................................. 261

23S........ Right to remain silent etc. not affected........................................... 261

23T....... Acts authorised under other laws................................................... 261

23U....... Tape recording of information required to be given to person under arrest             262

23V....... Tape recording of confessions and admissions............................... 262

23W...... Proof of belief................................................................................. 264

Part ID—Forensic procedures                                                                                     265

Division 1—Explanation of expressions used                                             266

23WA... Definitions...................................................................................... 266

23WB.... Interview friends............................................................................. 273

Division 2—Authority and time limits for forensic procedures on suspects: summary of rules              275

23WC.... How forensic procedures may be authorised in different circumstances 275

23WCA. Time limits for carrying out forensic procedures........................... 276

Division 3—Forensic procedures on suspect by consent                     279

23WD... Forensic procedure may be carried out with informed consent of suspect             279

23WE.... People who cannot consent to forensic procedures....................... 279

23WF.... Informed consent to forensic procedures—general........................ 280

23WG... Informed consent to forensic procedures—Aboriginal persons and Torres Strait Islanders   280

23WH... Constable may request suspect to consent to forensic procedure. 282

23WI..... Matters to be considered by constable before requesting consent to forensic procedure       282

23WJ..... Matters that suspect must be informed of before giving consent.. 283

23WK... Withdrawal of consent.................................................................... 285

23WL.... Recording of giving of information and suspect’s responses......... 286

23WLA. Time for carrying out forensic procedure—suspect not in custody 286

 


An Act relating to Offences against the Commonwealth

  

Part IPreliminary

  

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).

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

                     (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.

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.

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.

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;

                     (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.

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 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 [see Note 2]

             (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 sections, 15A and 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 IAASearch warrants and powers of arrest

Division 1Preliminary

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.

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 persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the stopping, detaining or searching of conveyances; or

                     (d)  the seizure of things.

             (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 persons or premises; or

                     (b)  arrest and related matters; or

                     (c)  the stopping, detaining or searching of conveyances; or

                     (d)  the seizure of things;

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 2Search 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 Complaints (Australian Federal Police) Act 1981 or the Privacy Act 1988;

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 can not authorise a strip search or a search of a person’s body cavities.


 

Division 3Stopping 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 4Arrest 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 4ADetermining a person’s age

Subdivision APreliminary

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 BDetermination 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 CDetermination 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 DCommunication 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 EMatters 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 FDisclosure 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 5General

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 IAGeneral

  

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:

                     (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 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

             (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.

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
[see Note 3]

             (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 in relation to an offence against:

                     (a)  section 24AA, 24AB or 78 or subsection 79(2) or (5) of this Act; or

                     (b)  section 80.1 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,