Commonwealth Consolidated Acts

CRIMES ACT 1914 - SECT 23B

             (1)  In this Part:

"Aboriginal legal aid organisation" means an organisation that provides legal assistance to Aboriginal persons and Torres Strait Islanders, being an organisation identified in the regulations for the purposes of this definition.

"arrested" : a person is arrested if the person is arrested for a Commonwealth offence and the person's arrest has not ceased under subsection (3) or (4).

"Commonwealth offence" means:

                     (a)  an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982 ; or

                     (b)  a State offence that has a federal aspect.

"inform" , in relation to an investigating official informing a person who is under arrest or a protected suspect, means notify the person:

                     (a)  in a language in which the person is able to communicate with reasonable fluency; and

                     (b)  in a manner that the official has reasonable grounds to believe is a manner that the person can understand having regard to any apparent disability the person has.

"investigating official" means:

                     (a)  a member or special member of the Australian Federal Police; or

                     (b)  a member of the police force of a State or Territory; or

                     (c)  a person who holds an office the functions of which include the investigation of Commonwealth offences and who is empowered by a law of the Commonwealth because of the holding of that office to make arrests in respect of such offences.

"investigation period" means the investigation period prescribed by section 23C or 23CA, as the case requires.

"protected suspect" has the meaning given by subsection (2).

"question" has the meaning given by subsection (6).

"tape recording" means audio recording, video recording or recording by other electronic means.

"under arrest" : a person is under arrest if the person has been arrested for a Commonwealth offence and the person's arrest has not ceased under subsection (3) or (4).

             (2)  A person is a protected suspect if:

                     (a)  the person is in the company of an investigating official for the purpose of being questioned about a Commonwealth offence; and

                     (b)  the person has not been arrested for the offence; and

                     (c)  one or more of the following applies in relation to the person:

                              (i)  the official believes that there is sufficient evidence to establish that the person has committed the offence;

                             (ii)  the official would not allow the person to leave if the person wished to do so;

                            (iii)  the official has given the person reasonable grounds for believing that the person would not be allowed to leave if he or she wished to do so; and

                     (d)  none of the following applies in relation to the person:

                              (i)  the official is performing functions in relation to persons or goods entering Australia, and the official does not believe that the person has committed a Commonwealth offence;

                             (ii)  the official is performing functions in relation to persons or goods leaving Australia, and the official does not believe that the person has committed a Commonwealth offence;

                            (iii)  the official is exercising a power under a law of the Commonwealth to detain and search the person;

                            (iv)  the official is exercising a power under a law of the Commonwealth to require the person to provide information or to answer questions; and

                     (e)  the person has not ceased to be a suspect under subsection (4).

             (3)  A person ceases, for the purposes of this Part, to be arrested for a Commonwealth offence if the person is remanded in respect of that offence by one of the following:

                     (a)  a magistrate;

                     (b)  a justice of the peace;

                     (c)  a person authorised to grant bail under the law of the State or Territory in which the person was arrested;

otherwise than under paragraph 83(3)(b), (4)(b), (8)(a), (8)(b), subsection 83(12), paragraph 83(14)(a), or subparagraph 84(4)(a)(ii) or (6)(a)(i) of the Service and Execution of Process Act 1992 .

             (4)  A person ceases, for the purposes of this Part, to be arrested or a protected suspect if:

                     (a)  an investigating official believes on reasonable grounds that the person is voluntarily taking part in covert investigations; and

                     (b)  those covert investigations are being conducted by the official for the purpose of investigating whether another person has been involved in the commission of an offence or suspected offence (whether a Commonwealth offence or not).

             (5)  Subsection (4) does not prevent the person from being re‑arrested or again becoming a protected suspect.

             (6)  In this Part, a reference to questioning a person:

                     (a)  is a reference to questioning the person, or carrying out an investigation (in which the person participates), to investigate the involvement (if any) of the person in any Commonwealth offence (including an offence for which the person is not under arrest); and

                     (b)  does not include a reference to carrying out a forensic procedure on the person under Part ID.

Note:       The powers in this Division only apply in relation to people under arrest. They do not apply in relation to protected suspects.