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CRIMES ACT 1914 - SECT 23W Proof of belief

CRIMES ACT 1914 - SECT 23W

Proof of belief

    In any proceedings, the burden lies on the prosecution to prove that an investigating official had a belief on reasonable grounds as to a matter referred to in this Part.

A Part   5.3 supervisory order is any one of the following orders made under Part   5.3 of the Criminal Code:

  (a)   an interim control order;

  (b)   a confirmed control order;

  (c)   an interim supervision order;

  (d)   an extended supervision order.

If a Part   5.3 supervisory order is in force in relation to a person, and the person has a prescribed connection with premises, a constable may enter and search the premises if:

  (a)   the person is the occupier of the premises and consents to the entry; or

  (b)   the entry is made under a monitoring warrant.

If a Part   5.3 supervisory order is in force in relation to a person, a constable may conduct an ordinary search or a frisk search of the person if:

  (a)   the person consents to the search; or

  (b)   the search is conducted under a monitoring warrant.

A search must be for any of the following purposes (most of which are called Part   5.3 objects):

  (a)   the protection of the public from a terrorist act;

  (b)   the prevention of the provision of support for, or the facilitation of, a terrorist act;

  (c)   the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country;

  (d)   the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part   5.3 offence;

  (e)   determining whether the Part   5.3 supervisory order has been, or is being, complied with.

  An account takeover warrant may be issued by a magistrate.

  An account takeover warrant authorises the Australian Federal Police or the ACC to take control of one or more online accounts.

  The applicant for an account takeover warrant must suspect on reasonable grounds that:

  (a)   one or more relevant offences have been, are being, are about to be, or are likely to be, committed; and

  (b)   an investigation into those offences is being, will be, or is likely to be, conducted; and

  (c)   taking control of the online accounts is necessary, in the course of that investigation, for the purpose of enabling evidence to be obtained of the commission of those offences.

  An emergency authorisation for taking control of an online account may be given by an appropriate authorising officer.

  An emergency authorisation is subject to approval by a magistrate.

  A magistrate may make an order requiring a person to provide any information or assistance that is reasonable and necessary to allow a law enforcement officer to take control of an online account that is the subject of an account takeover warrant or emergency authorisation.

  A person must not use or disclose information that:

  (a)   was obtained under an account takeover warrant or emergency authorisation; or

  (b)   relates to an application for, the issue of, the existence of, or the expiration of, an account takeover warrant or emergency authorisation; or

  (c)   relates to an application for approval of the giving of an emergency authorisation.

  The Australian Federal Police and the ACC must comply with reporting and record keeping requirements relating to account takeover warrants and emergency authorisations.

  The Ombudsman must inspect the records of the Australian Federal Police and the ACC to determine the extent of compliance with this Part by:

  (a)   the Australian Federal Police and the ACC; and

  (b)   law enforcement officers.

This Part provides for the authorisation of operations (called integrity testing operations) that are designed to test the integrity of staff members of target agencies using controlled or simulated situations.

Operations can be authorised only if there is a reasonable suspicion that a staff member has committed, is committing or is likely to commit an offence punishable on conviction by imprisonment for 12 months or more.

Authorisations for integrity testing operations may form the basis for the authorisation of controlled operations under Part   IAB.

Integrity testing operations may be authorised by the ACC, the Australian Federal Police and the Immigration and Border Protection Department in relation to their own agencies, or (if a corruption investigation is involved) the National Anti - Corruption Commission.

Law enforcement officers and others may take part   in integrity testing operations.

Participants in integrity testing operations are indemnified against civil liability in relation to the conduct of the operations in accordance with the authorisations concerned.

Information relating to an integrity testing operation may only be disclosed for the purposes of disciplinary or legal action in relation to the staff member concerned, or a number of related purposes.

 

Commonwealth Coat of Arms of Australia

Crimes Act 1914

No.   12, 1914

Compilation No.   153

Compilation date:   8 January 2024

Includes amendments:   Act No. 113, 2023

Registered:   18 January 2024

This compilation is in 2 volumes

Volume 1:   sections   1- 23W

Volume 2:   sections   23WA- 91

  Schedule

  Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Crimes Act 1914 that shows the text of the law as amended and in force on 8 January 2024 (the compilation date ).

The notes at the end of this compilation (the endnotes ) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Self - repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Part   ID--Forensic procedures

Division   1--Explanation of expressions used

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

Division   4--Non - intimate forensic procedures on suspect by order of senior police officer

23WM   Non - intimate forensic procedure may be carried out by order of senior police officer

23WN   Circumstances in which senior police officer may order non - intimate forensic procedures

23WO   Matters to be considered by senior police officer before ordering forensic procedure

23WP   Record of senior police officer's order

Division   5--Forensic procedures on suspect by order of a magistrate

Subdivision A--General

23WQ   Forensic procedure may be carried out by order of magistrate

23WR   Circumstances in which magistrate may order forensic procedure

Subdivision B--Final orders

23WS   Final order for carrying out of forensic procedure

23WT   Matters to be considered by magistrate before ordering forensic procedure

23WU   Application for order

23WV   Securing the presence of suspect at hearing--suspect in custody

23WW   Securing the presence of suspect at hearing--suspect not in custody

23WX   Procedure at hearing of application for order

23WY   Making of order

Subdivision C--Interim orders

23XA   Interim order for carrying out of a forensic procedure

23XB   Application for interim order

23XC   Procedure at hearing of application for interim order

23XD   Making of interim order

23XE   Records of application and interim order

23XF   Suspect may be prevented from destroying or contaminating evidence

23XG   Results of forensic procedure carried out under interim order

Subdivision D--Time limits for forensic procedures ordered by magistrates

23XGA   Application

23XGB   Time for carrying out forensic procedure--suspect not in custody

23XGC   Arrest of suspect not in custody

23XGD   Time for carrying out forensic procedure--suspect in custody

Subdivision E--Reports of proceedings under Division

23XH   Restrictions on publication

Division   6--Carrying out forensic procedures on suspects

Subdivision A--General provisions

23XI   General rules for carrying out forensic procedures

23XIA   No questioning during forensic procedure

23XIB   Suspect must be cautioned before forensic procedure starts

23XJ   Use of force in carrying out forensic procedures

23XK   Forensic procedures not to be carried out in cruel, inhuman or degrading manner

23XL   Taking of hair samples

Subdivision B--Persons involved in forensic procedures

23XM   Persons who may carry out forensic procedures

Subdivision C--Further provisions about who may carry out forensic procedures

23XN   Certain forensic procedures generally to be carried out by person of same sex as suspect

23XO   Person may get help to carry out forensic procedures

Subdivision D--Presence of other people while forensic procedure is carried out

23XP   Medical practitioner or dentist of suspect's choice may be present for intimate forensic procedures

23XQ   Presence of interview friend or legal representative--children and incapable persons

23XR   Presence of interview friend or legal representative--Aboriginal persons and Torres Strait Islanders

23XS   Presence of constables

23XSA   Presence of prison officers

Subdivision E--Recording of forensic procedure

23XT   Recording of forensic procedure

Subdivision F--Procedure after forensic procedure is carried out

23XU   Samples--sufficient material to share

23XUA   Samples--insufficient material to share

23XV   Photographs

23XW   Results of analysis

23XWA   Preventing the carrying out of forensic procedure

Division   6A--Carrying out of certain forensic procedures after conviction of serious and prescribed offenders

23XWB   Forensic procedures to which Division applies

23XWC   Non - intimate forensic procedures authorised to be carried out on offenders

23XWD   Intimate forensic procedures authorised to be carried out on serious offenders

23XWE   Application of Division   6

23XWF   Scope of authorisation

23XWG   Informed consent to forensic procedures

23XWH   Constable may request offender to consent to forensic procedure

23XWI   Matters to be considered by constable before requesting consent to forensic procedure

23XWJ   Matters that offender must be informed of before giving consent

23XWK   Circumstances in which constable may order non - intimate forensic procedure

23XWL   Matters to be considered by constable

23XWM   Recording of giving of information and consent

23XWN   Record of constable's order

23XWNA   Circumstances in which judge or magistrate may order forensic procedure

23XWO   Judge or magistrate order for carrying out forensic procedure on offender

23XWOA   Securing the presence of offender at hearing--offender in custody

23XWOB   Securing the presence of offender at hearing--offender not in custody

23XWP   Carrying out forensic procedure following conviction

Division   6B--Carrying out of forensic procedures on volunteers and certain other persons

23XWQ   Carrying out of forensic procedures on volunteers

23XWR   Informed consent of volunteer or parent or guardian of volunteer

23XWS   Recording of giving of information and consent

23XWT   Withdrawal of consent

23XWU   Circumstances in which magistrate may order the carrying out of forensic procedure on a child or incapable person

23XWV   Retention of forensic material by order of a magistrate after volunteer, parent or guardian of child or incapable person withdraws consent

Division   7--Admissibility of evidence

Subdivision A--Forensic evidence

23XX   Inadmissibility of evidence from improper forensic procedures etc.

23XY   Inadmissibility of evidence where forensic material required to be destroyed

Subdivision B--Other evidence

23XZ   Admissibility of evidence relating to consent to forensic procedure

23YA   Admissibility of evidence relating to carrying out of forensic procedure

23YB   Obstructing the carrying out of forensic procedure

Subdivision C--Application

23YBA   Division does not apply to a proceeding in a foreign country or an international tribunal

Division   8--Destruction of forensic material

23YBB   Application

23YC   Destruction of forensic material where interim order disallowed

23YD   Destruction of forensic material after 12 months

23YDAA   Destruction of forensic material taken from offender after conviction quashed

23YDAB   Destruction of forensic material where related evidence is inadmissible

Division   8A--Commonwealth and State/Territory DNA database systems

23YDAC   Definitions

23YDACA   Integration of Commonwealth DNA database system and State/Territory DNA database systems

23YDAD   Supply of forensic material for purposes of DNA database

23YDAE   Use of information on Commonwealth DNA database system or NCIDD

23YDAF   Permissible matching of DNA profiles

23YDAG   Recording, retention and removal of identifying information on Commonwealth DNA database system

Division   9--General provisions relating to operation of this Part

23YDA   Interpreters

23YE   Powers etc. of legal representatives and interview friends

23YF   Obligation of investigating constables relating to tape recordings

23YG   Material required to be made available to suspect, offender or volunteer

23YH   No charge to be made for giving material etc. to suspects, offenders and volunteers

23YI   Proof of belief or suspicion

23YJ   Proof of impracticability

23YJA   Proof that time should be disregarded

23YK   Proof of voluntary waiver of certain rights

23YKA   Application of sections   23YI to 23YK

23YL   Liability for forensic procedures

23YM   Experts not obliged to carry out forensic procedures

23YN   Retention of electronic recordings

23YO   Disclosure of information

23YP   Taking, retention and use of forensic material

23YPA   Analysis of forensic material

23YQ   Commissioner may delegate functions and powers

Division   9A--Carrying out forensic procedures at the request of a foreign country or international tribunal

Subdivision A--Requests by foreign countries or international tribunals

23YQA   Application of Subdivision

23YQB   Providing evidence and material resulting from the forensic procedure

Subdivision B--Requests by a foreign law enforcement agency

23YQC   Application of Subdivision

23YQD   Providing forensic material etc. to a foreign law enforcement agency

Division   10--Operation of this Part and effect on other laws

23YQE   Part does not apply to persons under 10

23YR   Relationship with Part   IAA

23YS   Relationship with Part   IC

23YU   Application of other laws

Division   11--Interjurisdictional enforcement

23YUA   Definitions

23YUB   Registration of orders

23YUC   Carrying out of registered orders

23YUD   Database information

23YUDA   Arrangements with prisons or other places of detention

Division   11A--Operation of this Part   in relation to certain incidents

23YUE   Definitions

23YUF   Application of this Division

23YUG   Use of information on DNA database systems

23YUH   Permissible matching of DNA profiles

23YUI   Disclosure of information

23YUJ   This Division does not restrict operation of this Part

Division   11B--Concurrent operation of State and Territory laws

23YUL   Concurrent operation of State and Territory laws

Part   IE--Forfeiture of child abuse material

Division   1--Things this Part applies to

23ZA   Application

Division   2--Forfeiture by operation of law after notice is given

23ZB   Forfeiture of material by operation of law

23ZC   Providing copies of innocuous parts of material to be forfeited

Division   3--Forfeiture by court order on application

23ZD   Forfeiture of material by court order on application

Division   4--Provisions relating to forfeiture under this Part generally

23ZE   Effect of forfeiture under this Part

23ZF   Compensation for forfeiture of electronic equipment etc.

23ZG   Delegation by head of police force

Part   IIA--Protection of public and other services

30J   Industrial disturbances, lock - outs and strikes

30K   Obstructing or hindering the performance of services

Part   III--Offences relating to the administration of justice

Division   1--Preliminary

31   Judicial proceeding and tribunal definitions

Division   2--Judges and magistrates

34   Judge or magistrate acting oppressively or when interested

Division   3--Evidence and witnesses

35   Giving false testimony

36   Fabricating evidence

36A   Intimidation of witnesses etc.

37   Corruption of witnesses

38   Deceiving witnesses

39   Destroying evidence

40   Preventing witnesses from attending Court

Division   4--Perverting the course of justice

41   Conspiracy to bring false accusation

42   Conspiracy to defeat justice

43   Attempting to pervert justice

44   Compounding offences

45   Inserting advertisements without authority of court

Division   5--Escape from criminal detention

45A   Criminal detention definitions

46   Aiding prisoner to escape

46A   Aiding prisoner to escape--conveying thing into prison etc.

47   Escaping

47A   Rescuing a prisoner from criminal detention

47B   Person unlawfully at large

47C   Permitting escape

48   Harbouring etc. an escapee

48A   Sentence ceases to run while escaped prisoner at large

Division   6--Seized property

49   Removing property under seizure

Part   IV--Piracy

51   Interpretation

52   Piracy

53   Operating a pirate - controlled ship or aircraft

54   Seizure of pirate ships and aircraft etc.

55   Written consent of Attorney - General required

56   Evidence of certain matters

Part   VIIA--Offences relating to postal services

85E   Interpretation--definitions

85F   Interpretation--expressions used in Australian Postal Corporation Act

85G   Forgery of postage stamps etc.

85H   Special paper for postage stamps

85N   Wrongful delivery of postal article etc.

85Q   Forgery of postal messages etc.

85R   Wrongful delivery of postal messages

85T   Sending false postal messages

85U   Obstructing carriage of articles by post

85V   Interference with property of Australia Post

85W   Causing controlled drugs or controlled plants to be carried by post

85Z   Articles carried by post to be taken to be Australia Post's property

85ZA   Postage stamps to be valuable securities etc.

Part   VIIC--Pardons, quashed convictions and spent convictions

Division   1--Interpretation and application of Part

85ZL   Interpretation of Part

85ZM   Meaning of conviction and spent conviction

85ZN   Meaning of quash

85ZP   Application of Part

85ZQ   Part binds the Crown

Division   2--Pardons for persons wrongly convicted, and quashed convictions

85ZR   Pardons for persons wrongly convicted

85ZS   Effect of pardons for persons wrongly convicted

85ZT   Quashed convictions

85ZU   Effect of quashed convictions

Division   3--Spent convictions

85ZV   Spent convictions

85ZW   Effect of right of non - disclosure

Division   4--Convictions of further offences

85ZX   Convictions of further Commonwealth or Territory offences

85ZY   Convictions of further State or foreign offences

Division   5--Complaints to Information Commissioner

85ZZ   Information Commissioner's functions

85ZZA   Complaints to the Information Commissioner

85ZZB   Identity of respondent to complaint

85ZZC   Investigation of complaints

85ZZD   Determinations of Information Commissioner

85ZZE   Payment of compensation or expenses

85ZZF   Enforcement of determination or recommendation

85ZZG   Application of Privacy Act

Division   6--Exclusions

Subdivision A--Exclusions relating to work with children (Divisions   2 and 3)

85ZZGA   Object of Subdivision

85ZZGB   Exclusion: disclosing information to a person or body

85ZZGC   Exclusion: person or body taking information into account

85ZZGD   Exclusion: person or body disclosing information

85ZZGE   Prescribed persons and bodies

85ZZGF   Definitions

85ZZGG   Reviews of operation of this Subdivision

Subdivision AA--Exclusions relating to work with persons with disability (Divisions   2 and 3)

85ZZGH   Object of Subdivision

85ZZGI   Exclusion: disclosing information to a person or body

85ZZGJ   Exclusion: person or body taking information into account

85ZZGK   Exclusion: person or body disclosing information

85ZZGL   Prescribed persons and bodies

85ZZGM   Definitions

85ZZGN   Reviews of operation of this Subdivision

Subdivision B--Exclusions (Division   3)

85ZZH   Exclusions

85ZZJ   Further exclusions--law enforcement agencies

85ZZJA   Further exclusions--Australian Security Intelligence Organisation

Subdivision C--Other matters

85ZZK   Fair reporting: pardons and quashed convictions

85ZZL   Criminal proceedings before the Federal Court of Australia

Part   VIID--Collecting, using and disclosing personal information that may be relevant for integrity purposes

86B   Simplified outline of this Part

86C   Target entity may collect sensitive information for integrity purpose

86D   Target entity may use personal information for integrity purpose

86E   Disclosure of personal information to target entity for integrity purpose

86F   This Part does not limit other laws

86G   Guidelines on the operation of this Part

Part   VIII--Miscellaneous

87   False certificates

89   Trespassing on Commonwealth land

89A   Discharging firearms on or over Commonwealth land

90   Trespass by cattle or live stock

90A   Destroying etc. posters etc. relating to Commonwealth loans

90B   False statements in documents filed etc. under laws of a Territory

91   Regulations

Schedule--Form of explanation under section   23V

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

 

Simplified outline of operation of Part

This Part provides for forensic procedures to be carried out on:

  suspects in relation to indictable offences (Divisions   3, 4 and 5); and

  offenders in relation to prescribed and serious offences (Division   6A); and

  volunteers (Division   6B).

If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division   6.

If a forensic procedure covered by this Part   is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division   7).

However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division   9A).

This Part also:

  contains offences in relation to the Commonwealth DNA database system and the National Criminal Investigation DNA Database ( NCIDD ) (Division   8A); and

  provides for the whole or a part of the Commonwealth DNA database system to be integrated with the whole or a part of one or more State/Territory DNA database systems to form part of NCIDD (Division   8A); and

  provides for the exchange of information in the Commonwealth DNA database system or a State/Territory DNA database system and the protection of the information that is exchanged (Division   11); and

  provides for the destruction of forensic material (Division   8).

Simplified outline of operation of Part

This Part provides for forensic procedures to be carried out on:

  suspects in relation to indictable offences (Divisions   3, 4 and 5); and

  offenders in relation to prescribed and serious offences (Division   6A); and

  volunteers (Division   6B).

If the carrying out of a forensic procedure is authorised under this Part, it must be carried out in accordance with rules and procedures set out in Division   6.

If a forensic procedure covered by this Part   is carried out without proper authority under this Part, evidence obtained through the procedure may be inadmissible in proceedings against the suspect (Division   7).

However, certain rules are modified or do not apply if the forensic procedure is carried out in response to a request by a foreign country or an international tribunal, or a request by a foreign law enforcement agency (Division   9A).

This Part also:

  contains offences in relation to the Commonwealth DNA database system and the National Criminal Investigation DNA Database ( NCIDD ) (Division   8A); and

  provides for the whole or a part of the Commonwealth DNA database system to be integrated with the whole or a part of one or more State/Territory DNA database systems to form part of NCIDD (Division   8A); and

  provides for the exchange of information in the Commonwealth DNA database system or a State/Territory DNA database system and the protection of the information that is exchanged (Division   11); and

  provides for the destruction of forensic material (Division   8).

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