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Arrest) Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
(a)
to provide for the maximum period of time that a person who is under
arrest may be detained by police for the purposes of investigating the
person's involvement in the commission of an offence, and
(b) to provide for the rights of a person so detained.
Currently the police have no power to detain a person after arrest merely for
the purposes of investigation. The Law Reform Commission in its report
Police Powers of Detention and Investigation after Arrest (LRC 66, 1990)
found that this area of the law required reform.
* Amended in committee--see table at end of volume.
Clause 2 provides for the commencement of the proposed Act.
Clause 3 is a formal provision that gives effect to the Schedule of
amendments to the Crimes Act 1900.
Clause 4 is a formal provision that gives effect to the Schedule containing a
consequential amendment to the Children (Criminal Proceedings) Act 1987.
Schedule 1
Amendment of Crimes Act 1900
Power to detain persons after arrest for the purposes of
investigation
A new Part is to be inserted into the Crimes Act 1900 containing police
powers to detain a person after arrest for the purposes of investigation
(proposed Part 10A, inserted by Schedule 1 [4]).
The objects of the Part are set out in proposed section 354. Proposed section
355 (1) defines terms for the purposes of the Part.
The Part provides a new power for police to detain a person who is under
arrest for a reasonable period of up to 4 hours (with provision for the
extension of the period for up to an additional 8 hours in certain
circumstances) to enable the person's involvement in the offence for which
the person was arrested to be investigated. If, while the person is so detained,
police form a reasonable suspicion as to the person's involvement in any
other offence, they may also investigate the person's involvement in that
other offence during the investigation period for the arrest (proposed sections
356C, 356D and 3566).
A list of criteria for determining what is a reasonable period is set out
(proposed section 356E). Certain times, being times during which any
investigative procedure in which the person is to participate is reasonably
suspended or deferred, are to be disregarded in calculating the initial 4-hour
period or any period of time by which that 4-hour period is extended by a
detention warrant (proposed section 356F). For example, time spent in
arranging communication with a legal practitioner or waiting for an
interpreter or any time in which the person is receiving medical attention is to
be disregarded.
Explanatory note page 2
Application for a detention warrant to extend the initial 4-hour period may be
made in person or by telephone to an authorised justice and must be made
before the expiry of that period. Proposed sections 356G356L set out the
procedures for obtaining an extension and make it an offence to provide false
or misleading information in connection with applications for extensions
punishable by a fine of up to 100 penalty units (currently $10,000) or
imprisonment for 2 years, or both.
The Part will apply:
(a)
to persons, including children, who are under arrest by a police officer
for an offence (proposed section 356 (l)), and
(b)
to a person who has not been formally arrested but who is in the
company of the police for the purpose of participating in an
investigation if the police:
(i)
believe that there is sufficient evidence to establish that the
person has committed an offence that is or is to be the subject of
the investigation, or
(ii)
would arrest the person if the person attempted to leave, or
(iii) have given the person reasonable grounds for believing that the
person would not be allowed to leave if the person wished to do
so (proposed section 355 (2)).
The Part will apply whether the offence concerned was committed before or
after the commencement of the Part or within or outside the State (proposed
section 356 (1)).
The Part will not apply to a person who is detained under the Intoxicated
Persons Act 1979 (proposed section 356 (2)) or in respect of the arrest of a
person before the commencement of the Part (Schedule 1 [ 6 ] ) .
Regulations may be made for the modification of the application of the Part
to persons who are detained under the Part and who are children, Aboriginal
persons, Torres Strait Islanders or from non-English speaking backgrounds or
have a disability (whether physical, intellectual or otherwise) (proposed
section 356A).
Effect of proposed Part on existing powers and rights, and
rules of evidence
Proposed section 356B makes it clear that the Part does not confer any power
to arrest a person, or to detain a person who has not been lawfully arrested,
Explanatory note page 3
prevent a police officer from asking or causing a person to do a particular
thing that the police officer is authorised by law to ask or cause the person to
do or independently confer power to carry out an investigative procedure.
The Part will not affect certain existing rights of persons (eg the right to
remain silent) or the rules of evidence.
Rights of persons detained under the proposed Part
The Part provides for the custody manager for the detained person to caution
the person and give the person a summary of the provisions of the Part
(proposed section 356M).
The Part also provides that, before any investigative procedure in which the
person is to participate starts (eg questioning the person), the custody
manager must advise the person of his or her right to communicate with a
friend, relative, guardian or independent person to inform that person of the
detained person's whereabouts and to consult with that person at the place
where the person is being detained. The custody manager must also advise
the person of his or her right to communicate with a legal practitioner, to
consult with the legal practitioner at the place where the person is being
detained and to have legal representation during any such investigative
procedure.
The custody manager must defer any such investigative procedure for a
reasonable time to allow the person to exercise his or her right to
communicate with those persons and, if the person has asked to do so, to
allow the person to consult with the friend, relative, guardian, independent
person or legal practitioner and to allow the legal practitioner to be present,
and to give advice to the person, during any such investigative procedure.
The police are not required however to wait for more than 2 hours for the
persons communicated with to arrive (proposed section 356N).
If the detained person is not an Australian citizen or a permanent Australian
resident, the custody manager must also advise the person of his or her right
to communicate with a consular official and to consult with the consular
official at the place where the person is being detained. The custody manager
must defer any such investigative procedure for a reasonable time to allow
the person to exercise his or her right to communicate with a consular official
and, if the person has asked to do so, to allow the person to consult with the
consular official. The police are not required however to wait for more than 2
hours for the consular official to arrive (proposed section 3560).
Explanatory note page 4
The provisions relating to rights in relation to friends, relatives, guardians
and independent persons will not apply in certain circumstances (eg if the
custody manager believes on reasonable grounds that complying with a
provision is likely to result in an accomplice avoiding arrest, interference
with evidence or the intimidation of a witness) (proposed section 356P).
Friends, relatives, guardians, legal practitioners and certain other persons are
entitled to information from the custody manager about the whereabouts of
persons who are detained under the Part, except in certain circumstances (eg
if the detained person does not agree to the information being provided)
(proposed sections 356Q and 356R). Provision is made for obtaining
interpreters in certain circumstances (proposed section 356S).
Rights to medical assistance and to reasonable refreshments and other
facilities (eg toilet facilities) are provided for (proposed sections 356T
and 356U).
Other provisions of the proposed Part
The custody manager for a detained person must maintain a custody record in
respect of the person (proposed section 356V).
A court may take into account in passing sentence on a person any period
during which the person was detained under the Part in respect of the offence
concerned and may reduce the sentence it would otherwise have passed
(proposed section 356W).
Regulations may be made for the purposes of the Part (proposed section
356X).
Provision is made for the Minister to review the Part and to table a report on
the outcome of the review in Parliament within one year after the Part
commences (proposed section 356Y).
The Part will apply to all offences by the operation of section 3 and the
Second Schedule to the Crimes Act 1900.
Consequential amendments
Schedule [1][3] and [5] make consequential amendments.
Schedule 2
Amendment of Children (Criminal
Proceedings) Act 1987
Schedule 2 amends the Children (Criminal Proceedings) Act 1987 as a
consequence of the proposed amendments to the Crimes Act 1900.
Explanatory note page 5