(b) a prescribed offence against a law of the Commonwealth or of a Territory;
it may, at the same time or at a later time, order the person to do all or any of the following things:
(c) to remain in Australia;
(d) to refrain from applying for, or obtaining, an Australian travel document;
(e) to surrender possession of any Australian travel document held by the person.
(2) Subject to subsection (3), an order made under subsection (1) has effect during such reasonable period as is specified by the court in the order.
(3) The court may, by order, revoke an order made under subsection (1) or vary such an order as the court sees fit.
(4) If the court makes an order under subsection (1) or (3), the Registrar or other appropriate officer of the court, as the case requires, must, as soon as practicable, give to the Secretary of the Department administered by the Minister administering the Australian Passports Act 2005 a copy of the order.
(5) If the court makes an order under paragraph (1)(e):
(a) the Australian travel document must be given to the Registrar or other appropriate officer of the court; and
(b) the Registrar or officer must cause the Australian travel document to be kept in such custody as he or she thinks fit until:
(i) the Australian travel document is required to be released under subsection (6); or
(ii) the Australian travel document is cancelled or expires;
whichever happens first.
(6) If an Australian travel document surrendered under an order under paragraph (1)(e) is in force when that order ceases to have effect, the person having the custody of the Australian travel document at that time must, on the application of the person to whom it was issued, cause it to be returned to that person.
(7) In this section:
relevant order means an order:
(a) remanding a person, whether on bail or in custody; or
(b) suspending the sentence passed on a person upon his or her entering into a recognizance; or
(c) releasing the person on conditions under subsection 20(1).
relevant sentence means:
(a) a sentence of imprisonment other than a suspended sentence; or
(b) a sentence under section 20AB.
serious drug offence means an offence:
(a) involving, or relating to, controlled substances; and
(b) punishable by a maximum penalty of imprisonment for 2 years or more.
22A State orders relating to Australian travel documents
(1) If, under a law of a State, a court makes an order requiring a person charged with, or convicted of:
ZoeLaw is not a law firm. Picks are our opinion; we don't share your details.
(a) a serious drug offence against a law of that State; or
(b) such other serious offence against a law of that State as is specified in the first‑mentioned law;
to surrender possession of any Australian travel document held by the person, the person must surrender the Australian travel document to the Registrar, or other appropriate officer, of the court to be dealt with in accordance with that law.
(2) In this section:
serious drug offence has the same meaning as in section 22.
Part IC—Investigation of Commonwealth offences
Division 1—Introduction
23 Outline of this Part
(1) This Part:
(a) provides for the detention of people arrested for Commonwealth offences (see Division 2); and
(b) imposes obligations on investigating officials in relation to:
(i) people arrested for Commonwealth offences; and
(ii) certain other people who are being investigated for Commonwealth offences;
(see Division 3).
(2) To avoid doubt, this Part does not confer any power to arrest a person.
(3) To avoid doubt, only a person arrested for a Commonwealth offence may be detained under this Part.
23A Application of Part
(1) Any law of the Commonwealth in force immediately before the commencement of this Part, and any rule of the common law, has no effect so far as it is inconsistent with this Part.
(2) This Part does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently with this Part.
(3) In subsection (2):
law of a State or Territory includes such a law that is given a particular application by a law of the Commonwealth.
(4) Where a law of a State or Territory would, apart from this subsection, require the electronic recording of confessional evidence in relation to a Commonwealth offence (whether or not expressed as a condition of the admissibility of that evidence), that requirement ceases to apply on the commencement of this Part.
(5) The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.
(6) If an offence against a law of the Australian Capital Territory is punishable by imprisonment for a period exceeding 12 months and the investigating official concerned is a member or special member of the Australian Federal Police, this Part applies to that offence as if:
(a) references to Commonwealth offences included references to that offence; and
(b) references to a law of the Commonwealth included references to a law of that Territory.
23AA How this Part applies to the Antarctic Territories
(1) This Part applies in relation to a person as if he or she were arrested on arrival in a State or Territory if:
(a) the person was arrested within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and
(b) the person was brought, while under arrest, to the State or Territory; and
(c) this Part applies in the State or Territory.
(2) This Part applies in relation to a person as if he or she first became a protected suspect on arrival in a State or Territory if:
(a) the person was a protected suspect within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands; and
(b) the person travelled, while a protected suspect, to the State or Territory; and
(c) this Part applies in the State or Territory.
(3) This Part does not otherwise apply within the Australian Antarctic Territory or the Territory of Heard Island and McDonald Islands.
23B Definitions
(1) In this Part:
Aboriginal legal assistance organisation means an organisation that is funded by the Commonwealth, a State or a Territory to provide legal assistance to Aboriginal persons and Torres Strait Islanders.
arrested: a person is arrested if:
(a) the person is arrested for a Commonwealth offence; and
(b) the person’s arrest has not ceased under subsection (3) or (4); and
(c) the person has not been released.
authorising officer, in relation to an investigating official, means:
(a) if the investigating official is a member or special member of the Australian Federal Police—a person for the time being holding office or acting as:
(i) the Commissioner; or
(ii) a Deputy Commissioner; or
(iii) a member or special member of the Australian Federal Police who is of the rank of superintendent or higher; or
(b) if the investigating official is a member of the police force of a State or Territory—a person for the time being holding office or acting as:
(i) the Commissioner or the person holding equivalent rank; or
(ii) an Assistant Commissioner or a person holding equivalent rank; or
(iii) a superintendent or a person holding equivalent rank;
of the police force of that State or Territory.
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.
designated 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.
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 (other than a member or special member of the Australian Federal Police who is engaged in covert investigations under the orders of a superior); or
(b) a member of the police force of a State or Territory (other than a member of the police force of a State or Territory who is engaged in covert investigations under the orders of a superior); 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 (other than a person who is engaged in covert investigations under the orders of a superior).
investigation period means the investigation period prescribed by section 23C or 23DB, as the case requires.
protected suspect has the meaning given by subsection (2).
question has the meaning given by subsection (6).
serious Commonwealth offence means a Commonwealth offence that is punishable by imprisonment for a period exceeding 12 months.
tape recording means audio recording, video recording or recording by other electronic means.
under arrest: a person is under arrest if:
(a) the person is arrested for a Commonwealth offence; and
(b) the person’s arrest has not ceased under subsection (3) or (4); and
(c) the person has not been released.
(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 a bail authority otherwise than under any of the following provisions of the Service and Execution of Process Act 1992:
(a) paragraph 83(3)(b), (4)(b), (8)(a) or (8)(b);
(b) subsection 83(12);
(c) paragraph 83(14)(a);
(d) subparagraph 84(4)(a)(ii) or (6)(a)(i).
(4) A person ceases, for the purposes of this Part, to be arrested or a protected suspect if:
(a) a designated 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.
Division 2—Powers of detention
Note: The powers in this Division only apply in relation to people under arrest. They do not apply in relation to protected suspects.
Subdivision A—Non‑terrorism offences
23C Period of investigation if arrested for a non‑terrorism offence
(1) If a person is arrested for a Commonwealth offence (other than a terrorism offence), the following provisions apply.
Note: A person would not be arrested for a Commonwealth offence if, for example, the person has been released under subsection 3W(2)—see the definition of arrested in subsection 23B(1).
(2) The person may, while arrested for the Commonwealth offence, be detained for the purpose of investigating either or both of the following:
(a) whether the person committed the offence;
(b) whether the person committed another Commonwealth offence that an investigating official reasonably suspects that the person has committed.
(2A) Subsection (2) ceases to apply at the end of the investigation period, but that cessation does not affect any other power to detain the person.
(3) If the person is not released within the investigation period, the person must be brought before a bail authority within the investigation period or, if it is not practicable to do so within the investigation period, as soon as practicable after the end of the investigation period.
(4) For the purposes of this section, but subject to subsections (6) and (7), the investigation period begins when the person is arrested, and ends at a time thereafter that is reasonable, having regard to all the circumstances, but does not extend beyond:
(a) if the person is or appears to be under 18, an Aboriginal person or a Torres Strait Islander—2 hours; or
(b) in any other case—4 hours;
after the arrest, unless the period is extended under section 23DA.
(5) In ascertaining any period of time for the purposes of this section, regard shall be had to the number and complexity of matters being investigated.
(6) If the person has been arrested more than once within any period of 48 hours, the investigation period for each arrest other than the first is reduced by so much of any of the following periods as occurred within that 48 hours:
(a) any earlier investigation period or periods under this section;
(b) any earlier investigation period or periods under section 23DB.
(6A) However, in relation to each first arrest, disregard subsection (6) for any later arrest if:
(a) the later arrest is for a Commonwealth offence:
(i) that was committed after the end of the person’s period of detention under this Part for the first arrest; or
(ii) that arose in different circumstances to those in which any Commonwealth offence to which the first arrest relates arose, and for which new evidence has been found since the first arrest; and
(b) the person’s questioning associated with the later arrest does not relate to:
(i) a Commonwealth offence to which the first arrest relates; or
(ii) the circumstances in which such an offence was committed.
(7) In ascertaining any period of time for the purposes of subsection (4) or (6), disregard any reasonable time during which the questioning of the person is suspended, or delayed, for one or more of the following reasons:
(a) to allow the person to be conveyed from the place at which the person is arrested to the nearest premises at which the investigating official has access to facilities for complying with this Part;
(b) to allow the person, or someone else on the person’s behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter or other person as provided by this Part;
(c) to allow such a legal practitioner, friend, relative, parent, guardian, interpreter or other person to arrive at the place where the questioning is to take place;
(d) to allow the person to receive medical attention;
(e) because of the person’s intoxication;
(f) to allow for an identification parade to be arranged and conducted;
(g) to allow the making of an application under section 3ZQB or the carrying out of a prescribed procedure within the meaning of Division 4A of Part IAA;
(h) to allow the making and disposing of an application under section 23D, 23WU or 23XB;
(i) to allow a constable to inform the person of matters specified in section 23WJ;
(j) to allow the person to rest or recuperate;
(k) to allow a forensic procedure to be carried out on the person by order of a magistrate under Division 5 of Part ID;
(l) because section 23XGD applies and the time is to be disregarded in working out a period of time for the purposes of that section.
(7A) To avoid doubt, subsection (7) does not prevent the person being questioned during a time covered by a paragraph of subsection (7), but if the person is questioned during such a time, the time is not to be disregarded.
Evidentiary provision
(8) In any proceedings, the burden lies on the prosecution to prove that:
(a) the person was brought before a bail authority as soon as practicable; or
(b) any particular time was covered by a provision of subsection (7).
23D Application may be made for extension of investigation period