(1) If a person is arrested for a terrorism offence, an investigating official (within the meaning of paragraph (a) or (b) of the definition of that expression) may, at or before the end of the investigation period, apply, in writing, to a magistrate for an extension of the investigation period.
(2) The application must not be made unless the application is authorised, in writing, by an authorising officer.
(3) Subject to subsection (4), the application must include statements of all of the following:
(a) whether it appears to the investigating official that the person is under 18;
(b) whether it appears to the investigating official that the person is an Aboriginal person or a Torres Strait Islander;
(c) the outcome of any previous application under this section in relation to the person and the investigation period;
(d) the period (if any) by which the investigation period has been reduced under subsection 23DB(7);
(e) the total amount of time (if any) that has been disregarded under subsection 23DB(9) in ascertaining the investigation period;
(f) the maximum amount of time by which the investigation period could be extended;
(g) the reasons why the investigating official believes the investigation period should be extended;
(h) the period by which the investigating official believes the investigation period should be extended.
(4) Subsection (3) does not require any information to be included in the application if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(5) Before the application is considered by the magistrate, the investigating official must:
(a) provide a copy of the application to the person or to his or her legal representative; and
(b) inform the person that he or she, or his or her legal representative, may make representations to the magistrate about the application.
(6) If the application contains any information of a kind mentioned in subsection (4), the investigating official may remove it from the copy of the application that is provided to the person or to his or her legal representative.
(7) The person, or his or her legal representative, may make representations to the magistrate about the application.
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(1) This section applies if:
(a) a person is arrested for a terrorism offence; and
(b) an application has been made under subsection 23DE(1) to a magistrate in respect of the person.
Extension of investigation period
(2) Subject to subsection (3), the magistrate may extend the investigation period, by signed written instrument, if satisfied that:
(a) the offence is a terrorism offence; and
(b) further detention of the person is necessary to:
(i) preserve or obtain evidence related to the offence or to another terrorism offence; or
(ii) complete the investigation into the offence or into another terrorism offence; and
(c) the investigation into the offence is being conducted properly and without delay; and
(d) the application has been authorised by an authorising officer; and
(e) the person, or his or her legal representative, has been given the opportunity to make representations about the application.
(3) Subject to subsection (4), the instrument must set out:
(a) the day and time when the extension was granted; and
(b) the reasons for granting the extension; and
(c) the terms of the extension.
(4) Subsection (3) does not require any information to be included in the instrument if disclosure of that information is likely:
(a) to prejudice national security (within the meaning of the National Security Information (Criminal and Civil Proceedings) Act 2004); or
(b) to be protected by public interest immunity; or
(c) to put at risk ongoing operations by law enforcement agencies or intelligence agencies; or
(d) to put at risk the safety of the community, law enforcement officers or intelligence officers.
(5) The magistrate must:
(a) give the investigating official a copy of the instrument as soon as practicable after signing it; and
(b) if the instrument was made as a result of an application made by telex, fax or other electronic means—inform the investigating official of the matters included in the instrument.
Note: See section 23E.
(6) The investigating official must:
(a) as soon as practicable after receiving a copy of the instrument under paragraph (5)(a), give the person, or his or her legal representative, a copy of it; and
(b) if the instrument was made as a result of an application made by telex, fax or other electronic means—inform the person, or his or her legal representative, of the matters included in the instrument as soon as practicable after being informed of them under paragraph (5)(b).
(7) The investigation period may be extended any number of times, but the total of the periods of extension cannot be more than 20 hours.
Subdivision C—Miscellaneous
23E Evidentiary provisions if application made by electronic means
(1) This section applies if a magistrate has, under paragraph 23DA(5)(b), 23DD(5)(b) or 23DF(5)(b), informed an investigating official of matters included in an instrument.
(2) As soon as practicable after being informed of those matters, the investigating official must:
(a) complete a form of the instrument and write on it the name of the magistrate and the particulars given by him or her; and
(b) forward it to the magistrate.
(3) If the form of the instrument completed by the investigating official does not, in all material respects, accord with the terms of the instrument signed by the magistrate, the instrument is taken to have had no effect.
(4) In any proceedings, if the instrument signed by the magistrate is not produced in evidence, the burden lies on the prosecution to prove that the instrument was made.
Division 3—Obligations of investigating officials
Note: These obligations apply in relation to protected suspects as well as to people under arrest.
23F Cautioning persons who are under arrest or protected suspects
(1) Subject to subsection (3), if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
(2) The investigating official must inform the person of the caution in accordance with subsection (1), but need only do so in writing if that is the most appropriate means of informing the person.
(3) Subsections (1) and (2) do not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official.
23G Right to communicate with friend, relative and legal practitioner
(1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may:
(a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b) communicate, or attempt to communicate, with a legal practitioner of the person’s choice and arrange, or attempt to arrange, for a legal practitioner of the person’s choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
(2) Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must:
(a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and
(b) in the case of a communication with a legal practitioner—allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard.
(3) Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must:
(a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and
(b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning.
23H Aboriginal persons and Torres Strait Islanders
(1) Subject to section 23L, if the investigating official in charge of investigating a Commonwealth offence believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, and whom it is intended to question about the offence is an Aboriginal person or a Torres Strait Islander, then, unless the official is aware that the person has arranged for a legal practitioner to be present during the questioning, the official must, before starting to question the person:
(a) inform the person that a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located will be notified that the person is under arrest or is a protected suspect (as the case requires); and
(b) notify such a representative that the person is under arrest or is a protected suspect (as the case requires).
(1A) To avoid doubt, the obligations imposed by subsection (1) do not limit and are not limited by any other obligations imposed, or rights conferred, by this section.
(1AB) If a representative of an Aboriginal legal assistance organisation is notified under subsection (1), the investigating official must not question the person until the earlier of the following times:
(a) the representative has communicated with the person;
(b) 2 hours have elapsed since the representative was notified.
(2) Subject to subsection (7) and section 23L, if an investigating official:
(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
(b) believes on reasonable grounds that a person who is under arrest or a protected suspect is an Aboriginal person or a Torres Strait Islander;
the official must not question the person unless:
(c) an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard; or
(d) the person has expressly and voluntarily waived his or her right to have such a person present.
(2A) The person suspected, or under arrest, may choose his or her own interview friend unless:
(a) he or she expressly and voluntarily waives this right; or
(b) he or she fails to exercise this right within a reasonable period; or
(c) the interview friend chosen does not arrive within 2 hours of the person’s first opportunity to contact an interview friend.
(2B) If an interview friend is not chosen under subsection (2A), the investigating official must choose a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located to be the person’s interview friend.
(3) An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
(4) In any proceedings, the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived the right referred to in subsection (2) or (2A), and the burden is not discharged unless the court is satisfied that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
(5) In any proceedings, the burden lies on the prosecution to prove that, at the relevant time, a person who is under arrest or a protected suspect had, to the knowledge of the investigating official concerned, made an arrangement of the kind referred to in subsection (1).
(6) The rights conferred by this section are in addition to those conferred by section 23G but, to the extent (if any) that compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
(7) If the person is under 18, subsection (2) does not apply and section 23K applies.
(8) An investigating official is not required to comply with subsection (1), (2) or (2B) in respect of a person if the official believes on reasonable grounds that, having regard to the person’s level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally.
(9) In this section:
interview friend, in relation to a person to whom subsection (2) applies, means:
(a) a relative or other person chosen by the person; or
(b) a legal practitioner acting for the person; or
(c) a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
23K Persons under 18
(1) Subject to section 23L, if an investigating official:
(a) interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is under 18; or
(b) believes on reasonable grounds that a person who is under arrest or a protected suspect is under 18;
the official must not question the person unless an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard.
(2) An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
(3) In this section:
interview friend, in relation to a person to whom subsection (1) applies, means:
(a) a parent or guardian of the person or a legal practitioner acting for the person; or
(b) if none of the previously mentioned persons is available—a relative or friend of the person who is acceptable to the person; or
(c) if the person is an Aboriginal person or a Torres Strait Islander and none of the previously mentioned persons is available—a person who is a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located; or
(d) if no person covered by paragraph (a), (b) or (c) is available—an independent person.
(4) The rights conferred by this section are in addition to those conferred by section 23G but, so far as compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
23L Exceptions
(1) Subject to subsections (2) and (4), if a requirement imposed on an investigating official by this Part is expressed as being subject to this section, the requirement does not apply if, and for so long as, the official believes on reasonable grounds that:
(a) compliance with the requirement is likely to result in:
(i) an accomplice of the person taking steps to avoid apprehension; or
(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or
(b) if the requirement relates to the deferral of questioning—the questioning is so urgent, having regard to the safety of other people, that it should not be delayed by compliance with that requirement.
(2) If the requirement relates to things done by or in relation to a legal practitioner, subsection (1) only applies:
(a) in exceptional circumstances; and
(b) if:
(i) an officer of a police force of the rank of Superintendent or higher; or
(ii) the holder of an office prescribed for the purposes of this section, other than an office in a police force;
has authorised the application of subsection (1) and has made a record of the investigating official’s grounds for belief.
(3) If the application of subsection (1) is so authorised:
(a) the record of the investigating official’s grounds for belief must be made as soon as practicable; and
(b) the investigating official must comply with the requirement as soon as possible after subsection (1) ceases to apply.
(4) If the application of subsection (1) results in:
(a) preventing or delaying the person from communicating with a legal practitioner of his or her choice; or
(b) preventing or delaying a legal practitioner of the person’s choice from attending at any questioning;
the investigating official must offer the services of another legal practitioner and, if the person accepts, make the necessary arrangements.
23M Providing information relating to persons who are under arrest or protected suspects
(1) An investigating official must inform a person (the first person) who is under arrest or a protected suspect of any request for information as to his or her whereabouts by any of his or her relatives, friends or legal representatives.
(2) The investigating official must then provide that information to the other person unless:
(a) the first person does not agree to the provision of that information; or
(b) the investigating official believes on reasonable grounds that the other person is not the first person’s relative, friend or legal representative.