Criminal Investigation Act 2006

The Act primarily regulates and empowers "officers" – defined in s.3(1) as police officers or public officers whose offices are prescribed under s.9(1) and who are authorised to investigate or prosecute the relevant offence (s.9(2)). Public officers exercising powers receive the same liability protections as police (s.9(3)). Senior officers (inspectors or above for police; prescribed equivalents for public officers) hold approval and authorisation roles throughout (e.g. ss.18, 38A, 44, 97, 133, 140).

Citizens are both beneficiaries and limited participants. Part 3 confers powers of prevention and arrest (ss.24-25) and vehicle command powers (s.26), but these are tightly circumscribed: no entry to premises except to prevent unlawful killing (s.24(3)), prompt handover to police (s.25(5)), and no implied power to search. Any person may be affected as an occupier (s.3(1)), volunteer (s.79), victim, witness, or "involved person" (s.73). Protected persons – children or incapable persons (s.73) – attract additional safeguards: responsible persons must consent (ss.81, 84, 92), support persons must be present (s.101(4)), and magistrates must consider best interests and maturity (s.90(3)).

Suspects (s.73) are the central focus of Parts 8, 9, 11, and 12. They enjoy rights to be informed of the offence (s.138(2)(a)), cautioned, given access to a lawyer (s.138(2)(c)), and detained only for justified periods (ss.140-141). Arrested suspects must be charged or released promptly (s.142). Victims and witnesses who are "involved persons" may be requested to undergo forensic procedures (ss.83-90); refusal may lead to FP warrants (s.88).

Occupiers of places receive notification, copy-of-warrant, and observation rights (s.31), with remedies if protected forensic areas cause undue inconvenience (s.49). Persons in public places may be subject to move on orders (s.27), metal detector scans in designated areas (s.61C), or security searches (s.69). Business record holders face production orders (Part 6), while persons controlling data storage devices face data access orders (Part 7).

Law enforcement animals and their handlers are protected by new 2024 offences (ss.153A-153B), with compensation available to the Commissioner or relevant agency (s.153E). Courts, magistrates, and JPs exercise oversight functions (ss.13, 42, 49, 90, 100, 151, 155). The Commissioner of Police and CCC retain recordings (s.123) and must report on metal detector use (s.61F). Ultimately, the Act affects every Western Australian who interacts with the criminal justice system, either as investigator, investigated person, or incidental party, while imposing strict compliance obligations on officers to avoid evidentiary exclusion under ss.154-155.

Officers' duties are multilayered. Identification is mandatory (s.11); failure to identify or show evidence of office must be remedied as soon as practicable. When requesting consent to search or procedure, officers must inform the person of the power, reason, and right to refuse (s.30(2)), and must treat silence or resistance as non-consent (s.23(1)). Rights of persons accompanying officers must be explained (s.28). For arrested persons, rights to medical treatment, reasonable privacy from media, communication with family, and interpretation are guaranteed (s.137). Suspects additionally receive cautions, advice of the offence, and opportunity to contact a lawyer (s.138).

Force must be no more than reasonably necessary (s.16(1)), may damage property (s.16(2)), but is subject to The Criminal Code Chapter XXVI (s.16(3)). Animals may be used only if trained and necessary, and must not cause unnecessary injury (s.17). Roadblocks require senior officer authorisation or urgency (s.18). Occupiers must be informed before entry where practicable, given warrant copies (omitting the JP's name), and allowed to observe searches unless safety or obstruction concerns exist (s.31).

Forensic procedures require qualified persons (s.103 and tables), correct gender (s.102), least painful methods (s.104), and privacy (s.101(3)). Photographs and information derived are strictly controlled (s.113). Interviews must be recorded; unrecorded admissions in serious cases are inadmissible unless reasonable excuse is proved or the court exercises s.155 discretion (s.118). Recordings may not be broadcast or supplied except under court direction or for defined purposes (ss.120-122).

Rights of protected persons are elevated: responsible persons or support persons must be involved (ss.84, 92, 101(4)), and magistrates must consider maturity and best interests before issuing FP warrants (s.90(3)). Volunteers cannot be compelled (s.81). Persons subject to move on orders must be given the order in approved form after consideration of impact on housing, services, and wellbeing (s.27(3)). Metal detector use must be least invasive, preceded by warning of offence for non-compliance, and limited to reasonable detention (s.61E).

Suspects in custody for security searches (s.135) may be subjected to basic, strip, or (with authority) internal procedures to locate security risk items; seized items must generally be returned on release (s.135(10)). Privileged material seized triggers a dedicated Magistrates Court process (s.151) that can preserve privilege while permitting forensic examination under conditions (s.151(12)).

The Act repeatedly emphasises that powers are additional to, not in derogation of, other laws (s.6(1)(b)), but procedural breaches can render evidence inadmissible unless the court finds admission desirable after weighing the factors in s.155(3).

The Act creates a suite of specific offences. Failure to obey an officer's order carries a $12 000 fine and 12 months' imprisonment (s.153(1)), though this does not apply to out-of-control gathering orders (s.153(2A)). Non-compliance with a data access order is a crime punishable by 5 years' imprisonment (summary conviction: $24 000/2 years), and self-incrimination is no defence (s.61(3)). Breaching production orders for business records attracts $12 000/12 months (s.55).

Unauthorised entry to or disturbance of a protected forensic area is punishable by $12 000 and 12 months (s.47(7)-(8)). Failure to comply with metal detector requirements or follow-up production of items carries 12 months' imprisonment and a $12 000 fine (ss.61C(2), 61D(3)). New 2024 offences for harming law enforcement animals are serious: killing attracts 10 years (s.153A(1)), aggravated assault or injury 10 years (s.153A(2)), and simple assault or injury 7 years (summary 3 years/$36 000) (s.153A(3)). Parallel offences exist for harming animals on account of their law enforcement role (s.153B). Reasonable excuse (including self-defence where the animal's use was not unreasonable) is a defence with the onus on the accused (ss.153C-153D). Courts may order compensation for treatment, rehabilitation, or replacement of the animal (s.153E).

Evidentiary sanctions are the primary enforcement mechanism. Evidence obtained in breach of the Act is inadmissible unless the accused consents, the court exercises the s.155 discretion (weighing seriousness of offence, breach, intent, probative value, etc.), or the breach arose from a reasonable mistake as to protected person status (s.154). Forensic information must not be unlawfully disclosed (s.113(3), $24 000/2 years) or destroyed without approval (s.112(3)-(4), $12 000/12 months). Unauthorised possession, playing, supply, or copying of interview recordings attracts fines of $5 000 (s.120), while broadcasting carries $12 000/12 months (individuals) or $100 000 (corporations) (s.121).

Internal discipline is reinforced by the requirement to record authorisations (e.g. ss.18(4), 44(4), 97(3), 140(5)), the senior-officer independence rule (ss.44(3), 97(2), 133(4)), and the Commissioner's reporting obligations (s.61F). The statutory review mechanism (s.157, repeated in s.61G for Part 7A) and validation provision (s.158) demonstrate legislative oversight of enforcement efficacy.

The Act is expressly non-derogatory (s.6(1)). It does not affect The Criminal Code, particularly Chapter XXVI on force (s.6(2)(a)), the Coroners Act 1996 s.32 (s.6(2)(b)), the Young Offenders Act 1994 (s.136), the Bail Act 1982, the Criminal Investigation (Identifying People) Act 2002, or the Criminal and Found Property Disposal Act 2006 (s.152). Where inconsistency arises, the other Act prevails (s.6(3)). Common law constable powers are preserved but must be exercised consistently with the Act (s.7).

Forensic procedures cannot be used to obtain identifying particulars without authority under the Criminal Investigation (Identifying People) Act 2002 (s.77(3)). Interview recording rules interact with the Criminal Procedure Act 2004 service provisions (s.120(2)(d)). Move on orders reference the Criminal Investigation (Identifying People) Act 2002 s.16 for personal details (s.27(5)). Metal detector provisions operate within liquor control precincts (s.61A) and require annual integration with the Commissioner's Financial Management Act 2006 report (s.61F(2)).

Arrest powers for family violence and restraining order breaches (s.128(1)(b)-(c)) intersect with the Restraining Orders Act 1997. High-risk serious offender and sentence administration breaches are now serious offences (s.128(1)(cb)-(cc), inserted by later statutes). The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Pt. 2 applies to applications (s.5A). Cross-border modifications under the Cross-border Justice Act 2008 alter certain sections (endnotes 1M).

Admissibility of improperly obtained evidence (s.154) supplements the common law discretion and Evidence Act provisions. Compensation orders under s.153E engage Sentencing Act 1995 Pt. 16. The validation in s.158 operates despite s.6 and The Criminal Code s.11, confirming retrospectivity for the "serious offence" definition between 7 April 2020 and the 2023 amending Act's commencement.

The Act has been amended frequently to respond to operational gaps, public safety concerns, and judicial or legislative clarification. The Criminal Investigation Amendment (Validation) Act 2023 inserted Part 15 (s.158), validating the inclusion of Restraining Orders Act 1997 s.61(1A) offences within the "serious offence" definition in s.128(1) for the period 7 April 2020 to commencement. This was necessary to cure any doubt arising from drafting history and to ensure arrests and ancillary powers exercised in that period remained lawful.

The Police Legislation Amendment Act 2024 made the most substantial recent additions. Part 4 Division 1 was rewritten to modernise move on orders (ss.26A-27B), adding requirements to consider impact on essential services (s.27(3)), electronic service with consent (s.27B), and a new offence for non-compliance with facilitation directions ($6 000, s.27A(3)). These changes address difficulties in managing transient disorder while protecting vulnerable recipients.

Part 7A was inserted to authorise warrantless metal detector scans in designated areas (ss.61A-61G). Declarations are limited (3 km², 12 hours, senior officer opinion of necessity and efficacy, s.61B), with strict least-invasive rules and warnings (s.61E). Annual reporting (s.61F) and a 3-year review (s.61G) were included to ensure proportionality. The changes respond to rising knife crime in entertainment and public precincts.

The Criminal Investigation Amendment (Protection of Law Enforcement Animals) Act 2024 inserted Division 1 of Part 14 (ss.152A-153E). New crimes target killing or injuring animals used or trained for law enforcement (ss.153A-153B), with aggravated penalties, statutory reasonable excuse and self-defence provisions (ss.153C-153D), and compensation orders (s.153E). These respond to incidents of deliberate harm to police dogs and horses, recognising their operational role and the safety risks to handlers.

Earlier amendments added out-of-control gathering powers (2012), prohibited behaviour order and control order searches (2010-2012), and electronic processes facilitation (2020). Each change has been driven by the need to adapt investigative tools to contemporary threats while maintaining the Act's rights-based architecture.

The source text itself does not record specific judicial decisions; however, the structure of the Act anticipates recurring controversies. The objective "reasonably suspects" test (s.4) and the broad definition of "thing relevant to an offence" (s.5, including non-material matters) have been crafted to withstand challenges to the lawfulness of entry, search, or seizure. Section 154's exclusionary rule, tempered by the s.155 discretion that requires the court to weigh the seriousness of the breach against the seriousness of the offence, reflects legislative awareness of arguments that minor procedural irregularities should not defeat probative evidence.

Protected forensic areas (ss.46-49) have built-in review mechanisms precisely because of the tension between scene preservation and occupiers' property rights. The 6-hour consent or warrant "clock" in s.48(4)-(5), coupled with the inadmissibility presumption (subject to s.155), is designed to prevent indefinite warrantless occupation. Magistrates Court review under s.49 allows aggrieved persons to challenge continuance, with non-disclosure orders available where safety or investigation would be prejudiced (s.49(4)-(6)).

Forensic procedure warrants (ss.90, 100) require the issuing judicial officer to consider the interests of justice and, for protected persons, best interests and maturity. This language invites arguments about proportionality, especially where an internal procedure is sought. The strict gender and qualification tables in s.103, and the privacy rules in s.72, have been written to forestall claims of degrading treatment.

The 2023 validation (s.158) itself indicates prior controversy over the scope of "serious offence" and the lawfulness of arrests made on that basis between 2020 and 2023. By declaring that the expanded definition operated at all material times, and that acts done in reliance upon it are taken to have been lawful, the provision seeks to preclude arguments that evidence or detention was tainted.

Interview recording rules (Part 11) have generated controversy around the meaning of "reasonable excuse" for non-recording (s.118(1)) and the circumstances in which a court may admit unrecorded admissions under s.155. The absolute prohibition on broadcast (s.121) and the tight possession rules (s.120) reflect concerns about prejudicial publicity and defence counsel access.

New animal protection offences (ss.153A-153E) are likely to test the boundaries of "reasonable excuse" and self-defence, particularly the carve-out where the animal's use was unreasonable (s.153D(2)). Compensation orders (s.153E) may raise questions about quantum and the interaction with Sentencing Act 1995 Pt. 16.

Overall, the Act's repeated insistence on written records of authorisations, independent senior officer oversight, and judicial fallback positions demonstrates legislative anticipation of judicial scrutiny. Controversies tend to centre on whether the statutory safeguards were in fact observed rather than on the validity of the powers themselves.

Most practitioners recognise that "reasonably suspects" (s.4) requires both subjective belief and objective reasonableness, but few appreciate that the test explicitly survives subsequent discovery that the grounds were false or non-existent. This prevents later collateral attacks on the validity of the initial suspicion once the power has been exercised.

The presumption against consent (s.23) is absolute: silence or physical resistance equals non-consent. Officers cannot rely on a person's failure to object; they must obtain affirmative, informed consent after full disclosure (s.30(2)). Withdrawal at any time before completion halts the procedure (s.23(2)), triggering the warrant pathway.

Section 31 occupier rights are commonly overlooked. Even where entry is under warrant, the occupier (or nominee) must be allowed to observe unless safety or obstruction is reasonably suspected. Failure to comply with s.31 before or immediately after entry can taint the search. The requirement to leave a notice in unoccupied premises (s.31(5)), including a redacted warrant copy, is a frequent source of evidentiary challenge.

Protected forensic areas (s.46) appear to confer sweeping powers, yet s.47(3) permits exercise of search-warrant powers inside a non-public-open-area forensic area only with senior officer approval before consent or warrant is obtained. The 6-hour "use it or lose it" rule in s.48(4)-(5) where consent is refused or not given is draconian: evidence found after the clock expires is presumptively inadmissible unless a court rules otherwise under s.155. Many investigators assume the forensic area can remain indefinitely once established; the statute says otherwise.

Forensic procedure classifications are technical. Removing an item from a mouth is non-intimate (s.74(1)(f)), but swabbing private parts is intimate (s.75(1)(a)). Internal procedures using x-ray or ultrasound (s.76) require magistrate authorisation even for suspects (s.100). The gender rules in s.102 are strict; only doctors or nurses may perform intimate or internal procedures on the opposite gender. The tables in s.103 further restrict who may swab, take impressions, or remove items.

Data access orders (Part 7) contain a trap: the target person must be shown to have committed the serious offence (s.58(3)(h)) and to have relevant knowledge (s.59(1)(c)). The onus of proving reasonable excuse for non-compliance lies on the accused, and self-incrimination is no defence (s.61(3)).

The 2024 animal offences (ss.153A-153B) apply even where the animal is "trained or maintained for use" – not merely in active deployment. The self-defence provision (s.153D) does not apply if the accused was committing an unlawful act and the animal's handler was the occupier of the place entered (s.153D(3)). Compensation can be ordered for future re-training costs (s.153E(1)(b)), an unusual forward-looking remedy.

Finally, s.154's exclusionary rule is broader than many realise: it catches any "requirement of this Act" that arises before, during, or after the exercise of power. A post-search failure to supply a seized-things list on request (s.150) or to keep a recording in safe custody (s.123) can, in theory, render derivative evidence inadmissible. The s.155 discretion is not a safety net; the court must affirmatively find that desirability outweighs undesirability after considering the s.155(3) factors, and probative value alone is insufficient (s.155(4)).

Compliance for officers begins with thorough documentation. Every authorisation by a senior officer (ss.18(4), 44(4), 97(3), 133(5), 140(5)) must be recorded contemporaneously with reasons, time, and grounds. Applications for warrants or orders must contain all matters listed in ss.41(3), 52(3), 58(3), 89(3), 99(3); omissions invite refusal and potential s.154 challenges.

When exercising powers, officers must identify themselves (s.11), explain the reason and statutory basis (s.31(2)), and, where consent is sought, fully inform the person of the right to refuse (ss.30(2), 80, 83, 91). For searches of persons, the least intrusive method must be used (s.70(2)(b)), gender rules observed (ss.71-72, 102), and the person allowed to dress immediately (s.70(2)(d)). Strip searches require reasonable suspicion of necessity (s.72(2)) and must occur in private with minimal people present (s.72(3)).

Forensic procedures must be performed only by qualified persons listed in the s.103 tables. Buccal swabs or blood samples taken incidentally must not be used for identification without Criminal Investigation (Identifying People) Act 2002 authority (s.77(3)). All requests for consent from protected persons require involvement of a responsible person, and any refusal or withdrawal immediately ends the consensual pathway (ss.87, 95).

Interviewing requires audiovisual recording wherever practicable (s.118). The suspect must be cautioned, informed of the offence, and given access to a lawyer before substantive questioning (s.138). Recordings must be retained for at least 5 years (s.123) and supplied to the defence within 14 days of charge (s.117(1)). Possession, copying, or broadcast outside the authorised categories is an offence (ss.120-121).

Seizure must be grounded in s.146; privileged material triggers the s.151 Magistrates Court process rather than immediate examination. Seized things lists must be supplied on request (s.150), and forensic information destroyed only with Commissioner or Coroner approval (s.112).

For move on orders, officers must consider impact on housing, work, and services (s.27(3)) and use the approved form (s.27(6)). Metal detector deployments require senior officer declaration, written reasons, and ratification where applicable (s.61B), plus annual statistical reporting (s.61F).

Agencies should maintain standard operating procedures that mirror the statutory language, conduct regular training on gender rules, consent presumptions, and the s.155 factors, and audit compliance with recording and approval requirements. Where doubt exists about a power's availability (e.g. whether a place is "public open area" or whether urgency justifies warrantless action), the safest course is to obtain a warrant under the detailed s.13 procedure, which permits remote communication and unsworn applications in genuine emergencies (s.13(4)-(6)).

Legal practitioners advising clients should scrutinise every step of the investigative chain for compliance with identification, information, consent, gender, recording, and time-limit rules. A single breach – even one occurring after the primary evidence was obtained – can engage s.154 and require the prosecutor to justify admission under s.155. Early identification of such breaches is often the most effective compliance and defence strategy.