National Security Legislation Amendment Act 2010 (127 of 2010)

Schedule 3   Investigation of Commonwealth offences

Crimes Act 1914

15   Sections 23CA to 23E

Repeal the sections, substitute:

23D Application may be made for extension of investigation period

(1) If a person is arrested for a serious Commonwealth offence (other than a terrorism offence), an investigating official may, at or before the end of the investigation period, apply to a magistrate for an extension of the investigation period.

(2) The application must be made before the magistrate, by telephone or in writing.

(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 23C(6);

(e) the total amount of time (if any) that has been disregarded under subsection 23C(7) in ascertaining the investigation period under subsection 23C(4);

(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:

(a) must:

(i) if the application is to be made in writing - provide a copy of the application to the person, or to his or her legal representative; or

(ii) otherwise - inform the person, or his or her legal representative, of all matters or information in the application (other than information of a kind mentioned in subsection (4)); and

(b) must 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 any 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.

23DA Magistrate may extend investigation period

(1) This section applies if:

(a) a person is arrested for a serious Commonwealth offence (other than a terrorism offence); and

(b) an application has been made under subsection 23D(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 serious Commonwealth offence (other than a terrorism offence); and

(b) further detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another serious Commonwealth offence; and

(c) the investigation into the offence is being conducted properly and without delay; and

(d) 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 telephone, 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 telephone, 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 for a period not exceeding 8 hours, and must not be extended more than once.