S 23D and 23DA substituted for 23CA to 23E by No 127 of 2010, s 3 and Sch 3 item 15, effective 25 November 2010. For application provisions, see note under definition of
"
arrested
"
in s
23B(1)
. S 23CB formerly read:
SECTION 23CB Specifying time during which suspension or delay of questioning may be disregarded
(1)
This section applies if the person mentioned in paragraph
23CA(8)(m)
is detained under subsection
23CA(2)
for the purpose of investigating whether the person commited a terrorism offence.
Note:
The person may be detained under subsection
23CA(2)
for the purpose of investigating whether the person committed a terrorism offence, whether the person was arrested for that terrorism offence or a different terrorism offence.
(2)
Application for specification of period.
At or before the end of the investigation period, an investigating official may apply for a period to be specified for the purpose of subparagraph
23CA(8)(m)(ii)
.
(3)
The application must be made to:
(a)
a magistrate; or
(b)
if it cannot be made at a time when a magistrate is available
-
a justice of the peace employed in a court of a State or Territory or a bail justice; or
(c)
if it cannot be made when any of the foregoing is available
-
any justice of the peace.
(4)
The application may be made:
(a)
in person before the magistrate, justice of the peace or bail justice; or
(b)
in writing; or
(c)
by telephone, telex, fax or other electronic means.
However, before making the application by means described in paragraph (c), the investigating official must inform the person that the person, or his or her legal representative, may make representations to the magistrate, justice of the peace or bail justice about the application.
(5)
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 reasons why the investigating official believes the period should be specified, which may, for example, be or include one or more of the following:
(i)
the need to collate and analyse information relevant to the investigation from sources other than the questioning of the person (including, for example, information obtained from a place outside Australia);
(ii)
the need to allow authorities in or outside Australia (other than authorities in an organisation of which the investigating official is part) time to collect information relevant to the investigation on the request of the investigating official.
(iii)
the fact that the investigating official has requested the collection of information relevant to the investigation from a place outside Australia that is in a time zone different from the investigating official's time zone;
(iv)
the fact that translation is necessary to allow the investigating official to seek information from a place outside Australia and/or be provided with such information in a language that the official can readily understand;
(d)
the period that the investigating official believes should be specified.
(6)
The person, or his or her legal representative, may make representations about the application.
(7)
Decision about specifying period.
The magistrate, justice of the peace or bail justice may, by signed instrument, specify a period starting at the time the instrument is signed, if satisfied that:
(a)
it is appropriate to do so, having regard to:
(i)
the application; and
(ii)
the representations (if any) made by the person, or his or her legal representative, about the application; and
(iii)
any other relevant matters; and
(b)
the offence is a terrorism offence; and
(c)
detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another terrorism offence; and
(d)
the investigation into the offence is being conducted properly and without delay; and
(e)
the person, or his or her legal representative, has been given the opportunity to make representations about the application.
(8)
Instrument specifying period.
The instrument must:
(a)
specify the period as a number (which may be less than one) of hours; and
(b)
set out the day and time when it was signed; and
(c)
set out the reasons for specifying the period.
(9)
The magistrate, justice of the peace or bail justice 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 means described in paragraph (4)(c)
-
inform the investigating official of the matters included in the instrument.
(10)
Evidentiary provisions if application was made by telephone, fax etc.
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, justice of the peace or bail justice and the particulars given by him or her; and
(b)
forward it to the magistrate, justice of the peace or bail justice.
(11)
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, justice of the peace or bail justice, the specification of the period is taken to have had no effect.
(12)
In any proceedings, if the instrument signed by the magistrate, justice of the peace or bail justice is not produced in evidence, the burden lies on the prosecution to prove that the period was specified.
S 23CB inserted by No 104 of 2004, s 3 and Sch 1 item 5, effective 30 June 2004.
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