Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 1 November 2014 to date (accessed 23 November 2014 at 08:15)
Part 9Division 1

Division 1 Preliminary

109   Objects of Part

(cf Crimes Act 1900, s 354)

The objects of this Part are:
(a)  to provide for the period of time that a person who is under arrest may be detained by a police officer to enable the investigation of the person’s involvement in the commission of an offence, and
(b)  to authorise the detention of a person who is under arrest for such a period despite any requirement imposed by law to bring the person before a Magistrate or other authorised officer or court without delay or within a specified period, and
(c)  to provide for the rights of a person so detained.

110   Definitions

(cf Crimes Act 1900, s 355)

(1)  In this Part:

detention warrant means a warrant issued under section 118.

investigation period means the period provided for by section 115.

permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to any limitation as to time imposed by or in accordance with law.

(2)  A reference in this Part to a person who is under arrest or a person who is arrested includes a reference to a person who is in the company of a police officer for the purpose of participating in an investigative procedure, if:
(a)  the police officer believes that there is sufficient evidence to establish that the person has committed an offence that is or is to be the subject of the investigation, or
(b)  the police officer would arrest the person if the person attempted to leave, or
(c)  the police officer has given the person reasonable grounds for believing that the person would not be allowed to leave if the person wished to do so.
(3)  A person is not taken to be under arrest because of subsection (2) merely because the police officer is exercising a power under a law to detain and search the person or to require the person to provide information or to answer questions.
(4)  For the purposes of this Part, a person ceases to be under arrest for an offence if the person is remanded in respect of the offence.

111   Persons to whom Part applies

(cf Crimes Act 1900, s 356)

(1)  This Part applies to a person, including a person under the age of 18 years, who is under arrest by a police officer for an offence. It is immaterial whether the offence concerned was committed before or after the commencement of this Part or within or outside the State.
(2)  This Part does not apply to a person who is detained under Part 16.

112   Modification of application of Part to certain persons

(cf Crimes Act 1900, s 356A)

(1)  The regulations may make provision for or with respect to the modification of the application of this Part to:
(a)  persons under the age of 18 years, or
(b)  Aboriginal persons or Torres Strait Islanders, or
(c)  persons of non-English speaking background, or
(d)  persons who have a disability (whether physical, intellectual or otherwise).
(2)  Without limiting subsection (1), the regulations may provide for an investigation period for a person or class of persons referred to in that subsection that is shorter than the period provided for by section 115.

113   Effect of Part on other powers and duties

(cf Crimes Act 1900, s 356B)

(1) Existing powers relating to arrest and other matters
This Part does not:
(a)  confer any power to arrest a person, or to detain a person who has not been lawfully arrested, or
(b)  prevent a police officer from asking or causing a person to do a particular thing that the police officer is authorised by law to ask or cause the person to do (for example, the power to require a person to submit to a breath analysis under Division 2 of Part 2 of Schedule 3 to the Road Transport Act 2013), or
(c)  independently confer power to carry out an investigative procedure.
(2) Certain evidentiary matters and rights not affected
Nothing in this Part affects:
(a)  the operation of:
(i)  the following provisions of the Evidence Act 1995:

section 84 (Exclusion of admissions influenced by violence and certain other conduct)

section 85 (Criminal proceedings: reliability of admissions by defendants)

section 90 (Discretion to exclude admissions)

section 138 (Exclusion of improperly or illegally obtained evidence)

section 139 (Cautioning of persons), or

(ii)  any other provision of that Act, or
(b)  any law that permits or requires a person to be present at the questioning of another person who is under arrest (for example, the presence of a parent at the questioning by a police officer of the parent’s child), or
(c)  the right of a person to refuse to participate in any questioning of the person or any other investigative procedure unless the person is required by law to do so, or
(d)  the right of a person to leave police custody if the person is not under arrest, or
(e)  the rights of a person under the Bail Act 2013.
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