Law Enforcement (Powers and Responsibilities) Act 2002 No 103
Current version for 1 November 2014 to date (accessed 29 November 2014 at 18:22)
Part 9Division 3

Division 3 Safeguards relating to persons in custody for questioning

122   Custody manager to caution, and give summary of Part to, detained person

(cf Crimes Act 1900, s 356M)

(1)  As soon as practicable after a person who is detained under this Part (a detained person) comes into custody at a police station or other place of detention, the custody manager for the person must orally and in writing:
(a)  caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence, and
(b)  give the person a summary of the provisions of this Part that is to include reference to the fact that the maximum investigation period may be extended beyond 4 hours by application made to an authorised officer and that the person, or the person’s legal representative, may make representations to the authorised officer about the application.
(2)  The giving of a caution does not affect a requirement of any law that a person answer questions put by, or do things required by, a police officer.
(3)  After being given the information referred to in subsection (1) orally and in writing, the person is to be requested to sign an acknowledgment that the information has been so given.

123   Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner

(cf Crimes Act 1900, s 356N)

(1)  Before any investigative procedure in which a detained person is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:
(a)  communicate, or attempt to communicate, with a friend, relative, guardian or independent person:
(i)  to inform that person of the detained person’s whereabouts, and
(ii)  if the detained person wishes to do so, to ask the person communicated with to attend at the place where the person is being detained to enable the detained person to consult with the person communicated with, and
(b)  communicate, or attempt to communicate, with an Australian legal practitioner of the person’s choice and ask that Australian legal practitioner to do either or both of the following:
(i)  attend at the place where the person is being detained to enable the person to consult with the Australian legal practitioner,
(ii)  be present during any such investigative procedure.
(2)  If the person wishes to make any communication referred to in subsection (1), the custody manager must, as soon as practicable:
(a)  give the person reasonable facilities to enable the person to do so, and
(b)  allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.
(3)  The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:
(a)  to allow the person to make, or attempt to make, a communication referred to in subsection (1), and
(b)  if the person has asked any person so communicated with to attend at the place where the person is being detained:
(i)  to allow the person communicated with to arrive at that place, and
(ii)  to allow the person to consult with the person communicated with at that place.
(4)  If the person has asked a friend, relative, guardian or independent person communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the friend, relative, guardian or independent person in private and must provide reasonable facilities for that consultation.
(5)  If the person has asked an Australian legal practitioner communicated with to attend at the place where the person is being detained, the custody manager must:
(a)  allow the person to consult with the Australian legal practitioner in private and must provide reasonable facilities for that consultation, and
(b)  if the person has so requested, allow the Australian legal practitioner to be present during any such investigative procedure and to give advice to the person.
(6)  Anything said by the Australian legal practitioner during any such investigative procedure is to be recorded and form part of the formal record of the investigation.
(7)  An investigative procedure is not required to be deferred under subsection (3) (b) (i) for more than 2 hours to allow a friend, relative, guardian, independent person or Australian legal practitioner that the person has communicated with to arrive at the place where the person is being detained.
(8)  An investigative procedure is not required to be deferred to allow the person to consult with a friend, relative, guardian, independent person or Australian legal practitioner who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the friend, relative, guardian, independent person or Australian legal practitioner. This does not affect the requirement to allow an Australian legal practitioner to be present during an investigative procedure and to give advice to the person.
(9)  The duties of a custody manager under this section owed to a detained person who is not an Australian citizen or a permanent Australian resident are in addition to the duties of the custody manager owed to the person under section 124.
(10)  After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.

124   Right of foreign national to communicate with consular official

(cf Crimes Act 1900, s 356O)

(1)  This section applies to a detained person who is not an Australian citizen or a permanent Australian resident.
(2)  Before any investigative procedure in which a person to whom this section applies is to participate starts, the custody manager for the person must inform the person orally and in writing that he or she may:
(a)  communicate, or attempt to communicate, with a consular official of the country of which the person is a citizen, and
(b)  ask the consular official to attend at the place where the person is being detained to enable the person to consult with the consular official.
(3)  If the person wishes to communicate with such a consular official, the custody manager must, as soon as practicable:
(a)  give the person reasonable facilities to enable the person to do so, and
(b)  allow the person to do so in circumstances in which, so far as is practicable, the communication will not be overheard.
(4)  The custody manager must defer for a reasonable period any investigative procedure in which the person is to participate:
(a)  to allow the person to make, or attempt to make, the communication referred to in subsection (2), and
(b)  if the person has asked any consular official so communicated with to attend at the place where the person is being detained:
(i)  to allow the consular official to arrive at that place, and
(ii)  to allow the person to consult with the consular official.
(5)  If the person has asked a consular official communicated with to attend at the place where the person is being detained, the custody manager must allow the person to consult with the consular official in private and must provide reasonable facilities for that consultation.
(6)  An investigative procedure is not required to be deferred under subsection (4) (b) (i) for more than 2 hours to allow a consular official that the person has communicated with to arrive at the place where the person is being detained.
(7)  An investigative procedure is not required to be deferred to allow the person to consult with a consular official who does not arrive at the place where the person is being detained within 2 hours after the person communicated with the consular official.
(8)  After being informed orally and in writing of his or her rights under this section, the person is to be requested to sign an acknowledgment that he or she has been so informed.
(9)  This section does not apply if the custody manager did not know, and could not reasonably be expected to have known, that the person is not an Australian citizen or a permanent Australian resident.

125   Circumstances in which certain requirements need not be complied with

(cf Crimes Act 1900, s 356P)

(1)  A requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that doing so is likely to result in:
(a)  an accomplice of the detained person avoiding arrest, or
(b)  the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(c)  hindering the recovery of any person or property concerned in the offence under investigation, or
(d)  bodily injury being caused to any other person.
(2)  Further, in the case of a requirement that relates to the deferral of an investigative procedure, a requirement imposed on a custody manager under section 123 relating to a friend, relative, guardian or independent person need not be complied with if the custody manager believes on reasonable grounds that the investigation is so urgent, having regard to the safety of other persons, that the investigative procedure should not be deferred.

126   Provision of information to friend, relative or guardian

(cf Crimes Act 1900, s 356Q)

(1)  The custody manager for a detained person must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be a friend, relative or guardian of the detained person.
(2)  The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless:
(a)  the detained person does not agree to that information being provided, or
(b)  the custody manager believes on reasonable grounds that the person requesting the information is not a friend, relative or guardian of the detained person, or
(c)  the custody manager believes on reasonable grounds that doing so is likely to result in:
(i)  an accomplice of the detained person avoiding arrest, or
(ii)  the concealment, fabrication, destruction or loss of evidence or the intimidation of a witness, or
(iii)  hindering the recovery of any person or property concerned in the offence under investigation, or
(iv)  bodily injury being caused to any other person.

127   Provision of information to certain other persons

(cf Crimes Act 1900, s 356R)

(1)  The custody manager for a detained person must inform the person orally of any request for information as to the whereabouts of the person made by a person who claims to be:
(a)  an Australian legal practitioner representing the detained person, or
(b)  in the case of a detained person who is not an Australian citizen or a permanent Australian resident, a consular official of the country of which the detained person is a citizen, or
(c)  a person (other than a friend, relative or guardian of the detained person) who is in his or her professional capacity concerned with the welfare of the detained person.
(2)  The custody manager must provide, or arrange for the provision of, that information to the person who made the request unless:
(a)  the detained person does not agree to that information being provided, or
(b)  the custody manager believes on reasonable grounds that the person requesting the information is not the person who he or she claims to be.

128   Provision of interpreter

(cf Crimes Act 1900, s 356S)

(1)  The custody manager for a detained person must arrange for an interpreter to be present for the person in connection with any investigative procedure in which the person is to participate if the custody manager has reasonable grounds for believing that the person is unable:
(a)  because of inadequate knowledge of the English language, to communicate with reasonable fluency in English, or
(b)  because of any disability, to communicate with reasonable fluency.
(2)  The custody manager must ensure that any such investigative procedure is deferred until the interpreter arrives.
(3)  However, the custody manager need not:
(a)  arrange for an interpreter to be present if the custody manager believes on reasonable grounds that the difficulty of obtaining an interpreter makes compliance with the requirement not reasonably practicable, or
(b)  defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.
(4)  If an interpreter is not available to be present for the person in connection with any investigative procedure in which the person is to participate, the custody manager must instead arrange for a telephone interpreter for the person.
(5)  The custody manager must ensure that any such investigative procedure is deferred until a telephone interpreter is available.
(6)  However, the custody manager need not:
(a)  arrange for a telephone interpreter if the custody manager believes on reasonable grounds that the difficulty of obtaining such an interpreter makes compliance with the requirement not reasonably practicable, or
(b)  defer any such investigative procedure if the custody manager believes on reasonable grounds that the urgency of the investigation, having regard to the safety of other persons, makes such deferral unreasonable.

129   Right to medical attention

(cf Crimes Act 1900, s 356T)

The custody manager for a detained person must arrange immediately for the person to receive medical attention if it appears to the custody manager that the person requires medical attention or the person requests it on grounds that appear reasonable to the custody manager.

130   Right to reasonable refreshments and facilities

(cf Crimes Act 1900, s 356U)

(1)  The custody manager for a detained person must ensure that the person is provided with reasonable refreshments and reasonable access to toilet facilities.
(2)  The custody manager for a detained person must ensure that the person is provided with facilities to wash, shower or bathe and (if appropriate) to shave if:
(a)  it is reasonably practicable to provide access to such facilities, and
(b)  the custody manager is satisfied that the investigation will not be hindered by providing the person with such facilities.

131   Custody records to be maintained

(cf Crimes Act 1900, s 356V)

(1)  The custody manager for a detained person must open a custody record in the form prescribed by the regulations for the person.
(2)  The custody manager must record the following particulars in the custody record for the person:
(a)  the date and time:
(i)  the person arrived at the police station or other place where the custody manager is located, and
(ii)  the person came into the custody manager’s custody,
(b)  the name and rank of the arresting officer and any accompanying officers,
(c)  the grounds for the person’s detention,
(d)  details of any property taken from the person,
(e)  if the person participates in any investigative procedure, the time the investigative procedure started and ended,
(f)  details of any period of time that is not to be taken into account under section 117,
(g)  if the person is denied any rights under this Part, the reason for the denial of those rights and the time when the person was denied those rights,
(h)  the date and time of, and reason for, the transfer of the person to the custody of another police officer,
(i)  details of any application for a detention warrant and the result of any such application,
(j)  if a detention warrant is issued in respect of the person, the date and time a copy of the warrant was given to the person and the person was informed of the nature of the warrant and its effect,
(k)  the date and time the person is released from detention,
(l)  any other particulars prescribed by the regulations.
(3)  The custody manager is responsible for the accuracy and completeness of the custody record for the person and must ensure that the custody record (or a copy of it) accompanies the person if the person is transferred to another location for detention.
(4)  The recording of any matters referred to in this section must be made contemporaneously with the matter recorded in so far as it is practicable to do so.
(5)  As soon as practicable after the person is released or taken before a Magistrate or authorised officer or court, the custody manager must ensure that a copy of the person’s custody record is given to the person.
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