Aboriginal persons and Torres Strait Islanders
23H Aboriginal persons and Torres Strait Islanders
Subject to section 23L, if the investigating official in charge of investigating a Commonwealth offence believes on reasonable grounds that a person who is under arrest, or who is a protected suspect, and whom it is intended to question about the offence is an Aboriginal person or a Torres Strait Islander, then, unless the official is aware that the person has arranged for a legal practitioner to be present during the questioning, the official must, before starting to question the person:
inform the person that a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located will be notified that the person is under arrest or is a protected suspect (as the case requires); and
notify such a representative that the person is under arrest or is a protected suspect (as the case requires).
To avoid doubt, the obligations imposed by subsection (1) do not limit and are not limited by any other obligations imposed, or rights conferred, by this section.
If a representative of an Aboriginal legal assistance organisation is notified under subsection (1), the investigating official must not question the person until the earlier of the following times:
the representative has communicated with the person;
2 hours have elapsed since the representative was notified.
Subject to subsection (7) and section 23L, if an investigating official:
interviews a person as a suspect (whether under arrest or not) for a Commonwealth offence, and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or
believes on reasonable grounds that a person who is under arrest or a protected suspect is an Aboriginal person or a Torres Strait Islander;
the official must not question the person unless:
an interview friend is present while the person is being questioned and, before the start of the questioning, the official has allowed the person to communicate with the interview friend in circumstances in which, as far as practicable, the communication will not be overheard; or
the person has expressly and voluntarily waived his or her right to have such a person present.
The person suspected, or under arrest, may choose his or her own interview friend unless:
he or she expressly and voluntarily waives this right; or
he or she fails to exercise this right within a reasonable period; or
the interview friend chosen does not arrive within 2 hours of the person’s first opportunity to contact an interview friend.
If an interview friend is not chosen under subsection (2A), the investigating official must choose a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located to be the person’s interview friend.
An interview friend may be excluded from the questioning if he or she unreasonably interferes with it.
In any proceedings, the burden lies on the prosecution to prove that an Aboriginal person or Torres Strait Islander has waived the right referred to in subsection (2) or (2A), and the burden is not discharged unless the court is satisfied that the person voluntarily waived that right, and did so with full knowledge and understanding of what he or she was doing.
In any proceedings, the burden lies on the prosecution to prove that, at the relevant time, a person who is under arrest or a protected suspect had, to the knowledge of the investigating official concerned, made an arrangement of the kind referred to in subsection (1).
The rights conferred by this section are in addition to those conferred by section 23G but, to the extent (if any) that compliance with this section results in compliance with section 23G, the requirements of section 23G are satisfied.
If the person is under 18, subsection (2) does not apply and section 23K applies.
An investigating official is not required to comply with subsection (1), (2) or (2B) in respect of a person if the official believes on reasonable grounds that, having regard to the person’s level of education and understanding, the person is not at a disadvantage in respect of the questioning referred to in that subsection in comparison with members of the Australian community generally.
In this section:
interview friend, in relation to a person to whom subsection (2) applies, means:
a relative or other person chosen by the person; or
a legal practitioner acting for the person; or
a representative of an Aboriginal legal assistance organisation in the State or Territory in which the person is located.
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