Criminal investigation

This report, Criminal Investigation, arose out of the first reference given to the Commission. The Commission had split the work into the work on police complaints and the work on criminal investigation. The report on police complaints (ALRC Report 1) was tabled in August 1975.

ALRC Report 2 identified that the primary objective of criminal investigation is to ‘maintain a proper balance between protection for individual rights and liberties on the one hand and the community’s need for practical and effective law enforcement on the other’. The report concluded that it was necessary to make sure that there was a close correspondence between actions carried out by the police and their entitlement at law to carry out those actions.

Key recommendations

  • ALRC Report 2 recommended the enactment of a procedural code covering all members of the Australian police, as well as safeguards for arrest, questioning, and bail procedure.
  • Failure by police to comply with the safeguards should result in the exclusion of any evidence obtained.


A Criminal Investigation Bill 1977 was introduced into the federal parliament but lapsed with the dissolution of Parliament. A further Bill based on ALRC Report 2 was introduced in 1981 but that also lapsed on the dissolution of Parliament. Despite the fact that a number of the recommendations in the Bill had been picked up by state and territory legislatures it was not until the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 (Cth) that some of the recommendations outlined in this report were implemented at the federal level.

The Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 introduced Part 1C into the Crimes Act 1914 (Cth). The Part included maximum periods of detention after arrest and introduced a number of other safeguards such as tape recording of police interviews, cautioning before questioning, contact with a friend or lawyer and the presence of an interpreter – all measures that had been recommended by the ALRC. It also provided that a person who is under arrest must be treated with humanity and must not be subjected to cruel, inhuman or degrading treatment. It required that when an Aborigine or Torres Strait Islander had been arrested and was to be questioned that the police or other official must notify a representative of an Aboriginal legal aid organisation of the arrest.

Aspects of the report dealing with search warrants and powers of arrest have been taken up in the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 (Cth). This Act inserted Part 1AA into the Crimes Act 1914 (Cth). The Part dealt with the issuing of and the carrying out of search warrants, powers to arrest and to require a person to give their name and address and the reciprocal right to demand an officer’s name and place of duty. It also laid down rules regulating the conduct of strip searches, the taking of finger prints, recordings, samples of handwriting or photographs and the holding of identification parades and the carrying out of identification by photograph.

Associated legislation that also implements aspects of the Commission’s recommendations include the Defence Force (Discipline) Act 1984 (Cth) and the Police Administration Act 1978 (NT).

The recommendations dealing with the taking of forensic samples have been implemented through the Crimes Amendment (Forensic Procedures) 1998 (Cth). The Act is based on the provisions in the Model Criminal Code, developed by the Model Criminal Code Officer’s Committee of the Standing Committee of Attorneys-General. The Act provides legislative control of the carrying out of forensic procedures during the investigation of Commonwealth offences and for the storage, use and destruction of material derived from those procedures. The Act attempts to balance the rights of the suspect with the requirements of gathering evidence. It also builds in additional safeguards for children, Aborigines and Torres Strait Islanders and people who are regarded as incapable.