2004-2005-2006

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006

No.      , 2006

(Justice and Customs)

A Bill for an Act to amend the law relating to the investigation of criminal activity and the protection of witnesses, and for related purposes

 

Contents

 

A Bill for an Act to amend the law relating to the investigation of criminal activity and the protection of witnesses, and for related purposes

The Parliament of Australia enacts:

1  Short title

This Act may be cited as the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Act 2006.

2  Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1--Controlled operations, assumed identities and protection of witness identity

Crimes Act 1914

1  Parts IAB and IAC

Repeal the Parts, substitute:

Part IAB--Controlled operations

Division 1--Preliminary

15G  Objects of Part

The main objects of this Part are:

(a) to provide for the authorisation, conduct and monitoring of controlled operations; and

(b) to exempt from criminal liability, and to indemnify from civil liability:

(i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and

(ii) certain other persons who, when authorised by a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.

15GA  Relationship to other laws and matters

(1) Subject to subsection (2) and section 15HU, this Part is not intended to limit a discretion that a court has:

(a) to admit or exclude evidence in any proceedings; or

(b) to stay criminal proceedings in the interests of justice.

(2) In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is to be disregarded if:

(a) the person was a participant in a controlled operation authorised under this Part acting in the course of the controlled operation; and

(b) the criminal activity was controlled conduct.

15GB  Concurrent operation of State and Territory laws

It is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.

15GC  Definitions

In this Part:

ACC authorising officer has the meaning given by subsection 15GF(4).

ACLEI authorising officer has the meaning given by subsection 15GF(5).

AFP authorising officer has the meaning given by subsection 15GF(3).

appropriate authorising officer, for a controlled operation authorised under this Part, means the following:

(a) if the authority to conduct the controlled operation was granted by an AFP authorising officer--any AFP authorising officer;

(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer--any ACC authorising officer;

(c) if the authority to conduct the controlled operation was granted by an ACLEI authorising officer--any ACLEI authorising officer.

authorising agency, for a controlled operation authorised under this Part, means the following:

(a) if the authority to conduct the controlled operation was granted by an AFP authorising officer--the Australian Federal Police;

(b) if the authority to conduct the controlled operation was granted by an ACC authorising officer--the ACC;

(c) if the authority to conduct the controlled operation was granted by an ACLEI authorising officer--the Australian Commission for Law Enforcement Integrity.

authority means an authority (whether formal or urgent) to conduct a controlled operation granted under section 15GH, and includes any such authority as varied.

chief officer means the following:

(a) in relation to the Australian Federal Police--the Commissioner;

(b) in relation to the police force of a State or Territory--the Commissioner of Police in that police force or the person holding equivalent rank;

(c) in relation to the Australian Customs Service--the Chief Executive Officer of Customs;

(d) in relation to the ACC--the Chief Executive Officer of the ACC;

(e) in relation to the Australian Commission for Law Enforcement Integrity--the Integrity Commissioner.

civilian participant in a controlled operation means a participant in the controlled operation who is not a law enforcement officer.

conduct has the same meaning as in the Criminal Code.

controlled conduct means conduct constituting an offence for which a person would, but for section 15GW, be criminally responsible.

controlled operation has the meaning given by section 15GD.

corresponding State controlled operations law means:

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

exercise a function includes perform a duty.

formal application has the meaning given by paragraph 15GG(2)(a).

formal authority has the meaning given by paragraph 15GI(1)(a).

formal variation application has the meaning given by paragraph 15GP(3)(a).

formal variation of authority has the meaning given by paragraph 15GR(1)(a).

function includes a power, authority or duty.

law enforcement agency means any of the following:

(a) the Australian Federal Police;

(b) the police force of a State or Territory;

(c) the Australian Customs Service;

(d) the ACC;

(e) the Australian Commission for Law Enforcement Integrity.

law enforcement participant in a controlled operation means a participant in the controlled operation who is a law enforcement officer.

major controlled operation has the meaning given by subsection 15GF(2).

participant in a controlled operation means a person who is authorised under this Part to engage in controlled conduct for the purposes of the controlled operation.

person targeted, in relation to a controlled operation, means the person about whom, as a result of the controlled operation:

(a) it is intended to obtain evidence; or

(b) evidence is being, or has been, obtained.

principal law enforcement officer, for a controlled operation authorised under this Part, means the Australian law enforcement officer specified in the authority to conduct the controlled operation as the officer who is responsible for the conduct of the controlled operation.

serious Commonwealth offence has the meaning given by subsection 15GE(1).

serious State offence that has a federal aspect has the meaning given by subsection 15GE(2).

urgent application has the meaning given by paragraph 15GG(2)(b).

urgent authority has the meaning given by paragraph 15GI(1)(b).

urgent variation application has the meaning given by paragraph 15GP(3)(b).

urgent variation of authority has the meaning given by paragraph 15GR(1)(b).

Division 2--Authorisation of controlled operations

15GD  Meaning of controlled operation

A controlled operation is an operation that:

(a) involves the participation of law enforcement officers; and

(b) is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious Commonwealth offence or a serious State offence that has a federal aspect; and

(c) may involve a law enforcement officer or other person in conduct that would, apart from section 15GW, constitute a Commonwealth offence or an offence against a law of a State or Territory.

Note: Section 15GN specifies when a controlled operation begins and ends.

15GE  Meaning of serious Commonwealth offence or serious State offence that has a federal aspect

(1) For the purposes of this Part, serious Commonwealth offence means a Commonwealth offence that is punishable on conviction by imprisonment for a period of 3 years or more.

(2) For the purposes of this Part, serious State offence that has a federal aspect means an offence against a law of a State or Territory that has a federal aspect and that is punishable on conviction by imprisonment for a period of 3 years or more.

(3) For the purposes of this Part, serious Commonwealth offence includes a Commonwealth offence that is prescribed by the regulations, or that is of a kind prescribed by the regulations.

15GF  Meaning of authorising officer

(1) Any of the following is an authorising officer for a controlled operation:

(a) if the operation is a major controlled operation and the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police--the Commissioner or a Deputy Commissioner;

(b) if the operation is not a major controlled operation, but the investigation of the offence to which the controlled operation relates is within the functions of the Australian Federal Police--any AFP authorising officer;

(c) if the investigation of the offence to which the controlled operation relates is within the functions of the ACC--any ACC authorising officer;

(d) if the controlled operation relates to the investigation of a corruption issue (within the meaning of the Law Enforcement Integrity Commissioner Act 2006)--any ACLEI authorising officer.

(2) A major controlled operation is a controlled operation that is likely to:

(a) involve the infiltration of an organised criminal group by one or more undercover law enforcement officers for a period of more than 7 days; or

(b) continue for more than 3 months; or

(c) be directed against suspected criminal activity that includes a threat to human life.

(3) The following are AFP authorising officers:

(a) the Commissioner;

(b) a Deputy Commissioner;

(c) a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of this paragraph.

(4) The following are ACC authorising officers:

(a) the Chief Executive Officer of the ACC;

(b) a member of the staff of the ACC who is an SES employee and who is authorised in writing by the Chief Executive Officer of the ACC for the purposes of this paragraph.

(5) The following are ACLEI authorising officers:

(a) the Integrity Commissioner;

(b) the Assistant Integrity Commissioner;

(c) a member of the staff of the ACLEI who is an SES employee and is authorised in writing by the Integrity Commissioner for the purposes of this paragraph.

15GG  Applications for authorities to conduct controlled operations

(1) An Australian law enforcement officer of a law enforcement agency may apply to an authorising officer for an authority to conduct a controlled operation on behalf of the law enforcement agency.

(2) An application for an authority may be made:

(a) by means of a written document signed by the applicant (such an application is a formal application); or

(b) if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the controlled operation--orally in person, or by telephone or any other means of communication (such an application is an urgent application).

(3) Nothing in this Part prevents an application for an authority being made in respect of a controlled operation that has been the subject of a previous application, but in that case the subsequent application must be a formal application.

Note: An urgent authority can be varied, but not so as to extend its duration--see sections 15GO and 15GS.

(4) An application (whether formal or urgent) must:

(a) provide sufficient information to enable the authorising officer to decide whether or not to grant the application; and

(b) state whether or not the proposed controlled operation, or any other controlled operation with respect to the same criminal activity, has been the subject of an earlier application (whether formal or urgent) for an authority or variation of an authority and, if so, whether or not the authority was given or the variation granted.

(5) An authorising officer may require an applicant to provide such additional information concerning the proposed controlled operation as is necessary for the proper consideration of the application.

(6) As soon as practicable after making an urgent application that was not made in writing, the applicant must make a record in writing of the application and give a copy of it to the authorising officer to whom the application was made. The record must state the proposed period of effect of the authority, which must not exceed 7 days.

15GH  Determination of applications

(1) An authorising officer may, after considering an application for an authority to conduct a controlled operation, and any additional information provided under subsection 15GG(5):

(a) authorise the controlled operation by granting the authority, either unconditionally or subject to conditions; or

(b) refuse the application.

(2) An authorising officer must not grant an authority to conduct a controlled operation unless the authorising officer is satisfied on reasonable grounds:

(a) that a serious Commonwealth offence or a serious State offence that has a federal aspect has been, is being or is likely to be, committed; and

(b) that the nature and extent of the suspected criminal activity are such as to justify the conduct of a controlled operation; and

(c) that any unlawful conduct involved in conducting the controlled operation will be limited to the maximum extent consistent with conducting an effective controlled operation; and

(d) the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods involved in the controlled operation will be under the control of an Australian law enforcement officer at the end of the controlled operation; and

(e) that the proposed controlled conduct will be capable of being accounted for in a way that will enable the reporting requirements of Division 4 to be complied with; and

(f) that the controlled operation will not be conducted in such a way that a person is likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

(g) that any conduct involved in the controlled operation will not:

(i) seriously endanger the health or safety of any person; or

(ii) cause the death of, or serious injury to, any person; or

(iii) involve the commission of a sexual offence against any person; or

(iv) result in significant loss of, or serious damage to, property (other than illicit goods); and

(h) that any role assigned to a civilian participant in the operation is not one that could be adequately performed by a law enforcement officer.

(3) To avoid doubt, an authorising officer may authorise a particular controlled operation only if he or she is an authorising officer for the controlled operation within the meaning of section 15GF.

(4) An authority granted under this section is not a legislative instrument.

15GI  Form of authority

(1) An authority to conduct a controlled operation may be granted:

(a) by means of a written document, signed by the authorising officer (such an authority is a formal authority); or

(b) if the authorising officer is satisfied that the delay caused by granting a formal authority may affect the success of the operation--orally in person, or by telephone or any other means of communication (such an authority is an urgent authority).

(2) Nothing in this Part prevents an authority being granted in respect of a controlled operation that has been the subject of a previous authority, but in that case the subsequent authority must be a formal authority.

Note: An urgent authority can be varied, but not so as to extend its duration--see sections 15GO and 15GS.

15GJ  Formal authority

(1) A formal authority must:

(a) state the name and rank or position of the person granting the authority; and

(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and

(c) state that the application is a formal application; and

(d) identify the nature of the criminal activity (including the suspected serious Commonwealth offences and serious State offences that have a federal aspect) in respect of which the controlled conduct is to be engaged in; and

(e) identify the nature of the controlled conduct that the participants in the controlled operation may be authorised to engage in under section 15GL; and

(f) identify (to the extent known) the person or persons to be targeted; and

(g) specify the period of effect of the authority, being a period not exceeding 3 months; and

(h) specify any conditions to which the conduct of the controlled operation is subject; and

(i) state the date and time when the authority is granted; and

(j) identify the following details (to the extent to which they are known and are relevant):

(i) the nature and quantity of any illicit goods that will be involved in the controlled operation;

(ii) the foreign countries through which those goods are likely to pass in the course of the controlled operation;

(iii) the place or places at which those goods are likely to be dealt with by the Australian Customs Service;

(iv) if subparagraph (iii) does not apply--the place or places where those goods are likely to enter into Australia;

(v) the time or times when, and the day or days on which, those goods are likely to be dealt with by the Australian Customs Service.

15GK  Urgent authority

(1) If an authorising officer grants an urgent authority, the authorising officer must, within 7 days, issue a written urgent authority to the principal law enforcement officer for the controlled operation.

(2) A written urgent authority must:

(a) state the name and rank or position of the person granting the authority; and

(b) identify the principal law enforcement officer for the controlled operation and, if the principal law enforcement officer is not the applicant for the authority, the name of the applicant; and

(c) state that the application is an urgent application; and

(d) identify the nature of the criminal activity in respect of which the controlled conduct is to be engaged in; and

(e) identify the nature of the controlled conduct that the participants in the controlled operation may be authorised to engage in under section 15GL; and

(f) specify the period of effect of the authority, being a period not exceeding 7 days; and

(g) specify any conditions to which the conduct of the operation is subject; and

(h) state the date and time when the authority was granted.

15GL  Authorisations of specified individuals to engage in controlled conduct

(1) The principal law enforcement officer for a controlled operation may, for the purposes of the controlled operation, authorise a specified person to engage in controlled conduct.

(2) An authorisation under subsection (1) may be given orally or in writing, and must:

(a) state the identity of the person authorised to engage in controlled conduct for the purposes of the controlled operation; and

(b) state the time when, and the place where, the authorisation was given; and

(c) identify:

(i) with respect to the law enforcement participants, the nature of the controlled conduct that those participants may engage in; and

(ii) with respect to the civilian participants, the particular controlled conduct (if any) that each such participant may engage in.

(3) As soon as reasonably practicable after giving an oral authorisation, the principal law enforcement officer for the controlled operation must give to the person authorised to engage in controlled conduct a written authorisation stating the matters in subsection (2).

(4) A person is sufficiently identified for the purposes of paragraph (2)(a) if the person is identified:

(a) by an assumed name under which the person is operating; or

(b) by a code name or code number;

as long as the chief officer of the authorising agency for the controlled operation can match the assumed name, code name or code number to the person's identity.

(5) An authorisation under this section must not be given in respect of a class of persons.

(6) The principal law enforcement officer for a controlled operation may cancel an authorisation under subsection (1) for any reason.

(7) An authorisation may be cancelled orally or in writing.

(8) As soon as reasonably practicable after cancelling an authorisation orally, the principal law enforcement officer for the controlled operation must give written notice of the cancellation to the person who was authorised to engage in controlled conduct under the authorisation.

15GM  Change of principal law enforcement officer

If an authorising officer in relation to a controlled operation becomes satisfied that the principal law enforcement officer for the controlled operation ceases for any reason to have responsibility for the controlled operation:

(a) the authorising officer may, by instrument in writing, nominate another person as the principal law enforcement officer for the controlled operation; and

(b) with effect from the execution of the instrument or such later time as is specified in the instrument, that other person becomes the principal law enforcement officer for the controlled operation.

15GN  Commencement and duration of authorities and authorisations

(1) An authority to conduct a controlled operation comes into force, and the controlled operation is taken to commence, at the time the authority is granted under section 15GH.

(2) To avoid doubt, an urgent authority is granted when the authorising officer tells the applicant that the urgent authority is granted.

Note: An authority is granted under subsection 15GH(1). Paragraph 15GI(1)(b) enables an authority to be granted orally in specified circumstances.

(3) An authority (whether formal or urgent) has effect for the period of effect specified in it under paragraph 15GJ(1)(g) or 15GK(2)(f) unless:

(a) it is cancelled before the end of the period of effect; or

(b) the period of effect is extended under section 15GQ.

(4) An authorisation under section 15GL has effect throughout the period of effect of the authority for the controlled operation to which the authorisation relates, unless:

(a) a shorter period of effect is specified in the authorisation; or

(b) the authorisation is cancelled before the end of that period.

15GO  Variation of authority--general

(1) An appropriate authorising officer may vary a formal authority or an urgent authority:

(a) at any time on the authorising officer's own initiative; or

(b) on application under subsection 15GP(1).

(2) A variation may:

(a) extend the period of effect of the authority (subject to subsections (3) and (4)); or

(b) authorise participants in the controlled operation to engage in additional or alternative controlled conduct.

(3) However, a variation cannot be made that has the effect of extending the period of effect of an urgent authority.

(4) No single variation may extend the period of effect of a formal authority for more than 3 months at a time.

(5) An authority must not be varied unless the authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration of the nature of the controlled operation concerned.

15GP  Variation of authority on application

(1) The principal law enforcement officer for a controlled operation, or any other Australian law enforcement officer acting on behalf of the principal law enforcement officer, may apply to an appropriate authorising officer for a variation of authority for a purpose mentioned in section 15GO(2).

(2) More than one application for a variation may be made in respect of the same authority.

(3) An application for a variation of an authority may be made:

(a) by means of a written document that is signed by the applicant (such an application is a formal variation application); or

(b) if the applicant has reason to believe that the delay caused by making a formal application for variation may affect the success of the controlled operation to which the authority relates--orally in person, or by telephone or any other means of communication (such an application is an urgent variation application).

(4) The authorising officer to whom the application is made may require the applicant to provide such information concerning the proposed variation as is necessary for the authorising officer's proper consideration of the application.

15GQ  Determination of application to vary authority

(1) After considering an application for a variation of an authority, and any additional information provided under subsection 15GP(4), the authorising officer concerned:

(a) may vary the authority in accordance with the application, either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) Subsection 15GH(2) applies to an application for a variation of authority under this section in the same way as it applies to an application for authority under subsection 15GH(1).

15GR  Manner of varying authority

(1) An authority may be varied by an authorising officer (whether on application or otherwise) only:

(a) by means of a written document signed by the authorising officer (such a variation is a formal variation of authority); or

(b) if the authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the controlled operation--orally in person, or by telephone or any other means of communication (such a variation is an urgent variation of authority).

(2) The authorising officer must, as soon as practicable, prepare and give a written document that complies with section 15GS to the applicant or, if the variation was on the initiative of the authorising officer, to the principal law enforcement officer for the controlled operation.

15GS  Form of variation of authority

A variation of an authority (whether formal or urgent) must:

(a) identify the controlled operation to which the authority relates; and

(b) state the name and rank or position of the person varying the authority; and

(c) if the authority was varied on an application made under section 15GP, state:

(i) the name of the applicant; and

(ii) whether the application was a formal variation application or an urgent variation application; and

(d) state the date and time when the variation of authority is or was granted; and

(e) describe the variation having regard to the purposes referred to in subsection 15GP(1) in respect of which the application was made.

15GT  Cancellation of authorities

(1) An appropriate authorising officer may, by order in writing given to the principal law enforcement officer for a controlled operation, cancel the authority to conduct the controlled operation at any time and for any reason.

(2) Without limiting subsection (1), an appropriate authorising officer may cancel an authority at any time at the request of the principal law enforcement officer for the controlled operation concerned.

(3) Cancellation of an authority takes effect at the time the order is made or at the later time specified in the order.

15GU  Effect of authorities

(1) While it has effect, an authority:

(a) authorises each law enforcement participant in the controlled operation to which the authority relates to engage in the controlled conduct specified in an authorisation under section 15GL in respect of that participant; and

(b) authorises each civilian participant in the controlled operation to which the authority relates (if any) to engage in the particular controlled conduct (if any) specified in an authorisation under section 15GL in respect of that participant.

(2) The authority to engage in controlled conduct given to a participant cannot be delegated to any other person.

15GV  Defect in authority

An application for an authority or variation of an authority, and any authority or variation of an authority granted on the basis of such an application, is not invalidated by any defect, other than a defect that affects the application, authority or variation in a material particular.

Division 3--Protection from criminal responsibility and related provisions

Subdivision A--Controlled operations under this Part

15GW  Protection from criminal responsibility for controlled conduct during controlled operations

(1) This section applies if:

(a) a participant in a controlled operation engages in conduct in the course of, and for the purposes of, the controlled operation; and

(b) engaging in that conduct is a Commonwealth offence or an offence against a law of a State or Territory.

(2) Despite any other law of the Commonwealth, a State or a Territory, the participant is not criminally responsible for the offence, if:

(a) the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and

(b) the participant is authorised under section 15GL to engage in the conduct; and

(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and

(d) the conduct does not involve the participant engaging in any conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any person; and

(e) if the participant is a civilian participant in the operation--he or she acts in accordance with the instructions of a law enforcement officer.

15GX  Indemnification of participants against civil liability

The Commonwealth must indemnify a participant in a controlled operation against any civil liability (including reasonable costs) the participant incurs because of conduct the participant engages in if:

(a) the participant engages in the conduct in the course of, and for the purposes of, the controlled operation in accordance with the authority to conduct the controlled operation; and

(b) the participant is authorised under section 15GL to engage in the conduct; and

(c) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence under a law of a State or Territory that the person would not otherwise have intended to commit; and

(d) the conduct does not involve the participant engaging in any conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any person; and

(e) if the participant is a civilian participant in the operation--he or she acts in accordance with the instructions of a law enforcement officer; and

(f) the requirements (if any) specified in the regulations have been met.

15GY  Effect of sections 15GW and 15GX on other laws relating to criminal investigation

Sections 15GW and 15GX do not apply to a person's conduct that is, or could have been, authorised under Commonwealth law or a law of a State or Territory relating to the following:

(a) arrest or detention of individuals;

(b) searches of individuals;

(c) entry onto, or searches or inspection of, premises;

(d) searches, inspections or seizures of other property;

(e) forensic procedure;

(f) electronic surveillance devices or telecommunications interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

15GZ  Effect of being unaware of variation or cancellation of authority

(1) If an authority to conduct a controlled operation is varied in a way that limits its scope, this Part continues to apply to a participant in the controlled operation as if the authority had not been varied in that way, for so long as the participant:

(a) is unaware of the variation; and

(b) is not reckless about the existence of the variation.

(2) If an authority to conduct a controlled operation, or an authorisation under section 15GL is cancelled, this Part continues to apply to a person who was a participant in the controlled operation immediately before the cancellation as if the authority or authorisation had not been cancelled in that way, for so long as the person:

(a) is unaware of the cancellation; and

(b) is not reckless about the existence of the cancellation.

(3) For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an authority or authorisation if:

(a) the person is aware of a substantial risk that the variation or cancellation has happened; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.

15H  Protection from criminal responsibility for certain ancillary conduct

(1) This section applies if:

(a) a person engages in conduct (the ancillary conduct) that relates to controlled conduct (the related controlled conduct) engaged in by another person; and

(b) engaging in the ancillary conduct is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related controlled conduct.

(2) Despite any other law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in a controlled operation authorised under this Part.

(3) In this section:

ancillary offence, in relation to an offence constituted by related controlled conduct, means a Commonwealth offence or an offence under a law of a State or Territory:

(a) of conspiring to commit the offence constituted by the related controlled conduct; or

(b) of aiding, abetting, counselling or procuring, inciting or being in any way knowingly concerned in, the commission of the offence constituted by the related controlled conduct.

15HA  Compensation for property loss or serious damage

(1) If a person suffers loss of or serious damage to property, or personal injury, as a direct result of a controlled operation authorised under this Part, the Commonwealth is liable to pay to the person compensation as agreed between the Commonwealth and the person or, in default of agreement, as determined by action against the Commonwealth in a court of competent jurisdiction.

(2) Subsection (1) does not apply if:

(a) the person suffered the loss, damage or injury in the course of, or as a direct result of, engaging in any criminal activity (other than criminal activity that is controlled conduct); or

(b) the person was a law enforcement participant at the time of suffering the loss, damage or injury.

(3) Payments under this section are to be made out of money appropriated by the Parliament.

15HB  Notification requirements

(1) If:

(a) any loss of or serious damage to property occurs in the course of, or as a direct result of, a controlled operation (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation); or

(b) any personal injury occurs in the course of, or as a direct result of, such an operation;

the principal law enforcement officer for the controlled operation must report the loss, damage or injury to the chief officer of the law enforcement agency as soon as practicable.

(2) If loss or serious damage to property is notified to the chief officer under subsection (1), the chief officer must take all reasonable steps to notify the owner of the property of the loss or damage.

(3) The chief officer is not required to notify the owner of property under this section until the chief officer is satisfied that notification would not:

(a) compromise or hinder the controlled operation or any related investigation; or

(b) compromise the identity of a participant in the controlled operation; or

(c) endanger the life or safety of any person; or

(d) prejudice any legal proceeding; or

(e) otherwise be contrary to the public interest.

(4) A chief officer may, by written instrument, delegate any of the chief officer's powers or functions under this section to:

(a) in relation to the Australian Federal Police--a Deputy Commissioner or a person of equivalent or higher rank; or

(b) in relation to the Australian Customs Service--the Deputy Chief Executive Officer of Customs or a person occupying an equivalent or higher position; or

(c) in relation to the ACC:

(i) the Director National Operations or a person occupying an equivalent or higher position; or

(ii) a person occupying a position prescribed by the regulations; or

(d) in relation to ACLEI--the Assistant Integrity Commissioner; or

(e) in relation to the police force of a State or Territory--a Deputy Commissioner or a person of equivalent or higher rank.

Subdivision B--Controlled operations under a corresponding State controlled operations law

15HC  Protection from criminal responsibility for conduct under a corresponding State controlled operations law

(1) This section applies to a participant in an operation authorised under a corresponding State controlled operations law if:

(a) the participant engages in conduct in the course of, and for the purposes of, the operation; and

(b) engaging in that conduct is a Commonwealth offence.

(2) Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:

(a) the conduct is authorised by, and is engaged in in accordance with, the authority to conduct the controlled operation; and

(b) the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and

(c) the conduct does not involve the participant engaging in any conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any person; and

(d) if the person is a civilian participant in the operation--he or she acts in accordance with the instructions of a law enforcement officer.

(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the operation was authorised.

15HD  Effect of section 15HC on other laws relating to criminal investigation

Section 15HC does not apply to a person's conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory relating to the following:

(a) arrest or detention of individuals;

(b) searches of individuals;

(c) entry onto, or searches or inspection of, premises;

(d) searches, inspections or seizures of other property;

(e) forensic procedure;

(f) electronic surveillance devices or telecommunications interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

15HE  Protection from criminal responsibility for certain ancillary conduct

(1) This section applies if:

(a) a person engages in conduct (the ancillary conduct) that relates to controlled conduct (the related controlled conduct) engaged in by another person; and

(b) engaging in the ancillary conduct is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related controlled conduct.

(2) Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related controlled conduct was being engaged in, or would be engaged in, by a participant in an operation authorised under a corresponding State controlled operations law.

(3) Expressions used in this section have the same meanings as in the corresponding State controlled operations law under which the person believed the controlled conduct was being engaged in.

Division 4--Compliance and Monitoring

15HF  Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a controlled operation.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

(c) in accordance with any requirement imposed by law; or

(d) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2)--see subsection 13.3(3) of the Criminal Code.

15HG  Unauthorised disclosure of information--endangering safety, etc.

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a controlled operation authorised under this Part; and

(c) either:

(i) the person intends to endanger the health or safety of any person or prejudice the effective conduct of a controlled operation; or

(ii) the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of a controlled operation.

Penalty: Imprisonment for 10 years.

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

(c) in accordance with any requirement imposed by law; or

(d) in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.

Note: A defendant bears an evidential burden in relation to the matters in subsection (2)--see subsection 13.3(3) of the Criminal Code.

(3) An offence against this section is an indictable offence.

15HH  Chief officers' 6 monthly reports to Ombudsman and Minister

(1) As soon as practicable after 30 June and 31 December in each year, the chief officer of each authorising agency must submit a report to the Ombudsman setting out the details required by subsection (2) in relation to controlled operations for which the agency was the authorising agency during the previous 6 months.

(2) The report must include the following details:

(a) the number of formal authorities for controlled operations that have been granted or varied by an authorising officer of the agency, and the number of formal applications for the granting or variation of such authorities that have been refused by an authorising officer of the agency, during the period to which the report relates;

(b) the number of urgent authorities for controlled operations or urgent variations of such authorities that have been granted by an authorising officer of the agency, and the number of urgent applications for such authorities or urgent variations of authorities that have been refused by an authorising officer of the agency, during the period to which the report relates;

(c) the nature of the criminal activities against which the controlled operations were directed;

(d) the identity of each person targeted under controlled operations;

(e) the nature of the controlled conduct engaged in for the purposes of the controlled operations;

(f) if any of the controlled operations involved illicit goods, a statement (to the extent known) of:

(i) the nature and quantity of the illicit goods; and

(ii) the route through which the illicit goods passed in the course of the operations; and

(iii) all foreign countries through which the illicit goods passed in the course of the operation;

(g) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operations;

(h) details of any personal injuries occurring in the course of or as a direct result of the operations;

(i) the number of authorities for controlled operations that were cancelled by an authorising officer of the agency or that expired during the period to which the report relates.

(3) The Ombudsman may require the chief officer of an authorising agency to give additional information covering any controlled operation to which a report relates.

(4) Nothing in paragraph (2)(e) or (f) requires particulars of a controlled operation to be included in a report for a period of 6 months if the operation had not been completed during that period, but the particulars must instead be included in the report for the period of 6 months in which the operation is completed.

(5) A copy of a report given to the Ombudsman under this section must be given to the Minister at the same time as it is given to the Ombudsman.

15HI  Chief officers' annual reports to Minister

(1) As soon as practicable after 30 June in each year, the chief officer of each authorising agency must submit a report to the Minister setting out the details required by subsection 15HH(2) in relation to controlled operations for which the agency was the authorising agency during the previous 12 months.

(2) Each chief officer must advise the Minister of any information in a report that, in the chief officer's opinion, should be excluded from the report before the report is laid before the Parliament because:

(a) the information, if made public, could reasonably be expected to:

(i) endanger a person's safety; or

(ii) prejudice an investigation or prosecution; or

(iii) compromise any law enforcement agency's operational activities or methodologies; or

(b) making the information public would be contrary to the public interest for any other reason.

(3) The Minister must exclude information from a report if the Minister is satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must then cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

(4) A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.

(5) Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.

(6) If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.

15HJ  Annual report by Ombudsman

(1) The Ombudsman must, as soon as practicable after 30 June in each year:

(a) prepare a report of the work and activities under this Part of the Ombudsman for the preceding 12 months and give a copy of the report to the Minister and to the chief officer of the law enforcement agency to which the report relates; and

(b) prepare a report of the work and activities of the Ombudsman for the preceding 12 months, being work or activities under a corresponding State controlled operations law, and give a copy of the report to the Minister and to the chief officer of the ACC.

(2) A report under this section must not include information which, if made public, could reasonably be expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise any law enforcement agency's operational activities or methodologies.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

(4) A report must include, for each authorising agency concerned, comments on the comprehensiveness and adequacy of the reports which were provided to the Ombudsman by the chief officer of the authorising agency under section 15HH.

(5) A report must not disclose any information that identifies any person involved in an operation or that is likely to lead to such a person being identified.

(6) Nothing in this section requires particulars of a controlled operation to be included in a report for a year if the operation had not been completed as at 30 June in that year, but the particulars must instead be included in the report for the year in which the operation is completed.

(7) If a report relates, in whole or in part, to the work or activities of the ACC under a corresponding State controlled operations law, the Minister must, as soon as practicable after the report is laid before each House of the Parliament, send a copy of the report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.

15HK  Keeping documents connected with controlled operations

The chief officer of an authorising agency must cause the following to be kept:

(a) each formal application made to an authorising officer of the agency;

(b) each formal authority granted by such an authorising officer;

(c) each formal variation application made to such an authorising officer;

(d) each formal variation of authority granted by such an authorising officer;

(e) each written urgent authority issued under section 15GK;

(f) each order cancelling an authority granted by such an authorising officer;

(g) each written authorisation issued under section 15GL by a principal law enforcement officer of the agency and each written cancellation by such an officer of such an authorisation.

15HL  General register

(1) The chief officer of each authorising agency must cause a general register to be kept.

(2) The general register is to specify:

(a) for each application under this Part made to an authorising officer of the agency (including an application for a variation of an authority):

(i) the date of the application; and

(ii) whether the application was formal or urgent; and

(iii) whether the application was granted, refused or withdrawn; and

(iv) if the application was refused or withdrawn--the date and time of the refusal or withdrawal; and

(b) for each authority under this Part granted by an authorising officer of the agency:

(i) the date and time the authority was granted; and

(ii) whether the authority was formal or urgent; and

(iii) the name and rank or position of the person who granted the authority; and

(iv) each serious Commonwealth offence or serious State offence that has a federal aspect in respect of which controlled conduct under the authority was to be engaged in; and

(v) the period of effect of the authority; and

(vi) if the authority was cancelled, the date and time of cancellation; and

(vii) the date and time the controlled operation began and the date of completion of the operation; and

(viii) if the controlled operation involved illicit goods (to the extent known), the nature and quantity of the illicit goods and the route and all foreign countries through which the illicit goods passed in the course of the operation; and

(ix) details of any loss of or serious damage to property (other than property of the law enforcement agency on behalf of which the operation is conducted or a participant in the operation) occurring in the course of or as a direct result of the controlled operation; and

(x) details of any personal injuries occurring in the course of or as a direct result of the operation; and

(c) for each variation of an authority under this Part made by an authorising officer of the agency:

(i) the date and time the variation was made; and

(ii) whether the variation was formal or urgent; and

(iii) the name and rank or position of the person who made the variation.

(3) A register kept under this section is not a legislative instrument.

15HM  Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Part.

(2) An appointment under subsection (1) must be in writing.

15HN  Inspection of records by the Ombudsman

(1) The Ombudsman must, from time to time and at least once every 12 months, inspect the records of each authorising agency to determine the extent of compliance with this Part by the agency and by law enforcement officers.

(2) The Ombudsman must also, from time to time and at least once every 12 months, inspect the records of the ACC to determine the extent of compliance with corresponding State controlled operations laws, in relation to any authorities (within the meaning of each such law):

(a) for which a law enforcement officer of the ACC applied; or

(b) that were granted to a law enforcement officer of the ACC.

(3) For the purpose of an inspection under this section, the Ombudsman:

(a) may, after notifying the chief officer of the agency, enter at any reasonable time premises occupied by the agency; and

(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and

(c) may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection; and

(d) may, despite any other law, make copies of, and take extracts from, records of the agency.

(4) The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

(5) Nothing in this section requires the Ombudsman to inspect records relating to operations that have not been completed at the time of the inspection.

15HO  Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency's records, subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the law enforcement officer, require the officer to give the information to the Ombudsman:

(a) by writing signed by the officer; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

(c) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a law enforcement officer of a particular law enforcement agency (whether or not the agency is an authorising agency) is able to give information relevant to an inspection under this Division of an authorising agency's records; and

(b) does not know the officer's identity;

the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:

(c) before a specified inspecting officer; and

(d) at a specified place; and

(e) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

15HP  Offence

A person commits an offence if:

(a) the person is required under section 15HO to attend before a person, to give information or to answer questions; and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

15HQ  Ombudsman to be given information and access despite other laws

(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

(c) might tend to incriminate the person or make the person liable to a penalty; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister, a Department or a prescribed authority;

(ii) a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 15HF or 15HG of this Act or Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in section 15HF or 15HG or in any other law prevents an officer of an agency from:

(a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

(b) giving access to a record of the agency to an inspecting officer;

for the purposes of an inspection under this Division of the agency's records.

(4) Nothing in section 15HF or 15HG or in any other law prevents an officer of an agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).

(5) The fact that a person is not excused under subsection (1) from furnishing information, producing a document or other record or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or other record or answer.

(6) In this section:

prescribed authority has the same meaning as in the Ombudsman Act 1976.

15HR  Exchange of information between Ombudsman and State inspecting authorities

(1) In this section:

State or Territory agency means a law enforcement agency of a State or Territory within the meaning of a corresponding State controlled operations law.

State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 15HN when the State or Territory agency is exercising powers under a corresponding State controlled operations law.

(2) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the agency.

(3) The Ombudsman may only give information to an authority under subsection (2) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.

(4) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.

15HS  Delegation by Ombudsman

(1) The Ombudsman may delegate:

(a) to an APS employee responsible to the Ombudsman; or

(b) to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person;

all or any of the Ombudsman's powers under this Division other than a power to report to the Minister.

(2) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

15HT  Ombudsman not to be sued

The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

Division 5--Miscellaneous

15HU  Evidence of authorities

A document purporting to be an authority granted under section 15GH or under a corresponding State controlled operations law:

(a) is admissible in any legal proceedings; and

(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.

15HV  Chief Executive Officer of Customs to be notified of certain authorities

(1) This section applies if:

(a) an authority is granted under section 15GH by an AFP authorising officer, an ACC authorising officer or an ACLEI authorising officer; and

(b) the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by the Australian Customs Service.

(2) The applicant must, as soon as practicable after the authority is granted, notify the Chief Executive Officer of Customs, or a person (the nominated person) nominated by him or her for the purposes of this section, in writing of:

(a) the applicant's name; and

(b) the date on which the authority was granted; and

(c) to the extent to which it is known:

(i) the place or places at which the illicit goods will pass into the control of the Australian Customs Service; and

(ii) the time or times when, and the day or days on which, the illicit goods are expected to pass into the control of the Australian Customs Service.

(3) A failure to comply with this section does not affect the validity of an authority.

Part IAC--Assumed Identities

Division 1--Preliminary

15HW  Definitions

In this Part:

acquire an assumed identity, means acquire evidence of the assumed identity and includes taking steps towards acquiring evidence of the identity.

agency means one or more of the following:

(a) an issuing agency;

(b) an intelligence agency;

(c) a law enforcement agency.

authorised civilian means a person who is authorised under an authority to acquire or use an assumed identity, but does not include an officer of an intelligence agency, an officer of a law enforcement agency, or a foreign officer.

authorised foreign officer means a foreign officer who is authorised under an authority to acquire or use an assumed identity.

authorised intelligence officer means an intelligence officer who is authorised under an authority to acquire or use an assumed identity.

authorised law enforcement officer means a law enforcement officer who is authorised under an authority to acquire or use an assumed identity.

authorised person means:

(a) an authorised civilian; and

(b) an authorised intelligence officer; and

(c) an authorised law enforcement officer; and

(d) an authorised foreign officer.

authority means an authority granted under section 15HY to acquire and use an assumed identity, including the authority as varied under section 15JB.

certificate of authorisation, in relation to an authority, means the certificate granted under section 15J in relation to an issuing agency.

chief officer:

(a) of an intelligence agency--means the following:

(i) in relation to the Australian Security Intelligence Organisation--the Director-General of Security;

(ii) in relation to the Australian Secret Intelligence Service--the Director-General of Australian Secret Intelligence Service; and

(b) of an issuing agency--means the chief executive officer (however described) of the agency; and

(c) of a law enforcement agency--means the following:

(i) in relation to the Australian Federal Police--the Commissioner of the Australian Federal Police;

(ii) in relation to the Australian Customs Service--the Chief Executive Officer of Customs;

(iii) in relation to the ACC--the Chief Executive Officer of the ACC;

(iv) in relation to the Australian Commission for Law Enforcement Integrity--the Integrity Commissioner;

(v) in relation to the Australian Taxation Office--the Commissioner of Taxation;

(vi) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency--the officer specified in the regulations as the chief officer of that agency.

Commonwealth agency means:

(a) the Commonwealth; or

(b) an authority of the Commonwealth.

Commonwealth government issuing agency means a Commonwealth agency that issues evidence of identity and that is named in an authority.

conduct includes any act or omission.

corresponding assumed identity law means:

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

corresponding authority means:

(a) an authority under a corresponding assumed identity law to acquire or use an assumed identity; or

(b) an authority under a corresponding assumed identity law to request the production of evidence of an assumed identity from a Commonwealth government issuing agency.

doing a thing, includes failing to do the thing.

evidence of identity, means a document or other thing (such as a driver's licence, birth certificate, credit card or identity card) that evidences or indicates, or can be used to evidence or indicate, a person's identity or any aspect of a person's identity.

foreign officer means an officer, however described, of an agency that has responsibility for:

(a) law enforcement in a foreign country; or

(b) intelligence gathering for a foreign country; or

(c) security of a foreign country.

intelligence agency means:

(a) the Australian Security Intelligence Organisation;

(b) the Australian Secret Intelligence Service.

intelligence officer means:

(a) in relation to the Australian Security Intelligence Organisation--an officer of the Australian Security Intelligence Organisation; and

(b) in relation to the Australian Secret Intelligence Service--a staff member of the Australian Secret Intelligence Service;

and includes a person who is seconded to an intelligence agency.

issuing agency means:

(a) a Commonwealth government issuing agency; or

(b) a non-Commonwealth government issuing agency.

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth.

law enforcement agency means the following agencies:

(a) the Australian Federal Police;

(b) the Australian Customs Service;

(c) the ACC;

(d) the Australian Commission for Law Enforcement Integrity;

(e) the Australian Taxation Office;

(f) any other Commonwealth agency specified in the regulations.

law enforcement officer means:

(a) in relation to the Australian Federal Police--the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979);

(b) in relation to the Australian Customs Service--an officer of the Australian Customs Service;

(c) in relation to the ACC--a member of the staff of the ACC;

(d) in relation to the Australian Commission for Law Enforcement Integrity--a member of the staff of the Australian Commission for Law Enforcement Integrity;

(e) in relation to the Australian Taxation Office--a person engaged under the Public Service Act 1999 and performing duties in the Australian Taxation Office;

(f) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency--an officer specified in the regulations as an officer of the agency;

and includes a person who is seconded to a law enforcement agency, including (but not limited to) a member of the police force or police service or a police officer (however described) of another jurisdiction.

National Witness Protection Program means the program by that name established by the Witness Protection Act 1994.

non-Commonwealth government issuing agency means a person, body or entity (other than a Commonwealth government issuing agency) that issues evidence of identity and that is named in an authority.

officer of an agency, includes a person employed or engaged in the agency.

participating jurisdiction means a jurisdiction in which a corresponding assumed identity law is in force.

supervisor of an authorised civilian means the law enforcement officer or the intelligence officer who supervises or is to supervise the acquisition or use of an assumed identity by the authorised civilian.

use an assumed identity, includes representing (whether expressly or impliedly, or by saying or doing something) the assumed identity to be real when it is not.

Division 2--Authority for Assumed Identity

15HX  Application for authority to acquire or use assumed identity

(1) A law enforcement officer of a law enforcement agency may apply to the chief officer mentioned in subsection (2) for an authority for the officer or any other person to do either or both of the following:

(a) acquire an assumed identity;

(b) use an assumed identity.

(2) An application by a law enforcement officer of a law enforcement agency under subsection (1) is to be made to:

(a) if the person who is to acquire or use the assumed identity is a foreign officer, or the assumed identity is to be used in a foreign country:

(i) if the applicant is a member of the staff of the ACC--the chief officer of the ACC; or

(ii) in any other case--the chief officer of the Australian Federal Police; or

(b) in any other case--the chief officer of the law enforcement agency.

(3) An intelligence officer of an intelligence agency may apply to the chief officer of the agency for an authority for the officer or any other person (including a foreign officer) to do either or both of the following:

(a) acquire an assumed identity;

(b) use an assumed identity.

(4) A separate application must be made in respect of each assumed identity to be acquired or used.

(5) An application:

(a) must be in writing in the form approved by the chief officer; and

(b) must contain:

(i) the name of the applicant; and

(ii) the name of the person to be authorised to acquire or use an assumed identity (if not the applicant); and

(iii) if the person referred to in subparagraph (ii) is not an officer of either an intelligence agency or a law enforcement agency or a foreign officer--the name and rank or position of the person proposed to be appointed as supervisor and an explanation of why it is necessary for a person who is not an officer to acquire or use the assumed identity; and

(iv) details of the proposed assumed identity; and

(v) reasons for the need to acquire or use an assumed identity; and

(vi) if the assumed identity is necessary for a purpose mentioned in subparagraph 15HY(2)(a)(i) or (ii)--details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent known); and

(vii) details of any issuing agencies and the types of evidence to be issued by them; and

(viii) details of any application of a kind referred to in section 15JD (making entries in register of births, deaths or marriages) that is to be made under a corresponding assumed identity law.

(6) The chief officer may require the applicant to give such additional information concerning the application as is necessary for the chief officer's proper consideration of the application.

Note: The chief officer may delegate functions under this section--see section 15KC.

15HY  Determination of applications

(1) After considering an application for an authority to acquire or use an assumed identity, and any additional information under subsection 15HX(6), the chief officer:

(a) may grant an authority to acquire or use the assumed identity, either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) An authority to acquire or use an assumed identity may not be granted unless the chief officer is satisfied on reasonable grounds:

(a) that the assumed identity is necessary for one or more of the following purposes:

(i) investigation of, or intelligence gathering in relation to, criminal activity (whether a particular criminal activity or criminal activity generally);

(ii) the exercise of powers and performance of functions of an intelligence agency;

(iii) the exercise of powers and performance of functions for the purposes of the National Witness Protection Program;

(iv) the training of persons for any of the purposes mentioned in subparagraphs (i) to (iii);

(v) any administrative function in support of any of the purposes mentioned in subparagraphs (i) to (iv); and

(b) that the risk of abuse of the assumed identity by the authorised person is minimal; and

(c) if the application is for authorisation of an assumed identity for a person who is not an officer of either an intelligence agency or a law enforcement agency--that it would be impossible or impracticable in the circumstances for an officer to acquire or use the assumed identity for the purpose sought.

(3) If an authority is granted for an authorised civilian, the chief officer must appoint an officer of the law enforcement agency or the intelligence agency (as the case may be) to supervise the acquisition or use of the assumed identity by the authorised civilian.

(4) The officer appointed as supervisor must be:

(a) in the case of the Australian Federal Police--a person who holds the rank of sergeant or an equivalent or higher rank; or

(b) in the case of the Australian Customs Service--a person who holds the position, or performs the duties, of a Manager, Intelligence, or an equivalent or higher position, in the Australian Customs Service; or

(c) in the case of the ACC--a person who holds the position, or performs the duties, of either a senior investigator or of an APS executive level 1 position, or an equivalent or higher position, in the ACC; or

(d) in the case of the Australian Commission for Law Enforcement Integrity--a staff member of the Australian Commission for Law Enforcement Integrity who is authorised in writing by the Integrity Commissioner to act as a supervisor; or

(e) in the case of the Australian Taxation Office--a person who holds the position, or performs the duties, of an APS Executive Level 2 position, or an equivalent or higher position, in the Australian Taxation Office; or

(f) in the case of the Australian Security Intelligence Organisation--a person who holds the position, or performs the duties, of an ASIO Executive Officer Level 1 position, or an equivalent or higher position, in the Australian Security Intelligence Organisation; or

(g) in the case of the Australian Secret Intelligence Service--a permanent employee of the Australian Secret Intelligence Service who is determined by the Director-General of the Australian Secret Intelligence Service.

(5) An authority may also authorise any one or more of the following:

(a) an application of a kind referred to in section 15JD for an order for an entry in a register of births, deaths or marriages under a corresponding assumed identity law;

(b) a request under section 15JF or 15JS;

(c) the use of an assumed identity in a foreign country.

(6) However, the chief officer of the ACC, the chief officer of the Australian Federal Police or the chief officer of an intelligence agency may only authorise the use of the assumed identity in a foreign country if he or she is satisfied that it is reasonably necessary to do so.

Note: This subsection does not affect any obligation to obtain authority to use the assumed identity in the foreign country.

(7) A separate authority is required for each assumed identity.

Note: The chief officer may delegate functions under this section--see section 15KC.

15HZ  Form of authority

(1) An authority must be:

(a) in writing in the form approved by the chief officer; and

(b) signed by the person granting it.

(2) An authority must state the following:

(a) the name of the person granting the authority;

(b) the date of the authority;

(c) details of the assumed identity authorised;

(d) details of any evidence of the assumed identity that may be acquired under the authority;

(e) the conditions (if any) to which the authority is subject;

(f) why the authority is granted;

(g) if the authority relates to an authorised intelligence officer, an authorised law enforcement officer or a foreign officer--the name of the officer;

(h) if the authority relates to an authorised civilian whose supervisor is a law enforcement officer:

(i) the name of the authorised civilian; and

(ii) the name of his or her supervisor under the authority; and

(iii) the period for which the authority will remain in force, being a period not exceeding 3 months;

(i) if the authority relates to an authorised civilian whose supervisor is an intelligence officer:

(i) the name of the authorised civilian; and

(ii) the name of his or her supervisor under the authority.

(3) The authority must also state the following:

(a) each issuing agency to which a request may be made under section 15JF or 15JS;

(b) whether it authorises an application under a corresponding assumed identity law for an order for an entry in a register of births, deaths or marriages;

(c) whether the assumed identity can be used in a foreign country and the reasons for the need for this use.

Note: The chief officer may delegate functions under this section--see section 15KC.

(4) To avoid doubt, subparagraph (2)(h)(iii) does not prevent the grant of one or more further authorities in relation to an authorised civilian.

15J  Certificate of authorisation

(1) The chief officer must grant a certificate of authorisation in relation to an issuing agency if:

(a) the chief officer grants an authority under section 15HY; and

(b) the authority states that a request may be made under section 15JF or 15JS to the issuing agency.

(2) A separate certificate of authorisation must be given in relation to each issuing agency to which a request may be made under section 15JF or 15JS.

(3) The certificate of authorisation must state the following:

(a) the issuing agency to which the request under section 15JF or 15JS may be made;

(b) the name of the person granting the authority;

(c) the date of the authority;

(d) details of the assumed identity authorised;

(e) details of any evidence of the assumed identity that may be acquired from the issuing agency under the authority;

and must be signed by the person granting the certificate of authorisation.

Note: The chief officer may delegate functions under this section--see section 15KC.

15JA  Period of authority

(1) An authority for an authorised person (other than an authorised civilian of a kind covered by paragraph 15HZ(2)(h)) remains in force until cancelled under section 15JB.

(2) An authority for an authorised civilian of a kind covered by paragraph 15HZ(2)(h) remains in force until the end of the period specified in the authority in accordance with subparagraph 15HZ(2)(h)(iii), unless the authority is cancelled sooner under section 15JB.

15JB  Variation or cancellation of authority

(1) The chief officer of an agency:

(a) may, at any time, vary or cancel an authority that was granted by the chief officer of the agency; and

(b) must cancel the authority if the chief officer is satisfied (on a review under section 15JC or otherwise) that use of the assumed identity is no longer necessary.

(2) The chief officer must give written notice of the variation or cancellation to:

(a) where practicable, the authorised person to whom it relates; and

(b) if the authorised person is an authorised civilian--the authorised person's supervisor.

(3) The notice must state why the authority is varied or cancelled.

(4) The variation or cancellation takes effect:

(a) if the written notice is given to the authorised person and the authorised person is not an authorised civilian--on the day the written notice is given to the authorised person or, if a later day is stated in the notice, on the later day; or

(b) if the authorised person is an authorised civilian and the written notice is given to the authorised person's supervisor--on the day the written notice is given to the authorised person's supervisor or, if a later day is stated in the notice, on the later day; or

(c) in any other case--on the day stated in the notice.

Note 1: The chief officer may delegate functions under this section--see section 15KC.

Note 2: Despite the variation or cancellation of an authority, a person is, in certain circumstances, protected from prosecution for offences even if the person is unaware of the variation or cancellation--see section 15JR.

15JC  Yearly review of authority

(1) The chief officer of an agency must periodically review each authority granted by the chief officer or a delegate of the chief officer under this Part.

(2) A review of an authority under this section is to be conducted:

(a) in the case of an authority granted by the chief officer or a delegate of the chief officer of an intelligence agency to an authorised intelligence officer--at least once every 3 years; or

(b) in all other cases--at least once every 12 months.

(3) The purpose of a review is to determine whether use of the assumed identity under the authority is still necessary.

(4) If the chief officer is satisfied on a review that use of the assumed identity under the authority is no longer necessary, he or she must cancel the authority under section 15JB.

(5) If the chief officer is satisfied on a review that use of the assumed identity under the authority is still necessary, he or she must record his or her opinion, and the reasons for it, in writing.

Note: The chief officer may delegate functions under this section--see section 15KC.

(6) Failure to comply with the requirements of this section does not invalidate an authority or anything lawfully done under the authority.

15JD  Making entries in register of births, deaths or marriages

The chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

may apply, under a corresponding assumed identity law, to the Supreme Court of a State or Territory of a participating jurisdiction for an order that an entry be made in a register of births, deaths or marriages under the relevant law of that jurisdiction in relation to the acquisition of an assumed identity under an authority or corresponding authority.

15JE  Cancellation of authority affecting entry in register of births, deaths or marriages

(1) This section applies if:

(a) the chief officer of an agency cancels an authority for an assumed identity; and

(b) there is an entry in relation to that assumed identity in a register of births, deaths or marriages because of an order under a corresponding assumed identity law.

(2) The chief officer must apply for an order under the corresponding assumed identity law to cancel the entry within 28 days after the day the authority is cancelled.

Division 3--Evidence of Assumed Identity

15JF  Request for evidence of assumed identity

(1) This section applies if an authority granted under section 15HY authorises a request under this section.

(2) The chief officer who grants the authority may request the chief officer of an issuing agency stated in the authority to:

(a) produce evidence of an assumed identity in accordance with the authority; and

(b) give evidence of the assumed identity to the authorised person named in the authority.

(3) The request must:

(a) state a reasonable period for compliance with the request; and

(b) include the certificate of authorisation issued under section 15J in relation to the issuing agency.

(4) A request must not be made under this section for an entry in a register of births, deaths or marriages.

(5) In this section:

evidence means evidence similar to that ordinarily produced or given by the issuing agency.

Note: The chief officer may delegate functions under this section--see section 15KC.

15JG  Government issuing agencies to comply with request

The chief officer of a Commonwealth government issuing agency who receives a request under section 15JF must comply with the request within the reasonable period stated in the request.

15JH  Non-government issuing agencies may comply with request

The chief officer of a non-Commonwealth government issuing agency who receives a request under section 15JF may comply with the request.

15JI  Cancellation of evidence of assumed identity

(1) The chief officer of an issuing agency who produces evidence of an assumed identity under this Part must cancel the evidence if directed in writing to do so by the chief officer who requested the evidence.

Note: The chief officer who requested the evidence may delegate functions under this section--see section 15KC.

(2) In this section:

cancel includes delete or alter an entry in a record of information.

15JJ  Return of evidence of assumed identity

(1) This section applies if an authority for a person to acquire or use an assumed identity ceases to be in force.

(2) The chief officer of a law enforcement agency or the chief officer of an intelligence agency may, in writing, request the person to return to the chief officer any evidence of the assumed identity acquired under the authority.

(3) A person commits an offence if:

(a) a request has been made to the person under subsection (2); and

(b) the person fails to comply with the request.

Penalty: 10 penalty units.

15JK  Protection from criminal liability--officers of issuing agencies

The chief officer, or an officer, of an issuing agency who does something that, apart from this section, would be a Commonwealth offence or an offence against a law of a State or Territory, is not criminally responsible for the offence if the thing is done to comply with a request under section 15JF or a direction under section 15JI.

15JL  Indemnity for issuing agencies and officers

(1) This section applies if the chief officer of either a law enforcement agency or an intelligence agency makes a request under section 15JF or gives a direction under section 15JI to the chief officer of an issuing agency.

(2) The Commonwealth must indemnify the issuing agency, or an officer of the issuing agency, for any liability incurred by the agency or officer (including reasonable costs) if:

(a) the liability is incurred because of something done by the agency or officer in the course of duty to comply with the request or direction in the course of duty; and

(b) any requirements prescribed under the regulations have been met.

Division 4--Effect of Authority

15JM  Assumed identity may be acquired and used

A person may acquire or use an assumed identity if:

(a) the person is an authorised person (other than an authorised civilian) and the acquisition or use is:

(i) in accordance with an authority; and

(ii) in the course of duty; or

(b) the person is an authorised civilian and the acquisition or use is in accordance with:

(i) an authority; and

(ii) any direction by the person's supervisor under the authority.

15JN  Protection from criminal liability--authorised persons

If an authorised person does something that, apart from this section, would be a Commonwealth offence or an offence under a law of a State or Territory, the person is not criminally responsible for the offence if:

(a) the thing is done in the course of acquiring or using an assumed identity in accordance with an authority; and

(b) the thing is done:

(i) in the case of an authorised intelligence officer, an authorised law enforcement officer or an authorised foreign officer--in the course of his or her duty; or

(ii) in the case of an authorised civilian--in accordance with any direction by his or her supervisor under the authority; and

(c) doing the thing would not be an offence if the assumed identity were the person's real identity.

15JO  Protection from criminal liability--third parties

If a person does something that, apart from this section, would be a Commonwealth offence or an offence under a law of a State or Territory, the person is not criminally responsible for the offence if:

(a) the person is a Commonwealth officer; and

(b) the thing is done in the course of the person's duty; and

(c) the chief officer who granted the authority has authorised the doing of the thing; and

(d) if an authorised person had done the thing in accordance with an authority, the authorised person would not have been criminally responsible for the offence because of the application of section 15JN.

15JP  Indemnity for authorised persons

(1) This section applies if the chief officer of either a law enforcement agency or an intelligence agency grants an authority.

(2) The Commonwealth must indemnify the authorised person under the authority for any liability incurred by the person (including reasonable costs) because of something done by the person if:

(a) the thing is done in the course of acquiring or using an assumed identity in accordance with the authority; and

(b) the thing is done:

(i) in the case of an authorised intelligence officer, an authorised law enforcement officer or an authorised foreign officer--in the course of his or her duty; or

(ii) in the case of an authorised civilian--in accordance with any direction by his or her supervisor under the authority; and

(c) any requirements prescribed under the regulations have been met.

15JQ  Particular qualifications

(1) Sections 15JN, 15JO and 15JP do not apply to anything done by an authorised person if:

(a) a particular qualification is needed to do the thing; and

(b) the person does not have that qualification.

(2) Subsection (1) applies whether or not the person has acquired, as evidence of an assumed identity, a document that indicates that he or she has that qualification.

Example: An officer who cannot fly a plane is not authorised to fly even though he or she has acquired a pilot's licence under an assumed identity.

15JR  Effect of being unaware of variation or cancellation of authority

(1) If an authority has been varied in a way that limits its scope, this Part continues to apply to the authorised person to whom it relates as if it had not been varied in that way, for as long as the person:

(a) is unaware of the variation; and

(b) is not reckless about the existence of the variation.

(2) If an authority has been cancelled, this Part continues to apply to the authorised person to whom it related as if it had not been cancelled, for as long as the person:

(a) is unaware of the cancellation; and

(b) is not reckless about the existence of the cancellation.

(3) For the purposes of this section, a person is reckless about the existence of the variation or cancellation of an authority or authorisation if:

(a) the person is aware of a substantial risk that the variation or cancellation has happened; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk that the authority has not been varied or cancelled.

Division 5--Mutual Recognition under Corresponding Laws

15JS  Requests to a participating jurisdiction for evidence of assumed identity

(1) This section applies if an authority granted under section 15HY authorises a request under this section.

(2) The chief officer who grants the authority may request the chief officer of an issuing agency of a participating jurisdiction stated in the authority to:

(a) produce evidence of the assumed identity in accordance with the authority; and

(b) give evidence of the assumed identity to the authorised person named in the authority.

Note: The chief officer may delegate functions under this section--see section 15KC.

(3) The request must include the certificate of authorisation issued under section 15J in relation to the issuing agency, and must state that it is a request under this section.

(4) A request must not be made under this section for an entry in a register of births, deaths or marriages.

15JT  Requests from a participating jurisdiction for evidence of assumed identity

(1) This section applies if:

(a) an authority under a corresponding assumed identity law authorises a request for:

(i) the production of evidence of an assumed identity from a Commonwealth government issuing agency; and

(ii) the giving of evidence of the assumed identity to the authorised person named in the authority; and

(b) the request is made to the chief officer of the Commonwealth government issuing agency; and

(c) the request states a reasonable period for compliance with the request.

(2) The chief officer of the agency who receives the request must comply with the request within the reasonable period stated in the request.

15JU  Directions from a participating jurisdiction to cancel evidence of assumed identity

(1) The chief officer of an issuing agency who produces evidence of an assumed identity because of a request mentioned in section 15JT must cancel the evidence if directed in writing to do so by the chief officer who authorised the request.

(2) In this section:

cancel includes delete or alter an entry in a record of information.

15JV  Indemnity for issuing agencies and officers

(1) This section applies if the chief officer of either a law enforcement agency or an intelligence agency makes a request to the chief officer of an issuing agency of a participating jurisdiction under section 15JS.

(2) The agency that makes the request must indemnify the issuing agency and any officer of the issuing agency, for any liability incurred by the issuing agency or the officer of the issuing agency (including reasonable costs) if:

(a) the liability is incurred because of something done by the issuing agency or the officer of the issuing agency, in the course of duty, to comply with the request; and

(b) any requirements prescribed under the regulations have been met.

15JW  Application of this Part to authorities under corresponding laws

(1) The following provisions apply to anything done in relation to a corresponding authority as if it were an authority granted under section 15HY:

(a) section 15JM (assumed identity may be acquired and used);

(b) section 15JQ (particular qualifications);

(c) section 15JR (effect of being unaware of variation or cancellation of authority);

(d) section 15JX (misuse of assumed identity);

(e) section 15JY (disclosing information about assumed identity).

(2) Sections 15JK, 15JN and 15JO apply to anything done in relation to a corresponding authority as if:

(a) the corresponding authority were an authority granted under section 15HY; and

(b) references in those sections to an offence under a law of a State or Territory were omitted.

Division 6--Compliance and Monitoring

Subdivision A--Misuse of Assumed Identity and Information

15JX  Misuse of assumed identity

(1) A person commits an offence if:

(a) the person is an authorised person (other than an authorised civilian); and

(b) the person acquires evidence of, or uses, an assumed identity; and

(c) the person is reckless as to whether the acquisition or use is not:

(i) in accordance with the authority; or

(ii) in the course of duty.

Penalty: Imprisonment for 2 years.

(2) An authorised civilian commits an offence if:

(a) the authorised civilian acquires evidence of, or uses, an assumed identity; and

(b) the authorised civilian is reckless as to whether the acquisition or use is not in accordance with:

(i) his or her authority; or

(ii) the directions of his or her supervisor under the authority.

Penalty: Imprisonment for 2 years.

15JY  Disclosing information about assumed identity

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and

(d) the person is reckless as to whether his or her conduct will endanger the health or safety of any person.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

(c) the information reveals, or is likely to reveal, that another person has acquired, will acquire, is using or has used an assumed identity; and

(d) the person is reckless as to whether his or her conduct will prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity.

Penalty: Imprisonment for 10 years.

(4) A person does not commit an offence under subsection (1), (2) or (3) if the person causes the disclosure of information mentioned in paragraph (1)(c), (2)(c) or (3)(c) (as the case may be) and the disclosure is:

(a) in connection with the administration or execution of this Part or a corresponding assumed identity law; or

(b) for the purposes of any legal proceeding arising out of or otherwise related to this Part or a corresponding assumed identity law or of any report of any such proceedings; or

(c) in accordance with the exercise of powers or performance of functions of a law enforcement agency or an intelligence agency; or

(d) in accordance with any requirement imposed by law.

Subdivision B--Reporting and record-keeping

15JZ  Reports about authorities for assumed identities etc.--law enforcement agencies

(1) As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit a report to the Minister that includes the following information for the year:

(a) the number of authorities granted during the year;

(b) a general description of the activities undertaken by authorised civilians and authorised law enforcement officers when using assumed identities under this Part during the year;

(c) the number of applications for authorities that were refused during the year;

(d) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15KB during the year;

(e) any other information relating to authorities and assumed identities and the administration of this Part that the Minister considers appropriate.

(2) The chief officer must advise the Minister of any information in the report that, in the chief officer's opinion, should be excluded from the report before the report is laid before the Parliament because the information, if made public, could reasonably be expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise any law enforcement agency's operational activities or methodologies.

(3) The Minister must exclude information from the report if satisfied on the advice of the chief officer of any of the grounds set out in subsection (2) and must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

15K  Reports about authorities for assumed identities etc.--intelligence agencies

As soon as practicable after the end of each financial year, the chief officer of an intelligence agency must submit a report to the Inspector-General of Intelligence and Security (the Inspector-General) that includes the following information for the year:

(a) the number of authorities granted during the year;

(b) a general description of the activities undertaken by authorised civilians and authorised intelligence officers when using assumed identities under this Part during the year;

(c) the number of applications for authorities that were refused during the year;

(d) a statement whether or not any fraud or other unlawful activity was identified by an audit under section 15KB during the year;

(e) any other information relating to authorities and assumed identities and the administration of this Part that the Inspector-General considers appropriate.

15KA  Record keeping

(1) The chief officer of either a law enforcement agency or an intelligence agency must keep appropriate records about the operation of this Part in respect of the agency.

(2) The records must include the following, in respect of authorities granted, varied or cancelled under this Part in respect of the agency:

(a) the date on which an authority was granted, varied or cancelled and the name of the person who granted, varied or cancelled it;

(b) the name of the authorised person under the authority, together with details of the assumed identity to which the authority applies;

(c) details of any request made to an issuing agency under section 15JF or 15JS (request for evidence of assumed identity) in respect of the authority;

(d) the general nature of the duties undertaken by the authorised person under the assumed identity;

(e) general details of relevant financial transactions entered into using the assumed identity;

(f) details of reviews of the authority under section 15JC (yearly review of authority).

15KB  Audit of records

(1) The chief officer of either a law enforcement agency or an intelligence agency must cause for the records kept under section 15KA for each authority in respect of the agency to be audited:

(a) at least once every 6 months while the authority is in force; and

(b) at least once in the 6 months after the cancellation or expiry of the authority.

(2) The audit is to be conducted by a person appointed by the chief officer.

(3) The person appointed to conduct the audit:

(a) may, but need not be, an officer of the agency; and

(b) must not be a person:

(i) who granted, varied or cancelled any of the authorities to which the records under section 15KA relate; or

(ii) who is or was an authorised person under any of the authorities to which those records relate.

(4) The results of an audit must be reported to the chief officer.

Division 7--General

15KC  Delegation of chief officer's functions

(1) Except as provided by this section (and despite any other Act or law to the contrary) the functions of a chief officer under this Part may not be delegated to any other person.

(2) A chief officer may delegate to a senior officer of the law enforcement agency or the intelligence agency (as the case may be) any of the chief officer's functions under this Part relating to the granting, variation and cancellation of authorities (including, but not limited to issuing a certificate of authorisation under section 15J, conducting reviews under section 15JC, making applications under section 15JD, giving directions under section 15JI or making requests under section 15JF or 15JS).

(3) In this section:

senior officer means:

(a) in relation to the Australian Federal Police:

(i) any senior executive AFP employee of the Australian Federal Police within the meaning of section 25 of the Australian Federal Police Act 1979; or

(ii) any Deputy Commissioner of Police within the meaning of section 6 of the Australian Federal Police Act 1979; or

(iii) a person occupying a position in the Australian Federal Police that is equivalent to or higher than the positions mentioned in subparagraphs (i) and (ii); and

(b) in relation to the Australian Customs Service--any Regional Director for a State or Territory within the meaning of section 8 of the Customs Act 1901, or a person occupying an equivalent or higher position in the Australian Customs Service; and

(c) in relation to the ACC--any SES employee who is a member of the staff of the ACC within the meaning of section 47 of the Australian Crime Commission Act 2002, or a person occupying an equivalent or higher position in the ACC; and

(d) in relation to the Australian Commission for Law Enforcement Integrity:

(i) the Assistant Integrity Commissioner; or

(ii) a staff member of the Australian Commission for Law Enforcement Integrity who is an SES employee, or a person occupying an equivalent or higher position in the Australian Commission for Law Enforcement Integrity, and who is authorised in writing by the Integrity Commissioner for the purposes of this provision; and

(e) in relation to the Australian Taxation Office--any Deputy Commissioner as defined in section 2 of the Taxation Administration Act 1953, or a person occupying an equivalent or higher position in the Australian Taxation Office; and

(f) in relation to the Australian Security Intelligence Organisation--any senior officer of the Australian Security Intelligence Organisation as defined in section 24 of the Australian Security Intelligence Organisation Act 1979, or a person occupying an equivalent or higher position in the Australian Security Intelligence Organisation; and

(g) in relation to the Australian Secret Intelligence Service (ASIS)--any employee of ASIS who is designated as a senior executive employee by the Deputy Director-General of ASIS under section 33 of the Intelligence Services Act 2001, or a person occupying an equivalent or higher position in ASIS.

Part IACA--Witness Identity Protection

Division 1--Preliminary

15KD  Definitions

(1) In this Part:

assumed name of an operative has the meaning given by paragraph 15KK(1)(a)(i).

chief officer:

(a) of an intelligence agency--means the following:

(i) in relation to the Australian Security Intelligence Organisation--the Director-General of Security;

(ii) in relation to the Australian Security Intelligence Service--the Director-General of Australian Security Intelligence Service; and

(b) of a law enforcement agency--means the following:

(i) in relation to the Australian Federal Police--the Commissioner of the Australian Federal Police;

(ii) in relation to the Australian Customs Service--the Chief Executive Officer of Customs;

(iii) in relation to the ACC--the Chief Executive Officer of the ACC;

(iv) in relation to the Australian Commission for Law Enforcement Integrity--the Integrity Commissioner;

(v) in relation to the Australian Taxation Office--the Commissioner of Taxation;

conduct includes any act or omission.

corresponding witness identity protection certificate means a certificate given under a provision of a corresponding witness identity protection law that corresponds to section 15KI.

corresponding witness identity protection law means:

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

court includes any tribunal or person authorised by law or consent of parties to receive evidence.

court name for an operative in relation to a proceeding, means a name (other than the operative's real name) or code used to identify the operative in the proceeding.

false representation does not include a representation made under an authority under:

(a) Part IAB (about controlled operations); or

(b) Part IAC (about assumed identities).

intelligence agency means the following:

(a) the Australian Security Intelligence Organisation;

(b) the Australian Secret Intelligence Service.

investigation means an investigation in relation to criminal activity, including an investigation extending beyond the Commonwealth.

jurisdiction means the Commonwealth or a State or Territory of the Commonwealth.

law enforcement agency means the following:

(a) the Australian Federal Police;

(b) the Australian Customs Service;

(c) the ACC;

(d) the Australian Commission for Law Enforcement Integrity;

(e) the Australian Taxation Office;

(f) any other Commonwealth agency specified in the regulations.

National Witness Protection Program means the Program by that name established by the Witness Protection Act 1994.

operative means a person who is or was:

(a) a participant in a controlled operation authorised under Part IAB; or

(b) authorised to acquire and use an assumed identity under Part IAC.

party to a proceeding, means:

(a) for a criminal proceeding--the prosecutor and each accused person; or

(b) for a civil proceeding--each person who is a party to the proceeding.

presiding officer in relation to a proceeding, means the person constituting the court, or presiding over the court, in the proceeding.

proceeding means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration.

professional misconduct means fraud, negligence, default, breach of trust, breach of duty, breach of discipline or any other misconduct in the course of duty.

security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979.

witness identity protection certificate means a certificate given under section 15KI.

(2) For the purposes of this Part:

(a) anything permitted to be done by a party to a proceeding may be done by the party's lawyer; and

(b) any requirement to give something to a party to a proceeding is satisfied by giving the thing to the party's lawyer.

15KE  Meaning of criminal proceeding

(1) In this Part, criminal proceeding means a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences.

(2) To avoid doubt, each of the following is part of a criminal proceeding:

(a) a bail proceeding;

(b) a committal proceeding;

(c) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;

(d) a sentencing proceeding;

(e) an appeal proceeding;

(f) a proceeding with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth (within the meaning of subsection 39B(1B) of the Judiciary Act 1903) in relation to:

(i) a decision to prosecute a person for one or more offences against a law of the Commonwealth; or

(ii) a related criminal justice process decision (within the meaning of subsection 39B(3) of that Act);

(g) any other pre-trial, interlocutory or post-trial proceeding prescribed by regulations for the purposes of this paragraph.

15KF  Meaning of civil proceeding

(1) In this Part, civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.

(2) To avoid doubt, each of the following is part of a civil proceeding:

(a) any proceeding on an ex parte application (including an application made before pleadings are filed in a court);

(b) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;

(c) an appeal proceeding;

(d) any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.

15KG  When a charge is outstanding or pending

(1) For the purposes of this Part:

(a) a charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways:

(i) the charge is withdrawn;

(ii) the charge is dismissed by a court;

(iii) the person is discharged by a court following a committal hearing;

(iv) the person is acquitted or found guilty of the offence by a court; and

(b) a charge against a person for an offence is pending if the person has not yet been charged with the offence, but:

(i) the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or

(ii) a summons to appear before a court to answer a charge for the offence has been served on the person; and

(c) an allegation of professional misconduct against a person is outstanding if the allegation has not been finally dealt with in accordance with the procedures that apply for the purposes of dealing with an allegation of that kind.

Division 2--Witness Identity Protection Certificates for Operatives

15KH  Application of Part

(1) This Part applies to a proceeding in which an operative is, or may be, required to give evidence obtained as an operative.

(2) To avoid doubt, this Part does not affect the operation of any law in relation to the protection of a person who gives, or intends to give, evidence in a proceeding.

15KI  Witness identity protection certificate

(1) The chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

may give a witness identity protection certificate for an operative in relation to a proceeding if:

(c) the operative is, or may be required, to give evidence in the proceeding; and

(d) the chief officer is satisfied on reasonable grounds that the disclosure in the proceeding of the operative's identity or where the operative lives is likely to:

(i) endanger the safety of the operative or another person; or

(ii) prejudice any current or future investigation; or

(iii) prejudice any current or future activity relating to security.

(2) The chief officer must make all reasonable enquiries to enable the chief officer to ascertain the information required to be included in the certificate by section 15KK.

(3) The chief officer cannot give a certificate for an operative until the chief officer has obtained a statutory declaration from the operative under section 15KJ.

Note: The chief officer may delegate functions under this section--see section 15LA.

(4) A decision to give a witness identity protection certificate:

(a) is final; and

(b) cannot be appealed against, reviewed, called into question, quashed or invalidated in any court.

(5) Subsection (4) does not prevent a decision to give a witness identity protection certificate being called into question in the course of any proceedings of a disciplinary nature against the person who made the decision.

(6) A witness identity protection certificate purporting to be issued under subsection (1):

(a) must be taken to be such a certificate and to have been properly issued; and

(b) is prima facie evidence of the matters in the certificate.

(7) A witness identity protection certificate is not a legislative instrument.

15KJ  Statutory declaration by operative

(1) Before a witness identity protection certificate is given for an operative, the operative must make a statutory declaration of the following matters:

(a) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence; and

(b) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge; and

(c) if the operative is or was a law enforcement officer or an intelligence officer:

(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii) whether, to the operative's knowledge, any allegations of professional misconduct against him or her are outstanding and, if so, particulars of each allegation; and

(d) whether, to the operative's knowledge, a court has made any adverse comment about the operative's credibility and, if so, particulars of the comment; and

(e) whether the operative has made a false representation when the truth was required and, if so, particulars of the representation; and

(f) if there is anything else known to the operative that may be relevant to the operative's credibility--particulars of the thing.

(2) Subject to subsection (3), a person cannot be compelled to disclose or produce a statutory declaration made under this section in any proceeding.

(3) Subsection (2) does not apply to:

(a) proceedings for perjury or otherwise in respect of the falsity of the statutory declaration; or

(b) proceedings of a disciplinary nature against a law enforcement officer or an intelligence officer; or

(c) investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer or an intelligence officer.

15KK  Form of witness identity protection certificate

(1) A witness identity protection certificate for an operative in relation to a proceeding must state the following:

(a) if the operative:

(i) is known to a party to the proceeding or a party's lawyer by a name other than the operative's real name--that name (the assumed name); or

(ii) is not known to any party to the proceeding or any party's lawyer by a name--the operative's court name for the proceeding;

(b) the period the operative was involved in the investigation to which the proceeding relates;

(c) the name of the agency;

(d) the date of the certificate;

(e) the grounds for giving the certificate;

(f) whether the operative has been convicted or found guilty of an offence and, if so, particulars of each offence;

(g) whether any charges against the operative for an offence are pending or outstanding and, if so, particulars of each charge;

(h) if the operative is or was either a law enforcement officer or an intelligence officer:

(i) whether the operative has been found guilty of professional misconduct and, if so, particulars of each finding; and

(ii) whether any allegations of professional misconduct against the operative are outstanding and, if so, particulars of each allegation;

(i) whether, to the knowledge of the person giving the certificate, a court has made any adverse comment about the operative's credibility and, if so, particulars of the comment;

(j) whether, to the knowledge of the person giving the certificate, the operative has made a false representation when the truth was required and, if so, particulars of the representation;

(k) if there is anything else known to the person giving the certificate that may be relevant to the operative's credibility--particulars of the thing.

(2) A witness identity protection certificate for an operative must not contain information that may allow the operative's identity, or where the operative lives, to be revealed.

15KL  Filing and notification

(1) A witness identity protection certificate for an operative in relation to a proceeding must be filed in the court before the operative gives evidence in the proceeding.

(2) The person who files the certificate must give a copy of it to each party to the proceeding at least 14 days (or the shorter period agreed to by the party) before the day the operative is to give evidence.

(3) The court may order the person filing the certificate to give a copy of it to a person stated in the order.

(4) This section applies subject to section 15KM.

15KM  Leave for non-compliance

(1) The person who has filed, or proposes to file, a witness identity protection certificate may apply to the court for leave not to comply with one or more of the requirements of section 15KL.

(2) However, the court must not give such leave unless it is satisfied that it was not reasonably practicable to comply with the requirement or requirements of section 15KL in respect of which leave is sought.

(3) If the court gives leave under this section for a witness identity protection certificate not to be filed in accordance with 15KL(1), the witness identity protection certificate is taken to have been filed in accordance with that subsection.

Note: Provisions that are expressed to apply if a witness identity protection certificate is filed in a court will also have effect if such a certificate is taken to have been filed because of the operation of subsection (3).

15KN  Effect of witness identity protection certificate

(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.

(2) If this section applies:

(a) the operative may give evidence in the proceeding under the assumed name, or court name, stated in the certificate; and

(b) subject to section 15KQ:

(i) a question must not be asked of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; and

(ii) a witness, including the operative, cannot be required to (and must not) answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; and

(iii) a person involved in the proceeding must not make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.

(3) For the purposes of this section, a person involved in a proceeding includes:

(a) the court; and

(b) a party to the proceeding; and

(c) a person given leave to be heard or make submissions in the proceeding; and

(d) a lawyer representing a person referred to in paragraph (b) or (c) or a lawyer assisting the court in the proceeding; and

(e) any other officer of the court or person assisting the court in the proceeding; and

(f) a person acting in the execution of any process or the enforcement of any order in the proceeding.

15KO  Orders to protect operative's identity etc.

(1) The court in which a witness identity protection certificate is filed may make any order it considers necessary or desirable to protect the identity of the operative for whom the certificate is given or to prevent the disclosure of where the operative lives.

(2) A person commits an offence if:

(a) an order has been made under subsection (1); and

(b) the person engages in conduct; and

(c) the conduct contravenes the order.

Penalty: Imprisonment for 2 years.

(3) Subsection (2) does not limit the court's powers, including, but not limited to, the court's power to punish for contempt.

(4) The court must make an order suppressing the publication of anything said when an order is made as mentioned in subsection (1).

(5) To avoid doubt, subsection (4) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

15KP  Disclosure of operative's identity to presiding officer

(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.

(2) The presiding officer in the proceeding may require the operative to do one or both of the following:

(a) to disclose the operative's true identity to the presiding officer;

(b) to provide the presiding officer with photographic evidence of that identity.

15KQ  Disclosure of operative's identity etc. despite certificate

(1) This section applies if a witness identity protection certificate for an operative in relation to a proceeding is filed in a court.

(2) A party to the proceeding, or a lawyer assisting the court in the proceeding, may apply to the court:

(a) for leave:

(i) to ask a question of a witness, including the operative, that may lead to the disclosure of the operative's identity or where the operative lives; or

(ii) for a person involved in the proceeding to make a statement that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives; or

(b) for an order requiring a witness, including the operative, to answer a question, give evidence or provide information that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives.

(3) In this section:

person involved in the proceeding has the same meaning as in subsection 15KN(3).

(4) The court may do either or both of the following:

(a) give leave for the party or lawyer to do anything mentioned in paragraph (2)(a);

(b) make an order requiring a witness to do anything mentioned in paragraph (2)(b).

(5) However, the court must not give leave or make an order unless it is satisfied about each of the following:

(a) there is evidence that, if accepted, would substantially call into question the operative's credibility;

(b) it would be impractical to test properly the credibility of the operative without allowing the risk of disclosure of, or disclosing, the operative's identity or where the operative lives;

(c) it is in the interests of justice for the operative's credibility to be able to be tested.

(6) If there is a jury in the proceeding, the application must be heard in the absence of the jury.

(7) Unless the court considers that the interests of justice require otherwise, the court must be closed when:

(a) the application is made; and

(b) if leave is given or an order is made--the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

(8) The court must make an order suppressing the publication of anything said when:

(a) the application is made; and

(b) if leave is given or an order is made--the question is asked (and answered), the evidence is given, the information is provided or the statement is made.

(9) To avoid doubt, subsection (8) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

(10) The court may make any other order it considers appropriate to protect the operative's identity or to prevent the disclosure of where the operative lives.

(11) A person commits an offence if:

(a) an order has been made under subsection (8), (9) or (10); and

(b) the person engages in conduct; and

(c) the conduct contravenes the order.

Penalty: Imprisonment for 2 years.

(12) Subsection (11) does not limit the court's powers, including, but not limited to, the court's power to punish for contempt.

15KR  Application for leave--joinder as respondent

(1) This section applies if:

(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and

(b) a person applies:

(i) for leave under section 15KM or 15KQ; or

(ii) for an order under section 15KO or 15KQ.

(2) The court in which the application is pending may allow a person to join the application as a respondent if:

(a) the person is:

(i) the operative in relation to whom the witness identity protection certificate is given; or

(ii) the chief officer of the agency who gave the witness identity protection certificate; and

(b) the person applies to be joined to the application as a respondent; and

(c) the person has sufficient interest in the subject matter of the application.

(3) If a court allows a person to join the application as a respondent under subsection (2), the court must allow the person, or the person's legal representative, to appear and be heard.

15KS  Directions to jury

(1) This section applies if:

(a) a witness identity protection certificate for an operative in relation to a proceeding is filed in a court; and

(b) there is a jury in the proceeding; and

(c) the operative gives evidence.

(2) The court must (unless it considers it inappropriate) direct the jury not to give the operative's evidence any more or less weight, or draw any adverse inferences against the defendant or another party to the proceeding, because:

(a) there is a witness identity protection certificate for the operative; or

(b) the court has made an order under section 15KO or subsection 15KQ(8), (9) or (10).

15KT  Adjournment for appeal decision

(1) If a court gives leave under section 15KM or 15KQ or makes an order under section 15KO or 15KQ, a party may apply to the court for an adjournment of the proceeding to allow time for the party to:

(a) decide whether to appeal against the decision to grant leave or to give the order; and

(b) if the party decides to do so--make the appeal.

(2) If an application is made under this section, the court must grant the adjournment.

(3) A court that has jurisdiction to hear and determine appeals from a judgment, order or direction in the proceeding has jurisdiction to hear and determine any appeal under this section.

15KU  Witness identity protection certificate--cancellation

(1) This section applies if the chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

gives a witness identity protection certificate for an operative in relation to a proceeding.

(2) The chief officer must cancel the witness identity protection certificate if the chief officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative's identity or where the operative lives.

(3) If the chief officer cancels the certificate after it has been filed in a court, the chief officer must immediately give notice to the court and each party to the proceeding, in writing, that the certificate has been cancelled.

Note: The chief officer may delegate functions under this section--see section 15LA.

15KV  Permission to give information disclosing operative's identity etc.

(1) This section applies if the chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

gives a witness identity protection certificate for an operative in relation to a proceeding.

(2) The chief officer may, in writing, permit a person to give information (otherwise than in the proceeding) that discloses, or may lead to the disclosure of, the operative's identity or where the operative lives if the chief officer considers it necessary or appropriate for the information to be given.

(3) The permission:

(a) must name the person who may give the information; and

(b) must name the person to whom the information may be given; and

(c) must state the information that may be given; and

(d) may state how the information may be given.

Note: The chief officer may delegate functions under this section--see section 15LA.

15KW  Disclosure offences

(1) A person commits an offence if:

(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15KU; and

(c) the person engages in conduct; and

(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15KP;

(ii) the conduct is authorised by leave or by an order under section 15KQ;

(iii) the conduct is permitted under section 15KV.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15KU; and

(c) the person engages in conduct; and

(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15KP;

(ii) the conduct is authorised by leave or by an order under section 15KQ;

(iii) the conduct is permitted under section 15KV; and

(f) the person is reckless as to whether his or her conduct will endanger the health or safety of another person.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15KU; and

(c) the person engages in conduct; and

(d) the conduct results in the disclosure of the operative's identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15KP;

(ii) the conduct is authorised by leave or by an order under section 15KQ;

(iii) the conduct is permitted under section 15KV; and

(f) the person is reckless as to whether his or her conduct will prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity.

Penalty: Imprisonment for 10 years.

15KX  Evidentiary certificates

(1) A chief officer of a law enforcement agency or an intelligence agency may sign a certificate stating any of the following:

(a) that, for the purposes of paragraph 15KW(1)(b), (2)(b) or (3)(b), a witness identity protection certificate for an operative in relation to a proceeding has not been cancelled under section 15KU;

(b) whether, for the purposes of subparagraph 15KW(1)(e)(i), (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the offence was required by section 15KP;

(c) whether, for the purposes of subparagraph 15KW(1)(e)(ii), (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the offence was authorised by leave or by an order under section 15KQ;

(d) whether, for the purposes of subparagraph 15KW(1)(e)(iii), (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the offence was permitted under section 15KV.

(2) In any proceedings, a certificate given under this section is prima facie evidence of the matters certified in it.

15KY  Reports about witness identity protection certificates--law enforcement agencies

(1) As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit to the Minister a report about witness identity protection certificates given by the chief officer during that year.

(2) The report must include the following:

(a) the number of witness identity protection certificates given;

(b) on what basis the chief officer was satisfied about the matters mentioned in paragraph 15KI(1)(d) for each certificate;

(c) if disclosure of an operative's identity to a presiding officer was required by section 15KP--details of the proceeding in relation to which disclosure was required and details of the things that the presiding officer required the operative to do under that section;

(d) if leave was given or an order made under section 15KQ in a proceeding in which a witness identity protection certificate for an operative was filed--details of the proceeding that relate to the leave or order;

(e) if leave was given for joinder of a person as a respondent to proceedings under section 15KR--details of the person who was joined and who appeared on their behalf;

(f) if leave was given for an adjournment under section 15KT--details of whether an appeal was made against the decision under that section;

(g) if a witness identity protection certificate was cancelled under section 15KU--the reasons why the certificate was cancelled;

(h) if a permission was given under section 15KV--the reasons why the permission was given;

(i) any other information relating to witness identity protection certificates and the administration of this Part that the Minister considers appropriate.

(3) A report must not include information that discloses, or may lead to the disclosure of, an operative's identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.

(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

15KZ  Reports about witness identity protection certificates--intelligence agencies

(1) As soon as practicable after the end of each financial year, the chief officer of an intelligence agency must submit to the Inspector-General of Intelligence and Security a report about witness identity protection certificates given by the chief officer during that year.

(2) The report must include the following:

(a) the number of witness identity protection certificates given;

(b) on what basis the chief officer was satisfied about the matters mentioned in paragraph 15KI(1)(d) for each certificate;

(c) if disclosure of an operative's identity to a presiding officer was required by section 15KP--details of the proceeding in relation to which disclosure was required and details of the things that the presiding officer required the operative to do under that section;

(d) if leave was given or an order made under section 15KQ in a proceeding in which a witness identity protection certificate for an operative was filed--details of the proceeding that relate to the leave or order;

(e) if leave was given for joinder of a person as a respondent to proceedings under section 15KR--details of the person who was joined and who appeared on their behalf;

(f) if leave was given for an adjournment under section 15KT--details of whether an appeal was made against the decision under that section;

(g) if a witness identity protection certificate was cancelled under section 15KU--the reasons why the certificate was cancelled;

(h) if a permission was given under section 15KV--the reasons why the permission was given;

(i) any other information relating to witness identity protection certificates and the administration of this Part that the Inspector-General of Intelligence and Security considers appropriate.

Division 3--Mutual Recognition under Corresponding Laws

15L  Recognition of witness identity protection certificates under corresponding laws

The following provisions apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 15KI:

(a) section 15KL (filing and notification);

(b) section 15KM (leave for non-compliance);

(c) section 15KN (effect of witness identity protection certificate);

(d) section 15KO (orders to protect operative's identity etc.);

(e) section 15KP (disclosure of operative's identity to presiding officer);

(f) section 15KQ (disclosure of operative's identity etc. despite certificate);

(g) section 15KR (application for leave--joinder as respondent);

(h) section 15KS (directions to jury);

(i) section 15KT (adjournment for appeal decision);

(j) section 15KW (disclosure offences);

(k) section 15KX (evidentiary certificates).

Division 4--General

15LA  Delegation

(1) Except as provided by this section (and despite any other Act or law to the contrary), the functions of a chief officer under this Part may not be delegated to any other person.

(2) A chief officer may delegate any of the chief officer's functions under this Part (except this power of delegation) to a senior officer of the law enforcement agency or the intelligence agency (as the case may be).

(3) In this section:

senior officer means:

(a) in relation to the Australian Federal Police--a Deputy Commissioner, an Assistant Commissioner, or a person occupying an equivalent or higher rank in the Australian Federal Police; and

(b) in relation to the Australian Customs Service--a Deputy Chief Executive Officer of Customs, or a person occupying an equivalent or higher position in the Australian Customs Service; and

(c) in relation to the ACC, either of the following:

(i) the Director National Operations, or a person occupying an equivalent or higher position in the ACC;

(ii) a person at the rank prescribed by the regulations; and

(d) in relation to the Australian Taxation Office--an Assistant Commissioner, or a person occupying an equivalent or higher position in the Australian Taxation Office; and

(e) in relation to the Australian Security Intelligence Organisation--a Deputy Director-General of Security, or a person occupying an equivalent or higher position in the Australian Security Intelligence Organisation; and

(f) in relation to the Australian Secret Intelligence Service--a First Assistant Director-General of the Australian Security Intelligence Service, or a person occupying an equivalent or higher position in the Australian Secret Intelligence Service.

 

Schedule 2--Delayed notification search warrants

Crimes Act 1914

1  Subsection 3C(1)

Insert:

adjoining premises, in relation to particular premises, means premises adjoining or providing access to the premises.

2  Subsection 3C(1)

Insert:

adjoining premises occupier's notice has the meaning given by section 3SR.

3  Subsection 3C(1)

Insert:

delayed notification search warrant has the meaning given by section 3SA.

4  Subsection 3C(1)

Insert:

eligible issuing officer has the meaning given by section 3SA.

5  Subsection 3C(1)

Insert:

occupier's notice has the meaning given by section 3SQ.

6  Subsection 3C(1) (at the end of the definition of issuing officer)

Add:

Note: An eligible issuing officer authorised to consider an application for a warrant under Division 2 of this Part by section 3SG or 3SH is treated under those sections as an issuing officer for the purposes of considering such an application.

7  At the end of section 3C

Add:

(3) To avoid doubt, a reference to a search warrant in Division 2 does not include a reference to a delayed notification search warrant.

8  After Division 2 of Part IAA

Insert:

Division 2A--Delayed Notification Search Warrants

Subdivision 1--Preliminary

3SA  Definitions

(1) In this Division:

authorising agency, in relation to a delayed notification search warrant, means the agency the chief officer of which authorised the application for the warrant.

chief officer means:

(a) in relation to the Australian Federal Police--the Commissioner; or

(b) in relation to the police force or police service of a State or Territory--the Commissioner or a person of equivalent rank.

delayed notification search warrant means a warrant issued under section 3SI.

eligible issuing officer means:

(a) an eligible Judge within the meaning of section 3SB; or

(b) a nominated AAT member within the meaning of section 3SC.

executing officer, in relation to a delayed notification search warrant, means:

(a) the constable named in the warrant as being responsible for executing the warrant; or

(b) if the name of another constable has been inserted in the warrant by the constable referred to in paragraph (a)--that other constable.

inspecting officer has the meaning given by section 3SX.

nominated AAT member means a person in respect of whom a nomination under section 3SC is in force.

relevant offence means:

(a) a Commonwealth offence that is punishable on conviction by imprisonment for a period of 10 years or more; or

(b) a State offence that has a federal aspect that is punishable on conviction by imprisonment for a period of 10 years or more; or

(c) an offence against section 8 or 9 of the Crimes (Foreign Incursions and Recruitment) Act 1978; or

(d) an offence against section 20 or 21 of the Charter of the United Nations Act 1945; or

(e) an offence against subsection 147.2(1) or (3), section 270.7, or subsection 471.11(2) or 474.15(2) of the Criminal Code.

Note: State offence that has a federal aspect is defined in section 3AA.

remote application means an application referred to in section 3SF.

unsworn application means an application referred to in subsection 3SE(4).

(2) For the purposes of this Division, a reference to a State in the definition of State offence that has a federal aspect is taken to include a reference to a Territory.

(3) In this Division, a reference to the day on which a delayed notification search warrant was executed is a reference to the day on which the warrant premises were first entered under the warrant.

3SB  Eligible Judges

(1) In this section:

eligible Judge means a person in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is:

(a) a Judge of a court created by the Parliament; or

(b) a State or Territory Judge.

(2) A Judge may, by writing, consent to be declared an eligible Judge by the Minister under subsection (3).

(3) The Minister may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

(4) Any function or power conferred on the Judge under this Act is so conferred only in a personal capacity and not as a court or a member of a court.

(5) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

(6) An instrument declaring a Judge to be an eligible Judge is not a legislative instrument.

3SC  Nominated AAT members

(1) The Minister may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue delayed notification search warrants and perform related functions under this Act:

(a) Deputy President;

(b) full-time senior member;

(c) part-time senior member;

(d) member.

(2) Despite subsection (1), the Minister must not nominate a person who holds an appointment as a part-time senior member or a member of the Tribunal unless the person:

(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and

(b) has been so enrolled for not less than 5 years.

(3) A nomination ceases to have effect if:

(a) the nominated AAT member ceases to hold an appointment described in subsection (1); or

(b) the Minister, by writing, withdraws the nomination.

(4) A nominated AAT member has, in relation to the performance or exercise of a function or power conferred on a nominated AAT member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

Subdivision 2--Applications for delayed notification search warrants

3SD  Authorisation to apply for a delayed notification search warrant

(1) The chief officer of the Australian Federal Police may, in writing, authorise a constable who is a member or special member of the Australian Federal Police to apply for a delayed notification search warrant in respect of particular premises.

(2) The chief officer of the police force or police service of a State or Territory may, in writing, authorise a constable who is a member of that police force or police service to apply for a delayed notification search warrant in respect of particular premises.

(3) A chief officer may authorise an application for a delayed notification search warrant in respect of particular premises only if:

(a) the chief officer is satisfied that there are reasonable grounds to suspect:

(i) that one or more relevant offences have been, are being, are about to be or are likely to be committed; and

(ii) that entry and search of the premises will substantially assist in the prevention of, or investigation into, those offences; and

(b) the chief officer is satisfied that there are reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.

(4) The chief officer of Australian Federal Police or the police force or police service of a State or Territory may, by writing, delegate all or any of the chief officer's powers or functions under this Division to a member of the staff of the agency who is:

(a) in the case of the Australian Federal Police--a Deputy Commissioner, or a senior executive AFP employee or a person of equivalent or higher rank; or

(b) in the case of the police force or police service of a State or Territory--a person of an equivalent rank to, or a higher rank than, a person mentioned in paragraph (a).

(5) If the chief officer referred to in subsection (3) is the chief officer of a police force or police service of a State or Territory, the reference in that subsection to a relevant offence does not include a reference to a State offence that has a federal aspect.

3SE  Application for a delayed notification search warrant

(1) A constable may apply to an eligible issuing officer for a delayed notification search warrant in respect of particular premises if:

(a) the constable is authorised under section 3SD to apply for the warrant; and

(b) the constable suspects on reasonable grounds:

(i) that one or more relevant offences have been, are being, are about to be or are likely to be committed; and

(ii) that entry and search of the premises will substantially assist in the prevention of, or investigation into, those offences; and

(c) the constable believes on reasonable grounds that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.

(2) An application under subsection (1) must:

(a) be in writing (other than as mentioned in section 3SF); and

(b) specify the name of the applicant; and

(c) specify the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

(d) set out details or attach a copy of the authorisation given to the applicant under section 3SD; and

(e) specify the address, location or other description of the premises; and

(f) specify the proposed duration of the warrant (which must not be more than 30 days); and

(g) if it is proposed that adjoining premises be entered for the purpose of entering the premises, specify the address, location or other description of the adjoining premises; and

(h) include a description of the kinds of things (if any) that are proposed to be searched for, seized, copied, photographed, recorded, operated, printed, tested or sampled and a statement of whether things are to be placed in substitution for seized things; and

(i) subject to this section, be supported by an affidavit setting out the matters in subsection (3).

(3) An affidavit must:

(a) set out the grounds on which the warrant is sought; and

(b) if entry to adjoining premises is proposed, state the grounds on which such entry is proposed; and

(c) state whether, to the applicant's knowledge, an application in respect of the premises for a delayed notification search warrant or a search warrant under section 3E:

(i) has been refused within the period of 3 months before the date of the application, and if it has, the additional information that would justify issuing the warrant; or

(ii) has been granted during the period of 3 months before the date of the application.

(4) An application for a delayed notification search warrant may be made before an affidavit is prepared or sworn if the applicant believes:

(a) that it is impracticable for an affidavit to be prepared or sworn before the application is made; or

(b) that the delay that would occur if an affidavit were prepared or sworn before the application is made would frustrate the effective execution of the warrant.

(5) If subsection (4) applies, the applicant must:

(a) provide as much information as the eligible issuing officer considers is reasonably practicable in the circumstances; and

(b) not later than 72 hours after the making of the application, send a duly sworn affidavit to the eligible issuing officer, whether or not a delayed notification search warrant has been issued.

(6) An eligible issuing officer may request further information relating to an application for a delayed notification search warrant, and may require that an affidavit be prepared and sworn in relation to the further information.

3SF  Remote application

(1) If a constable believes that:

(a) it is impracticable for an application for a delayed notification search warrant to be made in person; or

(b) the delay that would occur if an application were made in person would frustrate the effective execution of the warrant;

the application may be made under section 3SE by telephone, fax, email or other electronic means.

(2) If transmission by fax is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, whether sworn or unsworn, to the eligible issuing officer who is to determine the application.

(3) A remote application must include all information required to be provided in an application made in person for a delayed notification search warrant, but the application may, if necessary, be made before an affidavit is sworn.

(4) If an application for a delayed notification search warrant is a remote application, the eligible issuing officer:

(a) may require communication by voice to the extent that it is practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such communication by voice.

3SG  Application under section 3E for search warrant

(1) This section applies if an application has been made to an eligible issuing officer for a delayed notification search warrant:

(a) in respect of particular premises; and

(b) in relation to one or more relevant offences.

(2) A constable may, at the same time or subsequently, make an application under section 3E to the eligible issuing officer for a warrant to search those premises or other premises for evidential material relating to the relevant offences or to other offences connected to the relevant offence.

(3) The eligible issuing officer may consider and deal with the application under Division 2 as if the eligible issuing officer were an issuing officer within the meaning of section 3C.

3SH  Issue of search warrant under section 3E instead of delayed notification search warrant

(1) This section applies if:

(a) a constable makes an application to an eligible issuing officer for a delayed notification search warrant:

(i) in respect of particular premises; and

(ii) in relation to one or more relevant offences; and

(b) the eligible issuing officer is not satisfied that a delayed notification search warrant in respect of the premises should be issued.

(2) The eligible issuing officer may:

(a) treat the application for the delayed notification search warrant as an application under section 3E for a warrant to search the premises for evidential material relating to the relevant offences, even if such an application has not been made; and

(b) consider and deal with the application under Division 2:

(i) as if the application had been validly made under section 3E; and

(ii) as if the eligible issuing officer were an issuing officer within the meaning of section 3C.

Subdivision 3--Issue and execution of delayed notification search warrants

3SI  Issue of delayed notification search warrant

(1) An eligible issuing officer may issue a delayed notification search warrant if the eligible issuing officer is satisfied that:

(a) there are reasonable grounds for the suspicion and belief referred to subsection 3SE(1); and

(b) in the case of an unsworn application:

(i) that it would have been impracticable for an affidavit to be prepared or sworn before the application was made; or

(ii) that the delay that would have occurred if an affidavit had been prepared or sworn before the application was made would have frustrated the effective execution of the warrant; and

(c) in the case of a remote application--that it would have been impracticable for the application to have been made in person, or that the delay that would have occurred if an application had been made in person would have frustrated the effective execution of the warrant.

(2) In determining whether a delayed notification search warrant should be issued, an eligible issuing officer must have regard to the following:

(a) the extent to which the exercise of the powers under the warrant would assist the prevention of, or investigation into, the relevant offences to which the application for the warrant relates;

(b) the existence of alternative means of obtaining the evidence or information sought to be obtained;

(c) the extent to which the privacy of any person is likely to be affected;

(d) the nature and seriousness of the relevant offences to which the warrant relates;

(e) if it is proposed that adjoining premises be entered for the purpose of entering the premises that are the subject of the application--whether allowing entry to the adjoining premises is reasonably necessary:

(i) to enable entry to the premises that are the subject of the application; and

(ii) to avoid compromising the investigation of the relevant offences to which the warrant relates;

(f) any conditions to which the warrant should be subject;

(g) the outcome of any previous application in respect of the premises for a delayed notification search warrant or a search warrant under section 3E, so far as this is known to the eligible issuing officer.

(3) An eligible issuing officer other than a State or Territory judge may issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory.

(4) An eligible issuing officer who is a State or Territory judge may issue a delayed notification search warrant only in relation to premises located in that State or Territory.

3SJ  Contents of delayed notification search warrant

(1) A delayed notification search warrant must specify the following:

(a) the name of the applicant;

(b) the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant;

(c) the address, location or other description of the warrant premises;

(d) the relevant offences to which the warrant relates;

(e) whether the warrant authorises the entry of premises that adjoin or provide access to the warrant premises;

(f) the name of the occupiers of the warrant premises, if known;

(g) the date on which the warrant is issued;

(h) the date on which the warrant expires (which must not be more than 30 days after the day on which the warrant is issued);

(i) a description of the kinds of things that are proposed to be searched for, seized, copied, photographed, recorded, operated, printed, tested or sampled and a statement of whether a thing may be placed in substitution for a seized thing;

(j) whether the warrant authorises the re-entry of the warrant premises to return any thing to the premises, or to retrieve any thing substituted at the premises and, if it does so, a statement that the re-entry must be within 7 days of the day on which the warrant was executed;

(k) any conditions to which the warrant is subject;

(l) that the eligible issuing officer is satisfied of the matters referred to in subsection 3SI(1), and has had regard to the matters referred to in subsection 3SI(2).

(2) A warrant must be signed by the eligible issuing officer and include his or her name.

3SK  Formal requirements relating to remote applications

(1) If an eligible issuing officer decides to issue a delayed notification search warrant under section 3SI and the application was a remote application, the eligible issuing officer is to:

(a) inform the applicant, by telephone, fax, email or other electronic means, of the terms of the warrant and the day on which and the time at which it was signed; and

(b) give the warrant to the applicant while retaining a copy of the warrant for the eligible issuing officer's own records.

(2) The applicant must then complete a form of delayed notification search warrant in terms substantially corresponding to those given by the eligible issuing officer, stating on the form the name of the eligible issuing officer and the day on which and the time at which the warrant was signed.

(3) The applicant must, not later than the day after the day of expiry of the delayed notification search warrant or the day after the day on which the warrant was executed, whichever is the earlier, give or transmit to the eligible issuing officer the form of warrant completed by the applicant.

(4) The eligible issuing officer is to attach to the form of warrant provided under subsection (3) the copy of warrant retained by the eligible issuing officer.

(5) If:

(a) it is material, in any proceedings, for a court to be satisfied that the exercise of a power under a warrant issued as mentioned in this section was duly authorised; and

(b) the form of warrant signed by the eligible issuing officer is not produced in evidence;

the court is to assume, unless the contrary is proved, that the exercise of the power was not duly authorised.

3SL  What is authorised by a delayed notification search warrant

(1) A delayed notification search warrant authorises an executing officer or a constable assisting to do the following under the warrant:

(a) to enter the warrant premises without the knowledge of any occupier of the premises;

(b) to impersonate another person for the purposes of executing the warrant;

(c) to search the warrant premises for the kinds of things (if any) specified in the warrant;

(d) to seize any thing of a kind specified in the warrant;

(e) to seize any other relevant thing found in the course of the search, if the executing officer believes on reasonable grounds that the seizure of the thing is necessary to prevent its concealment, loss, destruction or use in committing any offence;

(f) to seize other things found in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be seizable items;

(g) to search for and record fingerprints found at the premises and to take samples of things found at the premises for forensic purposes;

(h) if specified in the warrant--to replace a thing seized with a substitute;

(i) to copy, photograph or otherwise record a thing of a kind specified in the warrant, and any other relevant thing that the executing officer or the constable assisting finds in the course of executing the warrant;

(j) to operate, print, test or sample a thing of a kind specified in the warrant and any other relevant thing that the executing officer or the constable assisting finds in the course of executing the warrant at the warrant premises;

(k) if specified in the warrant--to re-enter the warrant premises, within 7 days of the day on which the warrant was executed, to return any thing seized from the premises, or to retrieve any thing substituted at the premises.

(2) In this section:

relevant thing means a thing that an executing officer or a constable assisting believes on reasonable grounds to be:

(a) evidential material in relation to a relevant offence to which the delayed notification search warrant concerned relates; or

(b) evidential material in relation to another offence that is an indictable offence.

(3) If things are seized under a warrant, the warrant authorises the executing officer to make the things available to officers of other agencies if it is necessary to do so for the purpose of investigating or prosecuting an indictable offence to which the things relate.

3SM  Specific powers available to constables executing warrant

(1) In executing a delayed notification search warrant, the executing officer or a constable assisting may, for a purpose incidental to the execution of the warrant, take photographs (including video recordings) of the warrant premises or of things at the warrant premises.

(2) If a delayed notification search warrant is being executed, the executing officer and the constable assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the warrant premises for not more than one hour.

(3) If:

(a) the execution of a delayed notification search warrant is stopped by an order of a court; and

(b) the order is later revoked or reversed on appeal; and

(c) the warrant is still in force;

the execution of the warrant may be completed.

3SN  Executing a warrant--assistance, use of force and related matters

(1) In executing a delayed notification search warrant:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant, may use such force against persons and things; and

(c) a person who is not a constable and who has been authorised to assist in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

(2) At any time when an executing officer or a constable assisting is at warrant premises or adjoining premises under a delayed notification search warrant, the executing officer must have in his or her possession, or be in a position to produce without delay:

(a) a copy of the warrant; or

(b) if the warrant was issued as a result of a remote application--a copy of the form of warrant prepared in accordance with subsection 3SK(2).

(3) To avoid doubt, subsection (2) does not require the executing officer or the constable assisting to produce a copy of the warrant or the form of warrant.

3SO  Use of equipment to examine or process things

(1) In executing a delayed notification search warrant, the executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises.

(2) The executing officer or a constable assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises, if the executing officer or constable believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damage to the equipment or the thing.

3SP  Use of electronic equipment at warrant premises

(1) In executing a delayed notification search warrant, the executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the warrant premises) if he or she believes on reasonable grounds that the equipment can be operated without damaging it.

(2) If the executing officer or constable assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute evidential material, he or she may copy the data to a disk, tape or other associated device brought to the premises and take the device from the warrant premises.

(3) If:

(a) the executing officer or constable assisting takes the device from the warrant premises; and

(b) the chief officer of the authorising agency in relation to the delayed notification search warrant is satisfied that the data is not required (or is no longer required) for:

(i) investigating an offence against the law of the Commonwealth, a State or a Territory; or

(ii) judicial proceedings or administrative review proceedings; or

(iii) investigating or resolving a complaint against the executing officer or a constable assisting;

the chief officer must arrange for:

(c) the removal of the data from any device in the control of the authorising agency; and

(d) the destruction of any other reproduction of the data in the control of the authorising agency.

(4) If the executing officer or a constable assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated device; or

(b) if the material can, by using facilities at the warrant premises, be put in documentary form--operate the facilities to put the material in that form and seize the documents so produced.

(5) A constable may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the material in documentary form as mentioned in paragraph (4)(b); or

(b) possession by the occupier of the equipment could constitute an offence.

(6) Section 3M applies to damage to electronic equipment that occurs as a result of the operation of this section in the same way as it applies to damage to electronic equipment that occurs as a result of the operation of sections 3K and 3L.

Subdivision 4--Notice to occupiers

3SQ  Occupier's notice must be prepared

(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must prepare a notice (an occupier's notice) under this section in relation to the warrant if the premises were entered under the warrant.

Note: Section 3SS specifies the period within which an occupier's notice must be given.

(2) An occupier's notice in relation to a delayed notification search warrant must:

(a) specify the name of the authorising agency in relation to the warrant; and

(b) specify the date on which the warrant was issued; and

(c) specify the date on which the warrant was executed; and

(d) specify the address, location or other description of the warrant premises; and

(e) specify the number of constables and constables assisting who entered the warrant premises for the purposes of executing, or assisting in the execution of, the warrant; and

(f) include a summary of:

(i) the nature of the warrant (including a statement of the grounds on which a delayed notification search warrant may be issued); and

(ii) the things authorised by, and done under, the warrant; and

(g) describe any thing seized from the warrant premises and state whether a thing was placed in substitution for the seized thing; and

(h) state whether any thing was returned to, or retrieved from, the warrant premises and the date on which this occurred.

(3) A person who prepares an occupier's notice under subsection (1) in relation to a delayed notification search warrant must give the occupier's notice and a copy of the warrant to the person who was the occupier of the warrant premises at the time the delayed notification search warrant was executed.

(4) If the person cannot ascertain the identity of the occupier of the warrant premises at the time the delayed notification search warrant was executed, or the occupier's whereabouts are unknown to the person, the person must report back to the eligible issuing officer who issued the warrant, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.

3SR  Adjoining premises occupier's notice must be prepared

(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must prepare a notice (an adjoining premises occupier's notice) under this section if adjoining premises were entered for the purpose of entering the warrant premises.

Note: Section 3SS specifies the period within which an adjoining premises occupier's notice must be given.

(2) An adjoining premises occupier's notice in relation to a delayed notification search warrant must specify the following:

(a) the name of the authorising agency in relation to the warrant;

(b) the date on which the warrant was issued;

(c) the date on which the warrant was executed;

(d) the address, location or other description of the warrant premises;

(e) the address, location or other description of the adjoining premises.

(3) A person who prepares an adjoining premises occupier's notice under subsection (1) in relation to a delayed notification search warrant must give the notice and a copy of the warrant to the person who was the occupier of the adjoining premises at the time the delayed notification search warrant was executed.

(4) If the person cannot ascertain the identity of the occupier of the adjoining premises at the time the delayed notification search warrant was executed, or the occupier's whereabouts are unknown to the person, the person must report back to the eligible issuing officer who issued the warrant, and the eligible issuing officer may give such directions as the eligible issuing officer thinks fit.

3SS  Period for giving an occupiers or adjoining premises occupier's notice

(1) This section applies if an occupier's notice or an adjoining premises occupier's notice is prepared in relation to a delayed notification search warrant.

(2) The notice must be given within the period ending 6 months after the day on which the warrant was executed, unless the period is extended under subsection (4).

(3) The chief officer of the authorising agency in relation to the delayed notification search warrant may, in writing, authorise a constable to apply to an eligible issuing officer for an extension of the period within which the notice must be given.

(4) An eligible issuing officer may, on application by a constable authorised as mentioned in subsection (3), extend the period within which the notice may be given if the eligible issuing officer is satisfied that there are reasonable grounds for doing so.

(5) An eligible issuing officer may extend the period within which the notice may be given on more than one occasion, but:

(a) must not extend the period by more than 6 months on any one occasion; and

(b) must not extend the period in such a way that the notice is required to be given later than 18 months after the day on which the delayed notification search warrant was executed, unless:

(i) the Minister has issued a certificate approving an application for such longer period; and

(ii) the eligible issuing officer is satisfied that there are exceptional circumstances justifying such longer period.

Subdivision 5--Reporting and record-keeping

3ST  Reporting on delayed notification search warrants

(1) The executing officer in relation to a delayed notification search warrant, or the applicant for the warrant, must give a report on the warrant to the chief officer who authorised the application for the warrant.

(2) The report must be given to the chief officer as soon as practicable after:

(a) the day on which the delayed notification search warrant was executed; or

(b) if the warrant was not executed--the expiry of the warrant.

(3) The report must state the following:

(a) the address, location or other description of the warrant premises;

(b) whether or not the delayed notification search warrant was executed;

(c) whether the application was made in person or by telephone, fax, email or other electronic means.

(4) If the delayed notification search warrant was executed, the report must include the following information:

(a) the date on which the warrant was executed;

(b) the name of the executing officer;

(c) the name of any constable assisting and the kind of assistance provided;

(d) the name of the occupier of the warrant premises, if known to the executing officer;

(e) whether adjoining premises were entered under the warrant and, if they were, the name of the occupier of the adjoining premises, if known to the executing officer;

(f) the things that were done under the warrant;

(g) details of any thing at the warrant premises:

(i) seized; or

(ii) replaced with a substitute; or

(iii) copied, photographed or otherwise recorded; or

(iv) operated, printed, tested or sampled;

(h) whether or not the execution of the warrant assisted in the prevention of, or investigation into, a relevant offence;

(i) details of compliance with any conditions to which the warrant was subject;

(j) details of any occupier's notice given in relation to the warrant;

(k) details of any adjoining premises occupier's notice given in relation to the warrant;

(l) details of any direction given under section 3SQ(4) or 3SR(4) in relation to the warrant.

(5) If the delayed notification search warrant was not executed, the report must state the reason why it was not executed.

(6) If the warrant premises were entered after the delayed notification search warrant was executed for the purpose of returning a thing to, or retrieving a thing left at, the warrant premises, a report in relation to that entry must be provided to the chief officer who authorised the application for the warrant. The report must include the following information:

(a) the address, location or other description of the warrant premises;

(b) the date on which the warrant premises were entered for the purpose;

(c) the name of each constable and constable assisting who entered the warrant premises;

(d) details of the thing returned or retrieved;

(e) if the thing was not returned or retrieved--the reason why the thing was not returned or removed.

(7) A report under subsection (6) must be given as soon as practicable after the warrant premises were entered as mentioned in that subsection.

3SU  Annual reports to Minister

(1) The chief officer of an authorising agency must give a report to the Minister that includes the following information in respect of each financial year:

(a) the number of applications for delayed notification search warrants made in person by constables of the authorising agency;

(b) the number of applications for delayed notification search warrants made by telephone, fax, email or other electronic means by constables of the authorising agency;

(c) the number of delayed notification search warrants issued as a result of applications referred to in paragraphs (a) and (b) and the relevant offences to which they related;

(d) the number of delayed notification search warrants that were executed by a constable of the authorising agency;

(e) the number of delayed notification search warrants that were executed by a constable of the authorising agency under which:

(i) one or more things were seized from the warrant premises; or

(ii) one or more things were placed in substitution at the warrant premises for a seized thing; or

(iii) one or more things were returned to, or retrieved from, the warrant premises; or

(iv) one or more things were copied, photographed or otherwise recorded at the warrant premises; or

(v) things were operated, printed, tested or sampled at the warrant premises;

(f) any other information relating to delayed notification search warrants and the administration of this Division that the Minister considers appropriate.

(2) The report must be given to the Minister as soon as practicable after the end of each financial year, and in any event within 3 months after the end of the financial year.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

3SV  Keeping documents connected with delayed notification search warrants

The chief officer of an authorising agency must cause the following to be kept:

(a) a copy of each authorisation issued by the chief officer under section 3SD;

(b) a copy of each application for a delayed notification search warrant made by a constable of the authorising agency, and a statement of whether or not the application was granted or refused;

(c) each delayed notification search warrant issued to a constable of the authorising agency;

(d) a copy of each occupier's notice issued by an applicant or an executing officer who is a constable of the authorising agency, and each direction issued under subsection 3SQ(4) or 3SR(5) in relation to a delayed notification search warrant issued as a result of an application made by a constable of the authorising agency;

(e) a copy of each authorisation given by the chief officer under subsection 3SS(3);

(f) a copy of each application for an extension of time within which an occupier's notice or an adjoining premises occupier's notice may be given;

(g) a copy of each extension under subsection 3SS(4) of the period within which an occupier's notice or an adjoining premises occupier's notice is to be given by an applicant or an executing officer who is a constable of the authorising agency;

(h) a copy of each adjoining premises occupier's notice issued by an applicant or an executing officer who is a constable of the authorising agency;

(i) each report given to the chief officer under section 3ST.

3SW  Register of delayed notification search warrants

(1) The chief officer of an authorising agency must cause a register of delayed notification search warrants to be kept.

(2) The register is to specify, for each delayed notification search warrant sought by, or on behalf of, a constable of the authorising agency:

(a) the date the warrant was issued or refused; and

(b) the name of the eligible issuing officer who issued or refused to issue the warrant; and

(c) if the warrant was issued:

(i) the name of the applicant for the warrant and the executing officer; and

(ii) the relevant offence in relation to which the warrant was issued; and

(iii) if the warrant was executed--the date on which the warrant was executed; and

(iv) the period of effect of the warrant; and

(v) whether an occupier's notice has been given in relation to the warrant and, if such a notice has been given, the date on which it was given; and

(vi) if the warrant authorised entry to adjoining premises--whether an adjoining premises occupier's notice has been given and, if such a notice has been given, the date on which it was given; and

(vii) whether an extension has been granted of the period within which an occupier's notice or an adjoining premises occupier's notice must be given, and the period of any such extension or extensions; and

(viii) details of any direction given under section 3SQ(4) or 3SR(4) in relation to the warrant.

(3) The register is not a legislative instrument.

Subdivision 6--Inspections by Ombudsman

3SX  Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman's staff to be inspecting officers for the purposes of this Part.

(2) An appointment under subsection (1) must be in writing.

3SY  Inspection of records by the Ombudsman

(1) The Ombudsman must, from time to time and at least once every 12 months, inspect the records of each authorising agency to determine the extent of compliance with this Division by the authorising agency and constables of the agency in relation to delayed notification search warrants.

(2) For the purpose of an inspection under this section, the Ombudsman:

(a) may, after notifying the chief officer of the authorising agency, enter at any reasonable time premises occupied by the agency; and

(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and

(c) may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information that is in the member's possession, or to which the member has access, and that is relevant to the inspection.

(3) The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

(4) The Ombudsman may refrain from inspecting any records of the agency concerned that are relevant to the obtaining or execution of a delayed notification search warrant until after an occupier's notice has been given in relation to the warrant.

3SZ  Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a law enforcement officer is able to give information relevant to an inspection under this Division of an authorising agency's records, subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the law enforcement officer, require the law enforcement officer to give the information to the Ombudsman:

(a) by writing signed by the law enforcement officer; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the law enforcement officer, require the officer to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

(c) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a law enforcement officer of an authorising agency is able to give information relevant to an inspection under this Division of an authorising agency's records; and

(b) does not know the law enforcement officer's identity;

the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:

(c) before a specified inspecting officer; and

(d) at a specified place; and

(e) within a specified period or at a specified time on a specified day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a requirement under this section, must be reasonable having regard to the circumstances in which the requirement is made.

(6) In this section:

law enforcement officer means:

(a) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or

(b) a member of the police force or police service of a State or Territory.

3SZA  Offence

A person commits an offence if:

(a) the person is required under section 3SZ to attend before another person, to give information or to answer questions; and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

3SZB  Ombudsman to be given information and access despite other laws

(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

(c) might tend to incriminate the person or make the person liable to a penalty; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister, a Department or a prescribed authority;

(ii) a communication between an officer of a Department or of a prescribed authority and another person or body, being a communication protected against disclosure by legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 3SZG or against Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in section 3SZG or any other law prevents a law enforcement officer or a member of staff of an authorising agency from:

(a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

(b) giving access to a record of the authorising agency to an inspecting officer;

for the purposes of an inspection under this Division of the authorising agency's records.

(4) Nothing in section 3SZG or any other law prevents a law enforcement officer or a member of staff of an authorising agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).

(5) The fact that a person is not excused under subsection (1) from furnishing information, producing a document or other record or answering a question does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or other record or answer.

(6) In this section:

prescribed authority has the same meaning as in the Ombudsman Act 1976.

3SZC  Exchange of information between Ombudsman and State inspecting authorities

(1) In this section:

State or Territory agency means the police force or police service of a State or Territory.

State or Territory inspecting authority, in relation to a State or Territory agency, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 3SY.

(2) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the agency.

(3) The Ombudsman may only give information to an authority under subsection (2) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State or Territory agency.

(4) The Ombudsman may receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman's functions under this Division.

3SZD  Delegation by Ombudsman

(1) The Ombudsman may delegate:

(a) to an APS employee responsible to the Ombudsman; or

(b) to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person;

all or any of the Ombudsman's powers under this Division other than a power to report to the Minister.

(2) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

3SZE  Ombudsman not to be sued

(1) The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Division.

(2) A reference in this section to the Ombudsman includes a reference to a Deputy Ombudsman or a delegate of the Ombudsman.

3SZF  Report on inspection

(1) The Ombudsman must make a written report to the Minister at 6 monthly intervals on the results of each inspection under section 3SY.

(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

Subdivision 7--Offence relating to unauthorised disclosure

3SZG  Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to:

(i) an application for a delayed notification search warrant; or

(ii) the execution of a delayed notification search warrant; or

(iii) a report under section 3ST; or

(iv) an occupier's notice or an adjoining premises occupier's notice in relation to warrant premises, or adjoining premises, as the case requires, entered under a delayed notification search warrant.

Penalty: Imprisonment for 2 years.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is in connection with the administration or execution of this Part; or

(b) the disclosure is for the purposes of any legal proceeding arising out of or otherwise related to this Part or of any report of any such proceedings; or

(c) the disclosure is in accordance with any requirement imposed by law; or

(d) the disclosure is for the purposes of:

(i) the performance of duties or functions or the exercise of powers under or in relation to this Part; or

(ii) the performance of duties or functions or the exercise of powers by a law enforcement officer or an intelligence officer; or

(e) an occupier's notice or an adjoining premises occupier's notice has been given to the occupier of the warrant premises, or of the adjoining premises, as the case requires, entered under the delayed notification search warrant; or

(f) a direction has been given under subsection 3SQ(4) or 3SR(4) in respect of the warrant premises or the adjoining premises.

Note: A defendant bears an evidential burden in relation to a matter in subsection (2)--see subsection 13.3(3) of the Criminal Code.

9  At the end of section 3ZS

Add:

(3) This section does not apply to a delayed notification search warrant.

10  Paragraph 3ZU(a)

Omit "section 3R", insert "section 3R or 3SF (an applicable section)".

11  Paragraphs 3ZU(b), (c) and (d)

Omit "warrant under that section", insert "warrant under an applicable section".

12  At the end of section 3ZV

Add:

(3) Nothing in this section requires a thing seized under a delayed notification search warrant to be returned until after an occupier's notice has been given in relation to the premises from which the thing was seized.

 

Schedule 3--Amendment of the Australian Crime Commission Act 2002

1  Subsection 4(1)

Insert:

constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State.

2 Subsection 4(1)

Insert:

conveyance includes an aircraft, vehicle or vessel.

3  Subsection 4(1) (definition of eligible person)

Repeal the definition, substitute:

eligible person means a member of the staff of the ACC who is also a member of:

(a) the Australian Federal Police; or

(b) the police force or police service of a State.

4  Subsection 4(1)

Insert:

executing officer, in relation to a warrant issued under section 22, means:

(a) the person named in the warrant by the issuing officer under paragraph 22(5)(e) as being responsible for executing the warrant; or

(b) another person whose name has been inserted in the warrant by, or on behalf of, the person mentioned in paragraph (a).

5  Subsection 4(1)

Insert:

frisk search means:

(a) a search of a person conducted by quickly running the hands over the person's outer garments; and

(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

6  Subsection 4(1) (at the end of the definition of intelligence operation)

Add "and, to avoid doubt, may involve the investigation of matters relating to federally relevant criminal activity".

7  Subsection 4(1) (at the end of the definition of issuing officer)

Add:

; or (d) a Magistrate.

8  Subsection 4(1)

Insert:

ordinary search means a search of a person or of articles in the possession of a person that may include:

(a) requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and

(b) an examination of those items.

9  Subsection 4(1)

Insert:

premises includes a place and a conveyance.

10  Subsection 4(1)

Insert:

seizable item means anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

11  Subsection 4(1)

Insert:

relevant thing means a thing of a particular kind that is connected with a special ACC operation/investigation and includes (but is not limited to) each of the following:

(a) a document;

(b) a thing in electronic form;

(c) a thing that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the Commonwealth, of a State or of a Territory, of civil remedies in respect of a matter connected with, or arising out of, an offence to which the special ACC operation/investigation relates.

12  Subsection 4(1)

Insert:

warrant premises means premises in relation to which a warrant under section 22 is in force.

13  Subsection 4A(6) (at the end of the definition of intelligence operation)

Add "and, to avoid doubt, may involve the investigation of matters relating to a relevant criminal activity".

14  After section 21

Insert:

Division 1B--Search warrants

15  Paragraph 22(1)(a)

Repeal the paragraph, substitute:

(a) the eligible person has reasonable grounds for suspecting that, on a particular day, there may be upon or in any premises a relevant thing; and

(ba) the particular day is:

(i) the day on which the application is made; or

(ii) a day within one month after the day on which the application is made; and

16  Subsection 22(2)

Repeal the subsection, substitute:

(2) Where an application under subsection (1) is made to an issuing officer, the issuing officer may issue a warrant authorising the executing officer to do one or more of the following:

(a) enter upon or into the warrant premises;

(b) search the warrant premises for relevant things;

(c) seize any relevant things found upon or in the warrant premises and deliver things so seized to any person participating in the special ACC operation/investigation;

(d) conduct an ordinary search or a frisk search of a person who is at or near the warrant premises when the warrant is executed if the executing officer suspects on reasonable grounds that the person has any relevant thing or seizable item in his or her possession.

17  Paragraph 22(5)(a)

Omit "and with which the things of the relevant kind", substitute "with which the relevant things".

18  At the end of paragraphs 22(5)(a) and (b)

Add "and".

19  At the end of subsection 22(5)

Add:

; and (e) state the name of the person who, unless he or she inserts, or permits the insertion of, the name of another person in the warrant, is to be responsible for executing the warrant.

20  Subsection 22(6)

Repeal the subsection, substitute:

(6) A warrant issued under this section may be executed, in accordance with its terms, at any time during the period:

(a) commencing on the particular day mentioned in paragraph (1)(a); and

(b) ending on the date specified in the warrant as the date upon which the warrant ceases to have effect.

21  Subsection 22(6A)

Repeal the subsection.

22  Subsection 22(7)

Omit "of the relevant kind, the person executing the warrant", substitute "relevant to a special ACC operation/investigation, the executing officer or a person assisting".

23  Paragraph 22(8)(b)

Omit all the words after "the Attorney-General of the Commonwealth", substitute "or another person or body in accordance with subsection 12(1) or (1A)".

24  Subsections 22(11) and (13)

Repeal the subsections.

25  After section 22

Insert:

22A  Issue of search warrants

(1) An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises in the Jervis Bay Territory.

(2) An issuing officer in a State or in the Jervis Bay Territory may:

(a) issue a warrant in relation to premises in that State or Territory; or

(b) issue a warrant in relation to premises in an external Territory; or

(c) if the issuing officer is in a State--issue a warrant in relation to premises in another State or the Jervis Bay Territory if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

(d) if the issuing officer is in the Jervis Bay Territory--issue a warrant in relation to premises in a State if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate.

26  After section 23

Insert:

23A  Availability of assistance and use of force in executing a warrant

In executing a warrant issued under section 22:

(a) the executing officer may obtain such assistance; and

(b) the executing officer, or a person who is a constable and who is assisting in executing the warrant, may use such force against persons and things; and

(c) a person who is not a constable and who is assisting in executing the warrant may use such force against things;

as is necessary and reasonable in the circumstances.

23B  Details of warrant to be given to occupier etc.

(1) If a warrant issued under section 22 is being executed and the occupier of the warrant premises, or another person who apparently represents the occupier, is present at the warrant premises, the executing officer or a person assisting must make available to that person a copy of the warrant.

(2) The executing officer or a person assisting must show a copy of the warrant to any person searched under the warrant.

(3) The executing officer must identify himself or herself to the person at the warrant premises or the person being searched, as the case may be.

(4) The copy of the warrant referred to in subsection (1) need not include the signature of the issuing officer.

23C  Specific powers available to executing officer

(1) In executing a warrant issued under section 22, the executing officer or a person assisting may:

(a) for a purpose incidental to the execution of the warrant; or

(b) if the occupier of the premises consents in writing;

take photographs (including video recordings) of the premises or of things at the premises.

(2) If a warrant issued under section 22 is being executed, the executing officer and the persons assisting may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily cease its execution and leave the premises:

(a) for not more than one hour; or

(b) for a longer period if the occupier of the premises consents in writing.

(3) If:

(a) the execution of a warrant is stopped by an order of a court; and

(b) the order is later revoked or reversed on appeal; and

(c) the warrant is still in force;

the execution of the warrant may be completed.

23D  Use of equipment to examine or process things

(1) The executing officer or a person assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the warrant premises in order to determine whether it is a relevant thing.

(2) A thing found at the warrant premises may be moved to another place for examination or processing in order to determine whether it is a relevant thing if:

(a) both of the following apply:

(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;

(ii) there are reasonable grounds to believe that the thing contains or constitutes a relevant thing; or

(b) the occupier of the warrant premises consents in writing.

(3) If a thing is moved to another place for the purpose of examination or processing under subsection (2), the executing officer must, if it is practicable to do so:

(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and

(b) allow the occupier or his or her representative to be present during the examination or processing.

(4) The thing may be moved to another place for examination or processing for no longer than 72 hours.

(5) An executing officer may apply to an issuing officer for one or more extensions of that time if the executing officer believes on reasonable grounds that the thing cannot be examined or processed within 72 hours or that time as previously extended.

(6) The executing officer must give notice of the application to the occupier of the warrant premises, and the occupier is entitled to be heard in relation to the application.

(7) The executing officer or a person assisting may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the warrant premises in order to determine whether it is a relevant thing if the executing officer or person assisting believes on reasonable grounds that:

(a) the equipment is suitable for the examination or processing; and

(b) the examination or processing can be carried out without damage to the equipment or the thing.

23E  Use of electronic equipment at warrant premises

(1) The executing officer or a person assisting may operate electronic equipment at the warrant premises to access data (including data not held at the warrant premises) if he or she believes on reasonable grounds that:

(a) the data might constitute a relevant thing; and

(b) the equipment can be operated without damaging the relevant thing.

Note: An executing officer can obtain an order requiring a person with knowledge of a computer or computer system to provide assistance--see section 23F.

(2) If the executing officer or a person assisting believes on reasonable grounds that any data accessed by operating the electronic equipment might constitute a relevant thing, he or she may:

(a) copy the data to a disk, tape or other associated device brought to the warrant premises; or

(b) if the occupier of the warrant premises agrees in writing--copy the data to a disk, tape or other associated device at the warrant premises;

and take the device from the warrant premises.

(3) If:

(a) the executing officer or a person assisting takes the device from the warrant premises; and

(b) the CEO is satisfied that the data is not required (or is no longer required) for:

(i) the purpose for which the data was originally accessed; or

(ii) investigating an offence against the law of the Commonwealth, a State or a Territory; or

(iii) judicial proceedings or administrative review proceedings; or

(iv) investigating or resolving a complaint against the executing officer;

the CEO must arrange for:

(c) the removal of the data from any device in the control of the ACC; and

(d) the destruction of any other reproduction of the data in the control of the ACC.

(4) If the executing officer or a person assisting, after operating the equipment, finds that relevant things are accessible by doing so, he or she may:

(a) seize the equipment and any disk, tape or other associated device; or

(b) if the relevant things can, by using facilities at the warrant premises, be put in documentary form--operate the facilities to put the relevant things in that form and seize the documents so produced.

(5) An executing officer or a person assisting may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in subsection (2) or to put the relevant things in documentary form as mentioned in paragraph (4)(b); or

(b) possession by the occupier of the equipment could constitute an offence.

(6) If the executing officer or a person assisting believes on reasonable grounds that:

(a) relevant things may be accessible by operating electronic equipment at the warrant premises; and

(b) expert assistance is required to operate the equipment; and

(c) if he or she does not take action under this subsection, the relevant things may be destroyed, altered or otherwise interfered with;

he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.

(7) The executing officer or a person assisting must give notice to the occupier of the warrant premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.

(8) The equipment may be secured:

(a) for a period not exceeding 24 hours; or

(b) until the equipment has been operated by the expert;

whichever happens first.

(9) If the executing officer or a person assisting believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the issuing officer for an extension of that period.

(10) The executing officer or a person assisting must give notice to the occupier of the warrant premises of his or her intention to apply for an extension, and the occupier is entitled to be heard in relation to the application.

(11) The provisions of Division 1A and of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.

23F  Person with knowledge of a computer or a computer system to assist access etc.

(1) The executing officer may apply to an issuing officer for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow the executing officer to do one or more of the following:

(a) access data held in, or accessible from, a computer that is on warrant premises;

(b) copy the data to a data storage device;

(c) convert the data into documentary form.

(2) The issuing officer may grant the order if the issuing officer is satisfied that:

(a) there are reasonable grounds for suspecting that relevant things are held in, or are accessible from, the computer; and

(b) the specified person is:

(i) reasonably suspected of having committed the offence stated in the relevant warrant; or

(ii) the owner or lessee of the computer; or

(iii) an employee or contractor of the owner or lessee of the computer; or

(iv) a consultant engaged by the owner or lessee of the computer; and

(c) the specified person has relevant knowledge of:

(i) the computer or a computer network of which the computer forms a part; or

(ii) measures applied to protect data held in, or accessible from, the computer.

(3) A person commits an offence if the person fails to comply with the order.

Penalty: 6 months imprisonment.

(4) In this section:

contractor, of the owner or lessee of a computer, means:

(a) a person who performs work or provides services for the owner or lessee under a contract for services (the head contract); or

(b) a person who performs work or provides services under a contract for services with a person who is a contractor (because of a previous application of this definition), being work or services covered by the head contract.

23G  Accessing data held on other premises--notification to occupier of that premises

(1) If:

(a) data that is held on premises other than the warrant premises is accessed under subsection 23E(1); and

(b) it is practicable to notify the occupier of the other premises that the data has been accessed under a warrant issued under section 22;

the executing officer must:

(c) do so as soon as practicable; and

(d) if the executing officer has arranged, or intends to arrange, for continued access to the data under subsection 23E(2) or (4)--include that information in the notification.

(2) A notification under subsection (1) must include sufficient information to allow the occupier of the other premises to contact the executing officer.

23H Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in section 23D or 23E:

(i) damage is caused to the equipment; or

(ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because:

(i) insufficient care was exercised in selecting the person who was to operate the equipment; or

(ii) insufficient care was exercised by the person operating the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in the Federal Court of Australia for such reasonable amount of compensation as the Court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier's employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

(5) Compensation is payable out of money appropriated by the Parliament.

(6) For the purposes of subsection (1):

damage, in relation to data, includes damage by erasure of data or addition of other data.

23J  Copies of seized things to be provided

(1) Subject to subsection (2), if the executing officer or a person assisting seizes, under a warrant issued under section 22:

(a) a document, film, computer file or other thing that can be readily copied; or

(b) a storage device, the information in which can be readily copied;

the executing officer or the person assisting must, if requested to do so by the occupier of the warrant premises, or another person who apparently represents the occupier, and who is present when the warrant is executed, give a copy of the thing or the information to that person as soon as practicable after the seizure.

(2) Subsection (1) does not apply if:

(a) the thing that has been seized was seized under subsection 23E(2) or paragraph 23E(4)(b); or

(b) possession by the occupier of the document, film, computer file, thing or information could constitute an offence.

23K  Occupier entitled to be present during search

(1) If a warrant issued under section 22 is being executed and the occupier of the premises, or another person who apparently represents the occupier, is present at the premises, the person is, subject to Part IC of the Crimes Act 1914, entitled to observe the search being conducted.

(2) The right to observe the search being conducted ceases if the person impedes the search.

(3) This section does not prevent 2 or more areas of the premises being searched at the same time.

23L  Receipts for things seized under warrant

(1) If a thing is seized under a warrant issued under section 22 or moved under subsection 23D(2), the executing officer or a person assisting must provide a receipt for the thing.

(2) If 2 or more things are seized or moved, they may be covered in the one receipt.

23M  Announcement before entry

(1) An executing officer or a person assisting must, before any person enters premises under a warrant:

(a) announce that he or she is authorised to enter the premises; and

(b) give any person at the premises an opportunity to allow entry to the premises.

(2) An executing officer or a person assisting is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required to ensure:

(a) the safety of a person; or

(b) that the effective execution of the warrant is not frustrated.

23N  Dealing with seized electronic equipment

(1) This section applies to electronic equipment seized under this Division.

(2) The electronic equipment may be operated at any location after it has been seized, for the purpose of determining whether data that constitutes a relevant thing is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Division that relate to dealing with seized items.

Division 1C--Order for delivery to examiner of passport of witness

27  At the end of subsection 25A(2)

Add:

Note: An examiner may refuse to permit a particular legal practitioner from representing a person giving evidence--see section 25B.

28  Subsection 25A(10)

After "the CEO", insert "or an examiner".

29  Subsection 25A(10)

Omit "a direction under subsection (9)", substitute "the direction".

30  Subsection 25A(11)

After "The CEO", insert "or an examiner".

31  After section 25A

Insert:

25B  Refusal to allow particular legal representative

(1) Subsection 25A(2) does not prevent an examiner from refusing to permit a particular legal practitioner to represent a person giving evidence if the examiner believes on reasonable grounds that to do so would reasonably be expected to prejudice the effectiveness of the special ACC operation/investigation to which the examination relates.

(2) If an examiner refuses, under subsection (1), to permit a particular legal practitioner to represent a person giving evidence, the examiner may adjourn the examination for such period as the examiner thinks is reasonable to enable the person to find an alternative legal practitioner to represent the person.

32  Subsection 28(1)

Repeal the subsection, substitute:

(1) An examiner may summon a person to do one or more of the following:

(a) appear before the examiner at an examination to give evidence;

(b) produce such documents or other things (if any) as are referred to in the summons;

(c) give evidence by tendering a written statement and, if the examiner so requires, verifying the written statement by oath or affirmation.

33  After subsection 28(1)

Insert:

(2A) If a person is required under paragraph 28(1)(c) to give evidence by tendering a written statement, a reference in this Division to a requirement to appear before an examiner or to answer a question at an examination before an examiner is taken to include a reference to the requirement to give a written statement.

34  Paragraph 29B(2)(e)

Omit "at an examination before an examiner".

35  Subsection 29B(4)

Repeal the subsection, substitute:

(4) A person to whom information has been disclosed, as permitted by subsection (2) or this subsection, may disclose that information:

(a) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons, notice or matter; or

(b) if the person is an officer or agent of a body corporate referred to in paragraph (2)(d):

(i) to another officer or agent of the body corporate for the purpose of ensuring compliance with the summons or notice; or

(ii) to a legal aid officer for the purpose of obtaining assistance under section 27 relating to the summons, notice or matter; or

(c) if the person is a legal practitioner--for the purpose of giving legal advice, making representations, or obtaining assistance under section 27, relating to the summons, notice or matter; or

(d) in accordance with the circumstances, if any, specified in the notation.

36  Paragraph 30(3)(a)

Omit "at an examination before an examiner".

37  Paragraph 30(4)(a)

Omit "appearing as a witness before an examiner".

38  Paragraph 30(4)(c)

Before "before answering the question", insert "subject to subsection (4A),".

39  After subsection 30(4)

Insert:

(4A) An examiner may, at any time during a person's appearance as a witness at an examination before the examiner, determine that the person is taken to satisfy paragraph (4)(c) in relation to:

(a) a question or class of questions; or

(b) a document or class of documents; or

(c) a thing or class of things.

40  Subparagraph 30(5)(d)(i)

After "the falsity of the answer", insert "or another statement (including a written statement)".

41  Subparagraph 30(5)(d)(ii)

After "contained in the document", insert "or the falsity of another statement (including a written statement)".

42  After subsection 30(5)

Insert:

(5A) The making of a determination under subsection (4A) does not affect the use of an answer, a document or a thing in a proceeding for an offence against section 35 (which relates to obstructing or hindering the ACC or an examiner).

43  Subsection 31(2)

Omit ", vessel, aircraft or vehicle".

44  Subsection 33(1)

Omit ", at an examination before an examiner, give evidence", substitute "give evidence to an examiner".

45  After subsection 33(1)

Insert:

(1A) Subsection (1) does not apply if the evidence is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1A)--see subsection 13.3(3) of the Criminal Code.

46  Subsection 55A(14) (at the end of the definition of intelligence operation)

Add "and, to avoid doubt, may involve the investigation of matters relating to a relevant criminal activity".

 

Schedule 4--Amendment of the Witness Protection Act 1994

1  Section 3

Insert:

current NWPP identity, in relation to a participant at a particular time, means an identity:

(a) provided to the participant under the NWPP; and

(b) being used by the participant at that time.

2  Section 3

Insert:

former NWPP identity, in relation to a participant at a particular time, means an identity that:

(a) was provided to the person under the NWPP before that time; and

(b) is not the participant's current NWPP identity at that time.

3  Section 3

Insert:

former participant means a person who has ceased to be included in the NWPP.

4 Section 3

Insert:

information, in relation to the identity of a person includes, but is not limited to, information about one or more of the following in relation to the person:

(a) appearance;

(b) voice quality or accent;

(c) mannerisms;

(d) address or location;

(e) particular skills and qualifications;

(f) personal history.

5  Section 3

Insert:

original identity, in relation to a participant, means the identity of the participant at the time he or she was first included in the NWPP.

6  Section 3 (definition of participant)

Repeal the definition, substitute:

participant means a person who is included in the NWPP and, unless the contrary intention appears, includes a former participant.

7  Section 3

Insert:

State offence that has a federal aspect has the meaning given by section 3B.

8  Section 3

Insert:

State participant means a participant:

(a) in relation to a State offence that has a federal aspect; or

(b) in relation to a State offence that does not have a federal aspect; or

(c) in relation to a commission or inquiry under a law of a State.

9  Section 3

Insert:

Territory participant means a participant:

(a) in relation to an offence against a law of a Territory; or

(b) in relation to a commission or inquiry under a law of a Territory.

10  Section 3 (paragraph (e) of the definition of witness)

Omit "such a person", substitute "a person referred to in paragraph (a), (b), (c) or (d)".

11  After section 3A

Insert:

3B  State offence that has a federal aspect

An offence against a law of a State is taken, for the purposes of this Act, to be a State offence that has a federal aspect:

(a) in a case where the offence is being investigated by the Australian Federal Police--if it would be taken to be a State offence that has a federal aspect under section 4AA of the Australian Federal Police Act 1979; and

(b) in a case where the offence is being investigated by the Australian Crime Commission--if it would be taken to be a State offence that has a federal aspect under section 4A of the Australian Crime Commission Act 2002; and

(c) in any other case--if it would be taken to be a State offence that has a federal aspect if either of the sections referred to in paragraphs (a) and (b) were to apply.

12  At the end of section 8

Add:

(6) In this section:

participant does not include a former participant.

13  At the end of section 9

Add:

(8) In this section:

participant does not include a former participant.

(9) To avoid doubt, subsection (8) does not affect any obligation of a former participant under a memorandum of understanding if the obligation continues (whether expressly or impliedly) to have effect after the former participant ceased to be included in the NWPP.

14  Paragraph 11(3)(b)

After "name", insert "for each new identity".

15  Paragraph 11(3)(e)

Repeal the paragraph, substitute:

(e) in the case of a former participant--the date on which the person became a former participant.

16  At the end of section 13

Add:

(5) The Commissioner may take the actions referred to in subsections (1) and (2) in respect of a former participant or any other person (a related person) whose relationship with the former participant is such that the Commissioner is satisfied that it is appropriate to take those actions, if:

(a) the Commissioner considers the actions necessary and reasonable for the protection of the former participant or the related person; and

(b) the Commissioner has assessed the suitability of taking the actions in respect of the former participant or the related person.

(6) If the Commissioner takes action under subsection (5) in respect of a related person, this Act applies to the related person as if the person were a former participant.

17  Subparagraph 14(b)(ii)

Before "identity", insert "original".

18  Subsection 15(5)

Omit "former identity", substitute "original identity or a former NWPP identity".

19  Paragraph 16(1)(a)

Omit "former", substitute "original identity or a former NWPP".

20  Paragraph 16(1)(b)

Omit "his or her former", substitute "the original identity or the former NWPP".

21  Subsection 16(1)

Omit "his or her former" (third occurring), substitute "the original identity or the former NWPP".

22  Subsection 16(2)

Omit "former", substitute "original identity or any former NWPP".

23  Subsection 16(2)

Omit "new", substitute "current NWPP".

24  Subsection 16(4)

Omit "former" (wherever occurring), substitute "original identity or any former NWPP".

25  Subsection 16(6)

Repeal the subsection.

26  Section 17

Omit "former identity", substitute "original identity or any former NWPP identity".

27  At the end of section 18

Add:

(7) A reference in this section to a participant does not include a reference to a former participant.

28  Paragraph 19(1)(b)

Before "terminated", insert ", or is proposed to be,".

29  Paragraph 19(1)

Omit "former participant's former identity", substitute "original identity or any former NWPP identity of the participant".

30  Subsection 19(2)

Omit "former".

31  Subsection 19(3)

Omit "former participant's former identity, the former", substitute "original identity or any former NWPP identity of the participant, the".

32  Paragraph 19(5)(a)

Omit "former identity of a person who was a Commonwealth participant", substitute "original identity or any former NWPP identity of a Commonwealth participant, a State participant or a Territory participant".

33  Paragraph 19(5)(b)

Repeal the paragraph, substitute:

(b) the Commissioner or a Deputy Commissioner notifies the participant in writing that he or she is required to return to the Commissioner all documents provided to the participant that relate to the participant's current NWPP identity and any former NWPP identity that is not being restored;

34  Subsection 19(5)

Omit "former participant" (third occurring), substitute "participant".

35  Section 21

After "conferred", insert ", or the performance or purported performance of a function conferred or a duty imposed,".

36  Subsection 22(1)

Repeal the subsection, substitute:

(1) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual is:

(i) a Commonwealth participant; or

(ii) a Territory participant; and

(c) at the time the information is disclosed, the individual has a current NWPP identity; and

(d) the information is about the original identity or a former NWPP identity of the individual.

Penalty: Imprisonment for 10 years.

(1A) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual:

(i) is a Commonwealth participant or is undergoing assessment for inclusion in the NWPP as a Commonwealth participant; or

(ii) is a Territory participant or is undergoing assessment for inclusion in the NWPP as a Territory participant; and

(c) the information:

(i) may reveal that the individual is a participant or is undergoing assessment for inclusion in the NWPP; or

(ii) may compromise the security of the individual.

Penalty: Imprisonment for 10 years.

37  Subsection 22(2)

Omit "or has been a Commonwealth participant, or a person who has undergone", substitute "a Commonwealth participant or a Territory participant, or a person who is undergoing or has undergone".

38  Paragraph 22(2)(a)

Omit "or has been a participant", substitute "a participant or is undergoing".

39  Subsection 22(2) (penalty)

Omit "for an offence against this subsection".

40  At the end of section 22

Add:

(3) To avoid doubt, this section applies to the disclosure of information in proceedings before a court, tribunal, Royal Commission or any other commission of inquiry.

(4) The application of subsection (3) to the disclosure of information as mentioned in that subsection does not affect the operation of subsection 26(3).

41  After section 22

Insert:

22A  Offences relating to State participants

(1) A person commits an offence if:

(a) the person is:

(i) a Commonwealth officer; or

(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

(c) the individual is a State participant; and

(d) at the time the information is disclosed, the individual has a current NWPP identity; and

(e) the information is about the original identity or a former NWPP identity of the individual; and

(f) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)--the disclosure of the information could adversely affect the integrity of the NWPP.

Penalty: Imprisonment for 10 years.

(2) A person commits an offence if:

(a) the person is:

(i) a Commonwealth officer; or

(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

(c) the individual is a State participant or is undergoing assessment for inclusion in the NWPP as a State participant; and

(d) the information may reveal that the individual is a participant or is undergoing assessment for inclusion in the NWPP; and

(e) if the person disclosing the information is a person other than a person referred to in subparagraph (a)(i), (ii) or (iv)--the disclosure of the information could adversely affect the integrity of the NWPP.

Penalty: Imprisonment for 10 years.

(3) A person who is a State participant, or a person who is undergoing or has undergone assessment for inclusion in the NWPP as such a participant, must not disclose:

(a) the fact that he or she is a participant or is undergoing or has undergone assessment for inclusion in the NWPP; or

(b) information as to the way in which the NWPP operates; or

(c) information about the Commissioner, a Deputy Commissioner, any AFP employee or any special member of the Australian Federal Police who is or has been involved in the NWPP; or

(d) the fact that he or she has signed a memorandum of understanding; or

(e) any details of a memorandum of understanding that he or she has signed;

unless the person has been authorised by the Commissioner to make the disclosure or the disclosure is made for the purpose of making a complaint, or providing information, to the Ombudsman under the Ombudsman Act 1976.

Penalty: Imprisonment for 5 years.

(4) To avoid doubt, this section applies to a disclosure of information to a court, tribunal, Royal Commission or any other commission of inquiry.

(5) The application of subsection (4) to the disclosure of information as mentioned in that subsection does not affect the operation of subsection 26(3).

22B  Offence relating to compromising security

A person commits an offence if:

(a) the person discloses information; and

(b) the information may compromise the security of an individual; and

(c) the individual:

(i) is a Commonwealth participant or a Territory participant, or is undergoing assessment for inclusion in the NWPP as a Commonwealth participant or a Territory participant; or

(ii) is a State participant or is undergoing assessment for inclusion in the NWPP as a State participant.

Penalty: Imprisonment for 10 years.

42  Paragraph 26(1)(a)

Omit "an approved authority", substitute "any other commission of inquiry".

43  After paragraph 26(1)(b)

Insert:

; or (c) to divulge or communicate to or before such a body information, if:

(i) the information is about the identity of, or information that is such as to reveal the identity of, an AFP employee or special member of the Australian Federal Police who is involved in the operation of the NWPP; and

(ii) the person has the information as a result of the performance of functions or duties under this Act;

44  Paragraph 26(2)(a)

Omit "an approved authority", substitute "any other commission of inquiry".

45  After paragraph 26(2)(b)

Insert:

; or (c) to divulge or communicate to or before such a body information, if:

(i) the information is about the identity of, or information that is such as to reveal the identity of, an AFP employee or special member of the Australian Federal Police who is involved in the operation of the NWPP; and

(ii) the person has the information as a result of the performance of functions or duties in relation to this Act;

46  Subsection 26(3)

After "Commonwealth", insert ", a State or a Territory".

47  Subsection 26(5)

Omit "or a former participant".

48  Subsection 26(5)

Omit "or former participant".

49  Subsection 27(1)

Repeal the subsection, substitute:

(1) If:

(a) a participant is to be a witness, under the participant's current NWPP identity, in a criminal proceeding; and

(b) the participant has a criminal record under his or her original identity or any former NWPP identity;

the participant must notify the Commissioner that the participant is to be a witness in the proceeding.

50  Subsection 27(2)

Omit "or former participant".

51  After section 27

Insert:

27A  Requirement where participant involved in civil proceedings

(1) If a participant is to be involved, under the participant's current NWPP identity, in a civil proceeding in which his or her identity is an issue, the participant must notify the Commissioner that the participant is involved in the proceeding.

(2) After being notified under subsection (1), the Commissioner may take any action he or she considers appropriate in the circumstances.

(3) In this section:

civil proceeding means any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding, and, to avoid doubt, each of the following is part of a civil proceeding:

(a) any proceeding on an ex parte application (including an application made before pleadings are filed in a court);

(b) the discovery, exchange, production, inspection or disclosure of intended evidence, documents and reports of persons intended to be called by a party to give evidence;

(c) an appeal proceeding;

(d) any interlocutory or other proceeding prescribed by regulations for the purposes of this paragraph.

court includes any tribunal, Royal Commission or other commission of inquiry.

52  Section 28

Repeal the section, substitute:

28  Identity of participant not to be disclosed in court proceedings etc.

(1) If, in any proceedings in a court, a tribunal or a Royal Commission or other commission of inquiry, one or more of the following is in issue or may be disclosed in relation to a Commonwealth participant, a State participant or a Territory participant who has been provided with a new identity under the NWPP:

(a) the original identity of the participant;

(b) the current NWPP identity of the participant;

(c) a former NWPP identity of the participant;

the court, tribunal or commission must, unless it considers that the interests of justice require otherwise:

(d) hold that part of the proceedings that relate to the original identity, the current NWPP identity or the former NWPP identity of the participant in private; and

(e) make such order relating to the suppression of publication of evidence given before the court, tribunal or commission as, in its opinion, will ensure that the original identity, the current NWPP identity or the former NWPP identity of the participant is not disclosed; and

(f) make such other orders as it considers appropriate to ensure that information that relates to the original identity, the current NWPP identity or the former NWPP identity of the participant, or information that may compromise the security of the participant, is not made public.

(2) To avoid doubt, paragraph (1)(e) does not prevent the taking of a transcript of court proceedings, but the court may make an order for how the transcript is to be dealt with, including an order suppressing its publication.

 

Schedule 5--Other Amendments

Part 1--Other amendments relating to controlled operations

Crimes Act 1914

1  Subsection 3(1) (definition of ACC authorising officer)

Repeal the definition.

2  Subsection 3(1) (definition of ACLEI authorising officer)

Repeal the definition.

3  Subsection 3(1) (definition of AFP authorising officer)

Repeal the definition.

4  Subsection 3(1) (definition of appropriate authorising officer)

Repeal the definition.

5  Subsection 3(1) (definition of authorising officer)

Repeal the definition.

6  Subsection 3(1) (definition of controlled operation)

Omit "15H", substitute "15GD".

7  Subsection 3(1) (definition of major controlled operation)

Repeal the definition.

8  Section 3(1) (definition of nominated Tribunal member)

Repeal the definition.

9  Section 3(1) (definition of person targeted)

Repeal the definition.

Customs Act 1901

10  Section 219ZJA (definition of serious Commonwealth offence)

Omit "15HB", substitute "15GE".

 

Part 2--Other amendments of the Australian Crime Commission Act 2002

11  Subsection 4(1) (paragraph (a) of the definition of foreign law enforcement agency)

After "police force", insert "or police service".

12  Subsection 4(1) (paragraph (b) of the definition of law enforcement agency)

Repeal the paragraph, substitute:

(b) a police force or police service of a State; or

13  Paragraph 7B(2)(f)

After "police force", insert "or police service".

14  Subsection 22(2)

Omit "Police Force", substitute "police force or police service".

15  Subsection 23(4)

Omit "Police Force", substitute "police force or police service".

16  Subsection 31(2)

Omit "Police Force", substitute "police force or police service".

17  Section 34

Omit "Police Force", substitute "police force or police service".

18  Subsection 58(1)

Omit "Police Force", substitute "police force or police service".

 

Part 3--Amendments relating to seized electronic equipment

Crimes Act 1914

19  After section 3ZV

Insert:

3ZVA  Dealing with seized electronic equipment

(1) This section applies to electronic equipment seized under this Part.

(2) The electronic equipment may be operated at any location after it has been seized, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with seized items.

Customs Act 1901

20  At the end of Part XII

Add:

Division 4--Seized electronic equipment

227AB  Dealing with seized electronic equipment

(1) This section applies to electronic equipment seized under this Part.

(2) The electronic equipment may be operated at any location after it has been seized for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with seized items.

Mutual Assistance in Criminal Matters Act 1987

21  At the end of Division 3 of Part VIIA

Add:

38RA  Dealing with seized electronic equipment

(1) This section applies to electronic equipment seized under this Part.

(2) The electronic equipment may be operated at any location after it has been seized for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data referred to in subsection (2) includes, but is not limited to the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with seized items.

Proceeds of Crime Act 2002

22  After section 253

Insert:

253A  Dealing with seized electronic equipment

(1) This section applies to electronic equipment seized under this Part.

(2) The electronic equipment may be operated at any location after it has been seized for the purpose of determining whether data that is ^*evidential material, or evidential material (within the meaning of the Crimes Act 1914) relating to an ^*indictable offence, is held on or accessible from the electronic equipment, and obtaining access to such data.

(3) The data that may be accessed under subsection (2) includes, but is not limited to the following:

(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;

(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.

(4) If the electronic equipment was seized under a warrant, the electronic equipment may be operated before or after the expiry of the warrant.

(5) This section does not limit the operation of other provisions of this Part that relate to dealing with seized items.

 

Schedule 6--Transitional provisions

Part 1--Transitional provisions relating to controlled operations

1  Controlled operations authorised before commencement continue under old law

(1) Despite the repeals and amendments made by this Act, the Crimes Act 1914, as in force immediately before the commencement of this item, continues to apply after that commencement, in relation to a pre-commencement controlled operation, as if those repeals and amendments had not happened.

(2) In this item:

pre-commencement controlled operation means a controlled operation authorised under Part IAB of the Crimes Act 1914 before the commencement of this item, whether or not the pre-commencement controlled operation had been completed as at that commencement.

2  Continuation of Division 3 of Part IAB

Despite the repeal of Division 3 of Part IAB of the Crimes Act 1914 by this Act, that Division, as in force immediately before the commencement of this item, is taken to continue in effect as if it had not been repealed.

 

Part 2--Transitional provisions relating to assumed identities

3  Authorisations taken to be authority under new law

(1) This item applies to an authorisation that was granted under section 15XG of the Crimes Act 1914 immediately before the commencement of this item.

(2) The authorisation has effect, after the commencement of this item, as if it were an authority granted under section 15HY as inserted by this Act.

4  Continuation of old law in relation to States without corresponding laws

(1) Despite the repeal of Part IAC of the Crimes Act 1914 by this Act:

(a) section 15XH of that Act, as in force immediately before the commencement of this item, continues in effect after that commencement, in relation to a State or Territory that is not a participating jurisdiction, as if that repeal had not happened; and

(b) that Part, and any other provision of the Crimes Act 1914 that relates to the operation of that Part, continues in effect in relation to authorisations under that section and assumed identities acquired or used under such authorisations as if that repeal had not happened.

(2) In this item:

participating jurisdiction has the same meaning as in section 15HW of the Crimes Act 1914, as in force immediately after commencement.

 

Part 3--Regulations relating to transitional matters

5  Regulations may deal with other transitional matters

The Governor-General may make regulations dealing with matters of a transitional nature relating to the amendments and repeals made by this Act.

Schedule 1  Controlled operations, assumed identities and protection of witness identity

 

Controlled operations, assumed identities and protection of witness identity Schedule 1

Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006       No.      , 2006      

       Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006       No.      , 2006

            Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006       No.      , 2006

Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006       No.      , 2006           

Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006       No.      , 2006      

 

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