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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES LEGISLATION AMENDMENT
(NATIONAL INVESTIGATIVE POWERS AND WITNESS PROTECTION)
BILL 2006
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable David Johnston)
CRIMES LEGISLATION AMENDMENT (NATIONAL INVESTIGATIVE
POWERS AND WITNESS PROTECTION) BILL 2006
GENERAL OUTLINE
The purpose of the Crimes Legislation Amendment (National Investigative Powers
and Witness Protection) Bill 2006 is to amend the law relating to the investigation of
criminal activity and the protection of witnesses.
The Bill was introduced in the Senate on 29 November 2006 and was subsequently
referred to the Senate Standing Committee on Legal and Constitutional Affairs (the
Committee), which reported on 7 February 2007.
The Committee made 10 recommendations for amendments to the Bill. The proposed
Government amendments give effect to Committee recommendations 1, 5, 8 and 9 in
their entirety, recommendation 10 is substantially accepted and 2, 4, 7 are accepted in
part.
The amendments add and amend provisions within the Crimes Act 1914, the Witness
Protection Act 1994, the Australian Crime Commission Act 2002, the Australian
Federal Police Act 1979 and the Crimes (Aviation) Act 1991.
Amendment (3) ensures that offences with a maximum penalty of less than three
years imprisonment will not fall within the ambit of the controlled operations regime.
Amendments (2), (4), (5) and (7) provide for nominated Administrative Appeals
Tribunal (AAT) members to authorise extensions of controlled operations that go
beyond 12 months and include associated reporting requirements.
Amendments (6) and (9) change the title of an Australian Crime Commission (ACC)
executive to reflect a restructure that has occurred in the ACC since the introduction
of the Bill.
Amendment (8) protects the true identity of covert operatives who give evidence in
court by prohibiting the retention, copying or recording by a presiding officer of any
information or documentation provided to them under proposed section 15K of the
Bill.
Amendment (11) inserts a note to clarify that proposed paragraph 3SL(1)(b) does not
authorise the acquisition or use of an assumed identity.
Amendment (12) requires the Ombudsman to conduct an inspection of agency files
and issue a report to the Minister in relation to the administration of delayed
notification search warrants at least every six months as opposed to every 12 months
as originally proposed in the Bill.
Amendments (13) to (16) alter the definition of `executing officer' within the
Australian Crime Commission Act to provide that a search warrant may only be
executed by, or re-assigned to an ACC staff member who is also a member of the
Australian Federal Police or a member of a police force of a State or Territory.
Amendments (17) and (18) remove the proposed section that allows an ACC
examiner to exclude a legal practitioner from proceedings, ensuring that witnesses are
entitled to legal representation.
The amendments also include minor additions to the Australian Federal Police Act
and the Crimes (Aviation) Act which are unrelated to national investigative powers
and witness protection but are urgently required. The new provisions address
anomalies in the current legislation (Amendment 19).
FINANCIAL IMPACT
There is no financial impact from the provisions in this Bill.
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NOTES ON ITEMS
Amendment (1)
This amendment sets the date on which the items in Amendment (19), which inserts a
new Schedule 7 in the Bill, will commence. New Schedule 7, Item 1 will commence
retrospectively on 30 December 2006 (Table Item 3). This item inserts a penalty in
subsection 60A(2) of the Australian Federal Police Act which was inadvertently
repealed by the Law Enforcement Integrity Commissioner (Consequential
Amendments) Act 2006. The proposed amendment does not alter the elements of the
offence. Retrospective application of the penalty provision will address the current
inability to prosecute breaches of the offence.
The remaining items in Amendment (19) will commence on the 28th day after the day
on which the Act receives Royal Assent (Table Item 4).
Amendments (1) to (18) will commence at the same time as the provisions in
Schedules 1 to 6 of the Bill, namely the 28th day after the day on which the Act
receives Royal Assent.
Amendment (2)
This amendment defines a `nominated Tribunal member' for the purposes of proposed
Part IAB of the Crimes Act (`Controlled Operations') which will be inserted by
Schedule 1 of the Bill. The definition states that a `nominated Tribunal member'
means a person in respect of whom a nomination under subsection 15GOB(1) is in
force. Proposed section 15GOB is inserted by Amendment (5).
Nominated Tribunal members will be responsible for deciding whether to approve
extensions of controlled operations that exceed 12 months. When such operations
have not exceeded 12 months in duration, the decision to extend a controlled
operation will be determined by senior executive employees of the relevant agency.
This amendment operates in conjunction with Amendments (4), (5), and (7) and
responds to the Committee's concern about the removal of the AAT as an oversight
body for the extension of controlled operations (recommendation 2).
Amendment (3)
This amendment deletes proposed subsection 15GE(3) from the Bill to prevent
offences carrying a penalty of less than three years imprisonment from being added to
the definition of `serious Commonwealth offence' by regulation. Under the Bill, a
controlled operation can only be authorised for a `serious Commonwealth offence' or
a `serious State offence that has a federal aspect'.
Deleting proposed subsection 15GE(3) will result in controlled operations only being
authorised for offences that are punishable on conviction by imprisonment for a
period of three years or more. This responds to the concern, expressed by the
Committee, that prescribing offences with a maximum penalty of less than three years
imprisonment, for the purpose of bringing them within the ambit of controlled
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operations, cannot be justified. The amendment implements recommendation 1 of the
Committee's report.
Amendment (4)
Proposed section 15GO sets out when extensions/variations can be granted for
controlled operations. This amendment clarifies that a proposed variation of an
authority for a controlled operation that would result in the extension of the operation
beyond 12 months is subject to approval by the AAT and not by the appropriate
authorising officer within the agency (proposed section 15GOA).
This amendment operates in conjunction with Amendments (2), (5), and (7) and
responds to the Committee's concern about the removal of the AAT as an oversight
body for extensions of controlled operations (recommendation 2).
Amendment (5)
This amendment contains a new provision that provides for any extensions of
controlled operations beyond 12 months to be approved by a nominated member of
the AAT (proposed section 15GOA). The amendment also provides a mechanism for
AAT members to be nominated to participate in considering extensions and the
qualifications for their nomination.
Nominated AAT members will be responsible for deciding whether to approve
extensions of controlled operations that exceed 12 months. When such operations
have not exceeded 12 months in duration, the decision to extend a controlled
operation will be determined by senior executive employees of the relevant agency.
The Minister will have responsibility for nominating members of the AAT to deal
with extension applications. The eligible AAT members include the Deputy
President, full-time senior members of the AAT or part-time senior members or
members who are enrolled as legal practitioners of the High Court or another federal
court or of the Supreme Court of a State or Territory and have been enrolled for at
least five years.
The conferral of this role on the AAT would partially restore the approach under the
existing Crimes Act, which requires AAT approval for extensions beyond 3 months
(section 15OB).
This amendment operates in conjunction with Amendments (2), (4), and (7) and
responds to the Committee's concern about the removal of the AAT as an oversight
body for extensions to controlled operations (recommendation 2), and about
operations extending beyond 12 months (recommendation 3).
Amendment (6)
This amendment will replace the title of `Director National Operations' of the ACC
with the titles `Executive Director Operational Strategies' and `Executive Director
Intelligence Strategies'. The changes in title reflect the restructure that has occurred
within the ACC since the Bill was introduced. As a result of the restructure, the
position of 'Director National Operations' has been retitled and the functions of the
position have been reallocated. This amendment will allow the chief officer to
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delegate his/her powers or functions of notification of damage or injury caused by
controlled operations to the `Executive Director Operational Strategies' and the
`Executive Director Intelligence Strategies' of the ACC, or a person occupying an
equivalent or higher position.
Amendment (7)
This amendment inserts a provision that requires law enforcement agencies to report
to the Commonwealth Ombudsman on the number of extensions of controlled
operations granted or refused by a nominated member of the AAT. Each law
enforcement agency will be required to report to the Commonwealth Ombudsman on
the number of extensions past 12 months that have been granted or refused during that
reporting period and which relate to controlled operations being conducted by the
agency.
Under proposed section 15HH, law enforcement agencies are required to submit
reports detailing their controlled operations activities to the Commonwealth
Ombudsman. This additional provision adds to the comprehensive list of things that
agencies must report. The Ombudsman is able to seek additional information under
proposed subsection 15HH(3) if required.
This amendment operates in conjunction with Amendments (2), (4), and (5) and
responds to the Committee's concern about the removal of the AAT as an oversight
body to the extension process (recommendation 2) and the inclusion of the
Ombudsman as an external oversight body (recommendation 4).
Amendment (8)
This amendment adds a new subsection to proposed section 15KP to prohibit the
retention, copying or recording by a presiding officer of any information or
documentation provided to them under that provision.
The witness identity provisions in Schedule 1 of the Bill aim to protect the true
identity of covert operatives who give evidence in court. This amendment will ensure
that the true identity of the operative is not revealed or compromised by the actions of
the presiding officer. The amendment implements recommendation 5 of the
Committee's report.
Amendment (9)
This amendment is similar to Amendment (6) and reflects the restructure of the ACC
and changes of title that have occurred since the Bill was introduced. The chief
officer of the ACC will be able to delegate his/her functions related to witness identity
protection to the `Executive Director Operational Strategies' and the `Executive
Director Intelligence Strategies' or a person occupying an equivalent or higher
position.
Amendment (10)
This is a minor technical amendment that will remove an inconsistency in the
references to `position' and `rank'. Proposed subparagraph 15LA(3)(c)(ii) refers to
'rank' rather than 'position'. This amendment will substitute the term 'rank' with
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'position' and bring the proposed subparagraph in line with the terminology in
preceding subparagraph 15LA(3)(c)(i).
Amendment (11)
This amendment adds a note under proposed paragraph 3SL(1)(b) of the Crimes Act
to clarify that the paragraph does not remove the requirement to comply with the
assumed identity provisions, should an assumed identity be required.
The Committee has expressed concerns about the relationship between the assumed
identity provisions and paragraph 3SL(1)(b) of the delayed notification search
warrants which allow officers to impersonate another person for the purposes of
executing the warrant (recommendation 7). This note clarifies that proposed
paragraph 3SL(1)(b) does not authorise the acquisition or use of an assumed identity.
If an assumed identity is required for the execution of a delayed notification search
warrant, the requirements of Part IAC of the Crimes Act would need to be complied
with.
Amendment (12)
This amendment to proposed section 3SY requires the Ombudsman to conduct an
inspection of agency files and issue a report to the Minister in relation to the
administration of delayed notification search warrants at least every six months as
opposed to every 12 months as originally proposed in the Bill.
The Committee expressed concerns about the frequency of the inspection of records
for delayed notification search warrants. Requiring the Ombudsman to conduct an
inspection every six months will ensure that the inspection of records is more frequent
and the Ombudsman has a more comprehensive external oversight role. The
amendment also brings the inspection requirement into line with the requirement in
proposed section 3SZF which requires the Ombudsman make a written report to the
Minister at six monthly intervals on each inspection under proposed section 3SY.
These reports are to be laid before each House of the Parliament within 15 sitting
days of that House after the Minister receives it.
The amendment implements recommendation 8 of the Committee's report.
Amendments (13), (14), (15), (16)
Schedule 3 of the Bill amends search warrant provisions in the Australian Crime
Commission Act to align them more closely with equivalent provisions in the Crimes
Act. These amendments alter the definition of `executing officer' to provide that a
search warrant may only be executed by, or re-assigned to an ACC staff member who
is also a member of the Australian Federal Police, or a member of a police force of a
State or Territory. These amendments eliminate the possibility of a non-police officer
executing a search warrant and will also ensure that only a police officer has the
capacity to exercise the use of force.
This is consistent with provisions in the Crimes Act. This amendment implements
recommendation 9 of the Committee's report.
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Amendment (17)
This amendment is consequential to Amendment (18), which removes proposed
section 25B of the Australian Crime Commission Act from the Bill. This amendment
removes a note that references that proposed subsection.
Amendment (18)
This amendment would remove proposed subsection 25B of the Australian Crime
Commission Act (Item 31), which would allow an examiner to exclude a particular
legal practitioner from representing a person giving evidence if the examiner believes
that to do so would reasonably be expected to prejudice the effectiveness of the ACC
operation/investigation to which the examination relates.
Removing proposed section 25B ensures that no witness would be examined without
a legal representative unless it is his or her express and informed desire to proceed
without representation. This amendment responds to recommendation 10 of the
Committee's report.
Amendment (19)
This amendment adds new Schedule 7 to the Bill to deal with some minor but
important amendments to other legislation. The amendments are unrelated to national
investigative powers and witness protection.
Schedule 7- Minor amendments
Item 1
This item reinserts the maximum penalty of two years imprisonment for the secrecy
offence in subsection 60A(2) of the Australian Federal Police Act.
The penalty provision was inadvertently repealed by the Law Enforcement Integrity
Commissioner (Consequential Amendments) Act 2006.
The amendment does not alter the elements of the offence.
The re-enactment of this penalty is retrospective to when the penalty was repealed
(Amendment 1). Although the Senate Standing Committee for the Scrutiny of Bills
may be critical of such retrospectivity, the prohibition for the secrecy offence has
been in force throughout and there is no legitimate excuse for conduct that breaches
the provision. Individuals should not be able to escape prosecution because of the
previous inadvertent repeal of the penalty.
Items 2 and 3
Items 2 and 3 amend section 15 of the Crimes (Aviation) Act so that it applies the
Criminal Code 2002 (ACT) to conduct on relevant flights. Item 3 also provides that
regulations may be made to specify Australian Capital Territory laws that apply on
relevant flights.
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Currently section 15 of the Crimes (Aviation) Act makes it an offence for a person on
board a "Division 2 aircraft" to do, or omit to do anything that would be an offence
against a law of the Commonwealth or the Crimes Act 1900 (ACT) in its application
to the Jervis Bay Territory. A "Division 2 aircraft" is defined in section 3 to include
any aircraft engaged in a commercial flight with other countries or among the States
and Territories, any aircraft engaged in a flight that started in Australia, an Australian
aircraft engaged in a flight wholly outside Australia, and a Commonwealth aircraft or
defence aircraft.
Section 15 is intended to ensure that standard criminal offences (for example theft and
assault) always apply on such flights. However, with current amendments to the
Crimes Act (ACT) and the Criminal Code 2002 (ACT), many offences such as theft,
are no longer found in the Crimes Act (ACT) and instead appear in the Criminal Code
(ACT). This amendment corrects that anomaly to ensure that the provision captures
all relevant crimes legislation. It also provides a mechanism to deal with any future
changes to the Acts or the name of the Acts in which core ACT criminal offences are
located (ie prescribing these by regulation).
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