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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
SENATE
CRIMES LEGISLATION ENHANCEMENT
BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the Minister for Justice and
Customs, Senator the Honourable
Chris Ellison)
This Bill makes a number of minor and technical amendments to various
Commonwealth criminal laws. The amendments made by the Bill may be summarised
as follows:
• clarifying the rules about the taking of photographs
and fingerprints by making it clear that both may be
taken,
• clarifying the consequences of a refusal to participate in an
identification parade,
• increasing the monetary threshold for when a
court of summary jurisdiction may hear and determine proceedings in respect of
an indictable Commonwealth offence where the offence relates to
property,
• inserting a provision to allow a court of summary
jurisdiction to hear and determine an indictable offence if it is not punishable
by imprisonment and the pecuniary penalty for the offence is below a certain
level,
• amending the requirements for authentication of testimony
received from a foreign country by removing outdated requirements for
seals,
• augmenting the assistance given to international war crimes
tribunals including allowing the use of video links,
• making minor
technical amendments to the Crimes Act 1914, Australian Federal Police
Act 1979 and the Mutual Assistance in Business Regulations
Act
1992, and
• correcting misdescribed amendments.
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
Item 1 Short Title
The short title of this Act is the Crimes Legislation Enhancement Bill 2002.
Item 2 Commencement
This Item deals with commencement and sets
out the commencement dates in a table.
Items 8 and 9 of Schedule 1 of the
Act correct grammatical errors and are taken to have commenced on the same date
as the original amendments.
Items 1, 5, 6, 14 and 17 of Schedule 2 of
the Act correct misdescribed amendments and are taken to have commenced on the
same date as the original amendments.
Items 5, 6, 15-35 and 41 of
Schedule 3 of the Act correct misdescriptions of Part numbering in the Crimes
Act 1914 and are taken to have commenced on the same date as the original
amendments.
The backdating of these amendments is reasonable because
they relate to drafting corrections. They are therefore within the scope of
what the Parliament has accepted is appropriate on previous occasions.
The remainder of the Items commence on the day on which this Act
receives the Royal Assent.
Item 3 Schedules
This Item explains that the items set out in
the Schedules amend the Acts specified and that the other items in the Schedules
have effect according to their terms.
SCHEDULE 1 - AMENDMENT OF THE CRIMES ACT 1914
Part 1 - Taking offenders’ fingerprints and
photographs
The purpose of this Part is to make two minor amendments
to section 3ZL of the Crimes Act 1914 to clarify and facilitate the
operation of the provision in relation to taking fingerprints from and
photographs of a person convicted of an offence.
Item
1
This Item clarifies that an order by a judge or magistrate under
subsection 3ZL(1) may be made in relation to both taking a convicted
person’s fingerprints and photograph. That is, that the provision
is not limited to an order in relation to the taking of fingerprints or
photographs.
Item 2
This Item inserts new subsection
3ZL(3A) to provide that the judge or magistrate may make any additional orders
that are reasonably necessary (for example, that the convicted person attend at
a police station at a specified time) to ensure that the fingerprints and/or
photographs of the convicted person are taken in accordance with the order given
under subsection 3ZL(1).
This Item also inserts new subsection 3ZL(3B)
to provide that it is an offence for a person to intentionally contravene an
order made under proposed subsection 3ZL(3A). The new subsections 3ZL(3B) and
(3C) have been drafted in accordance with the Criminal Code. The maximum
penalty for contravening subsection 3ZL(3B) is imprisonment for 12
months.
Part 2 - Identification parades
Section 3ZM governs
the conduct of identification parades. Subsection 3ZM(3) imposes an obligation
on police officers to inform a suspect of certain prescribed matters prior to
his or her participation in an identification parade. The purpose of subsection
3ZM(3) is to ensure that a suspect has the opportunity to make an informed
decision whether or not to participate in a parade.
The purpose of this
Part is to clarify a misleading provision so that a suspect is informed how
evidence of refusing to take part in an identification parade may be used in
later proceedings.
Item 3
This Item repeals paragraph
3ZM(3)(b) and inserts two new subparagraphs.
The first subparagraph
clarifies what a suspect is told about the use that may be made of evidence of a
refusal to take part in an identification parade. As currently drafted, the
information provided may lead the suspect to believe that evidence of a refusal,
without reasonable excuse, may be used in subsequent criminal proceedings as
evidence of the suspect’s guilt. That is not the case. The proposed
provision provides that the suspect is to be informed that evidence of refusal
may be admissible in later proceedings relating to an offence, for the purpose
of explaining why an identification parade was not held.
This reflects
the common law position (which is preserved in this respect by subsection
3ZM(7)) that evidence of a refusal to participate in an identification parade is
not admissible to establish a defendant’s guilt. As this rule exists
irrespective of whether the suspect did or did not have a reasonable excuse for
refusing to participate in the identification parade, the proposed provision
also removes the reference to refusing “without reasonable excuse”.
That is, whether or not a suspect has a reasonable excuse for refusing to take
part in the identification parade is irrelevant to the use that may later be
made of that refusal.
The second proposed subparagraph maintains the
current provision for informing the suspect that any evidence of identification
that results from having seen a photograph or of having seen the suspect
otherwise than during an identification parade may be admissible in later
proceedings.
Part 3 - Dealing summarily with some indictable
offences
The purpose of this Part is to extend the class of
indictable offences that may be dealt with summarily.
Item
4
This Item amends subsection 4J(4) to increase the threshold for
when a court of summary jurisdiction may hear and determine proceedings in
respect of an indictable Commonwealth offence if the offence relates to property
with a value of $500. The Item increases the threshold to $5,000.
The
monetary threshold under subsection 4J(4) has not been changed since section 4J
was inserted into the Crimes Act 1914 in 1987. The amendment will ensure
that the monetary threshold is appropriate to current economic circumstances.
The amendment will also allow more offences to be dealt with in local courts,
which employ speedier procedures, consistent with the Government’s broader
efforts to ensure a more efficient criminal trial process.
Item
5
This Item provides that the amendments proposed by Item 4 only
apply to indictable offences committed after this Act receives the Royal
Assent.
Item 6
This Item inserts a proposed section 4JA to
increase the circumstances in which certain indictable offences may be dealt
with summarily. Section 4J of the Crimes Act 1914 makes provision for
the summary disposition of indictable offences where the offence is one
punishable by imprisonment for a period not exceeding ten years. However, there
is no like provision for the summary disposition of offences that carry a
pecuniary penalty only, no matter how small the penalty.
This is
ameliorated to a large extent if the particular statute imposing the pecuniary
penalty for an offence expressly makes provision for the offence to be dealt
with summarily, and many (but not all) Commonwealth statutes containing
indictable offences make such provision. However, in the absence of such
provision, the offence must be tried by indictment.
The proposed
amendment, which is modelled on section 4J, will enable a court of summary
jurisdiction to hear and determine indictable offences that are not punishable
by imprisonment, but where the pecuniary penalty is not more that 600 penalty
units (for an individual) and 3,000 (for a body corporate) and the defendant and
prosecution consent.
The proposed provision will also provide two levels
of pecuniary penalty that a court of summary jurisdiction may impose depending
on the penalty set for the offence. For offences where the maximum pecuniary
penalty is 300 penalty units (for an individual) or 1,500 penalty units (for a
body corporate) if the offence were punishable on indictment, the maximum
penalty that a court of summary jurisdiction may impose is 60 penalty units (for
an individual) or 300 penalty units (for a body corporate).
Where the
maximum pecuniary penalty is 600 penalty units (for an individual) or 3,000
penalty units (for a body corporate) if the offence were punishable on
indictment, the maximum penalty that a court of summary jurisdiction may impose
is 120 or 600 penalty units respectively. The court of summary jurisdiction may
not impose a pecuniary penalty higher than that which could have been imposed
had the matter been prosecuted on indictment.
However, the proposed
provisions will not apply if there is a contrary intention in the law creating
the offence. They will also not apply to indictable offences created by a law
that already enables the matter to be determined summarily or to offences
dealing with property valued at $5,000 or less (as these are addressed by
subsection 4J(4)).
Item 7
This Item provides that the
amendment proposed by Item 6 applies to proceedings instituted after this Act
receives the Royal Assent, irrespective of when the offence was
committed.
Part 4 – Technical corrections of sentencing and
parole provisions
This Item corrects a grammatical error in the Crimes Act 1914 by
replacing a semicolon with a colon in paragraph 16A(2)(f).
This Item corrects a grammatical error in the Crimes Act 1914 by
inserting a comma in paragraph 19AS(1)(b).
SCHEDULE 2 - AMENDMENT OF OTHER ACTS
Australian Federal Police Act 1979
Item
1
This Item proposes a technical amendment to subsection 8(1) of the
Australian Federal Police Act 1979 to remove a reference to subsection
(2C) which has been repealed.
Crimes at Sea Act
2000
Items 2 and 3
These Items correct a reference
to the “law in force in the Northern Territory” in subsections 6A(1)
and 6A(7) of the Crimes at Sea Act 2000 by replacing it with a reference
to a “law of the Northern Territory”. The amendment will make it
clear that the application of Northern Territory criminal laws in the adjacent
territorial sea area does not include Commonwealth criminal laws in force in the
Territory. The question of whether those Commonwealth criminal laws applied
would then depend purely on the terms of those Commonwealth laws, as originally
intended.
Item 4
This Item provides that the amendments
proposed by Items 2 and 3 apply in relation to conduct engaged in after this Act
receives the Royal Assent.
This Item corrects a misdescribed amendment of section 19B of the
Crimes Act 1914 by substituting “the law” for “a
law” in paragraph 10(a) of the Crimes Legislation Amendment Act (No.2)
1989.
This Item corrects a misdescribed amendment of section 21B of the
Crimes Act 1914 by substituting “a law” for “the
law” in paragraph 17(a) of the Crimes Legislation Amendment Act (No.2)
1989.
Item 7
This Item amends subsection 22(2) of the Foreign
Evidence Act 1994 (FEA) to remove a provision that requires foreign material
to bear an official or public seal of the foreign country or of a Minister or
official of the country, in order for it to be adduced as evidence in criminal
and related civil proceedings. The requirement was originally included as a
means of confirmation that the evidence was obtained through appropriate
official channels. A number of countries have indicated that they have
difficulties in meeting this requirement. It is considered that the requirement
is unnecessary as section 26 of the FEA makes provision for the Attorney-General
(or an authorised officer) to certify that specified foreign material was
obtained as a result of a request made to a foreign country by or on behalf of
the Attorney-General. This provision implicitly requires the issuing officer to
be satisfied that the foreign evidence has been received through official
channels.
International War Crimes Tribunals Act
1995
Items 8 to 13 consist of technical amendments to the mutual
assistance in criminal matters provisions of the International War Crimes
Tribunals Act 1995 (IWCT Act). These provisions generally reflect similar
provisions contained in the Mutual Assistance in Criminal Matters Act
1987 (MA Act). The purpose of the amendments is to ensure consistency with
amendments made to the MA Act in 1996.
This Item will amend section 4 of the IWCT Act by repealing the
definition of ‘possession’. The definition is relevant to
provisions in the IWCT Act regarding the search for, and seizure of, things
within a person’s ‘possession’. It is currently expressed to
extend to things within a person’s control, although such things are not
necessarily within the person’s actual possession or custody. The
definition is removed in order to avoid the unintended result that the issue of
a search warrant in relation to a specified person could enable the search of
premises for any things within that person’s ‘control’. In
such circumstances, the authorities will be required to apply for the issue of a
separate warrant for search of premises pursuant to subsection 47(1) of the IWCT
Act. The ordinary accepted meaning of the term ‘possession’ is more
appropriate for the purposes of defining the scope of the search and seizure
powers under the IWCT Act.
Item 9
This Item amends amend
section 29 of the IWCT Act by inserting new subsections (3) and (4). The new
provisions apply to a magistrate conducting proceedings under section 27 or 28
of the IWCT Act - that is, proceedings designed to comply with a request from a
War Crimes Tribunal for evidence to be taken in Australia for the purpose of a
proceeding or investigation being conducted by that Tribunal. The provisions
provide for the person giving evidence or producing documents before the
magistrate to be examined or cross-examined by the person to whom the Tribunal
proceeding or investigation relates, that person’s legal representative or
the Tribunal’s legal representative, by means of video link.
This Item amends subparagraph 66(2)(b)(i) of the IWCT Act to change the
conditions precedent to the use of force by police officers when making an
arrest under the Act. Presently, paragraph 66(2)(b) provides that a police
officer shall not do anything that is likely to cause the death of, or grievous
bodily harm to, the person being arrested unless (i) the officer believes on
reasonable grounds that doing that thing is necessary to protect another life or
to prevent serious injury to another person (including the police officer), and
(ii) the person being arrested has, if practicable, been called upon to
surrender and the officer believes on reasonable grounds that the person cannot
be apprehended in any other manner.
The proposed amendment will replace
the word ‘and’, which presently links subparagraphs (i) and (ii),
with the word ‘or’. Thus, the two conditions will operate as
alternative, rather than conjunctive, conditions. This will remove an
unintentional restriction on the use of force in circumstances where such force
is necessary to protect other lives or prevent serious injury to other
persons.
This Item provides that the amendment proposed by Item 10 only applies to
action taken in the course of arresting a person after the commencement of Item
10, regardless of whether the arrest is made under a warrant issued before or
after that commencement.
This Item will amend section 80 of the IWCT Act by adding a reference to
section 47C of the Crimes Act 1914 to the provisions of the Crimes Act
which are currently referred to in section 80 of the IWCT Act. Section 80
presently provides that sections 46, 47A, and 48 of the Crimes Act (other than
certain stipulated paragraphs) apply as if references in those sections to
custody and arrest in relation to an offence against a law of the Commonwealth
were references to custody and arrest pursuant to the IWCT Act.
The
proposed amendment will add section 47C to this list. Section 47C provides that
a person, charged with the custody or detention of another person in respect of
any offence against a law of the Commonwealth, is guilty of an offence if he or
she intentionally or negligently permits that person to escape. This amendment
will mean that section 47C will also apply to the situation where a person is in
custody for the purposes of the IWCT Act.
This Item provides that the amendment proposed by Item 12 only applies in
relation to the escape of a person after the commencement of Item 12, regardless
of whether the person was in custody prior to that commencement or was arrested
before that commencement.
Item 14
This Item corrects a misdescribed amendment of
section 3ZN of the Crimes Act 1914 which was made by Item 7 of Schedule 1
of the Law and Justice Legislation Amendment Act (No. 2) 1994. That
amendment purported to omit a reference to “court” in subsection
3ZN(2), subparagraph 3ZN(3)(d)(ii) and subsection
3ZN(4) and to substitute a
reference to "magistrate". The amendment failed to state “wherever
occurring” and this proposed amendment corrects that
error.
Mutual Assistance in Business Regulation Act
1992
The objective of Items 15 and 16 is to remove restrictions
on the Attorney-General’s power of delegation in the Mutual Assistance
in Business Regulation Act 1992 (MABR Act).
Item 15
This Item will amend subsection 22(1) of the MABR Act (the provision
allowing the Attorney-General to delegate his powers under the Act) to allow the
Attorney-General to delegate any of all of his powers to the Secretary of the
Attorney-General’s Department or an APS employee. Presently, such powers
can only be delegated to certain designated officers.
This Item will remove the current requirement that if the delegate
considers that, for reasons of national security, a request for assistance from
a foreign government should be refused, the delegate must refer the matter to
the Attorney-General who must deal with it personally. This formal limitation
on the delegation provision is not considered necessary. In practice, the more
routine MABR Act requests will be dealt with by the Attorney-General’s
delegates but more sensitive requests will be referred to the Attorney-General
for personal consideration.
This Item corrects a misdescribed amendment of section 18 of the
Financial Transaction Reports Act 1988 by inserting “(first
occurring)” after “the account” in Item 4 of Schedule 19 of
the Retirement Savings Accounts (Consequential Amendments) Act 1997.
SCHEDULE 3 – TECHNICAL CORRECTIONS RELATING TO PART NUMBERING IN THE CRIMES ACT 1914
The objective of the Items in Schedule 3 is to make minor technical
amendments to replace Parts of the Crimes Act 1914 expressed in Arabic
numerals with Parts expressed in Roman numerals. That corrects erroneous
cross-references in the Crimes Act 1914 and other Commonwealth criminal
laws and is consistent with the drafting policy of the Office of Parliamentary
Counsel to express Parts in the Crimes Act 1914 in Roman
numerals.
Commonwealth Places (Application of Laws) Act
1970
Item 1
This Item replaces “Part
1AA”, which contains an Arabic numeral, with “Part IAA”, which
contains a Roman numeral.
Crimes Act 1914
These Items replace occurrences of “Part 1AA”, which
contains an Arabic numeral, with “Part IAA”, which contains a Roman
numeral.
This Item corrects a misdescribed amendment of the Crimes Act 1914
by replacing “Part 1” with “Part I” in section 4 of the
Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994.
This Item corrects a misdescribed amendment of the Crimes Act 1914
by correcting an incorrect heading (ie. Part 1A) in the Crimes Amendment
(Controlled Operations) Act 1996.
This Item replaces “Part 1B”, which contains an Arabic
numeral, with “Part IB”, which contains a Roman
numeral.
Crimes Act 1914
Items 8 to
13
These Items replace occurrences of “Part 1B”, which
contains an Arabic numeral, with “Part IB”, which contains a Roman
numeral.
Item 14
This Item replaces “Part 1B”, which
contains an Arabic numeral, with “Part IB”, which contains a Roman
numeral.
This Item replaces “Part 1C”, which contains an Arabic
numeral, with “Part IC”, which contains a Roman
numeral.
Crimes Act 1914
Items
16-29
These Items replace occurrences of “Part 1C”, which
contains an Arabic numeral, with “Part IC”, which contains a Roman
numeral.
Customs Act 1901
Item 30
This
Item replaces “Part 1C”, which contains an Arabic numeral, with
“Part IC”, which contains a Roman numeral.
Environment
Protection and Biodiversity Conservation Act 1999
Items 31 and
32
These Items replace occurrences of “Part 1C”, which
contains an Arabic numeral, with “Part IC”, which contains a Roman
numeral.
Excise Act 1901
Item
33
This Item replaces “Part 1C”, which contains an Arabic
numeral, with “Part IC”, which contains a Roman
numeral.
Export Control Act 1982
Item
34
This Item replaces “Part 1C”, which contains an Arabic
numeral, with “Part IC”, which contains a Roman
numeral.
Quarantine Act 1908
Item
35
This Item replaces “Part 1C”, which contains an Arabic
numeral, with “Part IC”, which contains a Roman numeral.
Commonwealth Places (Application of Laws) Act
1970
Item 36
This Item replaces “Part
1D”, which contains an Arabic numeral, with “Part ID”, which
contains a Roman numeral.
Crimes Act 1914
Items
37 to 40
These Items replace occurrences of “Part 1D”,
which contains an Arabic numeral, with “Part ID”, which contains a
Roman numeral.
Crimes Amendment (Forensic Procedures) Act
1998
Item 41
This Item replaces “Part
1C”, which contains an Arabic numeral, with “Part IC”, which
contains a Roman numeral. This corrects amendments to Part 1D of the Crimes
Act 1914 introduced by Schedule 1 of the Crimes Amendment (Forensic
Procedures) Act 1998, which contains an outdated reference to “Part
IC” of the Crimes Act 1914. This amendment corrects that outdated
reference.
Item 42 is a saving provision that is intended to ensure that the
amendments made by the Act do not invalidate instruments made under, or
referring to, a Part heading of the Crimes Act 1914 that is amended by
the Act, and anything done under such an instrument or such a Part. That will
apply whether the instrument was made, or the thing was done, before or after
this Act receives the Royal Assent.