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2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES
LEGISLATION ENHANCEMENT BILL 2002
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 Chris Ellison)
The Bill as introduced makes a number of minor and technical amendments
to various Commonwealth criminal laws.
The proposed amendments are of a
similar nature and will:
• amend Part 1D of the Crimes Act
1914 to enable the DNA profile of an unknown deceased person to be matched
with another DNA profile of an unknown deceased person, and to clarify and
expand the provisions enabling the Minister to enter into arrangements with
participating jurisdictions for sharing DNA information
• make a minor
technical amendment to the Australian Crime Commission Establishment Act
2002
• amend the Australian Protective Service Act 1987 and
the Crimes (Aviation) Act 1991 to assist the deployment of air security
officers on Australian flights to and from selected international
destinations
• amend the Australian Securities and Investments
Commission Act 2001 to allow information to be passed to the Australian
Crime Commission (ACC) in the same circumstances as it may have been passed to
the National Crime Authority (NCA) prior to its cessation on 31 December 2002
and to remove a reference to the Australian Bureau of Criminal Intelligence
which has been incorporated into the ACC
• amend the Corporations
Act 2001 to allow information to be passed to the ACC in the same
circumstances as it may have been passed to the NCA
• amend the
Criminology Research Act 1971 to make it a requirement that the
Criminology Research Council include one member who is a representative of the
Australian Capital Territory, and make relevant consequential
amendments
• amend the Bill as introduced to remove a proposed
amendment to the International War Crimes Tribunal Act
1992
• make minor technical amendments to the Proceeds of Crime
Act 2002 to clarify that the Official Trustee has the power to sell
restrained property (so that, as originally intended, the Official Trustee
can pay a legal aid commission’s legal costs out of the property of a
suspect covered by a restraining order), and
• amend the Service and
Execution of Process Act 1992 to allow parole board warrants to be executed
interstate.
These amendments will not cause any direct financial
impacts.
NOTES ON CLAUSES
Item 1
This item would amend the table in clause 2 of
the Crimes Legislation Enhancement Bill 2002 (‘the Bill’), which
establishes when each measure in the Bill will commence. Item 1 would insert
new articles 2A and 2B into the commencement table.
Article 2A of the
commencement table sets out when Item 7A of Schedule 1 will commence. Item 7A
of Schedule 1 would amend section 23YDAF of the Crimes
Act
1914 (Crimes Act), which forms part of the Commonwealth forensic procedures
regime. Section 23YDAF contains the table which enables matching of certain DNA
profiles. The amendment would enable the DNA profile of an unknown deceased
person to be matched with another DNA profile of an unknown deceased person.
Article 2A provides for this amendment to commence on Royal Assent.
Article 2B of the commencement table provides for the proposed
amendments in Items 7B-7F (inclusive) of Schedule 1 to commence on 1 March 2003.
Those Items would also amend the forensic procedures regime in the Crimes Act,
and would clarify and expand the provisions enabling the Minister to enter into
arrangements with participating jurisdictions to share DNA information. By
commencing on 1 March 2003, the amendments will have some retrospective
application; however, this application will not impose any criminal liability,
or remove any existing rights or privileges. The provisions are to commence on
1 March 2003 to enable participating jurisdictions to prepare relevant
arrangements on the basis of the proposed amendments as soon as possible.
The amendments in Items 7A-7F of Schedule 1 are Items 9, 10 and 11 of
the Government Amendments.
Item 2
This item would amend the
table in clause 2 of the Bill, which establishes when each measure in the Bill
will commence. Item 2 would insert new article 4A into the commencement table.
Article 4A of the commencement table sets out when Item 1AA of Schedule
2 will commence. Item 1AA of Schedule 2 would amend section 2 of the
Australian Crime Commission Establishment Act 2002 (ACC Establishment
Act) to correct an error in that section. The section currently refers to the
Communications Legislation Amendment Act (No.1) 2002, but should refer to
the Communications Legislation Amendment Act (No. 1) 2003.
Article 4A provides for Item 1AA of Schedule 2 to commence immediately
after the commencement of section 2 of the ACC Establishment Act. Section 2 in
turn is to commence after the Schedule 3 of the Communications Legislation
Amendment Act (No. 1) 2003 commences. As at the introduction of these
amendments that legislation has not passed through parliament, and so has not
yet commenced.
The amendment in Item 1AA of Schedule 2 is Item 12 of
the Government Amendments.
Item 3
This item would amend
the table in clause 2 of the Bill, which establishes when each measure in the
Bill will commence. Item 3 would insert new articles 5A and 5B into the
commencement table.
Article 5A of the commencement table sets out when
Item 1A of Schedule 2 will commence. Item 1A of Schedule 2 would expand the
definition of ‘police officer’ in the Australian Protective
Service Act 1987 to include a member of a foreign police force. Article 5A
provides for this amendment to commence on Royal Assent.
Article 5B of
the commencement table sets out when Items 1B-1F (inclusive) of Schedule 2 will
commence. Those Items are consequential amendments flowing from the creation of
the Australian Crime Commission as a replacement for the National Crime
Authority, the Office of Strategic Crime Assessments and the Australian Bureau
of Criminal Intelligence. Article 5B provides for those amendments to apply
from 1 January 2003, which is appropriate as that is the date on which the
Australian Crime Commission commenced.
The amendments in Items 1A-1F of
Schedule 2 are Items 13 and 14 of the Government Amendments.
Item
4
This item would amend the table in clause 2 of the Bill, which
establishes when each measure in the Bill will commence.
Item 4 amends
the table to provide for the commencement of Items 4A and 4B of Schedule 2 of
the Bill. Items 4A and 4B of Schedule 2 would amend the Crimes (Aviation)
Act 1991 to enable a person taken into custody on board an aircraft to be
delivered into the custody of a member of a foreign police force where that
aircraft lands in a foreign country.
This item provides for the
amendments to the Crimes (Aviation) Act 1991 to commence on Royal Assent.
Items 4A and 4B of Schedule 2 are Item 15 of the Government Amendments, and are
discussed in more detail below.
Item 5
This item would
amend the table in clause 2 of the Bill, which establishes when each measure in
the Bill will commence.
Item 5 amends the table to provide for the
commencement of Items 6A-6P (inclusive) of Schedule 2 of the Bill. Items 6A-6P
of Schedule 2 would amend the Criminology Research Act 1971 to enable the
Australian Capital Territory (ACT) to be represented on the Criminology Research
Council.
This item provides for the amendments to the Criminology
Research Act 1971 to commence on Royal Assent. Items 6A-6P of Schedule 2
are Item 16 of the Government Amendments.
Item 6
This item
would amend the table in clause 2 of the Bill, which establishes when each
measure in the Bill will commence. Item 6 would insert new article 10A into the
commencement table.
Article 10A of the commencement table sets out
when Items 16A-16E (inclusive) of Schedule 2 will commence. Items 16A-16E of
Schedule 2 would amend the Proceeds of Crime Act 2002 (POC Act) to put
beyond doubt that the Official Trustee has the necessary power of sale to enable
him to comply with obligations he or she already has under other sections of the
Act.
This item provides for the amendments to apply from 1 January 2003,
which is the commencement date of the POC Act. The amendments do not impose
further obligations on persons whose assets are restrained under the POC Act,
but ensure that the Official Trustee can reimburse legal aid commissions for
legal assistance provided by the commission. In those circumstances, it is
appropriate that the provisions be backdated.
The amendments in Items
16A-16E of Schedule 2 are contained in Item 19 of the Government
Amendments.
Item 7
This item would amend the table in
clause 2 of the Bill, which establishes when each measure in the Bill will
commence. Item 7 would insert new article 11A into the commencement table.
Article 11A of the commencement table sets out when Items 18 to 22
(inclusive) of Schedule 2 will commence. Items 18 to 22 of Schedule 2 would
amend the Service and Execution of Process Act 1992, and are at Item 20
of the Government Amendments
This item provides for the amendments to the
Service and Execution of Process
Act 1992 to commence on a
single day to be fixed by Proclamation. Regulations are required to be made
before the amendments can be effective, and having the amendments commence on
Proclamation will provide time for this to occur.
The commencement
provision is subject to Item 8 (below).
Item
8
This item would amend clause 2 of the Bill, which establishes when
each measure in the Bill will commence.
Item 8 inserts subsection 2(3),
which provides that if the Items covered by Article 11A of the commencement
table have not commenced within 6 months after Royal Assent, the amendments will
commence on the first day after that 6 month period.
Item 9
This item would amend Schedule 1 of the Bill as introduced to insert
Item 7A.
Item 7A would amend the forensic procedures regime contained in
the Crimes Act to alter the matching table in section 23YDAF and allow
for the matching of the DNA profile of an unknown deceased person with another
DNA profile of an unknown deceased person.
This amendment is necessary
in light of the experiences from the Bali bombing in October 2002, where it was
necessary for DNA from separate body parts to be matched to determine whether
they came from the same body. Such matching may assist in the identification of
unknown deceased persons or in the investigation of Commonwealth offences that
occur in Australia, including terrorist incidents.
Item
10
This item would amend Schedule 1 of the Bill as introduced to
insert Items 7B and 7C.
Item 7B would make a technical amendment to the
definition of ‘corresponding law’. The purpose of the amendment is
to clarify that the definition of a corresponding law is a law that relates to
the carrying out of forensic procedures and DNA databases, and substantially
corresponds with Part 1D of the Crimes Act, or a law that relates to the
carrying out of forensic procedures and DNA databases, and is prescribed by the
regulations for the purposes of the definition.
As currently drafted,
there is a doubt whether a corresponding law that is prescribed by the
regulations has to relate to the carrying out of forensic procedures and DNA
databases. The proposed amendment makes it clear that this must be the case and
also assists in addressing problems raised by the circular nature of the
definition of ‘DNA databases’ referred to below.
This
amendment also clarifies the operation of Division 11 of Part 1D of the Crimes
Act and the ability of the Commonwealth Minister to enter into arrangements
about the DNA database system with responsible Ministers from other
participating jurisdictions.
Item 7C would repeal the definition of
‘DNA database’ in section 23YUA. The purpose of the amendment is to
ensure that the term ‘DNA databases’ in the definition of
‘corresponding law’ is not interpreted as having the same meaning as
the definition of ‘DNA database’. The repealing of the definition
of ‘DNA database’ removes any possibility of circularity of
definitions and ensures that the terms ‘responsible Minister’ and
‘participating jurisdiction’ can be determined to enable the
entering into of arrangements under section 23YUD.
Repealing the definition
of ‘DNA database’ will have no effect on the references in section
23YUD to ‘the DNA database system’ or ‘a DNA database
system’. Paragraph 23YUD(1)(a) is clearly drafted to refer to ‘the
DNA database system of the Commonwealth’ and paragraph 23YUD(1)(b) clearly
refers to ‘a DNA database system of the participating jurisdiction’.
Such a distinction is also clear in the Division 11A provisions that
were originally intended to rely on the ‘DNA database’ definition
(eg. sections 23YUH and 23YUI) as they specify that it is a ‘DNA
database’ of a participating jurisdiction.
Item
11
This item would amend Schedule 1 of the Bill as introduced to
insert Items 7D to 7F (inclusive).
Item 7D would repeal subsection
23YUD(1) and replace it with new subsections 23YUD(1) and (1A).
Proposed subsection 23YUD(1) will enable the Minister to enter into
arrangements, on behalf of the Commonwealth, with participating jurisdictions
for sharing DNA information that may be relevant to the investigation of a
matter. Previously the Minister was limited only to entering into arrangements
for the investigation of an offence. The reference to ‘on behalf of the
Commonwealth’ clarifies that the Minister is entering into such
arrangements on behalf of the Commonwealth and not in his personal
capacity.
What constitutes an investigation of a matter is defined in
subsection 23YUD(3) and includes the investigation of an offence, the
investigation of a missing person or an investigation which is conducted to
identify a deceased person.
The proposed amendment is consistent with
section 23YDAF which provides for permissible matching of DNA profiles on an
index of the DNA database in accordance with a matching table. That matching
table allows for the matching of DNA information for missing persons and unknown
deceased persons.
Proposed subsection 23YUD(1) also clarifies the
original intention of that section that the arrangements are not limited to mere
transmission of information, but would also include the keeping and otherwise
managing of such information which is associated with the transmission of
information.
The purpose of proposed subsection 23YUD(1A) is to ensure
that CrimTrac is not precluded from entering into memoranda of understanding or
other arrangements, on behalf of the Commonwealth, with a participating
jurisdiction in relation to the transmission of information to or from a DNA
database system of the Commonwealth or of any participating jurisdiction. As
with proposed subsection 23YUD(1) it is also made clear that the memorandum of
understanding or other arrangements are not limited to the transmission of
information, but can also include the keeping and otherwise managing of such
information.
The reference to CrimTrac on behalf of the Commonwealth
clarifies that CrimTrac is an Executive Agency and is entering into the
memoranda of understanding or other arrangements as an agent of the Commonwealth
and not in its own capacity.
Proposed subsection 23YUD(1A) will also
clarify that the arrangements referred to in proposed subsection 23YUD(1) are
not the only form of arrangements that can be entered into under Part 1D of the
Crimes Act. For example, the reference to ‘any arrangement’ in
paragraph 23YO(2)(d) is also intended to include a memorandum of understanding
or other type of arrangement entered into by CrimTrac (on behalf of the
Commonwealth) with another State or Territory for the provision of access to
information contained in the DNA database system by law enforcement officers or
by any other persons prescribed by the regulations. It is intended that
CrimTrac can be a party to memoranda of understanding or other arrangements that
facilitate, for example:
• the uploading of DNA information to
CrimTrac from DNA database systems of participating
jurisdictions
• intra jurisdictional matching of DNA profiles from a
participating jurisdiction
• matching between DNA profiles from a
participating jurisdiction and the Commonwealth, and
• matching between
DNA profiles of two or more participating jurisdictions, other than the
Commonwealth.
Item 7E would insert proposed new definitional terms in
section 23YUD. Those terms are consequential on the other amendments made to
Part 1D of the Crimes Act by this Bill.
Item 7F is a transitional
provision. The provision makes it clear that any arrangements entered into
under subsection 23YUD(1) before the commencement of this Item and which are in
force immediately before this commencement will continue to be in force after
the commencement of the amendments as if the arrangements had been entered into
under section 23YUD(1) as amended by this Schedule.
Item
12
This item would amend Schedule 2 of the Bill as introduced to
insert Item 1AA, which makes a minor technical amendment to the commencement
provision of the ACC Establishment Act.
The commencement
provision of the ACC Establishment Act refers to the Communications
Legislation Amendment Act (No 1) 2002. It should refer to the
Communications Legislation Amendment Act (No 1)
2003.
Item 13
This item would amend
Schedule 2 of the Bill as introduced to insert Item 1A.
Subsection
17(1) of the Australian Protective Service Act 1987 (APS Act) requires a
protective service officer who arrests a person for an offence to deliver the
person into the custody of a ‘police officer’ to be dealt with
according to the law. The term ‘police officer’ is defined in
subsection 3(1) of the APS Act. That definition is currently limited to
Australian police officers. Item 1A would amend the definition of ‘police
officer’ in the APS Act to include a reference to a member, however
described, of a police force of a foreign country.
This amendment
will work in conjunction with the proposed amendments in Item 15 to allow a
protective service officer who arrests an alleged offender on an international
flight that ends in a foreign country, to deliver that alleged offender into the
custody of a member of a police force of a foreign country.
Item
14
This item would amend Schedule 2 of the Bill as introduced to
insert Items 1B-1F (inclusive), which would amend the ASIC Act and the
Corporations Act to reflect the creation of the Australian Crime Commission
(ACC) as a replacement for the National Crime Authority (NCA).
The
amendments are consequential on the replacement of the NCA with the ACC and the
incorporation of the Australian Bureau of Criminal Intelligence (ABCI) and the
Office of Strategic Crime Assessments into the new organisation. The amendments
will enable the legislation to operate in the same way in respect of the ACC as
it has with the NCA. The amendments were not included in the ACC Establishment
Act due to the need to seek approval for the changes from the Ministerial
Council for Corporations. That approval has now been obtained.
The
amendments are to apply from 1 January 2003 which is the date on which the ACC
replaced the NCA. This will ensure an effective transition from the NCA to the
ACC. The amendments do not make any substantive changes to the effect of the
primary provisions.
ASIC Act
Item 1B would amend paragraph
18(2)(b) of the ASIC Act to replace the reference to the NCA with a reference to
the Chief Executive Officer of the ACC or a member of the staff of the ACC.
Section 18 of the ASIC Act allows for the distribution by ASIC of reports into
investigations under sections 13 and 14 of the Act. Paragraph 18(2)(b)
currently provides that where a report relates to a ‘serious contravention
of a law of the Commonwealth, or a State or Territory’, ASIC may give a
copy of the report to the NCA.
Item 1C would repeal subparagraph
127(4)(aa)(i) of the ASIC Act. Subparagraph 127(4)(aa)(i) of the ASIC Act
allows for the Chairperson of ASIC to pass information to the ABCI where it
would enable or assist the ABCI to perform any of its functions or powers. The
ABCI now forms part of the ACC. As the ACC exercises different functions to
those of the ABCI, and as there are other provisions that allow for the passing
of information by ASIC to the ACC in appropriate circumstances, this item
repeals paragraph 127(4)(aa)(i).
Corporations
Act
Item 14 would amend Schedule 2 of the Bill as introduced to
insert Items 1D-1F (inclusive).
Those Items amend three sections of
the Corporations Act which deal with compliance assessments by ASIC or the
Reserve Bank. These sections allow either ASIC or the Reserve Bank to give
information to the NCA where a compliance assessment reveals ‘a serious
contravention of a law of the Commonwealth or of a State or Territory’.
Section 794C relates to assessments by ASIC of compliance by market licensees.
Section 823C relates to assessments by ASIC of compliance by clearing and
settlement facility licensees. Section 823CA relates to assessments by the
Reserve Bank of compliance by clearing and settlement facility
licensees.
The three sections are amended to allow information to be
passed to the Chief Executive Officer of the ACC or a member of the staff of the
ACC.
Item 15
This item would amend Schedule 2 of the Bill
as introduced to insert new Items 4A and 4B which amend the Crimes (Aviation)
Act 1991.
Subsection 33(2) of the Crimes (Aviation) Act currently
requires a protective service officer who takes a person into custody for a
prohibited act to bring the person before an Australian magistrate. Item 4A
would amend subsection 33(2) so that its application is subject to proposed
subsection 33(2A) (see Item 4B).
Item 4B would insert proposed subsection
33(2A) into the Crimes (Aviation) Act to provide for the delivery of a person
arrested by a protective security officer on an aircraft in a flight that ends
in a foreign country into the custody of a member of a police force of a foreign
country. The provision also authorises the protective security officer to hold
such a person in custody until they can deliver that person into the custody of
a member of a police force of a foreign country.
Item
16
Item 16 would amend Schedule 2 of the Bill as introduced to insert
Items 6A-6P (inclusive). Those Items propose amendments to the Criminology
Research Act 1971 to provide for the Australian Capital Territory (ACT) to
be represented on the Criminology Research Council.
Item 6E would
amend subsection 35(1) of the Criminology Research Act by inserting a new
paragraph 35(1)(ba) that provides that the Criminology Research Council must
include one representative from the ACT. Currently the Council consists of a
representative from all jurisdictions except the ACT.
The remaining
amendments are consequential upon the amendment proposed by Item 6E.
Item 6A would amend the definition of ‘the appropriate
Minister’ in section 4 of the Criminology Research Act by inserting a
reference to a Minister of the ACT. This will ensure that references to
‘appropriate Minister’ contained in the Criminology Research Act
include the relevant ACT Minister.
Items 6B and 6C would amend
paragraphs 6(b) and 6(hb) of the Criminology Research Act to insert appropriate
references to the ACT in those provisions. Section 6 of the Criminology
Research Act provides the functions of the Criminology Research Council.
Item 6D would amend subsection 35(1) of the Criminology Research Act by
substituting the number eight for the number nine, increasing the number of
members who comprise the Council. Currently the Council consists of eight
members, of whom one representative must be from the Commonwealth, each State
and one representative from the Northern Territory. The number of
representatives comprising the Criminology Research Council will increase with
the requirement that the Criminology Research Council include a member
representing the ACT.
Item 6F would amend subsection 35(3) of the
Criminology Research Act to insert a reference to a member who is to represent
the ACT. Subsection 35(3) of the Act provides for the appointment of members
representing each jurisdiction to the Criminology Research Council.
Item
6G would amend subsections 35(3) of the Criminology Research Act by removing the
second specific reference to ‘the Northern Territory’ and replacing
it with a generic reference to ‘or that Territory’ to include the
ACT. Subsection 35(3) of the Act provides for the appointment of members to the
Council.
Items 6H and 6J would amend subsection 35(4) of the
Criminology Research Act to insert appropriate references to the ACT in that
subsection. Subsection 35(4) provides for the removal from office of a member
of the Criminology Research Council.
Item 6K would amend subsection
36(1) of the Criminology Research Act by inserting a new paragraph 36(1)(ba) to
provide for appointment of a deputy member of the Council to represent the ACT.
Section 36 provides for the appointment of deputies to the members of the
Council.
Item 6L would amend subsection 36(2) of the Criminology
Research Act to refer to the ACT. Subsection 36(2) provides for the revocation
of the appointment of deputy members of the Criminology Research Council.
Item 6M would amend section 38 of the Criminology Research Act to refer
to the ACT by inserting subsection (2A) to provide for the resignation of a
member or deputy member of the Criminology Research Act who represents the ACT.
Item 6N would amend paragraphs 43(a) and (b) of the Criminology Research
Act to include appropriate references to the ACT. Section 43 of the Act
requires that a copy of the Council’s annual report must be provided to
the appropriate Minister and Auditor-General of each State and
Territory with a representative on the Council. This Item will ensure that a
copy of the Criminology Research Council’s annual report is provided to
the relevant ACT Minister and the ACT Auditor-General.
Item 6P would
amend paragraph 46(b) of the Criminology Research Act by including an
appropriate reference to the ACT. Section 46 of the Criminology Research Act
provides for the payment of certain moneys into the Criminology Research Fund.
Paragraph 46(b) provides that any moneys paid by a State or the Northern
Territory to the Commonwealth, or to the Council, for the purposes of the
Criminology Research Fund shall be paid into that fund. The proposed amendment
will insert a reference to the ACT so that any moneys paid by the ACT to the
Fund will be treated in the same way as moneys paid by other jurisdictions
represented on the Criminology Research Council.
Item
17
This item would amend Item 10 of Schedule 2 of the Bill as
introduced by inserting a note at the end of that Item that states that the
proposed amendment is ‘to be opposed’.
Item 10 of Schedule
2 of the Bill amends subparagraph 66(2)(b)(i) of the International War Crimes
Tribunal Act 1995 (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, where a person is attempting to
escape arrest by fleeing, 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 would have replaced the word ‘and’,
which presently links subparagraphs (i) and (ii), with the word ‘or’
to make the two conditions operate as alternative, rather than conjunctive,
conditions.
The amendment has been removed after further consideration.
This item would amend Item 11 of Schedule 2 of the Bill as introduced to
insert a note at the end of Item 11 stating that the proposed amendment is to be
opposed.
Item 11 of Schedule 2 of the Bill as introduced sought to
provide for the application of 10 of Schedule 2 of the Bill as introduced. Item
11 would have provided that the amendment made by Item 10 applies to action
taken in the course of arresting a person after the commencement of Item 11,
regardless of whether the arrest is made under a warrant issued before or after
that commencement. This amendment is consequential upon the opposition to Item
10 of Schedule 2 of the Bill as introduced.
Item 19
This
item would amend Schedule 2 of the Bill as introduced to insert new
Items
16A-16E (inclusive).
Items 16A-16E would amend the Proceeds of Crime
Act 2002 (POC Act) which commenced on 1 January 2003. The Items are also to
commence on 1 January 2003, since they are intended to put beyond doubt that the
Official Trustee has the necessary power of sale to enable him to comply with
obligations that he already has under other sections of the Act.
Item
16A would insert proposed section 267A into Part 4-1 of the POC Act. Part 4-1
deals with the powers and duties of the Official Trustee and existing section
267 in Part 4-1 provides that the powers and duties relate to controlled
property.
Controlled property is property over which a court has made
an order under section 38 of the POC Act for the Official Trustee to take power
and control. Proposed section 267A provides that the Official Trustee may
exercise powers under Division 3 (dealings relating to controlled property) for
the purpose of paying legal aid commission costs (under section 292 of the Act)
out of property covered by a restraining order as if such property were
controlled property. This section is necessary because the Official
Trustee’s powers only relate to ‘controlled property’.
‘Controlled property’ is property the subject of a restraining order
over which a court has made a section 38 order giving the Official Trustee
custody and control over the property.
The effect of proposed section
276A is to deem restrained property which is not also the subject of a section
38 order to be controlled property so that the Official Trustee may dispose of
such property for the purposes of section 292 of the Act without first having to
obtain a section 38 order over the property.
Item 16B would add a new
paragraph (d) to subsection 278(2) of the Act. Paragraph 278(2)(d) gives the
Official Trustee an express power of disposal (by sale or other means) of
controlled property where this is necessary for the Official Trustee to meet
obligations under section 292 of the Act. Section 292 provides that the
Official Trustee must pay a legal aid commission’s legal costs out of the
property of a suspect or of another person where the property is covered by a
restraining order and where the legal costs were incurred in representing the
suspect in criminal proceedings or in proceedings under the Act (or in
representing the person in proceedings under the Act). The commission’s
representation must have been in accordance with the applicable legal assistance
guidelines.
Proposed paragraph 278(2)(d) is being inserted to put
beyond doubt that the Official Trustee has the power of disposal (by sale or
other means) of the restrained property where this is necessary for the Official
Trustee to meet a legal aid commission’s legal costs.
Item 16C
would insert a new subsection 279(3). Section 279 requires the Official
Trustee to give notice of proposed destruction or disposal to the owner of the
property or to other persons who have an interest in the property. Persons
receiving the notice can object in writing to the destruction or disposal.
Where the property is being disposed of to enable the Official Trustee to pay
legal aid commission costs, proposed subsection 279(3) will limit the right of
objection. The right of objection will only be available where the value of the
controlled property exceeds the money payable to the legal aid commission and
the person and the Official Trustee have failed to agree on which particular
item of property should be disposed of. The objection must relate only to the
items that should be disposed of and the person must indicate items to which
there is no objection to disposal.
Item 16D would insert new subsection
280(4A) which requires that a court must make an order for disposal of
controlled property or a specified item or portion of the property if the court
is of the opinion that this is necessary for the Official Trustee to be able to
pay a legal aid commission’s legal costs. This subsection is intended to
ensure that a court does make an order for disposal of controlled property where
the court is of the opinion that such an order is necessary for the Official
Trustee to be able to pay a legal aid commission’s legal costs. For a
court to refuse to make an order in this situation would be contrary to the
intention of the legislation on this aspect.
Item 16E would insert a note
in the Dictionary (which is contained in section 338) after the definition of
the term ‘controlled property’. The definition provides that the
term has the meaning given by section 267. The note to be inserted after the
definition is that section 267A, which is inserted by Item 16A, alters the
meaning of the term for the purposes of Division 3 of Part 4-1. The note is
consequential upon Item 16A.
Item 20
Item 20 would amend
Schedule 2 of the Bill as introduced to insert new Items 18 to 22 inclusive.
Items 18 to 21 would make technical amendments consequential on the
amendment in Item 22.
Item 22 would insert a section into the Service
and Execution of Process Act 1992. The section expands the definition of
‘authority’ for the purposes of Part 5 of the Act, to include
certain prescribed bodies and persons who, under the law of a State, may issue a
warrant for the arrest and return to custody or detention of a person, following
the revocation of a parole order or other similar order. The purpose of the
amendment is to ensure that arrest warrants issued by parole boards and other
similar bodies in one State can be executed in another State provided that the
issuing body has been prescribed for that purpose in regulations.