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2002 - 2003
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES
LEGISLATION ENHANCEMENT BILL 2003
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of the Attorney-General,
the Hon Daryl Williams AM QC MP)
THIS MEMORANDUM TAKES INTO
ACCOUNT AMENDMENTS MADE BY THE SENATE TO THE BILL AS INTRODUCED
This Bill makes a number of minor and technical amendments to various
Commonwealth criminal laws. The amendments made by the Bill
will:
• clarify the rules about the taking of photographs and
fingerprints by making it clear that both may be taken
• clarify the
consequences of a refusal to participate in an identification
parade
• increase 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
• insert a
provision into the Crimes Act 1914 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
• 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 Crimes at Sea Act 2000 to clarify that the laws
that apply in the territorial sea adjacent to the Northern Territory are the
laws of the Northern Territory rather than all laws that are in force in that
Territory
• 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 requirements for authentication of
testimony received from a foreign country by removing outdated requirements for
seals
• augment the assistance given to international war crimes
tribunals including allowing the use of video links
• 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)
• amend the Service and Execution of Process Act
1992 to allow parole board warrants to be executed
interstate
• make other minor technical amendments to the Crimes Act
1914, Australian Federal Police Act 1979 and the Mutual Assistance
in Business Regulations
Act 1992, and
• correct
misdescribed amendments.
There are no direct financial impacts flowing from this Bill.
NOTES ON CLAUSES
Clause 1 Short Title
This is a formal clause which provides for the citation of the Act.
Clause 2 Commencement
This clause establishes when each
measure in the Bill will commence. The commencement details are set out in a
table. Most provisions will take effect on the Bill receiving Royal Assent.
Those that do not are discussed below.
Schedule 1, Items 7B to 7F would
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. The commencement table
prescribes that the amendments will commence on 1 March 2003. This
will result in the amendments having 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.
Schedule 1,
Items 8 and 9 correct grammatical errors made in previous amendments, 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.
Schedule 2, Items 1,
1AA, 5, 6, 14 and 17 correct misdescribed amendments 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.
Schedule 2, Items 1B to 1F (inclusive) 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.
The commencement table provides for those amendments to apply from 1 January
2003, which is the date on which the Australian Crime Commission commenced.
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.
Schedule 2, Items 16A to 16E 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. The commencement table
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.
Schedule 2, Items 18 to
22 amend the Service and Execution of Process Act 1992 and are
taken to commence on a single day fixed by proclamation, subject to subsection
2(3). Subsection 2(3) provides that where these amendments do not commence
within a period of 6 months beginning on the day on which the Act receives Royal
Assent, it commences on the first day after the end of that period.
Schedule 3, Items 5, 6, 15 to 35 and 41 correct misdescriptions of Part
numbering in the Crimes Act, 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.
Clause 3 Schedules
This clause 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 would insert proposed
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 would also
insert proposed subsections 3ZL(3B) and (3C) to provide that it is an offence
for a person to intentionally contravene an order made under proposed subsection
3ZL(3A). Proposed 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 of the Crimes Act 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 about
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 would repeal paragraph
3ZM(3)(b) and insert two new subparagraphs.
The first proposed
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 the proposed
amendments in this Part is to extend the class of indictable offences that may
be dealt with summarily.
Item 4
This Item would amend
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. The threshold value in
ss4J(4) is currently no more that $500. This 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 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
proposed section 4JA to increase the circumstances in which certain indictable
offences may be dealt with summarily. Section 4J of the Crimes Act 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, 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 3A – Forensic
Procedures
Item 7A
This Item 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 7B
This Item 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
This Item 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’. Repealing 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 7D
This Item would repeal subsection
23YUD(1) and replace it with new subsections 23YUD(1) and (1A).
Proposed subsection 23YUD(1) would 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 subsection proposed 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
This Item would insert 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
This Item 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.
Part 4 – Technical
corrections of sentencing and parole provisions
This Item corrects a grammatical error in the Crimes Act by replacing a
semicolon with a colon in paragraph 16A(2)(f).
This Item corrects a grammatical error in the Crimes Act by
inserting a comma in paragraph 19AS(1)(b).
SCHEDULE 2 - AMENDMENT OF OTHER ACTS
Australian Crime Commission Establishment Act
2002
Item 1AA
This Item would make a minor
technical amendment to the commencement provision of the Australian Crime
Commission Establishment Act 2002 (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.
Australian Federal Police Act 1979
Item
1
This Item would make 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.
Australian Protective
Service Act 1987
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.
Proposed 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
works in conjunction with the amendments made by Items 4A and 4B of Schedule 2
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.
Australian Securities and Investments Commission Act 2001 and
Corporations Act 2001
Item 1B
This Item would
amend paragraph 18(2)(b) of the Australian Securities and Investments
Commission Act 2001 (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.
This amendment, the proposed
amendment in Item 1C and the proposed amendments to the Corporations Act
2001 in Items 1D-1F 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 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.
Item 1C
This Item 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
2001
Items 1D to 1F
These Items would 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 would be amended to allow
information to be passed to the Chief Executive Officer of the ACC or a member
of the staff of the ACC.
Crimes at Sea Act
2000
Items 2 and 3
These Items will 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.
Crimes
(Aviation) Act 1991
Item 4A
Subsection 33(2) of the
Crimes (Aviation) Act 1991 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
Item 4B would insert proposed new 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. Proposed subsection 33(2A)
will operate as an exception to the position in subsection 33(2) of the Crimes
(Aviation) Act, which requires a protective service officer who takes a person
into custody for a prohibited act to bring the person before an Australian
magistrate.
This Item would correct a misdescribed amendment of section 19B of the
Crimes Act by substituting “the law” for “a law” in
paragraph 10(a) of the Crimes Legislation Amendment Act (No.2) 1989.
This Item would correct a misdescribed amendment of section 21B of the
Crimes Act by substituting “a law” for “the law” in
paragraph 17(a) of the Crimes Legislation Amendment Act (No.2)
1989.
Criminology Research Act 1971
Items 6A to 6P
would make 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
This Item 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
This Item 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
These
Items 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
This Item would amend
subsection 35(1) of the Criminology Research Act by substituting the
number eight for the number nine, thereby 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
This Item 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
This Item 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
These Items 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
This Item would
amend subsection 36(1) of the Criminology Research Act by inserting
proposed 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
This Item
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
This
Item 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
This Item 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 amendment 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
This Item 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 would 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 7
This Item would amend subsection 22(2) of the
Foreign Evidence Act 1994 (FE Act) 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 FE Act 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 would 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 would 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 would 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
currently 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 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 would 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. Currently, such
powers can only be delegated to certain designated officers.
This Item would 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.
Proceeds of Crime Act
2002
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
This Item would insert 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
This Item would add new paragraph (d) to subsection 278(2) of the
POC 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.
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
This Item would insert proposed 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
This Item would insert proposed
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
This Item inserts 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.
Retirement
Savings Accounts (Consequential Amendments) Act 1997
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.
Service and Execution of Process
1992
Items 18 to 21
These Items make technical
amendments consequential on the amendment in Item 22.
Item
22
This Item would insert proposed section 81A 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.
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 expressed in Arabic
numerals with Parts expressed in Roman numerals. That corrects erroneous
cross-references in the Crimes Act 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 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 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 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 introduced by Schedule 1 of the Crimes Amendment (Forensic
Procedures) Act 1998, which contains an outdated reference to “Part
IC” of the Crimes Act. 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 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.