Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF
AUSTRALIA
SENATE
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Justice and
Customs, Senator the Honourable
Chris Ellison)
This Bill amends the Crimes Act 1914 (Crimes Act), Australian
Federal Police Act 1979 (AFP Act), Customs Act 1901 (Customs Act) and
Financial Transaction Reports Act 1988 (FTR Act) to:
• extend the scope of the controlled operations provisions to
enable operations against a broader range of criminal activity subject to
appropriate limitations and accountability measures;
• provide a
framework for intelligence and law enforcement agencies to obtain and use
evidence of identity for the purpose of creating assumed identities for use in
the performance of their functions, subject to authorisation and audit
mechanisms;
• provide protection for child victims and witnesses
appearing in Commonwealth sex offence proceedings;
• make minor and
technical amendments including amendments to the provisions dealing with the
investigation and prosecution of Commonwealth offences;
• permit a
warrant authorising the use of a listening device in relation to a particular
item to be sought;
• clarify that financial transaction intelligence
provided to AUSTRAC by comparable foreign agencies is FTR information and give
AUSTRAC a power to inspect the record keeping systems of cash carriers;
and
• prescribe CrimTrac for the purposes of the Part VIIC (pardons,
quashed convictions and spent conviction).
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
List of Abbreviations
AFP Australian Federal
Police
Customs Australian Customs Service
NCA National Crime
Authority
The short title of this Act is the Measures to Combat Serious and
Organised Crime Act 2001.
This clause provides that sections 1, 2 and 3 of this Act commence on the day
on which the Act receives Royal Assent.
Schedules 1 and 2 of this Act
commence on a day or days to be fixed by Proclamation. If either Schedule 1 or
2 has not commenced within 6 months of Royal Assent, then the Schedule(s) that
has not commenced, commence on the first day after the end of the 6-month
period. This will allow time to make the regulations necessary to give effect
to the amendments.
Item 10 of Schedule 4 of this Act will commence on a
day to be fixed by Proclamation. This Item repeals a provision that provides
that the existing provisions of Part 1C apply to the investigation of certain
Australian Capital Territory (ACT) offences. The ACT is considering a proposal
to enact its own regime, essentially replicating the Commonwealth’s Part
1C, to apply to ACT offences. This is consistent with the fact that the ACT has
enacted its own criminal investigation provisions in other contexts. However,
the timing of any such measure has not yet been determined.
While an
upper limit would normally be placed on the date by which an amendment comes
into force, in this case such a limit would create the risk that Part 1C would
cease to apply to the investigation of ACT offences without a new ACT regime
having been put in place. On the other hand, this Act was considered the best
vehicle to take forward this measure (rather than delaying further) given that
(i) the Act contains a broader package of ‘Part 1C’ measures; (ii)
if the ACT was required to enact its own amendments first, there might then be
significant further delay awaiting a Commonwealth amendment of the kind proposed
in this Item.
The remaining provisions of the Act commence the
28th day after the day on which it receives the Royal
Assent.
This clause provides that, subject to the commencement provision, each Act that is specified in a Schedule is amended as set out in that Schedule.
Crimes Act 1914
The purpose of this Schedule is to
amend the existing controlled operation provisions in Part 1AB of the Crimes
Act. The existing provisions are limited to exempting from criminal liability
law enforcement officers who commit narcotic drug offences, such as importation
of a prohibited substance, in the course of obtaining evidence that may lead to
the prosecution of a person for specified drug offences. The proposed new
provisions will:
• expand the operation of controlled operations to
apply to the investigation of all Commonwealth offences;
• expand the
exemption from criminal liability to cover all Commonwealth, State and Territory
offences and persons other than law enforcement officers;
• introduce
indemnification from civil liability for both law enforcement officers and other
persons;
• expand the group of persons who may apply for and who may
authorise a controlled operation;
• make consequential amendments to
enhance the reporting and accountability regimes; and
• make
adjustments to other aspects of the framework regulating controlled operations
and evidence derived from them.
Item 1
This Item inserts a
definition of the term AFP authorising officer into subsection
3(1) and provides that it will have the meaning given by proposed subsection
15J(3) (see Item 17).
Item 2
This Item inserts a definition
of the term appropriate authorising officer into subsection 3(1)
and provides that any AFP authorising officer, NCA authorising officer or
Customs authorising officer will be an appropriate authorising officer in
relation to a certificate authorising a controlled operation if the certificate
was given by an authorising officer of the same agency.
Item
3
This Item amends the definition of the term authorising
officer in subsection 3(1) and provides that an authorising officer in
relation to a controlled operation has the meaning given by proposed section 15J
(see Item 17).
Item 4
This Item inserts a definition of the
term Commonwealth offence into subsection 3(1) and provides that a
Commonwealth offence means (other than in Part 1C) an offence against a law of
the Commonwealth. Part 1C has a different definition of ‘Commonwealth
offence’ (section 23B) which excludes Defence Force Discipline Act
1982 service offences.
Item 5
This Item inserts a
definition of the term Customs authorising officer into subsection
3(1) and provides that it will have the meaning given by proposed subsection
15J(5) (see Item 17).
Item 6
This Item inserts a definition
of the term illicit goods into subsection 3(1) and provides that
illicit goods mean goods the possession of which is a contravention of a law of
the Commonwealth, a State or a Territory. With the proposed expansion of the
controlled operation provisions to cover the investigation of all Commonwealth
offences, there needs to be a consequential expansion of the type of goods that
may be involved in the controlled operation for which special consideration
needs to be given (for example in relation to the information in the certificate
(see Items 21and 22) and reporting requirements (see Item 35)).
Item
7
This Item repeals the definition of the term narcotic goods
offence from subsection 3(1) as consequence of the proposed expansion of
the controlled operations regime to cover the investigation of all Commonwealth
offences and the introduction of the term illicit goods.
Item
8
This Item inserts a definition of the term NCA authorising
officer into subsection 3(1) and provides that it will have the meaning
given by proposed subsection 15J(4) (see Item 17).
Item
9
This Item inserts a definition of the term quarter
into subsection 3(1) and provides that a quarter means a period of 3 months
ending on 31 January, 30 April, 31 July or 31 October for the purpose of
reporting requirements under proposed section 15R (see Item 34).
Item
10
This Item inserts a definition of the term senior executive
Customs employee into subsection 3(1) and provides that a senior
executive Customs employee will be a member of the staff of the Australian
Customs Service, referred to in section 15 of the Customs Administration Act
1985, who is an SES employee (ie, a Senior Executive Service employee).
Item 11
This Item inserts a new heading for Part 1AB
Controlled operations for obtaining evidence about Commonwealth offences
reflecting the fact that under the proposed amendments controlled operations
will no longer be limited to offences concerning narcotic goods.
Subsection 15G(1) outlines the objects of the controlled operation
provisions. Paragraph 15G(1)(a) currently provides that one object of the
provisions is to exempt from criminal liability a law enforcement officer who in
the course of a controlled operation takes an active part in a narcotic goods
offence such as importation or exportation of such substances. (Exemption from
criminal liability is currently limited to narcotic goods offences consistent
with the fact that a controlled operation can only be conducted in relation to
the investigation of narcotic goods offences.)
With the proposed
expansion of the controlled operation provisions, proposed paragraph 15G(1)(a)
replaces the existing paragraph and provides that an object of the controlled
operations provisions is to exempt from criminal liability and to indemnify from
civil liability law enforcement officers and others who take an active part in
or are otherwise involved in the commission of a Commonwealth, State or
Territory offence during the course of an authorised controlled operation.
This Item amends to subparagraph 15G(1)(b)(i) by adding the “Chief
Executive Officer of Customs” to the list of persons who are required to
report to the Minister under proposed section 15R in relation to a controlled
operation. This is consequential on the fact that senior Customs’
officers would be able to authorise controlled operations under the proposed
amendments (see Item 17).
This Item replaces an incorrect reference to “Act” with a
reference to “Part” in subparagraph 15G(1)(c)(i). This is a minor
drafting error in the existing provision.
This Item adds a reference to “admit” in paragraph 15G(2)(a)
to make it clear that the controlled operation provisions do not limit the
discretion of a court to admit as well as exclude evidence in criminal
proceedings.
This Item inserts proposed section 15GA to provide that a law of a State
or Territory should be able to operate concurrently with the controlled
operation provisions to the extent that those laws are consistent with the new
controlled operation provisions. This is important because of the significance
of joint operations between Commonwealth, State and Territory agencies, relating
to suspected Commonwealth, State and Territory offences.
This Item repeals sections 15H, 15I and 15J and substitutes new
provisions dealing with the expanded definition of controlled operations,
exemption from criminal liability, indemnity from civil liability and the
application for, and authorisation of, a controlled
operation.
Proposed new section 15J: What is a controlled
operation?
Proposed section 15H provides that a controlled
operation is an operation that:
• involves the participation
of law enforcement officers;
• is carried out for the purpose of
obtaining evidence that may lead to the prosecution of a person for a
Commonwealth offence; and
• may involve a law enforcement officer or a
person other than a law enforcement officer in acts or omissions that, apart
from proposed subsections 15I(1) and (2) constitute a Commonwealth, State or
Territory offence.
This proposed definition of controlled operation
replaces the current definition so that a controlled operation may now be
conducted during the investigation of all Commonwealth offences (rather than
being limited to narcotic goods offences) and may involve persons other than law
enforcement officers.
Proposed section 15HA: Meaning of engage in
conduct
Proposed section 15HA is an explanatory provision that
provides that engaging in conduct includes omitting to act and a person’s
conduct includes a person’s omissions.
Proposed new section
15I: Law enforcement officers etc not liable for offences committed for purposes
of authorised controlled operation
The purpose of proposed section
15I is to define the circumstances in which a law enforcement officer or person
other than a law enforcement officer will not be criminally responsible for
otherwise unlawful conduct. This expands the existing section 15I, which only
applies to law enforcement officers and narcotic drug offences.
Proposed
subsection 15I(1) provides that a law enforcement officer is not criminally
responsible for conduct that would otherwise constitute a Commonwealth, State or
Territory offence if:
• he or she engages in that conduct in the
course of duty for the purposes of a controlled operation; and
• the
conduct meets the requirements of proposed subsection 15IB(1).
Proposed
subsection 15I(2) is in similar terms to proposed subsection 15I(1) and exempts
from criminal responsibility a person who is not a law enforcement officer.
Such a person will be exempt from criminal responsibility if:
• the
person engages in conduct that would otherwise constitute a Commonwealth, State
or Territory offence for the purposes of the controlled operation;
• a
law enforcement officer has authorised the person to engage in that conduct; and
• the conduct meets the requirements of proposed subsection
15IB(2).
Proposed subsection 15I(3) provides that proposed subsections
15I(1) and (2) do not affect the liability of any other person whose conduct is
not covered by the certificate notwithstanding that someone whose conduct is
covered by the certificate is not criminally responsible for an offence. The
purpose of this proposed provision is to ensure that the exemption from criminal
responsibility for those covered by the certificate does not result in the
otherwise unlawful conduct being rendered lawful. For example, the fact that a
person involved in an unlawful operations is a participant in an operation and
is subject to a certificate will not mean that the importation becomes
‘lawful’ or that the target of the operation is immunised from
liability.
Proposed subsection 15I(4) provides that subsection 15I(3)
applies despite any provision of Chapter 2 of the Criminal Code to the
contrary to ensure that there is no implication from Chapter 2 that the immunity
conferred on one party negates the elements of an offence otherwise attributable
to a person targeted by the operation.
Proposed subsection 15I(5) is
designed to ensure that goods, which are illegally imported, do not lose that
illegal quality as a result of a being imported as part of a controlled
operation. This means that any other consequence that may flow from the fact
that the goods are illegal (such as forfeiture of the goods) will continue to
apply, notwithstanding that the person who imported the goods is exempt from
criminal responsibility.
Proposed subsection 15I(6) re-enacts existing
paragraph 15I(7)(a) to provide that for the purposes of the proposed section 15I
a member of a police force or other law enforcement agency of a foreign country
is to be taken to be acting in the course of duty to the extent that he or she
is acting in accordance with the instructions given by the Australian law
enforcement officer in charge of the operation.
Proposed section
15IA: Indemnification of law enforcement officers etc
The purpose of
proposed section 15IA is to set out the circumstances in which the Commonwealth
must indemnify both law enforcement officers and others against any liability
incurred because of their conduct.
Proposed subsection 15IA(1) provides
that the Commonwealth must indemnify a law enforcement officer against any
liability the officer incurs as a result of conduct the officer engages in if:
• the conduct is in the course of duty for the purposes of a
controlled operation;
• the conduct meets the requirements of proposed
subsection 15IB(1); and
• the requirements (if any) specified in the
regulations have been met.
Proposed subsection 15IA(2) is in similar
terms to proposed subsection 15IA(1) and provides that the Commonwealth must
indemnify a person who is not a law enforcement officer against any liability
incurred by the person as a result of conduct the person engages in
if:
• the conduct is for the purposes of a controlled
operation;
• a law enforcement officer has authorised the person to
engage in that conduct;
• the conduct meets the requirements of
proposed subsection 15IB(2); and
• the requirements (if any) specified
in the regulations have been met.
Where the conditions in proposed
subsections 15IA(1) and (2) are satisfied, the Commonwealth must indemnify the
law enforcement officer or other person against any liability that arises out of
the conduct of the officer or person. This specifically includes any reasonable
costs, but will also include any liability caused by the
conduct.
Proposed section 15IB: Requirements that must be met for the
purposes of sections 15I and 15IA
Law enforcement
officers
Proposed subsection 15IB(1) sets out the circumstances
in which a law enforcement officer’s conduct will satisfy the requirements
of proposed subsection 15I(1) (to be exempt from criminal responsibility) and
proposed subsection 15IA(1) (to be indemnified from civil liability). The
proposed conditions are:
• at the time the conduct is engaged in
there is in force a certificate given under section 15M that authorises the
operation;
• the conduct is within the nature of the activities covered
by the certificate; and
• the conduct complies with any conditions in
the certificate.
In addition, the conduct must not involve intentionally
inducing a person to commit a Commonwealth, State or Territory offence that that
person would not otherwise have intended to commit or an offence of that kind.
That is, there must not be an entrapment.
Furthermore, the conduct must
not involve the commission of a sexual offence against any person or an offence
involving the death of or serious injury to any person.
Persons
other than law enforcement officers
Proposed subsection 15IB(2)
is in similar terms to proposed subsection 15IB(1) and sets out the
circumstances in which the conduct of a person who is not a law enforcement
officer will satisfy the requirements of proposed subsection 15I(2) (to be
exempt from criminal responsibility) and proposed subsection 15IA(2) (to be
indemnified from civil liability). The proposed conditions are the same as for
law enforcement officers, except for the additional condition that the
certificate must identify the person as being permitted to be involved in the
operation.
Proposed section 15IC: Effect of sections 15I and 15IB on
other laws relating to criminal investigation
Proposed section 15IC
excludes the operation of proposed section 15I (exemption from criminal
responsibility) and section 15IA (indemnification from civil liability) when the
person’s conduct is or could have been authorised under a law of the
Commonwealth or a State or Territory in relation to certain criminal
investigation powers. Proposed section 15IC identifies those powers
as:
• arrest or detention of individuals
• searches of
individuals
• entry onto, or searches or inspections of,
premises
• searches, inspections or seizures of other property
• forensic procedures
• electronic surveillance devices or
telecommunications interception
• identification
procedures
• any other matter concerning powers of criminal
investigation.
The purpose of proposed section 15IC is to make it clear
that the proposed new controlled operations provisions do not override or oust
specific laws governing the conduct of criminal investigations on specific
topics.
Proposed new section 15J: Application for certificate
authorising a controlled operation – by whom and to whom
made
Proposed section 15J replaces the existing section 15J and
expands who may apply for and who may issue a certificate authorising which type
of controlled operation.
Currently, the Australian law enforcement
officer who is in charge of a controlled operation may apply for a certificate
authorising the controlled operation. Proposed subsection 15J(1) removes the
requirement for the person to be in charge of the controlled operation and
enables any Australian law enforcement officer to apply for a certificate. This
provides necessary operational flexibility. High level control over the
authorisation process is maintained by the requirement that only a senior
officer can authorise an operation (see below - proposed new subsections 15J(2)
to (5)).
Currently, a certificate authorising a controlled operation may
be given by certain specified members of the Australian Federal Police and
members of the National Crime Authority and there is no relationship between
which agency issues a certificate and the functions of the
agency.
Proposed subsection 15J(2) defines the type of controlled
operation an authorising officer may authorise and provides that if the function
of the agency includes investigating the suspected criminal activity to which
the operation relates, then any authorising officer of that agency may authorise
the operation.
Proposed section 15J also defines AFP, NCA
and Customs authorising officers, in the following
terms.
An AFP authorising officer is defined as the
Commissioner, a Deputy Commissioner, or a senior executive AFP employee who is a
member of the Australian Federal Police and who is authorised in writing by the
Commissioner for the purposes of proposed paragraph 15J(3)(c). This reflects
existing paragraph 15J(a).
An NCA authorising officer is
defined as a member of the National Crime Authority. This reflects existing
paragraph 15J(b).
A Customs authorising officer is defined
as the Chief Executive Officer of Customs or a senior executive Customs employee
who is authorised in writing by the Chief Executive officer for the purposes of
proposed paragraph 15J(5)(b). This is a proposed new provision reflecting the
expansion of the controlled operation provisions and the proposals that Customs
be able to authorise a controlled operation.
This Item is a transitional provision. Subsection (1) provides that any
application for a controlled operation that was made before the commencement of
this Schedule and about which a decision has not been made, ceases to have
effect on that commencement. Proposed subsection (2) clarifies that subsection
(1) does not prevent a new application being made after commencement (ie, under
the new scheme).
This Item amends section 15M by omitting “satisfied” and
substituting “reasonably satisfied” to provide that an authorising
officer need only be reasonably satisfied as to the criteria listed in that
section before issuing a certificate. This amendment will avoid a suggestion
that an authorising officer must be certain as to the course of future events,
while still requiring proper consideration of the matters listed.
This Item repeals paragraphs 15M(a), (b), (c) and (d) and substitutes
proposed new criteria upon which the authorising officer must be reasonably
satisfied before he or she issues a certificate authorising a controlled
operation. These require consideration of a more extensive range of matters
than the existing authorisation criteria, reflecting the broader terms under
which operations would be able to be authorised. The proposed criteria
are:
• it is likely that a Commonwealth offence has been, is being,
or will be committed;
• the nature and extent of the offence and any
suspected criminal activity that is related to that offence, justifies a
controlled operation;
• conducting the operation must not involve
intentionally inducing a person to commit a Commonwealth, State or Territory
offence that that person would not otherwise have intended to commit or an
offence of that kind (ie, it must not involve entrapment);
• any
unlawful activity involved in conducting the operation will be limited to the
maximum extent consistent with conducting an effective controlled operation;
• any illicit goods to which the controlled operation relates, and
that will be in Australia at the end of the operation, will be to the maximum
extent possible under the control of an Australian law enforcement
officer;
• any unlawful activity in conducting the operation will not:
- seriously endanger the health or safety of any person;
- cause death
of, or serious injury to any person;
- involve the commission of a sexual
offence against any person;
- result in loss of, or serious damage to,
property (other than illicit goods);
• the operation will be conducted
in a way that is consistent with the reporting and accountability requirements
of this Part; and
• if a person who is not a law enforcement officer is
to be involved in an operation – the role to be assigned to the person
could not be adequately performed by a law enforcement officer.
Items
21, 22 and 23
Existing section 15N sets out the required form and
content of a certificate authorising a controlled operation. Subsection 15N(1)
requires the certificate to be in writing and signed by the authorising officer.
Subsection 15N(2) lists what the certificate must address and includes such
matters as the name of the applicant, certain information relevant to narcotic
goods and the day on which the certificate was given.
Items 21, 22 and
23 propose amendments to the requirements of subsection 15N(2).
Item 21
will amend subparagraph 15N(2)(c)(ii) and Item 22 will amend subparagraphs
15N(2)(c)(iii), (iv) and (v) by replacing the reference to “the
narcotic goods” with a reference to “illicit
goods”.
The proposed amendments are consequential on the
proposed expansion of the controlled operation provisions to be available for
the investigation of all Commonwealth offences. This means that a certificate
authorising a controlled operation must, to the extent known and relevant,
include a description of the nature and quantity of any illicit goods to which
the operation relates rather than just to any narcotic goods. The certificate
must also, to the extent known and relevant, include a description of the
foreign countries through which the illicit goods have passed or are likely to
pass; where in Australia, the Australian Customs Service will deal or have dealt
with the illicit goods or where the illicit goods have, or are likely to enter
Australia.
Item 23 inserts four new matters that must be included in a
certificate authorising a controlled operation to ensure that the extent of the
controlled operation is clearly established by the certificate. Specifying these
issues in the certificate is also relevant to determining the extent of the
operation of the proposed exemption from criminal responsibility and immunity
from civil liability provisions (see Item 17).
The certificate will be
required, in addition to the existing matters listed in section 15N,
to:
• state the nature of the activities covered by the
certificate;
• identify each person who:
- is not a law enforcement
officer; and
- is permitted to be involved in the operation;
• for
each person identified, state the nature of the activities covered by the
certificate in relation to that person; and
• state any conditions to
which the certificate is subject.
This Item proposes a new subsection 15N(2A) to provide that each person
who is not a law enforcement officer and who is permitted to be involved in the
operation, may be identified by a false name or code. This is intended to
protect the identity of that person, and may be achieved via the use of code
names as well as alphanumerical codes. The use of false names or code will be
permitted if the Commissioner, the Chairperson of the NCA or the Chief Executive
Officer of Customs holds a document that enables the person to be identified
from that false name or code.
Item 25
This Item amends
subsection 15N(4) to provide that a certificate may state a day not later than 6
months after the day on which it was given as the day on which the certificate
is to cease to be in force. This is a proposed increase from the existing 30-
day period, reflecting the need for agencies to be involved in complex,
longer-term operations including infiltration of criminal groups. There is
provision for mandatory review of a certificate if it is to remain in force
beyond 3 months (see Item 28).
This Item inserts a note at the end of subsection 15N(4) to cross-refer
to the requirements of proposed section 15OB, that is the requirement that a
certificate be reviewed in order to remain in force beyond 3 months (see Item
28).
This Item proposes a new section 15NA to expressly provide for the
variation of a certificate. Proposed subsection 15NA(1) provides that an
Australian law enforcement officer may apply to an appropriate authorising
officer for variation of a certificate given under section 15M.
Under
the proposed provision, the application must be in writing, signed by the
applicant and include such information as the appropriate authorising officer
needs to decide whether or not to grant the application. If the application
complies with proposed section 15NA, then the appropriate authorising officer
may vary the certificate if he or she is reasonably satisfied that the
certificate as varied could have been given under section 15M. This is to
ensure that a variation meets all the necessary criteria for the initial issue
of a certificate and is not available to circumvent those requirements.
The proposed variation provision also requires the authorising officer
to be reasonably satisfied that the variation is necessary
for:
• the success of the controlled operation;
• the
protection of the health or safety of any person; or
• the protection
of property from loss or damage.
Alternatively, the authorising officer
may make a variation to ensure that all those involved in the operation have
appropriate exemption under section 15I and the appropriate indemnity under
section 15IA. This is designed to ensure that if there is a change in the
persons who are conducting the operation, that the certificate is varied to
cover those persons.
Proposed subsection 15NA(4) requires the appropriate
authorising officer to give the applicant a written notice stating whether the
certificate is varied and if the certificate is varied, setting out each
variation.
Under proposed subsection 15NA(5), a variation of the
certificate does not take effect until the notice is given.
This Item inserts two new provisions dealing with terminating and expiry
of certificates.
Proposed section 15OA: Termination of
Certificate
While the existing section 15O allows a law enforcement
officer to surrender a certificate, there are currently no provisions allowing
for termination of a certificate. This power may be required where, for
example, an operation has been completed or aborted. The proposed provisions
enable an appropriate authorising officer to terminate a certificate issued by
another authorising officer from the same agency.
Under proposed
subsection 15OB(4), written notice of the termination must be sent to the
Australian law enforcement officer in charge of the controlled
operation.
Under proposed subsection 15OB(5), the notification of
termination must state that the certificate is terminated, be signed by the
appropriate authorising officer and specify the time when the notice is to have
effect.
Proposed section 15OB: Expiry of certificate after 6 months or
3 months
Proposed section 15OB regulates the length of time a
certificate may remain in force by establishing a mandatory review mechanism.
In the event that the certificate is not reviewed in accordance with the
proposed provisions, the certificate will expire after 3 months.
Proposed
subsection 15OB(1) provides that a certificate given under section 15M expires
at the end of the period of 6 months after the day on which it was given unless
proposed subsection 15OB(2) applies.
Proposed subsection 15OB(2) provides
that a certificate expires at the end of the period of 3 months after the day on
which it was given unless, during that period an appropriate authorising officer
(ie, an officer with authority to issue controlled operations certificates who
is from the same agency as the officer who issued the certificate) has:
• reviewed the certificate, and
• decided that the
certificate should be in force for 6 months.
Proposed subsection 15OB(3)
provides that the review is to occur during the last two weeks of the 3-month
period after the day on which the certificate was given.
Proposed
subsection 15OB(4) provides that an appropriate authorising officer must not
decide that a certificate is to remain in force for 6 months, unless he or she
is reasonably satisfied as to all the matters referred to in paragraphs 15M(a)
to (h). As with the proposed variation provisions, the need to be reasonably
satisfied of the matters listed in section 15M means that a certificate will not
remain in force unless the criteria for the initial issue of a certificate
exist.
Proposed subsection 15OB(5) requires the appropriate authorising
officer to give written notice of his or her decision to the Australian law
enforcement officer in charge of the relevant controlled operation.
This Item makes a minor drafting amendment to existing paragraph
15P(3)(b) to provide that a surrender notice under section 15O takes effect at
the time specified in the notice.
This Item repeals existing paragraph 15P(3)(c) and proposes two new
provisions dealing with the time a certificate is in to remain in force.
Proposed paragraph 15P(3)(c) provides that if a certificate is terminated under
proposed section 15OA (see Item 28) then the certificate remains in force until
the time specified in the termination notice. Under existing paragraphs
15P(3)(a) and (b), a certificate expires on the date specified in the
certificate or on surrender. The overarching limitation is contained in
proposed paragraph 15P(3)(d) - in the absence of earlier expiry, surrender or
termination, the certificate remains in force until the certificate expires
after 6 months (or in the absence of a review - after 3 months), under proposed
section 15OB (see Item 28).
This Item inserts proposed section 15PA, which clarifies the effect of a
person covered by a certificate being unaware of a variation, surrender or
termination of the certificate. The purpose of this section is to ensure that a
person remains exempt from criminal responsibility and indemnified from civil
liability where it would be unjust for the person to be liable.
Proposed
subsection 15PA(1) provides that where a certificate has been varied in a way
that limits its scope, the exemption and indemnification continue, for so long
as the person:
• is unaware of the variation; and
• is not
reckless with respect to the existence of the variation.
Proposed
subsection 15PA(2) provides that where a certificate has been surrendered or
terminated or has expired, the exemption and indemnification continue, for so
long as the person:
• is unaware of the variation;
and
• is not reckless with respect to the existence of the
variation.
Existing section 15Q requires notice to be given to the Chief Executive
Officer of Customs when a controlled operation will involve narcotic goods which
may be dealt with by Customs. This Item makes a minor amendment to subsection
15Q(1) to provide that section 15Q applies where there are certificates issued
by AFP and NCA authorising officers and where the applicant for the certificate
believes that illicit goods (as opposed to the current limitation to narcotic
goods) may be dealt with by Customs. The purpose of the section is to require
the applicant for the certificate to forewarn the Chief Executive Officer of
Customs in such cases.
This Item proposed an amendment to subparagraphs 15Q(2)(c)(i) and (ii) to
replace references to narcotic goods with references to
illicit goods as a consequence of the amendment proposed by Item
32.
This Item repeals section 15R and substitutes it with a new section 15R
that provides for a quarterly reporting requirement for controlled operations.
The proposed new section provides that the AFP Commissioner, NCA Chairperson and
Chief Executive Officer of Customs must, within two weeks after the end of each
quarter, give to the Minister a report informing the Minister of certain things
that occurred during the quarter.
The proposed section provides that the
report must inform the Minister of each decision to grant or refuse an
application for a controlled operation, each variation, review, surrender or
termination of a certificate, and any certificate that is still in force at the
end of the quarter.
This Item repeals subsections 15S(1) and (2) and substitutes proposed new
subsections, which provide details of the information that must be included in
the report about controlled operations submitted to the Minister under proposed
section 15R (see Item 34).
Proposed paragraph 15S(1)(a) provides that the
report must include the reasons for each decision to grant or refuse an
application for a controlled operation, each variation of a certificate and each
review of a certificate.
Proposed paragraph 15S(1)(b) provides that the
report must include sufficient details of each surrender or termination of a
certificate and each certificate that is still in force at the end of that
quarter to enable the certificate to be identified.
Proposed subsection
15S(1A) provides that the reasons included in the report for granting a
certificate authorising a controlled operation must include an indication of the
extent to which the authorising officer, in making the decision, took into
account the seriousness of the Commonwealth offence in relation to which the
certificate was given and any suspected criminal activity that is related to
that offence.
Proposed subsection 15S(2) sets out additional information
that must appear in the report where a certificate for a controlled operation
that was carried out ceases to be in force during that quarter. These include
such matters as:
• identifying each person targeted by the
operation (while the conduct of an identified person is no longer a matter that
the authorising officer must take into account in issuing a certificate, it is
expected that during the course of the operation the identity of that person
will become known); and
• each person whose conduct was covered by the
certificate and state whether the person was a law enforcement officer at the
time of the operation.
If the operation involved illicit goods the
report must also state to the extent known, the nature and quantity of the
illicit goods and the route through which the illicit goods passed in the course
of the operation. This is intended to be a general description identifying key
addresses, rather than a requirement for a minute by minute, street by street
account of any journey between such locations.
Proposed paragraph
15S(2)(e) provides that if the operation involves illicit goods that are
narcotic goods the report must also contain additional information. The report
must:
• identify the agency to which any law enforcement officer,
who in the course of the operation had possession of the narcotic goods
belonged;
• identify to the extent known any person (other than a law
enforcement officer) who, in the course of the operation had possession of the
narcotic goods;
• state whether or not the narcotic goods have been
destroyed; and
• if the narcotic goods have not been destroyed and are
in the possession of a law enforcement officer, identify the agency of that law
enforcement officer and in any other case, identify the person or state that it
is not know who has possession of them.
The proposed additional reporting
requirements for narcotic goods are designed to ensure appropriate
accountability and control in relation to such items.
Item
36
This Item proposes a minor drafting amendment to subsection 15S(3)
by omitting “narcotic goods” and substituting “the controlled
operation involved narcotic goods that”. The amendment reflects the fact
that, under proposed section 15H a controlled operation does not necessarily
involve narcotic goods.
This Item proposes the repeal of subsection 15S(4) as the requirements
currently in this subsection (as to who must make the report to the Minister)
are now covered by proposed section 15R (see Item 34).
This Item amends subsection 15S(5) to provide that where disclosing the
identity of any person (the current provision is limited to those who had
possession of narcotic goods) might, for example, endanger the safety of the
person, then that person may be identified by a code.
This Item makes a consequential amendment to subsection 15S(5) to provide
that where a report is required to identify any person, then that requirement
can be continue to be satisfied by reference to a code. This applies when
identifying the person may endanger the safety of the person or prejudice an
investigation or prosecution.
This Item proposes a minor amendment to paragraph 15S(5)(c) to replace
the reference to “code name” with a reference to the more general
term “code”, thereby clarifying that a code can employ numbers or
other symbols.
This Item is a transitional provision in relation to the timing of the
submission of quarterly reports. In essence, the old reporting requirements
would apply to decisions and actions under the pre-amended provisions; and the
new reporting requirements would apply to decisions and actions under the
amended provisions.
This Item proposes a minor amendment to paragraph 15T(2)(b) to replace a
reference to section 15S with a reference to section 15R. This is a result of
the restructuring of the reporting provisions.
This Item amends subsection 15T(3) to provide that a report to the
Minister under section 15T is not to include any information about a person,
including the person’s name, unless that information is already in the
public arena. This would remove an anomaly in the existing provision, in that
it is impossible to name a person in a report without implying something
‘about’ the person.
This Item proposes an amendment to subsection 15T(4) to include a
reference to information given to the Minister by the Chief Executive Officer of
Customs in the material that may, in certain circumstances, be excluded from a
report tabled in Parliament. This is a consequence of the proposals that
Customs be able to undertake operations.
This Item repeals subsection 15U(1) and substitutes it with a new
provision which provides that in a prosecution for a Commonwealth offence a
document purporting to be a certificate given under section 15M may be tendered
in evidence and is conclusive evidence that the authorising officer who gave the
certificate was satisfied as to the facts that it states. It is proposed that
this will apply to the extent that those facts are facts of a kind that are
required under section 15N to be included in the certificate.
Under the
existing provisions, a certificate ‘must’ be tendered, even if it is
of no particular relevance. Further, it is only ‘prima facie’
evidence, even though these are essentially formal matters that are not central
to the substantive question of a person’s guilt or innocence.
This Item proposes an amendment to subsection 15U(2) to include a
reference to the Chief Executive Officer of Customs being able to certify true
copies of documents to be tendered in evidence.
This Item omits the reference to “shall” in subsection 15U(2)
and replaces it with a reference to “may” to make the tendering of
true copies discretionary rather than mandatory.
This Item is a transitional provision that clarifies that Part 1AB of
the Crimes Act as amended by this Act does not apply to certificates
given under section 15M that were in force immediately before the commencement
of this Schedule.
Schedule 2 – Assumed identities
Crimes Act 1914
The purpose of this Schedule is to
amend the Crimes Act by inserting a proposed Part 1AC, which will provide the
basis for the acquisition and use of evidence of identity by members of
intelligence and law enforcement agencies, and others who are supervised by a
member of such an agency. The ability to assume a new identity will be an
effective means by which those members and persons will be able to perform the
functions of the respective agencies without others being aware of their true
identity. The proposed new provisions will provide:
• that
evidence of an assumed identity may be acquired and used in certain
circumstances;
• for the exemption from criminal responsibility of
certain approved officers and persons;
• for the indemnification of
approved officers and persons against civil liability;
• for the
authorisation of acquisition and use of an assumed identity and the content and
form of that authorisation;
• that certain agencies are to comply with
requests for the issue of evidence of identity and others to have a
discretion;
• for offences for the misuse of assumed
identities;
• for record-keeping and audit requirements;
and
• other matters that are necessary for the effective operation of
the assumed identity scheme, such as the definition of special terms and a
regulation making power.
Division 1 - Definitions etc
Proposed subsection 15XA(1) defines a number of expressions for the
purposes of the proposed assumed identity provisions and provides that in
proposed Part 1AC:
approved officer means an officer or
foreign officer referred to in an authorisation under proposed paragraph
15XI(2)(c). Proposed section 15XI sets out the matters that must be included in
an authorisation for the acquisition and use of an assumed identity.
approved person means a person referred to in proposed
subparagraph 15XI(2)(d)(i).
authorisation means an
authorisation that is in force under proposed section 15XG or 15XH. Proposed
section 15XG will enable a Commonwealth participating agency and
proposed section 15XH will enable a State or a territory participating
agency to authorise the acquisition and use of an assumed
identity.
authorisation conditions means
conditions to which an authorisation is subject under proposed paragraph
15XI(2)(j).
authorising person means the head of a
participating agency or a person in a participating agency, included in a
prescribed class, who is authorised in writing by the head of the agency. Under
proposed sections 15XG and 15XH an authorising person will be able to authorise
the acquisition and use of an assumed identity.
Commonwealth
agency means the Commonwealth or an authority of the Commonwealth.
Under proposed sections 15XG and 15XH an authorising person may authorise the
acquisition of evidence of an assumed identity from, inter alia, any
Commonwealth agency, that agency will become an issuing agency when the
authorisation under proposed section 15XI specifies the agency.
Commonwealth participating agency means the AFP, Customs,
NCA, Australian Security Intelligence Organisation, Australian Secret
Intelligence Service, those parts of the Department of Defence known as the
Defence Signals Directorate and Defence Intelligence Organisation, the
Australian Taxation Office and any other Commonwealth agency specified in the
regulations. Proposed section 15XG will enable an authorising person in a
Commonwealth participating agency to authorise the acquisition and use of an
assumed identity.
foreign officer means an officer, however
described, of an agency that has responsibility for the law enforcement in,
intelligence gathering for, or security of a foreign country. Under proposed
section 15XG a foreign officer may be authorised to acquire and use evidence of
an assumed identity.
issuing agency means a Commonwealth
agency or a non-government body that is referred to in an authorisation issued
under proposed paragraph 15XI(2)(f).
issuing evidence of an
assumed identity is defined as including the making of an entry in a
record of information in respect of an assumed
identity.
non-government body means a body that is not
managed or controlled by or on behalf of the Commonwealth or the Government of a
State or Territory. Under proposed sections 15XG a Commonwealth participating
agency may authorise the acquisition of evidence of an assumed identity from,
inter alia, any non-government body and that body will become an
issuing agency when the authorisation under proposed section 15XI
specifies the body.
participating agency means either a
Commonwealth, State or Territory participating agency.
State or
Territory participating agency means the police force of a State or
Territory; bodies established under the law of a State or Territory to
investigate corruption (such as the New South Wales Independent Commission
Against Corruption and the Queensland Criminal Justice Commission); Crime
Commissions (such as the New South Wales Crimes Commission and the Queensland
Crime Commission) and any other body or agency of a State or Territory that is
specified in the regulations.
supervising officer means the
officer referred to in an authorisation under subparagraph
15XI(2)(d)(ii).
Proposed subsections 15XA(2), (3) and (4) are explanatory
provisions, which provide that:
• a reference to an approved
officer or person using an assumed identity includes a reference to the officer
or person representing the assumed identity to be his or her real identity and
such an officer or person acting in a way that is consistent with such an
identity, rather than the person’s real identity;
• a reference
to an approved officer or person acquiring evidence of an assumed identity,
includes obtaining, or taking steps towards obtaining, a document or other thing
that purports to evidence the assumed identity; and
• engaging in
conduct includes a reference to omitting to do an act.
The purpose of
these provisions is to ensure that an assumed identity is not taken to be merely
the forms of identity, but is designed to enable the person using the assumed
identity to act as if he or she is, and to have all the indicia and attributes
of, a real person with that identity. For example, if a person acquires a
passport as evidence of an assumed identity, it is intended that the person will
be able to use that passport to travel outside Australia as if it was the person
real identity and not just hold the passport as a means of
identification.
Division 2 - Effect of an assumed
identity
The purpose of proposed Division 2 is to introduce new
sections governing:
• when an approved officer or person may
acquire evidence of and use an assumed identity;
• protection from
criminal liability for approved officers and persons,
• indemnity
against civil liability those persons;
• the operation of the Division
in circumstances where an authorisation has been varied or revoked;
and
• the limitation on the use of documents that purport to establish
that a person has a particular skill or qualification.
Section 15XB -
Assumed identities may be acquired and used
The purpose of proposed
section 15XB is to set out the circumstances in which an approved officer or
person may acquire evidence of, and use, an assumed identity.
Proposed
subsection 15XB(1) provides that an approved officer may acquire
evidence of, and use an assumed identity if the acquisition or use is in the
course of duty.
Proposed subsection 15XB(2) provides that an
approved person may acquire evidence of, and use, an assumed identity if
the acquisition or use is in accordance with directions given by the supervising
officer mentioned in the person’s authorisation. This requirement
reflects the need for persons who are not part of the authorising person’s
agency, or who are not foreign officers, to be under the command and direction
of a person who is part of the authorising person’s agency to so that the
operation is controlled by such an agency to the greatest extent
possible.
For both approved officers and approved persons the acquisition
or use must also be in accordance with any authorisation conditions (see
proposed paragraph 15XI(2)(j)).
Section 15XC - Protection from
criminal liability
The purpose of proposed section 15XC is to define
the circumstances in which an approved officer or person will not be criminally
responsible for otherwise unlawful conduct.
An approved officer will not
be criminally responsible for conduct that would ordinarily constitute a
Commonwealth, State or Territory offence if:
• the officer engages
in the conduct in the course of acquiring evidence of, or using an assumed
identity;
• the officer engages in the conduct in the course of duty;
• the conduct complies with all the authorisation conditions;
and
• the conduct would not constitute that offence if the assumed
identity were the officer’s real identity.
This last requirement
means that:
• if the officer uses an assumed identity in such a way
that would (but for this section) constitute an offence then the officer is
exempt from criminal liability for that conduct if that use was not an offence
if the identity was real.
For example it is an offence for a person to
receive Job Search Allowance if they are not unemployed. But if the approved
officer has evidence of an assumed identity which establishes them as being
unemployed, then he or she can receive Job Search Allowance.
• an
officer will be criminally responsible for an offence if the conduct would
constitute an offence if the assumed identity was the person’s real
identity. The effect of this is to ensure that the proposed provisions do not
de-criminalise conduct that is not authorised, as a matter of law, by the
identity.
For example it is an offence to take protected fauna out of
Australia. An approved officer who has a passport as evidence of an assumed
identity and who takes protected fauna out of Australia whilst travelling on
that passport, will still be criminally responsible for removal of the fauna
from Australia.
The proposed conditions under which an approved person
will not be criminally responsible for conduct that would ordinarily constitute
an offence are similar to those for approved officers except there is a
requirement for the conduct to be in accordance with directions given by the
supervising officer rather than in the course of duty.
Section 15XD -
Indemnification of approved officers and persons
The purpose of
proposed section 15XD is to set out the circumstances in which a Commonwealth
participating agency must indemnify both approved officers and approved persons
against any liability incurred because of the conduct of the officer or
person.
A Commonwealth participating agency that issues an authorisation
must indemnify an approved officer against any liability (including reasonable
costs) that the officer incurs because of conduct the officer engages in
if:
• the officer is covered by that authorisation;
• the
officer engages in the conduct in acquiring evidence of, or using, an assumed
identity in the course of duty;
• the conduct is in accordance with any
authorisation conditions; and
• the requirements (if any) specified in
the regulations have been met.
The proposed conditions under which an
approved person must be indemnified by the Commonwealth agency that issues the
authorisation, are similar to those for approved officers except that there is a
requirement for the conduct to be in accordance with any directions given by the
supervising officer rather than in the course of duty.
Section 15XE -
Effect of being unaware of variation or revocation of
authorisation
The purpose of proposed section 15XE is to provide that
where an authorisation has been varied or revoked, the exemption from criminal
responsibility and the indemnification against civil liability will continue to
exist for so long as:
• the officer or person is unaware of the
variation; and
• the officer or person is not reckless with respect to
the existence of the variation or revocation.
Section 15XF -
Documents authorising use of skill or qualification
Proposed section
15XF provides that an approved officer or person will not be exempt from
criminal responsibility or indemnified against civil liability if he or she
engages in conduct that requires a special skill or qualification and he or she
does not have that skill or qualification. This proposed limitation on the
protection provisions applies whether or not the officer or person has acquired
as evidence of an assumed identity, a document that establishes that he or she
has that skill or qualification.
This means that if a person has as
evidence of an assumed identity a documents that indicates that the person
possesses a certain skill or qualification, that person does not in fact have
that skill or qualification, and the person engages in conduct that needs that
skill or qualification, then he or she will be criminally responsible for his or
her acts and will not be indemnified for any civil liability.
For
example, if a person has as evidence of identity a pilot’s licence but the
person is not, in fact, qualified to pilot an aeroplane, then the person will be
criminally responsible for his or her acts if he or she pilots an aeroplane, and
will not be indemnified for any civil liability incurred.
Divisions 3
- Authorising the acquisition or use of assumed identities
The
purpose of proposed Division 3 is to introduce new sections governing:
• the circumstances in which Commonwealth, State and Territory
participating agencies may authorise the acquisition and use of assumed
identities;
• the form and content of an authorisation issued under
proposed sections 15XG and 15XH;
• when an authorisation is in force;
and
• variation and revocation of authorisations.
Section
15XG - Commonwealth authorisations of the acquisition or use of assumed
identities
Proposed section 15XG provides that an authorising person
of a Commonwealth participating agency may authorise any person to acquire
evidence of an assumed identity from any Commonwealth or non-government body and
to use that identity.
The provision provides that the tests as to whether
the authorisation should be issued are:
• for foreign officers, if
the authorising person is satisfied that it is reasonably necessary to do
so;
• in any other case, if the authorising person is satisfied that it
is appropriate to do so; and
• in either case, the assumed identity may
only be used in a foreign country if the authorising person is satisfied that it
is reasonably necessary to do so.
This means that in relation to both
the acquisition and use of an assumed identity by foreign officers and the use
of an assumed identity in a foreign country, there is a higher threshold
applying before the authorisation may be issued. This reflects the need
to ensure that the provisions do not apply to foreign operatives or in foreign
countries, unless there is a clear need for that operation and all relevant
matters (for example, the inability to exempt an Australian from the operations
of the laws of a foreign country) have been taken into
account.
Section 15XH - State or Territory authorisations of the
acquisition or use of assumed identities
Proposed section 15XH
provides that an authorising person of a State or Territory participating agency
may authorise a person (except a foreign officer) to acquire evidence of an
assumed identity from any Commonwealth agency and to use that
identity.
This means that unlike an authorising person of a Commonwealth
participating agency, an authorising person of a State or Territory
participating agency may:
• only authorise a person to acquire
evidence from a Commonwealth agency; and
• may not authorise a foreign
officer to acquire evidence of or use an assumed identity.
The test as to
whether a State or Territory participating agency may authorise the acquisition
or use of an assumed identity is if the authorising person is satisfied that it
is appropriate to do so and if the identity is to be used in a foreign country,
then the authorising person must is satisfied that it is reasonably necessary to
do so.
Section 15XI - Contents of an authorisation for an assumed
identity
Proposed section 15XI sets out the form and contents of an
authorisation for an assumed identity and provides that it must be in writing
and signed by the authorising person.
The authorisation must specify such
matters as:
• the name of the officer or person who is authorised
to acquire or use an assumed identity;
• the name of the supervising
officer (for approved persons who are not part of the authorising persons
participating agency);
• details of the assumed identity which the
authorisation covers;
• the Commonwealth agency or non-government body
who is to be requested to issue the evidence of identity;
• whether the
identity can be used in a foreign country; and
• any conditions to
which the authorisation is subject.
The requirement for the authorisation
to specify such matters reflects the need to ensure that an authorisation sets
the limits for and strictly controls the acquisition and use of assumed
identities by whom and in what circumstances.
The proposed provision also
makes it clear that the authorisation can cover more than one assumed
identity.
Section 15XJ - When an authorisation is in
force
Proposed section 15XJ provides that an authorisation is in
force until it is revoked. Revocation is provided for in proposed section
15XK.
Section 15XK - Variation and revocation of
authorisation
Proposed section 15XK provides that an authorising
person who issues an authorisation or any other authorising person from the same
agency, may vary or revoke the authorisation at any time. A written notice of
that variation or revocation must be given to the person covered by the
authorisation. The notice must state the date the variation or revocation takes
effect, the nature of the variation, if any, and the reasons for the variation
or revocation.
The proposed scheme introduces flexibility in the
management of the operation, while at the same time ensuring that there is
sufficient written evidence for record keeping and auditing
purposes.
(Proposed section 15XE sets out the effect of a person covered
by an authorisation not being aware of its variation or revocation. Proposed
section 15XU provides for record keeping and auditing.)
Division 4 -
Issuing and cancelling evidence of assumed identities
The purpose of
proposed Division 4 is to introduce new sections governing:
• requests to issue evidence of an assumed
identity;
• compliance with such requests;
• cancellation of
issued evidence of an assumed identity;
• protection from criminal
liability for employees of an issuing agency; and
• indemnification for
issuing agencies and their employees;
Section 15XL - Authorising
person may request agencies and bodies to issue evidence of assumed identities
etc.
Proposed section 15XL provides that an authorising person who
issues an authorisation may request an issuing agency to issue evidence of an
assumed identity to the approved person or officer.
The intention is that
the authorisation will serve as the requesting notice without the need for
anything further to be produced to the issuing agency. The provision provides
that the name of the issuing agency, and evidence of identity that may be
requested, will be specified in the authorisation thereby providing the issuing
agency with the necessary authority to act.
Section 15XM - Requesting
Commonwealth agencies to issue evidence of assumed identities
The
purpose of proposed section 15XM is to set out the compliance requirements for
requests made to an issuing agency of the Commonwealth under proposed section
15XL.
The proposed section provides that where the request is made to an
issuing agency of the Commonwealth (as opposed to a non-government body (which
is dealt with in proposed section 15XN)) by a Commonwealth participating agency,
then the issuing agency must comply with the request.
However,
where such a request is received from a State or Territory participating
agency, then the issuing agency may comply with the request but
need not do so.
Although the proposed provision is not subject to a
penalty provision, the intention is to make it clear that decision-making about
the use of this scheme within the Commonwealth rests solely with the
Commonwealth participating (ie, law enforcement and security) agencies.
However, this clear-cut approach is not appropriate where two different levels
of Government are involved, so Commonwealth agencies will have discretion
whether to accede to a request from a State or Territory participating
agency.
Section 15XN - Requesting non-government bodies to issue
evidence of assumed identities etc
The purpose of proposed section
15XN is to state the compliance requirements for requests made to a
non-government body issuing agency under proposed section 15XL.
The
proposed section provides that where the request is made to an issuing agency
that is a non-government body then the issuing agency may comply with the
request but it does not have to do so. (Under proposed sections 15XG and 15XH,
only Commonwealth participating agencies can authorise the acquisition and use
of evidence from non-Government bodies.)
The provision provides a
discretion because it is not appropriate for non-government bodies to be
compelled to comply with requests (cf, where issuing is a purely internal
Commonwealth matter).
Section 15XO - Cancelling evidence of assumed
identities etc
Proposed section 15XO provides that an issuing agency
that has issued evidence of an assumed identity must cancel the evidence on the
written request of an authorising person who made the request or any other
authorising person in the same participating agency.
The evidence may be
cancelled by deleting or altering an entry in a record of information. The
intention is to terminate the effect of the evidence of identity that was
issued. For example this might mean simply monitoring the use of that evidence
of identity and not allowing it to achieve its purpose after it has been
“cancelled”.
For logistical reasons, there is no
requirement imposed on an issuing agency to physically retrieve the evidence of
identity. For example, cancelling a passport means that a person can no longer
travel out of or into Australia using that passport, although the person may
continue to possess the document.
Section 15XP - Protection from
criminal liability
Proposed section 15XP provides that an employee of
an issuing agency who, in the performance of the functions of that agency,
complies with a request to issue evidence, is exempt from criminal
responsibility in relation to that conduct. This means that in circumstances
where the issue of evidence of identity in a name other than the name of the
applicant would constitute an offence, the employee of the issuing agency is not
criminally responsible for that conduct.
Proposed section 15XQ -
Indemnification of issuing agencies etc
Proposed section 15XQ
provides an indemnification for an issuing agency and its employees against any
liability (including reasonable costs) incurred by that agency or employee as a
result of complying with a request to issue of evidence of identity. The
Commonwealth participating agency whose authorising person issued the
authorisation must provide the indemnification. The proposed provision also
provides that there is a need to meet the requirements (if any) specified in the
regulations.
Division 5 - Offences relating to assumed identities
The purpose of proposed Division 5 is to introduce two new offences:
the misuse of an assumed identity and disclosing information relating to assumed
identities.
Section 15XR - Misuse of assumed
identities
Proposed section 15XR provides that certain conduct in
relation to the acquisition or use of evidence of an assumed identity will
amount to an offence. An approved officer who acquires evidence of or uses an
assumed identity otherwise than in the course of duty commits an offence and an
approved persons who acquires evidence of or uses an assumed identity otherwise
than in accordance with the directions of their supervising officer also commits
an offence.
It is also a proposed offence for either an approved
officer or an approved person to acquire evidence of or use an assumed identity
otherwise than in accordance with the authorisation conditions.
In all
cases, the penalty is 12 months imprisonment. (The maximum fine is $6 600 by
operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)
The
offences proposed by section 15XR are to operate in addition to any offence that
might exist in relation to the acquisition or use of evidence of an assumed
identity. For example, if an approved officer makes a false and misleading
statement as to his or her identity in reliance on the evidence of identity, and
that use is not covered by the authorisation, then the approved officer may have
committed two offences: one of the false representation and one of misuse.
(Section 4C of the Crimes Act will operate to protect against any double
jeopardy.)
The offences will require proof of fault, in accordance with
Division 5 of the Criminal Code.
Section 15XS - Disclosing information
relating to assumed identities
Proposed section 15XS provides that if
a person discloses information that reveals or is likely to reveal the fact that
someone is using an authorised assumed identity and the disclosure endangers or
is likely to endanger the health or safety of any person or adversely effect the
operations of any participating agency, then an offence is committed.
The proposed penalty for this offence is 10 years imprisonment, which
reflects the serious consequences that a disclosure of this kind could bring to
the operatives involved. (The maximum fine is $66 000 by operation of
subsections 4AA(1) and 4B(2) of the Crimes Act.)
In situations where the
disclosure is not likely to endanger the health or safety of any person or the
effectiveness of an operation carried out by any participating agency, then the
proposed penalty is 2 years imprisonment. (The maximum fine is $13200 by
operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)
The
offences will require proof of fault, in accordance with Division 5 of the
Criminal Code.
Division 6 - Miscellaneous
Section 15XT -
Disclosing real identities during court proceedings etc
The purpose
of proposed section 15XT is to ensure that, to the greatest extent possible, the
real identity of a person who is or was covered by an authorisation, is not
disclosed to the public. Proceedings of courts, tribunals and commissions of
inquiry are to be held in private and any necessary suppression orders are to be
made.
The proposed provision makes it clear, however, that the
non-disclosure of the person’s real identity does not apply to the extent
that the court, tribunal or commission considers that the interests of justice
otherwise requires.
Section 15XU - Keeping records of assumed
identities
Proposed section 15XU requires the head of a Commonwealth
participating agency to keep certain records while the authorisation is in force
and for at least 12 months after it has been revoked. The head of the agency
must also cause those records to be audited at least once every 6 months while
the authorisation is in force and at least once in the 6 months period after it
has been revoked. This will help to ensure that the use of this scheme is
properly documented and accountable.
Section 15XV - Concurrent
operation of State and Territory laws
Proposed section 15XV enables
State and Territory laws to operate concurrently with proposed Part 1AC provided
that they are not inconsistent with that Part. This is important, for example,
because an operation may involve as assumed identity supported by documents
issued under both Commonwealth and New South Wales assumed identities
legislation.
Section 15XW - Regulations
Proposed section
15XW enables regulations to be made for the purposes of proposed Part 1AC. This
is required, for example, to prescribe persons other than agency heads who may
be authorising persons (ie, authorise the acquisition and use of assumed
identity) and to prescribe an agency to be a Commonwealth participating agency
for the purposes of proposed section 15XA.
Schedule 3 - Protection of children in proceedings for sexual offences
Crimes Act 1914
The purpose of this Schedule is to
amend the Crimes Act by inserting a proposed Part 1AD, which will provide
protection for child victims and child witnesses in proceedings for Commonwealth
sex and sex-related offences. The protections include limitations on the
examination and cross-examination of child witnesses, provision for the use of
facilities such as closed-circuit television and restrictions on publishing
details which could identify a child witness or child victim.
The
protective provisions have been devised in recognition of the fact that child
victims and child witnesses in sex offence proceedings are particularly
vulnerable because of their age and the nature of the crime involved. The
provisions are intended to reduce the stress and trauma experienced by child
victims and child witnesses in giving evidence and to protect the privacy of
child victims and witnesses.
Currently, State and Territory criminal
trial laws of general application apply to Commonwealth criminal trials in the
relevant State or Territory. However, State and Territory child witness
protections apply only to a prescribed list of offences against the law of that
State or Territory and not to Commonwealth offences.
The proposed
amendments will remedy the absence of protections for child witnesses in
Commonwealth sex offence trials. The proposed protections are analogous to
those already existing in many State and Territory jurisdictions and are
consistent with the recommendations in the Model Criminal Code Sexual Offences
Against the Person Report.
Division 1 -
Introduction
Proposed Division 1 contains two provisions of general
application to proposed Part 1AD.
Section 15Y – Proceedings to
which this Part applies
Proposed section 15Y sets out the criminal
proceedings to which proposed Part 1AD will apply. The Part will apply to any
proceedings for a child sex tourism offence under Part IIIA of the Crimes Act;
an offence involving the sexual assault of United Nations and associated
personnel under section 71.8 of the Criminal Code; a slavery, sexual servitude
or deceptive recruiting offence under Division 270 of the Criminal Code; any
prescribed sexual offence; an offence that includes the commission of or an
intention to commit one of the aforementioned offences; and to an offence of
attempting or conspiring to commit or inciting the commission of any of the
above offences.
Proposed Part 1AD will also apply to any related
proceedings including committal proceedings.
Scope to prescribe offences
has been included to allow a ready means to extend the protections to any new
sex or sex related offences that may be enacted.
Section 15YA -
Definitions
Proposed section 15YA defines a number of expressions and
provides that, for the purposes of proposed Part 1AD:
child means a person under 18, therefore, the provisions
that relate to the protection of child witnesses and child victims in
proceedings for sexual offences apply only to persons under the age of 18.
child victim means, in relation to a proceeding, a child
who is or is alleged to be a victim of an offence referred to in proposed
subsection 15Y(1) and to which the proceeding relates. Although the term
“child witness” includes a child victim who is a witness, child
victims are specified separately in a number of the proposed provisions because
those provisions either extend to a child victim who does not appear as a
witness in the proceeding (eg, proposed sections 15YB and 15YC) or apply
differently to a child witness who is a victim (eg, proposed section
15YF).
child witness means a child who is a witness in a
proceeding to which proposed Part 1AD applies, and includes a child victim who
is a witness in the proceeding. The definition of “child witness”
also covers a child defendant who appears as a witness in a proceeding, however,
some of the proposed provisions will not apply to a child defendant who is a
witness (eg, proposed sections 15YB, 15YC and 15YR).
closed-circuit
television includes any similar technology that is specified in the
regulations. This will provide a simplified means for extending the application
of the provisions relating to the use of closed-circuit television to any
alternative technology that performs a similar
function.
credibility has the same meaning as in the
Evidence Act 1995. In the Dictionary to that Act, the
“credibility” of a witness is defined to mean the credibility of any
part or all of the evidence of the witness, and includes the witness's ability
to observe or remember facts and events about which the witness has given, is
giving or is to give evidence.
cross-examination has the
same meaning as in the term by the Evidence Act 1995. In the Dictionary
to that Act, the “cross-examination” of a witness is defined to mean
the questioning of a witness by a party other than the party who called the
witness to give evidence.
evidence in chief means evidence
given in examination in chief, which has the same meaning as in the Evidence
Act 1995. In the Dictionary to that Act, the “examination in
chief” of a witness is defined to mean the questioning of a witness by the
party who called the witness to give evidence, not being questioning that is
re-examination.
proceeding means a proceeding to which
proposed Part 1AD applies under proposed section 15Y.
Division 2
– Admissibility of Evidence
Proposed Division 2 sets out rules
of admissibility relating to evidence of a child witness’ or child
victim’s sexual reputation or sexual experience. However, the proposed
Division does not apply to evidence of a child defendant’s sexual
reputation or sexual experience.
Section 15YB – Evidence of
Sexual Reputation
Proposed section 15YB limits the admissibility of
evidence of a child witness’ or child victim’s reputation with
respect to sexual activities. Such evidence is only admissible by leave of the
court.
The court may only grant leave for such evidence to be admitted
if the court is satisfied that the evidence is substantially relevant to facts
in issue in the proceeding. For example, leave might be given if the evidence
is relevant to proving the defendant’s knowing involvement in child
prostitution. The court is not to treat the evidence as substantially relevant
to facts in issue merely because it may raise inferences as to the child
witness’ or child victim’s general disposition.
If the
evidence of a child witness’ or child victim’s sexual reputation is
admitted, it must not be treated as relevant to the child witness’ or
victim’s credibility.
The proposed section does not apply to a
child who is a defendant in the proceeding.
The proposed section will
ensure that child victims and child witnesses receive a level of protection
commensurate with that recommended for adult complainants in the Model Criminal
Code Report on Sexual Offences Against the Person by preventing unjustified
damage to character and reputation and inappropriate humiliation and
embarrassment.
Section 15YC – Evidence of Sexual
Experience
Proposed section 15YC limits the admissibility of evidence
of a child witness’ or child victim’s experience with respect to
sexual activities (other than sexual activities involving the defendant). Such
evidence is only admissible by leave of the court.
The court may only grant
leave for the evidence to be admitted if the court is satisfied that the
evidence is substantially relevant to facts in issue in the proceeding or, if
the evidence relates to the sexual experience of a child witness or child victim
and is to be adduced in cross-examination of the child witness, that the
evidence is of substantial probative value.
Proposed subsection 15YC(2)
provides further guidance as to the meaning of the expressions
“substantially relevant to facts in issue” and “substantial
probative value”. The court must not treat the evidence as substantially
relevant to facts in issue merely because it may raise inferences as to the
child witness’ or child victim’s general disposition. In
determining whether the evidence has substantial probative value, the court is
to have regard to:
• whether the evidence tends to prove that the
child witness knowingly or recklessly made a false representation when the child
witness was under an obligation to tell the truth; and
• the period
that has elapsed since the acts or events to which the evidence relates were
done or occurred.
For example, evidence that a child witness made a
false statutory declaration six months ago is more likely to be regarded as
having substantial probative value than evidence that the child witness stole
$100 dollars three years ago.
The proposed section does not apply to a
child who is a defendant in the proceeding.
The proposed section is based
on section 5.2.39 of the Model Criminal Code, but has been modified to
incorporate the “substantial probative value” test in section 103 of
the Evidence Act 1995, which relates to the cross-examination of a
witness as to his or her credibility. Limiting the admissibility of evidence of
sexual experience will protect child witnesses and child victims from damage to
character and reputation and inappropriate humiliation and embarrassment that
may be caused if evidence of sexual activity unconnected with the alleged crime
is admitted.
Section 15YD – Leave under this
Division
Proposed section 15YD requires applications for leave to
adduce evidence of a child witness’ or child victim’s sexual
reputation or sexual experience under proposed Division 2 to be in writing and
to be made in the absence of the jury (if there is a jury).
A court
must not determine an application for leave until the court has considered any
submissions and other evidence it considers necessary for determining the
application. If leave is given the court must state in writing its reasons for
giving leave and ensure those reasons are entered in the court’s records.
The above requirements are drawn from the recommendations in the Model
Criminal Code Report on Sexual Offences Against the Person. By requiring
applications for leave and the courts’ reasons for granting leave to be
documented, the proposed section provides means of ensuring that judges are
accountable for decisions to admit such evidence and that the restrictions set
out in proposed section 15YB and 15YC are fully complied with.
Division 3 – Cross-Examination
Proposed Division 3
applies to the cross-examination of a child witness or child
victim.
Section 15YE – Disallowing inappropriate or aggressive
cross-examination
Proposed section 15YE provides the court with a
discretion to disallow a question put to a child witness in cross-examination if
the question is inappropriate or unnecessarily aggressive. In considering
whether a question is inappropriate or unnecessarily aggressive the court is to
have regard to the personal characteristics of the child witness.
The
personal characteristics of the child witness to which the court is to have
regard include, but are not limited to, the age, culture, mental capacity and
gender of the child witness. The court’s power to disallow a question
under any other law will be preserved by proposed section
15YT.
Section 15YF – Unrepresented
defendants–cross-examination of child victims
Proposed section
15YF precludes an unrepresented defendant from personally conducting the
cross-examination of a child victim. Although the defendant will not be able to
personally question the child victim, any questions the defendant wishes to ask
the child victim will be put to the child at the request of the defendant by a
person appointed by the court.
The strict prohibition on an
unrepresented defendant personally cross-examining a child victim recognises
that cross-examination of a child victim directly by the alleged offender will
undoubtedly be traumatic and distressing for the child.
The court will
be able to exercise its power under any other law to disallow a question the
defendant requests the person to ask (see proposed section
15YT).
Section 15YG – Unrepresented defendants -
cross-examination of child witnesses
Proposed section 15YG prohibits
cross-examination of a child witness (not including a child victim) by an
unrepresented defendant personally, unless the court gives leave. The court may
give an unrepresented defendant leave to personally cross-examine a child
witness if satisfied that the child’s ability to testify under
cross-examination will not be adversely affected if the defendant conducts the
cross-examination. In deciding whether the child’s ability to testify will
not be adversely affected the court must have regard to any trauma likely to be
caused to the child witness if the defendant conducts the cross-examination.
If the court refuses an unrepresented defendant leave to conduct the
cross-examination personally, any questions the defendant wishes to ask must be
put to the child witness by a person appointed by the court.
In contrast
to proposed section 15YF, which completely prohibits cross-examination of a
child victim by an unrepresented defendant personally, proposed section
15YG permits the court to give leave to the unrepresented defendant to conduct
the cross-examination of a child witness personally. A complete
prohibition is not appropriate in the case of a child witness, as
cross-examination by the defendant personally will not necessarily be traumatic
(for example, where there is no proximate relationship to the defendant or the
victim).
Section 15YH – Represented defendants –
cross-examination of child witnesses and child victims
Proposed
section 15YG precludes a represented defendant from personally conducting the
cross-examination of a child witness or a child victim. A defendant who is
represented by counsel may only cross-examine a child witness or a child victim
through counsel.
Division 4 – Special facilities for child
witnesses to give evidence
Proposed Division 4 provides for the use
of special facilities and arrangements, such as closed-circuit television, while
a child witness is giving evidence.
Section 15YI –
Closed-circuit television
Proposed section 15YI provides that
evidence given by a child witness must be given by means of closed-circuit
television, except in certain circumstances. A child will not be required to
give evidence by means of closed-circuit television if:
• the child is
a least 16 years old and chooses to not use closed-circuit television to give
evidence;
• if the court orders that the child is not to give evidence
by means of closed-circuit television; or
• closed-circuit television
is not available in the court.
A court must not order that a child is
not to give evidence by means of closed-circuit television unless the court is
satisfied that it is not in the interests of justice for the child
witness’ evidence to be given by means of closed-circuit
television.
A child witness may be intimidated and distressed by having
to appear in an open court. Allowing a child witness to testify by means of
closed-circuit television will minimise the trauma of giving evidence by
enabling the child to give his or her evidence in a less formal and more private
environment. As a consequence, the child witness will be better able to focus
on questions being asked.
Section 15YJ – Giving evidence by
closed-circuit television
Proposed section 15YJ facilitates the use
of closed-circuit television by ensuring that the court’s powers to
control proceedings within the courtroom extend to any location outside the
courtroom from which a child witness is giving evidence by means of
closed-circuit television. The proposed section also permits the court to
adjourn the proceeding to another location to enable a child witness to give
evidence by means of closed-circuit television.
Section 15YK –
Viewing evidence given by closed-circuit television
Proposed section
15YK provides that, where a child witness gives evidence by means of
closed-circuit television, the child and any person present with the child must
be able to be seen on one or more television monitors by any persons who have an
interest in the proceedings.
Section 15YL – Alternative
arrangements for giving evidence
Proposed section 15YL provides for
the use of alternative arrangements while a child witness is giving evidence,
where the child’s evidence is not to be given by closed-circuit television
for one of the reasons set out in proposed section 15YI. For example,
alternative arrangements are to be used if closed-circuit television is not
available in the court.
The court must make arrangements to restrict the
contact the child has with the defendant while giving evidence and may make
arrangements to restrict the contact the child has with members of the public.
The arrangements the court can make include the use of screens and planned
seating arrangements. By restricting the contact a child witness has with other
persons in the courtroom, and in particular with the defendant, the alternative
arrangements will ameliorate the stress and embarrassment that may be
experienced by a child witness in giving evidence.
If the child is at
least 16 years old, he or she may choose not to use the arrangements while
giving evidence.
Division 5 – Use of video
recordings
Proposed Division 5 permits a video recording of an
interview with a child witness to be used in proceedings.
Section 15YM
– Use of video recordings
Proposed section 15YM provides for a
video recording of an interview with a child witness conducted by a constable or
a person in a prescribed category to be admitted as evidence in chief of the
child witness, if the court gives leave. The court must not give leave if
satisfied that it is not in the interests of justice for the child’s
evidence in chief to be given by video recording.
A child witness who
gives evidence in chief by video recording must be available for
cross-examination and re-examination.
By allowing a video recording of
an interview with a child witness to be admitted, the exposure of the child to
court room questioning can be limited. An added advantage is that the account
given closest to the time of the alleged offence will be fresh and hence more
likely to be an accurate account of events than several months later. Limiting
the application of the section to video recorded interviews conducted by
constables and other prescribed classes of person (eg, social workers) will
ensure that such interviews are conducted by persons of appropriate professional
status.
Section 15YN – Admissibility of evidence given using
video recordings
Proposed section 15YN sets out further provisions
relating to the admissibility of evidence given video recording. In particular,
proposed subsection 15YN(1) provides that evidence given by video recording is
admissible despite the fact that it is evidence of previous representations made
by the child during the interview. However, other rules of evidence, including
rules relating to the admissibility of hearsay evidence and evidence of
counselling communications, continue to apply to evidence given by video
recording.
Evidence given by video recording is only admissible if the
court is satisfied that any defendant in the proceedings or his or her lawyer
was afforded a reasonable opportunity to listen to and view the
recording.
Division 6 - Miscellaneous
Proposed Division 6
contains miscellaneous provisions dealing with adult companions for child
witnesses; the exclusion of members of the public from the courtroom;
proscribing warnings to the jury on certain matters; prohibiting publication of
details identifying a child victim or child witness; and preserving the
court’s general powers to control proceedings.
Section 15YO
– Adults accompanying child witnesses
Proposed section 15YO
provides that a child witness may chose an adult to accompany him or her while
he or she is giving evidence in a proceeding (including while giving evidence by
closed-circuit television). However, the court may disapprove the person chosen
by the child witness if it considers that the person is not an appropriate
person to accompany the child. For example, the court may determine that it is
not appropriate for an adult who is a party to the proceeding to accompany the
child.
The court may allow more than one adult to accompany a child if
it considers that it is in the interests of justice to do so. For example, a
court may allow a child to be accompanied by a relative and an
interpreter.
An adult accompanying a child witness must not prompt the
child or otherwise influence the answers the child gives to questions or disrupt
the questioning of the child.
Section 15YP – Exclusion of people
from the courtroom
Proposed section 15YP gives the court the power to
exclude some or all members of the public from the courtroom while a child
witness is giving evidence in the courtroom. A court may exercise this power,
for example, to make it easier for a child to testify freely or to protect a
child witness’ reputation.
Section 15YQ – Warnings etc not
to be given about children’s evidence
Proposed section 15YQ
prevents a judge from warning a jury or suggesting to a jury that the law
regards children as unreliable class of witness or that the law requires greater
or lesser weight to be given to the evidence of a child witness that is given by
closed-circuit television or video recorded interview or that is given while the
child is accompanied by an adult. The proposed section implements section
5.2.41 of the Model Criminal Code (Reliability of evidence of children) and also
ensures that judges cannot undermine the beneficial effect of proposed Divisions
4 and 5 and section 15YO by warning or suggesting to a jury that evidence given
in reliance on those provisions should be given lesser weight.
Section 15YR – Publication identifying child witnesses or child
victims
Proposed section 15YR makes it an offence for a person to
publish any matter, without the leave of the court, which identifies a person
(other than a defendant) as a child witness or a child victim or is likely to
lead to his or her identification. However, the proposed section does not apply
to any official publication in the course of, and for the purpose of, the
proceeding or a document prepared for use in particular legal proceedings.
A court may grant leave for a person to publish identification details.
In deciding whether to grant leave the court must consider any trauma to the
child witness or damage to the child witness’ reputation that could be
caused by the publication and whether the publication is for the supply of
transcripts to person with a genuine interest in the proceedings (eg, a party to
the proceedings) or for genuine research purposes. The court (whether
constituted by the same or different judicial officers) may give leave after the
proceedings have finished.
The onus is placed on a person who wishes to
publish identifying details to apply for leave to do so, as the prevention of
the further trauma to the child victim or child witness will in most cases
outweigh any public interest in knowing the identity of the child.
The
proposed section does not apply to child defendants as they are already covered
by State and Territory provisions that apply to Commonwealth criminal
proceedings in the relevant jurisdiction.
Section 15YS –
Division 5 of Part IIIA unaffected
Proposed section 15YS provides
that the proposed Part does not affect the operation of Division 5 of Part IIIA
of the Crimes Act, which provides for overseas witnesses in child sex tourism
proceedings to give evidence by video link.
Section 15YT –
General powers of a court
Proposed section 15YT preserves the
court’s general powers to control the conduct of a proceeding, including
the questioning of witnesses, unless those powers are expressly or necessarily
affected by the provisions in proposed Part 1AD.
Where a court has power
to give leave under one of the provision of proposed Part 1AD, the court may
grant leave subject to conditions.
Schedule 4 – Investigation of Commonwealth offences
Most of the amendments in this Schedule are the result of a review of
Part 1C of the Crimes Act. Part 1C was inserted into the Crimes Act by the
Crimes (Investigation of Commonwealth Offences) Amendment Act 1991. It
was enacted in part as a response to the High Court decision in Williams v R
(1986) 161 CLR 278, which underlined the absence of any authority at common
law on the part of investigating officials to detain a suspect for
questioning.
Under section 23C in that Part, a person who is lawfully
arrested for a Commonwealth offence may be detained for a 'reasonable' time, to
a maximum of 2 hours for a person who is or appears to be under 18, an
Aboriginal person, or a Torres Strait Islander, and to a maximum of 4 hours for
any other person. In calculating these periods, certain periods of time
specified in subsection 23C(7) are to be disregarded. A magistrate or justice
of the peace can extend this period, once only, by a maximum of 8 hours (section
23D).
Part 1C confers a range of rights on suspects, that apply both in
the situation of lawful arrest and detention, and in specified circumstances
constituting deemed arrest. Some of the measures contained in this Schedule are
directed to clarifying this distinction between lawful and deemed arrest for the
purposes of the Part.
Among the rights conferred by Part 1C on those
subject to lawful or deemed arrest are:
• to communicate with a friend
or relative and legal practitioner (section 23G);
• in the case of an
Aboriginal person or Torres Strait Islander or person under 18 - to have an
interview friend present during questioning (section 23H);
• in
appropriate cases - to an interpreter (section 23N);
• in the case of a
foreign national - to communicate with his or her consular office (section
23P).
There are also requirements relating to recording of admissions and
confessions (section 23V). This is an indicative list only, and does not detail
the precise rules governing each of these rights, or all of the rights that are
conferred.
This Schedule also contains some amendments to Part 1AA of the
Crimes Act. Part 1AA was inserted in the Crimes Act by the Crimes (Search
Warrants and Powers of Arrest) Amendment Act 1994. The Part includes rules
governing the issuing and execution of search warrants (Division 2), the
stopping and searching of vehicles and other conveyances (Division 3), and
arrest and related matters including strip search powers and identification
procedures (Division 4). All of the proposed amendments are to Division
2.
Finally, the schedule contains amendments to the provisions governing
search and seizure warrants under the Part XII of the Customs Act 1901,
inserted by the Customs, Excise and Bounty Legislation Amendment Act
1995. These provisions are closely modelled on the Crimes Act search
warrant provisions.
Crimes Act 1914
The purpose of
the amendments to the Crimes Act is to clarify and improve the operation of the
provisions dealing with the investigation of Commonwealth offences under Parts
1AA and 1C.
Item 1
This Item repeals the existing paragraph
3E(5)(e) and replaces it with a proposed new paragraph 3E(5)(e). Section 3E
governs the issuing of search warrants. The existing paragraph 3E(5)(e)
provides that the warrant must state:
‘the period for which the
warrant remains in force, which must not be more than 7 days’.
This
formulation has created unnecessary uncertainty for readers of the legislation
as to when a warrant expires. The proposed new paragraph will contain a
cross-reference to proposed subsection 3E(5A) which will state more concretely
when a warrant expires (see Item 2).
Item 2
This Item
inserts proposed subsection 3E(5A). Section 3E governs the issuing of search
warrants. The proposed subsection will overcome uncertainty for readers of the
existing paragraph 3E(5)(e) as to when a warrant expires (see Item 1). The
proposed subsection states that a warrant expires at the end of the seventh day
after it is issued.
Item 3
This Item amends subsection
3E(8), consequential on the proposed amendments at Items 1 and 2. Subsection
3E(8) allows a subsequent search warrant to be issued in respect of premises or
a person notwithstanding the earlier expiry of an initial warrant in respect of
those premises or that person. The proposed amendment ensures that this rule
also extends to proposed subsection 3E(5A), which also provides for warrant
expiry.
Item 4
This Item amends subsection 3E(9),
consequential on the proposed amendments at Items 1 and 2. Subsection 3E(9)
provides for shorter time limits to apply to the expiry of section 3R (telephone
etc) search warrants. The new expiry rule in proposed subsection 3E(5A) will
not apply to telephone etc search warrants, which will cease to be in force
after a maximum of 48 hours, rather than at the end of a day.
Item
5
This Item amends subsection 3E(9), consequential on the proposed
amendments at Items 1 and 2. Subsection 3E(9) provides for shorter time limits
to apply to the expiry of section 3R (telephone etc) search warrants. The
existing subsection is premised on the basis that subsection 3E(5) refers to a
warrant ceasing to be in force after ‘7 days’. The amended
subsection 3E(9) will reflect the fact that the proposed new paragraph 3E(5)(e)
will require the issuing warrant to specify the ‘time’ at which the
warrant expires.
Item 6
This Item repeals subsection 3R(2)
and substitutes a new provision that re-enacts and expands on existing
subsection 3R(2). Proposed paragraph 3R(2)(a) re-enacts existing subsection
3R(2), which provides that an issuing officer may accept an application for a
warrant by voice. Proposed paragraph 3R(2)(b) provides that the issuing officer
may make a recording of the whole or any part of such communication by voice.
Although there is currently no legal barrier to such recording with the consent
of all involved, express legal provision will encourage recording as a mechanism
to provide reassurance that there will be no misunderstanding about the terms of
an application and the terms of any warrant
Item 7
This
Item inserts the words “or any other offence” after the word
“arrested” in paragraph 3ZH(2A)(a). Existing paragraph 3ZH(2A)(a)
requires that where it becomes apparent during a strip search that a forensic
procedure is likely to produce evidence relating to the offence for which the
person has been arrested, the procedure must be carried out in accordance with
the requirements prescribed by Part 1D.
Currently, the subsection
contains a possible anomaly, whereby if a strip search is undertaken and reveals
the need for a forensic procedure to find evidence of an offence other than the
offence for which the person was arrested, there is no explicit requirement to
follow the usual requirements for forensic procedures. Proposed paragraph
3ZH(2A)(a) removes the anomaly by expressly providing that the requirements in
Part 1D must also be observed when carrying out forensic procedures to
obtain evidence relating to an offence other than the offence for which the
person was arrested.
Item 8
This Item inserts proposed
subsection 3ZH(2B) into section 3ZH to clarify that an order authorising a strip
search also authorises the taking of a photograph of evidential material found
on the person. Existing section 3ZH allows for a strip search of an arrested
person to be conducted, but at present it is not clear that an order by a senior
police officer authorising a strip search authorises the photographing of
material on the person. This amendment clarifies that evidential material found
on the person may be photographed, whether or not this constitutes a forensic
procedure under Part 1D.
Item 9
This Item inserts a
proposed a new title Division 1 - Introduction and a new section 23,
which will outline the operation of Part 1C. (Part 1C sets out a number of
obligations and limitations in relation to the investigation of Commonwealth
offences.)
Division 1 will include provisions that relate to the
operation of Part 1C including sections covering the application of the Part and
definitions.
Section 23 - Outline of this Part
Proposed
subsection 23(1) provides that Part 1C performs two
functions:
• Division 1 provides for the detention of people
lawfully arrested for Commonwealth offences; and
• Division 2 imposes
obligations on investigating officials in relation to:
- people lawfully
arrested for Commonwealth offences; and
- certain other people being
investigated for Commonwealth offences.
The proposed outline is designed
to clarify the operation of Part 1C with respect to two different groups: those
lawfully arrested and those suspected of criminal activity who are not under
arrest in the strict sense but who fall within an extended meaning of that term
(see subsection 23B(2)).
Proposed subsections 23(2) and (3) further
clarify the operation of Part 1C and provide that the Part does not confer any
power to arrest a person and that only a person lawfully arrested for a
Commonwealth offence may be detained under the Part. (The proposed subsections
replace existing section 23R - see Item 53.)
Item 10
This
Item repeals subsection 23A(6), which provides that the existing provisions of
Part 1C apply to the investigation of Australian Capital Territory offences
which are punishable by a period of more than 12 months and where the
investigating official is a member of the Australian Federal Police. The
Australian Capital Territory is considering a proposal to enact its own regime,
essentially replicating the Commonwealth’s Part 1C, to apply to ACT
offences. This is consistent with the fact that the ACT has enacted its own
criminal investigation provisions in other contexts. However, the timing of any
such measure has not yet been determined. It is therefore proposed that this
Item commence on Proclamation, as set out in clause 2, to ensure that the ACT
provisions have commenced before subsection 23A(6) is repealed.
Item
11
This Item repeals the definition of arrested or
under arrest in subsection 23B(1) as a consequence of the proposal
to define the expressions in proposed subsection 23B(1A) (see Item
16).
Item 12
This Item inserts a definition of the term
arrested into subsection 23B(1) and provides that it will have the
meaning given by subsection 23B(1A) (see Item 16).
Item 13
This Item inserts a definition of the term inform into
subsection 23B(1) and provides that in relation to providing information to a
person under arrest, it means notify the person in a language in which the
person is able to communicate fluently. This is designed to ensure that a
requirement, under Part 1C, to provide information to a person is given in a
language that the person is able to understand. This would replace inconsistent
formulations in the current Part 1C as to the scope of the proposed
right.
Item 14
This Item repeals the definition of
magistrate in subsection 23B(1) as a consequence of the
introduction of the term judicial officer (see Item 29). (A
judicial officer will include, inter alia, a magistrate.)
Item
15
This Item inserts a definition of the term under
arrest into subsection 23B(1) and provides that it will have the meaning
given by subsection (1A) (see Item 16).
Item 16
This Item
inserts proposed subsection 23B(1A) which provides that for the purposes of Part
1C, a person is arrested or under arrest if the
person is:
• lawfully arrested for a Commonwealth offence;
or
• covered by the extended meaning given by subsection
23B(2).
The proposed definitions are designed to clarify the operation of
Part 1C: when the terms arrested or under arrest are
used, the provision in which they appear apply to both a person who is lawfully
under arrest and a person who is covered by the extended meaning in subsection
23B(2). But when the term lawfully arrested is used, the provision in which it
appears does not cover a person who is covered by the extended
meaning.
Whether the extended meaning of arrest covers a person, depends
on the satisfaction of the requirements of subsection 23B(2). In this
situation, a person who is not lawfully under arrest will nevertheless be taken
to be arrested for the purposes of Part 1C if the person:
• is in
the company of an investigating official for the purposes of being questioned;
and
• certain other conditions apply as specified in that subsection,
for example,
- the official believes that there is sufficient evidence to
establish that the person has committed a Commonwealth offence that is to be the
subject of the questioning; or
- the official would not allow the person to
leave if the person wished to do so.
The proposed definition retains the
operation of subsections 23B(3) and 23B(4). This means that the person will
cease to be under arrest for the purposes of Part 1C if subsection 23B(3) (see
Item 20) or subsection 23B(4) (to enable the person to participate in covert
operations) applies.
Item 17
As the proposed definition of
arrest and under arrest in subsection 23B(1A)
includes a reference to the arrests ceasing under subsection 23B(3) or (4), this
Item proposes a consequential amendment to delete the reference to those
subsections in subsection 23B(2). The proposed amendment also makes a drafting
change to the opening words of the provision to clarify that, for the purposes
of Part 1C, subsection 23B(2) defines the situations in which a person is to be
taken to be arrested.
Item 18
This Item inserts a proposed
a drafting amendment to subsection 23B(2) to replace the expression
“treated as being” with the expression “taken to be” as
a consequence on the proposed change to the opening words of that provision (see
Item 17). This will clarify the provision such that a person is not taken to
be arrested in certain circumstances.
Item 19
This Item
repeals paragraph 23B(2)(d) and substitutes a new provision that broadens the
circumstances in which a person will not be covered by the extended
meaning of arrest only because of the operation of subsection 23B(2).
Paragraph 23B(2)(d) currently provides that a person is not to be
treated as having been arrested if the investigating official is performing
functions relating to persons or goods entering Australia (ie, barrier
functions) and does not believe the person has committed a Commonwealth offence.
Proposed paragraph 23B(2)(d) provides that the “barrier
control” exemption from Part 1C relates not only to persons and goods
entering Australia, but also to persons and goods leaving Australia. This means
that a person is not to be treated as having been arrested if the investigating
official is performing functions relating to persons or goods leaving Australia
and does not believe the person has committed a Commonwealth
offence.
Item 20
This Item repeals subsection 23B(3) and
substitutes a new subsection to provide that:
• a person does not
cease to be under arrest for the purposes of Part 1C when the person is remanded
under specified provisions of the Service and Execution of Process Act
1992; and
• a person does cease to be under arrest for the purposes
of Part 1C when the person is remanded by a person authorised to grant bail
under the law of the State or Territory in which the person was arrested, as
well as a magistrate or a justice of the peace.
Subsection 23B(3)
currently provides that where a person who has been arrested for a Commonwealth
offence is remanded by a magistrate (which is currently defined as including a
justice of the peace) in respect that offence, then the person is no longer
considered to be under arrest for the purposes of Part 1C.
The proposed
amendment is designed to ensure that where a person is remanded into custody
under specified provisions of the Service and Execution of Process Act
1992, that the remand will not have the effect of precluding the application
of Part 1C (that is, the person will continue to be under arrest).
Item 21
This Item inserts the proposed heading
Division 2 – Powers of detention before section 23C and a
clarifying note to the effect that the powers in Division 2 only apply to people
lawfully arrested for Commonwealth offences and do not apply to persons who fall
within the extended meaning of arrest.
Item 22
This Item
repeals subsection 23C(2) and substitutes a new subsection 23C(2) to clarify the
circumstances in which a person may be detained for the purposes of
investigating an offence other than the offence for which the person was
arrested.
Existing subsection 23C(2) provides that a person who has been
lawfully arrested for a Commonwealth offence may be detained for the purpose of
investigating whether the person committed the offence or any other
Commonwealth offence.
The purpose of the proposed amendment is to
close an anomaly in this subsection, which allows scope for the arrest of an
offender on a ‘holding charge’. While an investigating official
must have reasonable grounds to believe that a person has committed an offence
in order to arrest that person, and hence detain them pursuant to subsection
23C(3), under the current provision no such belief is required to justify
detention and questioning in relation to other possible Commonwealth offences.
Contemporary policing practice does not involve the use of holding
charges.
Proposed subsection 23C(2) clarifies that a person may only be
detained for the purposes of investigating an offence (not being the offence for
which the person was arrested) if an investigating official reasonably suspects
the person to have committed that other Commonwealth offence.
Item 23
This Item amends paragraph 23C(3)(b) as a consequence on the
proposed repeal of the term magistrate and the proposed
introduction of the term judicial officer (see Item
29).
Item 24
This Item inserts a proposed a clarifying note
at the end of subsection 23C(3) cross-referring to the definition of
judicial officer in proposed subsection 23C(9).
Item
25
This Item amends subsections 23C(4) and 23C(6) to provide that
references to arrested in those subsections are qualified by the term lawfully
so as to remove any ambiguity about the operation of the provisions. The
proposed amendment is consistent with the intention that Division 2,
which includes section 23C, only applies to persons who are lawfully arrested.
Item 26
This Item inserts a proposed new subsection
23C(6A) to provide that in relation to each first arrest in any 48-hour period
the effect of subsection 23C(6), which is to ensure that in any given 48-hour
period, a person cannot be questioned for more than the applicable investigation
period, is to be disregarded in certain circumstances.
The proposed
circumstances in which the limitations imposed by subsection 23C(6) are to be
disregarded are:
• if the later arrest is for a Commonwealth
offence that is committed after the person’s period of detention in
respect of the first or earlier arrest; or
• if the later arrest arose
in different circumstances to the offence to which the first arrest relates and
for which new evidence has been found since the first arrest.
The
proposed provision also provides that the person’s questioning associated
with the later arrest must not relate to the Commonwealth offence to which the
first arrest related, or circumstances in which such an offence was committed.
While subsection 23C(6) places a legitimate limitation on investigating
officials, it is proposed that a person should not be able to avoid questioning
for a new or unrelated offence merely because he or she has just been questioned
in relation to an earlier offence.
Item 27
This Item amends
paragraph 23C(7)(g) to replace the expression “to make and dispose”
with the expression “in connection with making and disposing”. The
proposed amendment is designed to clarify that it is not just the actual time
taken to make or dispose of an application for an order under sections 23D, 23WU
or 23XB that should be disregarded for the purpose of calculating the applicable
investigation period, it is also to include the time that is reasonably required
in connection with making such an application.
The proposed amendment
will mean, for example, that the time spent travelling to the location where the
section 23D application is to be heard and the time spent waiting for the
magistrate to hear the application will not count towards the investigation
period allowed under subsection 23C(4).
Item 28
This Item
amends paragraph 23C(8)(a) as a consequence of the proposal to amend paragraph
23C(3)(b) by replacing the term magistrate with the proposed term
judicial officer.
Item 29
This Item inserts a
proposed new subsection 23C(9) to define the proposed term judicial
officer. The provision provides that a judicial officer
means a magistrate, a justice of the peace or a person authorised to grant bail
under the law of the State or Territory in which the person was arrested.
Currently subsection 23B(1) provides that for the purposes of Part 1C a
reference to magistrate includes a justice of the peace. This extended
definition of magistrate has been criticised because of the confusion it creates
by being used to refer to someone who is not in fact a magistrate (ie, a justice
of the peace). The proposed new term of judicial officer will
replace references to magistrate where it is appropriate to do so. For example,
the definition will be used for the purposes of remand in proposed paragraph
23C(3)(b) (see Item 23).
Item 30
This Item amends
subsection 23D(1) to provide that the reference to “arrested” is
qualified by the term “lawfully” so as to remove any ambiguity about
the operation of the provision. The proposed amendment is consistent with the
intention that Division 2, which includes section 23D, only applies to
persons who are lawfully arrested.
Item 31
This Item
inserts a proposed clarifying statement at the end of subsection 23D(2) to
provide that, the magistrate, justice of the peace or bail justice to whom the
application is made under that subsection, is the judicial officer
for the purposes of sections 23D and 23E. (The term judicial officer appears in
subsections 23D(3) and (4) but has not previously been defined.)
The
proposed amendment and the repeal of the definition of magistrate (see Item 14)
will remove the inherent contradiction that currently exists in subsection
23D(2).
Item 32
This Item amends subsection 23D(4) to
require that an extension of the investigation period by a judicial officer must
be by signed written authority.
Item 33
This Item inserts
proposed new subsections: 23D(4A) and (4B). Proposed subsection 23D(4A)
provides that the written authority extending the investigation period must set
out the day and time when the extension was granted, the reasons for granting
the extension and the terms of the extension.
Proposed subsection
23D(4B) provides that the judicial officer (who grants the extension) must give
the investigating official a copy of the authority as soon as practicable after
signing the authority.
The proposed amendments will mean that there must
be a formal record of all decisions to extend investigation periods and not just
those where the application is made in an electronic form under section 23E as
is currently the case.
Item 34
This Item omits the
reference to “radio or radio-telephone” from subsection 23E(1) and
proposes substituting a reference to “telex, fax or other electronic
means”.
Existing section 23E sets out requirements that must be
met where an application for extension of the investigation period is made by
telephone, radio or radio-telephone. Other electronic means are not
covered.
The proposed amendment to subsection 23E(1) provides that an
extension of the investigation period may be sought or notified by any
electronic means (eg, telephone, fax or email).
Item
35
This Item replaces the word “tell” in subsection
23E(2) with the word inform as a consequence of the proposed
introduction the word inform as a defined term in subsection
23B(1) (see Item 13). This means that an investigating official must
communicate in a language in which the person being questioned is reasonably
fluent about the right to make representations.
Item
36
This Item amends subsection 23E(2) to replace the reference to
under arrest with a reference to lawfully arrested so as to remove any ambiguity
about the operation of the provision. The proposed amendment is consistent with
the intention that Division 2, which includes section 23E, only applies
to persons who are lawfully arrested.
Item 37
This Item
repeals subsection 23E(3) (which sets out the contents of a written authority to
extend an investigation period in response to an electronic request) and
replaces it with a new provision as a consequence of proposed subsection 23D(4A)
(see Item 33). Proposed subsection 23E(3) will provide that, if a judicial
officer grants an electronic application to extend the investigating period, he
or she must inform the investigating official of the matters set out in the
authority under proposed subsection 23D(4A). This means that the information
recorded for both electronic and other grants of extension of time is the
same.
Item 38
This Item omits the term “receiving the
authority” from subsection 23E(4) and substitutes the term “being
informed of those matters” as a consequence of the proposed amendment to
subsection 23E(3) (see Item 37). The proposed amendment to subsection 23E(4)
will remove an ambiguity in the existing provision so that it is clear that the
investigating official need only be informed of the matters contained in the
written authority, he or she need not actually receive a physical copy of that
authority.
Item 39
This Item repeals subsection 23E(7)
(which currently defines judicial officer for the purposes of
section 23E) as a consequence of the proposed amendment to subsection 23D(2)
(which will define judicial officer for the purposes of both
sections 23D and 23E) (see Item 31).
Item 40
This Item
inserts the proposed heading Division 3 – Obligations of investigating
officials before section 23F and a clarifying note to the effect that the
obligations in Division 3 apply in relation to all persons who fall within the
extended meaning of arrest as well as those lawfully arrested for a Commonwealth
offence.
Item 41
This Item repeals subsection 23F(2) and
replaces it with a new provision as a consequence of the proposed introduction
the word inform as a defined term in subsection 23B(1) (see Item
13). Existing subsection 23F(2) provides that a caution must be in a language
in which the person is able to communicate, as the concept of communicating in a
language other than English will be central to the new term
inform, the proposed amendment of subsection 23F(2) will refer to
an investigating official having to inform the person of the
caution.
Items 42 and 43
These Items omit the words
“holding the person under arrest” from subsections 23G(2) and (3) to
clarify the application of those provisions. Section 23G confers a right on a
person who is lawfully arrested or who falls within the extended meaning of
arrest, to speak to a friend, relative or legal practitioner. As the term
“holding the person under arrest” is inconsistent with the
applicability of the section to persons who are not lawfully under arrest, the
proposed amendments remove the words.
Item 44
This Item
repeals paragraph 23H(2)(a) and replaces it with a new paragraph to raise the
threshold test for when an investigating official must not question an
Aboriginal person or a Torres Strait Islander unless the person has had access
to an interview friend.
Existing subsection 23H(2) provides that this
obligation arises where the investigating official:
• suspects that
a person may have committed a Commonwealth offence, or is of the opinion
that information received by investigating officials may implicate a person
in the commission of a Commonwealth offence, and believes on reasonable
grounds that the person is an Aboriginal person or a Torres Strait Islander;
or
• believes on reasonable grounds that a person under arrest for a
Commonwealth offence is an Aboriginal person or a Torres Strait
Islander.
By contrast, the requirements for the application of the
provisions governing the tape recordings of confessions and admissions has a
higher threshold: that is the person is being “interviewed as a suspect
(whether under arrest or not)”.
The proposed amendment will make
the application of interview friend provisions consistent with the requirements
of the tape-recording provisions. This will mean that the requirement to cease
questioning a person, unless they have had access to an interview friend, will
apply where an investigating official interviews a person as a suspect (whether
lawfully arrested or covered by the extended meaning of arrest or not) rather
than in the current wider circumstances.
Item 45
This Item
inserts proposed subsections 23H(2A) and (2B) to deal with the situation where
an investigating official is to choose an interview friend for a person.
Under the existing provisions, if an interview friend is not present,
except in certain circumstances, the investigating official must not question
the person. However, there are no provisions that enable the investigating
official to provide the person with an interview friend. While it is desirable
that persons being interviewed have first choice as to who is to be their
interview friend, there are limits to the extent to which a suspect can be given
an unfettered choice, particularly where this results in an inability to
question the person.
Proposed subsection 23H(2A) will provide that the
suspect may choose his or her own interview friend unless he or she expressly
and voluntarily waives this right, fails to exercise this right i or the
interview friend chosen does not arrive within 2 hours.
In such
circumstances, proposed subsection 23H(2B) will provide that the investigating
official must choose one of the following to be the person’s interview
friend:
• a representative from an Aboriginal legal aid organisation;
or
• a person named in the relevant list maintained under subsection
23J(1) (that is, a list of names of persons who are suitable to assist an
Aboriginal person or a Torres Strait Islander).
Item
46
This Item inserts a proposed amendment to subsection 23H(4),
consequent to the previous Item, to add that the burden is on the prosecution to
prove that an Aboriginal person or a Torres Strait Islander has waived the right
to an interview friend under proposed subsection 23H(2A) as well as under
existing subsection 23H(2).
Item 47
This Item inserts a
proposed consequential amendment to subsection 23H(8) to add that the
investigating official does not have to comply with the requirements of proposed
subsection 23H(2B) (as well as existing subsections 23H(1) and (2)) if the
investigating official believes that the person being questioned would not be at
a disadvantage because of the person’s education and
understanding.
Item 48
This Item repeals paragraph
23K(1)(a) and replaces it with a new paragraph to raise the threshold test for
when an investigating official must not question the person, unless the person
has had access to an interview friend. This proposed amendment is equivalent to
that proposed for paragraph 23H(2)(a) and the same reasoning applies (see Item
44).
Item 49
This Item inserts a proposed consequential
amendment to subsection 23L(1) as a consequence of the proposed restructure of
that provision (see Item 50).
Item 50
Sections 23G, 23H,
23K, 23M and 23P impose a number of requirements on an investigating official in
relation to a person under lawful or deemed arrest, such as deferring
questioning to allow a legal practitioner to attend the questioning of the
person.
These requirements are, however, subject to section 23L, which
provides that a requirement imposed on the investigating official by one of the
above sections does not apply in certain circumstances, for example, where
compliance with that requirement is likely to result in the destruction of
evidence or the intimidation of a witness.
This Item repeal and
substitutes subsections 23L(2), (3) and (4) to restructure and simplify the
drafting of the provisions (without changing the scope of the provisions) and to
prescribe time limits within which certain things are to
occur.
Proposed subsection 23L(2) provides that if the requirement
under the Act relates to things done or in relation to a legal practitioner,
then the ability to not comply with that requirement can only exist in
exceptional circumstances, and if a senior police officer, or other prescribed
person, has authorised the non-compliance. In addition the investigating
official must make a record of the ground for the belief required for subsection
23L(1) (for example, the belief that complying with the provision is likely to
result in an accomplice avoiding apprehension, the loss or concealment etc of
evidence or prejudice the safety of a person).
Proposes subsection 23L(3)
provides that if non-compliance with the requirements of the provision has been
authorised, then the record of the investigating officer’s grounds for
belief must be recorded as soon as practicable. The introduction of the time for
the recording the investigating officer’s belief is designed to overcome
the contrary intention that is it must be done contemporaneously. In addition,
the investigating officer must comply with the requirements as soon as possible.
This is designed to preclude a continuation of the non-compliance in
circumstances where the initial grounds for non-compliance no longer exist.
Proposed subsection 23L(4) provides that if non-compliance with the
requirements of a provision results in a person’s communication with a
legal practitioner of his or her choice, or that legal practitioner’s
attendance, being prevented or delayed, then the investigating official must
offer the services of another legal practitioner. This means that the person
must have access to legal advice as soon as possible even when the legal
practitioner of his or her choice is not available.
Item
51
This Item inserts a proposed a transitional provision which is
designed to ensure that offices prescribed for the purposes of subsection 23L(4)
before the commencement of this Act continue to be prescribed offices after the
amendment proposed to section 23L (see Item 50).
Item
52
This Item repeals and substitutes section 23P. Under existing
section 23P, if a person under arrest for a Commonwealth offence is not an
Australian citizen, the investigating official must, before starting to question
the person, inform the person that he or she may communicate, or attempt to
communicate, with the consular office of the country of which the person is a
citizen, and the official must defer the questioning for a reasonable time to
allow the person to so communicate. Existing section 23P does not deal with the
rights of stateless persons which are provided for under certain international
conventions and some Commonwealth laws (for example, to communicate with the
nearest appropriate representative of the State in the territory of which the
person has his or her habitual residence, and to be visited by a representative
of that State).
The re-enacted section 23P proposes the conferral of the
following (broader) range of rights. To:
• be informed of the right to
have a consular office notified;
• have the consular office
notified;
• be informed of the right to notify a consular office
directly;
• be given reasonable facilities to notify the
office;
• have written communications forwarded to the consular office;
and
• attempt to notify a consular offence.
Item
53
Existing section 23R is a declaratory provision that states that
Part 1C does not confer any power to arrest a person or to detain a person who
has not been lawfully arrested. As proposed subsections 23(2) and (3) (see Item
9) address this issue, this Item inserts a proposed the repeal of section
23R.
Item 54
This Item inserts a minor change to subsection
23V(1) to replace the reference to “interviewed” with a reference to
“questioned” to clarify that the provision is to apply whenever a
person is being questioned without the need for a formal interview to take
place
Items 55 and 56
These Items amend subparagraphs
23V(1)(b)(i) and (ii), respectively, to replace the concept of interview with
the concept of questioning as a consequence of the proposed amendment of
subsection 23V(1) (see Item 54).
Item 57
This Item replaces
the word notify in paragraph 23V(2)(b) with the word inform as a
consequence of the proposed introduction that word as a defined term in
subsection 23B(1) (see Item 13). This means that an investigating official must
communicate in a language in which the person being questioned is reasonably
fluent about the right to view a video recording of any confession or
admission.
Item 58
This Item inserts proposed subsection
23V(6A) to clarify that subsection 23V(6) (which enables a court to admit
confessional evidence when the court is satisfied that it was not practicable to
comply with the requirements of subsection 23V(2) in relation to the provision
of copies of the confession) does not limit the operation of subsection 23V(5).
Subsection 23V(5) provides that a court may admit confessional evidence even if
the requirements of subsection 23V(2) have not been complied with, if in the
special circumstances of the case admission of the evidence would not be
contrary to the interest of justice.
Customs Act
1901
Items 59 to 69 make equivalent proposed amendments to the
search warrant and seizure warrant provisions in Part XII of the Customs Act as
are proposed to the search warrant provisions in Part 1AA of the Crimes Act by
Items 1 to 6 of this schedule. Items 59 to 63 relate to search warrants. Items
64 to 68 relate to seizure warrants. Item 69 relates to both. This is
consistent with the existing consistency between the terms of the Crimes Act
search warrant provisions and the Customs Act search warrant and seizure warrant
provisions.
Item 59
This Item repeals the existing
paragraph 198(5)(e) and replaces it with a proposed new paragraph 198(5)(e), in
an equivalent amendment to the proposed replacement of the existing paragraph
3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see Item
1).
Item 60
This Item inserts proposed subsection 198(3A)
in an equivalent amendment to the proposed insertion of subsection 3E(5A) in the
Crimes Act (see Item 2).
Item 61
This Item amends
subsection 198(5) in an equivalent amendment to the proposed amendment of
subsection 3E(8) of the Crimes Act (see Item 3).
Item
62
This Item amends subsection 198(6) in an equivalent amendment to
the proposed amendment of subsection 3E(9) of the Crimes Act (see Item
4).
Item 63
This Item amends paragraph 198(6)(b) in an
equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the
Crimes Act (see Item 5).
Item 64
This Item repeals the
existing paragraph 203(5)(d) and replaces it with a proposed new paragraph
203(5)(d), in an equivalent amendment to the proposed replacement of the
existing paragraph 3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see
Item 1).
Item 65
This Item inserts proposed subsection
203(5) in an equivalent amendment to the proposed insertion of subsection 3E(5A)
in the Crimes Act (see Item 2).
Item 66
This Item amends
subsection 203(7) in an equivalent amendment to the proposed amendment of
subsection 3E(8) of the Crimes Act (see Item 3).
Item
67
This Item amends subsection 203(8) in an equivalent amendment to
the proposed amendment of subsection 3E(9) of the Crimes Act (see Item
4).
Item 68
This Item amends paragraph 203(8)(b) in an
equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the
Crimes Act (see Item 5).
Item 69
This Item amends
subsection 203M(2) of the Customs Act in an equivalent amendment to the proposed
amendment of subsection 3R(2) of the Crimes Act (see Item 6).
Schedule 5 - Listening device warrants
The purpose of this Schedule is to amend the Customs Act 1901 and the Australian Federal Police Act 1979 to permit the issue of a warrant authorising the use of a listening device in respect of a particular item. Existing provisions in these Acts for the use of listening devices permit a warrant to be sought authorising their use in respect of a particular person or particular premises.
The Supreme Court of Victoria recently held in R v Nicholas
(Unreported [2000] VSCA 49) that a warrant identifying a person only by
reference to their anticipated collection of a particular item did not
sufficiently identify a particular person, and therefore was not authorised by
the Customs Act warrant provisions. The proposed new provisions will redress
the effects of this decision by expressly permitting a warrant to be sought
authorising the use of a listening device in respect of a particular item.
Australian Federal Police Act 1979
Item
1
This Item amends subsection 12G(1) to provide that a member of the
Australian Federal Police may apply for a warrant authorising the use of a
listening device in relation to a particular item. The proposed amendment
responds to the decision of the Victorian Court of Criminal Appeal in R v
Nicholas (Unreported [2000] VSCA 49). In that decision, the court held that
a warrant describing a person by reference to his or her anticipated collection
of a particular item, did not sufficiently describe a particular person, and was
therefore not authorised by the relevant warrant provisions contained in the
Customs Act 1901.
The proposed amendment addresses the similar
warrant scheme in the Australian Federal Police Act to ensure that a warrant may
be sought authorising the use of a listening device in relation to an item where
it is not possible to identify a particular person.
The Item also
proposes headings for subsections 12G(1), (2) and (4) to assist with the
interpretation and application of the provisions.
Item
2
This Item proposes new subsections 12G(5A) and (5B) to empower a
Judge or nominated AAT member to issue a warrant authorising the use of a
listening device to listen to or record words spoken by or to any person while
the person is in the vicinity of the item. Proposed paragraph 12G(5A)(b)
requires that the Judge or AAT member be satisfied of specified matters (these
are the same as those specified in relation to a warrant authorising the use of
a listening device in relation to a particular person or premises, save one
additional matter).
Proposed subparagraph 12G(5A)(b)(iv) requires the
Judge or AAT member to also be satisfied that some or all of the information
sought to be obtained could not appropriately be obtained by using a listening
device authorised to be used in respect of a particular person or premises.
This additional requirement is intended to ensure that a warrant in respect of a
particular item can only be granted where a warrant in relation to a particular
person or premises could not be employed to the same effect.
Item
3
This Item amends subsection 12G(6) to include a reference to the
matters to which a Judge or AAT member must have regard in considering an
application for a warrant in respect of a particular item. The amendment is
consequential to the amendments proposed by Items 1 and 2 empowering Judges and
nominated AAT members to issue warrants authorising the use of listening devices
in respect of a particular item.
The Item also proposes a heading for
subsection 12G(6) to assist with the interpretation and application of the
provision.
Item 4
This Item amends paragraph 12G(6)(b)
consequential on the amendments proposed by Items 1 and 2 empowering Judges and
nominated AAT members to issue warrants authorising the use of listening devices
in respect of a particular item.
Item 5
This Item amends
subsection 12G(7) consequential to the amendments at Items 1 and 2 empowering
Judges and nominated AAT members to issue warrants authorising the use of
listening devices in respect of a particular item.
The Item also proposes
headings for subsections 12G(8), (9), (10) and (11) to assist with the
interpretation and application of the provisions.
Item
6
This Item amends paragraph 12G(7)(c) consequential to the
amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue
warrants authorising the use of listening devices in respect of a particular
item.
Item 7
This Item amends section 12H consequential to
the amendments at Items 1 and 2 empowering Judges and nominated AAT members to
issue warrants authorising the use of listening devices in respect of a
particular item.
Customs Act 1901
Item
8
This Item amends section 219B to permit members of the Australian
Federal Police and the National Crime Authority to apply for a warrant
authorising the use of a listening device in relation to a particular item. The
proposed amendment responds to the decision of the Victorian Court of Criminal
Appeal in R v Nicholas (Unreported [2000] VSCA 49). In that decision,
the Court held that a warrant describing a person by reference to their
anticipated collection of a particular item did not sufficiently describe a
particular person, and was therefore not authorised by subsection 219B(5).
This Item proposes new subsections 219B(8A) to (8E) empowering a Judge
or nominated AAT member to issue a warrant authorising the use of a listening
device to listen to, or record words spoken by or to, any person while the
person is in the vicinity of the item. The new subsections replicate the
elements of existing subsection 219B(7) and 219B(8). The different drafting
style employed as between the existing provisions and the new provisions is not
intended to imply any difference in the application or use of the provisions,
save to the extent of the inclusion of the requirement at paragraph 219B(8B)(c)
that the Judge or AAT member be satisfied that some or all of the information
sought to be obtained could not appropriately be obtained by using a listening
device authorised to be used in respect of a particular person or premises.
This additional paragraph is intended to ensure that a warrant in respect of a
particular item can only be granted where a warrant in relation to a particular
person or premises could not be employed to the same effect.
This Item
also proposes headings for the subsections of section 219B to assist with the
interpretation and application of the provision.
Item
9
This Item amends section 219C consequential to the amendments to
section 219B (see Item 8) empowering Judges and nominated AAT members to issue
warrants authorising the use of listening devices in respect of a particular
item.
Schedule 6 – Amendment of the Financial Transaction Reports Act 1988
The purpose of this Schedule is to amend the Financial Transaction
Reports Act 1988 (the FTR Act) to:
• to include persons who
collect, hold, exchange, remit or transfer cash and non-cash funds on behalf of
others (“underground bankers”) within the definition of cash
dealer;
• give the Western Australian Anti-Corruption Commission and
the Queensland Crime Commission access to financial transaction reports
information by deeming those agencies to be law enforcement agencies;
and
• provide that foreign intelligence information provided to AUSTRAC
by a foreign country or agency of a foreign country is afforded the same secrecy
and access regime under the FTR Act.
Item 1
This Item
amends the definition of cash dealer in subsection 3(1) to provide
that a real estate agent acting in the ordinary course of real estate business
is not a cash dealer for the purposes of the FTR Act. This will ensure that
real estate agents who only collect rent and hold deposits in the form of
currency will not be considered as remittance dealers within the cash dealer
definition. A real estate agent conducting other activities that come within
the definition of a cash dealer will not be excluded from that
definition.
Item 2
This Item amends subparagraph (k)(i) of
the definition of cash dealer in subsection 3(1) by repealing
subparagraph (k)(i) and proposing three new subparagraphs.
Proposed
subparagraph (k)(i) re-enacts existing subparagraph (k)(i) and provides that a
cash dealer is a person (other than a financial institution) who carries on a
business of collecting currency, and holding currency collected, on behalf of
other persons.
Proposed subparagraph (k)(ia) provides that a cash dealer is
a person (other than a financial institution) who carries on a business of
exchanging one currency for another, or converting currency into prescribed
commercial instruments, on behalf of other persons. This will ensure that the
definition of ‘cash dealer’ covers persons carrying on the business
of exchanging currency, and converting currency into some other form of
instrument of value. (Item 3 proposes the definition for prescribed
commercial instrument.)
Proposed subparagraph (k)(ib) provides
that a cash dealer is a person (other than a financial institution) who carries
on a business of remitting or transferring currency or prescribed commercial
instruments into or out of Australia on behalf of other persons or arranging for
such remittance or transfer. This will ensure that the definition of
‘cash dealer’ covers so-called ‘underground bankers’, ie
persons who collect funds on behalf of others and then remit those funds out of
Australia. (Item 3 proposes the definition for prescribed commercial
instrument.)
Item 3
This Item inserts a definition
of prescribed commercial instrument into subsection 3(1) and
provides that it will mean:
• a cheque, bill of exchange, promissory
note or other like instrument creating an entitlement to currency;
or
• any instrument (including an electronic instrument) that is
declared to be a prescribed commercial instrument for the purposes of this
definition
The definition basically provides that a prescribed
commercial instrument is an instrument of value other than currency.
(The proposed expression is used in proposed subparagraphs (k)(ia) and (k)(ib)
of the definition of cash dealer - see Item 2).
Item 4
This Item inserts a new section 17J which provides that, for the
purposes of the FTR Act, information concerning a specific financial transaction
that is received by AUSTRAC as a result of a request to a foreign country or to
an agency of a foreign country is taken to have been obtained under that Act.
This will ensure that information provided to AUSTRAC by foreign countries is
given statutory recognition and afforded the same strict secrecy and access
regime that applies to all other information received by AUSTRAC under the FTR
Act.
Item 5
This Item inserts a new subsection 27(1A)
which provides that the Director of AUSTRAC may only authorise the Queensland
Crime Commission or the Anti-Corruption Commission of Western Australia to have
access to Financial Transaction Reports information where those bodies undertake
to comply with the information privacy principles set out in section 14 of the
Privacy Act 1988 in respect of that information.
This will ensure
that the Queensland Crime Commission and the Anti-Corruption Commission of
Western Australia must comply with the same privacy requirements as Commonwealth
agencies that have access to financial transaction reports
information
Item 6
his Item adds two new paragraphs in
subsection 27(16) to provide that the Queensland Crime Commission and the
Anti-Corruption Commission of Western Australia are agencies that are deemed to
be law enforcement agencies for the purpose of section 27. This will enable
those Commissions to have access to financial transaction reports information.
Item 7
This Item adds four new paragraphs to subsection
27(17) to provide that:
• the Queensland Crime Commissioner or an
Assistant Queensland Crime Commissioner, and
• a member of the staff of
the Queensland Crime Commission and
• a member, or a member of the
staff, of the Anti-Corruption Commission of Western Australia
are law
enforcement officers for the purpose of section 27. This will enable those
officers to have access to Financial Transaction Reports
information.
Item 8
This Item inserts a new subsection
27C(2A) to provide that for the purpose of monitoring the compliance of an
approved cash carrier with the record-keeping obligations required by section 8,
an authorised officer may inspect accessible records containing reportable
details (within the meaning of section 8) of significant cash transactions to
which the approved cash carrier is a party. The authorised officer may also
inspect any system used by the approved cash carrier for keeping such records.
This provision will enable AUSTRAC to monitor compliance of an approved cash
carrier with record keeping obligations under the FTR Act.
Schedule 7 - Pardons, quashed convictions and spent
convictions
Crimes Act 1914
Item 1
This Item repeals
paragraph (e) of the definition of law enforcement agency in section 85ZL (which
currently refers to the National Exchange of Police Information) and replaces it
with a reference to the CrimTrac Agency. This proposed amendment is
consequential on assumption by CrimTrac of the responsibilities formally carried
out by the National Exchange of Police Information.