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1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MEASURES TO COMBAT SERIOUS AND
ORGANISED CRIME BILL 2001
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Minister for Justice and
Customs, Senator the Honourable Chris
Ellison)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
SENATE TO THE BILL AS INTRODUCED
This Bill amends the Crimes Act 1914 (Crimes Act), Australian
Federal Police Act 1979 (AFP Act), Customs Act 1901 (Customs Act),
National Crime Authority Act 1984 (NCA Act), Financial Transaction
Reports Act 1988 (FTR Act) and Fisheries Management Act 1991
(Fisheries Management Act) to:
• extend the scope of the
controlled operations provisions to enable operations against a broader range of
criminal activity subject to appropriate limitations, review 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, audit and reporting and mechanisms;
• provide protection
for child complainants and witnesses appearing in Commonwealth sex offence
proceedings;
• make amendments to update and clarify 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;
• update and clarify a
number of provisions in the FTR Act; 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, commences 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 a much wider range of Commonwealth offences;
• expand the exemption from criminal liability to cover all
Commonwealth, State and Territory offences (if prerequisites are met) and to be
available to certain persons other than law enforcement
officers;
• introduce indemnification from civil liability for both law
enforcement officers and certain other persons;
• revise the categories
of persons who may apply for and who may authorise a controlled operation;
• provide for a member of the Administrative Appeals Tribunal to
review any operation that it is propose to continue beyond 3
months;
• make consequential amendments to enhance the reporting and
accountability regimes, including the incorporation of the Ombudsman in the
accountability arrangements;
• introduce a separate and more limited
controlled operations regime for Customs; 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 or NCA 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 was
removed in the Senate.)
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 a broader range of 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, an authorisation certificate will have to make reference to any illicit
goods that are the subject of the criminal activity under investigation (see
Items 21and 22), as will reports on authorisations and operations (see Item
35)).
Item 6A
This Item inserts a definition of the term
major controlled operation in subsection 3(1), namely that it has
the meaning given in subsection 15J(2A) (Item 17). Where the AFP proposes to
undertake a major controlled operation, only the Commissioner or Deputy
Commissioner will be able to issue a certificate authorising the operation (see
proposed paragraph 15J(2)(a), in Item 17).
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 a broader range of Commonwealth
offences and the introduction of the term ‘illicit goods’ (see Item
6).
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 8A
This Item inserts a definition of the term
nominated Tribunal member into subsection 3(1) and provides that
it will have the meaning given by proposed section 15OC (see Item 17). A
certificate authorising a controlled operation will only be able to remain in
force beyond 3 months if it is reviewed by a nominated member of the
Administrative Appeals Tribunal, and that member decides that the certificate
should remain in force (see proposed section 15OB in Item 28).
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
was removed in the Senate.)
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 certain other persons 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.
(Item 13 was removed in the Senate.)
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 scope for controlled operations, exemption
from criminal liability, indemnity for civil liability and compensation, and the
application and authorisation procedures in relation to controlled
operations.
Proposed new section 15H: 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 serious
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 any serious Commonwealth offence, as
defined, rather than being limited to narcotic goods offences. The proposed new
definition also reflects the fact that an authorisation would be able to extend
to certain 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 section 15HB: What is a serious Commonwealth
offence?
The purpose of proposed section 15HB is to define the range
of Commonwealth offences in relation to which a controlled operation may be
authorised. The proviso that a certificate authorising a controlled operation
may only be issued in relation to a suspected ‘serious Commonwealth
offence’ operates as a limitation on:
• the definition of
‘controlled operation’ (proposed section 15H, Item
17);
• the rules governing who may authorise a controlled operation
(proposed subsection 15J(2), Item 17); and
• the prerequisites for
authorising an operation (proposed paragraph 15M(a), Item 20).
This
limitation implements recommendation 1 of the report on the Bill by the Senate
Legal and Constitutional Legislation Committee.
The definition of
‘serious Commonwealth offence’ has a number of key features. It is
limited to offences carrying a maximum penalty of 3 years or more imprisonment.
That is, a controlled operation cannot be authorised in relation to an offence
carrying a maximum penalty of less than 3 years imprisonment, or that is only
punishable by fine, not imprisonment.
The definition is also limited to
offences of the kind listed in the definition, or of a kind prescribed by
regulation. Many of the listed items are drawn from the definition of
‘relevant offence’ in section 4 of the NCA Act (eg, theft, fraud,
illegal drug dealings). There are also some additional categories, in respect
of which a controlled operation may be an appropriate investigatory technique
(eg, sabotage or threats to national security, the organisation financing or
perpetration of sexual servitude or child sex tourism). All of the listed
categories have the potential to involve serious and organised criminal
behaviour that might properly be investigated by means of a controlled
operation.
The capacity to prescribe additional items by regulation has
been included to cater for emerging categories of serious crime, reflecting both
the changing criminal threat and new enforcement priorities that may emerge.
The Government has undertaken, in consultation with the AFP and NCA, that no
operation will be authorised on the basis of a category of offence prescribed by
regulation, until the disallowance period for that regulation has
ended.
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,
other than those excluded from immunity under proposed subsection 15I(2A). 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(2A) provides that certain categories of
person cannot receive immunity from criminal liability under the controlled
operations regime. These persons are informants, and those involved in the
criminal scheme under investigation. This latter category would include, for
example, a courier involved in an illegal importation who latter agrees to
assist police to secure evidence against the organiser of the importation.
There is no prohibition on persons excluded from gaining indemnities and
immunities under the controlled operations regime receiving case by case
prosecution immunities.
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 unlawful conduct is a participant in an
operation and is covered by 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. The purpose of this proposed provision is 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 subsection
15IA(2A) provides that certain categories of person cannot receive indemnity
from civil liability under the controlled operations regime. These persons are
informants, and those involved in the criminal scheme under investigation. This
latter category would include, for example, a courier involved in an illegal
importation who latter agrees to assist police to secure evidence against the
organiser of the importation.
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 15ID: Compensation for loss
or injury
Proposed new section 15ID makes plain the legal situation
that would have existed in any event, that where the Commonwealth would be
tortiously liable for loss or injury arising from a controlled operation, it is
to pay the compensation for which it is liable at law, or otherwise a settled
amount. The provision is not intended to give rise to a cause of action, or to
render the Commonwealth liable in circumstances where it would not otherwise be
liable.
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 each 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) performs three functions. First, it
provides that senior officers of the AFP and NCA may (and may only) authorise
controlled operations where the investigation of the criminal activity that
would be the subject of the operation is within the functions of that agency.
Secondly, it provides that an operation may only be authorised in relation to a
‘serious Commonwealth offence’ (see proposed section 15HB, Item 17).
Thirdly, it defines which officers of those agencies may issue a certificate
authorising a controlled operation.
In the case of the NCA, its members
may authorise an operation. This reflects existing paragraph 15J(b). The
Chairperson of the NCA is a member (para 7(2)(a) of the NCA Act). In the case
of the AFP, the officers who may authorise an operation depend on the
anticipated characteristics of the operation. If the operation is a
‘major controlled operation’ as defined in proposed subsection
15JA(2A), only the Commissioner or a Deputy Commissioner may authorise the
operation. These are operates likely to continue from than 3 months, involve
infiltration of a criminal group for more than 7 days, or directed against
criminal activity involving a threat to human life. If the operation is a
controlled operation other than a ‘major controlled operation’, it
may be authorised by the Commissioner, a Deputy Commissioner or a senior
executive AFP employee authorised in writing by the Commissioner to perform the
function. This reflects existing paragraph 15J(a).
Proposed section 15J
also defines AFP, NCA and Customs authorising
officers, in the following terms.
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 of 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 ‘serious Commonwealth offence
‘[as defined in proposed section 15HB, Item 17] 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 has 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 AFP Commissioner, or the Chairperson of the NCA 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 a nominated Tribunal member (as
defined in proposed section15OV; Item 28A) 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 a
nominated Tribunal member 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 nominated Tribunal member to give written notice
of his or her decision to the Australian law enforcement officer in charge of
the relevant controlled operation.
Item 28A
This Item
inserts proposed section 15OC, which identifies the ‘nominated Tribunal
member’(s) who are to perform the function of reviewing controlled
operations authorisation certificates before they can remain in force beyond 3
months, under proposed section 15OB. It also provides these members with
certain protections.
Under proposed subsections 15OC(1) and (2), the
persons who may perform the review function are members of the Administrative
Appeals Tribunal who have been nominated to perform the function by the Minister
administering the Crimes Act. The Minister may only nominate more senior
Tribunal members, or those with at least 5 years enrolment as a legal
practitioner.
Under proposed subsections 15OC(3), nominated Tribunal
members who are undertaking reviews and deciding whether a certificate should
remain in force have the same protection and immunity as that held by a Justice
of the High Court has in relation to a proceeding of that court.
The
provisions are modelled, in substance, on section 6D of the
Telecommunications (Interception) Act 1979.
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 the variation, surrender,
termination or expiry 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 and NCA Chairperson
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
locations, 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 known who has possession of the goods.
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.
(Item 44 was removed in the
Senate.)
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.
(Item 46 was removed in the
Senate.)
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.
Item 49
Item 49 inserts proposed
Division 2A, containing proposed sections 15UA to 15UD in Part 1AB of the Crimes
Act. Division 2A would be entitled ‘Monitoring of controlled operations
by the Ombudsman’.
Proposed section 15UA: Ombudsman to be
notified of certain matters
Proposed subsection 15UA(1) requires the
AFP Commissioner and NCA Chair to give the Ombudsman copies of the quarterly
reports required to be given to the Minister under the proposed new section 15R
(Item 34).
Under proposed subsection 15UA(2), the Ombudsman may require
the Commissioner or Chair to furnish additional information about the decisions
concerning controlled operations that are the subject of the ‘section
15R’ reports.
Proposed section 15UB: Inspection of records by
Ombudsman
Proposed subsection 15UB(1) provides that the Ombudsman
must inspect the records of the AFP and NCA concerning controlled operations at
least once every 12 months, and may do so more often, and at any time.
Proposed subsection 15UB(2) provides that the Ombudsman is not required
to inspect records in relation to an ongoing operation.
Proposed
section 15UC: Annual reports by Ombudsman
The proposed section
provides for the Ombudsman to report to Parliament annually on the
Ombudsman’s activities under this Division and on the comprehensiveness
and adequacy of the reports to Parliament on controlled operations made under
section 15T.
Proposed subsection 15UC(1) provides that the
Ombudsman’s report is to be made to the President of the Senate and
Speaker of the House of Representatives; and sets out the requirement to report
on the Ombudsman’s activities.
Proposed subsection 15UC(2) sets out
the requirement to report on the ‘comprehensiveness and adequacy’ of
the section 15T reports.
Proposed subsection 15UC(3) provides that
details of the participants in an operation that is ongoing at the end of a
reporting year are to be detailed in the next report after the operation is
completed, and need not be reported while the operation
continues.
Proposed section 15UD: Ancillary matters concerning
reports
Proposed subsection 15UD(1) provides for the exclusion from a
report by the Ombudsman of material that, if made public, could reasonably be
expected to endanger a person’s safety, prejudice an investigation or
prosecution, or compromise an agency’s operational activities or
methodologies.
Proposed subsection 15UD(2) provides that the Ombudsman
must give a copy of a report to AFP Commissioner and/or the NCA Chair as
appropriate, and also to the Minister responsible for that
agency.
Customs Act 1901
Item 50
This
Item inserts proposed subsections 233(3A) and (3B) in the Customs
Act.
The existing subsections 233(1) and (2) make it an offence
to:
(a) smuggle any goods;
(b) import any prohibited imports;
(c)
export any prohibited exports; or
(d) unlawfully possess or convey any
smuggled goods or prohibited imports or prohibited exports.
The proposed
new subsections create a simplified regime to allow the Australian Customs
Service to conduct controlled deliveries in relation to suspected unlawful
smuggling, importation and exportation and related activity. It is not intended
that this provision be used for the kind of wide-ranging operation or long term
deep infiltration that the AFP and NCA would be able to engage in.
Under
proposed subsection 233(3A), Customs officers would have immunity from criminal
liability for the possession or conveyance, or for facilitating the possession
or conveyance, of prohibited imports, prohibited exports and smuggled goods.
The immunity would extend to Commonwealth, State and Territory offences relating
to that possession, conveyance or facilitation. The prerequisite to the
immunity is that the officer is acting in the course of duty.
The terms
‘Customs’ and ‘officer’ are defined in section 4 of the
Customs Act.
Under proposed subsection 233(3B), a person other than a
Customs officer can be immune from criminal liability for the same matters, and
in the same terms, as a Customs officer under subsection 233(3A), subject to the
following prerequisites:
• the person is acting subject to written
instructions;
• those instructions were issued by a Customs officer
acting in the course of duty; and
• those instructions refer to section
233.
The requirement for writing and for a reference to section 233 are
designed, in part, to ensure that immunity is not given inadvertently to a
person not intended to receive immunity.
Item 51
This Item
inserts proposed subsection 233(6) in the Customs Act and is consequential on
Item 50. The proposed subsection would require the Minister to report to
Parliament annually on controlled deliveries undertaken by Customs officers,
pursuant to the immunity from criminal liability that would be available under
proposed subsection 233(3A).
The deadline for reporting to Parliament
is the same as that applying to the AFP and NCA in relation to controlled
operations, pursuant to section 15T of the Crimes Act.
National
Crime Authority Act 1984
Item 52
Item 52 inserts
proposed section 55AA in the NCA Act. This would require the Ombudsman to brief
the Parliamentary Joint Committee on the National Crime Authority on the
NCA’s involvement in controlled operations during the proceeding 12
months. The briefing must occur in private session.
This amendment is
linked to the Ombudsman’s oversight powers in respect of controlled
operations, under proposed Division 2A of Part 1AB, to be inserted by Item 49.
The role, functions and proceedings of the Parliamentary Joint Committee
on the National Crime Authority are governed by Part III of the NCA Act.
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, audit and reporting 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, 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 Crime Commission and
the Queensland Crime Commission); the New South Wales Police Integrity
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 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.
Division 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 person’s
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 maximum 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 maximum 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 maximum 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 and auditing 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.
Under proposed
subsection 15XU(1A), auditing must be at arms length from the use of the assumed
identities scheme. Persons who have issued, varied or revoked an assumed
identity authorisation or who have been covered by such an authorisation are not
to conduct an audit. This amendment, and proposed section 15XUA, respond to
recommendation 4 of the Senate Legal and Constitutional Legislation Committee
report on the Bill.
Section 15XUA - Matters to be reported
Proposed section 15XUA would require Commonwealth participating agencies (ie, agencies that may authorise the use of assumed identities under proposed Part 1AC) to prepare a report following the end of each financial year providing:
(a) details of the number of authorisations to use an assumed identity issued during that financial year;
(b) a general description of the activities undertaken pursuant to those identities; and
(c) a statement as to whether the audit of those identities revealed any fraud or unlawful activity.
The Australian Security Intelligence Organisation and Australian Secret Intelligence Service would be required to provide this report to the Inspector-General of Intelligence and Security. The remaining Commonwealth participating agencies would be required to provide this report to the Minister responsible for the agency for the year to 30 June within 3 months after 30 June. The Minister would then be required to table the report in Parliament within 15 sitting days after receiving the report.
The legislation permits the tabling of the report as a stand alone document, but does not require this. For example, as long as all legislative time limits are met, a report on assumed identities could be included in the agency’s annual report.
Under proposed subsection 15XUA(5), before tabling a report in Parliament, the Minister is to remove material that the Minister considers, on the advice of the relevant agency head, may endanger a person’s safety, prejudice an investigation or prosecution or compromise the operational activities or methodologies of the agency. This caveat is necessitated by the sensitivity of the information involved. For example, a person who has used an identity may be at risk of reprisals from a criminal group that has been infiltrated.
This amendment, and proposed section 15XU(1A(, respond to recommendation 4 of
the Senate Legal and Constitutional Legislation Committee report on the Bill.
The amendment is designed to enhance the transparency of the assumed identities
framework.
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 complainants 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
complainant.
The protective provisions have been devised in recognition
of the fact that child complainants 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 complainants and child witnesses in giving evidence and to
protect the privacy of child complainants 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 complainants in
proceedings for sexual offences apply only to persons under the age of 18.
child complainant 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 complainant who is a witness, child
complainants are specified separately in a number of the proposed provisions
because those provisions either extend to a child complainant 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 complainant (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 complainant
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
complainant’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 complainant’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 complainant’s general disposition.
If the
evidence of a child witness’ or child complainant’s sexual
reputation is admitted, it must not be treated as relevant to the child
witness’ or complainant’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 complainants 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 complainant’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 complainant 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 complainant’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.
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 complainants 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
complainant’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 complainant.
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 complainants
Proposed
section 15YF precludes an unrepresented defendant from personally conducting the
cross-examination of a child complainant. Although the defendant will not be
able to personally question the child complainant, any questions the defendant
wishes to ask the child complainant 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 complainant
recognises that cross-examination of a child complainant 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 complainant) 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 complainant 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
complainant).
Section 15YH – Represented defendants –
cross-examination of child witnesses and child complainants
Proposed
section 15YG precludes a represented defendant from personally conducting the
cross-examination of a child witness or a child complainant. A defendant who is
represented by counsel may only cross-examine a child witness or a child
complainant 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 complainant 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 choose 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
complainants
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 complainant 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 complainant 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, and to further refinements following the report on
the Bill by the Senate Legal and Constitutional Legislation Committee. 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 the existing 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 are currently expressed to 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
replacing the confusing distinction between lawful and deemed arrest with a
clearer (and more clearly highlighted) distinction between lawful arrest, giving
rise to a detain power and safeguards, and the circumstance of being a protected
suspect who is not under lawful arrest, giving rise only to
safeguards.
Among the rights conferred by Part 1C on those who are not
under lawful arrest but who are under deemed arrest (old terminology prior to
these amendments) or are protected suspects (new terminology under these
amendments) 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
become any non-Australian national under these amendments) - 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.
Some of
the search warrant amendments reflect recommendations by the Senate Standing
Committee for the Scrutiny of Bills in its fourth report of 2000 concerning
entry powers.
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 lawfully
arrested but are the subject of rights and safeguards, as protected suspects
(see the discussion of Item 15A of this schedule).
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
Australian Capital Territory offences. This is consistent with the fact that
the Australian Capital Territory 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 Australian Capital
Territory provisions have commenced before subsection 23A(6) is repealed.
Item 10A
This Item amends section 23AA, which governs the
way that Part 1AA applies to persons arrested or questioned in the Australian
Antarctic Territory or the Territory of Heard Island and McDonald Islands in
relation to Commonwealth offences.
The amendment replaces the concept of
deemed arrest with the new label protected suspect. This is a
consequence of the amendment at Item 15A of this schedule, and is described and
explained below in the discussion of that Item.
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) to the effect that it refers to an
arrest for a Commonwealth offence that has not ceased under subsections 23B(3)
or (4).
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; and
• in a manner that takes into account any apparent
disability on the part of the person.
This definition is designed to
ensure that the various requirements under Part 1C to give information to a
person operate in a consistent way, that gives due regard to the capacity of the
person to understand the information and particular attention to the needs of
disabled persons. This would replace inconsistent formulations in the current
Part 1C as to the scope of the proposed right.
The limb of the definition
relating to disabled persons, along with the proposed amendment to section 23F
in Item 41 of this schedule, implements recommendation 7 of the Senate Legal and
Constitutional Legislation Committee report on the Bill.
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 14A
This Item
inserts in subsection 23B(1) a cross-reference to the definition of
protected suspect. The definition would be contained in
subsection 23B(2), as amended by Item 15A. That amendment described and
explained below in the discussion of Item 15A.
Item 15
This
Item inserts a definition of the term under arrest into subsection
23B(1) to the effect that it refers to an arrest for a Commonwealth offence that
has not ceased under subsections 23B(3) or (4). This is consistent with the
definition of the term arrested, which would be inserted in
subsection 23B(1) by Item 12.
Item 15A
This Item inserts a
definition of protected suspect in subsection 23B(2).
This
amendment responds to concerns reflected in recommendation 6 of the report on
the Bill by the Senate Legal and Constitutional Legislation Committee. These
concerns related to the lack of clarity in the use of the term
‘arrest’ in Part 1C of the Crimes Act to mean two mean different
things (lawful arrest and deemed arrest). The reason for the two concepts is
that actual arrest gives rise to a detention power and safeguards for suspects,
whereas deemed arrest gives rise only to safeguards for suspects.
The
amendments centring on Item 15A respond to the Committee’s concerns about
the use of the word ‘arrest’ to mean two different things, by
replacing the ‘deemed arrest’ label with the phrase ‘protected
suspect’. In other words, persons who are currently deemed to be
‘under arrest’ would instead be termed ‘protected
suspects’. This will make it clear that in the absence of ‘lawful
arrest’, there is no other power of arrest or detention created by the
fact that a person is in the company of an investigating official. Rather, the
extended operation of many of the provisions of Part 1C (previously referred to
as ‘deemed arrest’) is purely directed to conferring safeguards and
protections, a fact that will be reflected in the new term ‘protected
suspect’. The amendments employ a clearer label only, and have no
substantive impact on the powers or rights conferred by Part 1C of the Crimes
Act.
In keeping with the circumstances that currently constitute
‘deemed arrest’, the definition of ‘protected suspect’
in proposed subsection 23B(2) will apply to a person who is in the company of an
investigating official for the purpose of being questioned, if:
• 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; or
• the official has
given the person reasonable grounds for believing that the person would not be
allowed to leave if he or she wished to do so.
Current exceptions to this
definition (as amended by the Bill), would remain, namely
where:
• the official is performing functions in relation to
persons or goods entering or leaving Australia and the official does not believe
that the person has committed a Commonwealth offence; or
• the
official is exercising detention, search, information gathering or questioning
power under a law of the Commonwealth.
The safeguards that arise in circumstances of deemed arrest (and that would
therefore arise where a person is a ‘protected suspect’)
include:
• 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 or
stateless person - to communicate with the appropriate consular office (section
23P).
(Items 16 to 19 were removed in the Senate.)
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
20A
Item 20A amends subsections 23B(4) and (5) as a consequence of
the replacement of the concept of ‘deemed arrest’ with the concept
of a ‘protected suspect’ (described and explained in relation to
Item 15A of this schedule).
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
protected suspects (as to which, see the discussion in respect of Item
15A).
Item 21A
Item 21A amends subsections 23B(4) and (5)
as a consequence of the replacement of the concept of ‘deemed
arrest’ with the concept of a ‘protected suspect’ (described
and explained in relation to Item 15A of this schedule). It is no longer
necessary or appropriate to distinguish ‘lawful arrest’, as the term
arrest would not only apply to lawful 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
was removed in the Senate.)
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 was removed by the
Senate.)
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; and in
doing so must take account of any apparent disability of the
person.
(Item 36 was removed by the Senate.)
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 protected suspects as well as those arrested for a Commonwealth
offence (see discussion under Item 15A of this schedule).
Item
40A
Item 40A amends subsection 23F(1) as a consequence of the
replacement of the concept of ‘deemed arrest’ with the concept of a
‘protected suspect’ (described and explained in relation to Item 15A
of this schedule).
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.
The amendment also implements recommendation 7 of the Senate
Legal and Constitutional Legislation Committee report on the Bill, in providing
that a caution need only be given in writing if that is the most appropriate
means of informing the person.
Items 41A and 41B
Items 41A
and 41B amend subsections 23G(1) and 23G(2) respectively, as a consequence of
the replacement of the concept of ‘deemed arrest’ with the concept
of a ‘protected suspect’ (described and explained in relation to
Item 15A of this schedule).
Item 42
Item 42 omits the
words “holding the person under arrest” from subsection 23G(2) 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 42A
Item 42A
amends subsection 23G(3) as a consequence of the replacement of the concept of
‘deemed arrest’ with the concept of a ‘protected
suspect’ (described and explained in relation to Item 15A of this
schedule).
Item 43
Item 43 omits the words “holding
the person under arrest” from subsection 23G(3) for the same reasons that
Item 42 removes these words from subsection 23G(2).
Items 43A and
43B
Items 43A and 43B amend subsection 23H(1) as a consequence of the
replacement of the concept of ‘deemed arrest’ with the concept of a
‘protected suspect’ (described and explained in relation to Item 15A
of this schedule).
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 44A
Item 44A
amends paragraph 23H(2)(b) as a consequence of the replacement of the concept of
‘deemed arrest’ with the concept of a ‘protected
suspect’ (described and explained in relation to Item 15A of this
schedule).
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 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 46A
Item 46A amends
subsection 23H(5) as a consequence of the replacement of the concept of
‘deemed arrest’ with the concept of a ‘protected
suspect’ (described and explained in relation to Item 15A of this
schedule).
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 48A
Item 48A amends paragraph 23K(1)(b) as a
consequence of the replacement of the concept of ‘deemed arrest’
with the concept of a ‘protected suspect’ (described and explained
in relation to Item 15A of this schedule).
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 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 51A
Item 51A amends section 23M as a consequence
of the replacement of the concept of ‘deemed arrest’ with the
concept of a ‘protected suspect’ (described and explained in
relation to Item 15A of this schedule).
The amendments also clarify the
wording of section 23M, which sets out the procedures to be followed where a
person asks about the whereabouts of a person who is under arrest or a protected
suspect.
Item 51B
Item 51B amends section 23N as a
consequence of the replacement of the concept of ‘deemed arrest’
with the concept of a ‘protected suspect’ (described and explained
in relation to Item 15A of this schedule).
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 a broader
range of rights:
• to be informed of the right to have a consular
office notified;
• to have the consular office notified;
• to
be informed of the right to notify a consular office directly;
• to be
given reasonable facilities to notify the office;
• to have written
communications forwarded to the consular office; and
• to attempt to
notify a consular offence.
Item 52A
Item 52A amends section
23Q as a consequence of the replacement of the concept of ‘deemed
arrest’ with the concept of a ‘protected suspect’ (described
and explained in relation to Item 15A of this schedule).
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.
Items 53A and 53B
Items 53A and 53B amend subsection
23U(1) as a consequence of the replacement of the concept of ‘deemed
arrest’ with the concept of a ‘protected suspect’ (described
and explained in relation to Item 15A of this schedule).
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;
and take account of the needs of any apparent disability in deciding how to
communicate with the person.
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).
Fisheries Management Act 1991
Item
70
Item 70 amends paragraph 84A(2)(a) of the Fisheries Management
Act 1991. Section 84A of the Fisheries Management Act regulates the
detention of persons suspected of committing certain offences against that Act.
The detention power arises only where the officer has reasonable grounds to
believe that the person is not an Australian citizen or an Australian resident,
and was on a foreign boat when it was used in the commission of such an offence
(paragraph 84(1)(ia)).
The safeguards generally applicable to persons
questioned as suspects under Part 1C of the Crimes Act are expressed to apply to
detainees under this Fisheries Management Act power, pursuant to subsection
84A(2) of the Fisheries Management Act. As no formal arrest is involved, the
detention is treated as deemed arrest for the purposes of the application of
Part 1C safeguards. The reference to the person being treated ‘as
if’ he or she was ‘under arrest’ will be changed to a
reference to the person being ‘a protected suspect’ within the
meaning of Part 1C, for the reasons outlined in relation to Item 15A.
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
5A
This Item amends paragraph 12G(7)(a) of the AFP Act. Under
subsection 12G(7) of the AFP Act, a Judge or nominated Administrative Appeals
Tribunal member is to have regard to certain matters before issuing a listening
device. These matters include the impact on a person’s privacy in
relation to the ‘the person or premises’ in respect of which the use
of the device would be authorised. The proposed amendment clarifies that
privacy considerations are to be taken into account where the issuing of a
listening device warrant is in respect of an item, as they are in respect of
persons and premises.
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;
• confirm, for Criminal Code harmonisation purposes, that
certain elements of offences relating to failure to report financial transfers
carry strict liability;
• 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
3A to 3F
These items would amend subsections 15(1) and 15(5) of the
FTR Act. Subsection 15(1) and 15(5) create offences relating to a failure to
report a transfer of currency of not less than $10,000 into or out of Australia.
The amendments would clarify the operation of the offences for Criminal
Code harmonisation processes, by making it clear
that:
• failure to report a transfer is an element of the offence,
rather than a defence that can be raised;
• strict liability (as
defined in section 6.1 of the Criminal Code) applies to a failure to
report.
These amendments confirm the interpretation placed on these
offences in R v Wai Yai Fu (Unreported; District Court of NSW, 24 April
2001)
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 the CrimTrac Agency of the responsibilities
formally carried out by the National Exchange of Police Information.