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1998-1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
THE
SENATE
NATIONAL CRIME AUTHORITY LEGISLATION AMENDMENT
BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Justice and
Customs, Senator the Honourable
Amanda Vanstone)
ISBN: 0642 464286
This Bill amends the National Crime Authority Act 1984 (NCA Act),
Ombudsman Act 1976 and Administrative Decisions (Judicial Review) Act
1977 to:
• implement the Government’s response to the
3rd evaluation of the National Crime Authority (the Authority) by the
Parliamentary Joint Committee on the National Crime Authority (PJC-NCA);
and
• address a number of matters relating to the administration and
operations of the Authority.
The Bill also inserts a note in the
Privacy Act 1988.
Schedule 1 of the Bill will amend the NCA Act
to:
(a) remove the defence of reasonable excuse, replace the use
derivative-use indemnity with use-indemnity, and increase penalties for
non-compliance with the Act;
(b) enable the Authority to investigate relevant
criminal activity that occurs after the date of the reference to the
Authority;
(c) extend the term of appointment of the members of the Authority
from 4 to 6 years;
(d) extend the class of persons who may issue search
warrants to include magistrates;
(e) provide that witnesses may be advised of
the presence of persons at hearings and given an opportunity to comment, but not
object;
(f) clarify the application of legal professional privilege and
remove the defence of legal duty to disclose;
(g) clarify that only
reasonable force may be used in the execution of a warrant;
(h) clarify the
material to which the PJC-NCA may have access;
(i) apply Chapter 2 of the
Criminal Code;
(j) introduce a contempt regime for the
Authority;
(k) introduce hearing officers, whose only role is to undertake
hearings on behalf of the Authority;
(l) adopt the definition of
“document” from the Evidence Act 1995 and include
“money laundering” and “perverting the course of
justice” in the definition of relevant offence;
(m) repeal subsections
12(4) and (5);
(n) extend the class of persons who may apply for search
warrants to include members of the staff of the Authority;
(o) clarify that a
prohibition on disclosure relating to the Authority’s process, overrides
any contrary requirement under the Privacy Act 1988 for so long as the
prohibition remains in force;
(p) enable the Chairperson to delegate certain
powers;
(q) provide for the dissemination of information to foreign law
enforcement agencies; and
(r) enable the Chairperson to employ staff otherwise than under the
Public Service Act 1999.
Schedule 2 of the Bill inserts a note
into the Privacy Act 1988 to alert the reader of that Act to the
requirements of the NCA Act.
Schedule 3 of the Bill will amend the
Ombudsman Act 1976 to extend the jurisdiction of the Commonwealth
Ombudsman to deal with complaints against the Authority. The amendments
will:
(a) deem the Authority to be a prescribed authority for the
purposes of the Ombudsman Act;
(b) provide the Commonwealth Ombudsman with a
discretion to transfer a complaint to a more appropriate
authority;
(c) enable joint investigations; and
(d) provide that the
Attorney-General may issue certificates preventing the disclosure of certain
information to or by the Ombudsman.
Schedule 4 of the Bill will amend the
Administrative Decisions (Judicial Review) Act 1977 to exclude the
operation of that Act in relation to certain decisions made under the NCA
Act.
The amendments summarised by Items (a) to (k) above, and Schedules 3
and 4, implement the Government’s response to the 3rd
evaluation of the Authority by the PJC-NCA. While that evaluation confirmed the
operational value of the Authority as Australia’s only law enforcement
agency not limited by jurisdictional boundaries, it also identified a number of
areas where the powers of the Authority required enhancement. This Bill will
address those issues. The Bill will also implement the recommendation that
there be an independent complaints regime for the Authority.
The
amendments summarised by Items (l) to (r) above, and Schedule 2, address a
number of matters relating to the administration of the Authority in order to
improve the overall effectiveness of the Authority.
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
The short title of this Act is the National Crime Authority Legislation
Amendment Act 2000.
This clause provides that sections 1 and 2 of the Act commence on the day on
which the Act receives the Royal Assent. The remaining provisions of the Act
commence on a day or days to be fixed by Proclamation. However, this clause
also provides that if a provision of the Act has not commenced within 6 months
of Royal Assent then it commences on the first day after the end of the 6-month
period. This will allow appropriate preparations to be made at an
administrative level before the commencement of the amendments.
This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.
Part 1 - Amendments relating to reasonable excuse,
self-incrimination and increases in penalties
The purpose of this
Part is to enhance the investigatory power of the Authority so that it may deal
more effectively and efficiently with witnesses. The amendments will limit the
ability of witnesses to challenge the legitimate and essential role of the
Authority in investigating serious and organised crime. The amendments will
also increase penalties for non-compliance with the Act so as to deter those who
would otherwise embark on a course of conduct designed to thwart the
investigatory process.
The amendments made by this Part address the
issues raised in recommendations 7, 8, 9, 12 and 13 from the 3rd
evaluation of the Authority by the PJC-NCA.
Item 1
This
Item omits the defence of reasonable excuse from subsection 19A(4). Where a
person has been directed by a prescribed officer of an agency to comply with a
request by the Authority to furnish information to the Authority, that person
will no longer be able to claim that he or she has a reasonable excuse for
non-compliance with the request.
The removal of the 'reasonable excuse'
defence is consistent with the move to more specific defences under Chapter 2 of
the Criminal Code (the Code). The Code, which will apply to all
Commonwealth offences from 15 December 2001 and to offences under the NCA Act
from the date of commencement of Item 64 of this Act, sets out general
principles of criminal responsibility and includes defences applicable to all
offences.
The general defences are contained in Part 2.3 of the Code,
and include defences relating to intervening conduct or event, duress, and
sudden and extraordinary emergency. By replacing the less clear notion of
'reasonable excuse' with these specific defences, the scope for disputes as to
whether a reasonable excuse exists will be significantly reduced.
Item
2
This Item repeals subsection 20(3) as a consequence of the omission
of the defence of reasonable excuse from subsection 20(4) (see Item 3). As a
person will no longer be able to claim that he or she has a reasonable excuse
for non-compliance with a notice issued under section 20, a provision that
outlines how the Authority is to respond to such a claim is no longer
required.
Item 3
This Item omits the defence of reasonable
excuse from subsection 20(4). A person who is served with a notice requiring
the person to provide certain information to the Authority will no longer be
able to claim that he or she has a reasonable excuse for non-compliance with the
notice. (See Item 1 for the discussion on the removal of the defence of
reasonable excuse.)
Item 4
This Item repeals subsection
27(2) and substitutes a new provision that re-enacts existing paragraph
27(2)(b). Paragraphs 27(2)(a) and (aa), which deal with legal aid in relation
to applications under section 32, will no longer be required following the
repeal of section 32 (see Item 13).
This Item omits the defence of reasonable excuse from subsection 29(3).
A person, who is served with a notice requiring the person to attend at a
specified time and place and to produce specified documents or things, will no
longer be able to claim that he or she has a reasonable excuse for
non-compliance with the notice. (See Item 1 for the discussion on the removal of
the defence of reasonable excuse.)
This Item repeals the penalty in subsection 29(3). The penalty for not
complying with section 29 will be specified in new provisions (see Item
7).
This Item inserts three new provisions specifying the penalty for not
complying with section 29. The existing maximum penalty for this offence is a
fine of $1 000 or imprisonment for 6 months. Under the proposed provisions,
non-compliance will be an indictable offence, which is punishable, upon
conviction, by a fine not exceeding $20 000 or imprisonment for a period not
exceeding 5 years. However, the matter may also be dealt with summarily if it
is proper to do so and if the defendant and prosecutor consent. If the matter
is dealt with summarily, then the applicable penalty will be a fine not
exceeding $2 000 or imprisonment for a period not exceeding 1
year.
Penalties for offences relating to non-cooperation with the
Authority are being significantly increased, in order to provide adequate
deterrence. An offender, facing many years imprisonment or a fine of hundreds
of thousands of dollars for an offence such as drug trafficking, has a
significant incentive to obstruct an investigation by the Authority that could
lead to that person's conviction and punishment. Accordingly, the penalties for
obstructing the Authority also need to be significant, in order to remove that
incentive for obstruction.
This Item omits the reference to “30(3) to (10), inclusive,”
from subsection 29(4), and substitutes a reference to “30(3) to (5) and
(9)” as a consequence of the proposed restructure of section 30 (see Item
12).
Item 9
This Item omits from subsection 29(4) the
expression “and so apply as if a reference in those subsections to
subsection 30(2) were a reference to subsection (3) of this section”. The
words are no longer required as a consequence of the proposed restructure of
section 30 (see Item 12).
Item 10
This Item repeals
subsection 29(5) as a consequence of the omission of the defence of reasonable
excuse from subsection 29(3) (see Item 5). As a person will no longer be able to
claim that he or she has a reasonable excuse for non-compliance with a notice
issued under section 29, a provision that outlines how the Authority is to
respond to such a claim is no longer required.
Item 11
This
Item omits the defence of reasonable excuse from subsections 30(1) and (2). A
person who fails to attend in answer to a summons; fails to attend from day to
day unless excused or released; refuses or fails to take an oath or make an
affirmation; refuses or fails to answer a question or refuses or fails to
produce a document or thing when required to do so, will not be able to claim
that he or she has a reasonable excuse for non-compliance. (See Item 1 for the
discussion on the removal of the defence of reasonable excuse.)
Item
12
This Item substitutes new provisions dealing with the privilege
against self-incrimination, limits on the use of certain evidence, penalties for
non-compliance and legal professional privilege. (Subsections 30(4) to (11) will
be repealed.)
Background
Under the existing provisions, if
a witness appearing at a hearing before the Authority claims that the answer to
a question or the production of certain documents or a thing might tend to
incriminate the person:
• The Authority must make a decision as to
whether this is or is not a valid claim.
• If it is a valid claim, then
the person has a reasonable excuse for not answering the question or producing
the document or thing.
• However, the person will not have a
reasonable excuse if the Director of Public Prosecutions or the State
Attorney-General (or authorised person) (as applicable) gives the person an
undertaking in writing that any answer, document or thing, or anything derived
therefrom will not be used in evidence against the person in any later
proceedings for an offence. (The exception is that the evidence can be used in
proceedings in respect of the falsity of evidence given by the
person.)
• If the person is given such an undertaking or the person
does not have a valid claim, then the person must answer the question, or
produce the document or thing. It is an offence for the person to fail to answer
the question or produce the document or thing.
The undertaking in writing
given by the Director of Public Prosecutions is in addition to the undertaking
that the Director may give to a person under the Director of Public
Prosecutions Act 1983. (There are similar provisions in State
legislation.)
Proposed scheme
Under the proposed scheme, if
a witness appearing at a hearing before the Authority claims that the answer to
a question or the production of certain documents or a thing might tend to
incriminate the person:
• The person must answer the question or
produce the document or thing.
• It is an offence for the person to
fail to answer the question or to produce the document or thing.
• But,
the answer or document or thing is not admissible in evidence against the person
in any later criminal proceedings or a proceeding for the imposition of a
penalty (subject to the existing false evidence exception) without the need for
an undertaking.
The undertaking that may be given under the relevant
Director of Public Prosecution legislation will remain
available.
Similarities
• It is an offence for a
person to refuse to answer a question or to produce the document or
thing.
• The witness can claim that the answer to the question or the
production of the document or thing might tend to incriminate him or her.
• The answer given or the document or thing that the person produces
cannot be used against him or her in subsequent proceedings.
Differences
The principal differences between the two
schemes are:
• As a consequence of the omission of the defence of
reasonable excuse from subsections 30(1) and (2) (see Item 11) a person will no
longer be able to claim that he or she has a reasonable excuse for failing to
answer a question on the ground that the evidence might tend to incriminate him
or her.
• Therefore, there will no longer be a role for an undertaking
from the Director of Public Prosecutions in relation to the future use of the
evidence to displace that reasonable excuse (so there will be no provisions for
such undertakings).
• Evidence that derives from the answer given may
be used against the person.
Use immunity and
self-incrimination
Proposed subsection 30(5) limits the use that can
be made of certain evidence and applies if one of the situations set out in
proposed subsection 30(4) exists. (Proposed subsection 30(4) re-enacts the
existing circumstances in which a person may claim the privilege against
self-incrimination.)
Proposed subsection 30(5) applies if:
• before answering a question that the person is required to
answer at a hearing before the Authority;
• before producing, in
answer to a summons, a document that sets out details of earnings received by
the person in respect of his or her employment and does not set out any other
information; or
• before producing a thing in answer to a summons;
the person claims that the answer or the production of the document or
thing might tend to incriminate the person or make the person liable to a
penalty.
When proposed subsection 30(5) applies, the answer or the
document or thing is not admissible in evidence against the person in a criminal
proceeding or a proceeding for the imposition of a penalty other than in a
proceeding in respect of the falsity of the answer or the falsity of any
statement in the document, as the case may be.
Proposed subsection 30(5)
will mean that, in the circumstances set out in proposed subsection 30(4), the
answer, document or thing, cannot be used as evidence against the person, except
in limited circumstances. However, contrary to the current position, any
evidence that is derived from that answer, document or thing may be used against
the person. The Authority is unique in nature and has a critical role in the
fight against serious and organised crime. This means that the public interest
in the Authority having full and effective investigatory powers, and to enable,
in any subsequent court proceedings, the use against the person of incriminating
material derived from the evidence given to the Authority, outweigh the merits
of affording full protection to self-incriminatory material. The proposed
provision is comparable to section 68 of the Australian Securities and
Investments Commission Act 1989.
Penalties
The existing
maximum penalty for not complying with subsection 30(1), (2) or (3) is a fine
not exceeding $1 000 or imprisonment for a period not exceeding 6 months. Under
the proposed provisions, non-compliance will be an indictable offence, which is
punishable, upon conviction, by a fine not exceeding $20 000 or imprisonment for
a period not exceeding 5 years. However, the matter may also be dealt with
summarily if it is proper to do so and if the defendant and prosecutor consent.
If the matter is dealt with summarily, then the applicable penalty will be a
fine not exceeding $2 000 or imprisonment for a period not exceeding 1 year.
(See Item 7 for discussion on increased penalties.) (The penalty for not
complying with subsection 30(1), (2) or (3) will be set out in proposed
subsections 30(6), 30(7) and 30(8).)
Legal Professional
Privilege
Proposed subsection 30(9) clarifies that subsection 30(3)
does not affect the law relating to legal professional privilege. That is,
where a legal practitioner is required to provide certain information to the
Authority and to do so would disclose privileged information, the legal
practitioner may refuse to produce that information, unless the person to whom
the privilege applies consents to its disclosure.
Item
13
This Item repeals sections 32, 32A, 32B and 32C, which set out a
regime for a person to apply to the Federal Court (or a State Supreme Court in
certain circumstances) for a review of certain decisions made by the Authority.
This review regime applies to decisions by the Authority that a person did not
have a reasonable excuse for refusing or failing to comply with a notice or
direction under section 20, 29 or 30 (or the equivalent provisions under the law
of a State). As a consequence of the omission of the defence of reasonable
excuse (see Items 3, 5 and 11) the Authority will no longer be required to make
a decision as to whether the person’s claim is or is not justified.
Therefore, as there is no longer a reviewable decision to which section 32, 32A,
32B or 32C can apply, those provisions no longer have a role. (See Item 17 for
transitional provisions.)
Item 14
This Item repeals the
penalty specified in subsection 35(1). The penalty for not complying with
subsection 35(1) will be specified in new provisions (see Item
15).
Item 15
This Item repeals subsection 35(2) and
substitutes three new provisions specifying the penalty for non-compliance with
subsection 35(1). The existing maximum penalty for not complying with subsection
35(1) is a fine not exceeding $2 000 or imprisonment for 1 year. Under the
proposed provisions, non-compliance will be an indictable offence, which is
punishable, upon conviction, by a fine not exceeding $20 000 or imprisonment for
a period not exceeding 5 years. However, the matter may also be dealt with
summarily if it is proper to do so and if the defendant and prosecutor consent.
If the matter is dealt with summarily, then the applicable penalty will be a
fine not exceeding $2 000 or imprisonment for a period not exceeding 1 year.
(See Item 7 for discussion on increased penalties.)
This Item repeals subparagraph 61(2)(g)(i). Subparagraph 61(2)(g)(i)
requires statistics on the number of applications made under section 32 to be
included in the Authority’s annual report. As section 32 will be repealed
(see Item 13), subparagraph 61(2)(g)(i) no longer has a role.
Item
17
This item provides that despite the repeal of sections 32, 32A,
32B and 32C (see Item 13) those sections will continue to have effect on and
after the commencement of Item 13 in relation to applications for review that
could have been made under those provisions before the repeal of those
provisions. That is, the repeal of the special review mechanism will only
affect matters that occur after the commencement of Item 13 and will not affect
any actions or claims that relate to past decisions.
Part 2 -
Relevant criminal activity
The purpose of this Part is to expand the
matters that may be investigated by the Authority to include offences that occur
after the date of a reference of a matter to the Authority. The amendments give
effect to recommendation 5 from the 3rd evaluation of the Authority
by the PJC-NCA.
Item 18
This Item amends the definition of
“relevant criminal activity” in subsection 4(1) by omitting the
words “or may be being” and substituting the words “may be
being, or may in the future be”. The term “relevant criminal
activity” is used, for example, in the definition of “federally
relevant criminal activity” and describes the matters that may be referred
to the Authority under sections 13 and 14. The amendments mean that the
Authority will be able to investigate relevant offences that occur after the
date that a matter is referred to the Authority, provided that the circumstances
indicating that the relevant offence will be committed exist at the date of the
reference.
Part 3 - Terms of appointment
The purpose of
this Part is to extend from 4 to 6 years the maximum term of appointment for
members of the Authority. The amendments partially implement recommendation 25
from the 3rd evaluation of the Authority by the PJC-NCA.
Items 19 to 21
These Items replace references to 4 years
with references to 6 years in subsections 37(1), 37(1C) and 37(1E). This means
that future members of the Authority will be able to hold office for a total
period of 6 years instead of 4 years, as is currently the case.
The purpose of the Part is to amend two existing definitions.
This Item repeals the definition of document in subsection
4(1) and provides that the term document has the same meaning as in the
Evidence Act 1995. That definition is set out in the Dictionary to that
Act.
Item 23
This Item repeals paragraph (d) of the
definition of relevant offence in subsection 4(1) and substitutes
a revised paragraph (d). The revised paragraph (d) includes the offences of
“money laundering” and “perverting the course of
justice” so that such offences may be investigated by the Authority. (The
term “relevant offence” appears in the definition of relevant
criminal activity, which, in turn, describes what is referred to the Authority
for investigation.) The revised paragraph is otherwise a re-format of the
existing paragraph.
Part 5 – Police power to
interview
The purpose of this Part is to repeal two redundant
provisions.
Item 24
This Item repeals subsections 12(4) and
(5). Subsection 12(4) has been the subject of judicial criticism because, in its
present form, it appears to assume that police officers derive a “power to
interview” from their capacity as police officers. As the term
“power to interview” has no recognised legal meaning, the subsection
is ineffective as drafted. Subsection 12(5) is dependent on subsection 12(4)
and is also to be repealed. The amendments are not intended to enhance or
diminish the powers of police.
Part 6 – People who may apply
for, or issue, search warrants
This Part expands the class of persons
who may issue search warrants to include magistrates and the class of persons
who may apply for search warrants to include members of the staff of the
Authority who are police persons. The amendments made by this Part partially
implement recommendation 10 from the 3rd evaluation of the Authority
by the PJC-NCA.
Item 25
This Item inserts a definition of
eligible person in subsection 4(1). An eligible person will be a
member of the Authority, or a member of the staff of the Authority who is also a
member of the Australian Federal Police or the Police Force of a State.
Item 26
This Item inserts a definition of issuing
officer in subsection 4(1). An issuing officer will be a Judge of the
Federal Court, or a Judge of a court of a State or Territory, or a magistrate.
Magistrates can already issue search warrants under numerous Commonwealth
provisions, including section 3E of the Crimes Act 1914.
Item
27
This Item omits the reference to “A member” in
subsection 22(1), and substitutes a reference to “An eligible
person”. This will expand the class of persons who may apply for a search
warrant under that provision from members to “eligible persons” (see
Item 25).
Item 28
This Item omits the reference to
“a Judge of a prescribed court” in subsection 22(1), and substitutes
a reference to “an issuing officer”. This will expand the class of
persons who may issue a search warrant under that provision from Judges of
prescribed courts to “issuing officers” (see Item
26).
Items 29, 30, 35, 36, 37 and 38
These Items omit the
reference to “the member” or “a member” from paragraphs
22(1)(a), 22(1)(b) and 22(8)(b), subparagraph 22(8)(b)(ii), and subsection
22(9), and substitute a reference to “the eligible person” or
“an eligible person”, as the case may be. The amendments are
consequential on the expansion of the group of persons who may apply for a
search warrant under section 22 (see Item 27).
Item 31, 32, 33 and 34
These Items omit the reference to “a Judge of a prescribed
court”, “a Judge” or “the Judge” from subsections
22(2), 22(3) and 22(4), and substitute a reference to “an issuing
officer” or “the issuing officer”, as the case may be. The
amendments are consequential on the expansion of the group of persons who may
issue a search warrant under section 22 (see Item 28).
Item
39
This Item repeals subsections 22(11) and (12) and substitutes a
re-formatted subsection 22(12) as new subsection 22(11). Subsection 22(11),
which defines “a Judge of a prescribed court”, is no longer required
because of the new definition of “issuing officer” (see Item 26).
Item 40
This Item adds three new provisions clarifying
that the function of issuing a warrant under section 22 is conferred on an
issuing officer in a personal capacity and not as a court or a member of a
court. This is designed to put beyond doubt any suggestion that non-judicial
functions are meant to be discharged in a judicial capacity, and is in line with
section 3CA of the Crimes Act 1914. The issue of a warrant has effect
only by virtue of the NCA Act and is not to be taken by implication to be made
by a court. In addition, an issuing officer performing a function of, or
connected with, issuing a warrant under section 22 will have the same protection
and immunity as if he or she were performing that function as, or as a member
of, a court.
Items 41 and 42
These Items omit the reference
to “a member” and “the member” from subsection 23(1) and
substitute a reference to “an eligible person” and “the
eligible person”. The amendments will expand the class of persons who may
apply by telephone for a search warrant under section 22 from members to
“eligible persons” (see Item 25).
Items 43 and 45
These Items omit the reference to “member” from
subsection 23(2) and paragraph 23(3)(b), and substitute a reference to
“eligible person”. The amendments are consequential on the
expansion of the group of persons who may apply by telephone under subsection
23(1) for a search warrant under section 22 (see Item 41).
Items 44,
46, 47 and 48
These Items omit the reference to “a Judge”
or “ Judge” from subsections 23(3), 23(4), 23(5) and 23(6) and
substitute a reference to “an issuing officer” or “issuing
officer”, as the case may be. The amendments are consequential on the
expansion of the group of persons who may issue a search warrant under section
22 (see Item 28).
Item 49
This Item adds three new
provisions clarifying that the function under section 23 of issuing a warrant by
telephone is conferred on an issuing officer in a personal capacity and not as a
court or a member of a court. This is designed to put beyond doubt any
suggestion that non-judicial functions are meant to be discharged in a judicial
capacity, and is in line with section 3CA of the Crimes Act 1914. The
issue of a warrant has effect only by virtue of the NCA Act and is not to be
taken by implication to be made by a court. In addition, an issuing officer
performing a function of, or connected with, issuing a warrant by telephone will
have the same protection and immunity as if he or she were performing that
function as, or as a member of, a court.
Part 7 – Non-disclosure
of information about summons, notices etc.
This Part modifies the
application of the Privacy Act 1988 in relation to certain process issued
under the NCA Act. (See Schedule 2 which will insert a note in the Privacy
Act 1988 as a consequence of this amendment.)
Item
50
This Item adds proposed subsection 29A(7) which provides that
where a summons or notice is issued to a credit reporting agency for it to
produce information contained in an individual’s credit information file,
and that summons or notice contains a non-disclosure notation, then the credit
reporting agency must not make a note in the file until the notation is
cancelled. This means that the credit reporting agency is not to comply with
subsection 18K(5) of the Privacy Act 1988 for the duration of the
notation. (Under subsection 18K(5), where a credit reporting agency discloses
personal information contained in an individual's credit information file, it
must include a note in the file of that disclosure.)
Item
51
This Item provides that if, in accordance with the Privacy Act
1988, a note was made by a credit reporting agency before Item 50 commences,
and there is a non-disclosure notation in force under section 29A of the NCA
Act, then the note must be removed before any access is given to that credit
file. In addition, neither the note nor any information in the note may be
disclosed to the individual when such access is given.
Part 8 –
Delegation of chairperson’s powers
The purpose of this Part is
to enable the Chairperson to delegate certain powers to improve the efficient
operations of the Authority.
Item 52
This Item inserts a
definition of acting SES employee in subsection 4(1). An acting
SES employee will have the same meaning as in the Public Service Act 1999.
That definition is in section 7 of that Act.
Item
53
This Item inserts a definition of SES employee in
subsection 4(1). An SES employee will have the same meaning as in the Public
Service Act 1999. That definition is in section 7 of that
Act.
Item 54
This Item adds three new provisions to section
59A to enable the Chairperson to delegate specified powers under the NCA
Act.
Proposed subsection 59A(2) provides that the Chairperson may, by
signed instrument, delegate to a member the power under subsection 25(9A) to
vary or revoke a direction made by the Authority in relation to the publication
of certain information.
Proposed subsection 59A(3) provides that the
Chairperson may, by signed instrument, delegate to a member the power under
subsection 26(2) to direct that a person producing a document or thing in answer
to a notice under section 29 may be paid in respect of expenses
incurred.
Proposed subsection 59A(4) provides that the Chairperson may,
by signed instrument, delegate to a member, or a member of the staff of the
Authority who is an SES employee or acting SES employee, the power under
subsection 48(1) to engage consultants.
Part 9 –
Hearings
The purpose of this Part is to remove any doubt about the
power of the Authority to allow persons to be present. The proposed amendments
implement recommendation 15 from the 3rd evaluation of the Authority
by the PJC-NCA and are not designed to restrict the manner in which the
Authority may otherwise regulate a hearing.
Item 55
This
Item inserts proposed subsection 25(7A) which provides that if a person (other
than a member or a member of the staff of the Authority) is present at a hearing
while a witness is giving evidence, the Authority must inform the witness that
the person is present and give the witness an opportunity to comment on the
presence of the person.
This Item will also insert proposed subsection
25(7B) which provides that, to avoid doubt, a person does not cease to be
entitled to be present at a hearing or part of a hearing if the Authority fails
to comply with subsection 25(7A) or a witness comments adversely on the presence
of the person.
Part 10 – Disclosure of information by legal
practitioners
The purpose of this Part is to remove the defence of
“legal duty” in relation to a legal practitioner who receives a
non-disclosure notice in relation to his or her client. The proposed amendments
do not affect the law relating to legal professional privilege, but remove a
provision that is of uncertain meaning and application. The amendment will
partially implement recommendation 9 from the 3rd evaluation of the
Authority by the PJC-NCA.
Item 56
This Item repeals
paragraph 29B(2)(e) and substitutes it with a new provision that re-enacts
subparagraph 29B(2)(e)(ii). Subparagraph 29B(2)(e)(i), which will not be
replaced, provides that a legal practitioner does not commit an offence if he or
she discloses the existence of a summons or notice to produce, which contains a
notation prohibiting disclosure, in compliance with a legal duty of disclosure
arising from his or her professional relationship with a client. As the meaning
of “legal duty” is uncertain, and it is anomalous that the provision
applies to legal practitioners as opposed to others in a fiduciary or legal
relationship with another person, the provision may be repealed.
Part
11 – Use of reasonable force to execute warrants
The purpose of
this Part is to clarify the force that may be used when executing a search or
arrest warrant and to respond to a concern expressed by the Senate Standing
Committee on Regulations and Ordinances about the absence of this stipulation in
warrants prescribed in the National Crime Authority Regulations.
Item
57
This Item inserts a new provision in section 22 to clarify that a
person executing a search warrant issued under that section may only use such
reasonable force as is necessary for the execution of the warrant. Such a
provision is consistent with other Commonwealth laws (for example, section 3G of
the Crimes Act 1914).
Item 58
This Item inserts a
new provision in section 31 to clarify that a person executing an arrest warrant
under that section may only use such reasonable force as is necessary for the
execution of the warrant. Such a provision is consistent with other Commonwealth
laws (for example, subsection 3ZC(1) of the Crimes Act
1914).
Item 59
This Item provides that the amendments
proposed by Items 57 and 58 apply to a person executing a warrant on or after
the commencement of those Items regardless of whether the warrant was issued
before, on or after that commencement. As clarification of the
‘reasonable force’ rule is beneficial for all concerned, it is
considered that it should operate immediately and unequivocally from
commencement.
Part 12 – Access to information by the
Parliamentary Joint Committee on the National Crime Authority
The
purpose of this Part is to clarify the ability of the PJC-NCA to request and
receive certain information from the Authority. The proposed amendments will
partially implement recommendation 18 from the 3rd evaluation of the
Authority by the PJC-NCA.
Item 60
This Item adds a new
provision to section 55 to avoid doubt about the ability of the Committee (as
defined in section 52 of the NCA Act) to examine, and report to both Houses of
the Parliament on, information given to it under section 59 (see Item
61).
Item 61
This Item inserts four new provisions in
section 59, which deal with providing reports and information by the Authority
to the PJC-NCA.
Proposed subsection 59(6A) provides that, subject to
proposed subsection 59(6B), the Authority must comply with a request by the
PJC-NCA to give it information relating to an investigation that has been
conducted by the Authority and to inform it about the general conduct of the
operations of the Authority. The provision also provides that the Authority may
inform the PJC-NCA about the general conduct of its operations whenever it
thinks it is appropriate to do so.
However, proposed subsection 59(6B)
provides that, if the Chairperson considers that the disclosure of information
to the public could prejudice the safety or reputation of persons or the
operations of law enforcement agencies, the Authority must not give the PJC-NCA
the information. If this occurs, proposed subsection 59(6C) provides that the
PJC may refer the request to the Minister for determination under proposed
subsection 59(6D). Under proposed subsection 59(6D), the Minister must
determine in writing whether disclosure of the information could prejudice the
safety or reputation of persons or the operations of law enforcement agencies;
provide copies of that determination to the Chairperson and the PJC-NCA, and
must not disclose his or her reasons for that determination.
This
mechanism is designed to ensure that sensitive material is appropriately
protected, but in a way that ensures that there is confidence that, subject to
these sensitivities, appropriate disclosure is made to the
PJC-NCA.
Part 13 – Dissemination of information
overseas
This Part addresses the ability of the Authority to
disseminate information to foreign law enforcement agencies. The provision of
the information will be in addition to the coordination role that the Authority
undertakes in accordance with section 17 of the NCA Act. Serious and organised
crime increasingly crosses jurisdictional boundaries and the flow of information
between agencies is vital to international cooperation in combating
transnational and national crime.
Item 62
This Item inserts
a definition of foreign law enforcement agency in subsection 4(1).
A foreign law enforcement agency means a police force (however described) of a
foreign country, or any other authority or person responsible for the
enforcement of the laws of the foreign country. This will ensure that the
capacity to disclose information to a foreign law enforcement agency (see Item
63) is not precluded by a technical reading of that term.
Item
63
This Item adds proposed subsection 59(12), which provides that,
despite the functions of the Authority listed in section 11 of the NCA Act, the
Chairperson may give to any foreign law enforcement agency (see Item 62) any
information that is in the Authority’s possession and is relevant to the
activities of that agency if it appears to the Chairperson to be appropriate to
do so and it would not be contrary to a law of the Commonwealth, a State or a
Territory. This provision will enable the Authority to provide foreign law
enforcement agencies with information that will assist those agencies with their
law enforcement functions provided that the provision of that information is not
contrary to any other law.
Part 14 – Application of the Criminal
Code
This part will apply Chapter 2 of the Criminal Code (the
Code) to offences under the NCA Act.
Item 64
This
Item inserts proposed section 6A, which provides that Chapter 2 of the Code
applies to all offences against the NCA Act. The Code sets out general
principles of criminal responsibility, including the level of fault required to
prove different elements of offences and the defences applicable to all
offences. While the Code will apply to all Commonwealth offences from 15
December 2001, it is gradually being applied to existing Commonwealth
legislation in advance of that date.
Item 65
This Item
repeals subsections 19A(7) and 20(4A), which make it an offence to knowingly
furnish information that is false or misleading in purported compliance with a
request for information. Section 137 of the Criminal Code, which will
commence in May 2001, is a false or misleading statement offence of general
application, and replaces many specific offences of this kind elsewhere in
Commonwealth legislation. Accordingly, the narrower offences in the NCA Act are
no longer required.
Part 15 - Contempt
This Part
establishes a contempt regime for the Authority (see also Schedule 4 for a
proposed amendment to the Administrative Decisions (Judicial Review) Act
1977 to exempt the regime from the operation of that Act). The contempt
regime will allow obstruction of the Authority to be addressed by a speedy and
fair process, akin to that employed by courts in dealing with contempt. At
present, it can take years to bring about a criminal conviction for conduct that
obstructs the Authority, during which time a person may have successfully
delayed an investigation and defeated justice. The proposed contempt regime has
been designed as a more effective deterrent to such obstruction. It is similar
to the regime under section 219 of the Australian Securities and Investments
Commission Act 1989.
Item 66
This Item inserts a
definition of in contempt of the Authority in subsection 4(1). It
will have the meaning given by proposed section 34A (see Item
67).
Item 67
This Item inserts four proposed sections
dealing with contempt.
Contempt of the Authority
Proposed
section 34A provides that a person is in contempt of the Authority if he or she:
• obstructs or hinders the Authority or a member in the performance of
the functions of the Authority; or
• disrupts a hearing;
or
• when appearing as a witness, refuses or fails to take an oath,
make an affirmation or answer a question when required to do
so.
Supreme Court to deal with contempt
Proposed section
34B provides that if the Authority is of the opinion that a person is in
contempt of the Authority, the Authority may apply to the Supreme Court in the
State or Territory in which the Authority is holding the hearing, for the person
to be dealt with by that Court in respect of the contempt. The provision also
provides that the application must be accompanied by an affidavit that sets out
the grounds for making the application and the evidence in support of the
application.
In addition, if, after considering the affidavit, any
evidence for the Authority and any evidence for the person, the Court finds that
the person was in contempt and did not have a reasonable excuse for being in
contempt, the Court may deal with the person as if the person were in contempt
of that Court.
Person may be detained
Proposed section
34C provides that if the Authority intends applying to the Court under proposed
section 34B, then during the hearing concerned, the Authority may direct a
member of a law enforcement agency (defined in subsection 4(1)) to detain the
person for the purpose of bringing the person before the Court. If the person
is detained, proposed subsection 34C also provides that the Authority must apply
to the Court under subsection 34B, and the person must be brought before the
Court, as soon as practicable. However, the Court may release the person on
condition that she or he will appear before the Court in relation to the matter.
The Court may also impose additional conditions on the release of the person
such as, surrendering his or her passport, making undertakings as to living
arrangements and reporting requirements. Furthermore, the Court may vary or
revoke any condition.
Authority may withdraw contempt
application
Proposed section 34D enables the Authority to withdraw
the contempt application at any time and if a person is in detention under
proposed section 34C, he or she must be released immediately.
Item
68
This Item adds proposed subsection 35A(2), which provides that if
a person is dealt with under proposed subsection 34B(1) in relation to being in
contempt of the Authority, then the person is not liable to be prosecuted for an
offence in respect of the same conduct. The provision also provides that if a
person is prosecuted for an offence in relation to that conduct, then he or she
must not be dealt with under proposed subsection 34B(1) in respect of that same
conduct.
The proposed contempt regime will overlap with existing criminal
offences relating to obstruction of the Authority, so that the most appropriate
enforcement tool can be employed in a given case. However, once a
person’s conduct has been dealt with by one route, proceedings under the
other will be barred, consistent with the 'double jeopardy' rule fundamental to
Australian criminal law and reflected in section 4C of the Crimes Act
1914.
Part 16 - Amendments relating to the operation of the
Ombudsman Act 1976
The purpose of this Part is to make a clarifying
amendment to the NCA Act to avoid any doubt about the application of the
Ombudsman Act 1976 to complaints against members of the Authority. (See
Schedule 3 in relation to the application of the Ombudsman Act 1976 to
the Authority). The provisions of the Ombudsman Act 1976 will otherwise
apply according to their tenor. For example, subsection 9(5) of the
Ombudsman Act 1976 will apply to override the secrecy provision in
section 51 of the NCA Act.
Item 69
This Item adds proposed
subsection 36(4) to avoid the suggestion that the protection afforded to members
of the Authority under section 36 limits the powers of the Ombudsman under the
Ombudsman Act 1976. Section 36 confers protections and immunities
equivalent to those held by the High Court justices (for example, in relation to
certain civil suits), but they are not intended to preclude investigation by the
Ombudsman.
Part 17 - Hearing officers
The purpose of this
Part is to increase the investigative capacity of the Authority by enabling the
appointment of a number of persons who are empowered to conduct hearings on
behalf of the Authority. The proposed amendments would partially implement
recommendation 28 from the 3rd evaluation of the Authority by the
PJC-NCA, which addressed the need for part-time members of the
Authority.
Item 70
This Item inserts a definition of
hearing officer in subsection 4(1). A hearing officer means a
person appointed under proposed subsection 25A(1) (see Item 76).
Items
71 to 73
These Items extend the operation of paragraphs 24(1)(a) and
(b), which relate to the surrender of passports, to apply to hearings before
hearing officers in the same manner as they apply to hearings before the
Authority. (See Item 76 in relation to the appointment of, and hearings held
by, hearing officers.)
Item 74
This Item inserts proposed
section 24A which provides that for the purposes of a special investigation, the
Authority may hold hearings of the Authority and the Chairperson may, by
writing, direct a hearing officer to hold hearings.
Item
75
This Item repeals subsection 25(1) and substitutes a proposed
subsection 25(1). Proposed subsection 25(1) provides that section 25 applies to
a hearing held by the Authority so as to differentiate the application of that
section from proposed section 25A (see Item 76), which will deal with hearings
held by a hearing officer.
Item 76
This Item inserts
proposed section 25A, which provides for the appointment of hearing officers,
their qualifications and how they are to conduct hearings. The proposed
section is modelled on existing section 25, which applies to hearings before the
Authority.
Appointment
Hearing officers are to be
appointed by the Governor-General on the advice of the Minister, where that
advice is consistent with a unanimous recommendation by the members of the
Inter-Governmental Committee of the Authority.
Qualifications
A hearing officer must have been enrolled
as a legal practitioner for at least 5 years.
Hearings
A hearing officer may regulate the conduct of his
or her hearings as he or she thinks fit, although the hearings must be in
private. The hearing officer may give directions as to the persons who may be
present during the hearing, however witnesses and other persons who are present
may be represented by a legal practitioner, and the directions by the hearing
officer cannot limit the presence of those legal practitioners. No other person
(except a member or a member of the staff of the Authority) may be present at a
hearing unless the hearing officer so directs. If there are other persons so
present while a witness is giving evidence, then the hearing officer must inform
the witness that the other person is present and give the witness the
opportunity to comment. However, that other person does not cease to be
entitled to be present if the hearing officer fails to do this or the witness
comments adversely on that person’s presence.
At a hearing, counsel
assisting the hearing officer and any legal practitioner who is entitled to be
present, may, so far as the hearing officer thinks appropriate, examine or
cross-examine any witness on any matter that the hearing officer considers
relevant to the special investigation.
Non-publication
orders
A hearing officer may give a non-publication order in relation
to any evidence given before him or her; the contents of any document or thing
produced; the identity of a witness or the fact that any person has given or may
be about to give evidence at a hearing. Such a direction must be given if a
failure to do so might prejudice the safety or reputation of a person or
prejudice the fair trial of a person who has been charged or may be charged with
an offence.
The Chairperson may, in writing, vary or revoke a
non-publication order given by a hearing officer, but he or she must not do so
if it might prejudice the safety or reputation of a person or prejudice the fair
trial of a person who has been charged or may be charged with an
offence.
Where a person has been charged with an offence before a
federal, State or Territory court, the court may give to the hearing officer (or
the Authority) a certificate that it considers that it may be desirable in the
interests of justice that particular evidence given before a hearing officer,
and as to which there is a non-publication order, be given to the person charged
or his or her legal practitioner. If, after examining the evidence, the Court
is of the view that the evidence should be given to the person charged, or his
or her legal practitioner, then the court may do so.
Offences
A person who is present at a hearing contrary to a direction of the
hearing officer or breaches a non-publication order, is guilty of an offence
punishable by a fine not exceeding $2 000 or imprisonment for a period not
exceeding 12 months.
Information for the Authority
At the
conclusion of a hearing, the hearing officer must give the Authority a record of
the proceedings of the Authority and any documents or other things given to the
hearing officer at, or in connection with, the hearing.
Items 77 to
123 (inclusive)
These Items extend the operation of sections 26
(reimbursement of witness expenses); 27 (legal and financial assistance); 28
(summons); 29 (notices to produce); 29B (offences of disclosure); 30 (failure of
witness to attend and answer question); 31 (arrest warrants); 33 (false or
misleading evidence); 34 (protection of witnesses); 34B to 34D (contempt); and
35 (contempt offences) to apply to hearing officers and hearings before hearing
officers in the same manner as they apply to hearings before the
Authority.
Items 124 to 127
These Items extend the
operation of section 36, which deals with the protection of members, legal
practitioners assisting the Authority or representing a person at a hearing
before the Authority and witnesses summonsed to attend before the Authority, to
apply to hearing officers and hearings before hearing officers.
Items
128 to 132
These Items extend the operation of section 37, which
deals with terms and conditions of appointment, to apply to hearing officers. A
hearing officer may be appointed for a maximum total period of 6 years and may
not be appointed after the age of 65. These conditions reflect those that apply
to members of the Authority.
Item 133
This Item inserts a
proposed subsection 37(5), which provides that a hearing officer holds office on
such terms and conditions (if any) in respect of matters not provided for by the
Act as are determined by the Governor-General. This provision is modelled on
subsection 37(4), which applies to non-judicial members of the Authority.
Items 134 and 135
These Items extend the operation of
section 38, which deals with remuneration and allowances payable to members of
the Authority, to apply to hearing officers. A hearing officer will be paid
such remuneration as is determined by the Remuneration Tribunal or as prescribed
by regulation. A hearing officer will be paid such allowances as are prescribed
by regulation.
Item 136
This Item extends the operation
of section 41, which deals with resignations by members of the Authority, to
apply to hearing officers. A hearing officer may resign by writing signed by
him or her and delivered to the Governor-General.
Item
137
This Item extends the operation of section 42, which deals with
disclosure of interests by members of the Authority, to apply to hearing
officers. A hearing officer must disclose any direct or indirect interest in a
matter that could arise during the hearing before that hearing officer to the
Chairperson. The disclosure must be recorded in the minutes of the meetings of
the Authority and the hearing officer must not, unless the Minister determines
otherwise, hold hearings or further hearings in relation to the
matter.
Items 138 and 139
These Items extend the operation
of section 43, which deals with the termination of the appointments of members
of the Authority, to apply to hearing officers. The Governor-General may
terminate the appointment of a hearing officer for misbehaviour, physical or
mental incapacity, bankruptcy, or failure to disclose an interest (see Item
137).
Items 140 and 141
These Items extend the
operation of section 51, which deals with secrecy and compellability issues, to
apply to hearing officers. Unless it is in relation to the performance of a
function under the Act, a hearing officer will commit an offence if he or she
discloses or makes a record of information that is acquired by him or her as a
hearing officer. A hearing officer will also not be compellable in a Court,
except in relation to proceedings that relate to section 51 or for the purposes
of a prosecution that involves information obtained by the hearing
officer.
Part 18 - Non-APS employees
The purpose of this
Part is to give the Authority greater flexibility in employing staff. The
amendments will enable the Authority to make more effective and efficient use of
resources, particularly where the focus of, and funding for, the Authority is
task orientated. The amendments will assist the Authority by allowing the
employment of persons to match those tasks, rather than on an ongoing basis.
Item 142
This Item amends subsection 47(1) by adding the
words “this section and” after the words “Subject to”.
This means that subsection 47(1), which deals with the staff of the Authority,
is to be read subject to the remainder of section 47 (see Item 143) as well as
sections 48 and 49.
Item 143
This Item adds proposed
subsections 47(3) and (4), which provide that in addition to the staff of the
Authority who are engaged under the Public Service Act 1999, the
Chairperson may, on behalf of the Commonwealth, employ such other persons as he
or she thinks necessary. The additional staff are to be employed under written
agreements and on such terms and conditions as determined by the
Chairperson.
Schedule 2- Privacy Act 1988
The purpose of
this Schedule is to make a note in the Privacy Act 1988 cross-referring
to a provision in the NCA Act, which modifies the application of the Privacy
Act 1988.
Item 1
This Item adds a note after
subsection 18K(5) to alert a credit reporting agency to the requirements of
section 29A of the NCA Act in relation to not annotating a credit file when
there is a non-disclosure notice in place and it has not been cancelled (see
Items 50 and 51 of Schedule 1).
Schedule 3 - Ombudsman Act
1976
The purpose of this Schedule is to allow the Ombudsman to
investigate complaints against the Authority and the members of the staff of the
Authority, thereby enhancing the Authority's accountability. It is also
necessary to deal with the special characteristics of the Authority, for
example, by laying down a mechanism to restrict disclosure of operationally
sensitive information, and by providing scope for appropriate State or Territory
authorities to investigate complaints against State or Territory police who are
seconded to the Authority. The amendments proposed by this Schedule are
designed to address recommendation 21 from the 3rd evaluation of the
Authority by the PJC-NCA.
Item 1
This Item inserts a
definition of law enforcement agency in subsection 3(1). Law
enforcement agency will have the same meaning as in subsection 4(1) of the
National Crime Authority Act 1984.
Item 2
This Item
inserts a definition of National Crime Authority in subsection
3(1). The National Crime Authority (the Authority) means the National Crime
Authority as established by the National Crime Authority Act 1984.
Item 3
This Item inserts proposed subsection 3(13A), which
provides that for the purposes of the Ombudsman Act, the Authority is taken to
be a prescribed authority. This means that the jurisdiction of the Ombudsman to
investigate complaints against a prescribed authority is extended to include
complaints against the Authority. In addition, the definition of
“officer” in relation to a prescribed authority means, as far as is
relevant, a person who is a member of the authority or a person who is employed
in the service of, or is a member of the staff of the authority. For the
purposes of the Ombudsman Act, action that is taken by an officer of a
prescribed authority shall be deemed to be taken by the authority. As a result,
the Ombudsman will be able to investigate complaints against members of the
Authority and members of the staff of the Authority, as well as complaints
against the Authority.
Item 4
This Item amends paragraph
5(2)(b) such that the inability of the Ombudsman to investigate action taken by
a Judge or a Justice of a court created by the Parliament does not apply to
action taken by a Judge or a Justice in his or her capacity as a member of the
Authority.
Item 5
This Item inserts proposed section 6A,
which enables the Ombudsman to transfer, in certain circumstances, a complaint
about the Authority to another authority. If the Ombudsman is of the opinion
that the complaint could have been made to another authority established under a
law of the Commonwealth, a State or a Territory, and the complaint could be more
conveniently or effectively dealt with by that other authority, then the
Ombudsman may transfer the complaint to that other authority. If the Ombudsman
does decide to transfer the complaint, the Ombudsman must advise the complainant
and do so as soon as is reasonably practicable, and, subject to proposed section
35B (see Item 11) provide that other authority with the information that the
Ombudsman has in relation to the complaint.
This provision reflects
those in section 6, which enable the Ombudsman to transfer a complaint to a more
appropriate body such as the Privacy Commissioner or the Australian
Communications Authority. The proposed provisions enable the transfer to an
appropriate State or Territory authority in recognition of the possibility that
the complaint will be about a member of the staff of the Authority who is
seconded from a policing agency of one of those jurisdictions.
Item
6
This Item inserts proposed section 8B, which provides that if an
authority that is established under a law of the Commonwealth, a State or a
Territory can enter into an arrangement with the Ombudsman to investigate action
taken by the Authority, then the Ombudsman may enter into such an arrangement.
This provision, which is modelled on section 8A, will enable joint
investigations provided that the other authority has the power to enter into an
arrangement with the Ombudsman in relation to the complaint. (Section 8A deals
with joint investigations by Commonwealth and State Ombudsmen.)
If the
Ombudsman does enter into such an arrangement, the proposed provision provides
that the arrangement must be in writing and may be varied or revoked. In
addition, the arrangement may relate to particular actions or classes of
actions.
The proposed provision will also enable the making of
regulations that relate to the participation of the Ombudsman in the proposed
joint investigations.
The proposed provision also makes it clear that it
does not affect the powers and duties of the Ombudsman under any other provision
of the Act.
Item 7
This Item makes a minor drafting
amendment to paragraphs 9(3)(a) and (b).
Item 8
This Item
inserts proposed paragraph 9(3)(e), which will extend the grounds on which the
Attorney-General may issue a certificate to prevent the Ombudsman from requiring
a person to provide certain information to the Ombudsman. A certificate may be
issued if disclosure of the contents of any information, document or record
which are or were in the possession or under the control of the Authority, would
be contrary to the public interest by reason that it would prejudice the safety
of a person; the fair trial of a person who has been or may be charged with an
offence; the effectiveness of an investigation by the Authority or the
operations of a law enforcement agency (see Item 1).
The purpose of the
proposed provision is to ensure that the Ombudsman’s ability to otherwise
compel the disclosure of information that is relevant to his or her
investigation of a complaint is only restricted in limited circumstances.
Item 9
This Item makes a minor drafting amendment to
subsection 35(5).
Item 10
This Item amends subsection
35A(1) to add the words “Subject to section 35B” at the beginning of
the provision. This means that the disclosure of information by the Ombudsman
under section 35A is subject to the provisions of proposed section 35B, when
that information relates to NCA information (see Item 11).
Item
11
This Item inserts proposed section 35B, which provides for
restricting disclosure by the Ombudsman of certain NCA information. If the
Attorney-General gives the Ombudsman a certificate stating that the disclosure
of certain NCA information by one or more of the specified disclosure methods
would be contrary to the public interest by reason that it would prejudice the
safety of a person; the fair trial of a person who has been or may be charged
with an offence; the effectiveness of an investigation by the Authority or the
operations of a law enforcement agency, then the Ombudsman must not so disclose
the NCA information.
The proposed provision will include a definition
of listed disclosure method (which refers to the ways in
which the Ombudsman can disclose information under the Act) and NCA
information.
The purpose of the provision is to ensure that when
information has been given to the Ombudsman for the performance of his or her
functions under the Act, that information may not be disclosed by the Ombudsman
when the Attorney-General issues a certificate under the proposed provision.
The prohibition on disclosure by the Ombudsman can be in relation to one or more
methods of disclosure, depending on where the risk of prejudice may exist.
Schedule 4 - Administrative Decisions (Judicial Review) Act
1977
Item 1
This Item amends Schedule 1 to exempt
decisions made under sections 34B and 34C of the National Crime Authority Act
1984 from the operations of the Administrative Decisions (Judicial
Review) Act 1977. The amendment will mean that an administrative decision
to apply to the Supreme Court for a person to be dealt with for contempt or to
direct a member of a law enforcement agency to detain a person for the purpose
of bringing the person before the Court, cannot be the subject of an application
for judicial review under the Act. However, the person will be able to contest
the Authority’s decision when answering the contempt allegation.