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1
Crime and Misconduct and Other Legislation
Amendment Bill 2006
Crime and Misconduct and Other
Legislation Amendment Bill 2006
Explanatory Notes
Objectives of the Bill
The Bill seeks to:
1. Implement outstanding Government-endorsed recommendations for
legislative change that were made in the March 2004 Report No 64 of
the Parliamentary Crime and Misconduct Committee on its three-year
review of the Crime and Misconduct Commission.
2. Make a number of changes to the appointment provisions of the
Misconduct Tribunals Act 1997, unrelated to the Parliamentary Crime
and Misconduct Committee's report. The amendments will not affect
the jurisdiction or procedures of the misconduct tribunals.
3. Make a number of amendments to the Crime and Misconduct Act
2001 as a result of issues that have been raised, mainly by the Crime
and Misconduct Commission, since the March 2004 Parliamentary
Crime and Misconduct Committee report.
4. Make a number of minor amendments to the Crime and Misconduct
Act 2001, the Misconduct Tribunals Act 1997, the Police Powers and
Responsibilities Act 2000, the Witness Protection Act 2000 and the
Whistleblowers Protection Act 1994.
Reasons for the Bill
In March 2004 the Parliamentary Crime and Misconduct Committee issued
its Report No 64 dealing with the Three Year Review of the Crime and
Misconduct Commission. The Parliamentary Crime and Misconduct
Committee report contained 50 recommendations, mostly of a legislative or
policy nature.
On 10 September 2004 the Government tabled its response to the
Parliamentary Crime and Misconduct Committee report.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Legislation has already been enacted giving effect to the Government's
support to a number of recommendations. This Bill implements the
outstanding Government supported recommendations which require
legislative amendment.
Achievement of the Objectives
The Parliamentary Crime and Misconduct Committee recommendations
concern amendments to the Crime and Misconduct Act 2001, the Police
Powers and Responsibilities Act 2000 and the Witness Protection Act 2000.
The most significant amendments relate to the Crime and Misconduct
Commission's witness protection function. The amendments:
· Provide the Crime and Misconduct Commission with a new
power to require the production of documents or things to help
protect a protected person or the integrity of its witness
protection activities (typically this will be used to require a bank
to provide information on where a protected person last
transacted to determine their whereabouts). This issue was dealt
with in recommendation 41 of the Parliamentary Crime and
Misconduct Committee report.
· Enable the Crime and Misconduct Commission to enter into
short-term witness protection arrangements, with streamlined
approval processes, where temporary protection of a person is
required at short notice for court and other public appearances.
This issue was dealt with in recommendations 36 and 37 of the
Parliamentary Crime and Misconduct Committee report.
The Bill also amends the Crime and Misconduct Act 2001 to:
· allow an assistant commissioner to conduct public hearings
· relax the limit on the tenure of senior officers and assistant
commissioners ;
· allow self-incriminating evidence that a person has been
compelled to give at a Crime and Misconduct Commission
hearing to be used in proceedings against that person for the
falsity of other compelled evidence;
· allow the Crime and Misconduct Commission to delegate its
power to appoint staff below senior officer level to a person other
than the chairperson;
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
· ensure that only individuals (and not corporations) can claim the
privilege against self-incrimination, in accordance with the
Queensland Law Reform Commission's Report No 59 The
abrogation of the Privilege Against Self- Incrimination;
· remove the requirement for Ministers to approve secondments to
positions at the Crime and Misconduct Commission below
senior officer level and instead require them to be approved by
chief executives;
· clarify that the Crime and Misconduct Commission can only
compel persons to attend hearings for its crime or misconduct
functions, as well as the witness protection function, and not for
its other functions (research and intelligence);
· clarify that commission officers and other persons can only be
required to produce or disclose confidential documents or
information relevant to the work of the Crime and Misconduct
Commission that is necessary for a prosecution started as a
result of an investigation conducted by the Crime and
Misconduct Commission (not just for any investigation); and
· clarify that a person is required to comply with a requirement of
the Crime and Misconduct Commission to produce documents or
things for a misconduct investigation.
The Bill also contains amendments to the Witness Protection Act 2000 to:
· allow the chairperson to terminate a witness protection
agreement if the protected witness cannot be properly protected;
and
· ensure that persons on interim or short term protection are
subject to the same rights and obligations as persons in the
witness protection program.
Estimated Cost for Government Implementation
These amendments do not have any significant resource implications for
Government or the CMC.
Consistency with Fundamental Legislative Principles
· Power to Crime and Misconduct Commission to issue notices
requiring the production of documents or things to protect a
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
person who has been admitted to the witness protection program
or to protect the integrity of the witness protection program.
There is an argument that this amendment is not consistent with the
principles of natural justice as provided for in section 4(3)(b) of the
Legislative Standards Act 1992.
Recommendation 41 of the Parliamentary Crime and Misconduct
Committee report stated that the Crime and Misconduct Commission be
given the power to issue notices in terms similar to those in sections 74,
74A and 75 of the Crime and Misconduct Act 2001 for the purposes of
protecting a person who has been admitted to the witness protection
program or of protecting the integrity of the witness protection program.
In order to implement recommendation 41, the Bill allows the Crime and
Misconduct Commission to issue notices requiring the production of
documents or things in relation to its witness protection function. This
power will be used by the Crime and Misconduct Commission to, for
example, require banks to provide information on where a protected person
last transacted to determine their location and ascertain their safety. In
order to conceal from the recipient (to the greatest extent possible) the fact
that the notice relates to a protected witness and the identity of the
protected witness; the Crime and Misconduct Commission will be allowed
to link these notices with crime investigation notices so that the recipient
will not know whether the notice relates to a crime investigation or the
witness protection function.
The recipient of the notice will be able to claim the same types of excuses
and privileges for not complying with the notice as recipients of crime
investigation notices. If they claim an excuse or privilege, the chairperson
can require the person to attend a Crime and Misconduct Commission
hearing to substantiate the claim. If the chairperson wants the person to
immediately attend to substantiate the claim, the approval of a Supreme
Court judge must be obtained. If the claim is refused, the person can appeal
to the Supreme Court. These additional procedures for determining claims
of reasonable excuse or privilege are not expected to be used but are
inserted due to the need to link the new power with the crime investigation
power.
This is a potential breach of the rights of a recipient of a notice. In facing a
requirement to produce a document, the recipient (in this example, the
bank) has a right to be satisfied that lawful authority is being exercised.
This is usually conveyed by such notices referring to the legislative
provision under which they are issued or otherwise stating the reasons for
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
the requirement. However, it is intended to obscure from the recipient the
real purpose of the notice in order to protect a witness. This is justified in
order to ensure the overriding interest at stake namely to ensure people who
are in the witness protection program are safe from physical harm and to
maintain the integrity of the program.
Other options, including empowering the Crime and Misconduct
Commission to simply state that a witness protection notice can be issued
as if it were for a crime investigation, were not considered desirable given
the rights of the recipient of the notice to know that lawful authority is
being exercised. The proposed approach is considered to be the best
approach to balance the competing interests.
As noted above, the recipient of the notice will be able to claim the same
types of excuses and privileges for not complying with the notice as
recipients of crime investigation notices.
The legislative mechanism could also mean that these types of notices are
to be issued to a person who is being investigated in the context of a crime
investigation. The person would be obliged to produce a document without
knowing it is for a crime investigation. The section as drafted does allow
the notice to only state that it is for a crime investigation and the Crime and
Misconduct Commission has indicated that in crime investigations that is
what the notice will state. However the legislation cannot mandate this
because to do so would defeat the purpose of trying to conceal that a
particular notice relates to the witness protection function. Again this is
justified in order to ensure the overriding interest at stake, which is to
ensure people who are in the witness protection program are safe from
physical harm and to maintain the integrity of the program.
In addition, there is potential for the Crime and Misconduct Commission to
use the power to track the whereabouts of a protected witness who, without
any or full notice to the Crime and Misconduct Commission, absconds
from the protection of the Crime and Misconduct Commission. This raises
issues in relation to the absconder's right to privacy. This is again justified
because the Crime and Misconduct Commission must be able to put itself
in a position where it can be satisfied the witness is safe. The Crime and
Misconduct Commission would also need to contact the law enforcement
agency that had requested the protection for the person and inform the
agency of such matters and whether the person still intended to make him
or herself available to testify in the relevant proceedings.
· Amendment allowing presiding officer at a hearing to require a
witness at the hearing to produce a stated document or thing
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
There is an argument that this amendment is not consistent with the
principles of natural justice as provided for in section 4(3)(b) of the
Legislative Standards Act 1992.
Recommendation 29 of the Parliamentary Crime and Misconduct
Committee report was that the Crime and Misconduct Act 2001 be
amended to allow presiding officers at Crime and Misconduct Commission
hearings to order the production of documents or things, in terms similar to
the power under the New South Wales Independent Commission Against
Corruption Act 1988.
Clause 6 of the Bill allows a presiding officer at a hearing to require a
witness at the hearing to produce a stated document or thing. There is no
requirement that the document or thing be in the witness's possession or
control. However reasonable excuse is available under section 185 for non-
compliance. Also, the presiding officer may adjourn the hearing to allow
the person to comply with the requirement. These two safeguards address
the natural justice issues.
· Amendment to section 197 of the Crime and Misconduct Act
2001
There is an argument that this amendment does not provide appropriate
protection against self-incrimination within the meaning of section 4(3)(f)
of the Legislative Standards Act 1992.
Section 197 of the Crime and Misconduct Act 2001 deals with the
restriction on use of privileged answers, documents, things or statements
disclosed or produced under compulsion. Clause 18 of the Bill inserts a
new subsection (1) to ensure that only individuals, and not corporations,
have the protections of restriction on use of privileged answers documents,
things or statements disclosed or produced under compulsion. This is
consistent with the QLRC report.
The Scrutiny of Legislation Committee (Alert Digest No 1 2000 page 7
paragraph 57) has stated that in order to secure the restriction on the use of
information obtained where the protection of the privilege against self
incrimination has been abrogated, the person should not be required to
fulfil any conditions, such as formally claiming the right. Although the
approach in the amendment is contrary to the Scrutiny of Legislation
Committee's approach, it is consistent with the approach in existing section
197.
· Proposed new section 7A of the Misconduct Tribunals Act 1997
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
There is an argument that this amendment does not have sufficient regard
to an individual's rights (in this case the right to privacy) within the
meaning of section 4(2) of the Legislative Standards Act 1992.
Clause 41 of the Bill inserts a new section 7A into the Misconduct
Tribunals Act 1997 to allow criminal history reports to be done of potential
appointees to a tribunal panel. The section does require the person to
consent to the criminal history report and also requires the Minister to
destroy the criminal history report as soon as it is no longer required-.
These inbuilt safeguards are designed to protect the person's privacy.
Consultation
The Public Interest Monitor was consulted during the preparation of the
Government response to the Parliamentary Crime and Misconduct
Committee report.
The Crime and Misconduct Commission, the Parliamentary Crime and
Misconduct Committee, the Queensland Police Service, and the
Department of the Premier and Cabinet have all been consulted during the
drafting of the Bill.
Copies of the Bill were sent to the senior member of the Misconduct
Tribunals, the Chief Justice, the Chief Judge of the District Court, the Law
Society, the Bar Association and Legal Aid Queensland for comment. .
Notes on Provisions
Part 1 - Preliminary
Clause 1 Short title: This clause provides that the Act's short title is the
Crime and Misconduct and Other Legislation Amendment Act 2006.
Clause 2 Commencement: This clause provides that the Act commences on
a day fixed by proclamation.
Clause 3 Act amended in pt 2 and schedule: This clause provides that this
part (Part 2) and the schedule amend the Crime and Misconduct Act 2001.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Clause 4 Amendment of section 56: This clause amends section 56 to
insert witness protection as a further function of the Crime and Misconduct
Commission.
Clause 5 Amendment of section 74 (Notice to produce for crime
investigation):
This clause seeks to implement recommendation 41 of the Parliamentary
Crime and Misconduct Committee report that the Crime and Misconduct
Commission be given the power to issue notices in terms similar to those in
sections 74, 74A and 75 of the Crime and Misconduct Act 2001 for the
purposes of protecting a person who has been admitted to the witness
protection program or of protecting the integrity of the witness protection
program. The clause does this by providing that section 74 of the Crime
and Misconduct Act 2001 now applies to a crime investigation or the
witness protection function and making other amendments to section 74.
The clause inserts proposed new section 74(2A) which provides that the
notice to produce must state that it relates to:
(a) a crime investigation; or
(b) without specifying which, a crime investigation or the witness
protection function.
The effect is to conceal from the recipient of the notice (to the greatest
extent possible) the fact that the notice relates to a protected witness and
the identity of the protected witness.
The recipient of the notice will be able to claim the same types of excuses
and privileges for not complying with the notice as recipients of crime
investigation notices. If they claim an excuse or privilege, the chairperson
can require the person to attend a Crime and Misconduct Commission
hearing to substantiate the claim (see amendment to section 82 inserted by
clause 7). If the chairperson wants the person to immediately attend to
substantiate the claim, the approval of a Supreme Court judge must be
obtained (see amendment to section 85 inserted by clause 8). If the claim is
refused, the person can appeal to the Supreme Court (see new section 193
inserted by clause 15).
Proposed new section 74(3A) provides that a notice to produce in the
context of the witness protection function can only be given if the
chairperson considers it necessary to protect the security of the protected
person or the integrity of the witness protection program or other witness
protection activities of the commission.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Clause 6 Insertion of new ch3, pt1, div2A: This clause inserts a new
Division 2A (new sections 75A and 75B) to give effect to recommendation
28 of the Parliamentary Crime and Misconduct Committee report that
presiding officers be allowed to order at a commission hearing the
immediate production of a document or thing.
Proposed new section 75A provides that the division applies only for a
crime investigation or a misconduct investigation.
Proposed new section 75B provides that the presiding officer may require a
witness to immediately produce a stated document or thing that the
presiding officer believes is relevant to the investigation. The presiding
officer may adjourn the hearing to allow the person to comply with the
requirement.
There is no requirement that the document or thing be in the witness's
possession or control. However reasonable excuse is available under
section 185 for non-compliance.
Clause 7 Amendment of section 82 (Notice to attend hearing-general): This
clause amends section 82 (which deals with the issue by the chairperson of
notices to attend commission hearings) consequentially to the amendment
to section 74.
The clause allows the chairperson to issue an attendance notice for a
witness protection hearing to establish the reasonable excuse or claim of
privilege that a person may have raise in relation to the notice to produce
issued for the witness protection function.
The clause also clarifies that the Crime and Misconduct Commission can
only issue attendance notices for crime or misconduct investigations as
well as for the new witness protection function. Section 176 of the Crime
and Misconduct Act 2001 provides that the Crime and Misconduct
Commission can hold hearings for any of its functions (except for a
confiscation related investigation). Section 82(1), as it is currently drafted,
does not specify the functions for which attendance notices can be issued.
However, section 82(2) implies that attendance notices can only be
currently issued for crime or misconduct investigations. The amendment
makes this explicitly clear.
Clause 8 Amendment of section 85 (Notices requiring immediate
attendance may be issued only by or with the approval of a Supreme Court
judge): This clause amends section 8 consequentially to the amendment to
section 74.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
The clause extends the requirement of Supreme Court judge approval for
attendance notice requiring immediate attendance at a commission hearing
to attendance notices issued in the context of a witness protection hearing.
The clause requires the Supreme Court judge to be informed that the notice
to attend relates to a witness protection function hearing.
Clause 9 Amendment to section 177 (Whether hearings are to be open or
closed): This clause amends section 177 to insert a new subsection (2)(b)
that a witness protection function hearing may be open to the public if the
commission considers opening the hearing to the public will make the
hearing more effective, would not be unfair to a person or contrary to the
public interest, would not threaten the security of a protected person or the
integrity of the witness protection program or other witness protection
activities of the commission and the commission approves that the hearing
be a public hearing.
Clause 10 Amendment of section 178 (Who must conduct public hearings):
Currently only the chairperson of the Crime and Misconduct Commission
can conduct public hearings unless the Governor in Council appoints a
person to do so, in which case the appointed person is also the acting
chairperson. This clause amends section 178 to allow the chairperson to
decide that an assistant commissioner conduct a public hearing if the
chairperson considers it necessary for the efficient operation of the
commission.
The insertion of this provision negates the need for existing sections 178
(4) to (7).
Clause 11 Amendment of section 184 (Application of subdiv 1): This
clause amends section 184 consequentially to the amendment to section 74.
The amendment has the effect that the subdivision which deals with refusal
to produce also applies in the context of a witness protection function
hearing.
Clause 12 Amendment of s 185 (Refusal to produce - claim of reasonable
excuse): This clause amends section 185 consequential to the insertion (by
clause 6) of new sections 75A and 75.
Clause 13 Amendment to s 188 (Refusal to produce - self-incrimination):
This clause amends section 188 to clarify that a person is required to
comply with a requirement of the Crime and Misconduct Commission to
produce documents or things to a commission officer or at a commission
hearing for a misconduct investigation.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Clause 14 Amendment to s 189 (Application of subdiv 1): This clause
omits existing section 189 and inserts a new section 189 to make it clear
that the subdivision applies in the context of a crime investigation and a
witness protection function hearing. This amendment is consequential to
the amendment to section 74.
Clause 15 Replacement of s 193 (Application of subdiv 1): This clause
omits existing section 193 and inserts a new section 193 to make it clear
that the subdivision applies in the context of a crime investigation and a
witness protection function hearing. This amendment is consequential to
the amendment to section 74.
Clause 16 Amendment of s 194 (Presiding officer to decide whether refusal
to answer questions or produce documents or things is justified.): The
clause amends section 194 to rename the privilege against self
incrimination the self-incrimination privilege.
Clause 17 Amendment to s 195B (Supreme Court to decide claim of
privilege): The clause amends section 195B to rename the privilege against
self incrimination the self-incrimination privilege.
Clause 18 Amendment of s 197 (Restriction on use of privileged answers,
documents, things or statements disclosed or produced under compulsion):
This clause amends section 197 to:
· allow self-incriminating evidence that a person has been
compelled to give at a Crime and Misconduct Commission
hearing to be used in proceedings against that person for the
falsity of other compelled evidence;
· ensure that only individuals (and not corporations) can claim the
privilege against self-incrimination, in accordance with the
Queensland Law Reform Commission's Report No 59 The
abrogation of the Privilege Against Self- Incrimination; and
· rename the privilege against self incrimination the self-
incrimination privilege.
Clause 19 Amendment to s 213 (Secrecy): This clause amends section 213
to clarify that commission officers and other persons can only be required
to produce or disclose confidential documents or information relevant to
the work of the Crime and Misconduct Commission that is necessary for a
prosecution started as a result of an investigation conducted by the Crime
and Misconduct Commission.
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Clause 20 (Amendment of section 247 (Duration of appointment): This
clause amends section 247 to relax the limit on the tenure of senior officers
and assistant commissioners by
· inserting a new subsection 247(3) which provides that the tenure
period is now ten years (currently eight years);
· inserting a new section 247(3A) which allows the ten years to be
extended for a further term if it is necessary for the efficient
operation of the commission and does not result in the person
holding office in the commission as an assistant commissioner or
senior officer for more than 15 years in total; and
· inserting a new section 247(3B) which applies the amendments
to existing officers.
Clause 21 Insertion of new s 247A: The clause inserts a new section 247A
which obliges the chairperson to inform the Parliamentary Crime and
Misconduct Committee if an assistant commissioner or senior officer is
appointed for a further term under section 247(3A).
Clause 22 (Amendment of s 255 (Secondment of officers): This clause
amends section 255 to alleviate the burden on Ministers to approve
secondments to the Crime and Misconduct Commission by requiring
secondments of:
officers or employees of the parliamentary service to be approved
o
by the Speaker;
members of the police service to be approved by the Minister (ie.
o
the Attorney-General and Minister for Justice) and the Minister
administering the Police Service Administration Act 1990 (ie the
Minister for Police);
officers or employees of a unit of public administration to senior
o
officer positions to be approved by the Minister and the Minister
responsible for the unit of administration from which the person
is seconded; and
officers or employees of a unit of public administration to
o
positions below senior officer level to be approved by the
officer's or employee's chief executive.
Clause 23 (Amendment of s 260 (Performance): This clause amends
section 260 to provide that the requirements under section 260 also do not
require the Crime and Misconduct Commission to give to the Minister
details that may threaten the security of a protected person or the integrity
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
of the witness protection program or other witness protection activities of
the Crime and Misconduct Commission.
Clause 24 Amendment of s 269 (Delegation): This clause amends section
269 to allow the Crime and Misconduct Commission to delegate its power
to appoint staff below senior officer level to a person other than the
chairperson.
Clause 25 Amendment of s 295 (Referral of concerns by parliamentary
committee): This clause, and the definition of commission officer being
inserted in the Schedule, have the effect of amending section 295 to
implement recommendation 47 of the Parliamentary Crime and
Misconduct Committee's report that it be made clear that the section
extends to former officers of the former Criminal Justice Commission and
former officers of the former Queensland Crime Commission.
Clause 26 Amendment of s 305 (Disqualifications as parliamentary
commissioner): This section amends section 305 by deleting the reference
to former commission officer because this is now included in the definition
of commission officer inserted by an amendment to the Schedule of the
Crime and Misconduct Act 2001 in clause 34 of the Bill.
Clause 27 Amendment of s 312 (Termination of appointment): This clause
amends section 312 by deleting the reference to former commission officer
because this is now included in the definition of commission officer
inserted by an amendment to the Schedule of the Crime and Misconduct
Act 2001 in clause 34 of the Bill.
Clause 28 Amendment of s 318 (Parliamentary commissioner may conduct
hearings in limited circumstances): This clause, together with the definition
of commission officer inserted by an amendment to the Schedule of the
Crime and Misconduct Act 2001 in clause 34 of the Bill, amends section
312 to give effect to recommendation 50 of the Parliamentary Crime and
Misconduct Committee report that former officers of the of the former
Queensland Crime Commission can be required by the Parliamentary
Commissioner to give evidence at a hearing conducted by the
Parliamentary Commissioner.
Clause 29 Amendment of s 321 (Confidentiality obligations not to apply):
This clause amends section 321 to delete the definition of commission
officer because it is now defined in an amendment made in the Schedule. It
includes officers of the former Queensland Crime Commission.
Clause 30 Amendment of s 326 (Monitor's functions): This clause amends
section 326 to give effect to recommendation 19 of the Parliamentary
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Crime and Misconduct Committee report that the section be amended to
provide that any report by the Public Interest Monitor on non-compliance
by the Crime and Misconduct Commission with the Crime and Misconduct
Act 2001 be provided to the Crime and Misconduct Commission and the
Parliamentary Crime and Misconduct Committee.
Clause 31 Amendment of s 329 (Duty of chairperson to notify improper
conduct to the parliamentary committee: This clause, together with the
definition of commission officer inserted by an amendment to the Schedule
of the Crime and Misconduct Act 2001 in clause 34 of the Bill, amends
section 329 to implement recommendation 47 of the Parliamentary Crime
and Misconduct Committee's report that it be made clear that the section
extends to former officers of the former Criminal Justice Commission and
former officers of the former Queensland Crime Commission.
Clause 32 Amendment of s341 (Personnel changes do not affect
commission's power to make findings or report): This clause amends
section 341 to include the witness protection function.
Clause 33 Amendment to section 343 (Information disclosure and
privilege): This clause amends section 343 to make it clear that only a
person who is an individual may claim the self-incrimination privilege
under the Crime and Misconduct Act 2001. This is consistent with the
Queensland Law Reform Commission's Report No 59 The abrogation of
the Privilege Against Self- Incrimination. .
Clause 34 Amendment of sch 2 (Dictionary): This clause makes a series of
amendments to the Dictionary contained in schedule 2 to the Crime and
Misconduct Act 2001.
Clause 35 Declaration about repeal of Cross-Border Law Enforcement
Legislation Amendment Act 2005 s73(3): This clause repeals section 73(3)
of the Cross-Border Law Enforcement Legislation Amendment Act 2005
(which amends the definition of "commission officer" in the schedule of
the Crime and Misconduct Act 2001) in the event that the part of section
34(2) of the Crime and Misconduct and Other Legislation Amendment Act
2006, which inserts a definition of commission officer, commences before
section 73(3) of the Cross-Border Law Enforcement Legislation
Amendment Act 2005.
Clause 36 Act amended in pt 3: This clause provides that this part amends
the Misconduct Tribunals Act 1997.
Clause 37 Amendment of s 4 (Dictionary): This clause deletes the
reference to schedule 2 and substitutes "the schedule".
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Clauses 38 Replacement of s 5 (Appointment of misconduct tribunal panel
members): This clause inserts a new section dealing with the appointment
to a panel of tribunal members. The number of persons to be appointed is
as many as the Minister considers appropriate. The clause also provides for
the appointment of one tribunal member as the senior member of the
tribunal.
Clause 39 Amendment of s6 (Qualification of tribunal members): This
clause inserts an amendment to section 6 to provide that an ineligible
person is not qualified for appointment as a tribunal member. The term
"ineligible person" is defined in the dictionary. The definition is similar to
that contained in the Crime and Misconduct Act 2001. The amendment will
align the qualifications for appointment to the Misconduct Tribunals with
those of the Crime and Misconduct Commission.
Clause 40 Amendment of s 7 (Nomination for appointment as tribunal
member): This clause removes "multi-party majority" from section 7 and
substitutes the term "bipartisan support". The terms have the same effect.
Clause 41 Insertion of new s 7A: This clause allows the Minister, in
helping to decide whether a person is suitable for nomination for
appointment as a tribunal member, to ask the commissioner of the police
service for a criminal history on the person. This request can only be made
with the person's consent. The term criminal history is defined to mean all
convictions whether in Queensland or elsewhere. Clause 47 inserts a
definition of "conviction" to include convictions for which the
rehabilitation period under the Criminal Law (Rehabilitation of Offenders)
Act 1986 has expired and that have not revived under that Act.
Clause 42 Insertion of new s 9A: This clause inserts new section 9A which
allows for the appointment of an acting senior member.
Clause 43 Insertion of new s 19A: This clause inserts a new section 19A
obliging tribunal members to disclose conflicts of interest.
Clause 44 Amendment of s 39 (Annual report): This clause gives effect to
recommendation 48 of the Parliamentary Crime and Misconduct
Committee report by requiring that the Misconduct Tribunals' annual
report be tabled within four months and fourteen days of the end of the
financial year.
Clauses 45 and 46 Amendment of pt 7 (Transitional provisions and
amendments): This clause inserts transitional provisions person which
make it clear that a person who was a member or the senior member of the
tribunal panel immediately before commencement of the amendments
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
provided for in this Bill continue to hold that office upon the
commencement of the amendments.
Clause 47 Amendment of sch 2 (Dictionary): This clause inserts a number
of new definitions into the Dictionary and renames the schedule 2 as
schedule.
Clauses 48 to 50 Act amended in pt 4, Amendment of s 159 (Monitor's
functions) and Expiry of pt 4): These clauses amend the Police Powers and
Responsibilities Act 2000 to give effect to recommendation 20 of the
Parliamentary Crime and Misconduct Committee report that there be a
requirement that a report by the Public Interest Monitor on non-compliance
by a police officer who is a "commission officer" be given to the
Commissioner of Police, the Crime and Misconduct Commission and the
Parliamentary Crime and Misconduct Committee.
Clauses 51 and 52 Act amended in pt 5 and Amendment of s 47 (Right to
apply for Industrial Commission injunction): These clauses make a series
of minor technical amendments to the Whistleblowers Protection Act 2000.
Clause 53 Act amended in pt 6: This clause provides that this part amends
the Witness Protection Act 2000.
Clause 54 Amendment of s 8 (Content of protection agreement): This
clause amends section 8(2)(a)(iii) and (iv) to substitute "compromise" with
the word "threaten".
Clause 55 Amendment of s 12 (Suspension of protection agreements): This
clause amends section 12 to give effect to recommendation 38 of the
Parliamentary Crime and Misconduct Committee report that the
chairperson be given the power to suspend a witness protection agreement
in circumstances where the chairperson is satisfied that the protected
witness's conduct is a threat to the integrity of the program..
Clause 56 Amendment of s 14 (When chairperson may end protection
under program): This clause amends section 14 to allow the chairperson to
end protection under the program because the integrity of the program or
other witness protection activities are threatened because of something the
protected witness has done or intends to do or the protected witness cannot
be properly protected under the program because of something the
protected witness has done or intends to do.
Clause 57 Insertion of new pt 2A: This clause inserts new Part 2A,
"Arrangements for short-term protection", which implements
recommendations 36 and 37 of the Parliamentary Crime and Misconduct
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Crime and Misconduct and Other Legislation
Amendment Bill 2006
Committee report that the Crime and Misconduct Commission be allowed
to make short-term protection agreements.
The new part will apply to a person not included or being considered for
inclusion in the program but for whom the chairperson considers is in need
of the type of protection available under the program for a specific purpose
(eg attendance at court) and for a specified period because of a danger
arising from the fact that the person has helped or is helping a law
enforcement agency or has a relationship with a person who has helped or
is helping a law enforcement agency.
The short- term protection arrangements may include the conditions in
section 8 (eg that the person must contravene State or Commonwealth laws
or compromise the integrity of the program).
The new part allows for the variation of short -term protection
arrangements.
The part allows the chairperson to suspend or end the short-term protection
arrangements and the short-term protected person may end the person's
short term protection arrangement.
Clause 58 Replacement of s 36 (Offence of disclosure about protected
witnesses or officers): This clause implements recommendation 40 of the
Parliamentary Crime and Misconduct Committee report that section 36 be
amended to provide that it is an offence to disclose or record information
about the witness protection program that may compromise its integrity,
even in cases where such information does not relate to a protected witness.
Clause 59 Replacement of s 37 (Offence of disclosure by prescribed
persons): This clause inserts a new section to extend the scope of the
section to include persons who have undergone assessment for interim or
short term protection or have signed an interim protection agreement or
entered into a short term protection agreement.
Clause 60 Amendment of s 48 (Delegation): This clause amends section 48
to include protection under a short term protection arrangement.
Clause 61 Amendment of sch 2 (Dictionary): This clause amends the
dictionary.
Schedule Minor amendments to the Crime and Misconduct Act 2001: This
clause makes minor amendments to the Crime and Misconduct Act 2001.
© State of Queensland 2006