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1
Criminal Justice Amendment
CRIMINAL JUSTICE AMENDMENT BILL
1993
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
The principal objectives of the Bill are:
(i) to provide for a number of technical amendments to the Criminal
Justice Act 1989 which have been recommended by the
Parliamentary Criminal Justice Committee and the Criminal
Justice Commission which will clarify the Act and facilitate its
administration;
(ii) to extend the confidentiality provision of s. 6.7 of the Act to
former Commissioners and officers of the Commission and
former members of the Parliamentary Committee;
(iii) to authorise the legally qualified Commissioner to preside at
hearings in his or her own right;
(iv) to authorise former judges and other eminent members of the
legal profession to preside at these hearings without having to
make them officers of the Commission; and
(v) to make it an offence for a person to make a false allegation,
causing a Commission investigation.
Reasons for the Bill
The Criminal Justice Act 1989 reflects the haste with which it was
prepared after the delivery of the Report of the Commission of Inquiry into
Possible Illegal Activities and Associated Police Misconduct (the
"Fitzgerald Report").
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Criminal Justice Amendment
Since the enactment of the Criminal Justice Act 1989, several reports
have been published by the Parliamentary Criminal Justice Committee
relating to the Act and the operations of the Criminal Justice Commission.
The Reports and submissions by the Criminal Justice Commission are
critical of the Act and note the lack of clarity, consistency, simplicity. These
reports and submissions contain a large number of recommendations for
amendment of the Act.
The amendments proposed by this Bill adopt many of the
recommendations and represent the bulk of the technical amendments. The
amendments are intended to clarify the Act and to better facilitate the
operations of the Criminal Justice Commission. The amendments are
directed towards attaining greater internal consistency within the Act and to
simplify certain administrative functions of the Criminal Justice
Commission.
Many of the amendments are minor and are amendments by way of
statute revision which arise out of the charter of the Parliamentary Counsel
to review and update current legislation in Queensland by correcting out of
date references and removing references that are now redundant or
uncecessary.
Estimated Cost for government Implementation
There will be no cost for Government.
Consultation
The agencies and persons consulted are the Department of Justice and
Attorney-General, Office of the Cabinet, Public Sector Management
Commission, Queensland Police Services and the Criminal Justice
Commission.
NOTES ON PROVISIONS
Clause 1 Short title of the Act.
Clause 2 States name of Act amended.
Clause 3 inserts a definition of `chief officer' Although this office is
given functions under the current Act, the office is not specifically defined
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Criminal Justice Amendment
or created.
Clause 4 amends the heading to Division 1 of Part 2 of the Act to reflect
the fact that the Division 1 of the Act deals with the appointment of the first
Commission and also the membership of future Commissions.
Clause 5 omits subsection (2) of s. 2.1. A new subsection is inserted by
the next clause and clause 8 which address the issue of judicial notice of the
Commission's seal.
Clause 6 replaces the existing section in simple English.
Clause 7 inserts a reference to `meetings' of the Commission as well as
`proceedings' of the Commission.
Clause 8 complements clause 5 and specifies the requirement to take
judicial notice of the signature of the Chairperson or the fact that a person is
or has been chairperson.
Clause 9 inserts a new subsection 2.14A which is relocated from
s.3.21(2) to ensure that the obligations of the Criminal Justice Commission
to act independently, impartially, fairly and in the public interest extend to
the Commission in the exercise of all of its functions.
Clause 10 inserts a new s.2.17(2)(ba) which enables a Commissioner
who is a legal practitioner to constitute the Commission for the purpose of a
hearing. The amendment to s.2.17(2)(c) will able enable the Chairperson to
authorise a legal practitioner who is not an officer of the Commission to
conduct a hearing without the necessity to appoint the legal practitioner as an
officer of the Commission.
The clause also omits section 2.17(3) to (5) and inserts the provisions as
new sections 3.20A - 3.20C. in Division 2 of Part III of the Act which deals
with procedural matters.
Clause 11 corrects an error in the Act where the reference to subsection
(2) should be a reference to subsection (3).
Clause 12 omits the current section 2.20(2)(f) and inserts a new
subsection (f). The report of the Commission of Inquiry contains no
reference to `guidelines'; it makes recommendations and the current Act is
not always consistent with the recommendations, some of which are
impracticable to carry into effect.
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Criminal Justice Amendment
Clause 13 omits the existing section 2.24(4) and replaces it with two new
subsections which will ensure that the confidentiality of the Commission's
investigations and the identities of the informants are not compromised or
prejudiced.
Clause 14 is a simple insertion of the word `eligible' to clarify that it is
persons who are eligible to be appointed to the panel who are nominated to
the Minister by the Commission.
Clause 15 inserts a new paragraph (d) to s.3.4(1) to include an express
authorisation that the person executing the warrant may do so with such
assistance as the person considers necessary. The amendment also negates
any argument on the basis of Plenty v. Dillon and Ors (1991) 98 ALR 353
that in the absence of an express provision authorising the use of assistance
by a Commission officer in the execution of a warrant, such use would be
precluded without the prior consent of the occupier of the premises which is
the subject of the warrant.
Clause 16 inserts a new subsection (3) to provide that a person
summoned to attend before the Commission must continue to attend before
the Commission as required until excused from further attendance.
Clause 17 omits the present section 3.20 and replaces it with a new
section which extends the powers of the Commission to enable it to prohibit
the publication of matter if the publication would be unfair to a person or
contrary to the public interest including information that may help to
identify a person who has given, or may give evidence before the
commission, or the fact that a person has given or may give evidence before
the Commission.
Clause 18 complements the amendment made by clause 10. The current
provisions of section 2.17 (3-5) are relocated in the new sections. These are
procedural matters relevant to Commission hearings and it is appropriate
and convenient to include them in Division 2 of Part III of the Act
(Procedures for taking evidence).
Clause 19 omits the current section 3.21(1) and (2) and inserts a new
subsection which separates the issue of procedure from the issue of
applicability of the rules of evidence. Section 3.21(2)(c) now appears as the
new section 3.21A (see next clause). Section 3.21(2)(a) and (b) now appear
as section 2.14A (see clause 9).
Clause 20 is a new section which reflects the provisions of the existing
section 3.21(2)(a) and (b) [see explanation in preceding clause].
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Criminal Justice Amendment
Clause 21 inserts the words `in a court or in disciplinary proceedings' to
make the language used in the subsection consistent with the language in
subsection (1).
Clause 22 and 24 omits section 3.25 and section 3.33 and inserts a new
section 3.33 which combines the elements of the existing sections. The
effect of the amendment is that the Commission must pay expenses to a
person attending before the Commission as required by the Commission
(e.g by a notice of summons). However the Commission has a discretion
to pay expenses to a person who assists the Commission in an investigation
by providing information, records or things.
Clause 23 omits the existing subsection (1) and inserts a new subsection
which gives the same protection and immunity as a judge of the Supreme
Court to a person while the person is constituting the Commission to
conduct a hearing.
Clause 24 see explanation in clause 22.
Clause 25 amends section 3.34(d) to reflect the amendment made to
sections 3.16 and 3.19 (see clauses 16 and 17).
Clause 26 omits s.5.1(4). The effect of the amendment is that it will not
be mandatory for the Supreme Court to make and keep a transcript of all
proceedings upon an application made under Part V of the Act. Under its
own rules, it will now be in the discretion of the court as to whether full
transcripts of proceedings should be taken.
Clause 27 omits the existing section 6.7 and replaces it with a new
section which extends the confidentiality provisions to cover present and
former Commissioners and officers of the Commission and present and
former members of the Parliamentary Committee. The confidentiality
provisions also apply to persons whose services are used under s.2.54 and
s.2.55 of the Act.
Clause 28 inserts a new s.6.11A which creates an offence to wilfully
make a false complaint or to otherwise give false information to the
Commission. A person who contravenes the section may also be ordered
to pay compensation for the reasonable cost of any investigation made or
other action taken by the Commission because of the false complaint or
information.
Clause 29 inserts a new section 7.2A which formalises the making of
acting appointments to certain statutorily recognised positions under the
Act.
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Criminal Justice Amendment
SCHEDULE - MINOR AMENDMENTS
Clauses 1 - 150 are minor amendments such as --
· altering references such as `police force' to `police service' to
accord with current drafting practices and consistent use of terms
in Queensland legislation;
· to remove otiose words and expressions;
· omit obsolete or redundant expressions and unnecessary
referential words;
· to omit provisions which are addressed by the Acts Interpretation
Act 1954;
· replace words and phrases with plain English;
· replace words and phrases to ensure greater consistency with
words and phrases already appearing in the Act.
The explanation for the majority of the amendments is self-evident.
However the following explanations are made in respect of the these
clauses--
Clause 3 - 4 omits certain definitions which are no longer necessary or
inserts new or additional definitions which are gender neutral or
complement the amendments made in the amendment Bill.
Clause 32 The office of Public Defender was abolished by the Legal Aid
Act Amendment and Public Defence Act Repeal Act 1991. The functions of
that office were subsumed by the Legal Aid Commission of Queensland.
The work formerly undertaken by the Public Defender's Office and now
performed by the Legal Aid Commission is identified in the definition of
`prescribed criminal proceeding' in the Legal Aid Act 1978.
Clause 146 omits the words `or both' concerning the liability of a person
convicted of an offence under the Act to a penalty or to imprisonment.
Under the Penalties and Sentences Act 1992, a provision of an Act that
provides to the effect that the maximum penalty for an offence may be a
fine or imprisonment means that the sentencing court may order the
offender to pay a fine and also to be imprisoned.
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Criminal Justice Amendment
Clause 147 References to the words `or his delegate' have been omitted
from the Act. Delegations are now governed by the new section 7.2 and the
delegation provisions of the Acts Interpretation Act 1954.
Clause 150 adopts consistent language in legislation in sections
conferring regulation-making powers.
© The State of Queensland 1993