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1
National Crime Authority (State Provisions) Amendment
NATIONAL CRIME AUTHORITY (STATE
PROVISIONS) AMENDMENT BILL 1995
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
Subsequent to its commencement, the National Crime Authority Act
1984 (the Commonwealth Act) has been the subject of amendment. Several
of these amendments have resulted in the need to effect changes to the
reciprocal provisions in the National Crime Authority (State Provisions) Act
1985 (the State Act).
Reasons for the Bill
The proposed amendments to the State Act are designed to ensure that
the provisions of this legislation incorporate relevant amendments to reflect
the current provisions of the Commonwealth Act. This in turn, will
improve the effectiveness of the National Crime Authority (the NCA) as a
national law enforcement body.
The National Crime Authority (State Provisions) Amendment Bill 1995
amends the National Crime Authority (State Provisions) Act 1985.
The Bill will insert provisions which will require or enable the National
Crime Authority ("the NCA") to prohibit the disclosure of the existence of,
or any information about summonses or notices issued under the NCA Act
or any proceedings or matters connected with those documents.
The provisions are designed to prevent people whose activities are under
investigation by the NCA from becoming aware of the investigation. This
has happened in the past when, for example, financial institutions received
summonses or notices relating to their clients' affairs and felt legally
obliged to inform their client. On being told of the receipt of such process,
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National Crime Authority (State Provisions) Amendment
suspects have concealed or destroyed evidence or gone into hiding, thus
frustrating NCA investigations. This amendment aims to prevent this
happening in the future and clarifies the legal position of bodies such as
financial institutions.
The amendment will also ensure that people's safety is not threatened, or
their reputation or fair trial is not prejudiced by others revealing the existing
of NCA process, or any information about it or any connected proceedings
or investigations.
The amendment contains a number of safeguards. Depending on the
particular case, disclosure is permitted in the circumstances specified in the
notation restricting disclosure. Additionally, the amendment guarantees that
disclosure can always be made to obtain legal advice, legal aid, or
instructions in relation to waiving legal professional privilege or to comply
with any legal duty of disclosure arising from the legal practitioner/client
relationship.
The Bill also makes amendments which will enable the NCA to apply
for a warrant of apprehension where a person fails or refuses to appear at an
NCA hearing.
This will correct a present anomaly under the Act that a warrant of
apprehension can be issued where a person has absconded, is likely to
abscond, or is otherwise likely to attempt to evade service of a summons,
but not where a person fails or refuses to attend the actual hearing.
Finally, the Bill will also allow the Chairman of the NCA, rather than the
Attorney-General, to appoint counsel to the NCA, and will enable the NCA
to pass information concerning its general investigations in a particular
jurisdiction to the relevant member of the NCA Inter-Governmental
Committee ("the IGC").
In addition, the Bill is an Act to make minor and technical amendments
to the State Act.
These amendments include changes which are designed to:
· streamline the NCA's day to day operations through reducing the
need for unnecessary inter-agency meetings wherever possible;
· remove references in the Act which are rendered unnecessary as a
consequence of the Acts Interpretation Act 1954;
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National Crime Authority (State Provisions) Amendment
· confer upon the Australian Capital Territory Government, the
same status as that of the State and Northern Territory
Governments, and allow it to participate in the activities of the
Inter-Governmental Committee;
· provide for the notification of related references to the NCA;
· enable the NCA to furnish evidence obtained as a result of their
investigations directly to the relevant prosecuting authority; and
· utilise gender neutral language.
Consultation
As this is reciprocal legislation to the National Crime Authority Act 1984
(Commonwealth) and affects only the Queensland Police Service and the
Criminal Justice Commission, consultation carried out by the Queensland
Police Service was limited to relevant government agencies.
NOTES ON PROVISIONS
Clause 1 States the short title of the Act
PART 2--AMENDMENTS OF NATIONAL CRIME
AUTHORITY (STATE PROVISIONS) ACT 1985
Clause 2 Provides that Part 2 amends the National Crime Authority
(State Provisions) Act 1985
Clause 3 Omits section 2 (Commencement)
Clause 4 Amendment of section 3 (Interpretation)
-- section 3(1) omits the definition of "Acting Member" and
"Document".
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National Crime Authority (State Provisions) Amendment
-- expressly defines "Minister of the Crown of a State" to include--
(a) for the Australian Capital Territory--a person appointed as
Minister under the Australian Capital Territory (Self-
Government) Act 1988 (Cwlth); and
(b) for the Northern Territory--a person holding Ministerial
Office within the meaning of the Northern Territory (Self-
Government) Act 1978 (Cwlth).
-- defines "non-disclosure statement", for sections 18A to D, to
mean a statement prohibiting the disclosure of information about
a notice, summons or official matter related to a notice or
summons.
-- defines "notice", for section 18A to D, to mean a notice issued
under section 18.
-- defines "Parliament of a State" to include the legislative assembly
of the Australian Capital Territory and of the Northern Territory.
-- defines "Premier of a State" to include the Chief Minister of the
Australian Capital Territory and of the Northern Territory.
-- defines "summons", for sections 18A to D, to mean a summons
issued under section 17 of the Act.
-- amends the definition "State of the Commonwealth" to include
the Australian Capital Territory.
-- The definition "Official matter" defines the range of Authority
activity covered by the prohibition. It includes information
relating to references, investigations, Authority hearings and court
proceedings.
Clause 5 Extends section 5 (Functions under laws of Queensland) to
enable the Minister, with the inter-Governmental Committee's approval to;
-- (a) in a notice under subsection (1)--state that the references
related to another reference; or
-- (b) by written notice to the Authority--state that a reference
already made to the Authority by the Minister is related to
another reference.
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National Crime Authority (State Provisions) Amendment
Clause 6 Amendment of section 6 (Performance of functions)
-- to include any person or authority (other than a law enforcement
agency) authorised under a Commonwealth or State law to
prosecute the offence.
Clause 7 Amendment of section 9 (Co-operation of law enforcement
agencies)
-- provides that in performing its special functions, the Authority
may co-ordinate its activities with the activities of an entity in
another country if the entity performs similar functions to the
Authority's functions.
Clause 8 Amendment of Section 12 (Search warrants)
-- omits references to the "Authority" (section 12(1), 12(1)(a),
12(1)(b), 12(8)(b), 12(8)(b)(ii), 12(9)) and inserts appropriate
references to "member".
Clause 9 Amendment of section 13 (Application by telephone for search
warrants)
-- reference to "the Authority considers" section 13(1) is omitted
and "a member considers" inserted .
-- reference to "a member of the Authority" in section 13(1) is
omitted and "the member" inserted .
Clause 10 Amendment of section 15 (Order for delivery to Authority of
passport of witness)
-- reference to "of the Authority" in section 15(1) is omitted.
-- reference to "by the Authority" in section 15(3) is omitted and
"by a member" inserted.
-- reference to "the Authority shall" in section 15(4) is omitted and
"a member must" inserted.
Clause 11 Amendment of section 16 (Hearings)
-- reference to "or acting members" in section 16(2) is omitted.
-- section 16(3) is omitted and inserted is a new section 16(3) which
provides that the chairman is the preside at all hearings at which
the chairman is present. If the chairman is not present at a hearing
but two or more other members are present, the members must
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National Crime Authority (State Provisions) Amendment
elect one of them to preside at the hearing. In addition questions
arising at a hearing must be decided by a majority of the votes of
the members present. The person presiding at a hearing has a
deliberative vote and also, if necessary, a casting vote. The
Authority may decide how a hearing's proceedings are to be
conducted.
-- reference to "or an acting member" in section 16(7) is omitted.
-- section 16(9) has been extended. The chairman may change or
repeal a direction given by the Authority to a person under
subsection (9), by written notice given to the person. However,
the chairperson must not change or repeal a direction if the change
or repeal might prejudice--
(a) a person's safety or reputation; or
(b) the fair trial of a person who has been or may be charged
with an offence.
Clause 12 Amendment of section 17 (Power to summons witnesses and
take evidence)
-- reference to "or an acting member" in section 17(1) is omitted.
-- reference to "or acting member" in section 17(4) and 17(5) is
omitted.
-- reference to "unless the Authority" in section 17(3) is omitted
and "unless the member issuing the summons" is inserted.
-- reference to "or by a person" in section 17(6) is omitted.
Clause 13 Amendment of section 18 (Power to obtain documents)
-- reference to "or acting member" in section 18(1) is omitted.
Clause 14 Insertion of new sections 18A--D
-- section 18A is designed to ensure that the notation preventing
disclosure is interpreted as widely as possible so no information
at all about the process, the investigation or any proceedings
connected with it, or anything that might imply that an
investigation is being conducted, can be disclosed (except as
permitted).
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National Crime Authority (State Provisions) Amendment
-- under section 18A(1), a member issuing a summons or notice
must not make a notation on individual process documents
prohibiting the recipient from disclosing any information about
the process or associated official matters, except in circumstances
where the statement's inclusion is required or permitted under
this section.
-- section 18A(1) combined with the new section 18D, is designed
to ensure that recipients of these documents are prohibited from
disclosing not only any information about the summons or
notice, but also from disclosing any information which would
indicate the existence of the Authority reference or investigation
or any proceedings connected with them.
-- section 18A(2) and (3) prescribes the circumstances in which the
member can make the notation prohibiting disclosure on
summonses or notices. Under this provision the member is
obliged to make the notation where he or she is satisfied that
failure to do so could be reasonably expected to prejudice the
safety, reputation or fair trial of a person or the effectiveness of an
investigation. Members will have a discretion to include the
notation where they are satisfied that failure to do so might
prejudice the safety, reputation or fair trial of a person, the
effectiveness of an investigation or that failure to include the
notation would otherwise be contrary to the public interest.
-- section 18A(4) provides that where a notation is included in a
summons or notice, a written statement must also be included
which lists the rights and obligations conferred or imposed under
section 18B.
-- section 18A(5) ensures that, in the event of any inconsistency
with a direction given under section 16(9), the notation prevails to
the extent of the inconsistency.
-- section 18B provides that a non-disclosure statement is to be
accompanied by a written statement about the rights and
obligations conferred or imposed under section 18D on the
person served with the notice or summons.
-- section 18C provides that where the notation is cancelled under
section 18C(1), the Authority must serve a notice on each person
who was served with or given the summons or notice.
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National Crime Authority (State Provisions) Amendment
-- section 18D(1), disclosure of any information about the
summons or notice or any official matter connected with them is
prohibited. This is designed to ensure that no information which
might even suggest the existence of the Authority investigation
can be communicated to others unless this is permitted under
these provisions.
-- section 18D(2) provides for disclosure in certain circumstances.
Under this section, a person receiving Authority process
containing a non-disclosure notation may disclose the existence of
the process where it is:
(a) in accordance with the circumstances, if any, specified in the
notation;
(b) to a legal practitioner to obtain legal advice or representation;
(c) to a legal aid officer to obtain legal or financial assistance
under section 27;
(d) to an officer or agent of a body corporate to enable
compliance with the process; or
(e) if the person is a legal practitioner, to allow compliance with
a legal duty of disclosure arising from the practitioner's
professional relationship with the client or to enable the legal
practitioner to obtain instructions in relation waiving legal
professional privilege.
-- these people to whom disclosure can be made are, in turn,
prohibited from disclosing the existence of the process under
section 18D. Under section 18D(3), however, they may make
disclosures for the following purposes:
(a) officers or agents of a body corporate may make disclosures
to ensure compliance with the process or obtain legal advice
or legal aid;
(b) legal practitioners may make disclosures to give legal advice
or make representations;
(c) legal aid officers may make disclosures to obtain legal
advice or representation.
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National Crime Authority (State Provisions) Amendment
-- this provision is designed to ensure that people receiving
Authority process are able to comply with that process and are
not denied their legal rights.
-- section 18D(4) provides that a person to whom information is
disclosed under subsection (2) or (3) is prohibited from
disclosing information under subsection(4)(a) and (4)(b).
-- section 18D(5) provides that the section stops applying to a notice
or summons when the notice or summons is cancelled by section
18C(1) or five year elapse after the day the notice or summons
was issued, whichever happens earlier.
-- section 18D(6) provides that a reference to disclosing some
thing's existence includes disclosing information from which a
person could reasonably be expected to infer it's existence.
Clause 15 Amendment of section 19 (Failure of witnesses to attend and
answer questions)
-- reference to "or an acting member" in section 19(1)(b) is omitted.
-- reference to "or acting member" in section 19(2)(b), and (3) is
omitted.
Clause 16 Amendment of section 20 (Warrant for arrest of witness)
-- enables the National Crime Authority to apply for a warrant of
apprehension to the Federal Court in circumstances where a
person has absconded, is likely to abscond, is otherwise likely to
attempt to evade service of a summons, or fails to appear at a
National Crime Authority hearing.
-- section 20(1) is amended to include instances where a person has
committed, or is likely to commit, an offence under section 19(1).
Clause 17 Amendment of section 21 (Applications to the Federal Court
of Australia)
-- reference to "as the Authority" in section 21(9) in omitted and
"as a member" inserted.
Clause 18 Amendment of section 24 (Protection of witnesses etc.)
-- reference to "or acting member" in section 24 is omitted.
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National Crime Authority (State Provisions) Amendment
Clause 19 Amendment of section 25 (Contempt of Authority)
-- reference to "or an acting member" in section 25(a) is omitted.
Clause 20 Amendment of section 29(1) (Protection of members etc.)
-- reference to "or an acting member" in section 29(1) is omitted.
-- reference to "or acting member" in section 29(1) is omitted.
Clause 21 Amendment of section 30 (Secrecy)
-- reference to "or acting member" in section 30(1)(a) is omitted.
-- section 30(4) provides that a "member of the staff of the
Authority" includes a person who assists, or performs services
for, a legal practitioner appointed under the Commonwealth Act,
in performance of the legal practitioner's duties as counsel to the
Authority.
PART 3--AMENDMENT OF FREEDOM OF
INFORMATION ACT 1992
Clause 22 Provides that this part amends the Freedom of Information
Act 1992
Clause 23 Amendment of Schedule 1 (Secrecy provisions giving
exemption)
-- inserted into Schedule 1 is "National Crime Authority (State
Provisions) Act 1985, sections 17 and 18 (so far as they apply to
a summons or notice given under section 17 or 18 that includes a
non-disclosure statement mentioned in section 18A)".
© The State of Queensland 1995