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National Crime Authority (State Provisions)
(Amendment) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to amend the National Crime Authority (State
Provisions) Act 1984 (the State Act) so that it more closely reflects the
Commonwealth National Crime Authority Act 1984 (the Commonwealth
Act) and for other purposes.
The Bill includes amendments to the State Act to ensure that it complements
the Commonwealth Act following amendments to the Commonwealth Act to
implement the Commonwealth Government's response to the 3rd evaluation
of the Authority by the Parliamentary Joint Committee on the National Crime
Authority (PJC-NCA).
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for the Bill to come into operation on the day after it
receives the Royal Assent.
Clause 3 provides that the Principal Act referred to in the Bill is the
National Crime Authority (State Provisions) Act 1984.
PART 2--AMENDMENT OF THE PRINCIPAL ACT
Clause 4 inserts a number of definitions in section 3(1).
A new definition of "eligible person" will be inserted. An
eligible person will be a member of the Authority, or a member
of staff of the Authority who is also a member of the police force
of Victoria. This amendment is related to the amendments in
clauses 6 and 7 extending the class of persons who may apply for
a search warrant.
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541285 BILL LA CIRCULATION 24/4/2002
A new definition of "hearing officer" will be inserted. A hearing
officer will be a person appointed by the Governor in Council
under new section 16A. This amendment is related to the
amendments contained in clause 10 which provide for hearing
officers to conduct hearings on behalf of the Authority as well as
various other amendments conferring similar powers on hearing
officer as possessed by the Authority.
A new definition of "issuing officer" will be inserted. An issuing
officer will be a Judge of the Federal Court or a Judge of a court
of Victoria. This amendment is related to the amendments in
clauses 6 and 7 extending the classes of person who may issue a
search warrant.
Clause 5 repeals two redundant provisions. Section 6(4) appears to
assume that police officers derive a "power to interview" from
their capacity as police officers, but as the term power to
interview has no legal meaning this provision is ineffective.
Section 6(5) is dependent upon section 6(4) and will also be
repealed. As the equivalent Commonwealth provisions have
been repealed, the amendments will make the State Act
consistent with the Commonwealth Act in this regard.
Clause 6 amends a number of the search warrant provisions in section 12
of the State Act. Clause 7 contains related amendments in
relation to applications by telephone for search warrants.
Clause 6(1) extends the classes of persons who can apply for
search warrants. Presently, only members of the Authority can
apply for search warrants under section 12. Both a member of
the Authority and a member of the staff of the Authority who is a
member of the State police will be an "eligible person" to apply
for a warrant under the proposed amendments (see proposed
definition of "eligible person" in clause 4). This will ensure that
the State Act more closely reflects the Commonwealth Act
following related amendments to that Act to partially implement
recommendation 10 from the 3rd evaluation of the Authority by
the PJC-NCA.
Clause 6(1) also extends the classes of persons who can issue
search warrants. Presently, only Judges of a State Court can
issue a warrant under the State Act. Both Judges of a court of
Victoria and Federal Court Judges will be included within the
definition of "issuing officer" under the proposed amendments
(see proposed definition of "issuing officer" in clause 4).
This will ensure that the State Act more closely reflects the
Commonwealth Act following related amendments to that Act to
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partially implement recommendation 10 from the 3rd evaluation
of the Authority by the PJC-NCA.
Clause 6(2) substitutes a reference to "a Judge of a prescribed
court, the Judge" in section 12(2) with a reference to "an issuing
officer, the issuing officer". This amendment is consequential
upon the expansion of the classes of persons who can issue a
search warrant under section 12 (see clause 6(1)).
Clauses 6(3) and 6(4) substitute references to "A Judge" and "the
Judge" in sections 12(3) and 12(4) respectively with references
to "An issuing officer" and "the issuing officer" as the case may
be. This amendment is consequential upon the expansion of the
classes of persons who can issue a search warrant under
section 12 (see clause 6(1)).
Clause 6(5) inserts a new subsection (6A) into section 12 to
clarify that a person executing a search warrant under that
section may only use such reasonable force as is necessary for
the execution of the warrant. This amendment to the search
warrant provision complements the amendment to the arrest
warrant provision in clause 15(2) (proposed section 20(2A)).
These amendments are consistent with equivalent amendments
made to the Commonwealth Act.
Clause 6(6) substitutes references to "a member of the
Authority" and "the member" in section 12(8) with references to
"an eligible person" and "the eligible person" as the case may be.
This amendment is consequential upon the expansion of the
classes of persons who can apply for a search warrant under
section 12 (see clause 6(1)).
Clause 6(7) substitutes references to "A member" and "the
member" in section 12(9) with references to "An eligible person"
and "the eligible person" as the case may be. This amendment is
consequential upon the expansion of the classes of persons who
can apply for a search warrant under section 12 (see clause 6(1)).
Clause 6(8) repeals section 12(11). Section 12(11), which
defines a Judge of a prescribed court, is no longer required
because of the new definition of "issuing officer" (see clauses 4
and 6(1)).
Clause 6(9) inserts three new provisions in section 12 clarifying
that the function of issuing a warrant is conferred on an issuing
officer in a personal capacity and not as a court or a member of a
court. The clause clarifies that the issue of a warrant under
section 12 has effect only by virtue of the State Act and is not to
be taken by implication to have been made by a court.
The amendments are intended to remove any suggestion that
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non-judicial functions are discharged in a judicial capacity.
In addition, an issuing officer performing a function of, or
connected with, issuing a warrant will have the same protection
and immunity as if he or she were performing that function as, or
as a member of, a court. These amendments are consistent with
similar amendments made to the Commonwealth Act.
Clause 7 makes a number of amendments to section 13.
These amendments complement the amendments in clause 6
relating to the persons who may apply for, or issue, search
warrants.
Clause 7(1) extends the class of persons who may apply by
telephone for a search warrant under section 12 to include a
member of staff of the Authority who is a member of the police
force of Victoria similarly to the amendments in Clause 6(1).
Clause 7(2) substitutes a reference to "the member" in section
13(2) with a reference to "the eligible person". This amendment
is consequential upon the expansion of the classes of persons
who can apply by telephone for a search warrant under section
12 (see clause 7(1)).
Clauses 7(3)(a) and 7(3)(b) substitute references to "a Judge"
and "the Judge" in section 13(3) with a references to "an
issuing officer" and "the issuing officer" respectively.
These amendments are consequential upon the expansion of the
classes of persons who can issue a search warrant under
section 12 (see clause 6(1)).
Clause 7(3)(c) substitutes a reference to "the member" in section
13(3) with a reference to "the eligible person". This amendment
is consequential upon the expansion of the classes of persons
who can apply by telephone for a search warrant under
section 12 (see clause 7(1)).
Clause 7(4) substitutes references to "Judge" with references
to "issuing officer" in sections 13(4), 13(5) and 13(6).
These amendments are consequential upon the expansion of the
classes of persons who can issue a search warrant under
section 12 (see clause 6(1)).
Similarly to clause 6(9), clause 7(5) inserts three new provisions
in section 13 clarifying that the function of issuing a warrant by
telephone under section 13 is conferred on an issuing officer in a
personal capacity and not as a court or a member of a court.
The clause clarifies that the issue of a warrant under section 13
has effect only by virtue of the State Act and is not to be taken
by implication to have been made by a court. The amendments
are intended to remove any suggestion that non-judicial functions
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are discharged in a judicial capacity. In addition, an issuing
officer performing a function of, or connected with, issuing a
warrant will have the same protection and immunity as if he or
she were performing that function as, or as a member of, a court.
These amendments are consistent with similar amendments made
to the Commonwealth Act.
Clause 8 inserts a new section 15 which provides that, for the purposes of
a special investigation, the Authority may hold hearings of the
Authority and the Chair may, by writing, direct a hearing officer
to hold hearings. Presently, the Authority is empowered to hold
hearings for the purposes of a special investigation under the
State Act. Clause 8 will also provide for a hearing officer to
conduct a hearing on behalf of the Authority under the State Act.
This amendment will complement related amendments to the
Commonwealth Act enabling hearing officers appointed under
that Act to conduct hearings on behalf of the Authority
to increase the Authority's investigative capacity.
These Commonwealth amendments partially implemented
recommendation 28 from the 3rd evaluation of the Authority by
the PJC-NCA.
Clause 9 makes a number of amendments in relation to hearings of the
Authority under section 16.
Clause 9(1) inserts a heading to section 16--"Hearings of the
Authority". Clause 9(2) provides that section 16 applies to a
hearing held by the Authority. These amendments will make it
clear that section 16 only applies to hearings of the Authority.
These amendments are intended to differentiate the application
of section 16 from proposed section 16A (see clause 10), which
will apply to hearings held by a hearing officer.
Clause 9(3) replaces references to "Chairperson" with references
to "Chair" in section 16. This amendment is necessary to ensure
consistency with the Commonwealth Act following amendments
to that Act which replaced the term "Chairperson" with the term
"Chair".
Clause 9(4) inserts proposed section 16(7A) which provides that
if a person (other than a member or a member of 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 that person. This clause is intended to remove any
doubt about the power of the Authority to allow persons to be
present at a hearing. Clause 9(4) also inserts proposed section
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16(7B) which makes it clear that a person does not cease to be
entitled to be present at a hearing or a part of a hearing if the
Authority fails to comply with section 16(7A) or a witness
comments adversely on the presence of the other person.
These amendments, together with the related amendments in
clause 10 (see proposed sections 16A(7) and 16A(8)),
complement equivalent amendments to the Commonwealth Act
which implemented recommendation 15 from the 3rd evaluation
of the Authority by the PJC-NCA.
Clause 10 inserts a new section 16A which provides for the appointment of
hearing officers and the manner in which a hearing officer is to
conduct a hearing. This amendment is related to the insertion of
new section 15 (see clause 8) which will provide for hearing to
be conducted by hearing officers under the State Act.
This amendment is consistent with a similar amendment made to
the Commonwealth Act.
Proposed section 16A(1) provides for the appointment of hearing
officers by the Governor in Council on the Minister's
recommendation. Under proposed section 16A(2), the Minister
must only recommend for appointment persons who are hearing
officers for the purposes of the Commonwealth Act. This will
ensure that a person appointed as a hearing officer under the
State Act will have satisfied the requirements for the
appointment of a person as a hearing officer under the
Commonwealth Act, namely that the person has been enrolled as
a legal practitioner for at least 5 years, and has been appointed on
advice from the Commonwealth Minister that is consistent with a
unanimous recommendation by members of the Inter-
Governmental Committee of the Authority.
Proposed section 16A(3) provides for the period and the terms
and conditions applying to the appointment of a hearing officer
and provides that a hearing officer may be re-appointed.
Proposed section 16A(4) provides that if a hearing officer ceases
to hold office as a hearing officer for the purposes of the
Commonwealth Act, the hearing officer ceases to hold office
under this Act.
Proposed sections 16A(5) to 16A(19) provide for the manner in
which a hearing officer is to conduct a hearing. These proposed
provisions are modelled on section 16, which applies to hearings
before the Authority.
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Clause 11 makes a number of amendments to section 17, which contains
provisions regarding the power to summon witnesses and take
evidence.
Clauses 11(1) to 11(4) inclusive extend the operation of
section 17 to apply to hearing officers and hearings before
hearing officers in the same manner as they apply to hearings
before the Authority (see clause 10 in relation to the appointment
of, and hearings held by, hearing officers).
Clause 11(5) substitutes a reference to Chairperson with a
reference to Chair in section 17(6) to ensure consistency with the
Commonwealth Act (see clause 9(3)).
Clause 12 makes a number of amendments to section 18, which contains
provisions regarding the power to obtain documents.
Clauses 12(1) and 12(2) extend the operation of section 18 to
apply to hearing officers and hearings before hearing officers in
the same manner as they apply to hearings before the Authority
(see clauses 8 and 10 in relation to the appointment of, and
hearings held by, hearing officers).
Clause 12(3) makes amendments in relation to the defence of
reasonable excuse, self-incrimination and the penalty for non-
compliance with section 18. These amendments, which are
related to those proposed by clause 14(4), are intended to
enhance the investigatory power of the Authority to enable it to
deal more effectively and efficiently with witnesses.
The amendments will limit the ability of witnesses to challenge
the legitimate role of the Authority in performing its functions.
The amendments will also increase the penalty for non-
compliance with section 18 to provide increased deterrence to
persons who would otherwise engage in conduct designed to
obstruct the Authority's investigatory process.
Proposed section 18(3) removes the defence of reasonable
excuse. Presently, section 18(3) provides that a person shall not,
without reasonable excuse, refuse or fail to comply with a notice
served on the person under section 18. Under new section 18(3)
a person who is served with a notice requiring the person to
produce documents to the Authority will no longer be able to
claim that he or she has a "reasonable excuse" for non-
compliance with the notice. Instead, the defences available at
common law for offences in general, for example duress, will
apply to an offence of non-compliance with section 18.
By removing the unclear defence of "reasonable excuse", the
potential for disputes as to whether a reasonable excuse exists
will be avoided. Further, the inclusion of "intentionally" makes
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it clear the offence is not one of strict liability. This proposed
amendment is consistent with similar amendments made to the
Commonwealth Act.
Proposed section 18(4) specifies the penalty for contravention of
section 18. The existing maximum penalty for this offence is
imprisonment for six months or a penalty of 10 penalty units
($1000). The new maximum penalty upon conviction will be
level 6 imprisonment (5 years) or 200 penalty units ($20 000).
This penalty is consistent with the penalty for the equivalent
offence under the Commonwealth Act.
Proposed section 18(5) provides for an offence under section 18
to be heard and determined summarily where the court is
satisfied it is proper to do so and the prosecutor and defendant
consent. This is intended to improve the efficiency of the State
Act by allowing the Magistrates' Court to determine matters
under section 18 in addition to the County Court.
Proposed section 18(6) provides that section 54 of the
Magistrates' Court Act 1989 applies to proceedings in a court
of summary jurisdiction under section 18 as if the references in
section 54 of that Act to the provisions of section 53(1) of that
Act were references to section 18. Section 53(1) of the
Magistrates' Court Act 1989 provides for the summary hearing
and determination of certain indictable offences and section 54
of that Act sets out procedures for indictable offences triable
summarily under section 53(1). The effect of proposed section
18(6) is that the procedures for indictable offences triable
summarily in section 54 of the Magistrates' Court Act 1989
will apply to a summary hearing of a charge of an offence
against section 18 in the same way as they apply to a summary
hearing under section 53(1) of that Act.
Proposed section 18(7) sets out the applicable penalty for a
matter under section 18 dealt with summarily. The maximum
penalty upon conviction is level 8 imprisonment (12 months) or a
fine of 20 penalty units ($2000). This penalty is consistent with
the penalty under the equivalent Commonwealth provision.
Proposed section 18(8) provides that sections 19(3) (which
allows a legal practitioner to refuse to provide information to the
Authority on the ground of legal professional privilege), sections
19(4) and 19(5) (which deal with self-incrimination), section
19(6) (which creates offences under section 19) and section
19(10) (which makes it clear that section 19(3) does not affect
the law relating to legal professional privilege) apply in relation
to a person who is required to produce a document or thing
pursuant to a section 18 notice in the same manner as they apply
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in relation to a person who is required to produce a document or
thing at a hearing.
Clause 13 substitutes section 18B(2)(e) with a new provision that re-enacts
section 18B(2)(e)(ii). The purpose of this provision is to remove
a defence of legal duty that is available to a legal practitioner in
relation to offences concerning the disclosure of information
about summonses and notices. Presently, section 18B(2)(e)(i)
enables a legal practitioner to disclose the existence of a
summons or notice to produce that contains a notation prohibiting
disclosure, if the disclosure is for the purpose of complying with
a legal duty of disclosure arising from his or her professional
relationship with a client. As the meaning of "legal duty" is
uncertain, the meaning and application of this provision is
uncertain. The proposed amendment does not affect the law
relating to legal professional privilege. This amendment is
consistent with an equivalent amendment made to the
Commonwealth Act which partially implemented
recommendation 9 from the 3rd evaluation of the Authority by
the PJC-NCA.
Clause 13(2) amends the definition of "official matter" in section
18B(7) as a consequence of the proposed amendments in relation
to hearing officers (see clauses 8 and 10).
Clause 14 makes a number of amendments to the provisions in section 19 in
relation to the failure of a witness to attend and answer questions.
Clause 14(1)(a), together with clause 14(1)(c), extends the
operation of section 19(1) to apply to hearing officers and
hearings before hearing officers in the same manner as it applies
to hearings before the Authority (see clauses 8 and 10 in relation
to the appointment of, and hearings held by, hearing officers).
Clause 14(1)(b) removes the defence of reasonable excuse from
section 19(1) for a person who fails to comply with a summons
to attend a hearing. This proposed amendment is related to those
proposed by clauses 12(3) and 14(2)(b) which remove the
defence of reasonable excuse from sections 18 and 19(2)
respectively. Similarly to the amendments proposed by clauses
12(3) and 14(2)(b), the defences available at common law for
offences generally, for example duress, will apply to an offence
of non-compliance with section 19(1).
Clause 14(2)(a), together with clause 14(2)(c), extends the
operation of section 19(2) to apply to hearing officers and
hearings before hearing officers in the same manner as it applies
9
to hearings before the Authority (see clauses 8 and 10 in relation
to the appointment of, and hearings held by, hearing officers).
Further, the inclusion of "intentionally" makes it clear the
offence is not one of strict liability. Clause 14(2)(c) extends the
operation of section 19(2) to hearing officers.
Clause 14(2)(b) removes the defence of reasonable excuse from
section 19(2) for a person who fails to take an oath or
affirmation, answer a question or produce a document or thing
the person was required by a summons to produce.
This proposed amendment is related to those proposed by clauses
12(3) and 14(1)(b) which remove the defence of reasonable
excuse from sections 18 and 19(1) respectively. Similarly to the
amendments proposed by clauses 12(3) and 14(1)(b), the
defences available at common law for offences generally, for
example duress, will apply to an offence of non-compliance with
section 19(2). Further, the inclusion of "intentionally" makes it
clear that the offence is not one of strict liability.
Clause 14(2)(c) extends the operation of section 19(2) to hearing
officers.
Clause 14(3) extends the operation of section 19(3) to apply to
hearing officers and hearings before hearing officers in the same
manner as it applies to hearings before the Authority (see clauses
8 and 10 in relation to the appointment of, and hearings held by,
hearing officers).
Clause 14(4) makes a number of amendments in relation to self-
incrimination, the penalty for non-compliance with section 19
and legal professional privilege. The proposed amendments are
related to similar proposed amendments to section 18 (see
clause 12(3)).
Proposed sections 19(4) and 19(5) set out new provisions dealing
with the privilege against self-incrimination which reflect similar
amendments made to the Commonwealth Act. Presently, 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 it is a
valid claim.
· If it is a valid claim, 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
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Attorney-General (or authorised person) (as applicable)
gives the person an undertaking in writing that any
answer, document or thing, or anything derived from the
answer, document or thing, will not be used in evidence
against the person in any later proceedings for an
offence (subject to the exception 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
and it is an offence for the person to fail to do so.
The general effect of the proposed amendments is that 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 and it is an offence for the person to
fail to do so.
· However, the answer or document or thing is not
admissible in evidence against a person in any later
criminal proceedings or a proceeding for the imposition
of a penalty (subject to the existing exception in relation
to false evidence) without the need for an undertaking.
Proposed section 19(5) contains a use immunity in relation to
self-incriminating material which applies in the circumstances
set out in proposed section 19(4). Section 19(4) provides that the
use immunity in proposed section 19(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 business
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, document or thing might tend
to incriminate the person or make the person liable to a penalty.
Where the circumstances set out in proposed section 19(4) exist,
the effect of proposed section 19(5) is that the answer, document
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or thing cannot be used as evidence against the person, except in
proceedings in relation to the falsity of evidence given by the
person. Unlike the present position, under section 19(5) the
derivative use of any evidence from the answer, document or
thing may be used against the person. The proposed
amendments in relation to the privilege against self-incrimination
are consistent with similar amendments to the Commonwealth
Act.
Proposed section 19(6) preserves the existing offence to
contravene section 19(1), 19(2) or 19(3), but provides for an
increased penalty. This amendment is related to the proposed
amendments in clause 12(3) (proposed section 18(4)) and clause
19 (proposed section 25(1)). The existing maximum penalty for
this offence is imprisonment for six months or a penalty of
10 penalty units ($1000). The new maximum penalty will be
level 6 imprisonment (5 years) or 200 penalty units ($20 000).
This penalty is consistent with the penalty for the equivalent
offence under the Commonwealth Act.
Proposed section 19(7) provides for an offence under section 19
to be heard and determined summarily where the court is
satisfied it is proper to do so and the prosecutor and defendant
consent. This is intended to improve the efficiency of the State
Act by allowing the Magistrates' Court to determine matters
under section 18 in addition to the County Court.
Proposed section 19(8) provides that section 54 of the
Magistrates' Court Act 1989 applies to proceedings in a court
of summary jurisdiction under section 19 as if the references in
section 54 of that Act to the provisions of section 53(1) of that
Act were references to section 19. Section 53(1) of the
Magistrates' Court Act 1989 provides for the summary hearing
and determination of certain indictable offences and section 54
of that Act sets out procedures for indictable offences triable
summarily under section 53(1). The effect of proposed section
19(8) is that the procedures for indictable offences triable
summarily in section 54 of the Magistrates' Court Act 1989
apply to a summary hearing of a charge of an offence against
section 19 in the same way as they apply to a summary hearing
under section 53(1) of that Act.
Proposed section 19(9) sets out the applicable penalty for a
matter under section 19 dealt with summarily. The maximum
penalty upon conviction is level 8 imprisonment (12 months) or a
fine of 20 penalty units ($2000). This penalty is consistent with
the penalty under the equivalent Commonwealth provision.
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Proposed section 19(10) clarifies that section 19(3) does not
affect the law relating to legal professional privilege.
This means that a legal practitioner who is required to provide
certain information to the Authority that would disclose
privileged information may refuse to provide that information
unless the person to whom the privilege applies consents to its
disclosure. This amendment is consistent with an equivalent
amendment made to the Commonwealth Act to address
Recommendation 9 from the 3rd evaluation of the Authority by
the PJC-NCA.
Clause 15 Clause 15(1) extends the operation of section 20(1) to apply to
hearing officers and hearings before hearing officers in the same
manner as it applies to hearings before the Authority (see clauses
8 and 10 in relation to the appointment of, and hearings held by,
hearing officers).
Clause 15(2) inserts a new section 20(2A) into section 20 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. This amendment to the arrest
warrant provisions complements the proposed amendment to the
search warrant provisions in clause 6(5) (proposed section
12(6A)) and is consistent with an amendment made to the
equivalent Commonwealth provision.
Clause 15(3) extends the operation of section 20(3) to apply to
hearing officers and hearings before hearing officers in the same
manner as it applies to hearings before the Authority (see clauses
8 and 10 in relation to the appointment of, and hearings held by,
hearing officers).
Clause 16 repeals section 21 as a consequence of the removal of the defence
of reasonable excuse under the State Act and related amendments
to the Commonwealth Act. Presently, section 21(1) applies
where a person claims that he or she is entitled to refuse to
produce a document or answer a question and requires the
Authority to determine whether the claim is justified. Sections
21(6) and 21(12) contain provisions which prevent a prosecution
being commenced against a person for a refusal to produce a
document or answer a question until the person has had an
opportunity to make and have determined an application for
review by the Federal Court under the Commonwealth Act.
In this regard, the Commonwealth Act previously contained a
regime for a person to apply to the Federal Court for a review of
certain decisions of the Authority that a person did not have a
13
reasonable excuse for refusing to answer a question or produce
certain documents. However, that regime was repealed as a
consequence of the removal of the defence of reasonable excuse
in the Commonwealth Act as the provisions enabling a review of
a decision by the Authority as to whether a person's claim was
justified no longer had a role under that Act. As the defence of
reasonable excuse will no longer be available under the proposed
amendments (see clauses 12(3), 14(1)(b) and 14(2)(b)) and the
Commonwealth regime for applications to the Federal Court has
been repealed, section 21 will be redundant and should be
repealed.
Clause 17 extends the operation of section 23(1) to apply to hearing officers
and hearings before hearing officers in the same manner as it
applies to hearings before the Authority (see clauses 8 and 10 in
relation to the appointment of, and hearings held by, hearing
officers).
Clause 18 extends the operation of section 24 to apply to hearing officers
and hearings before hearing officers in the same manner as it
applies to hearings before the Authority (see clauses 8 and 10 in
relation to the appointment of, and hearings held by, hearing
officers).
Clause 19 extends the operation of the offences in section 25 to apply to
hearing officers and hearings before hearing officers in the same
way it applies to the Authority (see clauses 8 and 10 in relation to
the appointment of, and hearings held by, hearing officers).
Clause 19 also increases the penalties for the offences in
section 25. These amendments in relation to increased penalties
are related to those contained in clauses 12(3) (new section
18(4)) and 14(4) (new section 19(6)).
Clause 19(1) extends the operation of section 25(1) to apply to
hearing officers and hearings before hearing officers in the same
manner as it applies to hearings before the Authority.
Clause 19(1) also increases the maximum penalty for
contravention of section 25(1) from one year or 20 penalty units
($2000) to level 6 imprisonment (5 years) or 200 penalty units
($20 000). This penalty is consistent with the penalty for the
equivalent offence under the Commonwealth Act.
Clause 19(2) repeals section 25(2), which provides that an
offence under section 25(1) is punishable on summary
conviction. This provision will be redundant as the
14
offence under section 25(1) will be an indictable offence.
This amendment is related to the amendment in clause 19(9).
Clauses 19(3) to 19(8) inclusive extend the operation of sections
25(3) to 25(8) inclusive to apply to hearing officers and hearings
before hearing officers in the same manner as they apply to
hearings before the Authority. The maximum penalty for each of
these offences is increased to level 6 imprisonment (5 years) or
200 penalty units ($20 000) so these penalties are consistent with
that provided for by clause 19(1) (new section 25(1)).
Clause 19(9) amends section 25(10) to make it clear that the
offence under section 25(1) will now be an indictable offence
rather than a summary offence. This amendment is related to the
amendment in clause 19(2).
Clause 19(10) amends section 25(13) to provide that the
maximum penalty that can be imposed for an offence against
section 25(1), or 25(3) to 25(8) inclusive, when dealt with
summarily is 20 penalty units ($2000) or level 8 imprisonment
(imprisonment for 1 year).
Clause 20 replaces references to Chairperson with references to Chair in
sections 27(1) and 27(3). This amendment is necessary to ensure
consistency with the Commonwealth Act following amendments
to that Act which replaced the term Chairperson with the term
Chair.
Clause 21 Clause 21 extends the operation of section 29, which deals with
the protection of members, legal practitioners and witnesses, to
apply to hearing officers and hearings before hearing officers in
the same manner as it applies to hearings before the Authority
(see clauses 8 and 10 in relation to the appointment of, and
hearings held by, hearing officers).
Clause 22 Clause 22 extends the operation of section 31, which deals with
secrecy in respect of the performance of duties under the State
Act, to apply to hearing officers and hearings before hearing
officers in the same manner as it applies to hearings before the
Authority (see clauses 8 and 10 in relation to the appointment of,
and hearings held by, hearing officers).
Clause 23 inserts transitional provisions as a consequence of the repeal of
section 21 (see clause 16). Proposed section 32A provides that
section 21 will continue to apply in relation to relevant claims
made before the repeal of section 21 to which the Federal Court
review regime in the Commonwealth Act continued to apply.
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This means that the repeal of section 21 will only affect claims
made after the commencement of clause 16.
PART 3--CONSEQUENTIAL AMENDMENTS
Clause 24 makes amendments to the Surveillance Devices Act 1999 to
replace references to chairperson in that Act with references to
Chair as a consequence of amendments to the Commonwealth
Act that replaced the term Chairperson in that Act with the term
Chair. This amendment is related to the amendment in clause 20.
Clause 25 makes amendments to the Witness Protection Act 1991 to
replace references to Chairman in that Act with references to
Chair as a consequence of amendments to the Commonwealth
Act that replaced the term Chairperson in that Act with the term
Chair. This amendment is related to the amendment in clause 20.
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