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Tuesday, 5 June 1984
Page: 2548


Senator GARETH EVANS (Attorney-General)(9.33) —I seek leave to move, in a large batch, the consequential amendments which are recorded on the issue sheet. In doing so I indicate that I also seek leave to incorporate immediately after each such amendment an excerpt from the explanatory memorandum explaining what the force of each amendment is. I have circulated such a document in certain parts of the chamber. I make it available to the Chair. I have sought leave for these to be incorporated in Hansard so that any poor benighted reader trying to follow this debate can appreciate what each of these consequential amendments is about.

Leave granted.


Senator GARETH EVANS —I move:

(3) Page 3, clause 4, after the definition of 'relevant offence', insert the following definition:

' ''special investigation'' means an investigation that the Authority is conducting in the performance of its special functions;'.

Explanatory note: 3. Defines a ''special investigation'' by the Authority. Rec ( 1)

(13) Page 10, clause 17, lines 21 to 25, leave out the clause, insert the following clauses:

Incidental powers of Authority '17. The Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its general functions or of its special functions, and any specific powers conferred on the Authority by this Act shall not be taken to limit by implication the generality of this section.

Authority may require information from certain Commonwealth agencies '17A. (1) A member or acting member may, by notice in writing served on the principal officer of an agency, or on a person who is a member, officer or employee of an agency, require that principal officer, or that person, as the case may be, to furnish to the Authority, by writing signed by that principal officer, or by that person, within the time and in the manner specified in the notice, information so specified, being information that-

(a) was acquired by the first-mentioned agency in the ordinary course of performing its functions, or was acquired by that person in that person's capacity as such a member, officer or employee; and

(b) is relevant to a prescribed investigation.

'(2) A member or acting member may, by notice in writing served on the principal officer of an agency, require that principal officer-

(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member or acting member of the Authority or a member of the staff of the Authority; and

(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that relates to the performance by the agency of its functions and is relevant to a prescribed investigation.

'(3) If a person who is required, by a notice served on him under this section, to furnish information, or produce a document or thing, to a person specified in the notice (in this sub-section referred to as the 'specified person') claims to the specified person that he is entitled to refuse to furnish the information or produce the document or thing, the specified person shall-

(a) if he is satisfied that the claim is justified-inform the claimant that the requirement will not be insisted upon; or

(b) in any other case-inform the claimant that he is not so satisfied and, if the document or thing is not produced forthwith, refer the claim to the Authority for decision under section 25A.

'(4) Subject to a prescribed provision, but notwithstanding any other provision of a law of the Commonwealth that prohibits the divulging or communicating of information or the production of a document or thing, a person shall not-

(a) without reasonable excuse, fail to comply with a notice served on the person under sub-section (1) or (2); or

(b) in purported compliance with a notice served on the person under sub- section (1), knowingly furnish information that is false or misleading.

Penalty: $1,000 or imprisonment for 6 months.

'(5) In this section-

''agency'' has the same meaning as that expression has in the Freedom of Information Act 1982;

''prescribed investigation'' means an investigation that the Authority, in the performance of any of the functions referred to in paragraphs 10 (1) (b) and (c) and in sub-section 10 (2), is conducting or co-ordinating;

''prescribed provisions'' means a provision of a law of the Commonwealth that is specified in the Schedule;

''principal officer'' has the same meaning as that expression has in the Freedom of Information Act 1982.

'(6) The regulations may amend the Schedule by inserting in the Schedule, or by omitting from the Schedule, a reference to a provision of a law of the Commonwealth.

Explanatory note: 13. This clarifies the incidental powers of the Authority. Rec (1, 5)

It also inserts new Clause 17A, a special provision giving the Authority power to require information from Commonwealth agencies, (subject to prescribed exceptions including Taxation information). This is subject to the defence of reasonable excuse, which encompasses claims of Public Interest Privilege, Privilege against Self-Incrimination and Legal Professional Privilege. Rec. (9, 10)

New Clause 17B provides for the Commonwealth Minister to make arrangements with State Ministers for the Authority to receive information and intelligence as to relevant criminal activities, and for the Authority to make like arrangements with private bodies or persons. Rec (12)

(14) Page 10, clause 18, lines 27 to 38, leave out sub-clause (1), insert the following sub-clause:

'(1) A member of the Authority may apply to a Judge of a prescribed court for the issue of a warrant under sub-section (2) if-

(a) the Authority has reasonable grounds for suspecting that, on a particular day (in this section referred to as the ''relevant day''), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing or things of a particular kind connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation (in this section referred to as ''things of the relevant kind''); and

(b) the Authority believes on reasonable grounds that, if a summons were issued for the production of the thing or things, the thing or things might be concealed, lost, multilated or destroyed.'.

Explanatory note: 14.-This amends Clause 18 relating to judicial search warrants so as to permit seizure of things of the relevant kind which are reasonably suspected will be upon premises at some definite day within the one-month life of the warrant provided for in the existing Bill. Rec (30a)

(15) Page 11, clause 18, lines 25 to 28, leave out paragraph (a), insert the following paragraph:

'(a) include a statement of the purposes for which the warrant is issued, which shall include a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a special investigation and with which the things of the relevant kind are connected;'.

Explanatory note: 15.-This is consequential upon other Amendments distinguishing 'special' functions, in respect of which coercive powers may apply. This amendment merely adds reference to 'special investigation' to the existing requirement that the purpose of the search warrant be stated. Rec (1)

(16) Page 11, clause 18, lines 34 to 43, leave out sub-clause (6), insert the following sub-clauses:

'(5A) A warrant issued under this section may be executed, in accordance with its terms, at any time during the period commencing on the relevant day and ending on the date specified in the warrant as the date upon which the warrant ceases to have effect.

'(6) Where a thing is seized pursuant to a warrant issued under this section-

(a) the Authority may retain the thing if, and for so long as, retention of the thing by the Authority is reasonably necessary for the purposes of a special investigation to which the thing is relevant; and

(b) if the retention of the thing by the Authority is not, or ceases to be, reasonably necessary for such purposes, the Authority shall cause the thing to be delivered to-

(i) if the thing may be used in evidence in proceedings of a kind referred to in sub-section (9)-the authority or person responsible for taking the proceedings; or

(ii) if sub-paragraph (i) does not apply-the person who appears to the Authority to be entitled to the possession of the thing, unless the Authority has furnished the thing to the Attorney-General of the Commonwealth or of a State, or to a law enforcement agency, in accordance with paragraph 10A (1) (a).

'(6A) Nothing in this section affects a right of a person to apply for, or the power of a person to issue, a warrant, being a right or power existing otherwise than by virtue of this section.'.

Explanatory note: 16.-This makes it clear that a search warrant may be executed at any time during its maximum one-month life. Rec (30a)

The Authority is empowered to retain things seized under warrant for a reasonable time necessary for the special investigation to which it is relevant, or may deliver it to the relevant Attorney-General or law enforcement agency under new Clause 10A (1) (a) (Amendment 9). Rec (30)

Any powers as to warrants under the general law are saved.

(17) Page 12, clause 18, at the end of the clause, insert the following sub- clause:

'(9) Without limiting the generality of paragraph (1) (a), a reference in this section to a thing connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation, includes a reference to a thing that may be used in evidence in proceedings for the taking, by or on behalf of the Crown in right of the Commonwealth, of a State or of a Territory, of civil remedies in respect of a matter connected with, or arising out of, an offence to which the relevant criminal activity relates.'.

Explanatory note: 17.-Taken with Amendment 16, above, this permits the Authority to deliver things seized under judicial search warrants to the authority or person responsible for taking civil remedies on behalf of the Crown connected with or arising out of an offence relating to relevant criminal activity. Rec ( 30b)

(18) Page 14, clause 21, line 12, leave out 'an investigation under this Act', insert 'a special investigation'.

Explanatory note: 18.-This confines hearings to the level of 'special investigation', and is thus consequential. Rec (1)

(20) Page 15, clause 21, lines 16 and 17, leave out 'an investigation under this Act', insert 'a special investigation'.

Explanatory note: 20.-This is consequential as to 'special investigation'. Rec ( 1)

(22) Page 15, clause 21, lines 26, insert 'special' before 'investigation'.

Explanatory note: 22.-This is consequential as to 'special investigation'. Rec ( 1)

(30) Page 17, clause 24, lines 17 to 20, leave out sub-clause (6), insert the following sub-clause:

'(6) The powers conferred by this section are not exercisable except for the purposes of a special investigation.'.

Explanatory note: 30.-This merely re-writes sub-clause 24 (6) to fit in with the present language of the Bill in relation to a 'special investigation'. Rec (1)

(31) Page 17, after clause 24, insert the following new clause:

Power to obtain documents '24A. (1) A member or acting member may, by notice in writing served on a person, require the person-

(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member or acting member of the authority or a member of the staff of the Authority; and

(b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special investigation.

'(2) A notice may be issued under this section in relation to a special investigation whether or not a hearing before the Authority is being held for the purposes of the investigation.

'(3) A person shall not, without reasonable excuse, refuse or fail to comply with a notice served on him under this section.

Penalty: $1,000 or imprisonment for 6 months.

'(4) Sub-sections 25 (3) to (8B), inclusive, apply in relation to a person who is required to produce a document or thing by a notice served on him under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at a hearing before the Authority and so apply as if a reference in those sub-sections to sub-section 25 (2) were a reference to sub-section (2) of this section.

'(5) If a person who is required to produce a document or thing by a notice served on him under this section claims to the person (in this sub-section referred to as the 'relevant person') to whom he is required to produce it that he is entitled to refuse to produce the document or thing, the relevant person shall-

(a) if he is satisfied that the claim is justified-inform the claimant that the requirement will not be insisted upon; or

(b) in any other case-inform the claimant that he is not so satisfied and, if the document or thing is not produced forthwith, refer the claim to the Authority for decision under section 25A.'.

Explanatory note: 31.-This inserts a new Clause giving a member of the Authority power, in a special investigation (whether or not there is a hearing), to issue a notice requiring a person to attend before a member of the Authority or one of its staff to produce specified documents or things relevant to the investigation . This is subject to reasonable excuse, including self-incrimination, and where reasonable excuse is claimed, the officer of the authority is required to refer the claim for decision by the Authority, from which there is a review by the Federal Court under new Clause 25A (Amendment 43, below). Rec (27)

(50) Page 27, clause 46, line 14, insert 'special' before 'investigation'.

Explanatory note: 50.-This is consequent upon the distinction between general and special functions. Rec (1)

(51) Page 27, clause 46, after sub-clause (6) insert the following sub-clause:

'(6A) The Authority may include in a report furnished under sub-section (5) a recommendation that the report be laid before each House of the Parliament.'.

All of the amendments are variations on the theme of clarifying the difference between ordinary and special levels of investigations and the effect of which is explained in the explanatory memorandum excerpts now incorporated in Hansard after each item.