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Crimes Legislation Amendment (Powers and Offences) Bill 2012

Schedule 3 Amendments relating to returnable items for the ACC

   

Australian Crime Commission Act 2002

1  Subsection 4(1)

Insert:

Commonwealth officer :

                     (a)   has the meaning given by subsection 3(1) of the Crimes Act 1914 ; and

                     (b)  includes members of the staff of the ACC.

2  Subsection 4(1)

Insert:

returnable item means:

                     (a)  a thing seized under a warrant issued under section 22; or

                     (b)  a thing, or a document, produced:

                              (i)  under a notice given under section 29; or

                             (ii)  during an examination conducted under Division 2 of Part II.

3  Subsection 4(1) (paragraph (d) of the definition of serious and organised crime )

Omit “within the meaning of the Proceeds of Crime Act 2002 ”.

4  Subsection 4(1) (subparagraph (da)(ii) of the definition of serious and organised crime )

Omit “within the meaning of the Proceeds of Crime Act 2002 ”.

5  Subsection 4(1)

Insert:

serious offence :

                     (a)  in the definition of serious and organised crime —has the meaning given by the Proceeds of Crime Act 2002 ; and

                     (b)  otherwise—has the meaning given by subsection 3C(1) of the Crimes Act 1914 .

6  Subsection 4(1)

Insert:

State or Territory law enforcement agency has the meaning given by subsection 3ZQU(7) of the Crimes Act 1914 .

7  Subsection 4(1)

Insert:

terrorism offence has the same meaning as in subsection 3(1) of the Crimes Act 1914 .

8  Subsection 4(1)

Insert:

terrorist act has the same meaning as in subsection 100.1(1) of the Criminal Code .

9  Subsections 22(8) and (9)

Repeal the subsections.

10  At the end of Division 1A of Part II

Add:

24AA   Use of and sharing returnable items

Use of returnable items by persons who are not members of the staff of the ACC

             (1)  The CEO may make a returnable item available to a constable, or Commonwealth officer, who is not a member of the staff of the ACC, to use for any or all of the following purposes if it is necessary to do so for that purpose:

                     (a)  a purpose referred to in subsection 3ZQU(1) of the Crimes Act 1914 ;

                     (b)  the performance of the functions of the ACC referred to in section 7A of this Act;

                     (c)  the performance of the functions of the Board referred to in section 7C of this Act.

             (2)  A constable or Commonwealth officer, who is not a member of the staff of the ACC, may use a returnable item for all or any of the purposes referred to in subsection (1) if it is necessary to do so for that purpose.

Use of returnable items by members of the staff of the ACC

             (3)  The head of the special ACC operation/investigation to which a returnable item relates may make the item available to another member of the staff of the ACC to use for the purpose of the performance of all or any of the functions referred to in section 7A or 7C.

             (4)  A member of the staff of the ACC may use a returnable item for the purpose of the performance of all or any of the functions referred to in section 7A or 7C.

Use of returnable items for State or Territory purposes

             (5)  The CEO may make a returnable item available to a constable or Commonwealth officer to use for any purpose for which the making available of the item is required or authorised by a law of a State or Territory.

             (6)  A constable or Commonwealth officer may use a returnable item for any other use that is required or authorised by or under a law of a State or a Territory.

Section does not limit any other law of the Commonwealth

             (7)  To avoid doubt, this section does not limit any other law of the Commonwealth that:

                     (a)  requires or authorises the use of a document or other thing; or

                     (b)  requires or authorises the making available (however described) of a document or other thing.

Sharing returnable item for use by State, Territory or foreign agency

             (8)  The CEO may make a returnable item available to:

                     (a)  a State or Territory law enforcement agency; or

                     (b)  an agency that has responsibility for:

                              (i)  law enforcement in a foreign country; or

                             (ii)  intelligence gathering for a foreign country; or

                            (iii)  the security of a foreign country;

to be used by that agency for a purpose mentioned in subsection (1), (5) or (6) and the purpose of any or all of the following (but not for any other purpose):

                     (c)  preventing, investigating or prosecuting an offence against a law of a State or Territory;

                     (d)  proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 );

                     (e)  proceedings for the forfeiture of the item under a law of a State or Territory;

                      (f)  deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs 3ZQU(1)(a) to (l) (inclusive) of the Crimes Act 1914 , subsection (5) or (6) of this section, or paragraph (c), (d) or (e) of this subsection.

Ministerial arrangements for sharing

             (9)  This section does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:

                     (a)  the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (6) and (8), of returnable items; and

                     (b)  the disposal by the agency of such items when they are no longer of use to that agency for those purposes.

Note:          This subsection does not empower the Minister to make such an arrangement.

24AB   When returnable items must be returned

             (1)  If the CEO is satisfied that a returnable item is not required (or is no longer required) for a purpose mentioned in section 24AA or for other judicial or administrative review proceedings, the CEO must take reasonable steps to return the item to:

                     (a)  the person from whom the item was seized, or the person who produced the item; or

                     (b)  the owner, if the person mentioned in paragraph (a) is not entitled to possess it.

             (2)  However, the CEO does not have to take those steps if:

                     (a)  either:

                              (i)  the returnable item may be retained because of an order under subsection 24AC(2), or any other order under that subsection has been made in relation to the item; or

                             (ii)  the CEO has applied for such an order and the application has not been determined; or

                     (b)  the returnable item may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or

                     (c)  the returnable item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

             (3)  To avoid doubt, if the returnable item is a document, the CEO is required to take reasonable steps to return the document only if the ACC took possession of that document.

24AC   Issuing officer may permit a returnable item to be retained, forfeited etc.

             (1)  An issuing officer may, on application by the CEO, make an order under subsection (2) in relation to a returnable item.

Preventing use in committing terrorist act, terrorism offence or serious offence

             (2)  The issuing officer may make any of the orders referred to in subsection (3) if the issuing officer is satisfied that there are reasonable grounds to suspect that, if the returnable item is returned to either of the following persons, the item is likely to be used by that person or another person in the commission of a terrorist act, a terrorism offence or a serious offence:

                     (a)  the owner of the item;

                     (b)  the person from whom the item was seized, or the person who produced the item.

             (3)  The orders are as follows:

                     (a)  an order that the item may be retained for the period specified in the order;

                     (b)  an order that the item is forfeited to the Commonwealth;

                     (c)  if the item is not a document—an order that:

                              (i)  the item be sold and the proceeds given to the owner of the item; or

                             (ii)  the item be sold in some other way;

                     (d)  an order that the item is to be destroyed or otherwise disposed of.

Item must be returned if issuing officer not satisfied

             (4)  The issuing officer must order that the returnable item be returned to the following person if the issuing officer is not satisfied as mentioned in subsection (2):

                     (a)  the person from whom the item was seized, or the person who produced the item;

                     (b)  if the person referred to in paragraph (a) is not entitled to possess the item—the owner of the item.

CEO to notify persons with an interest in returnable item

             (5)  Before making the application, the CEO must:

                     (a)  take reasonable steps to discover who has an interest in the returnable item; and

                     (b)  if it is practicable to do so, notify each person who the CEO believes to have such an interest of the proposed application.

Person with interest may appear and be heard

             (6)  The issuing officer must allow a person who has an interest in the returnable item to appear and be heard in determining the application.

Function conferred in personal capacity

             (7)  A function of making an order under this section is conferred on an issuing officer in a personal capacity and not as a court or a member of a court.

             (8)  An issuing officer performing a function of, or connected with, making an order under this section has the same protection and immunity as if he or she were performing that function as, or as a member of, a court (being the court of which the issuing officer is a member).

11  Application of this Schedule

The amendments made by this Schedule apply to any returnable item, whether seized or produced before or after this Schedule commences.