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CRIMES LEGISLATION AMENDMENT BILL 2010
- Parl No.
- Question No.
Ludwig, Sen Joe
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- LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES) BILL 2010
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Wednesday, 29 September 2010
Senator LUDWIG (Minister for Agriculture, Fisheries and Forestry) (3:37 PM) —I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
The speech read as follows—
The bill strengthens law enforcement agencies’ powers to gather, examine and use evidence to investigate and prevent the commission of criminal offences. It builds on measures in the two Serious and Organised Crime Acts passed by Parliament earlier this year. Before I outline the specific measures in the Bill, let me put these legislative changes in context.
The Gillard Government is taking concerted action to detect, disrupt and deter organised crime. Organised crime costs the Australian community an estimated $15 billion each year. As was recognised in the Prime Minister’s first National Security Statement, it is also a significant national security threat.
The Government developed the first Organised Crime Strategic Framework to ensure law enforcement and intelligence agencies work better together to combat organised crime. The Framework recognised that we must ensure that our law enforcement agencies have the powers they need to tackle the flexible, evolving and resilient organised criminal networks operating across state, territory and national borders.
The Bill enhances the powers available to the Australian Federal Police. It also provides the Australian Crime Commission Chief Executive Officer with powers, similar to those of the Australian Federal Police Commissioner, to deal appropriately with staff who engage in serious misconduct and corruption.
ACC Act Amendments
Given the powers that ACC staff are able to exercise and the information that they have access to, it is important that this agency is able to effectively deal with any ACC staff member who engages in serious misconduct and corruption.
This Bill will amend the ACC Act to provide the ACC CEO with similar powers that the AFP Commissioner has to deal with police who engage in serious misconduct and corruption.
The proposed changes will combat instances where there has been a serious abuse of power, a serious dereliction of duty, or any other seriously reprehensible act by a staff member of the Australian Crime Commission. The changes are not designed to replace the usual public service processes for dealing with misconduct, but are only to be utilised in exceptional circumstances where the normal processes are not appropriate given the serious nature of the misconduct or corruption.
This will ensure the ACC CEO is able to protect the reputation of the organisation and to properly deal with staff who threaten the ability of the ACC to carry out its key law enforcement functions.
The Bill will require the ACC CEO to report to the Minister and the ACC Board each time the new power is used. This will ensure that the Minister and the Board have an appropriate level of oversight of the use of the power by the ACC.
The making of the declaration will be a reviewable decision under the Administrative Decisions (Judicial Review) Act 1977, to ensure the correct use of the power.
The Bill will also allow the ACC to use already lawfully intercepted telecommunications information in investigating members of staff alleged to have engaged in misconduct or corrupt behaviour. This also mirrors powers currently available to the AFP.
Telecommunications Interception warrants will still only be available for the investigation of a serious offence, which is generally an offence that carries a penalty of at least seven years’ imprisonment. The amendments will only allow information already lawfully obtained in the course of investigating a serious offence to be used to investigate the misconduct of a member of the staff of the ACC if it is also relevant for that purpose.
The Bill requires the Government to review these new provisions after two years of operation to ensure they have operated as the Government intended, to allow the CEO of the ACC to deal appropriately with the most serious cases of misconduct and corruption.
The Bill will also amend the ACC Act to allow for the appointment of part time examiners, consistent with the Organised Crime Strategic Framework goal of ensuring law enforcement agencies are appropriately equipped to carry out their tasks.
The ACC currently has four full time examiners. However, the need for an examiner can fluctuate depending on the status of a particular investigation or operation. As a result, the need for examiners cannot be estimated with any certainty.
The appointment of both full time and part time examiners will allow for greater flexibility in the appointment and utilisation of examiners and ensure the ACC can approach examinations in a more strategic way. The amendments will also ensure broader geographic cover of examiners as part time examiners could be appointed in different regions of Australia.
The amendments also include appropriate safeguards to guard against any conflicts that may arise between a person’s role as an examiner and other employment they may engage in.
Crimes Act amendments
The Bill will also improve the ability of law enforcement officials to gather and examine evidence in light of rapid technological advancements. The Bill includes a number of amendments to address operational impediments identified by the Australian Federal Police.
Searches of persons under warrant
The Commonwealth has comprehensive provisions in place to enable effective and efficient searches of electronic equipment found during searches of premises such as a house or office under warrant.
To address the increasing availability and use of portable electronic and data storage devices such as laptop computers, mobile phones and USB drives, the Bill includes amendments to help police deal effectively with these items if they are located during a search of a person under a warrant.
A key improvement will be the ability to seek an order from a magistrate requiring a person to assist with accessing data from equipment moved or seized under a warrant in relation to a person. For example, if police were investigating online child pornography, they could apply for an order requiring a suspect to provide their password or assist with transforming encrypted data into an intelligible form. Data may only be accessed to determine whether it constitutes evidential material.
The Bill will also ensure that a seized item or document produced under the Crimes Act does not need to be returned if it would be likely to be used in the commission of a terrorist act, a terrorism offence or a serious offence.
The Bill will empower magistrates to make orders preventing the return of such items or documents in limited circumstances. Such orders can currently only be made for items seized under terrorism related stop and search powers in the Crimes Act. These amendments will ensure the Crimes Act deals consistently with all items seized and documents produced.
The Bill also improves safeguards relating to orders in relation to seized things and documents produced.
Before applying for an order, an officer will be required to take reasonable steps to discover who has an interest in the thing or document and notify them of the proposed application. The magistrate must then allow a person with an interest to appear and be heard in determining the application.
Fingerprint and photograph amendments
The Bill will also amend the Crimes Act to provide the AFP with a standing power to take fingerprints and photographs of persons in lawful custody. This will bring the Commonwealth into line with the majority of the States and Territories by allowing the AFP to take fingerprints and photographs as part of the process of dealing with an arrested person.
The amendments will provide police with an efficient and reliable way of confirming the identity of suspects to assist in the management of suspects and offenders. It will also improve processes for establishing and maintaining records of arrested persons, which will in turn ensure that these records are admissible in court proceedings.
The amendments will only apply where the person has been arrested in relation to an offence that is punishable by a term of imprisonment of 12 months or more. This will ensure that fingerprints or photographs can only be taken in relation to offences which are generally considered to be serious or indictable and not in relation to minor offences.
Existing protections in the Crimes Act will continue to cover arrested persons, including provisions that ensure that the taking of identification material is properly authorised and that any material taken is destroyed if the person is not charged with an offence.
These amendments will not apply to other forms of identification material such as DNA.
AFP Special Payments
The Bill will also amend the Australian Federal Police Act 1979 to allow the AFP Commissioner to authorise a payment in special circumstances that arise out of, or relate to, a person’s engagement as an AFP employee. For example, where an AFP member is injured in the course of work while deployed overseas, the Commissioner would be able to authorise the payment of costs involved in the spouse travelling overseas. The Commissioner would also authorise a payment to the family of an AFP member who dies in the course of work.
This amendment will bring the AFP into line with the Commonwealth Public Service, and would avoid the delays presently faced by AFP employees when applying for payments.
Payments under the new AFP provision would be subject to the same conditions and limits as those authorised under the Public Service Act provision. Specifically, the payments would be limited to $100,000, and would be subject to any conditions attached by the AFP Commissioner.
The reforms in this Bill reflect the Government’s continuing commitment to strengthening our agencies’ capabilities to fight serious and organised crime.
This Bill builds on a range of measures the Government has already implemented to prevent, disrupt and investigate organised criminal activity.