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Law Enforcement Integrity Commissioner Bill 2006

Part 2 Interpretation

   

5   Definitions

             (1)  In this Act:

ACC means the Australian Crime Commission.

ACLEI : see Australian Commission for Law Enforcement Integrity .

ACLEI corruption issue has the meaning given by section 8 .

AFP means the Australian Federal Police.

Assistant Integrity Commissioner means an Assistant Integrity Commissioner appointed under section 185.

assisting officer , in relation to a warrant for a person’s arrest or a search warrant, means:

                     (a)  a person who:

                              (i)  is an authorised officer or a member or special member of the AFP; and

                             (ii)  is assisting in executing the warrant; or

                     (b)  a person who:

                              (i)  is not an authorised officer; and

                             (ii)  is not a member or special member of the AFP; and

                             (ii)  has been authorised by the authorised officer who is executing the warrant to assist in executing the warrant.

Australian Commission for Law Enforcement Integrity or ACLEI means the Australian Commission for Law Enforcement Integrity established by section 195.

authorised officer means:

                     (a)  the Integrity Commissioner; or

                     (b)  a person authorised under section 140.

civil penalty proceeding means a proceeding for a civil penalty in relation to a contravention of a law of the Commonwealth or of a State or Territory.

civil penalty provision means a provision of a law of the Commonwealth or of a State or Territory in relation to a contravention of which a civil penalty may be imposed.

Commonwealth government agency means:

                     (a)  a Department of the Commonwealth; or

                     (b)  a body (whether incorporated or not) established for a public purpose by, or under, a law of the Commonwealth.

confiscation proceeding means a proceeding under:

                     (a)  the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 ; or

                     (b)  a corresponding law within the meaning of either of those Acts;

but does not include a criminal prosecution for an offence under either of those Acts or a corresponding law.

contravene a certificate issued under section 149 has the meaning given by subsection (4).

corrupt conduct : see engages in corrupt conduct .

corruption investigation means:

                     (a)  an investigation of a corruption issue under this Act; or

                     (b)  an investigation of an ACLEI corruption issue under this Act (including a special investigation).

corruption issue has the meaning given by section 7.

criminal proceeding means:

                     (a)  a prosecution for an offence against a law of the Commonwealth or of a State or Territory; or

                     (b)  a confiscation proceeding.

data has the same meaning as in Part IAA of the Crimes Act 1914 .

data held in a computer has the same meaning as in Part IAA of the Crimes Act 1914 .

data storage device has the same meaning as in Part IAA of the Crimes Act 1914 .

disciplinary proceeding :

                     (a)  means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and

                     (b)  includes action taken under Subdivision D of Division 5 of Part V of the Australian Federal Police Act 1979 .

eligible seizable item means anything that:

                     (a)  would present a danger to a person; or

                     (b)  could be used to assist a person to escape from lawful custody.

employee of a government agency has a meaning affected by subsection (5).

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to do an act.

engages in corrupt conduct has the meaning given by section 6.

evidential material means:

                     (a)  in relation to an investigation warrant—a thing that may be relevant to:

                              (i)  a corruption investigation; or

                             (ii)  a public inquiry; or

                     (b)  in relation to an offence warrant—a thing relevant to an offence against a law of the Commonwealth.

former NCA means the National Crime Authority established under section 7 of the former NCA Act.

former NCA Act means the National Crime Authority Act 1984 (as in force at any time before the commencement of Schedule 1 to the Australian Crime Commission Establishment Act 2002 ).

frisk search has the same meaning as in Part IAA of the Crimes Act 1914 .

government agency means:

                     (a)  a Department of the Commonwealth or of a State or Territory; or

                     (b)  a body (whether incorporated or not) established for a public purpose by or under a law of the Commonwealth or of a State or Territory.

head of a government agency means:

                     (a)  if the agency is the AFP—the Commissioner (within the meaning of the Australian Federal Police Act 1979 ); or

                     (b)  if the agency is the ACC—the CEO of the ACC (within the meaning of the Australian Crime Commission Act 2002 ); or

                     (c)  if the agency is a Commonwealth government agency that is prescribed for the purposes of paragraph (d) of the definition of law enforcement agency —the person holding the office in the agency that is prescribed by the regulations for the purposes of this definition; or

                     (d)  if the agency is another Commonwealth government agency:

                              (i)  in the case of a Department of the Commonwealth—the Secretary of the Department; or

                             (ii)  in the case of a body established for a public purpose—the person holding, or performing the duties of, the principal office in respect of the body; or

                     (e)  if the agency is a State or Territory government agency—the person holding, or performing the duties of, the principal office in respect of the agency.

integrity agency for a State or Territory means an agency that:

                     (a)  is established by the law of the State or Territory for purposes that include the purpose of investigating corruption in the police force of the State or Territory; and

                     (b)  is prescribed for the purposes of this definition.

Integrity Commissioner means the Integrity Commissioner appointed under section 175.

Inter-Governmental Committee means the Inter-Governmental Committee established by section 8 of the Australian Crime Commission Act 2002 .

investigation warrant means a warrant to search for a thing that may be relevant to:

                     (a)  a corruption investigation; or

                     (b)  a public inquiry.

issuing officer means:

                     (a)  for an investigation warrant:

                              (i)  a Judge of the Federal Court of Australia sitting in Chambers; or

                             (ii)  a Judge of a court of a State or Territory; or

                            (iii)  a Federal Magistrate; or

                     (b)  for an offence warrant—a magistrate.

law enforcement agency means:

                     (a)  the AFP; or

                     (b)  the ACC; or

                     (c)  the former NCA; or

                     (d)  any other Commonwealth government agency that:

                              (i)  has a law enforcement function; and

                             (ii)  is prescribed by the regulations for the purposes of this paragraph.

law enforcement function means any of the following functions:

                     (a)  investigating whether:

                              (i)  an offence has been committed against a law of the Commonwealth; or

                             (ii)  there has been a contravention of a law of the Commonwealth in relation to which civil penalty proceedings may be brought;

                     (b)  preparing the material necessary to prosecute a person for an offence against a law of the Commonwealth;

                     (c)  preparing the material necessary to bring civil penalty proceedings against a person for a contravention of a law of the Commonwealth;

                     (d)  collecting, maintaining, correlating, analysing, accessing or distributing information for the purpose of assisting the enforcement of laws of the Commonwealth;

                     (e)  assisting in carrying out a function referred to in paragraphs (a) to (d).

law enforcement secrecy provision means:

                     (a)  Part IV of the Financial Transaction Reports Act 1988 ; or

                     (b)  section 45 of the Surveillance Devices Act 2004 ; or

                     (c)  sections 63 and 133 of the Telecommunications (Interception) Act 1979 ; or

                     (d)  anything done under a provision referred to in paragraphs (a) to (c).

legal aid officer means:

                     (a)  a member, or member of staff, of an authority established by or under a law of a State or Territory for purposes that include providing legal assistance; or

                     (b)  a person to whom the Attorney-General has delegated his or her powers and functions under section 103.

legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory.

magistrate means a magistrate who is remunerated by salary or otherwise.

manage an investigation of a corruption issue by a law enforcement agency has the meaning given by section 61.

nominated contact of a law enforcement agency for an investigation of a corruption issue means:

                     (a)  a staff member of the agency nominated under section 60 as the nominated contact for the investigation; or

                     (b)  if a staff member is not nominated—the head of the agency.

occupier of premises means the person apparently in charge of the premises.

offence warrant means a warrant to search for a thing relevant to an offence against a law of the Commonwealth.

official matter means any of the following (whether past, present or contingent):

                     (a)  a corruption investigation;

                     (b)  a hearing held by the Integrity Commissioner or a special investigator in relation to a corruption investigation;

                     (c)  court proceedings.

ordinary search means a search of a person or of articles in the possession of a person that may include:

                     (a)  requiring the person to remove his or her overcoat, coat or jacket or any gloves, shoes or hat; and

                     (b)  an examination of those items.

oversee an investigation of a corruption issue by a law enforcement agency has the meaning given by section 62.

premises includes a place, vehicle, vessel and aircraft.

public inquiry means a public inquiry conducted by the Integrity Commissioner under Part 8.

refer , in relation to an allegation or information, has the meaning given by subsections (2) and (3).

responsible Minister for a Commonwealth government agency means:

                     (a)  if the agency is established or continued in existence by an Act—the Minister administering that Act; or

                     (b)  in any other case—the Minister having general responsibility for the activities of the agency.

search warrant means an investigation warrant, or an offence warrant, that is issued under section 109:

                     (a)  to search premises; or

                     (b)  to carry out an ordinary search, or frisk search, of a person.

secondee :

                     (a)  in relation to a law enforcement agency—has the meaning given by subsection 10(5); and

                     (b)  in relation to ACLEI—has the meaning given by subsection 11(2).

secrecy provision means:

                     (a)  a provision of a law of the Commonwealth that purports to prohibit; or

                     (b)  anything done, under a provision of a law of the Commonwealth, to prohibit;

the communication, divulging or publication of information, the production of, or the publication of the contents of, a document, or the production of a thing.

section 149 certified information means:

                     (a)  information about a matter specified in a certificate in force under section 149; or

                     (b)  information contained in a document specified in a certificate in force under section 149.

sensitive information means information the disclosure of which:

                     (a)  could prejudice:

                              (i)  the security, defence or international relations of Australia; or

                             (ii)  relations between the Commonwealth Government and the Government of a State or between the Government of a State and the Government of another State; or

                     (b)  would involve disclosing:

                              (i)  deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State; or

                             (ii)  deliberations or advice of the Federal Executive Council or the Executive Council of a State or the Northern Territory; or

                            (iii)  deliberations or decisions of the Australian Capital Territory Executive or of a committee of that Executive; or

                     (c)  could reveal, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to:

                              (i)  the enforcement of the criminal law of the Commonwealth, a State or Territory or a foreign country; or

                             (ii)  a corruption investigation; or

                            (iii)  a public inquiry under this Act; or

                     (d)  could endanger a person’s life or physical safety; or

                     (e)  could prejudice the protection of public safety; or

                      (f)  could prejudice the fair trial of a person or the impartial adjudication of a matter; or

                     (g)  could prejudice the proper enforcement of the law (including through corruption investigations); or

                     (h)  would involve disclosing information whose disclosure is prohibited (absolutely or subject to qualifications) by or under another law of the Commonwealth; or

                      (i)  would involve unreasonably disclosing a person’s personal affairs; or

                      (j)  would involve unreasonably disclosing confidential commercial information.

serious corruption means corrupt conduct engaged in by a staff member of a law enforcement agency that could result in the staff member being charged with an offence punishable, on conviction, by a term of imprisonment for 12 months or more.

significant corruption issue means:

                     (a)  a corruption issue that relates tocorrupt conduct that constitutes serious corruption or systemic corruption; or

                     (b)  a corruption issue that:

                              (i)  relates to a law enforcement agency; and

                             (ii)  is of a kind that the Integrity Commissioner and the head of the agency have agreed under paragraph 17(1)(a) to be a significant corruption issue in relation to staff members of the agency; or

                     (c)  a corruption issue of a kind that is prescribed by the regulations for the purposes of this paragraph.

special investigation means a special investigation of an ACLEI corruption issue conducted under Division 4 of Part 12.

special investigator means a person conducting a special investigation.

staff member :

                     (a)  in relation to a law enforcement agency—has the meaning given by subsections 10(1) to (5); and

                     (b)  in relation to ACLEI—has the meaning given by subsection 11(1).

State or Territory government agency means:

                     (a)  a Department of a State or Territory; or

                     (b)  a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.

strip search has the same meaning as in Part IAA of the Crimes Act 1914 .

systemic corruption means instances of corrupt conduct (which may or may not constitute serious corruption) that reveal a pattern of corrupt conduct in a law enforcement agency or in law enforcement agencies.

taxation secrecy provision means a secrecy provision that is a provision of a taxation law within the meaning of the Taxation Administration Act 1953 .

thing relevant to an indictable offence has the same meaning as in the Crimes Act 1914 .

             (2)  A reference in this Act to a person referring an allegation includes a reference to the person making the allegation.

             (3)  A reference in this Act to a person referring information includes a reference to the person giving information.

             (4)  For the purposes of this Act, a disclosure contravenes a certificate issued under section 149 if the disclosure would be contrary to the public interest according to the terms of the certificate.

             (5)  A reference in this Act to a person being an employee of a government agency includes a reference to a person being a member of a police force of a State or Territory.

6   Meaning of engages in corrupt conduct

Staff members of law enforcement agencies

             (1)  For the purpose of this Act, a staff member of a law enforcement agency engages in corrupt conduct if the staff member, while a staff member of the agency, engages in:

                     (a)  conduct that involves, or that is engaged in for the purpose of, the staff member abusing his or her office as a staff member of the agency; or

                     (b)  conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice; or

                     (c)  conduct that, having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind.

             (2)  If the law enforcement agency is one referred to in paragraph (d) of the definition of law enforcement agency , the staff member engages in corrupt conduct only if the conduct relates to the performance of a law enforcement function of the agency.

Staff members of ACLEI

             (3)  For the purpose of this Act, a staff member of ACLEI engages in corrupt conduct if the staff member, while a staff member of ACLEI, engages in:

                     (a)  conduct that involves, or that is engaged in for the purpose of, the staff member abusing his or her office as a staff member of ACLEI; or

                     (b)  conduct that perverts, or that is engaged in for the purpose of perverting, the course of justice; or

                     (c)  conduct that, having regard to the duties and powers of the staff member as a staff member of ACLEI, involves, or is engaged in for the purpose of, corruption of any other kind.

General provisions

             (4)  To avoid doubt:

                     (a)  the conduct referred to in subsection (1) may be conduct that was engaged in before the commencement of this Act; and

                     (b)  a staff member of a law enforcement agency or ACLEI engages in corrupt conduct even if the conduct engaged in by the staff member also involves or implicates someone who is not a staff member of a law enforcement agency or ACLEI.

             (5)  For the purposes of this section, conduct is taken to be engaged in for a purpose if it is engaged in for purposes that include that purpose.

7   Meaning of corruption issue

             (1)  For the purposes of this Act, a corruption issue is an issue whether a person who is, or has been, a staff member of a law enforcement agency:

                     (a)  has, or may have, engaged in corrupt conduct; or

                     (b)  is, or may be, engaging in corrupt conduct; or

                     (c)  will, or may at any time in the future, engage in corrupt conduct.

             (2)  To avoid doubt, an allegation, or information, may raise a corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information.

8   Meaning of ACLEI corruption issue

             (1)  For the purposes of this Act, an ACLEI corruption issue is an issue whether a person who is, or has been, a staff member of ACLEI:

                     (a)  has, or may have, engaged in corrupt conduct; or

                     (b)  is, or may be, engaging in corrupt conduct; or

                     (c)  will, or may at any time in the future, engage in corrupt conduct.

             (2)  To avoid doubt, an allegation, or information, may raise an ACLEI corruption issue even if the identity of the person is unknown, is uncertain or is not disclosed in the allegation or information.

9   Corruption issue that relates to a law enforcement agency

                   For the purposes of this Act, a corruption issue relates to a law enforcement agency if the corruption issue relates to corrupt conduct of a person as a staff member of the agency.

10   Staff members of law enforcement agencies

AFP staff members

             (1)  The following are staff members of the AFP for the purposes of this Act:

                     (a)  the Commissioner;

                     (b)  a Deputy Commissioner of Police;

                     (c)  an AFP employee;

                     (d)  a protective service officer;

                     (e)  a special member;

                      (f)  a special protective service officer;

                     (g)  a person engaged under section 35 of the Australian Federal Police Act 1979 ;

                     (h)  a person who is:

                              (i)  a member of the police force of a State or Territory; or

                             (ii)  an employee of a government agency;

                            and who is assisting the AFP in the performance of its functions by performing functions specified in an agreement under section 69D of the Australian Federal Police Act 1979 .

The terms used in paragraphs (a) to (f) have the same meaning as in the Australian Federal Police Act 1979 .

ACC staff members

             (2)  The following are staff members of the ACC for the purposes of this Act:

                     (a)  the CEO of the ACC (within the meaning of the Australian Crime Commission Act 2002 );

                     (b)  a person appointed under subsection 46B(1) of that Act;

                     (c)  a member of the staff referred to in subsection 47(1) of that Act;

                     (d)  a person engaged under subsection 48(1) of that Act;

                     (e)  a person referred to in section 49 of that Act whose services are made available to the ACC;

                      (f)  a legal practitioner appointed under section 50 of that Act to assist the ACC as counsel.

Former NCA staff members

             (3)  The following are staff members of the former NCA for the purposes of this Act:

                     (a)  a member of the former NCA;

                     (b)  a member of the staff of the former NCA referred to in subsection 47(1) of the former NCA Act;

                     (c)  a person engaged under subsection 48(1) of the former NCA Act;

                     (d)  a person referred to in section 49 of the former NCA Act whose services were made available to the former NCA;

                     (e)  a legal practitioner appointed under section 50 of the former NCA Act to assist the former NCA as counsel.

Staff members of prescribed law enforcement agencies

             (4)  For the purposes of this Act, the staff members of a Commonwealth government agency that is prescribed for the purposes of paragraph (d) of the definition of law enforcement agency are the persons in the class of persons prescribed by the regulations for the purposes of this subsection.

Secondees

             (5)  For the purposes of this Act:

                     (a)  a person referred to in paragraph (1)(h) is a secondee to the AFP; and

                     (b)  a person referred to in paragraph (2)(e) is a secondee to the ACC; and

                     (c)  a person referred to in paragraph (3)(d) is a secondee to the former NCA; and

                     (d)  a person is a secondee to a Commonwealth agency that is prescribed for the purposes of paragraph (d) of the definition of law enforcement agency if the regulations provide that the person is a secondee of that agency.

11   Staff members of ACLEI

             (1)  The following are staff members of ACLEI for the purposes of this Act:

                     (a)  the Integrity Commissioner;

                     (b)  an Assistant Integrity Commissioner;

                     (c)  a member of the staff referred to in section 197;

                     (d)  a person engaged under section 198;

                     (e)  a person referred to in section 199 whose services are made available to the Integrity Commissioner;

                      (f)  a legal practitioner appointed under section 200 to assist the Integrity Commissioner as counsel.

             (2)  For the purposes of this Act, a person referred to in paragraph (1)(e) is a secondee to ACLEI.

12   Applying Act to staff members of former NCA

             (1)  For the purposes of this Act, a person who was a staff member of the former NCA is taken to have been a staff member of the ACC.

             (2)  Subsection (1) does not apply for the purposes of section 6.

13   State offences that have a federal aspect

Object

             (1)  The object of this section is to identify State offences that have a federal aspect because:

                     (a)  they potentially fall within Commonwealth legislative power because of the elements of the State offence; or

                     (b)  they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or

                     (c)  the investigation of them is incidental to a corruption investigation that involves, or may involve, an offence against a law of the Commonwealth or a Territory.

State offences that have a federal aspect

             (2)  For the purposes of this Act, a State offence has a federal aspect if, and only if:

                     (a)  both:

                              (i)  the State offence is not an ancillary offence; and

                             (ii)  assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (b)  both:

                              (i)  the State offence is an ancillary offence that relates to a particular primary offence; and

                             (ii)  assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or

                     (c)  assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or

                     (d)  both:

                              (i)  the Integrity Commissioner is investigating a corruption issue that involves, or may involve, an offence against a law of the Commonwealth or a Territory; and

                             (ii)  if the Integrity Commissioner is investigating, or were to investigate, a corruption issue that involves, or may involve, the State offence—that investigation is, or would be, incidental to the investigation referred to in subparagraph (i).

Specificity of acts or omissions

             (3)  For the purposes of paragraph (2)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (2)(c)

             (4)  A State offence is taken to be covered by paragraph (2)(c) if the conduct constituting the State offence:

                     (a)  affects the interests of:

                              (i)  the Commonwealth; or

                             (ii)  an authority of the Commonwealth; or

                            (iii)  a constitutional corporation; or

                     (b)  was engaged in by a constitutional corporation; or

                     (c)  was engaged in in a Commonwealth place; or

                     (d)  involved the use of a postal service or other like service; or

                     (e)  involved an electronic communication; or

                      (f)  involved trade or commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  within a Territory, between a State and a Territory or between 2 Territories; or

                     (g)  involved:

                              (i)  banking (other than State banking not extending beyond the limits of the State concerned); or

                             (ii)  insurance (other than State insurance not extending beyond the limits of the State concerned); or

                     (h)  relates to a matter outside Australia; or

                      (i)  relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or

                      (j)  relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

             (5)  Subsection (4) does not limit paragraph (2)(c).

Definitions

             (6)  In this section:

ancillary offence , in relation to an offence (the primary offence ), means:

                     (a)  an offence of conspiring to commit the primary offence; or

                     (b)  an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or

                     (c)  an offence of attempting to commit the primary offence.

Commonwealth place has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

conduct has the same meaning as in the Criminal Code .

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

electronic communication means a communication of information:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (animated or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

engage in conduct has the same meaning as in the Criminal Code .

State includes the Australian Capital Territory and the Northern Territory.

State offence means an offence against a law of a State.