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Crimes Legislation Amendment Bill 2010

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2008-2009-2010

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

CRIMES LEGISLATION AMENDMENT BILL 2010

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Home Affairs,

 the Honourable Brendan O’Connor MP)

 

 

 

 



CRIMES LEGISLATION AMENDMENT BILL 2010

GENERAL OUTLINE

This Bill will improve the ability of the Australian Crime Commission (ACC) to deal with serious misconduct by staff and make a range of amendments to strengthen law enforcement agencies’ powers to gather, examine and use evidence to investigate and prevent the commission of criminal offences .  This Bill will amend the Australian Crime Commission Act 2002 (ACC Act), the Australian Federal Police Act 1979 (AFP Act), the Crimes Act 1914 (Crimes Act) and the Telecommunications (Interception and Access) Act 1979 (TIA Act).

The Bill will:

·            align the dismissal powers of the Chief Executive Officer (CEO) of the ACC to deal with serious misconduct and corruption with those of the Australian Federal Police (AFP) Commissioner

·            provide for more flexible arrangements for appointing ACC examiners

·            extend the application of certain search-related provisions in the Crimes Act that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under a warrant in relation to a person

·            insert rules to govern when documents produced under Division 4B, Part IAA of the Crimes Act must be returned

·            streamline and extend provisions governing applications for, and determination of, orders in relation to things seized and documents produced under Part IAA of the Crimes Act

·            allow the AFP Commissioner to delegate responsibility for dealing with things seized and documents produced under Part IAA of the Crimes Act to Commonwealth officers legitimately in possession of such items

·            introduce a new standing power for the AFP to take fingerprints and photographs of arrested persons when taking them in to custody in relation to a Commonwealth offence, and

·            amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, the person’s engagement as an AFP appointee.



PURPOSE

This Bill will improve the ability of the ACC to deal with serious misconduct by staff and make a range of amendments to strengthen law enforcement agencies’ powers to gather, examine and use evidence to investigate and prevent the commission of criminal offences.

This Bill amends the Australian Crime Commission Act 2002 , the Australian Federal Police Act 1979 , the Crimes Act 1914 and the Telecommunications (Interception and Access) Act 1979 .

Australian Crime Commission Act amendments

The Bill will make two sets of amendments to the ACC Act.  The first will address operational issues identified by the ACC.  The second will respond to a recommendation made in a report by the Parliamentary Joint Committee on the ACC.  The proposed amendments will:

·            align the dismissal powers of the ACC CEO to deal with serious misconduct and corruption with those of the AFP Commissioner, and

·            provide for more flexible arrangements to appoint examiners.

Schedule 1 will amend the ACC Act and the TIA Act to provide the ACC CEO with powers mirroring those of the AFP Commissioner to deal with serious misconduct and corruption.  The primary effect of these changes is that the ACC CEO will be able to make a declaration that a staff member’s conduct amounts to serious misconduct and thereby disapply the Fair Work Act 2009 in relation to the dismissal of that staff member.

Schedule 2 will amend the ACC Act to allow for greater flexibility in the appointment of examiners.  The ACC Act currently only allows the appointment of full-time examiners.  This does not meet the operational needs of the ACC.  The amendments will allow the ACC to utilise part-time examiners as well as full-time examiners.  This will enable the ACC to approach examinations in a more strategic way, use different examiners for different purposes depending on the particular type of investigation or operation, and appoint examiners in different regions of Australia. 

Crimes Act amendments

The Bill will make a range of amendments to improve the operation of search and arrest related provisions in Part IAA of the Crimes Act.

Part 1 of Schedule 3 will extend the application of certain search-related provisions in the Crimes Act that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under a warrant in relation to a person.  These amendments will help police deal more effectively with electronic equipment, such as laptop computers and smartphones, located during searches under a warrant in relation to a person.

Part 2 of Schedule 3 will make three sets of amendments to Part IAA of the Crimes Act.  The first set of amendments will insert rules about when documents produced under Division 4B must be returned to the person who produced them or to the owner.  The second set of amendments will streamline and extend provisions governing applications for, and determination of, various orders in relation to things seized and documents produced.  The final amendment will allow the AFP Commissioner to delegate responsibility for functions related to returning things seized and documents produced to a Commonwealth officer if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties.

Part 3 of Schedule 3 will amend the Crimes Act to provide police with a standing power to take fingerprints and photographs of arrested persons.  This amendment will assist police to confirm the identity of arrested persons, prove matters relating to identity in court proceedings and maintain accurate records of arrests.

Australian Federal Police Act amendments

Schedule 4 will amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, a person’s engagement as an AFP appointee.  This will bring the AFP into line with other Commonwealth agencies with respect to making payments to employees and other persons in special circumstances.  It will also avoid the problems currently encountered with delays in obtaining approval for ex-gratia payments.

FINANCIAL IMPACT STATEMENT

The amendments in this Bill have no financial impact on Government revenue



ACRONYMS

ACC                                                 Australian Crime Commission

ACC Act                                          Australian Crime Commission Act 2002

AD(JR) Act                                      Administrative Decisions (Judicial Review) Act 1977

AFP                                                  Australian Federal Police

AFP Act                                            Australian Federal Police Act 1979

APS                                                  Australian Public Service

APSC                                               Australian Public Service Commission

Commissioner                                  Commissioner of the Australian Federal Police

Crimes Act                                       Crimes Act 1914

Criminal Code                                  Criminal Code Act 1995

FMA Act                                         Financial Management and Accountability Act 1997

IGC-ACC                                                  Inter-Governmental Committee on the Australian Crime Commission

FWA                                                 Fair Work Act 2009

PJC-ACC                                                   Parliamentary Joint Committee on the Australian Crime Commission

PJC-ACLEI                                               Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity

PS Act                                              Public Service Act 1999

TIA Act                                            Telecommunications (Interception and Access) Act 1979



NOTES ON CLAUSES

Clause 1:  Short Title

This clause provides that when the Bill is enacted, it is to be cited as the Crimes Legislation Amendment Act 2010 .

Clause 2:  Commencement       

This clause sets out when the various parts of the Act are to commence.

Clause 3:  Schedule(s)

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.



Schedule 1 - Amendments relating to ACC dismissal powers

GENERAL OUTLINE

The staff of the ACC deal with highly sensitive and classified information and the consequences of corruption or misconduct are very serious. 

Under section 29 of thePS Act, the ACC CEO has the power to dismiss employees for serious misconduct or corruption.  Section 29 allows the ACC CEO (as an agency head) to dismiss a member of the staff of the ACC under one of the following grounds:

·            the employee is excess to the requirements of the agency

·            the employee lacks, or has lost, an essential qualification for performing his or her duties

·            non-performance, or unsatisfactory performance, of duties

·            inability to perform duties because of physical or mental incapacity

·            failure to satisfactorily complete an entry-level training course

·            failure to meet certain conditions (for example, health or security clearance requirements)

·            breach of the Code of Conduct (this would include serious misconduct or corruption), or

·            any other grounds prescribed by the regulations (no other grounds are currently prescribed).

In its report on the ACC Annual Report of 2007-08, the PJC-ACC recommended ‘that the Australian Government review existing arrangements for the suspension and dismissal of Commonwealth law enforcement agency employees believed on reasonable grounds to have engaged in serious misconduct or corruption, and that the Government take action as appropriate, bearing in mind the need to respect the rights of employees.’  This followed a similar recommendation by the PJC-ACLEI in its report on law enforcement integrity models.

The PJC-ACC noted the dismissal power available to the AFP and stated that ‘it is of concern to the committee that ACC employees suspected of serious misconduct or corruption remain within the organisation and may seek to jeopardise investigations, thereby potentially compromising the security of the ACC's operations.’

Under s ection 28 of the AFP Act, the Commissioner may at any time, by notice in writing, terminate the employment of an AFP employee.  The Commissioner also has the power under section 40K of the AFP Act to declare that the employment of an AFP employee was terminated because the Commissioner believes on reasonable grounds that the employee’s behaviour amounts to serious misconduct and is having, or is likely to have, a damaging effect on the morale or reputation of the AFP.  Where a declaration has been made under section 40K, the FW Act (with the limited exception of some provisions) no longer applies to that dismissal.  However, judicial review of the declaration can be sought.

This Schedule will amend the ACC Act and the TIA Act to provide the ACC CEO with powers mirroring those of the Commissioner to deal with serious misconduct and corruption.  The primary effect of these changes will be that the ACC CEO will be able to make a declaration that the conduct of a member of the staff of the ACC, who has been dismissed under section 29 of the PS Act, amounts to serious misconduct.  The declaration will disapply the FW Act in relation to the dismissal of that staff member.

Part 1 - Amendment of the Australian Crime Commission Act 2002

Australian Crime Commission Act 2002

Item 1

Subsection 4(1) of the ACC Act sets out the definitions that are relevant to the operation of the ACC Act.  This item will insert a new definition of serious misconduct into the ACC Act.  Serious misconduct , by a member of staff referred to in subsection 47(1) of the ACC Act, will have the meaning given by subsection 47A(8).  A member of staff referred to in subsection 47(1) is a member of staff who is employed under the PS Act.

Subsection 47A will define serious misconduct as:

·            corruption, a serious abuse of power, or a serious dereliction of duty, by the staff member, or

·            any other seriously reprehensible act or behaviour by the staff member, whether or not acting, or purporting to act, in the course of his or her duties as such a staff member.

This definition is the same as the definition of serious misconduct in the AFP Act.

Item 2

This item will amend the ACC Act to provide the ACC CEO with the power to issue a declaration that a member of staff who has been dismissed has engaged in serious misconduct or corruption.  The effect of the declaration will be to remove the operation of the FW Act in relation to that particular dismissal.

Section 47A

Subsection 47A(1) will set out the circumstances in which the new section 47A will apply.  It will be modelled on section 40K of the AFP Act.

Section 47A will only apply where the CEO has terminated the employment of a member of staff referred to in subsection 47(1) of the ACC Act.  The reference to termination by the CEO includes any termination by an SES member of the staff of the ACC who has been delegated the power to terminate a person’s employment by the ACC CEO under section 59A of the ACC Act. 

Staff referred to in subsection 47(1) are staff employed under the PS Act.  While the definition of member of the staff of the ACC in subsection 4(1) of the ACC Act includes other categories of staff, such as seconded staff or consultants, the power in section 47A will not apply to these other members of staff.  It will only apply to staff employed under the PS Act.  Where the ACC CEO wishes to dismiss other members of the staff of the ACC who are not employed by the ACC under the PS Act, the ACC CEO will continue to rely on his or her current powers to remove that person from the organisation.  For example, where the ACC CEO believes on reasonable grounds that a person seconded to work for the ACC has engaged in serious misconduct, the ACC CEO will continue to be able to remove that person from the ACC by ending their secondment.

To terminate a member of staff employed under subsection 47(1) of the ACC Act, the CEO will need to rely on the power of dismissal in section 29 of the PS Act.  New section 47A will not provide an additional power of termination.  It will rely on a termination having taken place under section 29 of the PS Act.  This will be reflected in the note at the end of the subsection which refers to a termination under section 29 of the PS Act.

Subsection 47A(1) will state that for the section to apply, the CEO must believe on reasonable grounds that the staff member’s conduct (the staff member who has been dismissed):

·            amounts to serious misconduct (a definition of serious misconduct will be inserted in subsection 47A(8)), and

·            is having, or is likely to have, a damaging effect on

-           the professional self-respect or morale of some or all of the members of staff of the ACC, or

-           the reputation of the ACC with the public, or with an Australian or foreign Government or law enforcement agency.

The belief that the CEO will be required to have for this section to apply mirrors the belief that the Commissioner must have before exercising his or her power to make a declaration under section 40K of the AFP Act.  It limits the scope of the CEO’s power to the most serious cases of misconduct or corruption.  It is not designed to replace the usual public service processes for dealing with misconduct, but only to be utilised in circumstances where the normal processes are not appropriate given the nature of the misconduct or corruption.

Subsection 47A(2) will provide the CEO with the power to make a declaration where he or she is of the belief outlined in subsection 47A(1) (as described above).  The declaration will need to relate to the staff member who has been dismissed and be made in accordance with the requirements which will be set out in subsection 47A(5).

Subsection 47A(3) will set out the effect of the declaration made by the CEO under subsection 47A(2). The making of the declaration will mean that the FW Act (except for Part 3-1 and Division 9 of Part 3-3) will no longer apply to either the termination of that staff member’s employment, or the making of the declaration itself.  This will mean that the unfair dismissal provisions and notice of termination provisions, among others, will no longer apply to the termination of the staff member’s employment.  Part 3-1 deals with general protections such as workplace rights.  Division 9 of Part 3-3 deals with payments relating to periods of industrial action.  These parts of the FW Act are also preserved when a declaration is made under the AFP Act.

Although the FW Act will not operate in relation to that person’s termination and the making of the declaration, the making of the declaration will be a reviewable decision under the AD(JR) Act.

Subsection 47A(4) will specify that subsection 47A(3), which disapplies the majority of the FW Act operates despite section 8 of the PS Act.  Section 8 of the PS Act states that the PS Act has effect subject to the FW Act.  However, the effect of subsection 47A(3) will be to exempt a termination of employment under section 29 of the PS Act from the operation of the FW Act where a declaration is made under subsection 47A(2).  This subsection will make it clear that the FW Act does not apply despite the operation of section 8 of the PS Act. 

Subsection 47A(5) will set out the requirements that must be met by the ACC CEO when making a declaration under subsection 47A(3).  The declaration must be made in writing.  This will provide certainty as to the terms of the declaration.  The declaration will also have to be made within 24 hours of the CEO’s decision to terminate the staff member’s employment.  The 24 hours will start at the moment the ACC CEO (or his or her delegate) authorises the termination.  This will also provide certainty as to the review rights available to a person after they have been dismissed.  It would be unjust to allow the CEO to make such a declaration weeks after a dismissal has taken place to remove review rights of which the staff member may have already availed himself or herself.

Subsection 47A(6) will require the CEO to give a copy of the declaration to the staff member.  This is another safeguard to ensure the staff member is made aware of the declaration that has been made in respect of his or her dismissal and the effect it will have on the availability of seeking review of the decision to terminate his or her employment.  Section 28A of the Acts Interpretation Act 1901 states that f or the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then, unless the contrary intention appears, the document may be served on a natural person by delivering it to the person personally by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document.  The Electronic Transactions Act 1999 also provides that a requirement to produce a document (such as will be required under this subsection) can be met by doing so in electronic form.

Subsection 47A(7) will require the ACC CEO to report to both the Minister and the members of the ACC Board (as defined in subsection 7B(2) of the ACC Act) each time a declaration is issued under new subsection 47A(2). 

The report will be required to include:

·            the grounds for why the CEO believed the staff member’s conduct amounted to serious misconduct and is having a damaging effect on the ACC

·            the nature and findings of any investigation of, or inquiry into, the staff member’s conduct or behaviour, and

·            details of any other matter the CEO considers relevant.

This will require the ACC CEO to provide an appropriate level of detail to enable both the Minister and the ACC Board to assess the use of the power by the ACC.  This will ensure there is appropriate oversight of the use of the power by the ACC.

Subsection 47A(8) will insert a definition of ‘serious misconduct’ for the purposes of this section.  The definition will mirror the definition of serious misconduct in section 40K of the AFP Act.  It will mean:

·            corruption, a serious abuse of power, or a serious dereliction of duty, or

·            any other seriously reprehensible act or behaviour by a member of the staff of the ACC, whether or not acting , or purporting to act, in the course of his or her duties as a member of the staff of the ACC.

This definition will limit the power to make a declaration to the most serious abuse of power, position or the most serious cases of misconduct or corruption. 

Item 3

This item will provide that the amendments made by this part only apply in relation to a decision to terminate a member of the staff of the ACC where that decision is made after the commencement of this item.  This will prevent the power to make a declaration from being used in relation to a termination that took place prior to the power to make a declaration being in operation.

Item 4

Section 59A provides that the ACC CEO is able to delegate in writing any or all of his or her powers to an SES employee or acting SES employee.

This item will amend section 59A to limit the operation of the delegation making power to any or all powers except a power or function under section 47A.  Section 47A, as inserted by item 2, will allow the ACC CEO to make a declaration stating that an employee was terminated because the CEO believed on reasonable grounds that the employee’s behaviour amounts to serious misconduct and is having, or is likely to have, a damaging effect on the morale or reputation of the ACC.  This item will amend section 59A to prevent the CEO from delegating the power to make a declaration under section 47A.

Part 2 - Amendment of the Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access Act) 1979

Items 5 and 6

Section 63 of the TIA Act places a general prohibition on the use of lawfully intercepted information (‘lawfully intercepted information’ is defined in section 6E of the TIA Act).  For law enforcement agencies, the main exception to this prohibition lies in section 67, which allows an interception agency to make use of lawfully intercepted information for a ‘permitted purpose’, which is defined in section 5 of the  TIA Act.

The current definition of permitted purpose includes specific provisions relating to the AFP.  The TIA Act currently provides the AFP with the power to use lawfully intercepted information in:

·            the investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person’s capacity as an officer of the Commonwealth

·            a report on such an investigation or inquiry, or

·            the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the termination of the employment of an AFP employee. 

Although the TIA Act currently allows the ACC to use lawfully intercepted information in any ‘proceeding’ in so far as it relates to the alleged misbehaviour or alleged improper conduct of an officer of the Commonwealth, it does not extend to use in internal investigations by the ACC of alleged improper conduct or use in supporting action taken following such an investigation.

The PJC-ACC, in its report on the ACC Annual Report of 2007-08, noted the dismissal power available to the AFP and stated that ‘it is of concern to the committee that ACC employees suspected of serious misconduct or corruption remain within the organisation and may seek to jeopardise investigations, thereby potentially compromising the security of the ACC's operations.

Items 5 and 6 give the ACC the power to use lawfully intercepted information in the same way as the AFP in investigating misconduct and making termination decisions.  The items do not provide a power to intercept, only a power to use information that has already been lawfully intercepted.

Item 5

This item will amend the definition of permitted purpose in the TIA Act to align the powers of the ACC to use lawfully intercepted material with those available to the AFP when dealing with members of staff who are suspected of having engaged in misbehaviour or improper conduct.  The amendments will ensure that the ACC is able to use and disclose information lawfully obtained under the TIA Act where appropriate and necessary in dealing with members of staff who have engaged in serious misconduct or corruption. 

Section 67 of the TIA Act provides that an agency can only use lawfully intercepted information and interception warrant information for a permitted purpose.  In relation to the ACC, permitted purpose is currently defined as a purpose connected with an ACC investigation or operation or a report on such an investigation or operation. 

This item will amend the definition of permitted purpose in the case of the ACC to also include:

·            an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of a member of the staff referred to in subsection 47(1) of the ACC Act

·            a report on such an investigation or inquiry

·            the making by a person of a decision in relation to the employment of such a staff member, or

·            a review (whether by way of appeal or otherwise) of such a decision.

This will allow the ACC CEO to use lawfully intercepted information in investigating any alleged misbehaviour or alleged improper conduct of a member of the staff of the ACC (employed under subsection 47(1)).  It will also allow the ACC CEO to use that information to support a decision taken in relation to that staff member upon completion of the investigation including terminating the staff member.  It will also allow the ACC CEO to use the lawfully intercepted information in making a declaration under new subsection 47A(2), which will be inserted by item 2.

Item 6

A further exception to the general prohibition on the use of lawfully intercepted information is set out in section 68 of the TIA Act.  Whereas section 67 focuses on the internal uses of lawfully intercepted information by an agency, section 68 allows one agency to disclose to another agency lawfully intercepted information that is relevant to particular functions of the receiving agency.

This item will insert new paragraph (ca) into section 68.  This new paragraph will allow the chief officer of an agency to communicate lawfully intercepted information to the CEO of the ACC if the information relates, or appears to relate, to an act or omission by a member of the staff of the ACC that may give rise to a decision by the CEO of the ACC to terminate the employment of that member of staff.

This item is not limited to members of the staff of the ACC who are employed under subsection 47(1) (public service employees) because the agency which originally obtained the information may not be in a position to know how that member of staff is employed by the ACC.  However, once the information has been given to the ACC, the ACC will only be able to use that information to investigate a member of staff who is employed under the PS Act and not other members of staff (due to the effect of the provisions that will be inserted by item 5).

The amendments made by items 5 and 6 support the amendments made by item 2 to align the powers of the ACC CEO with those of the AFP Commissioner when dealing with serious misconduct and corruption.  Due to the seriousness of the criminal activity being investigated by that organisation, some misconduct could lead to potentially life threatening consequences.  It is important that the ACC is in a position to be able to properly investigate any allegations of misbehaviour, including utilising intercepted information where appropriate.

Item 7

This item will clarify that the amendments made to the TIA Act by items 5 and 6 will apply to any information obtained under that Act regardless of whether the information was obtained before or after the commencement of the items.

Part 3 - Review of amendments

Item 8

This item will require the Minister to cause an independent review of the operation of new section 47A as soon as possible after it has been in operation for two years.  This will enable a full examination of the continuing need for the amendments.



Schedule 2 - Amendments relating to appointment of ACC examiners

GENERAL OUTLINE

This Schedule amends the ACC Act to allow for greater flexibility in the appointment of examiners.  Currently, the provisions in the ACC Act which govern the appointment of examiners provide that:

·            an examiner must be appointed by the Governor-General following consultation with the IGC-ACC

·            a person can only be appointed as an examiner if they have been enrolled as a legal practitioner for at least five years

·            each appointment cannot be for longer than five years, but a person can only serve as an examiner for a total of ten years, and

·            the appointment of a person as an examiner is on a full-time basis. 

The ACC Act also deals with:

·            remuneration of examiners

·            potential conflicts of interest

·            employment outside a person’s duties as an examiner, and

·            termination of employment.

The requirements of the ACC Act do not meet the current operational needs of the ACC.  In particular, the requirement that examiners be appointed on a full-time basis adversely affects the ACC’s ability to effectively manage and conduct examinations.  

The amendments will allow the ACC with to utilise full-time examiners as well as part-time examiners.  This will allow the ACC to:

·            approach examinations in a more strategic way (for example, by drawing from a pool of examiners as operational needs require)

·            use different examiners for different purposes depending on the particular type of investigation or operation (for example, utilising different skills depending on the person being examined), and

·            appoint examiners in different regions of Australia. 

The flexibility which this model provides will help the ACC attract people with the right capabilities to the position of examiner which will better support the work of the ACC and its partner agencies.

Australian Crime Commission Act 2002

 

Item 1

Subsection 46A(3) of the ACC Act currently provides that the CEO may make arrangements as to the examiner who is able to exercise his or her powers under the ACC Act in relation to a special ACC operation/investigation. 

The inclusion of ‘special’ in this subsection does not accurately reflect all the functions an examiner can perform under the ACC Act.  For example, sections 19A and 20 of the ACC Act provide examiners powers in relation to operations and investigations that have not been determined by the ACC Board to be ‘special’.

This item will omit ‘a special’ and insert ‘an’ into subsection 46A(3).  The effect of this amendment will be to enable the CEO to make arrangements with part-time and full-time examiners in relation to any ACC operation/investigation.  This will allow for consideration of the special circumstances of each investigation or operation and the flexible and strategic allocation of part-time and full-time examiners.  This will also enable the CEO to meet his or her obligation under subsection 46A(4) (as inserted by item 3) to notify the Minister of all such arrangements which are made with examiners.

Item 2

This item will clarify that the amendment made by item 1 does not affect an arrangement made by the CEO in relation to a special ACC operation/investigation under subsection 46A(3) of the ACC Act before the commencement of this item. 

Item 3

This item will insert a new subsection into section 46A that requires the CEO to notify the Minister in writing of each arrangement that the CEO has made with examiners under subsection 46A(3).  The CEO will have to report as soon as practicable after 31 June and 31 December on each arrangement made in the previous six months, as well as the nature of the ACC operation/investigation to which each arrangement relates. 

The effect of this amendment will be to require the CEO to keep the Minister informed of the work engaged in by the ACC examiners in each six month period. 

Item 4

This item will require the first report made under section 46A(4) (as inserted by item 3) to relate to arrangements made between the commencement of this item and the first 30 June or 31 December after that time.

The effect of this item will be to provide for timely notification of arrangements on the first occurrence of 30 June or 31 December after the commencement of this item, despite the initial period most likely being less than six months. 

Item 5

Subsection 46B(4) of the ACC Act provides that an examiner may be appointed for a period of up to five years and that the sum of an examiner’s periods of appointment and reappointment must not exceed 10 years.

This item will repeal the sentence in subsection 46B(4) which provides for a 10 year limit on the total of a person’s periods of appointment as an examiner. 

The effect of this amendment will be to allow for examiners to be reappointed without any limitation on the total time of appointment.  However, the five year limit on each appointment will still be in force.  This amendment will be consistent with the move to a flexible appointment model.  It will also enable the ACC to take advantage of the experience that examiners can build up over a long period of time. 

Item 6

This item will clarify that the amendment made by item 5 applies to the appointment of an examiner after the commencement of this item, whether or not the person has previously been appointed as an examiner. 

Therefore, even if an examiner is currently or has been previously appointed, the 10 year limit will not apply to that examiner if he or she is reappointed after the commencement of this item. 

Item 7

This item will insert a supplementary note to subsection 46B(4) to clarify that examiners are eligible for reappointment.

The effect of this amendment will be to clarify that references to the appointment of examiners in this subsection includes a reference to their reappointment, consistent with subsection 33(4A) of the Acts Interpretation Act 1901.  It may otherwise have been unclear that examiners could be reappointed after item 5 takes effect, as only the sentence repealed by item 5 made explicit reference to the reappointment of examiners. 

Item 8

Subsection 46B(5) of the ACC Act currently provides that an examiner is to be appointed on a full-time basis.  This item repeals subsection 46B(5) and inserts a new subsection which provides that examiners may be appointed on a full-time basis or on a part-time basis.

The requirement that examiners be appointed only on a full-time basis adversely affects the ACC’s ability to effectively manage and conduct examinations.  Allowing the appointment of part-time examiners will enable the ACC to approach examinations in a more strategic way, for example, by allowing the ACC to draw from a pool of examiners as operational needs require.  It will also enable the ACC to use different examiners for different purposes depending on the particular type of investigation or operation being conducted.  For example, this will give the ACC the ability to use examiners with particular skills in operations or investigations where such skills are necessary.  This amendment will also allow examiners to be appointed in different regions of Australia. 

Items 9 - 11

Section 46D of the ACC Act provides that examiners have recreation leave entitlements as determined by the Remuneration Tribunal, as well additional leave of absence entitlements (other than recreational leave) as determined by the CEO in writing.

Items 9 and 10

Items 9 and 10 will omit ‘an examiner’ and insert ‘a full-time examiner’ into subsections 46D(1) and (2).

The effect of these amendments will be to preserve the status quo in relation to leave of absence entitlements for full-time examiners.

Item 11

This item will insert a new subsection which entitles part-time examiners to leave of absence on terms and conditions determined in writing by the CEO.

Items 12 and 13

Section 46G prohibits examiners from engaging in paid employment outside the duties of their office without the Minister’s approval.

These items retain the current provisions on outside paid employment in respect of full-time examiners and add provisions which address outside paid employment in respect of part-time examiners.

Item 12

This item will omit ‘An examiner’ and insert ‘A full-time examiner’ in section 46G.  It will also insert the heading ‘ Full-time examiners’ before the new subsection 46G(1). 

The effect of this amendment will be to restrict the application of the prohibition against engaging in outside paid employment currently contained in section 46G to full-time examiners only.  Due to the full-time nature of their appointment, it is not appropriate for full-time examiners to engage in outside employment without the Minister’s approval.

Item 13

This item will insert new subsections 46G(2) and (3) into the ACC Act, which relate to part-time examiners engaging in outside employment. 

Subsection 46G(2) prohibits part-time examiners from engaging in outside employment that, in the CEO’s opinion, conflicts or may conflict with the proper performance of their duties as examiners.

The effect of this amendment is that part-time examiners are permitted to engage in outside employment, except where the CEO believes that it conflicts or may conflict with their office.   The CEO may be of the opinion that a conflict exists where, for example, a part-time examiner holds a concurrent appointment as a director on the board of a company at the same time as the ACC is conducting an investigation or operation into criminal infiltration of that company.  The CEO may also believe that a conflict exists, or may exist, where a part-time examiner’s outside employment occupies their time in such a way and to such an extent that it substantially impacts on their availability to properly perform their duties as an examiner. 

Subsection 46G(3) allows the CEO, by written notice, to require part-time examiners to provide details about their employment within a specified time.  It also provides that part-time examiners must comply with this notice.

The effect of this amendment is that the CEO will be able require part-time examiners to provide information on their outside paid employment before engaging them in particular work and for the purpose of determining whether any conflict exists for the purpose of subsection 46G(2). 

Items 14 - 17

Section 46H of the ACC Act provides for the termination of the appointment of an examiner by the Governor-General in prescribed circumstances.  Subsection 46H(2) prescribes circumstances in which the Governor-General must terminate the appointment of an examiner, including bankruptcy, absence without leave, failure to comply with the ACC Act and engaging in outside employment without proper approval. 

These items will preserve the effect of the current grounds for termination in relation to full-time examiners whilst adding new grounds in relation to part-time examiners. 

Item 14

This item will insert ‘(being a full-time examiner)’ after ‘the examiner’ in paragraph 46H(2)(b).  This amendment will preserve the effect of the current provision for the termination of a full-time examiner’s appointment on the ground of absence, other than on leave granted under section 46D, whilst excluding its application to part-time examiners.  

Items 15

This item will insert ‘(being a full-time examiner)’ after ‘the examiner’ in paragraph 46H(2)(d).  This amendment will preserve the effect of the current provision for the termination of a full-time examiner’s appointment on the ground of engaging in paid employment outside their office without the Minister’s approval, whilst excluding its application to part-time examiners.

Item 16

This item will omit ‘office.’ and insert ‘office (see subsection 46G(1)); or’ in paragraph 46H(2)(d). 

Paragraph 46H(2)(d) requires the Governor-General to terminate the appointment of an examiner who engages in paid employment outside their office.  The effect of this amendment will be to include a reference to the subsection from which the prohibition against a full-time examiner engaging in outside paid employment originates.  

Item 17

Subsection 46G(2) (to be inserted by item 13) will prohibit a part-time examiner from engaging in any paid employment, that in the CEO’s opinion, conflicts or may conflict with the proper performance of the examiner’s duties.  Subsection 46G(3) (to be inserted by item 13) will require part-time examiners to give the CEO details of their employment upon receiving written notice to do so. 

This item will insert subsection 46H(2)(e), which prescribes as grounds for termination the failure to comply with subsections 46G(2) and (3). 

Item 18

This item will clarify that the amendments made by items 5 to 17 do not affect the validity of an appointment of an examiner made before the commencement of this item.



Schedule 3 - Amendment of the Crimes Act 1914

GENERAL OUTLINE

This Schedule will amend the Crimes Act to:

·            extend the application of certain search-related provisions that currently only apply to searches conducted under warrants in relation to premises so they also apply to searches conducted under warrants in relation to a person (Part 1)

·            insert rules to govern when documents produced under Division 4B of Part IAA must be returned (Part 2)

·            streamline and extend provisions governing applications for, and determination of, orders in relation to things seized and documents produced under Part IAA (Part 2)

·            allow the Commissioner to delegate responsibility for dealing with things seized and documents produced under Part IAA to Commonwealth officers legitimately in possession of such items (Part 2), and

·            provide police with a standing power to take fingerprints and photographs of arrested persons (Part 3).

Under Division 2 of Part IAA, a search warrant may be issued in relation to a premises or a person.  However, some of the provisions governing how searches under warrant are to be conducted are restricted in application to searches of premises, particularly those setting out how electronic equipment may be dealt with.  Part 1 of this Schedule will extend some of these provisions to help police deal more effectively with electronic equipment located during a search under a warrant in relation to a person.

Division 4C of Part IAA sets out how things seized and documents produced under that Part may be used or shared and the return obligations that apply to seized things.  Part 2 of this Schedule will insert provisions to apply the same return requirements to documents produced under Division 4B as currently apply to things seized under Divisions 2 and 4.  It will also allow orders to prevent things or documents being used in terrorist acts, terrorism offences or serious offences to be made regardless of which Division of Part IAA a thing or document was obtained under.  Provisions governing orders in relation to things seized and documents produced will be streamlined and certain safeguards extended.  An additional delegation provision will also be inserted by Part 2 so that responsibility for dealing with things seized and documents produced under Part IAA can be delegated to a Commonwealth officer who has legitimate possession of an item.

Part 3 of this Schedule will introduce a new standing power for police to take fingerprints and photographs of arrested persons when taking them in to custody in relation to a Commonwealth offence.  This amendment will provide police with a fast and reliable way of confirming the identity of suspects and improve processes for establishing and maintaining accurate records of arrests, which will in turn ensure that records of arrest are admissible in court proceedings.

Part 1 - Amendments relating to warrants issued in relation to persons

Crimes Act 1914

Division 2, Part IAA of the Crimes Act governs the issue and execution of search warrants under that Act.  Under section 3E, a warrant may be issued to search premises or to search a person.  A warrant may be issued authorising an ordinary search or a frisk search of a person if the issuing officer is satisfied that there are reasonable grounds for suspecting that the person has in his or her possession (or will have, within the next 72 hours) any evidential material.

A warrant in force in relation to a person authorises the executing officer or a constable assisting to search the person as specified in the warrant, and things found in the possession of the person and any recently used conveyance, for things of the kind specified in the warrant. 

Some of the provisions governing how searches under warrant are to be conducted are restricted in application to searches of premises, particularly those setting out how electronic equipment may be dealt with.  This Part will extend some of these provisions to help police deal more effectively with electronic equipment located during a search under a warrant in relation to a person.  Specifically, the amendments will:

·            enable a thing found during a search under a warrant in relation to a person to be moved to another place for examination and processing if certain conditions are met, or if the person consents in writing

·            clarify how electronic equipment may be operated if it has been moved to another location for examination or processing

·            provide for orders to be made requiring a specified person to provide information and assistance with accessing or copying data from a computer or data storage device moved or seized under a warrant in relation to a person

·            require that if data held at a premises is accessed by operating electronic equipment found during a search under a warrant in relation to a person, the executing officer must notify the occupier of that premises, and

·            provide that the Commonwealth must pay reasonable compensation if:

-           damage is caused to equipment, data recorded on the equipment or data to which access was obtained from the operation of the equipment , or

-           damage or corruption to programs associated with the use of the equipment, or with the use of data recorded on the equipment or data to which access was obtained from the operation of the equipment

because insufficient care was exercised in selecting the person who was to operate the equipment or in the operation of the equipment, where it has been moved or seized under a warrant in relation to a person.

Warrants issued in relation to premises may also authorise a search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.  The amendments in this Part do not affect how these searches may be conducted.  Searches of persons under a warrant issued in relation to premises will continue to operate as part of a search of the relevant premises.

Items 1 to 9

Section 3K governs the use of equipment to examine and process things found at warrant premises, including when they may be moved to another place for examination or processing.  These items will amend section 3K to enable a thing found during a search under a warrant in relation to a person to be moved to another place for examination and processing if certain conditions are met, or if the person consents in writing.  They will also apply the same procedural requirements, including those relating to time limits, when a thing found during a search under a warrant in relation to a person is moved as when a thing is moved from warrant premises.

Item 1

This item will amend subsection 3K(1) to clarify that it continues to apply only to searches under a warrant in relation to premises.

Items 2 to 4

Subsection 3K(2) allows a thing to be moved from warrant premises to another place for examination or processing to determine whether it may be seized if:

·            it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance, and

·            the executing officer or constable assisting suspects on reasonable grounds that it contains or constitutes evidential material, or

·            the occupier consents in writing.

These items will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved to another place for examination or processing under equivalent circumstances.  It is now possible for a person to possess large amounts of data on equipment that can be carried in, for example, their pockets, backpack or handbag.  This could include data held on a laptop computer, smartphone or USB drive.  These amendments will allow things to be taken to another place for examination if the person referred to in paragraph 2(b) or (c) consents or if the other conditions outlined above are met.  If a thing is to be moved with consent under a warrant in relation to a person, written consent of the person in relation to whom the warrant is in force will be required.  If a thing is to be moved with consent under a warrant in relation to premises, written consent of the occupier of the premises will be required as is currently the case.

Items 5 and 6

Subsection 3K(3) requires that where a thing is moved to another place for examination or processing under subsection 3K(2), the executing officer must, if practicable:

·             inform the occupier of the warrant premises of the address of the place and the time at which the examination or processing will be carried out, and

·            allow the occupier or his or her representative to be present during the examination or processing.

Exceptions to these general obligations apply under subsection 3K(3AA), where an executing officer need not comply with one or both if he or she believes on reasonable grounds that to do so might endanger the safety of a person or prejudice an investigation or prosecution.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  These items will amend subsection 3K(3) so that an executing officer has the same obligations to the person in relation to whom a warrant was issued as an officer currently has to the occupier of warrant premises.

Items 7 and 8

Subsections 3K(3A) to 3K(3D) govern how long a thing may be moved for examination or processing under subsection 3K(2), including the process for extensions to the initial time allowed.  Under subsection 3K(3A), a thing may be moved for an initial period of no longer than 14 days.  Under subsection 3K(3B), an executing officer may apply to an issuing officer for one or more extensions if he or she believes on reasonable grounds that the thing cannot be examined or processed within the available time.  Under subsection 3K(3C), an executing officer must give notice of the application to the occupier of the warrant premises and the occupier is entitled to be heard in relation to the application.  Subsection 3K(3D) provides that a single extension cannot exceed seven days.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  These items will amend subsection 3K(3C) to make the same rights available to the person in relation to whom a warrant was issued as currently exist for the occupier of warrant premises.  The provisions in subsections 3K(3A), (3B) and (3D) will apply by virtue of amendments to subsection 3K(2) that will be made by items 2 to 4.

Item 9

This item will amend subsection 3K(4) to clarify that it continues to apply only to searches under a warrant in relation to premises.

Item 10

Section 3L governs the use of electronic equipment at warrant premises.  This item will amend subsection 3L(1) to clarify that section 3L continues to apply only to searches under a warrant in relation to premises.

Items 11 and 12

Section 3LAA governs what an executing officer or constable assisting may do with electronic equipment moved from warrant premises to another place for examination or processing under subsection 3K(2).  Briefly, this section provides that:

·            an executing officer or constable assisting may operate the equipment to access data (subsection (1))

·            if the executing officer or constable assisting suspects on reasonable grounds that any data accessed constitutes evidential material, he or she may copy any or all of the data to a disk, tape or similar device (subsection (2))

·            the Commissioner must remove or destroy data copied under subsection 3LAA(2) if it is no longer needed for a purpose specified in section 3ZQU or for other judicial or administrative review proceedings (subsection (3))

·            the equipment may be seized or the data put into documentary form and the documents seized if the executing officer or constable assisting finds, after operating the equipment, that evidential material is accessible (subsection (4)), and

·            an executing officer or constable assisting may only seize equipment under paragraph 3LAA(4)(a) if it would be impractical to copy the data from the equipment or put it in documentary form, or if possession of the equipment by the occupier could constitute an offence (subsection(5)).

As items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing, these items will amend subsections 3LAA(1) and (5) so that section 3LAA applies in the same way to equipment moved in such circumstances.

Items 13 to 15

Section 3LA allows a constable to apply to a magistrate for an order requiring a specified person to provide information or assistance with accessing or copying data from a computer or data storage device, and for a magistrate to grant such an order.  A magistrate may make such an order if he or she is satisfied that there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, a computer or data storage device that:

·            is on warrant premises

·            has been moved from warrant premises under subsection 3K(2) and is at another place for examination or processing, or

·            has been seized under Division 2 and is no longer on warrant premises.

The magistrate must also be satisfied that the specified person falls within one of the categories in paragraph 3LA(2)(b) and has relevant knowledge of the computer, device or computer network of which it forms a part or measures applied to protect data held in, or accessible from, the computer or device.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  Item 13 will amend subparagraph 3LA(1)(a)(ii) to enable an order to also be made in relation to a computer or data storage device found during a search under a warrant in relation to a person that has been moved under subsection 3K(2) as amended.

Section 3ZQV allows police to operate electronic equipment seized under Part IAA, including where it has been seized under a warrant in relation to a person, to determine whether data that is evidential material is held on, or accessible from, the equipment and obtain access to such data.  However, police are currently unable to seek an assistance order under section 3LA in relation to equipment seized under a warrant in relation to a person if they are unable to operate it as a result of data encryption or password protection.  Item 14 will amend subparagraph 3LA(1)(a)(iii) to enable an order to be made in such circumstances.

These amendments will help police to properly examine electronic equipment moved or seized under a warrant in relation to a person by providing access to a mechanism for assistance already available in relation to equipment moved or seized from warrant premises.

Item 15 will repeal part of a note to subsection 3LA(3) which clarified that a further order under section 3LA made in relation to a thing after it has been seized and removed from warrant premises may specify conditions relating to the provision of the information or assistance, as this is already clear from subsection 3LA(4).  Paragraphs 3LA(4)(a) and (b) provide that if the computer or data storage device is not on warrant premises, the order must specify the period within which and the place at which the person must provide information or assistance.  Paragraph 3LA(4)(c) provides that the order must specify any other conditions the magistrate determines should apply to the requirement on the person to provide the information or assistance.

As a computer or data storage device moved or seized under a warrant in relation to a person would not be on warrant premises, the requirements in subsection 3LA(4) will apply to all orders under section 3LA made in relation to such items.

Items 16 to 18

Section 3LB requires that where electronic equipment is operated to access data not held on warrant premises, the occupier of the other premises must, if it is practicable to do so, be notified as soon as possible that the data was accessed.  The section applies if data is accessed under subsection 3L(1), which allows equipment at a warrant premises to be operated at the premises, or subsection 3LAA(1), which allows equipment moved to another place under subsection 3K(2) to be operated.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  Item 11 will amend subsection 3LAA(1) so that section 3LAA will also apply to electronic equipment found during a search under a warrant in relation to a person that has been moved for examination or processing under subsection 3K(2) as amended.  These items will amend section 3LB as a consequence of the amendments to be made by items 2 to 4 and item 11.  In particular, they will insert notification requirements where data held on premises is accessed as a result of equipment moved from a search under a warrant in relation to a person being operated under subsection 3LAA(1).

Item 16 will repeal existing paragraph 3LB(1)(a) and replace it with new paragraphs 3LB(1)(a) and (aa).  If the relevant warrant was issued in relation to premises, notification will be required if the data accessed is held on premises other than that for which the warrant was issued.  If the relevant warrant was issued in relation to a person, notification will be required if the data accessed is held on any premises.  For example, a person in relation to whom a warrant is in force might be carrying a laptop computer that is networked to other computers at their place of work.  If the computer was removed from the person for examination under subsection 3K(2) and data held at their workplace was then accessed under subsection 3LAA(1), the notification requirements would apply.

Item 17 will amend paragraph 3LB(1)(b) so that the requirement is to notify the occupier of the premises on which the data is held, instead of the occupier of the ‘other premises’, as for warrants in relation to persons, there is no initial premises.  Similarly, item 18 will amend subsection 3LB(2) so that the notification must include sufficient information to allow the occupier of the premises on which the data is held, instead of the occupier of the ‘other premises’, to contact the executing officer.

Item 19

Section 3M provides for the payment of compensation for damage caused to electronic equipment, data or programs and corruption of programs resulting from equipment being operated under section 3K, 3L or 3LAA.  Compensation is payable if the damage or corruption occurred because insufficient care was exercised in either selecting the person who was to operate the equipment or in operating the equipment.

Subsection 3M(2) provides that the Commonwealth must pay such reasonable compensation as the Commonwealth and the owner of the equipment or user of the data or programs agree on.  If agreement cannot be reached, subsection 3M(3) provides that the owner or user may institute proceedings for such reasonable amount of compensation as a court of competent jurisdiction determines.  Subsection 3M(4) currently provides that in making such a determination, regard is to be had to whether the occupier of the warrant premises, or his or her employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.  This provision was included to minimise compensation in cases where software has been deliberately programmed to cause damage if not accessed in a particular manner or where someone fails to mitigate damage by providing warning or guidance where they are able to do so.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  Item 11 will amend subsection 3LAA(1) so that section 3LAA will also apply to electronic equipment found during a search under a warrant in relation to a person that has been moved for examination or processing under subsection 3K(2) as amended.

This item will repeal and replace subsection 3M(4).  The effect will be to provide that if equipment was operated under a warrant issued in relation to a person, regard is to be given to whether that person or his or her agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.  If it was operated under a warrant issued in relation to a premises, the obligation will remain the same as it is currently.

References to ‘under a warrant’ in new subsection 3M(4) are intended to capture the operation of equipment under section 3LAA both while the relevant warrant is in force and afterwards, provided there is proper legal authority for the operation of the equipment.  Under section 3K, things may be moved for examination or processing for an initial period of up to 14 days, with provision for one or more extensions of up to seven days.  Search warrants issued under Division 2, Part IAA of the Crimes Act may remain in force for up to seven days.  This means that in some circumstances, equipment moved under section 3K may be operated under section 3LAA after the warrant has ceased to be in force.

Items 20 and 21

Section 3ZQV clarifies what may be done with electronic equipment seized under Part IAA or moved from warrant premises under section 3K for examination or processing.  Broadly, section 3ZQV:

·            clarifies that equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data held on or accessible from the electronic equipment is evidential material, and obtain access to such data (subsection (2))

·            allows that data held on the equipment or accessible from it may be accessed even if it was not held on, or accessible from, the equipment at the time it was seized or moved (subsection (3))

·            clarifies that the equipment may be operated before or after the expiry of the relevant warrant (subsection (4)), and

·            makes it clear that the section does not limit the operation of other relevant provisions in Part IAA (subsection (5)).

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  Item 20 will amend subsection 3ZQV(1) so that section 3ZQV also applies to equipment moved in such circumstances.  Item 21 will make a consequential amendment to an explanatory note that accompanies subsection 3ZQV(5).

Item 22

Section 3ZQW provides for the payment of compensation for damage caused to electronic equipment, data or programs and corruption of programs resulting from equipment being operated under section 3ZQV (which is outlined at items 20 and 21 above).  Compensation is payable if the damage or corruption occurred because insufficient care was exercised in either selecting the person who was to operate the equipment or in operating the equipment.

Subsection 3ZQW(2) provides that the Commonwealth must pay such reasonable compensation as the Commonwealth and the owner of the equipment or user of the data or programs agree on.  If agreement cannot be reached, subsection 3ZQW(3) provides that the owner or user may institute proceedings for such reasonable amount of compensation as a court of competent jurisdiction determines.  Subsection 3ZQW(4) currently requires that if the equipment was seized or moved from premises, regard is to be had in making such a determination to whether the occupier of the warrant premises, or his or her employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.  This subsection was based on section 3M, which was included to minimise compensation in cases where software has been deliberately programmed to cause damage if not accessed in a particular manner or where someone fails to mitigate damage by providing warning or guidance where they are able to do so.

Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a search under a warrant in relation to a person to be moved for examination or processing.  Item 20 will amend subsection 3ZQV(1) so that section 3ZQV also applies to equipment moved in such circumstances.  As a consequence of these changes, and to properly capture warnings or guidance offered or withheld where a thing is seized other than from premises under Part IAA, this item will repeal and replace subsection 3ZQW(4).

New subsection 3ZQW(4) will provide that in determining the amount of compensation payable, regard is to be had to whether any appropriate warning or guidance was provided on the operation of the equipment before it was operated under section 3ZQV.  The subsection is drafted broadly to capture anyone capable of providing such warning or guidance before electronic equipment is operated under section 3ZQV whether it was:

·            moved for examination or processing under section 3K(2) under a warrant in relation to premises or a person

·            seized under a Division 2, Part IAA search warrant

·            seized under Division 3 of Part IAA, which provides powers to stop and search conveyances

·            seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts, or

·            seized under Division 4 of Part IAA, which covers arrest and related matters.

Electronic equipment may be operated under section 3ZQV having been seized under any of the above provisions, many of which cover seizure not just from premises, but from persons.  It is important for subsection 3ZQW(4) to match the scope of circumstances under which equipment may be operated under section 3ZQV.

Item 23

Sub-item 23(1) is an application provision that provides that all amendments in this Schedule, other than those made by items 14 and 22, will only apply to warrants issued in relation to a person after the Schedule commences.  This will mean that if a warrant is issued before commencement but executed after commencement, the amendments made by items 1 to 13 and 15 to 21 will not apply.

Sub-item 23(2) is an application provision that provides that the amendment made by item 14 of this Schedule will apply in relation to any thing seized under Division 2 of Part IAA, whether before or after the Schedule commences.  This provision is retrospective in application but does not create retrospective criminal liability.  It provides that an order requiring a person to provide assistance with a computer or data storage device may be sought from commencement in relation to a thing seized under a warrant in relation to a person, regardless of whether the thing was seized before or after this Schedule commences.  This is necessary to allow police to deal appropriately with evidence that they have lawfully acquired prior to the commencement of the amendment made by item 14.  In the absence of such a provision, police would be required to separate material seized pre-amendment and post-amendment, which would impose a considerable and impractical burden on the storage of evidence.

Sub-item 23(3) is an application provision that provides that the amendment made by item 22 will apply in relation to applications instituting compensation proceedings in relation to damage caused to equipment under section 3ZQV that are made after the Schedule commences.  It could create practical difficulties for courts if this amendment were to apply to proceedings instituted before commencement but heard after commencement, as the matters to which the court would be required to have regard would change while proceedings were on foot.



Part 2 - Amendments relating to retention etc. of things seized and documents produced

Crimes Act 1914

Part IAA of the Crimes Act contains the search, information gathering, arrest and related powers available under the Act.  Subdivision A, Division 4C of Part IAA governs the use and sharing of:

·            things seized under a search warrant issued under Division 2

·            things seized under powers in Division 3 to stop and search conveyances without a warrant

·            things seized under powers in Division 3A to stop and search persons in relation to terrorist acts without a warrant

·            things seized under arrest related search powers in Division 4, and

·            documents produced under a request or notice issued under Division 4B.

Subdivisions B, C and D govern the return of things seized under Divisions 2 and 4, 3 and 3A respectively.  There are currently no provisions dealing with the return of documents produced under Division 4B.

This Part will make three key changes to Division 4C.  The first set of amendments will insert rules about when documents produced under Division 4B must be returned to the person who produced them or to the owner.  The return requirements will be the same as those that currently apply in relation to things seized under Divisions 2 or 4.

The second set of amendments will streamline and extend provisions governing applications for, and determination of, various orders in relation to things seized and documents produced.  This will include allowing orders to prevent things or documents being used in terrorist acts, terrorism offences or serious offences to be sought and made regardless of which Division of Part IAA a thing or document was obtained under.  These amendments will also require certain things of the Commissioner and a magistrate determining an application for an order to ensure that the rights of persons with an interest in a thing or document for which an order is sought are protected.  This will extend obligations that currently exist only in relation to certain orders or on a more limited basis so that they apply to all orders in relation to things seized and documents produced.

The final amendment will be an additional delegation power for the Commissioner.  While the return obligations and ability to apply for orders rest with the Commissioner, section 3ZW allows the Commissioner to delegate to a constable any or all of his or her powers, functions or duties under Part IAA.  An amendment to this section will enable the Commissioner to delegate to a Commonwealth officer responsibilities under Division 4C relating to returning things seized and documents produced.  This is consistent with the use and sharing provisions in section 3ZQU, which allow seized material and documents produced to be shared with a constable or a Commonwealth officer for a range of purposes.  The Commissioner will only be able to make this delegation if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties.

Item 24

This item will insert a definition of terrorist act in subsection 3(1), which contains definitions of general application throughout the Crimes Act.  The existing identical definitions currently in section 3UA, subsection 3ZQM(7) and subsection 3ZQZA(4) will be repealed by items 27, 28 and 38.

Terrorist act will be defined to have the same meaning as in subsection 100.1(1) of the Criminal Code.  This is how the term was defined under each of the definitions being repealed.

Item 25

This item will replace a reference to section 3ZQZ in the definition of magistrate in subsection 3C(1) with a reference to section 3ZQZB.  Section 3ZQZ will be repealed by item 34, and orders that may currently be made by a magistrate under that section will be able to be made under section 3ZQZB as amended by item 39.

Item 26

Section 3CA provides that the functions of making an order conferred on a magistrate by particular sections of the Crimes Act are conferred on a magistrate in a personal capacity and not as a court or a member of a court.  It also sets out the effects of the conferral and provides that the Governor-General may make arrangements with the head of a State, the Australian Capital Territory, the Northern Territory or Norfolk Island for the performance by magistrates of the function of making those orders.

This item will replace references to section 3ZQZ throughout section 3CA with references to section 3ZQZB.  Section 3ZQZ will be repealed by item 34, and orders that may currently be made by a magistrate under that section will be able to be made under section 3ZQZB as amended by item 39.  This item also clarifies that the function of making an order currently available under section 3ZQZB and retained in that section as amended is conferred on a magistrate in a personal capacity.

Item 27

This item will repeal the definition of terrorist act in section 3UA.  Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 28

This item will repeal the definition of terrorist act in subsection 3ZQM(7).  Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 29

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA.  Current Subdivisions B, C and D will be consolidated into a single Subdivision.  This item will repeal the current heading for Subdivision B and replace it with a heading that reflects the amended content of that Subdivision.

Item 30

Section 3ZQX governs when a thing seized under Division 2 or 4 must to be returned to the person from whom it was seized, or to the owner of the thing.  Subsection 3ZQX(1) places a general obligation on the Commissioner to take reasonable steps to return a thing when he or she is satisfied that it is not required, or is no longer required, for a purpose set out in section 3ZQU, or for other judicial or administrative review proceedings.  Subsection 3ZQX(2) outlines exceptions to the general obligation to take steps to return a thing.

Under existing subection 3ZQZB(4) a magistrate may make certain orders in relation to things seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts.  Such orders are available to prevent a seized thing from having to be returned to the owner if a magistrate is satisfied that there are reasonable grounds to suspect that if it were, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence.  Item 39 will repeal existing section 3ZQZB and replace it with a new section to cover all orders in relation to things and documents produced under Part IAA.  This will allow orders currently only available under subsection 3ZQZB(4) in relation to things seized under Division 3A to be made in relation to any thing seized or document produced under Part IAA.

As a consequence of amendments made by item 39, this item will insert a new exception to the general obligation to return a thing seized under Division 2 or 4 into subsection 3ZQX(2).  New paragraph 3ZQX(2)(aa) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

·            the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(3), or

·            the Commissioner has applied for such an order and the application has not been determined.

New subsection 3ZQZB(3) is outlined in detail in the description of item 39 below.

Item 31

Sections 3ZQX, 3ZQY, 3ZQZ, 3ZQZA and 3ZQZB in Division 4C of Part IAA set out when material seized under different provisions in that Part must be returned, but do not currently address the return of documents produced under Division 4B.

Division 4B allows an authorised AFP officer to:

·            require information or documents relevant to a matter that relates to the doing of a terrorist act from an operator of an aircraft or ship

·            issue a person with a notice to produce documents that are relevant to, and that will assist, the investigation of a serious terrorism offence, and

·            apply to a Federal Magistrate for a notice requiring a person to produce documents that are relevant to, and that will assist, the investigation of a serious offence.

The document must relate to one of the matters set out in section 3ZQP.  Among the matters listed are determining whether an account is held by a specified person with a specified institution and determining whether assets have been transferred to or from a specified person between specified dates.

Authorised AFP officer is defined in section 3ZQL to mean the Commissioner, a Deputy Commissioner or a senior executive AFP employee who is both a member of the AFP and authorised in writing by the Commissioner for the purpose of the definition.  Serious terrorism offence and serious offence are both defined in subsection 3C(1).

This item will insert new provisions to apply the same return requirements to documents produced under Division 4B as currently apply to things seized under a Division 2 search warrant or arrest related search and seizure powers in Division 4.

Subsection 3ZQX(3)

This subsection will place a general obligation on the Commissioner to take reasonable steps to return a document once he or she is satisfied that it is not required, or is no longer required, for a purpose referred to in section 3ZQU, or for other judicial or administrative review proceedings.  It will require the document to be returned to the person who produced the document under Division 4B or to the owner, if the person who produced it is not entitled to possess it.  This is consistent with current provisions relating to things seized under Divisions 2 and 4.

Section 3ZQU provides that originals and copies of documents produced under Division 4B of Part IAA and things seized under that Part may be used or shared by constables and Commonwealth officers for a range of purposes.  Among the purposes for which something may used are preventing, investigating or prosecuting an offence, proceedings for the forfeiture of the thing under a law of the Commonwealth and proceedings for Commonwealth control orders or preventative detention orders.

The reference to judicial or administrative review proceedings, consistent with current provisions of this Part, is important as documents obtained under Division 4B may be needed for proceedings outside the scope of uses listed in section 3ZQU.  For example, where a challenge to a notice to produce is brought before a court it may be necessary to provide documents produced as evidence in those proceedings as proof that they were properly obtained.

Subsection 3ZQX(4))

This subsection will outline exceptions to the general obligation to take steps to return a document imposed under subsection 3ZQX(3).

Under paragraph 3ZQX(4)(a), the Commissioner will not need to take reasonable steps to return a document produced under Division 4B if:

·            the document may be retained, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(3), or

·            the Commissioner has applied for such an order and the application has not been determined.

New subsection 3ZQZB(3) will be inserted by item 39, and is outlined in detail in the description of that item below.

Under paragraphs 3ZQX(4)(b) and (c), the Commissioner will not need to take reasonable steps to return a document produced under Division 4B if:

·            it may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth, or a State or Territory, or

·            it is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership.

These are the same exceptions that apply to the general obligation to return a thing seized under Division 2 or 4.

Item 32

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA.  Current Subdivisions B, C and D will be consolidated into a single Subdivision.  Accordingly, this item will repeal the heading for Subdivision C.

Item 33

Section 3ZQY governs when a thing seized under Division 3 must to be returned to the person from whom it was seized, or to the owner of the thing if that person is not entitled to possess it.  Subsection 3ZQY(1) places a general obligation on the Commissioner to take reasonable steps to return a thing when he or she is satisfied that it is not required, or is no longer required, for a purpose set out in section 3ZQU, or for other judicial or administrative review proceedings.

Subsection 3ZQY(2) outlines exceptions to the general obligation to take steps to return a thing imposed under subsection  3ZQY(1) .  Paragraph 3ZQY(2)(b) provides that the Commissioner does not need to take reasonable steps to return a thing if the thing may be retained because of an order under section 3ZQZ.  Item 34 will repeal section 3ZQZ, as orders currently available under that section will now be made under new section 3ZQZB, inserted by item 39.

Item 39 will repeal existing section 3ZQZB and replace it with a new section to cover all orders in relation to things and documents produced under Part IAA.  New subsection 3ZQZB(3) will allow orders currently only available under subsection 3ZQZB(4) in relation to things seized under Division 3A to be made in relation to any thing seized or document produced under Part IAA.

As a consequence of amendments made by item 39, this item will repeal and replace paragraph 3ZQY(2)(b).  New paragraph 3ZQY(2)(b) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

·            the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(2) or (3), or

·            the Commissioner has applied for such an order and the application has not been determined.

New section 3ZQZB is outlined in detail in the description of item 39 below.

Item 34

This item will repeal section 3ZQZ, as orders currently available under that section will now be made under new section 3ZQZB, inserted by item 39.

Item 35

This Part will amend Division 4C of Part IAA to streamline provisions governing orders that may be made in relation to things seized under Part IAA.  Current Subdivisions B, C and D will be consolidated into a single Subdivision.  Accordingly, this item will repeal the heading for Subdivision D.

Item 36

Section 3ZQZA governs when a thing seized under Division 3A must to be returned.  Subsection 3ZQZA(1) places a general obligation on the Commissioner to take reasonable steps to return a thing if the owner requests its return.  Subsection 3ZQZA(2) outlines exceptions to the general obligation to take steps to return a thing imposed under subsection 3ZQZA(1).  It provides that the Commissioner does not need to take reasonable steps to return a thing if he or she:

·            suspects on reasonable grounds that if the thing is returned to the owner, the thing is likely to be used by the owner or another person in the commission of a terrorist act, a terrorism offence or a serious offence, or

·            is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.

Despite these general exceptions, subsection 3ZQZA(3) requires the Commissioner to either take reasonable steps to return the thing or to apply to a magistrate for an order under section 3ZQZB if the owner requests the return of a thing within a certain period.  Orders under section 3ZQZB may currently only be sought if subsection 3ZQZA(3) applies.

This item will insert three new exceptions to the general obligation to return a thing seized under Division 3A into subsection 3ZQZA(2).  Paragraph 3ZQZA(2)(c) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

·            the thing may be retained, sold, destroyed or otherwise disposed of, or is forfeited to the Commonwealth, because of an order under subsection 3ZQZB(2) or (3), or

·            the Commissioner has applied for such an order and the application has not been determined.

Section 3ZQZB will be repealed and replaced by item 39 so that it covers all orders in relation to things and documents produced under Part IAA.  New section 3ZQZB is outlined in detail in the description of item 39 below.

Paragraphs 3ZQZA(2)(d) and (e) will provide that the Commissioner does not need to take reasonable steps to return a thing if:

·       it may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or a State or Territory, or

·       it is forfeited or forfeitable to the Commonwealth, or is the subject of a dispute as to ownership.

These exceptions are consistent with those that apply to the general obligation to return a thing seized under Division 2, 3 or 4 and those that will apply to documents produced under Division 4B under amendments made by item 31.

This item, with item 39, will also allow the Commissioner to apply for an order under section 3ZQZB, as amended by item 39, whether or not the owner of a thing seized under Division 3A has requested its return within the requisite period.  This will enable orders to be sought so that a thing can be finally dealt with instead of being retained indefinitely where such a request has not been made but it would not be appropriate to return the thing to the owner.

Item 37

This item will clarify the existing application of subsection 3ZQZA(3) by providing that the obligations under that subsection apply despite the general exceptions to the obligation to return a thing seized under Division 3A set out in subsection 3ZQZA(2).

Item 38

This item will repeal subsection 3ZQZA(4), which provides a definition of terrorist act for the purposes of section 3ZQZA.  Item 24 will insert an identical definition in subsection 3(1), which contains definitions of general application throughout the Crimes Act.

Item 39

Subsection 3ZQZB(1) currently allows the Commissioner to apply to a magistrate for an order in relation to a thing seized under Division 3A of Part IAA, which provides powers to stop, question and search persons in relation to terrorist acts, if subsection 3ZQZA(3) applies. 

Under subsection 3ZQZB(4), if satisfied that there are reasonable grounds to suspect that, if the thing were returned to the owner, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence, the magistrate may make an order:

·            that the thing be retained for a specified period

·            that the thing is forfeited to the Commonwealth

·            that the thing is to be sold and the proceeds given to the owner, or

·            that the thing is to be otherwise sold or disposed of.

There is currently no mechanism to apply for such an order in relation to a thing seized under Division 2, 3 or 4 or a document produced under Division 4B.  However, things may be seized or produced under those Divisions for which such an order would be appropriate.  Items that could be used in a terrorism offence or a serious offence are more likely to be seized under Division 2 powers to search under warrant than the limited stop and search powers available under Division 3A.  To address this gap, and to streamline provisions relating to orders in Division 4C, this item will repeal existing section 3ZQZB and replace it with a new section to cover the making of orders in relation to any thing seized or document produced under Part IAA.

New subsection 3ZQZB(1) will allow a magistrate, on application by the Commissioner, to make an order as outlined in subsection (2) or (3) in relation to a thing seized or a document produced under Part IAA.  Amendments to subsection 3C(1) and section 3CA by items 25 and 26 will make it clear that a function of making an order under section 3ZQZB is conferred on a magistrate in a personal capacity and not as a court or a member of a court.

Orders for retention for a purpose mentioned in section 3ZQU or certain other proceedings

New subsection 3ZQZB(2) will allow an order to be made for a thing to be retained for a specified period if the magistrate is satisfied that the thing is being used, or is required to be used, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.  These orders will only be relevant to things seized under Division 3 or 3A.  This is because, under subsection 3ZQX(1), the Commissioner is only required to return a thing seized under Division 2 or 4 if he or she is satisfied that it is not required, or is no longer required, for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings.  Item 31 will insert an equivalent provision that will apply to documents produced under Division 4B.  As Divisions 3 and 3A provide powers to stop, search and seize material from conveyances or persons without a warrant and outside the context of an arrest, additional restrictions apply to the retention of things seized under those Divisions.

Section 3ZQU allows things seized under Part IAA and documents produced under Division 4B to be used and shared by constables and Commonwealth officers for a range of purposes.  Among the purposes for which something may be used are preventing, investigating or prosecuting an offence, proceedings for the forfeiture of the thing under a law of the Commonwealth and proceedings for Commonwealth control orders or preventative detention orders.  The reference to judicial or administrative review proceedings is necessary as things seized may sometimes be needed for judicial or administrative review proceedings outside the scope of uses listed in section 3ZQU.  For example, a thing seized during the execution of a warrant may be needed in proceedings if there is a challenge to the execution of the warrant brought before a court.  In that instance, it may be necessary to produce the things seized as evidence in the proceedings as proof that they were properly seized under the warrant.

Orders to prevent use in a terrorist act, terrorism offence or serious offence

New subsections 3ZQZB(3) and (4) will allow certain orders to be made if the magistrate is satisfied that there are reasonable grounds to suspect that, if the thing or document were returned to the owner, the person from whom the thing was seized or the person who produced the document under Division 4B, it would be likely to be used in the commission of a terrorist act, terrorism offence or serious offence.  For a thing seized an order may be made:

·            that the thing be retained for a specified period

·            that the thing is forfeited to the Commonwealth

·            that the thing be sold and the proceeds given to the owner or sold in some other way, or

·            the thing is to be destroyed or otherwise disposed of.

These orders are consistent with those that may currently be made only in relation to things seized under Division 3A.  An example of where a seized thing might be appropriately sold is where laboratory equipment that was to be used in making explosives for a terrorist act has been seized.  While it may not be appropriate to return the equipment to the person from whom it was seized, it would be able to be sold to a reputable laboratory and put to legitimate use.

For a document seized under Part IAA or produced under Division 4B, an order may be made:

·            that the document be retained for a specified period

·            that the document is forfeited to the Commonwealth, or

·            the document is to be destroyed or otherwise disposed of.

This is because it would not be appropriate or desirable for a document to be disposed of by being sold.

Safeguards

New subsection 3ZQZB(5) will require that if an application is made for an order under subsection (2) or (3) and the magistrate is not satisfied of the relevant matters, he or she must make an order that the thing or document be returned:

·            in the case of a thing seized under Division 2, 3 or 4 -to the person from whom the thing was seized

·            in the case of a document produced under Division 4B - to the person who produced the document, or

·            if the person from whom the thing was seized or who produced the document is not entitled to possess it - to the owner of the thing or document.

New subsections 3ZQZB(6) and (7) will require certain things of the Commissioner and a magistrate determining an application under section 3ZQZB to ensure that the rights of persons with an interest in a thing or document for which an order is sought are protected.  New subsection 3ZQZB(6) will require the Commissioner, before making an application, to:

·            take reasonable steps to discover who has an interest in the thing or document, and

·            if it is practicable to do so, to notify each person who the Commissioner believes to have such an interest of the proposed application.

New subsection 3ZQZB(7) will require a magistrate to allow a person who has an interest in the thing or document to appear and be heard in determining the application.  These subsections are based on obligations that currently exist only in relation to certain orders or on a more limited basis.

Restriction on applications for orders in relation to things seized under Division 3

New subsection 3ZQZB(8) will provide that an application for an order under section 3ZQZB may only be made within 60 days of seizure or before the end of a period previously specified in an order in relation to the thing under that section.  This provision replicates a restriction on the retention of items seized under Division 3 that currently applies under section 3ZQZ, which will be repealed by item 34.

Item 40

This item is an application provision that will provide that the changes made by items 30 to 39 of this Schedule will apply to a thing seized or document produced under Part IAA, whether before or after the Schedule commences This provision is retrospective in application but does not create retrospective criminal liability.  It provides that the amendments to Division 4C concerning return of documents and orders in relation to things and documents apply from commencement regardless of when the thing or document was seized or produced.  This is necessary to allow police to deal appropriately with evidence that they have lawfully acquired prior to the commencement of these amendments.  In the absence of such a provision, police would be required to separate material seized pre-amendment and post-amendment, which would impose a considerable and impractical burden on the storage of evidence.

Item 41

This item will insert numbering to allow a new subsection to be included in section 3ZW by item 42 below.

Item 42

Section 3ZW provides that the Commissioner may delegate any or all of the Commissioner’s powers, function or duties under Part IAA to a constable.  Constable is defined in subsection 3(1) to include a member or special member of the AFP or a member of the police force or service of a State or Territory.

This item will enable the Commissioner to delegate responsibilities under Division 4C of Part IAA relating to returning things seized and documents produced to Commonwealth officers.  This is consistent with the use and sharing provisions in section 3ZQU, which allow seized material and documents produced to be shared with a constable or a Commonwealth officer for a range of purposes.  Commonwealth officer is defined in subsection 3(1) to mean a person holding office under, or employed by, the Commonwealth and certain other classes of persons.

The AFP routinely executes search warrants under Part IAA on behalf of Commonwealth agencies such as Centrelink, the Australian Taxation Office and the Australian Securities and Investments Commission.  Where the AFP is satisfied that an agency has exhibit handling capacity consistent with AFP’s guidelines, it may allow the agency to take possession of seized items for the purposes of an investigation.  However, at present, the AFP still retains responsibility for retention and return of those items.  Where another agency is leading an investigation, it is appropriate for an officer of that agency to be responsible for the retention and return of things seized or documents produced that are relevant to that investigation.

The Commissioner will only be able to make this delegation if he or she is satisfied on reasonable grounds that the officer is able to properly exercise the relevant powers, functions or duties.  This would include considering whether the relevant agency has procedures in place for property handling and storage and disposal of exhibits sufficient to meet relevant obligations under the Crimes Act, and would be subject to the existence of appropriate administrative arrangements between the agency and the AFP.  ‘Reasonable grounds’ is an appropriate level of satisfaction as it reflects a practical and realistic approach to the information likely to be available to the Commissioner in exercising his or her power of delegation.



Part 3- Amendment relating to fingerprints and photographs

Crimes Act 1914

Section 3ZJ outlines police powers relating to the taking of identification material such as fingerprints, photographs, handwriting samples and voice recordings from persons who are in lawful custody in respect of a Commonwealth offence.  

Currently, subsection 3ZJ(3) provides that a constable who is of the rank of sergeant or above, or who is in charge of the police station at the relevant time, can take, or cause another person to take, identification material if:

·            the person consents in writing, or

·            the constable believes on reasonable grounds that it is necessary to do so to:

-           establish who the person is, or

-           identify the person as the person who committed the offence, or

-           provide evidence of, or relating to the offence, or

·             the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.

The existing provision poses a number of challenges for police in trying to confirm the identity of arrested persons and keep accurate records of arrests.  The provision does not permit officers to fingerprint or photograph a person for the purpose of providing an identifying record of that person’s arrest, which may be problematic if the person escapes from custody or if there is a question about who was arrested (for example, because the person provides a false name).

This Part will amend subsection 3ZJ(3) to include an additional standing power for police officers to take fingerprints or photographs, purely as an adjunct to an arrest.  The purpose of this amendment is to provide police with a fast and practical way to establish the identity of arrested persons, which will in turn assist police to prove matters relating to identity in court proceedings and maintain accurate records of arrests.

Item 43

This item will insert a new paragraph into subsection 3ZJ(3) that will provide police with an additional basis for the taking of identification material.  This item will allow police to take identification material, or cause identification material to be taken, from a person in lawful custody if the material is fingerprints or photographs (including video recordings) of the person and the offence is punishable by imprisonment for a period of 12 months or more. 

The purpose of this item is to provide police with a fast and practical way of confirming the identity of arrested persons in order to improve processes for establishing and maintaining identifying records of arrests.  This will increase certainty in criminal prosecutions based on fingerprint or photographic evidence by reducing delays caused by challenges to such evidence by defendants arguing that there was not a belief on reasonable grounds that it was necessary to take the fingerprint or photograph at the time it was taken.

The ability to take fingerprint and photographic records at the time a person is processed will also assist in maintaining the accuracy of the criminal records of repeat offenders, thereby ensuring that these records are admissible in sentencing proceedings. 

This item will specify that police may only take fingerprints or photographs from a person if he or she has been arrested in relation to an offence which is punishable by imprisonment for a period of 12 months or more. 

The term ‘offence’ is defined in subsection 3C(1) of the Crimes Act to include an offence against the law of the Commonwealth, an offence against a law of a Territory, or a State offence which has a federal aspect.   It is appropriate that the power to take fingerprints and photographs is not limited to Commonwealth offences, but will also apply in relation to State and Territory offences within Commonwealth Constitutional power as the Crimes Act and the AFP Act enable the AFP to investigate and make arrests for such offences.

The restriction of this provision to offences punishable by imprisonment for a period of 12 months or more will ensure that fingerprints and photographs can only be taken in respect of offences which are generally considered to be serious or indictable offences, and not in relation to minor offences.

The statement in this item that ‘photographs’ includes of video recordings will provide police with flexibility in making identifying records of an arrests.  This approach is also consistent with other references to ‘photographs’ in the Crimes Act , including in the definition of ‘identification material’ in subsection 3ZJ(1) and in provisions relating to the execution of search warrants (section 3J).

This item will not affect existing provisions relating to the taking of identification material in Division 4, Part IAA of the Crimes Act .   The existing requirements in subsection 3ZJ(3)—that the person must be in lawful custody, and that the taking of fingerprints or photographs must be authorised by an officer of the level of sergeant of above—will also apply to this item.

The proposed amendments would not affect existing provisions in 3ZK of the Crimes Act, which require police to destroy identification material taken under this section after 12 months if proceedings have not been instituted or have been discontinued.  The identification material must also be destroyed as soon as possible if a person is acquitted or is found to have committed an offence but no conviction is recorded.  This provision protects defendants by ensuring that any identification material taken at the time of arrest is not kept indefinitely and is destroyed if a person is not charged with an offence.

Item 44

This item is an application provision that provides that the amendment made by this Part will apply to any person who is taken into lawful custody in respect of an offence that is punishable by imprisonment for a period of 12 months or more after the Part commences.



Schedule 4 - Amendments relating to special payments to AFP appointees

GENERAL OUTLINE

This Schedule will amend the AFP Act to enable the Commissioner to authorise a payment in special circumstances that arise out of, or relate to, the person’s engagement as an AFP appointee.

Under section 73 of the PS Act, the Public Service Minister may authorise payments in special circumstances that arise out of, or relate to, Commonwealth employment.  It is generally accepted that section 73 payments should be considered only where the matter concerned has some connection with APS employment.  This provision cannot be used to make special payments to AFP appointees, as they are employed under the AFP Act.

In the absence of a similar provision in the AFP Act, the primary avenue by which a payment can be made to AFP appointees in special circumstances is an ex-gratia payment.  Ex-gratia payments to AFP appointees require consultation with, and approval from, the Department of Finance and Deregulation, the Department of Prime Minister and Cabinet, the Minister for Home Affairs and the Prime Minister.  This can often take a considerable amount of time.

An alternative to an ex-gratia payment is seeking an act of grace payment from the Finance Minister under section 33 of the FMA Act.  Act of grace payments are used where the obligations to the applicant are moral, rather than legal.  These payments are only available where there is no other viable remedy available to provide redress in the circumstances.  

Inserting a special circumstance payment provision into the AFP Act will:

·            remove the need to seek ex-gratia payments for AFP appointees in cases that relate to their employment 

·            provide the Commissioner with the discretion to expediently grant payments to AFP appointees in special circumstances, and

·            ensure that the AFP has the same capacity to make payments in special circumstances as other Commonwealth agencies that fall under the jurisdiction of the PS Act.

Australian Federal Police Act 1979

Item 1

This item will insert a note at the end of subsection 20(2A), which deals with the remuneration of Deputy Commissioners.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 2

This item will insert a note at the end of subsection 27(1), which deals with the remuneration of AFP employees.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 3

This item will insert a note at the end of subsection 35(2), which provides that the Commissioner may determine in writing that a consultant or independent contractor is an AFP appointee for the purposes of the Act.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 4

This item will insert Division 3A (Payments in special circumstances) after Division 3 of Part III of the AFP Act.  New section 35A will set out the Commissioner’s power to make payments in special circumstances and the limits and conditions that apply to the exercise of that power. 

Subsection 35A(1)

This subsection will allow the Commissioner to authorise a payment to a person (the payee) where the Commissioner considers it is appropriate to do so because of special circumstances that relate to, or arise out of:

·            the payee’s engagement as an AFP appointee, or

·            another person’s engagement as an AFP appointee.

Under section 4 of the AFP Act, an AFP appointee means:

·            a Deputy Commissioner

·            an AFP employee engaged under section 24 of the AFP Act

·            a special member

·            a special protective service officer

·            a person engaged to perform duties overseas as an employee of the AFP

·            a secondee, or

·            a consultant or independent contractor performing services for the AFP who is determined by the AFP Commissioner to be an appointee.

The potential recipient of a payment under this section could be an AFP appointee or another person whom the Commissioner considers it appropriate to make a payment to in the circumstances.  For example, where an AFP appointee is injured in the course of work while deployed overseas, the Commissioner will be able to authorise a special circumstances payment to his or her spouse to pay the costs involved in travelling overseas.

Determining whether ‘special circumstances’ warrant making a payment under this new section will involve consideration on a case-by-case basis.  The following broad guidelines (provided by the APSC in relation to payments made under section 73 of the PS Act) may be relevant to the Commissioner’s considerations.

·            A special circumstances payment might be made where the particular circumstances of a case lead to the publicly defensible conclusion that there is a moral obligation on the Commonwealth to make the payment.

·            Special circumstances payments would not generally be appropriate in order to establish a scheme of payments to shore up program or legislative deficiencies.  In these circumstances, the expected solution would be to remedy the program or legislative deficiencies.

·            Care must be taken by decision-makers to consider the precedent effect of authorising a payment, for example whether the payment might be regarded as extending beyond what might reasonably be considered to be ‘special circumstances’.

·            The decision-maker should consider whether there is a more appropriate avenue for a potential claim.  For example, in circumstances where detriment has been caused by the defective administration of a Commonwealth agency (other than cases relating to APS employee entitlements), payments under the s cheme for ‘Compensation for detriment caused by defective administration’ may be more appropriate.

In accordance with section 44 of the FMA Act, the Commissioner must manage the affairs of the AFP, including the making of special circumstances payments, in a way that promotes efficient, effective and ethical use Commonwealth resources that is not inconsistent with the policies of the Commonwealth.

Subsection 35A(2)

This subsection will allow the Commissioner to authorise payments of specific amounts or periodical payments (or both).  This is consistent with payments allowed under subsection 73(2) of the PS Act.

For example, where an AFP appointee was injured in the course of work, the Commissioner might authorise the payment of a lump sum to cover hospital expenses or periodic payments in the form of a wage subsidy, or both.

Subsection 35A(3)

This subsection provides that payments may be authorised under the section even though the payment would not otherwise be authorised by law or required to meet a legal liability.  This will mean that an authorised payment does not evidence legal liability on the part of the Commonwealth.

For claims involving legal liability on the part of the Commonwealth, Appendix C of the Attorney-General’s Legal Services Directions sets out the policy for settling claims against the Commonwealth.  Monetary claims covered by the policy are to be settled in accordance with legal principle and practice, which requires the existence of at least a meaningful prospect of liability being established.

Subsection 35A(4)

Under subsection 35A(4), the Commissioner will only be able to make an authorisation under this section if it would involve, or be likely to involve, a total amount of less than $100,000. 

Payments that might exceed $100,000 will have to be referred to the Minister for Finance and Administration for decision under the general arrangements for act of grace payments by the Commonwealth under section 33 of the FMA Act.

Subsection 35A(5)

Subsection 35A(5) will state that the conditions may be attached to payments under this section. If the condition is breached the payment will be able to be recovered by the Commonwealth in a court of competent jurisdiction.

For example, the Commissioner might authorise a payment to the family of an AFP appointee who dies in the course of work, with the condition that a specified sum be used to fund the future education of the children.

The note to subsection 35A(5) clarifies that payments made under these provisions will be required to be made out of the AFP’s annual appropriation.

Item 5

This item will insert a note at the end of subsection 40E(1), which provides that the Commissioner may appoint a person as a special member of the AFP on such terms and conditions as the Commissioner determines in writing.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 6

This item will insert a note at the end of section 40EC, which provides that the Commissioner may appoint a person as a special protective service officer of the AFP on such terms and conditions as the Commissioner determines in writing.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Item 7

This item will insert a note at the end of subsection 69A(2), which deals the engagement of persons overseas to perform duties overseas as employees.  The note will advise the reader of the Commissioner’s power to authorise payments in special circumstances under new section 35A (inserted by item 4).

Items 8 - 10

Section 69C specifies the classes of AFP appointees to whom the Commissioner may delegate his or her powers and duties under the AFP Act.

These items will amend section 69C to provide that the Commissioner may delegate to a ‘senior executive AFP employee’ his or her power to authorise payments in special circumstances under section 35A, which will be inserted by item 4.  This delegation must be in writing.  This mirrors the delegation power in subsection 78(2) of the PS Act.

The Commissioner may declare an AFP employee to be a ‘senior executive AFP employee’ under section 25 of the AFP Act.

Item 11

This item will insert a note into section 69D of the AFP Act (Secondment of persons to assist the Australian Federal Police), to advise the reader of the Commissioner’s power to authorise payments in special circumstances under section 35A.

Item 12

This item sets out the application of the new section 35A.  The item clarifies that the Commissioner will have the power to authorise payments in relation to special circumstances which occurred prior to the commencement of the Schedule.