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Law Enforcement Integrity Legislation Amendment Bill 2012

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2010 - 2011 - 2012

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

Law Enforcement Integrity Legislation Amendment Bill 2012

 

 

 

 

 

REPLACEMENT EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for Justice,

the Honourable Jason Clare MP)

 

 

THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM PRESENTED TO THE HOUSE OF REPRESENTATIVES ON 19 SEPTEMBER 2012





LAW ENFORCEMENT INTEGRITY LEGISLATION AMENDMENT BILL 2012

 

OUTLINE

 

This Bill amends the Crimes Act 1914 (Crimes Act), the Australian Crime Commission Act 2002 (ACC Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act), the Surveillance Devices Act 2004 (SD Act), the Customs (Administration) Act 1985 (CAA Act) and the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).

The amendments included in this Bill will introduce a range of measures to increase the resistance of Commonwealth law enforcement agencies to corruption and to enhance the range of tools available to law enforcement agencies to respond to suspected corruption.

PURPOSE

The amendments contained in Schedule 1 will introduce targeted integrity testing for staff members of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and the Australian Customs and Border Protection Service (Customs and Border Protection) suspected of corrupt conduct.  Integrity tests are operations designed to test whether a public official will respond to a simulated or controlled situation in a manner that is illegal or would contravene an agency’s standard of integrity.  The introduction of integrity testing has been recommended by the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity.

The amendments contained in Schedule 1 will also increase the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) to include CrimTrac, AUSTRAC and prescribed staff in the Department of Agriculture, Forestry and Fisheries.

The purpose of Schedule 2 is to enhance the powers of the CEO of Customs and Border Protection to deal with suspected corrupt conduct and bring those powers in to line with powers currently available to the AFP Commissioner and the ACC CEO.

FINANCIAL IMPACT STATEMENT

The introduction of integrity testing and enhanced powers for the CEO of Customs and Border Protection to deal with corruption will involve no financial impact as agencies will meet the costs of implementing these measures from within existing resources.  It is proposed that ACLEI be provided with additional funding of $1.5 million over two years (2013-14 and 2014-15) to support its expanded jurisdiction.



ABBREVIATIONS

ACC

Australian Crime Commission

ACLEI

Australian Commission for Law Enforcement Integrity

AFP

Australian Federal Police

AUSTRAC

Australian Transaction Reports and Analysis Centre

Customs and Border Protection

Australian Customs and Border Protection Service

DAFF

Department of Agriculture, Fisheries and Forestry

ACC Act

Australian Crime Commission Act 2002

CAA Act

Customs (Administration) Act 1985

Crimes Act

Crimes Act 1914

LEIC Act

Law Enforcement Integrity Commissioner Act 2006

SD Act

Surveillance Devices Act 2004

TIA Act

Telecommunications (Interception and Access) Act 1979

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

The Bill will introduce a range of measures intended to strengthen Commonwealth agencies with law enforcement functions against the risk of infiltration and corruption.

The Bill will introduce a system under which targeted integrity testing can be conducted on officers of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and the Australian Customs and Border Protection Service (Customs and Border Protection)

The Bill will also extend the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI) to include all staff members of the Australian Transaction Reporting and Analysis Centre (AUSTRAC) and the CrimTrac Agency and prescribed staff members of the Department of Agriculture Fisheries and Forestry (DAFF). 

The Bill will also enable drug and alcohol testing to be conducted on Customs and Border Protection staff, and introduce a range of other powers to support integrity initiatives within Customs and Border Protection. 

Human rights implications

 

The Bill does promote a human right.

 

Rights in work

 

The protection of worker’s rights in the workplace is contained within Article 22 of the International Covenant on Civil and Political Rights (ICCPR).  This Bill will ensure that the Customs and Border Protection workplace is drug and alcohol free and thereby promotes this specific human right and as a result advances labour rights contained within the International Labour Organisation Convention 1948 .

 

The Bill potentially impacts on the following human rights:

 

Right to protection against arbitrary and unlawful interferences with privacy

 

Article 17 of the ICCPR provides the right for persons to not be subjected to arbitrary or unlawful interference with their privacy or have unlawful attacks on their honour or reputation. The right to privacy may be subject to permissible limitations.  In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  Reasonableness, in this context, incorporates notions of proportionality,



appropriateness and necessity.  In essence, this will require that limitations: 



  • serve a legitimate objective
  • adopt a means that is rationally connected to that objective, and
  • the means adopted are not more restrictive than they need to be to achieve that objective.    

 

Integrity testing

 

The Bill engages this right by allowing, in the context of an integrity testing operation, the use of surveillance of staff of these agencies and collecting, using, storing and sharing personal data relating to these staff.

 

Only staff members of the ACC, AFP and Customs and Border Protection will be subject to integrity testing.  These are officers of key law enforcement agencies who are expected to maintain a high standard of integrity.  Corruption within these agencies can have a significant detrimental effect on their ability to enforce the law.  Integrity testing will only be able to be authorised by a senior officer of these agencies, and only where there is a reasonable suspicion that an offence, punishable by at least 12 months’ imprisonment has been committed or is likely to be committed.  This will ensure that integrity testing is conducted on a targeted basis, rather than on a random or arbitrary basis.

 

Law enforcement officers are generally well versed in surveillance methods and so corrupt conduct in law enforcement agencies can be hard to detect.  The introduction of integrity testing will provide another tool to advance the detection of corruption and misconduct in these officers.  It will complement existing arrangements, including oversight of these agencies by the Integrity Commissioner.

 

Investigative Tools

 

The Bill makes amendments to the Surveillance Devices Act 2004 (SD Act) to allow federal law enforcement officers (ACC, AFP and ACLEI) to apply for a surveillance devices warrant for the purposes of an integrity operation.   It is limited to circumstances where:

·          an integrity authority is in effect in relation to an offence of 12 months or more imprisonment that is suspected to be, or has been, or is likely to be, committed, and

·          the use of the surveillance device will assist by recording and monitoring the operation, and

·          enabling evidence to be obtained in relation to the offence, integrity, location or identity of any staff member.

 

Consistent with the existing provisions that apply in relation to the use of surveillance devices generally, surveillance of unrelated third parties is possible and contemplated.  However, the Judge or nominated Administrative Appeals Tribunal member in considering the application must explicitly consider the extent to which the privacy of any person is likely to be affected (including unrelated third parties such as other staff members).  The Bill also provides that a surveillance devices warrant issued in relation to an integrity operation can only be issued for a period of 21 days.  An i ntegrity operation is intended to be a designed and targeted operation and therefore there is more control over when it is likely that the key activity will be undertaken and the key evidence likely to be collected.  It is considered that a period of 21 days is necessary to achieve the objective and is proportionate to the privacy impacts.

 

Use and disclosure of information - Integrity testing

 

The unlawful disclosure of information collected during an integrity testing operation will be prohibited under the Crimes Act 1914 .  Disclosure will be allowed for a limited range of purposes, including for use in disciplinary proceedings where the integrity test has exposed misconduct.  Information collected by the use of the controlled operations regime in the Crimes Act 1914 will also be protected under existing provisions in this Act.

 

The SD Act also regulates the use of information obtained under a surveillance device and the use of this information for purposes related to integrity testing operations will be limited to circumstances where it is necessary to do so for the listed purposes.

The TIA Act prohibits the use and disclosure of information obtained under the TIA Act, subject to certain exceptions.  The Bill makes amendments to the TIA Act to allow AFP, ACC, ACLEI to use and communicate information obtained under telecommunications interception warrants to support integrity operations, limited use and communication provisions apply to Customs.  The Bill does not amend the provisions authorising agencies to intercept communications or access stored communications.

The Bill also makes amendments to allow any interception agency to communicate interception information and stored communications information to AFP, ACC and ACLEI for integrity related purposes and operations.  This provision is consistent with existing provisions in the TIA Act that relate to the misconduct of AFP and ACC staff.  The Bill also makes amendments to allow ACLEI to communicate intercepted information to Customs in limited circumstances.  The use and communication will not be unlawful, as it will be sanctioned under the TIA Act. 

D isclosure of information for the purposes of disciplinary proceedings and other misconduct action is necessary to ensure that appropriate action can be taken against established corruption.  This use and communication will not be arbitrary, as it will serve the legitimate purpose of ensuring that this appropriate action can be taken and is subject to detailed provisions in the TIA Act.

 

Officers of the AFP, ACC and Customs and Border Protection are responsible for enforcing laws which protect and can impact upon others’ human rights.  They have access to a range of law enforcement powers and also privileged personal and other sensitive information.  Corrupt conduct often involves breaches of existing laws designed to protect against abuses of these powers or inappropriate disclosure of sensitive information.  The establishment of an integrity testing regime will assist in the enforcement of these laws designed to protect against unlawful interferences with privacy.

 

Expansion of ACLEI’s jurisdiction

 

This measure engages the right to privacy because the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act) provides that employees of agencies under ACLEI’s jurisdiction, or other individuals with information that is relevant to corruption within those agencies, can be required to provide information to ACLEI or to answer questions.  A failure to provide the information or answer a question is an offence.

 

As such, this measure impacts the right to privacy of employees of AUSTRAC, CrimTrac and DAFF as well as other individuals who may have information relevant to corruption matters in those agencies.

 

The ability to require an individual to provide information or answer questions is limited to situations where it will be relevant to an investigation of a corruption issue or the conduct of a public inquiry into corruption.  The LEIC Act also prescribes how information that is provided by individuals to ACLEI is able to be used and disclosed.  Disclosure is generally only permitted for the purposes of investigating a corruption issue or other purposes connected with the exercise of the functions of the Integrity Commissioner.

 

A person’s privacy is also protected by the provision of a ‘use’ immunity in relation to self-incriminatory evidence given by them at a hearing.  This means that self-incriminatory evidence is not admissible in evidence against the person in criminal proceedings.  The immunity protection does not apply to a small number of offences including providing false and misleading information or obstruction of a Commonwealth official.

 

As such, although the right to privacy is limited by this measure, it is appropriate and reasonable in the circumstances and includes protections to limit information from inappropriate use or disclosure.

 

Customs-specific integrity measures

 

Measures contained in the Bill will also increase the collection and use of personal information within Customs and Border Protection’s workplace, such as: results from mandatory drug and alcohol testing, mandatory disclosure of personal information, the compulsory physical intervention of a person for testing purposes. These measures do not limit the obligations of Customs and Border Protection under the Privacy Act 1988 .

 

In support of the Bill, it is intended that Customs and Border Protection will implement a drug testing process in line with the Australian Standards - Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine (AS/NZS 4308:2008) and Procedures for specimen collection and the detection and quantitation of drugs in oral fluid (AS 4760-2006). In relation to alcohol testing procedures, it is anticipated that Customs and Border Protection will use evidentiary breath analysing instruments which are recognised by Australian courts of law.

 

These controls will ensure the integrity of any results obtained and that retention of personal information will be directly related to the purpose of the intended testing arrangements. Any privacy limitations incurred as a result of these processes serve a legitimate objective and satisfy any reasonableness expectations attached to the right against arbitrary or unlawful interference with privacy. Significantly, the interferences with the right to privacy contained in this Bill are proportionate to the need to protect against corruption and unethical conduct in law enforcement.

 

Right to an effective remedy

 

The right to an effective remedy is protected in Article 2(3) (a) of the ICCPR.

 

Declaration of Serious Misconduct

 

The Bill proposes a new power whereby the Customs and Border Protection CEO may issue a written declaration of serious misconduct, which then removes the right of a terminated Customs and Border Protection employee seeking remedy (in relation to their dismissal) through the Fair Work Act 2009 .

 

While Article 2(3)(a) of the IPCCR is based on the premise that any person, who has their rights or freedoms violated, shall have an effective remedy, Article 2(3)(b) qualifies this right more prescriptively. Article 2(3)(b) states that the right shall be ‘…determined by competent judicial, administrative or legislative authorities, or by any competent authority provided for by the legal system of the state and to develop the possibilities of judicial remedy.’

 

The proposed power to make a declaration of serious misconduct only applies once a person has been dismissed and is separate to the dismissal process. The new power provided in the Bill does not alter or reduce the obligation on the agency to accord the person fair process when determining whether or not they have breached the Code of Conduct, and if they have, whether they should be dismissed as a sanction for that breach.

 

The power to issue the declaration only applies in the 24 hours after dismissal. As part of the dismissal process the affected employee will receive notice of the ground(s) for his or her dismissal. Additionally, the employee receives written details of the allegations as part of the investigation process, the opportunity to respond to those allegations, as well as the opportunity to respond to the decision maker’s finding and the proposed sanction of dismissal - this is part of the existing procedural requirements mandated by the Public Service Act 1999 for determining breaches of the Code of Conduct.

 

The declaration does not impact legal rights provided by other legislation or the common law, such as a General Protections claim under Part 3-1 of the Fair Work Act , claims under anti-discrimination legislation or judicial review (including under the Administrative Decisions (Judicial Review) Act 1977 .  The CEO’s written declaration of serious misconduct will be a reviewable decision under this Act. Customs and Border Protection workers are therefore provided an avenue to develop the possibilities of judicial remedy to their dismissal.

 

Right to freedom of assembly and association

 

The right to freedom of assembly and association is protected within Article 22 of the ICCPR.  This Bill will allow for the introduction of mandatory reporting requirements which would require Customs and Border Protection workers to report issues including any association or group that facilitated activities contributing to serious misconduct or corruption. The Bill may discourage Customs and Border Protection staff from joining or associating with an organisation, such as an Outlaw Motorcycle Gang, that is subject to criminal investigative scrutiny. Article 22(2) of the ICCPR specifies the legitimate aims for which any legal restriction on this right must pursue. These include restrictions which are provided for by law or necessary for the interests of national security, public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.

 

Given the importance of ensuring that Australia’s law enforcement is resilient to corruption and that the border is strengthened as a result of these measures, the mandatory reporting requirements of this Bill satisfy the national security, public safety and public interest tests, ensuring that the legitimate legal restrictions of ICCPR 22(2) are met.

 

Right to security of the person and freedom from arbitrary detention

 

This Bill may require Customs and Border Protection authorised officers to control movement of workers within a specified area, for the purpose of conducting mandatory testing. The right to liberty and security of the person is contained within Article 9 of the ICCPR. The Bill contains limitations on the permitted purposes of authorised officer directions, ensuring that the directions are for prescribed purposes and that the worker is aware of the reasoning behind it.

 

Significantly, the Bill does not prohibit the redress of any worker, in support of this right. Within Australia, the worker can take proceedings before a civil court. This is consistent with the intent of Article 9(4) of the ICCPR - the entitlement (of an individual) to take proceedings before a court, to determine the lawfulness of a direction.

 

Rights against discrimination

 

Article 26 of ICCPR and article 27 of the Convention on the Rights of Persons with Disabilities provides for the protection against discrimination on any ground such as race, colour, sex, language, religion, political or other status.

 

Customs and Border Protection has a responsibility under Commonwealth and State legislation to ensure that employees are not subjected to behaviour that may constitute unlawful harassment, discrimination or victimisation. Customs and Border Protection is committed to providing a work environment that is safe, fair and free from harassment, discrimination or bullying. All Customs workers have a responsibility to ensure that harassment is not tolerated.

 

This Bill does not limit the obligations of Customs and Border Protection under the existing Commonwealth and State legislation, related to equal opportunity, discrimination or harassment. In addition to legislation, inappropriate conduct may be a breach of the Australian Public Service Code of Conduct.

 

Fair trial and fair hearing rights and minimum guarantees in criminal proceedings

 

Article 14 of the ICCPR protects the right to a fair trial or hearing, while also ensuring minimum guarantees in criminal proceedings for defendants. Article 14 (2)(g) of the ICCPR protects the right of the person to not be compelled to testify against him or herself or to confess guilt.

 

This Bill proposes that the Customs and Border Protection CEO be given the power to compel a worker to answer directed questions.  Under this Bill, a Customs worker may be directed to provide answers which are potentially self-incriminatory in nature and/or provide information that progresses an investigation against a third party (another individual, individuals, group or association).

This Bill provides safeguards that protect the right of workers against self-incrimination in circumstances where they have been compelled to answer questions by the Customs CEO, by the provision of a use immunity preventing any of the self-incriminating evidence being used in criminal proceedings.

 

Should the information disclosed by a worker be used in a criminal proceeding against a third party, this Bill provides for a ‘rebuttable presumption’. This means that the person against whom the presumption applies may present evidence to the contrary, which then has the effect of nullifying the presumption. As a result, a court can still take a ‘case by case’ approach to determining the effects of any disclosure, coupled with an examination of the facts and circumstances that are peculiar to individual cases and a public interest test. Accordingly the right to a fair trial, including a defendant’s right to present an effective defence, will not be prejudiced by the Bill.

The intention of the power for the CEO to impose mandatory reporting requirements is to promote full disclosure by Customs workers of serious misconduct which they observe or are involved in, so that action can be taken against Customs workers involved in Corruption. It is important that Customs and Border Protection be able to act on and undertake further investigations in relation to information obtained under these powers.

 

The provision provides a balance between the public benefit in compelling the provision of information concerning possible corrupt activity affecting Customs and Border Protection and the right against self-incrimination.

 

Use of Lawfully Intercepted Information in Evidence

 

Any use of lawfully intercepted information as in criminal proceedings arising from an integrity testing operation will be compatible with the right to a fair trial in article 14 of the ICCPR.  Where the evidence is intended to be used in proceedings it will be made available to the defendant.  The court will retain the discretion to exclude evidence should it appear to limit the defendant’s ability to obtain a fair trial.

 

Integrity testing evidence - entrapment issues

It is acknowledged that the use of evidence obtained by ‘entrapment’ (where a person is induced commit an offence that they would not otherwise have committed) may jeopardise the fairness of a criminal trial.  Integrity testing operations, authorised under the provisions of this Bill, will not constitute ‘entrapment’.  Integrity testing operations will be designed to ensure that the subject of a test is provided with an equal opportunity to pass or fail the test, rather than be induced to fail the test.

Furthermore, if the outcome of an integrity test is sought to be used as evidence for criminal proceedings, the Court will retain the discretion to exclude the evidence if it considers that it was obtained through entrapment.

 

Overall, there will be specific safeguards built into the Bill to limit its purpose to only that which is necessary to give effect to appropriate law enforcement policy. All limitations are reasonable, necessary and proportionate.

 

Conclusion

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 



LAW ENFORCEMENT INTEGRITY LEGISLATION AMENDMENT BILL 2012

 

NOTES ON CLAUSES

Clause 1:

1.           This clause provides that when the Bill is enacted, it is to be cited as the Law Enforcement Integrity Legislation Amendment Act 2012 .

Clause 2:

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

Clause 3:

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



Schedule 1 - Integrity testing and expansion of coverage by ACLEI

Part 1 of Schedule 1 will introduce a legislative regime to support the introduction of targeted integrity testing for officers of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and the Australian Customs and Border Protection Service (Customs and Border Protection).

Integrity tests are operations designed to test whether a public official will respond to a simulated or controlled situation in a manner that is illegal or would contravene an agency’s standard of integrity.  For example, a test may involve the insertion of false information into a database to test whether an official, acting corruptly, may seek to unlawfully disclose that information to organised crime figures. Integrity testing is currently conducted in a range of State and Territory law enforcement agencies, however it is not currently conducted in any Commonwealth law enforcement agencies.

The Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, in the report on its inquiry into integrity testing, recommended that integrity testing be introduced to the AFP, ACC and Customs and Border Protection.  The Committee recommended that testing should be targeted at officers suspected of corrupt conduct and that the heads of these agencies, and the Integrity Commissioner, should be able to authorise testing.  The Committee also recommended that relevant legislation be amended, if necessary, to allow agencies to use covert policing powers when conducting integrity testing.

The amendments included in this Schedule will give effect to the recommendations of the Committee.  The amendments will ensure all staff members of the AFP, ACC and Customs who can currently be subject to an investigation by the Integrity Commissioner will be subject to integrity testing.  This includes employees of these agencies, and, in the case of the AFP and ACC, contractors and secondees.

Before authorising an integrity test, the authorising officer must be satisfied that there are reasonable grounds to suspect that a staff member has committed, or may commit, an offence punishable by 12 months’ imprisonment or more, as well as being satisfied that it is appropriate in all the circumstances to conduct the test.  This will ensure that integrity testing will be targeted towards serious wrongdoing, rather than conducted ‘at random’.  Amendments will also be made to the controlled operations provisions in the Crimes Act 1914 (in Part 1 of this Schedule) and to the Telecommunications (Interception and Access Act) 1979 and Surveillance Devices Act 2004 (in Part 3 of this Schedule) to support the conduct of integrity tests.

In addition to the criteria that must be satisfied before an integrity test can be authorised, there will also be strict rules about the use and disclosure of information obtained during integrity testing.  Use of that information in criminal and disciplinary proceedings will be permitted, while unauthorised disclosure will be an offence punishable by two years’ imprisonment, recognising the consequences that can follow by the disclosure of the fact an integrity test has occurred.

Agencies will be required to report to the Minister each year on the number and nature of integrity tests undertaken.  Agencies will also be required to notify the Integrity Commissioner when an integrity test is authorised. Where the tests relate to a corruption issue, the Integrity Commissioner will have the same level of oversight as the Commissioner currently exercises in relation to corruption investigations.

Part 2 of Schedule 1 will amend the Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act) to expand the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI).

The Integrity Commissioner, supported by ACLEI is responsible for preventing, detecting and investigating serious and systemic corruption issues in the Australian Crime Commission (ACC), the Australian Customs and Border Protection Service (Customs and Border Protection) and the Australian Federal Police (AFP).  The LEIC Act provides ACLEI with a range of enforcement powers to assist its investigations.

The expansion of ACLEI’s jurisdiction to include additional law enforcement agencies was recommended by the Parliamentary Joint Committee on ACLEI following its Inquiry into the Operation of the Law Enforcement Integrity Commissioner Act 2006

The amendments in this Schedule will to extend the jurisdiction of the Integrity Commissioner to include all staff in the Australian Transaction Reports and Analysis Centre (AUSTRAC) and the CrimTrac Agency, and to certain staff of the Department of Agriculture, Fisheries and Forestry.  Staff in these agencies have been identified as being subject to a higher potential risk of infiltration by organised crime due to the nature of their functions and responsibilities.

Part 3 of Schedule 1 contains amendments to the Australian Crime Commission Act 2002 (ACC Act), Telecommunications (Interception and Access Act 1979 (TIA Act) and Surveillance Devices Act 2004 (SD Act), to support the operation of integrity testing.

The amendments to the ACC Act will make clear that the ACC staff are able to participate in integrity testing operations, including by assisting other agencies in the conduct of integrity testing operations.

The amendments to the TIA Act will allow existing telecommunications information and existing stored communications accessed under the TIA Act to be communicated and used for integrity testing purposes by AFP, ACC and ACLEI.  Existing intercepted information will be permitted to be communicated to and used by Customs in limited circumstances.

The amendments to the SD Act will allow an AFP, ACC or ACLEI officer to apply to an eligible judge or nominated AAT member for a surveillance device warrant to record, monitor an integrity testing operation using a surveillance device.  This will be subject to existing reporting and oversight requirements contained in the SD Act.

 

Part 1 - Integrity testing

Crimes Act 1914

Items 1 to 8 - section 15GC ( definitions ).

Section 15GC defines the terms associated with the controlled operations regime set out in Part IAB of the Crimes Act. 

Items 1-3 will fix a technical error with existing definitions of ‘ACC authorising officer’, ‘ACLEI authorising officer’ and ‘AFP authorising officer’ to ensure that cross-references to the more extensive definitions of these terms in later sections of Part IAB are correct. 

Item 4 will insert a definition of ‘disciplinary or legal action’ which will include action in respect of alleged misconduct and termination action in relation to a staff member,  This definition will be used in provisions authorising disclosure of integrity testing and controlled operations information.

Items 5-8 will insert definitions associated with the new integrity testing regime into section 15GC.   The key definitions are as follows:

integrity testing authority - item 5 defines ‘integrity testing authority’ to mean an authority granted under the new Part IABA.  The authority will be the document or communication issued by an authorising officer that authorises the integrity testing operation.

integrity testing controlled operation authority - item 6 defines ‘integrity testing controlled operation authority’ to mean an authority granted under section 15GI on the basis of the grant of an integrity testing authority.  The authority will be the document or communication issued by an authorising officer that authorises the integrity testing controlled operation and any conduct that, in the absence of the authority, would be unlawful.

staff member - item 7 defines ‘staff member’ of a target agency as having the same meaning in relation to that agency as in the Law Enforcement Integrity Commissioner Act 2006 .  The Law Enforcement Integrity Commissioner Act 2006 , at subsections 10(1) to 10(3), outlines who is considered to be a staff member of the AFP, ACC and Customs for the purposes of a corruption investigation by the Integrity Commissioner.  These definitions will be used for the purposes of identifying who might be targeted by a controlled operation to ensure that the Integrity Commissioner can conduct an integrity testing controlled operation to support all corruption investigations (other than where the corruption issue involves an ACLEI staff member).

target agency - item 8 defines ‘target agency’ as the ACC, AFP or Customs and Border Protection.  Only staff members of these target agencies may be the subject of an integrity testing controlled operation authority.  This item will define those target agencies to enable an integrity testing controlled operation to be conducted in relation to their staff members.  As under the existing legislation, only an ACC, ACLEI or AFP authorising officer (as defined in section 15GC) will be able to authorise an integrity testing controlled operation on staff members of target agencies.

Items 9 and 10 - section 15GI ( determinations of applications )

Section 15GI provides that an authorising officer must not authorise a controlled operation unless he or she is satisfied, on reasonable grounds, of a number of specified matters.  The amendment to paragraph 15GI(2)(a) will allow an authorising officer to authorise a controlled operation where an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency.  The new notes to this subsection will make it clear that the offence referred to is one punishable by imprisonment of 12 months or more that has been, is being or is likely to be committed by a staff member of the ACC, AFP or Customs.

Under existing paragraph 15GI(2)(a), an authority to conduct a controlled operation may only be granted where an authorising officer is satisfied on reasonable grounds that a serious Commonwealth offence or a serious State offence with a federal aspect has been, or is likely to be, committed.  A serious Commonwealth offence is defined in subsection 15GE(1) as offence that involves a matter prescribed in subsection 15GE(2) and which is punishable by conviction for a period of three years or more.  Subsection 15GE(4) defines a serious State offence with a federal aspect as one that would be a serious Commonwealth offence if it were a Commonwealth offence.

As the legislation currently stands, a controlled operation authorisation could not be granted for the purpose of an integrity testing operation unless the threshold in paragraph 15GI(2)(a) was met.  Importantly, the current threshold would not cover key corruption offences such as unauthorised disclosure offences, which have maximum penalties of less than three years imprisonment, and would not allow the authorisation of a controlled operation where an AFP, ACC or Customs staff member is suspected to have committed, or be likely to commit, a State or Territory offence.  The amendments to paragraph 15GI(2)(a) will ensure that a controlled operation can be authorised under section 15GI for the purposes of an integrity testing operation where there are reasonable grounds to suspect that a Commonwealth, State or Territory offence punishable by imprisonment for 12 months or more has been, or is likely to be, committed by a target agency staff member. 

Item 11 -  section 15GK ( form of authority )

Section 15GK sets out the details that must be included in a controlled operation authority.  Subsection 15GK(1) sets out the details to be included in a formal authority and subsection 15GK(2) sets out the details to be included in an urgent authority.  These requirements are designed to ensure that the authority provides comprehensive information about the planned operation.  The following information will be required to be included in both formal and urgent authorities under the new subsections.

  • The nature of the criminal activity (including the relevant suspected offences) in respect of which the controlled conduct is to be engaged in.  Under the existing paragraphs 15GK(1)(d) and (2)(d), the nature of the criminal activity is limited to suspected serious Commonwealth offences and State offences with a federal aspect.  This paragraph will be amended to recognise that an integrity testing controlled operation may be authorised where the authorising officer has reasonable grounds to suspect that any Commonwealth, State or Territory offence has been or is likely to be committed. 
  • In the case of an integrity testing controlled operation authority, the integrity testing authority concerned.  This will enable the integrity testing authority which justified the integrity testing controlled operations authority to be readily identified.

Items 12 and 13 - section 15GN ( commencement and duration of authorities )

Section 15GN sets out when an authority to conduct a controlled operation commences and expires. 

New paragraph 15GN(3)(c) will provide that an integrity testing controlled operation authority has effect for the period set out in paragraph 15GK(1)(h) or (2)(h) (that is, the period of effect stated in the controlled operation authority, being a period not exceeding three months) unless the integrity testing authority concerned stops being in effect under Part IABA.

New subsection 15GN(4) will provide that an integrity testing controlled operation authority will expire at the time the integrity testing authority which underlies the integrity testing controlled operations authority (the earlier ITA) stops being in effect under Part IABA.  This provision will not apply if another integrity testing authority (the later ITA) is granted under Part IABA which continues the effect of the earlier ITA, as long as the later ITA has effect immediately after the earlier ITA expires.

These new provisions will ensure that a controlled operation authority does not stay in effect beyond the duration of the associated integrity testing authority which justified its authorisation.

Items 14 and 15 - section 15GQ ( determination of application to vary authority)

Section 15GQ sets out when an authorising officer may vary an authority to conduct a controlled operation.  The amendment to paragraph 15GQ(2)(a) will allow an authorising officer to vary a controlled operation where an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency.  The new notes to this subsection will make it clear that the offence referred to is one punishable by imprisonment of 12 months or more that has been, is being or is likely to be committed by a staff member of the ACC, AFP or Customs.

Under the existing paragraph 15GQ(2)(a), an authority to conduct a controlled operation cannot be  varied by an authorising officer unless the authorising officer is satisfied on reasonable grounds that a serious Commonwealth offence or a serious State offence with a federal aspect has been, or is likely to be, committed.  A serious Commonwealth offence is defined in subsection 15GE(1) as an offence that involves a matter prescribed in subsection 15GE(2) and which is punishable by conviction for a period of three years or more.  Subsection 15GE(4) defines a serious State offence with a federal aspect as one that would be a serious Commonwealth offence if it were a Commonwealth offence.

As the legislation currently stands, a controlled operation authority could not be varied by an authorising officer for the purpose of an integrity testing operation unless the threshold in paragraph 15GQ(2)(a) was met.  Importantly, the current threshold would not cover key corruption offences such as unauthorised disclosure offences, which have maximum penalties of less than three years’ imprisonment, and would not allow the variation of a controlled operation authority where an AFP, ACC or Customs staff member is suspected to have committed, or be likely to commit, a State or Territory offence.  The amendments to paragraph 15GQ(2)(a) will ensure that controlled operation authority can be varied by an authorising officer under section 15GQ for the purposes of an integrity testing operation where there are reasonable grounds to suspect that a Commonwealth, State or Territory offence punishable by imprisonment for 12 months or more has been, or is likely to be, committed by a staff member of the ACC, AFP or Customs. 

Items 16 and 17 - section 15GV ( variation of authorities by nominated Tribunal member: extensions beyond 3 months )

Section 15GV sets out when a nominated tribunal member may vary an authority to conduct a controlled operation. Under section 15GT, a nominated tribunal member is the only person able to vary an authority to extend the period of effect of that authority beyond three months. 

The amendment to paragraph 15GV(2)(a) will allow a nominated tribunal member to vary a controlled operation authority where an integrity testing authority is in effect in relation to an offence that it is suspected has been, is being or is likely to be committed by a staff member of a target agency.  The new notes to this subsection will make it clear that the offence referred to is one punishable by imprisonment of 12 months or more that has been, is being or is likely to be committed by a staff member of the ACC, AFP or Customs.

Currently, under paragraph 15GV(2)(a), a controlled operation authority cannot be varied by a nominated tribunal member unless the nominated tribunal member is satisfied on reasonable grounds that a serious Commonwealth offence or a serious State offence with a federal aspect has been, or is likely to be, committed.  A serious Commonwealth offence is defined in subsection 15GE(1) as offence that involves a matter prescribed in subsection 15GE(2) and which is punishable by conviction for a period of three years or more.  Subsection 15GE(4) defines a serious State offence with a federal aspect as one that would be a serious Commonwealth offence if it were a Commonwealth offence.

As the legislation currently stands, a controlled operation authority could not be varied by a nominated tribunal member for the purpose of an integrity testing operation unless the threshold in paragraph 15GV(2)(a) was met.  Importantly, the current threshold would not cover key corruption offences such as unauthorised disclosure offences, which have maximum penalties of less than three years’ imprisonment, and would not allow the variation of a controlled operation authority where an AFP, ACC or Customs officer is suspected to have committed, or be likely to commit, a State or Territory offence.  The amendments to paragraph 15GV(2)(a) will ensure that a controlled operation authority can be varied by a nominated tribunal member under section 15GV for the purposes of an integrity testing operation where there are reasonable grounds to suspect that a Commonwealth, State or Territory offence punishable by imprisonment for 12 months or more has been, or is likely to be, committed by a staff member of the ACC, AFP or Customs. 

Item 18 -  section 15HD ( effect of being unaware of variation or cancellation of an authority )

Under new subsections 15GN(3)(c) and (4), an integrity testing controlled operation authority stops being in effect at the same time the related integrity testing authority stops being in effect under new Part IABA.  Under new section 15JJ, an integrity testing authority stops being in effect on the date stated in the authority or variation or when cancelled under new section 15JL.

New subsection 15HD(2A) will ensure that if an integrity testing controlled operation authority stops being in effect, but a participant in the controlled operation is unaware of that fact (and is not reckless about the fact that the authority has stopped being in effect), then he or she is still protected from criminal liability under sections 15HA and 15HB, as if the integrity testing controlled operation authority were still in effect.

This provision will also ensure that evidence collected by the participant will continue to be protected against exclusion (under section 15GA) for as long as the participant is unaware of the variation or cancellation and is not reckless as to the existence of the variation or cancellation.

It is incumbent on participants in an integrity testing controlled operation to be aware of the start and end dates of the initial authority to conduct the operation. However, as decisions relating to authorities can be made without the knowledge of participants, it is necessary to include limited protection for activities that are undertaken after an authority has stopped being in effect, especially in situations where it may be difficult for the participant to contact the principal law enforcement officer.

This provision will require participants to take necessary steps to determine whether an authority is still in effect. This position is consistent with existing protections in section 15HD.

Items 19 to 23 - section 15HK ( unauthorised disclosure of information )

It is an offence under subsection 15HK(1) for a person to disclose information relating to a controlled operation.  A person will be guilty of this offence if he or she intentionally discloses any relevant information and knows that, or is reckless as to whether, the information related to a controlled operation.

However, the disclosure of information relating to a controlled operation is not an offence if the disclosure was of a kind authorised by subsection 15HK(2) or subsection 15HK(3).

Item 19 will insert a new heading above subsection 15HK(2) to make it clear that the exceptions outlined in that subsection apply generally to disclosures relating to any controlled operation.

Item 21 will insert new subsection 15HK(2A) to create specific exceptions for disclosures relating to  integrity testing controlled operations.  Under this subsection, the offence in subsection (1) will not apply if the disclosure was made:

·          in any of the circumstances where a general exception applies under paragraphs 15HK(2)(a) to (e)

·          in connection with the execution or administration of Part IABA of the Crimes Act or the Law Enforcement Integrity Commissioner Act 2006

·          for the purposes of the any disciplinary or legal action, if arising out of or otherwise related to a controlled operation, or

·          for a disclosure relating to an integrity testing authority to an authority of the Commonwealth, a State or Territory, if the disclosure related to the misconduct of an employee or officer of that authority.

Item 22 will amend the exception in paragraph 15HK(3)(c) so that the offence in subsection 15HK(1) will not apply if the information disclosed concerns a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 or misconduct in relation to a controlled operation.

These new and amended exceptions will allow information gathered in the course of an integrity testing controlled operation to be used in relevant legal, misconduct and disciplinary proceedings, including termination proceedings.   Specifically authorising the disclosure of information in circumstances where a controlled operation has taken place in support of an integrity test will allow evidence gathered during an integrity testing controlled operation to be used to take appropriate action against officers found to have engaged in misconduct or corrupt conduct.

As is the case with the existing exceptions in section 15HK, the person who disclosed the information will need to prove that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case, the ‘standard evidential burden’ defence is used, meaning that the defendant bears the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

Item 24 - 28 - section 15HL ( unauthorised disclosure of information - endangering safety etc )

Section 15HL creates an aggravated form of the offence in subsection 15HK(1).  As will be the case under item 19, item 24 will insert a new heading above subsection 15HL(2) to make it clear that the exceptions to the aggravated offence outlined in that subsection apply generally to disclosures relating to any controlled operation.

Item 26 will insert new subsection 15HL(2A) to create specific exceptions for disclosures relating to  integrity testing controlled operations.  Under this subsection, the offence in subsection 15HL(1) will not apply if the disclosure was made:

·          in any of the circumstances where a general exception applies under paragraphs 15HL(2)(a) to (e)

·          in connection with the execution or administration of Part IABA of the Crimes Act or the Law Enforcement Integrity Commissioner Act 2006

·          for the purposes of the any disciplinary or legal action, if arising out of or otherwise related to a controlled operation, or

·          for a disclosure relating to an integrity testing authority to an authority of the Commonwealth, a State or Territory, if the disclosure related to the misconduct of an employee or officer of that authority.

Item 27 will amend the exception in paragraph 15HL(3)(c) so that the offence in subsection 15HL(1) will not apply if the information disclosed concerns a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 or misconduct in relation to a controlled operation.

These new and amended exceptions will allow information gathered in the course of an integrity testing controlled operation to be used in relevant legal, misconduct and disciplinary proceedings, including termination proceedings.   Specifically authorising the disclosure of information in circumstances where a controlled operation has taken place in support of an integrity test will allow evidence gathered during an integrity testing controlled operation to be used to take appropriate action against officers found to have engaged in misconduct or corrupt conduct.

As is the case with the existing exceptions in section 15HL, the person who disclosed the information will need to prove that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter. In this case, the ‘standard evidential burden’ defence is used, meaning that the defendant bears the burden of adducing, or pointing to, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

Item 29 - After Part IAB

Item 29 will insert into the Crimes Act a new Part IABA, which will provide the legislative basis for the authorisation, conduct and reporting of integrity testing.

Division 1—Introduction

15JA  Integrity testing—simplified outline

Section 15JA will provide a simplified outline of Part IAB, to assist readers.

15JB  Integrity testing—concurrent operation of State and Territory laws

Section 15JB will provide that this new Part IABA of the Crimes Act is not to apply to the exclusion of a law of a State or Territory to the extent that the State or Territory law is capable of operating concurrently with this Part. This is important to enable cross-recognition of State and Territory integrity testing laws and ensure that States and Territories are able to independently conduct their own integrity testing operations.

15JC  Integrity testing—definitions

Section 15JC will define terms associated with the new integrity testing operations regime.  The key definitions will be:

appropriate authorising officer - this term will have the meaning given by new section 15JE which will set out which officers in the AFP, ACC, Customs and Border Protection and ACLEI, and in which circumstances, are able to authorise an integrity testing operation.

integrity testing agency - this means any of the ACC, ACLEI, AFP and Customs and Border Protection.  Only these agencies will be able to authorise an integrity testing operation.

integrity testing authority - will mean an authority granted under new section 15JG which enables an integrity testing operation to be conducted.

responsible staff member - means the staff member identified in the integrity testing authority as the staff member responsible for the conduct of the integrity testing operation.

target agency - this means any of the ACC, AFP or Customs and Border Protection.  Only staff members of these agencies can be the targets of an integrity testing operation.

15JD  Integrity testing—meaning of integrity testing operation

Section 15JD will provide the definition of an integrity testing operation.  An integrity testing operation will be defined as an operation using controlled or simulated situations to test the integrity of a staff member of the agency.  This provision clarifies that the purpose of conducting an integrity testing operation should be to test whether the staff member responds to the controlled or simulated situation in a way that is consistent with the relevant agency’s standards of integrity, or in a way that is corrupt or otherwise illegal.

Division 2—Integrity testing operations: authority

15JE  Integrity testing authorities—circumstances in which applications may be made

Subsection 15JE(1) sets out the various circumstances in which an application for an integrity testing authority can be made, and in each set of circumstances who is able to authorise an integrity testing authority.  The process of applying for an integrity testing authority is set out in new section 15JF and the process for authorising is set out in section 15JG.

Item 1 of the table states that if the proposed operation is concerned with the integrity of a staff member of the ACC, an integrity testing authority can be applied for by a staff member of the ACC.  The application can be considered by the CEO of the ACC, or an SES employee of the ACC who has been authorised in writing by the CEO to perform this function.

Item 2 of the table states that if the proposed operation is concerned with the integrity of a staff member of the AFP, an integrity testing authority can be applied for by a staff member of the AFP.  The application can be considered by the Commissioner of the AFP, a Deputy Commissioner, or an SES employee of the AFP who has been authorised in writing by the Commissioner to perform this function.

Item 3 of the table states that if the proposed operation is concerned with the integrity of a staff member of Customs and Border Protection, an integrity testing authority can be applied for by a staff member of Customs and Border Protection.  The application can be considered by the CEO of Customs and Border Protection, or an SES employee of Customs and Border Protection who has been authorised in writing by the CEO to perform this function.

Item 4 of the table states that if the proposed operation is concerned with a ‘corruption issue’ (as the term is defined in section 7 of the LEIC Act) which relates to a staff member of any target agency, an integrity testing authority can be applied for by either a staff member of the target agency, or a staff member of ACLEI.  The application can be considered by the Integrity Commissioner, an Assistant Integrity Commissioner or an SES employee of ACLEI authorised in writing by the Integrity Commissioner to perform this function.

Item 4 is intended to allow the Integrity Commissioner to authorise integrity testing operations to support an investigation into a corruption issue.  It is not intended to limit the ability of the heads of ACC, AFP and Customs and Border Protection to use integrity testing operations to investigate corruption issues in their own agencies.  Subsection 15JE(2) clarifies this intention.

15JF  Integrity testing authorities—application

Subsection 15JF(1) will set out the information that all applications for integrity testing authorities must include. Applications will be required to be in writing and provide sufficient information to enable the authorising officer to decide whether or not to authorise the proposed integrity testing operation. Applications will also be required to specify the proposed duration of the operation, and provide details of any previous applications that have been made, or authorities that have been granted, in respect of the proposed operation either for integrity testing operations or controlled operations under Part IAB.  The proposed duration of the authority must not exceed 12 months.  Twelve months is considered an appropriate time limit given the amount of preparatory work which may be required to conduct an integrity testing operation.  Section 15JK will allow for an extension to an integrity testing authority, for a total period of no more than 24 months (which is the same as the total period for which a controlled operation may be authorised).

Subsection 15JF(2) will provide that an authorising officer may ask the applicant to provide further information about the proposed controlled operation, where this is required for a proper consideration of the application.

15JG  Integrity testing authorities—grant

Subsection 15JG(1) will provide that the appropriate authorising officer may, after considering the application for authority and any additional information, decide to authorise the integrity testing operation or refuse the application.

Subsection 15JG(2) will provide that the authorising officer must not grant an integrity testing authorisation unless he or she is satisfied that all of the following conditions have been met:

·          There are reasonable grounds to suspect that an offence, punishable by imprisonment by 12 months or more, has been, is being, or is likely to be committed by a staff member of the target agency.  It will not be required that the identity of the staff member be known.  This is to ensure that integrity testing will be available where there is suspected misconduct or corruption in a particular work area, and integrity testing may be of assistance in identifying the person responsible for the misconduct.

·          That it is appropriate in all the circumstances to conduct the operation.  There may be other information available to the decision maker that suggests that an integrity testing operation may not be the most appropriate means to conduct an investigation of the suspected criminal activity.  This provision will ensure that the decision maker is able to take this information into account in making a decision.

·          In cases where the authorising officer is an officer of ACLEI, that the purpose of the operation is to investigate a ‘corruption issue’ (as defined in section 7 of the LEIC Act).  ACLEI’s role is to investigate the most significant instances of suspected corruption in Commonwealth law enforcement agencies.  This provision will ensure that ACLEI is only involved in integrity testing that involves suspected corrupt conduct.

Subsection 15JG(3) will clarify that an authorising officer may grant an authority for an integrity testing operation even if the operation has been the subject of a previous application or has previously been authorised.  This will provide agencies the flexibility to reopen investigations where new information comes to their attention.

Subsection 15JG(4) will clarify that an authority to conduct an integrity testing operation granted under this section is not a legislative instrument. A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act 2003 . In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15JG(4) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15JH  Integrity testing authorities—form

Section 15JH will set out the details that must be included in an integrity testing authority.  The following information will be required to be included:

·          the name and rank or position of the appropriate authorising officer (paragraphs 15JH(1)(a))

·          the responsible staff member for the integrity testing operation - as defined at section 15JC, this will be the law enforcement officer who is responsible for the conduct of the operation (paragraphs 15JH(1)(b))

·          the nature of the criminal activity (including the suspected offence in respect of which the operation is to be conducted (paragraphs 15JH(1)(c))

·          the identity of the individual people authorised to participate in the integrity testing operation (paragraph 15JH(1)(d)).  Subsection 15JH(2) will provide that a person may be identified by an assumed name, or a code name or number, provided that the authorising officer can match this name or number to the person’s real identity.  This will provide protection for a person who is participating in an integrity testing operation, as their life may be at risk if the persons targeted by the operation, or persons associated with the persons targeted, discovered that the person was conducting or assisting an investigation into their criminal activity

·          a description of the nature of the integrity testing operation (paragraph 15JH(1)(e))

·          the staff member or staff members who are the target of the operation, to the extent that this is known (paragraph 15JH(1)(f))

·          the period of effect of the authority (paragraph 15JH(1)(g)) - this will not be able to exceed 12 months (but can be extended by variation up to 24 months)

·          any other conditions to which the authority is subject (paragraph 15JH(1)(h))

·          the date and time at which the authority is granted (paragraph 15JH(1)(i).

 

15JI  Integrity testing authorities—notice to Integrity Commissioner

Section 15JI will require an authorising officer (as defined in 15JE) to provide a copy of the integrity testing authority to the responsible staff member for the operation and to the Integrity Commissioner as soon as practicable after granting the authority.

The responsible staff member for the operation (defined at section 15JC) is the staff member of the relevant agency responsible for the conduct of the operation.

The provision of the authority to the Integrity Commissioner will enable the Integrity Commissioner to have oversight of integrity testing activity occurring in agencies within ACLEI’s jurisdiction.  This will complement existing provisions in Part 4 of the LEIC Act, which provides for the Integrity Commissioner to have oversight generally of the investigation of corruption issues within these agencies.  In particular, the LEIC Act requires agency heads to notify the Integrity Commissioner of corruption issues, and provides that the Integrity Commissioner may decide to investigate a corruption issue or direct that the head of a law enforcement agency is not to investigate a corruption issue.

Where the integrity testing authorisation is granted by an officer of ACLEI, the requirement to notify the Integrity Commissioner will not apply.

15JJ  Integrity testing authorities—duration

Section 15JJ will set out when an authority to conduct an integrity testing operation commences and expires.

Subsection 15JJ(1) will provide that the authority is taken to come into effect at the time it is granted under section 15JG.

Subsection 15JJ(2) will provide that the authority will have effect for the period specified in the authority, unless it is cancelled before the end of that period (under section 15JL) or extended under section 15JK.  In the event that it is extended it ceases to have effect once the final period of extension is completed.

15JK  Integrity testing authorities—variation

Section 15JK will set out when an integrity testing authority may be varied by an appropriate authorising officer.  A variation may be necessary for a range of reasons, including to change the personnel involved in an integrity testing operation, or to change the responsible staff member, or to extend the period of the operation.

Subsection 15JK(1) will provide that a variation may be made by an appropriate authorising officer on his or her own initiative, or on application by the responsible staff member.

Subsection 15JK(2) will provide that a variation may extend the operation by up to 12 months, but not so that the total period of the authority is greater than 24 months.

Subsection 15JK(3) will require notice of the variation to be provided to the Integrity Commissioner, and the responsible staff member for the operation.

Subsection 15JK(4) clarifies that subsection 33(3) of the Acts Interpretation Act 1901 applies in relation to the variation of an integrity testing operation authority.  Subsection 33(3) of the Acts Interpretation Act provides that where an Act confers a power to grant an instrument the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.  This means that the power to vary an authority under section 15JK is subject to the same conditions as the power to grant an authority under new section 15JG.

Subsection 15JK(5) will clarify that a variation of an integrity testing operation authority made under this section is not a legislative instrument. A ‘legislative instrument’ is defined at section 5 of the Legislative Instruments Act 2003 . In general terms, a legislative instrument is a written document that is of a legislative character and that is made in the exercise of a power designated by Parliament. Requirements relating to registering, tabling, scrutinising and sunsetting all Commonwealth legislative instruments are imposed under the Legislative Instruments Act. Subsection 15JK(5) has been included to assist readers of the Crimes Act, so that they are aware that the requirements imposed by the Legislative Instruments Act do not apply to authorities issued under this section.

15JL  Integrity testing authorities—cancellation

Section 15JL will provide for the cancellation of integrity testing authorities.

Subsection 15JL(1) will provide that an appropriate authorising officer (as defined at section 15JC) may cancel an authority at any time and for any reason.

Subsection 15JL(2) will make clear than an appropriate authorising officer may cancel an authority at the request of the responsible staff member (who will be defined at section 15JC as the staff member responsible for the conduct of the integrity testing operation).

Subsection 15JL(3) will provide that a cancellation of an authority to conduct an integrity testing operation takes effect from the time the cancellation is made, or at a later time specified in the cancellation order.

15JM  Integrity testing authorities—defects

Section 15JM will provide that:

·          an application for an authority to conduct an integrity testing operation

·          an application for a variation to an authority

·          an authority,

·          or a variation of an authority

are not invalidated by defects, unless the defect materially affects the application, the authority or the variation of an authority. This provision will recognise that it would be inefficient and unreasonable if such documents were invalidated by minor matters that relate to form or process.

Division 3—Integrity testing operations: protection of participants

15JN  Integrity testing operations—authorised conduct

Subsection 15JN(1) will provide that an integrity testing authority authorises a participant to take part in the integrity testing operation, subject to any conditions in the authority issued under new section 15JG.

Subsection 15JN(2) will clarify that a participant in an integrity testing operation who has been authorised to engage in the operation is authorised for the period of effect of the authority to conduct the integrity testing operation unless:

·          the authority states that the person is authorised to engage in the conduct for a shorter period

·          the authority is varied (under new section 15JK) to state that the person is no longer authorised to participate the operation, or

·          the authority is cancelled (under new section 15JL) before the expiry of the period of effect specified in the authority.



Subsection 15JN(3) will specify that the authority to participate in the operation will not be able to be delegated to any other person.

 

15JO  Integrity testing operations—indemnity against civil liability

Section 15JO will provide that the Commonwealth must indemnify a participant in an authorised integrity testing operation (who may be a law enforcement officer or a civilian) against any civil liability incurred because of conduct that the participant engages in, provided the following requirements are met:

  • the conduct is in the course of, and for the purposes of, the integrity testing operation and in accordance with the authority to conduct the integrity testing operation
  • the participant is a person identified under proposed section 15JG to participate in the operation
  • the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit
  • the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person or involve the commission of a sexual offence against any person
  • if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer, and
  • any further requirements specified in the regulations.

15JP  Integrity testing operations—participants unaware of variation or cancellation of authority

An authority to conduct an integrity testing operation will be able to be varied under new section 15JK or cancelled under new section 15JL. New section 15JP will provide that if an authority is varied or cancelled, but a participant in the operation is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation), then he or she is still protected under new section 15JO, as if the variation or cancellation had not been made.

Subsection 15JP(3) will provide that a person is reckless about the existence of a variation or cancellation if he or she is aware of a substantial risk that the authority to conduct the controlled operation has been cancelled or varied and, taking into account the circumstances known to the person, it is unjustifiable for him or her to take the risk that the authority has not been cancelled or varied.

As decisions relating to authorities can be made without the knowledge of participants, it is necessary to include protection for activities that are undertaken after a cancellation or variation, especially in situations where it may be difficult for the participant to contact the responsible staff member.

Division 4—Integrity testing operations: disclosure of information

15JQ  Integrity testing operations—disclosure

Section 15JQ will create an offence of disclosing information relating to an integrity testing operation. A person will be guilty of this offence if he or she intentionally discloses any relevant information and knows that, or is reckless as to whether, the information relates to an authorised integrity testing operation.

However, the disclosure of information relating to an integrity testing operation will not be an offence if the disclosure was made:

·          in connection with the administration or execution of this Part IABA of the Crimes Act

·          for the purposes of obtaining legal advice in relation to the integrity testing operation

·          for the purposes of disciplinary or legal action arising out of the integrity testing operation

·          in connection with the administration of the LEIC Act

·          to an authority of the Commonwealth or a State or Territory, if the disclosure relates to the misconduct of an employee of the authority

·          in accordance with any requirement imposed by law

·          in connection with the performance of the functions or duties of the target agency, or

·          to the Integrity Commissioner if the disclosure concerns misconduct relating to an integrity testing operation.

These exceptions ensure that information relating to an integrity testing operation can be used by an agency to take appropriate disciplinary or other action based on the outcome of the integrity test.

The person who disclosed the information will need be able to adduce evidence that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter.  In this case making the defendant bears an evidential burden and must adduce, or point out, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be two years’ imprisonment. This offence will ensure the integrity of investigations and protect targets of integrity testing operations who are found to have behaved with integrity.

15JR  Integrity testing operations—disclosure endangering safety etc.

Section 15JR will create an aggravated form of the offence that will be created by new section 15JQ. The offence created by this section will be an indictable offence that will be committed if a person discloses information relating to an integrity testing operation and he or she:

 

·          intends that the disclosure of the information will endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation, or

·          is reckless as to whether the disclosure of the information could endanger the health or safety of any person or prejudice the effective conduct of an integrity testing operation.

 

As will be the case under new section 15JQ, the disclosure will not be an offence if the disclosure was made:

·          in connection with the administration or execution of this Part IABA of the Crimes Act

·          for the purposes of obtaining legal advice in relation to the integrity testing operation

·          for the purposes of disciplinary or legal action arising out of the integrity testing operation

·          in connection with the administration of the LEIC Act

·          to an authority of the Commonwealth or a State or Territory, if the disclosure relates to the misconduct of an employee of the authority

·          in accordance with any requirement imposed by law

·          in connection with the performance of the functions or duties of the target agency, or

·          to the Integrity Commissioner if the disclosure concerns misconduct relating to an integrity testing operation.

As will be the case with the non-aggravated offence under new section 15JQ, the person who disclosed the information will need to adduce evidence that these factors exist. This is consistent with the Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove that matter than for the defendant to establish it, it is appropriate to require the defendant to adduce evidence on the matter.  In this case making the defendant bears an evidential burden and must adduce, or point out, evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt.

The maximum penalty for this offence will be ten years’ imprisonment.

Division 5—Integrity testing operations: reporting

15JS  Integrity testing operations—annual reports

Section 15JS will require the chief officer of each authorising agency (that is, the AFP, the ACC, Customs and Border Protection or ACLEI) to prepare an annual report to the Minister, as soon as practicable after 30 June each year, on integrity testing operations authorised under this new Part IABA.

The report will be required to contain the details set out at subsection 15HN(2) for all the integrity testing operations authorised by the agency during the previous 12 months.  This includes:

  • the number of authorities granted
  • the nature of the suspected criminal activity in relation to which each authority was granted
  • the period of effect of each authority, including any extension granted, and
  • if an authority was cancelled, the reasons for cancellation.

Subsection 15JS(3) will provide that the report must not disclose any information that identifies, or is likely to identify, any person involved in the integrity testing operation. This provision is intended to protect the identity of persons involved in the conduct of integrity tests, and those targeted by integrity testing.  In particular, as integrity testing will present the target with an equal opportunity to either pass or fail the tests, it is important that the identity of persons targeted not be disclosed.

Subsection 15JS(4) will provide that the report is not required to disclose any information that gives particulars of an authorised operation that is not yet completed. Those particulars must instead be included in the report for the year in which the operation is completed.

Division 6—Integrity testing operations: evidence

Section 15JT will enable an authority granted under new section 15JG to be tendered in evidence in legal proceedings. Paragraph 15JT will provide that, in the absence of evidence to the contrary, the authority will be proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

Item 30 - Application of amendments in Part 1

This item is an application provision.  It clarifies that, once these amendments have commenced, an integrity testing authority can be granted based on circumstances which arose before, on or after the commencement of these amendments, including the suspicion of an offence that was committed before, on or after commencement.  This will ensure that an integrity testing authority can be granted in circumstances where the suspected misconduct occurred prior to the commencement of these amendments, or where it is unclear precisely when the suspected misconduct occurred.

Part 2—Expansion of coverage by ACLEI

Item 31 - Subsection 5(1)

Item 31 will define the term ‘Agriculture Department’ to mean the Department administered by the Minister administering the Primary Industries Levies and Charges Collection Act 1991 .  This is the Department of Agriculture, Fisheries and Forestry.  However, as names of Departments change from time to time, it is preferable to refer to a Department by reference to the Minister responsible for that Department.  The Minister for Agriculture, Forestry and Fisheries is currently exclusively responsible for the administration of the Primary Industries Levies and Charges Collection Act.  Referring to DAFF in this way will ensure the legislation is not affected by any change to the name of the Department.

Items 32 and 33 - Subsection 5(1)

These items will insert definitions of ‘Anti Money Laundering Act’ (the Anti-Money Laundering and Counter Terrorism Financing Act 2006 ) and AUSTRAC.

Item 34 - Subsection 5(1)

This item will fix a technical error in the definition of ‘disciplinary proceedings’ contained in subsection 5(1) of the LEIC Act.  The definition currently includes a reference to ‘Subdivision D of Division 5 of Part V’ of the Australian Federal Police Act 1979 .  There is no Subdivision D of Division 5 of Part V of the Australian Federal Police Act, and the definition should refer to Subdivision D of Division 3 of Part V, which relates to disciplinary proceedings.  This item corrects this error.

Item 35 - Subsection 5(1) (after paragraph (ba) of the definition of head)

This item will amend the definition of ‘head of a government agency’ in section 5 of the LEIC Act, to include the CEOs of AUSTRAC and CrimTrac and the Secretary of DAFF.

Item 36 - Subsection 5(1) (after paragraph (ba) of the definition of law enforcement agency )

This item will amend the definition of ‘law enforcement agency’ in section 5 of the LEIC Act to include AUSTRAC, CrimTrac and DAFF.

Item 37 - Subsection 5(1) (paragraph (a) of the definition of law enforcement secrecy provision )

This item replaces ‘ Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ’ in subsection 5(1) of the LEIC Act with ‘Anti-Money Laundering Act’.  ‘Anti-Money Laundering Act’ will be defined to mean the ‘ Anti-Money Laundering and Counter-Terrorism Financing Act 2006 ’.

Item 38 - After subsection 10(2A)

Section 10 of the LEIC Act defines ‘staff members of law enforcement agencies’ for the purposes of the Act.  The Integrity Commissioner has jurisdiction to investigate corruption issues relating to all persons identified as staff members of law enforcement agencies for the purposes of the LEIC Act.

This amendment will define as staff members of law enforcement agencies:

·          The CEO of AUSTRAC, all members of staff of AUSTRAC (as defined by section 224 of the AMLCTF Act), and consultants and secondees engaged by AUSTRAC under section 225 of the AMLCTF Act

·          The CEO of CrimTrac, all members of staff of CrimTrac, and consultants and secondees engaged by CrimTrac,

·          The Secretary of DAFF, and staff members of DAFF who belong to class of persons prescribed by regulation for the purposes of this subsection.

This amendment will ensure the entirety of AUSTRAC and CrimTrac are within jurisdiction.  However, only those parts of DAFF which warrant the oversight of the Integrity Commissioner will be brought within jurisdiction.  As a detailed description of particular positions will be required to capture precisely those DAFF staff within jurisdiction, this amendment will provide a power to prescribe those staff by Regulation.  It is intended that those regulations would prescribe staff who perform functions in relation to border control and compliance.

Item 39 - After paragraph 10(5)(ba)

Under the LEIC Act the Integrity Commissioner has an obligation to notify the head of a government agency about a corruption issue involving one of their employees who has been seconded to a law enforcement agency within jurisdiction.  This item amends section 10(5) of the LEIC Act to identify which staff members of AUSTRAC, CrimTrac and DAFF are to be considered secondees for this purpose. 

Item 40 - Application of amendments in Part 2

This item is an application provision that provides that ACLEI's jurisdiction to investigate any corrupt conduct by staff members of AUSTRAC, CrimTrac and DAFF extends to all conduct regardless of whether it was engaged in before or after the commencement of the LEIC Act on 30 June 2006. The effect of this provision is that the Integrity Commissioner can, of his or her own initiative, investigate corruption issues within these agencies irrespective of when the relevant conduct occurred.

 

Under section 19 of the LEIC Act, the head of a law enforcement agency within jurisdiction is required to notify the Integrity Commissioner in writing of a corruption issue as soon as practicable after the head becomes aware of the allegation or information that raises the issue.  The application provision ensures that this requirement only applies after the commencement

of the item.  This means that although the Integrity Commissioner will have the authority to investigate conduct occurring prior to the commencement of the Act, the notification obligation will only apply to conduct occurring after commencement.

 

Part 3 - Related Amendments

Australian Crime Commission Act 2002

Item 41 - Subsection 4(1) (at the end of the definition of ACC operation/investigation)

Subsection 4(1) defines a range of terms which are used in the ACC Act.  The term ‘ACC operation/investigation’ is defined to include either an intelligence operation that the ACC is undertaking, or an investigation into matters relating to federally relevant criminal activity that the ACC is conducting.  Such operations or investigations must be authorised by the Board of the ACC under paragraph 7C(1)(c) of the ACC Act.  The authorisation of such operations and investigation has a number of consequences, including where the Board has also determined the operation or investigation to be ‘special’ (under paragraph 7C(1)(d) of the ACC Act) enabling the use of the coercive powers found in Division 2 of Part II of the ACC Act.

It is not intended that an integrity testing operation be considered such an ACC operation or investigation.  This item amends the definition of an ‘ACC operation/investigation’ to make this clear.

Item 42 - Subsection 4(1)

This item inserts a definition of ‘integrity authority’ into subsection 4(1) of the ACC Act.  The term is defined to mean either an authority granted under either Part IAB of the Crimes Act authorising an integrity testing controlled operation or new Part IABA of the Crimes Act authorising an integrity testing operation.

Item 43 - Subsection 4(1)

This item inserts a definition of ‘integrity operation’ into subsection 4(1) of the ACC Act.  This term is defined to mean either a controlled operation authorised by an integrity testing controlled operation authority granted under Part IAB of the Crimes Act, as amended by this Bill, or an integrity testing operation authorised by an integrity testing authority granted under new Part IABA.

Items 44 and 45 - Subsection 4(1) (at the end of the definition of intelligence operation)

These items clarify that the terms ‘intelligence operation’ and ‘special ACC operation/investigation’ do not include integrity operations.

Item 46 - After paragraph 7A(c)

Section 7A of the ACC Act sets out the functions of the ACC.

This item will add a new paragraph (ca) to this section which makes clear that a function of the ACC is to do all things necessary to enable the conduct of integrity testing.  This provision is necessary as the ACC may not otherwise be authorised to conduct integrity testing.

Unlike other law enforcement agencies the ACC does not have general authority to conduct criminal investigations.  The ACC is authorised to conduct investigations of ‘relevant crime’ (as defined in section 4 of the ACC Act) using normal police powers only where authorised by the ACC Board.  If the Board additionally determines that an investigation is ‘special’ (under subsection 7C(2) of the ACC Act) the ACC can also make use of the coercive powers in Part II Division 2 of the ACC Act.  The effect of this arrangement is to imply that the ACC is not entitled to investigate suspected criminal offences that do not fall within the scope of a Board authorisation. 

This item will ensure that the ACC there is no doubt that the ACC is authorised to conduct integrity testing operations.

Surveillance Devices Act 2004

Item 47 - Subsection 6(1) (definition of disciplinary proceedings)

Item 47 repeals the existing definition of ‘disciplinary proceedings’ in subsection 6(1) of the Surveillance Devices Act 2004 (SD Act).  Item 47 substitutes a new definition of ‘disciplinary proceedings’ that has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).  The LEIC Act definition of ‘disciplinary proceedings’ means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory and includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979 (AFP Act) This subdivision was inserted into the AFP Act by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 to deal with actions relevant to performance management in the AFP, and the assessment of employment suitability in cases where there is an issue about an AFP appointee's conduct.

Item 48 - Subsection 6(1)

Item 48 inserts a new definition of ‘integrity authority’ into subsection 6(1) of the SD Act. An ‘integrity authority’ is defined to include an integrity testing authority or integrity testing controlled operation authority that is authorised under either Part IAB or Part IABA of the Crimes Act 1914.  ‘Integrity authority’ provides a portmanteau term for the purposes of the SD Act and has the effect that an agency can apply for a surveillance device warrant in relation to an integrity testing authority that includes a controlled operation authority or an integrity testing authority that does not include a controlled operation authority. 

Item 49 - Subsection 6(1)

Item 49 inserts a new definition of ‘integrity operation’ into subsection 6(1) of the SD Act.  An ‘integrity operation’ is defined to mean an integrity testing operation or integrity testing controlled operation authority authorised under either Part IAB or Part IABA of the Crimes Act 1914 .  The portmanteau term is used for the purposes of the SD Act as there is no practical difference in the treatment of an operation that does and does not include a controlled operation as part of the integrity operation. 

Item 50 - Subsection 6(1) (after paragraph (da) of the definition of relevant offence )

Item 50 inserts new paragraph (da) into the definition of ‘relevant offence’ in subsection 6(1) of the SD Act.  New paragraph (da) applies to a surveillance device warrant or tracking device authorisation for the purposes of an integrity operation.  The effect of the provision is to allow for applications for surveillance devices warrants and authorisations for a tracking device in relation to integrity operations to be made in relation to an offence against the law of the Commonwealth, or of a State or Territory, that is punishable by a maximum term of imprisonment of 12 months or more or for life.  The 12 month imprisonment penalty threshold is in recognition of the functions and responsibilities of these agencies which mean that staff of these agencies can pose an attractive target for criminal infiltration and corrupt compromise by organised crime groups.  The threshold is consistent with the threshold for an integrity authorisation under new Part IABA of the Crime Act 1914

Item 51 - Subsection 6(1)

Item 51 inserts a definition of ‘target agency’ into subsection 6(1) of the SD Act.  ‘Target agency’ is defined as the Australian Federal Police, the Australian Crime Commission or Customs and Border Protection.  Target agencies are those agencies which are included within the integrity testing regime and whose staff may be subject to an integrity testing authorisation.

Item 52 - Before subsection 14(1)

Section 14 of the SD Act establishes the application process for a surveillance device warrant.

Item 52 inserts a heading to subsection 14(1) of the SD Act to reflect that these provisions relate to warrants sought for the investigation of offences.  This is a technical drafting issue to provide for easier reading of the SD Act.

Item 53 - Before subsection 14(3)

Item 53 inserts a heading to subsection 14(3) of the SD Act to reflect that these provisions relate to warrants sought for recovery orders.  This is a technical drafting issue to provide for easier reading of the SD Act.

Item 54 - Before subsection 14(3A)

Item 54 inserts a heading to subsection 14(3A) of the SD Act to reflect that these provisions relate to warrants sought for mutual assistance investigations and related matters.  This is a technical drafting issue to provide for easier reading of the SD Act. 



Item 55 - After subsection 14(3A)

Item 55 inserts new subsection 14(3B) to the SD Act.  New subsection 14(3B) of the SD Act applies to warrants which are sought for integrity operations.  In recognition that an integrity operation is different in nature to the investigation of an offence, the considerations in applying for a warrant are different to those sought in relation to the investigation of offences.

A federal law enforcement officer (or a person on their behalf) may apply for a warrant if the following three-part test is satisfied.  First, an integrity authority which authorises an integrity operation must be in effect on the basis that it is suspected that an offence has been, is being, or is likely to be, committed by a staff member of a target agency.  Secondly, that the federal law enforcement officer suspects on reasonable grounds that the use of the surveillance device will assist in the conduct of the integrity operation by recording or monitoring the operation.  Thirdly, that the federal law enforcement officer suspects on reasonable grounds that the use of the surveillance device will assist the conduct of the integrity operation by enabling the collection of evidence relating to the commission of the offence, or the integrity, location or identity of any staff member of the target agency.

Applications are limited to federal law enforcement officers. A ‘federal law enforcement officer’ is a subset of the definition of ‘law enforcement officer’. Thus, ‘federal law enforcement officer’ includes all AFP, ACLEI and ACC staff members and employees including the chief officers.  Applications may only be made where an integrity authority is in effect which authorises an integrity operation. 

Item 55 also inserts a heading for subsection 14(4) of the SD Act to reflect that the provisions in subsection 14(4) - (7) of the SD Act relate to the procedure for making applications.  This is a technical drafting issue to provide for easier reading of the SD Act. 

The procedure for making an application under new subsection 14(3B) of the SD Act does not specifically require the identification of the integrity authority, as the integrity authority would be included in an affidavit setting out the “grounds on which the warrants is sought” (see paragraph 14(5)(b)).        

Item 56 - Subsection 14(4)

Item 56 omits ‘or (3A)’ from subsection 14(4) of the SD Act and replaces it with ‘(3A) or (3B)’.  Subsection 14(4) of the SD Act deals with the procedure for making applications for a surveillance device warrant, namely that an application may be made to an eligible Judge or a nominated AAT member.  Subsection 14(4) of the SD Act has been amended to allow applications for integrity operations under new subsection 14(3B) of the SD Act to be made to an eligible Judge or nominated AAT member.

Item 57 - After paragraph 16(1)(ba)

Item 57 inserts new paragraph (bb) to subsection 16(1) of the SD Act to require that, in determining an application in relation to a warrant sought for the purposes of an integrity operation, the eligible Judge or nominated AAT member must be satisfied that:

·          the integrity authority is in effect, and

·          that there are reasonable grounds for the suspicions founding the application.

The Judge or nominated AAT member makes an independent decision as to whether to authorise the use of this investigative tool.

Item 58 and 59 - Paragraph 16(2)(a) and (e)

Subsection 16(2) of the SD Act lists six matters that an eligible Judge or nominated AAT member must have regard to when considering a surveillance device warrant.

Item 58 amends paragraph 16(2)(a) of the SD Act to require that the eligible Judge or nominated AAT member has regard to the nature and gravity of the alleged offence in relation to which an integrity authority has been granted.

Subsection 16(2) of the SD Act recognises and balances the competing public interest in timely and effective law enforcement and the intrusion on the privacy of a group or individual. It is a matter for the judge or AAT member hearing the application to balance these interests in the circumstances of each application.

Item 59 amends paragraph 16(2)(e) of the SD Act to require the eligible Judge or nominated AAT member to have regard to the likely evidentiary or intelligence value of any evidence or information sought to be obtained in relation to the integrity operation.

Item 60 - After subparagraph 17(1)(b)(iiia)

Subsection 17(1) of the SD Act sets out the information that a surveillance device warrant must contain, amongst other things, the name of the applicant and the kinds of surveillance devices authorised to be used under the warrant. This requirement ensures that law enforcement agencies have clear guidance on their powers under the surveillance device warrant and are accountable for the proper execution of such warrants.

Item 60 inserts new subparagraph 17(1)(b)(iiib) to the SD Act to require that, if a warrant is issued for the purposes of an integrity operation, then the warrant must specify the integrity authority and each of the alleged relevant offences in relation to which the authority was granted.

Item 61 - Subparagraph 17(1)(b)(ix)

Subsection 17(1) of the SD Act also requires that a surveillance device warrant contain information about the period which the warrant is to be in force.

Item 61 substitutes the existing period in subparagraph 17(1)(b)(ix) of the SD Act with a reference to new subsection 17(1A) of the SD Act as a surveillance device warrant which is issued for an integrity operation has a reduced maximum period of time for which it may be in force when compared with a surveillance device issued for other purposes.

Item 62 - After subsection 17(1)

Item 62 inserts new subsection (1A) to section 17 of the SD Act to reflect that surveillance device warrants have two distinct periods of time that they may be in force.  A surveillance device warrant that is issued for the purposes of an integrity operation can only be issued for a period of no more than 21 days.  All other surveillance device warrants issued under this Act can be issued for a period of no more than 90 days.

Item 62 reflects that an integrity operation is intended to be a designed and targeted operation and therefore there is more control over when it is likely that the key activity will be undertaken and the key evidence likely to be collected. 

The Note refers readers to the related section 21 of the SD Act in relation to discontinuance of a surveillance device warrant. 

Item 63 - Paragraph 19(1)(a)

Section 19 allows a law enforcement officer to apply at any time, while the warrant remains valid, for an extension of the warrant or a variation of its terms. Such an application can be made more than once. In this way, some flexibility is built in to the warrant process so that it is responsive to the operational needs of law enforcement officers as and when they arise.

Item 63 repeals the existing paragraph 19(1)(a) and substitutes new paragraph 19(1)(a) to reflect that a warrant issued for the purposes of an integrity operation is limited to a period of 21 days.  The warrant can also only be extended for a period not exceeding 21 days from the day on which it would normally expire, but for the extensions. Such an application must be made to an eligible Judge or nominated AAT member.  Warrants for other purposes can be extended for a period not exceeding 90 days from the day on which it would normally expire, but for the extensions.

Item 64 - Subsection 20(2)

Section 20 of the SD Act deals with the revocation of a surveillance device warrant.  Subsection 20(2) of the SD Act outlines specific requirements that relate to circumstances set out in Section 21 of the SD Act. 

Item 64 is a consequential amendment to update references in subsection 20(2) of the SD Act to include a reference to new subsection 21(3B) to the SD Act in relation to integrity operations.

Item 65 - After subsection 21(3A)

Section 21 of the SD Act deals with the discontinuance of use of a surveillance device under a warrant and is related to section 20 which deals with the revocation of surveillance device warrants. 

Item 65 inserts new subsection 21(3B) to the SD Act to provide that, where a surveillance device warrant has been sought for surveillance in relation to an integrity operation, and the chief officer is satisfied that the use of the surveillance device is no longer necessary for the purposes of the integrity operation or that the integrity authority for the integrity operation is no longer in effect, the chief officer is obliged to revoke the warrant under section 20 of the SD Act and ensure that the use of the surveillance device specified in the warrants is discontinued.



Item 66 - After paragraph 21(5)(c)

Item 66 inserts new paragraph 21(5)(d) to the SD Act.  New paragraph 21(5)(d) provides that, where a federal law enforcement officer to whom the warrant was issued or who is named in the warrant as being the officer primarily responsible for its execution is satisfied that the surveillance device is no longer required for the purpose for which it was issued (the integrity operation) or if the integrity authority for the integrity operation is no longer in effect, they must immediately inform the chief officer of their agency.  The chief officer, under new subsection 21(3B) of the SD Act must take the necessary steps to see that the use of the surveillance device is discontinued and revoke the warrant under section 20 of the SD Act.  In this way, it is intended that surveillance devices are used only when required for the purpose for which they were issued. 

Item 67 - After subsection 39(3)

Section 39 of the SD Act allows limited use of a tracking device following an internal authorisation. This reflects the less intrusive nature of tracking devices compared with other types of surveillance devices. However, where such use requires a greater level of intrusion (such as entry onto premises without permission), a full surveillance device warrant is required.

Item 67 inserts new subsection 39(3A) to the SD Act to authorise a federal law enforcement officer to use a tracking device with the written permission of an appropriate authorising officer, in conjunction with an integrity operation. 

Items 68 and 69 - Subsections 39(4), 39(5) and 39(7)

Subsection 39(4) of the SD Act stipulates that subsection 39(3) is to take precedence over any other law of Australia, including any principles of common law, which forbids the use of a tracking device without a warrant.

Subsection 39(5) of the SD Act provides that, where an appropriate authorising officer has given their written permission for the use of a tracking device, that permission may authorise the law enforcement officer to use more than one tracking device.

Subsection 39(7) of the SD Act provides that a tracking device authorisation given under subsections 39(1) or (3) is to indicate the period for which the authorisation is to remain in force. As with surveillance device and retrieval warrants, this period must not exceed 90 days.

Items 68 and 69 are consequential amendments to substitute references to subsection 39(3) of the SD Act with references to both subsection (3) and (3A) to ensure that the provisions relating to tracking devices also apply to tracking devices authorised in relation to integrity operations.

Item 70 - After paragraph 40(1)(d)

Section 40 of the SD Act requires the appropriate authorising officer, who has given their permission for the use of a tracking device without a warrant under section 39, to make a written record of giving the authorisation as soon as practicable after giving the authorisation. The record is to contain the matters listed in paragraphs (a) to (k) of subsection 40(1) of the SD Act.  These matters include the name of the applicant for the authorisation, the date and time when permission was given, the nature of the authorisation given and the period during which the warrant is in force, not exceeding a period of 90 days.

Item 70 inserts new paragraph 40(1)(da) to the SD Act to provide that, in relation to a tracking device for the purposes of an integrity operation, the matters which are to be recorded must also include details identifying the integrity authority for the integrity operation and each alleged relevant offence. 

Item 71 - Paragraphs 45(1)(c) and (2)(c)

Subsection 45 of the SD Act creates two offences with respect to the unlawful use, recording, communication, publication or admission in evidence of protected information.   ‘Protected information’ is defined in section 44 of the SD Act and is information subject to restrictions on its use, communication or publication because such information relates to law enforcement operational matters and because the use of such information may harm the privacy of individuals or groups.

Subsection 45(1) of the SD Act makes it an offence if a person uses, records, communicates or publishes any information, or admits it in evidence, when that information falls within the definition of protected information and such use is not permitted by one of the exceptions.  Subsection 45(2) makes it an offence if a person uses, records, communicates or publishes any information, or admits it in evidence, when that information falls within the definition of protected information and such use is not permitted by one of the exceptions.

Item 71 is a consequential amendment to  insert a reference to new section 45A of the SD Act to reflect that the exceptions to the offences in subsections 45(1) and (2) are those which are contained in both section 45 and new section 45A which deals with protected information related to integrity operations.

Item 72 - After section 45

Item 72 inserts new section 45A to the SD Act.  New section 45A provides the exceptions which apply for dealing with protected information related to integrity operations.  These exceptions are intended to apply to all aspects of the integrity operation and authority itself as well as outcomes arising from the integrity operation.

New subsection 45A(2) of the SD Act states that the exceptions contained in 45A are not intended to limit exceptions in subsection 45(4) and (5).   

Subsection 45(7) of the SD Act provides that protected information obtained through the use of a surveillance device by a law enforcement officer of a particular law enforcement agency and that is communicated to another law enforcement agency, or an agency that is not a law enforcement agency, may only be communicated within that second agency for the purpose for which it was communicated and it may not, except for the purpose of bringing a relevant proceeding, be communicated to any person who is not a member of that second agency. This is intended to protect the privacy of groups or individuals who may have been recorded or monitored using a surveillance device.

New subsection 45A(3) of the SD Act removes the restriction in subsection 45(7) for information that has been communicated in relation to integrity operation.  This is necessary to ensure that the SD Act does not limit the sharing of information that is required between ACLEI and other agencies.  For example, if the ACC were to pass protected information under subsection 45A(1) to the AFP in relation to an integrity issue related to the AFP - as a result of subsection 45A(3), the AFP are then permitted to pass that protected information to ACLEI.

New subsection 45A(5) defines, for the purpose of section 45A, ‘disciplinary or legal action’.  ‘Disciplinary or legal action’ includes consideration of whether disciplinary or legal action should be taken or brought.  The definition of ‘disciplinary or legal action’ is the same as that in new section 15JC of the Crimes Act 1914

New subsection 45A(5) also defines, for the purpose of section 45A, ‘staff member’ of a target agency.  ‘Staff member’ of a target agency means a staff member of that agency within the meaning of section 10 of the Law Enforcement Integrity Commission Act 2006 .

Item 73 - Subparagraph 46(1)(b)(i)

Section 46 of the SD Act sets out how records obtained by the use of surveillance devices must be dealt with.  Paragraph 46(1)(b) of the SD Act provides that a record or report which comprises ‘protected information’ (which is defined by section 44) held by a ‘law enforcement agency’ (which is defined in section 6) must be destroyed as soon as practicable where the chief officer is satisfied that no civil or criminal proceedings to which the record or report relates has been, or is likely to be, commenced and; that the material in the record or report is not likely to be required in connection with an activity in subsection 45(4) or a purpose in subsection 45(5) which relate to, broadly speaking, what can be done with protected information.

Item 73 inserts a reference to new subsection 45A(1) to permit information which is likely to be required for a purpose in new subsection 45A(1) to be exempt from this destruction requirement.

Item 74 - Subsection 46(2)

Subsection 46(2) of the SD Act imposes the same duties that the chief officer of a law enforcement agency has under subsection 46(1) of the SD Act on the officers in charge of an agency that is not a law enforcement agency.  Such an agency might be, for example, the Commonwealth Director of Public Prosecutions or the Department of Agriculture, Fisheries and Forestry.

Item 74 inserts a reference to new subsection 45A(1) to require that these obligations apply to an agency that has received records or reports obtained by use of a surveillance device under new subsection 45A(1).



Item 75 - Subparagraph 46(2)(b)(i)

Item 75 inserts a reference to new subsection 45A(1) in subparagraph 46(2)(b)(i) of the SD Act.  This ensures a record or report that is likely to be required for a purpose referred to in new subsection 45A(1) is not destroyed. 

Item 76 - After subparagraph 49(2)(b)(x)

Section 49 of the SD Act  sets out the reporting requirements incumbent upon the chief officer of each law enforcement agency to which a law enforcement officer belongs, or is seconded, to whom a warrant or an emergency or tracking device authorisation is issued. This ensures that law enforcement agencies are accountable for the use of surveillance devices under warrants and authorisations.  Paragraph 49(2)(b) of the SD Act sets out the information that must be contained in each report. 

Item 76 inserts new subparagraph 49(2)(b)(xa) to require that, if a warrant is issued or the authorisation given for the purposes of an integrity test, then details of the benefits to the operation and the general use of any evidence or information must be reported.  This new paragraph reflects a similar requirement with respect to a warrant or authorisation in respect of the investigation of a relevant offence of in respect of the location and safe recovery of a child.

Item 77 - After subparagraph 53(2)(c)(iiia)

Section 53 of the SD Act requires the chief officer of a law enforcement agency to cause a register of warrants and emergency and tracking device authorisations sought by law enforcement officers of their agency to be kept.  Subsection 53(2) of the SD Act specifies what must be included in the register with respect of warrants.

Item 77 inserts new paragraph 53(2)(c)(iiib) to the SD Act to require that, if a warrant was issued for the purposes of an integrity operation, details identifying the integrity authority and the relevant offences in respect of the integrity authority must be included.

Item 78 - At the end of paragraph 53(4)(c)

Subsection 53(4) of the SD Act specifies what information must be included in the register with respect of tracking device authorisations.

Item 78 adds new subparagraph 53(4)(c)(iv) to the SD Act to require details identifying the integrity authority and the relevant offence to be recorded if a tracking device authorisations was given for the purposes of an integrity operation.

Telecommunications (Interception and Access) Act 1979

Item 79 - Subsection 5(1)

Item 79 inserts a new definition of ‘integrity authority’ into subsection 5(1) of the TIA Act. An ‘integrity authority’ is defined to include both an integrity testing authority that is authorised under Part IAB or Part IABA of the Crimes Act 1914.  ‘Integrity authority’ provides a portmanteau term for the purposes of the TIA Act and has the effect that no distinction is made between an integrity testing authority that includes a controlled operation authority and an integrity testing authority that does not include a controlled operation authority. 

Item 80 - Subsection 5(1)

Item 80 inserts a new definition of ‘integrity operation’ into subsection 5(1) of the TIA Act.  An ‘integrity operation’ is defined to include both those which do and do not include a controlled operation authorisation as part of the integrity test.  The portmanteau term is used for the purposes of the TIA Act as there is no practical difference in the treatment of an operation that does and does not include a controlled operation as part of the integrity operation.

Item 81 - Subsection 5(1) (definition of permitted purpose )

The definition of ‘permitted purpose’ in subsection 5(1) of the TIA Act refers to the circumstances in which an interception agency, eligible Commonwealth authority, or eligible authority of a State can communicate, use or make a record of lawfully intercepted information or interception warrant information under the TIA Act.  The circumstances include the functions of each eligible authority as set out in their governing legislation.

Item 81 inserts a reference to “Customs” after “intercepted agency” in the definition of ‘permitted purpose’ in subsection 5(1) of the TIA Act to reflect the inclusion of a permitted purpose for Customs.

Item 82 - Subsection 5(1) (paragraph (a) of the definition of permitted purpose )

Item 82 inserts a reference to “(except in the case of Customs)” to reflect that the permitted purposes in paragraph 5(1)(a) do not apply to Customs. 

Item 83 - Subsection 5(1) (after paragraph (a) of the definition of permitted purpose )

Item 83 inserts new paragraph 5(1)(aaa) into the definition of ‘permitted purpose’ in the TIA Act as it relates to any Commonwealth agency or Customs.  Commonwealth agencies are defined in subsection 5(1) of the TIA Act as the AFP, ACC and ACLEI. 

New paragraph 5(1)(aaa) creates new permitted purposes for Commonwealth agencies and Customs.

Item 84 - After paragraph 5B(1)(ea)

Under section 74 of the TIA Act, a person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding.  Subsection 5B(1) of the TIA Act defines ‘exempt proceeding’.

Item 84 inserts new paragraph 5B(1)(eb) into the definition of ‘exempt proceeding’ to allow lawfully intercepted information, other than foreign intelligence information, to be given in evidence in proceedings related to disciplinary or legal action in relation to an eligible staff member of the AFP or the ACC.  ‘Disciplinary or legal action’ is defined in new section 6S of the TIA Act.

Item 85 - After section 6R

Item 85 inserts new section 6S into the TIA Act.  New section 6S of the TIA Act defines permitted purposes as they relate to integrity purposes for a Commonwealth agency or Customs.

Item 1 of new subsection 6S(1) of the TIA Act permits the AFP, ACC, Customs and ACLEI to use lawfully intercepted information for a purpose connected with:

·          decisions about whether to apply for an integrity authority

·          designing an integrity operation (use of lawfully intercepted material is not permitted in the conduct of the integrity operation)

·          applications for an integrity authority, and

·          the granting of an integrity authority.

 

Item 2 of new subsection 6S(1) of the TIA Act permits the AFP, ACC and ACLEI to use lawfully intercepted information for a purpose connected with an application for a warrant, authorisation or order, under a law of the Commonwealth, that is made for the purposes of an integrity operation.  For example, the AFP would be permitted to use lawfully intercepted information in an affidavit in support of an application for a surveillance devices warrant under the Surveillance Devices Act 2004 for the purpose of an integrity operation.

 

Item 3 of new subsection 6S(1) of the TIA Act permits the AFP and ACC to use lawfully intercepted information in connection with disciplinary or legal action in relation to an eligible staff member arising out of an integrity operation.  ACLEI is not included within Item 3 as it does not have functions in relation to the disciplinary action of staff of these agencies. 

 

‘Disciplinary or legal action’ is defined in new subsection 6S(2) of the TIA Act and includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.

 

‘Eligible staff member’ is defined in new subsection 6S(2) as meaning a staff member within the meaning of section 10 of the Law Enforcement Integrity Commissioner Act 2006.  

 

Item 86 - At the end of section 68

Section 68 of the TIA Act provides that a chief officer of an agency may communicate lawfully intercepted information that was obtained by that agency or interception warrant information in prescribed circumstances.

Item 86 adds new paragraph 68(m) to the TIA Act to provide that a chief officer of an agency (an agency eligible to intercept communications) may communicate lawfully intercepted information or interception warrant information to the chief officer of the AFP or the ACC if the information appears to relate to a matter in relation to which an application for an integrity authority may be made, is intended to be made or has been made in relation to that agency or a matter in relation to which an integrity operation has, may be or is intended to be conducted in relation to that agency. 

Item 86 adds new paragraph 68(n) to the TIA Act to provide that a chief officer of an agency (an agency eligible to intercept communications) may communicate lawfully intercepted information or interception warrant information to the chief officer of ACLEI if the information appears to relate to a matter in relation to which ACLEI may make or is intending to make or has made  an application for an integrity authority in relation to the AFP, ACC of Customs as well as a matter in relation to which ACLEI has conducted or is conducting an integrity operation.

Item 86 adds new paragraph 68(o) to the TIA Act to provide the circumstances in which ACLEI may pass lawfully intercepted information or interception warrant information to the CEO of Customs.  These circumstances are limited to where the information relates or appears to relate to a matter in relation to which an applications for an integrity authority may be made, is intended to be made of has been made in relation to Customs and a matter in relation to which Customs is conducting an integrity operation.   

Item 87 - Subsection 139(1)

Item 87 inserts “(other than a purpose referred to in subsection 139A(2), if applicable)” into subsection 139(1) of the TIA Act.  This amendment has the effect that the provisions in section 139 operate in conjunction with the provisions in new section 139A.  Subsection 139(1) does not operate to restrict Commonwealth agencies from communicating to another person, making use of, or making a record of lawfully accessed information other than foreign intelligence information and stored communications warrant information if they may do so under new section 139A.

Item 88 - After section 139

Item 88 inserts new section 139A after section 139.  This amendment will provide that for the purposes of integrity investigations and operations, an officer or staff member of a Commonwealth agency may communicate, make use of or record certain information in defined circumstances.

New subsection 139A(1) provides that an officer or staff member of a Commonwealth agency may communicate to another person, make use of, or record lawfully access information other than foreign intelligence information and stored communications warrant information for a purpose referred to in subsection 139(1), if applicable, or for a purpose in subsection 139A(2).

New subsection 139A(2) provides that the information referred to in new subsection 139A(2) may be communicated to another person, made use of, or be recorded in accordance with a permitted purpose in relation to the agency, or another Commonwealth agency referred to in section 6S or for purposes connected with the keeping of records by the agency or authority under Part 3-5.

Item 89 - Section 142

Item 89 makes a consequential change to insert “or 139A” after “139” in section 142.



Item 90 - Paragraph 150(1)(b)

Section 150 of the TIA Act provides that the chief officer of an agency must cause information or a record that was obtained by accessing a stored communication and that is in the possession of an agency to be destroyed, if that information is not likely to be required for an investigative purpose.

Item 90 makes a consequential amendment to paragraph 150(1)(b) to provide that the chief officers of a Commonwealth agency must cause information or a record that was obtained by accessing a stored communication to be destroyed if it is not required for a purpose referred to in subsection 139(2) or 139A.

Item 91 - Application of amendments in Part 3

Item 91 is an application provision.

Amendment of the Surveillances Devices Act 2004

Sub-item 91(1) clarifies that a surveillance device warrant and a tracking device authorisation may be sought under proposed subsections 14(3B) and 39(A) respectively the for the purposes of an integrity operation in which an integrity authority has been granted whether the conduct constituting the suspected offence to which the operation relates occurred (or is alleged to have occurred) on or after the commencement of Part 3 of Schedule 1.

Sub-item 91(2) clarifies that proposed section 45A that specifies the exceptions which apply for dealing with protected information in relation to integrity operations apply where the information was obtained or created before, on or after the commencement of Part 3 to Schedule 1.

Amendment of the Telecommunications (Interception and Access) Act 1979

Sub-item 91(4) clarifies that a chief officer of an agency (an agency eligible to intercept communications) may communicate lawfully intercepted information or interception warrant information under proposed paragraphs 68(m), (n) and (o) in relation to integrity related matters where the information was obtained or created before, on or after the commencement of Part 3 to Schedule 1.

Sub-item 91(5) clarifies that lawfully accessed information or stored communications warrant information may be communicated under proposed section 139A to a Commonwealth agency on or after the commencement of Part 3 of Schedule 1 where the information was obtained or the stored communications warrant was issued before, on or after the commencement of Part 3 to Schedule 1.

Sub-item 91(6) clarifies that lawfully intercepted information (other than foreign intelligence information) and lawfully accessed information may be given in evidence in an exempt proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of proposed section 6S at Item 84 of Schedule 1) that is, or relates to disciplinary or legal action in relation to an eligible staff member of a commonwealth agency, where the information was obtained or the interception or stored communications warrant was issued before, on or after the commencement of Part 3 to Schedule 1.

  

 

 

 

 



Schedule 2 - Other amendments relating to the Australian Customs and Border Protection Service

The purpose of this schedule is to amend the Customs Administration Act 1985 to introduce a range of measures to increase the corruption resilience of Customs and Border Protection. These measures include:

  • the power for the Chief Executive Officer (CEO) to make orders, including for the introduction of mandatory reporting requirements
  • the power for the CEO to make a declaration that the termination of the employment of a worker was for serious misconduct, and
  • the power to authorise drug and alcohol testing.

 

The power for the CEO to make orders, including for the introduction of mandatory reporting requirements

 

The amendments will provide the CEO with similar powers to the AFP Commissioner in relation to the issue of written orders to staff, which must be obeyed. Such an order could include the requirement to report allegations of serious misconduct or corruption and to disclose any information that may be perceived as a serious misconduct or corruption issue.

The power for the CEO to make a declaration that the termination of the employment of a worker was for serious misconduct.

 

The amendments will provide the Customs and Border Protection CEO with the power to declare that the termination of a worker is for serious misconduct, including corruption. Such a declaration would exclude the termination from review for unfair dismissal under the Fair Work Act 1999 . This is consistent with the powers of the AFP Commissioner and ACC CEO.

 

Drug and alcohol testing

 

The amendments in this Schedule will allow Customs and Border Protection staff to be directed to undergo testing for the use of prohibited drugs, pharmaceuticals and alcohol.  This direction will only be able to be made by a person prescribed by Regulation or authorised by the CEO. Both the Australian Federal Police (AFP) and Australian Crime Commission (ACC) currently undertake drug and alcohol testing. The proposed testing of Customs and Border Protection staff will be implemented in a similar way to the current AFP program, with staff selected randomly but with a focus on operational and high-risk areas.   Drug and alcohol testing will apply to all Customs and Border Protection workers, including Senior Executive Service (SES) workers.

 

The legislation will align Customs and Border Protection with other law enforcement agencies that are operating in similar circumstances. The legislation will ensure a safer working environment for staff and greater protection of the border.

 

 

 

Item 1 - Section 3

This item inserts a definition of ‘alcohol blood test’ for the purposes of new sections 16B, 16C and section 16D.  An alcohol blood test is a test of a person’s blood to determine the amount of alcohol (if any) in the person’s blood.

Item 2 - Section 3

This item inserts a definition of ‘alcohol breath test’ for the purposes of new sections 16B, 16C and section 16D.  An alcohol breath test is a test of a person’s breath to determine the amount of alcohol (if any) in the person’s blood.

Item 3 - Section 3

This item inserts a definition of ‘alcohol screening test’ for the purposes of new sections 16B, 16C and section 16D.  An alcohol screening test is a test of a person’s breath to determine the amount of alcohol (if any) in the person’s breath.

Item 4 - Section 3

This item inserts a definition of ‘authorised officer’ for the purposes of new sections 16B, 16C and section 16D.  An authorised officer is an officer of Customs who has been authorised by the CEO under new section 3B to perform or exercise the functions or powers of an authorised officer for a particular provision of the Customs Administration Act 1985 (the Customs Administration Act).

Item 5 - Section 3

This item inserts a definition of ‘body sample’ for the purposes of new sections 16C and section 16D.  A body sample is any human biological fluid, any human biological tissue (whether alive or otherwise) or any human breath.

Item 6 - Section 3

This item inserts a new definition of ‘CEO’s Orders’, which are orders under new section 4B of the Customs Administration Act.

Item 7 - Section 3

This item inserts a definition of ‘corrupt conduct’ for the purposes of new subsection 4B(2) and refers to the new definition of engages in corrupt conduct (below).

Item 8 - Section 3

This item inserts a new definition of ‘Customs vessel’, for the purposes of new section 16DA.  A Customs vessel is a vessel used or for use for the purposes of the Australian Customs and Border Protection Services (Customs and Border Protection).  This includes vessels that are both owned and operated by Customs and Border Protection and those that are leased with contracted or sub-contracted crew.



Item 9 - Section 3

This item inserts a new definition of ‘Customs worker’ for the purposes of the Customs Administration Act, in particular the new CEO’s Orders power and the new regime of drug and alcohol testing.

A Customs worker is:

(a)          An officer of Customs;

(b)         An Australian Public Service employee, any officer or employee of a State or Territory or an officer of employee of an authority of the Commonwealth, a State or a Territory, whose services are made available to Customs and Border Protection;

(c)          a person engaged as a consultant or contractor to perform services for Customs and Border Protection and who is specified in a determination made by the CEO under new section 3C; or

(d)         a person who is engaged or employed by a person to whom paragraph (c) or this paragraph applies and who is specified in a determination made by the CEO under new section 3C.

It is proposed to include an expanded definition of Customs worker in these terms, in particular for the new drug and alcohol testing regime, which will allow an authorised officer to require employees as well as others who have access to Customs and Border Protection premises, systems and information to undergo testing.   This expanded definition of Customs worker reflects the high standard that Customs and Border Protection expects of its employees and well as any other person performing duties in or providing services to the agency.   This definition also recognises the obligations owed to a worker by Customs and Border Protection as a person conducting a business under the Work Health and Safety Act 2011.

It is important to note that Customs workers are engaged in a number of high risk environments, in particular in the maritime security environment, where it is important that Customs workers’ abilities are not affected by drugs or alcohol.

As Customs and Border Protection does engage contractors and sub-contractors in the delivery of its responsibilities in a high risk operational environment it is important that the testing regime apply equally to these persons.

Item 10 - Section 3

This item sets out the circumstances in which a Customs worker engages in corrupt conduct, for the purposes of new subsection 4B(2) (particular CEO Orders).  These circumstances are identical to the circumstances set out in the Law Enforcement Integrity Commission Act 2006 .

A Customs worker engages in corrupt conduct if he or she engages in conduct for purposes of abusing his or her position as a Customs worker, or for perverting the course of justice or for corruption of any other kind.



Item 11 - Section 3

This item inserts a definition of ‘officer of Customs’ for the purposes of the new definition of Customs worker.  Officer of Customs has the same meaning as in the Customs Act, which includes a person employed in the Customs and any person authorised by the CEO to perform all the functions of an officer of Customs.

Item 12 - Section 3

This item inserts a definition of ‘prohibited drug’ for the purposes of new sections 16C and 16D.  Prohibited drug is defined as a narcotic substance within the meaning of the Customs Act or any drug specified in a determination under section 16H.  Narcotic substance in the Customs Act is a border controlled drug or a border controlled plant and these drugs and plants are set out in Part 9.1 of the Criminal Code.

Item 13 - Section 3

This item inserts a definition of ‘prohibited drug test’ for the purposes of new sections 16C and 16D.  Prohibited drug test is defined as a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.

Item 14 - Section 3

This item inserts a definition of ‘serious misconduct’ by a Customs worker for the purposes of the Customs Administration Act.  The definition will mirror the definition of serious misconduct in section 47A of the Australian Crime Commission Act 2002 and section 40K of the Australian Federal Police Act 1979 .  It will mean:

(a)          corruption, a serious abuse of power, or a serious dereliction of duty, by the Customs worker; or

(b)         any other seriously reprehensible act or behaviour by the Customs worker, whether or not acting , or purporting to act, in the course of his or her duties as such a Customs worker .

This definition is relevant for new subsection 4B(2) (CEO’s Orders to Customs workers in specific circumstances) and new section 15A ( Termination of employment of member of staff for serious misconduct).

Item 15- After section 3A

This item inserts new section 3B, which sets out the power of the Chief Executive Officer of Customs (the CEO) to authorise an officer of Customs to perform or exercise the powers or functions of an authorised officer under a particular provision of the Customs Administration Act, for the purposes of the definition of authorised officer above.

This item also inserts new section 3C, which sets out the power of the CEO to determine that consultants, contractor, or persons employed or engaged by such persons, are Customs workers for the purposes of the definition of Customs worker.  A determination under this new section is not a legislative instrument.  This provision is only included to assist the reader as the determination is not a legislative instrument within the meaning in section 5 of the Legislative Instruments Act 2003.

Item 16 - After section 4A

4B CEO’s Orders

This item inserts new section 4B, which set out the power of the CEO to issue written orders with respect to the control of Customs.

Under section 4 of the Customs Administration Act, the CEO may issue directions to officers of Customs in relation to the performance of functions or the exercise of powers under a law of customs.  The CEO has issued such directions on several occasions, including in relation to the deployment of firearms and personal defence equipment and the use of force.

However, unlike the Commissioner of the Australian Federal Police, the CEO does not have a power to issue orders in relation to the general administration of Customs.  Under section 38 of the Australian Federal Police Act 1979, the Commissioner has the power to issue written orders which all AFP appointees must obey.  Under this power, the Commissioner issues orders in relation to professional standards, including in relation to mandatory reporting of misconduct and corruption.

New section 4B will also give the CEO the power to issue orders in relation to such matters as well.  Subsection 4B(2) sets out in detail one type of order that may be issued under subsection 4B(1).  It provides that a CEO’s Order may relate to reporting by Customs workers of any of the following circumstances:

(a)          serious misconduct by a Customs worker (see the definition of serious misconduct above)

(b)         corrupt conduct engaged in by a Customs worker (see the definition of engage in corrupt conduct above), and

(c)          criminal activities involving a Customs worker.

where such conduct or activities affect, or are likely to affect, the operations and responsibilities of Customs.  Given the current work type of Customs officers and the importance of maintaining a high integrity workplace, mandatory reporting of such conduct or activities is considered a useful preventative, deterrence and response tool.

Such an order may require a Customs worker to report such conduct or activities that the Customs worker is himself or herself engaged in.

Subsection 4B(3) makes it clear that the power to issue CEO’s Orders does not limit the power of the CEO to issue directions under section 4 of the Customs Administration Act.

Subsection 4B(4) provides that a Customs worker must comply with CEO’s Orders.  In relation to a Customs employee, failure to comply with CEO’s Orders will be dealt with in accordance with Customs and Border Protection’s procedures for determining suspected breaches of the Code of Conduct set out in section 13 of the Public Service Act 1999 (the Public Service Act).  Failure to comply with CEO’s Orders by workers other than Customs employees will be dealt with in accordance with the terms and conditions that govern the particular workers’ presence in the workplace or engagement by Customs and Border Protection.

Subsection 4B(5) provides that CEO’s orders are not legislative instruments. It is possible that in some circumstances CEO’s Order may be legislative instruments for the purposes of the Legislative Instruments Act 2003 .  As these Orders will relate to the internal workings of Customs and Border Protection and are aimed in particular at dealing with issues of integrity of the workforce, it is not considered appropriate that the Orders should be subject to possible disallowance, and sunsetting.

This approach is consistent with the exemption granted to orders made under section 38 of the Australian Federal Police Act 1979 , which are also exempt from the operation of the Legislative Instruments Act 2003

4C Self incrimination - CEO’s Orders relating to the reporting of serious misconduct etc

This item also inserts new section 4C.  Section 4C provides that where a Customs worker is required under a CEO’s Order referred to in subsection 4B(2) to give information, produce a document or answer a question, the Customs worker is not excused from doing so on the ground that it may tend to incriminate or expose the Customs worker to a penalty.  This provision is identical to section 40A of the Australian Federal Police Act 1979 in relation to the Commissioner’s power to issue orders under section 38 of that Act.  The CEO’s Orders under subsection 4B(2) will be aimed at exposing misconduct and possible corruption.  They are intended to send a clear message that Customs and Border Protection is determined to promote a culture of high integrity in the workplace and will not tolerate these behaviours. 

However, the giving of information, production of a document or answering of a question is not admissible in evidence against the Customs worker in any proceedings.  This limitation is subject to section 16F, which sets out the circumstances in which results from an alcohol or drug test or other information, answers or documents relevant to conducting the tests can be used.  This immunity does not extend to a derivative use immunity in these circumstances because the object of CEO’s Orders referred to in subsection 4B(2) is to promote the high integrity of the Customs and Border Protection workforce by exposing and addressing conduct that does not meet this standard.  This objective cannot be fully realised unless derivative use can be made of the information disclosed in compliance with the CEO’s Orders. 

Item 17 Application - CEO’s Order relating to the reporting of serious misconduct etc

This item inserts an application provision for the CEO’s Orders of a kind set out in subsection 4B(2) of the Customs Administration Act.  It provides that such an order applies to serious misconduct, corrupt conduct and criminal activities whether engaged in before, on or after the commencement of the application provision.  Therefore, if the CEO issues an order of a kind referred to in subsection 4B(2), a Customs worker would be required to report any relevant conduct or activity even if the conduct or activity occurred before the CEO issued the order.

Item 18 - At the end of subsection 14(1)

Section 14 of the Customs Administration Act provides that the CEO may delegate in writing any or all of his or her powers to an officer of Customs.

This item will amend section 14 to limit the operation of the delegation making power to any or all powers except a power or function under new section 15A.  Section 15A, as inserted by item 15, will allow the CEO to make a declaration stating that the employment of a staff member 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 14 to prevent the CEO from delegating the power to make a declaration under section 15A.

Item 19

New section 15A - Termination of employment of member of staff for serious misconduct - Declaration for serious misconduct

The CEO has the power to dismiss employees for serious misconduct or corruption under section 29 of the Public Service Act 1999 ( the Public Service Act ).  Section 29 allows the CEO (as an agency head) to dismiss an employee of Customs under one of the following grounds:

(a)          the employee is excess to the requirements of the Agency

(b)         the employee lacks, or has lost, an essential qualification for performing his or her duties

(c)          non-performance, or unsatisfactory performance, of duties

(d)         inability to perform duties because of physical or mental incapacity

(e)          failure to satisfactorily complete an entry-level training course

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

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

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

The Fair Work Act 2009 (Fair Work Act) currently applies to all dismissals of Customs staff employed under the Public Service Act and provides protection where the dismissal was harsh, unjust or unreasonable.  The application of the Fair Work Act can impact on the ability of the Customs CEO to quickly and decisively remove a person from the organisation.  For example, review of the dismissal under the Fair Work Act may result in the person having to be reinstated. 

It is proposed to insert a power in the Customs Administration Act whereby the CEO may issue a written declaration of serious misconduct, the effect of which is to preclude review of the termination of employment for unfair dismissal under the Fair Work Act 2009 (the Fair Work Act).  This declaration provides a mechanism for the CEO of Customs and Border Protection to take action in response to the most serious occurrences of misconduct and corruption.  It is expected that this declaration will only be used in instances of serious misconduct that relate to Customs and Border Protection’s law enforcement functions.  The declaration will only apply to the most serious cases and cannot be used for disciplinary matters involving behaviour that falls short of serious misconduct as defined in the new section 15A.

This power is similar to the power held by the Commissioner of the Australian Federal Police and the Chief Executive Officer of the Australian Crime Commission in relation to their respective workforces.

Given the changing focus in the role of Customs and Border Protection towards a greater law enforcement focus, the changing nature of criminality which has included an increase in the attempts to compromise Customs and Border Protection officers and the increased community expectations on the agency, the written declaration of serious misconduct is considered appropriate to combat corruption.

New section 15A

Item 15 of Schedule 2 amends the Customs Administration Act to insert new section 15A which will provide the 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 Fair Work Act (with certain exceptions) in relation to that particular dismissal.

Subsection 15A(1) sets out the circumstances in which the new section 15A will apply.  It is modelled on section 47A of the Australian Crime Commission Act 2002 (the ACC Act).

Section 15A will only apply where the CEO has terminated the employment of a member of staff referred to in subsection 15(1) of the Customs Administration Act.  Staff referred to in subsection 15(1) of the Customs Administration Act are employed under the Public Service Act. 

The new declaration power will only apply where the CEO has terminated the employment of the staff member in accordance with section 29 of the Public Service Act.  New section 15A will not provide an additional power of termination but will rely on a termination having taken place under section 29 of the Public Service Act.  This is reflected in the Note at the end of subsection 15A(1).

Subsection 15A(1) will state that the section applies if the CEO believes, on reasonable grounds, that the staff member’s conduct:

(a)           amounts to serious misconduct (the definition of serious misconduct will be inserted by item 14 above ), and

(b)          is having, or is likely to have, a damaging effect on:

                                         (i)       the professional self-respect or morale of some or all of the members of staff of the Australian Customs and Border Protection Service; or

                                       (ii)       the reputation of the Australian Customs and Border Protection Service with the public, or any section of the public, or with an Australian or overseas government, or with a person or body (however described) to whom the CEO may authorise the disclosure of information under section 16.

The grounds on which this section applies mirror the grounds that must be met before the CEO of the Australian Crime Commission may exercise his or her power to make a declaration under section 47A of the ACC 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 agency’s usual processes for dealing with misconduct or to remove the application of procedural fairness to the investigation of the alleged conduct. The applicable procedures for investigating alleged misconduct are set out in the agency’s Procedures for determining breaches of the APS Code of Conduct .

Subsection 15A(2) will provide the CEO with the power to make a declaration where he or she is of the belief set out in subsection 15A(1).  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 15A(5).

Subsection 15A(3) will set out the effect of the declaration made by the CEO under subsection 15A(2). The making of the declaration will mean that the Fair Work 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. 

Subsection 15A(4) will specify that subsection 15A(3) operates despite section 8 of the Public Service Act.  Section 8 of the Public Service Act states that that Act has effect subject to the Fair Work Act.  However, the effect of subsection 15A(3) will be to exempt a termination of employment under section 29 of the Public Service Act from the operation of the Fair Work Act where a declaration is made under subsection 15A(2).  This subsection will make it clear that the Fair Work Act does not apply despite the operation of section 8 of the Public Service Act. 

Subsection 15A(5) will set out the requirements that must be met by the CEO when making a declaration under subsection 15A(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 CEO 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 15A(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 15A(7) will require the CEO to report to both the Minister and each time a declaration is issued under new subsection 15A(2). 

The report must include the following:

(a)          the grounds for the CEO’ belief under new subsection 15A(1); and

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

(c)          details of any other matter the CEO considers relevant.

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

Subsection 15A(8) will provide that a declaration under subsection 15A(2) is not a legislative instrument.  This provision is only included to assist the reader as the instrument is not a legislative instrument within the meaning in section 5 of the Legislative Instruments Act 2003 .

Item 20 - Application - termination for serious misconduct

This item will provide that section 15A applies only in relation to a decision to terminate a staff member 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 21 - After section 16AA

This item will insert new sections 16B, 16C, 16E, 16F and 16G which will set out the regime under which Customs workers will be required to undergo drug and alcohol testing.

It is proposed to introduce drug and alcohol testing for all Customs workers.  As referred to previously, a Customs worker includes all Customs employees (employed under the Public Service Act), as well secondees, contractors and consultants and their subcontractors and employees.  This regime is in response to the significant consequences that could be caused by a Customs workers acting under the influence of drugs or alcohol whilst conducting Customs business. 

Customs and Border Protection recognises the serious effects that drug and alcohol abuse can have on individuals, while also recognising the importance of law enforcement employees being committed to the highest standards of personal integrity and professionalism.  Additionally Customs and Border Protection recognises and upholds the fundamental duty of care to all of its workers who have a right to be safe from the risks of personal threat or compromise by the illicit drug trade and from officers affected by drugs of alcohol.

New sections 16B to 16G are based on Division 8 of the Australian Federal Police Act 1979 .

New section 16B - Authorised officer may require Customs workers to undergo alcohol screening tests etc

New section 16B sets out the circumstances in which an alcohol screening test can be carried out.  As referred to above, an alcohol screening test is a test of a person’s breath to determine whether alcohol is present in the person’s breath.

Under subsection 16B(1), an authorised officer may require a Customs worker to undergo an alcohol screening test if:

(a)          the Customs worker is in the course of performing his or her duties as a Customs worker; and

(b)         the authorised officer reasonably suspects that the Customs worker is under the influence of alcohol.

As referred to above, an authorised officer is an officer of Customs who has been authorised by the CEO to perform or exercise the functions or powers of an authorised officer for a particular provision of the Customs Administration Act.

Under subsection 16B(2), the Customs worker must comply with the requirement given to him or her under subsection 16B(1).  In relation to a Customs employee, failure to comply with the requirement will be dealt with in accordance with Customs and Border Protection’s procedures for determining suspected breaches of the Code of Conduct set out in section 13 of the Public Service Act.  Refusal to undergo the test by workers other than Customs employees will be dealt with in accordance with the terms and conditions that govern the particular workers’ presence in the workplace or engagement by Customs and Border Protection.

Subsection 16B(3) provides that if the result of the alcohol screening test shows that alcohol is not present in the Customs worker’s breath, the Customs worker may return to his or her duties immediately.  If, however, the test indicates that alcohol is present in the breath, options may include standing the worker down pending further investigation.  Where a worker is required to leave the workplace, all reasonable care will be taken to ensure their safe travel

Subsection 16B(4) provides that section 16B does not limit the operation of section 16C.  It is not necessary to require a test under section 16B before directing a Customs worker under section 16C.

New section 16C - Authorised officer may require Customs workers to undergo alcohol screening tests, alcohol breath tests or prohibited drug tests etc

New section 16C sets out the circumstances in which an alcohol screening test, and alcohol breath test or a prohibited drugs test can be carried out.  As referred to above, an alcohol breath test is a test of a person’s breath to determine the amount of alcohol (if any) in the person’s blood and a prohibited drug test means a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.

Subsection 16C(1) provides that an authorised officer may give a Customs worker who is in the course of performing his or her duties as a Customs worker a written direction requiring the worker to do one or more of the following:

(a)          undergo an alcohol screening test

(b)         undergo an alcohol breath test,

(c)          provide a body sample, of a kind specified in the direction, for a prohibited drug test.  As referred to above, a body sample could be human biological fluid or tissue or human breath.

These activities are to occur in accordance with the regulations.  For example, the regulations may prescribe the persons who are authorised to conduct these tests (see new section 16E below).

New subsection 16C(2) provides that if a Customs worker undergoes an alcohol breath test that indicates the presence of alcohol, he or she may provide a sample of blood for the purpose of an alcohol blood test, in accordance with the regulations.  As referred to above, an alcohol blood test is a test of a person’s blood to determine the amount of alcohol (if any) in the person’s blood.  The results of this test would confirm or rebut the results of an alcohol breath test.

Subsection 16C(3) provides the Customs worker must comply with the requirement given to him or her under subsection 16B(1).  The consequences of failing to comply are the same as failing to comply with a requirement under section 16B.

Similar to above, if an employee returns a presumptive positive sample options may include standing the worker down pending further investigation.  Where a worker is required to leave the workplace, all reasonable care will be taken to ensure their safe travel. 

New section 16D - alcohol screening tests, alcohol breath tests and prohibited drug tests after certain incidents

New section 16D sets out the drug and alcohol testing regime that applies after certain incidents such as a death or serious injury involving a motor vehicle or the discharge of a firearm.

Subsection 16D(1) provides that , where a person is seriously injured or killed as a result of an incident involving a motor vehicle or vessel, or as a result of an incident while in custody in relation to an arrest under the Customs Act or otherwise detained, an authorised officer may give a Customs worker directly involved in the incident, a written direction under subsection 16D(3).

Subsection 16D(2) provides that, where an incident occurs in which a person is killed or seriously injured as a result of the discharge of a firearm by a Customs worker who is authorised to carry arms under section 189A of the Customs Act, and the incident occurs in the course of performing duties as a Customs worker, an authorised officer may give the Customs worker directly involved in the incident, a written direction under subsection 16D(3).   Such a direction may also be given under this subsection if a person is killed or seriously injured as a result of the application of physical force by an officer of Customs in the course of duties.

Subsection 16D(3) provides that an authorised officer may give the Customs worker referred to in subsection 16D(1) or (2) a written direction requiring the worker to do one or more of the following in accordance with the regulations:

(a)          undergo an alcohol screening test;

(b)         undergo an alcohol breath test;

(c)          provide a body sample, of a kind specified in the direction, for a prohibited drug test (which could be a human biological fluid or tissue or human breath).

The most important feature of this direction is that it may be given whether or not the Customs worker is still performing duties as a Customs worker.  The direction must also be given as soon as practicable after the incident concerned (see subsection 16D(4)).

Subsection 16D(5) sets out the powers of an authorised officer where a Customs worker involved in an incident in subsection 16D(1) or (2) attends or is admitted to hospital for examination or treatment because of the incident.  In that circumstance, they can be given a written direction requiring the provision of a sample of his or her blood for an alcohol blood test, or to provide a body sample of a kind specified in the direction for a prohibited drug test.

Subsection 16D(6) provides the Customs worker must comply with the requirement given to him or her under subsection 16D(3) or (4).  The consequences of failing to comply are the same as failing to comply with a requirement under section 16B.

Similar to above, if an employee returns a presumptive positive sample options may include standing the worker down pending further investigation.  Where a worker is required to leave the workplace, all reasonable care will be taken to ensure their safe travel. 

New section 16E - Alcohol screening tests etc - performing duties on board a Customs vessel

New section 16E will extend the circumstances in which a Customs worker will be performing duties for the purposes of sections 16B, 16C and 16D.  These circumstances take account of the unique environment in which Customs workers operate when they are on board a Customs vessel.

New section 16E will deem a Customs worker to be performing duties as a Customs worker throughout the whole time the Customs worker is on board a Customs vessel, provided that, at any time during the period that they are on board a Customs vessel, they perform duties as a Customs worker.  This will mean that they can be given a requirement or direction under the above provisions even if they are not performing duties as a Customs worker at the time the requirement or direction is given.

A Customs vessel, as referred to above, is a vessel used or for use for the purposes of Customs.

New section 16F - Regulations

Section 16F provides the head of power to make regulations for the purposes of new section 16B, 16C and 16D, in relation to the following matters:

(a)          the authorisation of persons to conduct tests under those sections, for example nurses or medical practitioners, and the authorisation of persons to operate equipment to undertake the tests;

(b)         the provision of blood samples and body samples;

(c)          the conduct of the tests;

(d)         the devices to be used in carrying out the tests, including calibration, testing and inspection of such devices;

(e)          the accreditation of persons to conduct analyses in connection with the tests;

(f)          the handling and analysis of blood and body samples.

(g)         the giving of the test results in certificates or other documents and the evidentiary effect of certificates or other documents; and

(h)         the confidentiality of the test results.

It is considered appropriate for the matters listed in proposed 16F to be dealt with by regulations made under the Customs Administration Act. There are many aspects of this type of testing framework which require greater fluidity and flexibility than can be achieved by including these matters in the primary legislation. Technology available for conducting drug and alcohol testing is evolving rapidly and prescribing current methods in the primary legislation would unduly limit flexibility.  The Australian Federal Police Act 1979 , which contains similar provisions for drug and alcohol testing, also provides that these matters are to be dealt with by regulations.

Ultimately, Parliament will have oversight of, and may disallow, and regulations made for the purposes of new section 16F.



New section 16G - Admissibility of test results etc in legal proceedings

New section 16G sets out the circumstances in which test results or other information, answers or documents relevant to conducting the test can be used.

A certificate, or other document recording the results of a test conducted under section 16B, 16C or 16D or any other information, answer to a question or document relevant to such a test, is not admissible in evidence against the Customs worker in any proceedings other than:

(a)          proceedings in relation to a decision of the CEO to terminate the employment or engagement of the Customs worker;

(b)         proceedings under the Safety, Rehabilitation and Compensation Act 1988 ; or

(c)          proceedings in tort against the Commonwealth that are instituted by the Customs worker.

The use of drug and alcohol test results as evidence against a Customs worker in legal proceedings is limited, therefore, to matters relating to discipline and probity.  However, the results may be also be used by the Commonwealth in a response to a workers’ compensation claim.

New section 16H - CEO may specify prohibited drugs

As referred to above, prohibited drugs is defined as a narcotic substance within the meaning of the Customs Act or any drug specified in a determination under section 16H.  Section 16H provides that the CEO may specify drugs for the purposes of this definition.

The determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.