Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
National Crime Authority Legislation Amendment Bill 2001

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

1998-1999-2000

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE SENATE

 

 

 

 

 

 

NATIONAL CRIME AUTHORITY LEGISLATION AMENDMENT BILL 2000

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice and

Customs, Senator the Honourable Amanda Vanstone)

 

 



 

NATIONAL CRIME AUTHORITY LEGISLATION AMENDMENT BILL 2000

 

OUTLINE

 

This Bill amends the National Crime Authority Act 1984 (NCA Act), Ombudsman Act 1976 and Administrative Decisions (Judicial Review) Act 1977 to:

 

·                implement the Government’s response to the 3 rd evaluation of the National Crime Authority (the Authority) by the Parliamentary Joint Committee on the National Crime Authority (PJC-NCA); and

·                address a number of matters relating to the administration and operations of the Authority.

 

The Bill also inserts a note in makes a consequential amendment to the Privacy Act 1988 .

 

Schedule 1 of the Bill will amend the NCA Act to:

 

(a)            remove the defence of reasonable excuse, replace the use derivative-use indemnity with use-indemnity, and increase penalties for non-compliance with the Act;

(b)           enable the Authority to investigate relevant criminal activity that occurs after the date of the reference to the Authority;

(c)            extend the term of appointment of the members of the Authority from 4 to 6 years;

(d)           extend the class of persons who may issue search warrants to include magistrates;

(e)            provide that witnesses may be advised of the presence of persons at hearings and given an opportunity to comment, but not object;

(f)             clarify the application of legal professional privilege and remove the defence of legal duty to disclose;

(g)            clarify that only reasonable force may be used in the execution of a warrant;

(h)            clarify the material to which the PJC-NCA may have access ;

(i)              apply Chapter 2 of the Criminal Code ;

(j)             introduce a contempt regime for the Authority;

(k)           introduce hearing officers, whose only role is to undertake hearings on behalf of the Authority;

(l)              adopt the definition of “document” from the Evidence Act 1995 and include “money laundering” and “ interfering perverting with the course of justice” in the definition of relevant offence;

(m)          repeal subsections 12(4) and (5);

(n)            extend the class of persons who may apply for search warrants to include members of the staff of the Authority;

(o)           clarify that a prohibition on disclosure relating to the Authority’s process, overrides any contrary requirement under the Privacy Act 1988 for so long as the prohibition remains in force;

(p)           enable the Chairperson to delegate certain powers;

(q)           provide for the dissemination of information to foreign law enforcement agencies; and



 

(r)             enable the Chairperson to employ staff otherwise than under the Public Service Act 1999 .

 

Schedule 2 of the Bill inserts a note into the Privacy Act 1988 to alert the reader of that Act to the requirements of the NCA Act.

 

Schedule 3 of the Bill will amend the Ombudsman Act 1976 to extend the jurisdiction of the Commonwealth Ombudsman to deal with complaints against the Authority.  The amendments will:

 

(a)            deem the Authority to be a prescribed authority for the purposes of the Ombudsman Act;

(b)           provide the Commonwealth Ombudsman with a discretion to transfer a complaint to a more appropriate authority;

(c)            enable joint investigations; and

(d)           provide that the Attorney-General may issue certificates preventing the disclosure of certain information to or by the Ombudsman.

 

Schedule 4 of the Bill will amend the Administrative Decisions (Judicial Review) Act 1977 to exclude the operation of that Act in relation to certain decisions made under the NCA Act.

 

The amendments summarised by Items (a) to (k) above, and Schedules 3 and 4, implement the Government’s response to the 3 rd evaluation of the Authority by the PJC-NCA.  While that evaluation confirmed the operational value of the Authority as Australia’s only law enforcement agency not limited by jurisdictional boundaries, it also identified a number of areas where the powers of the Authority required enhancement. This Bill will address those issues.  The Bill will also implement the recommendation that there be an independent complaints regime for the Authority.

 

The amendments summarised by Items (l) to (r) above, and Schedule 2, address a number of matters relating to the administration of the Authority in order to improve the overall effectiveness of the Authority.

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.



NOTES ON CLAUSES

 

Clause 1: Short title

The short title of this Act is the National Crime Authority Legislation Amendment Act 2000.

 

Clause 2: Commencement

This clause provides that sections 1 and 2 of the Act commence on the day on which the Act receives the Royal Assent.  The remaining provisions of the Act commence on a day or days to be fixed by Proclamation.  However, this clause also provides that if a provision of the Act has not commenced within 6 months of Royal Assent then it commences on the first day after the end of the 6-month period.   This will allow appropriate preparations to be made at an administrative level before the commencement of the amendments. 

 

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.



Schedule 1 - National Crime Authority Act 1984

 

 

Part 1 - Amendments relating to reasonable excuse, self-incrimination and increases in penalties

 

The purpose of this Part is to enhance the investigatory power of the Authority so that it may deal more effectively and efficiently with witnesses.  The amendments will limit the ability of witnesses to challenge the legitimate and essential role of the Authority in investigating serious and organised crime.  The amendments will also increase penalties for non-compliance with the Act so as to deter those who would otherwise embark on a course of conduct designed to thwart the investigatory process.

 

The amendments made by this Part address the issues raised in recommendations 7, 8, 9, 12 and 13 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 1

 

This Item omits the defence of reasonable excuse from subsection 19A(4).  Where a person has been directed by a prescribed officer of an agency to comply with a request by the Authority to furnish information to the Authority, that person will no longer be able to claim that he or she has a reasonable excuse for non-compliance with the request.

 

The removal of the 'reasonable excuse' defence is consistent with the move to more specific defences under Chapter 2 of the Criminal Code (the Code).  The Code, which will apply to all Commonwealth offences from 15 December 2001 and to offences under the NCA Act from the date of commencement of Item 64 of this Act, sets out general principles of criminal responsibility and includes defences applicable to all offences.

 

The general defences are contained in Part 2.3 of the Code, and include defences relating to intervening conduct or event, duress, and sudden and extraordinary emergency.  By replacing the less clear notion of 'reasonable excuse' with these specific defences, the scope for disputes as to whether a reasonable excuse exists will be significantly reduced.

 

Item 2

 

This Item repeals subsection 20(3) as a consequence of the omission of the defence of reasonable excuse from subsection 20(4) (see Item 3).  As a person will no longer be able to claim that he or she has a reasonable excuse for non-compliance with a notice issued under section 20, a provision that outlines how the Authority is to respond to such a claim is no longer required.

 

Item 3

 

This Item omits the defence of reasonable excuse from subsection 20(4).  A person who is served with a notice requiring the person to provide certain information to the Authority will no longer be able to claim that he or she has a reasonable excuse for non-compliance with the notice.  (See Item 1 for the discussion on the removal of the defence of reasonable excuse.)

 

Item 4

 

This Item repeals subsection 27(2) and substitutes a new provision that re-enacts existing paragraph 27(2)(b).  Paragraphs 27(2)(a) and (aa), which deal with legal aid in relation to applications under section 32, will no longer be required following the repeal of section 32 (see Item 13).

 

Item 5

 

This Item omits the defence of reasonable excuse from subsection 29(3).  A person, who is served with a notice requiring the person to attend at a specified time and place and to produce specified documents or things, will no longer be able to claim that he or she has a reasonable excuse for non-compliance with the notice. (See Item 1 for the discussion on the removal of the defence of reasonable excuse.)

 

Item 6

 

This Item repeals the penalty in subsection 29(3).  The penalty for not complying with section 29 will be specified in new provisions (see Item 7).

 

Item 7

 

This Item inserts three new provisions specifying the penalty for not complying with section 29.  The existing maximum penalty for this offence is a fine of $1 000 or imprisonment for 6 months.  Under the proposed provisions, non-compliance will be an indictable offence, which is punishable, upon conviction, by a fine not exceeding $20 000 or imprisonment for a period not exceeding 5 years.  However, the matter may also be dealt with summarily if it is proper to do so and if the defendant and prosecutor consent.  If the matter is dealt with summarily, then the applicable penalty will be a fine not exceeding $2 000 or imprisonment for a period not exceeding 1 year.

 

Penalties for offences relating to non- cooperation with the Authority are being significantly increased, in order to provide adequate deterrence.  An offender, facing many years imprisonment or a fine of hundreds of thousands of dollars for an offence such as drug trafficking, has a significant incentive to obstruct an investigation by the Authority that could lead to that person's conviction and punishment.  Accordingly, the penalties for obstructing the Authority also need to be significant, in order to remove that incentive for obstruction. 

 

Item 8

 

This Item omits the reference to “30(3) to (10), inclusive,” from subsection 29(4), and substitutes a reference to “30(3) to (5) and (9)” as a consequence of the proposed restructure of section 30 (see Item 12).

 

Item 9

 

This Item omits from subsection 29(4) the expression “and so apply as if a reference in those subsections to subsection 30(2) were a reference to subsection (3) of this section”. The words are no longer required as a consequence of the proposed restructure of section 30 (see Item 12).

 

  Item 10

 

This Item repeals subsection 29(5) as a consequence of the omission of the defence of reasonable excuse from subsection 29(3) (see Item 5). As a person will no longer be able to claim that he or she has a reasonable excuse for non-compliance with a notice issued under section 29, a provision that outlines how the Authority is to respond to such a claim is no longer required.

 

Item 11

 

This Item omits the defence of reasonable excuse from subsections 30(1) and (2).  A person who fails to attend in answer to a summons; fails to attend from day to day unless excused or released; refuses or fails to take an oath or make an affirmation; refuses or fails to answer a question or refuses or fails to produce a document or thing when required to do so, will not be able to claim that he or she has a reasonable excuse for non-compliance. (See Item 1 for the discussion on the removal of the defence of reasonable excuse.)

 

Item 12

 

This Item substitutes new provisions dealing with the privilege against self-incrimination, limits on the use of certain evidence, penalties for non-compliance and legal professional privilege. (Subsections 30(4) to (11) will be repealed.)

 

Background

 

Under the existing provisions, if a witness appearing at a hearing before the Authority claims that the answer to a question or the production of certain documents or a thing might tend to incriminate the person:

 

·                The Authority must make a decision as to whether this is or is not a valid claim.

·                If it is a valid claim, then the person has a reasonable excuse for not answering the question or producing the document or thing. 

·                However, the person will not have a reasonable excuse if the Director of Public Prosecutions or the State Attorney-General (or authorised person) (as applicable) gives the person an undertaking in writing that any answer, document or thing, or anything derived therefrom will not be used in evidence against the person in any later proceedings for an offence. (The exception is that the evidence can be used in proceedings in respect of the falsity of evidence given by the person.)

·                If the person is given such an undertaking or the person does not have a valid claim, then the person must answer the question, or produce the document or thing. It is an offence for the person to fail to answer the question or produce the document or thing.

 

The undertaking in writing given by the Director of Public Prosecutions is in addition to the undertaking that the Director may give to a person under the Director of Public Prosecutions Act 1983 .  (There are similar provisions in State legislation.)

 

Proposed scheme

 

Under the proposed scheme, if a witness appearing at a hearing before the Authority claims that the answer to a question or the production of certain documents or a thing might tend to incriminate the person:

 

·                The person must answer the question or produce the document or thing.

·                It is an offence for the person to fail to answer the question or to produce the document or thing.

·                But, the answer or document or thing is not admissible in evidence against the person in any later criminal proceedings or a proceeding for the imposition of a penalty (subject to the existing false evidence exception) without the need for an undertaking.

 

The undertaking that may be given under the relevant Director of Public Prosecution legislation will remain available.

 

Similarities

 

·                It is an offence for a person to refuse to answer a question or to produce the document or thing.

·                The witness can claim that the answer to the question or the production of the document or thing might tend to incriminate him or her.

·                The answer given or the document or thing that the person produces cannot be used against him or her in subsequent proceedings.

 

Differences

 

The principal differences between the two schemes are:

 

·                As a consequence of the omission of the defence of reasonable excuse from subsections 30(1) and (2) (see Item 11) a person will no longer be able to claim that he or she has a reasonable excuse for failing to answer a question on the ground that the evidence might tend to incriminate him or her.

·                Therefore, there will no longer be a role for an undertaking from the Director of Public Prosecutions in relation to the future use of the evidence to displace that reasonable excuse (so there will be no provisions for such undertakings).

·                Evidence that derives from the answer given may be used against the person. 

 

Use immunity and self-incrimination

 

Proposed subsection 30(5) limits the use that can be made of certain evidence and applies if one of the situations set out in proposed subsection 30(4) exists. (Proposed subsection 30(4) re-enacts the existing circumstances in which a person may claim the privilege against self-incrimination.)

 

Proposed subsection 30(5) applies if:

 

·         before answering a question that the person is required to answer at a hearing before the Authority;

·         before producing, in answer to a summons, a document that sets out details of earnings received by the person in respect of his or her employment and does not set out any other information; or

·         before producing a thing in answer to a summons;

 

the person claims that the answer or the production of the document or thing might tend to incriminate the person or make the person liable to a penalty.

 

When proposed subsection 30(5) applies, the answer or the document or thing is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty other than in a proceeding in respect of the falsity of the answer or the falsity of any statement in the document, as the case may be.

 

Proposed subsection 30(5) will mean that, in the circumstances set out in proposed subsection 30(4), the answer, document or thing, cannot be used as evidence against the person, except in limited circumstances.  However, contrary to the current position, any evidence that is derived from that answer, document or thing may be used against the person.   The Authority is unique in nature and has a critical role in the fight against serious and organised crime.  This means that the public interest in the Authority having full and effective investigatory powers, and to enable, in any subsequent court proceedings, the use against the person of incriminating material derived from the evidence given to the Authority, outweigh the merits of affording full protection to self-incriminatory material.  The proposed provision is comparable to section 68 of the Australian Securities and Investments Commission Act 1989 .

 

Penalties

 

The existing maximum penalty for not complying with subsection 30(1), (2) or (3) is a fine not exceeding $1 000 or imprisonment for a period not exceeding 6 months. Under the proposed provisions, non-compliance will be an indictable offence, which is punishable, upon conviction, by a fine not exceeding $20 000 or imprisonment for a period not exceeding 5 years.  However, the matter may also be dealt with summarily if it is proper to do so and if the defendant and prosecutor consent.  If the matter is dealt with summarily, then the applicable penalty will be a fine not exceeding $2 000 or imprisonment for a period not exceeding 1 year.  (See Item 7 for discussion on increased penalties.)  ( The penalty for not complying with subsection 30(1), (2) or (3) will be set out in p roposed subsections 30(6), 30(7) and 30(8).)

 

Legal Professional Privilege

 

Proposed subsection 30(9) clarifies that subsection 30(3) does not affect the law relating to legal professional privilege.  That is, where a legal practitioner is required to provide certain information to the Authority and to do so would disclose privileged information, the legal practitioner may refuse to produce that information, unless the person to whom the privilege applies consents to its disclosure.

 

Item 13

 

This Item repeals sections 32, 32A, 32B and 32C, which set out a regime for a person to apply to the Federal Court (or a State Supreme Court in certain circumstances) for a review of certain decisions made by the Authority.  This review regime applies to decisions by the Authority that a person did not have a reasonable excuse for refusing or failing to comply with a notice or direction under section 20, 29 or 30 (or the equivalent provisions under the law of a State).  As a consequence of the omission of the defence of reasonable excuse (see Items 3, 5 and 11) the Authority will no longer be required to make a decision as to whether the person’s claim is or is not justified.  Therefore, as there is no longer a reviewable decision to which section 32, 32A, 32B or 32C can apply, those provisions no longer have a role. (See Item 17 for transitional provisions.)

 

Item 14

 

This Item repeals the penalty specified in subsection 35(1).  The penalty for not complying with subsection 35(1) will be specified in new provisions (see Item 15).

 

Item 15

 

This Item repeals subsection 35(2) and substitutes three new provisions specifying the penalty for non-compliance with subsection 35(1). The existing maximum penalty for not complying with subsection 35(1) is a fine not exceeding $2 000 or imprisonment for 1 year. Under the proposed provisions, non-compliance will be an indictable offence, which is punishable, upon conviction, by a fine not exceeding $20 000 or imprisonment for a period not exceeding 5 years.  However, the matter may also be dealt with summarily if it is proper to do so and if the defendant and prosecutor consent.  If the matter is dealt with summarily, then the applicable penalty will be a fine not exceeding $2 000 or imprisonment for a period not exceeding 1 year. (See Item 7 for discussion on increased penalties.)

 

Item 16

 

This Item repeals subparagraph 61(2)(g)(i).  Subparagraph 61(2)(g)(i) requires statistics on the number of applications made under section 32 to be included in the Authority’s annual report.  As section 32 will be repealed (see Item 13), subparagraph 61(2)(g)(i) no longer has a role.

 

Item 17

 

This item provides that despite the repeal of sections 32, 32A, 32B and 32C (see Item 13) those sections will continue to have effect on and after the commencement of Item 13 in relation to applications for review that could have been made under those provisions before the repeal of those provisions.  That is, the repeal of the special review mechanism will only affect matters that occur after the commencement of Item 13 and will not affect any actions or claims that relate to past decisions.

 

Part 2 - Relevant criminal activity

 

The purpose of this Part is to expand the matters that may be investigated by the Authority to include offences that occur after the date of a reference of a matter to the Authority.  The amendments give effect to recommendation 5 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 18

 

This Item amends the definition of “relevant criminal activity” in subsection 4(1) by omitting the words “or may be being” and substituting the words “may be being, or may in the future be”.  The term “relevant criminal activity” is used, for example, in the definition of “federally relevant criminal activity” and describes the matters that may be referred to the Authority under sections 13 and 14. The amendments mean that the Authority will be able to investigate relevant offences that occur after the date that a matter is referred to the Authority, provided that the circumstances indicating that the relevant offence will be committed exist at the date of the reference.

 

Part 3 - Terms of appointment

 

The purpose of this Part is to extend from 4 to 6 years the maximum term of appointment for members of the Authority. The amendments partially implement recommendation 25 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Items 19 to 21

 

These Items replace references to 4 years with references to 6 years in subsections 37(1), 37(1C) and 37(1E).  This means that future members of the Authority will be able to hold office for a total period of 6 years instead of 4 years, as is currently the case.

 

Part 4 - Definitions

 

The purpose of the Part is to amend two existing definitions.

 

Item 22

 

This Item repeals the definition of document in subsection 4(1) and provides that the term document has the same meaning as in the Evidence Act 1995.  That definition is set out in the Dictionary to that Act.



Item 23

 

This Item repeals paragraph (d) of the definition of relevant offence in subsection 4(1) and substitutes a revised paragraph (d).  The revised paragraph (d) includes the offences of “money laundering” and “perverting the course of justice” so that such offences may be investigated by the Authority.  (The term “relevant offence” appears in the definition of relevant criminal activity, which, in turn, describes what is referred to the Authority for investigation.)  The revised paragraph is otherwise a re-format of the existing paragraph.

 

Part 5 - Police power to interview

 

The purpose of this Part is to repeal two redundant provisions.

 

Item 24

 

This Item repeals subsections 12(4) and (5). Subsection 12(4) has been the subject of judicial criticism because, in its present form, it appears to assume that police officers derive a “power to interview” from their capacity as police officers. As the term “power to interview” has no recognised legal meaning, the subsection is ineffective as drafted.   Subsection 12(5) is dependent on subsection 12(4) and is also to be repealed.   The amendments are not intended to enhance or diminish the powers of police.

 

Part 6 - People who may apply for, or issue, search warrants

 

This Part expands the class of persons who may issue search warrants to include magistrates and the class of persons who may apply for search warrants to include members of the staff of the Authority who are police persons.  The amendments made by this Part partially implement the recommendation 10 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 25

 

This Item inserts a definition of eligible person in subsection 4(1).  An eligible person will be a member of the Authority, or a member of the staff of the Authority who is also a member of the Australian Federal Police or the Police Force of a State.

 

Item 26

 

This Item inserts a definition of issuing officer in subsection 4(1).  An issuing officer will be a Judge of the Federal Court, or a Judge of a court of a State or Territory, or a magistrate.  Magistrates can already issue search warrants under numerous Commonwealth provisions, including section 3E of the Crimes Act 1914 .

 

Item 27

 

This Item omits the reference to “A member” in subsection 22(1), and substitutes a reference to “An eligible person”.  This will expand the class of persons who may apply for a search warrant under that provision from members to “eligible persons” (see Item 25).

 

Item 28

 

This Item omits the reference to “a Judge of a prescribed court” in subsection 22(1), and substitutes a reference to “an issuing officer”.   This will expand the class of persons who may issue a search warrant under that provision from Judges of prescribed courts to “issuing officers” (see Item 26).

 

Items 29, 30, 35, 36, 37 and 38 

 

These Items omit the reference to “the member” or “a member” from paragraphs 22(1)(a), 22(1)(b) and 22(8)(b), subparagraph 22(8)(b)(ii), and subsection 22(9), and substitute a reference to “the eligible person” or “an eligible person”, as the case may be.  The amendments are consequential on the expansion of the group of persons who may apply for a search warrant under section 22 (see Item 27).

 

Item 31, 32, 33 and 34

 

These Items omit the reference to “a Judge of a prescribed court”, “a Judge” or “the Judge” from subsections 22(2), 22(3) and 22(4), and substitute a reference to “an issuing officer” or “the issuing officer”, as the case may be.  The amendments are consequential on the expansion of the group of persons who may issue a search warrant under section 22 (see Item 28).

 

Item 39

 

This Item repeals subsections 22(11) and (12) and substitutes a re-formatted subsection 22(12) as new subsection 22(11).   Subsection 22(11), which defines “a Judge of a prescribed court”, is no longer required because of the new definition of “issuing officer” (see Item 26). 

 

Item 40

 

This Item adds three new provisions clarifying that the function of issuing a warrant under section 22 is conferred on an issuing officer in a personal capacity and not as a court or a member of a court.   This is designed to put beyond doubt any suggestion that non-judicial functions are meant to be discharged in a judicial capacity, and is in line with section 3CA of the Crimes Act 1914 .  The issue of a warrant has effect only by virtue of the NCA Act and is not to be taken by implication to be made by a court.  In addition, an issuing officer performing a function of, or connected with, issuing a warrant under section 22 will have the same protection and immunity as if he or she were performing that function as, or as a member of, a court.

 

Items 41 and 42

 

These Items omit the reference to “a member” and “the member” from subsection 23(1) and substitute a reference to “an eligible person” and “the eligible person”.  The amendments will expand the class of persons who may apply by telephone for a search warrant under section 22 from members to “eligible persons” (see Item 25).

 

Items 43 and 45

 

These Items omit the reference to “member” from subsection 23(2) and paragraph 23(3)(b), and substitute a reference to “eligible person”.  The amendments are consequential on the expansion of the group of persons who may apply by telephone under subsection 23(1) for a search warrant under section 22 (see Item 41).

 

Items 44, 46, 47 and 48

 

These Items omit the reference to “a Judge” or “ Judge” from subsections 23(3), 23(4), 23(5) and 23(6) and substitute a reference to “an issuing officer” or “issuing officer”, as the case may be.  The amendments are consequential on the expansion of the group of persons who may issue a search warrant under section 22 (see Item 28).

 

Item 49

 

This Item adds three new provisions clarifying that the function under section 23 of issuing a warrant by telephone is conferred on an issuing officer in a personal capacity and not as a court or a member of a court. This is designed to put beyond doubt any suggestion that non-judicial functions are meant to be discharged in a judicial capacity, and is in line with section 3CA of the Crimes Act 1914 .  The issue of a warrant has effect only by virtue of the NCA Act and is not to be taken by implication to be made by a court.  In addition, an issuing officer performing a function of, or connected with, issuing a warrant by telephone will have the same protection and immunity as if he or she was were performing that function as, or as a member of, a court.

 

Part 7 - Non-disclosure of information about summons, notices etc.

 

This Part modifies the application of the Privacy Act 1988 in relation to certain process issued under the NCA Act.  (See Schedule 2 which will insert a note in the Privacy Act 1988 as a consequence of this amendment.)

 

Item 50

 

This Item adds proposed subsection 29A(7) which provides that where a summons or notice is issued to a credit reporting agency for it to produce information contained in an individual’s credit information file, and that summons or notice contains a non-disclosure notation, then the credit reporting agency must not make a note in the file until the notation is cancelled.  This means that the credit reporting agency is not to comply with subsection 18K(5) of the Privacy Act 1988 for the duration of the notation.   (Under subsection 18K(5), where a credit reporting agency discloses personal information contained in an individual's credit information file, it must include a note in the file of that disclosure.)

 

Item 51

 

This Item provides that if, in accordance with the Privacy Act 1988 , a note was made by a credit reporting agency before Item 50 commences, and there is a non-disclosure notation in force under section 29A of the NCA Act, then the note must be removed before any access is given to that credit file.  In addition, neither the note nor any information in the note may be disclosed to the individual when such access is given.

 

Part 8 - Delegation of chairperson’s powers

 

The purpose of this Part is to enable the Chairperson to delegate certain powers to improve the efficient operations of the Authority.

 

Item 52

 

This Item inserts a definition of acting SES employee in subsection 4(1).  An acting SES employee will have the same meaning as in the Public Service Act 1999.  That definition is in section 7 of that Act.

 

Item 53

 

This Item inserts a definition of SES employee in subsection 4(1).  An SES employee will have the same meaning as in the Public Service Act 1999. That definition is in section 7 of that Act.

 

Item 54

 

This Item adds three new provisions to section 59A to enable the Chairperson to delegate specified powers under the NCA Act.

 

Proposed subsection 59A(2) provides that the Chairperson may, by signed instrument, delegate to a member the power under subsection 25(9A) to vary or revoke a direction made by the Authority in relation to the publication of certain information.

 

Proposed subsection 59A(3) provides that the Chairperson may, by signed instrument, delegate to a member the power under subsection 26(2) to direct that a person producing a document or thing in answer to a notice under section 29 may be paid in respect of expenses incurred.

 

Proposed subsection 59A(4) provides that the Chairperson may, by signed instrument, delegate to a member, or a member of the staff of the Authority who is an SES employee or acting SES employee, the power under subsection 48(1) to engage consultants.

 

Part 9 - Hearings

 

The purpose of this Part is to remove any doubt about the power of the Authority to allow persons to be present. The proposed amendments implement recommendation 15 from the 3 rd evaluation of the Authority by the PJC-NCA and are not designed to restrict the manner in which the Authority may otherwise regulate a hearing.

 

Item 55

 

This Item inserts proposed subsection 25(7A) which provides that if a person (other than a member or a member of the staff of the Authority) is present at a hearing while a witness is giving evidence, the Authority must inform the witness that the person is present and give the witness an opportunity to comment on the presence of the person.

 

This Item will also insert proposed subsection 25(7B) which provides that, to avoid doubt, a person does not cease to be entitled to be present at a hearing or part of a hearing if the Authority fails to comply with subsection 25(7A) or a witness comments adversely on the presence of the person.

 

Part 10 - Disclosure of information by legal practitioners

 

The purpose of this Part is to remove the defence of “legal duty” in relation to a legal practitioner who receives a non-disclosure notice in relation to his or her client.  The proposed amendments do not effect affect the law relating to legal professional privilege, but remove a provision that is of uncertain meaning and application. The amendment will partially implement recommendation 9 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 56

 

This Item repeals paragraph 29B(2)(e) and substitutes it with a new provision that re-enacts subparagraph 29B(2)(e)(ii).  Subparagraph 29B(2)(e)(i), which will not be replaced, provides that a legal practitioner does not commit an offence if he or she discloses the existence of a summons or notice to produce, which contains a notation prohibiting disclosure, in compliance with a legal duty of disclosure arising from his or her professional relationship with a client.  As the meaning of “legal duty” is uncertain, and it is anomalous that the provision applies to legal practitioners as opposed to others in a fiduciary or legal relationship with another person, the provision may be repealed. may

 

Part 11 - Use of reasonable force to execute warrants

 

The purpose of this Part is to clarify the force that may be used when executing a search or arrest warrant and to respond to a concern expressed by the Senate Standing Committee on Regulations and Ordinances about the absence of this stipulation in warrants prescribed in the National Crime Authority Regulations.

 

Item 57

 

This Item inserts a new provision in section 22 to clarify that a person executing a search warrant issued under that section may only use such reasonable force as is necessary for the execution of the warrant.  Such a provision is consistent with other Commonwealth laws (for example, section 3G of the Crimes Act 1914 ).

 

Item 58

 

This Item inserts a new provision in section 31 to clarify that a person executing an arrest warrant under that section may only use such reasonable force as is necessary for the execution of the warrant. Such a provision is consistent with other Commonwealth laws (for example, subsection 3ZC(1) of the Crimes Act 1914 ).

 

Item 59

 

This Item provides that the amendments proposed by Items 57 and 58 apply to a person executing a warrant on or after the commencement of those Items regardless of whether the warrant was issued before, on or after that commencement.  As clarification of the ‘reasonable force’ rule is beneficial for all concerned, it is considered that it should operate immediately and unequivocally from commencement.

 

Part 12 - Access to information by the Parliamentary Joint Committee on the National Crime Authority

 

The purpose of this Part is to clarify the ability of the PJC-NCA to request and receive certain information from the Authority.  The proposed amendments will partially implement recommendation 18 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 60

 

This Item adds a new provision to section 55 to avoid doubt about the ability of the Committee (as defined in section 52 of the NCA Act) to examine, and report to both Houses of the Parliament on, information given to it under section 59 (see Item 61).

 

Item 61

 

This Item inserts four new provisions in section 59, which deal with providing reports and information by the Authority to the PJC-NCA.

 

Proposed subsection 59(6A) provides that, subject to proposed subsection 59(6B), the Authority must comply with a request by the PJC-NCA to give it information relating to an investigation that has been conducted by the Authority and to inform it about the general conduct of the operations of the Authority.  The provision also provides that the Authority may inform the PJC-NCA about the general conduct of its operations whenever it thinks it is appropriate to do so.

 

However, proposed subsection 59(6B) provides that, if the Chairperson considers that the disclosure of information to the public could prejudice the safety or reputation of persons or the operations of law enforcement agencies, the Authority must not give the PJC-NCA the information.  If this occurs, proposed subsection 59(6C) provides that the PJC may refer the request to the Minister for determination under proposed subsection 59(6D).  Under proposed subsection 59(6D), the Minister must determine in writing whether disclosure of the information could prejudice the safety or reputation of persons or the operations of law enforcement agencies; provide copies of that determination to the Chairperson and the PJC-NCA, and must not disclose his or her reasons for that determination.  

 

This mechanism is designed to ensure that sensitive material is appropriately protected, but in a way that ensures that there is confidence that, subject to these sensitivities, appropriate disclosure is made to the PJC-NCA.

 

Part 13 - Dissemination of information overseas

 

This Part addresses the ability of the Authority to disseminate information to foreign law enforcement agencies. The provision of the information will be in addition to the coordination role that the Authority undertakes in accordance with section 17 of the NCA Act.  Serious and organised crime increasingly crosses jurisdictional boundaries and the flow of information between agencies is vital to international cooperation in combating transnational and national crime.

 

Item 62

 

This Item inserts a definition of foreign law enforcement agency in subsection 4(1).   A foreign law enforcement agency means a police force (however described) of a foreign country, or any other authority or person responsible for the enforcement of the laws of the foreign country.  This will ensure that the capacity to disclose information to a foreign law enforcement agency (see Item 63) is not precluded by a technical reading of that term.

 

Item 63

 

This Item adds proposed subsection 59(12), which provides that, despite the functions of the Authority listed in section 11 of the NCA Act, the Chairperson may give to any foreign law enforcement agency (see Item 62) any information that is in the Authority’s possession and is relevant to the activities of that agency if it appears to the Chairperson to be appropriate to do so and it would not be contrary to a law of the Commonwealth, a State or a Territory.  This provision will enable the Authority to provide foreign law enforcement agencies with information that will assist those agencies with their law enforcement functions provided that the provision of that information is not contrary to any other law.

 

Part 14 - Application of the Criminal Code

 

This part will apply Chapter 2 of the Criminal Code (the Code) to offences under the NCA Act. 

 

Item 64

 

This Item inserts proposed section 6A, which provides that Chapter 2 of the Code applies to all offences against the NCA Act. The Code sets out general principles of criminal responsibility, including the level of fault required to prove different elements of offences and the defences applicable to all offences.  While the Code will apply to all Commonwealth offences from 15 December 2001, it is gradually being applied to existing Commonwealth legislation in advance of that date.

 

Item 65

 

This Item repeals subsections 19A(7) and 20(4A), which make it an offence to knowingly furnish information that is false or misleading in purported compliance with a request for information.   Section 137 of the Criminal Code , which will commence in May 2001, is a false or misleading statement offence of general application, and replaces many specific offences of this kind elsewhere in Commonwealth legislation.  Accordingly, the narrower offences in the NCA Act are no longer required.

 

Part 15 - Contempt

 

This Part establishes a contempt regime for the Authority (see also Schedule 4 for a proposed amendment to the Administrative Decisions (Judicial Review) Act 1977 to exempt the regime from the operation of that Act). The contempt regime will allow obstruction of the Authority to be addressed by a speedy and fair process, akin to that employed by courts in dealing with contempt.  At present, it can take years to bring about a criminal conviction for conduct that obstructs the Authority, during which time a person may have successfully delayed an investigation and defeated justice.  The proposed contempt regime has been designed as a more effective deterrent to such obstruction.  It is similar to the regime under section 219 of the Australian Securities and Investments Commission Act 1989.

 

Item 66

 

This Item inserts a definition of in contempt of the Authority in subsection 4(1).  It will have the meaning given by proposed section 34A (see Item 67).

 

Item 67

 

This Item inserts four proposed sections dealing with contempt.

 

Contempt of the Authority

 

Proposed section 34A provides that a person is in contempt of the Authority i f t he or she:

·         obstructs or hinders the Authority or a member in the performance of the functions of the Authority; or

·         disrupts a hearing; or

·         when appearing as a witness, refuses or fails to take an oath, make an affirmation or answer a question when required to do so.

 

Supreme Court to deal with contempt

 

Proposed section 34B provides that if the Authority is of the opinion that a person is in contempt of the Authority, the Authority may apply to the Supreme Court in the State or Territory in which the Authority is holding the hearing, for the person to be dealt with by that Court in respect of the contempt.  The provision also provides that the application must be accompanied by an affidavit that sets out the grounds for making the application and the evidence in support of the application.

 

In addition, if, after considering the affidavit, any evidence for the Authority and any evidence for the person, the Court finds that the person was in contempt and did not have a reasonable excuse for being in contempt, the Court may deal with the person as if the person w were as in contempt of that Court. 

 

Person may be detained

 

Proposed section 34C provides that if the Authority intends applying to the Court under proposed section 34B, then during the hearing concerned, the Authority may direct a member of a law enforcement agency (defined in subsection 4(1)) to detain the person for the purpose of bringing the person before the Court.   If the person is detained, proposed subsection 34C also provides that the Authority must apply to the Court under subsection 34B, and the person must be brought before the Court, as soon as practicable.   However, the Court may release the person on condition that she or he will appear before the Court in relation to the matter.  The Court may also impose additional conditions on the release of the person such as, surrendering his or her passport, making undertakings as to living arrangements and reporting requirements.  Furthermore, the Court may vary or revoke any condition.

 

Authority may withdraw contempt application

 

Proposed section 34D enables the Authority to withdraw the contempt application at any time and if a person is in detention under proposed section 34C, he or she must be released immediately.

 

Item 68

 

This Item adds proposed subsection 35A(2), which provides that if a person is dealt with under proposed subsection 34B(1) in relation to being in contempt of the Authority, then the person is not liable to be prosecuted for an offence in respect of the same conduct.  The provision also provides that if a person is prosecuted for an offence in relation to that conduct, then he or she must not be dealt with under proposed subsection 34B(1) in respect of that same conduct.

 

The proposed contempt regime will overlap with existing criminal offences relating to obstruction of the Authority, so that the most appropriate enforcement tool can be employed in a given case.   However, once a person’s conduct has been dealt with by one route, proceedings under the other will be barred, consistent with the 'double jeopardy' rule fundamental to Australian criminal law and reflected in section 4C of the Crimes Act 1914 .

 

Part 16 - Amendments relating to the operation of the Ombudsman Act 1976

 

The purpose of this Part is to make a clarifying amendment to the NCA Act to avoid any doubt about the application of the Ombudsman Act 1976 to complaints against members of the Authority. (See Schedule 3 in relation to the application of the Ombudsman Act 1976 to the Authority).  The provisions of the Ombudsman Act 1976 will otherwise apply according to their tenor.  For example, subsection 9(5) of the Ombudsman Act 1976 will apply to override the secrecy provision in section 51 of the NCA Act.

 

Item 69

 

This Item adds proposed subsection 36(4) to avoid the suggestion that the protection afforded to members of the Authority under section 36 limits the powers of the Ombudsman under the Ombudsman Act 1976.  Section 36 confers protections and immunities equivalent to those held by the High Court justices (for example, in relation to certain civil suits), but they are not intended to preclude investigation by the Ombudsman.

 

Part 17 - Hearing officers

 

The purpose of this Part is to increase the investigative capacity of the Authority by enabling the appointment of a number of persons who are empowered to conduct hearings on behalf of the Authority .  The proposed amendments would partially implement recommendation 28 from the 3 rd evaluation of the Authority by the PJC-NCA, which addressed the need for part-time members of the Authority.

 

Item 70

 

This Item inserts a definition of hearing officer in subsection 4(1).  A hearing officer means a person appointed under proposed subsection 25A(1) (see Item 76).

 

Items 71 to 73

 

These Items extend the operation of paragraphs 24(1)(a) and (b), which relate to the surrender of passports, to apply to hearings before hearing officers in the same manner as they apply to hearings before the Authority.  (See Item 76 in relation to the appointment of, and hearings held by, hearing officers.)

 

Item 74

 

This Item inserts proposed section 24A which provides that for the purposes of a special investigation, the Authority may hold hearings of the Authority and the Chairperson may, by writing, direct a hearing officer to hold hearings.

 

Item 75

 

This Item repeals subsection 25(1) and substitutes a proposed subsection 25(1).  Proposed subsection 25(1) provides that section 25 applies to a hearing held by the Authority so as to differentiate the application of that section from proposed section 25A (see Item 76), which will deal with hearings held by a hearing officer.

 

Item 76

 

This Item inserts proposed section 25A, which provides for the appointment of hearing officers, their qualifications and how they are to conduct hearings.    The proposed section is modelled on existing section 25, which applies to hearings before the Authority.

 

Appointment

 

Hearing officers are to be appointed by the Governor-General on the advice of the Minister, where that advice is consistent with a unanimous recommendation by the members of the Inter-Governmental Committee of the Authority. 

 

Qualifications

 

A hearing officer must have been enrolled as a legal practitioner for at least 5 years.    

 

Hearings

 

A hearing officer may regulate the conduct of his or her hearings as he or she thinks fit, although the hearings must be in private. The hearing officer may give directions as to the persons who may be present during the hearing, however witnesses and other persons who are present may be represented by a legal practitioner, and the directions by the hearing officer cannot limit the presence of those legal practitioners.  No other person (except a member or a member of the staff of the Authority) may be present at a hearing unless the hearing officer so directs.  If there are other persons so present while a witness is giving evidence, then the hearing officer must inform the witness that the other person is present and give the witness the opportunity to comment.  However, that other person does not cease to be entitled to be present if the hearing officer fails to do this or the witness comments adversely on that person’s presence.

 

At a hearing, counsel assisting the hearing officer and any legal practitioner who is entitled to be present, may, so far as the hearing officer thinks appropriate, examine or cross-examine any witness on any matter that the hearing officer considers relevant to the special investigation.

 

Non-publication orders

 

A hearing officer may give a non-publication order in relation to any evidence given before him or her; the contents of any document or thing produced; the identity of a witness or the fact that any person has given or may be about to give evidence at a hearing.  Such a direction must be given if a failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been charged or may be charged with an offence.

 

The Chairperson may, in writing, vary or revoke a non-publication order given by a hearing officer, but he or she must not do so if it might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been charged or may be charged with an offence.

 

Where a person has been charged with an offence before a federal, State or Territory court, the court may give to the hearing officer (or the Authority) a certificate that it considers that it may be desirable in the interest s of justice that particular evidence given before a hearing officer, and as to which there is a non-publication order, be given to the person charged or his or her legal practitioner.  If, after examining the evidence, the Court is of the view that the evidence should be given to the person cha r n ged, or his or her legal practitioner, then the court may do so.

 

Offences 

 

A person who is present at a hearing contrary to a direction of the hearing officer or breaches a non-publication order, is guilty of an offence punishable by a fine not exceeding $2 000 or imprisonment for a period not exceeding 12 months.

 

Information for the Authority

 

At the conclusion of a hearing, the hearing officer must give the Authority a record of the proceedings of the Authority and any documents or other things given to the hearing officer at, or in connection with, the hearing.

 

Items 77 to 123 (inclusive)

 

These Items extend the operation of sections 26 (reimbursement of witness expenses); 27 (legal and financial assistance); 28 (summons); 29 (notices to produce); 29B (offences of disclosure); 30 (failure of witness to attend and answer question); 31 (arrest warrants); 33 (false or misleading evidence); 34 (protection of witnesses); 34B to 34D (contempt); and 35 (contempt offences) to apply to hearing officers and hearings before hearing officers in the same manner as they apply to hearings before the Authority.

 

Items 124 to 127

 

These Items extend the operation of section 36, which deals with the protection of members, legal practitioners assisting the Authority or representing a person at a hearing before the Authority and witnesses summonsed to attend before the Authority, to apply to hearing officers and hearings before hearing officers.

 

Items 128 to 132

 

These Items extend the operation of section 37, which deals with terms and conditions of appointment, to apply to hearing officers.  A hearing officer may be appointed for a maximum total period of 6 years and may not be appointed after the age of 65.  These conditions reflect those that apply to members of the Authority.

 

Item 133

 

This Item inserts a proposed subsection 37(5), which provides that a hearing officer holds office on such terms and conditions (if any) in respect of matters not provided for by the Act as are determined by the Governor-General.  This provision is modelled on subsection 37(4), which applies to non-judicial members of the Authority.

 

Items 134 and 135

 

These Items extend the operation of section 38, which deals with remuneration and allowances payable to members of the Authority, to apply to hearing officers.  A hearing officer will be paid such remuneration as is determined by the Remuneration Tribunal or as prescribed by regulation.  A hearing officer will be paid such allowances as are prescribed by regulation.   

 

Item 136

 

This Item extends the operation of section 41, which deals with resignations by members of the Authority, to apply to hearing officers.  A hearing officer may resign by writing signed by him or her and delivered to the Governor-General.

 

Item 137

 

This Item extends the operation of section 42, which deals with disclosure of interests by members of the Authority, to apply to hearing officers.  A hearing officer must disclose any direct or indirect interest in a matter that could arise during the hearing before that hearing officer to the Chairperson.  The disclosure must be recorded in the minutes of the meetings of the Authority and the hearing officer must not, unless the Minister determines otherwise, hold hearings or further hearings in relation to the matter.

 

Items 138 and 139

 

These Items extend the operation of section 43, which deals with the termination of the appointments of members of the Authority, to apply to hearing officers.  The Governor-General may terminate the appointment of a hearing officer for misbehaviour, physical or mental incapacity, bankruptcy, or failure to disclose an interest (see Item 137).

 

Items 140 and 141

 

These Items extend the operation of section 51, which deals with secrecy and compellability issues, to apply to hearing officers.  Unless it is in relation to the performance of a function under the Act, a hearing officer will commit an offence if he or she discloses or makes a record of information that is acquired by him or her as a hearing officer.  A hearing officer will also not be compellable in a Court, except in relation to proceedings that relate to section 51 or for the purposes of a prosecution that involves information obtained by the hearing officer.

 

Part 18 - Non-APS employees

 

The purpose of this Part is to give the Authority greater flexibility in employing staff.   The amendments will enable the Authority to make more effective and efficient use of resources, particularly where the focus of, and funding for, the Authority is task orientated.   The amendments will assist the Authority by allowing the employment of persons to match those tasks, rather than on an ongoing basis.

 

Item 142

 

This Item amends subsection 47(1) by adding the words “this section and” after the words “Subject to”.  This means that subsection 47(1), which deals with the staff of the Authority, is to be read subject to the remainder of section 47 (see Item 143) as well as sections 48 and 49.

 

Item 143

 

This Item adds proposed subsections 47(3) and (4), which provide that in addition to the staff of the Authority who are engaged under the Public Service Act 1999 , the Chairperson may, on behalf of the Commonwealth, employ such other persons as he or she thinks necessary.  The additional staff are to be employed under written agreements and on such terms and conditions as determined by the Chairperson.

 

Schedule 2- Privacy Act 1988

 

The purpose of this Schedule is to make a note in the Privacy Act 1988 cross-referring to a provision in the NCA Act, which modifies the application of the Privacy Act 1988 .

 

Item 1

 

This Item adds a note after subsection 18K(5) to alert a credit reporting agency to the requirements of section 29A of the NCA Act in relation to not annotating a credit file when there is a non-disclosure notice in place and it has not been cancelled (see Items 50 and 51 of Schedule 1).

 

Schedule 3 - Ombudsman Act 1976

 

The purpose of this Schedule is to allow the Ombudsman to investigate complaints against the Authority and the members of the staff of the Authority, thereby enhancing the Authority's accountability.   It is also necessary to deal with the special characteristics of the Authority, for example, by laying down a mechanism to restrict disclosure of operationally sensitive information, and by providing scope for appropriate State or Territory authorities to investigate complaints against State or Territory police who are seconded to the Authority.  The amendments proposed by this Schedule are designed to address recommendation 21 from the 3 rd evaluation of the Authority by the PJC-NCA.

 

Item 1

 

This Item inserts a definition of law enforcement agency in subsection 3(1).  Law enforcement agency will have the same meaning as in subsection 4(1) of the National Crime Authority Act 1984.

 

Item 2

 

This Item inserts a definition of National Crime Authority in subsection 3(1).  The National Crime Authority (the Authority) means the National Crime Authority as established by the National Crime Authority Act 1984 .

 

Item 3

 

This Item inserts proposed subsection 3(13A), which provides that for the purposes of the Ombudsman Act, the Authority is taken to be a prescribed authority.  This means that the jurisdiction of the Ombudsman to investigate complaints against a prescribed authority is extended to include complaints against the Authority.  In addition, the definition of “officer” in relation to a prescribed authority means, as far as is relevant, a person who is a member of the authority or a person who is employed in the service of, or is a member of the staff of the authority.  For the purposes of the Ombudsman Act, action that is taken by an officer of a prescribed authority shall be deemed to be taken by the authority.  As a result, the Ombudsman will be able to investigate complaints against members of the Authority and members of the staff of the Authority, as well as complaints against the Authority.

 

Item 4

 

This Item amends paragraph 5(2)(b) such that the inability of the Ombudsman to investigate action taken by a Judge or a Justice of a court created by the Parliament does not apply to action taken by a Judge or a Justice in his or her capacity as a member of the Authority.

 

Item 5

 

This Item inserts proposed section 6A, which enables the Ombudsman to transfer, in certain circumstances, a complaint about the Authority to another authority.  If the Ombudsman is of the opinion that the complaint could have been made to another authority established under a law of the Commonwealth, a State or a Territory, and the complaint could be more conveniently or effectively dealt with by that other authority, then the Ombudsman may transfer the complaint to that other authority.  If the Ombudsman does decide to transfer the complaint, the Ombudsman must advise the complainant and do so as soon as is reasonably practicable, and, subject to proposed section 35B (see Item 11) provide that other authority with the information that the Ombudsman has in relation to the complaint. 

 

This provision reflects those in section 6, which enable the Ombudsman to transfer a complaint to a more appropriate body such as the Privacy Commissioner or the Australian Communications Authority.  The proposed provisions enable the transfer to an appropriate State or Territory authority in recognition of the possibility that the complaint will be about a member of the staff of the Authority who is seconded from a policing agency of one of those jurisdictions.

 

Item 6

 

This Item inserts proposed section 8B, which provides that if an authority that is established under a law of the Commonwealth, a State or a Territory can enter into an arrangement with the Ombudsman to investigate action taken by the Authority, then the Ombudsman may enter into such an arrangement.    This provision, which is modelled on section 8A, will enable joint investigations provided that the other authority has the power to enter into an arrangement with the Ombudsman in relation to the complaint. (Section 8A deals with joint investigations by Commonwealth and State Ombudsmen.)

 

If the Ombudsman does enter into such an arrangement, the proposed provision provides that the arrangement must be in writing and may be varied or revoked.  In addition, the arrangement may relate to particular actions or classes of actions.  

 

The proposed provision will also enable the making of regulations that relate to the participation of the Ombudsman in the proposed joint investigations.

 

The proposed provision also makes it clear that it does not affect the powers and duties of the Ombudsman under any other provision of the Act. 

 

Item 7

 

This Item makes a minor drafting amendment to paragraphs 9(3)(a) and (b).

 

Item 8

 

This Item inserts proposed paragraph 9(3)(e), which will extend the grounds on which the Attorney-General may issue a certificate to prevent the Ombudsman from requiring a person to provide certain information to the Ombudsman.  A certificate may be issued if disclosure of the contents of any information, document or record which are or were in the possession or under the control of the Authority, would be contrary to the public interest by reason that it would prejudice the safety of a person; the fair trial of a person who has been or may be charged with an offence; the effectiveness of an investigation by the Authority or the operations of a law enforcement agency (see Item 1).

 

The purpose of the proposed provision is to ensure that the Ombudsman’s ability to otherwise compel the disclosure of information that is relevant to his or her investigation of a complaint is only restricted in limited circumstances.

 

Item 9

 

This Item makes a minor drafting amendment to subsection 35(5).

 

Item 10

 

This Item amends subsection 35A(1) to add the words “Subject to section 35B” at the beginning of the provision.  This means that the disclosure of information by the Ombudsman under section 35A is subject to the provisions of proposed section 35B, when that information relates to NCA information (see Item 11).

 

Item 11

 

This Item inserts proposed section 35B, which provides for restricting disclosure by the Ombudsman of certain NCA information.  If the Attorney-General gives the Ombudsman a certificate stating that the disclosure of certain NCA information by one or more of the specified disclosure methods would be contrary to the public interest by reason that it would prejudice the safety of a person; the fair trial of a person who has been or may be charged with an offence; the effectiveness of an investigation by the Authority or the operations of a law enforcement agency, then the Ombudsman must not so disclose the NCA information. 

 

The proposed provision will include a definition of listed disclosure method (which refers to the ways in which the Ombudsman can disclose information under the Act) and NCA information .

 

The purpose of the provision is to ensure that when information has been given to the Ombudsman for the performance of his or her functions under the Act, that information may not be disclosed by the Ombudsman when the Attorney-General issues a certificate under the proposed provision.  The prohibition on disclosure by the Ombudsman can be in relation to one or more methods of disclosure, depending on where the risk of prejudice may exist. 

 

Schedule 4 - Administrative Decisions (Judicial Review) Act 1977

 

Item 1

 

This Item amends Schedule 1 to exempt decisions made under sections 34B and 34C of the National Crime Authority Act 1984 from the operations of the Administrative Decisions (Judicial Review) Act 1977.   The amendment will mean that an administrative decision to apply to the Supreme Court for a person to be dealt with for contempt or to direct a member of a law enforcement agency to detain a person for the purpose of bringing the person before the Court, cannot be the subject of an application for judicial review under the Act.  However, the person will be able to contest the Authority’s decision when answering the contempt allegation.