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Measures to Combat Serious and Organised Crime Bill 2001

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1998-1999-2000-2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

MEASURES TO COMBAT SERIOUS AND ORGANISED CRIME BILL 2001

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice and

Customs, Senator the Honourable Chris Ellison)

 

 



 

MEASURES TO COMBAT SERIOUS AND ORGANISED CRIME BILL 2001

 

OUTLINE

 

This Bill amends the Crimes Act 1914 (Crimes Act), Australian Federal Police Act 1979 (AFP Act), Customs Act 1901 (Customs Act) and Financial Transaction Reports Act 1988 (FTR Act) to:

 

·                extend the scope of the controlled operations provisions to enable operations against a broader range of criminal activity subject to appropriate limitations and accountability measures;

·                provide a framework for intelligence and law enforcement agencies to obtain and use evidence of identity for the purpose of creating assumed identities for use in the performance of their functions, subject to authorisation and audit mechanisms;

·                provide protection for child victims and witnesses appearing in Commonwealth sex offence proceedings;

·                make minor and technical amendments including amendments to the provisions dealing with the investigation and prosecution of Commonwealth offences;

·                permit a warrant authorising the use of a listening device in relation to a particular item to be sought;

·                clarify that financial transaction intelligence provided to AUSTRAC by comparable foreign agencies is FTR information and give AUSTRAC a power to inspect the record keeping systems of cash carriers; and

·                prescribe CrimTrac for the purposes of the Part VIIC (pardons, quashed convictions and spent conviction).

 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.

 



NOTES ON CLAUSES

 

List of Abbreviations

 

AFP                 Australian Federal Police

Customs           Australian Customs Service

NCA                National Crime Authority

 

Clause 1: Short title

The short title of this Act is the Measures to Combat Serious and Organised Crime Act 2001.

 

Clause 2: Commencement

This clause provides that sections 1, 2 and 3 of this Act commence on the day on which the Act receives Royal Assent.

 

Schedules 1 and 2 of this Act commence on a day or days to be fixed by Proclamation.  If either Schedule 1 or 2 has not commenced within 6 months of Royal Assent, then the Schedule(s) that has not commenced, commence on the first day after the end of the 6-month period.  This will allow time to make the regulations necessary to give effect to the amendments. 

 

Item 10 of Schedule 4 of this Act will commence on a day to be fixed by Proclamation. This Item repeals a provision that provides that the existing provisions of Part 1C apply to the investigation of certain Australian Capital Territory (ACT) offences.  The ACT is considering a proposal to enact its own regime, essentially replicating the Commonwealth’s Part 1C, to apply to ACT offences.  This is consistent with the fact that the ACT has enacted its own criminal investigation provisions in other contexts.  However, the timing of any such measure has not yet been determined.

 

While an upper limit would normally be placed on the date by which an amendment comes into force, in this case such a limit would create the risk that Part 1C would cease to apply to the investigation of ACT offences without a new ACT regime having been put in place.  On the other hand, this Act was considered the best vehicle to take forward this measure (rather than delaying further) given that (i) the Act contains a broader package of ‘Part 1C’ measures; (ii) if the ACT was required to enact its own amendments first, there might then be significant further delay awaiting a Commonwealth amendment of the kind proposed in this Item.

 

The remaining provisions of the Act commence the 28 th day after the day on which it receives the Royal Assent .

 

Clause 3: Schedule(s)

This clause provides that, subject to the commencement provision, each Act that is specified in a Schedule is amended as set out in that Schedule.



Schedule 1- Controlled operations

 

Crimes Act 1914

 

The purpose of this Schedule is to amend the existing controlled operation provisions in Part 1AB of the Crimes Act.  The existing provisions are limited to exempting from criminal liability law enforcement officers who commit narcotic drug offences, such as importation of a prohibited substance, in the course of obtaining evidence that may lead to the prosecution of a person for specified drug offences.  The proposed new provisions will:

·                expand the operation of controlled operations to apply to the investigation of all Commonwealth offences;

·                expand the exemption from criminal liability to cover all Commonwealth, State and Territory offences and persons other than law enforcement officers;

·                introduce indemnification from civil liability for both law enforcement officers and other persons;

·                expand the group of persons who may apply for and who may authorise a controlled operation;

·                make consequential amendments to enhance the reporting and accountability regimes; and

·                make adjustments to other aspects of the framework regulating controlled operations and evidence derived from them.

 

Item 1

 

This Item inserts a definition of the term AFP authorising officer into subsection 3(1) and provides that it will have the meaning given by proposed subsection 15J(3) (see Item 17).

 

Item 2

 

This Item inserts a definition of the term appropriate authorising officer into subsection 3(1) and provides that any AFP authorising officer, NCA authorising officer or Customs authorising officer will be an appropriate authorising officer in relation to a certificate authorising a controlled operation if the certificate was given by an authorising officer of the same agency.

 

Item 3

 

This Item amends the definition of the term authorising officer in subsection 3(1) and provides that an authorising officer in relation to a controlled operation has the meaning given by proposed section 15J (see Item 17).

 

Item 4

 

This Item inserts a definition of the term Commonwealth offence into subsection 3(1) and provides that a Commonwealth offence means (other than in Part 1C) an offence against a law of the Commonwealth.  Part 1C has a different definition of ‘Commonwealth offence’ (section 23B) which excludes Defence Force Discipline Act 1982 service offences.

 

Item 5

 

This Item inserts a definition of the term Customs authorising office r into subsection 3(1) and provides that it will have the meaning given by proposed subsection 15J(5) (see Item 17).

 

Item 6

 

This Item inserts a definition of the term illicit goods into subsection 3(1) and provides that illicit goods mean goods the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.  With the proposed expansion of the controlled operation provisions to cover the investigation of all Commonwealth offences, there needs to be a consequential expansion of the type of goods that may be involved in the controlled operation for which special consideration needs to be given (for example in relation to the information in the certificate (see Items 21and 22) and reporting requirements (see Item 35)).

 

Item 7

 

This Item repeals the definition of the term narcotic goods offence from subsection 3(1) as consequence of the proposed expansion of the controlled operations regime to cover the investigation of all Commonwealth offences and the introduction of the term illicit goods.

 

Item 8

 

This Item inserts a definition of the term NCA authorising office r into subsection 3(1) and provides that it will have the meaning given by proposed subsection 15J(4) (see Item 17).

 

Item 9

 

This Item inserts a definition of the term quarter into subsection 3(1) and provides that a quarter means a period of 3 months ending on 31 January, 30 April, 31 July or 31 October for the purpose of reporting requirements under proposed section 15R (see Item 34).

 

Item 10

 

This Item inserts a definition of the term senior executive Customs employee into subsection 3(1) and provides that a senior executive Customs employee will be a member of the staff of the Australian Customs Service, referred to in section 15 of the Customs Administration Act 1985 , who is an SES employee (ie, a Senior Executive Service employee).

 

Item 11

 

This Item inserts a new heading for Part 1AB Controlled operations for obtaining evidence about Commonwealth offences reflecting the fact that under the proposed amendments controlled operations will no longer be limited to offences concerning narcotic goods.

 

Item 12

 

Subsection 15G(1) outlines the objects of the controlled operation provisions. Paragraph 15G(1)(a) currently provides that one object of the provisions is to exempt from criminal liability a law enforcement officer who in the course of a controlled operation takes an active part in a narcotic goods offence such as importation or exportation of such substances.  (Exemption from criminal liability is currently limited to narcotic goods offences consistent with the fact that a controlled operation can only be conducted in relation to the investigation of narcotic goods offences.)

 

With the proposed expansion of the controlled operation provisions, proposed paragraph 15G(1)(a) replaces the existing paragraph and provides that an object of the controlled operations provisions is to exempt from criminal liability and to indemnify from civil liability law enforcement officers and others who take an active part in or are otherwise involved in the commission of a Commonwealth, State or Territory offence during the course of an authorised controlled operation.

 

Item 13

 

This Item amends to subparagraph 15G(1)(b)(i) by adding the “Chief Executive Officer of Customs” to the list of persons who are required to report to the Minister under proposed section 15R in relation to a controlled operation.  This is consequential on the fact that senior Customs’ officers would be able to authorise controlled operations under the proposed amendments (see Item 17).

 

Item 14

 

This Item replaces an incorrect reference to “Act” with a reference to “Part” in subparagraph 15G(1)(c)(i).  This is a minor drafting error in the existing provision.

 

Item 15

 

This Item adds a reference to “admit” in paragraph 15G(2)(a) to make it clear that the controlled operation provisions do not limit the discretion of a court to admit as well as exclude evidence in criminal proceedings.

 

Item 16

 

This Item inserts proposed section 15GA to provide that a law of a State or Territory should be able to operate concurrently with the controlled operation provisions to the extent that those laws are consistent with the new controlled operation provisions.  This is important because of the significance of joint operations between Commonwealth, State and Territory agencies, relating to suspected Commonwealth, State and Territory offences.

 

Item 17

 

This Item repeals sections 15H, 15I and 15J and substitutes new provisions dealing with the expanded definition of controlled operations, exemption from criminal liability, indemnity from civil liability and the application for, and authorisation of, a controlled operation.

 

Proposed new section 15J: What is a controlled operation?

 

Proposed section 15H provides that a controlled operation is an operation that:

·                involves the participation of law enforcement officers;

·                is carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a Commonwealth offence; and

·                may involve a law enforcement officer or a person other than a law enforcement officer in acts or omissions that, apart from proposed subsections 15I(1) and (2) constitute a Commonwealth, State or Territory offence.

 

This proposed definition of controlled operation replaces the current definition so that a controlled operation may now be conducted during the investigation of all Commonwealth offences (rather than being limited to narcotic goods offences) and may involve persons other than law enforcement officers.

 

Proposed section 15HA: Meaning of engage in conduct

 

Proposed section 15HA is an explanatory provision that provides that engaging in conduct includes omitting to act and a person’s conduct includes a person’s omissions.

 

Proposed new section 15I: Law enforcement officers etc not liable for offences committed for purposes of authorised controlled operation

 

The purpose of proposed section 15I is to define the circumstances in which a law enforcement officer or person other than a law enforcement officer will not be criminally responsible for otherwise unlawful conduct.  This expands the existing section 15I, which only applies to law enforcement officers and narcotic drug offences.

 

Proposed subsection 15I(1) provides that a law enforcement officer is not criminally responsible for conduct that would otherwise constitute a Commonwealth, State or Territory offence if:

 

·                he or she engages in that conduct in the course of duty for the purposes of a controlled operation; and

·                the conduct meets the requirements of proposed subsection 15IB(1).

 

Proposed subsection 15I(2) is in similar terms to proposed subsection 15I(1) and exempts from criminal responsibility a person who is not a law enforcement officer.  Such a person will be exempt from criminal responsibility if:

 

·                the person engages in conduct that would otherwise constitute a Commonwealth, State or Territory offence for the purposes of the controlled operation;

·                a law enforcement officer has authorised the person to engage in that conduct; and

·                the conduct meets the requirements of proposed subsection 15IB(2).

 

Proposed subsection 15I(3) provides that proposed subsections 15I(1) and (2) do not affect the liability of any other person whose conduct is not covered by the certificate notwithstanding that someone whose conduct is covered by the certificate is not criminally responsible for an offence.  The purpose of this proposed provision is to ensure that the exemption from criminal responsibility for those covered by the certificate does not result in the otherwise unlawful conduct being rendered lawful.  For example, the fact that a person involved in an unlawful operations is a participant in an operation and is subject to a certificate will not mean that the importation becomes ‘lawful’ or that the target of the operation is immunised from liability.

 

Proposed subsection 15I(4) provides that subsection 15I(3) applies despite any provision of Chapter 2 of the Criminal Code to the contrary to ensure that there is no implication from Chapter 2 that the immunity conferred on one party negates the elements of an offence otherwise attributable to a person targeted by the operation. 

 

Proposed subsection 15I(5) is designed to ensure that goods, which are illegally imported, do not lose that illegal quality as a result of a being imported as part of a controlled operation.  This means that any other consequence that may flow from the fact that the goods are illegal (such as forfeiture of the goods) will continue to apply, notwithstanding that the person who imported the goods is exempt from criminal responsibility .

 

Proposed subsection 15I(6) re-enacts existing paragraph 15I(7)(a) to provide that for the purposes of the proposed section 15I a member of a police force or other law enforcement agency of a foreign country is to be taken to be acting in the course of duty to the extent that he or she is acting in accordance with the instructions given by the Australian law enforcement officer in charge of the operation.

 

Proposed section 15IA: Indemnification of law enforcement officers etc

 

The purpose of proposed section 15IA is to set out the circumstances in which the Commonwealth must indemnify both law enforcement officers and others against any liability incurred because of their conduct.

 

Proposed subsection 15IA(1) provides that the Commonwealth must indemnify a law enforcement officer against any liability the officer incurs as a result of conduct the officer engages in if:

 

·                the conduct is in the course of duty for the purposes of a controlled operation;

·                the conduct meets the requirements of proposed subsection 15IB(1); and

·                the requirements (if any) specified in the regulations have been met.

 

Proposed subsection 15IA(2) is in similar terms to proposed subsection 15IA(1) and provides that the Commonwealth must indemnify a person who is not a law enforcement officer against any liability incurred by the person as a result of conduct the person engages in if:

 

·                the conduct is for the purposes of a controlled operation;

·                a law enforcement officer has authorised the person to engage in that conduct;

·                the conduct meets the requirements of proposed subsection 15IB(2); and

·                the requirements (if any) specified in the regulations have been met.

 

Where the conditions in proposed subsections 15IA(1) and (2) are satisfied, the Commonwealth must indemnify the law enforcement officer or other person against any liability that arises out of the conduct of the officer or person.  This specifically includes any reasonable costs, but will also include any liability caused by the conduct.

 

Proposed section 15IB: Requirements that must be met for the purposes of sections 15I and 15IA

 

Law enforcement officers

 

Proposed subsection 15IB(1) sets out the circumstances in which a law enforcement officer’s conduct will satisfy the requirements of proposed subsection 15I(1) (to be exempt from criminal responsibility) and proposed subsection 15IA(1) (to be indemnified from civil liability).  The proposed conditions are:

 

·                at the time the conduct is engaged in there is in force a certificate given under section 15M that authorises the operation;

·                the conduct is within the nature of the activities covered by the certificate; and

·                the conduct complies with any conditions in the certificate.

 

In addition, the conduct must not involve intentionally inducing a person to commit a Commonwealth, State or Territory offence that that person would not otherwise have intended to commit or an offence of that kind.  That is, there must not be an entrapment.

 

Furthermore, the conduct must not involve the commission of a sexual offence against any person or an offence involving the death of or serious injury to any person.

 

Persons other than law enforcement officers

 

Proposed subsection 15IB(2) is in similar terms to proposed subsection 15IB(1) and sets out the circumstances in which the conduct of a person who is not a law enforcement officer will satisfy the requirements of proposed subsection 15I(2) (to be exempt from criminal responsibility) and proposed subsection 15IA(2) (to be indemnified from civil liability).  The proposed conditions are the same as for law enforcement officers, except for the additional condition that the certificate must identify the person as being permitted to be involved in the operation. 

 

Proposed section 15IC: Effect of sections 15I and 15IB on other laws relating to criminal investigation

 

Proposed section 15IC excludes the operation of proposed section 15I (exemption from criminal responsibility) and section 15IA (indemnification from civil liability) when the person’s conduct is or could have been authorised under a law of the Commonwealth or a State or Territory in relation to certain criminal investigation powers.   Proposed section 15IC identifies those powers as:

 

·                arrest or detention of individuals

·                searches of individuals

·                entry onto, or searches or inspections of, premises

·                searches, inspections or seizures of other property

·                forensic procedures

·                electronic surveillance devices or telecommunications interception

·                identification procedures

·                any other matter concerning powers of criminal investigation.

 

The purpose of proposed section 15IC is to make it clear that the proposed new controlled operations provisions do not override or oust specific laws governing the conduct of criminal investigations on specific topics. 

 

Proposed new section 15J: Application for certificate authorising a controlled operation - by whom and to whom made

 

Proposed section 15J replaces the existing section 15J and expands who may apply for and who may issue a certificate authorising which type of controlled operation. 

 

Currently, the Australian law enforcement officer who is in charge of a controlled operation may apply for a certificate authorising the controlled operation.  Proposed subsection 15J(1) removes the requirement for the person to be in charge of the controlled operation and enables any Australian law enforcement officer to apply for a certificate.  This provides necessary operational flexibility.  High level control over the authorisation process is maintained by the requirement that only a senior officer can authorise an operation (see below - proposed new subsections 15J(2) to (5)).

 

Currently, a certificate authorising a controlled operation may be given by certain specified members of the Australian Federal Police and members of the National Crime Authority and there is no relationship between which agency issues a certificate and the functions of the agency.

 

Proposed subsection 15J(2) defines the type of controlled operation an authorising officer may authorise and provides that if the function of the agency includes investigating the suspected criminal activity to which the operation relates, then any authorising officer of that agency may authorise the operation.

 

Proposed section 15J also defines AFP, NCA and Customs authorising officers , in the following terms.

 

An AFP authorising officer is defined as the Commissioner, a Deputy Commissioner, or a senior executive AFP employee who is a member of the Australian Federal Police and who is authorised in writing by the Commissioner for the purposes of proposed paragraph 15J(3)(c).  This reflects existing paragraph 15J(a).

 

An NCA authorising officer is defined as a member of the National Crime Authority.  This reflects existing paragraph 15J(b).

 

A Customs authorising officer is defined as the Chief Executive Officer of Customs or a senior executive Customs employee who is authorised in writing by the Chief Executive officer for the purposes of proposed paragraph 15J(5)(b).  This is a proposed new provision reflecting the expansion of the controlled operation provisions and the proposals that Customs be able to authorise a controlled operation.

 

Item 18

 

This Item is a transitional provision.  Subsection (1) provides that any application for a controlled operation that was made before the commencement of this Schedule and about which a decision has not been made, ceases to have effect on that commencement.  Proposed subsection (2) clarifies that subsection (1) does not prevent a new application being made after commencement (ie, under the new scheme).

 

Item 19

 

This Item amends section 15M by omitting “satisfied” and substituting “reasonably satisfied” to provide that an authorising officer need only be reasonably satisfied as to the criteria listed in that section before issuing a certificate.  This amendment will avoid a suggestion that an authorising officer must be certain as to the course of future events, while still requiring proper consideration of the matters listed.

 

Item 20

 

This Item repeals paragraphs 15M(a), (b), (c) and (d) and substitutes proposed new criteria upon which the authorising officer must be reasonably satisfied before he or she issues a certificate authorising a controlled operation.  These require consideration of a more extensive range of matters than the existing authorisation criteria, reflecting the broader terms under which operations would be able to be authorised.  The proposed criteria are:

 

·                it is likely that a Commonwealth offence has been, is being, or will be committed;

·                the nature and extent of the offence and any suspected criminal activity that is related to that offence, justifies a controlled operation;

·                conducting the operation must not involve intentionally inducing a person to commit a Commonwealth, State or Territory offence that that person would not otherwise have intended to commit or an offence of that kind (ie, it must not involve entrapment);

·                any unlawful activity involved in conducting the operation will be limited to the maximum extent consistent with conducting an effective controlled operation;

·                any illicit goods to which the controlled operation relates, and that will be in Australia at the end of the operation, will be to the maximum extent possible under the control of an Australian law enforcement officer;

·                any unlawful activity in conducting the operation will not:

-          seriously endanger the health or safety of any person;

-          cause death of, or serious injury to any person;

-          involve the commission of a sexual offence against any person;

-          result in loss of, or serious damage to, property (other than illicit goods);

·                the operation will be conducted in a way that is consistent with the reporting and accountability requirements of this Part; and

·                if a person who is not a law enforcement officer is to be involved in an operation - the role to be assigned to the person could not be adequately performed by a law enforcement officer.

 

Items 21, 22 and 23

 

Existing section 15N sets out the required form and content of a certificate authorising a controlled operation.  Subsection 15N(1) requires the certificate to be in writing and signed by the authorising officer.  Subsection 15N(2) lists what the certificate must address and includes such matters as the name of the applicant, certain information relevant to narcotic goods and the day on which the certificate was given.

 

Items 21, 22 and 23 propose amendments to the requirements of subsection 15N(2).

 

Item 21 will amend subparagraph 15N(2)(c)(ii) and Item 22 will amend subparagraphs 15N(2)(c)(iii), (iv) and (v) by replacing the reference to “the narcotic goods” with a reference to “illicit goods” .

 

The proposed amendments are consequential on the proposed expansion of the controlled operation provisions to be available for the investigation of all Commonwealth offences.  This means that a certificate authorising a controlled operation must, to the extent known and relevant, include a description of the nature and quantity of any illicit goods to which the operation relates rather than just to any narcotic goods.  The certificate must also, to the extent known and relevant, include a description of the foreign countries through which the illicit goods have passed or are likely to pass; where in Australia, the Australian Customs Service will deal or have dealt with the illicit goods or where the illicit goods have, or are likely to enter Australia.

 

Item 23 inserts four new matters that must be included in a certificate authorising a controlled operation to ensure that the extent of the controlled operation is clearly established by the certificate. Specifying these issues in the certificate is also relevant to determining the extent of the operation of the proposed exemption from criminal responsibility and immunity from civil liability provisions (see Item 17).

 

The certificate will be required, in addition to the existing matters listed in section 15N, to:

 

·                state the nature of the activities covered by the certificate;

·                identify each person who:

-          is not a law enforcement officer; and

-          is permitted to be involved in the operation;

·                for each person identified, state the nature of the activities covered by the certificate in relation to that person; and

·                state any conditions to which the certificate is subject.

 

Item 24

 

This Item proposes a new subsection 15N(2A) to provide that each person who is not a law enforcement officer and who is permitted to be involved in the operation, may be identified by a false name or code.  This is intended to protect the identity of that person, and may be achieved via the use of code names as well as alphanumerical codes.   The use of false names or code will be permitted if the Commissioner, the Chairperson of the NCA or the Chief Executive Officer of Customs holds a document that enables the person to be identified from that false name or code.

 

Item 25

 

This Item amends subsection 15N(4) to provide that a certificate may state a day not later than 6 months after the day on which it was given as the day on which the certificate is to cease to be in force.  This is a proposed increase from the existing 30- day period, reflecting the need for agencies to be involved in complex, longer-term operations including infiltration of criminal groups.  There is provision for mandatory review of a certificate if it is to remain in force beyond 3 months (see Item 28).

 

Item 26

 

This Item inserts a note at the end of subsection 15N(4) to cross-refer to the requirements of proposed section 15OB, that is the requirement that a certificate be reviewed in order to remain in force beyond 3 months (see Item 28).

 

Item 27

 

This Item proposes a new section 15NA to expressly provide for the variation of a certificate.  Proposed subsection 15NA(1) provides that an Australian law enforcement officer may apply to an appropriate authorising officer for variation of a certificate given under section 15M.

 

Under the proposed provision, the application must be in writing, signed by the applicant and include such information as the appropriate authorising officer needs to decide whether or not to grant the application.  If the application complies with proposed section 15NA, then the appropriate authorising officer may vary the certificate if he or she is reasonably satisfied that the certificate as varied could have been given under section 15M.  This is to ensure that a variation meets all the necessary criteria for the initial issue of a certificate and is not available to circumvent those requirements.

 

The proposed variation provision also requires the authorising officer to be reasonably satisfied that the variation is necessary for:

 

·                the success of the controlled operation;

·                the protection of the health or safety of any person; or

·                the protection of property from loss or damage.

 

Alternatively, the authorising officer may make a variation to ensure that all those involved in the operation have appropriate exemption under section 15I and the appropriate indemnity under section 15IA.  This is designed to ensure that if there is a change in the persons who are conducting the operation, that the certificate is varied to cover those persons.

 

Proposed subsection 15NA(4) requires the appropriate authorising officer to give the applicant a written notice stating whether the certificate is varied and if the certificate is varied, setting out each variation.

 

Under proposed subsection 15NA(5), a variation of the certificate does not take effect until the notice is given.

 

Item 28

 

This Item inserts two new provisions dealing with terminating and expiry of certificates.

 

Proposed section 15OA: Termination of Certificate

 

While the existing section 15O allows a law enforcement officer to surrender a certificate, there are currently no provisions allowing for termination of a certificate.  This power may be required where, for example, an operation has been completed or aborted.  The proposed provisions enable an appropriate authorising officer to terminate a certificate issued by another authorising officer from the same agency.

 

Under proposed subsection 15OB(4), written notice of the termination must be sent to the Australian law enforcement officer in charge of the controlled operation.

 

Under proposed subsection 15OB(5), the notification of termination must state that the certificate is terminated, be signed by the appropriate authorising officer and specify the time when the notice is to have effect.

 

Proposed section 15OB: Expiry of certificate after 6 months or 3 months

 

Proposed section 15OB regulates the length of time a certificate may remain in force by establishing a mandatory review mechanism.  In the event that the certificate is not reviewed in accordance with the proposed provisions, the certificate will expire after 3 months.

 

Proposed subsection 15OB(1) provides that a certificate given under section 15M expires at the end of the period of 6 months after the day on which it was given unless proposed subsection 15OB(2) applies.

 

Proposed subsection 15OB(2) provides that a certificate expires at the end of the period of 3 months after the day on which it was given unless, during that period an appropriate authorising officer (ie, an officer with authority to issue controlled operations certificates who is from the same agency as the officer who issued the certificate) has:

 

·                reviewed the certificate, and

·                decided that the certificate should be in force for 6 months.

 

Proposed subsection 15OB(3) provides that the review is to occur during the last two weeks of the 3-month period after the day on which the certificate was given. 

 

Proposed subsection 15OB(4) provides that an appropriate authorising officer must not decide that a certificate is to remain in force for 6 months, unless he or she is reasonably satisfied as to all the matters referred to in paragraphs 15M(a) to (h).   As with the proposed variation provisions, the need to be reasonably satisfied of the matters listed in section 15M means that a certificate will not remain in force unless the criteria for the initial issue of a certificate exist.

 

Proposed subsection 15OB(5) requires the appropriate authorising officer to give written notice of his or her decision to the Australian law enforcement officer in charge of the relevant controlled operation.

 

Item 29

 

This Item makes a minor drafting amendment to existing paragraph 15P(3)(b) to provide that a surrender notice under section 15O takes effect at the time specified in the notice.

 

Item 30

 

This Item repeals existing paragraph 15P(3)(c) and proposes two new provisions dealing with the time a certificate is in to remain in force.  Proposed paragraph 15P(3)(c) provides that if a certificate is terminated under proposed section 15OA (see Item 28) then the certificate remains in force until the time specified in the termination notice.  Under existing paragraphs 15P(3)(a) and (b), a certificate expires on the date specified in the certificate or on surrender.  The overarching limitation is contained in proposed paragraph 15P(3)(d) - in the absence of earlier expiry, surrender or termination, the certificate remains in force until the certificate expires after 6 months (or in the absence of a review  - after 3 months), under proposed section 15OB (see Item 28).

 

Item 31

 

This Item inserts proposed section 15PA, which clarifies the effect of a person covered by a certificate being unaware of a variation, surrender or termination of the certificate. The purpose of this section is to ensure that a person remains exempt from criminal responsibility and indemnified from civil liability where it would be unjust for the person to be liable.

 

Proposed subsection 15PA(1) provides that where a certificate has been varied in a way that limits its scope, the exemption and indemnification continue, for so long as the person:

 

·                is unaware of the variation; and

·                is not reckless with respect to the existence of the variation.

 

Proposed subsection 15PA(2) provides that where a certificate has been surrendered or terminated or has expired, the exemption and indemnification continue, for so long as the person:

 

·                is unaware of the variation; and

·                is not reckless with respect to the existence of the variation.

 

Item 32

 

Existing section 15Q requires notice to be given to the Chief Executive Officer of Customs when a controlled operation will involve narcotic goods which may be dealt with by Customs.  This Item makes a minor amendment to subsection 15Q(1) to provide that section 15Q applies where there are certificates issued by AFP and NCA authorising officers and where the applicant for the certificate believes that illicit goods (as opposed to the current limitation to narcotic goods) may be dealt with by Customs.  The purpose of the section is to require the applicant for the certificate to forewarn the Chief Executive Officer of Customs in such cases.

 

Item 33

 

This Item proposed an amendment to subparagraphs 15Q(2)(c)(i) and (ii) to replace references to narcotic goods with references to illicit goods as a consequence of the amendment proposed by Item 32.

 

Item 34

 

This Item repeals section 15R and substitutes it with a new section 15R that provides for a quarterly reporting requirement for controlled operations.  The proposed new section provides that the AFP Commissioner, NCA Chairperson and Chief Executive Officer of Customs must, within two weeks after the end of each quarter, give to the Minister a report informing the Minister of certain things that occurred during the quarter.

 

The proposed section provides that the report must inform the Minister of each decision to grant or refuse an application for a controlled operation, each variation, review, surrender or termination of a certificate, and any certificate that is still in force at the end of the quarter.

 

Item 35

 

This Item repeals subsections 15S(1) and (2) and substitutes proposed new subsections, which provide details of the information that must be included in the report about controlled operations submitted to the Minister under proposed section 15R (see Item 34).

 

Proposed paragraph 15S(1)(a) provides that the report must include the reasons for each decision to grant or refuse an application for a controlled operation, each variation of a certificate and each review of a certificate.

 

Proposed paragraph 15S(1)(b) provides that the report must include sufficient details of each surrender or termination of a certificate and each certificate that is still in force at the end of that quarter to enable the certificate to be identified. 

 

Proposed subsection 15S(1A) provides that the reasons included in the report for granting a certificate authorising a controlled operation must include an indication of the extent to which the authorising officer, in making the decision, took into account the seriousness of the Commonwealth offence in relation to which the certificate was given and any suspected criminal activity that is related to that offence.

 

Proposed subsection 15S(2) sets out additional information that must appear in the report where a certificate for a controlled operation that was carried out ceases to be in force during that quarter.  These include such matters as:

 

·                identifying each person targeted by the operation (while the conduct of an identified person is no longer a matter that the authorising officer must take into account in issuing a certificate, it is expected that during the course of the operation the identity of that person will become known); and

·                each person whose conduct was covered by the certificate and state whether the person was a law enforcement officer at the time of the operation.  

 

If the operation involved illicit goods the report must also state to the extent known, the nature and quantity of the illicit goods and the route through which the illicit goods passed in the course of the operation.  This is intended to be a general description identifying key addresses, rather than a requirement for a minute by minute, street by street account of any journey between such locations.

 

Proposed paragraph 15S(2)(e) provides that if the operation involves illicit goods that are narcotic goods the report must also contain additional information.  The report must:

 

·                identify the agency to which any law enforcement officer, who in the course of the operation had possession of the narcotic goods belonged;

·                identify to the extent known any person (other than a law enforcement officer) who, in the course of the operation had possession of the narcotic goods;

·                state whether or not the narcotic goods have been destroyed; and

·                if the narcotic goods have not been destroyed and are in the possession of a law enforcement officer, identify the agency of that law enforcement officer and in any other case, identify the person or state that it is not know who has possession of them.

 

The proposed additional reporting requirements for narcotic goods are designed to ensure appropriate accountability and control in relation to such items.

 

Item 36

 

This Item proposes a minor drafting amendment to subsection 15S(3) by omitting “narcotic goods” and substituting “the controlled operation involved narcotic goods that”. The amendment reflects the fact that, under proposed section 15H a controlled operation does not necessarily involve narcotic goods. 

 

Item 37

 

This Item proposes the repeal of subsection 15S(4) as the requirements currently in this subsection (as to who must make the report to the Minister) are now covered by proposed section 15R (see Item 34) .

 

Item 38

 

This Item amends subsection 15S(5) to provide that where disclosing the identity of any person (the current provision is limited to those who had possession of narcotic goods) might, for example, endanger the safety of the person, then that person may be identified by a code.

 

Item 39

 

This Item makes a consequential amendment to subsection 15S(5) to provide that where a report is required to identify any person, then that requirement can be continue to be satisfied by reference to a code.  This applies when identifying the person may endanger the safety of the person or prejudice an investigation or prosecution.

 

Item 40

 

This Item proposes a minor amendment to paragraph 15S(5)(c) to replace the reference to “code name” with a reference to the more general term “code”, thereby clarifying that a code can employ numbers or other symbols.

 

Item 41

 

This Item is a transitional provision in relation to the timing of the submission of quarterly reports.  In essence, the old reporting requirements would apply to decisions and actions under the pre-amended provisions; and the new reporting requirements would apply to decisions and actions under the amended provisions.

 

Item 42

 

This Item proposes a minor amendment to paragraph 15T(2)(b) to replace a reference to section 15S with a reference to section 15R.  This is a result of the restructuring of the reporting provisions.

 

Item 43

 

This Item amends subsection 15T(3) to provide that a report to the Minister under section 15T is not to include any information about a person, including the person’s name, unless that information is already in the public arena.  This would remove an anomaly in the existing provision, in that it is impossible to name a person in a report without implying something ‘about’ the person.

 

Item 44

 

This Item proposes an amendment to subsection 15T(4) to include a reference to information given to the Minister by the Chief Executive Officer of Customs in the material that may, in certain circumstances, be excluded from a report tabled in Parliament.  This is a consequence of the proposals that Customs be able to undertake operations.

 

Item 45

 

This Item repeals subsection 15U(1) and substitutes it with a new provision which provides that in a prosecution for a Commonwealth offence a document purporting to be a certificate given under section 15M may be tendered in evidence and is conclusive evidence that the authorising officer who gave the certificate was satisfied as to the facts that it states.  It is proposed that this will apply to the extent that those facts are facts of a kind that are required under section 15N to be included in the certificate.

 

Under the existing provisions, a certificate ‘must’ be tendered, even if it is of no particular relevance.  Further, it is only ‘prima facie’ evidence, even though these are essentially formal matters that are not central to the substantive question of a person’s guilt or innocence.

 

Item 46

 

This Item proposes an amendment to subsection 15U(2) to include a reference to the Chief Executive Officer of Customs being able to certify true copies of documents to be tendered in evidence.

 

Item 47

 

This Item omits the reference to “shall” in subsection 15U(2) and replaces it with a reference to “may” to make the tendering of true copies discretionary rather than mandatory.

 

Item 48

 

This Item is a transitional provision that clarifies that Part 1AB of the Crimes Act as amended by this Act does not apply to certificates given under section 15M that were in force immediately before the commencement of this Schedule.



Schedule 2 - Assumed identities

 

Crimes Act 1914

 

The purpose of this Schedule is to amend the Crimes Act by inserting a proposed Part 1AC, which will provide the basis for the acquisition and use of evidence of identity by members of intelligence and law enforcement agencies, and others who are supervised by a member of such an agency.  The ability to assume a new identity will be an effective means by which those members and persons will be able to perform the functions of the respective agencies without others being aware of their true identity.  The proposed new provisions will provide:

 

·                that evidence of an assumed identity may be acquired and used in certain circumstances;

·                for the exemption from criminal responsibility of certain approved officers and persons;

·                for the indemnification of approved officers and persons against civil liability;

·                for the authorisation of acquisition and use of an assumed identity and the content and form of that authorisation;

·                that certain agencies are to comply with requests for the issue of evidence of identity and others to have a discretion;

·                for offences for the misuse of assumed identities;

·                for record-keeping and audit requirements; and

·                other matters that are necessary for the effective operation of the assumed identity scheme, such as the definition of special terms and a regulation making power.

 

Division 1 - Definitions etc

 

Section 15XA: Definitions etc

 

Proposed subsection 15XA(1) defines a number of expressions for the purposes of the proposed assumed identity provisions and provides that in proposed Part 1AC:  

 

approved officer means an officer or foreign officer referred to in an authorisation under proposed paragraph 15XI(2)(c).  Proposed section 15XI sets out the matters that must be included in an authorisation for the acquisition and use of an assumed identity.

 

approved person means a person referred to in proposed subparagraph 15XI(2)(d)(i).

 

authorisation means an authorisation that is in force under proposed section 15XG or 15XH.  Proposed section 15XG will enable a Commonwealth participating agency and proposed section 15XH will enable a State or a territory participating agency to authorise the acquisition and use of an assumed identity.

 

authorisation conditions means conditions to which an authorisation is subject under proposed paragraph 15XI(2)(j).

 

authorising person means the head of a participating agency or a person in a participating agency, included in a prescribed class, who is authorised in writing by the head of the agency.  Under proposed sections 15XG and 15XH an authorising person will be able to authorise the acquisition and use of an assumed identity.

 

Commonwealth agency means the Commonwealth or an authority of the Commonwealth.  Under proposed sections 15XG and 15XH an authorising person may authorise the acquisition of evidence of an assumed identity from, inter alia , any Commonwealth agency, that agency will become an issuing agency when the authorisation under proposed section 15XI specifies the agency.

 

Commonwealth participating agency means the AFP, Customs, NCA, Australian Security Intelligence Organisation, Australian Secret Intelligence Service, those parts of the Department of Defence known as the Defence Signals Directorate and Defence Intelligence Organisation, the Australian Taxation Office and any other Commonwealth agency specified in the regulations.  Proposed section 15XG will enable an authorising person in a Commonwealth participating agency to authorise the acquisition and use of an assumed identity.

 

foreign officer means an officer, however described, of an agency that has responsibility for the law enforcement in, intelligence gathering for, or security of a foreign country.  Under proposed section 15XG a foreign officer may be authorised to acquire and use evidence of an assumed identity.

 

issuing agency means a Commonwealth agency or a non-government body that is referred to in an authorisation issued under proposed paragraph 15XI(2)(f).

 

issuing evidence of an assumed identity is defined as including the making of an entry in a record of information in respect of an assumed identity.

 

non-government body means a body that is not managed or controlled by or on behalf of the Commonwealth or the Government of a State or Territory. Under proposed sections 15XG a Commonwealth participating agency may authorise the acquisition of evidence of an assumed identity from, inter alia , any non-government body and that body will become an issuing agency when the authorisation under proposed section 15XI specifies the body.

 

participating agency means either a Commonwealth, State or Territory participating agency.

 

State or Territory participating agency means the police force of a State or Territory; bodies established under the law of a State or Territory to investigate corruption (such as the New South Wales Independent Commission Against Corruption and the Queensland Criminal Justice Commission); Crime Commissions (such as the New South Wales Crimes Commission and the Queensland Crime Commission) and any other body or agency of a State or Territory that is specified in the regulations.

 

supervising officer means the officer referred to in an authorisation under subparagraph 15XI(2)(d)(ii).

 

Proposed subsections 15XA(2), (3) and (4) are explanatory provisions, which provide that:

 

·                a reference to an approved officer or person using an assumed identity includes a reference to the officer or person representing the assumed identity to be his or her real identity and such an officer or person acting in a way that is consistent with such an identity, rather than the person’s real identity;

·                a reference to an approved officer or person acquiring evidence of an assumed identity, includes obtaining, or taking steps towards obtaining, a document or other thing that purports to evidence the assumed identity; and

·                engaging in conduct includes a reference to omitting to do an act.

 

The purpose of these provisions is to ensure that an assumed identity is not taken to be merely the forms of identity, but is designed to enable the person using the assumed identity to act as if he or she is, and to have all the indicia and attributes of, a real person with that identity.  For example, if a person acquires a passport as evidence of an assumed identity, it is intended that the person will be able to use that passport to travel outside Australia as if it was the person real identity and not just hold the passport as a means of identification.

 

Division 2 - Effect of an assumed identity

 

The purpose of proposed Division 2 is to introduce new sections governing:

 

·                when an approved officer or person may acquire evidence of and use an assumed identity;

·                protection from criminal liability for approved officers and persons,

·                indemnity against civil liability those persons;

·                the operation of the Division in circumstances where an authorisation has been varied or revoked; and

·                the limitation on the use of documents that purport to establish that a person has a particular skill or qualification.

 

Section 15XB - Assumed identities may be acquired and used

 

The purpose of proposed section 15XB is to set out the circumstances in which an approved officer or person may acquire evidence of, and use, an assumed identity.

 

Proposed subsection 15XB(1) provides that an approved officer may acquire evidence of, and use an assumed identity if the acquisition or use is in the course of duty. 

 

Proposed subsection 15XB(2) provides that an approved person may acquire evidence of, and use, an assumed identity if the acquisition or use is in accordance with directions given by the supervising officer mentioned in the person’s authorisation.  This requirement reflects the need for persons who are not part of the authorising person’s agency, or who are not foreign officers, to be under the command and direction of a person who is part of the authorising person’s agency to so that the operation is controlled by such an agency to the greatest extent possible.

 

For both approved officers and approved persons the acquisition or use must also be in accordance with any authorisation conditions (see proposed paragraph 15XI(2)(j)).

 

Section 15XC - Protection from criminal liability

 

The purpose of proposed section 15XC is to define the circumstances in which an approved officer or person will not be criminally responsible for otherwise unlawful conduct.

 

An approved officer will not be criminally responsible for conduct that would ordinarily constitute a Commonwealth, State or Territory offence if:

 

·                the officer engages in the conduct in the course of acquiring evidence of, or using an assumed identity;

·                the officer engages in the conduct in the course of duty;

·                the conduct complies with all the authorisation conditions; and

·                the conduct would not constitute that offence if the assumed identity were the officer’s real identity. 

 

This last requirement means that:

 

·                if the officer uses an assumed identity in such a way that would (but for this section) constitute an offence then the officer is exempt from criminal liability for that conduct if that use was not an offence if the identity was real.

 

For example it is an offence for a person to receive Job Search Allowance if they are not unemployed.  But if the approved officer has evidence of an assumed identity which establishes them as being unemployed, then he or she can receive Job Search Allowance.

 

·                an officer will be criminally responsible for an offence if the conduct would constitute an offence if the assumed identity was the person’s real identity. The effect of this is to ensure that the proposed provisions do not de-criminalise conduct that is not authorised, as a matter of law, by the identity.

 

For example it is an offence to take protected fauna out of Australia.  An approved officer who has a passport as evidence of an assumed identity and who takes protected fauna out of Australia whilst travelling on that passport, will still be criminally responsible for removal of the fauna from Australia.

 

The proposed conditions under which an approved person will not be criminally responsible for conduct that would ordinarily constitute an offence are similar to those for approved officers except there is a requirement for the conduct to be in accordance with directions given by the supervising officer rather than in the course of duty.

 

Section 15XD - Indemnification of approved officers and persons

 

The purpose of proposed section 15XD is to set out the circumstances in which a Commonwealth participating agency must indemnify both approved officers and approved persons against any liability incurred because of the conduct of the officer or person.

 

A Commonwealth participating agency that issues an authorisation must indemnify an approved officer against any liability (including reasonable costs) that the officer incurs because of conduct the officer engages in if:

 

·                the officer is covered by that authorisation;

·                the officer engages in the conduct in acquiring evidence of, or using, an assumed identity in the course of duty;

·                the conduct is in accordance with any authorisation conditions; and

·                the requirements (if any) specified in the regulations have been met.

 

The proposed conditions under which an approved person must be indemnified by the Commonwealth agency that issues the authorisation, are similar to those for approved officers except that there is a requirement for the conduct to be in accordance with any directions given by the supervising officer rather than in the course of duty.

 

Section 15XE - Effect of being unaware of variation or revocation of authorisation

 

The purpose of proposed section 15XE is to provide that where an authorisation has been varied or revoked, the exemption from criminal responsibility and the indemnification against civil liability will continue to exist for so long as:

 

·                the officer or person is unaware of the variation; and

·                the officer or person is not reckless with respect to the existence of the variation or revocation.

 

Section 15XF - Documents authorising use of skill or qualification

 

Proposed section 15XF provides that an approved officer or person will not be exempt from criminal responsibility or indemnified against civil liability if he or she engages in conduct that requires a special skill or qualification and he or she does not have that skill or qualification.  This proposed limitation on the protection provisions applies whether or not the officer or person has acquired as evidence of an assumed identity, a document that establishes that he or she has that skill or qualification.

 

This means that if a person has as evidence of an assumed identity a documents that indicates that the person possesses a certain skill or qualification, that person does not in fact have that skill or qualification, and the person engages in conduct that needs that skill or qualification, then he or she will be criminally responsible for his or her acts and will not be indemnified for any civil liability.

 

For example, if a person has as evidence of identity a pilot’s licence but the person is not, in fact, qualified to pilot an aeroplane, then the person will be criminally responsible for his or her acts if he or she pilots an aeroplane, and will not be indemnified for any civil liability incurred.

 

Divisions 3 - Authorising the acquisition or use of assumed identities

 

The purpose of proposed Division 3 is to introduce new sections governing:

 

·                the circumstances in which Commonwealth, State and Territory participating agencies may authorise the acquisition and use of assumed identities;

·                the form and content of an authorisation issued under proposed sections 15XG and 15XH;

·                when an authorisation is in force; and

·                variation and revocation of authorisations.

 

Section 15XG - Commonwealth authorisations of the acquisition or use of assumed identities

 

Proposed section 15XG provides that an authorising person of a Commonwealth participating agency may authorise any person to acquire evidence of an assumed identity from any Commonwealth or non-government body and to use that identity.

 

The provision provides that the tests as to whether the authorisation should be issued are:

 

·                for foreign officers, if the authorising person is satisfied that it is reasonably necessary to do so;

·                in any other case, if the authorising person is satisfied that it is appropriate to do so; and

·                in either case, the assumed identity may only be used in a foreign country if the authorising person is satisfied that it is reasonably necessary to do so.

 

This means that in relation to both the acquisition and use of an assumed identity by foreign officers and the use of an assumed identity in a foreign country, there is a higher threshold applying before the authorisation may be issued. This reflects the need to ensure that the provisions do not apply to foreign operatives or in foreign countries, unless there is a clear need for that operation and all relevant matters (for example, the inability to exempt an Australian from the operations of the laws of a foreign country) have been taken into account.

 

Section 15XH - State or Territory authorisations of the acquisition or use of assumed identities

 

Proposed section 15XH provides that an authorising person of a State or Territory participating agency may authorise a person (except a foreign officer) to acquire evidence of an assumed identity from any Commonwealth agency and to use that identity.

 

This means that unlike an authorising person of a Commonwealth participating agency, an authorising person of a State or Territory participating agency may:

 

·                only authorise a person to acquire evidence from a Commonwealth agency; and

·                may not authorise a foreign officer to acquire evidence of or use an assumed identity.

 

The test as to whether a State or Territory participating agency may authorise the acquisition or use of an assumed identity is if the authorising person is satisfied that it is appropriate to do so and if the identity is to be used in a foreign country, then the authorising person must is satisfied that it is reasonably necessary to do so.

 

Section 15XI - Contents of an authorisation for an assumed identity

 

Proposed section 15XI sets out the form and contents of an authorisation for an assumed identity and provides that it must be in writing and signed by the authorising person.

 

The authorisation must specify such matters as:

 

·                the name of the officer or person who is authorised to acquire or use an assumed identity;

·                the name of the supervising officer (for approved persons who are not part of the authorising persons participating agency);

·                details of the assumed identity which the authorisation covers;

·                the Commonwealth agency or non-government body who is to be requested to issue the evidence of identity;

·                whether the identity can be used in a foreign country; and

·                any conditions to which the authorisation is subject.

 

The requirement for the authorisation to specify such matters reflects the need to ensure that an authorisation sets the limits for and strictly controls the acquisition and use of assumed identities by whom and in what circumstances.

 

The proposed provision also makes it clear that the authorisation can cover more than one assumed identity.

 

Section 15XJ - When an authorisation is in force

 

Proposed section 15XJ provides that an authorisation is in force until it is revoked.  Revocation is provided for in proposed section 15XK.

 

Section 15XK - Variation and revocation of authorisation

 

Proposed section 15XK provides that an authorising person who issues an authorisation or any other authorising person from the same agency, may vary or revoke the authorisation at any time.  A written notice of that variation or revocation must be given to the person covered by the authorisation.  The notice must state the date the variation or revocation takes effect, the nature of the variation, if any, and the reasons for the variation or revocation.

 

The proposed scheme introduces flexibility in the management of the operation, while at the same time ensuring that there is sufficient written evidence for record keeping and auditing purposes.

 

(Proposed section 15XE sets out the effect of a person covered by an authorisation not being aware of its variation or revocation.  Proposed section 15XU provides for record keeping and auditing.)

 

Division 4 - Issuing and cancelling evidence of assumed identities

 

The purpose of proposed Division 4 is to introduce new sections governing:

 

·                requests to issue evidence of an assumed identity;

·                compliance with such requests;

·                cancellation of issued evidence of an assumed identity;

·                protection from criminal liability for employees of an issuing agency; and

·                indemnification for issuing agencies and their employees;

 

Section 15XL - Authorising person may request agencies and bodies to issue evidence of assumed identities etc.

 

Proposed section 15XL provides that an authorising person who issues an authorisation may request an issuing agency to issue evidence of an assumed identity to the approved person or officer.

 

The intention is that the authorisation will serve as the requesting notice without the need for anything further to be produced to the issuing agency.   The provision provides that the name of the issuing agency, and evidence of identity that may be requested, will be specified in the authorisation thereby providing the issuing agency with the necessary authority to act.

 

Section 15XM - Requesting Commonwealth agencies to issue evidence of assumed identities

 

The purpose of proposed section 15XM is to set out the compliance requirements for requests made to an issuing agency of the Commonwealth under proposed section 15XL.

 

The proposed section provides that where the request is made to an issuing agency of the Commonwealth (as opposed to a non-government body (which is dealt with in proposed section 15XN)) by a Commonwealth participating agency, then the issuing agency must comply with the request. 

 

However, where such a request is received from a State or Territory participating agency, then the issuing agency may comply with the request but need not do so.

 

Although the proposed provision is not subject to a penalty provision, the intention is to make it clear that decision-making about the use of this scheme within the Commonwealth rests solely with the Commonwealth participating (ie, law enforcement and security) agencies.  However, this clear-cut approach is not appropriate where two different levels of Government are involved, so Commonwealth agencies will have discretion whether to accede to a request from a State or Territory participating agency.

 

Section 15XN - Requesting non-government bodies to issue evidence of assumed identities etc

 

The purpose of proposed section 15XN is to state the compliance requirements for requests made to a non-government body issuing agency under proposed section 15XL.

 

The proposed section provides that where the request is made to an issuing agency that is a non-government body then the issuing agency may comply with the request but it does not have to do so.  (Under proposed sections 15XG and 15XH, only Commonwealth participating agencies can authorise the acquisition and use of evidence from non-Government bodies.)

 

The provision provides a discretion because it is not appropriate for non-government bodies to be compelled to comply with requests (cf, where issuing is a purely internal Commonwealth matter).

 

Section 15XO - Cancelling evidence of assumed identities etc

 

Proposed section 15XO provides that an issuing agency that has issued evidence of an assumed identity must cancel the evidence on the written request of an authorising person who made the request or any other authorising person in the same participating agency.

 

The evidence may be cancelled by deleting or altering an entry in a record of information.  The intention is to terminate the effect of the evidence of identity that was issued.  For example this might mean simply monitoring the use of that evidence of identity and not allowing it to achieve its purpose after it has been “cancelled”. 

 

For logistical reasons, there is no requirement imposed on an issuing agency to physically retrieve the evidence of identity.  For example, cancelling a passport means that a person can no longer travel out of or into Australia using that passport, although the person may continue to possess the document.

 

Section 15XP - Protection from criminal liability

 

Proposed section 15XP provides that an employee of an issuing agency who, in the performance of the functions of that agency, complies with a request to issue evidence, is exempt from criminal responsibility in relation to that conduct.   This means that in circumstances where the issue of evidence of identity in a name other than the name of the applicant would constitute an offence, the employee of the issuing agency is not criminally responsible for that conduct.

 

Proposed section 15XQ - Indemnification of issuing agencies etc

 

Proposed section 15XQ provides an indemnification for an issuing agency and its employees against any liability (including reasonable costs) incurred by that agency or employee as a result of complying with a request to issue of evidence of identity.  The Commonwealth participating agency whose authorising person issued the authorisation must provide the indemnification.  The proposed provision also provides that there is a need to meet the requirements (if any) specified in the regulations.

 

Division 5 - Offences relating to assumed identities

 

The purpose of proposed Division 5 is to introduce two new offences: the misuse of an assumed identity and disclosing information relating to assumed identities. 

 

Section 15XR - Misuse of assumed identities

 

Proposed section 15XR provides that certain conduct in relation to the acquisition or use of evidence of an assumed identity will amount to an offence.  An approved officer who acquires evidence of or uses an assumed identity otherwise than in the course of duty commits an offence and an approved persons who acquires evidence of or uses an assumed identity otherwise than in accordance with the directions of their supervising officer also commits an offence.

 

It is also a proposed offence for either an approved officer or an approved person to acquire evidence of or use an assumed identity otherwise than in accordance with the authorisation conditions.

 

In all cases, the penalty is 12 months imprisonment.  (The maximum fine is $6 600 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

 

The offences proposed by section 15XR are to operate in addition to any offence that might exist in relation to the acquisition or use of evidence of an assumed identity.  For example, if an approved officer makes a false and misleading statement as to his or her identity in reliance on the evidence of identity, and that use is not covered by the authorisation, then the approved officer may have committed two offences: one of the false representation and one of misuse.  (Section 4C of the Crimes Act will operate to protect against any double jeopardy.)

 

The offences will require proof of fault, in accordance with Division 5 of the Criminal Code.

 

Section 15XS - Disclosing information relating to assumed identities

 

Proposed section 15XS provides that if a person discloses information that reveals or is likely to reveal the fact that someone is using an authorised assumed identity and the disclosure endangers or is likely to endanger the health or safety of any person or adversely effect the operations of any participating agency, then an offence is committed. 

 

The proposed penalty for this offence is 10 years imprisonment, which reflects the serious consequences that a disclosure of this kind could bring to the operatives involved.  (The maximum fine is $66 000 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

 

In situations where the disclosure is not likely to endanger the health or safety of any person or the effectiveness of an operation carried out by any participating agency, then the proposed penalty is 2 years imprisonment.  (The maximum fine is $13200 by operation of subsections 4AA(1) and 4B(2) of the Crimes Act.)

 

The offences will require proof of fault, in accordance with Division 5 of the Criminal Code.

 

Division 6 - Miscellaneous

 

Section 15XT - Disclosing real identities during court proceedings etc

 

The purpose of proposed section 15XT is to ensure that, to the greatest extent possible, the real identity of a person who is or was covered by an authorisation, is not disclosed to the public.  Proceedings of courts, tribunals and commissions of inquiry are to be held in private and any necessary suppression orders are to be made.

 

The proposed provision makes it clear, however, that the non-disclosure of the person’s real identity does not apply to the extent that the court, tribunal or commission considers that the interests of justice otherwise requires.

 

Section 15XU - Keeping records of assumed identities

 

Proposed section 15XU requires the head of a Commonwealth participating agency to keep certain records while the authorisation is in force and for at least 12 months after it has been revoked.   The head of the agency must also cause those records to be audited at least once every 6 months while the authorisation is in force and at least once in the 6 months period after it has been revoked.  This will help to ensure that the use of this scheme is properly documented and accountable.

 

Section 15XV - Concurrent operation of State and Territory laws

 

Proposed section 15XV enables State and Territory laws to operate concurrently with proposed Part 1AC provided that they are not inconsistent with that Part.  This is important, for example, because an operation may involve as assumed identity supported by documents issued under both Commonwealth and New South Wales assumed identities legislation.

 

Section 15XW - Regulations

 

Proposed section 15XW enables regulations to be made for the purposes of proposed Part 1AC.  This is required, for example, to prescribe persons other than agency heads who may be authorising persons (ie, authorise the acquisition and use of assumed identity) and to prescribe an agency to be a Commonwealth participating agency for the purposes of proposed section 15XA.

 



Schedule 3 - Protection of children in proceedings for sexual offences

 

Crimes Act 1914

 

The purpose of this Schedule is to amend the Crimes Act by inserting a proposed Part 1AD, which will provide protection for child victims and child witnesses in proceedings for Commonwealth sex and sex-related offences.  The protections include limitations on the examination and cross-examination of child witnesses, provision for the use of facilities such as closed-circuit television and restrictions on publishing details which could identify a child witness or child victim.

 

The protective provisions have been devised in recognition of the fact that child victims and child witnesses in sex offence proceedings are particularly vulnerable because of their age and the nature of the crime involved.  The provisions are intended to reduce the stress and trauma experienced by child victims and child witnesses in giving evidence and to protect the privacy of child victims and witnesses.

 

Currently, State and Territory criminal trial laws of general application apply to Commonwealth criminal trials in the relevant State or Territory.  However, State and Territory child witness protections apply only to a prescribed list of offences against the law of that State or Territory and not to Commonwealth offences. 

 

The proposed amendments will remedy the absence of protections for child witnesses in Commonwealth sex offence trials.  The proposed protections are analogous to those already existing in many State and Territory jurisdictions and are consistent with the recommendations in the Model Criminal Code Sexual Offences Against the Person Report. 

 

Division 1 - Introduction

 

Proposed Division 1 contains two provisions of general application to proposed Part 1AD.

 

Section 15Y - Proceedings to which this Part applies

 

Proposed section 15Y sets out the criminal proceedings to which proposed Part 1AD will apply.  The Part will apply to any proceedings for a child sex tourism offence under Part IIIA of the Crimes Act; an offence involving the sexual assault of United Nations and associated personnel under section 71.8 of the Criminal Code; a slavery, sexual servitude or deceptive recruiting offence under Division 270 of the Criminal Code; any prescribed sexual offence; an offence that includes the commission of or an intention to commit one of the aforementioned offences; and to an offence of attempting or conspiring to commit or inciting the commission of any of the above offences. 

 

Proposed Part 1AD will also apply to any related proceedings including committal proceedings.

 

Scope to prescribe offences has been included to allow a ready means to extend the protections to any new sex or sex related offences that may be enacted.

 

Section 15YA - Definitions

 

Proposed section 15YA defines a number of expressions and provides that, for the purposes of proposed Part 1AD:

 

child means a person under 18, therefore, the provisions that relate to the protection of child witnesses and child victims in proceedings for sexual offences apply only to persons under the age of 18.

 

child victim means, in relation to a proceeding, a child who is or is alleged to be a victim of an offence referred to in proposed subsection 15Y(1) and to which the proceeding relates.  Although the term “child witness” includes a child victim who is a witness, child victims are specified separately in a number of the proposed provisions because those provisions either extend to a child victim who does not appear as a witness in the proceeding (eg, proposed sections 15YB and 15YC) or apply differently to a child witness who is a victim (eg, proposed section 15YF).

 

child witness means a child who is a witness in a proceeding to which proposed Part 1AD applies, and includes a child victim who is a witness in the proceeding.  The definition of “child witness” also covers a child defendant who appears as a witness in a proceeding, however, some of the proposed provisions will not apply to a child defendant who is a witness (eg, proposed sections 15YB, 15YC and 15YR).

 

closed-circuit television includes any similar technology that is specified in the regulations.  This will provide a simplified means for extending the application of the provisions relating to the use of closed-circuit television to any alternative technology that performs a similar function.

 

credibility has the same meaning as in the Evidence Act 1995 .  In the Dictionary to that Act, the “credibility” of a witness is defined to mean the credibility of any part or all of the evidence of the witness, and includes the witness's ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

 

cross-examination has the same meaning as in the term by the Evidence Act 1995 .  In the Dictionary to that Act, the “cross-examination” of a witness is defined to mean the questioning of a witness by a party other than the party who called the witness to give evidence.

 

evidence in chief means evidence given in examination in chief, which has the same meaning as in the Evidence Act 1995 .  In the Dictionary to that Act, the “examination in chief” of a witness is defined to mean the questioning of a witness by the party who called the witness to give evidence, not being questioning that is re-examination.

 

proceeding means a proceeding to which proposed Part 1AD applies under proposed section 15Y.

 

Division 2 - Admissibility of Evidence

 

Proposed Division 2 sets out rules of admissibility relating to evidence of a child witness’ or child victim’s sexual reputation or sexual experience.  However, the proposed Division does not apply to evidence of a child defendant’s sexual reputation or sexual experience.

 

Section 15YB - Evidence of Sexual Reputation

 

Proposed section 15YB limits the admissibility of evidence of a child witness’ or child victim’s reputation with respect to sexual activities.  Such evidence is only admissible by leave of the court. 

 

The court may only grant leave for such evidence to be admitted if the court is satisfied that the evidence is substantially relevant to facts in issue in the proceeding.  For example, leave might be given if the evidence is relevant to proving the defendant’s knowing involvement in child prostitution.  The court is not to treat the evidence as substantially relevant to facts in issue merely because it may raise inferences as to the child witness’ or child victim’s general disposition. 

 

If the evidence of a child witness’ or child victim’s sexual reputation is admitted, it must not be treated as relevant to the child witness’ or victim’s credibility. 

 

The proposed section does not apply to a child who is a defendant in the proceeding.

 

The proposed section will ensure that child victims and child witnesses receive a level of protection commensurate with that recommended for adult complainants in the Model Criminal Code Report on Sexual Offences Against the Person by preventing unjustified damage to character and reputation and inappropriate humiliation and embarrassment.

 

Section 15YC - Evidence of Sexual Experience

 

Proposed section 15YC limits the admissibility of evidence of a child witness’ or child victim’s experience with respect to sexual activities (other than sexual activities involving the defendant).  Such evidence is only admissible by leave of the court. 

The court may only grant leave for the evidence to be admitted if the court is satisfied that the evidence is substantially relevant to facts in issue in the proceeding or, if the evidence relates to the sexual experience of a child witness or child victim and is to be adduced in cross-examination of the child witness, that the evidence is of substantial probative value. 

 

Proposed subsection 15YC(2) provides further guidance as to the meaning of the expressions “substantially relevant to facts in issue” and “substantial probative value”.  The court must not treat the evidence as substantially relevant to facts in issue merely because it may raise inferences as to the child witness’ or child victim’s general disposition.  In determining whether the evidence has substantial probative value, the court is to have regard to:

 

·                whether the evidence tends to prove that the child witness knowingly or recklessly made a false representation when the child witness was under an obligation to tell the truth; and

·                the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 

 

For example, evidence that a child witness made a false statutory declaration six months ago is more likely to be regarded as having substantial probative value than evidence that the child witness stole $100 dollars three years ago.

 

The proposed section does not apply to a child who is a defendant in the proceeding.

 

The proposed section is based on section 5.2.39 of the Model Criminal Code, but has been modified to incorporate the “substantial probative value” test in section 103 of the Evidence Act 1995 , which relates to the cross-examination of a witness as to his or her credibility.  Limiting the admissibility of evidence of sexual experience will protect child witnesses and child victims from damage to character and reputation and inappropriate humiliation and embarrassment that may be caused if evidence of sexual activity unconnected with the alleged crime is admitted.

 

Section 15YD - Leave under this Division

 

Proposed section 15YD requires applications for leave to adduce evidence of a child witness’ or child victim’s sexual reputation or sexual experience under proposed Division 2 to be in writing and to be made in the absence of the jury (if there is a jury). 

 

A court must not determine an application for leave until the court has considered any submissions and other evidence it considers necessary for determining the application.  If leave is given the court must state in writing its reasons for giving leave and ensure those reasons are entered in the court’s records. 

 

The above requirements are drawn from the recommendations in the Model Criminal Code Report on Sexual Offences Against the Person.  By requiring applications for leave and the courts’ reasons for granting leave to be documented, the proposed section provides means of ensuring that judges are accountable for decisions to admit such evidence and that the restrictions set out in proposed section 15YB and 15YC are fully complied with.

 

Division 3 - Cross-Examination

 

Proposed Division 3 applies to the cross-examination of a child witness or child victim.

 

Section 15YE - Disallowing inappropriate or aggressive cross-examination

 

Proposed section 15YE provides the court with a discretion to disallow a question put to a child witness in cross-examination if the question is inappropriate or unnecessarily aggressive.  In considering whether a question is inappropriate or unnecessarily aggressive the court is to have regard to the personal characteristics of the child witness. 

 

The personal characteristics of the child witness to which the court is to have regard include, but are not limited to, the age, culture, mental capacity and gender of the child witness.  The court’s power to disallow a question under any other law will be preserved by proposed section 15YT.

 

Section 15YF - Unrepresented defendants-cross-examination of child victims

 

Proposed section 15YF precludes an unrepresented defendant from personally conducting the cross-examination of a child victim.  Although the defendant will not be able to personally question the child victim, any questions the defendant wishes to ask the child victim will be put to the child at the request of the defendant by a person appointed by the court.

 

The strict prohibition on an unrepresented defendant personally cross-examining a child victim recognises that cross-examination of a child victim directly by the alleged offender will undoubtedly be traumatic and distressing for the child.

 

The court will be able to exercise its power under any other law to disallow a question the defendant requests the person to ask (see proposed section 15YT).

 

Section 15YG - Unrepresented defendants - cross-examination of child witnesses

 

Proposed section 15YG prohibits cross-examination of a child witness (not including a child victim) by an unrepresented defendant personally, unless the court gives leave.  The court may give an unrepresented defendant leave to personally cross-examine a child witness if satisfied that the child’s ability to testify under cross-examination will not be adversely affected if the defendant conducts the cross-examination. In deciding whether the child’s ability to testify will not be adversely affected the court must have regard to any trauma likely to be caused to the child witness if the defendant conducts the cross-examination. 

 

If the court refuses an unrepresented defendant leave to conduct the cross-examination personally, any questions the defendant wishes to ask must be put to the child witness by a person appointed by the court.

 

In contrast to proposed section 15YF, which completely prohibits cross-examination of a child victim by an unrepresented defendant personally, proposed section 15YG permits the court to give leave to the unrepresented defendant to conduct the cross-examination of a child witness personally.  A complete prohibition is not appropriate in the case of a child witness, as cross-examination by the defendant personally will not necessarily be traumatic (for example, where there is no proximate relationship to the defendant or the victim). 

 

Section 15YH - Represented defendants - cross-examination of child witnesses and child victims

 

Proposed section 15YG precludes a represented defendant from personally conducting the cross-examination of a child witness or a child victim.  A defendant who is represented by counsel may only cross-examine a child witness or a child victim through counsel.

 

Division 4 - Special facilities for child witnesses to give evidence

 

Proposed Division 4 provides for the use of special facilities and arrangements, such as closed-circuit television, while a child witness is giving evidence.

 

Section 15YI - Closed-circuit television

 

Proposed section 15YI provides that evidence given by a child witness must be given by means of closed-circuit television, except in certain circumstances.  A child will not be required to give evidence by means of closed-circuit television if:

·                the child is a least 16 years old and chooses to not use closed-circuit television to give evidence;

·                if the court orders that the child is not to give evidence by means of closed-circuit television; or

·                closed-circuit television is not available in the court. 

 

A court must not order that a child is not to give evidence by means of closed-circuit television unless the court is satisfied that it is not in the interests of justice for the child witness’ evidence to be given by means of closed-circuit television.

 

A child witness may be intimidated and distressed by having to appear in an open court.  Allowing a child witness to testify by means of closed-circuit television will minimise the trauma of giving evidence by enabling the child to give his or her evidence in a less formal and more private environment.  As a consequence, the child witness will be better able to focus on questions being asked.

 

Section 15YJ - Giving evidence by closed-circuit television

 

Proposed section 15YJ facilitates the use of closed-circuit television by ensuring that the court’s powers to control proceedings within the courtroom extend to any location outside the courtroom from which a child witness is giving evidence by means of closed-circuit television.  The proposed section also permits the court to adjourn the proceeding to another location to enable a child witness to give evidence by means of closed-circuit television.  

 

Section 15YK - Viewing evidence given by closed-circuit television

 

Proposed section 15YK provides that, where a child witness gives evidence by means of closed-circuit television, the child and any person present with the child must be able to be seen on one or more television monitors by any persons who have an interest in the proceedings.

 

Section 15YL - Alternative arrangements for giving evidence

 

Proposed section 15YL provides for the use of alternative arrangements while a child witness is giving evidence, where the child’s evidence is not to be given by closed-circuit television for one of the reasons set out in proposed section 15YI.  For example, alternative arrangements are to be used if closed-circuit television is not available in the court.

 

The court must make arrangements to restrict the contact the child has with the defendant while giving evidence and may make arrangements to restrict the contact the child has with members of the public.  The arrangements the court can make include the use of screens and planned seating arrangements.  By restricting the contact a child witness has with other persons in the courtroom, and in particular with the defendant, the alternative arrangements will ameliorate the stress and embarrassment that may be experienced by a child witness in giving evidence.

 

If the child is at least 16 years old, he or she may choose not to use the arrangements while giving evidence.

 

Division 5 - Use of video recordings

 

Proposed Division 5 permits a video recording of an interview with a child witness to be used in proceedings.

 

Section 15YM - Use of video recordings

 

Proposed section 15YM provides for a video recording of an interview with a child witness conducted by a constable or a person in a prescribed category to be admitted as evidence in chief of the child witness, if the court gives leave.  The court must not give leave if satisfied that it is not in the interests of justice for the child’s evidence in chief to be given by video recording. 

 

A child witness who gives evidence in chief by video recording must be available for cross-examination and re-examination. 

 

By allowing a video recording of an interview with a child witness to be admitted, the exposure of the child to court room questioning can be limited.  An added advantage is that the account given closest to the time of the alleged offence will be fresh and hence more likely to be an accurate account of events than several months later.  Limiting the application of the section to video recorded interviews conducted by constables and other prescribed classes of person (eg, social workers) will ensure that such interviews are conducted by persons of appropriate professional status.

 

Section 15YN - Admissibility of evidence given using video recordings

 

Proposed section 15YN sets out further provisions relating to the admissibility of evidence given video recording.  In particular, proposed subsection 15YN(1) provides that evidence given by video recording is admissible despite the fact that it is evidence of previous representations made by the child during the interview.  However, other rules of evidence, including rules relating to the admissibility of hearsay evidence and evidence of counselling communications, continue to apply to evidence given by video recording. 

 

Evidence given by video recording is only admissible if the court is satisfied that any defendant in the proceedings or his or her lawyer was afforded a reasonable opportunity to listen to and view the recording.

 

Division 6 - Miscellaneous

 

Proposed Division 6 contains miscellaneous provisions dealing with adult companions for child witnesses; the exclusion of members of the public from the courtroom; proscribing warnings to the jury on certain matters; prohibiting publication of details identifying a child victim or child witness; and preserving the court’s general powers to control proceedings.

 

Section 15YO - Adults accompanying child witnesses

 

Proposed section 15YO provides that a child witness may chose an adult to accompany him or her while he or she is giving evidence in a proceeding (including while giving evidence by closed-circuit television).  However, the court may disapprove the person chosen by the child witness if it considers that the person is not an appropriate person to accompany the child.  For example, the court may determine that it is not appropriate for an adult who is a party to the proceeding to accompany the child. 

 

The court may allow more than one adult to accompany a child if it considers that it is in the interests of justice to do so.  For example, a court may allow a child to be accompanied by a relative and an interpreter.

 

An adult accompanying a child witness must not prompt the child or otherwise influence the answers the child gives to questions or disrupt the questioning of the child.

 

Section 15YP - Exclusion of people from the courtroom

 

Proposed section 15YP gives the court the power to exclude some or all members of the public from the courtroom while a child witness is giving evidence in the courtroom.  A court may exercise this power, for example, to make it easier for a child to testify freely or to protect a child witness’ reputation.

 

Section 15YQ - Warnings etc not to be given about children’s evidence

 

Proposed section 15YQ prevents a judge from warning a jury or suggesting to a jury that the law regards children as unreliable class of witness or that the law requires greater or lesser weight to be given to the evidence of a child witness that is given by closed-circuit television or video recorded interview or that is given while the child is accompanied by an adult.  The proposed section implements section 5.2.41 of the Model Criminal Code (Reliability of evidence of children) and also ensures that judges cannot undermine the beneficial effect of proposed Divisions 4 and 5 and section 15YO by warning or suggesting to a jury that evidence given in reliance on those provisions should be given lesser weight.

 

Section 15YR - Publication identifying child witnesses or child victims

 

Proposed section 15YR makes it an offence for a person to publish any matter, without the leave of the court, which identifies a person (other than a defendant) as a child witness or a child victim or is likely to lead to his or her identification.  However, the proposed section does not apply to any official publication in the course of, and for the purpose of, the proceeding or a document prepared for use in particular legal proceedings.

 

A court may grant leave for a person to publish identification details.  In deciding whether to grant leave the court must consider any trauma to the child witness or damage to the child witness’ reputation that could be caused by the publication and whether the publication is for the supply of transcripts to person with a genuine interest in the proceedings (eg, a party to the proceedings) or for genuine research purposes.  The court (whether constituted by the same or different judicial officers) may give leave after the proceedings have finished.

 

The onus is placed on a person who wishes to publish identifying details to apply for leave to do so, as the prevention of the further trauma to the child victim or child witness will in most cases outweigh any public interest in knowing the identity of the child.

 

The proposed section does not apply to child defendants as they are already covered by State and Territory provisions that apply to Commonwealth criminal proceedings in the relevant jurisdiction.

 

Section 15YS - Division 5 of Part IIIA unaffected

 

Proposed section 15YS provides that the proposed Part does not affect the operation of Division 5 of Part IIIA of the Crimes Act, which provides for overseas witnesses in child sex tourism proceedings to give evidence by video link.

 

Section 15YT - General powers of a court

 

Proposed section 15YT preserves the court’s general powers to control the conduct of a proceeding, including the questioning of witnesses, unless those powers are expressly or necessarily affected by the provisions in proposed Part 1AD.

 

Where a court has power to give leave under one of the provision of proposed Part 1AD, the court may grant leave subject to conditions.

 



Schedule 4 - Investigation of Commonwealth offences

 

Most of the amendments in this Schedule are the result of a review of Part 1C of the Crimes Act.  Part 1C was inserted into the Crimes Act by the Crimes (Investigation of Commonwealth Offences) Amendment Act 1991 .  It was enacted in part as a response to the High Court decision in Williams v R (1986) 161 CLR 278, which underlined the absence of any authority at common law on the part of investigating officials to detain a suspect for questioning.

 

Under section 23C in that Part, a person who is lawfully arrested for a Commonwealth offence may be detained for a 'reasonable' time, to a maximum of 2 hours for a person who is or appears to be under 18, an Aboriginal person, or a Torres Strait Islander, and to a maximum of 4 hours for any other person.  In calculating these periods, certain periods of time specified in subsection 23C(7) are to be disregarded.  A magistrate or justice of the peace can extend this period, once only, by a maximum of 8 hours (section 23D). 

 

Part 1C confers a range of rights on suspects, that apply both in the situation of lawful arrest and detention, and in specified circumstances constituting deemed arrest.  Some of the measures contained in this Schedule are directed to clarifying this distinction between lawful and deemed arrest for the purposes of the Part. 

 

Among the rights conferred by Part 1C on those subject to lawful or deemed arrest are:

·                to communicate with a friend or relative and legal practitioner (section 23G);

·                in the case of an Aboriginal person or Torres Strait Islander or person under 18 - to have an interview friend present during questioning (section 23H);

·                in appropriate cases - to an interpreter (section 23N);

·                in the case of a foreign national - to communicate with his or her consular office (section 23P).

 

There are also requirements relating to recording of admissions and confessions (section 23V).  This is an indicative list only, and does not detail the precise rules governing each of these rights, or all of the rights that are conferred.

 

This Schedule also contains some amendments to Part 1AA of the Crimes Act.  Part 1AA was inserted in the Crimes Act by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994 .  The Part includes rules governing the issuing and execution of search warrants (Division 2), the stopping and searching of vehicles and other conveyances (Division 3), and arrest and related matters including strip search powers and identification procedures (Division 4).  All of the proposed amendments are to Division 2.

 

Finally, the schedule contains amendments to the provisions governing search and seizure warrants under the Part XII of the Customs Act 1901 , inserted by the Customs, Excise and Bounty Legislation Amendment Act 1995 .  These provisions are closely modelled on the Crimes Act search warrant provisions.

 

Crimes Act 1914

 

The purpose of the amendments to the Crimes Act is to clarify and improve the operation of the provisions dealing with the investigation of Commonwealth offences under Parts 1AA and 1C.

 

Item 1

 

This Item repeals the existing paragraph 3E(5)(e) and replaces it with a proposed new paragraph 3E(5)(e).  Section 3E governs the issuing of search warrants.  The existing paragraph 3E(5)(e) provides that the warrant must state:

 

‘the period for which the warrant remains in force, which must not be more than 7 days’.

 

This formulation has created unnecessary uncertainty for readers of the legislation as to when a warrant expires.  The proposed new paragraph will contain a cross-reference to proposed subsection 3E(5A) which will state more concretely when a warrant expires (see Item 2).

 

Item 2

 

This Item inserts proposed subsection 3E(5A).  Section 3E governs the issuing of search warrants.  The proposed subsection will overcome uncertainty for readers of the existing paragraph 3E(5)(e) as to when a warrant expires (see Item 1).  The proposed subsection states that a warrant expires at the end of the seventh day after it is issued.

 

Item 3

 

This Item amends subsection 3E(8), consequential on the proposed amendments at Items 1 and 2.  Subsection 3E(8) allows a subsequent search warrant to be issued in respect of premises or a person notwithstanding the earlier expiry of an initial warrant in respect of those premises or that person.  The proposed amendment ensures that this rule also extends to proposed subsection 3E(5A), which also provides for warrant expiry.

 

Item 4

 

This Item amends subsection 3E(9), consequential on the proposed amendments at Items 1 and 2.  Subsection 3E(9) provides for shorter time limits to apply to the expiry of section 3R (telephone etc) search warrants.  The new expiry rule in proposed subsection 3E(5A) will not apply to telephone etc search warrants, which will cease to be in force after a maximum of 48 hours, rather than at the end of a day.

 

Item 5

 

This Item amends subsection 3E(9), consequential on the proposed amendments at Items 1 and 2.  Subsection 3E(9) provides for shorter time limits to apply to the expiry of section 3R (telephone etc) search warrants.  The existing subsection is premised on the basis that subsection 3E(5) refers to a warrant ceasing to be in force after ‘7 days’.  The amended subsection 3E(9) will reflect the fact that the proposed new paragraph 3E(5)(e) will require the issuing warrant to specify the ‘time’ at which the warrant expires.

 

Item 6

 

This Item repeals subsection 3R(2) and substitutes a new provision that re-enacts and expands on existing subsection 3R(2).  Proposed paragraph 3R(2)(a) re-enacts existing subsection 3R(2), which provides that an issuing officer may accept an application for a warrant by voice.  Proposed paragraph 3R(2)(b) provides that the issuing officer may make a recording of the whole or any part of such communication by voice.  Although there is currently no legal barrier to such recording with the consent of all involved, express legal provision will encourage recording as a mechanism to provide reassurance that there will be no misunderstanding about the terms of an application and the terms of any warrant

 

Item 7 

 

This Item inserts the words “or any other offence” after the word “arrested” in paragraph 3ZH(2A)(a).  Existing paragraph 3ZH(2A)(a) requires that where it becomes apparent during a strip search that a forensic procedure is likely to produce evidence relating to the offence for which the person has been arrested, the procedure must be carried out in accordance with the requirements prescribed by Part 1D. 

 

Currently, the subsection contains a possible anomaly, whereby if a strip search is undertaken and reveals the need for a forensic procedure to find evidence of an offence other than the offence for which the person was arrested, there is no explicit requirement to follow the usual requirements for forensic procedures.  Proposed paragraph 3ZH(2A)(a) removes the anomaly by expressly providing that the requirements in Part 1D must also be observed when carrying out forensic proceduresto obtain evidence relating to an offence other than the offence for which the person was arrested.

 

Item 8

 

This Item inserts proposed subsection 3ZH(2B) into section 3ZH to clarify that an order authorising a strip search also authorises the taking of a photograph of evidential material found on the person. Existing section 3ZH allows for a strip search of an arrested person to be conducted, but at present it is not clear that an order by a senior police officer authorising a strip search authorises the photographing of material on the person. This amendment clarifies that evidential material found on the person may be photographed, whether or not this constitutes a forensic procedure under Part 1D.

 

Item 9

 

This Item inserts a proposed a new title Division 1 - Introduction and a new section 23, which will outline the operation of Part 1C.  (Part 1C sets out a number of obligations and limitations in relation to the investigation of Commonwealth offences.)

 

Division 1 will include provisions that relate to the operation of Part 1C including sections covering the application of the Part and definitions.

 

Section 23 - Outline of this Part

 

Proposed subsection 23(1) provides that Part 1C performs two functions:

 

·                Division 1 provides for the detention of people lawfully arrested for Commonwealth offences; and

·                Division 2 imposes obligations on investigating officials in relation to:

 

-          people lawfully arrested for Commonwealth offences; and

-          certain other people being investigated for Commonwealth offences.

 

The proposed outline is designed to clarify the operation of Part 1C with respect to two different groups: those lawfully arrested and those suspected of criminal activity who are not under arrest in the strict sense but who fall within an extended meaning of that term (see subsection 23B(2)).

 

Proposed subsections 23(2) and (3) further clarify the operation of Part 1C and provide that the Part does not confer any power to arrest a person and that only a person lawfully arrested for a Commonwealth offence may be detained under the Part.  (The proposed subsections replace existing section 23R - see Item 53.)

 

Item 10 

 

This Item repeals subsection 23A(6), which provides that the existing provisions of Part 1C apply to the investigation of Australian Capital Territory offences which are punishable by a period of more than 12 months and where the investigating official is a member of the Australian Federal Police. The Australian Capital Territory is considering a proposal to enact its own regime, essentially replicating the Commonwealth’s Part 1C, to apply to ACT offences.  This is consistent with the fact that the ACT has enacted its own criminal investigation provisions in other contexts.  However, the timing of any such measure has not yet been determined.  It is therefore proposed that this Item commence on Proclamation, as set out in clause 2, to ensure that the ACT provisions have commenced before subsection 23A(6) is repealed. 

 

Item 11

 

This Item repeals the definition of arrested or under arrest in subsection 23B(1) as a consequence of the proposal to define the expressions in proposed subsection 23B(1A) (see Item 16).

 

Item 12

 

This Item inserts a definition of the term arrested into subsection 23B(1) and provides that it will have the meaning given by subsection 23B(1A) (see Item 16).

 

Item 13

 

This Item inserts a definition of the term inform into subsection 23B(1) and provides that in relation to providing information to a person under arrest, it means notify the person in a language in which the person is able to communicate fluently.  This is designed to ensure that a requirement, under Part 1C, to provide information to a person is given in a language that the person is able to understand.  This would replace inconsistent formulations in the current Part 1C as to the scope of the proposed right.

 

Item 14

 

This Item repeals the definition of magistrate in subsection 23B(1) as a consequence of the introduction of the term judicial officer (see Item 29).  (A judicial officer will include, inter alia , a magistrate.)

 

Item 15

 

This Item inserts a definition of the term under arrest into subsection 23B(1) and provides that it will have the meaning given by subsection (1A) (see Item 16).

 

Item 16

 

This Item inserts proposed subsection 23B(1A) which provides that for the purposes of Part 1C, a person is arrested or under arrest if the person is:

 

·                lawfully arrested for a Commonwealth offence; or

·                covered by the extended meaning given by subsection 23B(2).

 

The proposed definitions are designed to clarify the operation of Part 1C: when the terms arrested or under arrest are used, the provision in which they appear apply to both a person who is lawfully under arrest and a person who is covered by the extended meaning in subsection 23B(2).  But when the term lawfully arrested is used, the provision in which it appears does not cover a person who is covered by the extended meaning.

 

Whether the extended meaning of arrest covers a person, depends on the satisfaction of the requirements of subsection 23B(2).  In this situation, a person who is not lawfully under arrest will nevertheless be taken to be arrested for the purposes of Part 1C if the person:

 

·                is in the company of an investigating official for the purposes of being questioned; and

·                certain other conditions apply as specified in that subsection, for example,

-          the official believes that there is sufficient evidence to establish that the person has committed a Commonwealth offence that is to be the subject of the questioning; or

-          the official would not allow the person to leave if the person wished to do so.

 

The proposed definition retains the operation of subsections 23B(3) and 23B(4).  This means that the person will cease to be under arrest for the purposes of Part 1C if subsection 23B(3) (see Item 20) or subsection 23B(4) (to enable the person to participate in covert operations) applies.

 

Item 17

 

As the proposed definition of arrest and under arrest in subsection 23B(1A) includes a reference to the arrests ceasing under subsection 23B(3) or (4), this Item proposes a consequential amendment to delete the reference to those subsections in subsection 23B(2).  The proposed amendment also makes a drafting change to the opening words of the provision to clarify that, for the purposes of Part 1C, subsection 23B(2) defines the situations in which a person is to be taken to be arrested.

 

Item 18

 

This Item inserts a proposed a drafting amendment to subsection 23B(2) to replace the expression “treated as being” with the expression “taken to be” as a consequence on the proposed change to the opening words of that provision (see Item 17).   This will clarify the provision such that a person is not taken to be arrested in certain circumstances.

 

Item 19

 

This Item repeals paragraph 23B(2)(d) and substitutes a new provision that broadens the circumstances in which a person will not be covered by the extended meaning of arrest only because of the operation of subsection 23B(2).

 

Paragraph 23B(2)(d) currently provides that a person is not to be treated as having been arrested if the investigating official is performing functions relating to persons or goods entering Australia (ie, barrier functions) and does not believe the person has committed a Commonwealth offence. 

 

Proposed paragraph 23B(2)(d) provides that the “barrier control” exemption from Part 1C relates not only to persons and goods entering Australia, but also to persons and goods leaving Australia.  This means that a person is not to be treated as having been arrested if the investigating official is performing functions relating to persons or goods leaving Australia and does not believe the person has committed a Commonwealth offence.

 

Item 20

 

This Item repeals subsection 23B(3) and substitutes a new subsection to provide that:

 

·                a person does not cease to be under arrest for the purposes of Part 1C when the person is remanded under specified provisions of the Service and Execution of Process Act 1992 ; and

·                a person does cease to be under arrest for the purposes of Part 1C when the person is remanded by a person authorised to grant bail under the law of the State or Territory in which the person was arrested, as well as a magistrate or a justice of the peace. 

 

Subsection 23B(3) currently provides that where a person who has been arrested for a Commonwealth offence is remanded by a magistrate (which is currently defined as including a justice of the peace) in respect that offence, then the person is no longer considered to be under arrest for the purposes of Part 1C. 

 

The proposed amendment is designed to ensure that where a person is remanded into custody under specified provisions of the Service and Execution of Process Act 1992 , that the remand will not have the effect of precluding the application of Part 1C (that is, the person will continue to be under arrest).

 

Item 21 

 

This Item inserts the proposed heading Division 2 - Powers of detention before section 23C and a clarifying note to the effect that the powers in Division 2 only apply to people lawfully arrested for Commonwealth offences and do not apply to persons who fall within the extended meaning of arrest.

 

Item 22

 

This Item repeals subsection 23C(2) and substitutes a new subsection 23C(2) to clarify the circumstances in which a person may be detained for the purposes of investigating an offence other than the offence for which the person was arrested.

 

Existing subsection 23C(2) provides that a person who has been lawfully arrested for a Commonwealth offence may be detained for the purpose of investigating whether the person committed the offence or any other Commonwealth offence

 

The purpose of the proposed amendment is to close an anomaly in this subsection, which allows scope for the arrest of an offender on a ‘holding charge’.  While an investigating official must have reasonable grounds to believe that a person has committed an offence in order to arrest that person, and hence detain them pursuant to subsection 23C(3), under the current provision no such belief is required to justify detention and questioning in relation to other possible Commonwealth offences.  Contemporary policing practice does not involve the use of holding charges.

 

Proposed subsection 23C(2) clarifies that a person may only be detained for the purposes of investigating an offence (not being the offence for which the person was arrested) if an investigating official reasonably suspects the person to have committed that other Commonwealth offence.

 

Item 23

 

This Item amends paragraph 23C(3)(b) as a consequence on the proposed repeal of the term magistrate and the proposed introduction of the term judicial officer (see Item 29).

 

Item 24

 

This Item inserts a proposed a clarifying note at the end of subsection 23C(3) cross-referring to the definition of judicial officer in proposed subsection 23C(9).

 

Item 25

 

This Item amends subsections 23C(4) and 23C(6) to provide that references to arrested in those subsections are qualified by the term lawfully so as to remove any ambiguity about the operation of the provisions. The proposed amendment is consistent with the intention that Division 2 , which includes section 23C, only applies to persons who are lawfully arrested.

 

Item 26

 

This Item inserts a proposed new subsection 23C(6A) to provide that in relation to each first arrest in any 48-hour period the effect of subsection 23C(6), which is to ensure that in any given 48-hour period, a person cannot be questioned for more than the applicable investigation period, is to be disregarded in certain circumstances. 

 

The proposed circumstances in which the limitations imposed by subsection 23C(6) are to be disregarded are:

 

·                if the later arrest is for a Commonwealth offence that is committed after the person’s period of detention in respect of the first or earlier arrest; or

·                if the later arrest arose in different circumstances to the offence to which the first arrest relates and for which new evidence has been found since the first arrest.

 

The proposed provision also provides that the person’s questioning associated with the later arrest must not relate to the Commonwealth offence to which the first arrest related, or circumstances in which such an offence was committed.

 

While subsection 23C(6) places a legitimate limitation on investigating officials, it is proposed that a person should not be able to avoid questioning for a new or unrelated offence merely because he or she has just been questioned in relation to an earlier offence.

 

Item 27

 

This Item amends paragraph 23C(7)(g) to replace the expression “to make and dispose” with the expression “in connection with making and disposing”.  The proposed amendment is designed to clarify that it is not just the actual time taken to make or dispose of an application for an order under sections 23D, 23WU or 23XB that should be disregarded for the purpose of calculating the applicable investigation period, it is also to include the time that is reasonably required in connection with making such an application.

 

The proposed amendment will mean, for example, that the time spent travelling to the location where the section 23D application is to be heard and the time spent waiting for the magistrate to hear the application will not count towards the investigation period allowed under subsection 23C(4).

 

Item 28

 

This Item amends paragraph 23C(8)(a) as a consequence of the proposal to amend paragraph 23C(3)(b) by replacing the term magistrate with the proposed term judicial officer .

 

Item 29

 

This Item inserts a proposed new subsection 23C(9) to define the proposed term judicial officer .  The provision provides that a judicial officer means a magistrate, a justice of the peace or a person authorised to grant bail under the law of the State or Territory in which the person was arrested.

 

Currently subsection 23B(1) provides that for the purposes of Part 1C a reference to magistrate includes a justice of the peace. This extended definition of magistrate has been criticised because of the confusion it creates by being used to refer to someone who is not in fact a magistrate (ie, a justice of the peace).  The proposed new term of judicial officer will replace references to magistrate where it is appropriate to do so.  For example, the definition will be used for the purposes of remand in proposed paragraph 23C(3)(b) (see Item 23).

 

Item 30

 

This Item amends subsection 23D(1) to provide that the reference to “arrested” is qualified by the term “lawfully” so as to remove any ambiguity about the operation of the provision. The proposed amendment is consistent with the intention that Division 2 , which includes section 23D, only applies to persons who are lawfully arrested.

 

Item 31

 

This Item inserts a proposed clarifying statement at the end of subsection 23D(2) to provide that, the magistrate, justice of the peace or bail justice to whom the application is made under that subsection, is the judicial officer for the purposes of sections 23D and 23E.  (The term judicial officer appears in subsections 23D(3) and (4) but has not previously been defined.)

 

The proposed amendment and the repeal of the definition of magistrate (see Item 14) will remove the inherent contradiction that currently exists in subsection 23D(2).

 

Item 32

 

This Item amends subsection 23D(4) to require that an extension of the investigation period by a judicial officer must be by signed written authority.

 

Item 33

 

This Item inserts proposed new subsections: 23D(4A) and (4B).  Proposed subsection 23D(4A) provides that the written authority extending the investigation period must set out the day and time when the extension was granted, the reasons for granting the extension and the terms of the extension.

 

Proposed subsection 23D(4B) provides that the judicial officer (who grants the extension) must give the investigating official a copy of the authority as soon as practicable after signing the authority.

 

The proposed amendments will mean that there must be a formal record of all decisions to extend investigation periods and not just those where the application is made in an electronic form under section 23E as is currently the case.

 

Item 34

 

This Item omits the reference to “radio or radio-telephone” from subsection 23E(1) and proposes substituting a reference to “telex, fax or other electronic means”.

 

Existing section 23E sets out requirements that must be met where an application for extension of the investigation period is made by telephone, radio or radio-telephone.  Other electronic means are not covered.

 

The proposed amendment to subsection 23E(1) provides that an extension of the investigation period may be sought or notified by any electronic means (eg, telephone, fax or email).  

 

Item 35

 

This Item replaces the word “tell” in subsection 23E(2) with the word inform as a consequence of the proposed introduction the word inform as a defined term in subsection 23B(1) (see Item 13).  This means that an investigating official must communicate in a language in which the person being questioned is reasonably fluent about the right to make representations.

 

Item 36

 

This Item amends subsection 23E(2) to replace the reference to under arrest with a reference to lawfully arrested so as to remove any ambiguity about the operation of the provision. The proposed amendment is consistent with the intention that Division 2 , which includes section 23E, only applies to persons who are lawfully arrested.

 

Item 37

 

This Item repeals subsection 23E(3) (which sets out the contents of a written authority to extend an investigation period in response to an electronic request) and replaces it with a new provision as a consequence of proposed subsection 23D(4A) (see Item 33).  Proposed subsection 23E(3) will provide that, if a judicial officer grants an electronic application to extend the investigating period, he or she must inform the investigating official of the matters set out in the authority under proposed subsection 23D(4A).  This means that the information recorded for both electronic and other grants of extension of time is the same.

 

Item 38

 

This Item omits the term “receiving the authority” from subsection 23E(4) and substitutes the term “being informed of those matters” as a consequence of the proposed amendment to subsection 23E(3) (see Item 37).  The proposed amendment to subsection 23E(4) will remove an ambiguity in the existing provision so that it is clear that the investigating official need only be informed of the matters contained in the written authority, he or she need not actually receive a physical copy of that authority.

 

Item 39

 

This Item repeals subsection 23E(7) (which currently defines judicial officer for the purposes of section 23E) as a consequence of the proposed amendment to subsection 23D(2) (which will define judicial officer for the purposes of both sections 23D and 23E) (see Item 31).

 

Item 40

 

This Item inserts the proposed heading Division 3 - Obligations of investigating officials before section 23F and a clarifying note to the effect that the obligations in Division 3 apply in relation to all persons who fall within the extended meaning of arrest as well as those lawfully arrested for a Commonwealth offence.

 

Item 41

 

This Item repeals subsection 23F(2) and replaces it with a new provision as a consequence of the proposed introduction the word inform as a defined term in subsection 23B(1) (see Item 13).   Existing subsection 23F(2) provides that a caution must be in a language in which the person is able to communicate, as the concept of communicating in a language other than English will be central to the new term inform , the proposed amendment of subsection 23F(2) will refer to an investigating official having to inform the person of the caution.

 

Items 42 and 43

 

These Items omit the words “holding the person under arrest” from subsections 23G(2) and (3) to clarify the application of those provisions.  Section 23G confers a right on a person who is lawfully arrested or who falls within the extended meaning of arrest, to speak to a friend, relative or legal practitioner.  As the term “holding the person under arrest” is inconsistent with the applicability of the section to persons who are not lawfully under arrest, the proposed amendments remove the words.

 

Item 44 

 

This Item repeals paragraph 23H(2)(a) and replaces it with a new paragraph to raise the threshold test for when an investigating official must not question an Aboriginal person or a Torres Strait Islander unless the person has had access to an interview friend. 

 

Existing subsection 23H(2) provides that this obligation arises where the investigating official:

 

·                suspects that a person may have committed a Commonwealth offence , or is of the opinion that information received by investigating officials may implicate a person in the commission of a Commonwealth offence , and believes on reasonable grounds that the person is an Aboriginal person or a Torres Strait Islander; or

·                believes on reasonable grounds that a person under arrest for a Commonwealth offence is an Aboriginal person or a Torres Strait Islander.

 

By contrast, the requirements for the application of the provisions governing the tape recordings of confessions and admissions has a higher threshold: that is the person is being “interviewed as a suspect (whether under arrest or not)”.

 

The proposed amendment will make the application of interview friend provisions consistent with the requirements of the tape-recording provisions.  This will mean that the requirement to cease questioning a person, unless they have had access to an interview friend, will apply where an investigating official interviews a person as a suspect (whether lawfully arrested or covered by the extended meaning of arrest or not) rather than in the current wider circumstances.

 

Item 45

 

This Item inserts proposed subsections 23H(2A) and (2B) to deal with the situation where an investigating official is to choose an interview friend for a person.

 

Under the existing provisions, if an interview friend is not present, except in certain circumstances, the investigating official must not question the person.  However, there are no provisions that enable the investigating official to provide the person with an interview friend.  While it is desirable that persons being interviewed have first choice as to who is to be their interview friend, there are limits to the extent to which a suspect can be given an unfettered choice, particularly where this results in an inability to question the person.

 

Proposed subsection 23H(2A) will provide that the suspect may choose his or her own interview friend unless he or she expressly and voluntarily waives this right, fails to exercise this right i or the interview friend chosen does not arrive within 2 hours.

 

In such circumstances, proposed subsection 23H(2B) will provide that the investigating official must choose one of the following to be the person’s interview friend:

·                a representative from an Aboriginal legal aid organisation; or

·                a person named in the relevant list maintained under subsection 23J(1) (that is, a list of names of persons who are suitable to assist an Aboriginal person or a Torres Strait Islander).

 

Item 46

 

This Item inserts a proposed amendment to subsection 23H(4), consequent to the previous Item, to add that the burden is on the prosecution to prove that an Aboriginal person or a Torres Strait Islander has waived the right to an interview friend under proposed subsection 23H(2A) as well as under existing subsection 23H(2).

 

Item 47

 

This Item inserts a proposed consequential amendment to subsection 23H(8) to add that the investigating official does not have to comply with the requirements of proposed subsection 23H(2B) (as well as existing subsections 23H(1) and (2)) if the investigating official believes that the person being questioned would not be at a disadvantage because of the person’s education and understanding.

 

Item 48

 

This Item repeals paragraph 23K(1)(a) and replaces it with a new paragraph to raise the threshold test for when an investigating official must not question the person, unless the person has had access to an interview friend.  This proposed amendment is equivalent to that proposed for paragraph 23H(2)(a) and the same reasoning applies (see Item 44).

 

Item 49

 

This Item inserts a proposed consequential amendment to subsection 23L(1) as a consequence of the proposed restructure of that provision (see Item 50).

 

Item 50

 

Sections 23G, 23H, 23K, 23M and 23P impose a number of requirements on an investigating official in relation to a person under lawful or deemed arrest, such as deferring questioning to allow a legal practitioner to attend the questioning of the person. 

 

These requirements are, however, subject to section 23L, which provides that a requirement imposed on the investigating official by one of the above sections does not apply in certain circumstances, for example, where compliance with that requirement is likely to result in the destruction of evidence or the intimidation of a witness.

 

This Item repeal and substitutes subsections 23L(2), (3) and (4) to restructure and simplify the drafting of the provisions (without changing the scope of the provisions) and to prescribe time limits within which certain things are to occur .

 

Proposed subsection 23L(2) provides that if the requirement under the Act relates to things done or in relation to a legal practitioner, then the ability to not comply with that requirement can only exist in exceptional circumstances, and if a senior police officer, or other prescribed person, has authorised the non-compliance.  In addition the investigating official must make a record of the ground for the belief required for subsection 23L(1) (for example, the belief that complying with the provision is likely to result in an accomplice avoiding apprehension, the loss or concealment etc of evidence or prejudice the safety of a person).

 

Proposes subsection 23L(3) provides that if non-compliance with the requirements of the provision has been authorised, then the record of the investigating officer’s grounds for belief must be recorded as soon as practicable. The introduction of the time for the recording the investigating officer’s belief is designed to overcome the contrary intention that is it must be done contemporaneously.  In addition, the investigating officer must comply with the requirements as soon as possible.  This is designed to preclude a continuation of the non-compliance in circumstances where the initial grounds for non-compliance no longer exist.

 

Proposed subsection 23L(4) provides that if non-compliance with the requirements of a provision results in a person’s communication with a legal practitioner of his or her choice, or that legal practitioner’s attendance, being prevented or delayed, then the investigating official must offer the services of another legal practitioner.  This means that the person must have access to legal advice as soon as possible even when the legal practitioner of his or her choice is not available.

 

Item 51

 

This Item inserts a proposed a transitional provision which is designed to ensure that offices prescribed for the purposes of subsection 23L(4) before the commencement of this Act continue to be prescribed offices after the amendment proposed to section 23L (see Item 50).

 

Item 52

 

This Item repeals and substitutes section 23P.  Under existing section 23P, if a person under arrest for a Commonwealth offence is not an Australian citizen, the investigating official must, before starting to question the person, inform the person that he or she may communicate, or attempt to communicate, with the consular office of the country of which the person is a citizen, and the official must defer the questioning for a reasonable time to allow the person to so communicate.  Existing section 23P does not deal with the rights of stateless persons which are provided for under certain international conventions and some Commonwealth laws (for example, to communicate with the nearest appropriate representative of the State in the territory of which the person has his or her habitual residence, and to be visited by a representative of that State).

 

The re-enacted section 23P proposes the conferral of the following (broader) range of rights.  To:

·                be informed of the right to have a consular office notified;

·                have the consular office notified;

·                be informed of the right to notify a consular office directly;

·                be given reasonable facilities to notify the office;

·                have written communications forwarded to the consular office; and

·                attempt to notify a consular offence.

 

Item 53

 

Existing section 23R is a declaratory provision that states that Part 1C does not confer any power to arrest a person or to detain a person who has not been lawfully arrested.  As proposed subsections 23(2) and (3) (see Item 9) address this issue, this Item inserts a proposed the repeal of section 23R.

 

Item 54

 

This Item inserts a minor change to subsection 23V(1) to replace the reference to “interviewed” with a reference to “questioned” to clarify that the provision is to apply whenever a person is being questioned without the need for a formal interview to take place

 

Items 55 and 56

 

These Items amend subparagraphs 23V(1)(b)(i) and (ii), respectively, to replace the concept of interview with the concept of questioning as a consequence of the proposed amendment of subsection 23V(1) (see Item 54).

 

Item 57

 

This Item replaces the word notify in paragraph 23V(2)(b) with the word inform as a consequence of the proposed introduction that word as a defined term in subsection 23B(1) (see Item 13). This means that an investigating official must communicate in a language in which the person being questioned is reasonably fluent about the right to view a video recording of any confession or admission.

 

Item 58

 

This Item inserts proposed subsection 23V(6A) to clarify that subsection 23V(6) (which enables a court to admit confessional evidence when the court is satisfied that it was not practicable to comply with the requirements of subsection 23V(2) in relation to the provision of copies of the confession) does not limit the operation of subsection 23V(5).  Subsection 23V(5) provides that a court may admit confessional evidence even if the requirements of subsection 23V(2) have not been complied with, if in the special circumstances of the case admission of the evidence would not be contrary to the interest of justice.

 

Customs Act 1901

 

Items 59 to 69 make equivalent proposed amendments to the search warrant and seizure warrant provisions in Part XII of the Customs Act as are proposed to the search warrant provisions in Part 1AA of the Crimes Act by Items 1 to 6 of this schedule.  Items 59 to 63 relate to search warrants.  Items 64 to 68 relate to seizure warrants.  Item 69 relates to both.  This is consistent with the existing consistency between the terms of the Crimes Act search warrant provisions and the Customs Act search warrant and seizure warrant provisions.

 

Item 59

 

This Item repeals the existing paragraph 198(5)(e) and replaces it with a proposed new paragraph 198(5)(e), in an equivalent amendment to the proposed replacement of the existing paragraph 3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see Item 1).

 

Item 60

 

This Item inserts proposed subsection 198(3A) in an equivalent amendment to the proposed insertion of subsection 3E(5A) in the Crimes Act (see Item 2).

 

Item 61

 

This Item amends subsection 198(5) in an equivalent amendment to the proposed amendment of subsection 3E(8) of the Crimes Act (see Item 3).

 

Item 62

 

This Item amends subsection 198(6) in an equivalent amendment to the proposed amendment of subsection 3E(9) of the Crimes Act (see Item 4).

 

Item 63

 

This Item amends paragraph 198(6)(b) in an equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the Crimes Act (see Item 5).

 

Item 64

 

This Item repeals the existing paragraph 203(5)(d) and replaces it with a proposed new paragraph 203(5)(d), in an equivalent amendment to the proposed replacement of the existing paragraph 3E(5)(e) of the Crimes Act with a new paragraph 3E(5)(e) (see Item 1).

 

Item 65

 

This Item inserts proposed subsection 203(5) in an equivalent amendment to the proposed insertion of subsection 3E(5A) in the Crimes Act (see Item 2).

 

Item 66

 

This Item amends subsection 203(7) in an equivalent amendment to the proposed amendment of subsection 3E(8) of the Crimes Act (see Item 3).

 

Item 67

 

This Item amends subsection 203(8) in an equivalent amendment to the proposed amendment of subsection 3E(9) of the Crimes Act (see Item 4).

 

Item 68

 

This Item amends paragraph 203(8)(b) in an equivalent amendment to the proposed amendment of paragraph 3E(9)(b) of the Crimes Act (see Item 5).

 

Item 69

 

This Item amends subsection 203M(2) of the Customs Act in an equivalent amendment to the proposed amendment of subsection 3R(2) of the Crimes Act (see Item 6).

 



Schedule 5 - Listening device warrants

The purpose of this Schedule is to amend the Customs Act 1901 and the Australian Federal Police Act 1979 to permit the issue of a warrant authorising the use of a listening device in respect of a particular item.  Existing provisions in these Acts for the use of listening devices permit a warrant to be sought authorising their use in respect of a particular person or particular premises. 

The Supreme Court of Victoria recently held in R v Nicholas (Unreported [2000] VSCA 49) that a warrant identifying a person only by reference to their anticipated collection of a particular item did not sufficiently identify a particular person, and therefore was not authorised by the Customs Act warrant provisions.  The proposed new provisions will redress the effects of this decision by expressly permitting a warrant to be sought authorising the use of a listening device in respect of a particular item. 

 

Australian Federal Police Act 1979

 

Item 1

 

This Item amends subsection 12G(1) to provide that a member of the Australian Federal Police may apply for a warrant authorising the use of a listening device in relation to a particular item.  The proposed amendment responds to the decision of the Victorian Court of Criminal Appeal in R v Nicholas (Unreported [2000] VSCA 49).  In that decision, the court held that a warrant describing a person by reference to his or her anticipated collection of a particular item, did not sufficiently describe a particular person, and was therefore not authorised by the relevant warrant provisions contained in the Customs Act 1901

 

The proposed amendment addresses the similar warrant scheme in the Australian Federal Police Act to ensure that a warrant may be sought authorising the use of a listening device in relation to an item where it is not possible to identify a particular person.

 

The Item also proposes headings for subsections 12G(1), (2) and (4) to assist with the interpretation and application of the provisions.

 

Item 2

 

This Item proposes new subsections 12G(5A) and (5B) to empower a Judge or nominated AAT member to issue a warrant authorising the use of a listening device to listen to or record words spoken by or to any person while the person is in the vicinity of the item.  Proposed paragraph 12G(5A)(b) requires that the Judge or AAT member be satisfied of specified matters (these are the same as those specified in relation to a warrant authorising the use of a listening device in relation to a particular person or premises, save one additional matter). 

 

Proposed subparagraph 12G(5A)(b)(iv) requires the Judge or AAT member to also be satisfied that some or all of the information sought to be obtained could not appropriately be obtained by using a listening device authorised to be used in respect of a particular person or premises.  This additional requirement is intended to ensure that a warrant in respect of a particular item can only be granted where a warrant in relation to a particular person or premises could not be employed to the same effect.

 

Item 3

 

This Item amends subsection 12G(6) to include a reference to the matters to which a Judge or AAT member must have regard in considering an application for a warrant in respect of a particular item.  The amendment is consequential to the amendments proposed by Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 

The Item also proposes a heading for subsection 12G(6) to assist with the interpretation and application of the provision.

 

Item 4

 

This Item amends paragraph 12G(6)(b) consequential on the amendments proposed by Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 

Item 5

 

This Item amends subsection 12G(7) consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 

The Item also proposes headings for subsections 12G(8), (9), (10) and (11) to assist with the interpretation and application of the provisions.

 

Item 6

 

This Item amends paragraph 12G(7)(c) consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 

Item 7

 

This Item amends section 12H consequential to the amendments at Items 1 and 2 empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 

Customs Act 1901

 

Item 8

 

This Item amends section 219B to permit members of the Australian Federal Police and the National Crime Authority to apply for a warrant authorising the use of a listening device in relation to a particular item.  The proposed amendment responds to the decision of the Victorian Court of Criminal Appeal in R v Nicholas (Unreported [2000] VSCA 49).  In that decision, the Court held that a warrant describing a person by reference to their anticipated collection of a particular item did not sufficiently describe a particular person, and was therefore not authorised by subsection 219B(5). 

 

This Item proposes new subsections 219B(8A) to (8E) empowering a Judge or nominated AAT member to issue a warrant authorising the use of a listening device to listen to, or record words spoken by or to, any person while the person is in the vicinity of the item.  The new subsections replicate the elements of existing subsection 219B(7) and 219B(8).  The different drafting style employed as between the existing provisions and the new provisions is not intended to imply any difference in the application or use of the provisions, save to the extent of the inclusion of the requirement at paragraph 219B(8B)(c) that the Judge or AAT member be satisfied that some or all of the information sought to be obtained could not appropriately be obtained by using a listening device authorised to be used in respect of a particular person or premises.  This additional paragraph is intended to ensure that a warrant in respect of a particular item can only be granted where a warrant in relation to a particular person or premises could not be employed to the same effect.

 

This Item also proposes headings for the subsections of section 219B to assist with the interpretation and application of the provision.

 

Item 9

 

This Item amends section 219C consequential to the amendments to section 219B (see Item 8) empowering Judges and nominated AAT members to issue warrants authorising the use of listening devices in respect of a particular item.

 



Schedule 6 - Amendment of the Financial Transaction Reports Act 1988

 

The purpose of this Schedule is to amend the Financial Transaction Reports Act 1988 (the FTR Act) to:

 

·                to include persons who collect, hold, exchange, remit or transfer cash and non-cash funds on behalf of others (“underground bankers”) within the definition of cash dealer;

·                give the Western Australian Anti-Corruption Commission and the Queensland Crime Commission access to financial transaction reports information by deeming those agencies to be law enforcement agencies; and

·                provide that foreign intelligence information provided to AUSTRAC by a foreign country or agency of a foreign country is afforded the same secrecy and access regime under the FTR Act.

 

Item 1

 

This Item amends the definition of cash dealer in subsection 3(1) to provide that a real estate agent acting in the ordinary course of real estate business is not a cash dealer for the purposes of the FTR Act.  This will ensure that real estate agents who only collect rent and hold deposits in the form of currency will not be considered as remittance dealers within the cash dealer definition.  A real estate agent conducting other activities that come within the definition of a cash dealer will not be excluded from that definition.

 

Item 2

 

This Item amends subparagraph (k)(i) of the definition of cash dealer in subsection 3(1) by repealing subparagraph (k)(i) and proposing three new subparagraphs. 

Proposed subparagraph (k)(i) re-enacts existing subparagraph (k)(i) and provides that a cash dealer is a person (other than a financial institution) who carries on a business of collecting currency, and holding currency collected, on behalf of other persons.

Proposed subparagraph (k)(ia) provides that a cash dealer is a person (other than a financial institution) who carries on a business of exchanging one currency for another, or converting currency into prescribed commercial instruments, on behalf of other persons.  This will ensure that the definition of ‘cash dealer’ covers persons carrying on the business of exchanging currency, and converting currency into some other form of instrument of value.  (Item 3 proposes the definition for prescribed commercial instrument .)

 

Proposed subparagraph (k)(ib) provides that a cash dealer is a person (other than a financial institution) who carries on a business of remitting or transferring currency or prescribed commercial instruments into or out of Australia on behalf of other persons or arranging for such remittance or transfer.  This will ensure that the definition of ‘cash dealer’ covers so-called ‘underground bankers’, ie persons who collect funds on behalf of others and then remit those funds out of Australia. (Item 3 proposes the definition for prescribed commercial instrument .)

 

Item 3

 

This Item inserts a definition of prescribed commercial instrument into subsection 3(1) and provides that it will mean:

·              a cheque, bill of exchange, promissory note or other like instrument creating an entitlement to currency; or

·              any instrument (including an electronic instrument) that is declared to be a prescribed commercial instrument for the purposes of this definition

 

The definition basically provides that a prescribed commercial instrument is an instrument of value other than currency.  (The proposed expression is used in proposed subparagraphs (k)(ia) and (k)(ib) of the definition of cash dealer - see Item 2). 

 

Item 4

 

This Item inserts a new section 17J which provides that, for the purposes of the FTR Act, information concerning a specific financial transaction that is received by AUSTRAC as a result of a request to a foreign country or to an agency of a foreign country is taken to have been obtained under that Act.  This will ensure that information provided to AUSTRAC by foreign countries is given statutory recognition and afforded the same strict secrecy and access regime that applies to all other information received by AUSTRAC under the FTR Act.

 

Item 5

 

This Item inserts a new subsection 27(1A) which provides that the Director of AUSTRAC may only authorise the Queensland Crime Commission or the Anti-Corruption Commission of Western Australia to have access to Financial Transaction Reports information where those bodies undertake to comply with the information privacy principles set out in section 14 of the Privacy Act 1988 in respect of that information.

 

This will ensure that the Queensland Crime Commission and the Anti-Corruption Commission of Western Australia must comply with the same privacy requirements as Commonwealth agencies that have access to financial transaction reports information

 

Item 6

 

his Item adds two new paragraphs in subsection 27(16) to provide that the Queensland Crime Commission and the Anti-Corruption Commission of Western Australia are agencies that are deemed to be law enforcement agencies for the purpose of section 27.  This will enable those Commissions to have access to financial transaction reports information. 

 

Item 7

 

This Item adds four new paragraphs to subsection 27(17) to provide that:

·                the Queensland Crime Commissioner or an Assistant Queensland Crime Commissioner, and

·                a member of the staff of the Queensland Crime Commission and

·                a member, or a member of the staff, of the Anti-Corruption Commission of Western Australia

are law enforcement officers for the purpose of section 27. This will enable those officers to have access to Financial Transaction Reports information.

 

Item 8

 

This Item inserts a new subsection 27C(2A) to provide that for the purpose of monitoring the compliance of an approved cash carrier with the record-keeping obligations required by section 8, an authorised officer may inspect accessible records containing reportable details (within the meaning of section 8) of significant cash transactions to which the approved cash carrier is a party.  The authorised officer may also inspect any system used by the approved cash carrier for keeping such records.  This provision will enable AUSTRAC to monitor compliance of an approved cash carrier with record keeping obligations under the FTR Act.

 



Schedule 7 - Pardons, quashed convictions and spent convictions

 

Crimes Act 1914

 

Item 1

 

This Item repeals paragraph (e) of the definition of law enforcement agency in section 85ZL (which currently refers to the National Exchange of Police Information) and replaces it with a reference to the CrimTrac Agency.  This proposed amendment is consequential on assumption by CrimTrac of the responsibilities formally carried out by the National Exchange of Police Information.