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Crimes Legislation Enhancement Bill 2003

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2002

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

CRIMES LEGISLATION ENHANCEMENT BILL 2002

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice and

Customs, Senator the Honourable Chris Ellison)

 

 

CRIMES LEGISLATION ENHANCEMENT BILL 2002

 

OUTLINE

 

This Bill makes a number of minor and technical amendments to various Commonwealth criminal laws.  The amendments made by the Bill may be summarised as follows:

 

·                clarifying the rules about the taking of photographs and fingerprints by making it clear that both may be taken,

·                clarifying the consequences of a refusal to participate in an identification parade,

·                increasing the monetary threshold for when a court of summary jurisdiction may hear and determine proceedings in respect of an indictable Commonwealth offence where the offence relates to property,

·                inserting a provision to allow a court of summary jurisdiction to hear and determine an indictable offence if it is not punishable by imprisonment and the pecuniary penalty for the offence is below a certain level,

·                amending the requirements for authentication of testimony received from a foreign country by removing outdated requirements for seals,

·                augmenting the assistance given to international war crimes tribunals including allowing the use of video links,

·                making minor technical amendments to the Crimes Act 1914 , Australian Federal Police Act 1979 and the Mutual Assistance in Business Regulations

Act 1992
, and

·                correcting misdescribed amendments. 

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from this Bill.

 





NOTES ON CLAUSES

 

Item 1 Short Title

The short title of this Act is the Crimes Legislation Enhancement Bill 2002 .

Item 2 Commencement

 

This Item deals with commencement and sets out the commencement dates in a table.

 

Items 8 and 9 of Schedule 1 of the Act correct grammatical errors and are taken to have commenced on the same date as the original amendments. 

 

Items 1, 5, 6, 14 and 17 of Schedule 2 of the Act correct misdescribed amendments and are taken to have commenced on the same date as the original amendments. 

 

Items 5, 6, 15-35 and 41 of Schedule 3 of the Act correct misdescriptions of Part numbering in the Crimes Act 1914 and are taken to have commenced on the same date as the original amendments. 

 

The backdating of these amendments is reasonable because they relate to drafting corrections.  They are therefore within the scope of what the Parliament has accepted is appropriate on previous occasions.  

 

The remainder of the Items commence on the day on which this Act receives the Royal Assent.

Item 3 Schedules

 

This Item explains that the items set out in the Schedules amend the Acts specified and that the other items in the Schedules have effect according to their terms. 

SCHEDULE 1 - AMENDMENT OF THE CRIMES ACT 1914

 

Part 1 - Taking offenders’ fingerprints and photographs

 

The purpose of this Part is to make two minor amendments to section 3ZL of the Crimes Act 1914 to clarify and facilitate the operation of the provision in relation to taking fingerprints from and photographs of a person convicted of an offence.

 

Item 1

 

This Item clarifies that an order by a judge or magistrate under subsection 3ZL(1) may be made in relation to both taking a convicted person’s fingerprints and photograph.  That is, that the provision is not limited to an order in relation to the taking of fingerprints or photographs.

 



 

Item 2

 

This Item inserts new subsection 3ZL(3A) to provide that the judge or magistrate may make any additional orders that are reasonably necessary (for example, that the convicted person attend at a police station at a specified time) to ensure that the fingerprints and/or photographs of the convicted person are taken in accordance with the order given under subsection 3ZL(1). 

 

This Item also inserts new subsection 3ZL(3B) to provide that it is an offence for a person to intentionally contravene an order made under proposed subsection 3ZL(3A).  The new subsections 3ZL(3B) and (3C) have been drafted in accordance with the Criminal Code .  The maximum penalty for contravening subsection 3ZL(3B) is imprisonment for 12 months.

 

Part 2 - Identification parades

 

Section 3ZM governs the conduct of identification parades.  Subsection 3ZM(3) imposes an obligation on police officers to inform a suspect of certain prescribed matters prior to his or her participation in an identification parade.  The purpose of subsection 3ZM(3) is to ensure that a suspect has the opportunity to make an informed decision whether or not to participate in a parade.

 

The purpose of this Part is to clarify a misleading provision so that a suspect is informed how evidence of refusing to take part in an identification parade may be used in later proceedings.    

 

Item 3

 

This Item repeals paragraph 3ZM(3)(b) and inserts two new subparagraphs.

 

The first subparagraph clarifies what a suspect is told about the use that may be made of evidence of a refusal to take part in an identification parade.  As currently drafted, the information provided may lead the suspect to believe that evidence of a refusal, without reasonable excuse, may be used in subsequent criminal proceedings as evidence of the suspect’s guilt.  That is not the case. The proposed provision provides that the suspect is to be informed that evidence of refusal may be admissible in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held. 

 

This reflects the common law position (which is preserved in this respect by subsection 3ZM(7)) that evidence of a refusal to participate in an identification parade is not admissible to establish a defendant’s guilt.  As this rule exists irrespective of whether the suspect did or did not have a reasonable excuse for refusing to participate in the identification parade, the proposed provision also removes the reference to refusing “without reasonable excuse”.  That is, whether or not a suspect has a reasonable excuse for refusing to take part in the identification parade is irrelevant to the use that may later be made of that refusal.

 

The second proposed subparagraph maintains the current provision for informing the suspect that any evidence of identification that results from having seen a photograph or of having seen the suspect otherwise than during an identification parade may be admissible in later proceedings.

 

Part 3 - Dealing summarily with some indictable offences

 

The purpose of this Part is to extend the class of indictable offences that may be dealt with summarily.

 

Item 4

 

This Item amends subsection 4J(4) to increase the threshold for when a court of summary jurisdiction may hear and determine proceedings in respect of an indictable Commonwealth offence if the offence relates to property with a value of $500.  The Item increases the threshold to $5,000.

 

The monetary threshold under subsection 4J(4) has not been changed since section 4J was inserted into the Crimes Act 1914 in 1987.  The amendment will ensure that the monetary threshold is appropriate to current economic circumstances.  The amendment will also allow more offences to be dealt with in local courts, which employ speedier procedures, consistent with the Government’s broader efforts to ensure a more efficient criminal trial process.

 

Item 5

 

This Item provides that the amendments proposed by Item 4 only apply to indictable offences committed after this Act receives the Royal Assent.

 

Item 6

 

This Item inserts a proposed section 4JA to increase the circumstances in which certain indictable offences may be dealt with summarily.  Section 4J of the Crimes Act 1914 makes provision for the summary disposition of indictable offences where the offence is one punishable by imprisonment for a period not exceeding ten years.  However, there is no like provision for the summary disposition of offences that carry a pecuniary penalty only, no matter how small the penalty.

 

This is ameliorated to a large extent if the particular statute imposing the pecuniary penalty for an offence expressly makes provision for the offence to be dealt with summarily, and many (but not all) Commonwealth statutes containing indictable offences make such provision.  However, in the absence of such provision, the offence must be tried by indictment.

 

The proposed amendment, which is modelled on section 4J, will enable a court of summary jurisdiction to hear and determine indictable offences that are not punishable by imprisonment, but where the pecuniary penalty is not more that 600 penalty units (for an individual) and 3,000 (for a body corporate) and the defendant and prosecution consent.

 

The proposed provision will also provide two levels of pecuniary penalty that a court of summary jurisdiction may impose depending on the penalty set for the offence.  For offences where the maximum pecuniary penalty is 300 penalty units (for an individual) or 1,500 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 60 penalty units (for an individual) or 300 penalty units (for a body corporate). 

 

Where the maximum pecuniary penalty is 600 penalty units (for an individual) or 3,000 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 120 or 600 penalty units respectively.  The court of summary jurisdiction may not impose a pecuniary penalty higher than that which could have been imposed had the matter been prosecuted on indictment.

 

However, the proposed provisions will not apply if there is a contrary intention in the law creating the offence.  They will also not apply to indictable offences created by a law that already enables the matter to be determined summarily or to offences dealing with property valued at $5,000 or less (as these are addressed by subsection 4J(4)).

 

Item 7

 

This Item provides that the amendment proposed by Item 6 applies to proceedings instituted after this Act receives the Royal Assent, irrespective of when the offence was committed.

 

Part 4 - Technical corrections of sentencing and parole provisions

 

Item 8

 

This Item corrects a grammatical error in the Crimes Act 1914 by replacing a semicolon with a colon in paragraph 16A(2)(f). 

 

Item 9

 

This Item corrects a grammatical error in the Crimes Act 1914 by inserting a comma in paragraph 19AS(1)(b). 

SCHEDULE 2 - AMENDMENT OF OTHER ACTS

 

Australian Federal Police Act 1979

 

Item 1

 

This Item proposes a technical amendment to subsection 8(1) of the Australian Federal Police Act 1979 to remove a reference to subsection (2C) which has been repealed.  

 



 

Crimes at Sea Act 2000

 

Items 2 and 3

 

These Items correct a reference t o the “law in force in the Northern Territory” in subsections 6A(1) and 6A(7) of the Crimes at Sea Act 2000 by replacing it with a reference to a “law of the Northern Territory”.   The amendment will make it clear t hat the application of Northern Territory criminal laws in the adjacent territorial sea area does not include Commonwealth criminal laws in force in the Territory.  The question of whether those Commonwealth criminal laws applied would then depend purely on the terms of those Commonwealth laws, as originally intended. 

 

Item 4

 

This Item provides that the amendments proposed by Items 2 and 3 apply in relation to conduct engaged in after this Act receives the Royal Assent.

 

Crimes Legislation Amendment Act (No.2) 1989

 

Item 5

 

This Item corrects a misdescribed amendment of section 19B of the Crimes Act 1914 by substituting “the law” for “a law” in paragraph 10(a) of the Crimes Legislation Amendment Act (No.2) 1989

 

Item 6

 

This Item corrects a misdescribed amendment of section 21B of the Crimes Act 1914 by substituting “a law” for “the law” in paragraph 17(a) of the Crimes Legislation Amendment Act (No.2) 1989 .

 

Foreign Evidence Act 1994

 

Item 7

 

This Item amends subsection 22(2) of the Foreign Evidence Act 1994 (FEA) to remove a provision that requires foreign material to bear an official or public seal of the foreign country or of a Minister or official of the country, in order for it to be adduced as evidence in criminal and related civil proceedings.  The requirement was originally included as a means of confirmation that the evidence was obtained through appropriate official channels.  A number of countries have indicated that they have difficulties in meeting this requirement.  It is considered that the requirement is unnecessary as s ection 26 of the FEA makes provision for the Attorney-General (or an authorised officer) to certify that specified foreign material was obtained as a result of a request made to a foreign country by or on behalf of the Attorney-General.   This provision implicitly requires the issuing officer to be satisfied that the foreign evidence has been received through official channels.



 

International War Crimes Tribunals Act 1995

 

Items 8 to 13 consist of technical amendments to the mutual assistance in criminal matters provisions of the International War Crimes Tribunals Act 1995 (IWCT Act) . These provisions generally reflect similar provisions contained in the Mutual Assistance in Criminal Matters Act 1987 (MA Act).  The purpose of the amendments is to ensure consistency with amendments made to the MA Act in 1996.    

 

Item 8

 

This Item will amend section 4 of the IWCT Act by repealing the definition of ‘possession’.  The definition is relevant to provisions in the IWCT Act regarding the search for, and seizure of, things within a person’s ‘possession’.  It is currently expressed to extend to things within a person’s control, although such things are not necessarily within the person’s actual possession or custody.  The definition is removed in order to avoid the unintended result that the issue of a search warrant in relation to a specified person could enable the search of premises for any things within that person’s ‘control’.  In such circumstances, the authorities will be required to apply for the issue of a separate warrant for search of premises pursuant to subsection 47(1) of the IWCT Act.  The ordinary accepted meaning of the term ‘possession’ is more appropriate for the purposes of defining the scope of the search and seizure powers under the IWCT Act.

 

Item 9

 

This Item amends amend section 29 of the IWCT Act by inserting new subsections (3) and (4).  The new provisions apply to a magistrate conducting proceedings under section 27 or 28 of the IWCT Act - that is, proceedings designed to comply with a request from a War Crimes Tribunal for evidence to be taken in Australia for the purpose of a proceeding or investigation being conducted by that Tribunal. The provisions provide for the person giving evidence or producing documents before the magistrate to be examined or cross-examined by the person to whom the Tribunal proceeding or investigation relates, that person’s legal representative or the Tribunal’s legal representative, by means of video link.

 

Item 10

 

This Item amends subparagraph 66(2)(b)(i) of the IWCT Act to change the conditions precedent to the use of force by police officers when making an arrest under the Act.  Presently, paragraph 66(2)(b) provides that a police officer shall not do anything that is likely to cause the death of, or grievous bodily harm to, the person being arrested unless (i) the officer believes on reasonable grounds that doing that thing is necessary to protect another life or to prevent serious injury to another person (including the police officer), and (ii) the person being arrested has, if practicable, been called upon to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other manner. 

 

The proposed amendment will replace the word ‘and’, which presently links subparagraphs (i) and (ii), with the word ‘or’.  Thus, the two conditions will operate as alternative, rather than conjunctive, conditions.  This will remove an unintentional restriction on the use of force in circumstances where such force is necessary to protect other lives or prevent serious injury to other persons.

 

Item 11

 

This Item provides that the amendment proposed by Item 10 only applies to action taken in the course of arresting a person after the commencement of Item 10, regardless of whether the arrest is made under a warrant issued before or after that commencement.

 

Item 12

 

This Item will amend section 80 of the IWCT Act by adding a reference to section 47C of the Crimes Act 1914 to the provisions of the Crimes Act which are currently referred to in section 80 of the IWCT Act.  Section 80 presently provides that sections 46, 47A, and 48 of the Crimes Act (other than certain stipulated paragraphs) apply as if references in those sections to custody and arrest in relation to an offence against a law of the Commonwealth were references to custody and arrest pursuant to the IWCT Act. 

 

The proposed amendment will add section 47C to this list.  Section 47C provides that a person, charged with the custody or detention of another person in respect of any offence against a law of the Commonwealth, is guilty of an offence if he or she intentionally or negligently permits that person to escape.  This amendment will mean that section 47C will also apply to the situation where a person is in custody for the purposes of the IWCT Act.

 

Item 13

 

This Item provides that the amendment proposed by Item 12 only applies in relation to the escape of a person after the commencement of Item 12, regardless of whether the person was in custody prior to that commencement or was arrested before that commencement.

 

Law and Justice Legislation Amendment Act (No.2) 1994

 

Item 14

 

This Item corrects a misdescribed amendment of section 3ZN of the Crimes Act 1914 which was made by Item 7 of Schedule 1 of the Law and Justice Legislation Amendment Act (No. 2) 1994.   That amendment purported to omit a reference to “court” in subsection 3ZN(2), subparagraph 3ZN(3)(d)(ii) and subsection

3ZN(4) and to substitute a reference to "magistrate".  The amendment failed to state “wherever occurring” and this proposed amendment corrects that error.



 

Mutual Assistance in Business Regulation Act 1992

 

The objective of Items 15 and 16 is to remove restrictions on the Attorney-General’s power of delegation in the Mutual Assistance in Business Regulation Act 1992 (MABR Act).

 

Item 15

 

This Item will amend subsection 22(1) of the MABR Act (the provision allowing the Attorney-General to delegate his powers under the Act) to allow the Attorney-General to delegate any of all of his powers to the Secretary of the Attorney-General’s Department or an APS employee.  Presently, such powers can only be delegated to certain designated officers. 

 

Item 16

 

This Item will remove the current requirement that if the delegate considers that, for reasons of national security, a request for assistance from a foreign government should be refused, the delegate must refer the matter to the Attorney-General who must deal with it personally.  This formal limitation on the delegation provision is not considered necessary.  In practice, the more routine MABR Act requests will be dealt with by the Attorney-General’s delegates but more sensitive requests will be referred to the Attorney-General for personal consideration.

 

Retirement Savings Accounts (Consequential Amendments) Act 1997

 

Item 17

 

This Item corrects a misdescribed amendment of section 18 of the Financial Transaction Reports Act 1988 by inserting “(first occurring)” after “the account” in Item 4 of Schedule 19 of the Retirement Savings Accounts (Consequential Amendments) Act 1997

SCHEDULE 3 - TECHNICAL CORRECTIONS RELATING TO PART NUMBERING IN THE CRIMES ACT 1914

 

The objective of the Items in Schedule 3 is to make minor technical amendments to replace Parts of the Crimes Act 1914 expressed in Arabic numerals with Parts expressed in Roman numerals.  That corrects erroneous cross-references in the Crimes Act 1914 and other Commonwealth criminal laws and is consistent with the drafting policy of the Office of Parliamentary Counsel to express Parts in the Crimes Act 1914 in Roman numerals.

 

 

 

 

 

 

Part 1 - Corrections relating to Part 1AA of the Crimes Act 1914

 

Commonwealth Places (Application of Laws) Act 1970

 

Item 1

 

This Item replaces “Part 1AA”, which contains an Arabic numeral, with “Part IAA”, which contains a Roman numeral.

 

Crimes Act 1914

 

Items 2 to 4

 

These Items replace occurrences of  “Part 1AA”, which contains an Arabic numeral, with “Part IAA”, which contains a Roman numeral. 

 

Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994

 

Item 5

 

This Item corrects a misdescribed amendment of the Crimes Act 1914 by replacing “Part 1” with “Part I” in section 4 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994

 

Part 2 - Corrections relating to Part 1A of the Crimes Act 1914

 

Crimes Amendment (Controlled Operations) Act 1996

 

Item 6

 

This Item corrects a misdescribed amendment of the Crimes Act 1914 by correcting an incorrect heading (ie. Part 1A) in the Crimes Amendment (Controlled Operations) Act 1996

 

Part 3 - Corrections relating to Part 1B of the Crimes Act 1914

 

Commonwealth Places (Application of Laws) Act 1970

 

Item 7

 

This Item replaces “Part 1B”, which contains an Arabic numeral, with “Part IB”, which contains a Roman numeral.

 

 

 

 

Crimes Act 1914

 

Items 8 to 13

 

These Items replace occurrences of “Part 1B”, which contains an Arabic numeral, with “Part IB”, which contains a Roman numeral.

 

Migration Act 1958

 

Item 14

 

This Item replaces “Part 1B”, which contains an Arabic numeral, with “Part IB”, which contains a Roman numeral.

 

Part 4 - Corrections relating to Part IC of the Crimes Act 1914

 

Commonwealth Places (Application of Law) Act 1970

 

Item 15

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Crimes Act 1914

 

Items 16-29

 

These Items replace occurrences of “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Customs Act 1901

 

Item 30

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Environment Protection and Biodiversity Conservation Act 1999

 

Items 31 and 32

 

These Items replace occurrences of “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

 

 

 

 

 

Excise Act 1901

 

Item 33

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Export Control Act 1982

 

Item 34

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Quarantine Act 1908

 

Item 35

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.

 

Part 5 - Corrections relating to Part 1D of the Crimes Act 1914

 

Commonwealth Places (Application of Laws) Act 1970

 

Item 36

 

This Item replaces “Part 1D”, which contains an Arabic numeral, with “Part ID”, which contains a Roman numeral.

 

Crimes Act 1914

 

Items 37 to 40

 

These Items replace occurrences of “Part 1D”, which contains an Arabic numeral, with “Part ID”, which contains a Roman numeral. 

 

Crimes Amendment (Forensic Procedures) Act 1998

 

Item 41

 

This Item replaces “Part 1C”, which contains an Arabic numeral, with “Part IC”, which contains a Roman numeral.  This corrects amendments to Part 1D of the Crimes Act 1914 introduced by Schedule 1 of the Crimes Amendment (Forensic Procedures) Act 1998 , which contains an outdated reference to “Part IC” of the Crimes Act 1914 .  This amendment corrects that outdated reference.

 

 

 

Part 6 - Saving provision

 

Item 42

 

Item 42 is a saving provision that is intended to ensure that the amendments made by the Act do not invalidate instruments made under, or referring to, a Part heading of the Crimes Act 1914 that is amended by the Act, and anything done under such an instrument or such a Part.  That will apply whether the instrument was made, or the thing was done, before or after this Act receives the Royal Assent.