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Australian Federal Police and Other Legislation Amendment Bill 2004

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2002-2003

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION

AMENDMENT BILL 2003

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Minister for Justice and Customs,

Senator the Honourable Chris Ellison)



AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION AMENDMENT BILL 2003

GENERAL OUTLINE

The purpose of the Australian Federal Police and Other Legislation Amendment Bill 2003 is to complete the integration of the Australian Protective Service into the Australian Federal Police.

The Australian Protective Service was established by the Australian Protective Service Act 1987 (the APS Act) and is the pre-eminent provider of protective security services for and on behalf of the Commonwealth.  Following the Cornall Review in 2001, the Government determined that the Australian Protective Service (the APS) should transfer from the Attorney-General's Department and become an operating division of the Australian Federal Police (the AFP).

Stage one of this transfer occurred on 1 July 2002 and was quite limited.  The APS became an operating division of the AFP, and legal and financial responsibility for the APS was transferred from the Attorney-General's Department to the AFP.  However, the employment framework of the APS was left intact.

The APS and the AFP currently operate under separate legislative and employment arrangements.  The Australian Federal Police Act 1979 (the AFP Act) sets out the functions of the AFP, and the powers and duties of the members and special members.  Part III of the AFP Act covers the terms and conditions of employment of AFP employees.  The APS Act sets out the functions of the APS, and the powers and duties of protective service officers and special protective service officers.  Furthermore, APS employees are Public Service employees within the meaning of the Public Service Act 1999 (the PS Act).

The Bill will complete the transfer by creating a new category of employee (that is, protective service officer) in the AFP Act.  It will also include in the AFP Act the protective service function as a function of the AFP and the powers and duties of protective service officers and special protective service officers.  The APS Act will be repealed.

Within the employment framework for the APS, protective service officers are covered by an Award made under section 170MX of the Workplace Relations Act 1996 (the 170MX Award) and administrative employees (such as station managers) are covered by Australian Workplace Agreements (AWAs).

The integration of all APS employees into the AFP will be effected by section 72 of the Public Service Act 1999 (the PS Act) , which provides that the Public Service Commissioner may determine that Public Service employees cease to be Public Service employees, and become employees of a specified Commonwealth authority.  The determination must be made in writing, and the Public Service Commissioner must be satisfied that it is necessary or desirable in order to give effect to an administrative re-arrangement.

The transfer will result in some industrial instruments ceasing to apply, as the APS employees will no longer be public service employees.  Australian Workplace Agreements will continue to have effect, as there is no change to the Commonwealth as the employer.

S ubsection 72(3) of the PS Act provides that employees transferred under section 72 are entitled to remuneration and other conditions of employment no less favourable than those which applied under certain types of instruments immediately before the transfer.   The nature of some of the industrial instruments existing within the APS workplace means that this obligation will not apply to all employees.  However, as a matter of policy the ‘no less favourable’ test will be implemented in relation to all APS employees transferring to the AFP.  To cover the industrial instruments that will not be transferred, the AFP Commissioner will make a determination under subsection 24(1) of the PS Act, prior to the actual date of transfer.  This will have the effect of those conditions being recognised under subsection 72(3) of the PS Act.

Protective service officers currently carry out functions and exercise powers under a range of other Commonwealth Acts.  The Bill also makes consequential amendments to those Acts to ensure protective service officers can continue to carry out such functions and exercise such powers.

The Bill will also amend the AFP Act and the Crimes Act 1914 to enable the AFP to investigate State offences with a federal aspect.  These amendments implement a recommendation of the Standing Committee of Attorneys-General and Australasian Police Ministers’ Council Joint Working Group.

FINANCIAL IMPACT

There is no direct financial impact on Government revenue from this Bill.

 



NOTES ON CLAUSES

Clause 1  Short Title

This is a formal clause which provides for the Act, when it is enacted, to be cited as the Australian Federal Police and Other Legislation Amendment Act 2003 .

Clause 2  Commencement

This clause provides for the commencement of the Act.

Subclause 2(1) provides that each provision of this Act specified in column 1 of the table in that subclause commences or is taken to have commenced on the day or at the time specified in column 2 of the table.

Item 1 of the table provides that sections 1 to 4 and anything in this Act not elsewhere covered by this table commence on the day on which this Act receives the Royal Assent.

Item 2 of the table provides that items 1 to 7 of Schedule 1 commence on a single day to be fixed by Proclamation.  However, if any of those provisions do not commence within the period of 6 months of the Act receiving the Royal Assent, they commence on the first day after the end of that period.

Item 3 of the table provides that item 8 of Schedule 1 will commence on the later of:

·          immediately after the commencement of items 1 to 7 of Schedule 1, and

·          the day Schedule 1 to the Non-Proliferation Legislation Amendment Act 2003 commences.

Item 8 amends subparagraph (a)(v) of the definition of protective service offence, which is to be inserted in subsection 4(1) of the Australian Federal Police Act 1979 (AFP Act) by item 7.  The Non-Proliferation Legislation Amendment Bill 2003 is currently before the Parliament.

Item 4 of the table provides that item 9 of Schedule 1 will commence on the later of:

·          immediately after the commencement of items 1 to 7 of Schedule 1, and

·          the day section 3 of the Aviation Transport Security Act 2003 commences.

Item 9 inserts subparagraph (a)(va) after subparagraph (a)(v) of the definition of protective service offence, which is to be inserted in subsection 4(1) of the AFP Act by item 7.  Subparagraph (a)(va) will be inserted in section 13 of the Australian Protective Service Act 1987 (APS Act) by the Aviation Transport Security (Consequential Amendments and Transitional Provisions) Bill 2003, which is currently before Parliament.  That amendment will commence at the same time as section 3 of the Aviation Transport Security Bill 2003, which is also currently before Parliament .

Item 5 of the table provides that items 10 to 60 of Schedule 1 commence at the same time as the provisions covered by table item 2.  Items 10 to 60 of Schedule 1 amend the AFP Act to complete the transfer of APS employees to the AFP.

Item 6 of the table provides that item 1 of Schedule 2 will commence at the same time as the provisions in table item 2.  However, the item will not commence at all if the provisions covered by table item 2 commence after the commencement of section 3 of the Aviation Transport Security Act 2003.  Item 1 of Schedule 2 will amend the definition of “protective service officer” in the Air Navigation Act 1920 to reflect that the term will be defined in the AFP Act.  That definition in the Air Navigation Act will also be amended by the Aviation Transport Security Bill 2003, which is currently before the Parliament.

Item 7 of the table provides that item 2 of Schedule 2 will commence at the same time as the provisions in table item 2.  Item 2 of Schedule 2 will repeal the whole of the APS Act.

Item 8 of the table provides that item 3 of Schedule 2 will commence on the later of:

·          the time the provisions in table item 2 commence, and

·          immediately after the commencement of section 3 of the Aviation Transport Security Act 2003.

Item 3 of Schedule 2 will amend the definition of “protective service officer” in the Aviation Transport Security Act 2003 to reflect that the term will be defined in the AFP Act.  The Aviation Transport Security Bill 2003 (ATS Bill) is currently before the Parliament.  The ATS Bill will maintain and improve civil aviation security and confer relatively extensive powers on “law enforcement officers”.  Protective service officers and AFP members (together with members of the police force of a state or territory) will be law enforcement officers for the purpose of maintaining security in the civil aviation environment.

Item 9 of the table provides that items 4 to7 of Schedule 2 will commence at the same time as the provisions covered by table item 2.  Item 4 of Schedule 2 will amend the definition of “AFP appointee” in the Complaints (Australian Federal Police) Act 1981 to insert reference to special protective service officers.  Items 5 to 7 of Schedule 2 will amend the definition of “protective service officer” in the Crimes Act 1914, the Crimes (Aviation) Act 1991, and the Customs Act 1901 to reflect that the term will be defined in the AFP Act.

Item 10 of the table provides that item 8 of Schedule 2 will commence on the later of:

·          the day on which this Act receives the Royal Assent, and

·          immediately after the commencement of section 3 of the Legislative Instruments Act 2003.

Item 8 of Schedule 2 will repeal item 3 of the table in subsection 7(1) of the Legislative Instruments Act 2003.  Subsection 7(1) of the Legislative Instruments Act 2003 will list instruments that are declared not to be legislative instruments for the purposes of that Act.  Item 3 of that table excludes General Orders made under section 12 of the APS Act, which will be repealed by item 2 of Schedule 2.  The Legislative Instruments Bill 2003 is currently before the Parliament.

Item 11 of the table provides that items 9 to 11 of Schedule 2 will commence at the same time as the provisions covered by table item 2.  Items 9 to 11 of Schedule 2 will amend the definition of “protective service officer” in the Migration Act 1958 and the Parliamentary Precincts Act 1988 to reflect that the term will be defined in the AFP Act.

Item 12 of the table provides that item 12 of Schedule 2 will commence on the later of:

·          the time the provisions covered by table item 2 commence, and

·          immediately after the commencement of section 1 of the Customs Legislation Amendment Act (No 2) 2002.

Item 12 of Schedule 2 will amend the Passenger Movement Charge Collection Act 1978 by inserting paragragh 5(n) to reflect that the term “protective service officer” is defined in the AFP Act.

Item 13 of the table provides that item 13 of Schedule 2 will commence at the same time as the provisions covered by table item 2.  Item 13 of Schedule 2 will amend the definition of “protective service officer” in the Public Order (Protection of Persons and Property) Act 1971 to reflect that the term will be defined in the AFP Act.

Item 14 of the table provides that Schedule 3 will commence on the day after the end of the period of 6 months beginning on the day on which this Act receives the Royal Assent.

Subclause 2(2) provides that column 3 of the table in the subclause is for additional information that is not part of this Act, and that such additional information may be included in any published version of this Act.

Clause 3  Schedule(s)

This clause is the formal enabling provision for the Bill.  It provides that each Act specified in a Schedule is amended in accordance with the applicable items of the Schedule.  Schedules 1 and 3 of this Bill amend the Australian Federal Police Act 1979.   Schedule 2 makes consequential amendments to the Air Navigation Act 1920, the Aviation Transport Security Act 2003, the Complaints (Australian Federal Police) Act 1981, the Crimes Act 1914, the Crimes (Aviation) Act 1991, the Customs Act 1901, the Legislative Instruments Act 2003, the Migration Act 1958, the Parliamentary Precincts Act 1988, the Passenger Movement Charge Collection Act 1978, and the Public Order (Protection of Persons and Property) Act 1971.   Schedule 2 also repeals the Australian Protective Service Act 1987 .   Schedule 3 also amends the Crimes Act 1914.

The clause also provides that any other item in a Schedule has effect according to its terms.  This is a standard enabling clause for transitional, savings and application items in amending legislation.

Clause 4  Transitional and application

Clause 4 is a transitional and application provision.  Subclause 4(1) will deem each Australian Protective Service transferee (APS transferees) to have been engaged under section 24 of the AFP Act.  This is to avoid any uncertainty in the future about the engagement of APS transferees as Australian Federal Police employees.

Subclause 4(2) will deem each transferred protective service officer to have been declared a protective service officer under new section 40EA of the amended AFP Act.

Subclause 4(3) makes it unnecessary for transferred protective service officers to enter into an undertaking under paragraph 36(4A)(a) of the amended AFP Act.

Subclause 4(4) will deem transferred protective service officers, who have made and subscribed an oath or affirmation under section 10 of the APS Act, to have satisfied the requirement to make and subscribe an oath or affirmation under paragraph 36(4A)(b) of the amended AFP Act.

Subclause 4(5) includes definitions of AFP employee , amended AFP Act , APS transferee , transferred PSO and transfer time for the purposes of Clause 4.



Schedule 1 - Amendment of the Australian Federal Police Act  1979

Schedule 1 contains clauses that will amend the AFP Act to insert references to “protective service officer” and “special protective service officer” where such references are required, and incorporate in the AFP Act various provisions from the APS Act, including the functions of the APS and existing powers and duties of protective service officers.

Item 1

This item incorporates the APS Act concept of special protective service officer into the AFP Act by omitting “and special members” and substituting “, special members and special protective service officers” in subsection 3A(1) of the AFP Act.  Section 3A provides an overview of the AFP Act.

Item 2

This item will insert proposed subsections (5A) and (5B) in section 3A of the AFP Act.  Proposed subsection (5A) provides that under Division 3A of Part IV of the AFP Act, the AFP Commissioner may declare AFP employees to be protective service officers.  Proposed subsection 5A also highlights that Divisions 3 and 4 of Part II of the AFP Act deal with the powers of protective service officers.

Proposed subsection (5B) provides that under Division 3B of Part IV of the AFP Act, the AFP Commissioner may appoint persons as special protective service officers to assist in performing protective service functions.

Item 3

This item will insert a new paragraph in subsection 3A(7) of the AFP Act.  Proposed paragraph 3A(7)(aa) provides that the AFP Act also deals with the powers of protective service officers and certain other powers relating to protective service functions.

Items 4, 5, 6, 7, 8, 9, 10 and 11

These items amend subsection 4(1) of the AFP Act by inserting new definitions of frisk search, ordinary search, protective service functions, protective service offence, protective service officer and special protective service officer.

The definitions of frisk search and ordinary search are inserted to assist with interpretation of the powers in item 27 of the Bill.  The terms have the same meaning as those used in section 3C of the Crimes Act 1914.

The definition protective service offence reflects those offences contained in subsection 13(2) of the APS Act.

Protective service functions are those protective and custodial functions directed to be protective service functions by the Minister under new section 8A (item 15).

The term protective service officer will mean an AFP employee who has been declared to be a protective service officer under new section 40EA (item 36).

The term special protective service officer will mean a person appointed under new section 40ED (item 36).

Items 12 to 26

These items insert and amend various provisions in Division 1 of Part II of the AFP Act, which provides for the constitution, functions and powers of the AFP.

Item 12 will repeal the heading to Division 1 of Part II of the AFP Act and substitute a new heading.

Item 13 will add special protective service officers as a category of employee within the AFP.

Items 14 and 15 will provide for protective and custodial functions to be performed by the AFP.  Item 15 will insert proposed section 8A in the AFP Act.  This will allow the Minister to direct the AFP, by notice in writing in the Gazette, to perform certain protective and custodial functions as protective service functions.  Protective and custodial functions will be functions that relate to a person, matter or thing with respect to which the Parliament of the Commonwealth has legislative power (proposed paragraph 8(1)(be) - item 14).  The Minister currently directs the functions of the APS under subsection 6(1) of the APS Act.  Constitutional power is the fundamental limitation upon the provision of the protective services.  Proposed section 8A maintains the status quo.

Items 16 to 26 propose amendments to section 12A of the AFP Act to include the APS Explosive Detection Canines (EDC dogs) within the coverage of section 12A.  Section 12A of the AFP Act provides immunity from State and Territory laws for police dogs when on premises with their police dog handlers.  EDC dogs and their handlers will also transfer to the AFP and will become a resource the AFP Commissioner can utilise in operations, particularly counter-terrorism operations.  Items 16 and 18 will repeal the term “police dog” and substitute the more inclusive term “AFP dog”, which will encompass the EDC dogs.  Items 17 and 19 will repeal the term “police dog handler” and substitute the more inclusive term “AFP dog handler”, which will encompass EDC dog handlers. 

The amendments will ensure that EDC dogs and their handlers have the same immunity as police dogs and police dog handlers.

Item 27

This item will insert new Division 3 and new Division 4 at the end of Part II of the AFP Act.  The purpose of Division 3 is to include in the AFP Act the powers and duties of protective service officers when they are carrying out their protective service functions under that Act.  Division 4 will provide for the powers and duties of members, special members and designated persons (see proposed section 14H) relating to protective service functions.  The powers and duties inserted in the AFP Act by this item are contained in the Australian Protective Service Amendment Bill 2003, which was recently passed by the Parliament.

Division 3 - Powers and duties of protective service officers

Proposed Division 3 will deal with the powers and duties of protective service officers.  Proposed section 14A contains a power to arrest in certain circumstances.  Proposed section 14B contains a limit on the use of force to affect an arrest under section 14A.  Proposed section 14C provides for an arrested person to be informed of the grounds of their arrest.  Proposed section 14D contains a power to search an arrested person and also provides for the seizure of weapons or dangerous things found in the course of such search.  Proposed sections 14E and 14F deal with how an arrested person must be dealt with and the release of an arrested person.  These provisions have remained substantially intact since the enactment of the APS Act in 1987.

Proposed section 14A

Proposed section 14A will allow a protective service officer to arrest a person without a warrant or consent.  The circumstances in which a protective service officer can exercise the power of arrest are limited to when the protective service officer believes on reasonable grounds that the person has just committed or is committing a protective service offence (proposed paragraph 14A(a)).  The protective service officer must also believe on reasonable grounds that the arrest of that person is necessary for the purpose of ensuring the person’s appearance in court for the offence, or preventing the continuation of the offence or commission of a further protective service offence, or preventing concealment or loss or destruction of evidence of or relating to the offence, or preserving the safety and welfare of the person, and further, that proceeding by way of summons would not achieve this purpose (proposed paragraphs 14A(b) and 14A(c)).

Proposed section 14B

Proposed subsection 14B(1) provides that a protective service officer must not use more force or subject a person to greater indignity than is reasonable and necessary to make an arrest.  Proposed subsection 14B(2) makes it clear that, in the course of arresting a person or preventing an arrested person from escaping from custody, a protective service officer must not do any act that is likely to harm the arrested person or cause the death of the arrested person, unless the officer believes on reasonable grounds that his or her act is necessary to protect the life of or prevent serious injury to the officer or any another person.  Proposed section 14B is comparable to section 3ZC of the Crimes Act 1914.

Proposed section 14C

Proposed subsection 14C(1) provides that a protective service officer must inform a person of the grounds of arrest at the time of the arrest.  Subsection 14C(1) will not apply in circumstances where the arrested person makes it impracticable for the protective service officer to inform the person of the offence (proposed subsection 14C(3)).

Proposed subsection 14C(2) will make it clear that it is sufficient for the protective service officer to inform the arrested person of the substance of the offence in plain words and language.  Proposed subsection 14C(4) provides that where an arrested person is not able to understand the substance of the offence due to an inadequate knowledge of the English language or any physical or mental disability, the protective service officer must take all reasonable steps to ensure the arrested person is provided with an explanation of the substance of the offence that the arrested person can understand.

Proposed section 14D

Proposed section 14D provides for a lawfully arrested person to be searched.  The protective service officer may conduct an ordinary or a frisk search.  The arrested person may be searched to locate either concealed weapons or things that are capable of being used to inflict bodily injury or assist the arrested person to escape from custody, or evidence of or relating to the protective service offence.  A search must be carried out by a protective service officer of the same sex as the person being searched (proposed subsection 14D(2)).

Where the protective service officer is not the same sex as the person to be searched, the protective service officer has three options.  He or she may request another protective service officer, or a member or special member (who is the same sex as the person to be searched) to conduct the search (paragraph 14D(2)(a)), or request a police officer or Customs officer (who is the same sex as the person to be searched and is reasonably available) to conduct the search (paragraph 14D(2)(b)), or request another person (who is the same sex as the person being searched) to conduct the search (proposed paragraph 14D(2)(c)).

Proposed subsection 14D(3) provides that persons conducting a search at the request of a protective service officer are protected from civil and criminal proceedings relating to the conduct of the search provided they comply with proposed subsection 14D(4).

Proposed subsection 14D(4) provides that a protective service officer or other person conducting a personal search must act in good faith and must not use more force or subject the person to greater indignity than is reasonable and necessary.

Proposed subsection 14D(5) will allow a protective service officer or other person who lawfully conducts a search under section 14D to seize any weapon or thing that may be capable of inflicting bodily injury, or anything the officer or other person reasonably believes may have been used to commit an offence or will provide evidence of the commission or an offence, or that was used or is intended to be used to commit an offence (proposed paragraphs 14D(5)(a) and 14D(5)(b)).

The proposed search and seizure provisions and the safeguards included are consistent with similar provisions in other Commonwealth legislation.  The provisions have been drafted to balance the need for appropriate security arrangements with personal rights and freedoms.



Proposed section 14E

Proposed subsection 14E(1) provides that a protective service officer must deliver an arrested person into the custody of a police officer as soon as practicable after the arrest.  In addition, any weapons or things seized from the arrested person must also be delivered into the custody of the police officer (proposed subsection 14E(2)).  Police officer for the purposes of this section includes a member or special member, or a member of a State or Territory or foreign police service (proposed subsection 14E(3)).

Proposed section 14F

Proposed section 14F provides for the release of an arrested person where a protective service officer who has custody of the arrested person ceases to have reasonable grounds to believe the person has committed or was committing a protective service offence, or ceases to have reasonable grounds to believe holding the person in custody is required in accordance with proposed paragraph 14A(b).

Proposed section 14G

Proposed section 14G outlines the relationship of powers conferred and duties imposed on protective service officers by sections 14A to 14F with the powers conferred and duties imposed by other laws.  It provides that the powers and duties are additional to any powers and duties of protective service officers under other Commonwealth law or the law of a State or Territory.  It also specifies that these powers and duties do not exclude or limit the operation of any other law of the Commonwealth or a State or Territory.  This will allow protective service officers to continue to carry out functions and exercise powers under a range of other Commonwealth legislation.

Division 4 - Powers and duties of members, special members and protective service officers relating to protective service functions

Proposed Division 4 will deal with the powers and duties of members, special members and protective service officers contained in the Australian Protective Service Amendment Bill 2003, which was recently passed by the Parliament.  Proposed section 14H contains definitions for the purposes of Division 4.  Proposed section 14I contains a power to ask for a person’s name, evidence of identification, address and reason for being in a particular place.  Proposed section 14J contains a power to stop, detain and search in certain circumstances.  Proposed section 14K contains a power to seize things found during a search conducted under section 14J.  Proposed sections 14L and 14M provide for how things must be dealt with after seizure action has been taken under section 14K. 

Proposed section 14H

Proposed section 14H contains definitions of designated person, police officer and vehicle.  The term designated person includes a member or special member or a protective service officer.  This term has been adopted to ensure the scope of the powers in this Division is clear.  The term police officer has the same meaning as that used in proposed subsection 14E(3).  Vehicle is defined broadly to include vessels and aircraft for the purposes of the search power in proposed section 14J.

Proposed section 14I

Proposed subsection 14I(1) provides for a designated person to ask a person for their name and evidence of their identity, their residential address and reason for being in a place or in the vicinity of a place, person or thing in respect of which the AFP is performing protective service functions.  This power can be used at locations where the AFP is providing protective security services.  Currently that would include airports, diplomatic and consular missions, and Commonwealth government buildings.

The circumstances in which a designated person can request this information are limited to when a designated person suspects on reasonable grounds that a person might have just committed, might be committing or might be about to commit a protective service offence.  Protective service offence will be defined in subsection 4(1) of the AFP Act (item 7).  The power is comparable to powers in other Commonwealth legislation which enable authorised officers to request information.  It will enable a designated person to intervene in a possible security threat to the Commonwealth’s interests at the earliest point in time.

Proposed subsection 14I(2) provides that, if a designated person makes a request under subsection 14I(1), the designated person must inform the person of the designated person’s authority to make such a request and that it may be an offence not to comply with the request.  Proposed subsection 14I(2) also provides that it is an offence to fail to comply with the request of a designated person or to give a false name or address, and provides for a penalty of 20 penalty units ($2,200).

A safeguard is provided in proposed subsection 14I(3), which provides for a reasonable excuse defence.  What is a reasonable excuse will depend not only on the circumstances of the individual case but also on the purpose of the provision to which the defence is an exception.  In the circumstances of this provision, a reasonable excuse may be that a person could not comply with a request because they were rushing through a secure area to catch their child who had broken away and was heading towards an open doorway.

In addition to the offence provision in proposed subsection 14I(2), existing offences in Commonwealth legislation may be relevant in circumstances where a person about whom a designated person is exercising a power under section 14I, section 14J or section 14K, uses force against the designated person.  An example would be section 149.1 of the Criminal Code, which creates an offence of obstruction, hindering or intimidating an official, including a designated person, in the execution of his or her functions (maximum penalty of imprisonment for 2 years).

Proposed section 14J

Proposed subsection 14J(1) provides the criteria necessary for exercising the stop and search power in subsection 14J(2).  Before the search power can be exercised, the designated person must have reasonable grounds to suspect that the person has a thing that is likely to cause or is likely to be used by the person or another person to cause substantial damage to a place or thing, or death or serious harm to a person, where the AFP is performing its protective service functions.  The power can only be exercised where the damage or serious harm is likely to involve the commission of a protective service offence.

Proposed subsection 14J(2) provides for a power to stop and detain a person for the purpose of searching that person, or a thing that person has in his or her possession or control (including a vehicle operated or occupied by that person), or a thing that person has brought onto premises at which the AFP is performing its protective service functions.  Proposed subsection 14J(2) also provides for a designated person to search the person for the thing, search any thing that is under the person’s immediate control, and to search a vehicle operated or occupied by the person.  The term vehicle is defined broadly for the purposes of the search power to ensure all modes of transport can be searched where the relevant criteria are satisfied (proposed subsection 14H).

The designated person may conduct an ordinary search or a frisk search.  A search must be carried out by a designated person of the same sex as the person being searched.  Where the designated person is not the same sex as the person to be searched, the designated person has three options.  He or she may request another designated person (who is the same sex as the person to be searched) to conduct the search (paragraph 14J(3)(a)), or request a police officer or a Customs officer (who is the same sex as the person to be searched and who is reasonably available) to conduct the search (paragraph 14J(3)(b)), or request another person (who is the same sex as the person being searched) to conduct the search (proposed paragraph 14J(3)(c)).  Proposed paragraph 14J(3)(c) also provides that a person (other than another designated officer, police officer or Customs officer) who is requested by a designated officer to conduct a search must consent to conduct the search.  This makes it clear that a person cannot be directed to conduct a search.

Proposed subsection 14J(4) provides that if a designated officer requests a Customs officer or another person under either paragraph 14J(3)(b) or 14J(3)(c) to conduct an ordinary or frisk search, the designated person must explain to the Customs officer or other person the meaning of ordinary or frisk search.  The designated person must also explain the requirement in proposed subsection 14J(6), which provides that designated persons and others conducting a personal search must act in good faith and must not use more force or subject the person to greater indignity than is reasonable and necessary.

Proposed subsection 14J(5) provides that a person who conducts a search at the request of a designated person is protected from civil and criminal proceedings relating to the conduct of the search provided he or she complies with proposed subsection 14J(6).

The terms ordinary search and frisk search have the same meaning as those used in section 3C of the Crimes Act 1914 (items 4 and 5).  The proposed search provisions and the safeguards included are consistent with similar provisions in other Commonwealth legislation.  The provisions have been drafted to balance the need for appropriate security arrangements with personal rights and freedoms.

Proposed subsection 14J(7) makes it clear that a person must not be detained under section 14J for longer than is reasonably necessary for a search to be conducted.

Proposed subsection 14J(8) provides that a designated person can search an item that has been brought onto premises at which the AFP is performing its protective service functions.  For example, the provision authorises designated persons to search an item (including inside the item) that has been left unattended for a thing that the designated person suspects on reasonable grounds is likely to be used to cause serious harm to a person, or damage to a place or thing, in respect of which the AFP is performing its protective service functions.

Proposed subsection 14J(9) provides that a designated person may use necessary and reasonable force in the conduct of a search of, or for, a thing under subsections 14J(2) and 14J(8).  It does not permit a thing being searched to be damaged by forcing it open unless the person has been given an opportunity to open the thing or it is not possible in all the circumstances to provide such an opportunity.

The proposed search power provides another level of response for designated persons when performing protective service functions.  Once a search has been conducted, the person search must be permitted to leave or, if the designated person conducting the search reasonably believes a protective service offence has been committed or is being committed, the person may be arrested under the arrest power in proposed section 14A if the designated person is a protective service officer, or under section 3W of Crimes Act 1914 if the designated person is a member or special member.

Proposed section 14K

Proposed subsection 14K(1) provides for a designated person to seize the thing that either the designated person, or a person conducting a search at the request of the designated person pursuant to subsection 14J(3), was searching for.  T he search power authorises a designated person to search for a thing that could be used in connection with the commission of a protective service offence.  Therefore, proposed subsection 14K(1) authorises the designated person to seize a thing that is likely to cause, or is likely to be used by the person or another person to cause, damage or harm in circumstances that would be likely to involve the commission of a protective service offence .

Proposed subsection 14K(2) authorises a designated person to seize any other weapon or other thing found during the course of a search where the designated person has reasonable grounds to suspect that the weapon or thing is likely to be used to cause death or serious harm to a person in respect of whom the AFP is performing its protective service functions, or a person in a place, or in the vicinity of a person, place or thing in respect of which the AFP is performing its protective service functions (proposed subparagraphs 14K(2)(a) and 14K(2)(b)).  This will permit the designated person to act immediately to prevent possible threats of death or serious harm to persons in circumstances that would not involve the commission of a protective service offence .

If, during the search, the designated person identifies evidence relating to a possible offence that does not meet the criteria in proposed subsection 14K(2) and does not come within the definition of protective service offence, the designated person has no authority under the new provisions to seize the item or arrest the person as this would be outside the protective service functions of the AFP.

Proposed subsection 14K(3) provides that where a thing is seized by a designated person who is a protective service officer, the thing must be delivered into the custody of a police officer as soon as practicable.

Proposed section 14L

Proposed section 14L establishes how, and the time frames in which, seized things are to be dealt with.  Proposed subsection 14L(1) requires a police officer to serve a seizure notice, within 7 days after the seizure day, on either the owner of the thing or, if the owner of the thing cannot be identified after reasonable enquiries, the person from whom it was seized. 

Seizure day is defined for the purposes of this section (proposed subsection 14L(8)).  This is required because where a designated person who is a protective service officer seizes a thing under section 14K, the thing must be delivered into the custody of a police officer under subsection 14K(3).  However, where a designated person who is a police officer seizes a thing under section 14K, the seized thing is already in the custody of a police officer.

The seizure notice must identify the thing seized, the date on which it was seized, the ground or grounds on which it was seized and state that if the owner does not request the return of the thing within 90 days after the date of the notice, the thing is forfeited to the Commonwealth (proposed subsection 14L(3)).  The period of 90 days will allow sufficient time for an owner to make his or her existence known to the police and make a request for the return of the thing (p roposed subsection 14L(4)).

Proposed subsection 14L(2) provides that where the thing was not seized from a person and, after making reasonable enquiries, a police officer cannot identify the owner of the seized thing, or where it is not possible to serve a seizure notice on the relevant person, there is no obligation to serve a seizure notice.  This will cover situations where the thing seized was found in a bag that had been abandoned at or in the vicinity of a place or person in relation to which the AFP is performing its protective service functions.  It will also cover situations where a designated person has lawfully requested a person’s name and address, conducted a search and seized a thing, but it is later discovered that the person provided a false name and address.

If the owner requests the return of the seized thing under subsection 14L(4), a police officer must return the thing unless there are reasonable grounds to suspect that, if the thing is returned to the owner, it is likely to cause or be used to cause substantial damage to a place or thing in respect of which the AFP is performing its protective service functions, or death or serious harm to a person in respect of whom the AFP is performing its protective service functions, or a person in a place, or in the vicinity of a person, place or thing in respect of which the AFP is performing its protective service functions (proposed subsection 14L(5)).   This provision makes it clear that seized weapons and things can only be returned to a person if the police officer responsible for the thing is satisfied that the person is the owner of the thing and the reason for the seizure no longer exists. 

If the owner of a seized thing does not request the return of the thing within 90 days of the date of the seizure notice, the thing will be forfeited to the Commonwealth (proposed subsection 14L(6)).  Where no seizure notice was served under subsection 14L(2) because the owner could not be identified or served, the thing will be forfeited to the Commonwealth if the owner has not requested the return of the thing within 90 days after the seizure day.

Where a person requests the return of the thing under subsection 14L(5), and the police officer does not return the thing, and a period of 90 days has elapsed since the date of the seizure notice or, where applicable, the seizure day, proposed subsection 14L(7) requires a police officer to either return the thing to its owner or make an application to a magistrate for an order in relation to the thing under proposed section 14M.  The application must be made within 95 days of the relevant date.

These safeguards are consistent with general Commonwealth standards for the protection of a citizen’s property, without placing an unduly onerous burden on the police with the responsibility for storing and maintaining such property.

Proposed section 14M

Proposed subsection 14M(1) provides for a police officer to make an application to a magistrate for an order in relation to the thing where the conditions in subsection 14L(7) are met.  The application must be made by the police officer who is responsible for the thing at the time of making the application. 

The owner of the thing must be allowed to appear and be heard by the magistrate (proposed subsection 14M(2)).

If the magistrate is satisfied there are reasonable grounds to suspect the seized thing is likely to cause or be used to cause substantial damage to a place or thing in respect of which the AFP is performing its protective service functions, or death or serious harm to a person in respect of whom the AFP is performing its protective service functions, or a person in a place, or in the vicinity of a person, place or thing, in respect of which the AFP is performing its protective service functions, a magistrate may make any of the orders in proposed paragraphs 14M(3)(c), 14M(3)(d), 14M(3)(e) or 14M(3)(f).  The magistrate may order the police officer retain the thing for a specified period, the thing must be forfeited to the Commonwealth, the thing must be sold and the proceeds given to the owner, or the thing is to be otherwise sold or disposed of.

Proposed subsection 14M(4) requires the magistrate to order the return of the thing to the owner if the magistrate is not satisfied of the matters listed in proposed paragraphs 14M(3)(a) or 14M(3)(b).

Proposed section 14N

Proposed section 14N outlines the relationship of the powers conferred and duties imposed on protective service officers, members and special members in this Division with the powers conferred and duties imposed by other laws.  It provides that the powers and duties in this Division are additional to any powers and duties protective service officers, members and special members have under other Commonwealth law or the law of a State or Territory.  It also specifies that these powers and duties do not exclude or limit the operation of any other law of the Commonwealth or a State or Territory.

This will allow members and special members to continue to carry out investigations of suspected offences under other legislation, and protective service officers to exercise powers conferred under other legislation.

Item 28

Item 28 inserts new subsections 36(4A) and 36(4B) in the AFP Act and provides for persons who have been declared to be protective service officers under proposed section 40EA (item 36) and persons who have been appointed as special protective service officers under proposed section 40EC (item 36) to enter into an undertaking and make and subscribe an oath or affirmation.  These provisions are consistent with existing subsections 36(3) and 36(4), under which members and special members are required to enter into an undertaking and subscribe an oath or affirmation.  The form of the undertaking, oath and affirmation will be prescribed in the Australian Federal Police Regulations 1979 .

Items 29, 30, 31, 32 and 33

These items insert reference to special protective service officer in sections 39, 40, paragraph 40(e), and subsections 40A(1) and 40A(2), respectively. 

Section 39 of the AFP Act requires AFP employees and special members to comply with Commissioner’s Orders.  Section 40 requires AFP employees and special member to comply with specific directions, instructions or orders of the Commissioner, a Deputy Commissioner or a supervisor.  Items 29, 30 and 31 will provide that special protective service officers must also comply with the requirements of sections 39 and 40.

Subsection 40A(1) of the AFP Act provides that where an AFP employee or special member is required under section 39 or 40 to give information, produce a document or answer a question, then he or she must do so despite the fact that it may tend to incriminate or expose him or her to a penalty.  However, the giving of information, production of a document or answering of a question is only admissible in evidence against the employee or special member in disciplinary proceedings (subsection 40A(2)).

Where an employee or special member is required to answer or to give information or to produce a document in relation to a test under sections 40M or 40N (testing for alcohol or prohibited drugs) this section does not apply (subsection 40A(3)).

Items 32 and 33 will amend subsections 40A(1) and 40A(2) to include special protective service officers as persons who must comply with the requirements under section 40A.

Items 34 and 35

Item 34 will amend section 40B of the AFP Act to provide that the Commissioner may declare an AFP employee other than a protective service officer to be a member of the AFP.  The purpose of this amendment is to ensure that a person cannot be declared to be both a protective service officer and a member at the same time.  Note 1, which is inserted by item 35, will provide that a protective service officer may be declared to be a member, but only where the protective service officer first ceases to be declared a protective service officer.  Note 2 will provide that section 40B will not prevent a protective service officer being appointed as a special member.

Item 36

Item 36 will insert new Divisions 3A and 3B in Part IV of the AFP Act.  These Divisions will deal with the conferral of status of protective service officer and special protective service officer.  Division 2 and 3 in Part IV currently provide for conferral of status of members and special members.

Proposed section 40EA will allow the AFP Commissioner to declare an AFP employee (other than a member) to be a protective service officer.  This provision will be consistent with section 40B (as amended by items 34 and 35).  Proposed section 40EA will provide that a person cannot be both a member and a special member at the same time, but will not prevent a member from being appointed as a special protective service officer.

Proposed section 40EB will allow the AFP Commissioner to determine, in writing, the competencies and qualifications required for a person to be declared a protective service officer.  This provision is comparable with existing section 40C, which provides for the AFP Commissioner to determine the competencies and qualifications required for a person to be declared a member.

Proposed section 40EC will allow the AFP Commissioner to appoint a person to be a special protective service officer.  The powers and duties of special protective service officers will be specified in the instrument of appointment by the AFP Commissioner (proposed section 40ED).  These provisions are comparable with existing section 40E, which provides that the AFP Commissioner may appoint a person as a special member.

Item 37

This item will insert reference to special protective service officer in subsection 60A(1) of the AFP Act.  Section 60A imposes a secrecy obligation on persons who undertake duties with the AFP, including AFP employees, special members, consultants and persons on secondment from other organisations.  This amendment will ensure that special protective service officers are included as persons who are subject to the secrecy provision.  This is necessary because special protective service officers could be engaged in joint operations and they should be subject to the same standard of confidentiality in such circumstances.

Item 38

Item 38 will insert reference to special protective service officer in subsection 61(1) of the AFP Act, which provides for the AFP Commissioner to confer awards on a Deputy Commissioner, an AFP employee or a special member.  This amendment will make it clear that the AFP Commissioner will also be able to confer awards on special protective service officers.

Items 39, 40, 41 and 42

Items 39, 40 and 41 amend section 63 of the AFP Act.  Subsection 63(1) provides that it is an offence for a person who is not a member or special member to impersonate a member or special member (paragraph 63(1)(b)), or to have in his or her possession articles (including arms or ammunition) that have been supplied to any member or special member (paragraph 63(1)(c)), or to have in his or her possession any book or document issued by or purporting to be issued by the AFP (paragraph 63(1)(d)).  Item 40 omits paragraph 63(1)(d) as this offence will be contained in proposed section 63B (item 42).

Item 42 inserts new sections 63A and 63B in the AFP Act.  Proposed section 63A will be modelled on section 63 (as amended) and will create an offence for impersonation etc of a protective service officer or a special protective service officer.  Proposed section 63B will provide that it will be an offence for a person who is not a member, special member, protective service officer or special protective service officer to have in his or her possession any book or document issued by or purporting to be issued by the AFP. 

The penalty for the offences in existing subsection 63(1) and proposed subsections 63A(1) and 63B(1) is 12 months imprisonment.  A “reasonable excuse” defence is included in existing subsection 63(2) and proposed subsections 63A(2) and 63B(2).

Item 43

Item 43 inserts reference to protective service officer and special protective service officer in section 64 of the AFP Act.  Section 64 provides that where a person is convicted of an offence against a member or special member under sections 147.1 (causing harm to a Commonwealth public official) or 149.1 (obstruction of Commonwealth public officials) of the Criminal Code the person can be ordered to pay compensation to the member or special member.  The amendments in item 43 will ensure that protective service officers and special protective service officers can also be paid compensation in similar circumstances.

Item 44

Item 44 makes a minor amendment to existing subsection 64A(1) of the AFP Act to provide that identification numbers should be “clearly visible on the uniform”.  This wording is less prescriptive and will provide flexibility as uniform styles change over time.

Item 45

Item 45 inserts new section 64AAA in the AFP Act.  Under proposed subsection 64AAA(1), protective service officers who are in uniform are required to wear their identification number so that it is clearly visible on the uniform.  Failure to comply will be an offence, punishable by a penalty of 5 penalty units ($550).  Proposed subsection 64AAA(2) makes this a strict liability offence. 

Proposed subsection 64AAA(3) provides a “reasonable excuse” defence.  This provision is based on section 19 of the APS Act and is comparable to existing section 64A (as amended by item 44) of the AFP Act, which deals with wearing of identification numbers by uniformed members.

Item 46

Item 46 inserts new section 64AAB in the AFP Act.  Proposed section 64AAB will provide that it is an offence for a suspended protective service officer to exercise any power conferred on a protective service officer by the AFP Act or any other law of the Commonwealth or of a Territory.  The penalty for this offence will be 2 years imprisonment.  This offence provision is comparable with existing section 64AA of the AFP Act, which relates to suspended members.

Items 47, 48, 49, 50, 51, 52 and 53

These items amend section 64B of the AFP Act to include reference to protective service officer.  Section 64B provides that the Commonwealth is liable in respect of a tort committed by a member in the performance or purported performance of this or her duty as a member, in the same manner as any other employer is liable in respect of a tort committed by an employee, and that the Commonwealth is treated for all purposes as a joint tortfeasor with the member. 

Subsection 64B(2) provides that, where the Commonwealth is claiming damages in respect of a tort, an act or omission of a member in the performance or purported performance of his or her duty may be relied on as constituting contributory negligence by the Commonwealth. 

Subsection 64B(3) ensures that the Commonwealth is not liable to pay punitive damages.

Subsection 64B(4) ensures that the Commonwealth may, whether or not it is a party to proceedings, pay the whole or part of any damages (other than punitive damages) and any costs that a member of the AFP has been ordered to pay by the Court, and may pay to the member any costs incurred by him or her that are not recovered from the plaintiff.  The Commonwealth may also pay the whole or part of any amount which is payable under the terms of a settlement entered into by a member, even where the Commonwealth is not a party to the settlement.  Subsection 64B(5) contains interpretive provisions.

The amendments in these items will ensure that protective service officers have the same protection as members.

Items 54 and 55

These items amend subsections 66(1) and 66(2) of the AFP Act to include reference to special protective service officer.  The purpose of the amendments in these items is to ensure that a special protective service officer will have the same protection against civil or criminal proceedings for a report prepared in good faith in the course of his or her duties, as an AFP employee and special member has.

Item 56

Item 56 will insert new subsections 68(4A), 68(4B) and 68(4C) in the AFP Act.  Existing section 68 of the AFP Act deals with proof of appointment and status of members and special members of the AFP.  Proposed subsections 68(4A), 68(4B) and 68(4C) will provide for proof of appointment and status of protective service officers and special protective service officers who have been declared or appointed as such after integration.

Item 57

Item 57 will insert new section 68A in the AFP Act.  Proposed section 68A will apply to persons who are protective service officers at the time of the transfer.  Under proposed section 68A, the Commissioner will be able to certify in writing that a specified person is a transferred protective service officer.  The Commissioner will also be able to certify that the person has made and subscribed an oath or affirmation under section 10 of the APS Act, and / or that the person has been a protective service officer continuously since being appointed under section 9 of the APS Act.

Item 58

Item 58 will insert new section 69E in the AFP Act.  Proposed section 69E will provide that the Commissioner may charge for certain protective services.  This provision is modelled on existing section 25A of the APS Act and will maintain the status quo for charging for such services.

Items 59 and 60

These items will insert reference to an AFP employee, a special member or a special protective service officer in paragraphs 70(a) and 70(aa) of the AFP Act.  Section 70 allows the Governor-General to make regulations under the AFP Act.  These amendments will ensure that the regulation-making power covers all categories of employee in the AFP.



Schedule 2 - Amendment and Repeal of Other Acts

Schedule 2 contains consequential amendments to a number of other Commonwealth Acts.  Protective service officers currently carry out functions under a range of other Commonwealth legislation.  To ensure they can continue to perform those functions after transferring to the AFP, amendments to those Acts are needed.  The consequential amendments primarily amend   the definition of protective service officer to reflect that the term will be defined in the AFP Act.  Schedule 2 will also repeal the APS Act and make other minor amendments to ensure protective service officers and special protective service officers are subject to the same accountability regime as members and special members.

Items 1, 3, 5, 6, 7, 9, 10, 11 and 13

These items will amend the Air Navigation Act 1920 , the Aviation Transport Security Act 2003 , the Crimes Act 1914 , the Crimes (Aviation) Act 1991 , the Customs Act 1901 , the Migration Act 1958 , the Parliamentary Precincts Act 1988 and the Public Order (Protection of Persons and Property) Act 1971 to omit references to “ Australian Protective Service Act 1987 ” and substitute “ Australian Federal Police Act 1979 ”.

Item 2

This item will repeal the APS Act.

Item 4

This item will amend the Complaints (Australian Federal Police) Act 1981 (the Complaints Act) to insert special protective service officer in the definition of “AFP appointee” in subsection 3(1) of the Complaints Act.  This will ensure that special protective service officers are subject to the accountability regime in the Complaints Act.  There is no requirement to also make specific reference to protective service officer.  Protective service officers will be subject to that regime as they are included by reference to AFP employee in the definition of “AFP appointee”.  The strict requirements of the Complaints Act ensure common accountability, which recognises that categories of employee within the AFP have coercive powers which are additional to most public sector employees.

Item 8

This item will repeal item 3 of the table in subsection 7(1) of the Legislative Instruments Act 2003 (this provision is in the Legislative Instruments Bill 2003, which is before Parliament). 

Item 12

This item will insert subparagraph 5(n) into the Passenger Movement Charge Collection Act 1978 to exempt protective service officers who are air security officers from paying the passenger movement charge .   This item will amend a reference to the APS Act in the Customs Legislation Amendment Bill (No 2) 2002, which is before Parliament.



Schedule 3 - Amendments Relating To The Investigation of State Offences That Have a Federal Aspect

Schedule 3 implements the legislative aspect of resolution 16 of the April 2002 Leaders’ Summit on Terrorism and Multi-jurisdictional Crime.  Resolution 16 committed:

To legislate and develop administrative arrangements to allow investigation by the Australian Federal Police into State offences incidental to multi-jurisdictional crime.”

The Standing Committee of Attorneys-General-Australasian Police Ministers Council Joint Working Group on National Investigative Powers was tasked with facilitating the implementation of resolution 16 (‘the Joint Working Group’).  In its report on resolution 16, the Joint Working Group recommended that:

“T he Australian Federal Police (AFP) can best be given the power to investigate state offences incidental to multi-jurisdictional crime by amending Commonwealth legislation to allow the AFP to utilise Commonwealth investigative powers to investigate State offences with a federal aspect.”

On 11 November 2003 the Australasian Police Ministers’ Council (APMC) accepted the JWG recommendation, resolving:

“That the Commonwealth legislate to allow the AFP to utilise Commonwealth investigative powers to investigate State and Territory offences with a federal aspect and that administrative arrangements be developed for them by the middle of 2004.”

In practice, where the AFP is investigating Commonwealth crimes, it may become apparent that State offences have also been committed.  The amendments in Schedule 3 will enable the AFP to investigate the totality of the criminal conduct where those State offences have a federal aspect.  A State offence has a federal aspect if the subject-matter of the offence is a subject on which the Commonwealth has constitutional power to legislate.  A State offence also has a federal aspect where the investigation of that State offence is incidental to an investigation of a Commonwealth or Territory offence. 

Schedule 3 will amend the AFP Act and the Crimes Act 1914 (the Crimes Act) to enable the AFP to investigate State offences with a federal aspect.  Items 1 to 3 will amend the AFP Act to add the investigation of State offences with a federal aspect to the functions prescribed for the AFP.  Items 4 to 16 will amend the Crimes Act to enable the AFP to exercise Commonwealth investigative powers and procedures when investigating State offences that have a federal aspect.  The amendments in items 6 to 16 will allow the AFP, when investigating State offences that have a federal aspect, to exercise powers under Part IAA (Search Warrants and Powers of Arrest), Part IAB (Controlled Operations), Part IAC (Assumed Identities), Part IC (Investigation of Commonwealth Offences) and Part ID (Forensic Procedures) of the Crimes Act.

 

Item 1

Item 1 will define “State offences that have a federal aspect” for the purposes of the AFP Act.  It will provide that a State offence has a federal aspect if the Commonwealth could have enacted a valid provision covering the State offence or the specific conduct involved in committing the State offence or, if the State offence is an ancillary offence, then the primary offence to which that ancillary offence relates.  Item 3 will also provide that a State offence has a federal aspect where the investigation of the State offence is incidental to the AFP’s investigation of a Commonwealth or Territory offence.

Items 2 and 3

Subsection 8(1) of the AFP Act prescribes the functions of the AFP.  Items 2 and 3 will amend subsection 8(1) of the AFP Act to include the function of “the investigation of State offences that have a federal aspect.”

Item 4

 

This item will expand the definition of “thing relevant to an indictable offence” in Part I of the Crimes Act to include a thing relevant to a State offence with a federal aspect that is also an indictable offence against the law of that State.

 

Item 5

 

Item 5 will expand the definition of “thing relevant to a summary offence” in Part I of the Crimes Act to include a thing relevant to a State offence that has a federal aspect that is also a summary or simple offence against the law of that State.

 

Item 6

 

This item will define State offences that have a federal aspect for the purposes of the Crimes Act.

 

Item 7

 

Item 7 will expand the definition of “offence” in Part I of the Crimes Act to include a State offence that has a federal aspect.

 

Item 8

 

Item 8 will clarify that the application of Part I of the Crimes Act in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any State law.

 

Item 9

 

Item 9 will repeal the existing definition of “Commonwealth offence” in Part I of the Crimes Act and substitute it with a definition which includes an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982, and a State offence that has a federal aspect.

 

Item 10

 

This item will amend the definition of “controlled operation” in Part IAB of the Crimes Act to include an operation carried out for the purpose of obtaining evidence that may lead to the prosecution of a person for a serious State offence that has a federal aspect.  A “controlled operation” is defined in section 15H of the Crimes Act.

 

Item 11

 

Item 11 will provide that a serious State offence with a federal aspect is a State offence that has a federal aspect that also has the characteristics of a serious Commonwealth offence.  A “serious Commonwealth offence” is defined in section 15HB of the Crimes Act.

 

Item 12

 

Item 12 will repeal the existing definition of “Commonwealth offence” for the purposes of Part IC of the Crimes Act and will substitute it with a definition which includes an offence against a law of the Commonwealth, other than an offence that is a serious offence for the purposes of the Defence Force Discipline Act 1982, and a State offence that has a federal aspect.

 

Item 13

 

Item 13 will repeal the existing definition of “indictable offence” for the purposes of Part ID of the Crimes Act and will substitute it with a definition which includes an indictable offence against a law of the Commonwealth or a State offence that has a federal aspect that is also an indictable offence against the law of that State.

 

Item 14

 

Item 14 will expand the definition of “prescribed offence” for the purposes of Part ID of the Crimes Act to include a State offence that has a federal aspect.

 

Item 15

 

Item 15 will expand the definition of “serious offence” for the purposes of Part ID of the Crimes Act to include a State offence that has a federal aspect.

 

Item 16

 

Item 16 will clarify that the application of Part ID of the Crimes Act in relation to State offences with a federal aspect is not intended to limit or exclude the concurrent operation of any State law.