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Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2007

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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                                      

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMES LEGISLATION AMENDMENT (NATIONAL INVESTIGATIVE POWERS AND WITNESS PROTECTION) BILL 2006

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

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

Senator the Honourable Christopher Ellison)

 

 



Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006

 

GENERAL OUTLINE

 

The Bill amends the law relating to the investigation of criminal activity and the protection of witnesses, and for related purposes.

 

The Bill amends the Crimes Act 1914 (Crimes Act); the A ustralian Crime Commission Act 2002 (the ACC Act); the Witness Protection Act 1994 (WP Act); the Customs Act 1901 (Customs Act), Proceeds of Crime Act 2002 (POC Act) and the Mutual Assistance in Criminal Matters Act 1987 (MA Act).

 

Schedule 1: Controlled operations, assumed identities and protection of witness identity

 

The purpose of this Schedule is to replace the current controlled operations provisions in Part 1AB and the current assumed identity provisions in Part 1AC of the Crimes Act with national model legislation on controlled operations, assumed identities and protection of witness identity that was developed by the Joint Working Group of the Standing Committee of Attorney’s-General and the Australasian Police Ministers Council.  The model legislation was published in November 2003 in the Joint Working Group’s Cross-Border Investigative Powers for Law Enforcement Report.

 

The intent of this model legislation is to harmonise, as closely as possible, the controlled operations, assumed identities and protection of witness identity regimes across Australia.  However, the Bill does expand the operation of the model laws by extending the legislative scheme beyond Australian law enforcement agencies to include, where relevant, foreign law enforcement officers and security and intelligence officers.  This recognises the unique role of Commonwealth agencies in national security and intelligence operations as well as in the investigation of crimes with a foreign aspect.

 

Schedule 2: Delayed notification search warrants

 

These provisions will amend the Crimes Act to establish a delayed notification search warrant scheme.  This will enable police officers to covertly enter and search premises for the purposes of preventing or investigating terrorism and other serious Commonwealth offences, without giving notice to the occupier of the premises until operational sensitivities allow.

 

Schedule 3: Amendment of the Australian Crime Commission Act 2002

 

These provisions make various amendments to the ACC Act.  The amendments will address some operational difficulties experienced by the Australian Crime Commission (ACC) as well as make other technical amendments. It will also align ACC search warrant provisions more closely to the Crimes Actsearch warrant provisions.

 

 

Schedule 4: Amendment to the Witness Protection Act 1994

 

This Schedule amends the WP Act by implementing a number of legislative amendments suggested by the Australian Federal Police following the Review of the National Witness Protection Program Report of December 2003.  The Witness Protection Act is the basis for the National Witness Protection Program, which provides protection and assistance to witnesses involved in legal proceedings - eg where the witness has given evidence in a serious, or high profile, criminal trial and, as a result, their lives or the lives of their family are potentially placed at risk.

 

Schedule 5: Other Amendments

 

Part 1 of Schedule 5 contains consequential amendments to the Crimes Act and Customs Act relating to controlled operations.

 

Part 2 of Schedule 5 contains consequential amendments to the ACC Act.

 

Part 3 of Schedule 5 clarifies that where a constable has seized electronic equipment under a section 3E search warrant (and the warrant has since expired) or under the arrest provisions in the Crimes Act, the constable will be able to operate the electronic equipment to access data, including data not held on the equipment at the time of seizure.  Similar amendments are made to the Customs Act, POC Act and the MA Act.

 

Schedule 6: Transitional Provisions

 

Schedule 6 contains the transitional provisions.

 

FINANCIAL IMPACT STATEMENT

 

The amendments in this Bill have no financial impact on Government revenue.

 



Abbreviations used in the Explanatory Memorandum

 

 

ACC                             The Australian Crime Commission

ACC Act                     The Australian Crime Commission Act 2002

ACLEI                                    Australian Commission for Law Enforcement Integrity

ADJR Act                   Administrative Decisions (Judicial Review) Act 1977

AFP                             The Australian Federal Police

APMC                         Australasian Police Minister’s Council

BDM Register             Register of Births, Deaths and Marriages      

Crimes Act                  The Crimes Act 1914

MA Act                       Mutual Assistance in Criminal Matters Act 1987

NWPP                         National Witness Protection Program

POC Act                     Proceeds of Crime Act 2002

SCAG                         Standing Committee of Attorney-General

Witpro                         Witness Protection Unit

the WP Act                 The Witness Protection Act 1994

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

This is a formal clause which provides that the Act will be cited as the Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Act 2006 when it is enacted.

 

Clause 2: Commencement

 

This clause provides that sections 1 to 3 commence on the day the Bill receives Royal Assent, as well as any other provisions not specified in the commencement table, and Schedules 1 to 6 commence on the 28 th day after the Bill receives Royal Assent.

 

Clause 3: Schedule(s)

 

This clause provides that each Act specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

 

 



Schedule 1

Part 1AB—Controlled operations

General Outline

 

The purpose of this Schedule is to replace the current controlled operations provisions in Part IAB of the Crimes Act with national model legislation that was developed by a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers Council to authorise the use of controlled operations by law enforcement agencies in cross-border investigations.  The model was published in November 2003 in the Joint Working Group’s Cross-Border Investigative Powers for Law Enforcement Report.   The intent of this legislation is to harmonise, as closely as possible, the controlled operation regimes across Australia.

Cross-Border Mutual Recognition Provisions

 

This Bill will only establish a regulatory regime for controlled operations authorised and conducted at the Commonwealth level.  Commonwealth law enforcement agencies do not require authorisation to conduct controlled operations across Australian State and Territory borders.  As a Commonwealth agency, they have the power to move freely throughout the jurisdiction of the Commonwealth.  Consequently, this Bill will not implement the mutual recognition provisions for cross-border controlled operations found in the model laws. 

 

It is anticipated that each State and Territory jurisdiction will enact the model laws so that an authority for a cross-border controlled operation issued in one State or Territory jurisdiction will be recognised in other participating State and Territory jurisdictions.  This will allow for the movement of State and Territory controlled operatives across State and Territory borders without having to make a separate application for a controlled operation in the second jurisdiction.

 

Operation of the Commonwealth provisions beyond the model laws

 

This Bill does expand the operation of the model laws by extending the legislative scheme beyond Australian law enforcement officers to include foreign law enforcement officers, thereby allowing them to participate in a Commonwealth controlled operation.

 

There are also a number of definitions and provisions under the current Crimes Act provisions that have been adopted into this legislation to properly reflect the unique role of the Commonwealth in controlled operations and the role of foreign officers.  These are discussed in detail in the relevant Item below.

 

 

 

Commonwealth offences committed by State and Territory operatives

 

The Bill will also recognise State and Territory enactments’ of the model laws to ensure that State and Territory operatives committing a Commonwealth offence as part of an authorised controlled operation under a State or Territory law are protected.  

Protection from State and Territory offences is automatically provided to State and Territory operatives in cross-border controlled operations as part of the mutual recognition provisions.  As these provisions have no application to the Commonwealth, it is important that we ensure that State and Territory operatives engaged in lawful controlled operations remain protected against criminal liability for Commonwealth offences also.

Item 1: Parts 1AB and 1AC

This item repeals the current Parts IAB and IAC of the Crimes Act and replaces these with the following Parts.

Proposed Part IAB—Controlled Operations

Proposed Division 1—Preliminary

 

Proposed section 15G: Objects of Part

 

The proposed section sets out the main purposes of the Bill, which are:

 

·          to establish a comprehensive regulatory scheme for authorising, conducting and monitoring Commonwealth controlled operations; and

·          to exempt law enforcement and civilian participants in controlled operations against criminal liability, and to indemnify them from civil liability, for conduct engaged in as part of an authorised controlled operation.

 

Proposed section 15GA: Relationship to other laws and matters

 

Proposed subsection 15GA(1) preserves judicial discretion to admit or exclude evidence or stay proceedings, except to the extent that these discretions are expressly restricted by the Bill.

 

Proposed subsection 15GA(2) makes it clear that a court should not apply its discretion to exclude evidence obtained during a controlled operation solely because it was obtained through the commission of unlawful acts, provided that the conduct was within the scope of the controlled operation authority.

 

Proposed section 15GB: Concurrent operation of State and Territory laws

                       

Proposed section 15GB provides that it is the intention of the Parliament that this Part is not to apply to the exclusion of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Part.  This is important because of the significance of joint operations between Commonwealth, State and Territory agencies relating to suspected Commonwealth, State and Territory offences.

 

Proposed section 15GC:  Definitions

 

Proposed section 15GC defines some of the key words and terms used in this Part of the Bill.  These include:

 appropriate authorising officer  for an authorised controlled operation is any authorising officer from the authorising agency which granted that particular controlled operations authority.  Under this legislation, a number of agencies can conduct controlled operations.  However, only certain agencies, the Australian Federal Police (AFP), the Australian Crime Commission and the Australian Commission for Law Enforcement Integrity (ACLEI), can grant the authority for a controlled operation to be commenced.  This definition ensures that if the agency conducting the controlled operation needs an extension of time or variation of the conditions etc, they must go back to an authorising officer of the agency that granted the initial authority.

authorising agency , for an authorised controlled operation is the agency whose authorising officer (as defined in proposed section 15GF) granted the authority for the controlled operation.  For example, if an AFP authorising officer granted the authority for the controlled operation, the authorising agency would be the AFP.

authority means an authority granted under proposed section 15GH and includes any variation to that authority.  The authority is the document issued by an authorising officer that authorises the controlled operation and unlawful conduct.  

chief officer  of a law enforcement agency is responsible for notifying the owner of property of the loss or serious damage to that property caused as a direct result of a controlled operation.  They are also responsible for ensuring that where the Commonwealth would be tortiously liable for loss or injury arising from a controlled operation; it is to pay the compensation for which it is liable at law or otherwise a settled amount (see proposed section 15HB).

The chief officer of an authorising agency has further particular responsibilities under this Part:

·          authorising controlled operations (along with other authorising officers),

·          ensuring that record keeping requirements are met

·          submitting a twice yearly report on controlled operations to the Commonwealth Ombudsman and the Minister, and

·          submitting an annual report on controlled operations to the Minister.

civilian participan t  is a person who is not a law enforcement officer but has been authorised to be a participant in the controlled operation by the principal law enforcement officer under proposed section 15GL.  This includes informants, people who have particular expertise or hold particular positions.  These people can only be used where the authorising officer is satisfied on reasonable grounds that a law enforcement officer could not adequately perform the role.

 

controlled conduct  means conduct constituting an offence for which a person would, but for section proposed section 15GW, be criminally responsible .  During a controlled operation, the participant may need to engage in unlawful conduct.  For example, in a controlled operation investigating a drug trafficking syndicate the participant may purchase illegal drugs to gather evidence of drug trafficking.  Controlled conduct is conduct which the participant is authorised to engage in and for which, if not for proposed section 15GW, the participant would be criminally responsible.

 

controlled operation   is defined in detail in proposed section 15GD.

 

corresponding State controlled operations law means a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law. 

 

law enforcement agency  is defined to include the AFP, the ACC, the Australian Customs Service, ACLEI and the police force of a State or Territory.  All of these agencies can apply to an authorising agency to conduct a controlled operation.  This definition is different from the definition of law enforcement officer in section 3 of the Crimes Act as it does not include foreign police or foreign law enforcement agencies.  This has been done intentionally as, while foreign officers can assist and participate in controlled operations, they cannot independently apply for an authorisation to conduct a Commonwealth controlled operation (see also the definition of Australian law enforcement officer in section 3 of the Crimes Act).

law enforcement participant  in an authorised controlled operation is a participant authorised by the principal law enforcement officer under proposed section 15GL who is a law enforcement officer. This distinguishes between law enforcement officers and civilian participants. 

participant  includes any person who is authorised by the principal law enforcement officer under proposed section 15GL to engage in controlled conduct for the purposes of the controlled operation .  This includes both law enforcement and civilian participants.

principal law enforcement officer  is the law enforcement officer who is responsible for the conduct of the controlled operation.  An authority for a controlled operation will nominate the law enforcement officer responsible for the controlled operation.  Under proposed section 15GL, the principal law enforcement officer has the responsibility of authorising specified individuals to engage in controlled conduct.

Proposed Division 2—Authorisation of controlled operations

Proposed section 15GD: Meaning of controlled operation

 

Proposed section 15GD defines the phrase controlled operation .

 

A ‘controlled operation’ is an operation authorised under this proposed Part for which immunity from civil and criminal offences is provided to law enforcement and other participants.  It may involve covert or overt activity, but its object is to obtain evidence of serious criminal offences against Commonwealth law or State or Territory law with a federal aspect.  In a covert controlled operation a law enforcement officer (an ‘operative’) may conceal his or her true identity and associate with people suspected of being involved in committing, organising or financing crimes to gather evidence or intelligence about them.  In some instances, a civilian (a non-law enforcement officer) is used as an operative where the civilian is better placed to attain the information than a law enforcement officer.  During the controlled operation the participant may need to engage in unlawful conduct (‘controlled conduct’), for which, if not for proposed section 15GW, the participant would be criminally responsible.  A controlled operation commences at the time an authority is granted under proposed section 15GH (see also proposed section 15GN).

Proposed section 15GE: Meaning of serious Commonwealth offence or a serious State offence that has a federal aspect

Proposed section 15GE defines the range of offences for which a controlled operation can be authorised.  A serious Commonwealth offence is defined as a Commonwealth offence carrying a maximum penalty of three years or more imprisonment.  This removes the current list of offences set out in section proposed section 15HB of the Crimes Act.  This is consistent with the model laws and will ensure that the current and potential scope of ACC activities is covered.

This also makes provision for a serious Commonwealth offence to include a Commonwealth offence that is prescribed by the regulations, or that is of a kind prescribed by the regulations.  The capacity to prescribe additional items by regulation has been included to cater for emerging categories of serious crime, reflecting both the changing criminal threat and new enforcement priorities that may emerge.  These regulations are not limited by the requirement that the offence must carry a maximum penalty of three years or more imprisonment.  This will enable the Australian Government and law enforcement agencies the flexibility to deal with emerging categories of serious crime.  This is consistent with the definition of ‘relevant offence’ under the model laws.

Serious State offence that has a federal aspect , as it applies to this proposed Part, means an offence against a law of a State or Territory that has a federal aspect and that is punishable on conviction by imprisonment for a period of 3 years or more. This allows Commonwealth law enforcement agencies to investigate State offences incidental to multi-jurisdictional crime.

In practice, where a Commonwealth law enforcement agency such as the AFP is investigating Commonwealth crimes, it may become apparent that State offences have also been committed.  By allowing controlled operations for serious State offences that have a federal aspect, this enables the AFP to investigate the totality of the criminal conduct involved.  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 (see also section 3AA of the Crimes Act, which details when a State offence has a ‘federal aspect’).



Proposed section 15GF Meaning of authorising officer

 

Proposed section 15GF sets out who may authorise a controlled operation that relates to the investigation of a serious Commonwealth offence or a State offence that has a federal aspect.   This provision has been retained from the current Crimes Act as the AFP has indicated that this form of delegation has been operationally effective and they would be reticent to change such well established and effective arrangements. 

 

There are four categories of controlled operations:

·          where the operation is a major controlled operation and the investigation of the offence is within the functions of the AFP

·          where the operation is not a major controlled operation and the investigation of the offence is within the functions of the AFP

·          where the investigation of the offence is within the functions of the ACC, and

·          where the investigation relates to a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006.

 

The categorisation of ‘major controlled operation’ and ‘not a major controlled operation’ applies only to the AFP and is intended to have no effect on the range of activities that can be undertaken by the ACC or ACLEI.  The ACC can undertake any controlled operation (major or not) so long as it is within the functions of the ACC.  Similarly, ACLEI can undertake any controlled operation so long as it relates to a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006.

 

The reason for the distinction between types of controlled operations conducted by the AFP is to ensure that the controlled operations which involve the more serious consequences for operatives, both in terms of time spent undercover and safety, are approved by the Commissioner and Deputy Commissioner.  The AFP is a larger organisation than the ACC or ACLEI and is likely to have a larger number of authorising officers.  To ensure consistency of decision making for major controlled operations, the decision was made to limit the pool of authorising officers to only those at the most senior levels of the AFP.

 

Therefore, authorisation for a major controlled operation can only be given by the Commissioner or a Deputy Commissioner of the AFP.  Major controlled operations are operations that are likely to continue for more than three months, involve infiltration of a criminal group for more than seven days, or are directed against criminal activity involving a threat to human life.  It is noted that for a controlled operation to continue for more than three months, this would require a variation of the authorisation to extend the duration of the controlled operation.  As discussed, due to the fact that these operations are long term and/or pose a risk to the operative’s safety, it is appropriate that all authorisations occur at Commissioner or Deputy Commissioner level.

 

Where the operation is a controlled operation other than a ‘major controlled operation’, it may be authorised by the Commissioner, a Deputy Commissioner or a senior executive AFP employee authorised in writing by the Commissioner to perform the function (see definition of AFP authorising officers in p roposed subsection 15GF(3).

 

Where the investigation of the offence is within the functions of the ACC, it may be authorised by an ACC authorising officer .  An ACC authorising officer is the Chief Executive Officer of the ACC or an SES employee of the ACC authorised in writing by the Chief Executive Officer to perform the function.

 

Where the investigation is of a corruption issue within the meaning of the Law Enforcement Integrity Commissioner Act 2006 , it may be authorised by an ACLEI authorising officer .  An ACLEI authorising officer is the Integrity Commissioner, the Assistant Integrity Commissioner or a staff member of ACLEI who is an SES employee and is authorised in writing by the Integrity Commissioner to perform the function.

 

Only the AFP, the ACC and ACLEI have authorising officers in their agency.  Other law enforcement agencies, such as Customs, will need to make any application to conduct a controlled operation to an authorising officer of the AFP, ACC or ACLEI.   The AFP and ACC do the vast majority of controlled operations and have the relevant operational experience to appropriately determine when an application for a controlled operation should be granted.  ACLEI has the specific role of investigating corruption issues that relate to law enforcement agencies and it is not appropriate that they should have to rely on the AFP or ACC to authorise a controlled operation into this conduct.  Limiting the number of agencies that are able to authorise controlled operations also assists the Ombudsman in monitoring compliance with this proposed Part.  The Chief Officers of authorising agencies are required to report to the Minister and Ombudsman bi-annually on controlled operations authorised by their agency (see p roposed section 15HH).  The Ombudsman and the Chief Officers of each authorising agency then prepare an annual report to the Minister which is tabled in Parliament (see p roposed section 15HJ).  

Proposed section 15GG:  Applications for authorities to conduct controlled operations

 

Proposed section 15GG provides that only an Australian law enforcement officer of a law enforcement agency may apply for an authority to conduct a controlled operation.  A foreign law enforcement officer can participate in a controlled operation but cannot apply for authority to conduct the operation.  This also outlines the requirements and process to apply for an authority to conduct a controlled operation.

 

There are two types of application:

A formal application is the standard process of applying for an authority.  The application must be in writing and signed by the applicant.

An urgent application is the process used when time is of the essence or when the means of communication in a given circumstance are limited. An urgent application can only be made if the applicant has reason to believe that the delay caused by making a formal application may affect the success of the operation.  These applications can be made orally in person, or by telephone, or by any other means of communication.

 

An urgent application must be followed up by a written record of the application as soon as practicable.  Urgent applications are valid for up to seven days and the applicant who makes the urgent application is able to subsequently make a formal application for the same operation.  An urgent authority can be varied under this proposed Part (see proposed sections 15GO-15GS) with the exception of extending the duration of the authority.  The duration of the urgent authority is fixed at a maximum of seven days.

 

Where there is a significant alteration of the nature of the controlled operation, such that variation of the controlled operation is not allowed (see proposed subsection 15GO(4)), then it is intended that a new application for a controlled operation should be made.  In these circumstances, proposed subsection 15GG(3) does not apply and an urgent application can be made where necessary.

 

Applications (whether formal or urgent) are to be made to an authorising officer (as defined in proposed section 15GF) and must provide sufficient information to enable an authorising officer to decide whether or not to grant the application. It must also say what type of controlled operation is proposed and provide details of any previous applications and authorities in respect of the operation or the criminal activity to be investigated and, if so, whether the authority was given or varied.

 

The authorising officer may ask for further information about the proposed controlled operation prior to considering the application.

 

The most important aspect of the urgent application is that it can be attained within a tight time frame and the required information can be presented to the authorising officer without the need for a formal document.  However, as soon as practicable after making an urgent application, where that application was not made in writing, the applicant must make a written record of that application and provide a copy to the authorising officer.  This will assist the authorising officer, who is required under proposed section 15GK to provide a written urgent authority to the applicant within seven days of granting the application.

Proposed section 15GH:   Determination of applications

 

Proposed subsection 15GH(1) provides that after considering the application and any additional information, the authorising officer may authorise the controlled operation, subject to, or without conditions, or may refuse the application.

 

Proposed subsection 15GH(2) sets out the matters that the authorising officer must be satisfied of, on reasonable grounds, before granting an authority for a controlled operation. These include that:

• any unlawful conduct will be limited to the maximum extent necessary to conduct an effective controlled operation;

• the operation will be conducted in a way that ensures that, to the maximum extent possible, any illicit goods will be under the control of Australian law enforcement officers at the end of the controlled operation;

• the controlled operation will not be conducted in a way that would induce a person to commit any offence that they would not otherwise have intended to commit.

 

There are restrictions on the type of activity that can be authorised.  Under proposed paragraph 15GH(2)(g) a controlled operation cannot be authorised if it will involve any conduct which would:

• seriously endanger the health or safety of any person; or

• cause the death of, or serious injury to, any person; or

• involved the commission of a sexual offence against any person; or

• result in significant loss of or serious damage to property (other than illicit goods).

 

Civilians can be authorised to participate in a controlled operation in limited circumstances. Proposed paragraph 15GH(2)(h) provides that the authorising officer must be satisfied on reasonable grounds that the role given to a civilian is not one that could be adequately performed by a law enforcement officer. For example, the person may speak a language or dialect that is spoken by the persons under investigation but that is not spoken by any available law enforcement officers.  Alternatively, an informant may be a member of a crime syndicate that police are either unable or would not have sufficient time to infiltrate.

 

The authorisation process for controlled operations is entirely internal to the AFP, the ACC and ACLEI.  Internal authorisation for controlled operations is appropriate as the conduct of controlled operations is essentially an internal and operational matter and provides operational efficiency and protects the security of the investigation. 

 

The role of the Ombudsman in reporting on compliance by the AFP, the ACC and ACLEI (see proposed sections 15HJ, 15HN through to 15HQ) with these provisions ensures appropriate oversight and monitoring of the authorisation process. 

 

Proposed subsection 15GH(4) clarifies that the authority granted is not a legislative instrument.  This provision is included to assist readers as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

Proposed section 15GI:  Form of authority

 

Proposed section 15GI sets out the forms in which an authority for a controlled operation can be granted.

 

There are two types of authority:

formal authority : which must be in writing and signed by the authorising officer; or

urgent authority : which may be given orally in person or by telephone or any other means of communication.

 

(See proposed section 15GG for the comparable two categories of application).

 

An urgent authority can be granted if the authorising officer is satisfied that the delay caused by granting a formal application may affect the success of the operation.

 

Proposed subsection 15GI(2) stipulates that the authorising officer cannot grant an urgent authority for a controlled operation that has been the subject of a previous urgent authority.  If an urgent authority is required to extend beyond 7 days, a formal application must be made.

 

Where there is a significant alteration in the nature of the controlled operation, such that the variation of the controlled operation is not allowed (see proposed subsection 15GO(4)) it is intended that  a new application for a controlled operation should be made. In these circumstances proposed subsection 5GI(2) does not apply and an urgent application can be made where necessary.

 

Proposed section 15GJ: Formal authority

 

Proposed section 15GJ sets out the details that must be included in a formal authority.  These are designed to provide comprehensive information about the planned operation and include:

·          the nature of the criminal activity (including the suspected serious Commonwealth offences and serious State offences that has a federal aspect) in respect of which the controlled conduct is to be engaged in:

·          the nature of the controlled conduct that participants authorised under proposed section 15GL may engage in;

·          identify (to the extent known) the person/s to be targeted; and

·          specify any conditions to which the conduct of the operation is subject.

 

It should be noted that p roposed subparagraphs 15GJ(1)(j) (iii) (iv) and (v) are in similar terms to the requirements of p roposed paragraph 15HV(2)(c).  This will enable applicants to provide a copy of the formal authority to Customs without the necessity to create an additional document (as currently exists), if those details are known and relevant at the time of the granting of the authority.

 

Proposed section 15GK: Urgent authority

 

Proposed subsection 15GK(1) requires an authorising officer to provide the principal law enforcement officer with a written urgent authority within seven days of granting an urgent authority to conduct a controlled operation.

 

Proposed subsection 15GK(2) sets out the details that must be included in a written urgent authority.  These provide less comprehensive information about the planned operation, reflecting the urgent nature of these applications and the operational realities that often exist where the law enforcement agency acts, for example, on a tip off.  In these circumstances, the law enforcement agency may have sufficient information to suspect serious criminal activity but will not know the specific details until they commence their covert activities.

 

As a result, the level of information required to be contained in an urgent authority is less than that required for a formal authority.  The urgent authority must, for example:

·          identify the nature of the criminal activity in respect of which the controlled conduct is to be engaged in (this does not require a reference to the suspected offences)

·          identify the nature of the controlled conduct that participants authorised under p roposed section 15GL may engage in, and

·          specify any conditions to which the conduct of the operation is subject.

 

 

Proposed section 15GL: Authorisations of specified individuals to engage in controlled conduct

 

Proposed section 15GL is a new provision and it does not reflect the model laws. 

 

Law enforcement agencies advised that they would often not be aware of who needs to be authorised to participate in a controlled operation until during the operation.  For example, where a person is bringing goods into Australia from overseas and the controlled operation involves letting that person through Customs so that they can be followed to the delivery point, the law enforcement agency will not know which Customs officers may be on duty that day or which checkpoint the person will pass through until just before it occurs.  As such, they require sufficient flexibility to ensure that any person engaged in controlled conduct under the controlled operation is protected under proposed section 15GW.  The variation provisions in the model laws do not provide this flexibility.

 

Therefore, under proposed subsection 15GL(1) the principal law enforcement officer may authorise a specified person to engage in controlled conduct for the purpose of that controlled operation.  This authorisation may be given orally but must be followed up in writing setting out the matters required in proposed subsection 15GL(2).

 

Under proposed subsection 15GL(2) the authorisation must state:

•        the identity of the person authorised to engage in the controlled conduct (under proposed subsection 15GL(4) this may be the assumed name, or code name, or code number of the person)

•         the time and place where the authorisation was given, and

•    identify the nature of the controlled conduct that the person may engage in for the purposes of the controlled operation.  For civilian participants, this must be the particular controlled conduct that they are authorised to engage in.

 

For the purposes of proposed subsection 15GL(2), the chief officer of the authorising agency for the controlled operation must be able to match the assumed name, code name or a code number to the person’s identity.

The authorisation must identify each individual and cannot refer to a class of persons.  A principal law enforcement officer also cannot authorise themselves to engage in controlled conduct.  Their role is to oversee the conduct of the controlled operation, not engage as a participant.

A copy of each authorisation must be kept by the relevant agency under the record keeping requirements set out in proposed section 15HK.

Proposed section 15GM: Change of principal law enforcement officer

 

Proposed section 15GM allows an authorising officer to nominate a new principal law enforcement officer for a controlled operation where the current principal law enforcement officer ceases for any reason to have responsibility for the controlled operation.  This ensures that when a principal law enforcement officer resigns or transfers to a new area of responsibility, the controlled operation can continue in the hands of an appropriate officer.

 

Proposed section 15GN: Commencement and duration of authorities and authorisations

 

Proposed section 15GN provides for the commencement and duration of authorities.

 

A controlled operation is taken to commence at the time that an authority is granted under proposed section 15GH.  For an urgent authority, this is taken to be when the authorising officer tells the applicant that the authority is granted.

 

The maximum duration of a formal authority for a controlled operation is three months. However, the duration of a controlled operation can be extended by a variation process (see proposed sections 15GO—15GS).

 

The maximum duration of an urgent authority is seven days.  This cannot be extended.  However, the applicant who makes the urgent application is able to subsequently make a formal application for the same operation (see proposed subsection 15GG(3)).

 

A controlled operation has effect for the period specified in the authority, unless it is cancelled before the end of that period or, in the case of a formal authority, the variation process extends the period.  In that case, the controlled operation ends once the final period of extension is completed.

 

It follows that when a controlled operation ceases, any authorisations issued under proposed section 15GL to engage in controlled conduct also cease.

Proposed section 15GO: Variation of authority-general

Proposed section 15GO sets out when an authority for a controlled operation can be varied.

An appropriate authorising officer may vary an authority at any time on their own initiative or if an application is made under p roposed section 15GP.  An appropriate authorising officer must be an authorising officer from the same agency as the authorising officer that granted the original authority.  It does not, however, have to be the same authorising officer. 

This allows for flexibility in circumstances where the original authorising officer is not available and ensures that the same agency remains responsible for each controlled operation granted by its authorising officers.  This will also simplify record keeping and reporting obligations for the agency.

 

However, there are restrictions on the types of variations that can be made to extend the period of an authority.  These restrictions apply equally to the circumstances where the authorising officer varies the authority of their own initiative or by application.

 

A variation cannot be made that has the effect of extending the period of effect of an urgent authority.  On the expiry of an urgent authority, a formal application must be made if the law enforcement agency wants to continue the same operation or to investigate the same criminal activity (see proposed subsection 15GG(3)).

 

A variation cannot be made that has the effect of extending the authority for a controlled operation beyond 3 months at a time. 

 

A variation cannot be granted unless the appropriate authorising officer is satisfied on reasonable grounds that the variation will not authorise a significant alteration to the nature of the operation.  This is a safeguard against the use of variation applications to authorise entirely new and different operations.  The authorising officer must consider whether the variation is consistent with the nature of the original application or whether it would be more appropriate to deal with the application as an application for a new authority.  If a significant change in the nature of the operation is required, an application for a new controlled operation (rather than a variation of an existing operation) would be necessary.

 

The variation process for controlled operations is now entirely internal to the AFP and the ACC.  This is consistent with the model laws and has been incorporated in this Part in an effort to harmonise, as closely as possible, the controlled operation regimes across Australia.

 

Under the current Crimes Act provisions, appropriate authorising officers are able to vary an application with the exception of extending the duration of the controlled operation.  This function is given to a nominated member of the AAT who can extend the duration of a controlled operation only once and for a period of 3 months.  This means a controlled operation could only run for a maximum of 6 months.  The AAT member could only extend the duration of the authorisation if they were reasonably satisfied that all the criteria that were required for the granting of the authorisation remain in existence.  This was not a merits review function.

 

Internal variation for controlled operations authorisations is appropriate as the conduct of controlled operations is essentially an internal and operational matter and this provides operational efficiency and protects the security of the investigation.  However, additional safeguards have been put in place under this Bill to ensure the appropriate oversight and monitoring of this extended function.  The Ombudsman will now have powers not only to inspect the records of the AFP, ACLEI and the ACC on variations at any time (proposed section 15HN) but also to obtain relevant information from a law enforcement officer (proposed section 15HO).  The chief officer of the AFP, ACLEI and the ACC are also required under 15HK to keep a copy of all formal variation applications and authorisations.  If the Ombudsman finds any irregularity in these records, the Ombudsman can report these concerns to the Minister.

Proposed section 15GP: Variation of authority on application

Proposed section 15GP provides that the principal law enforcement officer for an authorised operation, or any other Australian law enforcement officer acting on their behalf, may apply to an appropriate authorising officer for a variation of authority for one or both of the following purposes:

·          to extend the duration of the authority; or

·          to authorise participants to engage in additional or alternative controlled conduct.

 

More than one application for a variation may be made in respect of the same authority but no single variation can extend the duration of the authority for more than 3 months at a time (see also proposed subsection 15GO(3)).  However, as explained in relation to proposed section 15GO, only formal authorities can have the period of validity extended.  Urgent authorities cannot be extended.

 

There are two types of applications for a variation:

a formal variation application —which must be in writing and signed by the applicant; or

an urgent variation application —which may be made orally in person or by telephone, or any other means of communication.

 

An urgent variation application can be made if the applicant has reason to believe that the delay caused by making a formal variation application may affect the success of the operation.

 

The appropriate authorising officer may ask for further information about the proposed variation as is necessary for their proper consideration of the application.

Proposed section 15GQ: Determination of application to vary authority

 

Proposed section 15GQ gives the authorising officer the power to grant (either unconditionally or subject to conditions) or refuse an application to vary an authority.

An authorising officer must not grant the variation unless the authorising officer is satisfied on reasonable grounds of the criteria set out in p roposed subsection 15GH(2).   As a request for variation requires the authorising officer to consider the same range of factors as those for a wholly new application, this process effectively functions as a full internal review.

Proposed section 15GR: Manner of varying authority

 

Proposed section 15GR permits either a formal or urgent variation to be granted.

 

There are two types of authority for a variation:

a formal variation of authority which must be in writing and signed by the authorising officer; or

an urgent variation of authority which may be given orally in person or by telephone or any other means of communication.



An urgent variation of authority can only be granted if the authorising officer is satisfied that the delay caused by granting a formal variation of authority may affect the success of the operation.

 

For urgent applications, p roposed subsection 15GR(2) requires the authorising officer, as soon as practicable, to prepare and give to the applicant (or where varied on the initiative of the authorising officer, to the principal law enforcement officer) a written document that complies with p roposed section 15GS.

Proposed section 15GS: Form of variation of authority

 

Proposed section 15GS sets out the requirements for the form of each variation of authority, whether formal or urgent.  This includes describing the matters in the original authority which are being varied with reference to the purposes described in p roposed subsection 15GO(1A).

Proposed section 15GT: Cancellation of authorities

 

Proposed section 15GT provides for the cancellation of authorities.  The appropriate authorising officer may cancel an authority at any time and for any reason. The appropriate authorising officer may also cancel an authority at the request of the principal law enforcement officer.  A cancellation takes effect from the time the order to cancel is made, or at a later time specified in the order.

Proposed section 15GU:  Effect of authorities

 

Proposed section 15GU describes the effect of an authority for a controlled operation.

 

An authority authorises a participant (whether a law enforcement officer or a civilian) to engage in the controlled conduct specified in an authorisation under proposed section 15GL.          

 

This is consistent with proposed paragraphs 15GJ(1)(e) and 15GK(2)(e) which require the authority for a controlled operation to identify the nature of the controlled conduct which may be engaged in during the controlled operation and proposed paragraphs 15GL(2)(c) which requires the principal law enforcement officer to specify the nature of the controlled conduct that the person may engage in for the purposes of the controlled operation.

The authority to engage in controlled conduct cannot be delegated to any other person.

 

Proposed section 15GV: Defect in authority

 

Proposed section 15GV provides that applications and authorities are not invalidated by defects, unless the defect materially affects the application or authority.  Minor matters relating to form or process should not invalidate an application, authority or variation.

Proposed Division 3—Protection from criminal responsibility and related provisions

Proposed Subdivision A - Controlled Operations under this Part

Proposed section 15GW: Protection from criminal responsibility for controlled conduct during authorised operations

 

Proposed section 15GW protects a participant who engages in controlled conduct during an authorised operation from criminal responsibility for that conduct.  Controlled conduct is conduct which is unlawful.  For example, a participant may be authorised to purchase illicit drugs.  This is an unlawful activity.  However, the effect of proposed section 15GW is that while the controlled conduct remains unlawful in nature, a participant who meets the requirements of proposed section 15GW is not criminally responsible for the offence.

 

This protection from criminal responsibility only applies if certain conditions are met:

·          the participant engages in the conduct in accordance with the authority to conduct the controlled operation; and

·          the participant is authorised under proposed section 15GL to engage in that conduct; and

·          the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit; and

·          the participant does not engage in conduct that is likely to cause the death of or serious injury to any person or involve the commission of a sexual offence against any person; and

·          if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer.

 

While the nature of the activity remains unlawful, as explained above in relation to proposed subsection 15GA(2), when determining the admissibility of evidence the fact that it was obtained by a participant engaging in unlawful activity is to be disregarded if the activity was authorised controlled conduct.

 

This provision is broader than the current Crimes Act provision as it provides protection from criminal responsibility to informants.  Under the current Crimes Act provisions they are excluded from protection.  While recognising that the use of informers can be problematic, law enforcement agencies have indicated that in some circumstances the participation of informers will be crucial to the success of the operation.  These provisions will not be effective unless the protections offered to informants are prospective rather than retrospective.  If the protection for informants was retrospective, then informants participating in a controlled operation would commit unlawful acts without legislative protection and a court might exclude evidence obtained during a controlled operation.

 

As an additional safeguard, proposed paragraph 15GH(2)(h) operates to limit the use of informants in controlled operations by providing that the authorising officer must be satisfied that the role intended for the civilian participant (in this instance, the informant) could not be adequately performed by a law enforcement officer.

 

Proposed section 15GX: Indemnification of participants against civil liability

 

Proposed section 15GX provides that the Commonwealth must indemnify a participant in an authorised controlled operation against any civil liability incurred because of conduct the participant engages in, provided the following requirements are met:

·          the conduct is in the course of and for the purposes of the controlled operation and in accordance with the authority to conduct the controlled operation; and

·          the participant is authorised under proposed section 15GL to engage in that conduct; and

·          the conduct does not involve the participant intentionally inducing another person to commit an offence that the person would not otherwise have intended to commit; and

·          the participant does not engage in conduct that is likely to cause the death of, or serious injury to, any person or involve the commission of a sexual offence against any person; and

·          if the participant is a civilian participant, he or she acts in accordance with the instructions of a law enforcement officer; and

·          any requirements specified in the regulations.

 

This provision is broader than the current Crimes Act provision as it provides indemnity against civil liability to informants.  Under the current Crimes Act provisions they are excluded from protection.  While recognising that the use of informers can be problematic, law enforcement agencies have indicated that in some circumstances the participation of informers will be crucial to the success of the operation. 

 

As noted above, proposed paragraph 15GH(2)(h) operates to limit the use of informants in controlled operations by providing that the authorising officer must be satisfied that the role intended for the civilian participant (in this instance, the informant) could not be adequately performed by a law enforcement officer.  Given this restriction, it is appropriate that where an informant is prepared to assist law enforcement agencies by participating in a controlled operation, they should be entitled to the same protections against civil liability.

Proposed section 15GY: Effect of sections 15GW and 15GX on other laws relating to criminal investigation

 

Proposed section 15GY provides that participants in controlled operations will not be protected from criminal or civil liability (see proposed sections 15GW and 15GX) if they undertake conduct which could be authorised under other laws relating to criminal investigation.  This ensures that the provisions in this proposed Part cannot be used as a substitute for other laws.

 

For example, it is unlawful to forcibly enter a person’s home and take private property.  However, this can be authorised by a search warrant.  Proposed section 15GY ensures that this Act cannot be used instead of the relevant search warrant legislation.

 

Proposed section 15GY also covers conduct relating to:

 

·          the arrest or detention of individuals

·          searches of individuals

·          forensic procedures

·          electronic surveillance devices or telecommunications interception

·          identification procedures

·          the acquisition or use of assumed identities, and

·          any other matter concerning powers of criminal investigation.

Proposed section 15GZ:  Effect of being unaware of variation or cancellation of authority

 

Proposed section 15GZ provides that if an authority to conduct a controlled operation is varied or cancelled (including the cancellation of an authority under proposed section 15GL) but a participant is unaware of the variation or cancellation (and is not reckless about the existence of a variation or cancellation), then this proposed Part continues to apply as if the variation or cancellation had not been made.  This ensures that the participant will remain protected from criminal responsibility (as set out in proposed section 15GW) and indemnified against civil liability (as set out in proposed section 15GX) for as long as they are unaware of the variation or cancellation and are not reckless about the existence of the variation or cancellation.

 

Proposed section 15GZ(3) sets out the circumstances in which a person is reckless about the existence of a variation or cancellation.

 

This provision is narrower than the current Crimes Act provision as it does not provide protection for a participant who is unaware that the authorisation has expired at the end of the period of three months after the day on which it was given.  This is considered to be too broad and may excuse poor operational practices.  It is incumbent on participants of a controlled operation to be aware of the start and end dates of the initial authority to conduct the operation.  The protection provided by proposed section 15GZ should only apply to variations or cancellations that occur subsequent to the granting of the initial authority.  This position is consistent with the model laws.

 

Proposed section 15H:  Protection from criminal responsibility for certain ancillary conduct

 

Proposed section 15H provides protection from criminal responsibility for a person connected with the controlled operation but who is not necessarily a participant in the operation, where that person has a belief that the activities they are engaging in are ancillary or related to the authorised controlled operation.  Because controlled conduct remains unlawful in nature, a person who assists or encourages a participant to engage in that unlawful activity may be liable as an abettor or accessory.

 

For example, it might be argued that other law enforcement officers, such as an authorising officer or a principal law enforcement officer, have counselled, procured, aided or abetted the commission of an offence or have conspired to commit an offence, thereby themselves committing an offence.  

 

A person who engages in this ‘ancillary conduct’ will not be criminally responsible if he or she believed that the ‘related controlled conduct’ was authorised for an operation.

Proposed section 15HA: Compensation for property loss or serious damage

 

Proposed section 15HA provides for compensation to a person who suffers loss or serious damage to property, or personal injury, as a direct result of an authorised controlled operation.  This does not apply to a person who was involved in the commission of an offence (unless it is ‘controlled conduct’) or who is a law enforcement participant. These classes of people may have recourse to compensation through other avenues including court action, but cannot claim under this amendment.

 

This is intended to facilitate claims for compensation for people who suffer property loss, serious damage to property or personal injury because of a controlled operation. Provided a person can show that their loss is a direct result of an authorised operation, the Commonwealth is liable to pay compensation.  An example of this is where a law enforcement participant engaged in a controlled operation loses control of a car he is driving and hits a member of the public walking on the footpath.  The amount of compensation will be as agreed between the claimant and the Commonwealth, or if an agreement cannot be reached then a court will determine the amount.

 

This provision is broader than the model laws as it extends compensation to persons who suffer personal injury as well as property damage.  The current Crimes Act provisions compensate personal injury and there was strong support from law enforcement agencies for this provision to remain.  Inclusion of personal injury makes plain the legal position that would exist in any event, that where the Commonwealth would be tortiously liable for personal injury arising from a controlled operation, it is to pay the compensation for which it is liable at law, or otherwise a settled amount.  The provision is not intended to give rise to a cause of action, or to render the Commonwealth liable in circumstances where it would not otherwise be liable.

Proposed section 15HB: Notification requirements

 

Proposed section 15HB requires a principal law enforcement officer to report loss or serious damage to property or injury to a person occurring in the course of, or as a direct result of, an authorised operation to the chief officer of the law enforcement agency as soon as practicable.

 

Given the covert nature of controlled operations, a person who suffers property loss or damage is unlikely to know that the person who caused the loss or damage was a law enforcement officer or a person authorised by a law enforcement agency and that the loss or damage was the direct result of a controlled operation.  Therefore, proposed section 15HB(2) requires the chief officer to take all reasonable steps to notify the owner. 

 

However, the chief officer is not required to notify the owner until he or she is satisfied that notification would not:

·          compromise or hinder the controlled operation or any related investigation; or

·          compromise the identity of a participant in the controlled operation; or

·          endanger the life or safety of any person; or

·          prejudice any legal proceeding; or

·          otherwise be contrary to the public interest.

 

The chief officer may, by written instrument, delegate his or her functions under this proposed section.

 

Where a person has suffered injury in the course of, or as a direct result of, an authorised controlled operation, the notification requirement in proposed subsection 15HB(2) does not apply.  This is because, in most circumstances, a person will know that they have suffered an injury.  However, they may not be aware that the injury arose as a result of a controlled operation.

 

The exclusions in proposed subsection 15HB(3) are also inappropriate to situations where personal injury has been suffered. 

 

For these reasons, and consistent with the model laws, it has been decided not to make the notification of a person injured as a result of a controlled operation a legislative requirement.  However, law enforcement agencies participating in controlled operations will need to develop administrative protocols to notify where necessary those who are injured, or it is suspected may have been injured, during the course of or as a result of a controlled operation.

Subdivision B—Controlled operations under a corresponding State controlled operations law

Proposed section 15HC: Protection from criminal responsibility for conduct under a corresponding State controlled operations law

P roposed section 15HC applies to a participant in an operation authorised under a corresponding State controlled operations law if:

·          the participant engages in conduct in the course of, and for the purposes of, the operation; and

·          engaging in that conduct is a Commonwealth offence.

The participant is not criminally responsible for the offence, if:

·          the conduct is done in accordance with the authority for the operation; and

·          the conduct does not involve the participant intentionally inducing a person to commit a Commonwealth offence that the person would not otherwise have intended to commit; and

·          the conduct does not involve the participant engaging in any conduct that is likely to:

                              (i) cause the death of, or serious injury to, any person; or

                             (ii)  involve the commission of a sexual offence against any person; and

·          if the person is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.

corresponding State controlled operations law  is defined in p roposed section 15GC to mean a law of, or provisions of a law of, a State or Territory prescribed by the regulations to be a corresponding State controlled operations law. 

This proposed section recognises the State and Territory enactment’s of the model bill to ensure that State and Territory law enforcement officers committing a Commonwealth offence as part of an authorised controlled operation under a corresponding State or Territory law are protected.   Protection from State and Territory offences is automatically provided to State and Territory operatives in cross-border controlled operations as a result of the mutual recognition provisions of the model laws.  As these provisions have no application to the Commonwealth, it is important that we ensure that State and Territory operatives engaged in lawful controlled operations remain protected against criminal liability for Commonwealth offences also.

Proposed section 15HD:  Effect of section 15HC on other laws relating to criminal investigation

Proposed section 15HD provides that p roposed section 15HC does not apply to a person’s conduct that is, or could have been, authorised under Commonwealth law or a law of a State or Territory relating to the following:

·          arrest or detention of individuals

·          searches of individuals

·          entry onto, or searches or inspection of, premises

·          searches, inspections or seizures of other property

·          forensic procedures

·          electronic surveillance devices or telecommunications interception

·          identification procedures

·          the acquisition or use of assumed identities

·          any other matter concerning powers of criminal investigation.

 

The same exemption applies to participants in Commonwealth controlled operations under p roposed section 15GY.

Proposed section 15HE: Protection from criminal responsibility for certain ancillary conduct

 

Proposed section 15HE provides protection from criminal responsibility for a person connected with the controlled operation but who is not necessarily a participant in the operation, where that person has a belief that the activities they are engaging in are ancillary or related to an authorised controlled operation under a corresponding State controlled operations law. Because controlled conduct remains unlawful in nature, a person who assists or encourages a participant to engage in that unlawful activity may be liable as an abettor or accessory.  A person who engages in this ‘ancillary conduct’ will not be criminally responsible if he or she believed that the ‘related controlled conduct’ was authorised under a corresponding State controlled operations law.

Proposed Division 4—Compliance and Monitoring

Proposed section 15HF: Unauthorised disclosure of information

 

Proposed section 15HF creates an offence relating to the unauthorised disclosure of information.  A person is guilty of an offence if he or she intentionally discloses any information and is reckless as to whether the information relates to an authorised controlled operation. 

 

However, it is a defence if the disclosure was made:

·          in connection with the administration or execution of this Part

·          for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

·          in accordance with any requirement imposed by law, or

·          in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.

 

The model laws contain the elements of the defence as elements of the offence.  In general, the prosecution should be required to prove all aspects of a criminal offence beyond reasonable doubt.  However, consistent with criminal law policy, where the matters are peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove than for the defendant to establish, a defence is appropriate.  In this case, the ‘standard evidential burden’ defence is used, making the defendant bear the burden of adducing or pointing to evidence that suggest a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt.

 

The maximum penalty for this offence is 2 years imprisonment.  This offence is to protect persons participating in controlled operations and to ensure the integrity of investigations.

 

Proposed section 15HG: Unauthorised disclosure of information—endangering safety, etc

 

Proposed section 15HG creates an aggravated from of the offence in proposed section 15HF.  This offence is an indictable offence and will be committed in circumstances where:

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

·          the person is reckless as to whether the disclosure of the information could endanger the health or safety of any person or prejudice the effective conduct of a controlled operation

 

As in proposed section 15HF, it is a defence if the disclosure was made:

·          in connection with the administration or execution of this Part

·          for the purposes of any legal proceeding arising out of, or otherwise related to this Part, or of any report of any such proceedings

·          in accordance with any requirement imposed by law, or

·          in connection with the performance of functions or duties, or the exercise of powers, of a law enforcement agency.

 

The model laws contain the elements of the defence as elements of the offence.  In general, the prosecution should be required to prove all aspects of a criminal offence beyond reasonable doubt.  However, consistent with criminal law policy, where the matters are peculiarly within the knowledge of the defendant, and it is significantly more difficult for the prosecution to disprove than for the defendant to establish, a defence is appropriate.  In this case, the ‘standard evidential burden’ defence is used, making the defendant bear the burden of adducing or pointing to evidence that suggest a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt.

 

The maximum penalty for this offence is ten years imprisonment.

 

Proposed section 15HH: Chief officers’ 6 monthly reports to Ombudsman and Minister

 

Proposed subsection 15HH(1) provides that the chief officer of the AFP, the ACC and ACLEI must report each 6 months to the Commonwealth Ombudsman. The report must include details of all controlled operations authorised by the agency during the previous 6 months.

 

Proposed subsection 15HH(2) sets out the details that must be included in each 6 monthly report. These include:

·          the number of formal and urgent authorities granted, refused and varied

·          the nature of the criminal activities against which the authorised operations were directed

·          details of any loss or serious damage to property, or any personal injuries, occurring as a result of the authorised operations, and

·          the number of expired or cancelled authorities.

 

For completed operations, the report must also state:

·              the nature of the controlled conduct engaged in

·              if the operation involved illicit goods, (to the extent known) the nature and  quantity of those goods and the route through which the goods passed in the course of the operation, and

·           all foreign countries through which the illicit goods passed in the course of the operations.

 

This will include the routes through which the goods passed both in Australia and, where relevant, overseas.

 

Where the operation has not been completed, these particulars must be included in the report for the period of six months in which the operation was completed.

 

A copy of this report must be given to the Minister at the same time as it is provided to the Ombudsman.  However, there is no requirement on the Minister to table these six monthly reports in Parliament.

 

Proposed subsection 15HH(3) also empowers the Ombudsman to require the chief officer to furnish additional information on any authorised operation contained in the report.

 

This report forms the first part of a three-tiered independent oversight process by the Commonwealth Ombudsman.  The second tier is set out in proposed sections 15HN and 15HO and involves the inspection of records of the AFP, the ACC and ACLEI by the Ombudsman.  The third tier is set out in proposed section 15HJ and requires the Ombudsman to provide an annual report to the Minister. 

 

The purpose of this independent oversight process is to increase accountability and transparency, and to maintain greater public confidence in the conduct of controlled operations.



Proposed section 15HI: Chief officers’ annual report to the Minister



Proposed section 15HI requires the chief officers’ of each authorising agency to prepare an annual report, as soon as practicable after 30 June each year, on the work and activities of the agency under this Part.  The report must contain the details required by proposed section 15HH(2) in relation to the controlled operations for which the agency was the authorising agency during the previous twelve months.

 

The report must not disclose any information that identifies or is likely to identify any suspect or person involved in the controlled operation ( proposed section 15HI(4)).  This is because the report may reference innocent third parties who provide assistance with a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity. 

 

The report also must not disclose any information that gives particulars of an authorised operation that is not yet completed.  Those particulars must instead be included in the report for the year in which the operation is completed.

 

The chief officer must advise the Minister of any information that should be excluded from the report if it could reasonably be expected to endanger a person’s safety, prejudice an investigation or prosecution, compromise operational activities or methodologies, or because making the information public would be contrary to the public interest for any other reason (proposed subsection 15HI(2)). The Minister, if satisfied on these grounds, must exclude the information before tabling the report in Parliament within the timelines set out in proposed subsection 15HI(3).

 

Where the report refers to the activities of the ACC under a corresponding law the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.

 

Proposed section 15HJ: Annual report by Ombudsman

 

Proposed section 15HJ requires the Commonwealth Ombudsman to prepare an annual report, as soon as practicable after 30 June each year, on the work and activities of the Ombudsman under this Part.  The Commonwealth Ombudsman will also report on controlled operations conducted by the ACC under corresponding State controlled operations laws. As an Australian Government body, responsibility for overseeing and reporting on the ACC’s exercise of functions and powers conferred by a State corresponding controlled operations law also rests with the Commonwealth Ombudsman.

 

The function of the Ombudsman is to ensure that agencies are accountable for the conduct of controlled operations and comply with the requirements of the legislation.  The Ombudsman’s powers are exercised independently and with sensitivity to police operational security and other operational matters.

 

The Ombudsman must give a copy of their report to the Minister and to the chief officer of the law enforcement agency to which the report relates.

 

The report must include comments on the comprehensive and adequacy of the chief officer’s 6-monthly reports under proposed section 15HH.  It must not disclose any information that identifies or is likely to identify any suspect or person involved in the controlled operation ( proposed subsection 15HJ(4)). This is because the report may reference innocent third parties who provide assistance with a controlled operation and who, if mentioned in the report, may be incorrectly presumed to be involved in criminal activity. 

 

The report also must not disclose any information that gives particulars of an authorised operation that is not yet completed.  Those particulars must instead be included in the report for the year in which the operation is completed.

 

The Minister is then required to table the report in Parliament within the timelines set out in proposed subsection 15HJ(3).  Where the report refers to the activities of the ACC under a corresponding law the Minister must send a copy of the tabled report to the State or Territory Minister with responsibility for the corresponding State controlled operations law.

 

Proposed section 15HK: Keeping documents connected with authorised operations

 

Proposed section 15HK provides a list of documents that must be kept by the chief officer of the AFP, ACC and ACLEI including controlled operations applications, authorities, variations and cancellations, and the principal law enforcement officers’ authorisations.  These records will form the basis of the 6-monthly report that is submitted by the chief officer to the Ombudsman.  They will also assist the Ombudsman to measure the agency’s compliance with the requirements of this proposed Part.

Proposed section 15HL:  General register

 

Proposed section 15HL obliges the chief officer to ensure that a general register is kept of all controlled operations applications and authorities.  For each application, the register should specify the details set out in proposed subsection 15HL(2).  This will create a detailed profile of each authority and will include critical details such as whether the authority has been varied, what offences each operation targeted, the duration of the operation and the location of any illicit goods involved.

 

This recognises the importance of keeping appropriate records for proper accountability and oversight purposes.  This will greatly assist the Ombudsman in its oversight role.

 

Proposed subsection 15HL(3) has been included to assist readers, as the register is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

Proposed section 15HM: Appointment of inspecting officers

Proposed section 15HM allows the Ombudsman to appoint members of the Ombudsman’s staff to be inspecting officers for the purposes of this proposed Part.  This appointment must be in writing.

 Proposed section 15HN:  Inspection of records by the Ombudsman

 

Proposed section 15HN establishes an inspection regime by the Commonwealth Ombudsman who is empowered to inspect the records kept by the AFP, the ACC and ACLEI.  This requires the Ombudsman from time to time and at least once every 12 months to inspect the records of the AFP, ACC and ACLEI to determine the extent of compliance with this proposed Part.  Under proposed subsection 15HN(2), as an Australian Government body, responsibility for overseeing the ACC’s exercise of functions and powers conferred by a State corresponding controlled operations law will also rest with the Commonwealth Ombudsman.

 

Proposed subsection 15HN(3) sets out the powers of the relevant Ombudsman in relation to these inspections.  The Ombudsman may enter AFP, ACC or ACLEI premises at any reasonable time after notifying the chief officer of the agency.  The Ombudsman is then entitled to full and free access at all reasonable times to all records of these agencies relevant to the inspection and has the power to make copies of these records.  The Ombudsman also has the power to require a member of staff to provide any information relevant to the inspection that is in their possession or to which the member has access.

 

Proposed subsection 15HN(4) provides that the chief officer is obligated to ensure that members of their staff provide the Ombudsman with any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform their functions.

 

Proposed subsection 15HN(5) provides that the Ombudsman can choose to refrain from inspecting records of the AFP, ACLEI or the ACC that relate to ongoing investigations.  This is to avoid interfering in a current operation and to ensure the safety of inspecting officers. 

 Proposed section 15HO:  Power to obtain relevant information

Proposed section 15HO empowers the Commonwealth Ombudsman to require a law enforcement officer of a law enforcement agency (whether it is an authorising agency or not) to provide information to the Ombudsman in writing, signed by the law enforcement officer, at a specified place and within a specified period of time where the Ombudsman has reason to believe that the law enforcement officer is able to give the information required.  The Ombudsman must write to the law enforcement officer requesting this information.  This will generally be a law enforcement officer involved in the conduct of the controlled operation or an authorising officer.

The Ombudsman may also require (by writing) a law enforcement officer to answer questions before a specified inspecting officer at a specified place and within a specified period, or at a particular time on a specified day.

Proposed subsection 15HO(4) also authorises the Ombudsman to write to the chief officer of a law enforcement agency to require them, or a person nominated by the chief officer, to answer questions relevant to the inspection before a specified inspecting officer at a specified place and within a specified period, or at a particular time on a specified day.  The place and the period or the time of the day must be reasonable having regard to the circumstances in which the request is made. 

The Ombudsman can only write to the chief officer under p roposed subsection 15HO(4) where they have reason to believe that a law enforcement officer of that agency, whose identity is unknown to the Ombudsman, is able to give information relevant to an inspection under this Division.

The outcomes of these inspections will be included in the Ombudsman’s annual report to Parliament (see p roposed section 15HJ).

This power is consistent with the power of the Ombudsman under section 56 of the Surveillance Devices Act 2004 .

 Proposed section 15HP:  Offence

Proposed section 15HP establishes an offence where a person refuses to attend before a person, to give information or to answer questions when required to do so under proposed section 15HO.  The penalty for the offence is imprisonment for six months.

Proposed section 15HQ: Ombudsman to be given information and access despite other laws

Proposed section 15HQ states that a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Division, on the ground that giving the information, answering the question, or giving access to the document, as the case may be, would contravene a law, would be contrary to the public interest, was protected by legal professional privilege or might tend to incriminate the person or make the person liable to a penalty.  However:

·          the information, the answer, or the fact that the person has given access to the document, as the case may be, and

·          any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against proposed sections 15HF or 15HG or Part 7.4 or 7.7 of the Criminal Code.

Part 7.4 and 7.7 of the Criminal Code relate to hindering, obstructing, intimidating or resisting a public official in the performance of their functions.

Proposed subsection 15HQ(2) provides that nothing in p roposed sections 15HF or 15HG, which relate to unauthorised disclosure of information, or any other law prevent an officer of an agency from giving information to an inspecting officer in any form or from giving access to a record of the agency for the purposes of an inspection under this Division of the agency’s records.

Proposed subsection 15HQ(3) adds to this by providing that nothing in proposed sections 15HF or 15HG or any other law prevents an officer of an agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by p roposed subsection 15HQ(2).

Proposed section 15HQ(4) provides that where a person has provided information, produced a document or answered a question under this proposed Part, this does not otherwise affect a claim of legal professional privilege that anyone may make in relation to that information, document or answer.

Proposed section 15HR: Exchange of information between Ombudsman and State inspecting authorities

Proposed sections 15HR and 15HS allow the Commonwealth to develop more effective and consistent inspection arrangements with other inspecting bodies, particularly State Ombudsman.

P roposed subsection 15HR(1) provides definitions for State and Territory agency and State or Territory inspecting authority for the purposes of p roposed section 15HR.

Proposed subsection 15HR(2) authorises the Ombudsman to give information that relates to a State or Territory agency which was obtained by the Ombudsman under this Division to the inspecting authority in relation to the agency in the relevant State or Territory.  Under p roposed subsection 15HR(3) the information can only be passed where the Ombudsman believes the information is necessary for the inspecting authority to perform its functions in relation to the State or Territory agency.

Conversely, under proposed subsection 15HR(4), the Ombudsman can receive from a State or Territory inspecting authority information relevant to the performance of the Ombudsman’s functions under this Division.

Proposed section 15HS: Delegation by Ombudsman

Proposed sections 15HS and 15HR allow the Commonwealth to develop more effective and consistent inspection arrangements with other inspecting bodies, particularly State Ombudsman.

Proposed section 15HS authorises the Ombudsman to delegate some or all of his or her powers under this Division, except the power to report to the Minister.  The delegation can be to an APS employee responsible to the Ombudsman.  It can also be to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person.  For example, the delegation could include the Parliament Crime and Misconduct Commissioner (QLD) or an independent member of the controlled operations committee established under the Police Powers and Responsibilities Act (QLD).  The delegation can be of a general nature or be exercised within terms provided by an instrument of delegation.

Proposed subsection 15HS(2) provides that a delegate under this Division is to provide a copy of the delegation instrument for inspection by a person who is affected by the exercise of any power so delegated if a request to see it is made.

Proposed section 15HT: Ombudsman not to be sued

Proposed section 15HT gives immunity from action, suit or proceeding to the Ombudsman, an inspecting officer or a person acting under an inspecting officer’s direction or authority for an act or omission that was done in good faith in the performance or exercise, purported or otherwise, of a function or power conferred under this Division.

Proposed Division 5—Miscellaneous

Proposed section 15HU: Evidence of authorities

 

Proposed section 15HU enables an authority granted under proposed section 15GH or under a corresponding State controlled operations law to be tendered in evidence in legal proceedings.  In the absence of evidence to the contrary, the authority will be proof that the person who granted the authority was satisfied of the facts that he or she was required to be satisfied of to grant the authority.

Proposed section 15HV: Chief Executive Officer of Customs to be notified of certain authorities

The purpose of p roposed section 15HV is to ensure that the Australian Customs Service is notified of any authorised controlled operation where it is believed that the operation will involve illicit goods passing through the customs barrier.  The applicant for the authorisation must forewarn the Australian Customs Service in such cases.

 Proposed subsection 15HV(1) provides that the notification requirement applies where:

·          an authority is granted under p roposed section 15GH by an AFP authorising officer, an ACC authorising officer or an ACLEI authorising officer; and

·          the applicant for the authority believes that illicit goods involved in the conduct of the operation may be dealt with by the Australian Customs Service.

Proposed subsection 15HV(2) requires the applicant for the authorisation, once it is granted, to notify the Chief Executive Officer of Customs, or nominated person , (in writing) of:

·          the applicant’s name; and

·          the date on which the authority was granted; and

·          to the extent to which it is known:

                              (i) the place or places at which the illicit goods will pass into the control of the Australian Customs Service; and

                             (ii) the time or times when, and the day or days on which, the illicit goods are expected to pass into the control of the Australian Customs Service.

Proposed subsection 15HV (3) provides that a failure to comply with this section does not affect the validity of an authority.

 

Part 1AC-Assumed Identities

 

gENERAL OUTLINE

 

This proposed Part of the Bill implements national model legislation that was developed by a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council to facilitate the use of assumed identities by law enforcement agencies in cross-border investigations. The model laws were published in November 2003 in the Joint Working Group’s Report on Cross-Border Investigative Powers for Law Enforcement. 

 

The Bill expands the operation of the model laws by extending the legislative scheme beyond law enforcement officers to include security and intelligence officers and other authorised people (such as foreign law enforcement officers) and allowing them to acquire and use assumed identities for law enforcement and security and intelligence purposes.  This recognises the unique role of Commonwealth agencies in national security and intelligence operations as well as in the investigation of crimes with a foreign aspect.  

 

The Bill also specifically allows the AFP officers to obtain assumed identities for the purpose of performing their roles under the National Witness Protection Program (NWPP).  This is crucial to the operation of the NWPP as AFP officers are required to assume an alternate identity so as to protect a witness under the scheme without bringing attention to the fact that they are being protected by police.

 

The proposed sections in this Bill provide for the lawful acquisition and use of assumed identities and facilitate mutual recognition of things done in relation to an assumed identity under a corresponding law.  An assumed identity is a false identity that is used by law enforcement or security and intelligence officers, or other persons, for a period of time for the purpose of investigating an offence, gathering intelligence or for other security activities.

 

Proposed Division 1-Preliminary

 

Proposed section 15HW: Definitions

 

Proposed section 15HW provides definitions for the Bill.

 

Some key definitions are:

 

authorised civilian is a person, who is not an officer of a law enforcement agency or intelligence agency or a foreign officer, but who is authorised to acquire or use an assumed identity.

 

authorised foreign officer   is an officer from a foreign country who is authorised to acquire or use an assumed identity.

 

authorised intelligence officer   is an intelligence officer (ie ASIO or ASIS officer) who is authorised to acquire or use an assumed identity.

 

authorised law enforcement officer   is a law enforcement officer (eg AFP or ACC officer) who is authorised to acquire or use an assumed identity.

 

authorised person is someone authorised under these provisions to acquire or use an assumed identity. An authorised person will usually be a law enforcement officer or an intelligence officer but in some cases may be a civilian or a foreign officer. The Bill requires a supervisor to be appointed if a civilian is authorised to acquire and use an assumed identity (see proposed subsection 15HX(5)).

 

certificate of authorisation means the certificate granted under proposed section 15J to an authorised person who has been given an assumed identity.  This certificate contains various details in relation to the assumed identity - eg issuing agency, date of authorisation etc and must be signed by the person granting the authorisation.

 

chief officer — the chief officer of a law enforcement agency and an intelligence agency has particular responsibilities under the Bill, such as approving, varying and cancelling authorities, arranging audits, keeping appropriate records and submitting reports. These functions are delegable to other senior officers under proposed section 15KC.  ‘Senior officer’ is defined by in proposed subsection 15KC(3) of the Bill.

 

Commonwealth government issuing agency means a Commonwealth agency that issues evidence of identity (such as passports, tax file numbers etc) and that is named in an authority.  

 

corresponding assumed identity law means a law of another jurisdiction or a part of a law, that is prescribed by the regulations to be a corresponding identity law. The mutual recognition provisions in proposed Division 5 of the Bill contain the mechanisms which allow law enforcement agencies from one jurisdiction to make requests for assumed identity documents in other participating jurisdictions.

 

corresponding authority means an authority granted under corresponding assumed identity laws of participating jurisdictions.  The mutual recognition provisions in proposed Division 5 of the Bill provide for corresponding authorities to be recognised as if they were granted under this Bill.

 

evidence of identity is defined broadly to cover a variety of documents that can be used to evidence a person’s identity.

 

foreign officer is defined broadly to cover law enforcement and intelligence officers of a foreign country.

 

issuing agency means an agency that issues evidence of identity. Persons authorised to acquire or use assumed identities will be able to acquire documentation from both Commonwealth government issuing agencies, such as Medicare or the Australian Tax Office, and non-Commonwealth government issuing bodies, such as banks and other financial institutions and State and Territory agencies.

 

National Witness Protection Program means the Program by that name established by the Witness Protection Act 1994 .   This Part specifically allows AFP officers to obtain assumed identities for the purpose of performing their roles under the National Witness Protection Program (NWPP).

 

Supervisor this refers to the supervisor who must be appointed under proposed subsection 15HX(5) to supervise a civilian who is authorised to acquire or use an assumed identity.

 

Proposed Division 2—Authority for Assumed Identity

 

Proposed section 15HX: Application for authority to acquire or use assumed identity

 

Proposed section 15HX allows a law enforcement or intelligence officer to make a written application to the chief officer of the agency for an authority to acquire and use an assumed identity. A separate application must be made in respect of each assumed identity to be acquired.  Only law enforcement or intelligence officers can make an application. 

 

A law enforcement officer can make an application to acquire and use an assumed identity on behalf of themselves, a colleague, a foreign officer or a civilian.  Similarly, an intelligence officer can make an application on behalf of themselves, a colleague, a foreign officer or a civilian. 

 

·          Where a law enforcement officer makes an application that includes a request to use the assumed identity in a foreign jurisdiction, or makes an application on behalf of a foreign officer to use an assumed identity in Australia; and

·          the law enforcement officer is a member of the ACC - the application can be made to the chief officer of the ACC; and

·          the law enforcement officer is a member of another law enforcement agency under this proposed Part - the application must be made to the chief officer of the AFP.

 

The AFP has a number of established relationships with foreign law enforcement agencies as Australia’s international law enforcement agency and is able to obtain the appropriate authorisations from these foreign jurisdictions to protect an Australian officer using an assumed identity in the foreign country from criminal prosecution or civil liability.

 

Intelligence agencies are also able to authorise a person to use an assumed identity in a foreign country or authorise a foreign officer to acquire or use an assumed identity in Australia.

 

The application must contain the information listed in proposed subsection 15HX(5). These details include the name of the applicant, and the name of the person to be authorised to acquire or use the assumed identity. This is necessary because the applicant may not always be the person who is to acquire and use the assumed identity.

 

For example, it may be necessary in an investigation for a civilian to acquire and use an assumed identity.  In this case (in recognition of the fact that a civilian is not a trained law enforcement or intelligence officer), a supervisor must be appointed to manage the civilian’s acquisition and use of the assumed identity.  This requirement reflects the need for persons who are not law enforcement or intelligence officers, or who are not foreign officers, to be under the command and direction of a person who is part of the authorising person’s agency so that the operation is controlled by such an agency to the greatest extent possible. 

 

Proposed subparagraph 15HX(5)(b)(iii) requires the applicant to provide an explanation of why it is necessary for a person who is not a law enforcement officer, intelligence officer or foreign officer to acquire or use an assumed identity.  The applicant must also provide reasons why the assumed identity is needed (proposed subparagraph 15HX (5)(b)(v)) and where relevant, details of the investigation or intelligence-gathering exercise in which the assumed identity will be used (to the extent known at the time) (proposed subparagraph 15HX (5)(b)(vi)).  It is also to include details of any application that is to be made to include an entry in a register of births, deaths and marriages under a corresponding law (proposed subparagraph 15HX (5)(b)(viii)).

 

It may not be possible for the information in proposed subparagraph 15HX (5)(b)(vi) to be included in all applications for assumed identities as the operational realities of undercover work normally requires an operative to obtain one or more assumed identities some time prior to using the identity in the field.  This is necessary to allow sufficient time for them to create a realistic history for the operative.  As a result, at the time of the application, the specific context of the use of the assumed identity may be unknown.

 

The compliance and monitoring provisions in proposed Division 6 of this Bill provides the checks and balances necessary to prevent abuse and to confine the use of assumed identities to their proper purposes.

 

Proposed section 15HY-Determination of applications

 

Proposed section 15HY allows the chief officer of an agency to grant an authority to acquire or use an assumed identity, and to impose conditions on the authority.  The chief officer may delegate this function under proposed section 15KC.  In determining whether to grant an authority, the chief officer must be satisfied on reasonable grounds that the assumed identity is necessary for the purposes of an investigation or for gathering intelligence in relation to criminal activity; for the exercise of powers and performance of functions of an intelligence agency; for the exercise of powers and performance of functions under the NWPP;  for the training of persons to carry out any of these powers or functions or for any administrative function in support of any of these powers or functions.

 

In considering whether the authority is necessary for the purposes of an investigation or for gathering intelligence in relation to criminal activity, it is not necessary to point to a specific criminal activity.  As stated above (see proposed subparagraph 15HX(5)(b)(vi), the operational realities of undercover work normally requires an operative to obtain one or more assumed identities some time prior to using the identity in the field.  This is necessary to allow sufficient time for them to create a realistic history for the operative.  As a result, at the time of the application, the specific context of the use of the assumed identity may be unknown.

 

Law enforcement agencies do not send people using an assumed identity into an undercover situation without considerable training.  This training is done covertly, and both the instructors and students may be using assumed identities for all or part of the training.  It is also important to ensure that certain administrative functions cannot be traced back to the law enforcement agency.  For example, the placing of money in an undercover operative’s bank account, if linked back to an account operated by the law enforcement agency, would place the operative in significant danger.  As such, a number of these administrative functions are undertaken under an assumed identity.

 

The chief officer must also be satisfied that the risk of abuse of the assumed identity is minimal, and, if authorising the acquisition or use of an assumed identity by a civilian, that it is impossible or impracticable for law enforcement or intelligence officer to acquire or use the identity instead.  This is to ensure that the use of civilians, who may not have the same high level of training as law enforcement or intelligence officers, is carefully considered by authorising officers.

 

As an additional safeguard, when civilians are being used to acquire and use assumed identities, the chief officer must appoint a supervisor.  Proposed subsection 15HY(4) details the minimum rank or position that a supervisor must hold in each agency.

 

A separate approval is required for every assumed identity.  This will facilitate the audit process under proposed section 15KB of the Bill, and ensure that the chief officer gives appropriate consideration to the need for the acquisition and use of each assumed identity.

 

Where a request is made to use the assumed identity in a foreign country, the chief officer can only approve this use if they are satisfied that it is reasonably necessary to do so. This means that in relation to the use of an assumed identity in a foreign country, an additional test is applied before the authorisation may be issued. This reflects the need to ensure that the provisions do not apply in foreign countries - unless there is a clear need for that operation and all relevant matters (eg the inability to exempt an Australian from the operations of the laws of a foreign country) have been taken into account.  It should be noted that this does not effect any obligation to obtain authority in the foreign jurisdiction to use the assumed identity in that jurisdiction.

 

Proposed section 15HZ-Form of authority

 

Proposed section 15HZ sets out the details required to be included on the form of each authority.  Each authority must be in writing, and it must include details of the assumed identity authorised; details of any evidence that can be acquired under the authority; the name of the person authorised to use the assumed identity; and, where that person is a civilian, the name of the supervisor appointed under the authority.



Where the authority relates to a civilian, it must also state the period that the authority will remain in force.  A civilian whose supervisor is a law enforcement officer can have an authority for a period not exceeding 3 months.  The authority for a civilian whose supervisor is an intelligence officer remains in force until cancelled (see proposed section 15JA).

 

The authority is intended to authorise the creation of documents that relate to the assumed identity (which is a fictitious identity).  These documents will be evidence of the assumed authority.  However, once these initial documents of identity have been created and provided to the authorised person, the person is then able to use that identity as if it is their actual true identity.  The authorised person does not require further authorisation, for example, to open a bank account in the assumed name, obtain a video/DVD rental card in the assumed name, or to apply for benefits, such as social security payments from Centrelink, in the assumed name.

 

Proposed section 15J-Certificate of authorisation

 

Proposed section 15J allows the chief officer to grant a certificate of authorisation in relation to each issuing agency to which a request for evidence of an assumed identity is to be made under proposed section 15JF or 15JS.  A separate certificate must be given to each agency and must state the matters set out in proposed subsection 15J(3).  The person granting the authority must also sign the certificate.  The functions of the chief officer may be delegated under this proposed subsection - see proposed section 15KC.

 

This was not contained in the original model laws.  Under the Model Laws, the authority provided under proposed section 15HZ would be provided to the issuing agency.  However, law enforcement agencies expressed a concern that this unnecessarily provided issuing agencies with access to details that could compromise the security of the person obtaining the assumed identity.  Therefore, it was suggested that a reduced form of the authority that contained only the necessary details required for the issuing agency to create the document of identity should be used.  The certificate of authorisation fulfils this function.

 

 Proposed section 15JA-Period of authority

 

Proposed section 15JA sets out the period of time for which an authority for an assumed identity is valid.  An authority for a law enforcement, intelligence officer, foreign officer or civilian whose supervisor is an intelligence officer remains in force until it is cancelled.  This allows flexibility for operational purposes.  For example, it may be necessary in an undercover operation to acquire and use an assumed identity for a certain period of time, to discontinue the assumed identity at the end of one part of the operation, and then to start using that identity again at a later date.

 

To provide a sufficient level of oversight and accountability, however, proposed section 15JC requires the chief officer of the law enforcement agency to ensure each authority is reviewed annually.  The chief officers of an intelligence agency must review their authorities every 3 years. 

 

For a civilian whose supervisor is a law enforcement officer, an assumed identity authority must be for a limited period of 3 months or less (proposed subparagraph 15(2)(h)(iii)).  Civilians will only be used where it is impossible or impracticable for a law enforcement officer to acquire or use the assumed identity, and such civilians are only intended to be utilised for a small period of time.

 

For a civilian whose supervisor is an intelligence officer, the authority will remain in force until it is cancelled.  However, these will be reviewed annually, as the agency has an obligation to ensure the continued protection and supervision of the civilian operation - and to terminate the assumed identity as soon as the particular operation, or role of the civilian, has concluded. 

 

Proposed section 15JB-Variation or cancellation of authority

 

Proposed section 15JB provides that the chief officer may vary or cancel an assumed authority at any time, and they must cancel the authority if they are satisfied (on review under proposed section 15JC or otherwise) that the assumed identity authority is no longer needed. Written notice of the variation or cancellation must be provided, where practicable, to the person authorised to acquire or use the assumed identity, and to any supervisor who may have been appointed to supervise civilian acquisition and use of an assumed identity under proposed section 15HX(5). 

 

The cancellation or variation of the assumed identity takes effect on the day the written notice is given to the authorised person or if a later day is stated on the notice on that day or, if the authorised person is a civilian, when the notice is given to their supervisor or if a later day is stated in the notice, on that day; or, in any other case, the day stated in the notice. It is important that authorised persons are properly notified of any changes to authorities, where practicable, as the protection from civil and criminal liability in proposed sections 15JK and 15JL applies if the acts are done in accordance with the original authority.

 

In some cases it will not be practicable for the authorised person to be notified of the variation or cancellation - for example, if the person is missing or has deliberately disappeared.  In these circumstances, the agency may decide to cancel the authority.  However, the authorised person may still have protection from civil and criminal liability with respect to their assumed identity as long as they are not reckless about the existence of the cancellation of this identity (see proposed section 15JR).

 

Proposed section 15JC-Yearly review of authority

 

Proposed section 15JC requires the chief officer of a law enforcement agency to review each authority granted by the chief officer or their delegate.  Each authority must be reviewed at least once every 12 months in order to determine whether the use of the assumed identity is still necessary. 

 

If the chief officer is satisfied that the assumed identity is no longer needed, they must cancel the authority under proposed section 15JB of the Bill.  If the chief officer determines that the assumed identity is still necessary, they must record their reasons for this decision in writing.  This ensures that the review process has integrity as it requires the reviewing officer to consider the reasons why the assumed identity is still needed.

 

The chief officer of an intelligence agency is to review each authority granted by the chief officer, or their delegate, to an intelligence officer at least once every 3 years in order to determine whether the use of the assumed identity is still necessary.  If an authority is granted to a civilian, it is to be reviewed at least once every 12 months.  If the chief officer is satisfied that the assumed identity is no longer needed, they must cancel the authority under proposed section 15JB of the Bill.  If the chief officer determines that the assumed identity is still necessary, they must record their reasons for this decision in writing.

 

 Proposed section 15JD-Making entries in register of births, deaths or marriages

 

Proposed section 15JD provides for making entries in the relevant Register of Births, Deaths and Marriages (BDM Register) in relation to assumed identities.  If such an entry is required in order to create a credible identity for the authorised person who is using the identity in the field, the chief officer of a law enforcement or intelligence agency may make an application to the Supreme Court of the relevant jurisdiction for an entry in the BDM Register - if this is permitted under a corresponding law. 

 

There is no BDM Register at the Commonwealth level.  The Commonwealth must, therefore, rely on the power provided under the mutual recognition provisions of State and Territory corresponding laws to request the relevant Supreme Court to authorise the required entry in their jurisdiction’s BDM Register.

 

As part of this process, it may also be necessary to create entries in a BDM Register for fictitious ‘parents’ or ‘relatives’ of the assumed identity.  This will assist in substantiating the background and credibility of the assumed identity.  The model laws intend that such entries should be allowed to be made if appropriate.



Proposed section 15JE-Cancellation of authority affecting entry in register of births, deaths or marriages

 

Proposed section 15JE applies if the chief officer cancels an authority for an assumed identity under proposed section 15JB and there is an entry in relation to that BDM Register in a participating jurisdiction.  In these circumstances, the chief officer of the relevant agency must apply for an order under the corresponding law of the relevant jurisdiction within 28 days for an order cancelling that entry in that BDM Register.



Proposed Division 3-Evidence of Assumed Identity

 

Proposed section 15JF-Request for evidence of an assumed identity 

 

Proposed section 15JF provides that if the appropriate authority is given under proposed section 15HY of the Bill, then the chief officer may request the chief officer of an issuing agency to produce evidence of an assumed identity in accordance with the authority; and give evidence of that assumed identity to the authorised person named in the authority.  The request must state a reasonable time for compliance and include the certificate of authorisation issued under proposed section 15J.  This does not authorise a request for an entry to be made in a BDM Register, as this is specifically dealt with in proposed section 15JD.  The evidence of the assumed identity is defined broadly so that it may cover a variety of documents including passports, tax file numbers, credit/bank cards and Medicare cards.

 

The intention is that the certificate of authorisation will serve as the requesting notice, without the need for anything further to be produced to the issuing agency.   The certificate specifies the name of the issuing agency, and evidence of identity that may be requested - and it is intended to provide the issuing agency with the necessary authority to act.



Proposed section 15JG-Government issuing agencies to comply with request

 

Proposed section 15JG requires the chief officer of a Commonwealth government issuing agency to comply with a request for assumed identity documents under proposed section 15JF.  Compelling the Commonwealth government agencies to comply with requests from law enforcement or intelligence agencies makes it clear that, as between the Commonwealth government issuing agencies and law enforcement and intelligence agencies, the decision to create an assumed identity rests with the law enforcement or intelligence agency.  This has the advantage of simplifying the position of the Commonwealth government issuing agencies by obviating the need for them to have a decision-making apparatus.

 

Proposed section 15JH-Non-government issuing agencies may comply with request

 

Proposed section 15JH provides that the chief officer of a non-Commonwealth government issuing agency who receives a request under proposed section 15JF may comply with a request but is not required to do so. 

 

The provision provides a discretion because it is not appropriate for non-Commonwealth government bodies to be compelled to comply with these requests.

 

In addition, for operational and security reasons, law enforcement and intelligence agencies propose to acquire evidence of an assumed identity, such as a passport, through government agencies and use this evidence to acquire other documentation from non-government agencies such as financial institutions. In this way non-Commonwealth government organisations are not alerted that the documentation is being acquired for law enforcement or intelligence purposes as part of a legally acquired assumed identity. The information in relation to an assumed identity is extremely sensitive information that goes directly to issues of personal security and safety of a covert operative and their family. Some non-government issuing agencies will not be able to meet a reasonable level of security and confidentiality for the relevant records or be able to provide adequate vetting of staff.' 

 

Proposed section 15JI-Cancellation of evidence of assumed identity

 

Proposed section 15JI provides that the chief officer of an issuing agency who produces evidence of an assumed identity is required to cancel that evidence if directed in writing to do so by the chief officer of the agency who requested the evidence. This is to ensure that evidence of an assumed identity is cancelled when no longer necessary.

 

The evidence may be cancelled by deleting or altering an entry in a record of information.  The intention is to terminate the effect of the evidence of identity that was issued.  For example, this might mean simply monitoring the use of that evidence of identity and not allowing it to be used for the relevant purpose - once the identity has been ‘cancelled’. 

 

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

 

Proposed section 15JJ-Return of evidence of assumed identity

 

Proposed section 15JJ allows the chief officer of a law enforcement or intelligence agency to request, in writing, that the authorised person return any evidence of the assumed authority acquired under the authority once the authority ceases to be in effect.

 

This is to ensure that civilians or other authorised persons are not left with documentation or other evidence relating to well-established false identities that they may be able to continue to use after the authority for this assumed identity has ceased. 

 

Failure to comply with a request made under proposed section 15JJ is punishable by a fine of 10 penalty units.

 

Proposed section 15JK-Protection from criminal liability-officers of issuing agencies

 

Proposed section 15JK provides protection from criminal liability for the chief officer, or another officer, of an issuing agency who does something to comply with a request under proposed section 15JF or a direction under proposed section 15JI.  This means that officers of agencies that issue assumed identity documents (which are essentially false documentation) will not be criminally liable for these acts pursuant to a request under proposed section 15JF, or a direction under proposed section 15JI.

 

Proposed section 15JL-Indemnity for issuing agencies and officers

 

Proposed section 15JL applies when a chief officer of a law enforcement or intelligence agency makes a request under proposed section 15JF, or gives a direction under proposed section 15JI, to the chief officer of an issuing agency.  In these circumstances, the law enforcement or intelligence agency must indemnify the issuing agency, or an officer of that agency, for any liability incurred by that agency or officer, if the liability was incurred because of something done by the agency or officer to comply with a request or direction in the course of their duty - eg if the issuing agency were to incur a civil debt as a result of issuing the assumed identity, in compliance with the request from the law enforcement or intelligence agency.  

 

Proposed Division 4-Effect of Authority

 

Proposed section 15JM-Assumed identity may be acquired and used

 

Proposed section 15JM provides that an authorised law enforcement officer, intelligence officer and foreign officer may acquire or use an assumed identity if the acquisition or use is in accordance with an authority, and in the course of their duty.

 

An authorised civilian may acquire or use an assumed identity if the acquisition or use is in accordance with the authority, and in accordance with any directions given by the person’s supervisor.

 

Proposed section 15JN-Protection from criminal liability - authorised persons

 

Proposed section 15JN provides that authorised persons will receive protection from criminal liability for an act which, but for this, would otherwise be an offence - as long as the act is done in the course of acquiring or using an assumed identity in accordance with the lawful authority.

 

In the case of an authorised law enforcement, intelligence or foreign officer, the act must also be done in the course of the officer’s duty; in the case of an authorised civilian, the act must have been done in accordance with any directions given by their supervisor.

 

In addition, the protection from criminal liability will only be available for conduct which would not constitute an offence if the assumed identity was the person’s real identity. 

 

This last requirement means that:

 

·                 if the authorised officer uses an assumed identity in such a way that would but for this, constitute an offence, then the officer is exempt from criminal liability for that conduct if that use was not an offence if the assumed identity was their real identity.  For example, it is an offence for a person to receive Job Search Allowance if they are not unemployed.  The authorised officer can be employed by the relevant law enforcement or intelligence agency.  However, if the approved officer’s assumed identity shows evidence that they are unemployed, they can receive Job Search Allowance without being criminally liable.

 

·                 an officer will still be criminally responsible for an offence if the conduct would constitute an offence even if the assumed identity was the person’s real identity. The effect of this is to ensure that the proposed provisions do not de-criminalise conduct that is not authorised, as a matter of law, by the use of any identity.  For example it is an offence for anyone to take protected fauna out of Australia.  An approved officer who has a passport as evidence of an assumed identity and who takes protected fauna out of Australia whilst travelling on that passport, will still be criminally responsible for removal of the fauna from Australia (unless the conduct is authorised under another law, for example, under a controlled operation).

 

Proposed section 15JO-Protection from criminal liability - third parties

 

Proposed section 15JO provides protection to third parties if the person is a Commonwealth officer and they do a thing in the course of their duty that would, but for this, have been a criminal offence - and they have been authorised by the chief officer to do that thing.  For this protection to apply, it must also be shown that if the authorised person had done the thing in accordance with the authority, the authorised person would not have been criminally liable for the offence because of the application of proposed section 15JN.

 

This is intended to protect Commonwealth officers who are responsible for ensuring a complete history of the authorised person (known as ‘backstopping’).  These officers will often create fictitious background information relating to the assumed identity in order to validate the assumed identity - eg create false family history information, false school records etc.  Also, for example, the Commonwealth officers may create a fictitious company in which the authorised person is a director under their assumed identity. In filling in the relevant forms needed to establish a company, these officers would provide details of the assumed identity (knowing these details were not those of a 'real' person) and in doing so, would knowingly provide false or misleading information to the Commonwealth . Without the protection provided by proposed section 15JO, these officers could be liable to prosecution for a Commonwealth criminal offence.

 

Proposed section 15JP-Indemnity for authorised persons

 

Proposed section 15JP applies if the chief officer of a law enforcement or intelligence agency grants an assumed identity authority.  The agency must indemnify the authorised law enforcement, intelligence or foreign officer under the authority for any liability incurred by that authorised officer because of something the officer does in the course of acquiring or using an assumed identity, which is in accordance with the authority and in the course of duty.  For an authorised civilian to receive the indemnity, the act must be in accordance with the authority and any directions issued by the supervisor.

 

Proposed section 15JQ-Particular qualifications

 

Proposed section 15JQ provides that the protections from criminal and civil liability will not apply to anything an authorised person does if a particular qualification is needed to do the act, and the person does not have that qualification. This limitation ensures that authorised persons cannot use an assumed identity to engage in activities they are not qualified to engage in - even if the person has acquired a document which indicates that the person has the qualification.

 

For example, a law enforcement officer (who does not hold medical qualifications), would not receive protection against criminal liability if they prescribed medication as a medical doctor, even if their assumed identity was one of a General Practitioner with evidence of being medically qualified and authorised to prescribe medication

 

Proposed section 15JR-Effect of being unaware of variation or cancellation of authority

 

Proposed section 15JR provides that if an authorised person is not aware that an authority has been varied or cancelled, and the person is not reckless about the existence of the variation or cancellation, then the person will still receive protection from criminal and civil liability under this Division.

 

Proposed subsection 15JR(3) describes when a person is reckless for the purposes of this proposed section.

 

Proposed Division 5-Mutual Recognition Under Corresponding Laws

 

Proposed section 15JS-Requests to a participating jurisdiction for evidence of an assumed identity

 

Proposed section 15JS applies if the chief officer of a law enforcement or intelligence agency grants an authority under proposed section 15HY which authorises a request for evidence of an assumed identity from a participating jurisdiction. The chief officer who grants the authority may request the chief officer of the issuing agency in a participating jurisdiction which is stated in the authority to produce evidence of the assumed identity in accordance with the authority; and to give that evidence to the authorised person named in the authority.  The request must include the certificate of authorisation issued under proposed section 15J in relation to each issuing agency.

 

In practice, this will only apply to State and Territory government issuing agencies - as an authorisation under proposed section 15HY will apply to all non-government issuing agencies, despite the State or Territory in which they may be located. 

 

A request must not be made under this for an entry in a participating jurisdiction’s BDM Register.  Requests for such entries must be made in accordance with proposed section 15JD.

 

Proposed section 15JT-Requests from a participating jurisdiction for evidence of an assumed identity

 

Proposed section 15JT applies if an authority, under a corresponding law in a participating jurisdiction authorises, a request for the production of evidence of an assumed identity from the Commonwealth.  The chief officer of a Commonwealth government issuing agency who receives a request must comply with the request.

 

It is not appropriate for requests to be made under this provision to the chief officer of a non-government issuing agency.  The effect of allowing such requests to be made would be to circumvent the national mutual recognition aspect of the model laws.  This is because under the Commonwealth provisions, a request can be made to any non-government issuing agency despite the jurisdiction.  It is more appropriate for these requests to be made on the basis of mutual recognition between the States and Territories.  Therefore, this provision will only apply to the request for the production of evidence from Commonwealth government issuing agencies.

 

Proposed section 15JU-Directions from a participating jurisdiction to cancel evidence of assumed identity

 

Proposed section 15JU applies when the chief officer of an issuing agency produces evidence of an assumed identity pursuant to a request made under proposed section 15JT.  The chief officer of that issuing agency must cancel that evidence if directed to do so by the chief officer of the law enforcement or intelligence agency who made the request.  This is to ensure that evidence of an assumed identity is cancelled when no longer necessary.  This mirrors the cancellation provision in proposed section 15JI.

 

Proposed section 15JV-Indemnity for issuing agencies and officers

 

Proposed section 15JV provides an indemnity for issuing agencies and officers in a participating jurisdiction who issue assumed identity documents in response to a request under proposed section 15JS from the chief officer of a law enforcement or intelligence agency.  The law enforcement or intelligence agency that made the request must indemnify the issuing agency and any officer of the issuing agency for any liability incurred if that liability is incurred because of any act done by the agency or officer of the agency to comply with the request. This reflects the position in proposed section 15JL.

 

Proposed section 15JW-Application of this Part to authorities under corresponding laws

 

Proposed section 15JW lists a number of provisions in this Bill which apply to anything done at the Commonwealth level under a corresponding authority as if that authority had been granted under proposed section 15JS.  This means that an authority validly granted under, for example, a New South Wales corresponding law would be recognised as a corresponding authority by the Commonwealth, and the list of provisions in this proposed section would apply to acts done pursuant to that corresponding authority as if it was an authority granted under proposed section 15JS.  

 

Proposed Division 6-Compliance and Monitoring

 

Proposed Subdivision A-Misuse of Assumed Identity and Information

 

Proposed section 15JX-Misuse of assumed identity

 

Proposed section 15JX creates an offence of misuse of an assumed identity.  An authorised law enforcement, intelligence or foreign officer who acquires or uses evidence of an assumed identity; and is reckless about whether, the acquisition or use is not in accordance with the authority or not in the course of duty, is guilty of an offence.

 

An authorised civilian who acquires or uses evidence of an assumed identity and is reckless about whether the acquisition or use is not in accordance with the authority, or not in accordance with the directions of a supervisor, is guilty of an offence.

 

These offences carry a maximum penalty of 2 years imprisonment.

 

Examples of misuse of an assumed identity include:



·          obtaining a financial advantage by deception

·          evasion of fines or other penalties (such as driving demerit points), and

·          credit card fraud.

 

A person who misuses an assumed identity may be subject to other criminal penalties because misuse of the assumed identity would mean that they would not gain the protection from criminal responsibility in proposed section 15JN.  The inclusion of this specific offence for misuse makes it clear to those using assumed identities that the improper use of identity documents will not be tolerated.

 

Proposed section 15JY-Disclosing information about assumed identity

 

Proposed subsection 15JY (1) provides that a person is guilty of an offence if the person discloses information and the information reveals, or is likely to reveal, that an assumed identity acquired or used by another person is not that other person’s real identity.

 

A person will not commit the offence if the disclosure was in connection with the administration or execution of the Bill or a corresponding law; or for the purposes of any legal proceeding related to the Bill; or in accordance with any requirement imposed by law; or in accordance with the functions, powers or duties of a law enforcement or intelligence agency.  This offence carries a maximum penalty of 2 years imprisonment.

 

Proposed subsections 15JY(2) and (3) create two other more serious disclosure offences.  A person will be guilty of an offence if they commit an offence under proposed subsection 15JY(1) and are reckless as to whether the disclosure would endanger the health or safety of any person or prejudice the effective conduct of an investigation or intelligence-gathering in relation to criminal activity. These offences are indictable offences and carry a maximum penalty of 10 years imprisonment.

 

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

 

Proposed Subdivision B—Reporting and Record-keeping

 

Proposed section 15JZ-Reports about authorities for assumed identities etc - law enforcement agencies

 

Proposed section 15JZ requires the chief officer of a law enforcement agency to submit a report to the Minister which includes the information contained in proposed subsection 15JZ(1).  The information includes statistical information about assumed identity authorities; a general description of the activities that were undertaken by authorised persons; whether any fraud or other unlawful activity was identified by the audit under proposed section 15KB; and any other information relating to assumed identities that the Minister considers appropriate.

 

The chief officer of the law enforcement agency must advise the Minister whether there is any information in the report that should be excluded from the report before it is tabled in Parliament.  This is information that, if made public, could be reasonably expected to endanger a person’s safety, prejudice an investigation or prosecution, or compromise law enforcement agencies’ operations or methodologies.  The Minister must table the report in Parliament within 15 sitting days of receiving the report.

The legislation permits the tabling of the report as a stand alone document, but does not require this.  For example, as long as all legislative time limits are met, a report on assumed identities could be included in the agency’s annual report.

 

Proposed section 15K-Reports about authorities for assumed identities etc - intelligence agencies

The Australian Security Intelligence Organisation (ASIO) and the Australian Secret Intelligence Service (ASIS) are required to provide a report containing the information in proposed subsection 15K to the Inspector-General of Intelligence and Security as soon as practicable after the end of each financial year.  The information includes statistical information about assumed identity authorities; a general description of the activities that were undertaken by authorised persons; whether any fraud or other unlawful activity was identified by the audit under proposed section 15KB; and any other information relating to assumed identities that the Inspector-General considers appropriate.

 

Proposed section 15KA-Record keeping

 

Proposed section 15KA sets out the kind of records the law enforcement and intelligence agencies must keep in relation to assumed identities. 

 

This requirement applies to all authorities granted, varied or cancelled under this proposed Part  - and the records for each authority must include the date and time of granting; the name of the person who authorised it; the name of the persons authorised to acquire and use an identity; details of any requests made to issuing agencies, the general nature of the duties undertaken by authorised persons; general details of relevant financial transactions entered into using the assumed identity; and details of the yearly reviews undertaken under proposed section 15JC. 

 

Proposed section 15KB-Audit of records

 

Proposed section 15KB requires the chief officer of a law enforcement or intelligence agency to arrange for assumed identity records for each authority to be audited at least once every  6 months while the authority is in force, and at least once in the 6 months after the cancellation of the authority.  The person conducting the audit may be a law enforcement or intelligence officer, but must not be a person who granted, varied or cancelled assumed identity authorities - and must not be an authorised person under any of the assumed identity authorities to which those records relate.  Therefore, the person conducting the audit may hold an assumed identity as long as that identity is not one of the identities that are subject to the audit.  Results of audits must be reported to the chief officer of the law enforcement or intelligence agency.

 

The decision to allow audits of these records to be conducted within the law enforcement and security agencies was taken because of the risk of disclosure of undercover operatives’ real identities should the audit be conducted by an external agency.  This risk was unacceptable as it could put the lives of undercover operatives or their families at risk.

 

Proposed Division 7-General

 

Proposed section 15KC- Delegation of chief officer’s functions

 

Proposed section 15KC provides for delegation of the functions of the chief officer of a law enforcement or intelligence agency.

 

Proposed subsection 15KC(1) provides that the functions of chief officer of a law enforcement or intelligence agency cannot be delegated to any other person except as provided for in this proposed section.  This means that any other delegation provisions, under any other legislation, do not apply to the functions of the chief officer in this Bill.

 

Proposed subsection 15KC(2) provides that the chief officer of a law enforcement or intelligence agency may delegate to a senior officer any of the chief officer’s functions under the Bill.

 

‘Senior officer’ is defined in proposed subsection 15KC(3).

 

Proposed Part 1ACA-Witness Identity Protection

 

General

 

This Part of the Bill implements national model legislation that was developed by a Joint Working Group of the Standing Committee of Attorneys-General and the Australasian Police Ministers’ Council to protect the true identity of covert operatives who give evidence in court.  The model laws were published in November 2003 in the Joint Working Group’s Report on Cross-Border Investigative Powers for Law Enforcement. 

 

This Part expands the operation of the model laws by extending the legislative scheme beyond law enforcement officers to include protection for security and intelligence officers and other authorised people (such as foreign law enforcement officers) granted an assumed identity.  

 

This Part replaces the current section 15XT of the Crimes Act which protects the real identity of an undercover operative, who is or was using an assumed identity, from disclosure.  Section 15XT requires a court, tribunal or royal commission to ensure that any part of the proceedings before it that relate to the real identity of the person are held in private and requires the court, tribunal or royal commission to make orders preventing the publication of evidence that may reveal the person’s real identity.  This section does not apply if the court, tribunal or royal commission considers that the interests of justice require otherwise, nor does this section make specific provision for concealing the undercover operative’s real identity from the defendant.

 

Under proposed Part 1ACA, the chief officer of a law enforcement or security agency is able to give a witness identity protection certificate which enables a witness to give evidence under a pseudonym without disclosing his or her true identity, in order to protect the personal safety of the witness or his or her family.  It is not proposed that the witness will be a ‘secret’ or ‘anonymous’ witness who does not appear before the court.  Rather the witness will appear in person to give evidence, be cross-examined and have their demeanour assessed by the court.  However, their real name and address will be withheld from the court (subject to the discretion in proposed section 15KP) as well as the defence. 

 

The court will have the power to give leave or make an order that may lead to the disclosure of the operative’s true identity or address.  However, the court may only make such an order or give leave if it is satisfied that there is evidence that, if accepted, would substantially call into question the operative’s credibility, and it would be impractical to test properly the credibility of the operative without allowing for possible disclosure of their identity or address.  It must also be in the interests of justice for the operative’s credibility to be tested. 

 

The provisions for granting leave do not require the court to ‘balance’ the competing public interests in a fair and open trial (which may require disclosure) against the protection of a witness’ identity.  Rather, under this Part, the competing interests are taken into account by being considered separately by the law enforcement agency (which would consider the need for protection) and the court (which would consider the necessity for disclosure of identity to ensure a fair trial).

 

The application of these provisions will mean a departure from the common law approach, where courts ‘balance’ the competing interests.

 

Proposed Division 1—Preliminary

 

Proposed section 15KD-Definitions

 

Proposed subsection 15KD(1) provides definitions for this Part.

 

Some key definitions are:

 

assumed name of an operative has the meaning given in proposed subparagraph 15KK(1)(a)(i).  This provides that the assumed name of an operative is the name, other than the operative’s real name, that the operative is known by to a party to the proceeding or a party’s lawyer.

 

chief officer of a law enforcement agency or an intelligence agency have certain powers and responsibilities under this proposed Part.  These include the:

• power to give a witness identity protection certificate in certain circumstances (see proposed section 15KI);

• responsibility to make all reasonable enquiries to make sure that all required information is included in the certificate (see proposed subsection 15KI(2));

• responsibility to cancel the certificate if it is no longer necessary or appropriate (see proposed section 15KU);

• power to give permission to disclose information about the operative’s true identity, despite the certificate (see proposed section 15KV); and

• responsibility to report to the Minister or the Inspector-General of Intelligence and Security on the use of witness identity protection certificates (see proposed section 15KY and 15KZ).

 

The chief officer may delegate his or her powers and responsibilities to a senior officer.  ‘Senior officer’ is defined in proposed subsection 15LA(3).

 

court name for an operative in relation to a proceeding means a name (other than the operative’s real name) or code used to identify the operative in the proceeding.

 

operative is someone who is authorised, either under an assumed identity authorisation or as a participant under a controlled operations authorisation. An operative will usually be a law enforcement or intelligence officer, but in some cases an operative may be a civilian acting under an authorisation.

 

Part 1AC of the Crimes Act details the authorisation process for an assumed identity. Part 1AB of the Crimes Act details the authorisation process for a controlled operation.

 

witness identity protection certificate is a certificate which is issued to protect the identity of an ‘operative’.  Proposed section 15KI sets out the circumstances in which a witness identity protection certificate is given.

 

Proposed subsection 15KD(2) provides that a party’s lawyer may exercise powers on behalf of the party, and that requirements to give something to a party are satisfied by giving the thing to the party’s lawyer

 

Proposed section 15KE-Meaning of criminal proceeding

 

Proposed subsection 15KE(1) defines a criminal proceeding as a proceeding for the prosecution, whether summarily or on indictment, of an offence or offences. 

 

Proposed subsection 15KE(2) is an avoidance of doubt provision which sets out a list of proceedings which constitute part of a criminal proceeding.  This provision is based on section 13 of the National Security Information (Criminal and Civil Proceedings) Act 2004.

 

Proposed section 15KF-Meaning of civil proceeding

 

Proposed subsection 15KF(1) defines a civil proceeding as any proceeding in a court of the Commonwealth, a State or Territory, other than a criminal proceeding.

 

Proposed subsection 15KF(2) is an avoidance of doubt provision which sets out a list of proceedings which constitute part of a civil proceeding.  This provision is based on section 15A of the National Security Information (Criminal and Civil Proceedings) Act 2004.

 

It is noted that proceedings for control orders or preventative detention are civil proceedings under this definition.

 

Proposed section 15KG­-When a charge is outstanding or pending

 

Proposed subsection 15KG sets out criteria for determining when a charge is considered either ‘outstanding’ or ‘pending’. A charge against a person for an offence is outstanding until the charge is finally dealt with in any of the following ways:

• the charge is withdrawn;

• the charge is dismissed by a court;

• the person is discharged by a court following a committal hearing;

• the person is acquitted or found guilty of an offence by a court.

 

A charge against a person for an offence is pending if the person has not yet been charged with the offence but:

• the person has been arrested for the offence, unless the person has been later released without being charged with an offence; or

• a summons to appear before a court to answer a charge for the offence has been served on the person.

 

Proposed paragraph 15KG(1)(c) also defines when an allegation of professional misconduct is ‘outstanding’.  Professional misconduct is defined in proposed section 15KD.

 

Proposed Division 2—Witness Identity Protection Certificates for Operatives

 

Proposed section 15KH-Application of Part

 

Proposed section 15KH provides that this Part applies to a proceeding in which an operative may be required to give evidence they obtained as an operative. Proposed subsection 15KH(2) makes it clear that the any other law continues to apply to protect the identity of any person who is not an operative and who gives evidence in a proceeding.

 

In addition, these provisions are not intended to affect existing laws and the common law which allow the Court to make orders about the physical protection of a witness or the use of physical screens or voice modification etc.  An application is still able to be made to the court for an operative to use a screen or voice modification (or other means of protection) where appropriate.

 

Proposed section 15KI-Witness identity protection certificate

 

Proposed section 15KI provides that the chief officer of a law enforcement agency or an intelligence agency may give a witness identity protection certificate for a operative of the agency in relation to a proceeding if the operative is required to give evidence in the proceeding.

 

Before giving the certificate, the chief officer must be satisfied that disclosing the operative’s identity or address would endanger the safety of the operative or someone else, or prejudice any investigation or security activity or future investigation or future security activity.

 

Allowing the decision to be made within the law enforcement or intelligence agency enables an informed decision to be made about the need for protection, without possible security risks. The nature of undercover investigations means that information about them can be highly sensitive. Disclosure, for example, in an application to a court seeking protection of identity and in filing court documents with the operative’s true name, may place the investigation and the safety of law enforcement or intelligence officers and civilians associated with the operation at serious risk. Therefore, the first instance decision about protection of identity should be made within the law enforcement agency. Where there is no objection to the protection of the operative’s identity, then it is unnecessary to disclose sensitive information about the true identity.

 

While the proposal is for the decision to be made within the law enforcement or intelligence agency, it will be made only at the highest levels of the agency.  Proposed section 15LA provides for delegation to the level of Assistant Commissioner (or equivalent), which is the third highest ranking in the police forces. In addition, the court will retain an overriding discretion to allow the witness’ true identity to be revealed where to do so is in the interests of justice (see proposed section 15KQ below).

 

The chief officer must undertake enquiries to ascertain the information required to be included on the certificate by proposed section 15KK.  To assist in this process, the operative is required to fill out a statutory declaration under proposed section 15KJ addressing the issues required to be included by the chief officer on the certificate by proposed section 15KK.  The chief officer cannot issue a certificate until he has obtained this statutory declaration from the operative (see proposed subsection 15KI(3)).

 

Proposed subsection 15KI(4) provides that a decision to give a witness identity protection certificate is final, and cannot be appealed against, reviewed, called into question, quashed or invalidated in any court. The decision to issue a certificate is based on highly sensitive operational information and the decision could not be reviewed without disclosing this information.  This may put at risk the safety of operatives or their families or colleagues and may jeopardise an ongoing investigation.  Review of a decision would therefore defeat the purpose of the witness identity protection regime.

 

Proposed subsection 15KI(5) provides that this does not prevent a decision being called into question in the course of a disciplinary proceeding against the person who made the decision.  That is, for example, the conduct of the person giving a certificate could be reviewed in disciplinary proceedings if there is an allegation of misconduct.  Any such proceedings would be internal and therefore the sensitive information involved could be properly protected. 

 

Proposed subsection 15KI(6) states that a witness identity protection certificate purporting to be issued under proposed subsection 15KI(1) must be taken to have been properly issued and is prima facie evidence of the matters in the certificate.

 

Proposed subsection 15KI(7) is included to assist readers, as the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 .

 

Proposed section 15KJ-Statutory declaration by operative

 

Subsequent to the release, in November 2003, of the Joint Working Group’s Report on Cross-Border Investigative Powers for Law Enforcement, the joint working group recommended a number of modifications to the model laws.  SCAG endorsed the model laws for implementation in 2004, subject to the modifications that were recommended by the joint working group.  Proposed section 15KJ reflects one of the agreed modifications.

 

The joint working group recommended that the witness identity protection model law should be amended to require a witness whose identity is to be protected to provide a sworn statement setting out matters that may be relevant to his or her credibility.   Proposed section 15KJ requires the operative to make a statutory declaration of the matters set out in proposed paragraphs 15KJ(1)(a) through to (f).

 

These statutory declarations cannot be disclosed or produced in any proceeding (see proposed subsection 15KJ(2)), unless they are:

·          proceedings for perjury or otherwise in respect of the falsity of the statutory declaration,

·          proceedings of a disciplinary nature against a law enforcement or intelligence officer, or

·          investigations or inquiries by a person or body in any jurisdiction having jurisdiction to investigate or inquire into the conduct of a law enforcement officer or an intelligence officer.

 

Proposed section 15KK-Form of witness identity protection certificate

 

Proposed section 15KK sets out the information that must be included in a witness identity protection certificate. This information includes:

• the operative’s assumed name (if the operative is known to a party to the proceeding or a party’s lawyer by a name other than the operative’s real name);

• the operative’s court name (if the operative is not known to any party to the proceeding or any party’s lawyer by a name);

• the period the operative was involved in the operation;

• the name of the agency;

• the date of the certificate;

• the grounds for giving the certificate;

• whether the operative has been convicted or found guilty of any offence (and, if so, particulars of each offence);

• whether any charges against the operative for an offence are pending or outstanding (and, if so, particulars of each charge);

• if the operative is (or was) a law enforcement officer, whether there have been any findings of professional misconduct, or are outstanding allegations of professional misconduct (and, if so, particulars of each finding or allegation);

• whether a court has made any adverse comment about the operative’s credibility (and, if so, particulars of the comment);

• whether the operative has made a false representation when the truth was required (and, if so, particulars of the representation); and

• if there is anything else known to the person giving the certificate that may be relevant to the operative’s credibility - particulars of the thing.

The information included on the certificate will allow parties to the proceeding, including the accused in criminal trials, to challenge the credibility of the operative without disclosing the operative’s identity.

 

The witness identity protection certificate must not contain information that may allow the local operative’s identity or address to be revealed.  For example, when articulating the grounds on which the certificate has been issued, this would not require a description of the specific details of the risk of disclosing the operative’s true identity.  To do so may reveal sensitive information and would defeat the purpose of protecting the identity.  However, the certificate must indicate whether it is issued on the grounds of a risk to personal safety (proposed subparagraph 15KI(1)(d)(i)) or on the grounds of prejudice to an investigation or security activity (proposed subparagraphs 15KI(1)(d)(ii)or (iii)) or both)). 

 

Proposed section 15KL-Filing and notification

 

Proposed section 15KL sets out the filing and notification requirements that must be complied with before a witness identity protection certificate can be relied on in a proceeding.  The certificate must be filed in the court before the operative gives evidence in the proceedings and a copy of the certificate must be provided to each party to the proceeding at least 14 days (or a shorter period agreed between the parties) before the day the operative is to give evidence.  The court can also order the person filing the certificate to give a copy of the certificate to another person. 

 

Proposed section 15KM-Leave for non-compliance

 

The court also has the power to order that a certificate is effective despite not being filed and/or a copy being provided 14 days in advance (see proposed subparagraph 15KN(1)(b)(ii)).  This allows for flexibility in appropriate circumstances.  For example, the court could allow a certificate to be issued and used for a bail proceeding where it will often not be possible to provide the certificate 14 days in advance, as required under proposed section 15KL - as long as the court is satisfied that it was not reasonably practicable to comply with the relevant requirements under proposed section 15KL.

 

Proposed section 15KN-Effect of witness identity protection certificate

 

Proposed section 15KN applies where a witness identity protection certificate has been properly filed and notified (or the court gives leave for this section to apply under proposed section 15KM despite non-compliance with the filing and notice requirements).

 

In these cases, the operative may give evidence under the assumed name or court name stated in the certificate.  An assumed name is a false name which is used by a person participating in undercover law enforcement and intelligence activities.  In some situations, an operative may be using the same assumed identity in a number of simultaneous operations. One of the investigations may result in a prosecution while the others are ongoing. If the operative discloses in court, for example, that he or she is a police officer and is working undercover under a specific assumed identity, the other investigations in which that assumed identity is being used are placed in jeopardy. However, the witness must be identified to the defendant by the name by which the defendant knew that witness (ie the assumed identity), in order for the defendant to place the witness. In order to protect an assumed identity which is in use in other operations, the court may make suppression orders preventing disclosure of the assumed identity outside the court.

 

A court name is a name placed on court documents and used for giving evidence in situations where an operative did not use an assumed name (and it is necessary to protect his or her real identity) or did use an assumed name but was not known to the defendant by that assumed name. For example, an undercover operative may have been operating under an assumed identity but have had a supporting role in the investigation, and never have been introduced to the defendant by name. In this case, providing the assumed identity to the defendant will not assist the defendant and will mean that the future use of the assumed identity is prejudiced. Instead, the witness would be known by a court name.

 

The defendant would be able to place the witness from the evidence given by the witness about his or her activities in the investigation, and by seeing the witness in court.

 

Unless permission is granted under proposed section 15KQ, witnesses (including operatives) must not be asked questions, or be required to answer questions, give evidence or provide information that discloses or may disclose the operative’s identity or address. A person involved in the proceeding is also prevented from making statements that may disclose this information.

 

A ‘person involved in the proceeding’ is broadly defined in proposed subsection 15KQ(3) to include:

• the court;

• a party to the proceeding;

• a person given leave to be heard or make submission in the proceeding;

• a lawyer representing parties, or persons given leave, or a lawyer assisting the court, in the proceeding;

• any other officer of the court or person assisting the court in the proceeding;

• a person acting in the execution of any process or the enforcement of any order in the proceeding.

 

The effect of the certificate may be that some inquiries that might otherwise be made by the defence about an operative will not be possible. However, much of the information that such inquiries would uncover will already be known from the certificate (eg criminal and disciplinary histories). For example, the defendant may wish to challenge the operative’s general reputation for veracity, and may argue that this cannot be done unless the operative’s true name is known and investigations into the operative’s background can be conducted. However, the kind of information which the defendant is likely to uncover in such investigations is the criminal and disciplinary history of the operative.  This information would be available on the certificate without the identity of the operative being revealed.

 

In many jurisdictions in Australia, where witness identity protection is available under the common law, the defendant currently will not know a witness’ true identity and is therefore unable to make the ‘usual inquiries’ about that witness. While the prosecution has a duty of disclosure which may extend to disclosing matters such as criminal convictions of a witness that may impact on credibility, in most cases now where a prosecution witness’ identity is protected, the defence is not likely to have the breadth of information about the witness that the proposed certificate would provide.

 

If a witness protected by a certificate gave evidence which was later discovered to be false, it would be possible to charge the person with perjury under the name under which he or she gave evidence.  In addition, the certificate could be cancelled (see proposed section 15KU below) and the true identity of the witness passed to the prosecution by the law enforcement or intelligence agency.

 

 

Proposed section 15KO-Orders to protect operative’s identity etc

 

Proposed section 15KO provides that a court in which a witness identity protection certificate is filed may make any order necessary to protect the identity or address of the operative.

 

A person commits an offence if he or she is reckless as to whether an order has been made, and the person intentionally engages in conduct and is reckless as to whether that conduct contravenes the order. The maximum penalty for this offence is 2 years imprisonment.

 

This provision does not limit the court’s power to punish for contempt.

 

Proposed section 15KP-Disclosure of operative’s identity to presiding officer

 

Subsequent to the release, in November 2003, of the Joint Working Group’s Report on Cross-Border Investigative Powers for Law Enforcement, the joint working group recommended a number of modifications to the model laws.  SCAG endorsed the model laws for implementation in 2004, subject to the modifications that were recommended by the joint working group. Proposed section 15KP reflects one of the agreed modifications.



The joint working group recommended that the witness identity protection model law should be amended to enable the judge presiding over the trial (or other proceedings) to be confidentially informed of the witness’ real identity. There was concern that if the judicial officer is not given the witness’ true name, there is a risk that he or she will not be aware of a potential bias in relation to that witness.

For example, in the situation of a recently appointed judge who has come from a criminal law practice - there might be some risk if it transpires that the witness is a former client or has had some other involvement with the judge that may cause the trial to abort.  To address this risk, it was agreed that the true name of the witness should be able to be provided confidentially to the judicial officer.

 

Proposed section 15KQ-Disclosure of operative’s identity etc despite certificate

 

Proposed section 15KQ allows a party to the proceeding to apply to the court:

• for leave to ask a witness a question; or

• for leave to request that a person involved in the proceeding make a statement; or

• for an order requiring a witness to answer a question, give evidence, or provide information

that discloses or may lead to the disclosure of the operative’s identity or address.

 

The court must not give leave or make an order unless there is evidence that, if accepted, would substantially call into question the operative’s credibility, and it would be impractical to test properly the credibility of the operative without allowing for possible disclosure of their identity or address.  It must also be in the interests of justice for the operative’s credibility to be tested.  The application must be heard in the absence of any jury.

 

This reflects the view that the relevance of the true identity of each witness will vary, depending on the nature of the evidence to be given by the witness.  For example, an undercover operative may be called to give evidence about her role in an investigation in which she wore a concealed recording device and taped conversations between the defendant and herself and between the defendant and third parties in her presence. The defendant has seen transcripts of the tapes, and does not dispute that the conversations took place. The defendant may argue that credibility is in issue and the real identity of the operative must be revealed to allow the defendant to fully test her credibility. However, leave should not be granted unless the defence can show the court some reason why credibility is in fact in issue (given that the defence does not dispute that the conversations took place as taped) and that credibility can only be tested if the operative’s identity is revealed. Aspects of the operative’s credibility, in the ‘wide sense’, could still be tested without revealing her identity. For example, questions about the context surrounding the conversations could be asked and answered without the operative’s identity being disclosed.

 

There may also be circumstances where a witness’ credit in the ‘narrow sense’ is in issue, but can be tested without revealing the witness’ true identity. For example, an undercover police officer may be giving evidence in an assumed name used in an investigation in which he acted as a buyer, purchasing heroin from the defendant. The defendant may admit that he sold heroin to the undercover operative, but dispute the amount of heroin which was sold. In this case, where the operative and the defendant were the only people present at the transaction, whether the operative’s evidence is accepted as credible will affect the outcome, and so credibility is in issue. However, it may not be necessary to reveal the identity of the operative to test credibility. The defendant may wish to pursue questioning about the operative’s bias, and motive to lie in order to secure a conviction for the serious offence of trafficking in a commercial quantity of heroin (as opposed to the sale of a smaller amount of heroin, to which the defendant will admit). It may be possible for questioning along this line to proceed without revealing the operative’s identity. It is then up to the jury or judge to decide whether the argument about bias is convincing.

 

Unless the court decides that the interests of justice require otherwise, the court must also be closed when an application is made, and, if leave is given or an order made, when the question is asked, the evidence is given, the information is provided or the statement is made.

 

In addition, the court must make a suppression order in relation to applications, and questions, evidence, information or statements made as a consequence of applications.   The court may also make any order it considers appropriate to protect the operative’s identity or prevent disclosure of where the operative lives.

 

A person commits an offence if he or she is reckless as to whether a suppression or protection order has been made, and the person intentionally engages in conduct and is reckless as to whether that conduct contravenes the order. The maximum penalty for this offence is 2 years imprisonment.

 

The provisions for granting leave do not require the court to ‘balance’ the competing public interests in a fair and open trial (which may require disclosure) against the protection of a witness’ identity.  Rather, under this proposed Part, the competing interests are taken into account by being considered separately by the law enforcement or intelligence agency (which would consider the need for protection) and the court (which would consider the necessity for disclosure of identity to ensure a fair trial).

 

The question of the risk posed by disclosure (to a person or to an investigation) should be a question for the law enforcement or intelligence agency. It is the law enforcement or intelligence agency that has information about these risks, and that is responsible for the health and safety of operatives and for the conduct of investigations. If the chief officer (or delegate) considers that it is necessary to protect the operative’s identity, a certificate should be issued.

 

The question for the court is what is in the interests of justice - whether a fair trial can be had without disclosing the operative’s true identity.  The court is in the best position to assess whether credibility is in issue, whether it can only be tested by disclosing the true identity, and whether the issue of credibility needs to be tested for the trial to be fair.

 

It is not appropriate to call on the court to assess operational law enforcement or intelligence issues such as the possible risks to a person or to an investigation or security activity if an operative’s true identity is disclosed. Nor is it possible to equip the court adequately to assess these risks. The court cannot be informed of the possible risks without disclosing highly sensitive information about operational matters and ongoing investigations. The court would not be able to test the information given (for example, about death threats to an operative) as it would not be practicable to call and cross-examine witnesses. It is the role of the law enforcement or intelligence agency, not the courts, to ensure the security and success of investigations into criminal and security activity and the safety of operatives.

 

 Proposed section 15KR-Application for leave-joinder as respondent

 

Proposed section 15KR gives the court discretion to allow a person who is the operative under the witness identity protection certificate or the chief officer of the agency who gave the witness identity protection certificate to be joined as a respondent to an application made under proposed sections 15KM, 15KO or 15KQ.  When joined, that person or their legal representative must be allowed to appear and be heard.

 

There will be situations, particularly in civil proceedings, where the operative the subject of the witness identity protection certificate will not have standing to be heard on the question of whether or not their true identity should be disclosed in the court despite the certificate.  For example, there will be situations where the operative appears as a witness for the plaintiff and the defendant applies to the court for leave under proposed section 15KQ.  It may not be prejudicial to the plaintiff’s case if the operative’s true identity is revealed and as such, the plaintiff’s lawyer may not object to the application.  In these circumstances, proposed section 15KR will provide standing to the operative or the chief officer of the relevant agency, to be heard on this application.

 

 

Proposed section 15KS-Directions to jury

 

Proposed section 15KS applies if an operative who has been given a witness identity protection certificate gives evidence in a proceeding that has a jury. In this situation, the court must, unless it considers it inappropriate, direct the jury not to give the evidence of the operative any more or less weight, or draw any adverse inferences against the defendant, because of the certificate or as a result of any orders made to protect the witness.

 

Proposed section 15KT-Adjournment for appeal decision

 

Proposed section 15KT allows for an adjournment to be given to a party to decide whether to appeal a decision of the court under proposed section 15KM, 15KO or 15KQ and then to make the appeal.  Where an application is made under this section, the court must grant the adjournment.  The proceedings cannot continue until either a decision has been made by the party not to appeal or the appeal has been heard. 

 

If the appeal on these issues was to wait until after the conclusion of the proceedings, the operative’s true identity would already have been revealed.  By allowing an appeal at the time the original decision is made by the Court, the matter can be heard by the appeal court before the operatives true identity is revealed.

 

Proposed section 15KU-Witness identity protection certificate-cancellation

 

Proposed section 15KU provides that a chief officer must cancel a witness identity protection certificate if the chief officer believes that it is no longer necessary or appropriate to prevent the disclosure of the local operative’s identity or address.

 

If a certificate has already been filed in a court, the chief officer must immediately give written notice to the court and each party to the proceeding that the certificate has been cancelled.

 

This provides a safeguard against the certificate being used as a shield against investigation or prosecution in the event of any improper conduct. The certificate might be cancelled, for example, where the operative’s conduct in giving evidence while protected by a certificate leads to an investigation, such as where it is alleged that the operative gave false evidence during the proceeding.

 

Proposed section 15KV-Permission to give information disclosing operative’s identity etc

 

Proposed section 15KV provides that a chief officer may give written permission to a person to give information, other than in the proceeding, that discloses or may lead to the disclosure of the operative’s identity or address. This may be done if the chief officer believes it is necessary or appropriate for the information to be given.

 

The written permission must name the person who may give the information, the person to whom the information may be given, the information that may be given and may state how the information may be given.

 

This recognises that there may be situations where ongoing identity protection is required, yet the operative’s identity also needs to be disclosed in a specific and restricted context.  For example, the operative may have given evidence under a certificate in a criminal trial, but may be required to give evidence at a police disciplinary tribunal which is investigating another police officer. Permission may be given for the disclosure of the operative’s true identity in that disciplinary tribunal, but the certificate would remain in force otherwise and the operative’s true identity could not be disclosed for any other reason.

 

Proposed section 15KW-Disclosure Offences

 

Proposed section 15KW creates three offences that relate to the disclosure of an operative’s identity or address where the operative has been given a witness identity protection certificate.

 

Proposed subsection 15KW(1) provides that a person commits an offence if the person is reckless as to whether a certificate has been given, and intentionally engages in conduct and that conduct recklessly results in the disclosure, or is likely to lead to the disclosure of, the operative’s identity or address. The person must also be reckless as to whether the certificate has been cancelled, and whether the disclosure is authorised or permitted. The maximum penalty for this offence is 2 years’ imprisonment.

 

The second offence is an indictable offence.  Proposed subsection 15KW(2) provides that a person is guilty of an offence if the person commits an offence against proposed sub-section (1) and, in addition, the person is reckless as to whether their conduct will endanger the health or safety of another person.

 

The third offence is also an indictable offence. Proposed subsection 15KW(3) provides that a person is guilty of an offence if the person commits an offence against proposed subsection (1) and, in addition, the person is reckless as to whether their conduct will prejudice the effective conduct of an investigation or security activity.

 

The maximum penalty for these offences is 10 years’ imprisonment.

 

These offences, and the penalties attached, are intended to protect the health and safety of operatives, and assist the effective conduct of undercover operations.  While the certificate relates to only one proceeding, the protection of the operative’s identity is ongoing and it would be an offence to reveal the operative’s true identity even after that proceeding has finished.

 

Proposed section 15KX-Evidentiary certificates

A chief officer of a law enforcement agency or an intelligence agency may sign a certificate stating any of the following:

                     (a)  that, for the purposes of paragraph 15KW(1)(b), (2)(b) or (3)(b), a witness identity protection certificate for an operative in relation to a proceeding has not been cancelled under section 15KU;

                     (b)  whether, for the purposes of subparagraph 15KW(1)(e)(i), (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the offence was required by section 15KP;

                     (c)  whether, for the purposes of subparagraph 15KW(1)(e)(ii), (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the offence was authorised by leave or by an order under section 15KQ;

                     (d)  whether, for the purposes of subparagraph 15KW(1)(e)(iii), (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the offence was permitted under section 15KV.

In any proceedings, a certificate given under this section is prima facie evidence of the matters certified in it.

 

Proposed section 15KY-Reports about witness identity protection certificates-law enforcement agencies

 

Proposed section 15KY provides that annual reports must be prepared by the chief officer of a law enforcement agency. These reports must include information relating to the issuing and use of witness identity protection certificates in that year. These reports are submitted to the Minister for Justice and Customs, who must cause them to be laid before each House of Parliament within 15 sitting days of receiving them.

The legislation permits the tabling of the report as a stand alone document, but does not require this.  For example, as long as all legislative time limits are met, a report on assumed identities could be included in the agency’s annual report.

 

This external reporting mechanism will provide a check against the arbitrary issuing of certificates. This aims to ensure that certificates are issued only in appropriate circumstances, to protect the safety of people or the integrity of investigations.

 

Proposed section 15KZ-Reports about witness identity protection certificates-intelligence agencies

 

Proposed section 15KZ provides that annual reports must be prepared by the chief officer of an intelligence agency. These reports must include information relating to the issuing and use of witness identity protection certificates in that year. These reports are submitted to the Inspector-General of Intelligence and Security.  They are not tabled in Parliament.  This is consistent with the reporting requirements for intelligence agencies under the assumed identity provisions in Part 1AC.

 

Proposed Division 3—Mutual Recognition under Corresponding Laws

 

Proposed section 15L-Recognition of witness identity protection certificates under corresponding laws

 

This provision recognises a witness identity protection certificate issued under a corresponding law as if it was issued under this Part.  For example, the offences relating to disclosure of the operative’s identity (proposed section 15KW) will apply whether the certificate was issued in this jurisdiction or in another jurisdiction in which these model provisions apply.

 

The model provisions developed in the Joint Working Group’s Report on Cross-Border Investigative Powers for Law Enforcement are intended to provide a consistent framework for the protection of the identities of undercover operatives across Australia. This is so that undercover operatives, and the law enforcement or intelligence agencies for which they work, can be sure that if necessary, protection will be available in all participating jurisdictions in which the operative works.

 

Under this proposed section a witness identity protection certificate issued in a different jurisdiction will be recognised and will have effect in this jurisdiction, without the need for any further steps to be taken. 

 

Proposed Division 4-General

 

Proposed section 15LA-Delegation

 

Proposed section 15LA allows the chief officer to delegate any of their powers under this Part to a senior officer of the agency.  The term senior officer is defined in proposed section 15LA(3) for each agency.

 

Schedule 2

 

Delayed Notification Search Warrants

 

Item 1:  Subsection 3C(1)

 

This item inserts into the definitions of Part 1AA of the Crimes Act the definition of ‘adjoining premises’.

 

Item 2:  Subsection 3C(1)

 

This item refers to proposed section 3SR for the definition of ‘adjoining premises occupier’s notice’.

 

Item 3: Subsection 3C(1)

 

This item refers to proposed section 3SA for the definition of ‘delayed notification search warrant’.

 

Item 4: Subsection 3C(1) (at the end of the definition of issuing officer)

 

This item refers to proposed section 3SA for the definition of ‘eligible issuing officer’.

 

Item 5: Subsection 3C(1)

 

This item refers to proposed section 3SQ for the definition of ‘occupier’s notice’.

 

 

Item 6: Subsection 3C(1)

 

This item inserts into the definitions of Part 1AA of the Crimes Act a note after the definition of issuing officer explaining that that definition includes an eligible issuing officer authorised to consider an application for a warrant under proposed Division 2 by proposed section 3SG or 3SH.

 

Item 7: End of Section 3C

 

This item inserts a new subsection which draws a distinction between a search warrant issued under proposed Division 2 and a delayed notification search warrant issued under proposed Division 2A.

 

Item 8: At the end of Division 2 of Part 1AA

 

This item inserts a new Division 2A - Delayed Notification Search Warrants into Part 1AA of the Crimes Act.  This new Division provides for requesting, authorising, issuing and reporting obligations with respect to delayed notification search warrants.

 

Proposed Subdivision 1 - Preliminary

 

The proposed subdivision provides the administrative arrangements for issuing delayed notification search warrants, and definitions of terms used in the proposed Division.

 

Proposed section 3SA - Definitions 

 

This proposed section provides definitions of terms used in the Division.  The Bill applies to a Commonwealth offence that is punishable on conviction by imprisonment for a period of 10 years or more, or a State offence that has a federal aspect that is punishable on conviction by imprisonment for a period of 10 years or more, or an offence against section 8 or 9 of the Crimes (Foreign Incursions and Recruitment) Act 1978 , or an offence against section 20 or 21 of the Charter of the United Nations Act 1945 , or an offence against subsection 147.2(1) or (3), section 270.7, or subsection 471.11(2) or 474.15(2) of the Criminal Code .

 

Proposed subsection (2) includes territory offences in the definition of State offences which have a federal aspect.  This makes it clear that this Division applies to all territories of the Commonwealth, rather than just the Australian Capital Territory and the Northern Territory which are included by virtue of section 3AA. 

 

Proposed subsection (3) provides that a delayed notification search warrant is taken to be executed on the day on which the warrant premises are first entered under the warrant.

 

Proposed section 3SB - Eligible Judges

 

This proposed section defines the terms ‘eligible Judge’ and ‘Judge’. ‘Judge’ has its normal meaning as a Judge of a court created by the Parliament, but also includes a State or Territory Judge.  Eligible Judges in this Division, unlike other parts of the Crimes Act, will include Family Court Judges.

 

Eligible Judges are Judges who have consented to be, and have been declared by the Minister to be, eligible Judges for the purposes of the Act under proposed subsections 3SB(2) and (3).  Both the consent and the declaration must be in writing.

 

Proposed subsection 3SB(4) provides that any function or power conferred on a Judge under the Bill is conferred in a personal capacity, that is, in persona designata, rather than as a court or a member of a court.

 

Proposed subsection 3SB(5) provides that eligible Judges have the same protection and immunity in relation to the performance of a function or power conferred on them under this Division, as a Justice of the High Court has in relation to proceedings in the High Court.

 

Proposed subsection 3SB(6) provides that an instrument declaring a Judge to be an eligible Judge is not a legislative instrument. As such a declaration would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 , this provision is declaratory of the law, and does not create an exemption from the Legislative Instruments Act 2003 .

 

Proposed section 3SC - Nominated AAT members

 

Proposed subsection 3SC(1) provides that the Minister may nominate a Deputy President, a full-time senior member, a part-time senior member or a member of the Administrative Appeals Tribunal (the AAT) to issue delayed notification search warrants.

 

Proposed subsection 3SC(2) provides that the Minister must not nominate a part-time senior member or member under subsection 3SC(1) unless the person is enrolled, and has been so enrolled for at least five years, as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or the ACT.

 

Proposed subsection 3SC(3), a nomination will cease to have effect if the nominated AAT member ceases to hold their appointment to the AAT or the Minister withdraws the nomination in writing.

 

As with eligible Judges, under proposed subsection 3SC(4) nominated AAT members have the same protection and immunity in the exercise of their powers under this Division as a Justice of the High Court has in relation to proceedings in the High Court.

 

Proposed Subdivision 2 - Applications for delayed notification search warrants

 

This subdivision describes the process by which an application may be made for a delayed notification search warrant, and enables a concurrent or subsequent application for a warrant under existing section 3E of the Crimes Act.

 

Proposed section 3SD - Authorisation to apply for a delayed notification search warrant

 

Proposed subsections 3SD (1) and 3SD (2) enable the chief officer of the AFP or of the police force or police service of a State or Territory to authorise a constable, in writing, to apply for a delayed notification search warrant in respect of particular premises.  The constable must be from the same police force or police service as the chief officer.  A constable cannot apply for a delayed notification search warrant without such authorisation.  The requirement for authorisation to apply for a delayed notification search warrant is an additional safeguard which is not contained in the general search warrant provisions.

 

Proposed subsection 3SD(3) provides a three part test which must be satisfied before a chief officer can authorise an application for a delayed notification search warrant.  The chief officer must be satisfied that there are reasonable grounds to suspect that one or more relevant offences have been, are being, are about to be or are likely to be committed.  The chief officer must also be satisfied that entry to and search of the premises will substantially assist in the prevention of, or investigation into, those relevant offences.  Finally, the chief officer must also be satisfied that there are reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.  Proposed subsections 3SH(1) and 3SI(2) make it clear that it is not the intention of this Division that an application for a delayed notification search warrant should be authorised where there are other means of collecting relevant evidence.

 

Proposed subsection 3SD(4) allows the chief officer to delegate his or her powers or functions under the Division to a member of the staff of the agency.  In the case of the AFP, the delegation may be to a Deputy Commissioner, a senior executive AFP employee or a person of equivalent or higher rank.  In the case of the police force or police service of a State or Territory the delegate may be a person of an equivalent rank to, or a higher rank than, a member of the AFP referred to above.

 

Proposed subsection 3SD(5) ensures that State or Territory officers investigating State or Territory offences, whether or not they have a federal aspect, can only use the relevant search warrant powers available in their State or Territory.

 

Proposed section 3SE - Application for a delayed notification search warrant

 

This proposed section sets out the procedures to be followed by a constable applying for a delayed notification search warrant.  As with the chief officer’s authorisation, a three-part test must be satisfied.  A constable who has been authorised under proposed section 3SD may apply for the issue of a delayed notification search warrant if he or she suspects, on reasonable grounds, that one or more relevant offences have been, are being, are about to be or are likely to be committed, and that entry and search of the premises will substantially assist in the prevention of, or investigation into, those offences. Finally, the constable must believe on reasonable grounds that it is necessary for the entry and search of the premises to be conducted without the knowledge of any occupier of the premises.

 

Proposed subsection 3SE(2) sets out what must be included in an application for a delayed notification search warrant. Unless made remotely under proposed section 3SF, the application must be in writing.  The application must include the name of the applicant, as well as the name of the constable executing the warrant unless the name of another constable is inserted.  It must also include details or a copy of the authorisation given under proposed section 3SD, an address or description of the premises, and must specify the duration of the warrant sought.  Proposed subparagraph 3SE(2)(f) limits the duration of a delayed notification search warrant to 30 days.  The application must include a description of the kinds of things that are proposed to be searched for, and state whether entry to adjoining premises is required. 

 

Subject to proposed subsection 3SE(4), paragraph 3SE(2)(i) requires the application to be supported by an affidavit.  Proposed subsection 3SE(3) requires that the affidavit sets out the grounds on which the warrant is sought, and the reasons for which any proposed entry to an adjoining premises is considered necessary.  It must also state, if the applicant knows that an application has been made during that time, whether a delayed notification search warrant or a warrant under section 3E has been granted or refused within the previous three months.  If a previous application was refused, the applicant will be required to justify why the delayed notification search warrant should be issued. 

 

Proposed subsection 3SE(4) enables the making of an application for a delayed notification search warrant without an affidavit if the applicant believes that it is impracticable for an affidavit to be prepared or sworn before the application is made or that any delay would frustrate the effective execution of the warrant. Proposed subsection 3SE(5) requires the applicant to provide as much information as the eligible issuing officer considers is reasonably practicable and send a sworn affidavit to the eligible issuing officer within 72 hours of making the application even if the application was not successful.

 

Proposed subsection 3SE(6) provides that an eligible issuing officer may request further information relating to the application, and may require an affidavit in relation to that further information.  This power enables an eligible issuing officer to be satisfied as to the necessity for issuing a delayed notification search warrant.

 

Proposed section 3SF - Remote application

 

This proposed section permits the application for a delayed notification search warrant to be made under proposed section 3SE by telephone, fax, e-mail or any other means of communication where the constable believes that it is impracticable for the application to be made in person, or that delaying the application until it can be made in person would frustrate the effective execution of the warrant.

 

Proposed subsection 3SF(2) provides that where the use of a fax is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, regardless of whether it has been sworn, to the eligible issuing officer.  This is consistent with existing Commonwealth warrant legislation.

 

Proposed subsections 3SF(3) and (4) reflect the existing provisions of subsections 3R(2) and (3) of the Crimes Act.  These proposed subsections enable an eligible issuing officer to require communication by voice, where practicable, and to record that communication.  The application must include all the information required at proposed section 3SE but may be made before an affidavit is sworn.

 

Proposed section 3SG - Application under section 3E for search warrant

 

Proposed section 3SG empowers a constable making or who has made an application for a delayed notification search warrant to make an application to the same eligible issuing officer for a search warrant under Division 2 to search the target or other premises for evidential material which may be related to the relevant offences, or to other offences which are connected to the relevant offence for which the delayed notification search warrant is sought or was issued.  Provided the application relates to the same investigation it may be made at the same time as, or at a later time than, the application for a delayed notification search warrant. 

A search warrant under Division 2 requires that notice be given to the occupier.   This provision enables applications for ordinary search warrants and delayed notification search warrants in the same investigation to be determined by one eligible issuing officer, but ensures that when there is no necessity for covert entry of premises, a delayed notification search warrant is not used to conduct an investigation of other premises.

While a subsequent application for a section 3E search warrant must be made to the eligible issuing officer that determined the previous application for a delayed notification search warrant, it does not need to be made by the same constable.

 

Proposed subsection 3SG(3) enables the eligible issuing officer to consider the Division 2 application as if the eligible issuing officer were an issuing officer within the meaning of section 3C.  The note inserted by item 6 under the definition of issuing officer in section 3C reflects this.

 

Proposed section 3SH - Issue of search warrant under section 3E instead of delayed notification search warrant

 

This proposed section enables an eligible issuing officer who is not satisfied that a delayed notification search warrant should be issued, to treat the application for a delayed notification search warrant as an application for a search warrant under Division 2, and deems the eligible issuing officer to be an issuing officer within the meaning of section 3C for the purposes of issuing a search warrant under that Division.

 

Proposed Subdivision 3-Issue and execution of delayed notification search warrants

 

This subdivision establishes the process by which a delayed notification search warrant is issued, specifies what must be included in the warrant, and sets out the powers which may be exercised in executing the warrant.

 

 

 

 

Proposed section 3SI - Issue of delayed notification search warrant

 

Before issuing a delayed notification search warrant in relation to a relevant offence, the eligible issuing officer must be satisfied that there are reasonable grounds for the applicant’s suspicion and belief that form the basis of the application under proposed subsection 3SE(1).  That is, the eligible issuing officer must also be satisfied that there reasonable grounds to suspect that one or more relevant offences have been, are being, are about to be or are likely to be committed and, that entry and search of the premises will substantially assist in the prevention of, or investigation into, those offences, and also that there are  reasonable grounds to believe that it is necessary for the entry and search of the premises to be conducted without the knowledge of the occupier of the premises.

 

Proposed paragraph 3SI(1)(b) requires that in the case of an unsworn application, the eligible issuing officer must also be satisfied that it was impracticable for an affidavit to have been sworn or prepared prior to the application being made or that the delay that would have occurred if an affidavit had been prepared or sworn before the application was made would have frustrated the effective execution of the warrant.  Similarly, proposed paragraph 3SI(1)(c) provides that in the case of a remote application, the eligible issuing officer must also be satisfied that it was impracticable for the application to have been made in person or that the delay that would have occurred if the application was made in person would have frustrated the effective execution of the warrant.  These provisions allow for external scrutiny of judgements made by constables that an application could not be made in person or that an affidavit could not be sworn in time. 

 

Proposed subsection 3SI(2) sets out seven matters which an eligible issuing officer must have regard to in deciding whether to issue a delayed notification search warrant, the extent to which the exercise of the powers would assist the prevention of or investigation into the relevant offences, the existence of alternative means of obtaining the evidence or information, the extent to which the privacy of any person is likely to be affected, the nature and gravity of the alleged offence(s) for which the warrant is sought, if it is proposed that adjoining premises be entered for the purpose of entering the target premises whether that entry is reasonably necessary, whether any conditions should be included in the warrant, and the outcome of any known previous applications for delayed notification search warrant or a Division 2 warrant in connection with the same premises.

 

Proposed subsection 3SI(2) recognises and balances the competing public interest in timely and effective law enforcement and the intrusion on the privacy of a group or individual.  The eligible issuing officer hearing the application must balance these interests in the circumstances of each application.

 

Proposed subsections 3SI(3) and 3SI(4) enable eligible issuing officers who are Judges of a court created by the Parliament or are AAT members to issue a delayed notification search warrant in relation to premises located anywhere in the Commonwealth or an external Territory, but restricts eligible issuing officers who are State or Territory Judges to issuing delayed notification search warrants only in relation to premises located in that State or Territory.

 

Proposed section 3SJ - Contents of delayed notification search warrant

 

Proposed subsection 3SJ(1) sets out the information which must be contained in a delayed notification search warrant.  The warrant is to contain, amongst other things, the name of the applicant and executing officer, a description of the kinds of things that are proposed to be searched for, seized, copied, photographed, recorded, operated, printed, tested or sampled, and state whether a thing may be placed in substitution for a seized item.  There is no requirement under this Division for a description of any thing placed in substitution for a seized item. 

 

The warrant must also state whether it authorises re-entry of the warrant premises to return any thing seized or to retrieve any thing substituted, and if so proposed paragraph 3SJ(1)(j) requires that re-entry to be within seven days of the day on which the warrant was executed, that is, the day on which the premises were first entered under the warrant. 

 

These requirements ensure that executing officers and constables assisting have clear guidance on their powers under each delayed notification search warrant and are accountable for the proper execution of the warrant.

 

A delayed notification search warrant must include the name and signature of the eligible issuing officer under proposed subsection 3SJ(2).

 

Proposed section 3SK - Formal requirements relating to remote applications

 

Proposed subsection (1) requires that if a delayed notification search warrant is issued on a remote application, the eligible issuing officer must inform the applicant, by telephone, fax, email or other means of communication, of the terms of the warrant and the day on which and the time at which it was signed.  The eligible issuing officer must later give the warrant to the applicant, and retain a copy for the eligible issuing officer’s records.  The warrant and the copy will have been completed according to proposed section 3SJ.

 

Proposed subsection (2) requires that the applicant must then complete a form of delayed notification search warrant to substantially reflect the terms given by the eligible issuing officer, and to state on the form the name of the eligible issuing officer and the day on which and the time at which the warrant was signed.

 

Proposed subsection (3) requires the applicant to return, either in person or electronically, to the eligible issuing officer the form of warrant completed by the applicant.  This form must be returned no later than the day after the day of expiry of the delayed notification search warrant, or the day after the day on which the warrant was executed, whichever is the earlier.

 

Proposed subsection (4) requires the eligible issuing officer to attach the form of the warrant provided by the applicant, to the one he or she has signed under proposed subsection 3SK(1).

 

Proposed subsection (5) creates a rebuttable presumption if an issue arises as to whether the exercise of a power under a delayed notification search warrant issued on a remote application was duly authorised, that the power was not duly authorised unless the form of warrant signed by the eligible issuing officer is produced in evidence. 

 

Proposed section 3SL - What is authorised by a delayed notification search warrant

 

This proposed section recognises that using a delayed notification search warrant may result in some interference with property, for example, in gaining entry into warrant premises. The proposed section sets outs clearly what powers executing officers and constables assisting are authorised to exercise in executing a delayed notification search warrant.  The powers under this provision are based upon the powers conferred under section 27O of the New South Wales Terrorism Legislation Amendment (Warrants) Act 2005, as well as powers based on section 3F of the Crimes Act .

 

Proposed subsection 3SL(2) defines ‘relevant thing’.  A reference to a relevant thing in this section means a thing that an executing officer or a constable assisting in the execution of the warrant believes, on reasonable grounds, is evidential material in relation to an offence to which this Division applies, or evidential material in relation to another offence which is an indictable offence.  This empowers the seizure of things found on the premises which do not relate to the relevant offence for which the delayed notification search warrant was issued but which may constitute evidence of other serious offences.

 

The power to enter warrant premises authorised at proposed paragraph 3SL(1)(a) would include a power to enter adjoining premises specified in the warrant.  The power to impersonate a person authorised by proposed paragraph 3SL(1)(b) would enable executing officers and constables assisting to gain entry for example, by impersonating a council technician carrying out routine work for the purposes of allaying suspicion of other residents of the area.  Entry can be at any time the relevant police force or police service considers necessary to ensure that the warrant can be executed covertly.

 

The remaining powers include the power to search for and seize any thing of a kind specified in the warrant, or any other relevant thing found in the course of the search, if the executing officer believes on reasonable grounds that the seizure of the thing is necessary to prevent its concealment, loss, destruction or use.

 

Proposed paragraph 3SL(1)(f) further authorises a constable or a constable assisting to seize other things found in the course of the search if the executing officer believes that the things are seizable items.  This is based on existing section 3F(1)(e) of the Crimes Act.  Similarly, proposed paragraph 3SL(1)(g) which enables an executing officer or a constable assisting to search for and record fingerprints found at the premises, and to take samples of things found at the premises for forensic purposes is based upon section 3F(1)(b) of the Crimes Act.  Samples may include such things as samples of explosive and weapon type material, and DNA from such items as used cups or cigarettes.

 

Proposed paragraph 3SL(1)(h) only authorises an executing officer or a constable assisting to replace a seized item with a substitute if specified in the warrant.  The power to replace an item with a substitute is included to ensure the occupier of the premises is not alerted to the search until an occupier’s notice is provided.

 

Proposed subparagraph 3SL(1)(i) authorises an executing officer or a constable assisting to copy, photograph or otherwise record a thing of a kind specified in the warrant, and any other relevant thing that the executing officer or the constable assisting finds in the course of executing the warrant.   

 

Similarly, proposed paragraph 3SL(1)(j) authorises an executing officer or a constable assisting to operate, print, test or sample a thing of a kind specified in the warrant and any other relevant thing that the executing officer or the constable assisting finds in the course of executing the warrant at the warrant premises.  The powers under proposed paragraphs 3SL(1)(i) and (j) are supported by the provisions of proposed sections 3SM, 3SO and 3SP.

 

Proposed paragraph 3SL(1)(k) authorises re-entry of the warrant premises to return a thing seized or retrieve a thing substituted at the warrant premises.  Any such re-entry must occur within seven days of the day on which the warrant was executed, that is, on the day of first entry under the warrant.  The constable who is re-entering the premises to return or retrieve a thing may do so with such assistance as is necessary and reasonable in the circumstances.

 

Proposed subsection 3SL(3) reflects section 3F(5) in Division 2 of the Crimes Act.  This subsection provides that a delayed notification search warrant authorises the executing officer to make things seized at the warrant premises available to officers of other agencies investigating or prosecuting an indictable offence to which the thing relates.

 

Proposed section 3SM - Specific powers available to constables executing the warrant

 

The powers under proposed subsection 3SM(1) are based on the existing powers under subsection 3J(1) of the Crimes Act.  The proposed section authorises an executing officer or constable assisting to take photographs or video recordings of the warrant premises for a purpose incidental to the execution of the warrant.  Because of the covert nature of a delayed notification search warrant, a power to take photographs with the written consent of the occupier, similar to that at subsection 3J(1), is not included. 

 

Proposed subsection 3SM(2) allows the executing officer or a constable assisting to leave the warrant premises temporarily for a maximum period of one hour and, provided the warrant is still in force may re-enter to complete its execution.  The powers are based on subsection 3J(2) of the Crimes Act. 

 

Proposed subsection 3SM(3) is based on subsection 3J(3) of the Crimes Act.  It allows the execution of a warrant to be completed if the execution was halted by an order of a court which is subsequently revoked or reversed, provided the warrant is still in force.  If the warrant is no longer in force, but covert re-entry is still considered necessary a new warrant must be applied for, and details of the previous warrant will be included in the supporting affidavit as required by proposed paragraph 3SE(3)(c).

 

Proposed section 3SN - Executing a Warrant - assistance, use of force and related matters

 

This proposed section, which is based on section 3G of the Crimes Act, authorises an officer executing the warrant to obtain such assistance as is necessary and reasonable in the circumstances to execute the warrant.  It also authorises the executing officer or a person who is a constable who is assisting, to use such force against people and things as is necessary and reasonable to execute a delayed notification search warrant. 

 

The proposed section also authorises a person who is not a constable but who has been authorised to assist in executing the warrant, to use such force against things as is necessary and reasonable in the circumstances.  A person who is not a constable assisting but who has been authorised to assist is not authorised to use force against people.

 

Proposed subsection 3SN(2) requires that an executing officer or a constable assisting has a copy of the warrant, or if the warrant has been issued remotely, a copy of the form of warrant, available during entry and search of the premises, or entry of the adjoining premises.  The warrant or form of warrant must be available to the executing officer or a constable assisting to produce without delay, for instance obtain it from a team member outside or in an adjoining room.  If circumstances require it, an executing officer or a constable assisting can produce the warrant to confirm that their presence is legitimate.

 

Proposed subsection 3SN(3) clarifies that there is no requirement to produce the warrant.  Because a warrant allows an executing officer or constable assisting to impersonate another person during the execution of the warrant, the occupier may accept the legitimacy of the action, which obviates the need to produce the warrant, and allows the operation to remain covert.    

 

Proposed section 3SO - Use of equipment to examine or process things

 

Proposed subsection 3SO(1), which authorises the executing officer or a constable assisting to bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises, is based on subsection 3K(1) of the Crimes Act. 

 

Proposed subsection 3SO(2), which authorises the operation of equipment already at the premises to examine or process a thing found at the premises if the executing officer or constable assisting believes on reasonable grounds that the equipment is suitable for the examination or processing and will not be damaged as a result of its operation, is based upon subsection 3K(4) of the Crimes Act. 

 

Proposed section 3SP - Use of electronic equipment at warrant premises

 

This proposed section authorises the operation of electronic equipment found at the warrant premises to access data held on that equipment to determine whether it constitutes evidential material.  The power to access data not held on site from equipment found on site is consistent with the existing search warrant powers under subsection 3L(1) of the Crimes Act.   

 

As many business computers are networked to other desktop computers and to central storage computers, files physically held on one computer are often accessible from another computer.  In some cases these computer networks can extend across different office locations.  Accordingly, it is critical that law enforcement officers executing a search warrant are able to search not only material on computers located on the search premises but also material accessible from those computers but located elsewhere.  This clause would also enable the tracing of a suspect’s internet activity and viewing of material accessed by the suspect.

 

As under the existing search warrant provisions, the executing officer would not be required to notify operators of computers not on search premises if data held on those computers is accessed under the warrant.   It would not be practicable to impose such a notification requirement on investigating officers, as it will not always be apparent when accessing data whether it is held on premises or off site or, in some cases, where it is held.  For example, computer files accessible from a personal computer connected to a network may be stored on a mainframe computer located elsewhere, but there may be nothing that would indicate to the person accessing those files that they are not held on the search premises.  

 

Electronic equipment, such as a computer hard drive, can hold large amounts of data.  It is often not practicable for officers to search all the data for evidential material while at the search premises and then copy only that data which they believe may constitute evidential material.  Accordingly, proposed subsection 3SP(2) authorises law enforcement officers executing a delayed notification search warrant to copy data held on electronic equipment accessed at search premises to a storage device where there are reasonable grounds to believe that the data contains evidential material, and to take that device holding the data from the premises.  This will permit officers to copy all data held on a computer hard drive or data storage device if the data contains evidential material or if there are reasonable grounds to believe that the data contains evidential material.  The authorisation only extends to copying the data to a storage device brought to the premises by the executing officer or a constable assisting.  This provision is based on subsection 3L(1A) of the Crimes Act with the necessary exception that it does not enable the executing officer or a constable assisting to copy the data to a device found at the premises with the consent of the occupier.

 

Proposed subsection 3SP(3) reflects existing subsection 3L(1B) of the Crimes Act.  This provision safeguards the rights of the occupier when the data taken from the premises is no longer required to be kept for the purposes of any investigation or for handling a complaint about the conduct of officers of the authorising agency in the execution of the warrant.  The chief officer, or his delegate must arrange for the data to be removed from any device onto which it was copied, or the destruction of any other reproduction of the data which has been made during the course of the examination of the data. 

 

Proposed subsections 3SP(4) and 3SP(5) enable officers executing delayed notification search warrants to operate equipment found at the premises to reproduce evidential material found by accessing the equipment in documentary form or, if that is not practicable, to seize the equipment.  These provisions only enable the reproduction of, or seizure of equipment containing, evidential material.  The subclauses are based on the existing provisions of subsections 3L(2) and (3) of the Crimes Act.

 

Proposed subsection 3SP(6) applies section 3M of the Crimes Act to the delayed notification search warrants scheme, entitling an occupier to compensation for damage caused to electronic equipment as a result of it being operated under this section.  Given the covert nature of the operation, compensation would normally only be paid when an occupier’s notice was provided, unless the occupier had become aware than this that damage had been sustained.

 

Proposed Subdivision 4-Notice to occupiers

 

This subdivision sets out the process by which the occupier of premises or of adjoining premises entered under a delayed notification search warrant is to be given notice of the entry.

 

Proposed section 3SQ - Occupier’s notice must be prepared

 

Proposed section 3SQ requires that a notice be given to the occupier of premises entered under a delayed notification search warrant and sets out the information which must be contained in the notice.  The notice may be prepared by either the executing officer or the applicant. 

 

The requirement that the notice include a statement of the grounds on which a delayed notification search warrant may be issued is intended to provide the occupier with an outline of the operation of the scheme.  A copy of the warrant, which is to be provided under proposed subsection 3SQ(3) with the occupier’s notice, will give the occupier information regarding what was authorised.  The notice will contain details of how the warrant was executed.  These requirements will ensure that the occupier of the premises is aware of why a delayed notification search warrant was issued in respect of the premises, and what was done under the warrant.

 

The notice is to be given in accordance with the time limits specified under proposed section 3SS.  Proposed subsection 3SQ(4) creates an exception to the requirement to give an occupier’s notice if the occupier’s identity cannot be ascertained, or the occupier cannot be located.  In such circumstances the person who prepared the occupier’s notice must report back to the eligible issuing officer who may give directions on the requirement to give the notice.

 

Proposed section 3SR - Adjoining premises occupier’s notice must be prepared

 

This proposed subsection requires that notice be given to the occupier of adjoining premises entered under a delayed notification search warrant to gain access to the target premises, and sets out what is to be included in the notice.  The notice may be prepared by either the executing officer or the applicant.  A copy of the delayed notification search warrant authorising the entry is also to be provided with the notice. 

 

The information to be provided to the occupier of adjoining premise entered under a delayed notification search warrant is more limited than that required to be provided to the occupier of the target premises, but is sufficient to ensure that the occupier is aware of why entry to his or her premises was authorised and when it occurred.

 

The notice is to be given in accordance with the time limits specified under proposed section 3SS. 

 

As at subclause 3SQ(4), a person who prepares an adjoining premises occupier’s notice but who cannot ascertain the identity of, or locate, the occupier of the adjoining premises, must report back to the eligible issuing officer who may give directions regarding delivery of the notice.

 

As noted at proposed section 3SP, an executing officer would not be required to notify owners or operators of computers not on search premises if data held on those computers is accessed under warrant.  Access to data held on remote computers under a delayed notification search warrant does not constitute access to adjoining premises.  Accordingly, there is no requirement to give notice to the owner or operator of those computers.

 

Proposed section 3SS - Period for giving an occupiers or adjoining premises occupier’s notice

 

This proposed section sets out when an occupier’s notice and adjoining premises occupier’s notice must be given.  The notice must, unless an extension is obtained, be provided to the occupier of the premises or of the adjoining premises within six months of the day on which the delayed notification search warrant was executed.  By virtue of proposed subsection 3SA(3) this means that the notice must be given within six months of the date on which the premises were first entered under the warrant.

 

Proposed subsection 3SS(3) enables the chief officer of the authorising agency to authorise a constable to apply to an eligible issuing officer for an extension of the period within which the notice must be given.  The authorisation must be in writing.  A constable may not make an application for an extension unless so authorised.  This requirement is intended to ensure that applications for extensions of the period for giving notice are only made in appropriate cases.

 

Proposed subsection 3SS(4) requires that an eligible issuing officer granting an extension be satisfied that there are reasonable grounds for extending the period within which the notice must be given.  An extension would normally be appropriate when there is an ongoing investigation of a relevant offence, the success of which may depend on continued confidentiality.

 

Proposed subsection 3SS(5) limits the period of extension that may be granted by an eligible issuing officer.  The period may only be extended by periods of up to six months on any one application, up to a maximum of 18 months.  An extension beyond 18 months from the date of entry may only be granted with the written approval of the Minister and if the eligible issuing officer is satisfied that there are exceptional circumstances.  This recognises that some investigations may be undertaken over an extended period.

 

Proposed Subdivision 5-Reporting

 

This subdivision sets out the reporting requirements of the delayed notification search warrants scheme.  These requirements are intended to ensure that executing officers and the authorising agencies are accountable for the use of delayed notification search warrants.

 

Proposed section 3ST - Reporting on delayed notification search warrants

 

This proposed section imposes reporting requirements on the executing officer of a delayed notification search warrant, whether or not it was executed.

 

Under proposed subsection 3ST(2) the executing officer or the applicant must, as soon as practicable after execution of a delayed notification search warrant, or the expiry of an unexecuted warrant, make a report to the chief officer setting out the matters listed in proposed subsection 3ST(3).  The requirement that the report be given as soon as practicable in the case of a warrant that has been executed means that the report is to be prepared before the seven days allowed for any re-entry authorised by the warrant has expired.  If the warrant authorises re-entry, a further report is then prepared.  If the delayed notification search warrant was executed, the report must also include the information listed at proposed subsection 3ST(4).  The requirement at proposed paragraph 3ST(4)(c) that the report contain information on the ‘kind of assistance provided’ requires a general description of the nature of the assistance provided rather than a technical description of what was actually done and how it was done.  For example, it is sufficient to say that a person provided data analysis.  It is not necessary to specify how they did it or what data was analysed.    Under proposed subsection 3ST(5), if the delayed notification search warrant was not executed, the report must state why not. 

 

Proposed subsection 3ST(6) sets out details to be included in a further report if the warrant premises were re-entered after the warrant was executed for the purposes of returning a thing seized from, or retrieving a thing left at, the premises.  This report must be given to the chief officer who authorised the application for the warrant as soon as practicable after the warrant premises were re-entered.

 

Proposed section 3SU - Annual reports to Minister

 

Proposed section 3SU requires the chief officer of an authorising agency to report to the Minister within three months of the end of each financial year and sets out the matters which must be included in that report.

 

The report must set out the number of warrants applied for and issued to constables of the authorising agency during the year, and specify the number applied for in person or by electronic means.  The report must also include details of the relevant offences to which the issued delayed notification search warrants relate.   The report must not only specify the number of warrants that were executed, but must also specify the number of warrants that were executed under which things were seized, placed in substitution, returned to or retrieved from the premises, and copied, operated or printed.   

 

Proposed paragraph 3SU(1)(d) requires the total number of delayed notification search warrants that were executed by constables of the agency.  Proposed paragraph 3SU(1)(e) requires that further details relating to each warrant be provided so that the Minister and the Parliament can ascertain the uses that are being made of delayed notification search warrants.  For example, of 10 warrants executed by an agency, eight of the warrants may have included items seized, two of the warrants may have included items that were copied, one of the warrants may have included items substituted for seized items, and five of the warrants may have included items tested.

 

Provision of this information will enable assessment of the usefulness of the delayed notification search warrants scheme, and of whether an appropriate balance between law enforcement and intrusion into privacy has been met, and will also ensure accountability of agencies. 

 

Proposed subsection 3SU((1)(f) provides that the report may contain any other information related to delayed notification search warrants and the administration of the scheme that the Minister considers appropriate.  This enables the Minister to request further information from chief officers.   The further information may outline the benefit to an investigation of the use of a delayed notification search warrant the use, made or to be made of any evidence or information obtained under the delayed notification search warrant, or provide details of the passing of evidence or information obtained under the delayed notification search warrant to persons other than officers of the authorising agency.

 

Proposed subsection 3SU(3) requires the Minster to table the report before each House of Parliament within 15 sitting days of receipt.

Proposed section 3SV - Keeping documents connected with delayed notification search warrants

 

This proposed section imposes administrative requirements on agencies using the delayed notification search warrants scheme to ensure that they are sufficiently accountable.  The section lists the documents which are to be kept for purposes of records maintenance and to facilitate investigations by the Commonwealth Ombudsman under Subdivision 6.   

Proposed section 3SW - Register of delayed notification search warrants

 

This proposed section continues the accountability requirements of authorising agencies by requiring that a register of delayed notification search warrants be kept, and listing the information to be kept in that register.  Information is to be kept about every application for a delayed notification search warrant, regardless of whether it was issued or refused.  The register is to include the details of any directions given by an eligible issuing officer if the occupier of premises or of an adjoining premises is unknown or unable to be located. 

 

Proposed subsection 3SW(3) states that the register is not a legislative instrument.  As such a register is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 , this provision is declaratory of the law.  It does not create an exemption from the Legislative Instruments Act 2003 .

 

Proposed Subdivision 6-Inspections by Ombudsman

 

This subdivision establishes the procedure for the Commonwealth Ombudsman to monitor the delayed notification search warrants scheme, by inspecting records and reporting to the Minister to ensure that authorising agencies are complying with their obligations under this Division.

 

Proposed section 3SX - Appointment of inspecting officers

 

This proposed section allows the Ombudsman to appoint members of the Ombudsman’s staff to be inspecting officers for the purpose of this Division. The appointment must be evidenced in writing.

 

Proposed section 3SY - Inspection of records by the Ombudsman

 

This proposed section establishes an inspection regime requiring the Commonwealth Ombudsman to inspect the records kept by authorising agencies at least once every 12 months. The role of the Ombudsman is to determine whether the records kept are accurate and whether an authorising agency is complying with its obligations under the Division.

 

Proposed paragraphs 3SY(2)(a) and (b) provide that the Ombudsman can enter premises occupied by the authorising agency at any reasonable time after notifying the chief officer of the agency. The Ombudsman is then entitled to full and free access at all reasonable times to all records of the delayed notification search warrants scheme that are relevant to the inspection.

 

The Ombudsman has the power under proposed paragraph 3SY(2)(c) to require a member of staff of the authorising agency to provide any information relevant to the inspection that is in their possession or to which the member has access.

 

Proposed subsection 3SY(3) requires the chief officer to ensure that agency staff provide the Ombudsman with any assistance that the Ombudsman reasonably requires to enable the Ombudsman to inspect the records.

 

Proposed subsection 3SY(4) enables the Ombudsman to delay the inspection of records of the agency on a delayed notification search warrant until an occupier’s notice has been given in relation to the warrant.  This ensures that confidentiality of the information is maintained until operational sensitivities allow disclosure.

 

Proposed section 3SZ - Power to obtain relevant information

 

This proposed section empowers the Ombudsman to require, in writing, an officer of an authorising agency to provide written information relevant to an inspection at a specified place and within a specified period if the Ombudsman has reason to believe that the officer is able to give the information.

 

Under proposed subsections 3SZ(3) and 3SZ(5) the Ombudsman may also require, in writing, a law enforcement officer to attend to answer questions relevant to the inspection before a specified inspecting officer at a specified place and within either a specified period or at a reasonable time and date.  This section will enable the Ombudsman to question a law enforcement officer who he or she believes is able to give information relevant to the inspection.

 

If the Ombudsman has  reasonable grounds to believe that an officer, whose identity in unknown to the Ombudsman, is able to give information relevant to an inspection, proposed subsections 3SY(4) and 3SY(5) also authorise the Ombudsman in writing to require the chief officer of an authorising agency, or a person nominated by the chief officer, to attend to answer questions relevant to the inspection before a specified inspecting officer, at a specified place and either within a reasonable specified period or at a reasonable time and date.  The definition of law enforcement officer for the purpose of this section at proposed subsection 3SY(6) is narrower than the general definition at section 3 of the Crimes Act.

 

Proposed section 3SZA - Offence

 

Proposed section 3SZA creates an offence if a person refuses or fails to attend before a person, to give information or to answer questions when required to do so under proposed section 3SY. The maximum penalty for the offence is imprisonment for six months.

 

Proposed section 3SZB - Ombudsman to be given information and access despite other laws

 

Proposed subsection 3SZB(1) states that a person is not excused from providing information, answering questions or giving access to a document when required under the Division, on the grounds that doing so would contravene a law, would be contrary to the public interest or might tend to incriminate the person or make them liable to a penalty, or to disclose certain advice of a legal nature. 

 

Proposed subsection 2SZB(2) states that if the person is an individual, the information, answer given or the fact that the person has given access to a document, and any information or thing that is obtained as a direct or indirect consequence, is not admissible in evidence against the individual except in a prosecution for unauthorised disclosure of information under proposed section 3SZG or a prosecution for providing false or misleading information or documents, or making a false document under Part 7.4 or 7.7 of the Criminal Code.

 

Proposed subsection 3SZB(3) provides that nothing in proposed section 3SZG, which creates an offence of unauthorised disclosure of information about delayed notification search warrants, or any other law prevents an officer of an authorising agency from providing information to an inspecting officer in any form or from providing access to records of the authorising agency for the purposes of an inspection under the Division.  This abrogation of the privilege against self-incrimination subject to a use and derivative use immunity recognises the public interest in the effective monitoring of the use of delayed notification search warrants to ensure that civil liberties are not unduly breached.

 

Proposed subsection 3SZB(4) enables an officer of an authorising agency to make a record of information, or cause such a record to be made, for the purposes of giving the information to a person as permitted by subclause (3), without being liable for a breach of proposed section 3SZG or any other law.

 

Proposed subsection 3SZB(5) ensures that a claim for legal professional privilege over information, documents or other records provided or answers given under this clause is maintained.

 

Proposed section 3SZC - Exchange of information between Ombudsman and State inspecting authorities

 

Proposed sections 3SZC and 3SZD allow the Commonwealth to develop effective and consistent inspection arrangements with other inspecting bodies, particularly State Ombudsmen.

 

Proposed subsection 3SZC(1) provides definitions for ‘State or Territory agency’ and ‘State or Territory inspecting authority’ for the purposes of the section.

 

Proposed subsection 3SZD(2) authorises the Ombudsman to give information that relates to a State or Territory agency which was obtained by the Ombudsman under this Division to the State or Territory inspecting authority responsible for inspecting that agency.  Proposed subsection 3SZD(3) requires that the Ombudsman be satisfied that it is necessary to give the information to the inspecting authority to enable it to perform its functions in relation to the State or Territory agency.

 

Proposed subsection 3SZD(4) empowers the Ombudsman to receive information relevant to the performance of the Ombudsman’s functions under this Division from a State or Territory inspecting authority.

 

Proposed section 3SZD - Delegation by Ombudsman

 

Proposed subsection 3SZD(1) authorises the Ombudsman to delegate some or all of his or her powers under the Division, except the power to report to the Minister.  The delegation can be to an APS employee who is responsible to the Ombudsman or to a person holding an equivalent office to the Ombudsman under a State or Territory law or to an employee who is responsible to that person.

 

Proposed subsection (2) requires a delegate under subclause (1) to provide a copy of the delegation for inspection by a person who is affected by the exercise of a delegated power upon request.

 

Proposed section 3SZE - Ombudsman not to be sued

 

This proposed section gives immunity from action, suit or proceeding to the Ombudsman, an inspecting officer or a person acting under an inspecting officer’s direction or authority for an act or omission made in good faith in the performance or exercise, purported or otherwise, of a function, power or authority conferred under the Division.  It further gives immunity to a Deputy Ombudsman or a delegate of the Ombudsman.

 

Proposed section 3SZF - Report on inspection

 

Under this proposed section, the Ombudsman is required to provide a written report to the Minister every six months on the results of each inspection undertaken under proposed section 3SY.

 

Proposed subsection 3SZF(2) requires that a copy of the Ombudsman’s report be tabled by the Minister before each House of Parliament within 15 sitting days of that House after the Minister has received the report.

 

Proposed Subdivision 7 - Offence relating to unauthorised disclosure

 

This subdivision creates an offence of unauthorised disclosure of information relating to a delayed notification search warrant, and amends the application of some of the general provisions of Division 5 of Part 1AA of the Crimes Act which would otherwise apply to this Division, to ensure they are consistent with the provisions of this Division. 

 

Proposed section 3SZG - Unauthorised disclosure of information

 

Proposed subsection 3SZG(1) creates an offence of unauthorised disclosure of information relating to an application for a delayed notification search warrant, the execution of a delayed notification search warrant, a report prepared by an executing officer or applicant after the warrant has been executed or has expired, or relating to an occupier’s notice or adjoining occupier’s notice.  The offence carries a maximum penalty of two years imprisonment.

 

Proposed subsection 3SZG(2) specifies exceptions where lawful disclosure can be made.  The defendant bears the evidential burden of proof of the exception in accordance with the provision at subsection 13.3(3) of the Criminal Code.

 

By virtue of proposed paragraph 3SZG(2)(e) no offence can be committed under 3SZG(1) once the occupier’s notice has been provided, unless a direction has been provided where an occupier is unknown or is unable to be located.   The intention of this offence provision is to maintain confidentiality of the information as long as operational sensitivities require.  The exceptions at proposed subsection 3SZG(2) ensure that no offence is committed if information is disclosed by officers in the performance of their duties.

 

Item 9: At the end of section 3ZS

 

This proposed subsection provides that the general requirement at section 3ZS of the Crimes Act, that a constable entering premises under a search warrant is to announce that he is authorised to enter the premises, does not apply to entry to premises under a delayed notification search warrant.

 

 

Items 10 and 11: Paragraph 3ZU(a, (b), (c) and (d)

 

Proposed section 3ZU contains offences relating to the form of warrant prepared by an applicant following a remote application.  Item 10 extends those offences to the form of warrant required to be prepared by the applicant under proposed section 3SK after an eligible issuing officer has approved an application under proposed section 3SK.

 

Item 12: At the end of section 3ZV

 

Proposed section 3ZV requires a constable to return items seized under a warrant unless they are forfeited or forfeitable or there is a dispute as to their ownership, if the reason for the seizure no longer exists or the thing is not to be used in evidence.  Item 12 inserts a provision to make it clear that things seized under a delayed notification search warrant do not have to be returned until an occupier’s notice has been provided.  This is necessary because of the covert nature of a delayed notification search warrant.

 

Schedule 3-Australian Crime Commission Act 2002

 

Schedule 3 makes various amendments to the Australian Crime Commission Act 2002 (the ACC Act) The amendments will address some operational difficulties experienced by the Australian Crime Commission (the ACC) and make minor technical amendments.

 

Part 1-Main Amendments

 

Item 1: Subsection 4(1)

 

This item defines the term constable as the term is used in the amended search warrant provisions at 28 (which is modelled on section 3G of the Crimes Act 1914 (the Crimes Act)) relating to the use of force when executing a search warrant. 

 

Section 22(1) of the ACC Act provides that an ‘eligible person’ may apply to an issuing officer for a search warrant if certain pre-conditions are satisfied.  An ‘eligible person’ is defined in section 4 of the ACC Act as ‘an examiner or a member of the staff of the ACC who is also a member of the Australian Federal Police or the Police Force of a State’.  (Please note item 3 will amend this definition to exclude examiners).  Therefore, the person named in a warrant, must be a police officer however, item 4 amends the ACC Act to authorise the person named in the warrant to sign the warrant over to another person.  This person may, or may not, be a police officer due to the ACC consisting of a number of contract or in-house investigators, as well as seconded police officers.  It is necessary for the ACC to retain a number of these investigators due to the regular rotation of seconded police and the need to have continuity and corporate knowledge in long term investigations.

 

The ACC uses search warrants in its investigative and intelligence operation functions.  Whilst executing a search warrant, the executing officer (who may not be a police officer) may be called on to exercise powers normally given to police officers, and there will often be the need to carry a firearm.  Employees of the ACC do not possess the powers of constables, nor are they exempt from State and Territory firearms legislation regulating the licensing and storage of firearms.  The risks associated with investigations, covert operations and surveillance, employees who are not sworn in as special members of the AFP, are not in a position to exercise police powers, such as the use of force.  Item 28 ensures that only police officers will be called upon to exercise police powers by specifying that only a ‘constable’ may use force where reasonable and necessary during the execution of a search warrant.

 

The risks for ACC staff members not sworn in as special members of the AFP, need to be managed on all ACC investigations and operations.  Sufficient powers must be available to ACC staff members to enable them to conduct ACC business and requiring only a ‘constable’ to exercise the use of force when executing a search warrant acknowledges that during the execution of a search warrant, the executing officers may be exposed to danger, or the need to use force.  It is essential that those staff members, or at least some of the staff members present, are capable and authorised to respond to situations and possess an understanding of what is a ‘reasonable and necessary’ use of force.  This requirement provides both a safeguard to ACC staff members, and to any other person who may be present at the search warrant premises.

 

 Item 2: Subsection 4(1)

 

This item inserts the definition of conveyance .  The Bill aligns the ACC search warrant provisions with the search warrant model contained in the Crimes Act.  The definition of ‘conveyance’ includes an aircraft, vehicle or vessel and is captured by the definition of ‘premises’ provided by item 10.  This means that an aircraft, vehicle or vessel on the warrant premises may be searched by an executing officer or person assisting. 

 

 Item 3: Subsection 4(1) (definition of eligible person)

 

An eligible person may apply for a search warrant under either section 22 of the ACC Act, or telephone warrant under section 23 of the ACC Act and includes an ‘examiner’.  This amends the definition of ‘eligible person’ to exclude examiners from the classes of people who can apply for a search or telephone warrant.  Examiners do not have the authority to direct any person in the execution of a warrant and do not perform any operational functions.  Accordingly, only staff members of the ACC who are also members of the AFP or a State or Territory Police force or service are to be an ‘eligible person’ under the ACC Act.

 

Item 4: Subsection 4(1)

 

This item inserts the definition of executing officer The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘executing officer’ is the term referred to when describing the person who is responsible for executing the warrant.  In defining this term, this provides that the executing officer, or a person on behalf of the executing officer, may insert another authorised officer to be responsible for executing the warrant, as provided in the Crimes Act. 

 

 

 Item 5: Subsection 4(1)

 

This item inserts the definition of frisk search .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘frisk search’ is the term referred to when describing one of the searches an executing officer (see item 4) or person assisting the executing officer is permitted to conduct on persons at, or near the warrant premises if there is reason to believe that the person is in possession of any relevant thing or seizable.  The definition is taken directly from the Crimes Act and describes a search that involves running hands over the person’s outer garments and examining anything worn or carried by the person which is conveniently and voluntarily removed.

 

Item 6: Subsection 4(1) ( at the end of the definition of intelligence operation)

 

Item 6 clarifies that an ACC ‘operation’ may also include an ACC ‘investigation’.  The ACC conducts both operations and investigations - an ‘investigation’ being an investigation into a particular person, whilst an ‘operation’ is usually a broad investigation into a type, or range of crimes.  This recognises that an operation that involves looking into crime generally, may also include an investigation into a particular individual for a particular offence.  If the Board of the ACC approve a ‘special investigation’ or a ‘special operation’, this clarifies that an approved ‘special operation’ may also include an investigation that is part of the ‘special operation’.  However, the particular investigation must satisfy the requirement that it involves a particular person and a particular offence and it does not acquire the status of a ‘special investigation’ by virtue of the fact that it relates to a ‘special operation’. 

Work undertaken as part of an intelligence operation, that becomes an investigation of a particular offence, may also be deemed an investigation for the purpose of other legislation conferring investigative powers, such as the Telecommunications (Interception) and Listening Device Amendment Act 1997 .

However, in circumstances where the ACC apply for a telephone interception warrant, this will not enable the ACC to seek the warrant simply because it is investigating a matter, as it can in the circumstances of conducting a ‘special investigation’.  This will not hinder the effective operation of the ACC as a law enforcement agency (including the ACC) may obtain a telephone interception warrant for most serious and organised crime, provided the maximum penalty is at least seven years imprisonment for the suspected offence.

 

This essentially is an avoidance of doubt provision and is not intended to expand the current powers of the ACC in any way.  The amendment is simply to clarify that in practice, aspects of an operation may also include an investigation however, it is not intended that such an investigation amounts to a special operation or special investigation. 

 

Item 7: Subsection 4(1) ( at the end of the definition of issuing officer)

 

Under section 22 of the ACC Act, search warrants are issued by an ‘issuing officer’ which is defined in subsection 4(1) to include a Judge of the Federal Court or of a court of a State or Territory, or a Federal Magistrate.  This has been restrictive in some localities. This adds ‘a magistrate’ to the current list of persons authorised to issue a search warrant to the ACC, bringing the legislation into line with the Crimes Act.  Magistrates have wide expertise in the interpretation of legislation, and are experienced in the exercise of comparable powers in relation to applications by the AFP for search warrants.

 

 Item 8: Subsection 4(1)

 

This item inserts the definition of ordinary search .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘ordinary search’ is the term referred to when describing one of the searches an executing officer (see item 4) or person assisting the executing officer, is permitted to conduct on persons at, or near the warrant premises, if there is reason to believe that the person is in possession of any relevant thing or seizable .  The definition is taken directly from the Crimes Act and describes a search that may require a person to remove their overcoat, coat, jacket, gloves, shoes or hat for examination.

 

Item 9: Subsection 4(1)

 

This item inserts the definition of premises .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘premises’ is the term referred to when describing the property that is subject to a search warrant issued under the ACC Act.  The definition is taken directly from the Crimes Act and describes ‘premises’ to include a place and a conveyance.

 

Item 10: Subsection 4(1)

 

This item inserts the definition of seizable .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘seizable’ is the term referred to when describing s which may be seized by the executing officer or person assisting.  The definition is taken directly from the Crimes Act and defines a ‘seizable’ to include anything that would present a danger to a person or that could be used to assist a person to escape from lawful custody.

 

Item 11: Subsection 4(1)

 

This item inserts the definition of relevant thing .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘relevant thing’ is the term referred to when describing the s that may be seized from premises subject to a warrant in force.  The term ‘relevant thing’ is defined to include a document or a thing (including an electronic document or thing) that may be used in evidence for an offence to which the special ACC operation or investigation relates.  An ‘eligible person’ (see item 3) may apply for a search warrant under the ACC Act if he or she has reasonable grounds to believe that there may be a ‘relevant thing’ on particular premises on a particular day.  Where a search warrant is issued to an eligible person, he or she may enter and search the premises and persons at the premises for relevant things, and may seize relevant things found.  The executing officer or person assisting may also use equipment, including electronic equipment to examine or process things to determine whether it contains, or constitutes a relevant thing.

 

 Item 12: Subsection 4(1)

 

This item inserts the definition of warrant premises .  The Bill amends the search warrant provisions to align the legislation with the Crimes Act and ‘warrant premises’ is the term referred to when describing the premises subject to a valid warrant.

 

Item 13: Subsection 4A(6) (at the end of the definition of intelligence operation )

 

Item 13 clarifies that an ACC ‘operation’ may also include an ACC ‘investigation’.  The ACC conducts both operations and investigations - an ‘investigation’ being an investigation into a particular person, whilst an ‘operation’ is usually a broad investigation into a type, or range of crimes.  This recognises that an operation that involves looking into crime generally, may also include an investigation into a particular individual for a particular offence.  If the Board of the ACC approve a ‘special investigation’ or a ‘special operation’, this clarifies that an approved ‘special operation’ may also include an investigation that is part of the ‘special operation’.  However, the particular investigation must satisfy the requirement that it involves a particular person and a particular offence and it does not acquire the status of a ‘special investigation’ by virtue of the fact that it relates to a ‘special operation’.  The rational behind the distinction between a ‘special operation’ and a ‘special investigation’ is due to the fact that the ACC has access to more extensive coercive powers in an investigation.

Work undertaken as part of an intelligence operation, that becomes an investigation of a particular offence, may also be deemed an investigation for the purpose of other legislation conferring investigative powers, such as the Telecommunications (Interception) and Listening Device Amendment Act 1997 .

However, in circumstances where the ACC apply for a telephone interception warrant, this will not enable the ACC to seek the warrant simply because it is investigating a matter, as it can in the circumstances of conducting a ‘special investigation’.  This will not hinder the effective operation of the ACC as a law enforcement agency (including the ACC) may obtain a telephone interception warrant for most serious and organised crime, provided the maximum penalty is at least seven years imprisonment for the suspected offence.

 

This essentially is an avoidance of doubt provision and is not intended to expand the current powers of the ACC in any way.  The amendment is simply to clarify that in practice, aspects of an operation may also include an investigation however, it is not intended that such an investigation amounts to a special operation or special investigation. 

 

Item 14: After section 21

 

This item creates a new Division to provide new search warrant provisions aligning the legislation with the relevant sections of the Crimes Act.  The amendments provide sufficient safeguards in adopting provisions akin to the Crimes Act including the requirement that an ‘eligible person’ must be a member of a police force, and must satisfy an ‘issuing officer’ that there are reasonable grounds for believing that the relating to the warrant will be on the premises, and will be destroyed or lost if it is not seized.

 

 Item 15: Paragraph 22(1)(a)

 

This item simplifies the existing paragraph by including the new terms which are defined in various s of this Bill.  For example, vessels, aircrafts and vehicles are captured in the definition of ‘conveyance’ pursuant to item 2, and item 9 defines ‘premises’ to include a conveyance.  Accordingly, the paragraph is repealed and only the term ‘premises’ is used in lieu of each individual.  This assists in aligning the search warrant provisions of the ACC Act with the search warrant provisions of the Crimes Act.

 

 16: Subsection 22(2)

 

The Bill aims to bring the search warrant provisions into line with the provisions of the Crimes Act.  It is Commonwealth criminal law policy to align all search warrant schemes with Part IAA of the Crimes Act.  Item 16 is loosely based on section 3F of the Crimes Act, and outlines the powers that an issuing officer may authorise in a search warrant.  This provides an additional power to an executing officer or person assisting, to search persons at premises during the execution of a search warrant, providing an opportunity for the ACC to remove weapons and evidence from persons present during a search. 

 

Item 17: Paragraph 22(5)(a)

 

Item 17 makes an amendment incidental to the amendment made by item 11 which provides that the term ‘relevant thing’ will be used to refer to s that are relevant to a special ACC operation or investigation. The amendment simply provides that a warrant shall include a statement outlining the purpose of the warrant, including a reference to the special ACC operation or investigation to which the relevant thing is connected.

 

Item 18: At the end of paragraphs 22(5)(a) and (b)

 

This item is a technical amendment to clarify that in relation to the information to be shown on a warrant, all conditions listed in the subsection must be met, not one or more.  These conditions are similar to the conditions set out in subsection 3E(5) of the Crimes Act.

 

Item 19: At the end of subsection 22(5)

 

This item is incidental to the amendment made by item 4.   Item 4 provides that an ‘executing officer’ is permitted to insert, or authorise another person to insert, another officer’s name on the warrant for which he or she is responsible for executing.  This simply clarifies that where the name of the executing officer has been replaced, it must be stated on the warrant.

 

 

 

Item 20: Subsection 22(6)

 

This item repeals the existing provision and provides a simplified version of the same provision, replacing the term ‘relevant day’ with ‘particular day’.  The term ‘relevant day’ was defined in paragraph 22(1)(a) of the ACC Act, which is repealed by item 15 of the Bill.

 

 Item 21: Subsection 22(6A)

 

This item repeals the provision of the ACC Act that permitted the person executing a warrant to use the reasonable force necessary for the execution of the warrant. Item  26 creates a new provision (proposed section 23A) which is modelled on the Crimes Act and provides that only a constable may use the reasonable force necessary to execute the warrant.  See item 1 for the rational behind this policy.

 

Item 22: Subsection 22(7)

 

This item makes incidental amendments to replace references in the subsection with the terms that have been introduced and defined by items 12 and 4 respectively.  This also provides for circumstances where there may be a person assisting an executing officer.

 

Item 23: Paragraph 22(8)(b)

 

This item is a technical amendment to correct a drafting error made in the ACC Act.  This recognises that the ACC may disseminate information to a law enforcement agency in accordance with subsections 12(1) and 12(1A) of the ACC Act and therefore may not be able to return evidence which has been seized.  In particular, this recognises that the ACC may provide evidence to persons other than a law enforcement agency for the purpose of prosecuting an offence or conducting confiscation proceedings.

 

Item 24: Subsections 22(11) and (13)

 

This item removes the subsections of the ACC Act which define the terms ‘thing’ and ‘thing connected with a special ACC operation/investigation’. These definitions will no longer be required as item 11 defines the term ‘relevant thing’ and the Bill amends the ACC Act to remove all references to the terms ‘thing’ and ‘thing connected with a special ACC operation/investigation’ and replaces each occurrence with term ‘relevant thing’.

 

Item 25: After section 22

 

It is desirable for all Commonwealth search warrant schemes to follow the model set out in Part IAA of the Crimes Act.  This creates a section mirroring section 3E of the Crimes Act to authorise a NSW or ACT issuing officer to issue a search warrant to the ACC relating to premises in the Jervis Bay Territory.  This also includes provisions consistent with the Crimes Act that provide limitations on the powers of an issuing officer in the Jervis Bay Territory. 

 

Item 26: After section 23

 

This item adds a number of new provisions which align the ACC’s search warrant scheme with the Crimes Act model.



Proposed section 23A creates a section mirroring section 3G of the Crimes Act to allow an executing officer to obtain assistance when executing a search warrant.  An executing officer, or a person assisting the executing officer who is a constable, is authorised under this section to use such force as is reasonable and necessary against persons and things to execute a search warrant.  However, a person assisting the executing officer who is not a constable, may use such force as is reasonable and necessary against things only.  Whilst executing a search warrant, executing officers may be exposed to danger, and it is essential that those officers are capable and authorised to respond in these situations.  This provision also provides a safeguard by ensuring that persons authorised to use reasonable force on a person if necessary, are constables who are trained to do so in an appropriate manner.

 

Proposed section 23B creates a section mirroring section 3H of the Crimes Act and requires an executing officer to show a copy of the warrant to a person who is present at the premises during a search.  The rationale behind this provision is that a person is generally entitled to see evidence that a search of their premises is lawful.  The provision also expressly states that a ‘copy’ of the warrant may be provided to the person, i.e. a warrant can be lawfully executed whilst the executing officer holds a photocopy or faxed copy of the original.  This will facilitate the execution of search warrants at numerous premises in several jurisdictions simultaneously. 

 

Proposed section 23C creates a section mirroring section 3T of the Crimes Act and provides additional powers that are consistent with Commonwealth criminal law policy, such as authorising an executing officer to take photographs or video recordings of the premises, or things at the premises, for purposes incidental to the execution of the warrant.  Further, an executing officer and any persons assisting, may temporarily cease executing the warrant for no longer than one hour unless the occupier consents to a longer period in writing, and resume the search, provided the warrant is still in force.  This provision also allows the search to be resumed (if the warrant is still in force), where the warrant is invalidated by an order of a court, and that order is either revoked or overturned on appeal.

 

Proposed section 23D creates a section mirroring section 3K of the Crimes Act and provides an additional power that is consistent with Commonwealth criminal law policy allowing an executing officer to have any equipment reasonably necessary to examine or process s at the warrant premises.  The provision also allows a item to be moved from the search premises, and taken to another place for examination or processing, without the occupier’s consent, if it is significantly more practicable than processing the on the premises, and there are reasonable grounds to believe that the item contains, or constitutes evidential material.  In determining whether it is significantly more practicable to process or examine the item at another place, the executing officer or person assisting must consider the timeliness and cost of processing or examining the at another place rather than at the premises, and the availability of expert assistance.  In other words, the provision permits the ACC to take an item to another place where it is significantly faster, or less costly to process or examine the item, or easier to obtain expert assistance.  For example, in cases involving a large amount of data, the most effective way of searching the data may be to develop a program to search the data.  This may require technical computing skills and may not be possible or practicable to do at the search premises and moving the equipment off-site allows the data to be accessed and searched by an expert properly equipped with external search equipment. 

 

The provision also provides that if a thing is moved to another place for examination and/or processing, the thing may only be moved to the other place for up to 72 hours.  The executing officer may apply to an issuing officer for an extension of the 72 hour time period if he or she has reason to believe that the  cannot be examined or processed within a 72 hour timeframe.  Further, in these circumstances, the executing officer must give notice of the application to extend the time to the occupier of the premises, and the occupier is entitled to be heard by the issuing officer concerning the application. 

 

Proposed section 23E creates a section mirroring section 3L of the Crimes Act and provides additional powers that are consistent with Commonwealth criminal law policy allowing an executing officer to operate electronic equipment where he or she has reason to believe that the equipment may contain material relevant to the ACC investigation or operation.  This provision recognises that a vast amount of evidence may be stored using electronic media rather than physical media, such as documents.  For example, this provision will authorise the ACC to access information stored on a hard drive by using a computer on the premises, and copy data that is relevant to an investigation or operation to a device or take the electronic equipment away from the premises where the occupier consents to such in writing. 

 

The provision also authorises an executing officer to seize equipment where it is not practicable to copy or put the data into documentary form, or if possession of the equipment constitutes an offence.  The provision also includes a safeguard by providing that the CEO of the ACC must arrange to remove the data and destruct any reproduction upon satisfaction that the data is no longer required. 

 

If an executing officer believes that an expert is required to operate the equipment and that the data may be destroyed or altered, then the equipment may be secured.  In these circumstances, the executing officer must give the occupier notice of the intention to secure the equipment.  The provision provides a safeguard by enabling the equipment to be secured only until it can be operated by an expert, or for a maximum of 24 hours, whichever occurs first.  The executing officer may apply to an issuing officer for an extension of the 24 hour time period if he or she has reason to believe that the equipment cannot be examined or processed within a 24 hour timeframe.  Further, in these circumstances, the executing officer must give notice of the application to extend the time to the occupier of the premises, and the occupier is entitled to be heard by the issuing officer concerning the application. 

 

Proposed section 23F creates a section mirroring section 3LA of the Crimes Act providing an additional power that is consistent with Commonwealth criminal law policy allowing an executing officer to apply for an order requiring a specified person to provide information or assistance to allow the ACC to access, copy and/or convert data into documentary form.  The use of computers is widespread and it is increasingly common for information to be stored on computer hard drives or other storage devices.  Searching computers and related storage devices may be difficult and technical problems may be created where the owner has taken steps to build in security measures such as encryption, multi-levels of password protection or programmes designed to delete or alter data.  In addition, searching the large amount of information stored on computer hard drives and computer disks for relevant material can be a time consuming process and this provision enables an issuing officer to grant an order requiring a specified person to provide any reasonable and necessary information to allow access to the data, copy the data to a storage device or convert the data to documentary form.  An issuing officer may grant such an order where he or she is satisfied that there are reasonable grounds to suspect a computer on the premises contains things relevant to an ACC operation or investigation; that the specified person is reasonably suspected of the offence stated in the warrant, is the owner or lessee of the computer or computer system, or a current employee, contractor or consultant engaged by the owner or lessee of the computer; and that the specified person has knowledge of the functioning of the computer or a computer network to which the computer forms part, or the system or measures applied to protect the data held, or accessible from the computer system.  The maximum penalty for non-compliance with these orders is 6 months imprisonment, which is in line with penalties in other Commonwealth legislation (for example, Companies Act 1981 , subsection 14(5); Futures Industry Act 1986 , subsection 15(5); and Australian Securities and Investments Commission Act 1989 , subsection 65(2)). 

 

Proposed section 23G creates a section mirroring section 3LB of the Crimes Act and clarifies that operating electronic equipment on warrant premises to find relevant material also includes relevant material physically located away from the warrant premises.  An executing officer or person assisting is able to use a computer on the warrant premises to access data held on equipment situated elsewhere if he or she has reason to believe that data held on other equipment may contain relevant material included in the warrant.  Many computers are networked and it may be the case that files physically held on one computer are accessible from another computer, often extending the network across various locations.  Accordingly, it is critical that the ACC is able to search material stored on equipment located at the warrant premises and also material accessible from that equipment that may be located elsewhere.  The provision provides a safeguard requiring an executing officer to notify occupiers of other premises storing the data accessed from the warrant premises where practicable.  However, it is important to note that it will not always be practicable to notify the third parties given that it may not be apparent whether the data is held on the warrant premises or offsite.  For example, files accessible from a personal computer that is connected to a network may be stored on a mainframe computer located elsewhere, without any indication of such.

 

Proposed section 23H creates a section mirroring section 3M of the Crimes Act providing a safeguard in response to the additional power allowing an executing officer to use electronic equipment pursuant to section 23E.  This provision provides that the owner of the equipment is entitled to compensation where the equipment, data or programmes are damaged due to insufficient care on behalf of the person operating the equipment, or in selecting a person to operate the equipment.

 

Proposed section 23J creates a section mirroring section 3N of the Crimes Act providing a safeguard to ensure that an executing officer or person assisting must provide a copy of the thing, or information, to be seized if practicable to be readily copied, to the occupier, or a person representing the occupier, present at the time of the search if requested.  However, if the seized can be copied and the executing officer seizes the copies, or if possession of the item constitutes an offence, the executing officer will not be required to provide copies of the s seized.

 

Proposed section 23K creates a section mirroring section 3P of the Crimes Act and provides that an occupier, or a person who apparently represents the occupier, who is at the warrant premises, is entitled to observe the search, subject to Part IC of the Crimes Act concerning the investigation of Commonwealth offences.  However, the provision specifies that a person’s right to observe the search ceases if he or she impedes the search in any way.  Further, the right to observe the search does not prevent more than one area of the premises from being searched at the same time. 

 

Proposed section 23L creates a section mirroring section 3Q of the Crimes Act and provides that a receipt must be provided to the occupier for s seized or moved for the purposes of determining whether the  is relevant to an ACC operation or investigation.  The provision also clarifies that where two or more s are seized or moved, they may be covered in the one receipt, allowing an efficient administrative practice.

 

Proposed section 23M creates a section mirroring section 3ZS of the Crimes Act requiring an executing officer or person assisting to announce that he or she is authorised to enter the premises.  This will allow the person at the premises to permit their entry.  However, the provision clarifies that in circumstances where there is reason to believe that immediate entry to the premises is required to ensure the safety of a person, or the effective execution or the warrant, the executing officer or person assisting will not be required to make the announcement.

 

Proposed section 23N clarifies that where electronic equipment has been seized under a section 22 search warrant (and the warrant has since expired), the electronic equipment can be operated to access data, including data not held on the equipment at the time of seizure.  Access is for the purpose of determining whether there are any relevant things held on, or accessible from the equipment.

 

A few examples may assist in identifying the circumstances that this amendment is intended to address.  Currently when a mobile phone is seized, and is taken off-site, voicemail is not to be accessed without executing a stored communications warrant on the carrier under the Telecommunications (Interception and Access) Act 1979

 

Unlike Short Message Service (SMS) messages which are stored on the memory contained within the handset, voicemail messages for mobile phones are stored on computer servers held with the telecommunications company.  The data is not actually stored on the mobile telephone handset and remains on the computer server with the telecommunications company until it is erased either automatically or at a command from the mobile telephone handset.  This means that while an executing officer is at the warrant premises, he or she may operate a mobile phone that they find at the premises to access any voicemail messages that are held by a telecommunications carrier under section proposed 23E.  This proposed section will also clarify that the ACC may access voicemail messages from the seized mobile phone after they have left the premises and the warrant has expired.  The same situation applies to electronic equipment such as computers.  

 

The amendments also make it clear that when an executing officer or person assisting seizes electronic equipment and subsequent data comes in to that phone, it is also accessible (for example, when a telephone handset is seized and subsequent voicemail messages come in).

 

Item 27: At the end of subsection 25A(2)

 

This makes an amendment which is incidental to the amendment made by item 31. Item  27 adds a note to the section clarifying that a person may be represented by a legal practitioner, subject to section 25A (introduced by item 31) which provides the circumstances in which a particular legal practitioner may be excluded. 

 

 Item 28: Subsection 25A(10)

 

An examiner may issue a direction providing that evidence given to an examiner must not be published or may only be published in a certain manner, where the examiner believes that a failure to issue such a direction may prejudice the safety or reputation of a person, or prejudice the fair trial of a person who has been, or may be, charged with an offence (pursuant to subsection 25A(9) of the ACC Act). 

 

Allowing only the CEO of the ACC to vary an examiner’s non-publication direction is appropriate in circumstances where an examination has concluded and the records have been given to the head of the examination in accordance with section 25A(15) of the ACC Act.  However, difficulty arises where an examiner is still involved in a matter, such as in a series of examinations, and he or she wishes to vary or revoke an earlier direction.  It is logical and convenient for an examiner to vary his or her own direction in these cases. 

 

This allows an examiner, in addition to the CEO, to vary a direction limiting the publication of any evidence, the contents of any documents, the description of any things, any information that may lead to the identification of a witness, or the fact that any person has, or will provide evidence at an examination.   

 

The rationale behind this amendment is that examiners are responsible for imposing directions limiting the publication of evidence and during the conduct of an examination, the examiner is in the unique position to recognise whether a direction should be varied.  Further, this supports the concept that examiners are independent statutory officers and authorised to exercise control over the matters currently before them.

 

 Item 29: Subsection 25A(10)

 

Further to item 30, to avoid doubt, item 32 clarifies that where a direction limiting the publication of evidence has been varied, it will be referred to as simply the ‘direction’ as opposed to ‘the direction issued under subsection 25A(9)’.  Essentially, this allows a direction to be varied more than once.

 

 Item 30: Subsection 25A(11)

 

Item 30 provides that further to items 28 and 29 authorising examiners to vary or revoke a direction limiting the publication of evidence, examiners will also have the responsibility not to vary or revoke a direction limiting the publication of evidence if he or she believes that varying or revoking a direction may prejudice the safety or reputation of a person, or prejudice the fair trial of a person who has been, or may be, charged with an offence. 

 

Item 31: After section 25A

 

Subsection 25A(2) of the ACC Act provides that persons giving evidence (and in special circumstances, persons not giving evidence) may be represented by a legal practitioner.

 

Item 31 creates a new section which allows an examiner to exclude a particular legal practitioner from particular proceedings where he or she has reason to believe that allowing the particular legal practitioner to appear at the examination may prejudice the effectiveness of the special ACC investigation or operation.  This will allow examiners to exclude a legal practitioner who may, knowingly or unknowingly, have a conflict of interest if he or she continues to appear on behalf of a witness.  For example, where the legal practitioner represents more than one person in the examination, or where the legal practitioner is unknowingly under investigation themselves.

 

Although administrative decisions of an examiner may be reviewed by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act), decisions under this section will be exempt from the requirement to provide reasons by virtue of Schedule 2 of the ADJR Act in circumstances where providing reasons may prejudice either the safety or reputation of a person, the fair trial of a person who has, or may be charged with an offence, or the effectiveness of an ACC operation or investigation.

 

Subsection (2) of item 31 provides that in circumstances where an examiner has excluded a legal practitioner from representing a witness, he or she may adjourn the examination for a reasonable period to allow alternative legal representation to be sought.  However, it is within the examiner’s discretion to adjourn the examination to prevent the safeguard from being used by witnesses as a delaying tactic.  For example, it is not necessary for an examiner to adjourn the examination in circumstances where the witness has been given prior, written notice that the legal practitioner will be excluded from the examination allowing the witness sufficient time to engage alternative representation.

 

 Item 32: Subsection 28(1)

 

An examiner has the power to summons witnesses and issue a notice to produce information in relation to documents or things that already exist, such as a statement of profits and losses. Item 32 amends section 28 of the ACC Act (the examiner’s power to summons witnesses and obtain evidence) allowing an examiner to issue a notice to a person requiring certain information in the form of a written statement.  In effect, this amendment authorises an examiner to require a witness to compile relevant information into a written statement (and possibly verify the information by oath or affirmation) relating to a matter that constitutes, or may constitute, an offence that the ACC is investigating, within the time and manner specified in the notice.  The written statement can be created for the purpose of addressing issues raised by the ACC, rather than relying on documents that are already in existence.  This will enable the ACC to obtain a complete, compiled picture of the relevant issues rather than piecing together a range of information.  The ACC will receive information in an orderly, more complete form rather than considering a series of documents.  This amendment will be particularly useful where the ACC requires an overview from a corporation or Government organisation, and can direct evidence to be obtained by the tender of a written statement, as opposed to collating numerous statements from numerous individuals throughout the course of an examination.  Previously, the ACC could only obtain this kind of compiled information by summoning witnesses to appear at an examination and answer questions.  Further, this will allow the ACC to refine its questions and identify witnesses that will be required to attend an examination.  This will effectively shorten the duration of examinations, which is beneficial to both witnesses and the ACC. 

 

A written statement produced pursuant to item 32 is subject to the same rules that govern answers and documents that are provided to an examiner at an examination.  That is to say, where a person is directed to produce a document under a notice to produce, or answer a question during an examination, the information must be provided, even though it may be self-incriminatory.  However, if the person claims the privilege against self-incrimination in relation to a document or answer, the document or answer may not be used as evidence in criminal proceedings or proceedings for the imposition of a penalty, except for confiscation proceedings or proceedings in respect of a false or misleading answer (subsection 30(5) of the ACC Act).  Similarly, a person will be required to produce a written statement that may be self-incriminatory however, if he or she claims the privilege against self-incrimination, the contents of the written statement may not be used against the person as evidence in criminal proceedings or proceedings for the imposition of a penalty, other than confiscation proceedings, or proceedings in respect of the falsity of any statement contained in the document. Items 40 and 41 provide that a truthful statement that is subject to a claim of privilege may be used as evidence of another statement’s falsity in proceedings for making a false or misleading statement.  This is also applicable to written statements that are subject to a claim of the privilege against self-incrimination.

 

Before an examiner directs a written statement to be produced, he or she must be satisfied on reasonable grounds that the witness is reasonably capable of providing relevant information.  The information will not be required where legal professional privilege applies.

 

The power to require a written statement is broader than existing powers under tax and consumer protection legislation in that the information required may relate to any issue, as opposed to existing precedents which limit the information required to only be in relation to offences against the Acts, such as paragraph 264(1)(a) and sections 264BB and 264CA of the Income Tax Assessment Act 1936 , section 41 of the Australian Securities and Investments Commission Act 2001 , and paragraph 155(1)(a) of the Trade Practices Act 1974 .  However, despite the possibility of this amendment imposing a heavy burden on witnesses, the burden is offset by benefits such as possibly not being required to attend an examination, and the likelihood of providing shorter examinations. 

 

 

 Item 33: After subsection 28(1)

 

Item 33 ensures that when a person is directed to provide evidence by tendering a written statement (provided by item 32), the written statement is subject to the same rules that govern answers and documents that are provided to an examiner at an examination.  That is to say, where a person is directed to produce a document under a notice to produce, or answer a question during an examination, the information must be provided, even though it may be self-incriminatory (section 30 of the ACC Act).  However, if the person claims the privilege against self-incrimination in relation to a document or answer, the document or answer may not be used as evidence in criminal proceedings or proceedings for the imposition of a penalty, except for confiscation proceedings or proceedings in respect of a false or misleading answer (subsection 30(5) of the ACC Act).  Similarly, a person will be required to produce a written statement that may be self-incriminatory however, if he or she claims the privilege against self-incrimination, the contents of the written statement may not be used against the person as evidence in criminal proceedings or proceedings for the imposition of a penalty, other than confiscation proceedings, or proceedings in respect of the falsity of any statement contained in the document. Items 40 and 41 provide that a truthful statement that is subject to a claim of privilege may be used as evidence of another statement’s falsity in proceedings for making a false or misleading statement.  This is also applicable to written statements that are subject to a claim of the privilege against self-incrimination.

 

 Item 34: Paragraph 29B(2)(e)

 

Item 34 clarifies that legal practitioners summoned to provide a written statement pursuant to item 32, will not liable for an offence of disclosure if he or she discloses the existence of the summons for the purpose of obtaining consent to provide the information from the relevant person where the information is subject to legal professional privilege.  This exception is currently applicable to a legal practitioner summoned to appear at an examination and provide answers as a witness.  This  provides a technical amendment to paragraph 29B(2)(e) of the ACC Act recognising that a legal practitioner may be required to disclose privileged information outside the context of an examination.  The objective of this amendment is to avoid limiting the provision to cases where the lawyer is called to give oral evidence at an examination.

 

 Item 35: Subsection 29B(4)

 

Subsections 29B(1) and 29B(3) of the ACC Act contains offences for the disclosure of information contrary to a non-disclosure notation issued under section 29A of the ACC Act.  Subsection 29B(2) provides exceptions to the non-disclosure offences in certain circumstances and subsection 29B(4) provides that a person to whom information has been disclosed under subsection 29B(2) may, in certain circumstances, disclose the information to a third party.  This amendment will adequately provide for disclosure to a third party, in particular, binding a third party where information is disclosed to them under a common law right, such as the right for a barrister or acting solicitor to report to an instructing solicitor. 

 

This permits a person who has received information subject to a non-disclosure notation, to disclose information in certain circumstances.  For example, where a legal practitioner seeks a client’s permission to disclose information that is subject to legal professional privilege in accordance with a summons received by the legal practitioner, the client may disclose the existence of the summons despite the non-disclose notation for the purpose of obtaining legal advice in relation to consenting to the disclosure.  Essentially, the amendment provides that it is not an offence for a third party recipient to disclose information subject to a non-disclosure notation in certain circumstances.

 

Item 36: Paragraph 30(3)(a)

 

Item 36 clarifies that legal practitioners summoned to provide a written statement pursuant to item 32, or to produce documents in accordance with a notice to produce, will not be liable for an offence of disclosure if he or she discloses the existence of the summons for the purpose of obtaining consent to provide the information from the relevant person where the information is subject to legal professional privilege. 

 

This exception is currently applicable to a legal practitioner summoned to appear at an examination and provide answers as a witness.  This  provides a technical amendment to paragraph 29B(2)(e) of the ACC Act recognising that a legal practitioner may be required to disclose privileged information outside the context of an examination.  The objective of this amendment is to avoid limiting the provision to cases where the lawyer is called to give oral evidence at an examination.

 

 Item 37: Paragraph 30(4)(a)

 

Item 37 clarifies that witnesses providing evidence by tendering a written statement may claim the privilege against self-incrimination in relation to the contents of the written statement. 

 

This is a technical amendment to paragraph 30(4)(a) of the ACC Act to recognise that a witness may be required to provide self-incriminating information outside the context of an examination.  The objective of the amendment is to avoid limiting the provision to cases where the witness is called to give oral evidence or produce a document or a thing to an examiner, at an examination.

 

A written statement, answer, document or thing produced that is subject to a claim of the privilege against self-incrimination may not be used against the person as evidence in criminal proceedings or proceedings for the imposition of a penalty, other than confiscation proceedings, or proceedings in respect of the falsity of any statement contained in the document.  However, items 40 and 41 provide that a truthful statement that is subject to a claim of privilege may be used as evidence of another statement’s falsity in proceedings for making a false or misleading statement.  This is also applicable to written statements that are subject to a claim of the privilege against self-incrimination.

 

 Item 38: Paragraph 30(4)(c)

 

Paragraph 30(4)(c) of the ACC Act provides that a person must claim the privilege against self-incrimination before answering a question, or producing a document or thing, for immunity to attach under subsection 30(5).  That is, the person must claim the privilege to ensure the answer, document or thing, cannot be used in evidence against them.  However, item 39 authorises examiners to expand the privilege against self-incrimination so that all evidence given in relation to a particular issue is treated as though a claim of the privilege against self-incrimination has been made by the witness.  This amendment provides that where an examiner expands the privilege against self-incrimination to a class of questions or issues, the witness will not be required to make a claim for the immunity before each answer or before providing each document.

 

 Item 39: After subsection 30(4)

 

Paragraph 30(4)(c) of the ACC Act provides that a person must claim the privilege against self-incrimination before answering a question, or producing a document or thing, for immunity to attach under subsection 30(5).  That is, the person must claim the privilege to ensure the answer, document or thing, cannot be used in evidence against them. 

 

In practice, the requirement of a witness claiming protection against self-incrimination before each answer creates a disruption in the interrogation process.  In addition, the process is often confusing for unrepresented witnesses, who regularly need a lengthy explanation of how the process works. 

 

Item 39 allows examiners to expand the privilege against self-incrimination to all evidence given in relation to a question or a class of questions, a document or a class of documents, or a thing or a class of things .  As a result of the examiner’s direction, all evidence given in relation to a question or a class of questions, a document or a class of documents, or a thing or a class of things specified in the direction, will be subject to a claim of privilege in accordance with paragraph 30(4)(c) of the ACC Act and the immunity provision in subsection 30(5) will apply. 

 

This amendment will simplify proceedings for witnesses and reduce the duration of examinations, as the interruption caused by witnesses making a claim of privilege before answering each question or producing each document or thing will be alleviated at the examiner’s discretion. 

 

The provision aligns with the Evidence Act 1995 by requiring the examiner to caution a witness about self-incrimination before beginning questioning and the amendment will reduce the potential prosecution of many witnesses. 

 

Item 40: Subparagraph 30(5)(d)(i)

 

Where a person is required to answer questions during an examination the answer must be provided, even though it may be self-incriminatory.  However, if the person claims the privilege against self-incrimination in relation to the answer, the answer may not be used as evidence in criminal proceedings or proceedings for the imposition of a penalty, except for confiscation proceedings or proceedings in respect of a false or misleading answer (subsection 30(5) of the ACC Act). 

 

Item 40 expands the use of information subject to the privilege against self-incriminating information to provide that a truthful statement which is subject to a claim of privilege may be used as evidence of another statement’s falsity in proceedings for making a false or misleading statement.  This amendment also expands the provision to ensure that a truthful answer subject to the privilege against self-incrimination may also be used as evidence in proceedings to prove the falsity of information provided in a written statement.

 

 Item 41: Subparagraph 30(5)(d)(ii)

 

Where a person is required to produce a document under a notice to produce or tender a written statement, the information must be provided, even though it may be self-incriminatory.  However, if the person claims the privilege against self-incrimination in relation to a document or written statement, the document or written statement may not be used as evidence in criminal proceedings or proceedings for the imposition of a penalty, except for confiscation proceedings or proceedings in respect of a false or misleading answer (subsection 30(5) of the ACC Act). 

 

Item 41 expands the use of information subject to the privilege against self-incriminating information to provide that a truthful document or written statement which is subject to a claim of privilege may be used as evidence of another statement’s falsity in proceedings for making a false or misleading statement.  This amendment also expands the provision to ensure that a truthful document or written statement that is subject to the privilege against self-incrimination may also be used as evidence in proceedings to prove the falsity of information provided in a written statement.

 

Item 42: After subsection 30(5)

 

Item 42 clarifies that a direction given by an examiner in accordance with item 39 expanding the privilege against self-incrimination to all evidence given in relation to a question or a class of questions, a document or a class of documents, or a thing or a class of things, will not prevent a prosecution for the offence of providing false or misleading evidence item 44, or obstructing or hindering the ACC or an examiner under section 35 of the ACC Act.

 

The amendment expands the use that can be made of self-incrimination information to address the scenario where a witness gives answers that may not be demonstrably false but are a series of evasive replies such as ‘I don’t recall’, ‘I don’t know’or ‘I might have’ designed to obstruct and delay the investigation. 

 

Item 43: Subsection 31(2)

 

This item makes an incidental amendment to replace the words ‘aircraft, vehicle or vessel’ with the term ‘conveyance’ which is introduced and defined by item 2 to include these objects.

 

Item 44: Subsection 33(1)

 

Item 44 is a technical amendment to subsection 33(1) of the ACC Act to recognise that a written statement which is subject to a claim of the privilege against self-incrimination, may not be used against the person as evidence in criminal proceedings or proceedings for the imposition of a penalty, other than confiscation proceedings, or proceedings in respect of the falsity of any statement contained in the document, pursuant to paragraphs 30(5)(c) and (d) of the ACC Act.

 

The objective of the amendment is to avoid limiting the offence of giving false or misleading evidence to cases where the witness is called to give oral evidence or produce a document or a thing to an examiner, at an examination. 

 

Item 45: After subsection 33(1)

 

Section 33 of the ACC Act contains an offence of giving information that is false or misleading in a ‘material particular’ at an examination, which is punishable by five years imprisonment or a penalty of 200 penalty units (less if heard by a court of summary jurisdiction).  It is difficult to enforce the provision as it is often difficult to identify whether something is a ‘material particular’.  During an investigation, the ACC can demonstrate that information relates to a material particular by reference to the elements of the particular offence being investigated.  However, when conducting an operation, the ACC is unlikely to be investigating a specific offence and as a result, has difficulty identifying a ‘material particular’.

 

Item 45 modifies the offence by reversing the burden of proof.  That is to say that the defendant will bear the evidential burden of proof in proceedings for an offence of giving information that is false or misleading in a ‘material particular’ at an examination.  The defendant bears the burden of adducing or pointing to evidence that suggests a reasonable possibility that the information was not false or misleading in a material particular, rather than the prosecution having to prove beyond a reasonable doubt that the information was false or misleading in a material particular. 

 

Item 46: Subsection 55A(14) ( at the end of the definition of intelligence operation)

 

Item 46 clarifies that an ACC ‘operation’ may also include an ACC ‘investigation’.  The ACC conducts both operations and investigations - an ‘investigation’ being an investigation into a particular person, whilst an ‘operation’ is usually a broad investigation into a type, or range of crimes.  This amendment recognises that an operation that involves looking into crime generally, may also include an investigation into a particular individual for a particular offence.  If the Board of the ACC approve a ‘special investigation’ or a ‘special operation’, this clarifies that an approved ‘special operation’ may also include an investigation that is part of the ‘special operation’.  However, the particular investigation must satisfy the requirement that it involves a particular person and a particular offence and it does not acquire the status of a ‘special investigation’ by virtue of the fact that it relates to a ‘special operation’.  The rational behind the distinction between a ‘special operation’ and a ‘special investigation’ is due to the fact that the ACC has access to more extensive coercive powers in an investigation.

Work undertaken as part of an intelligence operation, that becomes an investigation of a particular offence, may also be deemed an investigation for the purpose of other legislation conferring investigative powers, such as the Telecommunications (Interception) and Listening Device Amendment Act 1997 .

However, in circumstances where the ACC apply for a telephone interception warrant, this will not enable the ACC to seek the warrant simply because it is investigating a matter, as it can in the circumstances of conducting a ‘special investigation’.  This will not hinder the effective operation of the ACC as a law enforcement agency (including the ACC) may obtain a telephone interception warrant for most serious and organised crime, provided the maximum penalty is at least seven years imprisonment for the suspected offence.

 

This essentially is an avoidance of doubt provision and is not intended to expand the current powers of the ACC in any way.  The amendment is simply to clarify that in practice, aspects of an operation may also include an investigation however, it is not intended that such an investigation amounts to a special operation or special investigation. 

 

Schedule 4 - Amendments to the Witness Protection Act 1994

 

This Bill amends the Witness Protection Act 1994 (the Act) by implementing a number the legislative amendments suggested by the Australian Federal Police (AFP) following the Review of the National Witness Protection Program Report of December 2003.  The Act is the basis for the National Witness Protection Program (NWPP), which provides protection and assistance to witnesses involved in legal proceedings - eg where the witness has given evidence in a serious, or high-profile, criminal trial and, as a result, their life or the lives of their family are potentially placed at risk.

 

The amendments provide greater protection and security to the witnesses or other people who have been included in NWPP (participants), members of the AFP who serve in the Witness Protection Unit (WitPro) and other AFP employees who are involved in the operation of the NWPP.  The amendments also clarify the operation of the Act in relation to current and former participants, their families and other relevant persons who require new identities, protection or other assistance under the NWPP.

 

Item 1 Section 3

 

current NWPP identity  means an identity that a participant in the NWPP was provided under the NWPP and that the participant is actually using at that time.  For example, if a person entered the NWPP with the identity of ‘Mr X’ and was given a new identity of ‘Mr Y’ under the NWPP, his current NWPP identity would be ‘Mr Y’.  If ‘Mr Y’ was subsequently required to adopt a further new identity of  ‘Mr Z’, this would become his current NWPP identity.  This definition is necessary because the Bill differentiates between the protection that is required for a participant’s former NWPP identity or identities, original identity and current NWPP identity.

 

 

 

Item 2: Section 3

 

Former NWPP identity means an identity that was provided to a participant in the NWPP but is not the participant’s current NWPP identity.  For example, if     ‘Mr X’ was given the new identity of ‘Mr Y’ and then required to adopt the further new identity of ‘Mr Z’, his former NWPP identity is ‘Mr Y’.  This definition ensures that prior identities assumed by the participant under the NWPP, not just the participant’s current NWPP identity, will be protected under the Act.

 

Item 3: Section 3

 

Former participant  refers to a person who was previously included in the NWPP but has ceased to be included.  This definition has been added because the proposed section 3 definition of ‘participant’ now includes former participants in the NWPP unless specified otherwise.

 

Item 4: Section 3

 

Information  is defined to include information about a person’s appearance, voice quality or accent, mannerisms, address or location, particular skills and qualifications or personal history.  This definition clarifies but does not limit what is meant by information that relates to the identity of a participant.

 

Item 5: Section 3

 

Original identity refers to the identity of a person at the time when they were first included in the NWPP.  Therefore, if a person has lawfully changed their name since birth (for example, due to marriage, divorce or via a legal name change), their original identity will refer to their latest identity before inclusion in the NWPP.  For example, if a person is born ‘Ms Y’, and changed her name to ‘Mrs X’ after marriage, and then applied for entry into the NWPP, her original identity would be ‘Mrs X’.

 

Item 6: Section 3 (definition of participant )

 

Participant means a person who is included in the NWPP, including former participants in the NWPP unless specified otherwise.  This definition has been amended to reflect the fact that there are times where protection and assistance need to be provided to former participants, not just current participants.

 

Item 7: Section 3

 

State offence that has a federal aspect is defined in new section 3B.  Item 10 inserts a cross-reference to the new section 3B.

 

Item 8: Section 3

 

State participant is defined to mean a participant who has been included because of an offence against a State law that has a federal aspect, or a participant who has been included because of an offence against a State law that has no federal aspect.  It also includes participants who are part of the NWPP because of their involvement in a commission or inquiry under State law.  This definition is required due to the extension of the application of NWPP to State participants, in recognition of the fact that there are circumstances in which a State witness may be included in the NWPP. 

 

Item 9: Section 3

 

Territory participant is defined to mean a participant who has been included because of an offence against a Territory law, or because of their involvement in a commission or inquiry under a Territory law.  This definition is required due to the extension of the NWPP to Territory Participants in recognition of the fact that there are circumstances in which a Territory witness may be included in the NWPP.

 

Item 10: Section 3 (paragraph (e) of the definition of witness)

 

Witness has been amended at paragraph (e) to clarify that the second reference to ‘person’ is a reference to a person mentioned in the preceding paragraphs (a), (b), (c) and (d) This amendment is required to remove ambiguity about who is intended to fall within the scope of paragraph (e).

 

Item 11: after Section 3A

 

3B - State offence that has a federal aspect

 

 Item 11 inserts a new section 3B to specify which offences against a law of a State are taken to be State offences with a federal aspect for the purposes of the Act.  The proposed section defines State offences with a federal aspect by reference to cases where an offence would be taken to be a State offence with a federal aspect under the Australian Federal Police Act 1979 or the Australian Crime Commission Act 2002 .  This definition is necessary because the Bill specifically extends the Act to cover State Participants, and it defines ‘State participants’ as including participants who have been included in the NWPP because they were involved in State offences with a federal aspect. 

 

Item 12: At the end of section 8

 

Item 12 excludes a ‘former participant’ from the meaning of ‘participant’ for the purposes of section 8.  It is not necessary for section 8 to encompass a ‘former participant’ because the section deals with the initial selection of a witness for inclusion in the NWPP.

 

Item 13: At the end of section 9

 

Item 13 excludes a ‘former participant’ from the meaning of a ‘participant’ for the purposes of section 9.  It is not necessary for section 9 to encompass a ‘former participant’ because a memorandum of understanding is only signed by a participant who is currently included in the NWPP. 

 

However, a former participant could potentially still be under obligations in relation to his or her original memorandum of understanding (which he or she entered when he or she was a current participant).  For this reason, item 13 inserts new subsection 9(9) to clarify that new subsection 9(8) does not affect any continuing obligations that a former participant may have under their original memorandum of understanding.

 

Item 14: Paragraph 11(3)(b)

 

Item 14 clarifies that the register of participants in the NWPP should include details of the participant’s new names for each new identity provided to him or her under the NWPP.

 

Item 15: Paragraph 11(3)(e)

 

As ‘participant’ is now defined to include both current and former participants, item 15 is necessary to clarify that the register of participants should indicate the date on which a current participant leaves the NWPP - ie the date on which  the person becomes a former participant.

 

Item 16: At the end of section 13

 

Item 16 inserts a new subsection 13(5) to extend the Commissioner’s powers to take action to protect witnesses’ safety and welfare to include witnesses who are former participants.  Proposed subsection 13(5) also allows the Commissioner to take actions in relation to any other person whose relationship with the former participant is such that the Commissioner is satisfied that it is appropriate to take those actions (a related person) - eg relatives, friends or other associates.  Proposed subsection 13(5) allows the Commissioner to take action that is reasonable and necessary for the protection or assistance of the former participant or the related person after the Commissioner has determined that this individual is suitable to be provided this protection or assistance as a former participant or as a related person.  However, these former participants or related persons do not become current participants in the NWPP simply because they are provided with this assistance or protection.

 

Proposed subsection 13(6) states that where a related person is given assistance or protection under proposed subsection 13(5), the provisions of the Act apply to the related person as if they were a former participant.  This amendment is required so that people who are given assistance or protection under the WP Act as related persons (or as former participants), will be subject to the relevant rights and obligations under the WP as a result of this assistance or protection being afforded them; and also to enable this protection or assistance to effectively be provided to them under the WP Act.  For example, a participant may cease to be included in the NWPP (so becomes a former participant), but retain their new identity provided under the NWPP.  In the future, this person may re-marry and have children with their new spouse.  The former participant’s new spouse and new children (ie related persons) may need to gain identity documents relating to the new NWPP identity (for example, for the purposes of marriage or divorce).

 

Proposed subsection 13(6) is also necessary to ensure that family members of former participants, or other related persons, who are provided with assistance or protection under the WP Act come within the relevant offence provisions in the Act - despite the fact that these people are not actual participants.  For example, if a spouse of a former participant has been given a NWPP identity, and a third party reveals the fact that this spouse has a NWPP identity, this third party can still be liable under the amended offence provision at subsection 22(1) - even though the spouse is not an actual participant. 

 

Item 17: Subparaph 14(b)(ii)

 

 Item 17 replaces the reference to identity in paragraph 14(b)(ii) with a reference to ‘original identity’.  This amendment is required because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.  It is, therefore, necessary to specify that paragraph 14(b)(ii) relates to a participant’s ‘original identity’. 

 

Item 18: Subsection 15(5)

 

Item 18 replaces the references to ‘former identity’ with references to ‘original identity’ and ‘former NWPP identity’.  These amendments are necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 19: Paragraph 16(1)(a)

 

Item 19 replaces the reference to former identity with references to ‘original identity’ and ‘former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 20: Paragraph 16(1)(b)

 

Item 20 replaces the reference to former identity with references to ‘original identity’ and ‘former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 21: Subsection 16(1)

 

Item 21 replaces the reference to former identity with references to ‘original identity’ and ‘former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 22: Subsection 16(2)

 

Item 22 replaces the reference to former identity with references to ‘original identity’ and ‘former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

 

 

Item 23: Paragraph 16(2)

 

Item 23 replaces the reference to new identity with a reference to ‘current NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 24: Paragraph 16(4)



Item 24 replaces the references to former identity with references to ‘original identity’ and ‘former NWPP identity’.  These amendments are necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 25: Subsection  16(6)

 

Item 25 repeals subsection 16(6), which stated that, for the purposes of section 16, a ‘participant’ includes a person who has been given a new identity under the NWPP but is no longer a participant.  Subsection 16(6) is no longer necessary because the new definition of ‘participant’ in section 3 encompasses a former participant.

 

Item 26: Section 17

 

Item 26 replaces the reference to ‘former identity’ with references to ‘original identity’ and ‘former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 27: at the end of Section 18

 

Item 27 inserts new subsection 18(7) to clarify that references to a participant in paragraph 18(1)(b)(i) and paragraph 18(1)(b)(i) do not include former participants.  This amendment is necessary because the proposed changes to the definition of ‘participant’ in section 3 of the Act define participant to include a former participant unless specified otherwise.

 

Item 28: Paragraph 19(1)(b)

 

Item 28 amends paragraph 19(1)(b) to extend the Deputy Commissioner’s power to restore a former participant’s original or former NWPP identity to include current participants whose protection under the NWPP is proposed to be terminated.  This will ensure that a participant’s original or former NWPP identity can be restored prior to protection and assistance under the NWPP being terminated.

 

Item 29: Subsection 19(1)

 

Item 29 replaces the reference to ‘former participant’s former identity’ with a reference to the ‘original identity or any NWPP identity of the participant’.  This amendment is necessary because the proposed new section 3 definition of participant expressly includes former participants. 

 

Item 30: Subsection 19(2)

 

Item 30 removes the reference to ‘former’ in subsection 19(2).  This amendment is necessary because the proposed new section 3 definition of ‘participant’ includes former participants and the reference to ‘former participants’ in subsection 19(2) is therefore redundant.

 

Item 31: Subsection 19(3)

 

Item 31 replaces the reference to ‘former participant’ with a reference to ‘participant’.  This amendment is necessary because the proposed changes to the definition of ‘participant in section 3 of the Act define participant to include former participants.   Item 31 also replaces the reference to ‘former identity’ with a reference to ‘original identity or any former NWPP identity.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 32: Paragraph 19(5)(a)

 

Item 32 replaces the reference to ‘former identity’ with a reference to ‘original identity or any former NWPP identity’.  This amendment is necessary because the proposed changes to the definitions in section 3 of the Act will differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.  Item 32 also replaces the reference to ‘Commonwealth participant’ with a reference to ‘Commonwealth participant, a State participant or a Territory participant’.  This amendment is necessary as the Act previously only referred to ‘Commonwealth participants’, whereas the Bill specifically refers to ‘State participants’ and ‘Territory participants’ in recognition of the fact that there are circumstances in which a State witness or a Territory witness may be included in the NWPP.

 

Item 33: Paragraph 19(5)(b)

 

Item 33 repeals paragraph 19(5)(b) and replaces it with a new subsection, which replaces the references to ‘former participant’ with references to ‘participant’ and the reference to ‘new identity provided under the NWPP’ with ‘current NWPP identity’.  These amendments are necessary because the proposed new definition of ‘participant’ in section 3 includes former participants.  The proposed new definitions in section 3 will also differentiate between a participant’s original identity, current NWPP identity and former NWPP identity.

 

Item 34: Subsection 19(5)

 

Item 34 replaces the reference to ‘former participant’ with a reference to ‘participant’.  This amendment is necessary because the proposed new section 3 definition of ‘participant’ includes former participants.

 

 

 

 

Item 35: Section 21

 

Item 35 inserts a reference to ‘the performance or purported performance of a function conferred or a duty imposed.’  This amendment is necessary to clarify that section 21 not only applies to acts done in the exercise of a power under the Act, but also to acts done in the performance of a function or duty under the Act.

 

Item 36: Subsection 22(1)

 

Item 36 repeals the existing subsection 22(1) and inserts proposed subsections 22(1) and 22(1A). 

 

Proposed subsection 22(1) makes it an offence for a person to disclose information about an individual where the individual is a Commonwealth participant or a Territory participant; the individual has a current NWPP identity; and the information disclosed is about the individual’s original identity, or a former NWPP identity of the individual.  The offence is punishable by a maximum period of 10 years imprisonment.  This provision reflects the possible serious implications of the disclosure of information about a participant’s original identity or a former NWPP identity where a participant has a current NWPP identity.  Any information about the original or former identity could disclose that a person is included in the NWPP, and could endanger the participant.

 

New subsection 22(1A) creates an offence where a person discloses information that may reveal that an individual is a Commonwealth or Territory participant or is undergoing assessment for inclusion as a Commonwealth or Territory participant in the NWPP and that information could compromise the security of the individual.  This provision reflects the fact that disclosure of information about a current identity of a participant is an essential and normal part of using the identity.  For example, it is essential for a person to be able to disclose identifying information about the current identity of a participant in order to introduce them to other people.  For this reason, proposed subsection 22(1A) includes the requirement that the disclosure of the information must compromise the participant’s security or reveal that the individual is a participant in the NWPP.  The offence is punishable by a maximum period of 10 years imprisonment.

 

Item 37: Subsection 22(2)

 

Item 37 deletes the reference to a ‘Commonwealth participant’ and replaces it with ‘Commonwealth participant or a Territory participant’ in subsection 22(2) to reflect the fact that proposed section 22 applies to Commonwealth and Territory participants. 

 

Item 37 also amends subsection 22(2) to include a reference to a person who has undergone, or is undergoing, assessment for inclusion in the NWPP.  This amendment is necessary because a person who has undergone assessment for inclusion in the NWPP, or who is currently undergoing this assessment, but was not (or does not become) a participant could still become aware of sensitive information regarding the operation of the NWPP.  This information, if disclosed, could reveal the identity or location of a participant or could compromise the security of a participant.

 

Item 38: Paragraph 22(2)(a)

 

Item 38 deletes the reference to a person who ‘is or has been a participant’ and replaces it with a reference to a ‘participant’ because the new definition of ‘participant’ in section 3 includes former participants. 

 

Item 38 also inserts a reference to a person who ‘is undergoing’ assessment for inclusion in the NWPP.  This amendment is necessary to reflect the new subsection 22(2), which now applies to persons who are undergoing assessment for inclusion in the NWPP.

 

 Item 39:  Subsection 22(2)(penalty)

 

Item 39 removes the reference to ‘an offence against this subsection’.  This amendment ensures that subsection 22(2) is consistent with modern drafting practice and with the other sections of the Act.

 

Item 40:  at the end of Section 22

 

Item 40 inserts a new subsection 22(3) that clarifies that section 22 applies to the disclosure of information in proceedings of a court, tribunal or Royal Commission or other commission of inquiry. 

 

Item 40 also inserts a new subsection 22(4) that specifies that subsection 22(3) does not affect the operation of subsection 26(3).  This amendment ensures that a person who discloses information in accordance with section 26 does not commit an offence under section 22.

 

Item 41: after Section 22

 

Item 41 creates offences relating to State participants, and to disclosures that compromise security.  New section 22A creates two separate offences in relation to State participants.

 

Proposed subsection 22A(1) creates an offence where a person discloses information about a State participant’s original identity or former NWPP identity where, at the time of the disclosure, the individual has a current NWPP identity.  If the person who discloses the information is not a Commonwealth officer or a Commonwealth, State or Territory participant, the disclosure of the information must also be able to adversely affect the integrity of the NWPP.  The offence is punishable by a maximum period of 10 years imprisonment.

 

New subsection 22A(2) creates an offence where a person discloses information about a State participant or an individual who is undergoing assessment for inclusion as a State participant.  Disclosure of such information is only an offence if the information that is disclosed reveals that the individual is a participant.   

 

If the person disclosing the information is a State participant, the disclosure of the information must also be able to adversely affect the integrity of the NWPP.  What could adversely affect the integrity of the NWPP can include, for example, situations where the disclosure places participants, or officers who administer the NWPP, at risk or danger; or where the disclosure reveals confidential information about the NWPP, which could compromise the effective operation of the NWPP. 

 

The offence at the new subsection 22A(2) is punishable by a maximum period of 10 years imprisonment.

 

Proposed subsection 22A(3) creates an offence for State participants who reveal information about their involvement in the NWPP.  This provision reflects the existing provision in subsection 22(2) creating an offence in relation to disclosure of information by Commonwealth participants.  Under new subsection 22A(3), it is an offence for a State participant or a person who is undergoing or has undergone assessment for inclusion in the NWPP as a State participant to disclose information about:

·          the fact that he or she is a participant or is undergoing/has undergone assessment

·          the way in which the NWPP operates

·          officials who are involved in the NWPP

·          the fact that he/she has signed a memorandum of understanding, or

·          any details of a memorandum of understanding that he or she has signed.

 

Disclosure of information that would otherwise be an offence under subsection 22A(3) is not an offence if the disclosure has been authorised by the Commissioner or the disclosure is made for the purpose of making a complaint or providing information to the Ombudsman.  The offence is punishable by a maximum period of five years imprisonment.

 

New subsection 22A(4) clarifies that the offence applies to the disclosure of information to a court, tribunal, Royal Commission or other commission of inquiry.

 

Item 41 also inserts a new subsection 22A(5) that specifies that subsection 22A(4) does not affect the operation of subsection 26(3).  This amendment ensures that a person who discloses information in accordance with section 26 does not commit an offence under section 22.

 

New subsection 22B creates an offence where a person discloses information that could compromise the security of a Commonwealth, State or Territory participant or a person who is undergoing assessment for inclusion in the NWPP as a participant.  The offence is punishable by a maximum period of 10 years imprisonment.

 

Item 42: Paragraph 26(1)(a)

 

Item 42 replaces the reference in paragraph 26(1)(a) to ‘an approved authority’ with a reference to ‘any other commission of inquiry’.  This amendment ensures that paragraph 26(2)(a) is consistent with other references to commissions of inquiry.  It also removes the potential for any confusion with the defined term ‘approved authority’ in section 3 of the Act.

 

 

 

Item 43: Paragraph 26(1)(b)

 

Item 43 inserts new paragraph 26(1)(c) which specifies that the Commissioner, a Deputy Commissioner, an AFP employee or a special member of the Australian Federal Police is not to be required to divulge or communicate to a court, tribunal, Royal Commission or any other commission of inquiry information that reveals the identity of an AFP employee or special member of the AFP who is involved in the operation of the NWPP, being information that the person has as a result of the performance of functions or duties under the Act.  This provision is required to protect the identities of AFP employees who administer the NWPP or have taken on an assumed identity for the purposes of the NWPP from being disclosed in proceedings before a court, tribunal, Royal Commission or any other commission of inquiry.

 

Item 44: Paragraph 26(2)(a)

 

Item 44 replaces the reference in paragraph 26(2)(a) to ‘an approved authority’ with a reference to ‘any other commission of inquiry’.  This amendment ensures that paragraph 26(2)(a) is consistent with other references to commissions of inquiry.  It also removes the potential for any confusion with the defined term ‘approved authority’ in section 3 of the Act.

 

 Item 45: after paragraph 26(2)(b)

 

Proposed paragraph 26(2)(c) specifies that the Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman are not required to divulge information to a court, tribunal, Royal Commission or another commission of inquiry about the identity of, or information that is such as to reveal the identity of, an AFP employee or special member of the AFP who is involved in the operation of the NWPP, being information that the person has as a result of the performance of functions or duties in relation to the Act.  This provision is required to protect the identities of AFP employees who administer the NWPP or have taken on an assumed identity for the purposes of the NWPP from being disclosed in proceedings before a court, tribunal, Royal Commission or any other commission of inquiry.

 

 Item 46:  Subsection 26(3)

 

Item 46 extends the specified circumstances in which a judge or magistrate can be advised of a Participant’s location and circumstances to include judges and magistrates who are presiding over proceedings under a State or Territory law, not just a Commonwealth law.  This reflects the extension of the application of the NWPP to State and Territory Participants.

 

Item 47: Subsection 26(5)

 

Item 47 removes the reference to a former participant from subsection 26(5).  This amendment is required to reflect the amended definitions under section 3 of the Act.  As the definition of ‘participant’ in section 3 will be amended to include ‘former participants’, the reference to ‘former participants’ in subsection 26(5) is obsolete.

 

 Item 48:  Subsection 26(5)

 

Item 48 removes the reference to a ‘former participant’ from subsection 26(5).  This amendment is required to reflect the amended definitions under section 3 of the Act.  As the definition of ‘participant’ in section 3 will be amended to include ‘former participants’, the reference to former participants in subsection 26(5) is obsolete.

 

 Item 49:  Subsection 27(1)

 

Item 49 repeals existing subsection 27(1) and inserts new subsection 27(1).  New subsection 27(1) requires a participant to notify the Commissioner if he or she is to be a witness in a criminal proceeding under his or her current NWPP identity and he or she has a criminal record under his or her original identity or any former NWPP identity.  The amendment is necessary to reflect the amended definitions under new section 3 of the Act.

 

 Item 50:  Subsection 27(2)

 

Item 50 removes the words ‘or former participant’ from subsection 27(2).  This amendment is required to reflect the amended definitions under section 3 of the Act.  As the definition of ‘participant’ in section 3 will be amended to include ‘former participants’, the reference to former Participants in subsection 27(2) is obsolete.

 

Item 51:  after Section 27

 

Item 51 inserts a new section 27A which imposes requirements where a participant is involved in civil proceedings.  New section 27A states that if a participant is to be involved under his or her new identity in a civil proceeding in which his or her identity is in issue, the participant must notify the Commissioner that the participant is involved in the proceedings.  Once notified, the Commissioner may take any action that he or she considers appropriate in the circumstances. 

 

New subsection 27A(3) defines ‘civil proceeding’ for the purposes of proposed section 27A.  ‘Civil proceeding’ means any proceeding in a court (including a tribunal, Royal Commission or any other commission of inquiry) of the Commonwealth, a State or Territory, other than a criminal proceeding.  The subsection describes civil proceedings to include proceedings on an ex parte application, appeal proceedings, interlocutory proceedings, or any other proceedings prescribed by regulations.

 

Item 51 creates a similar obligation for civil proceedings as that contained in the new provision for criminal proceedings.  However, item 51 only creates an obligation to notify the Commissioner where the participant’s identity is at issue in the civil proceedings. 

 

Item 52:  Section 28

 

Item 52 repeals section 28 and inserts a new section 28.  Proposed section 28 provides a process for protecting a participant’s original identity, current NWWP identity or any former NWPP identity where all or any of these identities are in issue, or where they may be disclosed in proceedings before a court, tribunal, Royal Commission or other commission of inquiry - unless the court, tribunal or commission considers that the interests of justice require otherwise.  In the circumstances where the identity is to be protected, the court, tribunal or commission must:



·          hold the proceedings relating to the original identity, former NWPP identity or current NWPP identity of the participant in private

·          make orders about the suppression of publication of evidence before the court, tribunal or commission as it considers necessary to ensure that the original identity, former NWPP identity or current NWPP identity is not disclosed, and

·          make any orders that are appropriate to ensure that information that compromises the security of a participant or relates to a participant’s original identity, former NWPP identity or current NWPP identity is not made public. 

 

This provides the court or other body with the flexibility to make any orders that are appropriate in the circumstances in order to protect the participant’s identity and ensure his or her security.

 

SCHEDULE 5 - OTHER AMENDMENTS

 

PART 1 - OTHER AMENDMENTS RELATING TO CONTROLLED OPERATIONS

 

Items 1-9 repeal definitions contained in Part I of the Crimes Act: these definitions have been moved across to Part IAB of the Crimes Act.  Item 10 is a consequential amendment that reflects the renumbering of proposed section 15GE.

 

Part 2 - Other Amendments of the Australian Crime Commission Act 2002

 

Items 11 to18 make amendments to the ACC Act to refer to the various police organisations of the States and Territories accurately.  There is a long standing rule of statutory interpretation that uncertainties in legislation that intrude on individual rights will be interpreted strictly against the law enforcement body and these consequential amendments simply remove all doubt by referring to a police ‘service’ and a police ‘force’ throughout the ACC Act to acknowledge the recent change of name adopted by some of the State and Territory police. 

 

Part 3 - Amendments relating to seized electronic equipment

 

Amendments to the Crimes Act 1914

 

Item 19: 3ZVA - Dealing with seized electronic equipment

 

This item clarifies that where a constable has seized electronic equipment under a section 3E search warrant (and the warrant has since expired) or under the arrest provisions in the Crimes Act, the electronic equipment can be operated on to access data, including data not held on the equipment at the time of seizure. Access is for the purpose of determining whether there is any evidentiary material held on or is accessible from the equipment.

 

A few examples may assist in identifying the circumstances that these amendments are meant to address.  Currently when a constable seizes a mobile phone, and takes it off-site, the officer is not able to access voicemail without executing a stored communications warrant on the carrier under the Telecommunications (Interception and Access) Act 1979

 

Unlike Short Message Service (SMS) messages which are stored on the memory contained within the handset, voicemail messages for mobile phones are stored on computer servers held with the telecommunications company.  The data is not actually stored on the mobile telephone handset and remains on the computer server with the telecommunications company until it is erased either automatically or at a command from the mobile telephone handset.  This means that while the police are at the warrant premises, the police can operate a mobile phone that they find at the premises to access any voicemail messages that are held by a telecommunications carrier under section 3L.  However, the Crimes Act does not clearly state whether the police can access voicemail messages from the seized mobile phone after they have left the premises and the warrant has expired.  The same situation applies to electronic equipment such as computers.  These proposed amendments aim to rectify this.

Similarly, AFP officers who arrest an individual and seize a mobile phone using their powers under sections 3ZE-3ZI of the Crimes Act, may use these powers to search the phone for anything held on the phone, such as SMS messages, telephone numbers in the address book, and registers of calls made, received and missed.  However, there is no provision that clearly states whether the AFP can use these powers to access voicemail via the seized handset.  The same situation applies for other electronic equipment such as computers.  These proposed amendments aim to rectify this.

 

The amendments also make it clear that when an officer seizes electronic equipment and subsequent data comes in to that phone, it is also accessible (for example, when officers seize a telephone handset and subsequent voicemail messages come in).

 

Customs Act 1901

 

Item 20: At the end of Part XII

 

Item 20 is similar to item 19.  This  clarifies that where an executing officer has seized electronic equipment under a search warrant (and the warrant has since expired), the executing officer will be able to operate the electronic equipment to access data, including data not held on the equipment at the time of seizure.  The amendments to this section provide consistency across Commonwealth legislation. 

 

Item 20: 227AB Dealing with seized equipment

 

Item 20 is similar to proposed section 3ZVA.   Item 20  authorises a police officer or person acting under the direction of a police officer, to operate the electronic equipment seized under Division 1BA to access data, including data not stored on the equipment at the time of seizure.  The amendments to this section provide consistency across Commonwealth legislation.

 

Mutual Assistance in Criminal Matters Act 1987

 

Item 21: At the end of Division 3 of PartV11A

Item 21 is similar to proposed section 3ZVA.  This provision authorises an executing officer or person acting under the direction of an executing officer, to operate the electronic equipment seized under Part VIIA of the Mutual Assistance Act to access data, including data not stored on the equipment at the time of seizure.  The amendments to this section provide consistency across Commonwealth legislation.

Proceeds of Crime Act 2002

Item 22: After section 253

Item 22 is similar to proposed section 3ZVA.   Section 5X authorises an executing officer or person acting under the direction of an executing officer, to operate the electronic equipment seized under Division 1 to access data, including data not stored on the equipment at the time of seizure.  The amendments to this section provide consistency across Commonwealth legislation.

Schedule 6-Transitional provisions

 

PART 1 - Transitional provisions relating to controlled operations

 

Item 1: Controlled operations authorised before commencement continue under old law

 

Item 1 will ensure that controlled operations authorised under the previous legislation will continue to be valid.  Agencies will have to ensure that they have administrative processes in place to deal with applications made before the commencement of the legislation.  It is important that, as of the date of commencement, all agencies deal with applications under the new legislation.

  

Item 2: Continuation of Division 3 of Part IAB

 

Item 2 ensures that Division 3 of Part IAB of the Crimes Act continues in effect.

 

Part 2-Transitional provisions relating to assumed identities

 

Item 3: Authorisations taken to be authority under new law

 

Part 1AC of the Crimes Act regulated the assumed identity scheme - including the acquisition of evidence of assumed identities by the States and Territories from Commonwealth agencies (section 15XH); and the acquisition of this evidence by the Commonwealth from a State, Territory or Commonwealth agency, or a non-government body (section 15XG).  Part 1AC will be repealed following the enactment of this Bill.

 

However, item 3 indicates that an authorisation granted under section 15XG, immediately before the enactment of this Bill, will continue to have effect as if it was an authorisation granted under proposed section 15HY. 

 

Item 4: Continuation of old law in relation to States without corresponding laws

 

This item indicates that section 15XH will continue to remain in force, despite the repeal of Part 1AC of the Crimes Act, for States and Territories that have not yet adopted the new assumed identity scheme.

 

PART 3 - Regulations relating to transitional matters

 

This Part is a regulation making provision that provides that the Governor-General may make regulations dealing with matters of the transitional nature relating to amendments and repeals made by the Bill.