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Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Bill 2010 [2011]

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2010

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

 

LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES) BILL 2010

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice,

the Honourable Brendan O’Connor MP)



LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES) BILL 2010

GENERAL OUTLINE

The Bill contains amendments of the Criminal Code Act 1995 , the Crimes Act 1914 , the Privacy Act 1988 , the Australian Federal Police Act 1979 , the Director of Public Prosecutions Act 1983 , the Judiciary Act 1903 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 .

The amendments:

·          insert new offences in the Criminal Code directed at dealing in identification information, possessing identification information and possession of equipment to make identification documentation (new Part 9.5)

·          correct a drafting error in subsection 477.1(5) of the Criminal Code

·          repeal section 55D of the Judiciary Act 1903

·          include the Victorian Office of Police Integrity in the definition of ‘enforcement body’ in the Privacy Act 1988

·          allow for the delegation of both powers and functions to certain persons and to provide legal immunity to the Director or a member of staff carrying out functions and duties under the Director of Public Prosecutions Act 1983

·          streamline the processes for alcohol and other drug testing under the Australian Federal Police Act 1979 (AFP Act)

·          expand the range of conduct for which the Australian Federal Police Commissioner may make awards under the AFP Act

·          improve the operation of the  Anti-Money Laundering and Counter-Terrorism Financing Act 2006, and establish a more consistent approach to the restrictions placed on the disclosure of sensitive AUSTRAC information

·          reframe the administration of justice offences in Part III of the Crimes Act 1914 to bring them in line with the Criminal Code.

 

 

PURPOSE

 

The purpose of the Bill is to implement the identity crime offences recommended by the Model Criminal Law Officers’ Committee, which identified deficiencies in current law applicable to identity crime.  The Bill will include in the Code the three offences recommended by MCLOC, and allow for victims of identity crime to obtain a certificate which may assist in re-establishing their credit histories.

 

The Bill also contains a range of other amendments to clarify and improve the operation of justice legislation in the Commonwealth.

 

FINANCIAL IMPACT STATEMENT

 

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



NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides that when the Bill is enacted, it is to be cited as the Law and Justice Legislation Amendment (Identity Crime and Other Measures) Act 2010 .

 

Clause 2: Commencement

 

This clause sets out when the various parts of the Act are to commence.

 

The following parts of the Act will commence on the day on which the Act receives the Royal Assent:

  • Sections 1 to 3 and anything in the Act that is not covered by the table (Item 1 of the table).

 

The following parts of the Act will commence on the day after this Act receives the Royal Assent:

 

  • Schedule 1, Part 1 (Item 2 of the table)
  • Schedules 2 to 7 (Item 4 of the table)

 

Item 3 of the table provides that Part 2 of Schedule 1 will commence on the day after the Act receives the Royal Assent. However, if item 21 of Schedule 2 to the National Security Legislation Amendment Act 2010 commences on or before that day, the provision will not commence at all. This is because both Part 2 of Schedule 1 to this Bill and item 21 of Schedule 2 to the National Security Legislation Amendment Bill propose to insert a definition of ‘de facto partner’ into the Dictionary of the Criminal Code.

 

 

Clause 3: Schedule(s)

 

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

 



 

Schedule 1 - Criminal Code Act 1995

 

Division 370 - preliminary

 

Insertion of definitions

 

This item inserts three definitions, specific to identity crime offences, into new Part 9.5 of the Criminal Code.

 

The term ‘deal’ in identification information was defined to simplify the wording of the offences.  It encapsulates making, supplying or using any identification information.

 

‘Identification documentation’ has been defined in technology neutral terms, and to cover the broadest possible range of documents and things which can be used by a person for the purpose of pretending to be, or passing themselves off as, another person.  It will cover documents, such as drivers’ licences or passports, and ‘things,’ such as credit cards.

 

‘Identification information’ has been defined in technology neutral terms, and to cover the broadest possible range of identification information.  The definition encompasses and extends beyond financial information to include biometric data, voice prints, a body corporate name and ABN, and a series of numbers or letters intended for use as a means of personal identification.

 

Division 372 - identity fraud offences

 

Insertion of an offence of dealing in identification information

This item makes it an offence to make, supply or use identification information with the intention that a person pass themselves off as another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence, punishable by up to five years imprisonment.

 

An example of this type of offence is:  person A uses the identification information of a business, such as its trading name, ABN, address and financial account information to pass themselves off as the business or an authorised agent or employee of the business, with the intention of importing a tier 1 prohibited good, such as an anabolic steroid, under the Customs Act 1901 (the Customs Act).  (See sections 233BAA(4))

 

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·     a person made, supplied or used identification information, and

·     the person intended that they, or any other person, will use that identification information to pretend to be, or pass themselves off as, another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence.

 

The prosecution will not be required to prove that a person knew that the offence they were committing with the identification information is an indictable offence against a law of the Commonwealth.  Absolute liability will apply to paragraph 372.1(1)(c).  The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

 

Absolute liability is appropriate and required for this element of the offence because the circumstance that the further offence being committed is a Commonwealth indictable offence is a jurisdictional element.  A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

The dealing in identification information offence will apply even when it is impossible to commit the Commonwealth indictable offence at the time the offence is to be committed.  In the example above, person A will still have committed the offence of dealing in identification information under 372.1, even if it became or becomes impossible to import the tier 1 prohibited good because, for example, the attempted importation was detected and stopped by the Australian Customs Service.

It would not be a defence that the ‘person’ to whom the information relates consented to the information being made, supplied or used.  Person A could not avoid prosecution by claiming that the business consented to its identification information being used to purchase and import the prohibited goods.

A person would not, however, commit this offence by dealing in their own identification information.  It would not be an identity crime offence if person A used their own identification information to purchase and import a tier 1 prohibited good, but it would be an offence under subsection 233BAA(4) of the Customs Act.  There are, of course, other laws that make it an offence for a person to make their own identification documents, such as the forgery and related offences in Part 7.7 of the Criminal Code. 

This offence is necessary because existing offences in the Criminal Code, such as theft, forgery, fraud and credit card skimming, do not adequately cover the many and emerging types of identity crime.

 

The dealing in identification information offence departs from the MCLOC model in two ways.  Firstly, it requires that a person deal in identification information and intend that he or she, or another person, will pass themselves off as another person for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence.  The MCLOC recommended offence merely required that a person deal in identification information with the intention of committing, or facilitating the commission of, an indictable offence.

It was not clear from the proposed MCLOC offence that a person needed use the identification information to pretend to be another person and commit an identity crime offence.  The requirement in the Commonwealth dealing offence that a person must intend to use the information to pass themselves off as another person makes it clear that the relevant offence is one of identity crime, and not simply using identification information in connection with any indictable offence.

The second difference is that the jurisdictional element in paragraph 372.1(1)(c) will be one of absolute liability.  The MCLOC recommended offence did not require that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to commit, or facilitate the commission of, a Commonwealth indict able offence, it should not be required to prove that a person knew that the offence they were committing with the identification information is an indictable offence against a law of the Commonwealth. 

Insertion of the offence of possessing identification information

This item makes it an offence to possess identification information with the intention of using that information to engage in conduct that constitutes an offence under section 372.1 - dealing in identification information.   This offence will be punishable by up to three years imprisonment.

This offence will require more than mere possession of another’s identification information.  There are many situations in which a person could innocently be in possession of another person’s identification information - for example, looking after a spouse’s, partner’s or friend’s wallet while that person is playing sport.  This offence will not capture innocent behaviour. A person would not commit an offence by possessing their own identification information.

An example of conduct that would be captured by this offence is:

o       person A possesses identification information about person B [a business], such as its trading name, ABN and financial account number

o       person A intends that he or she, or another person, will use the identification information to engage in conduct, and

o       the conduct is that person A will pass themselves off as person B for the purpose of committing, or facilitating the commission of, a Commonwealth indictable offence.

 

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·     a person possessed identification information, and

·     the person intended that they, or any other person, will use the identification information to engage in conduct prohibited under section 372.1.

The prosecution will not need to prove that a person knew that the conduct he or she proposed to engage in with the identification information is the offence of dealing in identification information under section 372.1.  Absolute liability will apply to paragraph 372.2(1)(c).  The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes an offence under section 372.1 is a jurisdictional element.  A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories.   This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

The offence of possessing identification information carries a maximum penalty of 3 years imprisonment.  The offence of possessing identification information is a preparatory offence, which requires an intention to commit, or to facilitate the commission of, an offence under s 372.1.  Accordingly, a penalty that is lower than the penalty for the main offence of dealing in identification information is appropriate.

The offence differs slightly from the model offence recommended by MCLOC in two ways.  The first is that MCLOC envisaged that the offence of possessing identification information would be contingent on the commission, or the facilitation of the commission of, an indictable offence.

The Commonwealth has, instead, made the offence of possessing identification information contingent on conduct that constitutes an offence under section 372.1 - the dealing in identification information offence.

The reason for this change was that it appeared incongruous that a person could receive up to 3 years imprisonment for a preparatory offence of possessing identification information, yet the indictable offence intended to be committed with the identification information might only carry a penalty of 12 months imprisonment. 

For this reason, the preparatory offence of possessing identification information requires an intention to commit the main identity crime offence, dealing in identification information, which carries a penalty of 5 years imprisonment.

The second difference is that the jurisdictional element in paragraph 372.2(1)(c) will be one of absolute liability.  The MCLOC recommended offence did not require that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to engage in conduct that constitutes an offence under section 372.1 (the dealing in identification information offence), it should not be required to prove that the person knew that the conduct they proposed to engage in is an offence under section 372.1.  Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes an offence under section 372.1 is a jurisdictional element.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

 

Insertion of the offence of possessing equipment used to make identification documentation

This item will make it an offence to possess equipment to make identification documentation where the person intends to use, or allows another person to use, that equipment to make identification documentation for the purpose of engaging in conduct that constitutes an offence under section 372.1 - dealing in identification information.   This offence will be punishable by up to 3 years imprisonment.

A person who possesses equipment to make identification documentation may use that equipment themselves to engage in conduct that constitutes the offence of dealing in identification information.  Alternatively, he or she may intend that another person will engage in conduct that constitutes the dealing offence, and facilitate the commission of that offence by allowing the other person to use the equipment.  This offence will capture both types of behaviour.

An example of conduct that would be captured by this offence is person A possessing equipment and intending either that he or she, or person B, will make false credit cards.  Person A must also intend that he or she, or another person, will use that identification documentation to engage in conduct that is an offence under section 372.1 - the dealing offence.

 

The term ‘equipment’ has deliberately not been defined.  This is to avoid the problem of the definition becoming outdated with advances in technology.  Common items of equipment can be used to make identification documentation, such as computers, laminators, embossers, scanners and printers.  There are no specific machines used to make false identification documentation that are not widely available to the public to be used for legitimate purposes.

 

People who possess these common items will not commit an offence by simply possessing the equipment.  A person must intend that he or she, or another person, will use the identification documentation made with the equipment to engage in conduct that constitutes the dealing offence under section 372.1.  Provided there is no intention to deal in identification information, a person may possess these types of equipment without fear of committing an identity crime offence.

 

To establish this offence, the prosecution will need to prove beyond reasonable doubt that:

·     a person possesses equipment,

·     the [first] person intended that they, or any other person, will use the equipment to make identification documentation, and

·     the [first] person intends that they, or any other person, will use the identification documentation to engage in conduct prohibited under section 372.1.

 

The prosecution will not need to prove that a person knew that the conduct they proposed to engage in with the identification documentation is the offence of dealing in identification information under section 372.1.  Absolute liability will apply to paragraph 372.3(1)(d).  The effect of applying absolute liability to this element would mean that no fault element needs to be proved and the defence of mistake of fact is not available.

 

Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct being engaged in constitutes the dealing offence is a jurisdictional element.  A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

The offence of possessing equipment used to make identification documentation carries a maximum penalty of 3 years imprisonment.  The offence of possessing equipment used to make identification documentation is a preparatory offence, which requires an intention to commit, or to facilitate the commission of, an offence under section 372.1.  Accordingly, a penalty that is lower than the penalty for the main offence of dealing in identification information is appropriate. 

The offence differs slightly from the model offence recommended by MCLOC in three ways.  The first is that MCLOC envisaged that the offence of possessing equipment to make identification documentation would be contingent on the commission, or the facilitation of the commission of, an indictable offence.

The Commonwealth has, instead, made the offence of possessing equipment to make identification documentation contingent on conduct that constitutes an offence under section 372.1 - the dealing in identification information offence.

The reason for this change was that it appeared incongruous that a person could receive up to 3 years imprisonment for a preparatory offence of possessing equipment to make identification documentation, yet the indictable offence intended to be committed with the identification documentation might only carry a penalty of 12 months imprisonment. 

For this reason, the preparatory offence of possessing equipment to make identification documentation requires an intention to engage in conduct that constitutes the dealing in identification information offence, which carries a penalty of 5 years imprisonment.

The second difference is that the jurisdictional element in paragraph 372.2(1)(c) will be one of absolute liability.  The MCLOC recommended offence did not include that absolute liability would apply to the fact that a person intended to commit an indictable offence with the identification information.

The Commonwealth decided that while the prosecution must prove that the identity crime offender intended to engage in conduct that constitutes an offence under section 372.1 (the dealing in identification information offence), it should not be required to prove that the person knew that the conduct proposed to be engaged in with the identification information is an offence under section 372.1.  Absolute liability is appropriate and required for this element of the offence because the circumstance that the conduct proposed to be engaged in constitutes an offence under section 372.1 is a jurisdictional element. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

Thirdly, the Commonwealth has broadened the scope of the MCLOC recommendation which required that the equipment possessed by the person must be capable of making identification documentation.

Because the offence is a preparatory offence, it is not relevant whether the equipment is actually capable of making the identification documentation.  What is relevant is the person’s intention to use the equipment to make identification documentation. A person should not escape prosecution for this offence where they intended to make false identification documentation and possessed all the necessary equipment to do so believing that it was capable of making the identification documentation but, for whatever reason, the equipment could not make the identification documentation.

Extended geographical jurisdiction - category A

This item applies extended geographical jurisdiction - category A to offences created by sections 372.1, 372.2 or 372.3.  This means that the three identity crime offences will extend to conduct by an Australian citizen or an Australian body corporate outside Australia.  It will not be open for an Australian citizen or body corporate overseas to raise a defence that there is no equivalent local offence.

Identity crime is often trans-national and it is important that Australia can prosecute Australian citizens and bodies corporate who engage in identity crime outside the geographical boundary of Australia.  An Australian citizen or body corporate should not escape prosecution for an identity crime offence committed outside Australia on the basis that the country in which the offence occurs does not have identity crime laws.

Alternative verdict

This item will allow a trier of fact, in a prosecution for an offence under section 372.1, to find a person guilty of the offence under section 372.2 instead, provided that the person was accorded procedural fairness in relation to that finding of guilt.  The trier of fact must be satisfied beyond reasonable doubt that the person is guilty of the section 372.2 offence.

The offence of possessing identification information is preparatory to the offence of dealing in identification information.  As a matter of logic, a person must ‘possess’ identification information to make, supply or use it in the dealing offence.  The point at which the possession offence becomes the dealing offence is when the person passes themselves off as another person to commit, or facilitate the commission of, a Commonwealth indictable offence.

If a trier of fact is satisfied that a person possessed identification information with the intention of engaging in conduct that would be an offence under section 372.1, but not that the person committed the more serious dealing offence, the person should not escape prosecution for the preparatory offence, subject to the safeguard of procedural fairness.

In its Report, MCLOC noted that an alternative verdict provision under section 372.2 for persons charged with an offence against section 372.1 was a matter for each jurisdiction.  For the reasons outlined above, the Commonwealth has decided to include the alternative verdict.

Attempt

It will not be an offence to attempt to commit any of the offences in sections 372.1, 372.2 or 372.3.  Each of the identity crime offences ultimately requires the intention to commit, or facilitate of the commission of, a Commonwealth indictable offence. 

Division 375 - victims’ certificates

Certificate may be issued by Magistrate in relation to victim of identity crime

This item will allow a person who has been the victim of identity crime to approach a Magistrate for a certificate that states the manner in which identification information was used. 

A person who consented to the use of their identification information by another person can still be a victim of identity crime and obtain a victims’ certificate.  For example, a parent who allows their teenage child to use their credit card to book concert tickets on the internet does not intend for the child to pass themselves off as the parent for the purpose of committing a Commonwealth indictable offence.  If the child uses the credit card to pass themselves off as the parent with the intention of committing a Commonwealth indictable offence, the parent will have been the victim of identity crime and may apply for a certificate.

Identity crime can cause significant damage to a person’s financial records and credit rating.  A certificate issued by a Magistrate may assist the victim in negotiating with financial institutions to re-establish their credit rating or remove fraudulent transactions.

The Commonwealth has included a broader concept of ‘victim of identity crime’ than MCLOC.  MCLOC defined a victim as a person whose identification information is the subject of an offence ie, their identification information was misused.

It is possible, however, that a broader class of persons can be conceived of as victims of identity crime and those persons should be able to apply for a victims’ certificate to assist them. 

This could occur, for example, where person A deals in person B’s identification information and passes themselves off as person B for the purpose of impersonating a Commonwealth public official, which is a Commonwealth indictable offence.  As a part of impersonating the Commonwealth public official, person A convinces person C to part with a large sum of money. 

Person C’s information has not been dealt with and he or she would not be a victim of identity crime in the sense envisaged by MCLOC.  But person C has suffered harm as a result of the identity crime committed by person B.  In such a situation, it might also be useful for people in person C’s situation to be able to apply for a victims’ certificate.

A broader definition of ‘victim’ in the Bill will assist as many people as possible who may have been adversely affected by identity crime.

State and Territory Magistrates will have the power to issue victims’ certificates.  A person seeking a certificate must present sufficient information to the Magistrate so that the Magistrate is satisfied, on the balance of probabilities, that the facts of paragraphs 372.1(1)(a) - (c) have been established.  It will be left to the discretion of Magistrates as to how the information is presented to them.  One way in which this might occur is for the victim of identity crime to complete a statutory declaration, setting out what occurred.  A Magistrate might be satisfied by the information in the statutory declaration that the facts of paragraphs 372.1(1)(a) - (c) have been established, or might wish to question the person further if insufficient information was provided.

Section 375.1 also differs from the MCLOC model.  The Commonwealth provision requires that a person make an application to a Magistrate for the victims’ certificate, whereas the MCLOC model proposed that a Magistrate would be able to issue a certificate on his or her own motion.  This could happen where, for example, a Magistrate heard a prosecution for an identity crime offence and, at the end of the trial, being satisfied that an identity crime offence had been committed against the victim, would issue the victims’ certificate without the victim needing to make an application for the certificate.

However, such an approach is not appropriate for Commonwealth implementation.  A State or Territory Magistrate is highly unlikely to hear the prosecution of a Commonwealth indictable offence.  Such an offence will be tried in the Supreme Court of a State or Territory. 

There are exceptionally few, if any other, circumstances in which a Magistrate could initiate a victims’ certificate at the Commonwealth level.  While a Magistrate would hear a committal proceeding for an identity crime offence and could initiate a victims’ certificate at the end of the committal proceedings, the trial in the Supreme Court would preclude the certificate from being issued, to avoid any contempt of the criminal proceedings. 

Another way in which a Magistrate may issue a victims’ certificate on own motion would be if a person were committed by a Magistrate to stand trial in the Supreme Court, the person elected to plead guilty at that time and to being sentenced in the Magistrates court.  After that point, a Magistrate could issue a victims’ certificate on his or her own motion. 

Because the circumstances in which a Magistrate might have cause to initiate a victims’ certificate on his or her own motion at the Commonwealth level are so limited, the Commonwealth has departed from the MCLOC recommendation that Magistrates be able to issue certificates on their own motion.

The Commonwealth victims’ certificates further differ from the MCLOC model because Magistrates under the Commonwealth model will be asked to find that the facts required to establish the offence under s 372.1 exist, rather than that an offence has been committed on the balance of probabilities.

The change is based on a distinction between being satisfied that certain facts are likely to exist, and a finding that an offence has occurred by applying law to the facts and drawing certain conclusions. 

It may not be appropriate for a Magistrate to determine whether an offence has been committed, albeit on the balance of probabilities, without a proper prosecution having occurred and a defendant been afforded the right to put contrary evidence.

It is possible that the facts required to establish an offence are proved, but that an offence has not been committed because the defendant was, for example, under duress.  A Magistrate asked to issue a victims’ certificate is unlikely to have that type of information available to him or her and it is undesirable that they be required to find an offence was committed.

Content of certificate

This item prescribes the content of a victim’s certificate. In the certificate, the Magistrate must record the identity of the victim and describe the manner in which identification information was used.  For example, the magistrate might record that:

·     the victim’s credit card was used by another person

·     person B intended either that they, or any other person, would pass themselves off as the victim for the purpose of committing an offence (ie, person B or the other person used the victim’s credit card and passed themselves off as the victim)

·     the offence is a Commonwealth indictable offence, such as importing a prohibited tier 1 good, and

·     the institution that provided the victim’s credit card cancelled it because of the purchase by person B.

The perpetrator or alleged perpetrator of the identity crime offence must not be identified in the certificate.

Relation to proceedings

This item provides that a Magistrate need not be satisfied as to the identity of an alleged perpetrator of identity crime, so long as he or she is satisfied, on the balance of probabilities, that the facts of paragraphs 372.1(1)(a) - (c) have been established.  The fact that a victim of identity crime cannot show who the alleged perpetrator was will not prevent the victim from obtaining the certificate (subject to the other requirements being met). 

It will not be necessary for criminal proceedings against an alleged perpetrator of identity crime to have occurred for a victim to obtain a certificate.  Subject to the requirement that a certificate must not be issued if doing so would prejudice any criminal proceedings, a victims’ certificate may be issued without an offender having been identified or convicted.

A Magistrate must not issue a certificate if doing so would prejudice any criminal or civil proceedings.  This means that a Magistrate cannot issue a certificate where the identity crime alleged to have been committed against the victim is the subject of contemporaneous criminal or civil proceedings.

The rights of a defendant will be protected under the proposed victims’ certificate provisions.  Certificates will not be admissible in any criminal or civil proceedings.

The Commonwealth provision about the relation of the victims’ certificate to civil and criminal proceedings is slightly different form that recommended by MCLOC.  The Commonwealth has limited the use of victims’ certificates so that they are not admissible in any contemporaneous civil or criminal proceedings for any purpose.  Under the MCLOC model, the certificates would not have been admissible in any criminal proceedings in relation to the offence for which it was issued, but would have been admissible in criminal proceedings more generally, subject to the applicable rules of evidence.  

Power conferred on Magistrate personally

This item provides that the power to issue victims’ certificates is conferred on Magistrates in their personal capacities, and not as a court or a member of a court.  The function of issuing victims’ certificates is administrative in nature.  Accordingly, it is appropriate for the Commonwealth to bestow non-judicial functions or powers on Magistrates in their personal capacities, rather than as a court, or a member of a court. 

A Magistrate may refuse to exercise the power conferred on them.  This provision is the same as subsection 4AAA(3) of the Crimes Act 1914, which allows persons, upon whom a Commonwealth non-judicial function is conferred, to refuse to exercise the function or power.

A Magistrate who elects to use the power receives the same protections and immunities as if he or she were exercising that power as, or as a member of, the court of which the Magistrate is a member.  This provision will protect a Magistrate who, in good faith, issues, or considers issuing, a victims’ certificate.

Because of constitutional restraints, the Commonwealth was unable to implement the MCLOC recommendation that the power to issue victims’ certificates be conferred on Local or Magistrates courts.  The power to issue victims’ certificates is administrative or non-judicial in nature and the Commonwealth cannot vest a State Local or Magistrates court with a non-judicial power.  To overcome this problem, the power to issue victims’ certificates has been vested in State and Territory Magistrates in their personal capacities.



Insertion of definitions into the dictionary

These items insert definitions of ‘ABN’, ‘deal’, ‘identification documentation’, ‘identification information’ and ‘de facto partner’ into the Dictionary of the Criminal Code.



Schedule 2 - Crimes Act 1914

 

Schedule 2 amends Part III of the Crimes Act 1914 , which contains offences relating to the administration of justice.  The administration of justice offences are directed at conduct that would undermine the integrity of Australian courts and prisons.  These offences include fabricating evidence, intimidating witnesses and aiding a prisoner to escape from lawful criminal detention. 

 

An explanation of key amendments made to the administration of justice offences is set out below.  The explanation of the key amendments is followed by notes on clauses.

 

Reframing the administration of justice offences to bring them into line with Chapter 2 of the Criminal Code

The amendments in Schedule 2 reframe the administration of justice offences to bring them into line with Chapter 2 of the Criminal Code Act 1995 .  

Chapter 2 of the Criminal Code contains the general principles that form the basis for interpreting and applying criminal offence provisions in Commonwealth legislation.  Under the Criminal Code, Commonwealth offences consist of physical elements and fault elements (section 3.1).  

The physical elements may involve conduct, a circumstance, or a result of conduct (section 4.1).  Conduct includes an act, an omission (failure to act) or a state of affairs.  An offence commonly has more than one physical element. 

 

To ensure alignment with the Criminal Code, the administration of justice offences have been reframed so that each physical element of an offence is in a separate paragraph.  In particular, conduct, circumstances and results constituting each offence are set out in separate paragraphs. 

 

Applying absolute liability to jurisdictional elements of the offences to bring the offences into line with Commonwealth criminal law policy

 

The amendments in Schedule 2 apply absolute liability to the jurisdictional elements of the administration of justice offences.  Applying absolute liability to a jurisdictional element of an offence is a settled principle of Commonwealth criminal law policy as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories.  For example, the administration of justice offences contain jurisdictional elements that confine the offences to matters arising in connection with:

·          federal judicial proceedings

·          lawful Commonwealth criminal detention, and

·          offences against the law of the Commonwealth or Territory. 

The effect of applying absolute liability to these elements would mean that no fault element needs to be proved and the defence of mistake of fact is not available.  As a result, in relation to the administration of justice offences, the prosecution would no longer need to prove that a defendant knew that:

·          a judicial proceeding was a federal judicial proceeding, or

·          criminal detention or an offence was related to the Commonwealth or a Territory’s legislative power.

Currently, because absolute liability does not apply to the jurisdictional element in the offence of destroying evidence (section 39), a defendant can avoid being convicted of this offence because he or she did not know the relevant judicial proceeding was a federal proceeding.  This occurred in the recent case, R v JS [2007] NSWCCA 272.  At first instance, the Court directed the jury to return of verdict of not guilty because there was no evidence that the defendant knew that the material would be required in evidence in federal judicial proceedings.  On appeal, the NSWCCA confirmed that, in the absence of a specific provision not requiring proof of fault, the prosecution must prove that the defendant knew both that the material may be required in evidence in judicial proceedings, and that the proceedings were federal judicial proceedings. 

Limiting offences directed at escape from criminal detention to lawful criminal detention

 

Each offence directed at escape from criminal detention (in Division 5 of Schedule 2) has been amended to include a physical element that requires the prisoner’s detention to be ‘lawful federal criminal detention’. 

 

This amendment reflects the policy decision that the Division 5 offences should only be charged where the prisoner’s criminal detention was lawful.  For example, this would avoid the potential unfairness and inconsistency that could flow from charging a defendant with the offence of assisting a prisoner to escape, where that prisoner was not in lawful criminal detention.  The amendment also promotes consistency between the offences - some of the former escape from criminal detention offences applied the ‘lawfulness’ requirement, while others did not.  This amendment will require the prosecution to prove that a prisoner was in lawful detention to establish the offence. 

 

Absolute liability will apply to the ‘lawfulness requirement’ in the offences directed at escape from criminal detention, because it is a jurisdictional element of the offences.  Applying absolute liability to a jurisdictional element of an offence is consistent with Commonwealth criminal law approaches to date, as outlined in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

The effect of applying absolute liability to the lawfulness requirement would mean that no fault element needs to be proved and the defence of mistake of fact is not available.  As a result, while the prosecution would need to prove that a prisoner was in lawful criminal detention, the prosecution would not need to prove that a defendant knew that the detention was lawful.  This is a desirable result, as the offence should not depend on the defendant’s knowledge of the lawfulness of the detention.    

Item 1:  definition of criminal detention

 

This item inserts a reference to the definition of ‘criminal detention’ into subsection 3(1) of the Crimes Act 1914 .  ‘Criminal detention’ is defined at new section 45A. 

 

Item 2:  definition of federal criminal detention

 

This item inserts a reference to the definition of ‘federal criminal detention’ into subsection 3(1) of the Crimes Act 1914 .  ‘Federal criminal detention’ is defined at new section 45A. 

 

Item 3:  definition of federal judicial proceeding

 

This item inserts a reference to the definition of ‘federal judicial proceeding’ into subsection 3(1) of the Crimes Act 1914 .  ‘Federal judicial proceeding’ is defined at new section 31. 

 

Item 4:  definition of judicial proceeding

 

This item inserts a reference to the definition of ‘judicial proceeding’ into subsection 3(1) of the Crimes Act 1914 .  ‘Judicial proceeding’ is defined at new section 31. 

 

Item 5: definition of judicial tribunal

 

This item inserts a reference to the definition of ‘judicial tribunal’ into subsection 3(1) of the Crimes Act 1914 .  ‘Judicial tribunal’ is defined at new section 31. 

 

Item 6:  division 1 heading

 

This item inserts a heading ‘Division 1 - Preliminary’ into Part III of the Crimes Act 1914 .

 

Item 7: definition of federal judicial proceeding , judicial proceeding and judicial tribunal

 

This item repeals former section 31, and inserts new definitions of ‘federal judicial proceeding’, ‘judicial proceeding’ and ‘judicial tribunal’ into the Crimes Act 1914.

 

‘Federal judicial proceeding’ is defined as a judicial proceeding in or before a federal court, a court exercising federal jurisdiction or a court of a Territory.  The definition also covers judicial proceedings before a body or person acting under a law of the Commonwealth or a Territory.

 

‘Judicial proceeding’ is defined as a proceeding in or before a court.  The definition also covers proceedings before a body or a person acting under a law of the Commonwealth, State or Territory, in which evidence may be taken on oath.

 

‘Judicial tribunal’ is defined as a body or person (other than a court) before whom a judicial proceeding is conducted.

 

Item 8:  division 2 heading

 

This item inserts a heading ‘Division 2 - Judges and Magistrates’ into Part III of the Crimes Act 1914 .

 

Item 9:  judge or magistrate acting oppressively or when interested

 

This item reframes former section 34 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalties for the new section 34 offences, are identical to the former section 34 offence.

New section 34 creates two offences directed against judges or magistrates acting oppressively or when they have personal interests at stake in the matter.  

 

Subsection 34(1) creates an offence directed at judges or magistrates that require excessive and unreasonable bail, where the requirement is an abuse of the judge’s or magistrate’s office.  The penalty for this offence is imprisonment for two years. 

 

Subsection 34(2) provides a defence to the offence in subsection 34(1).  The defence would apply where a judge or magistrate has a reasonable excuse.  The defendant bears an evidential burden in relation to subsection 34(2).  Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

 

An evidential burden defence has been used because a defendant would be better placed to point to evidence that they had a reasonable excuse for ordering excessive and unreasonable bail.  For example, a magistrate may have acted oppressively or when interested because they were under duress.  Evidence relating to whether the defendant had a reasonable excuse would not be available to the prosecution.  The evidential burden defence attaching to subsection 34(2) is identical to the defence used in former subsection 34(2). 

The use of the evidential burden defence in subsection 34(2) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

 

Subsection 34(3) provides that absolute liability applies to the paragraph (1)(e) element of the subsection 34(1) offence.  Absolute liability applies because paragraph (1)(e) is a jurisdictional element that confines the offence to matters arising in connection with offences against a law of the Commonwealth. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Subsection 34(4) provides an offence directed at judges or magistrates who perversely exercise jurisdiction in a matter, where they have a personal interest in the matter.  The penalty for this offence is imprisonment for two years. 

 

Subsection 34(5) provides that absolute liability applies to the paragraph (4)(d) element of the subsection 34(4) offence.  Absolute liability applies because paragraph (4)(d) is a jurisdictional element that confines the offence to situations where the judge or magistrate is exercising federal jurisdiction.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Item 10:  division 3 heading

 

This item inserts a heading ‘Division 3 - Evidence and witnesses’ into Part III of the Crimes Act 1914 .

Item 11: offences about evidence and witnesses

This item repeals former sections 35 - 40, and inserts new sections 35 - 40.

New section 35

 

This item reframes former section 35 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 35 offence are identical to the former section 35 offence.

New section 35 creates an offence directed against persons who give false testimony about a matter that is material in a judicial proceeding.  The offence applies where the testimony is given in a judicial proceeding, or when the person intends to institute a judicial proceeding.  The penalty for this offence is imprisonment for five years. 

Paragraph 35(1)(c) confines the offence to situations in which the false testimony is about a matter that is material in the judicial proceeding.  This protects a defendant from being charged with an offence if the defendant gave false testimony about a matter that was immaterial or unrelated to the proceedings. 

Subsection 35(2) provides that strict liability applies to the paragraph 35(1)(c) element of the offence.  Strict liability has been used because the paragraph 35(1)(c) element is a precondition of the offence that the prosecution must prove, it is not a substantive element of the offence. The defendant’s state of mind about whether a matter on which they have given false testimony is material to the proceeding is not relevant to proving the offence.

 

The use of strict liability in subsection 35(2) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, and the Senate Scrutiny of Bills Committee Report 6/2002 Application of absolute and strict liability offences in Commonwealth legislation .   The Guide refers to the principle that it is acceptable to apply strict liability to a physical element that is essentially a precondition of an offence and the state of mind of the offender is not relevant.

Subsection 35(3) provides that absolute liability applies to the paragraph (1)(d) element of the offence.  Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations in which the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

Subsection 35(4) provides that the following factors are not relevant to the offence:

·          testimony - whether given, on oath, or not on oath, in orally or in writing

·          whether the court or judicial tribunal to which the testimony is given is properly constituted or held in the proper place

·          whether the person who gave the testimony is a competent witness, and

·          whether the testimony is admissible.

New section 36

 

This item reframes former section 36 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .The physical elements of, and penalty for the new section 36 offence are identical to the former section 36 offence.

New section 36 creates an offence directed against persons who fabricate evidence with the intention of misleading a court or judicial tribunal in a judicial proceeding. The penalty for this offence is imprisonment for five years. 

Subsection 36(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

New section 36A

 

This item reframes former section 36A so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 36A offence are identical to the former section 36A offence.

New section 36A creates an offence directed against persons who intimidate another person who has appeared or is about to appear as a witness in a judicial proceeding.  The offence is directed at the following conduct:

·          threatening, intimidating or restraining another person

·          using violence or inflicting an injury upon another person

·          causing or procuring violence, damage, loss or disadvantage to another person, and

·          causing or procuring the punishment of another person.

The penalty for this offence is imprisonment for five years. 

Subsection 36A(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

New section 37

 

This item reframes former section 37 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .

New section 37 creates two offences directed against the corruption of witnesses. The physical elements of and penalties for the new section 37 offences are identical to the former section 37 offences.

Subsection 37(1) creates an offence directed against persons who engage in particular conduct on the basis of an agreement or understanding that a witness in a judicial proceeding will give false testimony or withhold true testimony.  The offence is directed at the following conduct:

·          giving, conferring or procuring property or benefits upon another person, or promising to do so, and

·          asking for, receiving or obtaining any property or benefit, or agreeing to do so.

The penalty for this offence is imprisonment for five years. 

Subsection 37(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

Subsection 37(3) creates an offence directed against persons who engage in particular conduct with the intention of inducing a witness in a judicial proceeding to give false testimony or withhold true testimony.  The penalty for this offence is imprisonment for five years. 

Subsection 37(4) provides that absolute liability applies to the paragraph (3)(c) element of the offence.  Absolute liability applies because paragraph (3)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

New section 38

 

This item reframes former section 38 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 38 offence are identical to the former section 38 offence.

New section 38 creates an offence directed at persons who deceive witnesses with the intention of affecting the testimony of the witness.  The offence is directed at the following conduct:

·          practicing fraud or deceit on a witness, and

·          making or exhibiting any false statement, representation, token or writing to a witness.

The penalty for this offence is imprisonment for two years. 

Subsection 38(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding. This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

New section 39

 

This item reframes former section 39 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 . The physical elements of, and penalty for the new section 39 offence are identical to the former section 39 offence.

New section 39 creates an offence directed at persons who destroy evidence with the intention of preventing the evidence from being used in a judicial proceeding.  The offence is directed at the following conduct:

·          destroying a book, document or thing required in evidence, and

·          rendering a book, document or thing illegible, undecipherable or incapable of identification.

The penalty for this offence is imprisonment for five years. 

Subsection 39(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence.  Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

New section 40

 

This item reframes former section 40 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 40 offence are identical to the former section 40 offence.

New section 40 creates an offence directed at persons who prevent witnesses from:

  • attending court pursuant to a subpoena or summons, or
  • from producing anything in evidence, pursuant to a subpoena or summons.

The penalty for this offence is imprisonment for one year. 

Subsection 40(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the judicial proceeding is a federal judicial proceeding.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Item 12:  division 4 heading

 

This item inserts a heading ‘Division 4 - Perverting the course of justice’ into Part III of the Crimes Act 1914 .

 

Item 13: conspiracy to bring false accusation

 

This item repeals former subsection 41(1), and inserts new subsections 41(1) and 41(1A).  This item reframes former subsection 41(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new subsection 41(1) offence, are identical to the former subsection 41(1) offence.

New subsection 41(1) creates an offence directed at persons who conspire to charge any person falsely or cause any person to be falsely charged.  The penalty for the offence is imprisonment for ten years. 

Subsection 41(1A) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 41(1) offence.  Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where a person has been falsely charged with an offence against a law of the Commonwealth, or Territory.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

Existing subsections 41(2) to 41(7) have been retained in the Crimes Act, and operate together with new subsections 41(1) and 41(1A).    

 

Item 14:  conspiracy to defeat justice

 

This item repeals former subsections 42(1) and 42(2), and inserts new subsections 42(1) and 42(2).  This item reframes former subsection 42(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of the new subsection 42(1) offence are identical to the physical elements of the former subsection 42(1) offence. 

New subsection 42(1) creates an offence directed at persons who conspire to obstruct, prevent, pervert or defeat justice in relation to a judicial power of the Commonwealth. 

Subsection 42(2) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 42(1) offence.  Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to the judicial power of the Commonwealth.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

This item increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.  

A penalty of imprisonment for 10 years reflects the seriousness of the offence.  The offence is directed at conduct that undermines the court’s authority and limits its ability to carry out the administration of justice.  In some cases, commission of the offence would be directed at changing the outcome of court proceedings and therefore parties in court proceedings may also be affected.

The amendment will bring the penalty for this offence into closer alignment with the penalty for other similar offences in the Commonwealth and other jurisdictions.  For example, the section 41 offence of conspiracy to bring false accusation (which is also a Commonwealth administration of justice offence) carries a maximum penalty of 10 years imprisonment.  A survey of other jurisdictions by the Commonwealth Director of Public Prosecutions in 2008 revealed that the penalties for similar offences are much greater than the Commonwealth’s current penalty.  For example, the current maximum penalties for similar State offences are 14 years imprisonment in New South Wales and 25 years imprisonment in Victoria.

Item 15:  attempting to pervert course of justice

 

This item repeals former subsections 43(1) and 43(2), and inserts new subsections 43(1) and 43(2).  This item reframes former subsection 42(1) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .  

New subsection 43(1) creates an offence directed at persons who obstruct, prevent, pervert or defeat justice in relation to a judicial power of the Commonwealth.  The penalty for the offence is imprisonment for 10 years. 

Subsection 43(2) provides that absolute liability applies to the paragraph (1)(b) element of the subsection 43(1) offence.  Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to the judicial power of the Commonwealth.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

The new subsection 43(1) offence is not identical to the former subsection 43(1) offence.  This item removes the words ‘in any way not specifically defined in this Act’ from the attempt to pervert the course of justice offence.  The item also increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.  

The words ‘in any way not specifically defined in this Act’, in the former offence, require the prosecution to charge a more specific offence in Part III if one is available.  This means that the attempt to pervert course of justice offence is an offence of last resort - the prosecution may only use it if no other offence can be charged. 

Removing these words promotes certainty as to the scope of this offence.  There is a significant body of case law on offences of attempting to pervert the course of justice, whereas many of the other administration of justice offences do not have the benefit of detailed judicial consideration.  The amendment does not affect the ability of the prosecution to charge the other administration of justice offences.

 

As discussed above, this item increases the penalty for the offence from imprisonment for 5 years to imprisonment for 10 years.  

A penalty of imprisonment for 10 years reflects the seriousness of the offence.  The offence is directed at conduct that undermines the court’s authority and limits its ability to carry out the administration of justice.  In some cases, commission of the offence would be directed at changing the outcome of court proceedings and therefore parties in court proceedings may also be affected.

The amendment will bring the penalty for this offence into closer alignment with the penalty for other similar offences in the Commonwealth and other jurisdictions.  For example, the section 41 offence of conspiracy to bring false accusation (which is also a Commonwealth administration of justice offence) carries a maximum penalty of 10 years imprisonment.  A survey of other jurisdictions by the Commonwealth Director of Public Prosecutions in 2008 revealed that the penalties for similar offences are much greater than the Commonwealth’s current penalty.  For example, the current maximum penalties for similar State offences are 14 years imprisonment in New South Wales and 25 years imprisonment in Victoria.

Item 16: compounding offences and unauthorised or false advertisements

This item repeals former sections 44 and 45, and inserts new sections 44 and 45. 

New section 44

This item reframes former section 44 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 44 offence are identical to the former section 44 offence.

New section 44 creates an offence directed at persons who engage in particular conduct upon any understanding that they will:

·          compound or conceal an offence

·          abstain from, discontinue or delay a prosecution for an offence, and

·          withhold evidence of an offence.

The offence applies to the following conduct:

·          asking for, receiving, or obtaining any property or benefit for themselves or another person, and

·          agreeing to receive or obtain any property or benefit for themselves or another person.

The penalty for the offence is imprisonment for three years.

New section 45

This item reframes former section 45 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 45 offence are identical to the former section 45 offence.

New section 45 creates an offence directed at persons who insert an advertisement purporting to be published under the authority of a court, where the person does so:

·          without authority, or

·          knowing that the advertisement is false. 

The penalty for this offence is imprisonment for two years. 

Subsection 45(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the advertisement purports to be published under the authority of a federal court, a court exercising federal jurisdiction, or a court of a Territory.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

Item 17:  criminal detention definitions

 

This item inserts a heading ‘Division 5 - Escape from criminal detention’ into Part III of the Crimes Act 1914

 

This item also inserts a new section 45A that contains criminal detention definitions that are used throughout Division 5. 

 

Criminal detention is defined to mean arrest or custody in respect of an offence, or detention due to:

·          being unfit to be tried

·          acquittal because of mental illness, and  

·          receiving treatment for mental illness that contributed to the commission of the offence.

 

Federal criminal detention is defined to mean criminal detention in respect of an offence against a law of the Commonwealth, or a Territory (other than the Australian Capital Territory). 

 

The Australian Capital Territory has been excluded from the definition of federal criminal detention because it did not have prison facilities at the time of introduction.

 

Item 18:  - sections 46 - 48

This item repeals former sections 46 to 48, and inserts new sections 46, 46A, 47, 47A, 47B, 47C and 48. 

 

New section 46

This item reframes former section 46 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 46A offence are identical to physical elements and penalty used in the former paragraph 46(1)(a), 46(1)(aa) and 46(1)(ab) offences.

This item creates an offence directed against persons that aid a prisoner to escape or attempt from criminal detention. The penalty for this offence is imprisonment for five years. 

Subsection 46(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence.  Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Subsection 46(3) provides a defence to the offence in subsection 46(1).  The defence would apply where a defendant terminates aid to the prisoner and otherwise takes all reasonable steps to prevent the prisoner from escaping or attempting to escape.  The defendant bears an evidential burden in relation to subsection 46(3).  Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

 

An evidential burden defence has been used because a defendant would be better placed than the prosecution to point to evidence that they terminated their aid to the prisoner or took reasonable steps to prevent the prisoner from escaping or attempting to escape.  Evidence relating to whether the defendant terminated aid or took reasonable steps to prevent the prisoner from escaping would not be available to the prosecution. 

The use of the evidential burden defence in subsection 46(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and is not available to the prosecution.

   

Subsection 46(4) provides that it is possible to use the offence to charge a person who aids a prisoner to escape, even in circumstances where the prisoner was not prosecuted for, or found guilty of an offence in relation to the escape or attempt to escaping.  

 

New section 46A

This item reframes former paragraph 46(1)(b) so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The penalty for the new section 46A offence is identical to the former paragraph 46(1)(b) offence. 

This item creates an offence directed against persons that convey a thing into a prison or other place of criminal detention with the intention of aiding a prisoner to escape from that detention.  The penalty for this offence is imprisonment for five years. 

Subsection 46A(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence.  Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to conduct that would assist a prisoner who is under arrest.  This amendment ensures that a defendant can be charged with conveying a thing into a prison to assist a prisoner that is under arrest.  The former offence did not apply to prisoners under arrest. 

This amendment promotes consistency between the offences about escape from criminal detention.  All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the ‘criminal detention’ physical element. 

 

New section 47

This item reframes former section 47 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 47 offence, are identical to the former section 47 offence.

This item creates an offence directed against persons who escape from criminal detention.  The penalty for this offence is imprisonment for five years. 

Subsection 47(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

New section 47A

This item reframes former section 47A so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 47A offence are identical to the former section 47A offence.

This item creates an offence directed against persons who rescue a prisoner from criminal detention by force. The penalty for this offence is imprisonment for 14 years. 

Subsection 47A(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

New section 47B

This item reframes former section 47B so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The penalty for the new section 47B offence is identical to the penalty for the former section 47B offence. 

This item creates an offence directed against persons who leave a place of criminal detention with permission, but fail to comply with the terms of that permission by refusing to return to that place of criminal detention. The penalty for this offence is imprisonment for five years. 

Subsection 47B(2) provides that absolute liability applies to the paragraph (1)(b) element of the offence.  Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Subsection 47B(3) provides a defence to the offence in subsection 47B(1).  The defence would apply where a prisoner had a reasonable excuse to breach the conditions of their permission by failing to return to the place of criminal detention.  The defendant bears an evidential burden in relation to subsection 47B(3).  Section 13.3 of the Criminal Code Act 1995 provides that in the case of a standard ‘evidential burden’ defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out.  If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1).

 

An evidential burden defence has been used because a defendant would be better placed than the prosecution to point to evidence that they had a reasonable excuse for failing to return to the place of criminal detention.  For example, the defendant may point to evidence that they did not return to the place of criminal detention because they were injured or hospitalised.  Evidence relating to whether the defendant had a reasonable excuse would not be available to the prosecution.  The evidential burden defence used in subsection 47B(3) is identical to the defence used in former section 47B(1A). 

The use of the evidential burden defence in subsection 47B(3) is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide refers to the settled principle that it is legitimate to cast a matter as an evidential burden defence where a matter is peculiarly within the defendant’s knowledge and not available to the prosecution.

   

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest.  This amendment ensures that a defendant can be charged with refusing to return to a place of criminal detention when they are being held under arrest.  The former offence did not apply to prisoners under arrest. 

This amendment promotes consistency between the offences about escape from criminal detention.  All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the ‘criminal detention’ physical element. 

 

New section 47C

This item reframes former section 47C so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The penalty for the new section 47C offence is identical to the former section 47C offence. 

This item creates an offence directed against persons who intentionally or negligently permit a prisoner to escape from criminal detention. The penalty for this offence is imprisonment for five years. 

Subsection 47C(2) provides that absolute liability applies to the paragraph (1)(d) element of the offence.  Absolute liability applies because paragraph (1)(d) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest.  This amendment ensures that a defendant can be charged with permitting a prisoner to escape, where that prisoner is under arrest.  The former offence did not apply to prisoners under arrest. 

This amendment promotes consistency between the offences about escape from criminal detention.  All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the ‘criminal detention’ physical element. 

 

New section 48

This item reframes former section 48 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The penalty for the new section 48 offence is identical to the former section 48 offence.  The physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest.

This item creates an offence directed against persons who harbour, maintain or employ a person who escaped from criminal detention, knowing that the person is an escapee. The penalty for this offence is imprisonment for five years. 

Subsection 48(2) provides that absolute liability applies to the paragraph (1)(c) element of the offence.  Absolute liability applies because paragraph (1)(c) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

While the new offence is directed at the same conduct as the former offence, the physical elements of the former offence have been amended to extend the new offence to situations where the prisoner is under arrest.  This amendment ensures that a defendant can be charged with harbouring maintaining or employing a prisoner that has escaped from a place of criminal detention, where that prisoner was being held under arrest.  The former offence did not apply to prisoners under arrest. 

This amendment promotes consistency between the offences about escape from criminal detention.  All new offences concerning escape from criminal detention apply to prisoners under arrest, because of the consistent application of the ‘criminal detention’ physical element. 

Item 19: division 6 heading

 

This item inserts a heading ‘Division 6 - Seized property’ into Part III of the Crimes Act 1914

Item 20: removing property under seizure

This item reframes former section 49 so that it is aligned with Chapter 2 of the Criminal Code Act 1995 .   The physical elements of, and penalty for the new section 49 offence are identical to the former section 49 offence.

This item creates an offence directed against persons who interfere with property that has been attached or taken under the process or authority of a court, with the intention of hindering or defeating the attachment or process. The penalty for this offence is imprisonment for two years. 

Subsection 49(2) provides that absolute liability applies to the paragraph (1)(b) element of the offence.  Absolute liability applies because paragraph (1)(b) is a jurisdictional element that confines the offence to situations where the detention is lawful federal criminal detention.  This is consistent with Commonwealth criminal law policy, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.  

 

Item 21 - consequential amendment of the Australian Federal Police Act 1979

 

This item amends subparagraph (a)(i) of the definition of ‘protective service offence’ in subsection 4(1) of the Australian Federal Police Act 1979 , to omit a reference to ‘other than paragraph (b)’.   

 

The definition of protective service offence includes Australian Federal Police functions performed in relation to some of the existing administration of justice offences including ‘section 46 (other than paragraph (b)’.

 

Former section 46(b) provided an offence for conveying a thing into a prison with the intention of facilitating the escape of a prisoner.  As a result of the amendment of the administration of justice offences, the offence in section 46(b) no longer exists.  The offence in section 46(b) has been reframed and now appears in section 46A.  Therefore, the reference to subsection 46(b) has been deleted from the definition of ‘protective service offence’. 

 

Item 22 - consequential amendment of the Federal Court of Australia Act 1976

 

This item amends subsection 32P(2) of the Federal Court of Australia Act 1976 to insert the word ‘federal’ before ‘judicial proceeding’. 

 

Subsection 32P(2) provides that ‘evidence given by a person on oath or affirmation administered by the High Court of New Zealand under subsection (1) is, for the purposes of section 35 of the Crimes Act 1914 , testimony given in a judicial proceeding.’

 

The item updates subsection 32P to ensure that it refers to the new definition of ‘federal judicial proceeding’ provided by the amendments to the administration of justice offences. 

 

Item 23 - consequential amendment of the International Criminal Court Act 2002

 

This item repeals section 183 of the International Criminal Court Act 2002 and replaces it with a new section 183.

 

New section 183 ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the International Criminal Court Act. 

 

Section 183 provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the International Criminal Court Act were custody in respect of an offence against a law of the Commonwealth.  As a result of the amendment, prisoners in custody under the Act would be in ‘federal criminal detention’.

 

Item 115 also inserts a reference to section 47C of the Crimes Act into the revised section 183 of the International Criminal Court Act.  Existing section 183 of the International Criminal Court Act only refers to sections 46, 46A , 47A and 48 of the Crimes Act.  Section 47C of the Crimes Act makes it an offence for a prison officer, police officer or similar to permit a person to escape custody or detention. 

 

The equivalent provisions in the International War Crimes Tribunals Act 1995 and the Mutual Assistance in Criminal Matters Act 1987 already refer to section 47C of the Crimes Act.  This amendment ensures consistency between the relevant provisions of the International Criminal Court Act, International War Crimes Tribunals Act and Mutual Assistance in Criminal Matters Act.

 

Item 24 - amendment of the International Transfer of Prisoners Act 1997

 

This item adds a new section 56A to the International Transfer of Prisoners Act 1997

   

New section 56A ensures that the amended administration of justice offences in Division 5 (escape from criminal detention) apply to circumstances where a person is held under arrest or in custody under the International Transfer of Prisoners Act. 

 

Section 56A provides that the administration of justice offences in Division 5 have effect as if custody, detention or arrest under the International Transfer of Prisoners Act were custody in respect of an offence against a law of the Commonwealth.  As a result of the amendment, prisoners transferred under the Act would be in ‘federal criminal detention’.

 

Item 25 - consequential amendment of the International War Crimes Tribunals Act 1995

 

This item repeals section 80 of the International War Crimes Tribunals Act 1995 and replaces it with a new section 80.

 

New section 80 ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the International War Crimes Tribunals Act. 

 

Section 80 provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the International War Crimes Tribunals Act were custody in respect of an offence against a law of the Commonwealth.  As a result of the amendment, prisoners in custody under the Act would be in ‘federal criminal detention’.

 

Item 26 - consequential amendment of the Mutual Assistance in Criminal Matters Act 1987

 

This item repeals section 25A of the Mutual Assistance in Criminal Matters Act 1987 and replaces it with a new section 25A.

 

New section 25A ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to circumstances where a person is held under arrest or in custody under the Mutual Assistance in Criminal Matters Act. 

 

Section 25A provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the Mutual Assistance in Criminal Matters Act were custody in respect of an offence against a law of the Commonwealth.  As a result of the amendment, prisoners in custody under the Act would be in ‘federal criminal detention’.

 

Item 27 - consequential amendment of the Mutual Assistance in Criminal Matters Act 1987

 

This item repeals section 31A of the Mutual Assistance in Criminal Matters Act 1987 and replaces it with a new section 31A.

 

New section 31A ensures that the amended administration of justice offences in Division 5 (sections 46, 46A, 47A, 47C and 48), continue to apply to circumstances where a person is held under arrest or in custody under the Mutual Assistance in Criminal Matters Act. 

 

Section 31A provides sections 46, 46A, 47A, 47C and 48 have effect as if custody, detention or arrest under the Mutual Assistance in Criminal Matters Act was custody in respect of an offence against a law of the Commonwealth.  As a result of the amendment, prisoners in custody under the Act would be serving ‘federal criminal detention’.

 

Item 28 - consequential amendment of the Telecommunications (Interception and Access) Act 1979

 

This item amends paragraph 5D(8)(b) of the Telecommunications (Interception and Access) Act 1979 to insert a reference to new section 46A. 

 

Section 5D provides a list of Commonwealth offences that are ‘serious offences’ for the purposes of the Telecommunications (Interception and Access) Act 1979 .  Paragraph 5D(8)(b) includes a reference to former section 46 of the Crimes Act 1914

 

Former section 46(b) provided an offence for conveying a thing into a prison with the intention of facilitating the escape of a prisoner.  As a result of the amendments to the administration of justice offences, this offence has been reframed and now appears in section 46A.  A reference to 46A has been added to paragraph 5D(8)(b) to ensure that the offence for conveying a thing into a prison remains a ‘serious offence’.

 

Item 29 - consequential amendment of the Transfer of Prisoners Act 1983

 

This item amends subsection 26(1) of the Transfer of Prisoners Act 1983 to omit the phrase ‘as if a reference in that section’ and replaces it with ‘of this Act as if a reference in the definition of federal criminal detention in section 45A’.

 

Subsection 26(1) applies former section 47 of the Crimes Act to a state prisoner in lawful custody. 

 

This item updates subsection 26(1) to ensure that it refers to the new definition of ‘federal criminal detention’ provided by the amendments to the administration of justice offences. 

 

Item 30 - consequential amendment of the Transfer of Prisoners Act 1983

 

This item amends subsection 26(2) of the Transfer of Prisoners Act 1983 to omit the phrase ‘as if a reference in that section’ and replaces it with ‘of this Act as if a reference in the definition of federal criminal detention in section 45A’.

 

Subsection 26(2) applies former section 47 of the Crimes Act to a state prisoner in lawful custody. 

 

This item updates subsection 26(2) to ensure that it refers to the new definition of ‘federal criminal detention’ provided by the amendments to the administration of justice offences. 



 

Schedule 3 - Director of Public Prosecutions Act 1983

 

The Director of Public Prosecutions Act 1983 (the DPP Act) establishes the Office of the Commonwealth Director of Public Prosecutions (CDPP), and provides for the functions and powers of the head of the CDPP, the Director. 

 

The amendments ensure that the Director can delegate functions and powers to facilitate, among other things, joint trial arrangements with the CDPP’s State and Territory counterparts.  The amendments also provide for immunity from civil proceedings for persons carrying out functions and powers under the Act.

 

Items 1 and 2:  subsection 31(1) - delegation by Director

 

Section 6 of the DPP Act sets out the functions of the Director, and section 9 provides for the powers of the Director.

 

Subsection 31(1) of the DPP Act provides for the Director to delegate all or any of his or her powers under the Act to a member of the staff of the Office, other than the Associate Director.  The exception to this is that the Director cannot delegate his or her powers under subsections 6(2D), 9(2) and 9(6D), which include instituting a prosecution on indictment where a person has not been examined or committed for trial, signing an indictment and giving an undertaking to a person that the person will not be prosecuted.  The power to delegate under subsection 31(1) is non-delegable.

 

It is unclear on the face of the legislation whether the delegation power in subsection 31(1) extends to functions as well as powers.  As currently drafted, the provision only refers to the delegation of ‘powers’, but in setting out the exceptions, refers a ‘function’ (subsection 6(2D)).  This would suggest that the underlying intention was to provide that the Director could delegate both functions and powers. 

 

Items 1 and 2 amend subsection 31(1) to put beyond doubt that the Director can delegate any or all of his or her functions and powers under the Act. 

 

The amendments do not change the position that the functions and powers under subsections 6(2D), 9(2) and 9(6D), and the power to delegate under subsection 31(1), cannot be delegated. 

 

Item 3: new subsection 31AA

 

The DPP Act sets out staffing arrangements for the CDPP.  Section 29 of the DPP Act provides for the secondment of staff to the CDPP.  Secondees include persons whose services are made available to the Director as part of an arrangement made under section 30 of the DPP Act (paragraph 29(b)).  Section 30 provides for the Attorney-General and the Minister of the Crown of a State to make administrative arrangements for the secondment of State officers.  

 

Section 31(1) of the DPP Act provides for the delegation of certain powers to a member of the staff of the Office.  Subparagraph 3(4)(c) of the DPP Act provides that a member of the staff of the Office includes a person seconded under section 29.  That is, a State officer seconded under a section 30 arrangement is considered a member of the staff of the Office for the purposes of the DPP Act. 

 

Section 31(1), as amended by items 1 and 2 of Schedule 3, will allow the Director to delegate functions to State officers on a secondment arrangement. 

 

The High Court case of O’Donoghue v Ireland (2008) 82 ALJR 680 suggests that the DPP Act could provide for the delegation of powers to a State or Territory official under Commonwealth legislation alone.  However, O’Donoghue indicates that the delegation of functions (which may impose a duty) may be invalid where there is no arrangement (whether administrative or legislative) with the State to accept that duty.  The distinction is that powers are not required to be exercised, whereas functions/duties may be required to be performed. 

 

Item 3 inserts a new subsection 31(1AA) which provides that if a function is delegated by the Director under subsection 31(1) to a person referred to in paragraph 29(b), the person need not accept the function delegated.  This is intended to establish that any function delegated under section 31(1) is to be exercised voluntarily, and therefore the conferral is not invalid within the reasoning of O’Donoghue .

 

Item 4: new subsection 31(1B)

 

The CDPP and its State and Territory counterparts have established arrangements for the conduct of joint trials.  A joint trial is where a defendant has been indicted, or charged, with Commonwealth and State or Territory offences arising out of the same or related facts.  Joint trial arrangements provide for a single prosecuting authority to conduct the prosecutions for all charges.

Paragraph 9(2)(b) of the DPP Act allows the Director to authorise a person to sign indictments on his or her behalf.  However, this authorisation is very limited in its scope and does not extend to summary offences, committal proceedings or appeals. 

Similarly, paragraph 15(1)(da) of the DPP Act provides for a member of the staff of a State or Territory prosecution agency to appear on behalf of the Director in certain proceedings.  However, the ability to represent the Director at such proceedings does not include the ability to exercise any of the powers or functions of the Director (such as to institute a prosecution on indictment for an offence against the laws of the Commonwealth).

Item 4 inserts new subsection 31(1B) to allow the Director to delegate certain functions and powers necessary for the conduct of joint trial, to certain persons or classes of persons. 

Persons or classes of persons

The persons or classes of persons to whom the Director can delegate functions and powers are set out in new paragraphs 31(1B)(a) - (d).  This approach has been taken as the persons who might appropriately be part of a joint trial may vary between jurisdictions, and the descriptions of those persons under State and Territory legislation may differ. 

For example, new paragraph 31(1B)(a) would include (but not be limited to) the Director of Public Prosecutions in a State or Territory.  Similarly, new paragraph 31(1B)(b) would include (but not be limited to) the staff of a State or Territory Office of Public Prosecutions, regardless of how such persons are described in State or Territory legislation.

Further, new paragraph 31(1B)(c) is intended to cover persons who are authorised to institute or conduct prosecutions under a law of a State or Territory, but who are not performing a similar function to the Director, and who are not members of staff of a State or Territory authority.  For example, this paragraph would cover a Crown Prosecutor appointed under the Crown Prosecutors Act 1986 (NSW) who is authorised under that Act to conduct prosecutions.  Another example is a person authorised to sign an indictment under subsection 126(2) of the Criminal Procedure Act 1986 (NSW).

Finally, new paragraph 31(1B)(d) is included to cover other possible classes of persons responsible for prosecution activities in a State or Territory but who, due to the structure of the relevant prosecutorial agency in the State or Territory, do not come within the terms of paragraphs 31(1B)(a) to (c).

Functions and powers

The functions and powers that may be delegated to a person under new subsection 31(1B) are those that may be required for the purposes of conducting a joint trial. 

The functions and powers set out in new paragraphs 31(1B)(e) - (h) relate to instituting and carrying on a prosecution for a Commonwealth offence, including: proceedings for the commitment of a person for trial, exercising rights of appeal in respect of a prosecution for a Commonwealth offence and doing anything incidental or conducive to the performance of those functions.

New subparagraph 31(1B)(i) enables the Director to delegate additional functions and powers as prescribed by the regulations.  This will allow new functions or powers identified as relevant to the conduct of joint trials to be added by regulation, enabling the delegation power to remain flexible and current.

Conferral of functions on a State officer

 

New subsection 31(1B) allows both powers and functions to be conferred on State officers to facilitate joint trials.  Again, this addresses the issue dealt with in O’Donoghue discussed above under item 3. 

 

New subsection 31(1C) is intended to establish that any functions delegated under section 31(1B) are to be exercised voluntarily, and therefore the conferral is not invalid within the reasoning of O’Donoghue .

Items 5, 6 and 7:  subsection 31(2) - delegation by Director

Subsection 31(2) of the DPP Act provides that an exercise of a power delegated under section 31 is deemed to have been an exercise of power by the Director. 

Items 5, 6 and 7 make corresponding amendments to subsection 31(2) to refer to the performance of functions as well as the exercise of powers.  That is, that a function delegated under section 31 will be deemed to have been performed by the Director.  These items are necessary because items 2 - 4 amend section 31 to provide for the delegation of both functions and powers. 

Item 8: Subsection 31(3) - delegation by Director

Subsection 31(3) of the DPP Act provides that a delegation under section 31 does not prevent the exercise of a power by the Director. 

Item 8 makes a corresponding amendment to subsection 31(3) to refer to the performance of functions as well as the exercise of powers.  That is, the Director is not prevented from performing a function delegated under section 31.  These items are necessary because items 2 - 4 amend section 31 to provide for the delegation of both functions and powers. 

Item 9: new section 32A - immunity from civil liability

Currently, persons carrying out powers, functions or duties etc under the DPP Act are exposed to civil liability for their actions and must rely on an arrangement with the Commonwealth to indemnify them for the cost of any legal proceedings taken against them or involving them personally. 

Item 9 inserts new provision 32A into the DPP Act to provide certain individuals with immunity from civil proceedings arising out of the performance or exercise of powers, functions, duties or services in good faith under the Act. 

New subsection 32A(1) provides that the Director, a member of the staff of the Office, and a person to whom functions or powers are delegated under section 31, are immune from a civil action, suit or proceedings, for acts or omissions done in good faith in the performance or exercise (or purported performance or exercise) of any function, duty or power under, or in relation to, the DPP Act.  This immunity will extend to persons to whom functions or powers are delegated under new subsection 31(1B) (as inserted by item 4). 

New subsections 32A(2) and (3) provide immunity from civil proceedings to acts done, or omitted to be done, in good faith by a person employed by the Director under subsection 27(3) and persons referred to in section 29 whose services are made available to the Director (eg secondees). 

As the Notes to subsections 32A(2) and (3) clarify, the immunity in subsection 32A(1) only applies to a person engaged under subsection 27(3) or section 29 to the extent that the Director’s functions or powers have been delegated to that person under section 31.  Subsections 32A(2) and (3) would ensure that persons who support the Director in carrying out his or her functions or powers (but do not themselves exercise functions or powers) are covered by the immunity. 

Subsection 32(1) of the DPP Act allows the Director and the Chief Executive Officer of the Australian Government Solicitor (AGS) to make arrangements for AGS to perform or exercise all or any of the Director’s functions or powers under the Act. 

New subsection 32A(4) provides immunity from civil action, suit or proceeding to the AGS for acts or omissions done in good faith by the AGS, in performing a function, or exercising a power, under an arrangement made under subsection 32(1). 

Similarly, new subsection 32A(5) provides immunity from civil proceedings to the Chief Executive Officer (CEO) of the AGS or staff of the AGS (employed under subsection 55ZB(1) of the Judiciary Act 1903 ) for an act or omission done in good faith, by the person in assisting the AGS perform a function or exercise a power under an arrangement made pursuant to subsection 32(1).

 

Subsection 32A(1)-(3) and (5) only provide immunity for individuals.  Subsection 32A(4) provides immunity for the AGS as a body corporate.  This is considered appropriate as it is the AGS as an entity that is engaged to perform the functions, or exercise the powers of, the Director under an arrangement in subsection 32(1). 

 

Subsection 32A(6) provides that, in subsections 32A(4) and (5), AGS has the same meaning given to it in subsection 32(4).  Section 32(4), in defining AGS, refers to Part VIIIB of the Judiciary Act, which establishes AGS. 



 

Schedule 4 - Anti-Money Laundering and Counter-Terrorism Financing Act 2006

 

Item 1: section 61 - affixing notices about reporting obligations under Part 4

 

Part 4 of the AML/CTF Act imposes reporting obligations relating to the cross-border movement of physical currency and bearer negotiable instruments (BNIs).  Section 61 of the AML/CTF Act gives a custom officer the power to affix written notices about these reporting obligations on any part of an aircraft or ship, or in any other place specified in the AML/CTF Rules.

 

This item amends section 61 of the AML/CTF Act to give a customs officer the power to arrange for another person to affix one or more such notices.  For example, where Customs did not have presence at an airport, a customs officer could arrange for another airport employee to affix the notice.

 

Items 2 and 3: paragraphs 62(2)(a) and (b) - notice to travellers about reporting obligations under Part 4

 

These items will allow AML/CTF Rules to be made to give a person in charge of an aircraft or ship more flexibility as to how he or she can discharge his or her obligation to give travellers to Australia notice of reporting obligations under the AML/CTF Act relating to the cross-border movement of physical currency and BNIs. 

 

Section 62 of the AML/CTF Act requires the person in charge of an aircraft or ship travelling to Australia (without stopping at any other place outside Australia) to give, or cause to be given, to all persons travelling on the aircraft or ship, a copy of a written notice about reporting obligations relating to the cross-border movement of physical currency and BNIs. 

 

Item 2 amends paragraph 62(2)(a) of the AML/CTF Act to allow the person in charge of an aircraft or ship to communicate the information contained in the written notice in the manner prescribed by the AML/CTF Rules.  The AML/CTF Rules are disallowable. 

 

Item 3 amends paragraph 62(2)(b) of the AML/CTF Act to allow the person in charge of an aircraft or ship to cause the information contained in the written notice to be communicated in the manner prescribed by the AML/CTF Rules. 

 

Item 4: subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv) and (v) -admissibility of information about threshold transaction reports and IFTIs

 

This item amends subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv) and (v) of the AML/CTF Act to clarify that any further information provided about a threshold transaction report or an international funds transfer instruction (IFTI) report under subsection 49(1) of the AML/CTF Act can be admitted as evidence in court or tribunal proceedings.

 

The proposed amendments will ensure that any such information has the same status as the threshold transaction report and IFTI report, which are admissible in court or tribunal proceedings. 

 

Item 5: subsections 128(4) and (9) - disclosures relating to suspect transaction reports

 

This item will prohibit disclosures by an official of a designated agency about suspect transaction reports obtained under section 16 the FTR Act, where the disclosure is for the purpose of court or tribunal proceedings or an investigation. 

 

It is an offence under section 127 of the AML/CTF Act for an official of a designated agency to disclose AUSTRAC information to another person unless authorised to do so.  An official of a designated agency is authorised under subsections 128(3) and 128(8) of the AML/CTF Act to disclose AUSTRAC information:

1)       to a person for the purposes of, or in connection with, court or tribunal proceedings, or proposed or possible court or tribunal proceedings

2)       to a person for the purpose of obtaining legal advice

3)       in the course of court or tribunal proceedings, or

4)       to a person for the purpose of, or in connection with, an investigation or a proposed or possible investigation.

 

However, in these circumstances an official is not authorised to disclose AUSTRAC information that was obtained as part of a suspicious matter report (under section 41 of the AML/CTF Act) or further information provided in relation to a suspicious matter report (obtained under section 49 of the AML/CTF Act).

 

Information obtained under section 16 of the FTR Act can currently be disclosed under subsections 128(3) and 128(8) of the AML/CTF Act.  This information relates to suspect transactions and is of a similar nature to information relating to suspicious matter reports obtained under sections 41 and 49 of the AML/CTF Act. 

 

This item will amend subsections 128(4) and (9) of the AML/CTF Act to ensure that suspect transaction reports obtained under section 16 of the FTR Act are subject to the same prohibition on disclosure as suspicious matter reports obtained under the AML/CTF Act.  Item 5 provides that an official of a designated agency is not authorised to disclose AUSTRAC information obtained under section 16 of the FTR Act where the disclosure is for the purpose of court or tribunal proceedings or an investigation.  

 

Items 6 and 7:  sections 130 and 131 - disclosures by officials of a non-designated Commonwealth agency

 

Items 6 and 7 amend sections 130 and 131 of the AML/CTF Act to prohibit officials from a non-designated Commonwealth agency from disclosing certain AUSTRAC information.

 

The proposed amendments will strengthen the safeguards under the AML/CTF Act which protect against the disclosure of sensitive AUSTRAC information relating to suspicious matters obtained under the AML/CTF Act and suspect transaction reports obtained under the FTR Act.

 

Item 8 - application

 

This item sets out the application of the proposed amendments. Information obtained before the commencement of these provisions will be subject to the new restrictions on disclosure. However, the penalties are not retrospective and will only apply after commencement.

 

Item 2 will apply in relation to aircraft or ships leaving a place outside Australia on or after the commencement of Item 2.

 

Item 4 will apply in relation to court or tribunal proceedings instituted on or after the commencement of Item 4.

 

Item 5 will apply in relation to information obtained under section 16 of the FTR Act before, on or after the commencement of Item 5.

 

Items 6 and 7 will apply to AUSTRAC information obtained before, on or after the commencement of these Items. 

 



Schedule 5 - Australian Federal Police Act 1979

Part IV amendments

Part IV of the AFP Act provides the statutory basis for alcohol and other drug testing, including discretionary and mandatory alcohol tests, and the types of equipment to be used for the conduct of those tests. The AFP regulates the consumption of alcohol by its appointees and has a blood alcohol limit of 0.02 for all AFP appointees while on duty.

The AFP Act differentiates between the terms ‘alcohol screening test’, ‘alcohol breath test’ and ‘blood test’.  Currently, the AFP Act limits the use of alcohol screening tests to the circumstances outlined in section 40LA.  That is, where an authorised manager has a reasonable suspicion that the appointee is on duty and under the influence of alcohol.

The AFP Act does not currently allow for the conduct of alcohol screening tests as a preliminary form of testing under sections 40M (random workplace testing) and 40N (critical incident testing). In these circumstances, only an ‘alcohol breath test’, using an ‘approved breath analysis instrument’, can be conducted.

The instrumentation used for ‘alcohol breath tests’ is not readily portable and requires specialist operator training. In contrast, an approved breath screening device is portable and easily operated.

The amendments to Part IV of the Act will enable the AFP to use alcohol screening tests as a preliminary form of testing for all random, targeted investigation and certain incident alcohol testing. The conduct of preliminary alcohol screening tests within sections 40M and 40N will enable alcohol testing to be undertaken in a timely and resource effective manner.

 

Section 40R of the AFP Act allows the Minister to approve devices, including devices used to conduct ‘alcohol screening tests’ under section 40LA, as ‘approved screening devices’.  An approval by the Minister is a legislative instrument.  The amendments will allow the Minister to approve devices used to conduct tests for the purposes of the amended sections 40M and 40N as ‘approved screening devices’.

Part V amendments

 

Part V of the AFP Act was inserted by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006 (the AFP Amendment Act 2006) to modernise the complaints and professional standards regime within the AFP.

If an AFP appointee engages in misconduct, the appointee is subject to certain consequences depending on the category of conduct within which their behaviour falls.  The AFP Act provides for four different categories of conduct.  The Commissioner and Ombudsman determine jointly, by legislative instrument, the types of conduct that fall within categories 1 to 3, as defined in the AFP Act.  The fourth category of conduct, and the most serious, is conduct giving rise to a corruption issue.

Section 40RD requires the Commissioner to constitute a unit (the professional standards unit) to undertake the investigation of category 3 conduct issues and corruption issues.  Category 3 conduct includes things such as a serious breach of the AFP Code of Conduct and improper disclosure of sensitive information held by the AFP.  Examples of conduct that would give rise to a corruption issue are conduct that perverts the course of justice and conduct that involves an appointee abusing his or her position as an appointee of the agency.

Part VI of the Act contains miscellaneous procedural and offence provisions.

The amendments to Part V and VI aim to rectify drafting oversights, improve the investigation of conduct issues and allow for the conferral of awards.

 

Items 1 and 2:  subsection 40LA(3), paragraph 40LA(4)(a) - authorised managers may require AFP appointees to undergo alcohol screening tests etc

 

These items correct errors in existing subsection 40LA(3) and paragraph 40LA(4)(a), which incorrectly refer to alcohol being present in a test subject’s blood, rather than their breath. Under section 40LA, blood alcohol content is not measured as part of the screening test, because a screening test only screens the breath for the presence of alcohol.  It does not provide a blood alcohol content measurement. These items of the Bill omit ‘blood’ and substitute ‘breath’.

 

The note to item 1 also replaces the heading of the section 40LA to make it clear that ‘authorised managers’ may require AFP appointees to undergo alcohol screening tests under this section.

 

Item 3:  subsection 40M(1) - alcohol breath tests and prohibited drug tests

 

This item amends section 40M to allow a person, prescribed under the regulations, to give a written notice to an AFP employee or special member on duty, of a direction requiring the employee or special member to undergo one or more of the alcohol and drug tests set out in subsection 40M(1).

 

The purpose of this item is to ensure that more comprehensive testing can take place without the need for a further direction, if preliminary testing, such as an alcohol screening test, indicates the presence of alcohol in a test subject’s blood.



The note to this item replaces the heading to section 40M to make it clear that prescribed persons may require AFP employees or special members to undergo alcohol and prohibited drug tests.

 

Item 4: before paragraph 40M(1)(a) -alcohol breath tests and prohibited drug tests

 

This item inserts a new paragraph allowing for alcohol screening to take place under section 40M, in addition to alcohol breath tests. The provision for alcohol screening tests, as a preliminary form of testing, will assist the AFP in determining whether more rigorous testing, in the form of a breath test or blood test, is necessary.

 

Items 5 to 7: paragraphs 40M(1)(a) to (b) - alcohol breath tests and prohibited drug tests

 

These items amend grammatical errors arising from the insertion of ‘to do one or more of the following’ as inserted into subsection 40M(1), and outlined at Item 4.

 

Item 8:  before paragraphs 40N(1)(c) and (2)(c) - alcohol breath tests and prohibited drug tests after certain incidents

 

This item inserts a new paragraph allowing for alcohol screening to take place under section 40N, in addition to alcohol breath tests. The provision for alcohol screening tests, as a preliminary form of testing, will assist the AFP in determining whether more rigorous testing, in the form of a breath test or blood test, is necessary.

 

Item 9: paragraph 40R(1)(b) - approval of screening devices

 

Under section 40R of the AFP Act, the Minister may approve devices used to conduct ‘alcohol screening tests’ under section 40LA as ‘approved screening devices’.

 

This item amends paragraph 40R(1)(b) to allow the Minister to approve devices used to conduct tests for the purposes of sections 40M and 40N (which will be amended as outlined above to allow for an alcohol screening test to be conducted).  The effect of this provision will be to allow the Minister to approve screening devices for the purposes of section 40LA, 40M and 40N.

 

Items 10 - 14: section 40RO - category 2 conduct

The AFP Act provides for four different categories of conduct issues.  The least serious is category 1 conduct, which includes conduct that relates to minor management matters or customer service matters and conduct that reveals a need for improvement in the performance of the AFP appointee concerned.  Category 2 conduct is the next most serious, and includes minor misconduct by an AFP appointee and inappropriate conduct that reveals unsatisfactory behaviour by an AFP appointee.

Section 40RO of the AFP Act defines category 2 conduct, and currently requires that it involve repeated instances of category 1 conduct.  This definition was inserted by the AFP Amendment Act 2006 .  However, it was not intended that section 40RO define category 2 conduct to require it to be repeated instances of category 1 conduct.  These items will amend section 40RO to give effect to the original intention that category 2 conduct be either particular kinds of conduct as defined by subsection 40RO(1)(a) or conduct that involves repeated instances of category 1 conduct.  For example, a single instance of a threat to use force against a person that is not authorised by a warrant, or repeated instances of unreasonable delays in dealing with issues, could each constitute category 2 conduct.

These items also move the content of paragraph 40RO(c) to a new subsection.  This is purely a technical drafting amendment and has no substantive effect.

 

 

Items 15 and 16: subsection 40TN(1) - head of unit constituted under section 40RD generally allocates issues for investigation

The AFP Act provides for four different categories of conduct issues.  The least serious is category 1 conduct, followed by category 2 conduct, category 3 conduct and finally, conduct giving rise to a corruption issue.

Subsection 40TN(1) of the AFP Act provides that, subject to section 40TO, the head of the professional standards unit must allocate an AFP conduct issue or corruption issue to a person who is a member, or a special member of the AFP.  Subsection 40TN(3) provides that the issue may be allocated to a person outside the professional standards unit to investigate with the Commissioner’s agreement.  However, by virtue of subsection 40TN(1), that person must be a member, or special member, of the AFP.

The need for a person who is allocated an issue to be a member, or a special member of the AFP, creates difficulties where it is necessary to conduct a joint investigation between the professional standards unit and another agency, such as a State or Territory police force.  In these circumstances, members of an agency other than the AFP must be sworn in as special members of the AFP, providing these investigators with a range of powers that go beyond the investigative powers provided for in Part V, Division 5 of the AFP Act.

Paragraph 40TO(1)(b) of the AFP Act allows the Commissioner to allocate an issue to a person outside the professional standards unit, who need not be a member, or special member of the AFP.  However, that provision is intended to address circumstances where allocating the matter to the unit may compromise the investigation.  Accordingly, the Commissioner can only allocate the issue to a person outside the unit if he or she is satisfied that it would be ‘inappropriate’ for the issue to be allocated to a person within the professional standards unit.  It is not appropriate to rely upon this provision where the professional standards unit need to participate in a joint investigation with another agency.

These items will amend subsection 40TN(1) to provide that the head of the professional standards unit may allocate category 3 conduct issues to ‘law enforcement officers’ within the meaning of section 3 of the Crimes Act.  The term ‘law enforcement officer’, as defined in the Crimes Act, includes members and special members of the AFP, members of a State or Territory police force, staff members of the Australian Commission for Law Enforcement Integrity and the Australian Crime Commission, officers of the Australian Customs Service, and members of a police force or other law enforcement agency of a foreign country.  This will allow the unit to participate in a joint investigation with another agency without the need for officers of the other agency to first be sworn in as special members of the AFP.

These amendments have no effect on the AFP’s capacity to conduct a joint investigation with another agency, with the Commissioner’s agreement.  Further, subsection 40VB(5) of the AFP Act authorises the Commissioner to give the investigator directions as to the manner in which the investigation is to be conducted.  This provision is applicable to an investigator appointed under these amendments.

 

Item 17: subsection 61(1) - awards for bravery

 

Under section 61 of the AFP Act, the Commissioner may confer awards upon a Deputy Commissioner, AFP employee, special member or a special protective service officer where ‘bravery or other conspicuous conduct’ merits the conferring of a prescribed award.

 

This item amends subsection 61(1) to allow for the conferral of awards on an ‘AFP appointee’. The effect of the provision is to allow for the recognition of a broader range of AFP employees including contractors engaged under section 35 of the Australian Federal Police Act. The item also extends the application of section 61 to a person who is assisting the AFP pursuant to an agreement under section 69D of the AFP Act.

 

Item 18: subsection 61(1) - awards for bravery

 

This item amends subsection 61(1) to allow for the conferral of awards for ‘diligent service’. The inclusion of ‘diligent service’ enables a wider range of conduct, worthy of award, to be recognised.

 

Item 19: after subsection 61(1) - awards for bravery

 

This item inserts a new subsection which allows the Commissioner to confer an award on a person, other than an AFP appointee, who has, by his or her bravery, or conspicuous conduct, assisted the Australian Federal Police. This item will ensure that people who assist the AFP (but who are not AFP appointees and who are not operating pursuant to an agreement under section 69D) can be recognised for their contribution. For example, this item allows for awards to be conferred on employees of other agencies who assist the AFP, but who are not covered by secondment or other arrangements.

 

Item 20:  subsection 64A(2) - members in uniform to wear identification numbers

The Australian Federal Police and Other Legislation Amendment Act 2004 amended subsection 64A(1) of the AFP Act so the members of the AFP only had to have their identification numbers ‘clearly visible on the uniform’ as opposed to ‘ on, or attached to, the front of his or her uniform’ .  It is an offence for a member to breach this requirement.  There is a penalty of five penalty units.

Subsection 64A(2) is a defence provision to the offence created in subsection 64(1) of the AFP Act.  This subsection still refers to the identification number being worn at the front of the uniform.  This creates an anomaly in that there is no defence to the offence, as was intended.  This item amends subsection 64A(2) so that the defence matches the offence and is therefore effective.

 

Item 21:  application

 

This item provides that ‘diligent service’ in Item 18 applies in relation to service occurring before, on or after, the commencement of Item 18. This ensures that AFP appointees can be recognised for service undertaken throughout their careers rather than limiting it to service undertaken after the commencement of this item.

 



Schedule 6 - Judiciary Act 1903

 

Item 1: section 55D - right to practise as a barrister or solicitor in Territories

 

This item repeals section 55D of the Judiciary Act 1903 . Section 55D is concerned with the criteria for eligibility to practise law in Territories.  The section enables a person who has been admitted to the roll of the High Court kept under the rules of the Court, or a State or Territory Supreme Court, to practise in a Territory.  Over time, the section has been disapplied to all Territories except the Australian Capital Territory and Norfolk Island.    Because   both of these jurisdictions have now enacted comprehensive legislation regulating the legal profession, including a requirement that legal practitioners hold practising certificates , the provision is no longer operative and can be repealed .  

 

Items 2, 3 and 4 - subsection 55E(1) (paragraph (a) of the definition of Attorney-General’s lawyer ), section 55I (paragraph (b) of the definition of AGS lawyer ), subsection 55T(2)

 

Items 2 to 4 of the schedule are consequential amendments which remove references to section 55D (which is repealed in this Bill) in paragraphs 55E(1)(a) and 55I(b) and subsection 55T(2) of the Judiciary Act 1903 (Cth ).

 



Schedule 7 - Miscellaneous

 

Items 1 and 2:  subparagraphs 3AA(1)(d)(i) and (ii) Crimes Act 1914 and subparagraphs 4AA(1)(d)(i) and (ii) of the Australian Federal Police Act 1979

 

This item removes the term ‘relevant criminal activity’ from the definition of ‘State offences with a federal aspect’. The description of State offences with a federal aspect, that was inserted in subsection 3AA(1) of the Crimes Act and subsection 4AA(1) of the Australian Federal Police Act, was modelled on section 4A of the Australian Crime Commission Act 2002 . The phrase ‘relevant criminal activity’ is defined in section 4 of the Australian Crime Commission Act as ‘any circumstances implying, or an allegations, that a serious and organised crime may have been, may be being, or may in the future be, committed against a law of the Commonwealth, or a State or Territory’.

 

The reference to ‘serious and organised crime’ is relevant to the Australian Crime Commission’s special functions in investigating such crimes. However, it is not applicable to the Australian Federal Police and, ‘relevant criminal activity’ is not defined in either the Australian Federal Police Act or the Crimes Act .  It appears that the inclusion of ‘relevant criminal activity’ was an oversight when section 4A of the Australian Crime Commission Act was used as a template for the definition of State offences with a federal aspect in the Australian Federal Police Act and the Crimes Act.

 

Item 3: subsection 477.1(5) Criminal Code Act 1995 - unauthorised access, modification or impairment with intent to commit a serious offence

 

This item corrects a drafting error in subsection 477.1(5) by deleting reference to ‘subsection (3)’, and inserting ‘subsection (4)’.  Subsection 477.1(5) of the Criminal Code specifies the fault element to an offence contained in subsection 477.1(4).  Subsection 477.1(4) makes it an offence to cause unauthorised access, modification or impairment of data held in a computer to facilitate the commission of a serious offence against a law of the Commonwealth.

 

Item 4: subsection 6(1) (after paragraph (k) of the definition of enforcement body ) of the Privacy Act 1988

 

This item amends the definition of ‘enforcement body’ in subsection 6(1) of the Privacy Act 1988 to include the Office of Police Integrity (OPI) in Victoria. 

 

The effect of this amendment is that a private sector organisation which is subject to the Privacy Act (such as a private utility company) will be able to use or disclose personal information where it reasonably believes this is reasonably necessary for one or more of the functions or activities listed in National Privacy Principle 2.1(h) in Schedule 3 to the Privacy Act, where these are carried out by, or on behalf of, OPI. 

 

This provides OPI with the same status that comparable law enforcement bodies have under the Privacy Act, such as the Police Integrity Commission of New South Wales and the Crime and Misconduct Commission of Queensland.