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Surveillance Devices Bill 2004
Schedule 1 Amendment of other legislation and transitional and saving provisions

   

Australian Federal Police Act 1979

1  Division 2 of Part II

Repeal the Division.

2  Transitional and saving provision

Despite the repeal of Division 2 of Part II of the Australia n Federal Police Act 1979 by item 1 of this Schedule:

                     (a)  any warrant issued under that Division and in force immediately before the day of that repeal remains in force, according to its terms, after that day as if that Division had not been repealed; and

                     (b)  any consent by a Judge of a court created by the Parliament to be nominated by the Minister under subsection 12D(2) of the Australian Federal Police Act 1979 , being a consent that is in force immediately before the day of that repeal, is to be treated, with effect from that day, as if it were a consent to be declared by the Minister to be an eligible Judge under subsection 12(3) of the Surveillance Devices Act 2004 ; and

                     (c)  any nomination by the Minister of a Judge of a court created by the Parliament as a Judge who may issue warrants under section 12G of the Australian Federal Police Act 1979 , being a nomination that was in force immediately before the day of that repeal, is to be treated, with effect from that day, as if it were a nomination of that Judge as an eligible Judge for the purposes of section 12 of the Surveillance Devices Act 2004 ; and

                     (d)  any nomination by the Minister of a person holding an appointment referred to in subsection 12DA(1) of the Australian Federal Police Act 1979 , being a nomination that was in force immediately before the day of that repeal, is taken, with effect from that day, to be a nomination of that person for the purposes of section 13 of the Surveillance Devices Act 2004 .

3  Operation of Division 2 of Part II of the Australian Federal Police Act 1979 preserved for limited purposes

Despite the repeal of Division 2 of Part II of the Australian Federal Police Act 1979 by item 1 of this Schedule, that Division is to be treated as continuing to apply in relation to the use of listening devices in respect of offences against the law of the Australian Capital Territory as if:

                     (a)  the Division had not been repealed; and

                     (b)  the definitions of class 1 general offence and class 2 general offence and the definition of general offence were limited to offences against the law of the Australian Capital Territory; and

                     (c)  for the purposes of the continued operation of section 12L of the Australian Federal Police Act 1979 :

                              (i)  sections 219F to 219K of the Customs Act 1901 had not been repealed; and

                             (ii)  references in section 12L of the Australian Federal Police Act 1979 to general offences, class 1 general offences or class 2 general offences were to be construed as if limited to offences against the law of the Australian Capital Territory.

Criminal Code Act 1995

4  Paragraph 476.2(4)(b) of the Criminal Code

Repeal the paragraph, substitute:

                     (b)  the person does so:

                              (i)  under a warrant issued under the law of the Commonwealth, a State or a Territory; or

                             (ii)  under an emergency authorisation given to the person under Part 3 of the Surveillance Devices Act 2004 or under a law of a State or Territory that makes provision to similar effect; or

                            (iii)  under a tracking device authorisation given to the person under section 39 of that Act;

Customs Act 1901

5  Division 1A of Part XII

Repeal the Division.

6  Transitional and saving provision

Despite the repeal of Division 1A of Part XII of the Customs Act 1901 by item 5 of this Schedule:

                     (a)  any warrant issued under that Division and in force immediately before the day of that repeal remains in force, according to its terms, after that day as if that Division had not been repealed; and

                     (b)  any consent by a Judge of a court created by the Parliament to be nominated by the Minister under subsection 219AA(1) of the Customs Act 1901 , being a consent that is in force immediately before the day of that repeal, is to be treated, with effect from that day, as if it were a consent to be declared by the Minister to be an eligible Judge under subsection 12(3) of the Surveillance Devices Act 2004 ; and

                     (c)  any nomination by the Minister of a Judge of a court created by the Parliament as a Judge who may issue warrants under that Division, being a nomination that was in force immediately before the day of that repeal, is to be treated, with effect from that day, as if it were a nomination of that Judge as an eligible Judge for the purposes of section 12 of the Surveillance Devices Act 2004 ; and

                     (d)  any nomination by the Minister of a person holding an appointment referred to in subsection 219AB(1) of the Customs Act 1901 , being a nomination that was in force immediately before the day of that repeal, is taken, with effect from that day, to be a nomination of that person for the purposes of section 13 of the Surveillance Devices Act 2004 .

Mutual Assistance in Criminal Matters Act 1987

7  At the end of Part II

Add:

13A   Requests by foreign countries for provision of material lawfully obtained

             (1)  If:

                     (a)  a foreign country (the requesting country ) has commenced an investigation into, or proceedings in relation to, a serious offence against the laws of that country; and

                     (b)  that foreign country requests the provision of material relevant to that investigation or those proceedings; and

                     (c)  the Attorney-General is satisfied that the material requested is:

                              (i)  material lawfully obtained by an enforcement agency in Australia; and

                             (ii)  material lawfully in the possession of that enforcement agency;

the Attorney-General may, by writing in accordance with the approved form, authorise the provision of that material to the requesting country.

             (2)  Subsection (1) does not permit the Attorney-General to authorise the provision to the requesting country of material obtained through the use of a surveillance device unless the request relates to an investigation into, or proceedings in relation to, a serious offence against the laws of that country that is punishable by a maximum term of imprisonment of 3 years or more, by imprisonment for life or by the death penalty.

             (3)  An authorisation by the Attorney-General under subsection (1) may include a direction to an authorised officer of the enforcement agency having possession of the material about how the material is to be provided to that foreign country.

             (4)  In authorising the provision of material to a foreign country, the Attorney-General may specify the uses to which that material can be put.

             (5)  In this section:

authorised officer includes a law enforcement officer within the meaning of section 6 of the Surveillance Devices Act 2004 .

enforcement agency includes a law enforcement agency within the meaning of section 6 of the Surveillance Devices Act 2004 .

material lawfully obtained by an enforcement agency in Australia includes:

                     (a)  material obtained from individuals or entities by consent; and

                     (b)  material obtained by warrant or the exercise of a coercive power by a court in Australia for the purposes of a domestic investigation or prosecution;

but does not include material obtained under the Telecommunications (Interception) Act 1979 .

Note:       The heading to section 13 is altered by inserting “ for the taking of evidence or the production of documents ” after “ countries ”.