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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES LEGISLATION AMENDMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice,
the Honourable Brendan O'Connor MP)
CRIMES LEGISLATION AMENDMENT BILL 2010
GENERAL OUTLINE
This Bill will improve the ability of the Australian Crime Commission (ACC)
to deal with serious misconduct by staff and make a range of amendments to
strengthen law enforcement agencies' powers to gather, examine and use
evidence to investigate and prevent the commission of criminal offences.
This Bill will amend the Australian Crime Commission Act 2002 (ACC Act),
the Australian Federal Police Act 1979 (AFP Act), the Crimes Act 1914
(Crimes Act) and the Telecommunications (Interception and Access) Act 1979
(TIA Act).
The Bill will:
. align the dismissal powers of the Chief Executive Officer (CEO) of
the ACC to deal with serious misconduct and corruption with those of
the Australian Federal Police (AFP) Commissioner
. provide for more flexible arrangements for appointing ACC examiners
. extend the application of certain search-related provisions in the
Crimes Act that currently only apply to searches conducted under
warrants in relation to premises so they also apply to searches
conducted under a warrant in relation to a person
. insert rules to govern when documents produced under Division 4B,
Part IAA of the Crimes Act must be returned
. streamline and extend provisions governing applications for, and
determination of, orders in relation to things seized and documents
produced under Part IAA of the Crimes Act
. allow the AFP Commissioner to delegate responsibility for dealing
with things seized and documents produced under Part IAA of the
Crimes Act to Commonwealth officers legitimately in possession of
such items
. introduce a new standing power for the AFP to take fingerprints and
photographs of arrested persons when taking them in to custody in
relation to a Commonwealth offence, and
. amend the AFP Act to enable the Commissioner to authorise a payment
in special circumstances that arise out of, or relate to, the
person's engagement as an AFP appointee.
PURPOSE
This Bill will improve the ability of the ACC to deal with serious
misconduct by staff and make a range of amendments to strengthen law
enforcement agencies' powers to gather, examine and use evidence to
investigate and prevent the commission of criminal offences.
This Bill amends the Australian Crime Commission Act 2002, the Australian
Federal Police Act 1979, the Crimes Act 1914 and the Telecommunications
(Interception and Access) Act 1979.
Australian Crime Commission Act amendments
The Bill will make two sets of amendments to the ACC Act. The first will
address operational issues identified by the ACC. The second will respond
to a recommendation made in a report by the Parliamentary Joint Committee
on the ACC. The proposed amendments will:
. align the dismissal powers of the ACC CEO to deal with serious
misconduct and corruption with those of the AFP Commissioner, and
. provide for more flexible arrangements to appoint examiners.
Schedule 1 will amend the ACC Act and the TIA Act to provide the ACC CEO
with powers mirroring those of the AFP Commissioner to deal with serious
misconduct and corruption. The primary effect of these changes is that the
ACC CEO will be able to make a declaration that a staff member's conduct
amounts to serious misconduct and thereby disapply the Fair Work Act 2009
in relation to the dismissal of that staff member.
Schedule 2 will amend the ACC Act to allow for greater flexibility in the
appointment of examiners. The ACC Act currently only allows the
appointment of full-time examiners. This does not meet the operational
needs of the ACC. The amendments will allow the ACC to utilise part-time
examiners as well as full-time examiners. This will enable the ACC to
approach examinations in a more strategic way, use different examiners for
different purposes depending on the particular type of investigation or
operation, and appoint examiners in different regions of Australia.
Crimes Act amendments
The Bill will make a range of amendments to improve the operation of search
and arrest related provisions in Part IAA of the Crimes Act.
Part 1 of Schedule 3 will extend the application of certain search-related
provisions in the Crimes Act that currently only apply to searches
conducted under warrants in relation to premises so they also apply to
searches conducted under a warrant in relation to a person. These
amendments will help police deal more effectively with electronic
equipment, such as laptop computers and smartphones, located during
searches under a warrant in relation to a person.
Part 2 of Schedule 3 will make three sets of amendments to Part IAA of the
Crimes Act. The first set of amendments will insert rules about when
documents produced under Division 4B must be returned to the person who
produced them or to the owner. The second set of amendments will
streamline and extend provisions governing applications for, and
determination of, various orders in relation to things seized and documents
produced. The final amendment will allow the AFP Commissioner to delegate
responsibility for functions related to returning things seized and
documents produced to a Commonwealth officer if he or she is satisfied on
reasonable grounds that the officer is able to properly exercise the
relevant powers, functions or duties.
Part 3 of Schedule 3 will amend the Crimes Act to provide police with a
standing power to take fingerprints and photographs of arrested persons.
This amendment will assist police to confirm the identity of arrested
persons, prove matters relating to identity in court proceedings and
maintain accurate records of arrests.
Australian Federal Police Act amendments
Schedule 4 will amend the AFP Act to enable the Commissioner to authorise a
payment in special circumstances that arise out of, or relate to, a
person's engagement as an AFP appointee. This will bring the AFP into line
with other Commonwealth agencies with respect to making payments to
employees and other persons in special circumstances. It will also avoid
the problems currently encountered with delays in obtaining approval for ex-
gratia payments.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
AD(JR) Act Administrative Decisions (Judicial Review) Act
1977
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
APS Australian Public Service
APSC Australian Public Service Commission
Commissioner Commissioner of the Australian Federal Police
Crimes Act Crimes Act 1914
Criminal Code Criminal Code Act 1995
FMA Act Financial Management and Accountability Act 1997
IGC-ACC Inter-Governmental Committee on the Australian Crime
Commission
FWA Fair Work Act 2009
PJC-ACC Parliamentary Joint Committee on the Australian Crime
Commission
PJC-ACLEI Parliamentary Joint Committee on the Australian Commission
for Law Enforcement Integrity
PS Act Public Service Act 1999
TIA Act Telecommunications (Interception and Access)
Act 1979
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Crimes Legislation Amendment Act 2010.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
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 - Amendments relating to ACC dismissal powers
GENERAL OUTLINE
The staff of the ACC deal with highly sensitive and classified information
and the consequences of corruption or misconduct are very serious.
Under section 29 of the PS Act, the ACC CEO has the power to dismiss
employees for serious misconduct or corruption. Section 29 allows the ACC
CEO (as an agency head) to dismiss a member of the staff of the ACC under
one of the following grounds:
. the employee is excess to the requirements of the agency
. the employee lacks, or has lost, an essential qualification for
performing his or her duties
. non-performance, or unsatisfactory performance, of duties
. inability to perform duties because of physical or mental incapacity
. failure to satisfactorily complete an entry-level training course
. failure to meet certain conditions (for example, health or security
clearance requirements)
. breach of the Code of Conduct (this would include serious misconduct
or corruption), or
. any other grounds prescribed by the regulations (no other grounds are
currently prescribed).
In its report on the ACC Annual Report of 2007-08, the PJC-ACC recommended
'that the Australian Government review existing arrangements for the
suspension and dismissal of Commonwealth law enforcement agency employees
believed on reasonable grounds to have engaged in serious misconduct or
corruption, and that the Government take action as appropriate, bearing in
mind the need to respect the rights of employees.' This followed a similar
recommendation by the PJC-ACLEI in its report on law enforcement integrity
models.
The PJC-ACC noted the dismissal power available to the AFP and stated that
'it is of concern to the committee that ACC employees suspected of serious
misconduct or corruption remain within the organisation and may seek to
jeopardise investigations, thereby potentially compromising the security of
the ACC's operations.'
Under section 28 of the AFP Act, the Commissioner may at any time, by
notice in writing, terminate the employment of an AFP employee. The
Commissioner also has the power under section 40K of the AFP Act to declare
that the employment of an AFP employee was terminated because the
Commissioner believes on reasonable grounds that the employee's behaviour
amounts to serious misconduct and is having, or is likely to have, a
damaging effect on the morale or reputation of the AFP. Where a
declaration has been made under section 40K, the FW Act (with the limited
exception of some provisions) no longer applies to that dismissal.
However, judicial review of the declaration can be sought.
This Schedule will amend the ACC Act and the TIA Act to provide the ACC CEO
with powers mirroring those of the Commissioner to deal with serious
misconduct and corruption. The primary effect of these changes will be
that the ACC CEO will be able to make a declaration that the conduct of a
member of the staff of the ACC, who has been dismissed under section 29 of
the PS Act, amounts to serious misconduct. The declaration will disapply
the FW Act in relation to the dismissal of that staff member.
Part 1 - Amendment of the Australian Crime Commission Act 2002
Australian Crime Commission Act 2002
Item 1
Subsection 4(1) of the ACC Act sets out the definitions that are relevant
to the operation of the ACC Act. This item will insert a new definition of
serious misconduct into the ACC Act. Serious misconduct, by a member of
staff referred to in subsection 47(1) of the ACC Act, will have the meaning
given by subsection 47A(8). A member of staff referred to in
subsection 47(1) is a member of staff who is employed under the PS Act.
Subsection 47A will define serious misconduct as:
. corruption, a serious abuse of power, or a serious dereliction of
duty, by the staff member, or
. any other seriously reprehensible act or behaviour by the staff
member, whether or not acting, or purporting to act, in the course of
his or her duties as such a staff member.
This definition is the same as the definition of serious misconduct in the
AFP Act.
Item 2
This item will amend the ACC Act to provide the ACC CEO with the power to
issue a declaration that a member of staff who has been dismissed has
engaged in serious misconduct or corruption. The effect of the declaration
will be to remove the operation of the FW Act in relation to that
particular dismissal.
Section 47A
Subsection 47A(1) will set out the circumstances in which the new section
47A will apply. It will be modelled on section 40K of the AFP Act.
Section 47A will only apply where the CEO has terminated the employment of
a member of staff referred to in subsection 47(1) of the ACC Act. The
reference to termination by the CEO includes any termination by an SES
member of the staff of the ACC who has been delegated the power to
terminate a person's employment by the ACC CEO under section 59A of the ACC
Act.
Staff referred to in subsection 47(1) are staff employed under the PS Act.
While the definition of member of the staff of the ACC in subsection 4(1)
of the ACC Act includes other categories of staff, such as seconded staff
or consultants, the power in section 47A will not apply to these other
members of staff. It will only apply to staff employed under the PS Act.
Where the ACC CEO wishes to dismiss other members of the staff of the ACC
who are not employed by the ACC under the PS Act, the ACC CEO will continue
to rely on his or her current powers to remove that person from the
organisation. For example, where the ACC CEO believes on reasonable
grounds that a person seconded to work for the ACC has engaged in serious
misconduct, the ACC CEO will continue to be able to remove that person from
the ACC by ending their secondment.
To terminate a member of staff employed under subsection 47(1) of the ACC
Act, the CEO will need to rely on the power of dismissal in section 29 of
the PS Act. New section 47A will not provide an additional power of
termination. It will rely on a termination having taken place under
section 29 of the PS Act. This will be reflected in the note at the end of
the subsection which refers to a termination under section 29 of the PS
Act.
Subsection 47A(1) will state that for the section to apply, the CEO must
believe on reasonable grounds that the staff member's conduct (the staff
member who has been dismissed):
. amounts to serious misconduct (a definition of serious misconduct
will be inserted in subsection 47A(8)), and
. is having, or is likely to have, a damaging effect on
- the professional self-respect or morale of some or all of the
members of staff of the ACC, or
- the reputation of the ACC with the public, or with an Australian or
foreign Government or law enforcement agency.
The belief that the CEO will be required to have for this section to apply
mirrors the belief that the Commissioner must have before exercising his or
her power to make a declaration under section 40K of the AFP Act. It
limits the scope of the CEO's power to the most serious cases of misconduct
or corruption. It is not designed to replace the usual public service
processes for dealing with misconduct, but only to be utilised in
circumstances where the normal processes are not appropriate given the
nature of the misconduct or corruption.
Subsection 47A(2) will provide the CEO with the power to make a declaration
where he or she is of the belief outlined in subsection 47A(1) (as
described above). The declaration will need to relate to the staff member
who has been dismissed and be made in accordance with the requirements
which will be set out in subsection 47A(5).
Subsection 47A(3) will set out the effect of the declaration made by the
CEO under subsection 47A(2). The making of the declaration will mean that
the FW Act (except for Part 3-1 and Division 9 of Part 3-3) will no longer
apply to either the termination of that staff member's employment, or the
making of the declaration itself. This will mean that the unfair dismissal
provisions and notice of termination provisions, among others, will no
longer apply to the termination of the staff member's employment. Part 3-1
deals with general protections such as workplace rights. Division 9 of
Part 3-3 deals with payments relating to periods of industrial action.
These parts of the FW Act are also preserved when a declaration is made
under the AFP Act.
Although the FW Act will not operate in relation to that person's
termination and the making of the declaration, the making of the
declaration will be a reviewable decision under the AD(JR) Act.
Subsection 47A(4) will specify that subsection 47A(3), which disapplies the
majority of the FW Act operates despite section 8 of the PS Act. Section 8
of the PS Act states that the PS Act has effect subject to the FW Act.
However, the effect of subsection 47A(3) will be to exempt a termination of
employment under section 29 of the PS Act from the operation of the FW Act
where a declaration is made under subsection 47A(2). This subsection will
make it clear that the FW Act does not apply despite the operation of
section 8 of the PS Act.
Subsection 47A(5) will set out the requirements that must be met by the
ACC CEO when making a declaration under subsection 47A(3). The declaration
must be made in writing. This will provide certainty as to the terms of
the declaration. The declaration will also have to be made within 24 hours
of the CEO's decision to terminate the staff member's employment. The 24
hours will start at the moment the ACC CEO (or his or her delegate)
authorises the termination. This will also provide certainty as to the
review rights available to a person after they have been dismissed. It
would be unjust to allow the CEO to make such a declaration weeks after a
dismissal has taken place to remove review rights of which the staff member
may have already availed himself or herself.
Subsection 47A(6) will require the CEO to give a copy of the declaration to
the staff member. This is another safeguard to ensure the staff member is
made aware of the declaration that has been made in respect of his or her
dismissal and the effect it will have on the availability of seeking review
of the decision to terminate his or her employment. Section 28A of the
Acts Interpretation Act 1901 states that for the purposes of any Act that
requires or permits a document to be served on a person, whether the
expression 'serve', 'give' or 'send' or any other expression is used, then,
unless the contrary intention appears, the document may be served on a
natural person by delivering it to the person personally by leaving it at,
or by sending it by pre-paid post to, the address of the place of residence
or business of the person last known to the person serving the document.
The Electronic Transactions Act 1999 also provides that a requirement to
produce a document (such as will be required under this subsection) can be
met by doing so in electronic form.
Subsection 47A(7) will require the ACC CEO to report to both the Minister
and the members of the ACC Board (as defined in subsection 7B(2) of the ACC
Act) each time a declaration is issued under new subsection 47A(2).
The report will be required to include:
. the grounds for why the CEO believed the staff member's conduct
amounted to serious misconduct and is having a damaging effect on the
ACC
. the nature and findings of any investigation of, or inquiry into, the
staff member's conduct or behaviour, and
. details of any other matter the CEO considers relevant.
This will require the ACC CEO to provide an appropriate level of detail to
enable both the Minister and the ACC Board to assess the use of the power
by the ACC. This will ensure there is appropriate oversight of the use of
the power by the ACC.
Subsection 47A(8) will insert a definition of 'serious misconduct' for the
purposes of this section. The definition will mirror the definition of
serious misconduct in section 40K of the AFP Act. It will mean:
. corruption, a serious abuse of power, or a serious dereliction of
duty, or
. any other seriously reprehensible act or behaviour by a member of the
staff of the ACC, whether or not acting, or purporting to act, in the
course of his or her duties as a member of the staff of the ACC.
This definition will limit the power to make a declaration to the most
serious abuse of power, position or the most serious cases of misconduct or
corruption.
Item 3
This item will provide that the amendments made by this part only apply in
relation to a decision to terminate a member of the staff of the ACC where
that decision is made after the commencement of this item. This will
prevent the power to make a declaration from being used in relation to a
termination that took place prior to the power to make a declaration being
in operation.
Item 4
Section 59A provides that the ACC CEO is able to delegate in writing any or
all of his or her powers to an SES employee or acting SES employee.
This item will amend section 59A to limit the operation of the delegation
making power to any or all powers except a power or function under section
47A. Section 47A, as inserted by item 2, will allow the ACC CEO to make a
declaration stating that an employee was terminated because the CEO
believed on reasonable grounds that the employee's behaviour amounts to
serious misconduct and is having, or is likely to have, a damaging effect
on the morale or reputation of the ACC. This item will amend section 59A
to prevent the CEO from delegating the power to make a declaration under
section 47A.
Part 2 - Amendment of the Telecommunications (Interception and Access) Act
1979
Telecommunications (Interception and Access Act) 1979
Items 5 and 6
Section 63 of the TIA Act places a general prohibition on the use of
lawfully intercepted information ('lawfully intercepted information' is
defined in section 6E of the TIA Act). For law enforcement agencies, the
main exception to this prohibition lies in section 67, which allows an
interception agency to make use of lawfully intercepted information for a
'permitted purpose', which is defined in section 5 of the TIA Act.
The current definition of permitted purpose includes specific provisions
relating to the AFP. The TIA Act currently provides the AFP with the power
to use lawfully intercepted information in:
. the investigation of, or an inquiry into, alleged misbehaviour, or
alleged improper conduct, of an officer of the Commonwealth, being an
investigation or inquiry under a law of the Commonwealth or by a
person in the person's capacity as an officer of the Commonwealth
. a report on such an investigation or inquiry, or
. the making by a person of a decision under the Australian Federal
Police Act 1979 in relation to the termination of the employment of
an AFP employee.
Although the TIA Act currently allows the ACC to use lawfully intercepted
information in any 'proceeding' in so far as it relates to the alleged
misbehaviour or alleged improper conduct of an officer of the Commonwealth,
it does not extend to use in internal investigations by the ACC of alleged
improper conduct or use in supporting action taken following such an
investigation.
The PJC-ACC, in its report on the ACC Annual Report of 2007-08, noted the
dismissal power available to the AFP and stated that 'it is of concern to
the committee that ACC employees suspected of serious misconduct or
corruption remain within the organisation and may seek to jeopardise
investigations, thereby potentially compromising the security of the ACC's
operations.
Items 5 and 6 give the ACC the power to use lawfully intercepted
information in the same way as the AFP in investigating misconduct and
making termination decisions. The items do not provide a power to
intercept, only a power to use information that has already been lawfully
intercepted.
Item 5
This item will amend the definition of permitted purpose in the TIA Act to
align the powers of the ACC to use lawfully intercepted material with those
available to the AFP when dealing with members of staff who are suspected
of having engaged in misbehaviour or improper conduct. The amendments will
ensure that the ACC is able to use and disclose information lawfully
obtained under the TIA Act where appropriate and necessary in dealing with
members of staff who have engaged in serious misconduct or corruption.
Section 67 of the TIA Act provides that an agency can only use lawfully
intercepted information and interception warrant information for a
permitted purpose. In relation to the ACC, permitted purpose is currently
defined as a purpose connected with an ACC investigation or operation or a
report on such an investigation or operation.
This item will amend the definition of permitted purpose in the case of the
ACC to also include:
. an investigation of, or an inquiry into, alleged misbehaviour, or
alleged improper conduct, of a member of the staff referred to in
subsection 47(1) of the ACC Act
. a report on such an investigation or inquiry
. the making by a person of a decision in relation to the employment of
such a staff member, or
. a review (whether by way of appeal or otherwise) of such a decision.
This will allow the ACC CEO to use lawfully intercepted information in
investigating any alleged misbehaviour or alleged improper conduct of a
member of the staff of the ACC (employed under subsection 47(1)). It will
also allow the ACC CEO to use that information to support a decision taken
in relation to that staff member upon completion of the investigation
including terminating the staff member. It will also allow the ACC CEO to
use the lawfully intercepted information in making a declaration under new
subsection 47A(2), which will be inserted by item 2.
Item 6
A further exception to the general prohibition on the use of lawfully
intercepted information is set out in section 68 of the TIA Act. Whereas
section 67 focuses on the internal uses of lawfully intercepted information
by an agency, section 68 allows one agency to disclose to another agency
lawfully intercepted information that is relevant to particular functions
of the receiving agency.
This item will insert new paragraph (ca) into section 68. This new
paragraph will allow the chief officer of an agency to communicate lawfully
intercepted information to the CEO of the ACC if the information relates,
or appears to relate, to an act or omission by a member of the staff of the
ACC that may give rise to a decision by the CEO of the ACC to terminate the
employment of that member of staff.
This item is not limited to members of the staff of the ACC who are
employed under subsection 47(1) (public service employees) because the
agency which originally obtained the information may not be in a position
to know how that member of staff is employed by the ACC. However, once the
information has been given to the ACC, the ACC will only be able to use
that information to investigate a member of staff who is employed under the
PS Act and not other members of staff (due to the effect of the provisions
that will be inserted by item 5).
The amendments made by items 5 and 6 support the amendments made by item 2
to align the powers of the ACC CEO with those of the AFP Commissioner when
dealing with serious misconduct and corruption. Due to the seriousness of
the criminal activity being investigated by that organisation, some
misconduct could lead to potentially life threatening consequences. It is
important that the ACC is in a position to be able to properly investigate
any allegations of misbehaviour, including utilising intercepted
information where appropriate.
Item 7
This item will clarify that the amendments made to the TIA Act by items 5
and 6 will apply to any information obtained under that Act regardless of
whether the information was obtained before or after the commencement of
the items.
Part 3 - Review of amendments
Item 8
This item will require the Minister to cause an independent review of the
operation of new section 47A as soon as possible after it has been in
operation for two years. This will enable a full examination of the
continuing need for the amendments.
Schedule 2 - Amendments relating to appointment of ACC examiners
GENERAL OUTLINE
This Schedule amends the ACC Act to allow for greater flexibility in the
appointment of examiners. Currently, the provisions in the ACC Act which
govern the appointment of examiners provide that:
. an examiner must be appointed by the Governor-General following
consultation with the IGC-ACC
. a person can only be appointed as an examiner if they have been
enrolled as a legal practitioner for at least five years
. each appointment cannot be for longer than five years, but a person
can only serve as an examiner for a total of ten years, and
. the appointment of a person as an examiner is on a full-time basis.
The ACC Act also deals with:
. remuneration of examiners
. potential conflicts of interest
. employment outside a person's duties as an examiner, and
. termination of employment.
The requirements of the ACC Act do not meet the current operational needs
of the ACC. In particular, the requirement that examiners be appointed on
a full-time basis adversely affects the ACC's ability to effectively manage
and conduct examinations.
The amendments will allow the ACC with to utilise full-time examiners as
well as part-time examiners. This will allow the ACC to:
. approach examinations in a more strategic way (for example, by
drawing from a pool of examiners as operational needs require)
. use different examiners for different purposes depending on the
particular type of investigation or operation (for example, utilising
different skills depending on the person being examined), and
. appoint examiners in different regions of Australia.
The flexibility which this model provides will help the ACC attract people
with the right capabilities to the position of examiner which will better
support the work of the ACC and its partner agencies.
Australian Crime Commission Act 2002
Item 1
Subsection 46A(3) of the ACC Act currently provides that the CEO may make
arrangements as to the examiner who is able to exercise his or her powers
under the ACC Act in relation to a special ACC operation/investigation.
The inclusion of 'special' in this subsection does not accurately reflect
all the functions an examiner can perform under the ACC Act. For example,
sections 19A and 20 of the ACC Act provide examiners powers in relation to
operations and investigations that have not been determined by the
ACC Board to be 'special'.
This item will omit 'a special' and insert 'an' into subsection 46A(3).
The effect of this amendment will be to enable the CEO to make arrangements
with part-time and full-time examiners in relation to any ACC
operation/investigation. This will allow for consideration of the special
circumstances of each investigation or operation and the flexible and
strategic allocation of part-time and full-time examiners. This will also
enable the CEO to meet his or her obligation under subsection 46A(4) (as
inserted by item 3) to notify the Minister of all such arrangements which
are made with examiners.
Item 2
This item will clarify that the amendment made by item 1 does not affect an
arrangement made by the CEO in relation to a special ACC
operation/investigation under subsection 46A(3) of the ACC Act before the
commencement of this item.
Item 3
This item will insert a new subsection into section 46A that requires the
CEO to notify the Minister in writing of each arrangement that the CEO has
made with examiners under subsection 46A(3). The CEO will have to report
as soon as practicable after 31 June and 31 December on each arrangement
made in the previous six months, as well as the nature of the
ACC operation/investigation to which each arrangement relates.
The effect of this amendment will be to require the CEO to keep the
Minister informed of the work engaged in by the ACC examiners in each six
month period.
Item 4
This item will require the first report made under section 46A(4) (as
inserted by item 3) to relate to arrangements made between the commencement
of this item and the first 30 June or 31 December after that time.
The effect of this item will be to provide for timely notification of
arrangements on the first occurrence of 30 June or 31 December after the
commencement of this item, despite the initial period most likely being
less than six months.
Item 5
Subsection 46B(4) of the ACC Act provides that an examiner may be appointed
for a period of up to five years and that the sum of an examiner's periods
of appointment and reappointment must not exceed 10 years.
This item will repeal the sentence in subsection 46B(4) which provides for
a 10 year limit on the total of a person's periods of appointment as an
examiner.
The effect of this amendment will be to allow for examiners to be
reappointed without any limitation on the total time of appointment.
However, the five year limit on each appointment will still be in force.
This amendment will be consistent with the move to a flexible appointment
model. It will also enable the ACC to take advantage of the experience
that examiners can build up over a long period of time.
Item 6
This item will clarify that the amendment made by item 5 applies to the
appointment of an examiner after the commencement of this item, whether or
not the person has previously been appointed as an examiner.
Therefore, even if an examiner is currently or has been previously
appointed, the 10 year limit will not apply to that examiner if he or she
is reappointed after the commencement of this item.
Item 7
This item will insert a supplementary note to subsection 46B(4) to clarify
that examiners are eligible for reappointment.
The effect of this amendment will be to clarify that references to the
appointment of examiners in this subsection includes a reference to their
reappointment, consistent with subsection 33(4A) of the Acts Interpretation
Act 1901. It may otherwise have been unclear that examiners could be
reappointed after item 5 takes effect, as only the sentence repealed by
item 5 made explicit reference to the reappointment of examiners.
Item 8
Subsection 46B(5) of the ACC Act currently provides that an examiner is to
be appointed on a full-time basis. This item repeals subsection 46B(5) and
inserts a new subsection which provides that examiners may be appointed on
a full-time basis or on a part-time basis.
The requirement that examiners be appointed only on a full-time basis
adversely affects the ACC's ability to effectively manage and conduct
examinations. Allowing the appointment of part-time examiners will enable
the ACC to approach examinations in a more strategic way, for example, by
allowing the ACC to draw from a pool of examiners as operational needs
require. It will also enable the ACC to use different examiners for
different purposes depending on the particular type of investigation or
operation being conducted. For example, this will give the ACC the ability
to use examiners with particular skills in operations or investigations
where such skills are necessary. This amendment will also allow examiners
to be appointed in different regions of Australia.
Items 9 - 11
Section 46D of the ACC Act provides that examiners have recreation leave
entitlements as determined by the Remuneration Tribunal, as well additional
leave of absence entitlements (other than recreational leave) as determined
by the CEO in writing.
Items 9 and 10
Items 9 and 10 will omit 'an examiner' and insert 'a full-time examiner'
into subsections 46D(1) and (2).
The effect of these amendments will be to preserve the status quo in
relation to leave of absence entitlements for full-time examiners.
Item 11
This item will insert a new subsection which entitles part-time examiners
to leave of absence on terms and conditions determined in writing by the
CEO.
Items 12 and 13
Section 46G prohibits examiners from engaging in paid employment outside
the duties of their office without the Minister's approval.
These items retain the current provisions on outside paid employment in
respect of full-time examiners and add provisions which address outside
paid employment in respect of part-time examiners.
Item 12
This item will omit 'An examiner' and insert 'A full-time examiner' in
section 46G. It will also insert the heading 'Full-time examiners' before
the new subsection 46G(1).
The effect of this amendment will be to restrict the application of the
prohibition against engaging in outside paid employment currently contained
in section 46G to full-time examiners only. Due to the full-time nature of
their appointment, it is not appropriate for full-time examiners to engage
in outside employment without the Minister's approval.
Item 13
This item will insert new subsections 46G(2) and (3) into the ACC Act,
which relate to part-time examiners engaging in outside employment.
Subsection 46G(2) prohibits part-time examiners from engaging in outside
employment that, in the CEO's opinion, conflicts or may conflict with the
proper performance of their duties as examiners.
The effect of this amendment is that part-time examiners are permitted to
engage in outside employment, except where the CEO believes that it
conflicts or may conflict with their office. The CEO may be of the
opinion that a conflict exists where, for example, a part-time examiner
holds a concurrent appointment as a director on the board of a company at
the same time as the ACC is conducting an investigation or operation into
criminal infiltration of that company. The CEO may also believe that a
conflict exists, or may exist, where a part-time examiner's outside
employment occupies their time in such a way and to such an extent that it
substantially impacts on their availability to properly perform their
duties as an examiner.
Subsection 46G(3) allows the CEO, by written notice, to require part-time
examiners to provide details about their employment within a specified
time. It also provides that part-time examiners must comply with this
notice.
The effect of this amendment is that the CEO will be able require part-time
examiners to provide information on their outside paid employment before
engaging them in particular work and for the purpose of determining whether
any conflict exists for the purpose of subsection 46G(2).
Items 14 - 17
Section 46H of the ACC Act provides for the termination of the appointment
of an examiner by the Governor-General in prescribed circumstances.
Subsection 46H(2) prescribes circumstances in which the Governor-General
must terminate the appointment of an examiner, including bankruptcy,
absence without leave, failure to comply with the ACC Act and engaging in
outside employment without proper approval.
These items will preserve the effect of the current grounds for termination
in relation to full-time examiners whilst adding new grounds in relation to
part-time examiners.
Item 14
This item will insert '(being a full-time examiner)' after 'the examiner'
in paragraph 46H(2)(b). This amendment will preserve the effect of the
current provision for the termination of a full-time examiner's appointment
on the ground of absence, other than on leave granted under section 46D,
whilst excluding its application to part-time examiners.
Items 15
This item will insert '(being a full-time examiner)' after 'the examiner'
in paragraph 46H(2)(d). This amendment will preserve the effect of the
current provision for the termination of a full-time examiner's appointment
on the ground of engaging in paid employment outside their office without
the Minister's approval, whilst excluding its application to part-time
examiners.
Item 16
This item will omit 'office.' and insert 'office (see subsection 46G(1));
or' in paragraph 46H(2)(d).
Paragraph 46H(2)(d) requires the Governor-General to terminate the
appointment of an examiner who engages in paid employment outside their
office. The effect of this amendment will be to include a reference to the
subsection from which the prohibition against a full-time examiner engaging
in outside paid employment originates.
Item 17
Subsection 46G(2) (to be inserted by item 13) will prohibit a part-time
examiner from engaging in any paid employment, that in the CEO's opinion,
conflicts or may conflict with the proper performance of the examiner's
duties. Subsection 46G(3) (to be inserted by item 13) will require part-
time examiners to give the CEO details of their employment upon receiving
written notice to do so.
This item will insert subsection 46H(2)(e), which prescribes as grounds for
termination the failure to comply with subsections 46G(2) and (3).
Item 18
This item will clarify that the amendments made by items 5 to 17 do not
affect the validity of an appointment of an examiner made before the
commencement of this item.
Schedule 3 - Amendment of the Crimes Act 1914
GENERAL OUTLINE
This Schedule will amend the Crimes Act to:
. extend the application of certain search-related provisions that
currently only apply to searches conducted under warrants in relation
to premises so they also apply to searches conducted under warrants
in relation to a person (Part 1)
. insert rules to govern when documents produced under Division 4B of
Part IAA must be returned (Part 2)
. streamline and extend provisions governing applications for, and
determination of, orders in relation to things seized and documents
produced under Part IAA (Part 2)
. allow the Commissioner to delegate responsibility for dealing with
things seized and documents produced under Part IAA to Commonwealth
officers legitimately in possession of such items (Part 2), and
. provide police with a standing power to take fingerprints and
photographs of arrested persons (Part 3).
Under Division 2 of Part IAA, a search warrant may be issued in relation to
a premises or a person. However, some of the provisions governing how
searches under warrant are to be conducted are restricted in application to
searches of premises, particularly those setting out how electronic
equipment may be dealt with. Part 1 of this Schedule will extend some of
these provisions to help police deal more effectively with electronic
equipment located during a search under a warrant in relation to a person.
Division 4C of Part IAA sets out how things seized and documents produced
under that Part may be used or shared and the return obligations that apply
to seized things. Part 2 of this Schedule will insert provisions to apply
the same return requirements to documents produced under Division 4B as
currently apply to things seized under Divisions 2 and 4. It will also
allow orders to prevent things or documents being used in terrorist acts,
terrorism offences or serious offences to be made regardless of which
Division of Part IAA a thing or document was obtained under. Provisions
governing orders in relation to things seized and documents produced will
be streamlined and certain safeguards extended. An additional delegation
provision will also be inserted by Part 2 so that responsibility for
dealing with things seized and documents produced under Part IAA can be
delegated to a Commonwealth officer who has legitimate possession of an
item.
Part 3 of this Schedule will introduce a new standing power for police to
take fingerprints and photographs of arrested persons when taking them in
to custody in relation to a Commonwealth offence. This amendment will
provide police with a fast and reliable way of confirming the identity of
suspects and improve processes for establishing and maintaining accurate
records of arrests, which will in turn ensure that records of arrest are
admissible in court proceedings.
Part 1 - Amendments relating to warrants issued in relation to persons
Crimes Act 1914
Division 2, Part IAA of the Crimes Act governs the issue and execution of
search warrants under that Act. Under section 3E, a warrant may be issued
to search premises or to search a person. A warrant may be issued
authorising an ordinary search or a frisk search of a person if the issuing
officer is satisfied that there are reasonable grounds for suspecting that
the person has in his or her possession (or will have, within the next
72 hours) any evidential material.
A warrant in force in relation to a person authorises the executing officer
or a constable assisting to search the person as specified in the warrant,
and things found in the possession of the person and any recently used
conveyance, for things of the kind specified in the warrant.
Some of the provisions governing how searches under warrant are to be
conducted are restricted in application to searches of premises,
particularly those setting out how electronic equipment may be dealt with.
This Part will extend some of these provisions to help police deal more
effectively with electronic equipment located during a search under a
warrant in relation to a person. Specifically, the amendments will:
. enable a thing found during a search under a warrant in relation to a
person to be moved to another place for examination and processing if
certain conditions are met, or if the person consents in writing
. clarify how electronic equipment may be operated if it has been moved
to another location for examination or processing
. provide for orders to be made requiring a specified person to provide
information and assistance with accessing or copying data from a
computer or data storage device moved or seized under a warrant in
relation to a person
. require that if data held at a premises is accessed by operating
electronic equipment found during a search under a warrant in
relation to a person, the executing officer must notify the occupier
of that premises, and
. provide that the Commonwealth must pay reasonable compensation if:
- damage is caused to equipment, data recorded on the equipment or
data to which access was obtained from the operation of the
equipment, or
- damage or corruption to programs associated with the use of the
equipment, or with the use of data recorded on the equipment or
data to which access was obtained from the operation of the
equipment
because insufficient care was exercised in selecting the person who was
to operate the equipment or in the operation of the equipment, where it
has been moved or seized under a warrant in relation to a person.
Warrants issued in relation to premises may also authorise a search of a
person who is at or near the premises when the warrant is executed if the
executing officer or a constable assisting suspects on reasonable grounds
that the person has any evidential material or seizable items in his or her
possession. The amendments in this Part do not affect how these searches
may be conducted. Searches of persons under a warrant issued in relation
to premises will continue to operate as part of a search of the relevant
premises.
Items 1 to 9
Section 3K governs the use of equipment to examine and process things found
at warrant premises, including when they may be moved to another place for
examination or processing. These items will amend section 3K to enable a
thing found during a search under a warrant in relation to a person to be
moved to another place for examination and processing if certain conditions
are met, or if the person consents in writing. They will also apply the
same procedural requirements, including those relating to time limits, when
a thing found during a search under a warrant in relation to a person is
moved as when a thing is moved from warrant premises.
Item 1
This item will amend subsection 3K(1) to clarify that it continues to apply
only to searches under a warrant in relation to premises.
Items 2 to 4
Subsection 3K(2) allows a thing to be moved from warrant premises to
another place for examination or processing to determine whether it may be
seized if:
. it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another
place and the availability of expert assistance, and
. the executing officer or constable assisting suspects on reasonable
grounds that it contains or constitutes evidential material, or
. the occupier consents in writing.
These items will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved to another place
for examination or processing under equivalent circumstances. It is now
possible for a person to possess large amounts of data on equipment that
can be carried in, for example, their pockets, backpack or handbag. This
could include data held on a laptop computer, smartphone or USB drive.
These amendments will allow things to be taken to another place for
examination if the person referred to in paragraph 2(b) or (c) consents or
if the other conditions outlined above are met. If a thing is to be moved
with consent under a warrant in relation to a person, written consent of
the person in relation to whom the warrant is in force will be required.
If a thing is to be moved with consent under a warrant in relation to
premises, written consent of the occupier of the premises will be required
as is currently the case.
Items 5 and 6
Subsection 3K(3) requires that where a thing is moved to another place for
examination or processing under subsection 3K(2), the executing officer
must, if practicable:
. inform the occupier of the warrant premises of the address of the
place and the time at which the examination or processing will be
carried out, and
. allow the occupier or his or her representative to be present during
the examination or processing.
Exceptions to these general obligations apply under subsection 3K(3AA),
where an executing officer need not comply with one or both if he or she
believes on reasonable grounds that to do so might endanger the safety of a
person or prejudice an investigation or prosecution.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. These items will amend subsection 3K(3) so that an
executing officer has the same obligations to the person in relation to
whom a warrant was issued as an officer currently has to the occupier of
warrant premises.
Items 7 and 8
Subsections 3K(3A) to 3K(3D) govern how long a thing may be moved for
examination or processing under subsection 3K(2), including the process for
extensions to the initial time allowed. Under subsection 3K(3A), a thing
may be moved for an initial period of no longer than 14 days. Under
subsection 3K(3B), an executing officer may apply to an issuing officer for
one or more extensions if he or she believes on reasonable grounds that the
thing cannot be examined or processed within the available time. Under
subsection 3K(3C), an executing officer must give notice of the application
to the occupier of the warrant premises and the occupier is entitled to be
heard in relation to the application. Subsection 3K(3D) provides that a
single extension cannot exceed seven days.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. These items will amend subsection 3K(3C) to make the same
rights available to the person in relation to whom a warrant was issued as
currently exist for the occupier of warrant premises. The provisions in
subsections 3K(3A), (3B) and (3D) will apply by virtue of amendments to
subsection 3K(2) that will be made by items 2 to 4.
Item 9
This item will amend subsection 3K(4) to clarify that it continues to apply
only to searches under a warrant in relation to premises.
Item 10
Section 3L governs the use of electronic equipment at warrant premises.
This item will amend subsection 3L(1) to clarify that section 3L continues
to apply only to searches under a warrant in relation to premises.
Items 11 and 12
Section 3LAA governs what an executing officer or constable assisting may
do with electronic equipment moved from warrant premises to another place
for examination or processing under subsection 3K(2). Briefly, this
section provides that:
. an executing officer or constable assisting may operate the equipment
to access data (subsection (1))
. if the executing officer or constable assisting suspects on
reasonable grounds that any data accessed constitutes evidential
material, he or she may copy any or all of the data to a disk, tape
or similar device (subsection (2))
. the Commissioner must remove or destroy data copied under subsection
3LAA(2) if it is no longer needed for a purpose specified in
section 3ZQU or for other judicial or administrative review
proceedings (subsection (3))
. the equipment may be seized or the data put into documentary form and
the documents seized if the executing officer or constable assisting
finds, after operating the equipment, that evidential material is
accessible (subsection (4)), and
. an executing officer or constable assisting may only seize equipment
under paragraph 3LAA(4)(a) if it would be impractical to copy the
data from the equipment or put it in documentary form, or if
possession of the equipment by the occupier could constitute an
offence (subsection(5)).
As items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing, these items will amend subsections 3LAA(1) and (5) so that
section 3LAA applies in the same way to equipment moved in such
circumstances.
Items 13 to 15
Section 3LA allows a constable to apply to a magistrate for an order
requiring a specified person to provide information or assistance with
accessing or copying data from a computer or data storage device, and for a
magistrate to grant such an order. A magistrate may make such an order if
he or she is satisfied that there are reasonable grounds for suspecting
that evidential material is held in, or is accessible from, a computer or
data storage device that:
. is on warrant premises
. has been moved from warrant premises under subsection 3K(2) and is at
another place for examination or processing, or
. has been seized under Division 2 and is no longer on warrant
premises.
The magistrate must also be satisfied that the specified person falls
within one of the categories in paragraph 3LA(2)(b) and has relevant
knowledge of the computer, device or computer network of which it forms a
part or measures applied to protect data held in, or accessible from, the
computer or device.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. Item 13 will amend subparagraph 3LA(1)(a)(ii) to enable an
order to also be made in relation to a computer or data storage device
found during a search under a warrant in relation to a person that has been
moved under subsection 3K(2) as amended.
Section 3ZQV allows police to operate electronic equipment seized under
Part IAA, including where it has been seized under a warrant in relation to
a person, to determine whether data that is evidential material is held on,
or accessible from, the equipment and obtain access to such data. However,
police are currently unable to seek an assistance order under section 3LA
in relation to equipment seized under a warrant in relation to a person if
they are unable to operate it as a result of data encryption or password
protection. Item 14 will amend subparagraph 3LA(1)(a)(iii) to enable an
order to be made in such circumstances.
These amendments will help police to properly examine electronic equipment
moved or seized under a warrant in relation to a person by providing access
to a mechanism for assistance already available in relation to equipment
moved or seized from warrant premises.
Item 15 will repeal part of a note to subsection 3LA(3) which clarified
that a further order under section 3LA made in relation to a thing after it
has been seized and removed from warrant premises may specify conditions
relating to the provision of the information or assistance, as this is
already clear from subsection 3LA(4). Paragraphs 3LA(4)(a) and (b) provide
that if the computer or data storage device is not on warrant premises, the
order must specify the period within which and the place at which the
person must provide information or assistance. Paragraph 3LA(4)(c)
provides that the order must specify any other conditions the magistrate
determines should apply to the requirement on the person to provide the
information or assistance.
As a computer or data storage device moved or seized under a warrant in
relation to a person would not be on warrant premises, the requirements in
subsection 3LA(4) will apply to all orders under section 3LA made in
relation to such items.
Items 16 to 18
Section 3LB requires that where electronic equipment is operated to access
data not held on warrant premises, the occupier of the other premises must,
if it is practicable to do so, be notified as soon as possible that the
data was accessed. The section applies if data is accessed under
subsection 3L(1), which allows equipment at a warrant premises to be
operated at the premises, or subsection 3LAA(1), which allows equipment
moved to another place under subsection 3K(2) to be operated.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. Item 11 will amend subsection 3LAA(1) so that section 3LAA
will also apply to electronic equipment found during a search under a
warrant in relation to a person that has been moved for examination or
processing under subsection 3K(2) as amended. These items will amend
section 3LB as a consequence of the amendments to be made by items 2 to 4
and item 11. In particular, they will insert notification requirements
where data held on premises is accessed as a result of equipment moved from
a search under a warrant in relation to a person being operated
under subsection 3LAA(1).
Item 16 will repeal existing paragraph 3LB(1)(a) and replace it with new
paragraphs 3LB(1)(a) and (aa). If the relevant warrant was issued in
relation to premises, notification will be required if the data accessed is
held on premises other than that for which the warrant was issued. If the
relevant warrant was issued in relation to a person, notification will be
required if the data accessed is held on any premises. For example, a
person in relation to whom a warrant is in force might be carrying a laptop
computer that is networked to other computers at their place of work. If
the computer was removed from the person for examination under
subsection 3K(2) and data held at their workplace was then accessed under
subsection 3LAA(1), the notification requirements would apply.
Item 17 will amend paragraph 3LB(1)(b) so that the requirement is to notify
the occupier of the premises on which the data is held, instead of the
occupier of the 'other premises', as for warrants in relation to persons,
there is no initial premises. Similarly, item 18 will amend
subsection 3LB(2) so that the notification must include sufficient
information to allow the occupier of the premises on which the data is
held, instead of the occupier of the 'other premises', to contact the
executing officer.
Item 19
Section 3M provides for the payment of compensation for damage caused to
electronic equipment, data or programs and corruption of programs resulting
from equipment being operated under section 3K, 3L or 3LAA. Compensation
is payable if the damage or corruption occurred because insufficient care
was exercised in either selecting the person who was to operate the
equipment or in operating the equipment.
Subsection 3M(2) provides that the Commonwealth must pay such reasonable
compensation as the Commonwealth and the owner of the equipment or user of
the data or programs agree on. If agreement cannot be reached,
subsection 3M(3) provides that the owner or user may institute proceedings
for such reasonable amount of compensation as a court of competent
jurisdiction determines. Subsection 3M(4) currently provides that in
making such a determination, regard is to be had to whether the occupier of
the warrant premises, or his or her employees or agents, if they were
available at the time, provided any appropriate warning or guidance on the
operation of the equipment. This provision was included to minimise
compensation in cases where software has been deliberately programmed to
cause damage if not accessed in a particular manner or where someone fails
to mitigate damage by providing warning or guidance where they are able to
do so.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. Item 11 will amend subsection 3LAA(1) so that section 3LAA
will also apply to electronic equipment found during a search under a
warrant in relation to a person that has been moved for examination or
processing under subsection 3K(2) as amended.
This item will repeal and replace subsection 3M(4). The effect will be to
provide that if equipment was operated under a warrant issued in relation
to a person, regard is to be given to whether that person or his or her
agents, if they were available at the time, provided any appropriate
warning or guidance on the operation of the equipment. If it was operated
under a warrant issued in relation to a premises, the obligation will
remain the same as it is currently.
References to 'under a warrant' in new subsection 3M(4) are intended to
capture the operation of equipment under section 3LAA both while the
relevant warrant is in force and afterwards, provided there is proper legal
authority for the operation of the equipment. Under section 3K, things may
be moved for examination or processing for an initial period of up
to 14 days, with provision for one or more extensions of up to seven days.
Search warrants issued under Division 2, Part IAA of the Crimes Act may
remain in force for up to seven days. This means that in some
circumstances, equipment moved under section 3K may be operated under
section 3LAA after the warrant has ceased to be in force.
Items 20 and 21
Section 3ZQV clarifies what may be done with electronic equipment seized
under Part IAA or moved from warrant premises under section 3K for
examination or processing. Broadly, section 3ZQV:
. clarifies that equipment may be operated at any location after it has
been seized or moved, for the purpose of determining whether data
held on or accessible from the electronic equipment is evidential
material, and obtain access to such data (subsection (2))
. allows that data held on the equipment or accessible from it may be
accessed even if it was not held on, or accessible from, the
equipment at the time it was seized or moved (subsection (3))
. clarifies that the equipment may be operated before or after the
expiry of the relevant warrant (subsection (4)), and
. makes it clear that the section does not limit the operation of other
relevant provisions in Part IAA (subsection (5)).
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. Item 20 will amend subsection 3ZQV(1) so that section 3ZQV
also applies to equipment moved in such circumstances. Item 21 will make a
consequential amendment to an explanatory note that accompanies
subsection 3ZQV(5).
Item 22
Section 3ZQW provides for the payment of compensation for damage caused to
electronic equipment, data or programs and corruption of programs resulting
from equipment being operated under section 3ZQV (which is outlined at
items 20 and 21 above). Compensation is payable if the damage or
corruption occurred because insufficient care was exercised in either
selecting the person who was to operate the equipment or in operating the
equipment.
Subsection 3ZQW(2) provides that the Commonwealth must pay such reasonable
compensation as the Commonwealth and the owner of the equipment or user of
the data or programs agree on. If agreement cannot be reached,
subsection 3ZQW(3) provides that the owner or user may institute
proceedings for such reasonable amount of compensation as a court of
competent jurisdiction determines. Subsection 3ZQW(4) currently requires
that if the equipment was seized or moved from premises, regard is to be
had in making such a determination to whether the occupier of the warrant
premises, or his or her employees or agents, if they were available at the
time, provided any appropriate warning or guidance on the operation of the
equipment. This subsection was based on section 3M, which was included to
minimise compensation in cases where software has been deliberately
programmed to cause damage if not accessed in a particular manner or where
someone fails to mitigate damage by providing warning or guidance where
they are able to do so.
Items 2 to 4 will amend subsection 3K(2) to allow a thing found during a
search under a warrant in relation to a person to be moved for examination
or processing. Item 20 will amend subsection 3ZQV(1) so that section 3ZQV
also applies to equipment moved in such circumstances. As a consequence of
these changes, and to properly capture warnings or guidance offered or
withheld where a thing is seized other than from premises under Part IAA,
this item will repeal and replace subsection 3ZQW(4).
New subsection 3ZQW(4) will provide that in determining the amount of
compensation payable, regard is to be had to whether any appropriate
warning or guidance was provided on the operation of the equipment before
it was operated under section 3ZQV. The subsection is drafted broadly to
capture anyone capable of providing such warning or guidance before
electronic equipment is operated under section 3ZQV whether it was:
. moved for examination or processing under section 3K(2) under a
warrant in relation to premises or a person
. seized under a Division 2, Part IAA search warrant
. seized under Division 3 of Part IAA, which provides powers to stop
and search conveyances
. seized under Division 3A of Part IAA, which provides powers to stop,
question and search persons in relation to terrorist acts, or
. seized under Division 4 of Part IAA, which covers arrest and related
matters.
Electronic equipment may be operated under section 3ZQV having been seized
under any of the above provisions, many of which cover seizure not just
from premises, but from persons. It is important for subsection 3ZQW(4) to
match the scope of circumstances under which equipment may be operated
under section 3ZQV.
Item 23
Sub-item 23(1) is an application provision that provides that all
amendments in this Schedule, other than those made by items 14 and 22, will
only apply to warrants issued in relation to a person after the Schedule
commences. This will mean that if a warrant is issued before commencement
but executed after commencement, the amendments made by items 1 to 13
and 15 to 21 will not apply.
Sub-item 23(2) is an application provision that provides that the amendment
made by item 14 of this Schedule will apply in relation to any thing seized
under Division 2 of Part IAA, whether before or after the Schedule
commences. This provision is retrospective in application but does not
create retrospective criminal liability. It provides that an order
requiring a person to provide assistance with a computer or data storage
device may be sought from commencement in relation to a thing seized under
a warrant in relation to a person, regardless of whether the thing was
seized before or after this Schedule commences. This is necessary to allow
police to deal appropriately with evidence that they have lawfully acquired
prior to the commencement of the amendment made by item 14. In the absence
of such a provision, police would be required to separate material seized
pre-amendment and post-amendment, which would impose a considerable and
impractical burden on the storage of evidence.
Sub-item 23(3) is an application provision that provides that the amendment
made by item 22 will apply in relation to applications instituting
compensation proceedings in relation to damage caused to equipment under
section 3ZQV that are made after the Schedule commences. It could create
practical difficulties for courts if this amendment were to apply to
proceedings instituted before commencement but heard after commencement, as
the matters to which the court would be required to have regard would
change while proceedings were on foot.
Part 2 - Amendments relating to retention etc. of things seized and
documents produced
Crimes Act 1914
Part IAA of the Crimes Act contains the search, information gathering,
arrest and related powers available under the Act. Subdivision A,
Division 4C of Part IAA governs the use and sharing of:
. things seized under a search warrant issued under Division 2
. things seized under powers in Division 3 to stop and search
conveyances without a warrant
. things seized under powers in Division 3A to stop and search persons
in relation to terrorist acts without a warrant
. things seized under arrest related search powers in Division 4, and
. documents produced under a request or notice issued under
Division 4B.
Subdivisions B, C and D govern the return of things seized under
Divisions 2 and 4, 3 and 3A respectively. There are currently no
provisions dealing with the return of documents produced under Division 4B.
This Part will make three key changes to Division 4C. The first set of
amendments will insert rules about when documents produced under
Division 4B must be returned to the person who produced them or to the
owner. The return requirements will be the same as those that currently
apply in relation to things seized under Divisions 2 or 4.
The second set of amendments will streamline and extend provisions
governing applications for, and determination of, various orders in
relation to things seized and documents produced. This will include
allowing orders to prevent things or documents being used in terrorist
acts, terrorism offences or serious offences to be sought and made
regardless of which Division of Part IAA a thing or document was obtained
under. These amendments will also require certain things of the
Commissioner and a magistrate determining an application for an order to
ensure that the rights of persons with an interest in a thing or document
for which an order is sought are protected. This will extend obligations
that currently exist only in relation to certain orders or on a more
limited basis so that they apply to all orders in relation to things seized
and documents produced.
The final amendment will be an additional delegation power for the
Commissioner. While the return obligations and ability to apply for orders
rest with the Commissioner, section 3ZW allows the Commissioner to delegate
to a constable any or all of his or her powers, functions or duties under
Part IAA. An amendment to this section will enable the Commissioner to
delegate to a Commonwealth officer responsibilities under Division 4C
relating to returning things seized and documents produced. This is
consistent with the use and sharing provisions in section 3ZQU, which allow
seized material and documents produced to be shared with a constable or a
Commonwealth officer for a range of purposes. The Commissioner will only
be able to make this delegation if he or she is satisfied on reasonable
grounds that the officer is able to properly exercise the relevant powers,
functions or duties.
Item 24
This item will insert a definition of terrorist act in subsection 3(1),
which contains definitions of general application throughout the Crimes
Act. The existing identical definitions currently in section 3UA,
subsection 3ZQM(7) and subsection 3ZQZA(4) will be repealed by items 27, 28
and 38.
Terrorist act will be defined to have the same meaning as in
subsection 100.1(1) of the Criminal Code. This is how the term was defined
under each of the definitions being repealed.
Item 25
This item will replace a reference to section 3ZQZ in the definition of
magistrate in subsection 3C(1) with a reference to section 3ZQZB.
Section 3ZQZ will be repealed by item 34, and orders that may currently be
made by a magistrate under that section will be able to be made under
section 3ZQZB as amended by item 39.
Item 26
Section 3CA provides that the functions of making an order conferred on a
magistrate by particular sections of the Crimes Act are conferred on a
magistrate in a personal capacity and not as a court or a member of a
court. It also sets out the effects of the conferral and provides that the
Governor-General may make arrangements with the head of a State, the
Australian Capital Territory, the Northern Territory or Norfolk Island for
the performance by magistrates of the function of making those orders.
This item will replace references to section 3ZQZ throughout section 3CA
with references to section 3ZQZB. Section 3ZQZ will be repealed by
item 34, and orders that may currently be made by a magistrate under that
section will be able to be made under section 3ZQZB as amended by item 39.
This item also clarifies that the function of making an order currently
available under section 3ZQZB and retained in that section as amended is
conferred on a magistrate in a personal capacity.
Item 27
This item will repeal the definition of terrorist act in section 3UA.
Item 24 will insert an identical definition in subsection 3(1), which
contains definitions of general application throughout the Crimes Act.
Item 28
This item will repeal the definition of terrorist act in
subsection 3ZQM(7). Item 24 will insert an identical definition in
subsection 3(1), which contains definitions of general application
throughout the Crimes Act.
Item 29
This Part will amend Division 4C of Part IAA to streamline provisions
governing orders that may be made in relation to things seized under
Part IAA. Current Subdivisions B, C and D will be consolidated into a
single Subdivision. This item will repeal the current heading for
Subdivision B and replace it with a heading that reflects the amended
content of that Subdivision.
Item 30
Section 3ZQX governs when a thing seized under Division 2 or 4 must to be
returned to the person from whom it was seized, or to the owner of the
thing. Subsection 3ZQX(1) places a general obligation on the Commissioner
to take reasonable steps to return a thing when he or she is satisfied that
it is not required, or is no longer required, for a purpose set out in
section 3ZQU, or for other judicial or administrative review proceedings.
Subsection 3ZQX(2) outlines exceptions to the general obligation to take
steps to return a thing.
Under existing subection 3ZQZB(4) a magistrate may make certain orders in
relation to things seized under Division 3A of Part IAA, which provides
powers to stop, question and search persons in relation to terrorist acts.
Such orders are available to prevent a seized thing from having to be
returned to the owner if a magistrate is satisfied that there are
reasonable grounds to suspect that if it were, it would be likely to be
used in the commission of a terrorist act, terrorism offence or serious
offence. Item 39 will repeal existing section 3ZQZB and replace it with a
new section to cover all orders in relation to things and documents
produced under Part IAA. This will allow orders currently only available
under subsection 3ZQZB(4) in relation to things seized under Division 3A to
be made in relation to any thing seized or document produced under
Part IAA.
As a consequence of amendments made by item 39, this item will insert a new
exception to the general obligation to return a thing seized under
Division 2 or 4 into subsection 3ZQX(2). New paragraph 3ZQX(2)(aa) will
provide that the Commissioner does not need to take reasonable steps to
return a thing if:
. the thing may be retained, sold, destroyed or otherwise disposed of,
or is forfeited to the Commonwealth, because of an order under
subsection 3ZQZB(3), or
. the Commissioner has applied for such an order and the application
has not been determined.
New subsection 3ZQZB(3) is outlined in detail in the description of item 39
below.
Item 31
Sections 3ZQX, 3ZQY, 3ZQZ, 3ZQZA and 3ZQZB in Division 4C of Part IAA set
out when material seized under different provisions in that Part must be
returned, but do not currently address the return of documents produced
under Division 4B.
Division 4B allows an authorised AFP officer to:
. require information or documents relevant to a matter that relates to
the doing of a terrorist act from an operator of an aircraft or ship
. issue a person with a notice to produce documents that are relevant
to, and that will assist, the investigation of a serious terrorism
offence, and
. apply to a Federal Magistrate for a notice requiring a person to
produce documents that are relevant to, and that will assist, the
investigation of a serious offence.
The document must relate to one of the matters set out in section 3ZQP.
Among the matters listed are determining whether an account is held by a
specified person with a specified institution and determining whether
assets have been transferred to or from a specified person between
specified dates.
Authorised AFP officer is defined in section 3ZQL to mean the Commissioner,
a Deputy Commissioner or a senior executive AFP employee who is both a
member of the AFP and authorised in writing by the Commissioner for the
purpose of the definition. Serious terrorism offence and serious offence
are both defined in subsection 3C(1).
This item will insert new provisions to apply the same return requirements
to documents produced under Division 4B as currently apply to things seized
under a Division 2 search warrant or arrest related search and seizure
powers in Division 4.
Subsection 3ZQX(3)
This subsection will place a general obligation on the Commissioner to take
reasonable steps to return a document once he or she is satisfied that it
is not required, or is no longer required, for a purpose referred to in
section 3ZQU, or for other judicial or administrative review proceedings.
It will require the document to be returned to the person who produced the
document under Division 4B or to the owner, if the person who produced it
is not entitled to possess it. This is consistent with current provisions
relating to things seized under Divisions 2 and 4.
Section 3ZQU provides that originals and copies of documents produced under
Division 4B of Part IAA and things seized under that Part may be used or
shared by constables and Commonwealth officers for a range of purposes.
Among the purposes for which something may used are preventing,
investigating or prosecuting an offence, proceedings for the forfeiture of
the thing under a law of the Commonwealth and proceedings for Commonwealth
control orders or preventative detention orders.
The reference to judicial or administrative review proceedings, consistent
with current provisions of this Part, is important as documents obtained
under Division 4B may be needed for proceedings outside the scope of uses
listed in section 3ZQU. For example, where a challenge to a notice to
produce is brought before a court it may be necessary to provide documents
produced as evidence in those proceedings as proof that they were properly
obtained.
Subsection 3ZQX(4))
This subsection will outline exceptions to the general obligation to take
steps to return a document imposed under subsection 3ZQX(3).
Under paragraph 3ZQX(4)(a), the Commissioner will not need to take
reasonable steps to return a document produced under Division 4B if:
. the document may be retained, destroyed or otherwise disposed of, or
is forfeited to the Commonwealth, because of an order under
subsection 3ZQZB(3), or
. the Commissioner has applied for such an order and the application
has not been determined.
New subsection 3ZQZB(3) will be inserted by item 39, and is outlined in
detail in the description of that item below.
Under paragraphs 3ZQX(4)(b) and (c), the Commissioner will not need to take
reasonable steps to return a document produced under Division 4B if:
. it may otherwise be retained, destroyed or disposed of under a law,
or an order of a court or tribunal, of the Commonwealth, or a State
or Territory, or
. it is forfeited or forfeitable to the Commonwealth, or is the subject
of a dispute as to ownership.
These are the same exceptions that apply to the general obligation to
return a thing seized under Division 2 or 4.
Item 32
This Part will amend Division 4C of Part IAA to streamline provisions
governing orders that may be made in relation to things seized under
Part IAA. Current Subdivisions B, C and D will be consolidated into a
single Subdivision. Accordingly, this item will repeal the heading for
Subdivision C.
Item 33
Section 3ZQY governs when a thing seized under Division 3 must to be
returned to the person from whom it was seized, or to the owner of the
thing if that person is not entitled to possess it. Subsection 3ZQY(1)
places a general obligation on the Commissioner to take reasonable steps to
return a thing when he or she is satisfied that it is not required, or is
no longer required, for a purpose set out in section 3ZQU, or for other
judicial or administrative review proceedings.
Subsection 3ZQY(2) outlines exceptions to the general obligation to take
steps to return a thing imposed under subsection 3ZQY(1).
Paragraph 3ZQY(2)(b) provides that the Commissioner does not need to take
reasonable steps to return a thing if the thing may be retained because of
an order under section 3ZQZ. Item 34 will repeal section 3ZQZ, as orders
currently available under that section will now be made under new
section 3ZQZB, inserted by item 39.
Item 39 will repeal existing section 3ZQZB and replace it with a new
section to cover all orders in relation to things and documents produced
under Part IAA. New subsection 3ZQZB(3) will allow orders currently only
available under subsection 3ZQZB(4) in relation to things seized under
Division 3A to be made in relation to any thing seized or document produced
under Part IAA.
As a consequence of amendments made by item 39, this item will repeal and
replace paragraph 3ZQY(2)(b). New paragraph 3ZQY(2)(b) will provide that
the Commissioner does not need to take reasonable steps to return a thing
if:
. the thing may be retained, sold, destroyed or otherwise disposed of,
or is forfeited to the Commonwealth, because of an order under
subsection 3ZQZB(2) or (3), or
. the Commissioner has applied for such an order and the application
has not been determined.
New section 3ZQZB is outlined in detail in the description of item 39
below.
Item 34
This item will repeal section 3ZQZ, as orders currently available under
that section will now be made under new section 3ZQZB, inserted by item 39.
Item 35
This Part will amend Division 4C of Part IAA to streamline provisions
governing orders that may be made in relation to things seized under
Part IAA. Current Subdivisions B, C and D will be consolidated into a
single Subdivision. Accordingly, this item will repeal the heading for
Subdivision D.
Item 36
Section 3ZQZA governs when a thing seized under Division 3A must to be
returned. Subsection 3ZQZA(1) places a general obligation on the
Commissioner to take reasonable steps to return a thing if the owner
requests its return. Subsection 3ZQZA(2) outlines exceptions to the
general obligation to take steps to return a thing imposed under
subsection 3ZQZA(1). It provides that the Commissioner does not need to
take reasonable steps to return a thing if he or she:
. suspects on reasonable grounds that if the thing is returned to the
owner, the thing is likely to be used by the owner or another person
in the commission of a terrorist act, a terrorism offence or a
serious offence, or
. is satisfied that the thing is being used, or is required to be used,
for a purpose mentioned in section 3ZQU or for other judicial or
administrative review proceedings.
Despite these general exceptions, subsection 3ZQZA(3) requires the
Commissioner to either take reasonable steps to return the thing or to
apply to a magistrate for an order under section 3ZQZB if the owner
requests the return of a thing within a certain period. Orders under
section 3ZQZB may currently only be sought if subsection 3ZQZA(3) applies.
This item will insert three new exceptions to the general obligation to
return a thing seized under Division 3A into subsection 3ZQZA(2).
Paragraph 3ZQZA(2)(c) will provide that the Commissioner does not need to
take reasonable steps to return a thing if:
. the thing may be retained, sold, destroyed or otherwise disposed of,
or is forfeited to the Commonwealth, because of an order under
subsection 3ZQZB(2) or (3), or
. the Commissioner has applied for such an order and the application
has not been determined.
Section 3ZQZB will be repealed and replaced by item 39 so that it covers
all orders in relation to things and documents produced under Part IAA.
New section 3ZQZB is outlined in detail in the description of item 39
below.
Paragraphs 3ZQZA(2)(d) and (e) will provide that the Commissioner does not
need to take reasonable steps to return a thing if:
. it may otherwise be retained, destroyed or disposed of under a law, or
an order of a court or tribunal, of the Commonwealth or a State or
Territory, or
. it is forfeited or forfeitable to the Commonwealth, or is the subject
of a dispute as to ownership.
These exceptions are consistent with those that apply to the general
obligation to return a thing seized under Division 2, 3 or 4 and those
that will apply to documents produced under Division 4B under
amendments made by item 31.
This item, with item 39, will also allow the Commissioner to apply for an
order under section 3ZQZB, as amended by item 39, whether or not the owner
of a thing seized under Division 3A has requested its return within the
requisite period. This will enable orders to be sought so that a thing can
be finally dealt with instead of being retained indefinitely where such a
request has not been made but it would not be appropriate to return the
thing to the owner.
Item 37
This item will clarify the existing application of subsection 3ZQZA(3) by
providing that the obligations under that subsection apply despite the
general exceptions to the obligation to return a thing seized under
Division 3A set out in subsection 3ZQZA(2).
Item 38
This item will repeal subsection 3ZQZA(4), which provides a definition of
terrorist act for the purposes of section 3ZQZA. Item 24 will insert an
identical definition in subsection 3(1), which contains definitions of
general application throughout the Crimes Act.
Item 39
Subsection 3ZQZB(1) currently allows the Commissioner to apply to a
magistrate for an order in relation to a thing seized under Division 3A
of Part IAA, which provides powers to stop, question and search persons in
relation to terrorist acts, if subsection 3ZQZA(3) applies.
Under subsection 3ZQZB(4), if satisfied that there are reasonable grounds
to suspect that, if the thing were returned to the owner, it would be
likely to be used in the commission of a terrorist act, terrorism offence
or serious offence, the magistrate may make an order:
. that the thing be retained for a specified period
. that the thing is forfeited to the Commonwealth
. that the thing is to be sold and the proceeds given to the owner, or
. that the thing is to be otherwise sold or disposed of.
There is currently no mechanism to apply for such an order in relation to a
thing seized under Division 2, 3 or 4 or a document produced under
Division 4B. However, things may be seized or produced under those
Divisions for which such an order would be appropriate. Items that could
be used in a terrorism offence or a serious offence are more likely to be
seized under Division 2 powers to search under warrant than the limited
stop and search powers available under Division 3A. To address this gap,
and to streamline provisions relating to orders in Division 4C, this item
will repeal existing section 3ZQZB and replace it with a new section to
cover the making of orders in relation to any thing seized or document
produced under Part IAA.
New subsection 3ZQZB(1) will allow a magistrate, on application by the
Commissioner, to make an order as outlined in subsection (2) or (3) in
relation to a thing seized or a document produced under Part IAA.
Amendments to subsection 3C(1) and section 3CA by items 25 and 26 will make
it clear that a function of making an order under section 3ZQZB is
conferred on a magistrate in a personal capacity and not as a court or a
member of a court.
Orders for retention for a purpose mentioned in section 3ZQU or certain
other proceedings
New subsection 3ZQZB(2) will allow an order to be made for a thing to be
retained for a specified period if the magistrate is satisfied that the
thing is being used, or is required to be used, for a purpose mentioned in
section 3ZQU or for other judicial or administrative review proceedings.
These orders will only be relevant to things seized under Division 3 or 3A.
This is because, under subsection 3ZQX(1), the Commissioner is only
required to return a thing seized under Division 2 or 4 if he or she is
satisfied that it is not required, or is no longer required, for a purpose
mentioned in section 3ZQU or for other judicial or administrative review
proceedings. Item 31 will insert an equivalent provision that will apply
to documents produced under Division 4B. As Divisions 3 and 3A provide
powers to stop, search and seize material from conveyances or persons
without a warrant and outside the context of an arrest, additional
restrictions apply to the retention of things seized under those Divisions.
Section 3ZQU allows things seized under Part IAA and documents produced
under Division 4B to be used and shared by constables and Commonwealth
officers for a range of purposes. Among the purposes for which something
may be used are preventing, investigating or prosecuting an offence,
proceedings for the forfeiture of the thing under a law of the Commonwealth
and proceedings for Commonwealth control orders or preventative detention
orders. The reference to judicial or administrative review proceedings is
necessary as things seized may sometimes be needed for judicial or
administrative review proceedings outside the scope of uses listed in
section 3ZQU. For example, a thing seized during the execution of a
warrant may be needed in proceedings if there is a challenge to the
execution of the warrant brought before a court. In that instance, it may
be necessary to produce the things seized as evidence in the proceedings as
proof that they were properly seized under the warrant.
Orders to prevent use in a terrorist act, terrorism offence or serious
offence
New subsections 3ZQZB(3) and (4) will allow certain orders to be made if
the magistrate is satisfied that there are reasonable grounds to suspect
that, if the thing or document were returned to the owner, the person from
whom the thing was seized or the person who produced the document under
Division 4B, it would be likely to be used in the commission of a terrorist
act, terrorism offence or serious offence. For a thing seized an order may
be made:
. that the thing be retained for a specified period
. that the thing is forfeited to the Commonwealth
. that the thing be sold and the proceeds given to the owner or sold in
some other way, or
. the thing is to be destroyed or otherwise disposed of.
These orders are consistent with those that may currently be made only in
relation to things seized under Division 3A. An example of where a seized
thing might be appropriately sold is where laboratory equipment that was to
be used in making explosives for a terrorist act has been seized. While it
may not be appropriate to return the equipment to the person from whom it
was seized, it would be able to be sold to a reputable laboratory and put
to legitimate use.
For a document seized under Part IAA or produced under Division 4B, an
order may be made:
. that the document be retained for a specified period
. that the document is forfeited to the Commonwealth, or
. the document is to be destroyed or otherwise disposed of.
This is because it would not be appropriate or desirable for a document to
be disposed of by being sold.
Safeguards
New subsection 3ZQZB(5) will require that if an application is made for an
order under subsection (2) or (3) and the magistrate is not satisfied of
the relevant matters, he or she must make an order that the thing or
document be returned:
. in the case of a thing seized under Division 2, 3 or 4 -to the person
from whom the thing was seized
. in the case of a document produced under Division 4B - to the person
who produced the document, or
. if the person from whom the thing was seized or who produced the
document is not entitled to possess it - to the owner of the thing or
document.
New subsections 3ZQZB(6) and (7) will require certain things of the
Commissioner and a magistrate determining an application under
section 3ZQZB to ensure that the rights of persons with an interest in a
thing or document for which an order is sought are protected. New
subsection 3ZQZB(6) will require the Commissioner, before making an
application, to:
. take reasonable steps to discover who has an interest in the thing or
document, and
. if it is practicable to do so, to notify each person who the
Commissioner believes to have such an interest of the proposed
application.
New subsection 3ZQZB(7) will require a magistrate to allow a person who has
an interest in the thing or document to appear and be heard in determining
the application. These subsections are based on obligations that currently
exist only in relation to certain orders or on a more limited basis.
Restriction on applications for orders in relation to things seized under
Division 3
New subsection 3ZQZB(8) will provide that an application for an order under
section 3ZQZB may only be made within 60 days of seizure or before the end
of a period previously specified in an order in relation to the thing under
that section. This provision replicates a restriction on the retention of
items seized under Division 3 that currently applies under section 3ZQZ,
which will be repealed by item 34.
Item 40
This item is an application provision that will provide that the changes
made by items 30 to 39 of this Schedule will apply to a thing seized or
document produced under Part IAA, whether before or after the Schedule
commences. This provision is retrospective in application but does not
create retrospective criminal liability. It provides that the amendments
to Division 4C concerning return of documents and orders in relation to
things and documents apply from commencement regardless of when the thing
or document was seized or produced. This is necessary to allow police to
deal appropriately with evidence that they have lawfully acquired prior to
the commencement of these amendments. In the absence of such a provision,
police would be required to separate material seized pre-amendment and post-
amendment, which would impose a considerable and impractical burden on the
storage of evidence.
Item 41
This item will insert numbering to allow a new subsection to be included in
section 3ZW by item 42 below.
Item 42
Section 3ZW provides that the Commissioner may delegate any or all of the
Commissioner's powers, function or duties under Part IAA to a constable.
Constable is defined in subsection 3(1) to include a member or special
member of the AFP or a member of the police force or service of a State or
Territory.
This item will enable the Commissioner to delegate responsibilities under
Division 4C of Part IAA relating to returning things seized and documents
produced to Commonwealth officers. This is consistent with the use and
sharing provisions in section 3ZQU, which allow seized material and
documents produced to be shared with a constable or a Commonwealth officer
for a range of purposes. Commonwealth officer is defined in
subsection 3(1) to mean a person holding office under, or employed by, the
Commonwealth and certain other classes of persons.
The AFP routinely executes search warrants under Part IAA on behalf of
Commonwealth agencies such as Centrelink, the Australian Taxation Office
and the Australian Securities and Investments Commission. Where the AFP is
satisfied that an agency has exhibit handling capacity consistent with
AFP's guidelines, it may allow the agency to take possession of seized
items for the purposes of an investigation. However, at present, the AFP
still retains responsibility for retention and return of those items.
Where another agency is leading an investigation, it is appropriate for an
officer of that agency to be responsible for the retention and return of
things seized or documents produced that are relevant to that
investigation.
The Commissioner will only be able to make this delegation if he or she is
satisfied on reasonable grounds that the officer is able to properly
exercise the relevant powers, functions or duties. This would include
considering whether the relevant agency has procedures in place for
property handling and storage and disposal of exhibits sufficient to meet
relevant obligations under the Crimes Act, and would be subject to the
existence of appropriate administrative arrangements between the agency and
the AFP. 'Reasonable grounds' is an appropriate level of satisfaction as
it reflects a practical and realistic approach to the information likely to
be available to the Commissioner in exercising his or her power of
delegation.
Part 3- Amendment relating to fingerprints and photographs
Crimes Act 1914
Section 3ZJ outlines police powers relating to the taking of identification
material such as fingerprints, photographs, handwriting samples and voice
recordings from persons who are in lawful custody in respect of a
Commonwealth offence.
Currently, subsection 3ZJ(3) provides that a constable who is of the rank
of sergeant or above, or who is in charge of the police station at the
relevant time, can take, or cause another person to take, identification
material if:
. the person consents in writing, or
. the constable believes on reasonable grounds that it is necessary to
do so to:
- establish who the person is, or
- identify the person as the person who committed the offence, or
- provide evidence of, or relating to the offence, or
. the constable suspects on reasonable grounds that the person has
committed another offence and the identification material is to be
taken for the purpose of identifying the person as the person who
committed the other offence or of providing evidence of, or relating
to, the other offence.
The existing provision poses a number of challenges for police in trying to
confirm the identity of arrested persons and keep accurate records of
arrests. The provision does not permit officers to fingerprint or
photograph a person for the purpose of providing an identifying record of
that person's arrest, which may be problematic if the person escapes from
custody or if there is a question about who was arrested (for example,
because the person provides a false name).
This Part will amend subsection 3ZJ(3) to include an additional standing
power for police officers to take fingerprints or photographs, purely as an
adjunct to an arrest. The purpose of this amendment is to provide police
with a fast and practical way to establish the identity of arrested
persons, which will in turn assist police to prove matters relating to
identity in court proceedings and maintain accurate records of arrests.
Item 43
This item will insert a new paragraph into subsection 3ZJ(3) that will
provide police with an additional basis for the taking of identification
material. This item will allow police to take identification material, or
cause identification material to be taken, from a person in lawful custody
if the material is fingerprints or photographs (including video recordings)
of the person and the offence is punishable by imprisonment for a period of
12 months or more.
The purpose of this item is to provide police with a fast and practical way
of confirming the identity of arrested persons in order to improve
processes for establishing and maintaining identifying records of arrests.
This will increase certainty in criminal prosecutions based on fingerprint
or photographic evidence by reducing delays caused by challenges to such
evidence by defendants arguing that there was not a belief on reasonable
grounds that it was necessary to take the fingerprint or photograph at the
time it was taken.
The ability to take fingerprint and photographic records at the time a
person is processed will also assist in maintaining the accuracy of the
criminal records of repeat offenders, thereby ensuring that these records
are admissible in sentencing proceedings.
This item will specify that police may only take fingerprints or
photographs from a person if he or she has been arrested in relation to an
offence which is punishable by imprisonment for a period of 12 months or
more.
The term 'offence' is defined in subsection 3C(1) of the Crimes Act to
include an offence against the law of the Commonwealth, an offence against
a law of a Territory, or a State offence which has a federal aspect. It is
appropriate that the power to take fingerprints and photographs is not
limited to Commonwealth offences, but will also apply in relation to State
and Territory offences within Commonwealth Constitutional power as the
Crimes Act and the AFP Act enable the AFP to investigate and make arrests
for such offences.
The restriction of this provision to offences punishable by imprisonment
for a period of 12 months or more will ensure that fingerprints and
photographs can only be taken in respect of offences which are generally
considered to be serious or indictable offences, and not in relation to
minor offences.
The statement in this item that 'photographs' includes of video recordings
will provide police with flexibility in making identifying records of an
arrests. This approach is also consistent with other references to
'photographs' in the Crimes Act, including in the definition of
'identification material' in subsection 3ZJ(1) and in provisions relating
to the execution of search warrants (section 3J).
This item will not affect existing provisions relating to the taking of
identification material in Division 4, Part IAA of the Crimes Act. The
existing requirements in subsection 3ZJ(3)-that the person must be in
lawful custody, and that the taking of fingerprints or photographs must be
authorised by an officer of the level of sergeant of above-will also apply
to this item.
The proposed amendments would not affect existing provisions in 3ZK of the
Crimes Act, which require police to destroy identification material taken
under this section after 12 months if proceedings have not been instituted
or have been discontinued. The identification material must also be
destroyed as soon as possible if a person is acquitted or is found to have
committed an offence but no conviction is recorded. This provision
protects defendants by ensuring that any identification material taken at
the time of arrest is not kept indefinitely and is destroyed if a person is
not charged with an offence.
Item 44
This item is an application provision that provides that the amendment made
by this Part will apply to any person who is taken into lawful custody in
respect of an offence that is punishable by imprisonment for a period of 12
months or more after the Part commences.
Schedule 4 - Amendments relating to special payments to AFP appointees
GENERAL OUTLINE
This Schedule will amend the AFP Act to enable the Commissioner to
authorise a payment in special circumstances that arise out of, or relate
to, the person's engagement as an AFP appointee.
Under section 73 of the PS Act, the Public Service Minister may authorise
payments in special circumstances that arise out of, or relate to,
Commonwealth employment. It is generally accepted that section 73 payments
should be considered only where the matter concerned has some connection
with APS employment. This provision cannot be used to make special
payments to AFP appointees, as they are employed under the AFP Act.
In the absence of a similar provision in the AFP Act, the primary avenue by
which a payment can be made to AFP appointees in special circumstances is
an ex-gratia payment. Ex-gratia payments to AFP appointees require
consultation with, and approval from, the Department of Finance and
Deregulation, the Department of Prime Minister and Cabinet, the Minister
for Home Affairs and Justice and the Prime Minister. This can often take a
considerable amount of time.
An alternative to an ex-gratia payment is seeking an act of grace payment
from the Finance Minister under section 33 of the FMA Act. Act of grace
payments are used where the obligations to the applicant are moral, rather
than legal. These payments are only available where there is no other
viable remedy available to provide redress in the circumstances.
Inserting a special circumstance payment provision into the AFP Act will:
. remove the need to seek ex-gratia payments for AFP appointees in
cases that relate to their employment
. provide the Commissioner with the discretion to expediently grant
payments to AFP appointees in special circumstances, and
. ensure that the AFP has the same capacity to make payments in special
circumstances as other Commonwealth agencies that fall under the
jurisdiction of the PS Act.
Australian Federal Police Act 1979
Item 1
This item will insert a note at the end of subsection 20(2A), which deals
with the remuneration of Deputy Commissioners. The note will advise the
reader of the Commissioner's power to authorise payments in special
circumstances under new section 35A (inserted by item 4).
Item 2
This item will insert a note at the end of subsection 27(1), which deals
with the remuneration of AFP employees. The note will advise the reader of
the Commissioner's power to authorise payments in special circumstances
under new section 35A (inserted by item 4).
Item 3
This item will insert a note at the end of subsection 35(2), which provides
that the Commissioner may determine in writing that a consultant or
independent contractor is an AFP appointee for the purposes of the Act.
The note will advise the reader of the Commissioner's power to authorise
payments in special circumstances under new section 35A (inserted by item
4).
Item 4
This item will insert Division 3A (Payments in special circumstances) after
Division 3 of Part III of the AFP Act. New section 35A will set out the
Commissioner's power to make payments in special circumstances and the
limits and conditions that apply to the exercise of that power.
Subsection 35A(1)
This subsection will allow the Commissioner to authorise a payment to a
person (the payee) where the Commissioner considers it is appropriate to do
so because of special circumstances that relate to, or arise out of:
. the payee's engagement as an AFP appointee, or
. another person's engagement as an AFP appointee.
Under section 4 of the AFP Act, an AFP appointee means:
. a Deputy Commissioner
. an AFP employee engaged under section 24 of the AFP Act
. a special member
. a special protective service officer
. a person engaged to perform duties overseas as an employee of the AFP
. a secondee, or
. a consultant or independent contractor performing services for the
AFP who is determined by the AFP Commissioner to be an appointee.
The potential recipient of a payment under this section could be an AFP
appointee or another person whom the Commissioner considers it appropriate
to make a payment to in the circumstances. For example, where an AFP
appointee is injured in the course of work while deployed overseas, the
Commissioner will be able to authorise a special circumstances payment to
his or her spouse to pay the costs involved in travelling overseas.
Determining whether 'special circumstances' warrant making a payment under
this new section will involve consideration on a case-by-case basis. The
following broad guidelines (provided by the APSC in relation to payments
made under section 73 of the PS Act) may be relevant to the Commissioner's
considerations.
. A special circumstances payment might be made where the particular
circumstances of a case lead to the publicly defensible conclusion
that there is a moral obligation on the Commonwealth to make the
payment.
. Special circumstances payments would not generally be appropriate in
order to establish a scheme of payments to shore up program or
legislative deficiencies. In these circumstances, the expected
solution would be to remedy the program or legislative deficiencies.
. Care must be taken by decision-makers to consider the precedent
effect of authorising a payment, for example whether the payment
might be regarded as extending beyond what might reasonably be
considered to be 'special circumstances'.
. The decision-maker should consider whether there is a more
appropriate avenue for a potential claim. For example, in
circumstances where detriment has been caused by the defective
administration of a Commonwealth agency (other than cases relating to
APS employee entitlements), payments under the scheme for
'Compensation for detriment caused by defective administration' may
be more appropriate.
In accordance with section 44 of the FMA Act, the Commissioner must manage
the affairs of the AFP, including the making of special circumstances
payments, in a way that promotes efficient, effective and ethical use
Commonwealth resources that is not inconsistent with the policies of the
Commonwealth.
Subsection 35A(2)
This subsection will allow the Commissioner to authorise payments of
specific amounts or periodical payments (or both). This is consistent with
payments allowed under subsection 73(2) of the PS Act.
For example, where an AFP appointee was injured in the course of work, the
Commissioner might authorise the payment of a lump sum to cover hospital
expenses or periodic payments in the form of a wage subsidy, or both.
Subsection 35A(3)
This subsection provides that payments may be authorised under the section
even though the payment would not otherwise be authorised by law or
required to meet a legal liability. This will mean that an authorised
payment does not evidence legal liability on the part of the Commonwealth.
For claims involving legal liability on the part of the Commonwealth,
Appendix C of the Attorney-General's Legal Services Directions sets out the
policy for settling claims against the Commonwealth. Monetary claims
covered by the policy are to be settled in accordance with legal principle
and practice, which requires the existence of at least a meaningful
prospect of liability being established.
Subsection 35A(4)
Under subsection 35A(4), the Commissioner will only be able to make an
authorisation under this section if it would involve, or be likely to
involve, a total amount of less than $100,000.
Payments that might exceed $100,000 will have to be referred to the
Minister for Finance and Administration for decision under the general
arrangements for act of grace payments by the Commonwealth under section 33
of the FMA Act.
Subsection 35A(5)
Subsection 35A(5) will state that the conditions may be attached to
payments under this section. If the condition is breached the payment will
be able to be recovered by the Commonwealth in a court of competent
jurisdiction.
For example, the Commissioner might authorise a payment to the family of an
AFP appointee who dies in the course of work, with the condition that a
specified sum be used to fund the future education of the children.
The note to subsection 35A(5) clarifies that payments made under these
provisions will be required to be made out of the AFP's annual
appropriation.
Item 5
This item will insert a note at the end of subsection 40E(1), which
provides that the Commissioner may appoint a person as a special member of
the AFP on such terms and conditions as the Commissioner determines in
writing. The note will advise the reader of the Commissioner's power to
authorise payments in special circumstances under new section 35A (inserted
by item 4).
Item 6
This item will insert a note at the end of section 40EC, which provides
that the Commissioner may appoint a person as a special protective service
officer of the AFP on such terms and conditions as the Commissioner
determines in writing. The note will advise the reader of the
Commissioner's power to authorise payments in special circumstances under
new section 35A (inserted by item 4).
Item 7
This item will insert a note at the end of subsection 69A(2), which deals
the engagement of persons overseas to perform duties overseas as employees.
The note will advise the reader of the Commissioner's power to authorise
payments in special circumstances under new section 35A (inserted by item
4).
Items 8 - 10
Section 69C specifies the classes of AFP appointees to whom the
Commissioner may delegate his or her powers and duties under the AFP Act.
These items will amend section 69C to provide that the Commissioner may
delegate to a 'senior executive AFP employee' his or her power to authorise
payments in special circumstances under section 35A, which will be inserted
by item 4. This delegation must be in writing. This mirrors the
delegation power in subsection 78(2) of the PS Act.
The Commissioner may declare an AFP employee to be a 'senior executive AFP
employee' under section 25 of the AFP Act.
Item 11
This item will insert a note into section 69D of the AFP Act (Secondment of
persons to assist the Australian Federal Police), to advise the reader of
the Commissioner's power to authorise payments in special circumstances
under section 35A.
Item 12
This item sets out the application of the new section 35A. The item
clarifies that the Commissioner will have the power to authorise payments
in relation to special circumstances which occurred prior to the
commencement of the Schedule.