Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
5327
2004-2005-2006-2007
The Parliament of the
Commonwealth of Australia
THE SENATE
Crimes Legislation Amendment (National
Investigative Powers and Witness Protection) Bill
2006
(Amendments to be moved by Senator Stott Despoja on behalf of the Australian Democrats in
committee of the whole)
(1) Schedule 1, item 1, page 14 (line 3), omit "principal law enforcement officer", substitute
"authorising officer".
[authority for unlawful conduct]
(2) Schedule 1, item 1, page 14 (line 15), omit "controlled conduct", substitute "unlawful
conduct".
[authorising unlawful conduct for law enforcement]
(3) Schedule 1, item 1, page 14 (line 18), omit "controlled conduct", substitute "unlawful
conduct".
[authorising civilian unlawful conduct]
(4) Schedule 1, item 1, page 14 (lines 20 to 24), omit subsection 15GL(3), substitute:
(3) As soon as reasonably practicable after giving an oral authorisation, the authorising
officer for the controlled operation must give to the person authorised to engage in
controlled conduct and the principal law enforcement officer for the controlled operation
a written authorisation stating the matters in subsection (2).
[written authorisation]
(5) Schedule 1, item 1, page 14 (line 34), omit "principal law enforcement officer", substitute
"authorising officer".
[cancelling authorisation]
(6) Schedule 1, item 1, page 15 (lines 2 to 6), omit subsection 15GL(8), substitute:
(8) As soon as reasonably practicable after cancelling an authorisation orally, the authorising
officer for the controlled operation must give written notice of the cancellation to the
person who was authorised to engage in controlled conduct under the authorisation and
the principal law enforcement officer for the controlled operation.
[notification for cancellations]
(7) Schedule 1, item 1, page 49 (lines 4 to 11), omit subsections 15JA(1) and (2), substitute:
1
(1) An authority for an authorised civilian of a kind covered by paragraph 15HZ(2)(h)
remains in force until the end of the period specified in the authority in accordance with
subparagraph 15HZ(2)(h)(iii), unless the authority is cancelled sooner under section
15JB.
(2) An authority for an authorised person (other than an authorised civilian of a kind covered
by paragraph 15HZ(2)(h) expires at the end of the period of 3 months after the day on
which it was given, unless cancelled earlier under section 15JB or, during the period, was
extended by a nominated Tribunal member.
(3) In applying for an extension of a controlled operation authority, the principal law
enforcement officer must provide a progress report in accordance with the time period for
review under subsection (4) to the nominated Tribunal member that outlines:
(a) how effective the operation has been to date in gathering evidence in relation to the
offence and targeted person specified in the original authority that may lead to
prosecution of a person for a specified serious offence;
(b) whether any unlawful conduct authorised and/or carried out in the course of the
controlled operation up until that point was outside the scope of the initial authority
or went beyond what was necessary to conduct an effective controlled operation;
(c) whether any conduct up until that point by an authorised person in the controlled
operation:
(i) seriously endangered the health or safety of any person; or
(ii) caused the death of, or serious injury to, any person; or
(iii) involved the commission of a sexual offence against any person; or
(iv) resulted in loss of, or serious damage to, property (other than illicit goods);
(d) the participation up until that point of any civilians in the controlled operation,
particularly any authorised unlawful conduct engaged in by civilian participants,
and whether the role played by any civilian participant could have been adequately
performed by law enforcement officers.
(4) An extension granted under subsection (2), must only be granted if the certificate has
been reviewed by a nominated Tribunal member during the last 2 weeks of the period of
3 months after the day on which the certificate was given under section 15J.
(5) An extension granted under subsection (2) can extend a controlled operation to a total
duration for the operation of no longer than 6 months.
(6) The nominated Tribunal member must not decide that the certificate should be in force
for 6 months unless he or she is reasonably satisfied:
(a) as to all the matters referred to in paragraphs 15GH (2)(a) to (h); and
(b) that the benefits of the operation to date, with respect to gathering evidence which
may lead to prosecution of a person for a specified serious offence, substantially
outweigh the degree and scope of the unlawful conduct required to obtain that
benefit, particularly where civilian participants are involved, having regard to
factors set out in subsection (3).
(7) The nominated Tribunal member must give written notice of his or her decision on the
review to the principal law enforcement officer in charge of the controlled operation and
the chief officer of the agency to which the certificate relates.
[granting extensions]
(8) Schedule 1, item 1, page 49 (line 15), after "agency", add "except for granting of extensions
as required under 15JA".
[extension limits]
(9) Schedule 1, item 1, page 69 (line 14) to page 70 (line 5), omit subsections 15KI(1) to 15KI(3),
substitute:
(1) A court or tribunal may grant a witness protection certificate provided:
(a) the court or tribunal has undertaken an independent assessment of the asserted need
for witness anonymity and satisfied itself that the need is genuine and well-founded
in the interests of:
(i) national security; or
(ii) the personal safety of the witness;
(b) all other less restrictive protective measures have been considered and found to be
inadequate in the circumstances;
(c) that a court or tribunal may, only in exceptional circumstances, convict (or enter a
judgement against a party) based either solely or to a decisive extent on the
testimony of any anonymous witness.
[witness protection certificates]
(10) Schedule 2, page 86 (line 2) to page 116 (line 13), TO BE OPPOSED.
[delayed notification search warrants]
(11) Schedule 3, item 4, page 117 (line 21), after "section 22," add "must be a sworn federal, state
or territory policy officer and".
[executing officer]
(12) Schedule 3, item 32, page 132 (lines 15 to 23), omit subsection (1), substitute:
(1) An examiner may summon a person to provide evidence to an examination, and the form
of that evidence shall be determined by the person including:
(a) appearing before the examiner at an examination to give evidence;
(b) producing such documents or other things (if any) as are referred to in the
summons;
(c) giving evidence by tendering written statements.
[form of evidence]
(13) Schedule 3, item 39, page 133 (line 28) to page 134 (line 1), TO BE OPPOSED.
[determination of incrimination]
(14) Schedule 3, item 42, page 134 (lines 8 to 13), TO BE OPPOSED.
[use of incriminating evidence]
(15) Schedule 3, item 45, page 134 (lines19 to 24), TO BE OPPOSED.
[reversal of evidential burden]
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