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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES)
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice,
the Honourable Brendan O'Connor MP)
LAW AND JUSTICE LEGISLATION AMENDMENT (IDENTITY CRIMES AND OTHER MEASURES)
BILL 2010
GENERAL OUTLINE
The Bill contains amendments of the Criminal Code Act 1995, the Crimes Act
1914, the Privacy Act 1988, the Australian Federal Police Act 1979, the
Director of Public Prosecutions Act 1983, the Judiciary Act 1903 and the
Anti-Money Laundering and Counter-Terrorism Financing Act 2006.
The amendments:
. insert new offences in the Criminal Code directed at dealing in
identification information, possessing identification information and
possession of equipment to make identification documentation (new Part
9.5)
. correct a drafting error in subsection 477.1(5) of the Criminal Code
. repeal section 55D of the Judiciary Act 1903
. include the Victorian Office of Police Integrity in the definition of
'enforcement body' in the Privacy Act 1988
. allow for the delegation of both powers and functions to certain
persons and to provide legal immunity to the Director or a member of
staff carrying out functions and duties under the Director of Public
Prosecutions Act 1983
. streamline the processes for alcohol and other drug testing under the
Australian Federal Police Act 1979 (AFP Act)
. expand the range of conduct for which the Australian Federal Police
Commissioner may make awards under the AFP Act
. improve the operation of the Anti-Money Laundering and Counter-
Terrorism Financing Act 2006, and establish a more consistent approach
to the restrictions placed on the disclosure of sensitive AUSTRAC
information
. reframe the administration of justice offences in Part III of the
Crimes Act 1914 to bring them in line with the Criminal Code.
PURPOSE
The purpose of the Bill is to implement the identity crime offences
recommended by the Model Criminal Law Officers' Committee, which identified
deficiencies in current law applicable to identity crime. The Bill will
include in the Code the three offences recommended by MCLOC, and allow for
victims of identity crime to obtain a certificate which may assist in re-
establishing their credit histories.
The Bill also contains a range of other amendments to clarify and improve
the operation of justice legislation in the Commonwealth.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
NOTES ON CLAUSES
Clause 1: Short Title
This clause provides that when the Bill is enacted, it is to be cited as
the Law and Justice Legislation Amendment (Identity Crime and Other
Measures) Act 2010.
Clause 2: Commencement
This clause sets out when the various parts of the Act are to commence.
The following parts of the Act will commence on the day on which the Act
receives the Royal Assent:
. Sections 1 to 3 and anything in the Act that is not covered by the
table (Item 1 of the table).
The following parts of the Act will commence on the day after this Act
receives the Royal Assent:
. Schedule 1, Part 1 (Item 2 of the table)
. Schedules 2 to 7 (Item 4 of the table)
Item 3 of the table provides that Part 2 of Schedule 1 will commence on the
day after the Act receives the Royal Assent. However, if item 21 of
Schedule 2 to the National Security Legislation Amendment Act 2010
commences on or before that day, the provision will not commence at all.
This is because both Part 2 of Schedule 1 to this Bill and item 21 of
Schedule 2 to the National Security Legislation Amendment Bill propose to
insert a definition of 'de facto partner' into the Dictionary of the
Criminal Code.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by
including amendments under the title of the relevant Act.
Schedule 1 - Criminal Code Act 1995
Division 370 - preliminary
Insertion of definitions
This item inserts three definitions, specific to identity crime offences,
into new Part 9.5 of the Criminal Code.
The term 'deal' in identification information was defined to simplify the
wording of the offences. It encapsulates making, supplying or using any
identification information.
'Identification documentation' has been defined in technology neutral
terms, and to cover the broadest possible range of documents and things
which can be used by a person for the purpose of pretending to be, or
passing themselves off as, another person. It will cover documents, such
as drivers' licences or passports, and 'things,' such as credit cards.
'Identification information' has been defined in technology neutral terms,
and to cover the broadest possible range of identification information.
The definition encompasses and extends beyond financial information to
include biometric data, voice prints, a body corporate name and ABN, and a
series of numbers or letters intended for use as a means of personal
identification.
Division 372 - identity fraud offences
Insertion of an offence of dealing in identification information
This item makes it an offence to make, supply or use identification
information with the intention that a person pass themselves off as another
person for the purpose of committing, or facilitating the commission of, a
Commonwealth indictable offence, punishable by up to five years
imprisonment.
An example of this type of offence is: person A uses the identification
information of a business, such as its trading name, ABN, address and
financial account information to pass themselves off as the business or an
authorised agent or employee of the business, with the intention of
importing a tier 1 prohibited good, such as an anabolic steroid, under the
Customs Act 1901 (the Customs Act). (See sections 233BAA(4))
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. a person made, supplied or used identification information, and
. the person intended that they, or any other person, will use that
identification information to pretend to be, or pass themselves off
as, another person for the purpose of committing, or facilitating the
commission of, a Commonwealth indictable offence.
The prosecution will not be required to prove that a person knew that the
offence they were committing with the identification information is an
indictable offence against a law of the Commonwealth. Absolute liability
will apply to paragraph 372.1(1)(c). The effect of applying absolute
liability to this element would mean that no fault element needs to be
proved and the defence of mistake of fact is not available.
Absolute liability is appropriate and required for this element of the
offence because the circumstance that the further offence being committed
is a Commonwealth indictable offence is a jurisdictional element. A
jurisdictional element of an offence is an element that does not relate to
the substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth, States
or Territories. This is consistent with Commonwealth criminal law policy,
as described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
The dealing in identification information offence will apply even when it
is impossible to commit the Commonwealth indictable offence at the time the
offence is to be committed. In the example above, person A will still have
committed the offence of dealing in identification information under 372.1,
even if it became or becomes impossible to import the tier 1 prohibited
good because, for example, the attempted importation was detected and
stopped by the Australian Customs Service.
It would not be a defence that the 'person' to whom the information relates
consented to the information being made, supplied or used. Person A could
not avoid prosecution by claiming that the business consented to its
identification information being used to purchase and import the prohibited
goods.
A person would not, however, commit this offence by dealing in their own
identification information. It would not be an identity crime offence if
person A used their own identification information to purchase and import a
tier 1 prohibited good, but it would be an offence under subsection
233BAA(4) of the Customs Act. There are, of course, other laws that make
it an offence for a person to make their own identification documents, such
as the forgery and related offences in Part 7.7 of the Criminal Code.
This offence is necessary because existing offences in the Criminal Code,
such as theft, forgery, fraud and credit card skimming, do not adequately
cover the many and emerging types of identity crime.
The dealing in identification information offence departs from the MCLOC
model in two ways. Firstly, it requires that a person deal in
identification information and intend that he or she, or another person,
will pass themselves off as another person for the purpose of committing,
or facilitating the commission of, a Commonwealth indictable offence. The
MCLOC recommended offence merely required that a person deal in
identification information with the intention of committing, or
facilitating the commission of, an indictable offence.
It was not clear from the proposed MCLOC offence that a person needed use
the identification information to pretend to be another person and commit
an identity crime offence. The requirement in the Commonwealth dealing
offence that a person must intend to use the information to pass themselves
off as another person makes it clear that the relevant offence is one of
identity crime, and not simply using identification information in
connection with any indictable offence.
The second difference is that the jurisdictional element in paragraph
372.1(1)(c) will be one of absolute liability. The MCLOC recommended
offence did not require that absolute liability would apply to the fact
that a person intended to commit an indictable offence with the
identification information.
The Commonwealth decided that while the prosecution must prove that the
identity crime offender intended to commit, or facilitate the commission
of, a Commonwealth indict able offence, it should not be required to prove
that a person knew that the offence they were committing with the
identification information is an indictable offence against a law of the
Commonwealth.
Insertion of the offence of possessing identification information
This item makes it an offence to possess identification information with
the intention of using that information to engage in conduct that
constitutes an offence under section 372.1 - dealing in identification
information. This offence will be punishable by up to three years
imprisonment.
This offence will require more than mere possession of another's
identification information. There are many situations in which a person
could innocently be in possession of another person's identification
information - for example, looking after a spouse's, partner's or friend's
wallet while that person is playing sport. This offence will not capture
innocent behaviour. A person would not commit an offence by possessing
their own identification information.
An example of conduct that would be captured by this offence is:
o person A possesses identification information about person B [a
business], such as its trading name, ABN and financial account
number
o person A intends that he or she, or another person, will use the
identification information to engage in conduct, and
o the conduct is that person A will pass themselves off as person B
for the purpose of committing, or facilitating the commission of, a
Commonwealth indictable offence.
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. a person possessed identification information, and
. the person intended that they, or any other person, will use the
identification information to engage in conduct prohibited under
section 372.1.
The prosecution will not need to prove that a person knew that the conduct
he or she proposed to engage in with the identification information is the
offence of dealing in identification information under section 372.1.
Absolute liability will apply to paragraph 372.2(1)(c). The effect of
applying absolute liability to this element would mean that no fault
element needs to be proved and the defence of mistake of fact is not
available.
Absolute liability is appropriate and required for this element of the
offence because the circumstance that the conduct being engaged in
constitutes an offence under section 372.1 is a jurisdictional element. A
jurisdictional element of an offence is an element that does not relate to
the substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth, States
or Territories. This is consistent with Commonwealth criminal law policy,
as described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
The offence of possessing identification information carries a maximum
penalty of 3 years imprisonment. The offence of possessing identification
information is a preparatory offence, which requires an intention to
commit, or to facilitate the commission of, an offence under s 372.1.
Accordingly, a penalty that is lower than the penalty for the main offence
of dealing in identification information is appropriate.
The offence differs slightly from the model offence recommended by MCLOC in
two ways. The first is that MCLOC envisaged that the offence of possessing
identification information would be contingent on the commission, or the
facilitation of the commission of, an indictable offence.
The Commonwealth has, instead, made the offence of possessing
identification information contingent on conduct that constitutes an
offence under section 372.1 - the dealing in identification information
offence.
The reason for this change was that it appeared incongruous that a person
could receive up to 3 years imprisonment for a preparatory offence of
possessing identification information, yet the indictable offence intended
to be committed with the identification information might only carry a
penalty of 12 months imprisonment.
For this reason, the preparatory offence of possessing identification
information requires an intention to commit the main identity crime
offence, dealing in identification information, which carries a penalty of
5 years imprisonment.
The second difference is that the jurisdictional element in paragraph
372.2(1)(c) will be one of absolute liability. The MCLOC recommended
offence did not require that absolute liability would apply to the fact
that a person intended to commit an indictable offence with the
identification information.
The Commonwealth decided that while the prosecution must prove that the
identity crime offender intended to engage in conduct that constitutes an
offence under section 372.1 (the dealing in identification information
offence), it should not be required to prove that the person knew that the
conduct they proposed to engage in is an offence under section 372.1.
Absolute liability is appropriate and required for this element of the
offence because the circumstance that the conduct being engaged in
constitutes an offence under section 372.1 is a jurisdictional element.
This is consistent with Commonwealth criminal law policy, as described in
the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers.
Insertion of the offence of possessing equipment used to make
identification documentation
This item will make it an offence to possess equipment to make
identification documentation where the person intends to use, or allows
another person to use, that equipment to make identification documentation
for the purpose of engaging in conduct that constitutes an offence under
section 372.1 - dealing in identification information. This offence will
be punishable by up to 3 years imprisonment.
A person who possesses equipment to make identification documentation may
use that equipment themselves to engage in conduct that constitutes the
offence of dealing in identification information. Alternatively, he or she
may intend that another person will engage in conduct that constitutes the
dealing offence, and facilitate the commission of that offence by allowing
the other person to use the equipment. This offence will capture both
types of behaviour.
An example of conduct that would be captured by this offence is person A
possessing equipment and intending either that he or she, or person B, will
make false credit cards. Person A must also intend that he or she, or
another person, will use that identification documentation to engage in
conduct that is an offence under section 372.1 - the dealing offence.
The term 'equipment' has deliberately not been defined. This is to avoid
the problem of the definition becoming outdated with advances in
technology. Common items of equipment can be used to make identification
documentation, such as computers, laminators, embossers, scanners and
printers. There are no specific machines used to make false identification
documentation that are not widely available to the public to be used for
legitimate purposes.
People who possess these common items will not commit an offence by simply
possessing the equipment. A person must intend that he or she, or another
person, will use the identification documentation made with the equipment
to engage in conduct that constitutes the dealing offence under section
372.1. Provided there is no intention to deal in identification
information, a person may possess these types of equipment without fear of
committing an identity crime offence.
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that:
. a person possesses equipment,
. the [first] person intended that they, or any other person, will use
the equipment to make identification documentation, and
. the [first] person intends that they, or any other person, will use
the identification documentation to engage in conduct prohibited under
section 372.1.
The prosecution will not need to prove that a person knew that the conduct
they proposed to engage in with the identification documentation is the
offence of dealing in identification information under section 372.1.
Absolute liability will apply to paragraph 372.3(1)(d). The effect of
applying absolute liability to this element would mean that no fault
element needs to be proved and the defence of mistake of fact is not
available.
Absolute liability is appropriate and required for this element of the
offence because the circumstance that the conduct being engaged in
constitutes the dealing offence is a jurisdictional element. A
jurisdictional element of an offence is an element that does not relate to
the substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth, States
or Territories. This is consistent with Commonwealth criminal law policy,
as described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
The offence of possessing equipment used to make identification
documentation carries a maximum penalty of 3 years imprisonment. The
offence of possessing equipment used to make identification documentation
is a preparatory offence, which requires an intention to commit, or to
facilitate the commission of, an offence under section 372.1. Accordingly,
a penalty that is lower than the penalty for the main offence of dealing in
identification information is appropriate.
The offence differs slightly from the model offence recommended by MCLOC in
three ways. The first is that MCLOC envisaged that the offence of
possessing equipment to make identification documentation would be
contingent on the commission, or the facilitation of the commission of, an
indictable offence.
The Commonwealth has, instead, made the offence of possessing equipment to
make identification documentation contingent on conduct that constitutes an
offence under section 372.1 - the dealing in identification information
offence.
The reason for this change was that it appeared incongruous that a person
could receive up to 3 years imprisonment for a preparatory offence of
possessing equipment to make identification documentation, yet the
indictable offence intended to be committed with the identification
documentation might only carry a penalty of 12 months imprisonment.
For this reason, the preparatory offence of possessing equipment to make
identification documentation requires an intention to engage in conduct
that constitutes the dealing in identification information offence, which
carries a penalty of 5 years imprisonment.
The second difference is that the jurisdictional element in paragraph
372.2(1)(c) will be one of absolute liability. The MCLOC recommended
offence did not include that absolute liability would apply to the fact
that a person intended to commit an indictable offence with the
identification information.
The Commonwealth decided that while the prosecution must prove that the
identity crime offender intended to engage in conduct that constitutes an
offence under section 372.1 (the dealing in identification information
offence), it should not be required to prove that the person knew that the
conduct proposed to be engaged in with the identification information is an
offence under section 372.1. Absolute liability is appropriate and
required for this element of the offence because the circumstance that the
conduct proposed to be engaged in constitutes an offence under section
372.1 is a jurisdictional element. This is consistent with Commonwealth
criminal law policy, as described in the Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Thirdly, the Commonwealth has broadened the scope of the MCLOC
recommendation which required that the equipment possessed by the person
must be capable of making identification documentation.
Because the offence is a preparatory offence, it is not relevant whether
the equipment is actually capable of making the identification
documentation. What is relevant is the person's intention to use the
equipment to make identification documentation. A person should not escape
prosecution for this offence where they intended to make false
identification documentation and possessed all the necessary equipment to
do so believing that it was capable of making the identification
documentation but, for whatever reason, the equipment could not make the
identification documentation.
Extended geographical jurisdiction - category A
This item applies extended geographical jurisdiction - category A to
offences created by sections 372.1, 372.2 or 372.3. This means that the
three identity crime offences will extend to conduct by an Australian
citizen or an Australian body corporate outside Australia. It will not be
open for an Australian citizen or body corporate overseas to raise a
defence that there is no equivalent local offence.
Identity crime is often trans-national and it is important that Australia
can prosecute Australian citizens and bodies corporate who engage in
identity crime outside the geographical boundary of Australia. An
Australian citizen or body corporate should not escape prosecution for an
identity crime offence committed outside Australia on the basis that the
country in which the offence occurs does not have identity crime laws.
Alternative verdict
This item will allow a trier of fact, in a prosecution for an offence under
section 372.1, to find a person guilty of the offence under section 372.2
instead, provided that the person was accorded procedural fairness in
relation to that finding of guilt. The trier of fact must be satisfied
beyond reasonable doubt that the person is guilty of the section 372.2
offence.
The offence of possessing identification information is preparatory to the
offence of dealing in identification information. As a matter of logic, a
person must 'possess' identification information to make, supply or use it
in the dealing offence. The point at which the possession offence becomes
the dealing offence is when the person passes themselves off as another
person to commit, or facilitate the commission of, a Commonwealth
indictable offence.
If a trier of fact is satisfied that a person possessed identification
information with the intention of engaging in conduct that would be an
offence under section 372.1, but not that the person committed the more
serious dealing offence, the person should not escape prosecution for the
preparatory offence, subject to the safeguard of procedural fairness.
In its Report, MCLOC noted that an alternative verdict provision under
section 372.2 for persons charged with an offence against section 372.1 was
a matter for each jurisdiction. For the reasons outlined above, the
Commonwealth has decided to include the alternative verdict.
Attempt
It will not be an offence to attempt to commit any of the offences in
sections 372.1, 372.2 or 372.3. Each of the identity crime offences
ultimately requires the intention to commit, or facilitate of the
commission of, a Commonwealth indictable offence.
Division 375 - victims' certificates
Certificate may be issued by Magistrate in relation to victim of identity
crime
This item will allow a person who has been the victim of identity crime to
approach a Magistrate for a certificate that states the manner in which
identification information was used.
A person who consented to the use of their identification information by
another person can still be a victim of identity crime and obtain a
victims' certificate. For example, a parent who allows their teenage child
to use their credit card to book concert tickets on the internet does not
intend for the child to pass themselves off as the parent for the purpose
of committing a Commonwealth indictable offence. If the child uses the
credit card to pass themselves off as the parent with the intention of
committing a Commonwealth indictable offence, the parent will have been the
victim of identity crime and may apply for a certificate.
Identity crime can cause significant damage to a person's financial records
and credit rating. A certificate issued by a Magistrate may assist the
victim in negotiating with financial institutions to re-establish their
credit rating or remove fraudulent transactions.
The Commonwealth has included a broader concept of 'victim of identity
crime' than MCLOC. MCLOC defined a victim as a person whose identification
information is the subject of an offence ie, their identification
information was misused.
It is possible, however, that a broader class of persons can be conceived
of as victims of identity crime and those persons should be able to apply
for a victims' certificate to assist them.
This could occur, for example, where person A deals in person B's
identification information and passes themselves off as person B for the
purpose of impersonating a Commonwealth public official, which is a
Commonwealth indictable offence. As a part of impersonating the
Commonwealth public official, person A convinces person C to part with a
large sum of money.
Person C's information has not been dealt with and he or she would not be a
victim of identity crime in the sense envisaged by MCLOC. But person C has
suffered harm as a result of the identity crime committed by person B. In
such a situation, it might also be useful for people in person C's
situation to be able to apply for a victims' certificate.
A broader definition of 'victim' in the Bill will assist as many people as
possible who may have been adversely affected by identity crime.
State and Territory Magistrates will have the power to issue victims'
certificates. A person seeking a certificate must present sufficient
information to the Magistrate so that the Magistrate is satisfied, on the
balance of probabilities, that the facts of paragraphs 372.1(1)(a) - (c)
have been established. It will be left to the discretion of Magistrates as
to how the information is presented to them. One way in which this might
occur is for the victim of identity crime to complete a statutory
declaration, setting out what occurred. A Magistrate might be satisfied by
the information in the statutory declaration that the facts of paragraphs
372.1(1)(a) - (c) have been established, or might wish to question the
person further if insufficient information was provided.
Section 375.1 also differs from the MCLOC model. The Commonwealth
provision requires that a person make an application to a Magistrate for
the victims' certificate, whereas the MCLOC model proposed that a
Magistrate would be able to issue a certificate on his or her own motion.
This could happen where, for example, a Magistrate heard a prosecution for
an identity crime offence and, at the end of the trial, being satisfied
that an identity crime offence had been committed against the victim, would
issue the victims' certificate without the victim needing to make an
application for the certificate.
However, such an approach is not appropriate for Commonwealth
implementation. A State or Territory Magistrate is highly unlikely to hear
the prosecution of a Commonwealth indictable offence. Such an offence will
be tried in the Supreme Court of a State or Territory.
There are exceptionally few, if any other, circumstances in which a
Magistrate could initiate a victims' certificate at the Commonwealth level.
While a Magistrate would hear a committal proceeding for an identity crime
offence and could initiate a victims' certificate at the end of the
committal proceedings, the trial in the Supreme Court would preclude the
certificate from being issued, to avoid any contempt of the criminal
proceedings.
Another way in which a Magistrate may issue a victims' certificate on own
motion would be if a person were committed by a Magistrate to stand trial
in the Supreme Court, the person elected to plead guilty at that time and
to being sentenced in the Magistrates court. After that point, a
Magistrate could issue a victims' certificate on his or her own motion.
Because the circumstances in which a Magistrate might have cause to
initiate a victims' certificate on his or her own motion at the
Commonwealth level are so limited, the Commonwealth has departed from the
MCLOC recommendation that Magistrates be able to issue certificates on
their own motion.
The Commonwealth victims' certificates further differ from the MCLOC model
because Magistrates under the Commonwealth model will be asked to find that
the facts required to establish the offence under s 372.1 exist, rather
than that an offence has been committed on the balance of probabilities.
The change is based on a distinction between being satisfied that certain
facts are likely to exist, and a finding that an offence has occurred by
applying law to the facts and drawing certain conclusions.
It may not be appropriate for a Magistrate to determine whether an offence
has been committed, albeit on the balance of probabilities, without a
proper prosecution having occurred and a defendant been afforded the right
to put contrary evidence.
It is possible that the facts required to establish an offence are proved,
but that an offence has not been committed because the defendant was, for
example, under duress. A Magistrate asked to issue a victims' certificate
is unlikely to have that type of information available to him or her and it
is undesirable that they be required to find an offence was committed.
Content of certificate
This item prescribes the content of a victim's certificate. In the
certificate, the Magistrate must record the identity of the victim and
describe the manner in which identification information was used. For
example, the magistrate might record that:
. the victim's credit card was used by another person
. person B intended either that they, or any other person, would pass
themselves off as the victim for the purpose of committing an offence
(ie, person B or the other person used the victim's credit card and
passed themselves off as the victim)
. the offence is a Commonwealth indictable offence, such as importing a
prohibited tier 1 good, and
. the institution that provided the victim's credit card cancelled it
because of the purchase by person B.
The perpetrator or alleged perpetrator of the identity crime offence must
not be identified in the certificate.
Relation to proceedings
This item provides that a Magistrate need not be satisfied as to the
identity of an alleged perpetrator of identity crime, so long as he or she
is satisfied, on the balance of probabilities, that the facts of paragraphs
372.1(1)(a) - (c) have been established. The fact that a victim of
identity crime cannot show who the alleged perpetrator was will not prevent
the victim from obtaining the certificate (subject to the other
requirements being met).
It will not be necessary for criminal proceedings against an alleged
perpetrator of identity crime to have occurred for a victim to obtain a
certificate. Subject to the requirement that a certificate must not be
issued if doing so would prejudice any criminal proceedings, a victims'
certificate may be issued without an offender having been identified or
convicted.
A Magistrate must not issue a certificate if doing so would prejudice any
criminal or civil proceedings. This means that a Magistrate cannot issue a
certificate where the identity crime alleged to have been committed against
the victim is the subject of contemporaneous criminal or civil proceedings.
The rights of a defendant will be protected under the proposed victims'
certificate provisions. Certificates will not be admissible in any
criminal or civil proceedings.
The Commonwealth provision about the relation of the victims' certificate
to civil and criminal proceedings is slightly different form that
recommended by MCLOC. The Commonwealth has limited the use of victims'
certificates so that they are not admissible in any contemporaneous civil
or criminal proceedings for any purpose. Under the MCLOC model, the
certificates would not have been admissible in any criminal proceedings in
relation to the offence for which it was issued, but would have been
admissible in criminal proceedings more generally, subject to the
applicable rules of evidence.
Power conferred on Magistrate personally
This item provides that the power to issue victims' certificates is
conferred on Magistrates in their personal capacities, and not as a court
or a member of a court. The function of issuing victims' certificates is
administrative in nature. Accordingly, it is appropriate for the
Commonwealth to bestow non-judicial functions or powers on Magistrates in
their personal capacities, rather than as a court, or a member of a court.
A Magistrate may refuse to exercise the power conferred on them. This
provision is the same as subsection 4AAA(3) of the Crimes Act 1914, which
allows persons, upon whom a Commonwealth non-judicial function is
conferred, to refuse to exercise the function or power.
A Magistrate who elects to use the power receives the same protections and
immunities as if he or she were exercising that power as, or as a member
of, the court of which the Magistrate is a member. This provision will
protect a Magistrate who, in good faith, issues, or considers issuing, a
victims' certificate.
Because of constitutional restraints, the Commonwealth was unable to
implement the MCLOC recommendation that the power to issue victims'
certificates be conferred on Local or Magistrates courts. The power to
issue victims' certificates is administrative or non-judicial in nature and
the Commonwealth cannot vest a State Local or Magistrates court with a non-
judicial power. To overcome this problem, the power to issue victims'
certificates has been vested in State and Territory Magistrates in their
personal capacities.
Insertion of definitions into the dictionary
These items insert definitions of 'ABN', 'deal', 'identification
documentation', 'identification information' and 'de facto partner' into
the Dictionary of the Criminal Code.
Schedule 2 - Crimes Act 1914
Schedule 2 amends Part III of the Crimes Act 1914, which contains offences
relating to the administration of justice. The administration of justice
offences are directed at conduct that would undermine the integrity of
Australian courts and prisons. These offences include fabricating
evidence, intimidating witnesses and aiding a prisoner to escape from
lawful criminal detention.
An explanation of key amendments made to the administration of justice
offences is set out below. The explanation of the key amendments is
followed by notes on clauses.
Reframing the administration of justice offences to bring them into line
with Chapter 2 of the Criminal Code
The amendments in Schedule 2 reframe the administration of justice offences
to bring them into line with Chapter 2 of the Criminal Code Act 1995.
Chapter 2 of the Criminal Code contains the general principles that form
the basis for interpreting and applying criminal offence provisions in
Commonwealth legislation. Under the Criminal Code, Commonwealth offences
consist of physical elements and fault elements (section 3.1).
The physical elements may involve conduct, a circumstance, or a result of
conduct (section 4.1). Conduct includes an act, an omission (failure to
act) or a state of affairs. An offence commonly has more than one physical
element.
To ensure alignment with the Criminal Code, the administration of justice
offences have been reframed so that each physical element of an offence is
in a separate paragraph. In particular, conduct, circumstances and results
constituting each offence are set out in separate paragraphs.
Applying absolute liability to jurisdictional elements of the offences to
bring the offences into line with Commonwealth criminal law policy
The amendments in Schedule 2 apply absolute liability to the jurisdictional
elements of the administration of justice offences. Applying absolute
liability to a jurisdictional element of an offence is a settled principle
of Commonwealth criminal law policy as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
A jurisdictional element of an offence is an element that does not
relate to the substance of the offence, but marks a jurisdictional
boundary between matters that fall within the legislative power of the
Commonwealth, States or Territories. For example, the administration
of justice offences contain jurisdictional elements that confine the
offences to matters arising in connection with:
. federal judicial proceedings
. lawful Commonwealth criminal detention, and
. offences against the law of the Commonwealth or Territory.
The effect of applying absolute liability to these elements would mean
that no fault element needs to be proved and the defence of mistake of
fact is not available. As a result, in relation to the administration
of justice offences, the prosecution would no longer need to prove that
a defendant knew that:
. a judicial proceeding was a federal judicial proceeding, or
. criminal detention or an offence was related to the Commonwealth or a
Territory's legislative power.
Currently, because absolute liability does not apply to the
jurisdictional element in the offence of destroying evidence (section
39), a defendant can avoid being convicted of this offence because he
or she did not know the relevant judicial proceeding was a federal
proceeding. This occurred in the recent case, R v JS [2007] NSWCCA
272. At first instance, the Court directed the jury to return of
verdict of not guilty because there was no evidence that the defendant
knew that the material would be required in evidence in federal
judicial proceedings. On appeal, the NSWCCA confirmed that, in the
absence of a specific provision not requiring proof of fault, the
prosecution must prove that the defendant knew both that the material
may be required in evidence in judicial proceedings, and that the
proceedings were federal judicial proceedings.
Limiting offences directed at escape from criminal detention to lawful
criminal detention
Each offence directed at escape from criminal detention (in Division 5 of
Schedule 2) has been amended to include a physical element that requires
the prisoner's detention to be 'lawful federal criminal detention'.
This amendment reflects the policy decision that the Division 5 offences
should only be charged where the prisoner's criminal detention was lawful.
For example, this would avoid the potential unfairness and inconsistency
that could flow from charging a defendant with the offence of assisting a
prisoner to escape, where that prisoner was not in lawful criminal
detention. The amendment also promotes consistency between the offences -
some of the former escape from criminal detention offences applied the
'lawfulness' requirement, while others did not. This amendment will
require the prosecution to prove that a prisoner was in lawful detention to
establish the offence.
Absolute liability will apply to the 'lawfulness requirement' in the
offences directed at escape from criminal detention, because it is a
jurisdictional element of the offences. Applying absolute liability to a
jurisdictional element of an offence is consistent with Commonwealth
criminal law approaches to date, as outlined in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
The effect of applying absolute liability to the lawfulness requirement
would mean that no fault element needs to be proved and the defence of
mistake of fact is not available. As a result, while the prosecution would
need to prove that a prisoner was in lawful criminal detention, the
prosecution would not need to prove that a defendant knew that the
detention was lawful. This is a desirable result, as the offence should
not depend on the defendant's knowledge of the lawfulness of the detention.
Item 1: definition of criminal detention
This item inserts a reference to the definition of 'criminal detention'
into subsection 3(1) of the Crimes Act 1914. 'Criminal detention' is
defined at new section 45A.
Item 2: definition of federal criminal detention
This item inserts a reference to the definition of 'federal criminal
detention' into subsection 3(1) of the Crimes Act 1914. 'Federal criminal
detention' is defined at new section 45A.
Item 3: definition of federal judicial proceeding
This item inserts a reference to the definition of 'federal judicial
proceeding' into subsection 3(1) of the Crimes Act 1914. 'Federal judicial
proceeding' is defined at new section 31.
Item 4: definition of judicial proceeding
This item inserts a reference to the definition of 'judicial proceeding'
into subsection 3(1) of the Crimes Act 1914. 'Judicial proceeding' is
defined at new section 31.
Item 5: definition of judicial tribunal
This item inserts a reference to the definition of 'judicial tribunal' into
subsection 3(1) of the Crimes Act 1914. 'Judicial tribunal' is defined at
new section 31.
Item 6: division 1 heading
This item inserts a heading 'Division 1 - Preliminary' into Part III of the
Crimes Act 1914.
Item 7: definition of federal judicial proceeding, judicial proceeding and
judicial tribunal
This item repeals former section 31, and inserts new definitions of
'federal judicial proceeding', 'judicial proceeding' and 'judicial
tribunal' into the Crimes Act 1914.
'Federal judicial proceeding' is defined as a judicial proceeding in or
before a federal court, a court exercising federal jurisdiction or a court
of a Territory. The definition also covers judicial proceedings before a
body or person acting under a law of the Commonwealth or a Territory.
'Judicial proceeding' is defined as a proceeding in or before a court. The
definition also covers proceedings before a body or a person acting under a
law of the Commonwealth, State or Territory, in which evidence may be taken
on oath.
'Judicial tribunal' is defined as a body or person (other than a court)
before whom a judicial proceeding is conducted.
Item 8: division 2 heading
This item inserts a heading 'Division 2 - Judges and Magistrates' into Part
III of the Crimes Act 1914.
Item 9: judge or magistrate acting oppressively or when interested
This item reframes former section 34 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalties for
the new section 34 offences, are identical to the former section 34
offence.
New section 34 creates two offences directed against judges or magistrates
acting oppressively or when they have personal interests at stake in the
matter.
Subsection 34(1) creates an offence directed at judges or magistrates that
require excessive and unreasonable bail, where the requirement is an abuse
of the judge's or magistrate's office. The penalty for this offence is
imprisonment for two years.
Subsection 34(2) provides a defence to the offence in subsection 34(1).
The defence would apply where a judge or magistrate has a reasonable
excuse. The defendant bears an evidential burden in relation to subsection
34(2). Section 13.3 of the Criminal Code Act 1995 provides that in the
case of a standard 'evidential burden' defence, the defendant bears the
burden of pointing to evidence that suggests a reasonable possibility that
the defence is made out. If this is done, the prosecution must refute the
defence beyond reasonable doubt (section 13.1).
An evidential burden defence has been used because a defendant would be
better placed to point to evidence that they had a reasonable excuse for
ordering excessive and unreasonable bail. For example, a magistrate may
have acted oppressively or when interested because they were under duress.
Evidence relating to whether the defendant had a reasonable excuse would
not be available to the prosecution. The evidential burden defence
attaching to subsection 34(2) is identical to the defence used in former
subsection 34(2).
The use of the evidential burden defence in subsection 34(2) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the settled principle that it is legitimate to cast a matter as
an evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
Subsection 34(3) provides that absolute liability applies to the
paragraph (1)(e) element of the subsection 34(1) offence. Absolute
liability applies because paragraph (1)(e) is a jurisdictional element that
confines the offence to matters arising in connection with offences against
a law of the Commonwealth. This is consistent with Commonwealth criminal
law policy, as described in the Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers.
Subsection 34(4) provides an offence directed at judges or magistrates who
perversely exercise jurisdiction in a matter, where they have a personal
interest in the matter. The penalty for this offence is imprisonment for
two years.
Subsection 34(5) provides that absolute liability applies to the
paragraph (4)(d) element of the subsection 34(4) offence. Absolute
liability applies because paragraph (4)(d) is a jurisdictional element that
confines the offence to situations where the judge or magistrate is
exercising federal jurisdiction. This is consistent with Commonwealth
criminal law policy, as described in the Guide to Framing Commonwealth
Offences, Civil Penalties and Enforcement Powers.
Item 10: division 3 heading
This item inserts a heading 'Division 3 - Evidence and witnesses' into Part
III of the Crimes Act 1914.
Item 11: offences about evidence and witnesses
This item repeals former sections 35 - 40, and inserts new sections 35 -
40.
New section 35
This item reframes former section 35 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 35 offence are identical to the former section 35 offence.
New section 35 creates an offence directed against persons who give false
testimony about a matter that is material in a judicial proceeding. The
offence applies where the testimony is given in a judicial proceeding, or
when the person intends to institute a judicial proceeding. The penalty
for this offence is imprisonment for five years.
Paragraph 35(1)(c) confines the offence to situations in which the false
testimony is about a matter that is material in the judicial proceeding.
This protects a defendant from being charged with an offence if the
defendant gave false testimony about a matter that was immaterial or
unrelated to the proceedings.
Subsection 35(2) provides that strict liability applies to the paragraph
35(1)(c) element of the offence. Strict liability has been used because
the paragraph 35(1)(c) element is a precondition of the offence that the
prosecution must prove, it is not a substantive element of the offence. The
defendant's state of mind about whether a matter on which they have given
false testimony is material to the proceeding is not relevant to proving
the offence.
The use of strict liability in subsection 35(2) is consistent with
Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers, and the
Senate Scrutiny of Bills Committee Report 6/2002 Application of absolute
and strict liability offences in Commonwealth legislation. The Guide
refers to the principle that it is acceptable to apply strict liability to
a physical element that is essentially a precondition of an offence and the
state of mind of the offender is not relevant.
Subsection 35(3) provides that absolute liability applies to the
paragraph (1)(d) element of the offence. Absolute liability applies
because paragraph (1)(d) is a jurisdictional element that confines the
offence to situations in which the judicial proceeding is a federal
judicial proceeding. This is consistent with Commonwealth criminal law
policy, as described in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Subsection 35(4) provides that the following factors are not relevant to
the offence:
. testimony - whether given, on oath, or not on oath, in orally or in
writing
. whether the court or judicial tribunal to which the testimony is given
is properly constituted or held in the proper place
. whether the person who gave the testimony is a competent witness, and
. whether the testimony is admissible.
New section 36
This item reframes former section 36 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 36 offence are identical to the former section 36 offence.
New section 36 creates an offence directed against persons who fabricate
evidence with the intention of misleading a court or judicial tribunal in a
judicial proceeding. The penalty for this offence is imprisonment for five
years.
Subsection 36(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 36A
This item reframes former section 36A so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 36A offence are identical to the former section 36A
offence.
New section 36A creates an offence directed against persons who intimidate
another person who has appeared or is about to appear as a witness in a
judicial proceeding. The offence is directed at the following conduct:
. threatening, intimidating or restraining another person
. using violence or inflicting an injury upon another person
. causing or procuring violence, damage, loss or disadvantage to another
person, and
. causing or procuring the punishment of another person.
The penalty for this offence is imprisonment for five years.
Subsection 36A(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 37
This item reframes former section 37 so that it is aligned with Chapter 2
of the Criminal Code Act 1995.
New section 37 creates two offences directed against the corruption of
witnesses. The physical elements of and penalties for the new section 37
offences are identical to the former section 37 offences.
Subsection 37(1) creates an offence directed against persons who engage in
particular conduct on the basis of an agreement or understanding that a
witness in a judicial proceeding will give false testimony or withhold true
testimony. The offence is directed at the following conduct:
. giving, conferring or procuring property or benefits upon another
person, or promising to do so, and
. asking for, receiving or obtaining any property or benefit, or
agreeing to do so.
The penalty for this offence is imprisonment for five years.
Subsection 37(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Subsection 37(3) creates an offence directed against persons who engage in
particular conduct with the intention of inducing a witness in a judicial
proceeding to give false testimony or withhold true testimony. The penalty
for this offence is imprisonment for five years.
Subsection 37(4) provides that absolute liability applies to the
paragraph (3)(c) element of the offence. Absolute liability applies
because paragraph (3)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 38
This item reframes former section 38 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 38 offence are identical to the former section 38 offence.
New section 38 creates an offence directed at persons who deceive witnesses
with the intention of affecting the testimony of the witness. The offence
is directed at the following conduct:
. practicing fraud or deceit on a witness, and
. making or exhibiting any false statement, representation, token or
writing to a witness.
The penalty for this offence is imprisonment for two years.
Subsection 38(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 39
This item reframes former section 39 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 39 offence are identical to the former section 39 offence.
New section 39 creates an offence directed at persons who destroy evidence
with the intention of preventing the evidence from being used in a judicial
proceeding. The offence is directed at the following conduct:
. destroying a book, document or thing required in evidence, and
. rendering a book, document or thing illegible, undecipherable or
incapable of identification.
The penalty for this offence is imprisonment for five years.
Subsection 39(2) provides that absolute liability applies to the
paragraph (1)(d) element of the offence. Absolute liability applies
because paragraph (1)(d) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 40
This item reframes former section 40 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 40 offence are identical to the former section 40 offence.
New section 40 creates an offence directed at persons who prevent witnesses
from:
. attending court pursuant to a subpoena or summons, or
. from producing anything in evidence, pursuant to a subpoena or
summons.
The penalty for this offence is imprisonment for one year.
Subsection 40(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the judicial proceeding is a federal judicial
proceeding. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Item 12: division 4 heading
This item inserts a heading 'Division 4 - Perverting the course of justice'
into Part III of the Crimes Act 1914.
Item 13: conspiracy to bring false accusation
This item repeals former subsection 41(1), and inserts new subsections
41(1) and 41(1A). This item reframes former subsection 41(1) so that it is
aligned with Chapter 2 of the Criminal Code Act 1995. The physical
elements of, and penalty for the new subsection 41(1) offence, are
identical to the former subsection 41(1) offence.
New subsection 41(1) creates an offence directed at persons who conspire to
charge any person falsely or cause any person to be falsely charged. The
penalty for the offence is imprisonment for ten years.
Subsection 41(1A) provides that absolute liability applies to the
paragraph (1)(b) element of the subsection 41(1) offence. Absolute
liability applies because paragraph (1)(b) is a jurisdictional element that
confines the offence to situations where a person has been falsely charged
with an offence against a law of the Commonwealth, or Territory. This is
consistent with Commonwealth criminal law policy, as described in the Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
Existing subsections 41(2) to 41(7) have been retained in the Crimes Act,
and operate together with new subsections 41(1) and 41(1A).
Item 14: conspiracy to defeat justice
This item repeals former subsections 42(1) and 42(2), and inserts new
subsections 42(1) and 42(2). This item reframes former subsection 42(1) so
that it is aligned with Chapter 2 of the Criminal Code Act 1995. The
physical elements of the new subsection 42(1) offence are identical to the
physical elements of the former subsection 42(1) offence.
New subsection 42(1) creates an offence directed at persons who conspire to
obstruct, prevent, pervert or defeat justice in relation to a judicial
power of the Commonwealth.
Subsection 42(2) provides that absolute liability applies to the
paragraph (1)(b) element of the subsection 42(1) offence. Absolute
liability applies because paragraph (1)(b) is a jurisdictional element that
confines the offence to the judicial power of the Commonwealth. This is
consistent with Commonwealth criminal law policy, as described in the Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
This item increases the penalty for the offence from imprisonment for 5
years to imprisonment for 10 years.
A penalty of imprisonment for 10 years reflects the seriousness of the
offence. The offence is directed at conduct that undermines the
court's authority and limits its ability to carry out the
administration of justice. In some cases, commission of the offence
would be directed at changing the outcome of court proceedings and
therefore parties in court proceedings may also be affected.
The amendment will bring the penalty for this offence into closer
alignment with the penalty for other similar offences in the
Commonwealth and other jurisdictions. For example, the section 41
offence of conspiracy to bring false accusation (which is also a
Commonwealth administration of justice offence) carries a maximum
penalty of 10 years imprisonment. A survey of other jurisdictions by
the Commonwealth Director of Public Prosecutions in 2008 revealed that
the penalties for similar offences are much greater than the
Commonwealth's current penalty. For example, the current maximum
penalties for similar State offences are 14 years imprisonment in
New South Wales and 25 years imprisonment in Victoria.
Item 15: attempting to pervert course of justice
This item repeals former subsections 43(1) and 43(2), and inserts new
subsections 43(1) and 43(2). This item reframes former subsection 42(1) so
that it is aligned with Chapter 2 of the Criminal Code Act 1995.
New subsection 43(1) creates an offence directed at persons who obstruct,
prevent, pervert or defeat justice in relation to a judicial power of the
Commonwealth. The penalty for the offence is imprisonment for 10 years.
Subsection 43(2) provides that absolute liability applies to the
paragraph (1)(b) element of the subsection 43(1) offence. Absolute
liability applies because paragraph (1)(b) is a jurisdictional element that
confines the offence to the judicial power of the Commonwealth. This is
consistent with Commonwealth criminal law policy, as described in the Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.
The new subsection 43(1) offence is not identical to the former
subsection 43(1) offence. This item removes the words 'in any way not
specifically defined in this Act' from the attempt to pervert the
course of justice offence. The item also increases the penalty for the
offence from imprisonment for 5 years to imprisonment for 10 years.
The words 'in any way not specifically defined in this Act', in the
former offence, require the prosecution to charge a more specific
offence in Part III if one is available. This means that the attempt
to pervert course of justice offence is an offence of last resort - the
prosecution may only use it if no other offence can be charged.
Removing these words promotes certainty as to the scope of this
offence. There is a significant body of case law on offences of
attempting to pervert the course of justice, whereas many of the other
administration of justice offences do not have the benefit of detailed
judicial consideration. The amendment does not affect the ability of
the prosecution to charge the other administration of justice offences.
As discussed above, this item increases the penalty for the offence from
imprisonment for 5 years to imprisonment for 10 years.
A penalty of imprisonment for 10 years reflects the seriousness of the
offence. The offence is directed at conduct that undermines the
court's authority and limits its ability to carry out the
administration of justice. In some cases, commission of the offence
would be directed at changing the outcome of court proceedings and
therefore parties in court proceedings may also be affected.
The amendment will bring the penalty for this offence into closer
alignment with the penalty for other similar offences in the
Commonwealth and other jurisdictions. For example, the section 41
offence of conspiracy to bring false accusation (which is also a
Commonwealth administration of justice offence) carries a maximum
penalty of 10 years imprisonment. A survey of other jurisdictions by
the Commonwealth Director of Public Prosecutions in 2008 revealed that
the penalties for similar offences are much greater than the
Commonwealth's current penalty. For example, the current maximum
penalties for similar State offences are 14 years imprisonment in
New South Wales and 25 years imprisonment in Victoria.
Item 16: compounding offences and unauthorised or false advertisements
This item repeals former sections 44 and 45, and inserts new sections 44
and 45.
New section 44
This item reframes former section 44 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 44 offence are identical to the former section 44 offence.
New section 44 creates an offence directed at persons who engage in
particular conduct upon any understanding that they will:
. compound or conceal an offence
. abstain from, discontinue or delay a prosecution for an offence, and
. withhold evidence of an offence.
The offence applies to the following conduct:
. asking for, receiving, or obtaining any property or benefit for
themselves or another person, and
. agreeing to receive or obtain any property or benefit for themselves
or another person.
The penalty for the offence is imprisonment for three years.
New section 45
This item reframes former section 45 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 45 offence are identical to the former section 45 offence.
New section 45 creates an offence directed at persons who insert an
advertisement purporting to be published under the authority of a court,
where the person does so:
. without authority, or
. knowing that the advertisement is false.
The penalty for this offence is imprisonment for two years.
Subsection 45(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the advertisement purports to be published
under the authority of a federal court, a court exercising federal
jurisdiction, or a court of a Territory. This is consistent with
Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Item 17: criminal detention definitions
This item inserts a heading 'Division 5 - Escape from criminal detention'
into Part III of the Crimes Act 1914.
This item also inserts a new section 45A that contains criminal detention
definitions that are used throughout Division 5.
Criminal detention is defined to mean arrest or custody in respect of an
offence, or detention due to:
. being unfit to be tried
. acquittal because of mental illness, and
. receiving treatment for mental illness that contributed to the
commission of the offence.
Federal criminal detention is defined to mean criminal detention in respect
of an offence against a law of the Commonwealth, or a Territory (other than
the Australian Capital Territory).
The Australian Capital Territory has been excluded from the definition of
federal criminal detention because it did not have prison facilities at the
time of introduction.
Item 18: - sections 46 - 48
This item repeals former sections 46 to 48, and inserts new sections 46,
46A, 47, 47A, 47B, 47C and 48.
New section 46
This item reframes former section 46 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 46A offence are identical to physical elements and penalty
used in the former paragraph 46(1)(a), 46(1)(aa) and 46(1)(ab) offences.
This item creates an offence directed against persons that aid a prisoner
to escape or attempt from criminal detention. The penalty for this offence
is imprisonment for five years.
Subsection 46(2) provides that absolute liability applies to the
paragraph (1)(d) element of the offence. Absolute liability applies
because paragraph (1)(d) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Subsection 46(3) provides a defence to the offence in subsection 46(1).
The defence would apply where a defendant terminates aid to the prisoner
and otherwise takes all reasonable steps to prevent the prisoner from
escaping or attempting to escape. The defendant bears an evidential burden
in relation to subsection 46(3). Section 13.3 of the Criminal Code Act
1995 provides that in the case of a standard 'evidential burden' defence,
the defendant bears the burden of pointing to evidence that suggests a
reasonable possibility that the defence is made out. If this is done, the
prosecution must refute the defence beyond reasonable doubt (section 13.1).
An evidential burden defence has been used because a defendant would be
better placed than the prosecution to point to evidence that they
terminated their aid to the prisoner or took reasonable steps to prevent
the prisoner from escaping or attempting to escape. Evidence relating to
whether the defendant terminated aid or took reasonable steps to prevent
the prisoner from escaping would not be available to the prosecution.
The use of the evidential burden defence in subsection 46(3) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the settled principle that it is legitimate to cast a matter as
an evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
Subsection 46(4) provides that it is possible to use the offence to charge
a person who aids a prisoner to escape, even in circumstances where the
prisoner was not prosecuted for, or found guilty of an offence in relation
to the escape or attempt to escaping.
New section 46A
This item reframes former paragraph 46(1)(b) so that it is aligned with
Chapter 2 of the Criminal Code Act 1995. The penalty for the new
section 46A offence is identical to the former paragraph 46(1)(b) offence.
This item creates an offence directed against persons that convey a thing
into a prison or other place of criminal detention with the intention of
aiding a prisoner to escape from that detention. The penalty for this
offence is imprisonment for five years.
Subsection 46A(2) provides that absolute liability applies to the
paragraph (1)(d) element of the offence. Absolute liability applies
because paragraph (1)(d) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
While the new offence is directed at the same conduct as the former
offence, the physical elements of the former offence have been amended to
extend the new offence to conduct that would assist a prisoner who is under
arrest. This amendment ensures that a defendant can be charged with
conveying a thing into a prison to assist a prisoner that is under arrest.
The former offence did not apply to prisoners under arrest.
This amendment promotes consistency between the offences about escape from
criminal detention. All new offences concerning escape from criminal
detention apply to prisoners under arrest, because of the consistent
application of the 'criminal detention' physical element.
New section 47
This item reframes former section 47 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 47 offence, are identical to the former section 47 offence.
This item creates an offence directed against persons who escape from
criminal detention. The penalty for this offence is imprisonment for five
years.
Subsection 47(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 47A
This item reframes former section 47A so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 47A offence are identical to the former section 47A
offence.
This item creates an offence directed against persons who rescue a prisoner
from criminal detention by force. The penalty for this offence is
imprisonment for 14 years.
Subsection 47A(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
New section 47B
This item reframes former section 47B so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The penalty for the new section 47B offence
is identical to the penalty for the former section 47B offence.
This item creates an offence directed against persons who leave a place of
criminal detention with permission, but fail to comply with the terms of
that permission by refusing to return to that place of criminal detention.
The penalty for this offence is imprisonment for five years.
Subsection 47B(2) provides that absolute liability applies to the
paragraph (1)(b) element of the offence. Absolute liability applies
because paragraph (1)(b) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Subsection 47B(3) provides a defence to the offence in subsection 47B(1).
The defence would apply where a prisoner had a reasonable excuse to breach
the conditions of their permission by failing to return to the place of
criminal detention. The defendant bears an evidential burden in relation
to subsection 47B(3). Section 13.3 of the Criminal Code Act 1995 provides
that in the case of a standard 'evidential burden' defence, the defendant
bears the burden of pointing to evidence that suggests a reasonable
possibility that the defence is made out. If this is done, the prosecution
must refute the defence beyond reasonable doubt (section 13.1).
An evidential burden defence has been used because a defendant would be
better placed than the prosecution to point to evidence that they had a
reasonable excuse for failing to return to the place of criminal detention.
For example, the defendant may point to evidence that they did not return
to the place of criminal detention because they were injured or
hospitalised. Evidence relating to whether the defendant had a reasonable
excuse would not be available to the prosecution. The evidential burden
defence used in subsection 47B(3) is identical to the defence used in
former section 47B(1A).
The use of the evidential burden defence in subsection 47B(3) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the settled principle that it is legitimate to cast a matter as
an evidential burden defence where a matter is peculiarly within the
defendant's knowledge and not available to the prosecution.
While the new offence is directed at the same conduct as the former
offence, the physical elements of the former offence have been amended to
extend the new offence to situations where the prisoner is under arrest.
This amendment ensures that a defendant can be charged with refusing to
return to a place of criminal detention when they are being held under
arrest. The former offence did not apply to prisoners under arrest.
This amendment promotes consistency between the offences about escape from
criminal detention. All new offences concerning escape from criminal
detention apply to prisoners under arrest, because of the consistent
application of the 'criminal detention' physical element.
New section 47C
This item reframes former section 47C so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The penalty for the new section 47C offence
is identical to the former section 47C offence.
This item creates an offence directed against persons who intentionally or
negligently permit a prisoner to escape from criminal detention. The
penalty for this offence is imprisonment for five years.
Subsection 47C(2) provides that absolute liability applies to the
paragraph (1)(d) element of the offence. Absolute liability applies
because paragraph (1)(d) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
While the new offence is directed at the same conduct as the former
offence, the physical elements of the former offence have been amended to
extend the new offence to situations where the prisoner is under arrest.
This amendment ensures that a defendant can be charged with permitting a
prisoner to escape, where that prisoner is under arrest. The former
offence did not apply to prisoners under arrest.
This amendment promotes consistency between the offences about escape from
criminal detention. All new offences concerning escape from criminal
detention apply to prisoners under arrest, because of the consistent
application of the 'criminal detention' physical element.
New section 48
This item reframes former section 48 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The penalty for the new section 48 offence
is identical to the former section 48 offence. The physical elements of
the former offence have been amended to extend the new offence to
situations where the prisoner is under arrest.
This item creates an offence directed against persons who harbour, maintain
or employ a person who escaped from criminal detention, knowing that the
person is an escapee. The penalty for this offence is imprisonment for five
years.
Subsection 48(2) provides that absolute liability applies to the
paragraph (1)(c) element of the offence. Absolute liability applies
because paragraph (1)(c) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
While the new offence is directed at the same conduct as the former
offence, the physical elements of the former offence have been amended to
extend the new offence to situations where the prisoner is under arrest.
This amendment ensures that a defendant can be charged with harbouring
maintaining or employing a prisoner that has escaped from a place of
criminal detention, where that prisoner was being held under arrest. The
former offence did not apply to prisoners under arrest.
This amendment promotes consistency between the offences about escape from
criminal detention. All new offences concerning escape from criminal
detention apply to prisoners under arrest, because of the consistent
application of the 'criminal detention' physical element.
Item 19: division 6 heading
This item inserts a heading 'Division 6 - Seized property' into Part III of
the Crimes Act 1914.
Item 20: removing property under seizure
This item reframes former section 49 so that it is aligned with Chapter 2
of the Criminal Code Act 1995. The physical elements of, and penalty for
the new section 49 offence are identical to the former section 49 offence.
This item creates an offence directed against persons who interfere with
property that has been attached or taken under the process or authority of
a court, with the intention of hindering or defeating the attachment or
process. The penalty for this offence is imprisonment for two years.
Subsection 49(2) provides that absolute liability applies to the
paragraph (1)(b) element of the offence. Absolute liability applies
because paragraph (1)(b) is a jurisdictional element that confines the
offence to situations where the detention is lawful federal criminal
detention. This is consistent with Commonwealth criminal law policy, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Item 21 - consequential amendment of the Australian Federal Police Act 1979
This item amends subparagraph (a)(i) of the definition of 'protective
service offence' in subsection 4(1) of the Australian Federal Police Act
1979, to omit a reference to 'other than paragraph (b)'.
The definition of protective service offence includes Australian Federal
Police functions performed in relation to some of the existing
administration of justice offences including 'section 46 (other than
paragraph (b)'.
Former section 46(b) provided an offence for conveying a thing into a
prison with the intention of facilitating the escape of a prisoner. As a
result of the amendment of the administration of justice offences, the
offence in section 46(b) no longer exists. The offence in section 46(b)
has been reframed and now appears in section 46A. Therefore, the reference
to subsection 46(b) has been deleted from the definition of 'protective
service offence'.
Item 22 - consequential amendment of the Federal Court of Australia Act
1976
This item amends subsection 32P(2) of the Federal Court of Australia Act
1976 to insert the word 'federal' before 'judicial proceeding'.
Subsection 32P(2) provides that 'evidence given by a person on oath or
affirmation administered by the High Court of New Zealand under
subsection (1) is, for the purposes of section 35 of the Crimes Act 1914,
testimony given in a judicial proceeding.'
The item updates subsection 32P to ensure that it refers to the new
definition of 'federal judicial proceeding' provided by the amendments to
the administration of justice offences.
Item 23 - consequential amendment of the International Criminal Court
Act 2002
This item repeals section 183 of the International Criminal Court Act 2002
and replaces it with a new section 183.
New section 183 ensures that the amended administration of justice offences
in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to
circumstances where a person is held under arrest or in custody under the
International Criminal Court Act.
Section 183 provides sections 46, 46A, 47A, 47C and 48 have effect as if
custody, detention or arrest under the International Criminal Court Act
were custody in respect of an offence against a law of the Commonwealth.
As a result of the amendment, prisoners in custody under the Act would be
in 'federal criminal detention'.
Item 115 also inserts a reference to section 47C of the Crimes Act into the
revised section 183 of the International Criminal Court Act. Existing
section 183 of the International Criminal Court Act only refers to sections
46, 46A , 47A and 48 of the Crimes Act. Section 47C of the Crimes Act
makes it an offence for a prison officer, police officer or similar to
permit a person to escape custody or detention.
The equivalent provisions in the International War Crimes Tribunals Act
1995 and the Mutual Assistance in Criminal Matters Act 1987 already refer
to section 47C of the Crimes Act. This amendment ensures consistency
between the relevant provisions of the International Criminal Court Act,
International War Crimes Tribunals Act and Mutual Assistance in Criminal
Matters Act.
Item 24 - amendment of the International Transfer of Prisoners Act 1997
This item adds a new section 56A to the International Transfer of Prisoners
Act 1997.
New section 56A ensures that the amended administration of justice offences
in Division 5 (escape from criminal detention) apply to circumstances where
a person is held under arrest or in custody under the International
Transfer of Prisoners Act.
Section 56A provides that the administration of justice offences in
Division 5 have effect as if custody, detention or arrest under the
International Transfer of Prisoners Act were custody in respect of an
offence against a law of the Commonwealth. As a result of the amendment,
prisoners transferred under the Act would be in 'federal criminal
detention'.
Item 25 - consequential amendment of the International War Crimes Tribunals
Act 1995
This item repeals section 80 of the International War Crimes Tribunals Act
1995 and replaces it with a new section 80.
New section 80 ensures that the amended administration of justice offences
in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to
circumstances where a person is held under arrest or in custody under the
International War Crimes Tribunals Act.
Section 80 provides sections 46, 46A, 47A, 47C and 48 have effect as if
custody, detention or arrest under the International War Crimes Tribunals
Act were custody in respect of an offence against a law of the
Commonwealth. As a result of the amendment, prisoners in custody under the
Act would be in 'federal criminal detention'.
Item 26 - consequential amendment of the Mutual Assistance in Criminal
Matters Act 1987
This item repeals section 25A of the Mutual Assistance in Criminal Matters
Act 1987 and replaces it with a new section 25A.
New section 25A ensures that the amended administration of justice offences
in Division 5 (sections 46, 46A, 47A, 47C and 48) continue to apply to
circumstances where a person is held under arrest or in custody under the
Mutual Assistance in Criminal Matters Act.
Section 25A provides sections 46, 46A, 47A, 47C and 48 have effect as if
custody, detention or arrest under the Mutual Assistance in Criminal
Matters Act were custody in respect of an offence against a law of the
Commonwealth. As a result of the amendment, prisoners in custody under the
Act would be in 'federal criminal detention'.
Item 27 - consequential amendment of the Mutual Assistance in Criminal
Matters Act 1987
This item repeals section 31A of the Mutual Assistance in Criminal Matters
Act 1987 and replaces it with a new section 31A.
New section 31A ensures that the amended administration of justice offences
in Division 5 (sections 46, 46A, 47A, 47C and 48), continue to apply to
circumstances where a person is held under arrest or in custody under the
Mutual Assistance in Criminal Matters Act.
Section 31A provides sections 46, 46A, 47A, 47C and 48 have effect as if
custody, detention or arrest under the Mutual Assistance in Criminal
Matters Act was custody in respect of an offence against a law of the
Commonwealth. As a result of the amendment, prisoners in custody under the
Act would be serving 'federal criminal detention'.
Item 28 - consequential amendment of the Telecommunications (Interception
and Access) Act 1979
This item amends paragraph 5D(8)(b) of the Telecommunications (Interception
and Access) Act 1979 to insert a reference to new section 46A.
Section 5D provides a list of Commonwealth offences that are 'serious
offences' for the purposes of the Telecommunications (Interception and
Access) Act 1979. Paragraph 5D(8)(b) includes a reference to former
section 46 of the Crimes Act 1914.
Former section 46(b) provided an offence for conveying a thing into a
prison with the intention of facilitating the escape of a prisoner. As a
result of the amendments to the administration of justice offences, this
offence has been reframed and now appears in section 46A. A reference to
46A has been added to paragraph 5D(8)(b) to ensure that the offence for
conveying a thing into a prison remains a 'serious offence'.
Item 29 - consequential amendment of the Transfer of Prisoners Act 1983
This item amends subsection 26(1) of the Transfer of Prisoners Act 1983 to
omit the phrase 'as if a reference in that section' and replaces it with
'of this Act as if a reference in the definition of federal criminal
detention in section 45A'.
Subsection 26(1) applies former section 47 of the Crimes Act to a state
prisoner in lawful custody.
This item updates subsection 26(1) to ensure that it refers to the new
definition of 'federal criminal detention' provided by the amendments to
the administration of justice offences.
Item 30 - consequential amendment of the Transfer of Prisoners Act 1983
This item amends subsection 26(2) of the Transfer of Prisoners Act 1983 to
omit the phrase 'as if a reference in that section' and replaces it with
'of this Act as if a reference in the definition of federal criminal
detention in section 45A'.
Subsection 26(2) applies former section 47 of the Crimes Act to a state
prisoner in lawful custody.
This item updates subsection 26(2) to ensure that it refers to the new
definition of 'federal criminal detention' provided by the amendments to
the administration of justice offences.
Schedule 3 - Director of Public Prosecutions Act 1983
The Director of Public Prosecutions Act 1983 (the DPP Act) establishes the
Office of the Commonwealth Director of Public Prosecutions (CDPP), and
provides for the functions and powers of the head of the CDPP, the
Director.
The amendments ensure that the Director can delegate functions and powers
to facilitate, among other things, joint trial arrangements with the CDPP's
State and Territory counterparts. The amendments also provide for immunity
from civil proceedings for persons carrying out functions and powers under
the Act.
Items 1 and 2: subsection 31(1) - delegation by Director
Section 6 of the DPP Act sets out the functions of the Director, and
section 9 provides for the powers of the Director.
Subsection 31(1) of the DPP Act provides for the Director to delegate all
or any of his or her powers under the Act to a member of the staff of the
Office, other than the Associate Director. The exception to this is that
the Director cannot delegate his or her powers under subsections 6(2D),
9(2) and 9(6D), which include instituting a prosecution on indictment where
a person has not been examined or committed for trial, signing an
indictment and giving an undertaking to a person that the person will not
be prosecuted. The power to delegate under subsection 31(1) is non-
delegable.
It is unclear on the face of the legislation whether the delegation power
in subsection 31(1) extends to functions as well as powers. As currently
drafted, the provision only refers to the delegation of 'powers', but in
setting out the exceptions, refers a 'function' (subsection 6(2D)). This
would suggest that the underlying intention was to provide that the
Director could delegate both functions and powers.
Items 1 and 2 amend subsection 31(1) to put beyond doubt that the Director
can delegate any or all of his or her functions and powers under the Act.
The amendments do not change the position that the functions and powers
under subsections 6(2D), 9(2) and 9(6D), and the power to delegate under
subsection 31(1), cannot be delegated.
Item 3: new subsection 31AA
The DPP Act sets out staffing arrangements for the CDPP. Section 29 of the
DPP Act provides for the secondment of staff to the CDPP. Secondees
include persons whose services are made available to the Director as part
of an arrangement made under section 30 of the DPP Act (paragraph 29(b)).
Section 30 provides for the Attorney-General and the Minister of the Crown
of a State to make administrative arrangements for the secondment of State
officers.
Section 31(1) of the DPP Act provides for the delegation of certain powers
to a member of the staff of the Office. Subparagraph 3(4)(c) of the
DPP Act provides that a member of the staff of the Office includes a person
seconded under section 29. That is, a State officer seconded under a
section 30 arrangement is considered a member of the staff of the Office
for the purposes of the DPP Act.
Section 31(1), as amended by items 1 and 2 of Schedule 3, will allow the
Director to delegate functions to State officers on a secondment
arrangement.
The High Court case of O'Donoghue v Ireland (2008) 82 ALJR 680 suggests
that the DPP Act could provide for the delegation of powers to a State or
Territory official under Commonwealth legislation alone. However,
O'Donoghue indicates that the delegation of functions (which may impose a
duty) may be invalid where there is no arrangement (whether administrative
or legislative) with the State to accept that duty. The distinction is
that powers are not required to be exercised, whereas functions/duties may
be required to be performed.
Item 3 inserts a new subsection 31(1AA) which provides that if a function
is delegated by the Director under subsection 31(1) to a person referred to
in paragraph 29(b), the person need not accept the function delegated.
This is intended to establish that any function delegated under section
31(1) is to be exercised voluntarily, and therefore the conferral is not
invalid within the reasoning of O'Donoghue.
Item 4: new subsection 31(1B)
The CDPP and its State and Territory counterparts have established
arrangements for the conduct of joint trials. A joint trial is where a
defendant has been indicted, or charged, with Commonwealth and State or
Territory offences arising out of the same or related facts. Joint trial
arrangements provide for a single prosecuting authority to conduct the
prosecutions for all charges.
Paragraph 9(2)(b) of the DPP Act allows the Director to authorise a
person to sign indictments on his or her behalf. However, this
authorisation is very limited in its scope and does not extend to
summary offences, committal proceedings or appeals.
Similarly, paragraph 15(1)(da) of the DPP Act provides for a member of
the staff of a State or Territory prosecution agency to appear on
behalf of the Director in certain proceedings. However, the ability to
represent the Director at such proceedings does not include the ability
to exercise any of the powers or functions of the Director (such as to
institute a prosecution on indictment for an offence against the laws
of the Commonwealth).
Item 4 inserts new subsection 31(1B) to allow the Director to delegate
certain functions and powers necessary for the conduct of joint trial,
to certain persons or classes of persons.
Persons or classes of persons
The persons or classes of persons to whom the Director can delegate
functions and powers are set out in new paragraphs 31(1B)(a) - (d).
This approach has been taken as the persons who might appropriately be
part of a joint trial may vary between jurisdictions, and the
descriptions of those persons under State and Territory legislation may
differ.
For example, new paragraph 31(1B)(a) would include (but not be limited
to) the Director of Public Prosecutions in a State or Territory.
Similarly, new paragraph 31(1B)(b) would include (but not be limited
to) the staff of a State or Territory Office of Public Prosecutions,
regardless of how such persons are described in State or Territory
legislation.
Further, new paragraph 31(1B)(c) is intended to cover persons who are
authorised to institute or conduct prosecutions under a law of a State
or Territory, but who are not performing a similar function to the
Director, and who are not members of staff of a State or Territory
authority. For example, this paragraph would cover a Crown Prosecutor
appointed under the Crown Prosecutors Act 1986 (NSW) who is authorised
under that Act to conduct prosecutions. Another example is a person
authorised to sign an indictment under subsection 126(2) of the
Criminal Procedure Act 1986 (NSW).
Finally, new paragraph 31(1B)(d) is included to cover other possible
classes of persons responsible for prosecution activities in a State or
Territory but who, due to the structure of the relevant prosecutorial
agency in the State or Territory, do not come within the terms of
paragraphs 31(1B)(a) to (c).
Functions and powers
The functions and powers that may be delegated to a person under new
subsection 31(1B) are those that may be required for the purposes of
conducting a joint trial.
The functions and powers set out in new paragraphs 31(1B)(e) - (h)
relate to instituting and carrying on a prosecution for a Commonwealth
offence, including: proceedings for the commitment of a person for
trial, exercising rights of appeal in respect of a prosecution for a
Commonwealth offence and doing anything incidental or conducive to the
performance of those functions.
New subparagraph 31(1B)(i) enables the Director to delegate additional
functions and powers as prescribed by the regulations. This will allow
new functions or powers identified as relevant to the conduct of joint
trials to be added by regulation, enabling the delegation power to
remain flexible and current.
Conferral of functions on a State officer
New subsection 31(1B) allows both powers and functions to be conferred on
State officers to facilitate joint trials. Again, this addresses the issue
dealt with in O'Donoghue discussed above under item 3.
New subsection 31(1C) is intended to establish that any functions delegated
under section 31(1B) are to be exercised voluntarily, and therefore the
conferral is not invalid within the reasoning of O'Donoghue.
Items 5, 6 and 7: subsection 31(2) - delegation by Director
Subsection 31(2) of the DPP Act provides that an exercise of a power
delegated under section 31 is deemed to have been an exercise of power
by the Director.
Items 5, 6 and 7 make corresponding amendments to subsection 31(2) to
refer to the performance of functions as well as the exercise of
powers. That is, that a function delegated under section 31 will be
deemed to have been performed by the Director. These items are
necessary because items 2 - 4 amend section 31 to provide for the
delegation of both functions and powers.
Item 8: Subsection 31(3) - delegation by Director
Subsection 31(3) of the DPP Act provides that a delegation under
section 31 does not prevent the exercise of a power by the Director.
Item 8 makes a corresponding amendment to subsection 31(3) to refer to
the performance of functions as well as the exercise of powers. That
is, the Director is not prevented from performing a function delegated
under section 31. These items are necessary because items 2 - 4 amend
section 31 to provide for the delegation of both functions and powers.
Item 9: new section 32A - immunity from civil liability
Currently, persons carrying out powers, functions or duties etc under
the DPP Act are exposed to civil liability for their actions and must
rely on an arrangement with the Commonwealth to indemnify them for the
cost of any legal proceedings taken against them or involving them
personally.
Item 9 inserts new provision 32A into the DPP Act to provide certain
individuals with immunity from civil proceedings arising out of the
performance or exercise of powers, functions, duties or services in
good faith under the Act.
New subsection 32A(1) provides that the Director, a member of the staff
of the Office, and a person to whom functions or powers are delegated
under section 31, are immune from a civil action, suit or proceedings,
for acts or omissions done in good faith in the performance or exercise
(or purported performance or exercise) of any function, duty or power
under, or in relation to, the DPP Act. This immunity will extend to
persons to whom functions or powers are delegated under new
subsection 31(1B) (as inserted by item 4).
New subsections 32A(2) and (3) provide immunity from civil proceedings
to acts done, or omitted to be done, in good faith by a person employed
by the Director under subsection 27(3) and persons referred to in
section 29 whose services are made available to the Director
(eg secondees).
As the Notes to subsections 32A(2) and (3) clarify, the immunity in
subsection 32A(1) only applies to a person engaged under
subsection 27(3) or section 29 to the extent that the Director's
functions or powers have been delegated to that person under section
31. Subsections 32A(2) and (3) would ensure that persons who support
the Director in carrying out his or her functions or powers (but do not
themselves exercise functions or powers) are covered by the immunity.
Subsection 32(1) of the DPP Act allows the Director and the Chief
Executive Officer of the Australian Government Solicitor (AGS) to make
arrangements for AGS to perform or exercise all or any of the
Director's functions or powers under the Act.
New subsection 32A(4) provides immunity from civil action, suit or
proceeding to the AGS for acts or omissions done in good faith by the
AGS, in performing a function, or exercising a power, under an
arrangement made under subsection 32(1).
Similarly, new subsection 32A(5) provides immunity from civil
proceedings to the Chief Executive Officer (CEO) of the AGS or staff of
the AGS (employed under subsection 55ZB(1) of the Judiciary Act 1903)
for an act or omission done in good faith, by the person in assisting
the AGS perform a function or exercise a power under an arrangement
made pursuant to subsection 32(1).
Subsection 32A(1)-(3) and (5) only provide immunity for individuals.
Subsection 32A(4) provides immunity for the AGS as a body corporate. This
is considered appropriate as it is the AGS as an entity that is engaged to
perform the functions, or exercise the powers of, the Director under an
arrangement in subsection 32(1).
Subsection 32A(6) provides that, in subsections 32A(4) and (5), AGS has the
same meaning given to it in subsection 32(4). Section 32(4), in defining
AGS, refers to Part VIIIB of the Judiciary Act, which establishes AGS.
Schedule 4 - Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Item 1: section 61 - affixing notices about reporting obligations under
Part 4
Part 4 of the AML/CTF Act imposes reporting obligations relating to the
cross-border movement of physical currency and bearer negotiable
instruments (BNIs). Section 61 of the AML/CTF Act gives a custom officer
the power to affix written notices about these reporting obligations on any
part of an aircraft or ship, or in any other place specified in the AML/CTF
Rules.
This item amends section 61 of the AML/CTF Act to give a customs officer
the power to arrange for another person to affix one or more such notices.
For example, where Customs did not have presence at an airport, a customs
officer could arrange for another airport employee to affix the notice.
Items 2 and 3: paragraphs 62(2)(a) and (b) - notice to travellers about
reporting obligations under Part 4
These items will allow AML/CTF Rules to be made to give a person in charge
of an aircraft or ship more flexibility as to how he or she can discharge
his or her obligation to give travellers to Australia notice of reporting
obligations under the AML/CTF Act relating to the cross-border movement of
physical currency and BNIs.
Section 62 of the AML/CTF Act requires the person in charge of an aircraft
or ship travelling to Australia (without stopping at any other place
outside Australia) to give, or cause to be given, to all persons travelling
on the aircraft or ship, a copy of a written notice about reporting
obligations relating to the cross-border movement of physical currency and
BNIs.
Item 2 amends paragraph 62(2)(a) of the AML/CTF Act to allow the person in
charge of an aircraft or ship to communicate the information contained in
the written notice in the manner prescribed by the AML/CTF Rules. The
AML/CTF Rules are disallowable.
Item 3 amends paragraph 62(2)(b) of the AML/CTF Act to allow the person in
charge of an aircraft or ship to cause the information contained in the
written notice to be communicated in the manner prescribed by the AML/CTF
Rules.
Item 4: subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv) and (v)
-admissibility of information about threshold transaction reports and IFTIs
This item amends subparagraph 124(1)(a)(iv) and subparagraphs 124(1)(b)(iv)
and (v) of the AML/CTF Act to clarify that any further information provided
about a threshold transaction report or an international funds transfer
instruction (IFTI) report under subsection 49(1) of the AML/CTF Act can be
admitted as evidence in court or tribunal proceedings.
The proposed amendments will ensure that any such information has the same
status as the threshold transaction report and IFTI report, which are
admissible in court or tribunal proceedings.
Item 5: subsections 128(4) and (9) - disclosures relating to suspect
transaction reports
This item will prohibit disclosures by an official of a designated agency
about suspect transaction reports obtained under section 16 the FTR Act,
where the disclosure is for the purpose of court or tribunal proceedings or
an investigation.
It is an offence under section 127 of the AML/CTF Act for an official of a
designated agency to disclose AUSTRAC information to another person unless
authorised to do so. An official of a designated agency is authorised
under subsections 128(3) and 128(8) of the AML/CTF Act to disclose AUSTRAC
information:
1) to a person for the purposes of, or in connection with, court or
tribunal proceedings, or proposed or possible court or tribunal
proceedings
2) to a person for the purpose of obtaining legal advice
3) in the course of court or tribunal proceedings, or
4) to a person for the purpose of, or in connection with, an
investigation or a proposed or possible investigation.
However, in these circumstances an official is not authorised to disclose
AUSTRAC information that was obtained as part of a suspicious matter report
(under section 41 of the AML/CTF Act) or further information provided in
relation to a suspicious matter report (obtained under section 49 of the
AML/CTF Act).
Information obtained under section 16 of the FTR Act can currently be
disclosed under subsections 128(3) and 128(8) of the AML/CTF Act. This
information relates to suspect transactions and is of a similar nature to
information relating to suspicious matter reports obtained under sections
41 and 49 of the AML/CTF Act.
This item will amend subsections 128(4) and (9) of the AML/CTF Act to
ensure that suspect transaction reports obtained under section 16 of the
FTR Act are subject to the same prohibition on disclosure as suspicious
matter reports obtained under the AML/CTF Act. Item 5 provides that an
official of a designated agency is not authorised to disclose AUSTRAC
information obtained under section 16 of the FTR Act where the disclosure
is for the purpose of court or tribunal proceedings or an investigation.
Items 6 and 7: sections 130 and 131 - disclosures by officials of a non-
designated Commonwealth agency
Items 6 and 7 amend sections 130 and 131 of the AML/CTF Act to prohibit
officials from a non-designated Commonwealth agency from disclosing certain
AUSTRAC information.
The proposed amendments will strengthen the safeguards under the AML/CTF
Act which protect against the disclosure of sensitive AUSTRAC information
relating to suspicious matters obtained under the AML/CTF Act and suspect
transaction reports obtained under the FTR Act.
Item 8 - application
This item sets out the application of the proposed amendments. Information
obtained before the commencement of these provisions will be subject to the
new restrictions on disclosure. However, the penalties are not
retrospective and will only apply after commencement.
Item 2 will apply in relation to aircraft or ships leaving a place outside
Australia on or after the commencement of Item 2.
Item 4 will apply in relation to court or tribunal proceedings instituted
on or after the commencement of Item 4.
Item 5 will apply in relation to information obtained under section 16 of
the FTR Act before, on or after the commencement of Item 5.
Items 6 and 7 will apply to AUSTRAC information obtained before, on or
after the commencement of these Items.
Schedule 5 - Australian Federal Police Act 1979
Part IV amendments
Part IV of the AFP Act provides the statutory basis for alcohol and other
drug testing, including discretionary and mandatory alcohol tests, and the
types of equipment to be used for the conduct of those tests. The AFP
regulates the consumption of alcohol by its appointees and has a blood
alcohol limit of 0.02 for all AFP appointees while on duty.
The AFP Act differentiates between the terms 'alcohol screening test',
'alcohol breath test' and 'blood test'. Currently, the AFP Act limits the
use of alcohol screening tests to the circumstances outlined in section
40LA. That is, where an authorised manager has a reasonable suspicion that
the appointee is on duty and under the influence of alcohol.
The AFP Act does not currently allow for the conduct of alcohol screening
tests as a preliminary form of testing under sections 40M (random workplace
testing) and 40N (critical incident testing). In these circumstances, only
an 'alcohol breath test', using an 'approved breath analysis instrument',
can be conducted.
The instrumentation used for 'alcohol breath tests' is not readily portable
and requires specialist operator training. In contrast, an approved breath
screening device is portable and easily operated.
The amendments to Part IV of the Act will enable the AFP to use alcohol
screening tests as a preliminary form of testing for all random, targeted
investigation and certain incident alcohol testing. The conduct of
preliminary alcohol screening tests within sections 40M and 40N will enable
alcohol testing to be undertaken in a timely and resource effective manner.
Section 40R of the AFP Act allows the Minister to approve devices,
including devices used to conduct 'alcohol screening tests' under section
40LA, as 'approved screening devices'. An approval by the Minister is a
legislative instrument. The amendments will allow the Minister to approve
devices used to conduct tests for the purposes of the amended sections 40M
and 40N as 'approved screening devices'.
Part V amendments
Part V of the AFP Act was inserted by the Law Enforcement (AFP Professional
Standards and Related Measures) Act 2006 (the AFP Amendment Act 2006) to
modernise the complaints and professional standards regime within the AFP.
If an AFP appointee engages in misconduct, the appointee is subject to
certain consequences depending on the category of conduct within which
their behaviour falls. The AFP Act provides for four different categories
of conduct. The Commissioner and Ombudsman determine jointly, by
legislative instrument, the types of conduct that fall within categories 1
to 3, as defined in the AFP Act. The fourth category of conduct, and the
most serious, is conduct giving rise to a corruption issue.
Section 40RD requires the Commissioner to constitute a unit (the
professional standards unit) to undertake the investigation of category 3
conduct issues and corruption issues. Category 3 conduct includes things
such as a serious breach of the AFP Code of Conduct and improper disclosure
of sensitive information held by the AFP. Examples of conduct that would
give rise to a corruption issue are conduct that perverts the course of
justice and conduct that involves an appointee abusing his or her position
as an appointee of the agency.
Part VI of the Act contains miscellaneous procedural and offence
provisions.
The amendments to Part V and VI aim to rectify drafting oversights, improve
the investigation of conduct issues and allow for the conferral of awards.
Items 1 and 2: subsection 40LA(3), paragraph 40LA(4)(a) - authorised
managers may require AFP appointees to undergo alcohol screening tests etc
These items correct errors in existing subsection 40LA(3) and paragraph
40LA(4)(a), which incorrectly refer to alcohol being present in a test
subject's blood, rather than their breath. Under section 40LA, blood
alcohol content is not measured as part of the screening test, because a
screening test only screens the breath for the presence of alcohol. It
does not provide a blood alcohol content measurement. These items of the
Bill omit 'blood' and substitute 'breath'.
The note to item 1 also replaces the heading of the section 40LA to make it
clear that 'authorised managers' may require AFP appointees to undergo
alcohol screening tests under this section.
Item 3: subsection 40M(1) - alcohol breath tests and prohibited drug tests
This item amends section 40M to allow a person, prescribed under the
regulations, to give a written notice to an AFP employee or special member
on duty, of a direction requiring the employee or special member to undergo
one or more of the alcohol and drug tests set out in subsection 40M(1).
The purpose of this item is to ensure that more comprehensive testing can
take place without the need for a further direction, if preliminary
testing, such as an alcohol screening test, indicates the presence of
alcohol in a test subject's blood.
The note to this item replaces the heading to section 40M to make it clear
that prescribed persons may require AFP employees or special members to
undergo alcohol and prohibited drug tests.
Item 4: before paragraph 40M(1)(a) -alcohol breath tests and prohibited
drug tests
This item inserts a new paragraph allowing for alcohol screening to take
place under section 40M, in addition to alcohol breath tests. The provision
for alcohol screening tests, as a preliminary form of testing, will assist
the AFP in determining whether more rigorous testing, in the form of a
breath test or blood test, is necessary.
Items 5 to 7: paragraphs 40M(1)(a) to (b) - alcohol breath tests and
prohibited drug tests
These items amend grammatical errors arising from the insertion of 'to do
one or more of the following' as inserted into subsection 40M(1), and
outlined at Item 4.
Item 8: before paragraphs 40N(1)(c) and (2)(c) - alcohol breath tests and
prohibited drug tests after certain incidents
This item inserts a new paragraph allowing for alcohol screening to take
place under section 40N, in addition to alcohol breath tests. The provision
for alcohol screening tests, as a preliminary form of testing, will assist
the AFP in determining whether more rigorous testing, in the form of a
breath test or blood test, is necessary.
Item 9: paragraph 40R(1)(b) - approval of screening devices
Under section 40R of the AFP Act, the Minister may approve devices used to
conduct 'alcohol screening tests' under section 40LA as 'approved screening
devices'.
This item amends paragraph 40R(1)(b) to allow the Minister to approve
devices used to conduct tests for the purposes of sections 40M and 40N
(which will be amended as outlined above to allow for an alcohol screening
test to be conducted). The effect of this provision will be to allow the
Minister to approve screening devices for the purposes of section 40LA, 40M
and 40N.
Items 10 - 14: section 40RO - category 2 conduct
The AFP Act provides for four different categories of conduct issues. The
least serious is category 1 conduct, which includes conduct that relates to
minor management matters or customer service matters and conduct that
reveals a need for improvement in the performance of the AFP appointee
concerned. Category 2 conduct is the next most serious, and includes minor
misconduct by an AFP appointee and inappropriate conduct that reveals
unsatisfactory behaviour by an AFP appointee.
Section 40RO of the AFP Act defines category 2 conduct, and currently
requires that it involve repeated instances of category 1 conduct. This
definition was inserted by the AFP Amendment Act 2006. However, it was not
intended that section 40RO define category 2 conduct to require it to be
repeated instances of category 1 conduct. These items will amend
section 40RO to give effect to the original intention that category 2
conduct be either particular kinds of conduct as defined by
subsection 40RO(1)(a) or conduct that involves repeated instances of
category 1 conduct. For example, a single instance of a threat to use
force against a person that is not authorised by a warrant, or repeated
instances of unreasonable delays in dealing with issues, could each
constitute category 2 conduct.
These items also move the content of paragraph 40RO(c) to a new subsection.
This is purely a technical drafting amendment and has no substantive
effect.
Items 15 and 16: subsection 40TN(1) - head of unit constituted under
section 40RD generally allocates issues for investigation
The AFP Act provides for four different categories of conduct issues. The
least serious is category 1 conduct, followed by category 2 conduct,
category 3 conduct and finally, conduct giving rise to a corruption issue.
Subsection 40TN(1) of the AFP Act provides that, subject to section 40TO,
the head of the professional standards unit must allocate an AFP conduct
issue or corruption issue to a person who is a member, or a special member
of the AFP. Subsection 40TN(3) provides that the issue may be allocated to
a person outside the professional standards unit to investigate with the
Commissioner's agreement. However, by virtue of subsection 40TN(1), that
person must be a member, or special member, of the AFP.
The need for a person who is allocated an issue to be a member, or a
special member of the AFP, creates difficulties where it is necessary to
conduct a joint investigation between the professional standards unit and
another agency, such as a State or Territory police force. In these
circumstances, members of an agency other than the AFP must be sworn in as
special members of the AFP, providing these investigators with a range of
powers that go beyond the investigative powers provided for in Part V,
Division 5 of the AFP Act.
Paragraph 40TO(1)(b) of the AFP Act allows the Commissioner to allocate an
issue to a person outside the professional standards unit, who need not be
a member, or special member of the AFP. However, that provision is
intended to address circumstances where allocating the matter to the unit
may compromise the investigation. Accordingly, the Commissioner can only
allocate the issue to a person outside the unit if he or she is satisfied
that it would be 'inappropriate' for the issue to be allocated to a person
within the professional standards unit. It is not appropriate to rely upon
this provision where the professional standards unit need to participate in
a joint investigation with another agency.
These items will amend subsection 40TN(1) to provide that the head of the
professional standards unit may allocate category 3 conduct issues to 'law
enforcement officers' within the meaning of section 3 of the Crimes Act.
The term 'law enforcement officer', as defined in the Crimes Act, includes
members and special members of the AFP, members of a State or Territory
police force, staff members of the Australian Commission for Law
Enforcement Integrity and the Australian Crime Commission, officers of the
Australian Customs Service, and members of a police force or other law
enforcement agency of a foreign country. This will allow the unit to
participate in a joint investigation with another agency without the need
for officers of the other agency to first be sworn in as special members of
the AFP.
These amendments have no effect on the AFP's capacity to conduct a joint
investigation with another agency, with the Commissioner's agreement.
Further, subsection 40VB(5) of the AFP Act authorises the Commissioner to
give the investigator directions as to the manner in which the
investigation is to be conducted. This provision is applicable to an
investigator appointed under these amendments.
Item 17: subsection 61(1) - awards for bravery
Under section 61 of the AFP Act, the Commissioner may confer awards upon a
Deputy Commissioner, AFP employee, special member or a special protective
service officer where 'bravery or other conspicuous conduct' merits the
conferring of a prescribed award.
This item amends subsection 61(1) to allow for the conferral of awards on
an 'AFP appointee'. The effect of the provision is to allow for the
recognition of a broader range of AFP employees including contractors
engaged under section 35 of the Australian Federal Police Act. The item
also extends the application of section 61 to a person who is assisting the
AFP pursuant to an agreement under section 69D of the AFP Act.
Item 18: subsection 61(1) - awards for bravery
This item amends subsection 61(1) to allow for the conferral of awards for
'diligent service'. The inclusion of 'diligent service' enables a wider
range of conduct, worthy of award, to be recognised.
Item 19: after subsection 61(1) - awards for bravery
This item inserts a new subsection which allows the Commissioner to confer
an award on a person, other than an AFP appointee, who has, by his or her
bravery, or conspicuous conduct, assisted the Australian Federal Police.
This item will ensure that people who assist the AFP (but who are not AFP
appointees and who are not operating pursuant to an agreement under section
69D) can be recognised for their contribution. For example, this item
allows for awards to be conferred on employees of other agencies who assist
the AFP, but who are not covered by secondment or other arrangements.
Item 20: subsection 64A(2) - members in uniform to wear identification
numbers
The Australian Federal Police and Other Legislation Amendment Act 2004
amended subsection 64A(1) of the AFP Act so the members of the AFP only had
to have their identification numbers 'clearly visible on the uniform' as
opposed to 'on, or attached to, the front of his or her uniform'. It is an
offence for a member to breach this requirement. There is a penalty of
five penalty units.
Subsection 64A(2) is a defence provision to the offence created in
subsection 64(1) of the AFP Act. This subsection still refers to the
identification number being worn at the front of the uniform. This creates
an anomaly in that there is no defence to the offence, as was intended.
This item amends subsection 64A(2) so that the defence matches the offence
and is therefore effective.
Item 21: application
This item provides that 'diligent service' in Item 18 applies in relation
to service occurring before, on or after, the commencement of Item 18. This
ensures that AFP appointees can be recognised for service undertaken
throughout their careers rather than limiting it to service undertaken
after the commencement of this item.
Schedule 6 - Judiciary Act 1903
Item 1: section 55D - right to practise as a barrister or solicitor in
Territories
This item repeals section 55D of the Judiciary Act 1903. Section 55D is
concerned with the criteria for eligibility to practise law
in Territories. The section enables a person who has been admitted to the
roll of the High Court kept under the rules of the Court, or a State or
Territory Supreme Court, to practise in a Territory. Over time, the
section has been disapplied to all Territories except the Australian
Capital Territory and Norfolk Island. Because both of these jurisdictions
have now enacted comprehensive legislation regulating the legal
profession, including a requirement that legal practitioners hold
practising certificates, the provision is no longer operative and can be
repealed.
Items 2, 3 and 4 - subsection 55E(1) (paragraph (a) of the definition of
Attorney-General's lawyer), section 55I (paragraph (b) of the definition of
AGS lawyer), subsection 55T(2)
Items 2 to 4 of the schedule are consequential amendments which remove
references to section 55D (which is repealed in this Bill) in paragraphs
55E(1)(a) and 55I(b) and subsection 55T(2) of the Judiciary Act 1903 (Cth).
Schedule 7 - Miscellaneous
Items 1 and 2: subparagraphs 3AA(1)(d)(i) and (ii) Crimes Act 1914 and
subparagraphs 4AA(1)(d)(i) and (ii) of the Australian Federal Police Act
1979
This item removes the term 'relevant criminal activity' from the definition
of 'State offences with a federal aspect'. The description of State
offences with a federal aspect, that was inserted in subsection 3AA(1) of
the Crimes Act and subsection 4AA(1) of the Australian Federal Police Act,
was modelled on section 4A of the Australian Crime Commission Act 2002. The
phrase 'relevant criminal activity' is defined in section 4 of the
Australian Crime Commission Act as 'any circumstances implying, or an
allegations, that a serious and organised crime may have been, may be
being, or may in the future be, committed against a law of the
Commonwealth, or a State or Territory'.
The reference to 'serious and organised crime' is relevant to the
Australian Crime Commission's special functions in investigating such
crimes. However, it is not applicable to the Australian Federal Police and,
'relevant criminal activity' is not defined in either the Australian
Federal Police Act or the Crimes Act. It appears that the inclusion of
'relevant criminal activity' was an oversight when section 4A of the
Australian Crime Commission Act was used as a template for the definition
of State offences with a federal aspect in the Australian Federal Police
Act and the Crimes Act.
Item 3: subsection 477.1(5) Criminal Code Act 1995 - unauthorised access,
modification or impairment with intent to commit a serious offence
This item corrects a drafting error in subsection 477.1(5) by deleting
reference to 'subsection (3)', and inserting 'subsection (4)'. Subsection
477.1(5) of the Criminal Code specifies the fault element to an offence
contained in subsection 477.1(4). Subsection 477.1(4) makes it an offence
to cause unauthorised access, modification or impairment of data held in a
computer to facilitate the commission of a serious offence against a law of
the Commonwealth.
Item 4: subsection 6(1) (after paragraph (k) of the definition of
enforcement body) of the Privacy Act 1988
This item amends the definition of 'enforcement body' in subsection 6(1) of
the Privacy Act 1988 to include the Office of Police Integrity (OPI) in
Victoria.
The effect of this amendment is that a private sector organisation which is
subject to the Privacy Act (such as a private utility company) will be able
to use or disclose personal information where it reasonably believes this
is reasonably necessary for one or more of the functions or activities
listed in National Privacy Principle 2.1(h) in Schedule 3 to the Privacy
Act, where these are carried out by, or on behalf of, OPI.
This provides OPI with the same status that comparable law enforcement
bodies have under the Privacy Act, such as the Police Integrity Commission
of New South Wales and the Crime and Misconduct Commission of Queensland.