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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Measures to
Combat Serious and Organised Crime Bill
2001
No. ,
2001
(Justice and
Customs)
A Bill for an Act to amend the
Crimes Act 1914, and for other purposes
ISBN:
0642 468788
Contents
Crimes Act
1914 3
Crimes Act
1914 22
Crimes Act
1914 35
Crimes Act
1914 46
Customs Act
1901 56
Australian Federal Police Act
1979 59
Customs Act
1901 61
Crimes Act
1914 66
A Bill for an Act to amend the Crimes Act 1914,
and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Measures to Combat Serious and Organised
Crime Act 2001.
(1) This section and sections 1 and 3 commence on the day on which
this Act receives the Royal Assent.
(2) Subject to subsection (3), Schedules 1 and 2 commence on a
day or days to be fixed by Proclamation.
(3) If Schedule 1 or 2 does not commence under subsection (2)
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, that Schedule commences on the first day after the end of that
period.
(4) Item 10 of Schedule 4 commences on a day to be fixed by
Proclamation.
(5) The remainder of this Act commences on the 28th day after the day on
which it receives the Royal Assent.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 3(1)
Insert:
AFP authorising officer has the meaning given in subsection
15J(3).
2 Subsection 3(1)
Insert:
appropriate authorising officer, in relation to a certificate
given under section 15M, means:
(a) if the certificate is given by an AFP authorising officer—any
AFP authorising officer; or
(b) if the certificate is given by an NCA authorising officer—any
NCA authorising officer; or
(c) if the certificate is given by a Customs authorising officer—any
Customs authorising officer.
3 Subsection 3(1) (definition of authorising
officer)
Repeal the definition, substitute:
authorising officer, in relation to a controlled operation,
has the meaning given in section 15J.
4 Subsection 3(1)
Insert:
Commonwealth offence, except in Part 1C, means an
offence against a law of the Commonwealth.
5 Subsection 3(1)
Insert:
Customs authorising officer has the meaning given in
subsection 15J(5).
6 Subsection 3(1)
Insert:
illicit goods means goods the possession of which is a
contravention of a law of the Commonwealth, a State or a Territory.
7 Subsection 3(1) (definition of narcotic
goods offence)
Repeal the definition.
8 Subsection 3(1)
Insert:
NCA authorising officer has the meaning given in subsection
15J(4).
9 Subsection 3(1)
Insert:
quarter means a period of 3 months ending on 31 January,
30 April, 31 July or 31 October.
10 Subsection 3(1)
Insert:
senior executive Customs employee means a member of the staff
of the Australian Customs Service, referred to in section 15 of the
Customs Administration Act 1985, who is an SES employee.
11 Part 1AB (heading)
Repeal the heading, substitute:
12 Paragraph 15G(1)(a)
Repeal the paragraph, substitute:
(a) to exempt from criminal liability, and to indemnify from civil
liability:
(i) law enforcement officers who, in the course of a controlled operation
authorised as provided under this Part; and
(ii) others who, when authorised by a law enforcement officer and in the
course of a controlled operation authorised as provided under this
Part;
take an active part, or are otherwise involved, in the commission of a
Commonwealth offence or an offence against a law of a State or Territory;
and
13 Subparagraph
15G(1)(b)(i)
Omit “and the Chairperson of the National Crime Authority”,
substitute “, the Chairperson of the National Crime Authority and the
Chief Executive Officer of Customs”.
14 Subparagraph
15G(1)(c)(i)
Omit “Act”, substitute “Part”.
15 Paragraph 15G(2)(a)
After “to”, insert “admit or”.
16 After section 15G
Insert:
It is the Parliament’s intention that a law of a State or Territory
should be able to operate concurrently with this Part unless the law is directly
inconsistent with this Part.
17 Sections 15H, 15I and
15J
Repeal the sections, substitute:
A controlled operation is an operation
that:
(a) involves the participation of law enforcement officers; and
(b) is carried out for the purpose of obtaining evidence that may lead to
the prosecution of a person for a Commonwealth offence; and
(c) may involve a law enforcement officer or other person in acts, or
omissions to act, that would, apart from subsection 15I(1) or (3), constitute a
Commonwealth offence or an offence against a law of a State or
Territory.
In this Part:
(a) a reference to engaging in conduct includes a reference to omitting to
act; and
(b) a reference to a person’s conduct includes a reference to the
person’s omissions.
(1) A law enforcement officer who engages in conduct that, apart from this
subsection, would constitute a Commonwealth offence or an offence against a law
of a State or Territory is not criminally responsible for that offence
if:
(a) he or she engages in that conduct in the course of duty for the
purposes of a controlled operation; and
(b) the conduct meets the requirements of subsection 15IB(1).
(2) A person who is not a law enforcement officer and who engages in
conduct that, apart from this subsection, would constitute a Commonwealth
offence or an offence against a law of a State or Territory is not criminally
responsible for that offence if:
(a) he or she engages in that conduct for the purposes of a controlled
operation; and
(b) a law enforcement officer has authorised the person to engage in that
conduct; and
(c) the conduct meets the requirements of subsection 15IB(2).
(3) The fact that, because of subsection (1) or (2), a person whose
conduct is covered by a certificate given under section 15M is not
criminally responsible for an offence does not affect the liability, for that
offence or any other offence, of any person whose conduct is not covered by the
certificate.
(4) Subsection (3) applies despite any provision of Chapter 2 of
the Criminal Code to the contrary.
(5) If:
(a) the importation of goods of a particular kind into Australia is an
offence against a law of the Commonwealth; and
(b) a person imports goods of that kind into Australia; and
(c) because of this section, that person is not liable for an offence
against that law in respect of the importation; and
(d) that law provides for another consequence, other than that
person’s criminal liability, to arise from the importation (for example,
forfeiture of the goods);
this section does not prevent that consequence from arising under that
law.
(6) For the purposes of this section, a member of a police force or other
law enforcement agency of a foreign country is taken to be acting in the course
of duty to the extent that he or she takes part in the controlled operation in
accordance with the instructions given by an Australian law enforcement
officer.
(1) The Commonwealth must indemnify a law enforcement officer against any
liability (including reasonable costs) the officer incurs because of conduct the
officer engages in if:
(a) he or she engages in that conduct in the course of duty for the
purposes of a controlled operation; and
(b) the conduct meets the requirements of subsection 15IB(1);
and
(c) the requirements (if any) specified in the regulations have been
met.
(2) The Commonwealth must indemnify a person who is not a law enforcement
officer against any liability (including reasonable costs) the person incurs
because of conduct the person engages in if:
(a) he or she engages in that conduct for the purposes of a controlled
operation; and
(b) a law enforcement officer has authorised the person to engage in that
conduct; and
(c) the conduct meets the requirements of subsection 15IB(2);
and
(d) the requirements (if any) specified in the regulations have been
met.
(3) For the purposes of this section, a member of a police force or other
law enforcement agency of a foreign country is taken to be acting in the course
of duty to the extent that he or she takes part in the controlled operation in
accordance with the instructions given by an Australian law enforcement
officer.
(1) A law enforcement officer’s conduct relating to a controlled
operation meets the requirements of this subsection if:
(a) at the time when he or she engages in that conduct there is in force a
certificate given under section 15M that authorises the operation;
and
(b) the conduct is within the nature of the activities covered by the
certificate; and
(c) the conduct does not breach any conditions to which the certificate is
subject; and
(d) the conduct does not involve intentionally inducing a person to
commit:
(i) a Commonwealth offence, or an offence against a law of a State or
Territory, that that person would not otherwise have intended to commit;
or
(ii) an offence of that kind; and
(e) the conduct does not involve the commission of a sexual offence
against any person or an offence involving the death of or serious injury to any
person.
(2) Any other person’s conduct relating to a controlled operation
meets the requirements of this subsection if:
(a) at the time when he or she engages in that conduct there is in force a
certificate given under section 15M that authorises the operation;
and
(b) the certificate identifies the person as being permitted to be
involved in the operation; and
(c) the conduct is within the nature of the activities covered by the
certificate; and
(d) the conduct does not breach any conditions to which the certificate is
subject; and
(e) the conduct does not involve intentionally inducing a person to
commit:
(i) a Commonwealth offence, or an offence against a law of a State or
Territory, that that person would not otherwise have intended to commit;
or
(ii) an offence of that kind; and
(f) the conduct does not involve the commission of a sexual offence
against any person or an offence involving the death of or serious injury to any
person.
Sections 15I and 15IA do not apply to a person’s conduct that
is authorised, or could have been authorised, under a law of the Commonwealth, a
State or a Territory relating to:
(a) arrest or detention of individuals; or
(b) searches of individuals; or
(c) entry onto, or searches or inspections of, premises; or
(d) searches, inspections or seizures of other property; or
(e) forensic procedures; or
(f) electronic surveillance devices or telecommunications interception;
or
(g) identification procedures; or
(h) any other matter concerning powers of criminal
investigation.
(1) An Australian law enforcement officer may apply to an authorising
officer for a certificate authorising a controlled operation.
(2) Any of the following is an authorising officer for the
controlled operation:
(a) if the functions of the Australian Federal Police include
investigating the suspected criminal activity to which the operation
relates—any AFP authorising officer;
(b) if the functions of the National Crime Authority include investigating
the suspected criminal activity to which the operation relates—any NCA
authorising officer;
(c) if the functions of the Australian Customs Service include
investigating the suspected criminal activity to which the operation
relates—any Customs authorising officer.
(3) The following are AFP authorising officers:
(a) the Commissioner;
(b) a Deputy Commissioner;
(c) a senior executive AFP employee who is a member of the Australian
Federal Police and who is authorised in writing by the Commissioner for the
purposes of this paragraph.
(4) The members of the National Crime Authority are NCA authorising
officers.
(5) The following are Customs authorising
officers:
(a) the Chief Executive Officer of Customs;
(b) a senior executive Customs employee who is authorised in writing by
the Chief Executive Officer of Customs for the purposes of this
paragraph.
18 Transitional provision—pending
applications
(1) Any application for a certificate authorising a controlled
operation:
(a) that was made before the commencement of this Schedule; and
(b) about which a decision was not made before that
commencement;
ceases to have effect on that commencement.
(2) However, this item does not prevent a new application being made after
that commencement.
19 Section 15M
Omit “satisfied”, substitute “reasonably
satisfied”.
20 Paragraphs 15M(a), (b), (c) and
(d)
Repeal the paragraphs, substitute:
(a) it is likely that a Commonwealth offence has been, is being or will be
committed; and
(b) the nature and extent of the offence, and any suspected criminal
activity that is related to it, justifies a controlled operation; and
(c) conducting the operation would not involve intentionally inducing a
person to commit:
(i) a Commonwealth offence, or an offence against a law of a State or
Territory, that that person would not otherwise have intended to commit;
or
(ii) an offence of that kind; and
(d) any unlawful activity involved in conducting the operation will be
limited to the maximum extent consistent with conducting an effective controlled
operation; and
(e) the operation will be conducted in a way that ensures that, to the
maximum extent possible, any illicit goods involved in the operation will be
under the control of an Australian law enforcement officer at the end of the
operation; and
(f) any unlawful activity involved in conducting the operation will
not:
(i) seriously endanger the health or safety of any person; or
(ii) cause the death of, or serious injury to, any person; or
(iii) involve the commission of a sexual offence against any person;
or
(iv) result in loss of, or serious damage to, property (other than illicit
goods); and
(g) the operation will be conducted in a way that is consistent with the
reporting and accountability requirements of this Part; and
(h) if a person who is not a law enforcement officer is to be involved in
the operation—the role to be assigned to the person could not adequately
be performed by a law enforcement officer.
21 Subparagraph
15N(2)(c)(ii)
Omit “the narcotic goods”, substitute “any illicit
goods”.
22 Subparagraphs 15N(2)(c)(iii), (iv) and
(v)
Omit “the narcotic goods”, substitute “any such illicit
goods”.
23 After paragraph
15N(2)(c)
Insert:
(ca) state the nature of the activities covered by the certificate;
and
(cb) identify each person who:
(i) is not a law enforcement officer; and
(ii) is permitted to be involved in the operation; and
(cc) for each person identified, state the nature of the activities
covered by the certificate in relation to that person; and
(cd) state any conditions to which the certificate is subject;
and
24 After subsection 15N(2)
Insert:
(2A) A person referred to in paragraph (2)(cb) may be identified, for
the purposes of that paragraph, by a false name or a code if:
(a) the Commissioner; or
(b) the Chairperson of the National Crime Authority; or
(c) the Chief Executive Officer of Customs;
holds a document that enables the person to be identified from that false
name or code.
25 Subsection 15N(4)
Omit “30 days”, substitute “6 months”.
26 At the end of subsection
15N(4)
Add:
Note: A certificate must be reviewed in order for it to
remain in force longer than 3 months: see section 15OB.
27 After section 15N
Insert:
(1) An Australian law enforcement officer may apply to an appropriate
authorising officer for variation of a certificate given under
section 15M.
(2) The application must:
(a) be in writing signed by the applicant; and
(b) contain, or be accompanied by, such information, in writing, as the
appropriate authorising officer requires to decide whether or not to grant the
application.
(3) If the application complies with this section, the appropriate
authorising officer may vary the certificate if he or she is reasonably
satisfied that:
(a) the certificate as varied could have been given under
section 15M; and
(b) the variation is necessary for:
(i) the success of the controlled operation; or
(ii) the protection of the health or safety of any person; or
(iii) the protection of property from loss or damage; or
(iv) ensuring that all those involved in the operation have appropriate
exemption under section 15I and appropriate indemnity under
section 15IA.
(4) The appropriate authorising officer must give the applicant a written
notice:
(a) stating whether the certificate is varied; and
(b) if the certificate is varied—setting out each
variation.
(5) A variation of the certificate takes effect when the notice is
given.
28 After section 15O
Insert:
(1) Any AFP authorising officer may terminate a certificate given under
section 15M by that or any other AFP authorising officer.
(2) Any NCA authorising officer may terminate a certificate given under
section 15M by that or any other NCA authorising officer.
(3) Any Customs authorising officer may terminate a certificate given
under section 15M by that or any other Customs authorising
officer.
(4) The AFP authorising officer, NCA authorising officer or Customs
authorising officer (as the case requires) must send written notice of the
termination to the Australian law enforcement officer in charge of the
controlled operation to which the certificate relates.
(5) The notice:
(a) must state that the certificate is terminated; and
(b) must be signed by the AFP authorising officer, NCA authorising officer
or Customs authorising officer (as the case requires); and
(c) must specify the time when the notice is to have effect.
(1) A certificate given under section 15M expires at the end of the
period of 6 months after the day on which it was given, unless
subsection (2) applies.
(2) A certificate given under section 15M expires at the end of the
period of 3 months after the day on which it was given unless, during the
period, an appropriate authorising officer has:
(a) reviewed the certificate; and
(b) decided that the certificate should be in force for 6
months.
Note: A certificate can also cease to be in force after a
time specified in the certificate: see paragraph 15P(3)(a).
(3) The certificate must be reviewed by an appropriate authorising officer
during the last 2 weeks of the period of 3 months after the day on which the
certificate was given under section 15M. The appropriate authorising
officer must decide whether the certificate should be in force for 6
months.
(4) The appropriate authorising officer must not decide that the
certificate should be in force for 6 months unless he or she is reasonably
satisfied as to all the matters referred to in paragraphs 15M(a) to
(h).
(5) The appropriate authorising officer must give written notice of his or
her decision on the review to the Australian law enforcement officer in charge
of the controlled operation to which the certificate relates.
29 Paragraph 15P(3)(b)
Omit “when the surrender notice has effect”, substitute
“specified in the surrender notice”.
30 Paragraph 15P(3)(c)
Repeal the paragraph, substitute:
(c) if the certificate is terminated under section 15OA—until
the time specified in the termination notice; or
(d) in any other case—until the certificate expires under
section 15OB.
31 After section 15P
Insert:
(1) If a certificate given under section 15M has been varied in a way
that limits the scope of the certificate, sections 15I and 15IA continue to
apply to a person whose conduct is covered by the certificate, as if the
certificate had not been varied in that way, for so long as he or she:
(a) is unaware of the variation; and
(b) is not reckless with respect to the existence of the
variation.
(2) If a certificate given under section 15M ceases to be in force
because:
(a) it has been surrendered or terminated; or
(b) it has expired at the end of the period of 3 months after the day on
which it was given;
sections 15I and 15IA continue to apply to a person whose conduct is
covered by the certificate, as if there had been no surrender, termination or
expiry, for so long as he or she:
(c) is unaware of the surrender, termination or expiry; and
(d) is not reckless with respect to the existence of the surrender,
termination or expiry.
(3) For the purposes of this section, a person is reckless with respect to
the existence of the variation, surrender, termination or expiry of a
certificate given under section 15M if:
(a) he or she is aware of a substantial risk that the variation,
surrender, termination or expiry existed; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
32 Subsection 15Q(1)
Repeal the subsection, substitute:
(1) This section applies if:
(a) a certificate authorising a controlled operation is given under
section 15M by an AFP authorising officer or an NCA authorising officer;
and
(b) the applicant for the certificate believes that illicit goods involved
in the conduct of the operation may be dealt with by the Australian Customs
Service.
33 Subparagraphs 15Q(2)(c)(i) and
(ii)
Omit “narcotic goods”, substitute “illicit
goods”.
34 Section 15R
Repeal the section, substitute:
(1) The Commissioner must, within 2 weeks after the end of each quarter,
give to the Minister a report informing the Minister of the following that
occurred during the quarter:
(a) each decision by an AFP authorising officer to grant or refuse an
application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a
person;
(c) each review of a certificate under subsection 15OB(3) by such a
person;
(d) each occasion on which a certificate, given by such a person, is
surrendered under section 15O or terminated under
section 15OA;
(e) each certificate, given by such a person, that is still in force at
the end of the quarter.
(2) The Chairperson of the National Crime Authority must, within 2 weeks
after the end of each quarter, give to the Minister a report informing the
Minister of the following that occurred during the quarter:
(a) each decision by an NCA authorising officer to grant or refuse an
application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a
person;
(c) each review of a certificate under subsection 15OB(4) by such a
person;
(d) each occasion on which a certificate, given by such a person, is
surrendered under section 15O or terminated under
section 15OA;
(e) each certificate, given by such a person, that is still in force at
the end of the quarter.
(3) The Chief Executive Officer of Customs must, within 2 weeks after the
end of each quarter, give to the Minister a report informing the Minister of the
following that occurred during the quarter:
(a) each decision by a Customs authorising officer to grant or refuse an
application for a controlled operation;
(b) each variation of a certificate under section 15NA by such a
person;
(c) each review of a certificate under subsection 15OB(4) by such a
person;
(d) each occasion on which a certificate, given by such a person, is
surrendered under section 15O or terminated under
section 15OA;
(e) each certificate, given by such a person, that is still in force at
the end of the quarter.
35 Subsections 15S(1) and
(2)
Repeal the subsections, substitute:
(1) A report under section 15R must:
(a) include the reasons for each of the following decisions that is
covered by the report:
(i) each decision referred to in paragraph 15R(1)(a), (2)(a) or
(3)(a);
(ii) each variation referred to in paragraph 15R(1)(b), (2)(b) or
(3)(b);
(iii) the decision on each review referred to in paragraph 15R(1)(c),
(2)(c) or (3)(c); and
(b) include sufficient details of:
(i) each surrender or termination of a certificate referred to in
paragraph 15R(1)(d), (2)(d) or (3)(d); and
(ii) each certificate referred to in paragraph 15R(1)(e), (2)(e) or
(3)(e);
to identify the certificate.
(1A) The reasons included in the report for a decision giving a
certificate authorising a controlled operation must include an indication of the
extent to which the authorising officer, in making the decision, took into
account the seriousness of:
(a) the Commonwealth offence in relation to which the certificate was
given; and
(b) any suspected criminal activity that is related to that
offence.
(2) If a controlled operation was carried out, and the certificate
relating to the operation ceased to be in force, during the quarter to which the
report relates, the report must also:
(a) identify each person targeted by the operation; and
(b) identify each person whose conduct was covered by the certificate, and
state whether the person was a law enforcement officer at the time of the
operation; and
(c) state the nature of the activities engaged in for the purposes of the
operation; and
(d) if the operation involved illicit goods, state, to the extent
known:
(i) the nature and quantity of the illicit goods; and
(ii) the route through which the illicit goods passed in the course of the
operation; and
(e) if the operation involved illicit goods that are narcotic
goods:
(i) identify the agency to which any law enforcement officer who, in the
course of the operation, had possession of the narcotic goods belonged;
and
(ii) identify, to the extent known, any person (other than a law
enforcement officer) who, in the course of the operation, had possession of the
narcotic goods; and
(iii) state whether or not the narcotic goods have been destroyed;
and
(iv) if the narcotic goods have not been destroyed—contain the
information specified in subsection (3) relating to the possession of the
narcotic goods, or state that it is not known who has possession of
them.
Note: The heading to section 15S is replaced by the
heading “Contents of quarterly reports”.
36 Subsection 15S(3)
Omit “the narcotic goods”, substitute “the controlled
operation involved narcotic goods that”.
37 Subsection 15S(4)
Repeal the subsection.
38 Subsection 15S(5)
Omit “who has, or had in the course of the operation, possession of
narcotic goods”.
39 Subsection 15S(5)
Omit “paragraph (2)(d) or (3)(b)”, substitute
“paragraph (2)(b), subparagraph (2)(e)(ii) or
paragraph (3)(b)”.
40 Paragraph 15S(5)(c)
Omit “code name”, substitute “code”.
41 Transitional provision—quarterly
reports to the Minister
If this Schedule does not commence at the beginning of a quarter,
sections 15R and 15S of the Crimes Act 1914 as in force after that
commencement do not require the reports relating to the quarter in which that
commencement occurred to inform the Minister of:
(a) any decision made before that commencement; and
(b) any certificate given under section 15M of that Act before that
commencement; and
(c) any variation, review or expiry of a certificate that occurred before
that commencement.
However, sections 15R and 15S of that Act as in force immediately
before that commencement continue to apply, after that commencement, in relation
to any such decision or certificate.
42 Paragraph 15T(2)(b)
Omit “section 15S”, substitute
“section 15R”.
43 Subsection 15T(3)
Omit “anything about a named person”, substitute “any
information about a person (including the person’s name)”.
44 Subsection 15T(4)
Omit “or the Chairperson of the National Crime Authority”,
substitute “, the Chairperson of the National Crime Authority or the Chief
Executive Officer of Customs”.
45 Subsection 15U(1)
Repeal the subsection, substitute:
(1) In a prosecution for a Commonwealth offence in respect of which a
controlled operation was conducted, a document purporting to be a certificate,
given under section 15M, authorising the operation:
(a) may be tendered in evidence; and
(b) is conclusive evidence that the authorising officer who gave the
certificate was satisfied as to the facts stated in the document, to the extent
that they are facts of a kind that are required under section 15N to be
included in a certificate.
46 Subsection 15U(2)
Omit “or the Chairperson of the National Crime Authority”,
substitute “, the Chairperson of the National Crime Authority or the Chief
Executive Officer of Customs”.
47 Subsection 15U(2)
Omit “shall”, substitute “may”.
48 Transitional provision—existing
certificates
(1) Part IAB of the Crimes Act 1914 as amended by this Act does
not apply to a certificate, given under section 15M of that Act, that was
in force immediately before the commencement of this Schedule.
(2) However, Part IAB of that Act, as in force immediately before that
commencement, continues to apply to such a certificate.
1 After Part 1AB
Insert:
(1) In this Part:
approved officer means an officer or foreign officer referred
to in an authorisation under paragraph 15XI(2)(c).
approved person means a person referred to in an
authorisation under subparagraph 15XI(2)(d)(i).
authorisation means an authorisation that is in force under
section 15XG or 15XH.
authorisation conditions means conditions to which an
authorisation is subject under paragraph 15XI(2)(j).
authorising person means:
(a) the head of a participating agency; or
(b) a person in a participating agency, included in a prescribed class of
persons, who is authorised in writing by the head of the
agency.
Commonwealth agency means:
(a) the Commonwealth; or
(b) an authority of the Commonwealth.
Commonwealth participating agency means one of the following
agencies:
(a) the Australian Federal Police;
(b) the Australian Customs Service;
(c) the National Crime Authority;
(d) the Australian Security Intelligence Organisation;
(e) the Australian Secret Intelligence Service;
(f) that part of the Department of Defence known as the Defence Signals
Directorate;
(g) that part of the Department of Defence known as the Defence
Intelligence Organisation;
(h) the Australian Taxation Office;
(i) any other Commonwealth agency specified in the
regulations.
foreign officer means an officer, however described, of an
agency that has responsibility for:
(a) law enforcement in a foreign country; or
(b) intelligence gathering for a foreign country; or
(c) security of a foreign country.
issuing agency means:
(a) a Commonwealth agency; or
(b) a non-government body;
that is referred to in an authorisation under paragraph
15XI(2)(f).
issuing evidence of an assumed identity includes making an
entry in a record of information in respect of the assumed identity.
non-government body means a body that is not managed or
controlled by or on behalf of the Commonwealth or the Government of a State or
Territory.
participating agency means either a Commonwealth
participating agency or a State or Territory participating agency.
State or Territory participating agency means:
(a) the police force of a State or Territory; or
(b) one of the following bodies:
(i) the Independent Commission Against Corruption established under the
Independent Commission Against Corruption Act 1988 of New South
Wales;
(ii) the Queensland Criminal Justice Commission established by the
Criminal Justice Act 1989 of Queensland;
(iii) the Western Australian Anti-Corruption Commission established by the
Anti-Corruption Act 1988 of Western Australia;
(iv) a similar body established under a law of a State or Territory;
or
(c) one of the following bodies:
(i) the New South Wales Crime Commission established under the New
South Wales Crime Commission Act 1985 of New South Wales;
(ii) the Queensland Crime Commission established by the Crime
Commission Act 1997 of Queensland;
(iii) a similar body established under a law of a State or Territory;
or
(d) any other body or agency of a State or Territory specified in
the regulations.
supervising officer means the officer referred to in an
authorisation under subparagraph 15XI(2)(d)(ii).
(2) A reference in this Part to an approved officer or an approved person
using an assumed identity includes a reference to:
(a) the officer or person representing the identity covered by his or her
authorisation to be his or her real identity when it is not (whether that
representation is express or implied, and whether it is by words, conduct or
omission); or
(b) such an officer or person acting in a way that is consistent with such
an identity, rather than the person’s real identity.
(3) A reference in this Part to an approved officer or approved person
acquiring evidence of an assumed identity includes a reference to the officer or
person obtaining, or taking any steps towards obtaining, a document or other
thing that purports to evidence the identity covered by his or her
authorisation, when it is not the real identity of the person.
(4) A reference in this Part to a person engaging in conduct includes a
reference to the person omitting to do an act.
(1) An approved officer may acquire evidence of, and use, an assumed
identity if the acquisition or use:
(a) is in the course of duty; and
(b) is in accordance with the authorisation conditions (if any).
(2) An approved person may acquire evidence of, and use, an assumed
identity if the acquisition or use is in accordance with:
(a) directions given by the supervising officer mentioned in the
person’s authorisation; and
(b) the authorisation conditions (if any).
Note: The acquisition of evidence, and use, of an assumed
identity is authorised by the authorising person of a participating agency under
Division 3.
(1) An approved officer, who engages in conduct that, apart from this
subsection, would constitute an offence against a law of the Commonwealth, a
State or Territory, is not criminally responsible for that offence if:
(a) the officer engages in the conduct in the course of acquiring evidence
of, or using, an assumed identity; and
(b) the officer engages in the conduct in the course of duty;
and
(c) the conduct is in accordance with the authorisation conditions (if
any); and
(d) the conduct would not constitute that offence if the assumed identity
were the officer’s real identity.
Example: This subsection could apply if an approved officer,
when using an assumed identity, makes the false representation that he or she is
unemployed (but that representation would be true if the assumed identity were
real).
(2) An approved person who engages in conduct that, apart from this
subsection, would constitute an offence against a law of the Commonwealth, a
State or Territory, is not criminally responsible for that offence if:
(a) the person engages in the conduct in the course of acquiring evidence
of, or using, an assumed identity; and
(b) the conduct is in accordance with:
(i) directions given by the supervising officer; and
(ii) the authorisation conditions (if any); and
(c) the conduct would not constitute that offence if the assumed identity
were the person’s real identity.
Note: Division 5 has offences relating to the misuse
etc. of assumed identities.
(1) A Commonwealth participating agency whose authorising person issues an
authorisation must indemnify an approved officer against any liability
(including reasonable costs) that the officer incurs because of conduct the
officer engages in if:
(a) the officer is covered by the authorisation; and
(b) the officer engages in the conduct in acquiring evidence of, or using,
an assumed identity in the course of duty; and
(c) the conduct is in accordance with the authorisation conditions (if
any); and
(d) the requirements (if any) specified in the regulations have been
met.
(2) A Commonwealth participating agency whose authorising person issues an
authorisation must indemnify an approved person against any liability (including
reasonable costs) that the person incurs because of conduct the person engages
in if:
(a) the person is covered by an authorisation; and
(b) the person engages in conduct in acquiring evidence of, or using, an
assumed identity; and
(c) the conduct is in accordance with:
(i) any directions given by the supervising officer; and
(ii) the authorisation conditions (if any); and
(d) the requirements (if any) specified in the regulations have been
met.
(1) If an approved officer’s or approved person’s
authorisation has been varied in a way that limits its scope, this Division
continues to apply to the officer or person, as if the authorisation had not
been varied in that way, for so long as he or she:
(a) is unaware of the variation; and
(b) is not reckless with respect to the existence of the
variation.
(2) If an approved officer’s or approved person’s
authorisation is revoked, this Division continues to apply to the officer or
person, as if the authorisation had not been revoked, for so long as he or
she:
(a) is unaware of the revocation; and
(b) is not reckless with respect to the existence of the
revocation.
(3) For the purposes of this section, a person is reckless with respect to
the variation or revocation of an authorisation if:
(a) he or she is aware of a substantial risk that the variation or
revocation occurred; and
(b) having regard to the circumstances known to him or her, it is
unjustifiable to take the risk.
Sections 15XC and 15XD do not apply to an approved officer or
approved person engaging in conduct if:
(a) a particular skill or qualification is needed to engage in that
conduct; and
(b) the person does not have that skill or qualification;
whether or not the officer or person has acquired, as evidence of an
assumed identity, a document that establishes that he or she has that skill or
qualification.
Example: An officer who cannot fly a plane is not authorised
to fly even though he or she has acquired a pilot’s licence under an
assumed identity.
(1) An authorising person of a Commonwealth participating agency may, if
satisfied that it is appropriate to do so, authorise a person to do either or
both of the following:
(a) acquire evidence of an assumed identity from:
(i) any Commonwealth agency; or
(ii) any non-government body;
(b) use the assumed identity.
(2) However, the authorising person may only authorise the use of the
assumed identity in a foreign country if he or she is satisfied that it is
reasonably necessary to do so.
(3) An authorising person of a Commonwealth participating agency may, if
satisfied that it is reasonably necessary to do so, authorise a foreign officer
to do either or both of the following:
(a) acquire evidence of an assumed identity from:
(i) any Commonwealth agency; or
(ii) any non-government body;
(b) use an assumed identity.
(1) An authorising person of a State or Territory participating agency
may, if satisfied that it is appropriate to do so, authorise a person (other
than a foreign officer) to do either or both of the following:
(a) acquire evidence of an assumed identity from any Commonwealth
agency;
(b) use the assumed identity.
Note: Only a Commonwealth participating agency can authorise
a foreign officer to acquire evidence of, or use, an assumed identity: see
subsection 15XG(3).
(2) However, the authorising person may only authorise the use of the
assumed identity in a foreign country if he or she is satisfied that it is
reasonably necessary to do so.
(1) An authorisation to acquire evidence of, and use, an assumed identity
must be in writing and signed by the authorising person.
(2) The authorisation must specify:
(a) the authorising person’s name; and
(b) the date on which the authorisation is given; and
(c) if the person who is authorised to acquire or use the assumed identity
is an officer in the authorising person’s participating agency or a
foreign officer—that officer’s name; and
(d) if the person who is authorised to acquire or use the assumed identity
is not such an officer:
(i) the name of the person who is authorised to acquire or use the assumed
identity; and
(ii) the name of the officer in the authorising person’s
participating agency who will supervise that acquisition or use;
and
(e) details of the assumed identity which the authorisation covers;
and
(f) all Commonwealth agencies or non-government bodies who are to be
requested to issue evidence of the assumed identity; and
(g) details of each such request; and
(h) the reasons for the need to use the assumed identity; and
(i) whether the assumed identity can be used in a foreign country and the
reasons for the need for this use; and
(j) any conditions to which the authorisation is subject, including in
relation to use in a foreign country.
(3) An authorisation can cover more than one assumed identity.
An authorisation is in force until it is revoked.
(1) An authorising person who issues an authorisation, or any other
authorising person in the same participating agency, may vary or revoke the
authorisation at any time.
(2) The approved officer or approved person covered by the
authorisation must be given a written notice of the variation or
revocation.
(3) The notice must state:
(a) the date from which the variation or revocation takes effect;
and
(b) the nature of the variation (if any); and
(c) the reasons for the variation or revocation.
An authorising person who issues an authorisation may request an issuing
agency that is specified in the authorisation under paragraph 15XI(2)(f) to
issue evidence of an assumed identity covered by the authorisation to the
approved officer or approved person.
(1) An issuing agency of the Commonwealth that receives a request under
section 15XL from an authorising person in a Commonwealth
participating agency must comply with the request.
(2) An issuing agency of the Commonwealth that receives such a request
from an authorising person in a State or Territory participating agency may
comply with the request, but does not have to do so.
An issuing agency that is a non-government body that receives a request
under section 15XL may comply with the request, but does not have to
do so.
Note: Only Commonwealth participating agencies can request
non-government bodies to issue evidence of an assumed identity.
An issuing agency that has issued evidence of an assumed identity because
of a request under section 15XL, must cancel the evidence (including
by deleting or altering an entry in a record of information) on the written
request of:
(a) the authorising person who made the request; or
(b) any other authorising person in the same participating
agency.
An employee in an issuing agency, who engages in conduct that,
apart from this section, would constitute an offence against a law of the
Commonwealth, a State or Territory, is not criminally responsible for the
offence if the employee engages in the conduct in responding to the request in
the course of duty.
A Commonwealth participating agency whose authorising person makes a
request under section 15XL must indemnify:
(a) an employee of an issuing agency; and
(b) an issuing agency;
against any liability (including reasonable costs) incurred by that
employee or agency because of conduct engaged in by the employee if:
(c) the employee engages in the conduct in responding to the request in
the course of duty; and
(d) the requirements (if any) specified in the regulations have been
met.
(1) A person commits an offence if:
(a) the person is an approved officer; and
(b) the person acquires evidence of, or uses, an assumed identity covered
by the person’s authorisation; and
(c) the acquisition or use is not in the course of duty.
Penalty: 12 months imprisonment.
(2) A person commits an offence if:
(a) the person is an approved person; and
(b) the person acquires evidence of, or uses, an assumed identity covered
by the person’s authorisation; and
(c) the acquisition or use is not in accordance with the directions of the
supervising officer.
Penalty: 12 months imprisonment.
(3) A person commits an offence if:
(a) the person is an approved officer or an approved person; and
(b) the person acquires evidence of, or uses, an assumed identity covered
by the person’s authorisation; and
(c) in doing so, the person engages in conduct that breaches an
authorisation condition.
Penalty: 12 months imprisonment.
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the disclosure reveals, or is likely to reveal, that an assumed
identity acquired or used by another person is not that other person’s
real identity; and
(c) the disclosure:
(i) endangers, or is likely to endanger, the health or safety of any
person; or
(ii) prejudices, or is likely to prejudice, the effective conduct of an
operation carried out by any participating agency; and
(d) the assumed identity is or was covered by an authorisation.
Penalty: 10 years imprisonment.
(2) A person commits an offence if:
(a) the person discloses information; and
(b) the disclosure reveals, or is likely to reveal, that an assumed
identity acquired or used by another person is not that other person’s
real identity; and
(c) the assumed identity is or was covered by an authorisation.
Penalty: 2 years imprisonment.
(1) If the real identity of an approved officer or approved person who is
or was covered by an authorisation, might be disclosed in proceedings before a
court, tribunal or a Royal Commission or other commission of inquiry, then the
court, tribunal or commission must:
(a) ensure that the parts of the proceedings that relate to the real
identity of the officer or person are held in private; and
(b) make such orders relating to the suppression of the publication of
evidence given by the court, tribunal or commission as will, in its opinion,
ensure that the real identity of the officer or person is not
disclosed.
(2) However, this section does not apply to the extent that the court,
tribunal or commission considers that the interests of justice require
otherwise.
(1) The head of a Commonwealth participating agency must:
(a) cause appropriate records to be kept:
(i) while an authorisation is in force; and
(ii) for at least 12 months after an authorisation has been revoked;
and
(b) cause those records to be audited:
(i) at least once every 6 months while the authorisation is in
force; and
(ii) at least once in the 6 month period after the revocation of the
authorisation.
(2) In this section:
appropriate records means records relating to the operation
of this Part as it affects the participating agency, including any
authorisations and any variations or revocations of those authorisations under
section 15XK.
It is the Parliament’s intention that a law of a State or Territory
should be able to operate concurrently with this Part unless the law is directly
inconsistent with this Part.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Part to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Part.
1 Before Part 1B
Insert:
(1) This Part applies to any proceedings for:
(a) an offence against Part IIIA of this Act (Child sex tourism);
or
(b) an offence against section 71.8 of the Criminal Code
(Sexual assault of United Nations and associated personnel); or
(c) an offence against Division 270 of the Criminal Code
(Slavery, sexual servitude and deceptive recruiting); or
(d) a sexual offence specified in the regulations; or
(e) an offence that includes the commission of, or the intention to
commit, an offence of a kind referred to in paragraph (a), (b), (c) or (d);
or
(f) an offence of:
(i) attempting to commit; or
(ii) conspiring to commit; or
(iii) inciting the commission of;
an offence of a kind referred to in paragraph (a), (b), (c), (d) or
(e).
(2) This Part also applies to any proceedings, including committal
proceedings or proceedings of a similar kind, connected with proceedings of a
kind referred to in subsection (1).
In this Part, unless the contrary intention appears:
child means a person who is under 18.
child victim, in relation to a proceeding, means a child who
is, or is alleged to be, a victim of an offence, of a kind referred to in
subsection 15Y(1), to which the proceeding relates.
child witness, in relation to a proceeding, means a child
(including a child victim) who is a witness in the proceeding.
closed-circuit television includes any similar technology
specified in the regulations.
credibility has the meaning given by the Evidence Act
1995.
cross-examination has the meaning given by the Evidence
Act 1995.
evidence in chief means evidence given in examination in
chief within the meaning of the Evidence Act 1995.
proceeding means a proceeding to which this Part applies
under section 15Y.
(1) Evidence of a child witness’ or child victim’s reputation
with respect to sexual activities is inadmissible in a proceeding, unless the
court gives leave.
(2) The court must not give leave unless satisfied that the evidence is
substantially relevant to facts in issue in the proceeding.
(3) The evidence is not to be treated as substantially relevant to facts
in issue merely because of inferences it may raise as to the child
witness’ or child victim’s general disposition.
(4) If the evidence is admitted, it must not be treated as relevant to the
child witness’ or child victim’s credibility.
(5) This section does not apply if the child is a defendant in the
proceeding.
(1) Evidence of a child witness’ or child victim’s experience
with respect to sexual activities is inadmissible in a proceeding,
unless:
(a) the court gives leave; or
(b) the evidence is of sexual activities with a defendant in the
proceeding.
(2) The court must not give leave unless satisfied that:
(a) the evidence is substantially relevant to facts in issue in the
proceeding; or
(b) if the evidence relates to the credibility of a child witness and is
to be adduced in cross-examination of the child—the evidence has
substantial probative value.
(3) The evidence is not to be treated as being substantially relevant to
facts in issue merely because of inferences it may raise as to the child
witness’ or child victim’s general disposition.
(4) Without limiting the matters to which the court may have regard in
deciding whether the evidence has substantial probative value, it is to have
regard to:
(a) whether the evidence tends to prove that the witness knowingly or
recklessly made a false representation when the witness was under an obligation
to tell the truth; and
(b) the period that has elapsed since the acts or events to which the
evidence relates were done or occurred.
(5) This section does not apply if the child is a defendant in the
proceeding.
(1) An application for leave under this Division:
(a) must be in writing; and
(b) if there is a jury in the proceeding in question—must be made in
the jury’s absence; and
(c) must not be determined before the court has considered such
submissions and other evidence as it thinks necessary for determining the
application.
(2) If the court gives leave under this Division, the court
must:
(a) state its reasons in writing; and
(b) cause those reasons to be entered in the court’s
records.
(1) The court may disallow a question put to a child witness in
cross-examination in a proceeding if the question is inappropriate or
unnecessarily aggressive.
(2) In considering whether a question is inappropriate or unnecessarily
aggressive, the court is to have regard to the child witness’ personal
characteristics, including his or her age, culture, mental capacity and
gender.
(1) A defendant in a proceeding who is not represented by counsel is not
to cross-examine a child victim.
(2) A person appointed by the court is to ask the child any questions that
the defendant requests the person to ask the child.
(1) A defendant in a proceeding who is not represented by counsel is not
to cross-examine a child witness (other than a child victim), unless the court
gives leave.
(2) The court must not give leave unless satisfied that the child’s
ability to testify under cross-examination will not be adversely affected if the
defendant conducts the cross-examination.
(3) In considering whether that ability will be adversely affected, the
court is to have regard to any trauma that could be caused if the defendant
conducts the cross-examination.
(4) An application for leave under this section:
(a) must be in writing; and
(b) must not be determined before the court has considered such
submissions and other evidence as it thinks necessary for determining the
application.
(5) If the court refuses leave, a person appointed by the court is to ask
the child any questions that the defendant requests the person to ask the
child.
A defendant in a proceeding who is represented by counsel is not to
cross-examine a child witness or a child victim except through
counsel.
(1) A child witness’ evidence in a proceeding must be given by means
of closed-circuit television unless:
(a) the child is at least 16 and chooses not to give evidence by that
means; or
(b) the court orders that the child is not to give evidence by that means;
or
(c) the court is not equipped with facilities for evidence to be given by
means of closed-circuit television.
Note: Section 15YL provides for alternative
arrangements if a child witness does not give evidence by means of
closed-circuit television.
(2) The court must not make an order under paragraph (1)(b) unless
satisfied that it is not in the interests of justice for the child
witness’ evidence to be given by means of closed-circuit
television.
(3) This section does not affect the operation of any law in relation to
the competence of a person to give evidence.
(1) If the child witness’ evidence is given by means of
closed-circuit television from a location outside a courtroom:
(a) that location is taken to be part of the courtroom in which the
proceeding is being held; and
(b) the court may order that a court officer be present at that location;
and
(c) the court may order that another person be present with the
child:
(i) to act as an interpreter; or
(ii) to assist the child with any difficulty in giving evidence associated
with a disability; or
(iii) to provide the child with other support.
(2) An order under paragraph (1)(b) or (c) does not limit the
operation of section 15YM.
(3) The court may adjourn the proceeding, or a part of the proceeding, to
a court or other place that is equipped with facilities for evidence to be given
by means of closed-circuit television if:
(a) the court is not equipped with facilities for evidence to be given by
means of closed-circuit television; or
(b) the court otherwise considers it appropriate to do so.
If the child witness’ evidence is given by means of closed-circuit
television, the facilities used are to be operated in such a way that the people
who have an interest in the proceeding can see the child, and any person present
with the child, on one or more television monitors.
(1) If a child witness’ evidence in a proceeding is not to be given
by means of closed-circuit television, the court:
(a) must make arrangements in order to restrict contact (including visual
contact) that the child may have with any defendant while giving evidence;
and
(b) may make arrangements in order to restrict contact (including visual
contact) that the child may have with members of the public while giving
evidence.
(2) The arrangements may include either of the following:
(a) using screens;
(b) planning seating arrangements for people who have an interest in the
proceeding, including:
(i) the level at which they are seated; and
(ii) the people in the child’s line of vision.
(3) This section does not apply if the child is at least 16 and chooses
not to give evidence under the arrangements.
(1) A video recording of an interview of a child witness in a proceeding
may be admitted as evidence in chief if:
(a) a constable, or a person of a kind specified in the regulations,
conducted the interview; and
(b) the court gives leave.
(2) The court must not give leave if satisfied that it is not in the
interest of justice for the child’s evidence in chief to be given by a
video recording.
(3) An application for leave under this section:
(a) must be in writing; and
(b) must not be determined before the court has considered such
submissions and other evidence as it thinks necessary for determining the
application.
(4) The child witness must be available for cross-examination and
re-examination if he or she gives evidence in chief by a video
recording.
Note: Division 4 provides for this evidence to be given
using closed-circuit television or other arrangements.
(1) The admissibility of the evidence given by video recording is not
affected by the fact that it is evidence of previous representations that the
child witness made in the interview that was being recorded.
(2) Evidence given by video recording under section 15YM is not
admissible if the court is satisfied that:
(a) any defendant in the proceeding (other than the child witness if the
child is a defendant); or
(b) the defendant’s lawyer (if any);
was not given a reasonable opportunity to listen to and view the
recording.
(3) The court may refuse to admit the whole or part of the contents of a
recording adduced as evidence under section 15YM.
(1) A child witness may choose an adult to accompany the child while the
child is giving evidence in a proceeding (including while giving evidence by
closed-circuit television).
(2) The adult so chosen may accompany the child as mentioned in
subsection (1), unless the court determines that it is not appropriate for
the adult to accompany the child.
(3) The court may permit more than one adult to accompany the child if the
court considers it in the interests of justice to do so.
(4) An adult accompanying the child under this section must not:
(a) prompt the child or otherwise influence the child’s answers;
or
(b) disrupt the questioning of the child.
(5) Any words spoken by an adult accompanying the child under this section
must be able to be heard by:
(a) the judge; and
(b) if there is a jury in the proceeding—the members of the
jury.
The court may order that some or all of the members of the public be
excluded from the courtroom in which a child witness is giving evidence in a
proceeding.
If there is a jury in a proceeding in which a child witness has given or
will give evidence, the judge is not to warn the jury, or suggest to the jury in
any way:
(a) that the law regards children as unreliable witnesses; or
(b) that the law requires greater or lesser weight to be given to evidence
that is given by closed-circuit television or alternative arrangements under
Division 4; or
(c) that the law requires greater or lesser weight to be given to evidence
that is given by a video recording under Division 5; or
(d) that the law requires greater or lesser weight to be given to evidence
because an adult accompanies the child under section 15YO.
(1) A person commits an offence if:
(a) the person publishes any matter; and
(b) the person does not have the leave of the court to publish the matter;
and
(c) the matter:
(i) identifies another person (who is not a defendant in the proceeding)
as a child witness or a child victim in relation to the proceeding; or
(ii) is likely to lead to the other person being identified as such a
child witness or child victim.
Penalty: Imprisonment for 12 months, or 60 penalty units, or
both.
(2) This section does not apply if the publication is in:
(a) an official publication in the course of, and for the purpose of, the
proceeding; or
(b) a document prepared for use in particular legal proceedings (whether
or not the legal proceedings are a proceeding within the meaning of this
Part).
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) The court may give leave to a person to publish the matter.
(4) In deciding whether to give leave, the court is to have regard
to:
(a) any trauma to the child witness or child victim that the publication
could cause; and
(b) any damage to the reputation of the child witness or child victim that
the publication could cause; and
(c) whether the publication is:
(i) for the purpose of supplying transcripts of the proceedings to persons
with a genuine interest in the proceedings; or
(ii) for genuine research purposes.
(5) Leave may be given after the proceedings have finished. For this
purpose, the court need not be constituted by the same judicial officers who
constituted the court in the proceedings.
(6) An application for leave under this section:
(a) must be in writing; and
(b) must not be determined before the court has considered such
submissions and other evidence as it thinks necessary for determining the
application.
(1) The power of a court to control the conduct of a proceeding is not
affected by this Part, except so far as this Part provides otherwise expressly
or by necessary intendment.
(2) In particular, the powers of a court to control the questioning of
witnesses are not affected.
(3) The power of a court to give leave under this Part includes the power
to give such leave subject to conditions.
Nothing in this Part affects the operation of Division 5 of
Part IIIA (Child sex tourism—video link evidence).
1 Paragraph 3E(5)(e)
Repeal the paragraph, substitute:
(e) the time at which the warrant expires (see subsection (5A));
and
2 After subsection 3E(5)
Insert:
(5A) The time stated in the warrant under paragraph 3E(5)(e) as the time
at which the warrant expires must be a time that is not later than the end of
the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the
expiry time specified must not be later than midnight on Monday in the following
week.
3 Subsection 3E(8)
Omit “Paragraph (5)(e) does”, substitute
“Paragraph (5)(e) and subsection (5A) do”.
4 Subsection 3E(9)
After “this section”, insert “(other than
subsection (5A))”.
5 Paragraph 3E(9)(b)
Repeal the paragraph, substitute:
(b) paragraph (5)(e) required the issuing officer to state in the
warrant the period for which the warrant is to remain in force, which must not
be more than 48 hours.
6 Subsection 3R(2)
Repeal the subsection, substitute:
(2) The issuing officer:
(a) may require communication by voice to the extent that it is
practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such
communication by voice.
7 Paragraph 3ZH(2A)(a)
After “arrested”, insert “or any other
offence”.
8 After subsection 3ZH(2A)
Insert:
(2B) The conducting of a strip search may include taking photographs of
evidential material found on the person, whether or not taking photographs is a
forensic procedure provided for by Part ID.
9 Before section 23A
Insert:
(1) This Part:
(a) provides for the detention of people lawfully arrested for
Commonwealth offences (see Division 2); and
(b) imposes obligations on investigating officials in relation to people
lawfully arrested for Commonwealth offences and certain other people being
investigated for Commonwealth offences (see Division 3).
(2) To avoid doubt, this Part does not confer any power to arrest a
person.
(3) To avoid doubt, only a person lawfully arrested for a Commonwealth
offence may be detained under this Part.
10 Subsection 23A(6)
Repeal the subsection.
11 Subsection 23B(1) (definition of
arrested or under arrest)
Repeal the definition.
12 Subsection 23B(1)
Insert:
arrested has the meaning given by
subsection (1A).
13 Subsection 23B(1)
Insert:
inform, in relation to informing a person under arrest, means
notify the person in a language in which the person is able to communicate with
reasonable fluency.
14 Subsection 23B(1) (definition of
magistrate)
Repeal the definition.
15 Subsection 23B(1)
Insert:
under arrest has the meaning given by
subsection (1A).
16 After subsection 23B(1)
Insert:
(1A) For the purposes of this Part, a person is arrested or
under arrest if:
(a) the person is lawfully arrested for a Commonwealth offence;
or
(b) the person is covered by the extended meaning given by
subsection (2);
and the person’s arrest has not ceased under subsection (3) or
(4).
17 Subsection 23B(2)
Omit “Subject to subsections (3) and (4), a reference in this
Part to a person who is arrested includes a reference to a person who is in the
company of an investigating official for the purpose of being questioned,
if:”, substitute “For the purposes of this Part, a person is taken
to be arrested if the person is in the company of an investigating official for
the purpose of being questioned, and:”.
18 Subsection 23B(2)
Omit “treated as being”, substitute “taken to
be”.
19 Paragraph 23B(2)(d)
Repeal the paragraph, substitute:
(d) the official is performing functions in relation to:
(i) persons or goods entering Australia; or
(ii) persons or goods leaving Australia;
and the official does not believe that the person has committed a
Commonwealth offence; or
20 Subsection 23B(3)
Repeal the subsection, substitute:
(3) If:
(a) a person has been arrested for a Commonwealth offence; and
(b) the person is remanded in respect of that offence, otherwise than
under paragraph 83(3)(b), (4)(b) or (8)(b) of the Service and Execution of
Process Act 1992, by one of the following:
(i) a magistrate;
(ii) a justice of the peace;
(iii) a person authorised to grant bail under the law of the State or
Territory in which the person was arrested;
the person is taken, for the purposes of this Part, to cease to be under
arrest for that offence.
21 Before section 23C
Insert:
Note: The powers in this Division only apply to people
lawfully arrested for Commonwealth offences. They do not apply to people who are
only taken to be arrested because of subsection 23B(2).
22 Subsection 23C(2)
Repeal the subsection, substitute:
(2) The person may be detained for the purpose of investigating either or
both of the following:
(a) whether the person committed the offence;
(b) whether the person committed another Commonwealth offence that an
investigating official reasonably suspects the person to have
committed;
but must not be detained for that purpose, or for purposes that include
that purpose, after the end of the investigation period prescribed by this
section.
23 Paragraph 23C(3)(b)
Omit “magistrate”, substitute “judicial
officer”.
24 At the end of subsection
23C(3)
Add:
Note: For judicial officer, see
subsection (9).
25 Subsections 23C(4) and
(6)
Before “arrested”, insert “lawfully”.
26 After subsection 23C(6)
Insert:
(6A) However, in relation to each first arrest, disregard
subsection (6) for any later arrest if:
(a) the later arrest is for a Commonwealth offence:
(i) that was committed after the end of the person’s period of
detention under this Part for the first arrest; or
(ii) that arose in different circumstances to those in which any
Commonwealth offence to which the first arrest relates arose, and for which new
evidence has been found since the first arrest; and
(b) the person’s questioning associated with the later arrest does
not relate to:
(i) a Commonwealth offence to which the first arrest relates; or
(ii) the circumstances in which such an offence was committed.
27 Paragraph 23C(7)(g)
Omit “to make and dispose”, substitute “in connection
with making and disposing”.
28 Paragraph 23C(8)(a)
Omit “magistrate”, substitute “judicial
officer”.
29 At the end of
section 23C
Add:
(9) In this section:
judicial officer means any of the following:
(a) a magistrate;
(b) a justice of the peace;
(c) a person authorised to grant bail under the law of the State or
Territory in which the person was arrested.
30 Subsection 23D(1)
Omit “under arrest”, substitute “lawfully
arrested”.
31 At the end of subsection
23D(2)
Add:
The magistrate, justice of the peace or bail justice to whom the
application is made is the judicial officer for the purposes of
this section and section 23E.
32 Subsection 23D(4)
After “period”, insert “, by signed written
authority,”.
33 After subsection 23D(4)
Insert:
(4A) The authority must set out:
(a) the day and time when the extension was granted; and
(b) the reasons for granting the extension; and
(c) the terms of the extension.
(4B) The judicial officer must give the investigating official a copy of
the authority as soon as practicable after signing the authority.
34 Subsection 23E(1)
Omit “radio or radio-telephone”, substitute “telex, fax
or other electronic means”.
35 Subsection 23E(2)
Omit “tell”, substitute “inform”.
36 Subsection 23E(2)
Omit “under arrest”, substitute “lawfully
arrested”.
37 Subsection 23E(3)
Repeal the subsection, substitute:
(3) If the judicial officer extends the investigation period, he or she
must inform the investigating official of the matters set out in the authority
under subsection 23D(4A).
38 Subsection 23E(4)
Omit “receiving the authority”, substitute “being
informed of those matters”.
39 Subsection 23E(7)
Repeal the subsection.
40 Before section 23F
Insert:
Note: These obligations apply in relation to all people
taken to be arrested for the purposes of this Part, not just those lawfully
arrested for Commonwealth offences.
41 Subsection 23F(2)
Repeal the subsection, substitute:
(2) The investigating official must inform the person of the caution in
accordance with subsection (1), but need only do so in writing if the
person cannot hear adequately.
42 Subsection 23G(2)
Omit “holding the person under arrest”.
43 Subsection 23G(3)
Omit “holding the person under arrest”.
44 Paragraph 23H(2)(a)
Repeal the paragraph, substitute:
(a) interviews a person as a suspect (whether under arrest or not) for a
Commonwealth offence, and believes on reasonable grounds that the person is an
Aboriginal person or a Torres Strait Islander; or
45 After subsection 23H(2)
Insert:
(2A) The person suspected, or under arrest, may choose his or her own
interview friend unless:
(a) he or she expressly and voluntarily waives this right; or
(b) he or she fails to exercise this right within a reasonable period;
or
(c) the interview friend chosen does not arrive within 2 hours of the
person’s first opportunity to contact an interview friend.
(2B) If an interview friend is not chosen under subsection (2A), the
investigating official must choose one of the following to be the person’s
interview friend:
(a) a representative of an Aboriginal legal aid organisation;
(b) a person whose name is included in the relevant list maintained under
subsection 23J(1).
46 Subsection 23H(4)
After “subsection (2)”, insert “or
(2A)”.
47 Subsection 23H(8)
Omit “or (2)”, substitute “, (2) or
(2B)”.
48 Paragraph 23K(1)(a)
Repeal the paragraph, substitute:
(a) interviews a person as a suspect (whether under arrest or not) for a
Commonwealth offence, and believes on reasonable grounds that the person is
under 18; or
49 Subsection 23L(1)
Omit “, (3)”.
50 Subsections 23L(2), (3) and
(4)
Repeal the subsections, substitute:
(2) If the requirement relates to things done by or in relation to a legal
practitioner, subsection (1) only applies:
(a) in exceptional circumstances; and
(b) if:
(i) an officer of a police force of the rank of Superintendent or higher;
or
(ii) the holder of an office prescribed for the purposes of this section,
other than an office in a police force;
has authorised the application of subsection (1) and has made a
record of the investigating official’s grounds for belief.
(3) If the application of subsection (1) is so authorised:
(a) the record of the investigating official’s grounds for belief
must be made as soon as practicable; and
(b) the investigating official must comply with the requirement as soon as
possible after subsection (1) ceases to apply.
(4) If the application of subsection (1) results in:
(a) preventing or delaying the person from communicating with a legal
practitioner of his or her choice; or
(b) preventing or delaying a legal practitioner of the person’s
choice from attending at any questioning;
the investigating official must offer the services of another legal
practitioner and, if the person accepts, make the necessary
arrangements.
51 Transitional—prescribed
offices
(1) This item applies to an office that, immediately before the
commencement of this item, was an office prescribed under subsection 23L(4) of
the Crimes Act 1914.
(2) The office is taken to be, immediately after the commencement of this
item, an office prescribed under subsection 23L(2) of the Crimes Act 1914
as amended by this Act.
52 Section 23P
Repeal the section, substitute:
(1) Subject to section 23L, if a person under arrest for a
Commonwealth offence is not an Australian citizen, an investigating official
must, as soon as practicable:
(a) inform the person that if he or she requests that the consular office
of:
(i) the country of which he or she is a citizen; or
(ii) the country to which he or she claims a special connection;
be notified of his or her arrest, that consular office will be notified
accordingly; and
(b) if the person so requests—notify that consular office
accordingly; and
(c) inform the person that he or she may communicate with, or attempt to
communicate with, that consular office; and
(d) give the person reasonable facilities to do so; and
(e) forward any written communication from the person to that consular
office; and
(f) allow the person a reasonable time to, or to attempt to, communicate
with that consular office.
(2) Without limiting subsection (1), an investigating official must
not start to question the person unless paragraphs (1)(c), (d) and (f) have
been complied with.
53 Section 23R
Repeal the section.
54 Subsection 23V(1)
Omit “interviewed”, substitute
“questioned”.
55 Subparagraph
23V(1)(b)(i)
Repeal the subparagraph, substitute:
(i) when questioning the person, or as soon as practicable afterwards, a
record in writing was made, either in English or in another language used by the
person during questioning, of the things said by or to the person during
questioning; and
56 Subparagraph
23V(1)(b)(ii)
Omit “in the interview”, substitute “during
questioning”.
57 Paragraph 23V(2)(b)
Omit “notify”, substitute “inform”.
58 After subsection 23V(6)
Insert:
(6A) To avoid doubt, subsection (6) does not limit
subsection (5).
59 Paragraph 198(3)(e)
Repeal the paragraph, substitute:
(e) the time at which the warrant expires (see subsection (3A));
and
60 After subsection 198(3)
Insert:
(3A) The time stated in the warrant under paragraph (3)(e) as the
time at which the warrant expires must be a time that is not later than the end
of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the
expiry time specified must not be later than midnight on Monday in the following
week.
61 Subsection 198(5)
Omit “Paragraph (3)(e) does”, substitute
“Paragraph (3)(e) and subsection (3A) do”.
62 Subsection 198(6)
After “this section”, insert “(other than
subsection (3A))”.
63 Paragraph 198(6)(b)
Repeal the paragraph, substitute:
(b) paragraph (3)(e) required the judicial officer to state in the
warrant the period for which the warrant is to remain in force, which must not
be more than 48 hours.
64 Paragraph 203(5)(d)
Repeal the paragraph, substitute:
(d) the time at which the warrant expires (see subsection (5A));
and
65 After subsection 203(5)
Insert:
(5A) The time stated in the warrant under paragraph (5)(d) as the
time at which the warrant expires must be a time that is not later than the end
of the seventh day after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the
expiry time specified must not be later than midnight on Monday in the following
week.
66 Subsection 203(7)
Omit “Paragraph (5)(d) does”, substitute
“Paragraph (5)(d) and subsection (5A) do”.
67 Subsection 203(8)
After “this section”, insert “(other than
subsection (5A))”.
68 Paragraph 203(8)(b)
Repeal the paragraph, substitute:
(b) paragraph (5)(d) required the judicial officer to state in the
warrant the period for which the warrant is to remain in force, which must not
be more than 48 hours.
69 Subsection 203M(2)
Repeal the subsection, substitute:
(2) The judicial officer:
(a) may require communication by voice to the extent that it is
practicable in the circumstances; and
(b) may make a recording of the whole or any part of any such
communication by voice.
Australian Federal Police
Act 1979
1 Subsection 12G(1)
Omit “or particular premises”, substitute “, particular
premises or a particular item”.
Note 1: The following heading to subsection 12G(1) is
inserted “Member may apply for a listening device
warrant”.
Note 2: The following heading to subsection 12G(2) is
inserted “Issuing listening device warrants in relation to
persons”.
Note 3: The following heading to subsection 12G(4) is
inserted “Issuing listening device warrants in relation to
premises”.
2 After subsection 12G(5)
Insert:
Issuing listening device warrants in relation to items
(5A) If:
(a) the application is for a warrant authorising officials to use a
listening device in relation to a particular item (which may be located anywhere
in Australia); and
(b) the Judge or nominated AAT member is satisfied, by information on
oath:
(i) that there are reasonable grounds for suspecting that the item has
been, or is likely to be, used in relation to the commission, or likely
commission, of a class 1 general offence or a class 2 general offence;
and
(ii) that information that would be likely to be obtained by the use by
officials of a listening device to listen to or record words spoken by or to
persons in the vicinity of the item would be likely to assist members in, or in
relation to, inquiries that are being made in relation to the use, or likely
use, of the item in relation to the commission, or likely commission, of the
offence; and
(iii) that, having regard to the matters mentioned in subsection (6),
some or all of that information cannot appropriately be obtained by methods of a
kind referred to in paragraph (6)(a); and
(iv) some or all of that information cannot appropriately be obtained
using a listening device authorised by a warrant under subsection (2) or
(4); and
(v) if the offence is a class 2 general offence—that, having regard
to the matters mentioned in subsection (7) and no other matters, such a
warrant should be issued;
the Judge or nominated AAT member may issue a warrant authorising officials
to use a listening device for the purpose of listening to or recording words
spoken by or to any person while the person is in the vicinity of the
item.
(5B) The warrant may authorise officials to enter any premises in which
the item is, or is likely to be, for the purpose of:
(a) installing a listening device or a part of a listening device in or on
the item; or
(b) maintaining, testing, using or recovering the device or a part of the
device.
3 Subsection 12G(6)
Omit “and (4)(b)(iii)”, substitute “, (4)(b)(iii) and
(5A)(b)(iii)”.
Note: The following heading to subsection 12G(6) is inserted
“Relevant matters to have regard to”.
4 Paragraph 12G(6)(b)
Omit “or (4)(b)(ii)”, substitute “, (4)(b)(ii) or
(5A)(b)(ii)”.
5 Subsection 12G(7)
Omit “and (4)(b)(iv)”, substitute “, (4)(b)(iv) and
(5A)(b)(v)”.
Note 1: The following heading to subsection 12G(8) is
inserted “Form of warrant”.
Note 2: The following heading to subsection 12G(9) is
inserted “Warrant may be subject to conditions
etc.”.
Note 3: The following heading to subsection 12G(10) is
inserted “Warrant authorising entry onto
premises”.
Note 4: The following heading to subsection 12G(11) is
inserted “When a warrant is in force”.
6 Paragraph 12G(7)(c)
Omit “or (4)(b)(ii)”, substitute “, (4)(b)(ii) or
(5A)(b)(ii)”.
7 Section 12H
Omit “or (4)”, substitute “, (4) or
(5A)”.
8 After subsection 219B(8)
Insert:
Issuing listening device warrants in relation to items
(8A) A person referred to in subsection (4A) may apply to a Judge or
nominated AAT member to issue a warrant to a Commonwealth law enforcement agency
authorising the use of a listening device in relation to a particular
item.
(8B) The Judge or nominated AAT member may issue a warrant if satisfied,
by information on oath, that:
(a) there are reasonable grounds for suspecting that the item has been, or
is likely to be, used in connection with the commission of a narcotics offence;
and
(b) the use by officials of the agency of a listening device to listen to
or record words spoken by or to persons in the vicinity of the item will, or is
likely to, assist officials of the agency in, or in connection with, inquiries
that are being made in relation to the use, or likely use, of the item in
connection with the commission of a narcotics offence; and
(c) some or all of the information cannot appropriately be obtained by
using a listening device authorised by a warrant under subsection (5) or
(7).
(8C) The Judge or nominated AAT member may issue a warrant authorising one
or more of the following:
(a) the use of a listening device by officials of the agency for the
purpose of listening to or recording words spoken by or to any person while the
person is in the vicinity of the item (which may be located anywhere in
Australia);
(b) the entry onto premises by the officials for the purpose of:
(i) installing the listening device or a part of the listening device in
or on the item;
(ii) maintaining, using or recovering the device or a part of the
device.
(8D) A warrant may be subject to any conditions or restrictions that the
Judge or nominated AAT member sees fit to specify in the warrant.
(8E) A warrant must be signed by the judge or nominated AAT member and in
accordance with the prescribed form.
Note 1: The following heading to subsection 219B(1) is
inserted “Unlawful use of listening
devices”.
Note 2: The following heading to subsection 219B(4A) is
inserted “Member may apply for a listening device
warrant”.
Note 3: The following heading to subsection 219B(5) is
inserted “Issuing listening device warrants in relation to
persons”.
Note 4: The following heading to subsection 219B(7) is
inserted “Issuing listening device warrants in relation to
premises”.
Note 5: The following heading to subsection 219B(9) is
inserted “Warrants authorising entry onto
premises”.
Note 6: The following heading to subsection 219B(10) is
inserted “When a warrant is in force”.
Note 7: The following heading to subsection 219B(12) is
inserted “Warrant does not authorise an
interception”.
9 Section 219C
Omit “or (7)”, substitute “, (7) or
(8B)”.
1 Subsection 3(1) (paragraph (k) of the
definition of cash dealer)
After “financial institution”, insert “or a real estate
agent acting in the ordinary course of real estate business”.
2 Subsection 3(1) (subparagraph (k)(i) of
the definition of cash dealer)
Repeal the subparagraph, substitute:
(i) collecting currency, and holding currency collected, on behalf of
other persons; or
(ia) exchanging one currency for another, or converting currency into
prescribed commercial instruments, on behalf of other persons; or
(ib) remitting or transferring currency or prescribed commercial
instruments into or out of Australia on behalf of other persons or arranging for
such remittance or transfer; or
3 Subsection 3(1)
Insert:
prescribed commercial instrument means:
(a) a cheque, bill of exchange, promissory note or other like instrument
creating an entitlement to currency; or
(b) any instrument (including an electronic instrument) that is declared
to be a prescribed commercial instrument for the purposes of this
definition.
4 At the end of Division 4 of
Part II
Insert:
For the purposes of this Act, information concerning a specific financial
transaction that is received by AUSTRAC as a result of a request to a foreign
country or to an agency of a foreign country is taken to have been obtained
under this Act.
Note: The heading to section 17H is altered by omitting
“other law” and substituting “another law of the
Commonwealth or a law of a State or Territory”.
5 After subsection 27(1A)
Insert:
(1B) Despite paragraph (1)(b), the Director may only authorise the
Queensland Crime Commission or the Anti-Corruption Commission of Western
Australia under that paragraph if the Commission undertakes that it will comply
with the information privacy principles set out in section 14 of the
Privacy Act 1988 in respect of FTR information obtained under the
authorisation.
6 At the end of subsection
27(16)
Add:
; and (h) the Queensland Crime Commission; and
(i) the Anti-Corruption Commission of Western Australia
7 At the end of subsection
27(17)
Add:
; and (t) the Crime Commissioner, or an Assistant Crime Commissioner, of
the Queensland Crime Commission; and
(u) a member of the staff of that Commission; and
(v) a member of the Anti-Corruption Commission of Western Australia;
and
(w) a member of the staff of that Commission.
8 After subsection 27C(2)
Insert:
(2A) For the purpose of monitoring the compliance of a cash dealer who is
an approved cash carrier with the record-keeping obligations referred to in
section 8, the officer may inspect:
(a) records containing reportable details (within the meaning of that
section) of significant cash transactions to which the cash dealer is a party
that are kept at, or accessible from, the premises; and
(b) any system used by the dealer at those premises for keeping such
records.
1 Section 85ZL (paragraph (e) of the
definition of law enforcement agency)
Repeal the paragraph, substitute:
(e) the CrimTrac Agency;