CRIMES LEGISLATION AMENDMENT (POWERS AND OFFENCES) BILL 2012

i Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Contents

1 Short

title

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2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Forensic procedures

Part 1--Amendments commencing on day after Royal Assent

Crimes Act 1914

Part 2--Amendments commencing on day to be fixed by

Proclamation

Crimes Act 1914

Schedule 2--Amendments relating to disclosure of ACC

information

Part 1--Amendments commencing on day after Royal Assent

Australian Crime Commission Act 2002

Part 2--Amendments commencing on Proclamation

Australian Crime Commission Act 2002

Schedule 3--Amendments relating to returnable items for the

ACC

Australian Crime Commission Act 2002

Schedule 4--Amendments relating to the Integrity

Commissioner's investigative powers

Law Enforcement Integrity Commissioner Act 2006

Privacy Act 1988

Surveillance Devices Act 2004

Schedule 5--Drugs, plants and precursors

Criminal Code Act 1995

Customs Act 1901

Schedule 6--Proceeds of crime amendments

Part 1--Amendments

Director of Public Prosecutions Act 1983

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 1

A Bill for an Act to amend various Acts relating to

the enforcement of the criminal law, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Powers and Offences) Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

Part 1

The day after this Act receives the Royal

Assent.

3. Schedule 1,

Part 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

4. Schedule 2,

Part 1

The day after this Act receives the Royal

Assent.

5. Schedule 2,

Part 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

6. Schedule 3

The day after this Act receives the Royal

Assent.

7. Schedule 4

The day after this Act receives the Royal

Assent.

8. Schedule 5,

items 1 to 14

The day this Act receives the Royal Assent.

9. Schedule 5,

item 15

Immediately after the commencement of the

provision(s) covered by table item 8.

However, if item 2 of Schedule 1 to the

Customs Amendment (Military End-Use) Act

2011 does not commence at or before the

commencement of the provisions covered by

table item 8, the provision(s) do not

commence at all.

10. Schedule 6,

The later of:

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

items 1, 2 and 3

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

items 1 to 154 of Schedule 2 to the

Crimes Legislation Amendment Act

(No. 2) 2011.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

11. Schedule 6,

items 4 to 8

The day after this Act receives the Royal

Assent.

12. Schedule 6,

item 9

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

items 1 to 154 of Schedule 2 to the

Crimes Legislation Amendment Act

(No. 2) 2011.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

13. Schedule 6,

items 10 and 11

The day after this Act receives the Royal

Assent.

14. Schedule 7

A single day to be fixed by Proclamation.

However, if the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

15. Schedule 8

The day after this Act receives the Royal

Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

4 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

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.

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 5

Schedule 1--Forensic procedures

Part 1--Amendments commencing on day after

Royal Assent

Crimes Act 1914

1 Subsection 23WA(1)

Insert:

accredited laboratory means:

(a) a forensic laboratory accredited by the National Association

of Testing Authorities, Australia; or

(b) a forensic laboratory that is of a kind prescribed by the

regulations for the purposes of this paragraph.

2 Subsection 23WA(1) (definition of Commissioner)

Omit "staff member", substitute "AFP appointee (within the meaning of

the Australian Federal Police Act 1979)".

3 Subsection 23WA(1) (definition of informed consent)

Omit "section 23WF", substitute "sections 23WF, 23WG, 23XWG and

23XWR".

4 Subsection 23WA(1) (paragraph (b) of the definition of

intimate forensic procedure)

After "blood", insert "(other than by a finger prick)".

5 Subsection 23WA(1) (paragraph (c) of the definition of

intimate forensic procedure)

Repeal the paragraph.

6 Subsection 23WA(1) (after paragraph (a) of the definition of

non-intimate forensic procedure)

Insert:

(aa) the taking of a sample of blood by a finger prick;

(ab) the taking of a sample of saliva, or a sample by buccal swab;

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

6 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

7 Subsection 23WA(1) (definition of senior constable)

Repeal the definition.

8 Subsection 23WA(1)

Insert:

senior police officer means a constable of the rank of sergeant or

higher.

9 Section 23WC (table item 2)

Omit "senior constable", substitute "senior police officer".

10 Paragraph 23WG(3)(c)

Omit "senior constable", substitute "senior police officer".

11 Paragraph 23WJ(3)(a)

Omit "constable", substitute "senior police officer".

12 Division 4 of Part ID (heading)

Repeal the heading, substitute:

Division 4--Non-intimate forensic procedures on suspect

by order of senior police officer

13 Section 23WM (heading)

Repeal the heading, substitute:

23WM Non-intimate forensic procedure may be carried out by

order of senior police officer

14 Subsection 23WM(1)

Omit "senior constable", substitute "senior police officer".

15 Section 23WN (heading)

Repeal the heading, substitute:

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 7

23WN Circumstances in which senior police officer may order

non-intimate forensic procedures

16 Section 23WN

Omit "senior constable" (wherever occurring), substitute "senior police

officer".

17 Section 23WO (heading)

Repeal the heading, substitute:

23WO Matters to be considered by senior police officer before

ordering forensic procedure

18 Section 23WO

Omit "senior constable" (wherever occurring), substitute "senior police

officer".

19 Section 23WP (heading)

Repeal the heading, substitute:

23WP Record of senior police officer's order

20 Subsections 23WP(1) and (2)

Omit "senior constable", substitute "senior police officer".

21 Paragraphs 23WR(a) and (b)

After "procedure", insert "(whether or not consent has been sought)".

22 Paragraph 23XL(b)

Repeal the paragraph, substitute:

(b) the sample is taken using the least painful technique known

and available to the person.

23 Section 23XM (table item 2)

After "blood", insert "(other than by a finger prick)".

24 Section 23XM (table item 3)

Repeal the item.

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

8 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

25 Section 23XM (after table item 9)

Insert:

the taking of a sample

of blood by a finger

prick

medical practitioner

nurse

constable

appropriately qualified person

the taking of a sample

of saliva, or a sample

by buccal swab

medical practitioner

dentist

dental technician

nurse

constable

appropriately qualified person

26 Subsection 23XN(1)

Omit ", a sample of saliva, a buccal swab".

27 Section 23XU

Repeal the section, substitute:

23XU Samples--sufficient material to share

(1) This section applies if:

(a) a sample is taken from a suspect under this Part; and

(b) the suspect requests the investigating constable that the

sample be shared; and

investigation of the offence and on behalf of the suspect.

(2) The investigating constable must invite the suspect to nominate an

accredited laboratory to which a part of the material sufficient for

analysis will be provided on behalf of the suspect.

(3) If the suspect nominates an accredited laboratory, the investigating

constable must ensure that:

(a) a part of the material sufficient for analysis is provided to that

laboratory, on behalf of the suspect, within the period of 28

days beginning on the day of the nomination; and

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 9

(b) reasonable care is taken to ensure that the suspect's part of

the material is protected and preserved until it is provided to

that laboratory.

Note:

Division 9 contains provisions about making material available to the

suspect.

(4) The suspect must bear the costs in relation to any analysis of that

part of the material provided to that laboratory.

28 Subsection 23XUA(2)

Omit "request that a person of his or her", substitute "request the

investigating constable that a person (the attendee) of the suspect's".

29 After subsection 23XUA(2)

Insert:

(2A) The investigating constable must then inform the suspect that the

attendee may be directed by the person (the analyst) responsible

for analysing the material to leave the premises at which the

analysis is being conducted if the attendee does not comply with

instructions given by the analyst in relation to the analysis of the

material.

30 Subsection 23XUA(3)

Omit "The person chosen", substitute "Subject to this section, the

attendee".

31 Subsection 23XUA(3)

Omit "person responsible for analysing the material", substitute

"analyst".

32 At the end of section 23XUA

Add:

(4) The analyst may give instructions to the attendee relating to the

analysis of the material.

(5) The analyst may give a direction to the attendee to leave the

premises at which the analysis is being conducted if the attendee

fails to comply with such an instruction.

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

10 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(6) If the analyst gives such a direction, the analyst must inform the

attendee that a failure to comply with the direction is an offence

against subsection (7). A failure to comply with this subsection

does not affect the validity of the direction.

(7) The attendee commits an offence if:

(a) the attendee is given a direction under subsection (5); and

(b) the attendee fails to comply with the direction.

Penalty: 30 penalty units.

(8) An offence against subsection (7) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

33 Section 23XW

Repeal the section, substitute:

23XW Results of analysis

If:

(a) material from a sample taken from a suspect is analysed in

the investigation of the offence; and

(b) before or after the analysis, the suspect has requested the

investigating constable that a copy of the results of any

analysis be provided to the suspect;

then the investigating constable must ensure that, within 14 days of

the analysis or of the request (whichever is the later):

suspect; and

(d) if the DNA profile derived from that material has been

matched, as part of the investigation of the offence, under

section 23YDAF with a DNA profile placed on the crime

scene index in relation to the offence--the suspect is

informed in writing of that match.

34 Subsection 23XWB(1)

Repeal the subsection, substitute:

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 11

Intimate forensic procedure to which Division applies

(1) This Division applies to an intimate forensic procedure that is the

taking of a sample of blood (other than by a finger prick).

35 At the end of subsection 23XWB(2)

Add:

; (c) the taking of a sample of blood by a finger prick;

(d) the taking of a sample of saliva, or a sample by buccal swab.

36 At the end of subsection 23XWC(1)

Add:

; or (c) by order of a judge or magistrate under section 23XWO.

37 Subsection 23XWC(3)

After "by order of a", insert "judge or".

38 Paragraph 23XWD(b)

After "by order of a", insert "judge or".

39 Subsection 23XWE(1)

Repeal the subsection, substitute:

(1) Division 6 applies in relation to the carrying out under this

Division of a forensic procedure on an offender. For this purpose:

(a) references in Division 6 to the suspect are taken to be

references to the offender; and

(b) references in Subdivision F of Division 6 to the investigating

constable are taken to be references to the Commissioner.

Note:

By applying Division 6, sections 23XJ (about use of force in carrying

out forensic procedures) and 23XK (about forensic procedures not

being carried out in a cruel, inhuman or degrading manner) apply to

the carrying out of a forensic procedure under this Division.

40 Paragraph 23XWL(c)

Repeal the paragraph.

41 After section 23XWN

Insert:

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

12 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

23XWNA Circumstances in which judge or magistrate may order

forensic procedure

A judge or magistrate may, under section 23XWO, order the

carrying out of a forensic procedure on an offender if:

(a) the offender is not in custody and has not consented to the

forensic procedure (whether or not consent has been sought);

(b) the offender is in custody and has not consented to the

forensic procedure (whether or not consent has been sought);

forensic procedure.

42 Subsection 23XWO(1)

Omit "directing a serious offender to consent to an intimate forensic

procedure to which this Division applies being carried out on the

serious offender", substitute "for the carrying out of an intimate forensic

procedure, or a non-intimate forensic procedure, to which this Division

applies on a serious offender (other than a child or an incapable

person)".

43 Paragraph 23XWO(7)(c)

Repeal the paragraph.

44 After section 23XWO

Insert:

23XWOA Securing the presence of offender at hearing--offender in

custody

(1)

If:

(a) an application is made under section 23XWO to a judge or

magistrate for an order under that section for the carrying out

of a forensic procedure on an offender; and

(b) the offender is in custody or is otherwise detained under a

law of the Commonwealth, a State or a Territory (original

custody);

the judge or magistrate may, on the application of a constable,

issue a warrant directing the person holding the offender to deliver

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 13

the offender into the custody (temporary custody) of the constable

for the hearing of the application.

(2) If the judge or magistrate refuses to make the order under

section 23XWO, the constable given temporary custody of the

offender must return the offender to the place of original custody

without delay.

(3) If the judge or magistrate makes the order under section 23XWO,

the judge or magistrate may:

(a) order the constable given temporary custody of the offender:

(i) to convey the offender to the nearest premises where

facilities for carrying out the procedure in accordance

with this Part are available to that constable; and

(ii) to return the offender to the place of original custody

without delay after the procedure is carried out; or

(b) order the constable given temporary custody of the offender

to return the offender to the place of original custody without

delay.

23XWOB Securing the presence of offender at hearing--offender

not in custody

(1)

If:

(a) an application is made under section 23XWO to a judge or

magistrate for an order for the carrying out of a forensic

procedure on an offender; and

(b) the offender is neither in custody nor detained under a law of

the Commonwealth, a State or a Territory;

the judge or magistrate may, on the application of a constable:

hearing of the application; or

(d) issue a warrant for the arrest of the offender for the purpose

of bringing the offender before the judge or magistrate for the

hearing of the application.

(2) An application for a summons under subsection (1) must be:

(a) made by information on oath or affirmation; and

(b) accompanied by an affidavit dealing with matters referred to

in paragraphs (3)(a) and (b).

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

14 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(3) The judge or magistrate may issue a summons only if satisfied:

(a) that the issue of the summons is necessary to ensure the

appearance of the offender at the hearing of the application

made under section 23XWO; or

(b) that the issue of the summons is otherwise justified.

(4) An application for a warrant under subsection (1) must be:

(a) made by information on oath or affirmation; and

(b) accompanied by an affidavit dealing with matters referred to

in paragraphs (5)(a), (b) and (c).

(5) The judge or magistrate may issue a warrant only if satisfied:

(a) that the arrest is necessary to ensure the appearance of the

offender at the hearing of the application made under

section 23XWO, and that the issue of a summons would not

ensure that appearance; or

(b) that the offender might destroy evidence that might be

obtained by carrying out the forensic procedure; or

45 Paragraph 23XWP(1)(b)

Omit "offender to permit a forensic procedure to be carried out under

this Division", substitute "carrying out of a forensic procedure under

this Division on the offender".

46 Subsection 23XWP(3)

Omit "an offender who is not in a prison or another place of detention to

permit a forensic procedure to be carried out", substitute "the carrying

out of a forensic procedure under this Division on an offender who is

not in a prison or another place of detention".

47 Subsection 23XWP(4)

Omit "An offender ordered to permit the carrying out of a forensic

procedure", substitute "If a judge or magistrate orders the carrying out

of a forensic procedure under this Division on an offender, the

offender".

48 Subsection 23XWQ(2)

After "A person", insert "(the authorised person)".

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 15

49 After subparagraph 23XWQ(2)(b)(i)

Insert:

(ia) in a case where the informed consent of the parent or

guardian of the volunteer is given in accordance with

section 23XWR--after the constable concerned has

informed the child or incapable person that, even though

consent has been given, if he or she objects to or resists

the carrying out of the forensic procedure it will not be

carried out; and

50 Subparagraph 23XWQ(2)(b)(ii)

Omit "after the person", substitute "after the authorised person".

51 Paragraph 23XWR(2)(b)

Repeal the paragraph, substitute:

(b) that the information will be stored on the volunteers (limited

purposes) index of that system unless the volunteer (or, in the

case of a volunteer who is a child or an incapable person, the

parent or guardian of the volunteer) chooses for the

information to be stored on the volunteers (unlimited

purposes) index of that system; and

52 Section 23YDAC

Before "In this", insert "(1)".

53 Section 23YDAC (definition of Commonwealth DNA

database system)

Omit "containing", substitute "that is managed by the Commonwealth

and that contains".

54 Section 23YDAC (paragraph (a) of the definition of

Commonwealth DNA database system)

After "Commonwealth agency", insert "and, in relation to a crime scene

index, in so far as it also relates to material taken or obtained by a

foreign law enforcement agency (within the meaning of the Australian

Crime Commission Act 2002)".

55 Section 23YDAC (after paragraph (a) of the definition of

crime scene index)

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

16 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Insert:

(aa) at any place outside Australia where an offence under the law

of a foreign country was, or is reasonably suspected of

having been, committed; or

56 Section 23YDAC (at the end of the definition of

State/Territory DNA database system)

Add:

Note:

See also subsection (2).

57 Section 23YDAC (definition of volunteers (limited

purposes) index)

Omit "paragraph 23XWR(2)(b)", substitute "paragraph

23XWR(2)(ba)".

58 At the end of section 23YDAC

Add:

(2) For a participating jurisdiction, the database referred to in the

definition of State/Territory DNA database system in

subsection (1) may be that part of NCIDD that relates to that

participating jurisdiction.

59 After paragraph 23YDAE(2)(d)

Insert:

(da) the purpose of assisting a foreign country to decide whether

to make a request under the Mutual Assistance in Criminal

Matters Act 1987;

60 Paragraph 23YDA(1)(b)

After "suspect", insert ", offender or volunteer".

61 Paragraph 23YDA(2)(a)

After "(Division 3)", insert ", asking an offender to consent to a forensic

procedure (Division 6A) or asking a volunteer to consent to a forensic

procedure (Division 6B)".

62 Paragraph 23YDA(2)(b)

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 17

After "(Division 4)", insert "or on an offender who is in custody

(Division 6A)".

63 Paragraph 23YDA(2)(c)

After "(Division 5)", insert ", applying to a judge or magistrate for an

order for the carrying out of a forensic procedure on an offender

(Division 6A) or applying to a magistrate for an order under

section 23XWU for the carrying out of a forensic procedure on a child

or incapable person".

64 Paragraphs 23YDA(2)(d), (e) and (f)

After "suspect", insert ", offender or volunteer".

65 Subsection 23YG(2)

Repeal the subsection, substitute:

(2) Subject to subsection (3), material of any kind that is required by

this Part to be made available to a suspect, offender or volunteer

must be made available in accordance with subsection (1):

(a) within 14 days after the material comes into existence; or

(b) if the material is requested by the suspect, offender or

volunteer or the suspect's, offender's or volunteer's interview

friend or legal representative, within 14 days of the request.

(3) Subsection (2) does not apply to:

(a) copies of records required to be made available under

subsection 23XE(5); and

(b) material required to be provided under section 23XU; and

be provided under section 23XW.

66 After paragraph 23YO(2)(d)

Insert:

(da) the purposes of assisting a foreign country to decide whether

to make a request under the Mutual Assistance in Criminal

Matters Act 1987;

67 After section 23YP

Insert:

Schedule 1 Forensic procedures

Part 1 Amendments commencing on day after Royal Assent

18 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

23YPA Analysis of forensic material

The analysis for the Commonwealth of forensic material obtained

as a result of the carrying out of a forensic procedure under this

Part must be carried out in an accredited laboratory.

68 Subsection 23YQ(1)

Omit "staff member", substitute "AFP appointee".

69 Subsection 23YQ(2)

Omit "staff member", substitute "AFP appointee".

70 Subsection 23YUC(1)

Omit "the forensic procedure", substitute "an intimate forensic

procedure".

71 Subsection 23YUC(1)

After "an order", insert "under this Part".

72 After subsection 23YUC(1)

Insert:

(1A) A person is authorised to carry out a non-intimate forensic

procedure authorised by an order under this Part that is registered

in accordance with an arrangement referred to in subsection

23YUB(1) anywhere in the Commonwealth. The person is

authorised to carry out the procedure in accordance with Division 6

or a corresponding law of a participating jurisdiction, and not

otherwise.

73 At the end of Division 11 of Part ID

Add:

23YUDA Arrangements with prisons or other places of detention

The Commissioner may, on behalf of the Commonwealth, enter

into an arrangement with the head (however described) of a prison

or other place of detention in a State or Territory in relation to the

carrying out of forensic procedures under this Part on offenders

who are serving sentences of imprisonment in that prison or other

place of detention.

Forensic procedures Schedule 1

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 19

74 Saving--orders by senior constable

The amendment made by item 16 does not affect the validity of an order

that is in force under section 23WN of the Crimes Act 1914

immediately before the commencement of that item.

75 Application provision

(1)

The amendments made by items 22 to 26, 34, 35, 39, 48, 49, 50, 67, 70

and 72 apply in relation to the carrying out of forensic procedures

starting on or after the commencement of those items.

(2)

The amendments made by items 27 to 33 apply in relation to samples

taken under Part ID of the Crimes Act 1914 on or after the

commencement of those items.

(3)

The amendments made by items 21, 40, 41, 43 and 45 to 47 apply in

relation to orders made on or after the commencement of those items.

(4)

The amendments made by items 42 and 44 apply in relation to

applications made under section 23XWO of the Crimes Act 1914 on or

after the commencement of those items.

(5)

The amendment made by item 51 applies in relation to the giving of

informed consent on or after the commencement of that item.

(6)

The amendments made by items 53 to 55 do not affect the continuity of

the Commonwealth DNA database system referred to in

section 23YDAC of the Crimes Act 1914 or of the crime scene index

referred to in that section.

(7)

The amendments made by items 59 and 66 do not affect by implication

the interpretation of sections 23YDAE and 23YO of the Crimes Act

1914 at a time before the commencement of those items.

(8)

The amendments made by items 60 to 64 apply in relation to actions

taken on or after the commencement of those items.

(9)

The amendment made by item 65 applies in relation to material that, on

or after the commencement of that item, is required by Part ID of the

Crimes Act 1914 to be made available to a person.

Schedule 1 Forensic procedures

Part 2 Amendments commencing on day to be fixed by Proclamation

20 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Part 2--Amendments commencing on day to be

fixed by Proclamation

Crimes Act 1914

76 Paragraphs 23WF(2)(b) and (c)

Repeal the paragraphs, substitute:

(b) informs the suspect, in accordance with the regulations and

section 23WJ, of the matters mentioned in that section; and

77 Paragraph 23WG(2)(b)

Repeal the paragraph, substitute:

(b) informs the suspect, in accordance with the regulations and

section 23WJ, of the matters mentioned in that section; and

78 Paragraph 23XWG(1)(b)

Repeal the paragraph, substitute:

(b) informs the offender, in accordance with the regulations and

section 23XWJ, of the matters mentioned in that section; and

79 Subsection 23XWR(1)

After "a constable informs the volunteer, parent or guardian", insert ",

in accordance with the regulations,".

80 Application provision

The amendments made by this Part apply in relation to the giving of

informed consent on or after the commencement of this Part.

Amendments relating to disclosure of ACC information Schedule 2

Amendments commencing on day after Royal Assent Part 1

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 21

Schedule 2--Amendments relating to

disclosure of ACC information

Part 1--Amendments commencing on day after

Royal Assent

Australian Crime Commission Act 2002

1 Section 59 (heading)

Repeal the heading, substitute:

59 Providing reports and information to members of Parliament

2 Before subsection 59(1)

Insert:

Information for Minister

3 Subsection 59(1)

After "the Chair of the Board", insert "and the CEO".

4 Subsection 59(1)

After "requests the Chair", insert "or the CEO".

5 Subsection 59(1)

After "functions, the Chair", insert "or the CEO (as the case requires)".

6 Before subsection 59(1A)

Insert:

Information for Inter-Governmental Committee

7 Subsection 59(1A)

After "the Chair of the Board" (first occurring), insert "or the CEO".

8 Subsection 59(1A)

After "the Chair of the Board" (second occurring), insert "or the CEO

(as the case requires)".

Schedule 2 Amendments relating to disclosure of ACC information

Part 1 Amendments commencing on day after Royal Assent

22 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

9 Subsection 59(2)

After "the Chair of the Board", insert "or the CEO (as the case

requires)".

10 Subsection 59(2)

Omit "the Chair" (second occurring), substitute "he or she".

11 Subsection 59(3)

After "the Chair of the Board" (first occurring), insert "or the CEO".

12 Paragraph 59(3)(b)

After "the Chair of the Board", insert "or the CEO".

13 Subsection 59(5)

After "the Chair of the Board" (first occurring), insert "or the CEO (as

the case requires)".

14 Subsection 60(4)

After "the Board", insert "or the CEO".

15 Subsection 60(5)

Omit "the Board shall", substitute "the Board and the CEO must".

16 Application of this Part

The amendments made by this Part apply to any information in the

possession of the ACC, whether the information comes into the

possession of the ACC before or after this item commences.

Amendments relating to disclosure of ACC information Schedule 2

Amendments commencing on Proclamation Part 2

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 23

Part 2--Amendments commencing on Proclamation

Australian Crime Commission Act 2002

17 Subsection 4(1)

Insert:

ACC information means information that is in the ACC's

possession.

18 Subsection 4(1)

Insert:

permissible purpose means one or more of the following purposes:

(a) performing functions referred to in section 7A or 7C;

(b) preventing, detecting, investigating, prosecuting or

punishing:

(i) criminal offences or activities that might constitute

criminal offences (including under a law of a foreign

country); or

(ii) contraventions of a law of the Commonwealth, a State

or a Territory imposing a penalty or sanction (including

taking civil remedies in relation to contraventions of

such laws); or

(iii) seriously improper conduct (including professional

misconduct or misconduct by a public official);

security;

(d) preventing serious threats to an individual's life, health or

safety, or to public health or public safety;

(e) enforcing laws (including laws of foreign countries) relating

to proceeds of crime;

(f) enforcing laws (including laws of foreign countries) relating

to unexplained wealth;

(g) protecting public revenue;

(h) developing government policy;

(i)

researching

criminology;

(j) any other purpose prescribed by the regulations.

Schedule 2 Amendments relating to disclosure of ACC information

Part 2 Amendments commencing on Proclamation

24 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

19 Subsection 12(1) (note)

Omit "Note", substitute "Note 1".

20 Subsection 12(1) (note)

Omit "section 59", substitute "sections 59AA and 59AB".

21 At the end of subsection 12(1)

Add:

Note 2:

This subsection is subject to any relevant direction given under

subsection 25A(9) (see subsection (2) of this section).

22 At the end of subsection 12(1A)

Add:

Note:

This subsection is subject to any relevant direction given under

subsection 25A(9) (see subsection (2) of this section).

23 After subsection 12(1A)

Insert:

(2) Subsections (1) and (1A) are subject to any relevant direction given

under subsection 25A(9) (confidentiality in relation to

examinations).

24 Subparagraph 47A(1)(b)(ii)

Omit "a law enforcement agency or a foreign law enforcement agency",

substitute "a person or body (however described) to whom the CEO

may disclose ACC information under section 59AA".

25 At the end of subsection 59(1)

Add:

Note:

This section is subject to any relevant direction given under subsection

25A(9) (see section 59AC).

26 Subsections 59(7) to (11)

Repeal the subsections, substitute:

Information for members of Parliament

(7) The Chair of the Board or the CEO may inform one or more of the

following persons of the general conduct of the operations of the

Amendments relating to disclosure of ACC information Schedule 2

Amendments commencing on Proclamation Part 2

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 25

ACC if the Chair or the CEO (as the case requires) considers that it

is in the public interest to do so:

(a) a member of either House of the Parliament;

(b) a member of the Parliament of a State.

Note:

A reference to the Parliament of a State includes a reference to the

Legislative Assemblies of the Australian Capital Territory and the

Northern Territory (see paragraph 4(3)(a)).

27 After section 59

Insert:

59AA Disclosing information to government bodies

Commonwealth, State, Territory and foreign agencies etc.

(1) The CEO may disclose ACC information to:

(a) a body of the Commonwealth, a State or a Territory; or

(b) a person who holds an office or appointment under a law of

the Commonwealth, a State or a Territory; or

(i) law enforcement in a foreign country; or

(ii) intelligence gathering for a foreign country; or

(iii) the security of a foreign country; or

(d) an international body that:

(i) has functions relating to law enforcement or gathering

intelligence; and

(ii) is prescribed by the regulations for the purposes of this

paragraph; or

(e) an international judicial body that is prescribed by the

regulations for the purposes of this paragraph;

if:

(f) the CEO considers it appropriate to do so; and

(g) the CEO considers that the information is relevant to a

permissible purpose; and

(h) disclosing the ACC information would not be contrary to a

law of the Commonwealth, a State or a Territory that would

otherwise apply.

Note 1:

For the definition of body, see subsection (3).

Schedule 2 Amendments relating to disclosure of ACC information

Part 2 Amendments commencing on Proclamation

26 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Note 2:

This section is subject to any relevant direction given under subsection

25A(9) (see section 59AC).

ASIO

(2) The CEO may disclose ACC information to the Australian Security

Intelligence Organisation if:

(a) the CEO considers it appropriate to do so; and

(b) the information is relevant to security (as defined in section 4

of the Australian Security Intelligence Organisation Act

1979); and

law of the Commonwealth, a State or a Territory that would

otherwise apply.

Definitions

(3) In this section:

body includes:

(a) a body however described; and

(b) a Department of State; and

purpose by or under a law of the Commonwealth, a State or a

Territory; and

(d) a law enforcement agency.

59AB Disclosing information to private sector bodies

(1) The CEO may disclose ACC information to a body corporate that

is prescribed, or is included in a class of bodies corporate that is

prescribed, by the regulations for the purposes of this section if:

(a) the CEO considers it appropriate to do so; and

(b) the CEO considers that disclosing the information to the body

is necessary for a permissible purpose; and

disclose the information except:

(i) as referred to in subsection (3); or

(ii) as required by a law of the Commonwealth, a State or a

Territory; and

Amendments relating to disclosure of ACC information Schedule 2

Amendments commencing on Proclamation Part 2

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 27

(d) the body has undertaken, in writing, to comply with any

conditions the CEO specifies under subsection (4) or (5); and

(e) disclosing the ACC information would not be contrary to a

law of the Commonwealth, a State or a Territory that would

otherwise apply.

Note:

This section is subject to any relevant direction given under subsection

25A(9) (see section 59AC).

Limitations on disclosing information under subsection (1)

(2) The CEO may disclose ACC information to a body corporate under

subsection (1) only if:

(a) for information that is personal information (within the

meaning of the Privacy Act 1988)--the CEO considers that

disclosing the information is necessary for the purposes of:

(i) preventing criminal offences or activities that might

constitute criminal offences (including under a law of a

foreign country); or

(ii) detecting criminal offences or activities that might

constitute criminal offences (including under a law of a

foreign country); or

(iii) facilitating the collection of criminal information and

intelligence in relation to criminal offences or activities

that might constitute criminal offences (including under

a law of a foreign country); and

(b) in any case--the information is not confidential commercial

information relating to another body or person.

Specifying purposes and conditions etc.

(3) The CEO must specify, in writing, any permissible purpose for

which the ACC information may be used or further disclosed.

(4) If the CEO discloses ACC information that is personal information

(within the meaning of the Privacy Act 1988) to a body corporate,

the CEO must specify, in writing:

(a) one or more conditions that the body corporate must meet in

relation to monitoring and controlling any further disclosure

of that information by an employee or officer of the body

corporate; and

Schedule 2 Amendments relating to disclosure of ACC information

Part 2 Amendments commencing on Proclamation

28 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(b) a condition that the information is not to be disclosed to a

person who is not an employee or officer of the body

corporate, other than in any circumstances specified.

(5) The CEO may specify, in writing, any other conditions that the

CEO considers appropriate in relation to ACC information that is

disclosed under, or in accordance with, this section (whether in

relation to personal information or any other ACC information).

(6) An instrument made under subsection (3), (4) or (5) is not a

legislative instrument.

Offence--disclosure etc. for unauthorised purposes

(7) A person commits an offence if:

(a) ACC information is disclosed to the person under, or in

accordance with, this section; and

(b) the person (directly or indirectly):

(i) makes a record of the information; or

(ii) discloses the information to any other person; and

(i) for a purpose specified under subsection (3) in relation

to the information; or

(ii) required by any other law.

Penalty: 50 penalty units, or imprisonment for 12 months, or both.

Note:

For a defence to this offence, see subsection (9).

Offence--breach of conditions

(8) A person commits an offence if:

(a) ACC information is disclosed to the person under, or in

accordance with, this section; and

(b) the CEO specifies a condition under subsection (4) or (5) in

relation to the information; and

information; and

(d) the act or omission breaches the condition.

Penalty: 50 penalty units, or imprisonment for 12 months, or both.

Note:

For a defence to this offence, see subsection (9).

Amendments relating to disclosure of ACC information Schedule 2

Amendments commencing on Proclamation Part 2

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 29

Defence--information legitimately made public

(9) Subsections (7) and (8) do not apply to a person in relation to ACC

information if:

(a) the information is in the public domain before the person:

(i) makes the record, or discloses the information (if

subsection (7) applies); or

(ii) does the act or omits to do the act in relation to the

information (if subsection (8) applies); and

(b) the original disclosure of the information into the public

domain (before the person does the thing referred to in

subparagraph (a)(i) or (ii) of this subsection) was not:

(i) in contravention of section 51 or subsection (7) or (8) of

this section; or

(ii) in breach of an undertaking given under subsection (1)

of this section.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (9) (see subsection 13.3(3) of the Criminal Code).

59AC Confidentiality in relation to examinations

Sections 59, 59AA and 59AB are subject to any relevant direction

as in force under subsection 25A(9) (confidentiality in relation to

examinations).

59AD Publication of reports in relation to offences

A report under this Act that:

(a) sets out a finding that an offence has been committed; or

(b) makes a recommendation to institute a prosecution in respect

of an offence;

must not be made available to the public unless the finding or

recommendation is expressed to be based on evidence that would

be admissible in the prosecution of a person for that offence.

28 After paragraph 61(2)(d)

Insert:

(da) the general nature and the extent of any information disclosed

by the CEO during that year to a body corporate under

section 59AB;

Amendments relating to returnable items for the ACC Schedule 3

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 31

Schedule 3--Amendments relating to

returnable items for the ACC

Australian Crime Commission Act 2002

1 Subsection 4(1)

Insert:

Commonwealth officer:

(a) has the meaning given by subsection 3(1) of the Crimes Act

1914; and

(b) includes members of the staff of the ACC.

2 Subsection 4(1)

Insert:

returnable item means:

(a) a thing seized under a warrant issued under section 22; or

(b) a thing, or a document, produced:

(i) under a notice given under section 29; or

(ii) during an examination conducted under Division 2 of

Part II.

3 Subsection 4(1) (paragraph (d) of the definition of serious

and organised crime)

Omit "within the meaning of the Proceeds of Crime Act 2002".

4 Subsection 4(1) (subparagraph (da)(ii) of the definition of

serious and organised crime)

Omit "within the meaning of the Proceeds of Crime Act 2002".

5 Subsection 4(1)

Insert:

serious offence:

(a) in the definition of serious and organised crime--has the

meaning given by the Proceeds of Crime Act 2002; and

Schedule 3 Amendments relating to returnable items for the ACC

32 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(b) otherwise--has the meaning given by subsection 3C(1) of the

Crimes Act 1914.

6 Subsection 4(1)

Insert:

State or Territory law enforcement agency has the meaning given

by subsection 3ZQU(7) of the Crimes Act 1914.

7 Subsection 4(1)

Insert:

terrorism offence has the same meaning as in subsection 3(1) of

the Crimes Act 1914.

8 Subsection 4(1)

Insert:

terrorist act has the same meaning as in subsection 100.1(1) of the

Criminal Code.

9 Subsections 22(8) and (9)

Repeal the subsections.

10 At the end of Division 1A of Part II

Add:

24AA Use of and sharing returnable items

Use of returnable items by persons who are not members of the

staff of the ACC

(1) The CEO may make a returnable item available to a constable, or

Commonwealth officer, who is not a member of the staff of the

ACC, to use for any or all of the following purposes if it is

necessary to do so for that purpose:

(a) a purpose referred to in subsection 3ZQU(1) of the Crimes

Act 1914;

(b) the performance of the functions of the ACC referred to in

section 7A of this Act;

Amendments relating to returnable items for the ACC Schedule 3

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 33

section 7C of this Act.

(2) A constable or Commonwealth officer, who is not a member of the

staff of the ACC, may use a returnable item for all or any of the

purposes referred to in subsection (1) if it is necessary to do so for

that purpose.

Use of returnable items by members of the staff of the ACC

(3) The head of the special ACC operation/investigation to which a

returnable item relates may make the item available to another

member of the staff of the ACC to use for the purpose of the

performance of all or any of the functions referred to in section 7A

or 7C.

(4) A member of the staff of the ACC may use a returnable item for

the purpose of the performance of all or any of the functions

referred to in section 7A or 7C.

Use of returnable items for State or Territory purposes

(5) The CEO may make a returnable item available to a constable or

Commonwealth officer to use for any purpose for which the

making available of the item is required or authorised by a law of a

State or Territory.

(6) A constable or Commonwealth officer may use a returnable item

for any other use that is required or authorised by or under a law of

a State or a Territory.

Section does not limit any other law of the Commonwealth

(7) To avoid doubt, this section does not limit any other law of the

Commonwealth that:

(a) requires or authorises the use of a document or other thing; or

(b) requires or authorises the making available (however

described) of a document or other thing.

Sharing returnable item for use by State, Territory or foreign

agency

(8) The CEO may make a returnable item available to:

(a) a State or Territory law enforcement agency; or

Schedule 3 Amendments relating to returnable items for the ACC

34 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(b) an agency that has responsibility for:

(i) law enforcement in a foreign country; or

(ii) intelligence gathering for a foreign country; or

(iii) the security of a foreign country;

to be used by that agency for a purpose mentioned in

subsection (1), (5) or (6) and the purpose of any or all of the

following (but not for any other purpose):

law of a State or Territory;

(d) proceedings under a corresponding law (within the meaning

of the Proceeds of Crime Act 1987 or the Proceeds of Crime

Act 2002);

(e) proceedings for the forfeiture of the item under a law of a

State or Territory;

(f) deciding whether to institute proceedings or to take any other

action mentioned in any of paragraphs 3ZQU(1)(a) to (l)

(inclusive) of the Crimes Act 1914, subsection (5) or (6) of

this section, or paragraph (c), (d) or (e) of this subsection.

Ministerial arrangements for sharing

(9) This section does not prevent the Minister from making an

arrangement with a Minister of a State or Territory for:

(a) the making available to a State or Territory law enforcement

agency of that State or Territory, for purposes mentioned in

subsections (1), (6) and (8), of returnable items; and

(b) the disposal by the agency of such items when they are no

longer of use to that agency for those purposes.

Note:

This subsection does not empower the Minister to make such an

arrangement.

24AB When returnable items must be returned

(1) If the CEO is satisfied that a returnable item is not required (or is

no longer required) for a purpose mentioned in section 24AA or for

other judicial or administrative review proceedings, the CEO must

take reasonable steps to return the item to:

(a) the person from whom the item was seized, or the person

who produced the item; or

Amendments relating to returnable items for the ACC Schedule 3

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 35

(b) the owner, if the person mentioned in paragraph (a) is not

entitled to possess it.

(2) However, the CEO does not have to take those steps if:

(a)

either:

(i) the returnable item may be retained because of an order

under subsection 24AC(2), or any other order under that

subsection has been made in relation to the item; or

(ii) the CEO has applied for such an order and the

application has not been determined; or

(b) the returnable item may otherwise be retained, destroyed or

disposed of under a law, or an order of a court or tribunal, of

the Commonwealth or of a State or a Territory; or

Commonwealth or is the subject of a dispute as to ownership.

(3) To avoid doubt, if the returnable item is a document, the CEO is

required to take reasonable steps to return the document only if the

ACC took possession of that document.

24AC Issuing officer may permit a returnable item to be retained,

forfeited etc.

(1) An issuing officer may, on application by the CEO, make an order

under subsection (2) in relation to a returnable item.

Preventing use in committing terrorist act, terrorism offence or

serious offence

(2) The issuing officer may make any of the orders referred to in

subsection (3) if the issuing officer is satisfied that there are

reasonable grounds to suspect that, if the returnable item is

returned to either of the following persons, the item is likely to be

used by that person or another person in the commission of a

terrorist act, a terrorism offence or a serious offence:

(a) the owner of the item;

(b) the person from whom the item was seized, or the person

who produced the item.

(3) The orders are as follows:

(a) an order that the item may be retained for the period specified

in the order;

Schedule 3 Amendments relating to returnable items for the ACC

36 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(b) an order that the item is forfeited to the Commonwealth;

(i) the item be sold and the proceeds given to the owner of

the item; or

(ii) the item be sold in some other way;

(d) an order that the item is to be destroyed or otherwise

disposed of.

Item must be returned if issuing officer not satisfied

(4) The issuing officer must order that the returnable item be returned

to the following person if the issuing officer is not satisfied as

mentioned in subsection (2):

(a) the person from whom the item was seized, or the person

who produced the item;

(b) if the person referred to in paragraph (a) is not entitled to

possess the item--the owner of the item.

CEO to notify persons with an interest in returnable item

(5) Before making the application, the CEO must:

(a) take reasonable steps to discover who has an interest in the

returnable item; and

(b) if it is practicable to do so, notify each person who the CEO

believes to have such an interest of the proposed application.

Person with interest may appear and be heard

(6) The issuing officer must allow a person who has an interest in the

returnable item to appear and be heard in determining the

application.

Function conferred in personal capacity

(7) A function of making an order under this section is conferred on an

issuing officer in a personal capacity and not as a court or a

member of a court.

(8) An issuing officer performing a function of, or connected with,

making an order under this section has the same protection and

immunity as if he or she were performing that function as, or as a

Schedule 4 Amendments relating to the Integrity Commissioner's investigative powers

38 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

Schedule 4--Amendments relating to the

Integrity Commissioner's investigative

powers

Law Enforcement Integrity Commissioner Act 2006

1 Subsection 5(1)

Insert:

constable means:

(a) a member or special member of the AFP; or

(b) a member of the police force or police service of a State.

2 Subsection 5(1)

Insert:

Federal Court means the Federal Court of Australia.

3 Subsection 5(1)

Insert:

in contempt of ACLEI has the meaning given by section 96A.

4 Subsection 20(1) (note)

Omit "referred", substitute "notified".

5 Section 21 (heading)

Repeal the heading, substitute:

21 Law enforcement agency head to pass on new information in

relation to corruption issue already notified

6 Part 8 (heading)

Repeal the heading, substitute:

Part 8--Public inquiries by Integrity Commissioner

7 Subdivision A of Division 1 of Part 9 (heading)

Amendments relating to the Integrity Commissioner's investigative powers Schedule 4

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 39

Repeal the heading, substitute:

Subdivision A--Notices to give information or to produce

documents or things

8 Sections 75 and 76

Repeal the sections, substitute:

75 Notice to give information or to produce document or thing

Giving notice

(1) For the purpose of investigating a corruption issue, the Integrity

Commissioner may, by notice in writing, require a person to do

either or both of the following:

(a) give the information specified in the notice;

(b) produce the documents or things specified in the notice;

if the Integrity Commissioner has reasonable grounds to suspect

that the information, documents or things will be relevant to the

investigation.

Note:

In certain cases, disclosing the existence of a notice, or any

information about it, is an offence: see section 77B.

(2) The Integrity Commissioner may require that information specified

under paragraph (1)(a) is to be given in writing.

(3) The notice must:

(a) be served on the person; and

(b) be signed by the Integrity Commissioner; and

the person must comply with the notice.

(4) The period specified under paragraph (3)(c) must be at least 14

days after the day the notice is served on the person, unless the

Integrity Commissioner considers that allowing a 14-day period

would significantly prejudice a corruption investigation, in which

case a shorter period may be specified.

(5) If a shorter period is specified under paragraph (3)(c), the Integrity

Commissioner must record, in writing:

Schedule 4 Amendments relating to the Integrity Commissioner's investigative powers

40 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(a) the name of the corruption investigation that would be

prejudiced; and

(b) why a 14-day period would significantly prejudice the

investigation.

(6) The Integrity Commissioner may serve a notice on a person

without holding a hearing.

76 Compliance with notice

Compliance with notice

(1) A person served with a notice under section 75 must comply with

the notice:

(a) within the period specified in the notice; or

(b) within such further time as the Integrity Commissioner

allows under subsection (3).

Note 1:

Failure to comply with a notice is an offence: see section 78.

Note 2:

See also subsection 150(2) in relation to section 149 certified

information.

Extension of time

(2) A person served with a notice under section 75 may apply to the

Integrity Commissioner, in writing, for further time to comply with

the notice:

(a) before the period expires; or

(b) as soon as possible after the period expires.

(3) The Integrity Commissioner may allow a person served with a

notice further time to comply with the notice whether or not an

application has been made.

Acknowledgement

(4) If a person served with a notice has given the information and/or

produced the documents or things specified in the notice, the

Integrity Commissioner must give the person a written

acknowledgement of that fact.

9 Subsection 77(1)

Amendments relating to the Integrity Commissioner's investigative powers Schedule 4

Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011 41

Omit "to the Integrity Commissioner in accordance with a request under

section 75 or 76", substitute "in accordance with a notice under

section 75".

10 After Subdivision A of Division 1 of Part 9

Insert:

Subdivision AA--Prohibitions against disclosing information

about notices

77A Disclosure of notice may be prohibited

Application

(1) This section applies in respect of a notice served on a person under

section 75.

Notation prohibiting disclosure of information about notice

(2) The Integrity Commissioner may include a notation in the notice to

the effect that disclosure of information about:

(a) the notice; or

(b) any official matter connected with the notice;

is prohibited except in the circumstances (if any) specified in the

notation.

(3) The Integrity Commissioner must include a notation in the notice if

the Integrity Commissioner is satisfied that failure to do so would

reasonably be expected to prejudice:

(a) a person's safety or reputation; or

(b) the fair trial of a person who has been, or may be, charged

with an offence; or

corruption investigation; or

(d) any action taken as a result of an investigation referred to in

paragraph (c).

(4) The Integrity Commissioner may include a notation in the notice if

the Integrity Commissioner is satisfied that:

(a) failure to do so might prejudice:

(i) a person's safety or reputation; or

Schedule 4 Amendments relating to the Integrity Commissioner's investigative powers

42 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(ii) the fair trial of a person who has been, or may be,

charged with an offence; or

(iii) the investigation to which the notice relates or another

corruption investigation; or

(iv) any action taken as a result of an investigation referred

to in subparagraph (iii); or

(b) failure to do so might otherwise be contrary to the public

interest.

(5) The Integrity Commissioner must not include a notation in the

notice in any other case.

Written statement to accompany notation

(6) If a notation is included in the notice, it must be accompanied by a

written statement setting out the rights and obligations conferred or

imposed by section 77B on the person on whom the notice is

served.

Cancellation of notation

(7) A notation included in the notice is cancelled by this subsection if:

(a) the Integrity Commissioner concludes the investigation to

which the notice relates; and

(b) any criminal proceedings or civil penalty proceedings

resulting from the investigation are commenced.

(8) If a notation is cancelled by subsection (7), the Integrity

Commissioner must advise the person who was served with the

notated notice, in writing, of the cancellation.

Relationship of notation with the Privacy Act 1988

(9)

If:

(a) a notation has been included in the notice in relation to the

disclosure of information about the notice or any official

matter connected with the notice; and

(b) the notation has not been cancelled; and

the meaning of section 11A of the Privacy Act 1988) would

be required, under subsection 18K(5) of that Act, to make a

note about the disclosure of the information;

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such a note must not be made until the notation is cancelled.

77B Offences of disclosure

(1) A person commits an offence if:

(a) the person is served with a notice under section 75; and

(b) the notice includes a notation under section 77A; and

about:

(i) the notice; or

(ii) any official matter connected with the notice; and

(d) when the disclosure is made:

(i) the notation has not been cancelled by subsection

77A(7); and

(ii) the period of 5 years after the notice is served under

section 75 has not ended.

Penalty: Imprisonment for 12 months.

(2) In proceedings for an offence against subsection (1), it is a defence

if the person makes the disclosure:

(a) in the circumstances, if any, permitted by the terms of the

notation; or

(b) to a legal practitioner for the purpose of obtaining legal

advice or representation in relation to the notice; or

under section 221 in relation to the notice; or

(d) if the person is a body corporate--to an officer or agent of

the body corporate for the purpose of ensuring compliance

with the notice; or

(e) if the person is a legal practitioner--for the purpose of

obtaining the agreement of another person under subsection

79(3) to the legal practitioner answering a question or

producing a document or thing.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2): see subsection 13.3(3) of the Criminal Code.

(3) A person commits an offence if:

(a) a disclosure is made to a person about:

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44 Crimes Legislation Amendment (Powers and Offences) Bill 2011 No. , 2011

(i) a notice under section 75 that includes a notation under

section 77A; or

(ii) any official matter connected with a notice under

section 75 that includes a notation under section 77A;

and

(b) the disclosure is permitted under subsection (2) or (4)

because the person is a person of a particular kind; and

the existence of, or any information about:

(i) the notice; or

(ii) any official matter connected with the notice; and

(d) when the disclosure by the person is made:

(i) the notation has not been cancelled by subsection

77A(7); and

(ii) the period of 5 years after the notice is served under

section 75 has not ended.

Penalty: Imprisonment for 12 months.

(4) In proceedings for an offence against subsection (3), it is a defence

if the person discloses the information:

(a) if the person is an officer or agent of a body corporate

referred to in paragraph (2)(d):

(i) to another officer or agent of the body corporate for the

purpose of ensuring compliance with the notice; or

(ii) to a legal practitioner for the purpose of obtaining legal

advice or representation in relation to the notice; or

(iii) to a legal aid officer for the purpose of seeking

assistance under section 221 in relation to the notice; or

(b) if the person is a legal practitioner--for the purpose of giving

legal advice, making representations, or seeking assistance

under section 221, in relation to the notice; or

obtaining legal advice or representation in relation to the

notice.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4): see subsection 13.3(3) of the Criminal Code.

(5) A person commits an offence if:

(a) a disclosure is made to a person about:

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(i) a notice under section 75 that includes a notation under

section 77A; or

(ii) any official matter connected with a notice under

section 75 that includes a notation under section 77A;

and

(b) the disclosure is permitted under subsection (2) or (4)

because the person is a person of a particular kind; and

person:

(i) makes a record of the notice; or

(ii) discloses the existence of the notice; or

(iii) discloses any information about the notice or the

existence of it; and

(d) when the record, or disclosure, is made by the person:

(i) the notation has not been cancelled by subsection

77A(7); and

(ii) the period of 5 years after the notice is served under

section 75 has not ended.

Penalty: Imprisonment for 12 months.

(6) A reference in this section to disclosing something's existence

includes disclosing information from which a person could

reasonably be expected to infer its existence.

11 Section 78

Repeal the section, substitute:

78 Failure to comply with notice

(1) A person commits an offence if:

(a) the person is served with a notice under section 75; and

(b) the person fails to comply with the notice:

(i) within the period specified in the notice; or

(ii) if the Integrity Commissioner has allowed the person

further time under subsection 76(3)--within such

further time.

Penalty: Imprisonment for 2 years.

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Note 1:

If a notice requires a document or thing to be produced, a legal

practitioner may refuse to produce the document or thing in certain

circumstances: see section 79.

Note 2:

This section is not subject to the privilege against self-incrimination

but there are limits on the uses to which the evidence the person gives

may be put: see section 80.

(2) In proceedings for an offence against subsection (1), it is a defence

if it is not reasonably practicable for the person to comply with the

notice:

(a) within the period specified in the notice; or

(b) within such further time as allowed by the Integrity

Commissioner under subsection 76(3).

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (2): see subsection 13.3(3) of the Criminal Code.

12 Paragraphs 79(1)(a) and (b)

Omit "to the Integrity Commissioner".

13 Subsection 79(1)

Omit "requested to do so under section 76", substitute "served with a

notice to do so under section 75".

14 Subsection 79(5)

Repeal the subsection, substitute:

(5) If a legal practitioner gets agreement, as mentioned in

subsection (3):

(a) the fact that he or she:

(i) gives information; or

(ii) produces a document or thing;

does not otherwise affect a claim of legal professional

privilege that anyone may make in relation to that

information, document or thing; and

(b) the information or document does not cease to be the subject

of legal professional privilege merely because it is given,

produced or referred to.

15 Subsection 80(1)

Omit "requested to do so under section 75 or 76", substitute "served

with a notice to do so under section 75".

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16 Subsection 80(2)

Repeal the subsection.

17 Subsection 80(5)

Omit "requested to do so under section 75 or 76", substitute "served

with a notice to do so under section 75".

18 Subsection 80(7)

Omit "or 76".

19 Subsections 81(1) and (2)

Omit "to the Integrity Commissioner in response to a request under

section 75 or 76", substitute "in response to a notice served on the

person under section 75".

20 Subsection 82(3)

Omit "corruption issue", substitute "a corruption issue".

21 Subsection 83(1)

After "the summons" (first occurring), insert "to do either or both of the

following".

22 Paragraph 83(1)(a)

Omit "or".

23 Paragraph 83(1)(b)

Repeal the paragraph, substitute:

(b) to produce documents or things specified in the summons;

if the Integrity Commissioner has reasonable grounds to suspect

that the evidence, documents or things will be relevant to the

investigation of a corruption issue or the conduct of a public

inquiry.

24 Subsection 90(2)

Omit "give a such a direction", substitute "give such a direction".

25 Paragraph 92(2)(e)

Omit "95(2)", substitute "95(3)".

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26 Subsection 95(5)

Repeal the subsection, substitute:

(5) If a legal practitioner gets agreement, as mentioned in

subsection (3):

(a) the fact that he or she:

(i) answers the question; or

(ii) produces a document or thing;

does not otherwise affect a claim of legal professional

privilege that anyone may make in relation to the answer,

document or thing; and

(b) the answer or document does not cease to be the subject of

legal professional privilege merely because it is given,

produced or referred to.

27 Subsection 96(2)

Repeal the subsection.

28 Paragraph 96(4)(c)

After "section", insert "77B, 92 or".

29 After Subdivision E of Division 2 of Part 9

Insert:

Subdivision EA--Contempt of ACLEI

96A Contempt of ACLEI

(1) A person is in contempt of ACLEI if he or she:

(a) when served with a summons to attend a hearing:

(i) fails to attend as required by the summons; or

(ii) fails to appear and report from day to day unless

excused or released from further attendance by the

Integrity Commissioner; or

(iii) refuses or fails to be sworn or make an affirmation at

the hearing; or

(iv) subject to subsection (2), refuses or fails to answer a

question at the hearing that the Integrity Commissioner

requires the person to answer; or

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(v) subject to subsection (3), refuses or fails to produce a

document or thing that the person was required to

produce by a summons or notice under this Act that was

served on him or her as prescribed; or

(b) is a legal practitioner who is required to answer a question or

produce a document or thing at a hearing and both of the

following apply:

(i) the answer to the question would disclose, or the

document or thing contains, a privileged communication

made by or to the legal practitioner in his or her capacity

as a legal practitioner;

(ii) he or she refuses to comply with the requirement and

does not, when required by the Integrity Commissioner,

give the Integrity Commissioner the name and address

of the person to whom or by whom the communication

was made; or

misleading in a material particular; or

(d) insults, disturbs or uses insulting language towards someone

who the person knows:

(i) is the Integrity Commissioner; and

(ii) is holding a hearing in the performance of his or her

functions, or the exercise of his or her powers, as

Integrity Commissioner; or

(e) creates a disturbance, or takes part in creating or continuing a

disturbance, in or near a place that the person knows is being

used to hold a hearing for the purpose of:

(i) investigating a corruption issue; or

(ii) conducting a public inquiry; or

(f) obstructs or hinders the Integrity Commissioner in the

performance of his or her functions; or

(g) interrupts a hearing that is being held for the purpose of:

(i) investigating a corruption issue; or

(ii) conducting a public inquiry; or

(h) threatens a person present at a hearing that is being held for

the purpose of:

(i) investigating a corruption issue; or

(ii) conducting a public inquiry.

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(2) Subparagraph (1)(a)(iv) does not apply in the case of a legal

practitioner who refuses or fails to answer a question at a hearing

on the ground that the answer to the question would disclose a

privileged communication made by or to the legal practitioner in

his or her capacity as a legal practitioner.

(3) Subparagraph (1)(a)(v) does not apply in the case of a legal

practitioner who refuses or fails to produce a document or thing at

a hearing on the ground that the document or thing contains a

privileged communication made by or to the legal practitioner in

his or her capacity as a legal practitioner.

96B Federal Court or Supreme Court to deal with contempt

Application

(1) If, in respect of a hearing, the Integrity Commissioner is of the

opinion that a person is in contempt of ACLEI, the Integrity

Commissioner may apply to either of the following courts for the

person to be dealt with in relation to the contempt:

(a)

the

Federal

Court;

(b) the Supreme Court of the State or Territory in which the

hearing is held.

(2) Before making the application, the Integrity Commissioner must

inform the person that the Integrity Commissioner proposes to

make the application.

(3) The application must be accompanied by a certificate that states:

(a) the grounds for making the application; and

(b) evidence in support of the application.

(4) A copy of the certificate must be given to the person before, or at

the same time as, the application is made.

(5) To avoid doubt, if the Integrity Commissioner makes an

application under this section, the Integrity Commissioner need not

give the evidence to the relevant person or authority under

section 142.

How court may deal with application

(6)

If,

after:

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(a) considering the matters specified in the certificate; and

(b) hearing or receiving any evidence or statements by or in

support of ACLEI; and

support of the person;

the court to which the application was made finds that the person

was in contempt of ACLEI, the court may deal with the person as

if the acts or omissions involved constituted a contempt of that

court.

(7) For the purposes of determining whether a person is in contempt of

ACLEI under subsection (1), Chapter 2 of the Criminal Code

applies as if:

(a) being in contempt of ACLEI were an offence; and

(b) references to a person being criminally responsible for an

offence were references to a person being responsible for

being in contempt of ACLEI.

96C Conduct of contempt proceedings

(1) This section applies if an application is made to the Federal Court

or to the Supreme Court of a State or Territory under section 96B.

(2) Proceedings in relation to the application are, subject to this Act, to

be instituted, carried on, heard and determined in accordance with

the laws (including any Rules of Court) that apply in relation to the

punishment of a contempt of the court to which the application was

made.

(3) In proceedings relating to the application, a certificate under

subsection 96B(3) is prima facie evidence of the matters specified

in the certificate.

96D Person in contempt may be detained

(1) If the Integrity Commissioner proposes to make an application

under subsection 96B(1) in respect of a person, the Integrity

Commissioner may, during the hearing concerned, direct a

constable or an authorised officer to detain the person for the

purpose of bringing the person before the relevant court for the

hearing of the application.

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(2) If the person is so detained:

(a) the Integrity Commissioner must apply to the court as soon

as practicable under subsection 96B(1) in respect of the

person; and

(b) the person must, subject to subsection (3) of this section, be

brought before the court as soon as practicable.

(3) The court may:

(a) direct that the person be released from detention on condition

that he or she will appear before the court in relation to the

application; or

(b) order that the person continue to be detained until the

application is determined.

(4) The court may also impose any other condition on the release, for

example:

(a) that the person surrender his or her passport; or

(b) that the person give an undertaking as to his or her living

arrangements; or

(i) the AFP; or

(ii) a police force or police service of a State; or

(iii) any other authority or person responsible for the

enforcement of the laws of the Commonwealth or of the

States.

(5) The court may at any time vary or revoke a condition imposed

under subsection (4).

96E Integrity Commissioner may withdraw contempt application

(1) The Integrity Commissioner may, at any time, withdraw an

application under subsection 96B(1).

(2)

If:

(a) the Integrity Commissioner does so; and

(b) the person to whom the application relates is in detention

under section 96D;

the person must be released from detention immediately.

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96F Double jeopardy

(1) If an act or omission by a person is an offence against this Act and

is also an offence against a law of a State, the person may be

prosecuted and convicted under this Act or under that law of that

State in respect of the act or omission, but nothing in this Act

renders a person liable to be punished twice in respect of the same

act or omission.

(2)

If:

(a) an application is made to the Federal Court or a Supreme

Court under subsection 96B(1) in respect of an act or

omission by a person; and

(b) the person is dealt with by the court under that section in

respect of the act or omission;

the person is not liable to be prosecuted for an offence in respect of

that act or omission.

(3) If a person is prosecuted for an offence in respect of an act or

omission referred to in subsection 96A(1) without an application

being made to the Federal Court or a Supreme Court under

subsection 96B(1) in respect of the act or omission, an application

must not be made under subsection 96B(1) in respect of the act or

omission.

30 Section 93 (heading)

Repeal the heading, substitute:

93 Offences--attendance at hearings etc.

31 Section 94 (heading)

Repeal the heading, substitute:

94 Offences--disturbing or interrupting hearings

32 Subsection 99(1)

Repeal the subsection, substitute:

(1) An authorised officer may apply to a Judge of the Federal Court or

of the Supreme Court of a State or Territory for a warrant to arrest

a person if:

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(a) both of the following apply:

(i) the person has been ordered to deliver his or her

passport to the Integrity Commissioner (whether or not

the person has complied with the order);

(ii) the authorised officer has reasonable grounds to believe

that the person is likely to leave Australia for the

purpose of avoiding giving evidence at a hearing before

the Integrity Commissioner; or

(b) the person is to be served with a summons under section 83

and the authorised officer has reasonable grounds to believe

that the person:

(i) has absconded or is likely to abscond; or

(ii) is otherwise attempting, or likely to attempt, to evade

service of the summons; or

the person has committed an offence under subsection 93(1)

or is likely to do so.

33 Subsection 100(1)

Omit all the words after "authorising", substitute "the arrest of the

person".

34 After subsection 100(9)

Insert:

(9A) To avoid doubt, the authorised officer executing the warrant need

not be the authorised officer who applied for the warrant.

35 Subsection 104(4)

Omit "a hearing that been held", substitute "a hearing that has been

held".

36 At the end of subparagraph 110(4)(b)(iv)

Add "or".

37 At the end of paragraph 110(4)(b)

Add:

(v) in any case--any eligible seizable item;

38 Paragraph 117(2)(a)

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After "authorised officer", insert "or a constable".

39 Paragraph 117(2)(b)

After "not an authorised officer", insert "or a constable".

40 Subsection 117(3)

Repeal the subsection, substitute:

(3) Only an authorised officer or a constable may take part in

searching a person.

41 At the end of section 142

Add:

Note:

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (POWERS AND OFFENCES) BILL 2012