CRIMES LEGISLATION AMENDMENT BILL 2010

i Crimes Legislation Amendment Bill 2010 No. , 2010

Contents

1 Short

title

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

2 Commencement

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

3 Schedule(s)

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

Schedule 1--Amendments relating to ACC dismissal powers

Part 1--Amendment of the Australian Crime Commission Act

2002

Australian Crime Commission Act 2002

Part 2--Amendment of the Telecommunications (Interception

and Access) Act 1979

Telecommunications (Interception and Access) Act 1979

Part 3--Review of amendments

Schedule 2--Amendments relating to appointment of ACC

examiners

Australian Crime Commission Act 2002

Schedule 3--Amendment of the Crimes Act 1914

Part 1--Amendments relating to warrants issued in relation to

persons

Crimes Act 1914

Part 2--Amendments relating to retention etc. of things seized

and documents produced

Crimes Act 1914

Part 3--Amendment relating to fingerprints and photographs

Crimes Act 1914

Schedule 4--Amendments relating to special payments to AFP

appointees

Australian Federal Police Act 1979

Crimes Legislation Amendment Bill 2010 No. , 2010 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 Act

2010.

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 Bill 2010 No. , 2010

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. Schedules 1

and 2

The day this Act receives the Royal Assent.

3. Schedule 3

The day after this Act receives the Royal

Assent.

4. Schedule 4

The day this Act receives the Royal Assent.

Note:

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

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

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.

Amendments relating to ACC dismissal powers Schedule 1

Amendment of the Australian Crime Commission Act 2002 Part 1

Crimes Legislation Amendment Bill 2010 No. , 2010 3

Schedule 1--Amendments relating to ACC

dismissal powers

Part 1--Amendment of the Australian Crime

Commission Act 2002

Australian Crime Commission Act 2002

1 Subsection 4(1)

Insert:

serious misconduct, by a member of the staff referred to in

subsection 47(1), has the meaning given by subsection 47A(8).

2 After section 47

Insert:

47A Termination of employment of member of staff for serious

misconduct

CEO may make declaration

(1) This section applies if the CEO terminates the employment of a

member of the staff referred to in subsection 47(1) and the CEO

believes, on reasonable grounds, that the staff member's conduct or

behaviour, or any part of it:

(a) amounts to serious misconduct by the staff member; and

(b) is having, or is likely to have, a damaging effect on:

(i) the professional self-respect or morale of some or all of

the members of the staff of the ACC; or

(ii) the reputation of the ACC with the public, or any

section of the public, or with an Australian or overseas

government, or with a law enforcement agency or a

foreign law enforcement agency.

Note:

See section 29 of the Public Service Act 1999 for termination of the

employment of a member of the staff referred to in subsection 47(1) of

this Act.

Schedule 1 Amendments relating to ACC dismissal powers

Part 1 Amendment of the Australian Crime Commission Act 2002

4 Crimes Legislation Amendment Bill 2010 No. , 2010

(2) The CEO may, in accordance with subsection (5), make a

declaration that he or she has the belief referred to in subsection (1)

in relation to the staff member.

Effect of declaration on Fair Work Act

(3) If the CEO makes the declaration for the staff member, the Fair

Work Act 2009 (other than Part 3-1 and Division 9 of Part 3-3 of

that Act) does not apply in relation to:

(a) the termination of the staff member's employment; or

(b) the making of the declaration.

Note 1:

This means, for example, that the provisions of the Fair Work Act

2009 dealing with unfair dismissal, and notice of termination or

payment in lieu, do not apply in relation to the staff member.

Note 2:

Part 3-1 of the Fair Work Act 2009 deals with general protections, and

Division 9 of Part 3-3 of that Act deals with payments relating to

periods of industrial action.

(4) To avoid doubt, subsection (3) applies despite section 8 of the

Public Service Act 1999.

Procedural requirements

(5) The declaration must be:

(a) in writing; and

(b) made within 24 hours of the CEO's decision to terminate the

staff member's employment.

(6) The CEO must give the staff member a copy of the declaration.

CEO to give report after making declaration

(7) The CEO must give the Minister and the Board a written report

containing the following, as soon as practicable after making the

declaration:

(a) the grounds for the CEO's belief referred to in subsection (1)

in relation to the staff member;

(b) the nature and findings of any investigation of, or inquiry

into, the staff member's conduct or behaviour;

Amendments relating to ACC dismissal powers Schedule 1

Amendment of the Australian Crime Commission Act 2002 Part 1

Crimes Legislation Amendment Bill 2010 No. , 2010 5

Meaning of serious misconduct

(8) In this section:

serious misconduct, by a member of the staff referred to in

subsection 47(1), means:

(a) corruption, a serious abuse of power, or a serious dereliction

of duty, by the staff member; or

(b) any other seriously reprehensible act or behaviour by the staff

member, whether or not acting, or purporting to act, in the

course of his or her duties as such a staff member.

3 Application of item 2

Section 47A of the Australian Crime Commission Act 2002 (as inserted

by item 2 of this Schedule) applies in relation to a decision to terminate

the employment of a member of the staff referred to in subsection 47(1)

of that Act, where that decision is made after the commencement of this

item.

4 At the end of section 59A

Add "(other than a power or function under section 47A)".

Schedule 1 Amendments relating to ACC dismissal powers

Part 2 Amendment of the Telecommunications (Interception and Access) Act 1979

6 Crimes Legislation Amendment Bill 2010 No. , 2010

Part 2--Amendment of the Telecommunications

(Interception and Access) Act 1979

Telecommunications (Interception and Access) Act 1979

5 Subsection 5(1) (at the end of paragraph (aa) of the

definition of permitted purpose)

Add:

(iii) an investigation of, or an inquiry into, alleged

misbehaviour, or alleged improper conduct, of a

member of the staff referred to in subsection 47(1) of

the Australian Crime Commission Act 2002; or

(iv) a report on such an investigation or inquiry; or

(v) the making by a person of a decision, following such an

investigation or inquiry, in relation to the employment

of such a staff member (including a decision to

terminate the staff member's employment); or

(vi) a review (whether by way of appeal or otherwise) of

such a decision; or

6 After paragraph 68(c)

Insert:

(ca)

if:

(i) the information relates, or appears to relate, to an act or

omission by a member of the staff of the ACC that may

give rise to a decision by the Chief Executive Officer of

the ACC to terminate the employment of the staff

member; and

(ii) the originating agency is not the ACC;

to the Chief Executive Officer of the ACC; and

7 Application

The Telecommunications (Interception and Access) Act 1979, as

amended by this Part, applies in relation to the communication, use and

making of a record of information, and the giving of information in

evidence in proceedings, on or after the commencement of this item,

whether the information was obtained before or after that

commencement.

Amendments relating to ACC dismissal powers Schedule 1

Review of amendments Part 3

Crimes Legislation Amendment Bill 2010 No. , 2010 7

Part 3--Review of amendments

8 Review of operation of amendments relating to serious

misconduct by staff member

(1)

The Minister must cause an independent review to be undertaken of the

operation of section 47A of the Australian Crime Commission Act 2002,

as inserted by this Schedule, and the amendments made by Part 2 of this

Schedule.

(2)

The review must be undertaken as soon as practicable after the end of

the period of 2 years after the commencement of this Schedule.

Schedule 2 Amendments relating to appointment of ACC examiners

8 Crimes Legislation Amendment Bill 2010 No. , 2010

Schedule 2--Amendments relating to

appointment of ACC examiners

Australian Crime Commission Act 2002

1 Subsection 46A(3)

Omit "a special", substitute "an".

2 Savings provision for item 1

To avoid doubt, the amendment made by item 1 does not affect an

arrangement made under subsection 46A(3) of the Australian Crime

Commission Act 2002 before the commencement of this item.

3 At the end of section 46A

Add:

(4) The CEO must, as soon as practicable after 30 June and

31 December each year, notify the Minister in writing of:

(a) each arrangement that the CEO has made with an examiner

under subsection (3) during the previous 6 months; and

(b) the nature of the ACC operation/investigation to which the

arrangement relates.

4 Transitional provision for item 3

Despite subsection 46A(4) of the Australian Crime Commission Act

2002 (as inserted by item 3 of this Schedule), the first notification under

that subsection must relate to arrangements made during the period:

(a) starting at the commencement of this item; and

(b) ending at the end of the first 30 June or 31 December (as the

case requires) after that time.

5 Subsection 46B(4) (third sentence)

Repeal the sentence.

6 Application of item 5

Amendments relating to appointment of ACC examiners Schedule 2

Crimes Legislation Amendment Bill 2010 No. , 2010 9

The amendment made by item 5 of this Schedule applies to the

appointment of an examiner after the commencement of this item,

whether or not the person has previously been appointed as an

examiner.

7 At the end of subsection 46B(4)

Add:

Note:

An examiner is eligible for re-appointment: see subsection 33(4A) of

the Acts Interpretation Act 1901.

8 Subsection 46B(5)

Repeal the subsection, substitute:

Basis of appointment

(5) An examiner may be appointed on a full-time basis or on a

part-time basis.

9 Subsection 46D(1)

Omit "An examiner", substitute "A full-time examiner".

Note:

The following heading to subsection 46D(1) is inserted "Full-time examiners".

10 Subsection 46D(2)

Omit "an examiner", substitute "a full-time examiner".

11 At the end of section 46D

Add:

Part-time examiners

(3) The CEO may grant a part-time examiner leave of absence on the

terms and conditions that the CEO determines in writing.

12 Section 46G

Omit "An examiner", substitute "(1) A full-time examiner".

Note:

The following heading to subsection 46G(1) is inserted "Full-time examiners".

13 At the end of section 46G

Add:

Schedule 2 Amendments relating to appointment of ACC examiners

10 Crimes Legislation Amendment Bill 2010 No. , 2010

Part-time examiners

(2) A part-time examiner must not engage in any paid employment

that, in the CEO's opinion, conflicts or may conflict with the

proper performance of his or her duties.

(3) The CEO may, by written notice given to a part-time examiner,

require the examiner to give the CEO the details specified in the

notice, about the examiner's employment, by the time specified in

the notice. The examiner must comply with the requirement.

14 Paragraph 46H(2)(b)

After "the examiner", insert "(being a full-time examiner)".

15 Paragraph 46H(2)(d)

After "the examiner", insert "(being a full-time examiner)".

16 Paragraph 46H(2)(d)

Omit "office.", substitute "office (see subsection 46G(1)); or".

17 At the end of subsection 46H(2)

Add:

(e) the examiner (being a part-time examiner):

(i) engages in paid employment that, in the CEO's opinion,

conflicts or may conflict with the proper performance of

his or her duties (see subsection 46G(2)); or

(ii) does not comply with a requirement under subsection

46G(3) (notifying the CEO of employment details).

18 Savings provision for items 5 to 17

To avoid doubt, the amendments made by items 5 to 17 of this Schedule

do not affect the validity of an appointment of an examiner made before

the commencement of this item.

Amendment of the Crimes Act 1914 Schedule 3

Amendments relating to warrants issued in relation to persons Part 1

Crimes Legislation Amendment Bill 2010 No. , 2010 11

Schedule 3--Amendment of the Crimes Act

1914

Part 1--Amendments relating to warrants issued in

relation to persons

Crimes Act 1914

1 Subsection 3K(1)

Omit "or constable assisting", substitute "of a warrant in relation to

premises, or constable assisting,".

Note:

The following heading to subsection 3K(1) is inserted "Equipment may be brought to

warrant premises".

2 Subsection 3K(2)

Omit "the premises" (first occurring), substitute "warrant premises, or a

thing found during a search under a warrant that is in force in relation to

a person,".

Note:

The following heading to subsection 3K(2) is inserted "Thing may be moved for

examination or processing".

3 Paragraph 3K(2)(b)

Before "the occupier", insert "for a thing found at warrant premises--".

4 At the end of subsection 3K(2)

Add:

; or (c) for a thing found during a search under a warrant that is in

force in relation to a person--the person consents in writing.

5 Paragraph 3K(3)(a)

Omit "the occupier", substitute "the person referred to in

paragraph (2)(b) or (c) (as the case requires)".

Note 1: The following heading to subsection 3K(3) is inserted "Notification of examination or

processing and right to be present".

Note 2: The following heading to subsection 3K(3A) is inserted "Time limit on moving a thing".

6 Paragraph 3K(3)(b)

Omit "the occupier", substitute "that person".

Schedule 3 Amendment of the Crimes Act 1914

Part 1 Amendments relating to warrants issued in relation to persons

12 Crimes Legislation Amendment Bill 2010 No. , 2010

7 Subsection 3K(3C)

Omit "the occupier of the premises", substitute "the person referred to

in paragraph (2)(b) or (c) (as the case requires)".

8 Subsection 3K(3C)

Omit "the occupier" (second occurring), substitute "that person".

9 Subsection 3K(4)

Omit "or a constable assisting", substitute "of a warrant in relation to

premises, or a constable assisting,".

Note:

The following heading to subsection 3K(4) is inserted "Equipment at warrant premises

may be operated".

10 Subsection 3L(1)

Omit "or a constable assisting", substitute "of a warrant in relation to

premises, or a constable assisting,".

11 Subsection 3LAA(1)

Omit "found at the warrant premises".

12 Paragraph 3LAA(5)(b)

Omit "by the occupier of the equipment", substitute "of the equipment,

by the person referred to in paragraph 3K(2)(a) or (b) (as the case

requires),".

13 Subparagraph 3LA(1)(a)(ii)

Repeal the subparagraph, substitute:

(ii) has been moved under subsection 3K(2) and is at a

place for examination or processing; or

14 Subparagraph 3LA(1)(a)(iii)

Omit "and is no longer on the warrant premises".

15 Subsection 3LA(3) (note)

Repeal the second sentence.

16 Paragraph 3LB(1)(a)

Repeal the paragraph, substitute:

Amendment of the Crimes Act 1914 Schedule 3

Amendments relating to warrants issued in relation to persons Part 1

Crimes Legislation Amendment Bill 2010 No. , 2010 13

(a) data is accessed, in relation to a warrant, under subsection

3L(1) or 3LAA(1); and

(aa)

either:

(i) if the warrant is in relation to premises--the data is held

on premises other than the warrant premises; or

(ii) if the warrant is in relation to a person--the data is held

on any premises; and

Note:

The heading to section 3LB is altered by omitting "other" and substituting "certain".

17 Paragraph 3LB(1)(b)

Omit "the other premises", substitute "the premises on which the data is

held".

18 Subsection 3LB(2)

Omit "the other premises", substitute "the premises on which the data is

held".

19 Subsection 3M(4)

Repeal the subsection, substitute:

(4) In determining the amount of compensation payable, regard is to

be had to whether any of the following persons, if they were

available at the time, provided any appropriate warning or

guidance on the operation of the equipment:

(a) if the equipment was operated under a warrant issued in

relation to premises--the occupier of the premises, or the

occupier's employees or agents;

(b) if the equipment was operated under a warrant issued in

relation to a person--that person, or that person's agents.

20 Subsection 3ZQV(1)

Omit "from warrant premises".

21 Subsection 3ZQV(5) (note)

Omit "removed under that section from warrant premises", substitute

"moved under that section".

22 Subsection 3ZQW(4)

Repeal the subsection, substitute:

Schedule 3 Amendment of the Crimes Act 1914

Part 1 Amendments relating to warrants issued in relation to persons

14 Crimes Legislation Amendment Bill 2010 No. , 2010

(4) In determining the amount of compensation payable, regard is to

be had to whether any appropriate warning or guidance was

provided, before the equipment was operated, on the operation of

the equipment.

23 Application of this Part

(1)

The amendments made by this Part, other than items 14 and 22, apply in

relation to any warrant issued in relation to a person after this Part

commences.

(2)

The amendment made by item 14 of this Schedule applies in relation to

any thing seized under Division 2 of Part IAA of the Crimes Act 1914,

whether before or after this Part commences.

(3)

The amendment made by item 22 of this Schedule applies in relation to

applications instituting proceedings in a court of competent jurisdiction

that are made after this Part commences.

Amendment of the Crimes Act 1914 Schedule 3

Amendments relating to retention etc. of things seized and documents produced Part 2

Crimes Legislation Amendment Bill 2010 No. , 2010 15

Part 2--Amendments relating to retention etc. of

things seized and documents produced

Crimes Act 1914

24 Subsection 3(1)

Insert:

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

Criminal Code.

25 Subsection 3C(1) (definition of magistrate)

Omit "3ZQZ", substitute "3ZQZB".

26 Section 3CA

Omit "3ZQZ" (wherever occurring), substitute "3ZQZB".

27 Section 3UA (definition of terrorist act)

Repeal the definition.

28 Subsection 3ZQM(7) (definition of terrorist act)

Repeal the definition.

29 Subdivision B of Division 4C of Part IAA (heading)

Repeal the heading, substitute:

Subdivision B--Returning things seized and documents

produced

30 Before paragraph 3ZQX(2)(a)

Insert:

(aa)

either:

(i) the thing may be retained because of an order under

subsection 3ZQZB(3), or any other order under that

subsection has been made in relation to the thing; or

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

application has not been determined; or

31 At the end of section 3ZQX

Schedule 3 Amendment of the Crimes Act 1914

Part 2 Amendments relating to retention etc. of things seized and documents produced

16 Crimes Legislation Amendment Bill 2010 No. , 2010

Add:

When documents produced under Division 4B must be returned

(3) If the Commissioner is satisfied that a document produced under

Division 4B is not required (or is no longer required) for a purpose

mentioned in section 3ZQU or for other judicial or administrative

review proceedings, the Commissioner must take reasonable steps

to return the document to the person who produced the document

or to the owner if that person is not entitled to possess it.

(4) However, the Commissioner does not have to take those steps if:

(a)

either:

(i) the document may be retained because of an order under

subsection 3ZQZB(3), or any other order under that

subsection has been made in relation to the document;

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

application has not been determined; or

(b) the document 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

or is the subject of a dispute as to ownership.

Note 1: The heading to section 3ZQX is replaced by the heading "When things seized or

documents produced under Division 2, 4 or 4B must be returned".

Note 2: The following heading to subsection 3ZQX(1) is inserted "When things seized under

Division 2 or 4 must be returned".

32 Subdivision C of Division 4C of Part IAA (heading)

Repeal the heading.

33 Paragraph 3ZQY(2)(b)

Repeal the paragraph, substitute:

(b)

either:

(i) the thing may be retained because of an order under

subsection 3ZQZB(2) or (3), or any other order under

subsection 3ZQZB(3) has been made in relation to the

thing; or

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

application has not been determined; or

Amendment of the Crimes Act 1914 Schedule 3

Amendments relating to retention etc. of things seized and documents produced Part 2

Crimes Legislation Amendment Bill 2010 No. , 2010 17

34 Section 3ZQZ

Repeal the section.

35 Subdivision D of Division 4C of Part IAA (heading)

Repeal the heading.

36 At the end of subsection 3ZQZA(2)

Add:

; or (c) either:

(i) the thing may be retained because of an order under

subsection 3ZQZB(2) or (3), or any other order under

subsection 3ZQZB(3) has been made in relation to the

thing; or

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

application has not been determined; or

(d) the thing may otherwise be retained, destroyed or disposed of

under a law, or order of a court or tribunal, of the

Commonwealth or of a State or a Territory; or

(e) the thing is forfeited or forfeitable to the Commonwealth or

is the subject of a dispute as to ownership.

Note:

The heading to section 3ZQZA is replaced by the heading "When things seized under

Division 3A must be returned".

37 Subsection 3ZQZA(3)

Omit "If", substitute "Despite subsection (2), if".

38 Subsection 3ZQZA(4)

Repeal the subsection.

39 Section 3ZQZB

Repeal the section, substitute:

3ZQZB Magistrate may permit a thing seized or document

produced under this Part to be retained, forfeited etc.

(1) A magistrate may, on application by the Commissioner, make an

order under subsection (2) or (3) in relation to a thing seized or a

document produced under this Part.

Schedule 3 Amendment of the Crimes Act 1914

Part 2 Amendments relating to retention etc. of things seized and documents produced

18 Crimes Legislation Amendment Bill 2010 No. , 2010

Use for purpose mentioned in section 3ZQU or for other judicial

or administrative review proceedings

(2) The magistrate may order that a thing seized under Division 3 or

3A be retained for the period specified in the order if the magistrate

is satisfied that the thing is being used, or is required to be used, for

a purpose mentioned in section 3ZQU or for other judicial or

administrative review proceedings.

Preventing use in committing terrorist act, terrorism offence or

serious offence

(3) The magistrate may make any of the orders referred to in

subsection (4) if the magistrate is satisfied that there are reasonable

grounds to suspect that, if a thing seized or document produced

under this Part is returned to any of the following persons, it 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 thing or document;

(b) in the case of a thing--the person from whom the thing was

seized;

document.

(4) The orders are as follows:

(a) an order that the thing or document may be retained for the

period specified in the order;

(b) an order that the thing or document is forfeited to the

Commonwealth;

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

the thing; or

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

(d) an order that the thing or document is to be destroyed or

otherwise disposed of.

Thing or document must be returned if magistrate not satisfied

(5) The magistrate must order that a thing or document be returned to

the following person if the magistrate is not satisfied as mentioned

in subsection (2) or (3):

Amendment of the Crimes Act 1914 Schedule 3

Amendments relating to retention etc. of things seized and documents produced Part 2

Crimes Legislation Amendment Bill 2010 No. , 2010 19

(a) in the case of a thing--the person from whom the thing was

seized;

(b) in the case of a document--the person who produced the

document;

to possess the thing or document--the owner of the thing or

document.

Persons with an interest in thing or document

(6) Before making an application under this section in relation to a

thing or document, the Commissioner must:

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

thing or document; and

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

Commissioner believes to have such an interest of the

proposed application.

(7) The magistrate must allow a person who has an interest in the thing

or document to appear and be heard in determining the application.

Special rule for things seized under Division 3

(8) The Commissioner may only make an application under this

section in relation to a thing seized under Division 3 if the

application is made:

(a) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order in

relation to the thing under this section.

40 Application of items 30 to 39

The amendments made by items 30 to 39 of this Schedule apply to a

thing seized or a document produced under Part IAA of the Crimes Act

1914, whether before or after this Part commences.

41 Section 3ZW

Before "The Commissioner", insert "(1)".

42 At the end of section 3ZW

Add:

Schedule 3 Amendment of the Crimes Act 1914

Part 2 Amendments relating to retention etc. of things seized and documents produced

20 Crimes Legislation Amendment Bill 2010 No. , 2010

(2) The Commissioner may delegate to a Commonwealth officer any

or all of the Commissioner's powers, functions or duties under

Division 4C of this Part if the Commissioner is satisfied on

reasonable grounds that the officer is able to properly exercise

those powers, functions or duties.

Amendment of the Crimes Act 1914 Schedule 3

Amendment relating to fingerprints and photographs Part 3

Crimes Legislation Amendment Bill 2010 No. , 2010 21

Part 3--Amendment relating to fingerprints and

photographs

Crimes Act 1914

43 After paragraph 3ZJ(3)(b)

Insert:

(ba) both of the following apply:

(i) the identification material taken, or caused to be taken,

is fingerprints or photographs (including video

recordings) of the person;

(ii) the offence is punishable by imprisonment for a period

of 12 months or more; or

44 Application of this Part

The amendment made by this Part applies to any person who, after this

Part commences, is taken into lawful custody in respect of an offence

that is punishable by imprisonment for a period of 12 months or more.

Schedule 4 Amendments relating to special payments to AFP appointees

22 Crimes Legislation Amendment Bill 2010 No. , 2010

Schedule 4--Amendments relating to special

payments to AFP appointees

Australian Federal Police Act 1979

1 At the end of subsection 20(2A)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to Deputy Commissioners.

2 At the end of subsection 27(1)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to AFP employees.

3 At the end of subsection 35(2)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to consultants and independent contractors who are

determined to be AFP appointees.

4 After Division 3 of Part III

Insert:

Division 3A--Payments in special circumstances

35A Payments in special circumstances

(1) The Commissioner may authorise the making of payments to a

person (the payee) under subsection (2) if the Commissioner

considers it appropriate to do so because of special circumstances

that relate to, or arise out of:

(a) the payee's engagement as an AFP appointee; or

(b) another person's engagement as an AFP appointee.

(2) The Commissioner may authorise the making of any of the

following payments:

Amendments relating to special payments to AFP appointees Schedule 4

Crimes Legislation Amendment Bill 2010 No. , 2010 23

(a) one or more payments of an amount or amounts specified in

the authorisation (or worked out in accordance with the

authorisation);

(b) periodical payments of an amount specified in the

authorisation (or worked out in accordance with the

authorisation), during a period specified in the authorisation

(or worked out in accordance with the authorisation).

(3) Payments may be authorised under this section even though the

payments would not otherwise be authorised by law or required to

meet a legal liability.

(4) An authorisation cannot be made under this section if it would

involve, or be likely to involve, a total amount of more than

$100,000.

(5) Conditions may be attached to payments under this section. If a

condition is breached, the payment may be recovered by the

Commonwealth as a debt in a court of competent jurisdiction.

Note:

Payments under this section must be made from money appropriated

by the Parliament. Generally, a payment can be debited against the

Australian Federal Police's annual appropriation, providing that it

relates to some matter that has arisen in the course of its

administration.

5 At the end of subsection 40E(1)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to special members.

6 At the end of section 40EC

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to special protective service officers.

7 At the end of subsection 69A(2)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to persons engaged under this section.

8 Section 69C

Before "The Commissioner", insert "(1)".

Schedule 4 Amendments relating to special payments to AFP appointees

24 Crimes Legislation Amendment Bill 2010 No. , 2010

9 Section 69C

After "this Act", insert "(other than the Commissioner's power under

section 35A (payments in special circumstances))".

10 At the end of section 69C

Add:

(2) The Commissioner may, in writing, delegate to a senior executive

AFP employee the Commissioner's power under section 35A

(payments in special circumstances).

11 At the end of subsection 69D(2)

Add:

Note:

The Commissioner may, under section 35A, authorise special

payments to a person performing functions under an agreement.

12 Application of item 4

The amendment made by item 4 of this Schedule applies in relation to

any special circumstances, whether occurring before or after this

Schedule commences.

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT BILL 2010