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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment (Powers,
Offences and Other Measures) Bill 2017
No. , 2017
(Justice)
A Bill for an Act to amend legislation relating to the
criminal law and law enforcement, and for related
purposes
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendment of the Australian Federal Police Act
1979
3
Australian Federal Police Act 1979
3
Schedule 2--Obligations of investigating officials
4
Crimes Act 1914
4
Schedule 3--Controlled operation disclosure offence
7
Crimes Act 1914
7
Schedule 4--Increasing maximum penalties for general
dishonesty offences
11
Criminal Code Act 1995
11
Schedule 5--Removing obsolete reference to death penalty
12
Crimes Act 1914
12
Schedule 6--Protecting vulnerable persons
13
Crimes Act 1914
13
Schedule 7--Personal information that may be relevant for
integrity purposes
14
Crimes Act 1914
14
Schedule 8--Exemptions to spent convictions scheme
19
Crimes Act 1914
19
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
1
A Bill for an Act to amend legislation relating to the
1
criminal law and law enforcement, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Crimes Legislation Amendment (Powers, Offences
6
and Other Measures) Act 2017.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendment of the Australian Federal Police Act 1979 Schedule 1
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
3
Schedule 1--Amendment of the Australian
1
Federal Police Act 1979
2
3
Australian Federal Police Act 1979
4
1 Subsection 4(1)
5
Insert:
6
international organisation includes:
7
(a) a public international organisation within the meaning of
8
section 70.1 of the Criminal Code; and
9
(b) a body (including an international judicial body):
10
(i) established by or under an international agreement or
11
international arrangement or otherwise under
12
international law; or
13
(ii) established by a body described in subparagraph (i); or
14
(iii) on which functions are conferred by or under an
15
international agreement.
16
2 After paragraph 8(1)(bg)
17
Insert:
18
(bh) to assist or cooperate with:
19
(i) an international organisation; or
20
(ii) a non-governmental organisation, in relation to acts,
21
omissions, matters or things outside Australia;
22
in relation to the provision of police services or police
23
support services; and
24
Schedule 2 Obligations of investigating officials
4
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
Schedule 2--Obligations of investigating
1
officials
2
3
Crimes Act 1914
4
1 Subsection 23B(1) (definition of Aboriginal legal aid
5
organisation)
6
Repeal the definition.
7
2 Subsection 23B(1)
8
Insert:
9
Aboriginal legal assistance organisation means an organisation that is
10
funded by the Commonwealth, a State or a Territory to provide legal
11
assistance to Aboriginal persons and Torres Strait Islanders.
12
3 Subsection 23H(1)
13
After "must", insert ", before starting to question the person".
14
4 Paragraphs 23H(1)(a) and (b)
15
Repeal the paragraphs, substitute:
16
(a) inform the person that reasonable steps will be taken to notify
17
a representative of an Aboriginal legal assistance
18
organisation in the State or Territory in which the person is
19
located that the person is under arrest or a protected suspect
20
(as the case requires); and
21
(b) take reasonable steps to notify such a representative.
22
5 After subsection 23H(1)
23
Add:
24
(1A) To avoid doubt, the obligations imposed by subsection (1) do not
25
limit and are not limited by any other obligations imposed, or
26
rights conferred, by this section.
27
(1AB) If a representative of an Aboriginal legal assistance organisation is
28
notified under subsection (1), the investigating official must not
29
question the person until the earlier of the following times:
30
Obligations of investigating officials Schedule 2
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
5
(a) the representative has communicated with the person;
1
(b) 2 hours have elapsed since the representative was notified.
2
6 Subsection 23H(2B)
3
Repeal the subsection, substitute:
4
(2B) If an interview friend is not chosen under subsection (2A), the
5
investigating official must choose a representative of an Aboriginal
6
legal assistance organisation in the State or Territory in which the
7
person is located to be the person's interview friend.
8
7 Subsection 23H(9) (paragraph (c) of the definition of
9
interview friend)
10
Repeal the paragraph, substitute:
11
(c) a representative of an Aboriginal legal assistance
12
organisation in the State or Territory in which the person is
13
located.
14
8 Subsection 23H(9) (paragraph (d) of the definition of
15
interview friend)
16
Repeal the paragraph.
17
9 Section 23J
18
Repeal the section.
19
10 Subsection 23K(3) (paragraph (c) of the definition of
20
interview friend)
21
Omit "whose name is included in the relevant list maintained under
22
subsection 23J(1)", substitute "who is a representative of an Aboriginal
23
legal assistance organisation in the State or Territory in which the
24
person is located".
25
11 Subsection 23WA(1) (definition of Aboriginal legal aid
26
organisation)
27
Repeal the definition.
28
12 Subsection 23WA(1)
29
Insert:
30
Schedule 2 Obligations of investigating officials
6
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
Aboriginal legal assistance organisation has the same meaning as in
1
Part IC.
2
13 Paragraph 23WB(2)(c)
3
Omit "Aboriginal legal aid organisation or a person whose name is on
4
the relevant list maintained under subsection 23J(1)", substitute
5
"Aboriginal legal assistance organisation in the State or Territory in
6
which the person is located".
7
14 Paragraph 23WB(3)(c)
8
Omit "Aboriginal legal aid organisation, or a person whose name is
9
included in the relevant list maintained under subsection 23J(1)",
10
substitute "Aboriginal legal assistance organisation in the State or
11
Territory in which the person is located".
12
15 Paragraphs 23WG(4)(a) and (b)
13
Repeal the paragraphs, substitute:
14
(a) inform the suspect that reasonable steps will be taken to
15
notify a representative of an Aboriginal legal assistance
16
organisation that the suspect is to be asked to consent to a
17
forensic procedure; and
18
(b) take reasonable steps to notify such a representative.
19
Controlled operation disclosure offence Schedule 3
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
7
Schedule 3--Controlled operation disclosure
1
offence
2
3
Crimes Act 1914
4
1 Section 15GC
5
Insert:
6
entrusted person means:
7
(a) a participant in a controlled operation; or
8
(b) any of the following:
9
(i) the Commissioner or an AFP appointee (within the
10
meaning of the Australian Federal Police Act 1979);
11
(ii) a member of the police force of a State or Territory;
12
(iii) a staff member (within the meaning of the Law
13
Enforcement Integrity Commissioner Act 2006) of the
14
Immigration and Border Protection Department;
15
(iv) the Chief Executive Officer of the ACC, a member of
16
the staff of the ACC (within the meaning of the
17
Australian Crime Commission Act 2002) or a person
18
appointed under subsection 46B(1) of that Act;
19
(v) a staff member (within the meaning of the Law
20
Enforcement Integrity Commissioner Act 2006) of the
21
Australian Commission for Law Enforcement Integrity;
22
or
23
(c) an officer or staff member of a government agency, or an
24
integrity agency for a State or Territory, with which the
25
Integrity Commissioner is jointly investigating a corruption
26
issue under subsection 26(2) of the Law Enforcement
27
Integrity Commissioner Act 2006, if a controlled operation
28
relates to the investigation; or
29
(d) an officer (within the meaning of section 35 of the
30
Ombudsman Act 1976); or
31
(e) a person who has entered into a contract, agreement or
32
arrangement with:
33
(i) a law enforcement agency; or
34
Schedule 3 Controlled operation disclosure offence
8
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
(ii) a government agency, or an integrity agency, mentioned
1
in paragraph (c); or
2
(iii) the Commonwealth Ombudsman;
3
(other than as a person mentioned in paragraphs (b) to (d)).
4
2 Subsection 15HK(1)
5
Repeal the subsection, substitute:
6
Disclosures by entrusted persons
7
(1) A person commits an offence if:
8
(a) the person is, or has been, an entrusted person; and
9
(b) information came to the knowledge or into the possession of
10
the person in the person's capacity as an entrusted person;
11
and
12
(c) the person discloses the information; and
13
(d) the information relates to a controlled operation.
14
Note:
Recklessness is the fault element for paragraphs (1)(b) and (d)--see
15
section 5.6 of the Criminal Code.
16
Penalty: Imprisonment for 2 years.
17
(1A) Strict liability applies to paragraph (1)(a).
18
Note:
For strict liability, see section 6.1 of the Criminal Code.
19
(1B) A person commits an offence if:
20
(a) the person is, or has been, an entrusted person; and
21
(b) information came to the knowledge or into the possession of
22
the person in the person's capacity as an entrusted person;
23
and
24
(c) the person discloses the information; and
25
(d) the information relates to a controlled operation; and
26
(e) either or both of the following subparagraphs apply:
27
(i) the person intends to endanger the health or safety of
28
any person or prejudice the effective conduct of a
29
controlled operation;
30
(ii) the disclosure will endanger the health or safety of any
31
person or prejudice the effective conduct of a controlled
32
operation.
33
Controlled operation disclosure offence Schedule 3
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
9
Note:
Recklessness is the fault element for paragraphs (1B)(b) and (d) and
1
subparagraph (1B)(e)(ii)--see section 5.6 of the Criminal Code.
2
Penalty: Imprisonment for 10 years.
3
(1C) Strict liability applies to paragraph (1B)(a).
4
Note:
For strict liability, see section 6.1 of the Criminal Code.
5
Other disclosures
6
(1D) A person commits an offence if:
7
(a) the person discloses information; and
8
(b) the information relates to a controlled operation; and
9
(c) the disclosure will endanger the health or safety of any
10
person or prejudice the effective conduct of a controlled
11
operation.
12
Note:
Recklessness is the fault element for paragraphs (1D)(b) and (c)--see
13
section 5.6 of the Criminal Code.
14
Penalty: Imprisonment for 2 years.
15
(1E) A person commits an offence if:
16
(a) the person discloses information; and
17
(b) the information relates to a controlled operation; and
18
(c) either or both of the following subparagraphs apply:
19
(i) the person intends to endanger the health or safety of
20
any person or prejudice the effective conduct of a
21
controlled operation;
22
(ii) the person knows that the disclosure will endanger the
23
health or safety of any person or prejudice the effective
24
conduct of a controlled operation.
25
Note:
Recklessness is the fault element for paragraph (1E)(b)--see
26
section 5.6 of the Criminal Code.
27
Penalty: Imprisonment for 10 years.
28
3 Subsections 15HK(2), (2A) and (3)
29
Omit "Subsection (1) does", substitute "Subsections (1) to (1E) do".
30
Schedule 3 Controlled operation disclosure offence
10
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
4 At the end of section 15HK
1
Add:
2
Exception--previously published information
3
(4) Subsections (1D) and (1E) do not apply to a person disclosing
4
information if:
5
(a) the information has already been communicated, or made
6
available, to the public (the prior publication); and
7
(b) the person was not involved in the prior publication (whether
8
directly or indirectly); and
9
(c) at the time of the disclosure, the person believes that the
10
disclosure:
11
(i) will not endanger the health or safety of any person; and
12
(ii) will not prejudice the effective conduct of a controlled
13
operation; and
14
(d) having regard to the nature, extent and place of the prior
15
publication, the person has reasonable grounds for that belief.
16
Note:
A defendant bears an evidential burden in relation to the matters in
17
subsection (4)--see subsection 13.3(3) of the Criminal Code.
18
5 Section 15HL
19
Repeal the section.
20
6 Subsections 15HV(2), (3) and (4)
21
Omit "or 15HL".
22
Increasing maximum penalties for general dishonesty offences Schedule 4
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
11
Schedule 4--Increasing maximum penalties
1
for general dishonesty offences
2
3
Criminal Code Act 1995
4
1 Subsections 135.1(1), (3), (5) and (7) of the Criminal Code
5
(penalty)
6
Omit "5 years", substitute "10 years".
7
2 Application of amendments
8
The amendments made by this Schedule apply in relation to conduct
9
engaged in on or after the commencement of this Schedule.
10
Schedule 5 Removing obsolete reference to death penalty
12
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
Schedule 5--Removing obsolete reference to
1
death penalty
2
3
Crimes Act 1914
4
1 Subsection 20C(1)
5
Omit "(1)".
6
2 Subsection 20C(2)
7
Repeal the subsection.
8
3 Paragraph 23WA(8)(e)
9
Omit "subsection 20C(1)", substitute "section 20C".
10
Protecting vulnerable persons Schedule 6
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
13
Schedule 6--Protecting vulnerable persons
1
2
Crimes Act 1914
3
1 Subsection 15YR(6)
4
Repeal the subsection, substitute:
5
(6) An application for leave under this section must be in writing.
6
(7) A person who makes an application for leave under this section
7
must take reasonable steps to give written notice of the application
8
to each of the following:
9
(a) the prosecutor in the proceeding;
10
(b) each defendant in the proceeding;
11
(c) each other party to the proceeding to whom subsection (1A)
12
applies.
13
(8) If a party referred to in paragraph (7)(c) is a child at the time the
14
application is made, the notice must be given to a parent, guardian
15
or legal representative of the party.
16
(9) A notice under subsection (7) must:
17
(a) be given no later than 3 business days before the day the
18
application is to be heard; and
19
(b) be accompanied by a copy of the application.
20
(10) An application for leave under this section must not be determined
21
unless the court:
22
(a) is satisfied the applicant has taken reasonable steps to give
23
notice of the application in accordance with subsections (7),
24
(8) and (9); and
25
(b) has considered such submissions and other evidence as it
26
thinks necessary for determining the application.
27
2 Application of amendment
28
The amendment of section 15YR of the Crimes Act 1914 made by this
29
Schedule applies in relation to applications made on or after the
30
commencement of this Schedule.
31
Schedule 7 Personal information that may be relevant for integrity purposes
14
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
Schedule 7--Personal information that may be
1
relevant for integrity purposes
2
3
Crimes Act 1914
4
1 Subsection 3(1)
5
Insert:
6
Commonwealth entity has the meaning given by section 10 of the
7
Public Governance, Performance and Accountability Act 2013.
8
integrity purpose means the purpose of preventing, detecting,
9
investigating or dealing with any of the following:
10
(a) misconduct (within the meaning of the Privacy Act 1988) of
11
a serious nature by any of the following:
12
(i) an official (as defined in section 13 of the Public
13
Governance, Performance and Accountability Act 2013)
14
of a Commonwealth entity;
15
(ii) a person employed by, or in the service of, a Privacy
16
Act agency or a wholly-owned Commonwealth
17
company;
18
(iii) a person acting on behalf of, or for the purposes of
19
activities of, a Privacy Act agency;
20
(iv) an officer of a wholly-owned Commonwealth company;
21
(b) conduct that may have the purpose or effect of inducing
22
misconduct described in paragraph (a);
23
(c) fraud that has or may have a substantial adverse effect on the
24
Commonwealth or a target entity;
25
(d) an offence against Chapter 7 of the Criminal Code (which is
26
about the proper administration of Government).
27
Note 1:
An example of dealing with the matters described in paragraphs (a),
28
(b), (c) and (d) is taking legal proceedings, disciplinary proceedings or
29
other administrative action.
30
Note 2:
An integrity purpose relating to misconduct of a person covered by a
31
subparagraph of paragraph (a) does not cease to exist merely because
32
the person ceases to be covered by that subparagraph after the
33
misconduct occurs.
34
Personal information that may be relevant for integrity purposes Schedule 7
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
15
personal information has the meaning given by section 6 of the
1
Privacy Act 1988.
2
Privacy Act agency has the same meaning as agency has in the
3
Privacy Act 1988.
4
sensitive information has the meaning given by section 6 of the
5
Privacy Act 1988.
6
substantial adverse effect means an effect that is adverse and not
7
insubstantial, insignificant or trivial.
8
target entity means:
9
(a) a Privacy Act agency; or
10
(b) a wholly-owned Commonwealth company.
11
Note:
A target entity is an APP entity as defined in section 6 of the Privacy
12
Act 1988, because it is either an agency or an organisation for the
13
purposes of that Act (as a wholly-owned Commonwealth company is
14
an organisation as defined in section 6C of that Act).
15
wholly-owned Commonwealth company has the meaning given by
16
section 90 of the Public Governance, Performance and
17
Accountability Act 2013.
18
2 Subsection 15YV(3)
19
Repeal the subsection.
20
3 After Part VIIC
21
Insert:
22
Part VIID--Collecting, using and disclosing
23
personal information that may be relevant
24
for integrity purposes
25
26
86B Simplified outline of this Part
27
This Part authorises collection, use and disclosure of personal
28
information for preventing, detecting, investigating or dealing
29
with:
30
Schedule 7 Personal information that may be relevant for integrity purposes
16
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
(a)
serious misconduct by persons working for
1
Commonwealth bodies; or
2
(b)
fraud affecting Commonwealth bodies; or
3
(c)
offences against Chapter 7 of the Criminal Code (which
4
is about the proper administration of Government).
5
The authorisation is relevant to laws (such as privacy laws) that
6
limit the collection, use and disclosure of personal information
7
unless authorised by law.
8
86C Target entity may collect sensitive information for integrity
9
purpose
10
A target entity may collect for an integrity purpose sensitive
11
information that:
12
(a) if the target entity is a Privacy Act agency--is reasonably
13
necessary for, or directly related to, one or more of the
14
entity's functions or activities; or
15
(b) if the target entity is a wholly-owned Commonwealth
16
company--is reasonably necessary for one or more of the
17
entity's functions or activities.
18
Note:
Subclause 3.3 of Australian Privacy Principle 3 limits the
19
circumstances in which an APP entity may collect sensitive
20
information. This section lets a target entity collect sensitive
21
information for an integrity purpose in circumstances corresponding to
22
those in which it may collect other personal information (see
23
subclauses 3.1 and 3.2 of that Principle).
24
86D Target entity may use personal information for integrity
25
purpose
26
A target entity may use personal information for an integrity
27
purpose relating to the entity.
28
86E Disclosure of personal information to target entity for integrity
29
purpose
30
(1) This section applies if a law of the Commonwealth or of a State or
31
Territory:
32
Personal information that may be relevant for integrity purposes Schedule 7
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
17
(a) limits disclosure of some or all personal information by a
1
person, body or authority (however described); and
2
(b) exempts from the limitation a disclosure authorised by a law
3
of the Commonwealth.
4
Note:
Australian Privacy Principle 6 is an example of such a law of the
5
Commonwealth. The Principle prohibits an APP entity from
6
disclosing personal information for a purpose other than the one for
7
which the entity collected the information, unless the disclosure is
8
authorised under an Australian law or certain other exceptions apply.
9
(2) For the purposes of the exemption, the person, body or authority
10
may disclose to a target entity for an integrity purpose personal
11
information that the person, body or authority reasonably believes
12
is related to one or more of the target entity's functions or
13
activities.
14
Limit on subsection (2) for disclosures by target entity
15
(3) Subsection (2) applies to a disclosure by a target entity other than
16
the Australian Federal Police only if it is made for the target entity
17
by a person who is authorised to make disclosures for integrity
18
purposes by:
19
(a) the accountable authority (within the meaning of the Public
20
Governance, Performance and Accountability Act 2013) of
21
the entity, if it is a Commonwealth entity; or
22
(b) the entity or its principal executive (within the meaning of
23
the Privacy Act 1988), if it is a Privacy Act agency other than
24
a Commonwealth entity; or
25
(c) a director of the entity, if it is a wholly-owned
26
Commonwealth company.
27
86F This Part does not limit other laws
28
To avoid doubt, this Part does not impliedly limit other laws
29
(whether written or unwritten) that authorise collection, use or
30
disclosure of personal information.
31
86G Guidelines on the operation of this Part
32
(1) The Secretary of the Department may publish guidelines approved
33
by the Information Commissioner on the operation of this Part.
34
Schedule 7 Personal information that may be relevant for integrity purposes
18
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
No. , 2017
(2) Guidelines under subsection (1) are not a legislative instrument.
1
4 Application
2
(1)
Section 86C of the Crimes Act 1914 applies to the collection of
3
sensitive information on and after the commencement of that section.
4
(2)
Section 86D of the Crimes Act 1914 applies to the use of personal
5
information by a target entity on or after the commencement of that
6
section, whether the entity collected the information before, on or after
7
that commencement.
8
(3)
Section 86E of the Crimes Act 1914 applies to the disclosure of personal
9
information on or after the commencement of that section, whether the
10
person, body or authority making the disclosure collected the
11
information before, on or after that commencement.
12
Exemptions to spent convictions scheme Schedule 8
No. , 2017
Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2017
19
Schedule 8--Exemptions to spent convictions
1
scheme
2
3
Crimes Act 1914
4
1 Section 85ZL (after paragraph (bb) of the definition of law
5
enforcement agency)
6
Insert:
7
(bc) the Law Enforcement Conduct Commission of New South
8
Wales, or a similar body established under a law of another
9
State; or
10