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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
National Crime
Authority Legislation Amendment Bill
2000
No. ,
2000
(Justice and
Customs)
A Bill for an Act to amend the
National Crime Authority Act 1984 and the Ombudsman Act 1976, and
for related purposes
ISBN: 0642 464278
Contents
Part 1—Amendments relating to reasonable excuse,
self-incrimination and increases in
penalties 3
Part 2—Relevant criminal
activity 8
Part 3—Terms of
appointment 9
Part 4—Definitions 10
Part 5—Police power to
interview 11
Part 6—People who may apply for, or issue, search
warrants 12
Part 7—Non-disclosure of information about summons, notices
etc. 16
Part 8—Delegation of chairperson’s
powers 18
Part 9—Hearings 19
Part 10—Disclosure of information by legal
practitioners 20
Part 11—Use of reasonable force to execute
warrants 21
Part 12—Access to information by the Parliamentary Joint
Committee on the National Crime
Authority 22
Part 13—Dissemination of information
overseas 24
Part 14—Application of the Criminal
Code 25
Part 15—Contempt 26
Part 16—Amendments relating to the operation of the Ombudsman
Act 1976 29
Part 17—Hearing
officers 30
Part 18—Non-APS
employees 41
A Bill for an Act to amend the National Crime
Authority Act 1984 and the Ombudsman Act 1976, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the National Crime Authority Legislation
Amendment Act 2000.
(1) This section and section 1 commence on the day on which this Act
receives the Royal Assent.
(2) Subject to this section, the remaining provisions of this Act commence
on a day or days to be fixed by Proclamation.
(3) If a provision of this Act does not commence under subsection (2)
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Part 1—Amendments
relating to reasonable excuse, self-incrimination and increases in
penalties
1 Subsection 19A(4)
Omit “, without reasonable excuse,”.
2 Subsection 20(3)
Repeal the subsection.
3 Subsection 20(4)
Omit “, without reasonable excuse,”.
4 Subsection 27(2)
Repeal the subsection, substitute:
(2) A person who proposes to make, or has made, an application to the
Federal Court under the Administrative Decisions (Judicial Review) Act
1977 for an order of review in respect of a matter arising under this Act
may make an application to the Attorney-General for the provision of assistance
under this section in respect of the application to the Federal Court.
5 Subsection 29(3)
Omit “, without reasonable excuse,”.
6 Subsection 29(3)
(penalty)
Repeal the penalty.
7 After subsection 29(3)
Insert:
(3A) A person who contravenes subsection (3) is guilty of an
indictable offence that, subject to this section, is punishable, upon
conviction, by a fine not exceeding $20,000 or imprisonment for a period not
exceeding 5 years.
(3B) Notwithstanding that an offence against subsection (3) is an
indictable offence, a court of summary jurisdiction may hear and determine
proceedings in respect of such an offence if the court is satisfied that it is
proper to do so and the defendant and the prosecutor consent.
(3C) Where, in accordance with subsection (3B), a court of summary
jurisdiction convicts a person of an offence against subsection (3), the
penalty that the court may impose is a fine not exceeding $2,000 or imprisonment
for a period not exceeding 1 year.
8 Subsection 29(4)
Omit “30(3) to (10), inclusive,”, substitute “30(3) to
(5) and (9)”.
9 Subsection 29(4)
Omit “and so apply as if a reference in those subsections to
subsection 30(2) were a reference to subsection (3) of this
section”.
10 Subsection 29(5)
Repeal the subsection.
11 Subsections 30(1) and
(2)
Omit “, without reasonable excuse”.
Note 1: The following heading to subsection 30(1) is
inserted “Failure to attend”.
Note 2: The following heading to subsection 30(2) is
inserted “Failure to answer questions etc.”.
12 Subsections 30(4) to
(11)
Repeal the subsections, substitute:
Use immunity available in some cases if self-incrimination
claimed
(4) Subsection (5) limits the use that can be made of any answers
given at a hearing before the Authority, or documents or things produced at a
hearing before the Authority. That subsection only applies if:
(a) a person appearing as a witness at a hearing before the
Authority:
(i) answers a question that he or she is required to answer by the member
presiding at the hearing; or
(ii) produces a document or thing that he or she was required to produce
by a summons under this Act served on him or her as prescribed; and
(b) in the case of the production of a document that is, or forms part of,
a record of an existing or past business—the document sets out details of
earnings received by the person in respect of his or her employment and does not
set out any other information; and
(c) before answering the question or producing the document or thing, the
person claims that the answer, or the production of the document or thing, might
tend to incriminate the person or make the person liable to a penalty.
(5) The answer, or the document or thing, is not admissible in evidence
against the person in:
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a penalty;
other than a proceeding in respect of:
(c) in the case of an answer—the falsity of the answer; or
(d) in the case of the production of a document—the falsity of any
statement contained in the document.
Offence for contravention of subsection (1), (2) or
(3)
(6) A person who contravenes subsection (1), (2) or (3) is guilty of
an indictable offence that, subject to this section, is punishable, upon
conviction, by a fine not exceeding $20,000 or imprisonment for a period not
exceeding 5 years.
(7) Notwithstanding that an offence against subsection (1), (2) or
(3) is an indictable offence, a court of summary jurisdiction may hear and
determine proceedings in respect of such an offence if the court is satisfied
that it is proper to do so and the defendant and the prosecutor
consent.
(8) Where, in accordance with subsection (7), a court of summary
jurisdiction convicts a person of an offence against subsection (1), (2) or
(3), the penalty that the court may impose is a fine not exceeding $2,000 or
imprisonment for a period not exceeding 1 year.
Legal professional privilege
(9) Subsection (3) does not affect the law relating to legal
professional privilege.
13 Sections 32, 32A, 32B and
32C
Repeal the sections.
14 Subsection 35(1)
(penalty)
Repeal the penalty.
15 Subsection 35(2)
Repeal the subsection, substitute:
(2) A person who contravenes subsection (1) is guilty of an
indictable offence that, subject to this section, is punishable, upon
conviction, by a fine not exceeding $20,000 or imprisonment for a period not
exceeding 5 years.
(3) Notwithstanding that an offence against subsection (1) is an
indictable offence, a court of summary jurisdiction may hear and determine
proceedings in respect of such an offence if the court is satisfied that it is
proper to do so and the defendant and the prosecutor consent.
(4) Where, in accordance with subsection (3), a court of summary
jurisdiction convicts a person of an offence against subsection (1), the
penalty that the court may impose is a fine not exceeding $2,000 or imprisonment
for a period not exceeding 1 year.
16 Subparagraph 61(2)(g)(i)
Repeal the subparagraph.
17 Saving of sections 32, 32A, 32B and 32C
in relation to relevant claims
(1) Despite the repeal of sections 32, 32A, 32B and 32C of the
National Crime Authority Act 1984 by item 13, those sections
continue to have effect on and after the commencement of that item as if they
had not been repealed, in relation to a relevant claim.
(2) In this item:
relevant claim means a claim, made before the commencement of
item 13, that a person is entitled to refuse:
(a) to furnish information, or produce a document, pursuant to a notice
under section 20 of the
National
Crime Authority Act 1984; or
(b) to produce a document pursuant to a notice under section 29 of
that Act; or
(c) to answer a question put to him or her, or produce a document that he
or she was required to produce, under section 30 of that Act; or
(d) to comply with a requirement:
(i) to answer a question, or to produce a document, at a hearing before
the Authority under a law of a State; or
(ii) to produce a document pursuant to a notice under a provision of a law
of a State that corresponds to section 29 of that Act;
to which section 32 of that Act applied, because of section 32B
of that Act, before the commencement of item 13.
Part 2—Relevant
criminal activity
18 Subsection 4(1) (definition of relevant
criminal activity)
Omit “or may be being”, substitute “may be being, or may
in future be”.
19 Subsection 37(1)
Omit “4 years”, substitute “6 years”.
20 Subsection 37(1C)
Omit “4 years”, substitute “6 years”.
21 Subsection 37(1E)
Omit “4 years”, substitute “6 years”.
22 Subsection 4(1) (definition of
document)
Repeal the definition, substitute:
document has the same meaning as in the Evidence Act
1995.
23 Subsection 4(1) (paragraph (d) of the
definition of relevant offence)
Repeal the paragraph, substitute:
(d) that is of a prescribed kind or involves any of the
following:
(i) theft;
(ii) fraud;
(iii) tax evasion;
(iv) money laundering;
(v) currency violations;
(vi) illegal drug dealings;
(vii) illegal gambling;
(viii) obtaining financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery or corruption of, or by, an officer of the Commonwealth, an
officer of a State or an officer of a Territory;
(xii) perverting the course of justice;
(xiii) bankruptcy and company violations;
(xiv) harbouring of criminals;
(xv) forging of passports;
(xvi) armament dealings;
(xvii) illegal importation or exportation of fauna into or out of
Australia;
(xviii) matters of the same general nature as one or more of the matters
listed above;
Part 5—Police
power to interview
24 Subsections 12(4) and
(5)
Repeal the subsections.
Part 6—People
who may apply for, or issue, search warrants
25 Subsection 4(1)
Insert:
eligible person means:
(a) a member; or
(b) a member of the staff of the Authority who is also a member
of:
(i) the Australian Federal Police; or
(ii) the Police Force of a State.
26 Subsection 4(1)
Insert:
issuing officer means:
(a) a Judge of the Federal Court; or
(b) a Judge of a court of a State or Territory; or
(c) a magistrate.
27 Subsection 22(1)
Omit “A member”, substitute “An eligible
person”.
28 Subsection 22(1)
Omit “a Judge of a prescribed court”, substitute “an
issuing officer”.
29 Paragraph 22(1)(a)
Omit “the member”, substitute “the eligible
person”.
30 Paragraph 22(1)(b)
Omit “the member”, substitute “the eligible
person”.
31 Subsection 22(2)
Omit “a Judge of a prescribed court, the Judge”, substitute
“an issuing officer, the issuing officer”.
32 Subsection 22(3)
Omit “A Judge”, substitute “An issuing
officer”.
33 Subsection 22(3)
Omit “the Judge” (wherever occurring), substitute “the
issuing officer”.
34 Subsection 22(4)
Omit “a Judge”, substitute “an issuing
officer”.
35 Paragraph 22(8)(b)
Omit “a member”, substitute “an eligible
person”.
36 Subparagraph
22(8)(b)(ii)
Omit “the member”, substitute “the eligible
person”.
37 Subsection 22(9)
Omit “A member”, substitute “An eligible
person”.
38 Subsection 22(9)
Omit “the member”, substitute “the eligible
person”.
39 Subsections 22(11) and
(12)
Repeal the subsections, substitute:
(11) In this section:
thing includes a document.
40 At the end of
section 22
Add:
(14) A function of issuing a warrant conferred on an issuing officer by
this section is conferred on the issuing officer in a personal capacity and not
as a court or a member of a court.
(15) Without limiting the generality of subsection (14), the issue of
a warrant has effect only by virtue of this Act and is not to be taken by
implication to be made by a court.
(16) An issuing officer performing a function of, or connected with,
issuing a warrant under this section has the same protection and immunity as if
he or she were performing that function as, or as a member of, a court (being
the court of which the issuing officer is a member).
41 Subsection 23(1)
Omit “a member”, substitute “an eligible
person”.
42 Subsection 23(1)
Omit “the member”, substitute “the eligible
person”.
43 Subsection 23(2)
Omit “member”, substitute “eligible
person”.
44 Subsection 23(3)
Omit “a Judge”, substitute “an issuing
officer”.
45 Paragraph 23(3)(b)
Omit “member”, substitute “eligible
person”.
46 Subsection 23(4)
Omit “Judge” (wherever occurring), substitute “issuing
officer”.
47 Subsection 23(5)
Omit “Judge”, substitute “issuing
officer”.
48 Subsection 23(6)
Omit “Judge”, substitute “issuing
officer”.
49 At the end of
section 23
Add:
(8) A function of issuing a warrant conferred on an issuing officer by
this section is conferred on the issuing officer in a personal capacity and not
as a court or a member of a court.
(9) Without limiting the generality of subsection (8), the issue of a
warrant has effect only by virtue of this Act and is not to be taken by
implication to be made by a court.
(10) An issuing officer performing a function of, or connected with,
issuing a warrant under this section has the same protection and immunity as if
he or she were performing that function as, or as a member of, a court (being
the court of which the issuing officer is a member).
Part 7—Non-disclosure
of information about summons, notices etc.
50 At the end of
section 29A
Add:
(7) If:
(a) under this section, a notation in relation to the disclosure of
information about:
(i) a summons issued under section 28; or
(ii) a notice issued under section 29; or
(iii) any official matter connected with the summons or notice;
has been made and not cancelled; and
(b) apart from this subsection, a credit reporting agency (within the
meaning of section 11A of the Privacy Act 1988) would be required,
under subsection 18K(5) of the Privacy Act 1988, to make a note about the
disclosure of the information;
such a note must not be made until the notation is cancelled.
51 Application
If:
(a) under section 29A of the National Crime Authority Act
1984, a notation was made before the commencement of item 50 in
relation to the disclosure of information about:
(i) a summons issued under section 28 of that Act; or
(ii) a notice issued under section 29 of that Act; or
(iii) any official matter connected with the summons or notice;
and
(b) before the commencement of that item, a body made a note about the
disclosure of the information about a person in accordance with the Privacy
Act 1988; and
(c) after the commencement of that item, an individual seeks access to
that file in accordance with section 18H of the Privacy Act 1988
before the notation is cancelled;
then the note must be removed before such access is given and neither the
note nor any information in the note may be disclosed to the individual when
such access is given.
Part 8—Delegation
of chairperson’s powers
52 Subsection 4(1)
Insert:
acting SES employee has the same meaning as in the Public
Service Act 1999.
53 Subsection 4(1)
Insert:
SES employee has the same meaning as in the Public Service
Act 1999.
54 At the end of
section 59A
Add:
(2) The Chairperson may, by signed instrument, delegate to a member the
Chairperson’s power under subsection 25(9A).
(3) The Chairperson may, by signed instrument, delegate to a member, the
Chairperson’s power under subsection 26(2) to direct that a witness or
person be paid in respect of expenses.
(4) The Chairperson may, by signed instrument, delegate to a member, or a
member of the staff of the Authority who is an SES employee or acting SES
employee, the Chairperson’s power under subsection 48(1).
55 After subsection 25(7)
Insert:
(7A) If a person (other than a member or a member of the staff of the
Authority) is present at a hearing while another person (the
witness) is giving evidence at the hearing, the Authority
must:
(a) inform the witness that the person is present; and
(b) give the witness an opportunity to comment on the presence of the
person.
(7B) To avoid doubt, a person does not cease to be entitled to be present
at a hearing or part of a hearing if:
(a) the Authority fails to comply with subsection (7A); or
(b) a witness comments adversely on the presence of the person under
paragraph (7A)(b).
Part 10—Disclosure
of information by legal practitioners
56 Paragraph 29B(2)(e)
Repeal the paragraph, substitute:
(e) if the person is a legal practitioner—for the purpose of
obtaining the agreement of another person under subsection 30(3) to the legal
practitioner answering a question or producing a document at a hearing before
the Authority.
Part 11—Use
of reasonable force to execute warrants
57 After subsection 22(6)
Insert:
(6A) A person executing a warrant issued under this section may only use
such reasonable force as is necessary for the execution.
58 After subsection 31(2A)
Insert:
(2B) A person executing a warrant under this section may only use such
reasonable force as is necessary for the execution.
59 Application
The amendments made by items 57 and 58 apply to a person executing a
warrant on or after the commencement of those items, regardless of whether the
warrant was issued before, on or after the commencement.
Part 12—Access
to information by the Parliamentary Joint Committee on the National Crime
Authority
60 At the end of
section 55
Add:
(3) To avoid doubt, the Committee may examine, and report to both Houses
of the Parliament on, information given to it under section 59.
61 After subsection 59(6)
Insert:
(6A) Subject to subsection (6B), the Authority:
(a) must comply with a request by the Parliamentary Joint Committee on the
National Crime Authority for the time being constituted under Part III (the
PJC) to give the PJC information relating to an investigation that
has been conducted by the Authority; and
(b) must when requested by the PJC, and may at such other times as the
Authority thinks appropriate, inform the PJC concerning the general conduct of
the operations of the Authority.
(6B) If the Chairperson considers that disclosure of information to the
public could prejudice the safety or reputation of persons or the operations of
law enforcement agencies, the Authority must not give the PJC the
information.
(6C) If the Authority does not give the PJC information on the ground that
the Chairperson considers that disclosure of the information to the
public could prejudice the safety or reputation of persons or the operations of
law enforcement agencies, the PJC may refer the request to the
Minister.
(6D) If the PJC refers the request to the Minister, the
Minister:
(a) must determine in writing whether disclosure of the information could
prejudice the safety or reputation of persons or the operations of law
enforcement agencies; and
(b) must provide copies of that determination to the Chairperson and the
PJC; and
(c) must not disclose his or her reasons for determining the question of
whether the information could prejudice the safety or reputation of persons or
the operations of law enforcement agencies in the way stated in the
determination.
Part 13—Dissemination
of information overseas
62 Subsection 4(1)
Insert:
foreign law enforcement agency means:
(a) a police force (however described) of a foreign country; or
(b) any other authority or person responsible for the enforcement of the
laws of the foreign country.
63 At the end of
section 59
Add:
(12) Despite section 11, the Chairperson may give to any foreign law
enforcement agency any information that is in the Authority’s possession
and is relevant to the activities of that agency if:
(a) it appears to the Chairperson to be appropriate to do so;
and
(b) to do so would not be contrary to a law of the Commonwealth, a State
or a Territory that would otherwise apply.
Part 14—Application
of the Criminal Code
64 After section 6
Insert:
Chapter 2 of the Criminal Code applies to all offences
against this Act.
65 Subsections 19A(7) and
20(4A)
Repeal the subsections.
66 Subsection 4(1)
Insert:
in contempt of the Authority has the meaning
given by section 34A.
67 After section 34
Insert:
A person is in contempt of the Authority if
he or she:
(a) obstructs or hinders the Authority or a member in the performance of
the functions of the Authority; or
(b) disrupts a hearing before the Authority; or
(c) when appearing as a witness at a hearing before the
Authority:
(i) refuses or fails to take an oath or make an affirmation; or
(ii) refuses or fails to answer a question;
when required to do so.
(1) If the Authority is of the opinion that, during a hearing before the
Authority, a person is in contempt of the Authority, the Authority may apply to
the relevant Supreme Court for the person to be dealt with in respect of the
contempt.
(2) The application must be accompanied by an affidavit that sets
out:
(a) the grounds for making the application; and
(b) evidence in support of the application.
(3) If, after:
(a) considering the affidavit; and
(b) hearing or receiving any evidence or statements by or in support of
the Authority; and
(c) hearing or receiving any evidence or statements by or in support of
the person;
the Court finds that the person:
(d) was in contempt of the Authority; and
(e) did not have a reasonable excuse for being in contempt of the
Authority;
the Court may deal with the person as if the acts or omissions involved
constituted a contempt of that Court.
(4) In this section:
relevant Supreme Court, in relation to a hearing before the
Authority, means the Supreme Court of the State or Territory where the hearing
is held.
(1) If the Authority proposes to make an application to a Supreme Court
under subsection 34B(1) in respect of a person, it may, during the hearing
concerned, direct a member of a law enforcement agency to detain the person for
the purpose of bringing the person before the Court for the hearing of the
application.
(2) If the person is detained under subsection (1):
(a) the Authority must apply to the Court as soon as practicable under
subsection 34B(1) in respect of the person; and
(b) the person must, subject to subsection (3), be brought before the
Court as soon as practicable.
(3) However, the Court may direct that the person be released from
detention on condition that he or she will appear before the Court in relation
to the application.
(4) The Court may also impose any other condition on the release, for
example:
(a) that the person surrenders his or her passport;
(b) that the person gives an undertaking as to his or her living
arrangements;
(c) that the person reports as required to a law enforcement
agency.
(5) The Court may at any time vary or revoke a condition that it has
imposed under subsection (4).
(1) The Authority may at any time withdraw an application in relation to a
person under subsection 34B(1).
(2) If:
(a) the Authority does so; and
(b) the person is in detention under subsection 34C(1);
the person must be released from detention immediately.
Note: The heading to section 35 is replaced by the
heading “Contempt offences”.
68 At the end of
section 35A
Add:
(2) If:
(a) an application is made to a Supreme Court under subsection 34B(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, an application must not be made under subsection 34B(1) in respect of
that act or omission.
Part 16—Amendments
relating to the operation of the Ombudsman Act 1976
69 At the end of
section 36
Add:
(4) To avoid doubt, this section does not limit the powers of the
Ombudsman under the Ombudsman Act 1976.
70 Subsection 4(1)
Insert:
hearing officer means a person appointed under subsection
25A(1).
71 Paragraph 24(1)(a)
After “before the Authority” (wherever occurring), insert
“or a hearing officer”.
72 Paragraph 24(1)(b)
After “give to the Authority”, insert “or the hearing
officer”.
73 Paragraph 24(1)(b)
After “produce to the Authority”, insert “or the hearing
officer”.
74 Before section 25
Insert:
For the purposes of a special investigation:
(a) the Authority may hold hearings of the Authority; and
(b) the Chairperson may, in writing, direct a hearing officer to hold
hearings.
75 Subsection 25(1)
Repeal the subsection, substitute:
(1) This section applies to a hearing held by the Authority.
Note: The heading to section 25 is replaced by the
heading “Hearings of the Authority”.
76 After section 25
Insert:
(1) Hearing officers are to be appointed by the Governor-General on the
advice of the Minister.
(2) Any advice to the Governor-General with respect to the appointment of
a person as a hearing officer must be consistent with a unanimous recommendation
of the Inter-Governmental Committee.
(3) A person must not be appointed as a hearing officer unless he or she
is enrolled as a legal practitioner, and has been so for not less than 5
years.
(4) A hearing officer may regulate the conduct of proceedings at a hearing
as he or she thinks fit.
(5) At a hearing before a hearing officer:
(a) a person giving evidence may be represented by a legal practitioner;
and
(b) if, by reason of the existence of special circumstances, the hearing
officer consents to a person who is not giving evidence being represented by a
legal practitioner—the person may be so represented.
(6) A hearing before a hearing officer must be held in private and the
hearing officer may give directions as to the persons who may be present during
the hearing or a part of the hearing.
(7) Nothing in a direction given by the hearing officer under
subsection (6) prevents the presence, when evidence is being taken at a
hearing before the hearing officer, of:
(a) a person representing the person giving evidence; or
(b) a person representing, in accordance with subsection (5), a
person who, by reason of a direction given by the hearing officer under
subsection (6), is entitled to be present.
(8) If a hearing before a hearing officer is being held, a person (other
than a member or a member of the staff of the Authority approved by the
Authority) must not be present at the hearing unless the person is entitled to
be present by reason of a direction given by the hearing officer under
subsection (6) or by reason of subsection (7).
(9) At a hearing before a hearing officer for the purposes of a special
investigation:
(a) counsel assisting the hearing officer generally or in relation to the
matter to which the investigation relates; or
(b) any person authorised by the hearing officer to appear before the
hearing officer at the hearing; or
(c) any legal practitioner representing a person at the hearing in
accordance with subsection (5);
may, so far as the hearing officer thinks appropriate, examine or
cross-examine any witness on any matter that the hearing officer considers
relevant to the special investigation.
(10) If a person (other than a member or a member of the staff of the
Authority) is present at a hearing before a hearing officer while another person
(the witness) is giving evidence at the hearing, the hearing
officer must:
(a) inform the witness that the person is present; and
(b) give the witness an opportunity to comment on the presence of the
person.
(11) To avoid doubt, a person does not cease to be entitled to be present
at a hearing before a hearing officer or part of such a hearing if:
(a) the hearing officer fails to comply with subsection (10);
or
(b) a witness comments adversely on the presence of the person under
paragraph (10)(b).
(12) A hearing officer may direct that:
(a) any evidence given before the hearing officer; or
(b) the contents of any document, or a description of any thing, produced
to the hearing officer; or
(c) any information that might enable a person who has given evidence
before the hearing officer to be identified; or
(d) the fact that any person has given or may be about to give evidence at
a hearing;
must not be published, or must not be published except in such manner, and
to such persons, as the hearing officer specifies. The hearing officer must give
such a direction if the failure to do so might prejudice the safety or
reputation of a person or prejudice the fair trial of a person who has been or
may be charged with an offence.
(13) Subject to subsection (14), the Chairperson may, in writing,
vary or revoke a direction under subsection (12).
(14) The Chairperson must not vary or revoke a direction if to do so might
prejudice the safety or reputation of a person or prejudice the fair trial of a
person who has been or may be charged with an offence.
(15) Where:
(a) a person has been charged with an offence before a federal court or
before a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of
justice that particular evidence given before a hearing officer, being evidence
in relation to which the hearing officer has given a direction under
subsection (12), be made available to the person or to a legal practitioner
representing the person;
the court may give to the hearing officer or the Authority a certificate to
that effect and, if the court does so, the hearing officer or the Authority, as
the case may be, must make the evidence available to the court.
(16) Where:
(a) the hearing officer or the Authority makes evidence available to a
court in accordance with subsection (15); and
(b) the court, after examining the evidence, is satisfied that the
interests of justice so require;
the court may make the evidence available to the person charged with the
offence concerned or to a legal practitioner representing the person.
(17) A person who:
(a) is present at a hearing in contravention of subsection (8);
or
(b) makes a publication in contravention of a direction given under
subsection (12);
is guilty of an offence punishable, upon summary conviction, by a fine not
exceeding $2,000 or imprisonment for a period not exceeding 12 months.
(18) At the conclusion of a hearing held by a hearing officer, the hearing
officer must give the Authority:
(a) a record of the proceedings of the hearing; and
(b) any documents or other things given to the hearing officer at, or in
connection with, the hearing.
77 Subsections 26(1) and
27(1)
After “Authority”, insert “or a hearing
officer”.
78 Subsection 27(3)
After “Authority”, insert “or the hearing
officer”.
79 Subsections 28(1) and
28(2)
After “before the Authority”, insert “or a hearing
officer”.
80 Subsection 28(3)
Omit “Authority at a hearing”, substitute “Authority or a
hearing officer at a hearing”.
81 Subsection 28(3)
Omit “Authority intends”, substitute “Authority or the
hearing officer intends”.
82 Subsection 28(3)
Omit “Authority from”, substitute “Authority or the
hearing officer from”.
83 Subsection 28(4)
After “Authority”, insert “, or the hearing officer who
is holding a hearing,”.
84 Subsection 28(5)
Omit “Authority may”, insert “Authority or a hearing
officer may”.
85 Paragraph 28(5)(a)
After “a member”, insert “or the hearing
officer”.
86 Paragraph 28(5)(a)
After “presiding at the hearing”, insert “or the hearing
officer”.
87 Paragraph 28(5)(b)
After “a member,”, insert “the hearing
officer”.
88 Paragraph 29(1)(a)
Omit “or a member of the staff of the Authority”, substitute
“, a member of the staff of the Authority or a hearing
officer”.
89 Subsection 29(2)
After “Authority”, insert “or a hearing
officer”.
90 At the end of subsection
29(4)
Add “or a hearing officer”.
91 Paragraph 29B(2)(e)
After “Authority”, insert “or a hearing
officer”.
92 Subsection 29B(7) (paragraph (c) of the
definition of official matter)
After “Authority”, insert “or a hearing
officer”.
93 Subsection 30(1)
After “Authority”, insert “or a hearing
officer”.
94 At the end of paragraph
30(1)(b)
Add “or the hearing officer, as the case may be”.
95 Subsection 30(2)
After “Authority”, insert “or a hearing
officer”.
96 At the end of paragraph
30(2)(b)
Add “or the hearing officer”.
97 Paragraph 30(3)(a)
After “Authority”, insert “or a hearing
officer”.
98 Subsection 30(3)
After “at the hearing”, insert “or the hearing
officer”.
99 Subsection 30(3)
Omit “Authority the name”, substitute “Authority or the
hearing officer the name”.
100 Subsection 30(4)
After “given at a hearing before the Authority”, insert
“or a hearing officer”.
101 Subsection 30(4)
After “produced at a hearing before the Authority”, insert
“or a hearing officer”.
102 Paragraph 30(4)(a)
After “Authority”, insert “or a hearing
officer”.
103 Subparagraph
30(4)(a)(i)
After “at the hearing”, insert “or the hearing officer
who is holding the hearing”.
104 Paragraph 31(1)(a)
After “before the Authority”, insert “or a hearing
officer”.
105 At the end of paragraph
31(3)(a)
Add “or the hearing officer”.
106 Subsection 33(1)
After “Authority”, insert “or a hearing
officer”.
107 Section 34
After “a member”, insert “or a hearing
officer”.
108 Paragraph 34(a)
After “Authority”, insert “or a hearing
officer”.
109 Paragraph 34(b)
After “before the Authority”, insert “or a hearing
officer”.
110 Section 34
After “the member”, insert “or the hearing officer, as
the case may be,”.
111 Paragraph 34A(a)
Repeal the paragraph, substitute:
(a) obstructs or hinders:
(i) the Authority or a member in the performance of the functions of the
Authority; or
(ii) a hearing officer in the performance of his or her functions as a
hearing officer; or
112 Paragraph 34A(b)
After “Authority”, insert “or a hearing
officer”.
113 Paragraph 34A(c)
After “Authority”, insert “or a hearing
officer”.
114 Subsection 34B(1)
Repeal the subsection, substitute:
(1) If:
(a) during a hearing before the Authority—the Authority;
or
(b) during a hearing before a hearing officer—the hearing
officer;
is of the opinion that, during the hearing, a person is in contempt of the
Authority, the Authority or the hearing officer, as the case may be, may apply
to the relevant Supreme Court for the person to be dealt with in respect of the
contempt.
115 Paragraph 34B(3)(b)
After “Authority”, insert “or the hearing
officer”.
116 Subsection 34B(4) (definition of relevant
Supreme Court)
After “Authority”, insert “or a hearing
officer”.
117 Subsection 34C(1)
After “Authority”, insert “or a hearing
officer”.
118 Subsection 34C(1)
Omit “it may”, substitute “the Authority or the hearing
officer may”.
119 Paragraph 34C(2)(a)
After “Authority”, substitute “or the hearing officer, as
the case may be,”.
120 Subsection 34D(1)
After “Authority”, insert “, or the hearing officer
concerned,”.
121 Paragraph 34D(2)(a)
After “Authority”, insert “or the hearing
officer”.
122 Paragraph 35(1)(a)
Repeal the paragraph, substitute:
(a) obstruct or hinder:
(i) the Authority or a member in the performance of the functions of the
Authority; or
(ii) a hearing officer in the performance of his or her functions as a
hearing officer; or
123 Paragraph 35(1)(b)
After “Authority”, insert “or a hearing
officer”.
124 Subsection 36(1)
After “member” (wherever occurring), insert “or a hearing
officer”.
125 Subsection 36(1)
After “Authority”, insert “or the hearing
officer”.
126 Subsection 36(2)
After “Authority” (wherever occurring), insert “or a
hearing officer”.
127 Subsection 36(3)
After “Authority”, insert “or a hearing
officer”.
128 Subsection 37(1)
Omit “and each of the other members”, substitute “, each
of the other members and each of the hearing officers”.
129 Subsection 37(1A)
Omit “and the other members”, substitute “, the other
members and hearing officers”.
130 After subsection 37(1D)
Insert:
(1DA) A hearing officer may be re-appointed for one or more
periods.
131 Subsection 37(1E)
After “appointment”, insert “or a hearing officer’s
first appointment”.
132 Subsection 37(2)
After “member” (wherever occurring), insert “or a hearing
officer”.
133 After subsection 37(4)
Insert:
(5) A hearing officer holds office on such terms and conditions (if any)
in respect of matters not provided for by this Act as are determined by the
Governor-General.
134 Subsection 38(1)
After “member”, insert “or a hearing
officer”.
135 Subsection 38(2)
After “member”, insert “or a hearing
officer”.
136 Section 41
After “member”, insert “or a hearing
officer”.
137 At the end of
section 42
Insert:
(3) A hearing officer who has a direct or indirect interest in a matter
that arises, or that could arise, during the course of a hearing before the
hearing officer, must, as soon as possible after the relevant facts have come to
his or her attention, disclose the nature of his or her interest to the
Chairperson.
(4) If a hearing officer makes a disclosure under
subsection (3):
(a) the Chairperson must cause the disclosure to be recorded in the
minutes of the next meeting of the Authority; and
(b) the hearing officer must not, unless the Minister otherwise
determines, hold hearings, or further hearings, as the case may be, in relation
to the matter.
138 Subsection 43(1)
After “member”, insert “or a hearing
officer”.
139 After subsection 43(2)
Insert:
(2A) If a hearing officer:
(a) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her creditors or
makes an assignment of his or her remuneration for their benefit; or
(b) fails, without reasonable excuse, to comply with his or her
obligations under section 42;
the Governor-General must terminate the appointment of that hearing
officer.
140 At the end of subsection
51(1)
Add:
; and (c) a hearing officer.
141 Subsection 51(3)
Omit “or acting member”, substitute “, acting member or
hearing officer”.
142 Subsection 47(1)
After “Subject to”, insert “this section
and”.
143 At the end of
section 47
Add:
(3) In addition to the staff referred to in subsection (1), the
Chairperson may, on behalf of the Commonwealth, employ, under agreements in
writing, such persons as the Chairperson thinks necessary for the purposes of
the performance of the functions of the Authority.
(4) The terms and conditions of employment of persons employed by the
Chairperson under subsection (3) are such as are from time to time
determined by the Chairperson.
1 At the end of subsection
18K(5)
Add:
Note: A credit reporting agency must not include a note
about the disclosure of information in a file if a notation has been made on a
summons, or a notice, relating to the disclosure of the information and the
notation has not been cancelled (see section 29A of the National Crime
Authority Act 1984).
1 Subsection 3(1)
Insert:
law enforcement agency has the same meaning as in the
National Crime Authority Act 1984.
2 Subsection 3(1)
Insert:
National Crime Authority means the National Crime Authority
established by the National Crime Authority Act 1984.
3 After subsection 3(13)
Insert:
(13A) For the purposes of this Act, the National Crime Authority is taken
to be a prescribed authority.
4 Paragraph 5(2)(b)
After “Parliament”, insert “other than action taken by a
Justice or Judge in his or her capacity as a member of the National Crime
Authority”.
5 After section 6
Insert:
(1) If:
(a) the Ombudsman forms the opinion that:
(i) a complaint in respect of action taken by the National Crime Authority
could have been made to another authority established under a law of the
Commonwealth, a State or a Territory; and
(ii) the complaint could be more conveniently or effectively dealt with by
the other authority; and
(b) the other authority can deal with the complaint if the Ombudsman
transfers the complaint to the other authority;
the Ombudsman may decide not to investigate the complaint, or not to
investigate the complaint further, as the case may be, and to transfer the
complaint to the other authority.
(2) If the Ombudsman decides to transfer the complaint, the Ombudsman
must:
(a) do so as soon as is reasonably practicable; and
(b) subject to section 35B, give the other authority any information
or documents relating to the complaint that are in the possession, or under the
control, of the Ombudsman; and
(c) as soon as is reasonably practicable, give the complainant written
notice that the complaint has been transferred to the other authority.
6 After section 8A
Insert:
(1) If an authority established under a law of the Commonwealth, a State
or a Territory has power to enter into an arrangement with the Ombudsman to
investigate action taken by the National Crime Authority, the Ombudsman may
enter into such an arrangement with the authority.
(2) The Ombudsman may arrange with the authority for the variation or
revocation of the arrangement.
(3) The arrangement may relate to particular action or actions, to a
series of related actions or to actions included in a class of
actions.
(4) The arrangement, or the variation or revocation of the arrangement,
must be in writing.
(5) The regulations may make provision for and in relation to the
participation by the Ombudsman in the carrying out of an investigation in
accordance with an arrangement under this section.
(6) Nothing in this section affects the powers and duties of the Ombudsman
under any other provision of this Act.
7 At the end of paragraphs 9(3)(a) and
(b)
Add “or”.
8 After paragraph 9(3)(d)
Insert:
or (e) if the information, documents or records are, or were, in the
possession or under the control of the National Crime Authority—by reason
that it would prejudice:
(i) the safety of a person; or
(ii) the fair trial of a person who has been, or may be, charged with an
offence; or
(iii) the effectiveness of an investigation by the National Crime
Authority; or
(iv) the operations of a law enforcement agency;
9 Subsection 35(5)
Omit “or (d)”, substitute “, (d) or (e)”.
10 Subsection 35A(1)
Omit “Nothing”, substitute “Subject to section 35B,
nothing”.
11 After section 35A
Insert:
(1) If the Attorney-General gives the Ombudsman a certificate certifying
that the disclosure of certain NCA information by one or more listed disclosure
methods specified in the certificate would be contrary to the public interest by
reason that it would prejudice:
(a) the safety of a person; or
(b) the fair trial of a person who has been, or may be, charged with an
offence; or
(c) the effectiveness of an investigation by the National Crime Authority;
or
(d) the operations of a law enforcement agency;
the Ombudsman must not so disclose the NCA information.
(2) In this section:
listed disclosure method, in relation to information, a
document or a record, means:
(a) including the information or the contents of the document or record in
any report under Division 2 of Part 2; or
(b) giving the information, document or record to another person or
authority under section 6 or 6A; or
(c) giving the information, document or record to an Ombudsman of a State;
or
(d) giving the information, document or record to an authority with which
the Ombudsman has made an arrangement under section 8B; or
(e) disclosing, or making a statement that discloses, the information or
the contents of the document or record under subsection 35A(1); or
(f) disclosing information or the contents of a document or record by any
other specified method.
NCA information means information or the contents of a
document or a record that is, or was, in the possession or under the control of
the National Crime Authority.
1 At the end of
Schedule 1
Add:
; (zb) decisions under section 34B or 34C of the National Crime
Authority Act 1984.