Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
LAW ENFORCEMENT INTEGRITY LEGISLATION AMENDMENT BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice,
the Honourable Jason Clare MP)
LAW ENFORCEMENT INTEGRITY LEGISLATION AMENDMENT
BILL 2012
OUTLINE
This Bill amends the Crimes Act 1914 (Crimes Act), the Australian Crime Commission Act
2002 (ACC Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act), the
Surveillance Devices Act 2004 (SD Act), the Customs (Administration) Act 1985 (CAA Act)
and the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act).
The amendments included in this Bill will introduce a range of measures to increase the
resistance of Commonwealth law enforcement agencies to corruption and to enhance the
range of tools available to law enforcement agencies to respond to suspected corruption.
PURPOSE
The amendments contained in Schedule 1 will introduce targeted integrity testing for staff
members of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and
the Australian Customs and Border Protection Service (Customs and Border Protection)
suspected of corrupt conduct. Integrity tests are operations designed to test whether a public
official will respond to a simulated or controlled situation in a manner that is illegal or would
contravene an agency's standard of integrity. The introduction of integrity testing has been
recommended by the Parliamentary Joint Committee on the Australian Commission for Law
Enforcement Integrity.
The amendments contained in Schedule 1 will also increase the jurisdiction of the Australian
Commission for Law Enforcement Integrity (ACLEI) to include CrimTrac, AUSTRAC and
prescribed staff in the Department of Agriculture, Forestry and Fisheries.
The purpose of Schedule 2 is to enhance the powers of the CEO of Customs and Border
Protection to deal with suspected corrupt conduct and bring those powers in to line with
powers currently available to the AFP Commissioner and the ACC CEO.
FINANCIAL IMPACT STATEMENT
The introduction of integrity testing and enhanced powers for the CEO of Customs and
Border Protection to deal with corruption will involve no financial impact as agencies will
meet the costs of implementing these measures from within existing resources. It is proposed
that ACLEI be provided with additional funding of $1.5 million over two years (2013-14 and
2014-15) to support its expanded jurisdiction.
ABBREVIATIONS
ACC Australian Crime Commission
ACLEI Australian Commission for Law Enforcement Integrity
AFP Australian Federal Police
AUSTRAC Australian Transaction Reports and Analysis Centre
Customs and Border Protection Australian Customs and Border Protection Service
DAFF Department of Agriculture, Fisheries and Forestry
ACC Act Australian Crime Commission Act 2002
CAA Act Customs (Administration) Act 1985
Crimes Act Crimes Act 1914
LEIC Act Law Enforcement Integrity Commissioner Act 2006
SD Act Surveillance Devices Act 2004
TIA Act Telecommunications (Interception and Access) Act 1979
2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill will introduce a range of measures intended to strengthen Commonwealth agencies
with law enforcement functions against the risk of infiltration and corruption.
The Bill will introduce a system under which targeted integrity testing can be conducted on
officers of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and
the Australian Customs and Border Protection Service (Customs and Border Protection)
The Bill will also extend the jurisdiction of the Australian Commission for Law Enforcement
Integrity (ACLEI) to include all staff members of the Australian Transaction Reporting and
Analysis Centre (AUSTRAC) and the CrimTrac Agency and prescribed staff members of the
Department of Agriculture Fisheries and Forestry (DAFF).
The Bill will also enable drug and alcohol testing to be conducted on Customs and Border
Protection staff, and introduce a range of other powers to support integrity initiatives within
Customs and Border Protection.
Human rights implications
The Bill does promote a human right.
Rights in work
The protection of worker's rights in the workplace is contained within Article 22 of the
International Covenant on Civil and Political Rights (ICCPR). This Bill will ensure that the
Customs and Border Protection workplace is drug and alcohol free and thereby promotes this
specific human right and as a result advances labour rights contained within the International
Labour Organisation Convention 1948.
The Bill potentially impacts on the following human rights:
Right to protection against arbitrary and unlawful interferences with privacy
Article 17 of the ICCPR provides the right for persons to not be subjected to arbitrary or
unlawful interference with their privacy or have unlawful attacks on their honour or
reputation. The right to privacy may be subject to permissible limitations. In order for an
interference with the right to privacy to be permissible, the interference must be authorised by
law, be for a reason consistent with the ICCPR and be reasonable in the particular
circumstances. Reasonableness, in this context, incorporates notions of proportionality,
3
appropriateness and necessity. In essence, this will require that limitations:
· serve a legitimate objective
· adopt a means that is rationally connected to that objective, and
· the means adopted are not more restrictive than they need to be to achieve that
objective.
Integrity testing
The Bill engages this right by allowing, in the context of an integrity testing operation, the
use of surveillance of staff of these agencies and collecting, using, storing and sharing
personal data relating to these staff.
Only staff members of the ACC, AFP and Customs and Border Protection will be subject to
integrity testing. These are officers of key law enforcement agencies who are expected to
maintain a high standard of integrity. Corruption within these agencies can have a significant
detrimental effect on their ability to enforce the law. Integrity testing will only be able to be
authorised by a senior officer of these agencies, and only where there is a reasonable
suspicion that an offence, punishable by at least 12 months' imprisonment has been
committed or is likely to be committed. This will ensure that integrity testing is conducted on
a targeted basis, rather than on a random or arbitrary basis.
Law enforcement officers are generally well versed in surveillance methods and so corrupt
conduct in law enforcement agencies can be hard to detect. The introduction of integrity
testing will provide another tool to advance the detection of corruption and misconduct in
these officers. It will complement existing arrangements, including oversight of these
agencies by the Integrity Commissioner.
Investigative Tools
The Bill makes amendments to the Surveillance Devices Act 2004 (SD Act) to allow federal
law enforcement officers (ACC, AFP and ACLEI) to apply for a surveillance devices warrant
for the purposes of an integrity operation. It is limited to circumstances where:
· an integrity authority is in effect in relation to an offence of 12 months or more
imprisonment that is suspected to be, or has been, or is likely to be, committed, and
· the use of the surveillance device will assist by recording and monitoring the
operation, and
· enabling evidence to be obtained in relation to the offence, integrity, location or
identity of any staff member.
Consistent with the existing provisions that apply in relation to the use of surveillance devices
generally, surveillance of unrelated third parties is possible and contemplated. However, the
Judge or nominated Administrative Appeals Tribunal member in considering the application
must explicitly consider the extent to which the privacy of any person is likely to be affected
(including unrelated third parties such as other staff members). The Bill also provides that a
surveillance devices warrant issued in relation to an integrity operation can only be issued for
a period of 21 days. An integrity operation is intended to be a designed and targeted
operation and therefore there is more control over when it is likely that the key activity will
4
be undertaken and the key evidence likely to be collected. It is considered that a period of 21
days is necessary to achieve the objective and is proportionate to the privacy impacts.
Use and disclosure of information
The unlawful disclosure of information collected during an integrity testing operation will be
prohibited under the Crimes Act 1914. Disclosure will be allowed for a limited range of
purposes, including for use in disciplinary proceedings where the integrity test has exposed
misconduct. Information collected by the use of the controlled operations regime in the
Crimes Act 1914 will also be protected under existing provisions in this Act.
The SD Act also regulates the use of information obtained under a surveillance device and
the use of this information for purposes related to integrity testing operations will be limited
to circumstances where it is necessary to do so for the listed purposes.
The TIA Act prohibits the use and disclosure of information obtained under the TIA Act,
subject to certain exceptions. The Bill makes amendments to the TIA Act to allow AFP,
ACC, ACLEI to use and communicate information obtained under telecommunications
interception warrants to support integrity operations, limited use and communication
provisions apply to Customs. The Bill does not amend the provisions authorising agencies to
intercept communications or access stored communications.
The Bill also makes amendments to allow any interception agency to communicate
interception information and stored communications information to AFP, ACC and ACLEI
for integrity related purposes and operations. This provision is consistent with existing
provisions in the TIA Act that relate to the misconduct of AFP and ACC staff. The Bill also
makes amendments to allow ACLEI to communicate intercepted information to Customs in
limited circumstances. The use and communication will not be unlawful, as it will be
sanctioned under the TIA Act.
Disclosure of information for the purposes of disciplinary proceedings and other misconduct
action is necessary to ensure that appropriate action can be taken against established
corruption. This use and communication will not be arbitrary, as it will serve the legitimate
purpose of ensuring that this appropriate action can be taken and is subject to detailed
provisions in the TIA Act.
Officers of the AFP, ACC and Customs and Border Protection are responsible for enforcing
laws which protect and can impact upon others' human rights. They have access to a range
of law enforcement powers and also privileged personal and other sensitive information.
Corrupt conduct often involves breaches of existing laws designed to protect against abuses
of these powers or inappropriate disclosure of sensitive information. The establishment of an
integrity testing regime will assist in the enforcement of these laws designed to protect
against unlawful interferences with privacy.
Expansion of ACLEI's jurisdiction
This measure engages the right to privacy because the Law Enforcement Integrity
Commissioner Act 2006 (LEIC Act) provides that employees of agencies under ACLEI's
jurisdiction, or other individuals with information that is relevant to corruption within those
5
agencies, can be required to provide information to ACLEI or to answer questions. A failure
to provide the information or answer a question is an offence.
As such, this measure impacts the right to privacy of employees of AUSTRAC, CrimTrac
and DAFF as well as other individuals who may have information relevant to corruption
matters in those agencies.
The ability to require an individual to provide information or answer questions is limited to
situations where it will be relevant to an investigation of a corruption issue or the conduct of
a public inquiry into corruption. The LEIC Act also prescribes how information that is
provided by individuals to ACLEI is able to be used and disclosed. Disclosure is generally
only permitted for the purposes of investigating a corruption issue or other purposes
connected with the exercise of the functions of the Integrity Commissioner.
A person's privacy is also protected by an immunity from prosecution in relation to
self-incriminatory evidence given by them at a hearing. The immunity protection does not
apply to a small number of offences including providing false and misleading information or
obstruction of a Commonwealth official.
As such, although the right to privacy is limited by this measure, it is appropriate and
reasonable in the circumstances and includes protections to limit information from
inappropriate use or disclosure.
Customs-specific integrity measures
Measures contained in the Bill will also increase the collection and use of personal
information within Customs and Border Protection's workplace, such as: results from
mandatory drug and alcohol testing, mandatory disclosure of personal information, the
compulsory physical intervention of a person for testing purposes. These measures do not
limit the obligations of Customs and Border Protection under the Privacy Act 1988 and the
Information Privacy Principles in general. Customs and Border Protection will continue to
adhere to the safeguards aligned to the eleven Information Privacy Principles and thereby
meet the requirements of the ICCPR to ensure no unlawful interference with privacy, honour
or reputation occurs.
The interferences with the right to privacy contained in this Bill are proportionate to the need
to protect against corruption in law enforcement.
Right to an effective remedy
The right to an effective remedy is protected in Article 2(3) (a) of the ICCPR. The Bill
proposes a new power whereby the Customs and Border Protection CEO may issue a written
declaration of serious misconduct, which then removes the right of a terminated Customs and
Border Protection employee seeking remedy (in relation to their dismissal) through the Fair
Work Act 2009.
While Article 2(3)(a) of the IPCCR is based on the premise that any person, who has their
rights or freedoms violated, shall have an effective remedy, Article 2(3)(b) qualifies this right
more prescriptively. Article 2(3)(b) states that the right shall be `...determined by competent
6
judicial, administrative or legislative authorities, or by any competent authority provided for
by the legal system of the state and to develop the possibilities of judicial remedy.' This
proposed Bill does not restrict the right of a Customs and Border Protection worker seeking
redress through the Administrative Decisions (Judicial Review) Act 1977. The CEO's written
declaration of serious misconduct will be a reviewable decision under this Act. Customs and
Border Protection workers are therefore provided an avenue to develop the possibilities of
judicial remedy to their dismissal.
Right to freedom of assembly and association
The right to freedom of assembly and association is protected within Article 22 of the
ICCPR. This Bill will allow for the introduction of mandatory reporting requirements which
would require Customs and Border Protection workers to report issues including any
association or group that facilitated activities contributing to serious misconduct or
corruption. The Bill may discourage Customs and Border Protection staff from joining or
associating with an organisation, such as an Outlaw Motorcycle Gang, that is subject to
criminal investigative scrutiny. Article 22(2) of the ICCPR specifies the legitimate aims for
which any legal restriction on this right must pursue. These include restrictions which are
provided for by law or necessary for the interests of national security, public safety, public
order, the protection of public health or morals, or the protection of the rights and freedoms
of others.
Given the importance of ensuring that Australia's law enforcement is resilient to corruption
and that the border is strengthened as a result of these measures, the mandatory reporting
requirements of this Bill satisfy the national security, public safety and public interest tests,
ensuring that the legitimate legal restrictions of ICCPR 22(2) are met.
Right to security of the person and freedom from arbitrary detention
This Bill may require Customs and Border Protection authorised officers to control
movement of workers within a specified area, for the purpose of conducting mandatory
testing. The right to liberty and security of the person is contained within Article 9 of the
ICCPR. The Bill contains limitations on the permitted purposes of authorised officer
directions, ensuring that the directions are for prescribed purposes and that the worker is
aware of the reasoning behind it.
Significantly, the Bill does not prohibit the redress of any worker, in support of this right.
Within Australia, the worker can take proceedings before a civil court. This is consistent with
the intent of Article 9(4) of the ICCPR - the entitlement (of an individual) to take
proceedings before a court, to determine the lawfulness of a direction.
Fair trial and fair hearing rights and minimum guarantees in criminal proceedings
Article 14 of the ICCPR protects the right to a fair trial or hearing, while also ensuring
minimum guarantees in criminal proceedings for defendants. This Bill proposes that the
Customs and Border Protection CEO be given the power to compel a worker to answer
directed questions. The Bill may therefore affect the law of evidence governing the
examination of witnesses, including the creation of special procedures for witnesses to give
that evidence. Under this Bill, a Customs worker may be directed to provide answers which
7
are potentially self-incriminatory in nature and/or provide information that progresses an
investigation against a third party (another individual, individuals, group or association).
This Bill also provides safeguards that protect the right of workers against self-incrimination,
by preventing any of the self-incriminating evidence being used in criminal proceedings. It
does not limit, however, the CEO's power to determine the value of the information provided
in assessing the worker's suitability in order to make a declaration that the termination of an
employee was for serious misconduct. This would satisfy a public interest and confidence in
law enforcement test.
Also, should the information disclosed by a worker be used in a criminal proceeding against a
third party, this Bill still provides for a `rebuttable presumption'. This means that the person
against whom the presumption applies may present evidence to the contrary, which then has
the effect of nullifying the presumption. As a result, a court can still take a `case by case'
approach to determining the effects of any disclosure, coupled with an examination of the
facts and circumstances that are peculiar to individual cases and a public interest test.
Accordingly the right to a fair trial including any defendant's right to present an effective
defence (minimum guarantees in criminal proceedings), will not be prejudiced by the Bill.
Overall, there will be specific safeguards built into the Bill to limit its purpose to only that
which is necessary to give effect to appropriate law enforcement policy. All limitations are
reasonable, necessary and proportionate.
Conclusion
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in the definition of human rights in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
8
LAW ENFORCEMENT INTEGRITY LEGISLATION AMENDMENT
BILL 2012
NOTES ON CLAUSES
Clause 1:
1. This clause provides that when the Bill is enacted, it is to be cited as the Law
Enforcement Integrity Legislation Amendment Act 2012.
Clause 2:
2. This clause sets out when various parts of the Act are to commence.
Clause 3:
3. This is a formal clause that enables the Schedules to amend Acts by including
amendments under the title of the relevant Act.
9
Schedule 1 - Integrity testing and expansion of coverage by ACLEI
Part 1 of Schedule 1 will introduce a legislative regime to support the introduction of targeted
integrity testing for officers of the Australian Federal Police (AFP), Australian Crime
Commission (ACC) and the Australian Customs and Border Protection Service (Customs and
Border Protection).
Integrity tests are operations designed to test whether a public official will respond to a
simulated or controlled situation in a manner that is illegal or would contravene an agency's
standard of integrity. For example, a test may involve the insertion of false information into a
database to test whether an official, acting corruptly, may seek to unlawfully disclose that
information to organised crime figures. Integrity testing is currently conducted in a range of
State and Territory law enforcement agencies, however it is not currently conducted in any
Commonwealth law enforcement agencies.
The Parliamentary Joint Committee on the Australian Commission for Law Enforcement
Integrity, in the report on its inquiry into integrity testing, recommended that integrity testing
be introduced to the AFP, ACC and Customs and Border Protection. The Committee
recommended that testing should be targeted at officers suspected of corrupt conduct and that
the heads of these agencies, and the Integrity Commissioner, should be able to authorise
testing. The Committee also recommended that relevant legislation be amended, if
necessary, to allow agencies to use covert policing powers when conducting integrity testing.
The amendments included in this Schedule will give effect to the recommendations of the
Committee. The amendments will ensure all staff members of the AFP, ACC and Customs
who can currently be subject to an investigation by the Integrity Commissioner will be
subject to integrity testing. This includes employees of these agencies, and, in the case of the
AFP and ACC, contractors and secondees.
Before authorising an integrity test, the authorising officer must be satisfied that there are
reasonable grounds to suspect that a staff member has committed, or may commit, an offence
punishable by 12 months' imprisonment or more, as well as being satisfied that it is
appropriate in all the circumstances to conduct the test. This will ensure that integrity testing
will be targeted towards serious wrongdoing, rather than conducted `at random'.
Amendments will also be made to the controlled operations provisions in the Crimes Act
1914 (in Part 1 of this Schedule) and to the Telecommunications (Interception and Access
Act) 1979 and Surveillance Devices Act 2004 (in Part 3 of this Schedule) to support the
conduct of integrity tests.
In addition to the criteria that must be satisfied before an integrity test can be authorised,
there will also be strict rules about the use and disclosure of information obtained during
integrity testing. Use of that information in criminal and disciplinary proceedings will be
permitted, while unauthorised disclosure will be an offence punishable by two years'
imprisonment, recognising the consequences that can follow by the disclosure of the fact an
integrity test has occurred.
Agencies will be required to report to the Minister each year on the number and nature of
integrity tests undertaken. Agencies will also be required to notify the Integrity
Commissioner when an integrity test is authorised. Where the tests relate to a corruption
10
issue, the Integrity Commissioner will have the same level of oversight as the Commissioner
currently exercises in relation to corruption investigations.
Part 2 of Schedule 1 will amend the Law Enforcement Integrity Commissioner Act 2006 (the
LEIC Act) to expand the jurisdiction of the Australian Commission for Law Enforcement
Integrity (ACLEI).
The Integrity Commissioner, supported by ACLEI is responsible for preventing, detecting
and investigating serious and systemic corruption issues in the Australian Crime Commission
(ACC), the Australian Customs and Border Protection Service (Customs and Border
Protection) and the Australian Federal Police (AFP). The LEIC Act provides ACLEI with a
range of enforcement powers to assist its investigations.
The expansion of ACLEI's jurisdiction to include additional law enforcement agencies was
recommended by the Parliamentary Joint Committee on ACLEI following its Inquiry into the
Operation of the Law Enforcement Integrity Commissioner Act 2006.
The amendments in this Schedule will to extend the jurisdiction of the Integrity
Commissioner to include all staff in the Australian Transaction Reports and Analysis Centre
(AUSTRAC) and the CrimTrac Agency, and to certain staff of the Department of
Agriculture, Fisheries and Forestry. Staff in these agencies have been identified as being
subject to a higher potential risk of infiltration by organised crime due to the nature of their
functions and responsibilities.
Part 3 of Schedule 1 contains amendments to the Australian Crime Commission Act 2002
(ACC Act), Telecommunications (Interception and Access Act 1979 (TIA Act) and
Surveillance Devices Act 2004 (SD Act), to support the operation of integrity testing.
The amendments to the ACC Act will make clear that the ACC staff are able to participate in
integrity testing operations, including by assisting other agencies in the conduct of integrity
testing operations.
The amendments to the TIA Act will allow existing telecommunications information and
existing stored communications accessed under the TIA Act to be communicated and used
for integrity testing purposes by AFP, ACC and ACLEI. Existing intercepted information
will be permitted to be communicated to and used by Customs in limited circumstances.
The amendments to the SD Act will allow an AFP, ACC or ACLEI officer to apply to an
eligible judge or nominated AAT member for a surveillance device warrant to record,
monitor an integrity testing operation using a surveillance device. This will be subject to
existing reporting and oversight requirements contained in the SD Act.
Part 1 - Integrity testing
Crimes Act 1914
Items 1 to 8 - section 15GC (definitions).
Section 15GC defines the terms associated with the controlled operations regime set out in
Part IAB of the Crimes Act.
11
Items 1-3 will fix a technical error with existing definitions of `ACC authorising officer',
`ACLEI authorising officer' and `AFP authorising officer' to ensure that cross-references to
the more extensive definitions of these terms in later sections of Part IAB are correct.
Item 4 will insert a definition of `disciplinary or legal action' which will include action in
respect of alleged misconduct and termination action in relation to a staff member, This
definition will be used in provisions authorising disclosure of integrity testing and controlled
operations information.
Items 5-8 will insert definitions associated with the new integrity testing regime into
section 15GC. The key definitions are as follows:
integrity testing authority - item 5 defines `integrity testing authority' to mean an authority
granted under the new Part IABA. The authority will be the document or communication
issued by an authorising officer that authorises the integrity testing operation.
integrity testing controlled operation authority - item 6 defines `integrity testing controlled
operation authority' to mean an authority granted under section 15GI on the basis of the grant
of an integrity testing authority. The authority will be the document or communication issued
by an authorising officer that authorises the integrity testing controlled operation and any
conduct that, in the absence of the authority, would be unlawful.
staff member - item 7 defines `staff member' of a target agency as having the same meaning
in relation to that agency as in the Law Enforcement Integrity Commissioner Act 2006. The
Law Enforcement Integrity Commissioner Act 2006, at subsections 10(1) to 10(3), outlines
who is considered to be a staff member of the AFP, ACC and Customs for the purposes of a
corruption investigation by the Integrity Commissioner. These definitions will be used for
the purposes of identifying who might be targeted by a controlled operation to ensure that the
Integrity Commissioner can conduct an integrity testing controlled operation to support all
corruption investigations (other than where the corruption issue involves an ACLEI staff
member).
target agency - item 8 defines `target agency' as the ACC, AFP or Customs and Border
Protection. Only staff members of these target agencies may be the subject of an integrity
testing controlled operation authority. This item will define those target agencies to enable
an integrity testing controlled operation to be conducted in relation to their staff members.
As under the existing legislation, only an ACC, ACLEI or AFP authorising officer (as
defined in section 15GC) will be able to authorise an integrity testing controlled operation on
staff members of target agencies.
Items 9 and 10 - section 15GI (determinations of applications)
Section 15GI provides that an authorising officer must not authorise a controlled operation
unless he or she is satisfied, on reasonable grounds, of a number of specified matters. The
amendment to paragraph 15GI(2)(a) will allow an authorising officer to authorise a controlled
operation where an integrity testing authority is in effect in relation to an offence that it is
suspected has been, is being or is likely to be committed by a staff member of a target
agency. The new notes to this subsection will make it clear that the offence referred to is one
punishable by imprisonment of 12 months or more that has been, is being or is likely to be
committed by a staff member of the ACC, AFP or Customs.
12
Under existing paragraph 15GI(2)(a), an authority to conduct a controlled operation may only
be granted where an authorising officer is satisfied on reasonable grounds that a serious
Commonwealth offence or a serious State offence with a federal aspect has been, or is likely
to be, committed. A serious Commonwealth offence is defined in subsection 15GE(1) as
offence that involves a matter prescribed in subsection 15GE(2) and which is punishable by
conviction for a period of three years or more. Subsection 15GE(4) defines a serious State
offence with a federal aspect as one that would be a serious Commonwealth offence if it were
a Commonwealth offence.
As the legislation currently stands, a controlled operation authorisation could not be granted
for the purpose of an integrity testing operation unless the threshold in paragraph 15GI(2)(a)
was met. Importantly, the current threshold would not cover key corruption offences such as
unauthorised disclosure offences, which have maximum penalties of less than three years
imprisonment, and would not allow the authorisation of a controlled operation where an AFP,
ACC or Customs staff member is suspected to have committed, or be likely to commit, a
State or Territory offence. The amendments to paragraph 15GI(2)(a) will ensure that a
controlled operation can be authorised under section 15GI for the purposes of an integrity
testing operation where there are reasonable grounds to suspect that a Commonwealth, State
or Territory offence punishable by imprisonment for 12 months or more has been, or is likely
to be, committed by a target agency staff member.
Item 11 - section 15GK (form of authority)
Section 15GK sets out the details that must be included in a controlled operation authority.
Subsection 15GK(1) sets out the details to be included in a formal authority and subsection
15GK(2) sets out the details to be included in an urgent authority. These requirements are
designed to ensure that the authority provides comprehensive information about the planned
operation. The following information will be required to be included in both formal and
urgent authorities under the new subsections.
· The nature of the criminal activity (including the relevant suspected offences) in
respect of which the controlled conduct is to be engaged in. Under the existing
paragraphs 15GK(1)(d) and (2)(d), the nature of the criminal activity is limited to
suspected serious Commonwealth offences and State offences with a federal aspect.
This paragraph will be amended to recognise that an integrity testing controlled
operation may be authorised where the authorising officer has reasonable grounds to
suspect that any Commonwealth, State or Territory offence has been or is likely to be
committed.
· In the case of an integrity testing controlled operation authority, the integrity testing
authority concerned. This will enable the integrity testing authority which justified
the integrity testing controlled operations authority to be readily identified.
Items 12 and 13 - section 15GN (commencement and duration of authorities)
Section 15GN sets out when an authority to conduct a controlled operation commences and
expires.
New paragraph 15GN(3)(c) will provide that an integrity testing controlled operation
authority has effect for the period set out in paragraph 15GK(1)(h) or (2)(h) (that is, the
13
period of effect stated in the controlled operation authority, being a period not exceeding
three months) unless the integrity testing authority concerned stops being in effect under Part
IABA.
New subsection 15GN(4) will provide that an integrity testing controlled operation authority
will expire at the time the integrity testing authority which underlies the integrity testing
controlled operations authority (the earlier ITA) stops being in effect under Part IABA. This
provision will not apply if another integrity testing authority (the later ITA) is granted under
Part IABA which continues the effect of the earlier ITA, as long as the later ITA has effect
immediately after the earlier ITA expires.
These new provisions will ensure that a controlled operation authority does not stay in effect
beyond the duration of the associated integrity testing authority which justified its
authorisation.
Items 14 and 15 - section 15GQ (determination of application to vary authority)
Section 15GQ sets out when an authorising officer may vary an authority to conduct a
controlled operation. The amendment to paragraph 15GQ(2)(a) will allow an authorising
officer to vary a controlled operation where an integrity testing authority is in effect in
relation to an offence that it is suspected has been, is being or is likely to be committed by a
staff member of a target agency. The new notes to this subsection will make it clear that the
offence referred to is one punishable by imprisonment of 12 months or more that has been, is
being or is likely to be committed by a staff member of the ACC, AFP or Customs.
Under the existing paragraph 15GQ(2)(a), an authority to conduct a controlled operation
cannot be varied by an authorising officer unless the authorising officer is satisfied on
reasonable grounds that a serious Commonwealth offence or a serious State offence with a
federal aspect has been, or is likely to be, committed. A serious Commonwealth offence is
defined in subsection 15GE(1) as an offence that involves a matter prescribed in subsection
15GE(2) and which is punishable by conviction for a period of three years or more.
Subsection 15GE(4) defines a serious State offence with a federal aspect as one that would be
a serious Commonwealth offence if it were a Commonwealth offence.
As the legislation currently stands, a controlled operation authority could not be varied by an
authorising officer for the purpose of an integrity testing operation unless the threshold in
paragraph 15GQ(2)(a) was met. Importantly, the current threshold would not cover key
corruption offences such as unauthorised disclosure offences, which have maximum penalties
of less than three years' imprisonment, and would not allow the variation of a controlled
operation authority where an AFP, ACC or Customs staff member is suspected to have
committed, or be likely to commit, a State or Territory offence. The amendments to
paragraph 15GQ(2)(a) will ensure that controlled operation authority can be varied by an
authorising officer under section 15GQ for the purposes of an integrity testing operation
where there are reasonable grounds to suspect that a Commonwealth, State or Territory
offence punishable by imprisonment for 12 months or more has been, or is likely to be,
committed by a staff member of the ACC, AFP or Customs.
14
Items 16 and 17 - section 15GV (variation of authorities by nominated Tribunal member:
extensions beyond 3 months)
Section 15GV sets out when a nominated tribunal member may vary an authority to conduct
a controlled operation. Under section 15GT, a nominated tribunal member is the only person
able to vary an authority to extend the period of effect of that authority beyond three months.
The amendment to paragraph 15GV(2)(a) will allow a nominated tribunal member to vary a
controlled operation authority where an integrity testing authority is in effect in relation to an
offence that it is suspected has been, is being or is likely to be committed by a staff member
of a target agency. The new notes to this subsection will make it clear that the offence
referred to is one punishable by imprisonment of 12 months or more that has been, is being or
is likely to be committed by a staff member of the ACC, AFP or Customs.
Currently, under paragraph 15GV(2)(a), a controlled operation authority cannot be varied by
a nominated tribunal member unless the nominated tribunal member is satisfied on
reasonable grounds that a serious Commonwealth offence or a serious State offence with a
federal aspect has been, or is likely to be, committed. A serious Commonwealth offence is
defined in subsection 15GE(1) as offence that involves a matter prescribed in subsection
15GE(2) and which is punishable by conviction for a period of three years or more.
Subsection 15GE(4) defines a serious State offence with a federal aspect as one that would be
a serious Commonwealth offence if it were a Commonwealth offence.
As the legislation currently stands, a controlled operation authority could not be varied by an
nominated tribunal member for the purpose of an integrity testing operation unless the
threshold in paragraph 15GV(2)(a) was met. Importantly, the current threshold would not
cover key corruption offences such as unauthorised disclosure offences, which have
maximum penalties of less than three years' imprisonment, and would not allow the variation
of a controlled operation authority where an AFP, ACC or Customs officer is suspected to
have committed, or be likely to commit, a State or Territory offence. The amendments to
paragraph 15GV(2)(a) will ensure that a controlled operation authority can be varied by a
nominated tribunal member under section 15GV for the purposes of an integrity testing
operation where there are reasonable grounds to suspect that a Commonwealth, State or
Territory offence punishable by imprisonment for 12 months or more has been, or is likely to
be, committed by a staff member of the ACC, AFP or Customs.
Item 18 - section 15HD (effect of being unaware of variation or cancellation of an
authority)
Under new subsections 15GN(3)(c) and (4), an integrity testing controlled operation authority
stops being in effect at the same time the related integrity testing authority stops being in
effect under new Part IABA. Under new section 15JJ, an integrity testing authority stops
being in effect on the date stated in the authority or variation or when cancelled under new
section 15JL.
New subsection 15HD(2A) will ensure that if an integrity testing controlled operation
authority stops being in effect, but a participant in the controlled operation is unaware of that
fact (and is not reckless about the fact that the authority has stopped being in effect), then he
or she is still protected from criminal liability under sections 15HA and 15HB, as if the
integrity testing controlled operation authority were still in effect.
15
This provision will also ensure that evidence collected by the participant will continue to be
protected against exclusion (under section 15GA) for as long as the participant is unaware of
the variation or cancellation and is not reckless as to the existence of the variation or
cancellation.
It is incumbent on participants in an integrity testing controlled operation to be aware of the
start and end dates of the initial authority to conduct the operation. However, as decisions
relating to authorities can be made without the knowledge of participants, it is necessary to
include limited protection for activities that are undertaken after an authority has stopped
being in effect, especially in situations where it may be difficult for the participant to contact
the principal law enforcement officer.
This provision will require participants to take necessary steps to determine whether an
authority is still in effect. This position is consistent with existing protections in section
15HD.
Items 19 to 23 - section 15HK (unauthorised disclosure of information)
It is an offence under subsection 15HK(1) for a person to disclose information relating to a
controlled operation. A person will be guilty of this offence if he or she intentionally
discloses any relevant information and knows that, or is reckless as to whether, the
information related to a controlled operation.
However, the disclosure of information relating to a controlled operation is not an offence if
the disclosure was of a kind authorised by subsection 15HK(2) or subsection 15HK(3).
Item 19 will insert a new heading above subsection 15HK(2) to make it clear that the
exceptions outlined in that subsection apply generally to disclosures relating to any controlled
operation.
Item 21 will insert new subsection 15HK(2A) to create specific exceptions for disclosures
relating to integrity testing controlled operations. Under this subsection, the offence in
subsection (1) will not apply if the disclosure was made:
· in any of the circumstances where a general exception applies under paragraphs
15HK(2)(a) to (e)
· in connection with the execution or administration of Part IABA of the Crimes Act or the
Law Enforcement Integrity Commissioner Act 2006
· for the purposes of the any disciplinary or legal action, if arising out of or otherwise
related to a controlled operation, or
· for a disclosure relating to an integrity testing authority to an authority of the
Commonwealth, a State or Territory, if the disclosure related to the misconduct of an
employee or officer of that authority.
Item 22 will amend the exception in paragraph 15HK(3)(c) so that the offence in subsection
15HK(1) will not apply if the information disclosed concerns a corruption issue within the
16
meaning of the Law Enforcement Integrity Commissioner Act 2006 or misconduct in relation
to a controlled operation.
These new and amended exceptions will allow information gathered in the course of an
integrity testing controlled operation to be used in relevant legal, misconduct and disciplinary
proceedings, including termination proceedings. Specifically authorising the disclosure of
information in circumstances where a controlled operation has taken place in support of an
integrity test will allow evidence gathered during an integrity testing controlled operation to
be used to take appropriate action against officers found to have engaged in misconduct or
corrupt conduct.
As is the case with the existing exceptions in section 15HK, the person who disclosed the
information will need to prove that these factors exist. This is consistent with the
Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge
of the defendant and it is significantly more difficult for the prosecution to disprove that
matter than for the defendant to establish it, it is appropriate to require the defendant to
adduce evidence on the matter. In this case, the `standard evidential burden' defence is used,
meaning that the defendant bears the burden of adducing, or pointing to, evidence that
suggests a reasonable possibility that the defence is made out. If this is done, the prosecution
must refute the defence beyond reasonable doubt.
Item 24 - 28 - section 15HL (unauthorised disclosure of information - endangering safety
etc)
Section 15HL creates an aggravated form of the offence in subsection 15HK(1). As will be
the case under item 19, item 24 will insert a new heading above subsection 15HL(2) to make
it clear that the exceptions to the aggravated offence outlined in that subsection apply
generally to disclosures relating to any controlled operation.
Item 26 will insert new subsection 15HL(2A) to create specific exceptions for disclosures
relating to integrity testing controlled operations. Under this subsection, the offence in
subsection 15HL(1) will not apply if the disclosure was made:
· in any of the circumstances where a general exception applies under paragraphs
15HL(2)(a) to (e)
· in connection with the execution or administration of Part IABA of the Crimes Act or the
Law Enforcement Integrity Commissioner Act 2006
· for the purposes of the any disciplinary or legal action, if arising out of or otherwise
related to a controlled operation, or
· for a disclosure relating to an integrity testing authority to an authority of the
Commonwealth, a State or Territory, if the disclosure related to the misconduct of an
employee or officer of that authority.
Item 27 will amend the exception in paragraph 15HL(3)(c) so that the offence in subsection
15HL(1) will not apply if the information disclosed concerns a corruption issue within the
meaning of the Law Enforcement Integrity Commissioner Act 2006 or misconduct in relation
to a controlled operation.
17
These new and amended exceptions will allow information gathered in the course of an
integrity testing controlled operation to be used in relevant legal, misconduct and disciplinary
proceedings, including termination proceedings. Specifically authorising the disclosure of
information in circumstances where a controlled operation has taken place in support of an
integrity test will allow evidence gathered during an integrity testing controlled operation to
be used to take appropriate action against officers found to have engaged in misconduct or
corrupt conduct.
As is the case with the existing exceptions in section 15HL, the person who disclosed the
information will need to prove that these factors exist. This is consistent with the
Commonwealth criminal law policy that, where a matter is peculiarly within the knowledge
of the defendant and it is significantly more difficult for the prosecution to disprove that
matter than for the defendant to establish it, it is appropriate to require the defendant to
adduce evidence on the matter. In this case, the `standard evidential burden' defence is used,
meaning that the defendant bears the burden of adducing, or pointing to, evidence that
suggests a reasonable possibility that the defence is made out. If this is done, the prosecution
must refute the defence beyond reasonable doubt.
Item 29 - After Part IAB
Item 29 will insert into the Crimes Act a new Part IABA, which will provide the legislative
basis for the authorisation, conduct and reporting of integrity testing.
Division 1--Introduction
15JA Integrity testing--simplified outline
Section 15JA will provide a simplified outline of Part IAB, to assist readers.
15JB Integrity testing--concurrent operation of State and Territory laws
Section 15JB will provide that this new Part IABA of the Crimes Act is not to apply to the
exclusion of a law of a State or Territory to the extent that the State or Territory law is
capable of operating concurrently with this Part. This is important to enable cross-recognition
of State and Territory integrity testing laws and ensure that States and Territories are able to
independently conduct their own integrity testing operations.
15JC Integrity testing--definitions
Section 15JC will define terms associated with the new integrity testing operations regime.
The key definitions will be:
appropriate authorising officer - this term will have the meaning given by new section 15JE
which will set out which officers in the AFP, ACC, Customs and Border Protection and
ACLEI, and in which circumstances, are able to authorise an integrity testing operation.
integrity testing agency - this means any of the ACC, ACLEI, AFP and Customs and Border
Protection. Only these agencies will be able to authorise an integrity testing operation.
integrity testing authority - will mean an authority granted under new section 15JG which
enables an integrity testing operation to be conducted.
18
responsible staff member - means the staff member identified in the integrity testing
authority as the staff member responsible for the conduct of the integrity testing operation.
target agency - this means any of the ACC, AFP or Customs and Border Protection. Only
staff members of these agencies can be the targets of an integrity testing operation.
15JD Integrity testing--meaning of integrity testing operation
Section 15JD will provide the definition of an integrity testing operation. An integrity testing
operation will be defined as an operation using controlled or simulated situations to test the
integrity of a staff member of the agency. This provision clarifies that the purpose of
conducting an integrity testing operation should be to test whether the staff member responds
to the controlled or simulated situation in a way that is consistent with the relevant agency's
standards of integrity, or in a way that is corrupt or otherwise illegal.
Division 2--Integrity testing operations: authority
15JE Integrity testing authorities--circumstances in which applications may be made
Subsection 15JE(1) sets out the various circumstances in which an application for an integrity
testing authority can be made, and in each set of circumstances who is able to authorise an
integrity testing authority. The process of applying for an integrity testing authority is set out
in new section 15JF and the process for authorising is set out in section 15JG.
Item 1 of the table states that if the proposed operation is concerned with the integrity of a
staff member of the ACC, an integrity testing authority can be applied for by a staff member
of the ACC. The application can be considered by the CEO of the ACC, or an SES employee
of the ACC who has been authorised in writing by the CEO to perform this function.
Item 2 of the table states that if the proposed operation is concerned with the integrity of a
staff member of the AFP, an integrity testing authority can be applied for by a staff member
of the AFP. The application can be considered by the Commissioner of the AFP, a Deputy
Commissioner, or an SES employee of the AFP who has been authorised in writing by the
Commissioner to perform this function.
Item 3 of the table states that if the proposed operation is concerned with the integrity of a
staff member of Customs and Border Protection, an integrity testing authority can be applied
for by a staff member of Customs and Border Protection. The application can be considered
by the CEO of Customs and Border Protection, or an SES employee of Customs and Border
Protection who has been authorised in writing by the CEO to perform this function.
Item 4 of the table states that if the proposed operation is concerned with a `corruption issue'
(as the term is defined in section 7 of the LEIC Act) which relates to a staff member of any
target agency, an integrity testing authority can be applied for by either a staff member of the
target agency, or a staff member of ACLEI. The application can be considered by the
Integrity Commissioner, an Assistant Integrity Commissioner or an SES employee of ACLEI
authorised in writing by the Integrity Commissioner to perform this function.
Item 4 is intended to allow the Integrity Commissioner to authorise integrity testing
operations to support an investigation into a corruption issue. It is not intended to limit the
ability of the heads of ACC, AFP and Customs and Border Protection to use integrity testing
19
operations to investigate corruption issues in their own agencies. Subsection 15JE(2)
clarifies this intention.
15JF Integrity testing authorities--application
Subsection 15JF(1) will set out the information that all applications for integrity testing
authorities must include. Applications will be required to be in writing and provide sufficient
information to enable the authorising officer to decide whether or not to authorise the
proposed integrity testing operation. Applications will also be required to specify the
proposed duration of the operation, and provide details of any previous applications that have
been made, or authorities that have been granted, in respect of the proposed operation either
for integrity testing operations or controlled operations under Part IAB. The proposed
duration of the authority must not exceed 12 months. Twelve months is considered an
appropriate time limit given the amount of preparatory work which may be required to
conduct an integrity testing operation. Section 15JK will allow for an extension to an
integrity testing authority, for a total period of no more than 24 months (which is the same as
the total period for which a controlled operation may be authorised).
Subsection 15JF(2) will provide that an authorising officer may ask the applicant to provide
further information about the proposed controlled operation, where this is required for a
proper consideration of the application.
15JG Integrity testing authorities--grant
Subsection 15JG(1) will provide that the appropriate authorising officer may, after
considering the application for authority and any additional information, decide to authorise
the integrity testing operation or refuse the application.
Subsection 15JG(2) will provide that the authorising officer must not grant an integrity
testing authorisation unless he or she is satisfied that all of the following conditions have
been met:
· There are reasonable grounds to suspect that an offence, punishable by imprisonment
by 12 months or more, has been, is being, or is likely to be committed by a staff
member of the target agency. It will not be required that the identity of the staff
member be known. This is to ensure that integrity testing will be available where
there is suspected misconduct or corruption in a particular work area, and integrity
testing may be of assistance in identifying the person responsible for the misconduct.
· That it is appropriate in all the circumstances to conduct the operation. There may be
other information available to the decision maker that suggests that an integrity testing
operation may not be the most appropriate means to conduct an investigation of the
suspected criminal activity. This provision will ensure that the decision maker is able
to take this information into account in making a decision.
· In cases where the authorising officer is an officer of ACLEI, that the purpose of the
operation is to investigate a `corruption issue' (as defined in section 7 of the LEIC
Act). ACLEI's role is to investigate the most significant instances of suspected
20
corruption in Commonwealth law enforcement agencies. This provision will ensure
that ACLEI is only involved in integrity testing that involves suspected corrupt
conduct.
Subsection 15JG(3) will clarify that an authorising officer may grant an authority for an
integrity testing operation even if the operation has been the subject of a previous application
or has previously been authorised. This will provide agencies the flexibility to reopen
investigations where new information comes to their attention.
Subsection 15JG(4) will clarify that an authority to conduct an integrity testing operation
granted under this section is not a legislative instrument. A `legislative instrument' is defined
at section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument
is a written document that is of a legislative character and that is made in the exercise of a
power designated by Parliament. Requirements relating to registering, tabling, scrutinising
and sunsetting all Commonwealth legislative instruments are imposed under the Legislative
Instruments Act. Subsection 15JG(4) has been included to assist readers of the Crimes Act, so
that they are aware that the requirements imposed by the Legislative Instruments Act do not
apply to authorities issued under this section.
15JH Integrity testing authorities--form
Section 15JH will set out the details that must be included in an integrity testing authority.
The following information will be required to be included:
· the name and rank or position of the appropriate authorising officer (paragraphs
15JH(1)(a))
· the responsible staff member for the integrity testing operation - as defined at section
15JC, this will be the law enforcement officer who is responsible for the conduct of
the operation (paragraphs 15JH(1)(b))
· the nature of the criminal activity (including the suspected offence in respect of which
the operation is to be conducted (paragraphs 15JH(1)(c))
· the identity of the individual people authorised to participate in the integrity testing
operation (paragraph 15JH(1)(d)). Subsection 15JH(2) will provide that a person may
be identified by an assumed name, or a code name or number, provided that the
authorising officer can match this name or number to the person's real identity. This
will provide protection for a person who is participating in an integrity testing
operation, as their life may be at risk if the persons targeted by the operation, or
persons associated with the persons targeted, discovered that the person was
conducting or assisting an investigation into their criminal activity
· a description of the nature of the integrity testing operation (paragraph 15JH(1)(e))
· the staff member or staff members who are the target of the operation, to the extent
that this is known (paragraph 15JH(1)(f))
· the period of effect of the authority (paragraph 15JH(1)(g)) - this will not be able to
exceed 12 months (but can be extended by variation up to 24 months)
· any other conditions to which the authority is subject (paragraph 15JH(1)(h))
21
· the date and time at which the authority is granted (paragraph 15JH(1)(i).
15JI Integrity testing authorities--notice to Integrity Commissioner
Section 15JI will require an authorising officer (as defined in 15JE) to provide a copy of the
integrity testing authority to the responsible staff member for the operation and to the
Integrity Commissioner as soon as practicable after granting the authority.
The responsible staff member for the operation (defined at section 15JC) is the staff member
of the relevant agency responsible for the conduct of the operation.
The provision of the authority to the Integrity Commissioner will enable the Integrity
Commissioner to have oversight of integrity testing activity occurring in agencies within
ACLEI's jurisdiction. This will complement existing provisions in Part 4 of the LEIC Act,
which provides for the Integrity Commissioner to have oversight generally of the
investigation of corruption issues within these agencies. In particular, the LEIC Act requires
agency heads to notify the Integrity Commissioner of corruption issues, and provides that the
Integrity Commissioner may decide to investigate a corruption issue or direct that the head of
a law enforcement agency is not to investigate a corruption issue.
Where the integrity testing authorisation is granted by an officer of ACLEI, the requirement
to notify the Integrity Commissioner will not apply.
15JJ Integrity testing authorities--duration
Section 15JJ will set out when an authority to conduct an integrity testing operation
commences and expires.
Subsection 15JJ(1) will provide that the authority is taken to come into effect at the time it is
granted under section 15JG.
Subsection 15JJ(2) will provide that the authority will have effect for the period specified in
the authority, unless it is cancelled before the end of that period (under section 15JL) or
extended under section 15JK. In the event that it is extended it ceases to have effect once the
final period of extension is completed.
15JK Integrity testing authorities--variation
Section 15JK will set out when an integrity testing authority may be varied by an appropriate
authorising officer. A variation may be necessary for a range of reasons, including to change
the personnel involved in an integrity testing operation, or to change the responsible staff
member, or to extend the period of the operation.
Subsection 15JK(1) will provide that a variation may be made by an appropriate authorising
officer on his or her own initiative, or on application by the responsible staff member.
Subsection 15JK(2) will provide that a variation may extend the operation by up to
12 months, but not so that the total period of the authority is greater than 24 months.
22
Subsection 15JK(3) will require notice of the variation to be provided to the Integrity
Commissioner, and the responsible staff member for the operation.
Subsection 15JK(4) clarifies that subsection 33(3) of the Acts Interpretation Act 1901 applies
in relation to the variation of an integrity testing operation authority. Subsection 33(3) of the
Acts Interpretation Act provides that where an Act confers a power to grant an instrument the
power shall be construed as including a power exercisable in the like manner and subject to
the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
This means that the power to vary an authority under section 15JK is subject to the same
conditions as the power to grant an authority under new section 15JG.
Subsection 15JK(5) will clarify that a variation of an integrity testing operation authority
made under this section is not a legislative instrument. A `legislative instrument' is defined at
section 5 of the Legislative Instruments Act 2003. In general terms, a legislative instrument is
a written document that is of a legislative character and that is made in the exercise of a
power designated by Parliament. Requirements relating to registering, tabling, scrutinising
and sunsetting all Commonwealth legislative instruments are imposed under the Legislative
Instruments Act. Subsection 15JK(5) has been included to assist readers of the Crimes Act, so
that they are aware that the requirements imposed by the Legislative Instruments Act do not
apply to authorities issued under this section.
15JL Integrity testing authorities--cancellation
Section 15JL will provide for the cancellation of integrity testing authorities.
Subsection 15JL(1) will provide that an appropriate authorising officer (as defined at section
15JC) may cancel an authority at any time and for any reason.
Subsection 15JL(2) will make clear than a appropriate authorising officer may cancel an
authority at the request of the responsible staff member (who will be defined at section 15JC
as the staff member responsible for the conduct of the integrity testing operation).
Subsection 15JL(3) will provide that a cancellation of an authority to conduct an integrity
testing operation takes effect from the time the cancellation is made, or at a later time
specified in the cancellation order.
15JM Integrity testing authorities--defects
Section 15JM will provide that:
· an application for an authority to conduct an integrity testing operation
· an application for a variation to an authority
· an authority,
· or a variation of an authority
are not invalidated by defects, unless the defect materially affects the application, the
authority or the variation of an authority. This provision will recognise that it would be
inefficient and unreasonable if such documents were invalidated by minor matters that relate
to form or process.
23
Division 3--Integrity testing operations: protection of participants
15JN Integrity testing operations--authorised conduct
Subsection 15JN(1) will provide that an integrity testing authority authorises a participant to
take part in the integrity testing operation, subject to any conditions in the authority issued
under new section 15JG.
Subsection 15JN(2) will clarify that a participant in an integrity testing operation who has
been authorised to engage in the operation is authorised for the period of effect of the
authority to conduct the integrity testing operation unless:
· the authority states that the person is authorised to engage in the conduct for a shorter
period
· the authority is varied (under new section 15JK) to state that the person is no longer
authorised to participate the operation, or
· the authority is cancelled (under new section 15JL) before the expiry of the period of
effect specified in the authority.
Subsection 15JN(3) will specify that the authority to participate in the operation will not be
able to be delegated to any other person.
15JO Integrity testing operations--indemnity against civil liability
Section 15JO will provide that the Commonwealth must indemnify a participant in an
authorised integrity testing operation (who may be a law enforcement officer or a civilian)
against any civil liability incurred because of conduct that the participant engages in,
provided the following requirements are met:
· the conduct is in the course of, and for the purposes of, the integrity testing operation
and in accordance with the authority to conduct the integrity testing operation
· the participant is a person identified under proposed section 15JG to participate in the
operation
· the conduct does not involve the participant intentionally inducing another person to
commit an offence that the person would not otherwise have intended to commit
· the participant does not engage in conduct that is likely to cause the death of, or
serious injury to, any person or involve the commission of a sexual offence against
any person
· if the participant is a civilian participant, he or she acts in accordance with the
instructions of a law enforcement officer, and
· any further requirements specified in the regulations.
24
15JP Integrity testing operations--participants unaware of variation or cancellation of
authority
An authority to conduct an integrity testing operation will be able to be varied under new
section 15JK or cancelled under new section 15JL. New section 15JP will provide that if an
authority is varied or cancelled, but a participant in the operation is unaware of the variation
or cancellation (and is not reckless about the existence of a variation or cancellation), then he
or she is still protected under new section 15JO, as if the variation or cancellation had not
been made.
Subsection 15JP(3) will provide that a person is reckless about the existence of a variation or
cancellation if he or she is aware of a substantial risk that the authority to conduct the
controlled operation has been cancelled or varied and, taking into account the circumstances
known to the person, it is unjustifiable for him or her to take the risk that the authority has not
been cancelled or varied.
As decisions relating to authorities can be made without the knowledge of participants, it is
necessary to include protection for activities that are undertaken after a cancellation or
variation, especially in situations where it may be difficult for the participant to contact the
responsible staff member.
Division 4--Integrity testing operations: disclosure of information
15JQ Integrity testing operations--disclosure
Section 15JQ will create an offence of disclosing information relating to an integrity testing
operation. A person will be guilty of this offence if he or she intentionally discloses any
relevant information and knows that, or is reckless as to whether, the information relates to an
authorised integrity testing operation.
However, the disclosure of information relating to an integrity testing operation will not be an
offence if the disclosure was made:
· in connection with the administration or execution of this Part IABA of the Crimes
Act
· for the purposes of obtaining legal advice in relation to the integrity testing operation
· for the purposes of disciplinary or legal action arising out of the integrity testing
operation
· in connection with the administration of the LEIC Act
· to an authority of the Commonwealth or a State or Territory, if the disclosure relates
to the misconduct of an employee of the authority
· in accordance with any requirement imposed by law
· in connection with the performance of the functions or duties of the target agency, or
· to the Integrity Commissioner if the disclosure concerns misconduct relating to an
integrity testing operation.
25
These exceptions ensure that information relating to an integrity testing operation can be used
by an agency to take appropriate disciplinary or other action based on the outcome of the
integrity test.
The person who disclosed the information will need be able to adduce evidence that these
factors exist. This is consistent with the Commonwealth criminal law policy that, where a
matter is peculiarly within the knowledge of the defendant, and it is significantly more
difficult for the prosecution to disprove that matter than for the defendant to establish it, it is
appropriate to require the defendant to adduce evidence on the matter. In this case making
the defendant bears an evidential burden and must adduce, or point out, evidence that
suggests a reasonable possibility that the defence is made out. If this is done, the prosecution
must refute the defence beyond reasonable doubt.
The maximum penalty for this offence will be two years' imprisonment. This offence will
ensure the integrity of investigations and protect targets of integrity testing operations who
are found to have behaved with integrity.
15JR Integrity testing operations--disclosure endangering safety etc.
Section 15JR will create an aggravated form of the offence that will be created by new
section 15JQ. The offence created by this section will be an indictable offence that will be
committed if a person discloses information relating to an integrity testing operation and heor
she:
· intends that the disclosure of the information will endanger the health or safety of any
person or prejudice the effective conduct of an integrity testing operation, or
· is reckless as to whether the disclosure of the information could endanger the health
or safety of any person or prejudice the effective conduct of an integrity testing
operation.
As will be the case under new section 15JQ, the disclosure will not be an offence if the
disclosure was made:
· in connection with the administration or execution of this Part IABA of the Crimes
Act
· for the purposes of obtaining legal advice in relation to the integrity testing operation
· for the purposes of disciplinary or legal action arising out of the integrity testing
operation
· in connection with the administration of the LEIC Act
· to an authority of the Commonwealth or a State or Territory, if the disclosure relates
to the misconduct of an employee of the authority
· in accordance with any requirement imposed by law
· in connection with the performance of the functions or duties of the target agency, or
· to the Integrity Commissioner if the disclosure concerns misconduct relating to an
integrity testing operation.
26
As will be the case with the non-aggravated offence under new section 15JQ, the person who
disclosed the information will need to adduce evidence that these factors exist. This is
consistent with the Commonwealth criminal law policy that, where a matter is peculiarly
within the knowledge of the defendant, and it is significantly more difficult for the
prosecution to disprove that matter than for the defendant to establish it, it is appropriate to
require the defendant to adduce evidence on the matter. In this case making the defendant
bears an evidential burden and must adduce, or point out, evidence that suggests a reasonable
possibility that the defence is made out. If this is done, the prosecution must refute the
defence beyond reasonable doubt.
The maximum penalty for this offence will be ten years' imprisonment.
Division 5--Integrity testing operations: reporting
15JS Integrity testing operations--annual reports
Section 15JS will require the chief officer of each authorising agency (that is, the AFP, the
ACC, Customs and Border Protection or ACLEI) to prepare an annual report to the Minister,
as soon as practicable after 30 June each year, on integrity testing operations authorised under
this new Part IABA.
The report will be required to contain the details set out at subsection 15HN(2) for all the
integrity testing operations authorised by the agency during the previous 12 months. This
includes:
· the number of authorities granted
· the nature of the suspected criminal activity in relation to which each authority was
granted
· the period of effect of each authority, including any extension granted, and
· if an authority was cancelled, the reasons for cancellation.
Subsection 15JS(3) will provide that the report must not disclose any information that
identifies, or is likely to identify, any person involved in the integrity testing operation. This
provision is intended to protect the identity of persons involved in the conduct of integrity
tests, and those targeted by integrity testing. In particular, as integrity testing will present the
target with an equal opportunity to either pass or fail the tests, it is important that the identity
of persons targeted not be disclosed.
Subsection 15JS(4) will provide that the report is not required to disclose any information
that gives particulars of an authorised operation that is not yet completed. Those particulars
must instead be included in the report for the year in which the operation is completed.
Division 6--Integrity testing operations: evidence
Section 15JT will enable an authority granted under new section 15JG to be tendered in
evidence in legal proceedings. Paragraph 15JT will provide that, in the absence of evidence to
27
the contrary, the authority will be proof that the person who granted the authority was
satisfied of the facts that he or she was required to be satisfied of to grant the authority.
Item 30 - Application of amendments in Part 1
This item is an application provision. It clarifies that, once these amendments have
commenced, an integrity testing authority can be granted based on circumstances which arose
before, on or after the commencement of these amendments, including the suspicion of an
offence that was committed before, on or after commencement. This will ensure that an
integrity testing authority can be granted in circumstances where the suspected misconduct
occurred prior to the commencement of these amendments, or where it is unclear precisely
when the suspected misconduct occurred.
Part 2--Expansion of coverage by ACLEI
Item 31 - Subsection 5(1)
Item 31 will define the term `Agriculture Department' to mean the Department administered
by the Minister administering the Primary Industries Levies and Charges Collection Act
1991. This is the Department of Agriculture, Fisheries and Forestry. However, as names of
Departments change from time to time, it is preferable to refer to a Department by reference
to the Minister responsible for that Department. The Minister for Agriculture, Forestry and
Fisheries is currently exclusively responsible for the administration of the Primary Industries
Levies and Charges Collection Act. Referring to DAFF in this way will ensure the legislation
is not affected by any change to the name of the Department.
Items 32 and 33 - Subsection 5(1)
These items will insert definitions of `Anti Money Laundering Act' (the Anti-Money
Laundering and Counter Terrorism Financing Act 2006) and AUSTRAC.
Item 34 - Subsection 5(1)
This item will fix a technical error in the definition of `disciplinary proceedings' contained in
subsection 5(1) of the LEIC Act. The definition currently includes a reference to
`Subdivision D of Division 5 of Part V' of the Australian Federal Police Act 1979. There is
no Subdivision D of Division 5 of Part V of the Australian Federal Police Act, and the
definition should refer to Subdivision D of Division 3 of Part V, which relates to disciplinary
proceedings. This item corrects this error.
Item 35 - Subsection 5(1) (after paragraph (ba) of the definition of head)
This item will amend the definition of `head of a government agency' in section 5 of the
LEIC Act, to include the CEOs of AUSTRAC and CrimTrac and the Secretary of DAFF.
Item 36 - Subsection 5(1) (after paragraph (ba) of the definition of law enforcement
agency)
This item will amend the definition of `law enforcement agency' in section 5 of the LEIC Act
to include AUSTRAC, CrimTrac and DAFF.
28
Item 37 - Subsection 5(1) (paragraph (a) of the definition of law enforcement secrecy
provision)
This item replaces `Anti-Money Laundering and Counter-Terrorism Financing Act 2006' in
subsection 5(1) of the LEIC Act with `Anti-Money Laundering Act'. `Anti-Money
Laundering Act' will be defined to mean the `Anti-Money Laundering and
Counter-Terrorism Financing Act 2006'.
Item 38 - After subsection 10(2A)
Section 10 of the LEIC Act defines `staff members of law enforcement agencies' for the
purposes of the Act. The Integrity Commissioner has jurisdiction to investigate corruption
issues relating to all persons identified as staff members of law enforcement agencies for the
purposes of the LEIC Act.
This amendment will define as staff members of law enforcement agencies:
· The CEO of AUSTRAC, all members of staff of AUSTRAC (as defined by section
224 of the AMLCTF Act), and consultants and secondees engaged by AUSTRAC
under section 225 of the AMLCTF Act
· The CEO of CrimTrac, all members of staff of CrimTrac, and consultants and
secondees engaged by CrimTrac,
· The Secretary of DAFF, and staff members of DAFF who belong to class of persons
prescribed by regulation for the purposes of this subsection.
This amendment will ensure the entirety of AUSTRAC and CrimTrac are within jurisdiction.
However, only those parts of DAFF which warrant the oversight of the Integrity
Commissioner will be brought within jurisdiction. As a detailed description of particular
positions will be required to capture precisely those DAFF staff within jurisdiction, this
amendment will provide a power to prescribe those staff by Regulation. It is intended that
those regulations would prescribe staff who perform functions in relation to border control
and compliance.
Item 39 - After paragraph 10(5)(ba)
Under the LEIC Act the Integrity Commissioner has an obligation to notify the head of a
government agency about a corruption issue involving one of their employees who has been
seconded to a law enforcement agency within jurisdiction. This item amends section 10(5) of
the LEIC Act to identify which staff members of AUSTRAC, CrimTrac and DAFF are to be
considered secondees for this purpose.
Item 40 - Application of amendments in Part 2
This item is an application provision that provides that ACLEI's jurisdiction to investigate
any corrupt conduct by staff members of AUSTRAC, CrimTrac and DAFF extends to all
conduct regardless of whether it was engaged in before or after the commencement of the
LEIC Act on 30 June 2006. The effect of this provision is that the Integrity Commissioner
can, of his or her own initiative, investigate corruption issues within these agencies
irrespective of when the relevant conduct occurred.
29
Under section 19 of the LEIC Act, the head of a law enforcement agency within jurisdiction
is required to notify the Integrity Commissioner in writing of a corruption issue as soon as
practicable after the head becomes aware of the allegation or information that raises the issue.
The application provision ensures that this requirement only applies after the commencement
of the item. This means that although the Integrity Commissioner will have the authority to
investigate conduct occurring prior to the commencement of the Act, the notification
obligation will only apply to conduct occurring after commencement.
Part 3 - Related Amendments
Australian Crime Commission Act 2002
Item 41 - Subsection 4(1) (at the end of the definition of ACC operation/investigation)
Subsection 4(1) defines a range of terms which are used in the ACC Act. The term `ACC
operation/investigation' is defined to include either an intelligence operation that the ACC is
undertaking, or an investigation into matters relating to federally relevant criminal activity
that the ACC is conducting. Such operations or investigations must be authorised by the
Board of the ACC under paragraph 7C(1)(c) of the ACC Act. The authorisation of such
operations and investigation has a number of consequences, including where the Board has
also determined the operation or investigation to be `special' (under paragraph 7C(1)(d) of
the ACC Act) enabling the use of the coercive powers found in Division 2 of Part II of the
ACC Act.
It is not intended that an integrity testing operation be considered such an ACC operation or
investigation. This item amends the definition of an `ACC operation/investigation' to make
this clear.
Item 42 - Subsection 4(1)
This item inserts a definition of `integrity authority' into subsection 4(1) of the ACC Act.
The term is defined to mean either an authority granted under either Part IAB of the Crimes
Act authorising an integrity testing controlled operation or new Part IABA of the Crimes Act
authorising an integrity testing operation.
Item 43 - Subsection 4(1)
This item inserts a definition of `integrity operation' into subsection 4(1) of the ACC Act.
This term is defined to mean either a controlled operation authorised by an integrity testing
controlled operation authority granted under Part IAB of the Crimes Act, as amended by this
Bill, or an integrity testing operation authorised by an integrity testing authority granted
under new Part IABA.
Items 44 and 45 - Subsection 4(1) (at the end of the definition of intelligence operation)
These items clarify that the term `intelligence operation' and `special ACC
operation/investigation' do not include integrity operations.
30
Item 46 - After paragraph 7A(c)
Section 7A of the ACC Act sets out the functions of the ACC.
This item will add a new paragraph (ca) to this section which makes clear that a function of
the ACC is to do all things necessary to enable the conduct of integrity testing. This
provision is necessary as the ACC may not otherwise be authorised to conduct integrity
testing.
Unlike other law enforcement agencies the ACC does not have general authority to conduct
criminal investigations. The ACC is authorised to conduct investigations of `relevant crime'
(as defined in section 4 of the ACC Act) using normal police powers only where authorised
by the ACC Board. If the Board additionally determines that an investigation is `special'
(under subsection 7C(2) of the ACC Act) the ACC can also make use of the coercive powers
in Part II Division 2 of the ACC Act. The effect of this arrangement is to imply that the ACC
is not entitled to investigate suspected criminal offences that do not fall within the scope of a
Board authorisation.
This item will ensure that the ACC there is no doubt that the ACC is authorised to conduct
integrity testing operations.
Surveillance Devices Act 2004
Item 47 - Subsection 6(1) (definition of disciplinary proceedings)
Item 47 repeals the existing definition of `disciplinary proceedings' in subsection 6(1) of the
Surveillance Devices Act 2004 (SD Act). Item 47 substitutes a new definition of `disciplinary
proceedings' that has the same meaning as in the Law Enforcement Integrity Commissioner
Act 2006 (LEIC Act). The LEIC Act definition of `disciplinary proceedings' means a
proceeding of a disciplinary nature under a law of the Commonwealth or of a State or
Territory and includes action taken under Subdivision D of Division 3 of Part V of the
Australian Federal Police Act 1979 (AFP Act). This subdivision was inserted into the AFP
Act by the Law Enforcement (AFP Professional Standards and Related Measures) Act 2006
to deal with actions relevant to performance management in the AFP, and the assessment of
employment suitability in cases where there is an issue about an AFP appointee's conduct.
Item 48 - Subsection 6(1)
Item 48 inserts a new definition of `integrity authority' into subsection 6(1) of the SD Act.
An `integrity authority' is defined to include an integrity testing authority or integrity testing
controlled operation authority that is authorised under either Part IAB or Part IABA of the
Crimes Act 1914. `Integrity authority' provides a portmanteau term for the purposes of the
SD Act and has the effect that an agency can apply for a surveillance device warrant in
relation to an integrity testing authority that includes a controlled operation authority or an
integrity testing authority that does not include a controlled operation authority.
Item 49 - Subsection 6(1)
Item 49 inserts a new definition of `integrity operation' into subsection 6(1) of the SD Act.
An `integrity operation' is defined to mean an integrity testing operation or integrity testing
31
controlled operation authority authorised under either Part IAB or Part IABA of the Crimes
Act 1914. The portmanteau term is used for the purposes of the SD Act as there is no
practical difference in the treatment of an operation that does and does not include a
controlled operation as part of the integrity operation.
Item 50 - Subsection 6(1) (after paragraph (da) of the definition of relevant offence)
Item 50 inserts new paragraph (da) into the definition of `relevant offence' in subsection 6(1)
of the SD Act. New paragraph (da) applies to a surveillance device warrant or tracking
device authorisation for the purposes of an integrity operation. The effect of the provision is
to allow for applications for surveillance devices warrants and authorisations for a tracking
device in relation to integrity operations to be made in relation to an offence against the law
of the Commonwealth, or of a State or Territory, that is punishable by a maximum term of
imprisonment of 12 months or more or for life. The 12 month imprisonment penalty
threshold is in recognition of the functions and responsibilities of these agencies which mean
that staff of these agencies can pose an attractive target for criminal infiltration and corrupt
compromise by organised crime groups. The threshold is consistent with the threshold for an
integrity authorisation under new Part IABA of the Crime Act 1914.
Item 51 - Subsection 6(1)
Item 51 inserts a definition of `target agency' into subsection 6(1) of the SD Act. `Target
agency' is defined as the Australian Federal Police, the Australian Crime Commission or
Customs and Border Protection. Target agencies are those agencies which are included
within the integrity testing regime and whose staff may be subject to an integrity testing
authorisation.
Item 52 - Before subsection 14(1)
Section 14 of the SD Act establishes the application process for a surveillance device
warrant.
Item 52 inserts a heading to subsection 14(1) of the SD Act to reflect that these provisions
relate to warrants sought for the investigation of offences. This is a technical drafting issue to
provide for easier reading of the SD Act.
Item 53 - Before subsection 14(3)
Item 53 inserts a heading to subsection 14(3) of the SD Act to reflect that these provisions
relate to warrants sought for recovery orders. This is a technical drafting issue to provide for
easier reading of the SD Act.
Item 54 - Before subsection 14(3A)
Item 54 inserts a heading to subsection 14(3A) of the SD Act to reflect that these provisions
relate to warrants sought for mutual assistance investigations and related matters. This is a
technical drafting issue to provide for easier reading of the SD Act.
32
Item 55 - After subsection 14(3A)
Item 55 inserts new subsection 14(3B) to the SD Act. New subsection 14(3B) of the SD Act
applies to warrants which are sought for integrity operations. In recognition that an integrity
operation is different in nature to the investigation of an offence, the considerations in
applying for a warrant are different to those sought in relation to the investigation of offences.
A federal law enforcement officer (or a person on their behalf) may apply for a warrant if the
following three-part test is satisfied. First, an integrity authority which authorises an integrity
operation must be in effect on the basis that it is suspected that an offence has been, is being,
or is likely to be, committed by a staff member of a target agency. Secondly, that the federal
law enforcement officer suspects on reasonable grounds that the use of the surveillance
device will assist in the conduct of the integrity operation by recording or monitoring the
operation. Thirdly, that the federal law enforcement officer suspects on reasonable grounds
that the use of the surveillance device will assist the conduct of the integrity operation by
enabling the collection of evidence relating to the commission of the offence, or the integrity,
location or identity of any staff member of the target agency.
Applications are limited to federal law enforcement officers. A `federal law enforcement
officer' is a subset of the definition of `law enforcement officer'. Thus, `federal law
enforcement officer' includes all AFP, ACLEI and ACC staff members and employees
including the chief officers. Applications may only be made where an integrity authority is in
effect which authorises an integrity operation.
Item 55 also inserts a heading for subsection 14(4) of the SD Act to reflect that the provisions
in subsection 14(4) - (7) of the SD Act relate to the procedure for making applications. This
is a technical drafting issue to provide for easier reading of the SD Act.
The procedure for making an application under new subsection 14(3B) of the SD Act does
not specifically require the identification of the integrity authority, as the integrity authority
would be included in an affidavit setting out the "grounds on which the warrants is sought"
(see paragraph 14(5)(b)).
Item 56 - Subsection 14(4)
Item 56 omits `or (3A)' from subsection 14(4) of the SD Act and replaces it with `(3A) or
(3B)'. Subsection 14(4) of the SD Act deals with the procedure for making applications for a
surveillance device warrant, namely that an application may be made to an eligible Judge or a
nominated AAT member. Subsection 14(4) of the SD Act has been amended to allow
applications for integrity operations under new subsection 14(3B) of the SD Act to be made
to an eligible Judge or nominated AAT member.
Item 57 - After paragraph 16(1)(ba)
Item 57 inserts new paragraph (bb) to subsection 16(1) of the SD Act to require that, in
determining an application in relation to a warrant sought for the purposes of an integrity
operation, the eligible Judge or nominated AAT member must be satisfied that:
· the integrity authority is in effect, and
33
· that there are reasonable grounds for the suspicions founding the application.
The Judge or nominated AAT member makes an independent decision as to whether to
authorise the use of this investigative tool.
Item 58 and 59 - Paragraph 16(2)(a) and (e)
Subsection 16(2) of the SD Act lists six matters that an eligible Judge or nominated AAT
member must have regard to when considering a surveillance device warrant.
Item 58 amends paragraph 16(2)(a) of the SD Act to require that the eligible Judge or
nominated AAT member has regard to the nature and gravity of the alleged offence in
relation to which an integrity authority has been granted.
Subsection 16(2) of the SD Act recognises and balances the competing public interest in
timely and effective law enforcement and the intrusion on the privacy of a group or
individual. It is a matter for the judge or AAT member hearing the application to balance
these interests in the circumstances of each application.
Item 59 amends paragraph 16(2)(e) of the SD Act to require the eligible Judge or nominated
AAT member to have regard to the likely evidentiary or intelligence value of any evidence or
information sought to be obtained in relation to the integrity operation.
Item 60 - After subparagraph 17(1)(b)(iiia)
Subsection 17(1) of the SD Act sets out the information that a surveillance device warrant
must contain, amongst other things, the name of the applicant and the kinds of surveillance
devices authorised to be used under the warrant. This requirement ensures that law
enforcement agencies have clear guidance on their powers under the surveillance device
warrant and are accountable for the proper execution of such warrants.
Item 60 inserts new subparagraph 17(1)(b)(iiib) to the SD Act to require that, if a warrant is
issued for the purposes of an integrity operation, then the warrant must specify the integrity
authority and each of the alleged relevant offences in relation to which the authority was
granted.
Item 61 - Subparagraph 17(1)(b)(ix)
Subsection 17(1) of the SD Act also requires that a surveillance device warrant contain
information about the period which the warrant is to be in force.
Item 61 substitutes the existing period in subparagraph 17(1)(b)(ix) of the SD Act with a
reference to new subsection 17(1A) of the SD Act as a surveillance device warrant which is
issued for an integrity operation has a reduced maximum period of time for which it may be
in force when compared with a surveillance device issued for other purposes.
Item 62 - After subsection 17(1)
Item 62 inserts new subsection (1A) to section 17 of the SD Act to reflect that surveillance
device warrants have two distinct periods of time that they may be in force. A surveillance
device warrant that is issued for the purposes of an integrity operation can only be issued for
34
a period of no more than 21 days. All other surveillance device warrants issued under this
Act can be issued for a period of no more than 90 days.
Item 62 reflects that an integrity operation is intended to be a designed and targeted operation
and therefore there is more control over when it is likely that the key activity will be
undertaken and the key evidence likely to be collected.
The Note refers readers to the related section 21 of the SD Act in relation to discontinuance
of a surveillance device warrant.
Item 63 - Paragraph 19(1)(a)
Section 19 allows a law enforcement officer to apply at any time, while the warrant remains
valid, for an extension of the warrant or a variation of its terms. Such an application can be
made more than once. In this way, some flexibility is built in to the warrant process so that it
is responsive to the operational needs of law enforcement officers as and when they arise.
Item 63 repeals the existing paragraph 19(1)(a) and substitutes new paragraph 19(1)(a) to
reflect that a warrant issued for the purposes of an integrity operation is limited to a period of
21 days. The warrant can also only be extended for a period not exceeding 21 days from the
day on which it would normally expire, but for the extensions. Such an application must be
made to an eligible Judge or nominated AAT member. Warrants for other purposes can be
extended for a period not exceeding 90 days from the day on which it would normally expire,
but for the extensions.
Item 64 - Subsection 20(2)
Section 20 of the SD Act deals with the revocation of a surveillance device warrant.
Subsection 20(2) of the SD Act outlines specific requirements that relate to circumstances set
out in Section 21 of the SD Act.
Item 64 is a consequential amendment to update references in subsection 20(2) of the SD Act
to include a reference to new subsection 21(3B) to the SD Act in relation to integrity
operations.
Item 65 - After subsection 21(3A)
Section 21 of the SD Act deals with the discontinuance of use of a surveillance device under
a warrant and is related to section 20 which deals with the revocation of surveillance device
warrants.
Item 65 inserts new subsection 21(3B) to the SD Act to provide that, where a surveillance
device warrant has been sought for surveillance in relation to an integrity operation, and the
chief officer is satisfied that the use of the surveillance device is no longer necessary for the
purposes of the integrity operation or that the integrity authority for the integrity operation is
no longer in effect, the chief officer is obliged to revoke the warrant under section 20 of the
SD Act and ensure that the use of the surveillance device specified in the warrants is
discontinued.
35
Item 66 - After paragraph 21(5)(c)
Item 66 inserts new paragraph 21(5)(d) to the SD Act. New paragraph 21(5)(d) provides that,
where a federal law enforcement officer to whom the warrant was issued or who is named in
the warrant as being the officer primarily responsible for its execution is satisfied that the
surveillance device is no longer required for the purpose for which it was issued (the integrity
operation) or if the integrity authority for the integrity operation is no longer in effect, they
must immediately inform the chief officer of their agency. The chief officer, under new
subsection 21(3B) of the SD Act must take the necessary steps to see that the use of the
surveillance device is discontinued and revoke the warrant under section 20 of the SD Act.
In this way, it is intended that surveillance devices are used only when required for the
purpose for which they were issued.
Item 67 - After subsection 39(3)
Section 39 of the SD Act allows limited use of a tracking device following an internal
authorisation. This reflects the less intrusive nature of tracking devices compared with other
types of surveillance devices. However, where such use requires a greater level of intrusion
(such as entry onto premises without permission), a full surveillance device warrant is
required.
Item 67 inserts new subsection 39(3A) to the SD Act to authorise a federal law enforcement
officer to use a tracking device with the written permission of an appropriate authorising
officer, in conjunction with an integrity operation.
Items 68 and 69 - Subsections 39(4), 39(5) and 39(7)
Subsection 39(4) of the SD Act stipulates that subsection 39(3) is to take precedence over any
other law of Australia, including any principles of common law, which forbids the use of a
tracking device without a warrant.
Subsection 39(5) of the SD Act provides that, where an appropriate authorising officer has
given their written permission for the use of a tracking device, that permission may authorise
the law enforcement officer to use more than one tracking device.
Subsection 39(7) of the SD Act provides that a tracking device authorisation given under
subsections 39(1) or (3) is to indicate the period for which the authorisation is to remain in
force. As with surveillance device and retrieval warrants, this period must not exceed 90
days.
Items 68 and 69 are consequential amendments to substitute references to subsection 39(3) of
the SD Act with references to both subsection (3) and (3A) to ensure that the provisions
relating to tracking devices also apply to tracking devices authorised in relation to integrity
operations.
Item 70 - After paragraph 40(1)(d)
Section 40 of the SD Act requires the appropriate authorising officer, who has given their
permission for the use of a tracking device without a warrant under section 39, to make a
36
written record of giving the authorisation as soon as practicable after giving the authorisation.
The record is to contain the matters listed in paragraphs (a) to (k) of subsection 40(1) of the
SD Act. These matters include the name of the applicant for the authorisation, the date and
time when permission was given, the nature of the authorisation given and the period during
which the warrant is in force, not exceeding a period of 90 days.
Item 70 inserts new paragraph 40(1)(da) to the SD Act to provide that, in relation to a
tracking device for the purposes of an integrity operation, the matters which are to be
recorded must also include details identifying the integrity authority for the integrity
operation and each alleged relevant offence.
Item 71 - Paragraphs 45(1)(c) and (2)(c)
Subsection 45 of the SD Act creates two offences with respect to the unlawful use, recording,
communication, publication or admission in evidence of protected information. `Protected
information' is defined in section 44 of the SD Act and is information subject to restrictions
on its use, communication or publication because such information relates to law
enforcement operational matters and because the use of such information may harm the
privacy of individuals or groups.
Subsection 45(1) of the SD Act makes it an offence if a person uses, records, communicates
or publishes any information, or admits it in evidence, when that information falls within the
definition of protected information and such use is not permitted by one of the exceptions.
Subsection 45(2) makes it an offence if a person uses, records, communicates or publishes
any information, or admits it in evidence, when that information falls within the definition of
protected information and such use is not permitted by one of the exceptions.
Item 71 is a consequential amendment to insert a reference to new section 45A of the SD Act
to reflect that the exceptions to the offences in subsections 45(1) and (2) are those which are
contained in both section 45 and new section 45A which deals with protected information
related to integrity operations.
Item 72 - After section 45
Item 72 inserts new section 45A to the SD Act. New section 45A provides the exceptions
which apply for dealing with protected information related to integrity operations. These
exceptions are intended to apply to all aspects of the integrity operation and authority itself as
well as outcomes arising from the integrity operation.
New subsection 45A(2) of the SD Act states that the exceptions contained in 45A are not
intended to limit exceptions in subsection 45(4) and (5).
Subsection 45(7) of the SD Act provides that protected information obtained through the use
of a surveillance device by a law enforcement officer of a particular law enforcement agency
and that is communicated to another law enforcement agency, or an agency that is not a law
enforcement agency, may only be communicated within that second agency for the purpose
for which it was communicated and it may not, except for the purpose of bringing a relevant
proceeding, be communicated to any person who is not a member of that second agency. This
37
is intended to protect the privacy of groups or individuals who may have been recorded or
monitored using a surveillance device.
New subsection 45A(3) of the SD Act removes the restriction in subsection 45(7) for
information that has been communicated in relation to integrity operation. This is necessary
to ensure that the SD Act does not limit the sharing of information that is required between
ACLEI and other agencies. For example, if the ACC were to pass protected information
under subsection 45A(1) to the AFP in relation to an integrity issue related to the AFP - as a
result of subsection 45A(3), the AFP are then permitted to pass that protected information to
ACLEI.
New subsection 45A(5) defines, for the purpose of section 45A, `disciplinary or legal action'.
`Disciplinary or legal action' includes consideration of whether disciplinary or legal action
should be taken or brought. The definition of `disciplinary or legal action' is the same as that
in new section 15JC of the Crimes Act 1914.
New subsection 45A(5) also defines, for the purpose of section 45A, `staff member' of a
target agency. `Staff member' of a target agency means a staff member of that agency within
the meaning of section 10 of the Law Enforcement Integrity Commission Act 2006.
Item 73 - Subparagraph 46(1)(b)(i)
Section 46 of the SD Act sets out how records obtained by the use of surveillance devices
must be dealt with. Paragraph 46(1)(b) of the SD Act provides that a record or report which
comprises `protected information' (which is defined by section 44) held by a `law
enforcement agency' (which is defined in section 6) must be destroyed as soon as practicable
where the chief officer is satisfied that no civil or criminal proceedings to which the record or
report relates has been, or is likely to be, commenced and; that the material in the record or
report is not likely to be required in connection with an activity in subsection 45(4) or a
purpose in subsection 45(5) which relate to, broadly speaking, what can be done with
protected information.
Item 73 inserts a reference to new subsection 45A(1) to permit information which is likely to
be required for a purpose in new subsection 45A(1) to be exempt from this destruction
requirement.
Item 74 - Subsection 46(2)
Subsection 46(2) of the SD Act imposes the same duties that the chief officer of a law
enforcement agency has under subsection 46(1) of the SD Act on the officers in charge of an
agency that is not a law enforcement agency. Such an agency might be, for example, the
Commonwealth Director of Public Prosecutions or the Department of Agriculture, Fisheries
and Forestry.
Item 74 inserts a reference to new subsection 45A(1) to require that these obligations apply to
an agency that has received records or reports obtained by use of a surveillance device under
new subsection 45A(1).
38
Item 75 - Subparagraph 46(2)(b)(i)
Item 75 inserts a reference to new subsection 45A(1) in subparagraph 46(2)(b)(i) of the SD
Act. This ensures a record or report that is likely to be required for a purpose referred to in
new subsection 45A(1) is not destroyed.
Item 76 - After subparagraph 49(2)(b)(x)
Section 49 of the SD Act sets out the reporting requirements incumbent upon the chief
officer of each law enforcement agency to which a law enforcement officer belongs, or is
seconded, to whom a warrant or an emergency or tracking device authorisation is issued. This
ensures that law enforcement agencies are accountable for the use of surveillance devices
under warrants and authorisations. Paragraph 49(2)(b) of the SD Act sets out the information
that must be contained in each report.
Item 76 inserts new subparagraph 49(2)(b)(xa) to require that, if a warrant is issued or the
authorisation given for the purposes of an integrity test, then details of the benefits to the
operation and the general use of any evidence or information must be reported. This new
paragraph reflects a similar requirement with respect to a warrant or authorisation in respect
of the investigation of a relevant offence of in respect of the location and safe recovery of a
child.
Item 77 - After subparagraph 53(2)(c)(iiia)
Section 53 of the SD Act requires the chief officer of a law enforcement agency to cause a
register of warrants and emergency and tracking device authorisations sought by law
enforcement officers of their agency to be kept. Subsection 53(2) of the SD Act specifies
what must be included in the register with respect of warrants.
Item 77 inserts new paragraph 53(2)(c)(iiib) to the SD Act to require that, if a warrant was
issued for the purposes of an integrity operation, details identifying the integrity authority and
the relevant offences in respect of the integrity authority must be included.
Item 78 - At the end of paragraph 53(4)(c)
Subsection 53(4) of the SD Act specifies what information must be included in the register
with respect of tracking device authorisations.
Item 78 adds new subparagraph 53(4)(c)(iv) to the SD Act to require details identifying the
integrity authority and the relevant offence to be recorded if a tracking device authorisations
was given for the purposes of an integrity operation.
Telecommunications (Interception and Access) Act 1979
Item 79 - Subsection 5(1)
Item 79 inserts a new definition of `integrity authority' into subsection 5(1) of the TIA Act.
An `integrity authority' is defined to include both an integrity testing authority that is
authorised under Part IAB or Part IABA of the Crimes Act 1914. `Integrity authority'
39
provides a portmanteau term for the purposes of the TIA Act and has the effect that no
distinction is made between an integrity testing authority that includes a controlled operation
authority and an integrity testing authority that does not include a controlled operation
authority.
Item 80 - Subsection 5(1)
Item 80 inserts a new definition of `integrity operation' into subsection 5(1) of the TIA Act.
An `integrity operation' is defined to include both those which do and do not include a
controlled operation authorisation as part of the integrity test. The portmanteau term is used
for the purposes of the TIA Act as there is no practical difference in the treatment of an
operation that does and does not include a controlled operation as part of the integrity
operation.
Item 81 - Subsection 5(1) (definition of permitted purpose)
The definition of `permitted purpose' in subsection 5(1) of the TIA Act refers to the
circumstances in which an interception agency, eligible Commonwealth authority, or eligible
authority of a State can communicate, use or make a record of lawfully intercepted
information or interception warrant information under the TIA Act. The circumstances
include the functions of each eligible authority as set out in their governing legislation.
Item 81 inserts a reference to "Customs" after "intercepted agency" in the definition of
`permitted purpose' in subsection 5(1) of the TIA Act to reflect the inclusion of a permitted
purpose for Customs.
Item 82 - Subsection 5(1) (paragraph (a) of the definition of permitted purpose)
Item 82 inserts a reference to "(except in the case of Customs)" to reflect that the permitted
purposes in paragraph 5(1)(a) do not apply to Customs.
Item 83 - Subsection 5(1) (after paragraph (a) of the definition of permitted purpose)
Item 83 inserts new paragraph 5(1)(aaa) into the definition of `permitted purpose' in the
TIA Act as it relates to any Commonwealth agency or Customs. Commonwealth agencies
are defined in subsection 5(1) of the TIA Act as the AFP, ACC and ACLEI.
New paragraph 5(1)(aaa) creates new permitted purposes for Commonwealth agencies and
Customs.
Item 84 - After paragraph 5B(1)(ea)
Under section 74 of the TIA Act, a person may give lawfully intercepted information (other
than foreign intelligence information) in evidence in an exempt proceeding. Subsection
5B(1) of the TIA Act defines `exempt proceeding'.
Item 84 inserts new paragraph 5B(1)(eb) into the definition of `exempt proceeding' to allow
lawfully intercepted information, other than foreign intelligence information, to be given in
evidence in proceedings related to disciplinary or legal action in relation to an eligible staff
member of the AFP or the ACC. `Disciplinary or legal action' is defined in new section 6S
of the TIA Act.
40
Item 85 - After section 6R
Item 85 inserts new section 6S into the TIA Act. New section 6S of the TIA Act defines
permitted purposes as they relate to integrity purposes for a Commonwealth agency or
Customs.
Item 1 of new subsection 6S(1) of the TIA Act permits the AFP, ACC, Customs and ACLEI
to use lawfully intercepted information for a purpose connected with:
· decisions about whether to apply for an integrity authority
· designing an integrity operation (use of lawfully intercepted material is not permitted
in the conduct of the integrity operation)
· applications for an integrity authority, and
· the granting of an integrity authority.
Item 2 of new subsection 6S(1) of the TIA Act permits the AFP, ACC and ACLEI to use
lawfully intercepted information for a purpose connected with an application for a warrant,
authorisation or order, under a law of the Commonwealth, that is made for the purposes of an
integrity operation. For example, the AFP would be permitted to use lawfully intercepted
information in an affidavit in support of an application for a surveillance devices warrant
under the Surveillance Devices Act 2004 for the purpose of an integrity operation.
Item 3 of new subsection 6S(1) of the TIA Act permits the AFP and ACC to use lawfully
intercepted information in connection with disciplinary or legal action in relation to an
eligible staff member arising out of an integrity operation. ACLEI is not included within
Item 3 as it does not have functions in relation to the disciplinary action of staff of these
agencies.
`Disciplinary or legal action' is defined in new subsection 6S(2) of the TIA Act and includes
the consideration of whether an action or proceeding covered by this definition should be
taken or brought.
`Eligible staff member' is defined in new subsection 6S(2) as meaning a staff member within
the meaning of section 10 of the Law Enforcement Integrity Commissioner Act 2006.
Item 86 - At the end of section 68
Section 68 of the TIA Act provides that a chief officer of an agency may communicate
lawfully intercepted information that was obtained by that agency or interception warrant
information in prescribed circumstances.
Item 86 adds new paragraph 68(m) to the TIA Act to provide that a chief officer of an agency
(an agency eligible to intercept communications) may communicate lawfully intercepted
information or interception warrant information to the chief officer of the AFP or the ACC if
the information appears to relate to a matter in relation to which an application for an
integrity authority may be made, is intended to be made or has been made in relation to that
agency or a matter in relation to which an integrity operation has, may be or is intended to be
conducted in relation to that agency.
41
Item 86 adds new paragraph 68(n) to the TIA Act to provide that a chief officer of an agency
(an agency eligible to intercept communications) may communicate lawfully intercepted
information or interception warrant information to the chief officer of ACLEI if the
information appears to relate to a matter in relation to which ACLEI may make or is
intending to make or has made an application for an integrity authority in relation to the
AFP, ACC of Customs as well as a matter in relation to which ACLEI has conducted or is
conducting an integrity operation.
Item 86 adds new paragraph 68(o) to the TIA Act to provide the circumstances in which
ACLEI may pass lawfully intercepted information or interception warrant information to the
CEO of Customs. These circumstances are limited to where the information relates or
appears to relate to a matter in relation to which an applications for an integrity authority may
be made, is intended to be made of has been made in relation to Customs and a matter in
relation to which Customs is conducting an integrity operation.
Item 87 - Subsection 139(1)
Item 87 inserts "(other than a purpose referred to in subsection 139A(2), if applicable)" into
subsection 139(1) of the TIA Act. This amendment has the effect that the provisions in
section 139 operate in conjunction with the provisions in new section 139A.
Subsection 139(1) does not operate to restrict Commonwealth agencies from communicating
to another person, making use of, or making a record of lawfully accessed information other
than foreign intelligence information and stored communications warrant information if they
may do so under new section 139A.
Item 88 - After section 139
Item 88 inserts new section 139A after section 139. This amendment will provide that for the
purposes of integrity investigations and operations, an officer or staff member of a
Commonwealth agency may communicate, make use of or record certain information in
defined circumstances.
New subsection 139A(1) provides that an officer or staff member of a Commonwealth
agency may communicate to another person, make use of, or record lawfully access
information other than foreign intelligence information and stored communications warrant
information for a purpose referred to in subsection 139(1), if applicable, or for a purpose in
subsection 139A(2).
New subsection 139A(2) provides that the information referred to in new subsection 139A(2)
may be communicated to another person, made use of, or be recorded in accordance with a
permitted purpose in relation to the agency, or another Commonwealth agency referred to in
section 6S or for purposes connected with the keeping of records by the agency or authority
under Part 3-5.
Item 89 - Section 142
Item 89 makes a consequential change to insert "or 139A" after "139" in section 142.
42
Item 90 - Paragraph 150(1)(b)
Section 150 of the TIA Act provides that the chief officer of an agency must cause
information or a record that was obtained by accessing a stored communication and that is in
the possession of an agency to be destroyed, if that information is not likely to be required for
an investigative purpose.
Item 90 makes a consequential amendment to paragraph 150(1)(b) to provide that the chief
officers of a Commonwealth agency must cause information or a record that was obtained by
accessing a stored communication to be destroyed if it is not required for a purpose referred
to in subsection 139(2) or 139A.
Item 91 - Application of amendments in Part 3
Item 91 is an application provision.
Amendment of the Surveillances Devices Act 2004
Sub-item 91(1) clarifies that a surveillance device warrant and a tracking device authorisation
may be sought under proposed subsections 14(3B) and 39(A) respectively the for the
purposes of an integrity operation in which an integrity authority has been granted whether
the conduct constituting the suspected offence to which the operation relates occurred (or is
alleged to have occurred) on or after the commencement of Part 3 of Schedule 1.
Sub-item 91(2) clarifies that proposed section 45A that specifies the exceptions which apply for
dealing with protected information in relation to integrity operations apply where the
information was obtained or created before, on or after the commencement of Part 3 to
Schedule 1.
Amendment of the Telecommunications (Interception and Access) Act 1979
Sub-item 91(4) clarifies that a chief officer of an agency (an agency eligible to intercept
communications) may communicate lawfully intercepted information or interception warrant
information under proposed paragraphs 68(m), (n) and (o) in relation to integrity related
matters where the information was obtained or created before, on or after the commencement
of Part 3 to Schedule 1.
Sub-item 91(5) clarifies that lawfully accessed information or stored communications warrant
information may be communicated under proposed section 139A to a Commonwealth agency
on or after the commencement of Part 3 of Schedule 1 where the information was obtained or
the stored communications warrant was issued before, on or after the commencement of Part
3 to Schedule 1.
Sub-item 91(6) clarifies that lawfully intercepted information (other than foreign intelligence
information) and lawfully accessed information may be given in evidence in an exempt
proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of
proposed section 6S at Item 84 of Schedule 1) that is, or relates to disciplinary or legal action
in relation to an eligible staff member of a commonwealth agency, where the information was
43
obtained or the interception or stored communications warrant was issued before, on or after
the commencement of Part 3 to Schedule 1.
44
Schedule 2 - Other amendments relating to the Australian Customs and Border
Protection Service
The purpose of this schedule is to amend the Customs Administration Act 1985 to introduce a
range of measures to increase the corruption resilience of Customs and Border Protection.
These measures include:
· the power for the Chief Executive Officer (CEO) to make orders, including for the
introduction of mandatory reporting requirements
· the power for the CEO to make a declaration that the termination of the employment
of a worker was for serious misconduct, and
· the power to authorise drug and alcohol testing.
The power for the CEO to make orders, including for the introduction of mandatory
reporting requirements
The amendments will provide the CEO with similar powers to the AFP Commissioner in
relation to the issue of written orders to staff, which must be obeyed. Such an order could
include the requirement to report allegations of serious misconduct or corruption and to
disclose any information that may be perceived as a serious misconduct or corruption issue.
The power for the CEO to make a declaration that the termination of the employment of a
worker was for serious misconduct.
The amendments will provide the Customs and Border Protection CEO with the power to
declare that the termination of a worker is for serious misconduct, including corruption. Such
a declaration would exclude the termination from review for unfair dismissal under the Fair
Work Act 1999. This is consistent with the powers of the AFP Commissioner and ACC CEO.
Drug and alcohol testing
The amendments in this Schedule will allow Customs and Border Protection staff to be
directed to undergo testing for the use of prohibited drugs, pharmaceuticals and alcohol. This
direction will only be able to be made by a person prescribed by Regulation or authorised by
the CEO. Both the Australian Federal Police (AFP) and Australian Crime Commission
(ACC) currently undertake drug and alcohol testing. The proposed testing of Customs and
Border Protection staff will be implemented in a similar way to the current AFP program,
with staff selected randomly but with a focus on operational and high-risk areas. Drug and
alcohol testing will apply to all Customs and Border Protection workers, including Senior
Executive Service (SES) workers.
The legislation will align Customs and Border Protection with other law enforcement
agencies that are operating in similar circumstances. The legislation will ensure a safer
working environment for staff and greater protection of the border.
45
Item 1 - Section 3
This item inserts a definition of `alcohol blood test' for the purposes of new sections 16B,
16C and section 16D. An alcohol blood test is a test of a person's blood to determine the
amount of alcohol (if any) in the person's blood.
Item 2 - Section 3
This item inserts a definition of `alcohol breath test' for the purposes of new sections 16B,
16C and section 16D. An alcohol breath test is a test of a person's breath to determine the
amount of alcohol (if any) in the person's blood.
Item 3 - Section 3
This item inserts a definition of `alcohol screening test' for the purposes of new sections 16B,
16C and section 16D. An alcohol screening test is a test of a person's breath to determine the
amount of alcohol (if any) in the person's breath.
Item 4 - Section 3
This item inserts a definition of `authorised officer' for the purposes of new sections 16B,
16C and section 16D. An authorised officer is an officer of Customs who has been
authorised by the CEO under new section 3B to perform or exercise the functions or powers
of an authorised officer for a particular provision of the Customs Administration Act 1985(the
Customs Administration Act).
Item 5 - Section 3
This item inserts a definition of `body sample' for the purposes of new sections 16C and
section 16D. A body sample is any human biological fluid, any human biological tissue
(whether alive or otherwise) or any human breath.
Item 6 - Section 3
This item inserts a new definition of `CEO's Orders', which are orders under new section 4B
of the Customs Administration Act.
Item 7 - Section 3
This item inserts a definition of `corrupt conduct' for the purposes of new subsection 4B(2)
and refers to the new definition of engages in corrupt conduct (below).
Item 8 - Section 3
This item inserts a new definition of `Customs vessel', for the purposes of new section 16DA.
A Customs vessel is a vessel used or for use for the purposes of the Australian Customs and
Border Protection Services (Customs and Border Protection). This includes vessels that are
both owned and operated by Customs and Border Protection and those that are leased with
contracted or sub-contracted crew.
46
Item 9 - Section 3
This item inserts a new definition of `Customs worker' for the purposes of the Customs
Administration Act, in particular the new CEO's Orders power and the new regime of drug
and alcohol testing.
A Customs worker is:
(a) An officer of Customs;
(b) An Australian Public Service employee, any officer or employee of a State or
Territory or an officer of employee of an authority of the Commonwealth, a
State or a Territory, whose services are made available to Customs and Border
Protection;
(c) a person engaged as a consultant or contractor to perform services for Customs
and Border Protection and who is specified in a determination made by the
CEO under new section 3C; or
(d) a person who is engaged or employed by a person to whom paragraph (c) or
this paragraph applies and who is specified in a determination made by the
CEO under new section 3C.
It is proposed to include an expanded definition of Customs worker in these terms, in
particular for the new drug and alcohol testing regime, which will allow an authorised officer
to require employees as well as others who have access to Customs and Border Protection
premises, systems and information to undergo testing. This expanded definition of Customs
worker reflects the high standard that Customs and Border Protection expects of its
employees and well as any other person performing duties in or providing services to the
agency. This definition also recognises the obligations owed to a worker by Customs and
Border Protection as a person conducting a business under the Work Health and Safety Act
2011.
It is important to note that Customs workers are engaged in a number of high risk
environments, in particular in the maritime security environment, where it is important that
Customs workers' abilities are not affected by drugs or alcohol.
As Customs and Border Protection does engage contractors and sub-contractors in the
delivery of its responsibilities in a high risk operational environment it is important that the
testing regime apply equally to these persons.
Item 10 - Section 3
This item sets out the circumstances in which a Customs worker engages in corrupt conduct,
for the purposes of new subsection 4B(2) (particular CEO Orders). These circumstances are
identical to the circumstances set out in the Law Enforcement Integrity Commission Act 2006.
A Customs worker engages in corrupt conduct if he or she engages in conduct for purposes of
abusing his or her position as a Customs worker, or for perverting the course of justice or for
corruption of any other kind.
47
Item 11 - Section 3
This item inserts a definition of `officer of Customs' for the purposes of the new definition of
Customs worker. Officer of Customs has the same meaning as in the Customs Act, which
includes a person employed in the Customs and any person authorised by the CEO to perform
all the functions of an officer of Customs.
Item 12 - Section 3
This item inserts a definition of `prohibited drug' for the purposes of new sections 16C and
16D. Prohibited drug is defined as a narcotic substance within the meaning of the Customs
Act or any drug specified in a determination under section 16G. Narcotic substance in the
Customs Act is a border controlled drug or a border controlled plant and these drugs and
plants are set out in Part 9.1 of the Criminal Code.
Item 13 - Section 3
This item inserts a definition of `prohibited drug test' for the purposes of new sections 16C
and 16D. Prohibited drug test is defined as a test of a body sample of a person to determine
the presence (if any) of a prohibited drug in the sample.
Item 14 - Section 3
This item inserts a definition of `serious misconduct' by a Customs worker for the purposes
of the Customs Administration Act. The definition will mirror the definition of serious
misconduct in section 47A of the Australian Crime Commission Act 2002 and section 40K of
the Australian Federal Police Act 1979. It will mean:
(a) corruption, a serious abuse of power, or a serious dereliction of duty, by the
Customs worker; or
(b) any other seriously reprehensible act or behaviour by the Customs worker,
whether or not acting, or purporting to act, in the course of his or her duties as
such a Customs worker.
This definition is relevant for new subsection 4B(2) (CEO's Orders to Customs workers in
specific circumstances) and new section 15A (Termination of employment of member of staff
for serious misconduct).
Item 15- After section 3A
This item inserts new section 3B, which sets out the power of the Chief Executive Officer of
Customs (the CEO) to authorise an officer of Customs to perform or exercise the powers or
functions of an authorised officer under a particular provision of the Customs Administration
Act, for the purposes of the definition of authorised officer above.
This item also inserts new section 3C, which sets out the power of the CEO to determine that
consultants, contractor, or persons employed or engaged by such persons, are Customs
workers for the purposes of the definition of Customs worker. A determination under this
new section is not a legislative instrument. This provision is only included to assist the
reader as the determination is not a legislative instrument within the meaning in section 5 of
the Legislative Instruments Act 2003.
48
Item 16 - After section 4A
4B CEO's Orders
This item inserts new section 4B, which set out the power of the CEO to issue written orders
with respect to the control of Customs.
Under section 4 of the Customs Administration Act, the CEO may issue directions to officers
of Customs in relation to the performance of functions or the exercise of powers under a law
of customs. The CEO has issued such directions on several occasions, including in relation
to the deployment of firearms and personal defence equipment and the use of force.
However, unlike the Commissioner of the Australian Federal Police, the CEO does not have a
power to issue orders in relation to the general administration of Customs. Under section 38
of the Australian Federal Police Act 1979, the Commissioner has the power to issue written
orders which all AFP appointees must obey. Under this power, the Commissioner issues
orders in relation to professional standards, including in relation to mandatory reporting of
misconduct and corruption.
New section 4B will also give the CEO the power to issue orders in relation to such matters
as well. Subsection 4B(2) sets out in detail one type of order that may be issued under
subsection 4B(1). It provides that a CEO's Order may relate to reporting by Customs
workers of any of the following circumstances:
(a) serious misconduct by a Customs worker (see the definition of serious
misconduct above)
(b) corrupt conduct engaged in by a Customs worker (see the definition of engage
in corrupt conduct above), and
(c) criminal activities involving a Customs worker.
where such conduct or activities affect, or are likely to affect, the operations and
responsibilities of Customs. Given the current work type of Customs officers and the
importance of maintaining a high integrity workplace, mandatory reporting of such conduct
or activities is considered a useful preventative, deterrence and response tool.
Such an order may require a Customs worker to report such conduct or activities that the
Customs worker is himself or herself engaged in.
Subsection 4B(3) makes it clear that the power to issue CEO's Orders does not limit the
power of the CEO to issue directions under section 4 of the Customs Administration Act.
Subsection 4B(4) provides that a Customs worker must comply with CEO's Orders. In
relation to a Customs employee, failure to comply with CEO's Orders will be dealt with in
accordance with Customs and Border Protection's procedures for determining suspected
breaches of the Code of Conduct set out in section 13 of the Public Service Act 1999 (the
Public Service Act). Failure to comply with CEO's Orders by workers other than Customs
employees will be dealt with in accordance with the terms and conditions that govern the
particular workers' presence in the workplace or engagement by Customs and Border
Protection.
49
Subsection 4B(5) provides that CEO's orders are not legislative instruments. It is possible
that in some circumstances CEO's Order may be legislative instruments for the purposes of
the Legislative Instruments Act 2003. As these Orders will relate to the internal workings of
Customs and Border Protection and are aimed in particular at dealing with issues of integrity
of the workforce, it is not considered appropriate that the Orders should be subject to possible
disallowance, and sunsetting.
This approach is consistent with the exemption granted to orders made under section 38 of
the Australian Federal Police Act 1979, which are also exempt from the operation of the
Legislative Instruments Act 2003.
4C Self incrimination - CEO's Orders relating to the reporting of serious misconduct etc
This item also inserts new section 4C. Section 4C provides that where a Customs worker is
required under a CEO's Order referred to in subsection 4B(2) to give information, produce a
document or answer a question, the Customs worker is not excused from doing so on the
ground that it may tend to incriminate or expose the Customs worker to a penalty. This
provision is identical to section 40A of the Australian Federal Police Act 1979 in relation to
the Commissioner's power to issue orders under section 38 of that Act. The CEO's Orders
under subsection 4B(2) will be aimed at exposing misconduct and possible corruption. They
are intended to send a clear message that Customs and Border Protection is determined to
promote a culture of high integrity in the workplace and will not tolerate these behaviours.
However, the giving of information, production of a document or answering of a question is
not admissible in evidence against the Customs worker in any proceedings. This limitation is
subject to section 16F, which sets out the circumstances in which results from an alcohol or
drug test or other information, answers or documents relevant to conducting the tests can be
used. This immunity does not extend to a derivative use immunity in these circumstances
because the object of CEO's Orders referred to in subsection 4B(2) is to promote the high
integrity of the Customs and Border Protection workforce by exposing and addressing
conduct that does not meet this standard. This objective cannot be fully realised unless
derivative use can be made of the information disclosed in compliance with the CEO's
Orders.
Item 17 Application - CEO's Order relating to the reporting of serious misconduct etc
This item inserts an application provision for the CEO's Orders of a kind set out in subsection
4B(2) of the Customs Administration Act. It provides that such an order applies to serious
misconduct, corrupt conduct and criminal activities whether engaged in before, on or after the
commencement of the application provision. Therefore, if the CEO issues an order of a kind
referred to in subsection 4B(2), a Customs worker would be required to report any relevant
conduct or activity even if the conduct or activity occurred before the CEO issued the order.
Item 18 - At the end of subsection 14(1)
Section 14 of the Customs Administration Act provides that the CEO may delegate in writing
any or all of his or her powers to an officer of Customs.
This item will amend section 14 to limit the operation of the delegation making power to any
or all powers except a power or function under new section 15A. Section 15A, as inserted by
item 15, will allow the CEO to make a declaration stating that the employment of a staff
member was terminated because the CEO believed on reasonable grounds that the
50
employee's behaviour amounts to serious misconduct and is having, or is likely to have, a
damaging effect on the morale or reputation of the ACC. This item will amend section 14 to
prevent the CEO from delegating the power to make a declaration under section 15A.
Item 19
New section 15A - Termination of employment of member of staff for serious
misconduct - Declaration for serious misconduct
The CEO has the power to dismiss employees for serious misconduct or corruption under
section 29 of the Public Service Act 1999 (the Public Service Act). Section 29 allows the
CEO (as an agency head) to dismiss an employee of Customs under one of the following
grounds:
(a) the employee is excess to the requirements of the Agency
(b) the employee lacks, or has lost, an essential qualification for performing his or
her duties
(c) non-performance, or unsatisfactory performance, of duties
(d) inability to perform duties because of physical or mental incapacity
(e) failure to satisfactorily complete an entry-level training course
(f) failure to meet certain conditions (for example, health or security clearance
requirements)
(g) breach of the Code of Conduct (this would include serious misconduct or
corruption), or
(h) any other grounds prescribed by the regulations (no other grounds are
currently prescribed).
The Fair Work Act 2009 (Fair Work Act) currently applies to all dismissals of Customs staff
employed under the Public Service Act and provides protection where the dismissal was
harsh, unjust or unreasonable. The application of the Fair Work Act can impact on the ability
of the Customs CEO to quickly and decisively remove a person from the organisation. For
example, review of the dismissal under the Fair Work Act may result in the person having to
be reinstated.
It is proposed to insert a power in the Customs Administration Act whereby the CEO may
issue a written declaration of serious misconduct, the effect of which is to preclude review of
the termination of employment for unfair dismissal under the Fair Work Act 2009 (the Fair
Work Act). This declaration provides a mechanism for the CEO of Customs and Border
Protection to take action in response to the most serious occurrences of misconduct and
corruption. It is expected that this declaration will only be used in instances of serious
misconduct that relate to Customs and Border Protection's law enforcement functions. The
declaration will only apply to the most serious cases and cannot be used for disciplinary
matters involving behaviour that falls short of serious misconduct as defined in the new
section 15A.
51
This power is similar to the power held by the Commissioner of the Australian Federal Police
and the Chief Executive Officer of the Australian Crime Commission in relation to their
respective workforces.
Given the changing focus in the role of Customs and Border Protection towards a greater law
enforcement focus, the changing nature of criminality which has included an increase in the
attempts to compromise Customs and Border Protection officers and the increased
community expectations on the agency, the written declaration of serious misconduct is
considered appropriate to combat corruption.
New section 15A
Item 15 of Schedule 2 amends the Customs Administration Act to insert new section 15A
which will provide the CEO with the power to issue a declaration that a member of staff who
has been dismissed has engaged in serious misconduct or corruption. The effect of the
declaration will be to remove the operation of the Fair Work Act (with certain exceptions) in
relation to that particular dismissal.
Subsection 15A(1) sets out the circumstances in which the new section 15A will apply. It is
modelled on section 47A of the Australian Crime Commission Act 2002 (the ACC Act).
Section 15A will only apply where the CEO has terminated the employment of a member of
staff referred to in subsection 15(1) of the Customs Administration Act. Staff referred to in
subsection 15(1) of the Customs Administration Act are employed under the Public Service
Act.
The new declaration power will only apply where the CEO has terminated the employment of
the staff member in accordance with section 29 of the Public Service Act. New section 15A
will not provide an additional power of termination but will rely on a termination having
taken place under section 29 of the Public Service Act. This is reflected in the Note at the
end of subsection 15A(1).
Subsection 15A(1) will state that the section applies if the CEO believes, on reasonable
grounds, that the staff member's conduct:
(a) amounts to serious misconduct (a definition of serious misconduct will be
inserted in subsection 15A(8)), 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 staff
of the Australian Customs and Border Protection Service; or
(ii) the reputation of the Australian Customs and Border Protection Service with
the public, or any section of the public, or with an Australian or overseas
government, or with a person or body (however described) to whom the
CEO may authorise the disclosure of information under section 16.
The grounds on which this section applies mirror the grounds that must be met before the
CEO of the Australian Crime Commission may exercise his or her power to make a
declaration under section 47A of the ACC Act. It limits the scope of the CEO's power to the
most serious cases of misconduct or corruption. It is not designed to replace the agency's
52
usual processes for dealing with misconduct or to remove the application of procedural
fairness to the investigation of the alleged conduct. The applicable procedures for
investigating alleged misconduct are set out in the agency's Procedures for determining
breaches of the APS Code of Conduct.
Subsection 15A(2) will provide the CEO with the power to make a declaration where he or
she is of the belief set out in subsection 15A(1). The declaration will need to relate to the
staff member who has been dismissed and be made in accordance with the requirements
which will be set out in subsection 15A(5).
Subsection 15A(3) will set out the effect of the declaration made by the CEO under
subsection 15A(2). The making of the declaration will mean that the Fair Work Act (except
for Part 3-1 and Division 9 of Part 3-3) will no longer apply to either the termination of that
staff member's employment, or the making of the declaration itself. This will mean that the
unfair dismissal provisions and notice of termination provisions, among others, will no longer
apply to the termination of the staff member's employment. Part 3-1 deals with general
protections such as workplace rights. Division 9 of Part 3-3 deals with payments relating to
periods of industrial action.
Subsection 15A(4) will specify that subsection 15A(3) operates despite section 8 of the
Public Service Act. Section 8 of the Public Service Act states that that Act has effect subject
to the Fair Work Act. However, the effect of subsection 15A(3) will be to exempt a
termination of employment under section 29 of the Public Service Act from the operation of
the Fair Work Act where a declaration is made under subsection 15A(2). This subsection
will make it clear that the Fair Work Act does not apply despite the operation of section 8 of
the Public Service Act.
Subsection 15A(5) will set out the requirements that must be met by the CEO when making a
declaration under subsection 15A(3). The declaration must be made in writing. This will
provide certainty as to the terms of the declaration. The declaration will also have to be made
within 24 hours of the CEO's decision to terminate the staff member's employment. The 24
hours will start at the moment the CEO authorises the termination. This will also provide
certainty as to the review rights available to a person after they have been dismissed. It
would be unjust to allow the CEO to make such a declaration weeks after a dismissal has
taken place to remove review rights of which the staff member may have already availed
himself or herself.
Subsection 15A(6) will require the CEO to give a copy of the declaration to the staff member.
This is another safeguard to ensure the staff member is made aware of the declaration that has
been made in respect of his or her dismissal and the effect it will have on the availability of
seeking review of the decision to terminate his or her employment.
Section 28A of the Acts Interpretation Act 1901 states that for the purposes of any Act that
requires or permits a document to be served on a person, whether the expression `serve',
`give' or `send' or any other expression is used, then, unless the contrary intention appears,
the document may be served on a natural person by delivering it to the person personally by
leaving it at, or by sending it by pre-paid post to, the address of the place of residence or
business of the person last known to the person serving the document. The Electronic
Transactions Act 1999 also provides that a requirement to produce a document (such as will
be required under this subsection) can be met by doing so in electronic form.
53
Subsection 15A(7) will require the CEO to report to both the Minister and each time a
declaration is issued under new subsection 15A(2).
The report must include the following:
(a) the grounds for the CEO' belief under new subsection 15A(1); and
(b) the nature and findings of any investigation of, or inquiry into, the staff
member's conduct or behaviour, and
(c) details of any other matter the CEO considers relevant.
This will require the CEO to provide an appropriate level of detail to enable both the Minister
to assess the use of the power by the CEO. This will ensure there is appropriate oversight of
the use of the power.
Subsection 15A(9) will provide that a declaration under subsection 15A(2) is not a legislative
instrument. This provision is only included to assist the reader as the instrument is not a
legislative instrument within the meaning in section 5 of the Legislative Instruments Act
2003.
Item 20 - Application - termination for serious misconduct
This item will provide that section 15A applies only in relation to a decision to terminate a
staff member where that decision is made after the commencement of this item. This will
prevent the power to make a declaration from being used in relation to a termination that took
place prior to the power to make a declaration being in operation.
Item 21 - After section 16AA
This item will insert new sections 16B, 16C, 16E, 16F and 16G which will set out the regime
under which Customs workers will be required to undergo drug and alcohol testing.
It is proposed to introduce drug and alcohol testing for all Customs workers. As referred to
previously, a Customs worker includes all Customs employees (employed under the Public
Service Act), as well secondees, contractors and consultants and their subcontractors and
employees. This regime is in response to the significant consequences that could be caused
by a Customs workers acting under the influence of drugs or alcohol whilst conducting
Customs business.
Customs and Border Protection recognises the serious effects that drug and alcohol abuse can
have on individuals, while also recognising the importance of law enforcement employees
being committed to the highest standards of personal integrity and professionalism.
Additionally Customs and Border Protection recognises and upholds the fundamental duty of
care to all of its workers who have a right to be safe from the risks of personal threat or
compromise by the illicit drug trade and from officers affected by drugs of alcohol.
New sections 16B to 16G are based on Division 8 of the Australian Federal Police Act 1979.
New section 16B - Authorised officer may require Customs workers to undergo alcohol
screening tests etc
54
New section 16B sets out the circumstances in which an alcohol screening test can be carried
out. As referred to above, an alcohol screening test is a test of a person's breath to determine
whether alcohol is present in the person's breath.
Under subsection 16B(1), an authorised officer may require a Customs worker to undergo an
alcohol screening test if:
(a) the Customs worker is in the course of performing his or her duties as a
Customs worker; and
(b) the authorised officer reasonably suspects that the Customs worker is under
the influence of alcohol.
As referred to above, an authorised officer is an officer of Customs who has been authorised
by the CEO to perform or exercise the functions or powers of an authorised officer for a
particular provision of the Customs Administration Act.
Under subsection 16B(2), the Customs worker must comply with the requirement given to
him or her under subsection 16B(1). In relation to a Customs employee, failure to comply
with the requirement will be dealt with in accordance with Customs and Border Protection's
procedures for determining suspected breaches of the Code of Conduct set out in section 13
of the Public Service Act. Refusal to undergo the test by workers other than Customs
employees will be dealt with in accordance with the terms and conditions that govern the
particular workers' presence in the workplace or engagement by Customs and Border
Protection.
Subsection 16B(3) provides that if the result of the alcohol screening test shows that alcohol
is not present in the Customs worker's breath, the Customs worker may return to his or her
duties immediately. If, however, the test indicates that alcohol is present in the breath,
options may include standing the worker down pending further investigation. Where a
worker is required to leave the workplace, all reasonable care will be taken to ensure their
safe travel.
Subsection 16B(4) provides that section 16B does not limit the operation of section 16C. It is
not necessary to require a test under section 16B before directing a Customs worker under
section 16C.
New section 16C - Authorised officer may require Customs workers to undergo alcohol
screening tests, alcohol breath tests or prohibited drug tests etc
New section 16C sets out the circumstances in which an alcohol screening test, and alcohol
breath test or a prohibited drugs test can be carried out. As referred to above, an alcohol
breath test is a test of a person's breath to determine the amount of alcohol (if any) in the
person's blood and a prohibited drug test means a test of a body sample of a person to
determine the presence (if any) of a prohibited drug in the sample.
Subsection 16C(1) provides that an authorised officer may give a Customs worker who is in
the course of performing his or her duties as a Customs worker a written direction requiring
the worker to do one or more of the following:
(a) undergo an alcohol screening test
55
(b) undergo an alcohol breath test,
(c) provide a body sample, of a kind specified in the direction, for a prohibited
drug test. As referred to above, a body sample could be human biological
fluid or tissue or human breath.
These activities are to occur in accordance with the regulations. For example, the regulations
may prescribe the persons who are authorised to conduct these tests (see new section 16E
below).
New subsection 16C(2) provides that if a Customs worker undergoes an alcohol breath test
that indicates the presence of alcohol, he or she may provide a sample of blood for the
purpose of an alcohol blood test, in accordance with the regulations. As referred to above, an
alcohol blood test is a test of a person's blood to determine the amount of alcohol (if any) in
the person's blood. The results of this test would confirm or rebut the results of an alcohol
breath test.
Subsection 16C(3) provides the Customs worker must comply with the requirement given to
him or her under subsection 16B(1). The consequences of failing to comply are the same as
failing to comply with a requirement under section 16B.
Similar to above, if an employee returns a presumptive positive sample options may include
standing the worker down pending further investigation. Where a worker is required to leave
the workplace, all reasonable care will be taken to ensure their safe travel.
New section 16D - alcohol screening tests, alcohol breath tests and prohibited drug tests
after certain incidents
New section 16D sets out the drug and alcohol testing regime that applies after certain
incidents such as a death or serious injury involving a motor vehicle or the discharge of a
firearm.
Subsection 16D(1) provides that, where a person is seriously injured or killed as a result of an
incident involving a motor vehicle or vessel, or as a result of an incident while in custody in
relation to an arrest under the Customs Act or otherwise detained, an authorised officer may
give a Customs worker directly involved in the incident, a written direction under subsection
16D(3).
Subsection 16D(2) provides that, where an incident occurs in which a person is killed or
seriously injured as a result of the discharge of a firearm by a Customs worker who is
authorised to carry arms under section 189A of the Customs Act, and the incident occurs in
the course of performing duties as a Customs worker, an authorised officer may give the
Customs worker directly involved in the incident, a written direction under subsection
16D(3). Such a direction may also be given under this subsection if a person is killed or
seriously injured as a result of the application of physical force by an officer of Customs in
the course of duties.
Subsection 16D(3) provides that an authorised officer may give the Customs worker referred
to in subsection 16D(1) or (2) a written direction requiring the worker to do one or more of
the following in accordance with the regulations:
(a) undergo an alcohol screening test;
56
(b) undergo an alcohol breath test;
(c) provide a body sample, of a kind specified in the direction, for a prohibited
drug test (which could be a human biological fluid or tissue or human breath).
The most important feature of this direction is that it may be given whether or not the
Customs worker is still performing duties as a Customs worker. The direction must also be
given as soon as practicable after the incident concerned (see subsection 16D(4)).
Subsection 16D(5) sets out the powers of an authorised officer where a Customs worker
involved in an incident in subsection 16D(1) or (2) attends or is admitted to hospital for
examination or treatment because of the incident. In that circumstance, they can be given a
written direction requiring the provision of a sample of his or her blood for an alcohol blood
test, or to provide a body sample of a kind specified in the direction for a prohibited drug test.
Subsection 16D(6) provides the Customs worker must comply with the requirement given to
him or her under subsection 16D(3) or (4). The consequences of failing to comply are the
same as failing to comply with a requirement under section 16B.
Similar to above, if an employee returns a presumptive positive sample options may include
standing the worker down pending further investigation. Where a worker is required to leave
the workplace, all reasonable care will be taken to ensure their safe travel.
New section 16DA - Alcohol screening tests etc - performing duties on board a Customs
vessel
New section 16DA will extend the circumstances in which a Customs worker will be
performing duties for the purposes of sections 16B, 16C and 16D. These circumstances take
account of the unique environment in which Customs workers operate when they are on
board a Customs vessel.
New section 16DA will deem a Customs worker to be performing duties as a Customs
worker throughout the whole time the Customs worker is on board a Customs vessel,
provided that, at any time during the period that they are on board a Customs vessel, they
perform duties as a Customs worker. This will mean that they can be given a requirement or
direction under the above provisions even if they are not performing duties as a Customs
worker at the time the requirement or direction is given.
A Customs vessel, as referred to above, is a vessel used or for use for the purposes of
Customs.
New section 16E - Regulations
Section 16E provides the head of power to make regulations for the purposes of new section
16B, 16C and 16D, in relation to the following matters:
(a) the authorisation of persons to conduct tests under those sections, for example
nurses or medical practitioners, and the authorisation of persons to operate
equipment to undertake the tests;
(b) the provision of blood samples and body samples;
(c) the conduct of the tests;
57
(d) the devices to be used in carrying out the tests, including calibration, testing
and inspection of such devices;
(e) the accreditation of persons to conduct analyses in connection with the tests;
(f) the handling and analysis of blood and body samples.
(g) the giving of the test results in certificates or other documents and the
evidentiary effect of certificates or other documents; and
(h) the confidentiality of the test results.
New section 16F - Admissibility of test results etc in legal proceedings
New section 16F sets out the circumstances in which test results or other information,
answers or documents relevant to conducting the test can be used.
A certificate, or other document recording the results of a test conducted under section 16B,
16C or 16D or any other information, answer to a question or document relevant to such a
test, is not admissible in evidence against the Customs worker in any proceedings other than:
(a) proceedings in relation to a decision of the CEO to terminate the employment
or engagement of the Customs worker;
(b) proceedings under the Safety, Rehabilitation and Compensation Act 1988; or
(c) proceedings in tort against the Commonwealth that are instituted by the
Customs worker.
The use of drug and alcohol test results as evidence against a Customs worker in legal
proceedings is limited, therefore, to matters relating to discipline and probity. However, the
results may be also be used by the Commonwealth in a response to a workers' compensation
claim.
New section 16G - CEO may specify prohibited drugs
As referred to above, prohibited drugs is defined as a narcotic substance within the meaning
of the Customs Act or any drug specified in a determination under section 16G. Section 16G
provides that the CEO may specify drugs for the purposes of this definition.
The determination is a legislative instrument for the purposes of the Legislative Instruments
Act 2003.
58