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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 72
As laid on the table and read a first time, 25 February
2004
South Australia
Australian
Crime Commission (South Australia) Bill 2004
A Bill For
An
Act to make provision for the operation of the Australian Crime Commission in
South Australia; to repeal the National Crime Authority (State Provisions)
Act 1984; to make related amendments to other Acts; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
4 Act to bind Crown
Part 2—The Australian Crime
Commission, the Board and the Inter-Governmental Committee
Division 1—The Australian
Crime Commission
5 Functions of ACC
6 CEO to manage ACC
operations/investigations
7 Counsel assisting ACC
Division 2—The Board of the
ACC
8 Functions of Board
9 Board meetings
10 Presiding at Board meetings
11 Quorum at Board meetings
12 Voting at Board meetings
13 Conduct of Board meetings
14 Resolutions outside of Board meetings
15 Board committees
Division 3—The
Inter-Governmental Committee
16 Functions of Committee
Part 3—Examinations
17 Examinations
18 Conduct of examination
19 Power to summon witnesses and take
evidence
20 Power to obtain documents
21 Disclosure of summons or notice may be
prohibited
22 Offences of disclosure
23 Failure of witnesses to attend and
answer questions
24 Warrant for arrest of witness
25 False or misleading evidence
26 Protection of witnesses from harm or
intimidation
27 Legal protection of examiners, counsel
and witnesses
28 Order for delivery to examiner of
passport of witness
Part 4—Search warrants
29 Search warrants
30 Application by telephone for search
warrants
Part 5—Performance of
functions and exercise of powers
31 Consent of Board may be needed before
functions can be performed
32 Functions not affected by State laws
33 Extent to which functions are
conferred
34 Performance of functions
35 Functions of federal judicial officers
36 Limitation on challenge to Board
determination
37 Cooperation with law enforcement
agencies and coordination with overseas authorities
38 Incidental powers of ACC
Part 6—General
39 Double jeopardy
40 Arrangements for Board to obtain
information or intelligence
41 Administrative arrangements with the
Commonwealth
42 Judges to perform functions under the
ACC Act
43 Furnishing of reports and information
44 Secrecy
45 Delegation
46 Liability for damages
47 Obstructing, hindering or disrupting
the ACC or an examiner
48 Public meetings and bulletins
49 Annual report
50 Things done for multiple purposes
51 Regulations
Schedule 1—Related amendments,
repeal and transitional provision
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Australian Crime Commission (South
Australia) Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention
appears—
ACC Act means the Australian Crime Commission
Act 2002 of the Commonwealth;
Note—
That Act was originally known as the National Crime Authority
Act 1984.
ACC operation/investigation means—
(a) an
ACC State intelligence operation; or
(b) an
ACC State investigation;
ACC State intelligence operation means an intelligence operation that the
ACC is undertaking under section 5(b);
ACC State investigation means an investigation that the ACC is
conducting under section 5(a);
authority includes a department, agency or body;
Commonwealth body or person means—
(a) the
ACC; or
(b) the
Board; or
(c) the
Chair of the Board; or
(d) a
member of the Board; or
(e) the
Inter-Governmental Committee; or
(f) the
CEO; or
(g) a
member of the staff of the ACC; or
(h) an
examiner; or
(i) a
Judge of the Federal Court; or
(j) a
Federal Magistrate;
Commonwealth Minister means the Commonwealth Minister administering the ACC Act;
confer includes to impose;
Federal Magistrate means a Federal Magistrate (including the Chief Federal
Magistrate) who holds office under the Federal Magistrates Act 1999 of
the Commonwealth;
function has a meaning affected by subsection (4);
intelligence operation means the collection, correlation,
analysis or dissemination of criminal information and intelligence relating to
a relevant criminal activity;
issuing officer means—
(a) a
Judge of the Federal Court; or
(b) a
Judge of a court of the State; or
(c) a
Federal Magistrate;
perform includes to exercise;
serious and organised crime means an offence—
(a) that
involves 2 or more offenders and substantial planning and organisation; and
(b) that
involves, or is of a kind that ordinarily involves, the use of sophisticated
methods and techniques; and
(c) that
is committed, or is of a kind that is ordinarily committed, in conjunction with
other offences of a like kind; and
(d) that
is an offence of a kind prescribed by the regulations or an offence that
involves any of the following:
(i) theft;
(ii) fraud;
(iii) tax
evasion;
(iv) money
laundering;
(v) currency
violations;
(vi) illegal
drug dealings;
(vii) illegal
gambling;
(viii) obtaining
financial benefit by vice engaged in by others;
(ix) extortion;
(x) violence;
(xi) bribery
or corruption of, or by, an officer of the Commonwealth, an officer of a State or
an officer of a Territory;
(xii) perverting
the course of justice;
(xiii) bankruptcy
and company violations;
(xiv) harbouring
of criminals;
(xv) forging
of passports;
(xvi) firearms;
(xvii) armament
dealings;
(xviii) illegal
importation or exportation of fauna into or out of Australia;
(xix) cybercrime;
(xx) matters
of the same general nature as one or more of the matters listed above; and
(e) that
is punishable by imprisonment for a period of 3 years or more,
but—
(f) does
not include an offence committed in the course of a genuine dispute as to
matters pertaining to the relations of employees and employers by a party to
the dispute, unless the offence is committed in connection with, or as part of,
a course of activity involving the commission of a serious and organised crime
other than an offence so committed; and
(g) does
not include an offence the time for the commencement of a prosecution for which
has expired;
special ACC operation/investigation means—
(a) an
ACC State intelligence operation that the Board has determined to be a special
operation; or
(b) an
ACC State investigation that the Board has determined to be a special
investigation;
State Minister means the State Minister administering this Act.
(2) If
this Act uses a term that is used in the ACC Act, the term has the same meaning
in this Act as it has in the ACC Act unless the contrary intention appears in
this Act.
(3) If
the head of an ACC operation/investigation suspects that an offence (the incidental
offence) that is not a serious and organised crime may be directly or
indirectly connected with, or may be a part of, a course of activity involving
the commission of a serious and organised crime (whether or not the head has
identified the nature of that serious and organised crime), then the incidental
offence is, for so long only as the head so suspects, taken, for the purposes
of this Act, to be a serious and organised crime.
(4) A
reference in this Act, other than Part 2, to a function includes a reference to
a power or duty.
This Act binds the Crown in right of the State and also, so far as
the legislative power of the Parliament permits, the Crown in all its other
capacities.
Part 2—The Australian Crime Commission, the Board and the Inter-Governmental Committee
Division 1—The Australian Crime Commission
The ACC has the following functions:
(a) to
investigate a matter relating to a relevant criminal activity, in so far as the
serious and organised crime is, or the serious and organised crimes are or
include, an offence or offences against a law of the State (irrespective of
whether that offence or those offences have a federal aspect);
(b) to
undertake an intelligence operation in so far as the serious and organised
crime is, or the serious and organised crimes are or include, an offence or
offences against a law of the State (irrespective of whether that offence or
those offences have a federal aspect);
(c) to
provide a report to the Board on the outcome of such an investigation or
operation;
(d) such
other functions as are conferred on the ACC by other provisions of this Act or
any other Act.
6—CEO to manage ACC operations/investigations
(1) The
CEO is to manage, coordinate and control ACC operations/investigations.
(2) As
soon as practicable after the Board consents under section 55A(3) of the ACC
Act to the ACC undertaking an intelligence operation under section 5(b) or
conducting an investigation under section 5(a), the CEO must determine, in
writing, the head of the operation or investigation.
(3) Before
the CEO determines the head of the operation or investigation, the CEO must
consult the Chair of the Board, and such other members of the Board as the CEO
thinks appropriate, in relation to the determination.
(4) Subject
to such consultation with the examiners as is appropriate and practicable, the
CEO may make arrangements as to the examiner who is to be able to exercise his
or her powers under this Act in relation to a special ACC
operation/investigation.
The CEO may appoint a legal practitioner to assist the ACC as
counsel in relation to ACC operations/investigations generally or in relation
to a particular matter or matters.
Division 2—The Board of the ACC
(1) The Board has the following functions:
(a) to
determine, in writing, whether an ACC State intelligence operation is a special
operation or whether an ACC State investigation is a special investigation;
(b) to
determine, in writing, the class or classes of persons to participate in an ACC
State intelligence operation or ACC State investigation;
(c) to
establish task forces;
(d) such
other functions as are conferred on the Board by other provisions of this Act.
(2) The
Board may determine, in writing, that an ACC State intelligence operation is a
special operation. Before doing so, it must consider whether methods of
collecting the criminal information and intelligence that do not involve the
use of powers in this Act have been effective.
(3) The
Board may determine, in writing, that an ACC State investigation is a special
investigation. Before doing so, it must consider whether ordinary police
methods of investigation into the matters are likely to be effective.
(4) A determination under subsection (2)
or (3) must—
(a) describe
the general nature of the circumstances or allegations constituting the
relevant criminal activity to which the operation or investigation relates; and
(b) state
that the serious and organised crime is, or the serious and organised crimes
are or include, an offence or offences against a law of the State but need not
specify the particular offence or offences; and
(c) set
out the purpose of the operation or investigation.
(5) The
Chair of the Board must, within the period of 3 days beginning on the day a
determination under subsection (2) or (3) is made, give a copy of the
determination to the Inter-Governmental Committee.
(6) A
determination under subsection (2) or (3) has effect immediately after it
is made.
(7) Sections 9
to 15 have effect in relation to the Board’s functions under this Act.
(1) The
Chair of the Board may convene meetings of the Board.
(2) The
Chair, in exercising his or her power to convene meetings, must ensure that
meetings of the Board are scheduled to meet the requirements set out in section
7D of the ACC Act.
10—Presiding at Board meetings
A meeting of the Board must be presided
over by—
(a) if
the Chair of the Board is present—the Chair; or
(b) otherwise—another
eligible Commonwealth Board member who is present and who is nominated, in writing,
by the Chair to preside.
At a meeting of the Board a quorum is constituted by 7 Board
members (not including the CEO).
(1) Subject
to this section, a question arising at a meeting of the Board is to be
determined by a majority of the votes of Board members present.
(2) The person presiding at a meeting has—
(a) a
deliberative vote; and
(b) if
necessary, also a casting vote.
(3) The
CEO is not entitled to vote on any question arising at a meeting of the Board.
(4) The
Board cannot determine that an ACC State intelligence operation is a special
operation, or that an ACC State investigation is a special investigation, unless
at least 9 Board members (including at least 2 eligible Commonwealth Board
members) vote in favour of making the determination.
(1) The
Board may regulate proceedings at its meetings as it considers appropriate.
(2) The
Board must ensure that minutes of its meetings are kept.
14—Resolutions outside of Board meetings
(1) This section applies to a resolution—
(a) which,
without being considered at a meeting of the Board, is referred to all members
of the Board; and
(b) of
which—
(i) if
subparagraph (ii) does not apply—a majority of those members (not
including the CEO); or
(ii) if
the resolution is that the Board determine that an ACC State intelligence
operation is a special operation, or that an ACC State investigation is a
special investigation—at least 9 Board members (not including the CEO but
including at least 2 eligible Commonwealth Board members),
indicate by telephone or other mode of communication to the Chair
of the Board that they are in favour.
(2) The
resolution is as valid and effectual as if it had been passed at a meeting of
the Board duly convened and held.
(1) The
Board may, with the unanimous agreement of all the members of the Board (not
including the CEO), establish a committee or committees to assist in carrying
out the functions of the Board.
(2) The
Board may dissolve a committee at any time.
(3) The
functions of a committee are as determined by the unanimous agreement of all
the members of the Board (not including the CEO).
(4) However,
the Board cannot determine that a committee has the function of determining
whether an ACC State intelligence operation is a special operation or whether
an ACC State investigation is a special investigation.
(5) In
performing its functions, a committee must comply with any directions given to
the committee by the Board.
(6) A
question arising at a meeting of a committee is to be determined by a majority
of the votes of committee members present.
(7) However,
the CEO is not entitled to vote on any question arising at a meeting of a
committee of which he or she is a member.
(8) A
committee must inform the other members of the Board of its decisions.
(9) A
committee may regulate proceedings at its meetings as it considers appropriate.
(10) A
committee must ensure that minutes of its meetings are kept.
Division 3—The Inter-Governmental Committee
(1) Within
the period of 30 days beginning on the day the Committee is given a copy of a
determination (a special determination) under section 8(2)
or (3), the Committee may by resolution, with the agreement of the member of
the Committee representing the Commonwealth and at least 5 other members of the
Committee, request the Chair of the Board to give further information to the
Committee in relation to the determination.
(2) Subject
to subsection (3), the Chair of the Board must comply with the request.
(3) If
the Chair of the Board considers that disclosure of information to the public
could prejudice the safety or reputation of persons or the operations of law
enforcement agencies, the Chair must not give the Committee the information.
(4) If
the Chair of the Board does not give the Committee information on the ground
that the Chair considers that disclosure of the information to the public could
prejudice the safety or reputation of persons or the operations of law
enforcement agencies, the Committee may refer the request to the State
Minister.
(5) If the Committee refers the request to the
State Minister, he or she—
(a) must
determine in writing whether disclosure of the information could prejudice the
safety or reputation of persons or the operations of law enforcement agencies;
and
(b) must
provide copies of that determination to the Chair of the Board and the
Committee; and
(c) must
not disclose his or her reasons for determining the question of whether the
information could prejudice the safety or reputation of persons or the
operations of law enforcement agencies in the way stated in the determination.
(6) Within
the period of 30 days beginning on the day the Committee makes a request under
subsection (1) in relation to a special determination, the Committee may
by resolution, with the agreement of the member of the Committee representing
the Commonwealth and at least 5 other members of the Committee, revoke the
determination.
(7) The
Committee must notify the Chair of the Board and the CEO of the revocation. The
revocation takes effect when the CEO is so notified.
(8) To
avoid doubt, the revoking of the determination does not affect the validity of
any act done in connection with the ACC operation/investigation concerned
before the CEO is so notified.
(9) The
Committee does not have a duty to consider whether to exercise the power under
subsection (1) or (6) in respect of any special determination, whether the
Committee is requested to do so by any person, or in any other circumstances.
An examiner may conduct an examination for the purposes of a
special ACC operation/investigation.
(1) An
examiner may regulate the conduct of proceedings at an examination as the
examiner thinks fit.
(2) At an examination before an examiner—
(a) a
person giving evidence may be represented by a legal practitioner; and
(b) if,
by reason of the existence of special circumstances, the examiner consents to a
person who is not giving evidence being represented by a legal practitioner—the
person may be so represented.
(3) An
examination before an examiner must be held in private and the examiner may
give directions as to the persons who may be present during the examination or
a part of the examination.
(4) Nothing in a direction given by the
examiner under subsection (3) prevents the presence, when evidence is
being taken at an examination before the examiner, of—
(a) a
person representing the person giving evidence; or
(b) a
person representing, in accordance with subsection (2), a person who, by
reason of a direction given by the examiner under subsection (3), is
entitled to be present.
(5) If
an examination before an examiner is being held, a person (other than a member
of the staff of the ACC approved by the examiner) must not be present at the
examination unless the person is entitled to be present by reason of a
direction given by the examiner under subsection (3) or by reason of
subsection (4).
(6) At an examination before an examiner—
(a) counsel
assisting the examiner generally or in relation to the matter to which the ACC
operation/investigation relates; or
(b) any
person authorised by the examiner to appear before the examiner at the
examination; or
(c) any
legal practitioner representing a person at the examination in accordance with
subsection (2),
may, so far as the examiner thinks appropriate, examine or
cross-examine any witness on any matter that the examiner considers relevant to
the ACC operation/investigation.
(7) If a person (other than a member of the
staff of the ACC) is present at an examination before an examiner while another
person (the witness) is giving evidence at the examination, the
examiner must—
(a) inform
the witness that the person is present; and
(b) give
the witness an opportunity to comment on the presence of the person.
(8) To avoid doubt, a person does not cease to
be entitled to be present at an examination before an examiner or part of such
an examination if—
(a) the
examiner fails to comply with subsection (7); or
(b) a
witness comments adversely on the presence of the person under
subsection (7)(b).
(9) An examiner may direct that—
(a) any
evidence given before the examiner; or
(b) the
contents of any document, or a description of any thing, produced to the
examiner; or
(c) any
information that might enable a person who has given evidence before the
examiner to be identified; or
(d) the
fact that any person has given or may be about to give evidence at an
examination,
must not be published, or must not be published except in such
manner, and to such persons, as the examiner specifies. The examiner must give
such a direction if the failure to do so might prejudice the safety or
reputation of a person or prejudice the fair trial of a person who has been, or
may be, charged with an offence.
(10) Subject
to subsection (11), the CEO may, in writing, vary or revoke a direction
under subsection (9).
(11) The
CEO must not vary or revoke a direction if to do so might prejudice the safety
or reputation of a person or prejudice the fair trial of a person who has been
or may be charged with an offence.
(12) If—
(a) a
person has been charged with an offence before a federal court or before a
court of the State; and
(b) the
court considers that it may be desirable in the interests of justice that
particular evidence given before an examiner, being evidence in relation to
which the examiner has given a direction under subsection (9), be made
available to the person or to a legal practitioner representing the person,
the court may give to the examiner or to the CEO a certificate to
that effect and, if the court does so, the examiner or the CEO, as the case may
be, must make the evidence available to the court.
(13) If—
(a) the
examiner or the CEO makes evidence available to a court in accordance with
subsection (12); and
(b) the
court, after examining the evidence, is satisfied that the interests of justice
so require,
the court may make the evidence available to the person charged with
the offence concerned or to a legal practitioner representing the person.
(14) A person who—
(a) is
present at an examination in contravention of subsection (5); or
(b) makes
a publication in contravention of a direction given under subsection (9),
is guilty of an offence.
Maximum penalty: $2 200 or imprisonment for 1 year.
(15) At the conclusion of an examination held by
an examiner, the examiner must give the head of the special ACC
operation/investigation—
(a) a
record of the proceedings of the examination; and
(b) any
documents or other things given to the examiner at, or in connection with, the
examination.
19—Power to summon witnesses and take evidence
(1) An
examiner may summon a person to appear before the examiner at an examination to
give evidence and to produce such documents or other things (if any) as are
referred to in the summons.
(2) Before
issuing a summons under subsection (1), the examiner must be satisfied
that it is reasonable in all the circumstances to do so. The examiner must also
record in writing the reasons for the issue of the summons.
(3) A
summons under subsection (1) requiring a person to appear before an
examiner at an examination must be accompanied by a copy of the determination
of the Board that the State ACC intelligence operation is a special operation
or that the State ACC investigation is a special investigation.
(4) A
summons under subsection (1) requiring a person to appear before an
examiner at an examination must, unless the examiner issuing the summons is
satisfied that, in the particular circumstances of the special ACC
operation/investigation to which the examination relates, it would prejudice
the effectiveness of the special ACC operation/investigation for the summons to
do so, set out, so far as is reasonably practicable, the general nature of the
matters in relation to which the examiner intends to question the person, but
nothing in this subsection prevents the examiner from questioning the person in
relation to any matter that relates to a special ACC operation/investigation.
(5) The
examiner who is holding an examination may require a person appearing at the
examination to produce a document or other thing.
(6) An examiner may, at an examination, take
evidence on oath or affirmation and for that purpose—
(a) the
examiner may require a person appearing at the examination to give evidence
either to take an oath or to make an affirmation in a form approved by the examiner;
and
(b) the
examiner, or a person who is an authorised person in relation to the ACC, may
administer an oath or affirmation to a person so appearing at the examination.
(7) In
this section, a reference to a person who is an authorised person in relation
to the ACC is a reference to a person authorised in writing, or a person
included in a class of persons authorised in writing, for the purposes of this
section by the CEO.
(8) The
powers conferred by this section are not exercisable except for the purposes of
a special ACC operation/investigation.
(1) An examiner may, by notice in writing
served on a person, require the person—
(a) to
attend, at a time and place specified in the notice, before a person specified
in the notice, being the examiner or a member of the staff of the ACC; and
(b) to
produce at that time and place to the person so specified a document or thing
specified in the notice, being a document or thing that is relevant to a
special ACC operation/investigation.
(2) Before
issuing a notice under subsection (1), the examiner must be satisfied that
it is reasonable in all the circumstances to do so. The examiner must also
record in writing the reasons for the issue of the notice.
(3) A
notice may be issued under this section in relation to a special ACC
operation/investigation, whether or not an examination before an examiner is
being held for the purposes of the operation or investigation.
(4) A
person must not refuse or fail to comply with a notice served on the person
under this section.
(5) A person who contravenes
subsection (4) is guilty of an offence.
Maximum penalty: $22 000 or imprisonment for 5 years.
(6) The
provisions of section 23(3) to (5) and (7) apply in relation to a person
who is required to produce a document or thing by a notice served on him or her
under this section in the same manner as they apply in relation to a person who
is required to produce a document or thing at an examination before an
examiner.
(7) If
there is a contravention of section 23(3) as applied by
subsection (6), the provisions of section 23(6) apply to that
contravention.
21—Disclosure of summons or notice may be prohibited
(1) The
examiner issuing a summons under section 19 or a notice under
section 20 must, or may, as provided in subsection (2), include in it
a notation to the effect that disclosure of information about the summons or
notice, or any official matter connected with it, is prohibited except in the
circumstances, if any, specified in the notation.
(2) A notation must not be included in the
summons or notice except as follows:
(a) the
examiner must include the notation if satisfied that failure to do so would
reasonably be expected to prejudice—
(i) the
safety or reputation of a person; or
(ii) the
fair trial of a person who has been or may be charged with an offence; or
(iii) the
effectiveness of an operation or investigation;
(b) the
examiner may include the notation if satisfied that failure to do so might
prejudice—
(i) the
safety or reputation of a person; or
(ii) the
fair trial of a person who has been or may be charged with an offence; or
(iii) the
effectiveness of an operation or investigation;
(c) the
examiner may include the notation if satisfied that failure to do so might
otherwise be contrary to the public interest.
(3) If
a notation is included in the summons or notice, it must be accompanied by a
written statement setting out the rights and obligations conferred or imposed
by section 22 on the person who was served with, or otherwise given, the
summons or notice.
(4) If, after the ACC has concluded the
operation or investigation concerned—
(a) no
evidence of an offence has been obtained as described in section 34(1); or
(b) evidence
of an offence or offences has been assembled and given as required by
section 34(1) and the CEO has been advised that no person will be
prosecuted; or
(c) evidence
of an offence or offences committed by only one person has been assembled and
given as required by section 34(1) and criminal proceedings have begun
against that person; or
(d) evidence
of an offence or offences committed by 2 or more persons has been assembled and
given as required by section 34(1) and—
(i) criminal
proceedings have begun against all those persons; or
(ii) criminal
proceedings have begun against one or more of those persons and the CEO has
been advised that no other of those persons will be prosecuted,
all the notations that were included under this section in any
summonses or notices relating to the operation or investigation are cancelled
by this subsection.
(5) If
a notation is cancelled by subsection (4), the CEO must serve a written
notice of that fact on each person who was served with, or otherwise given, the
summons or notice containing the notation.
(6) In this section—
official matter has the same meaning as in section 22.
(1) A person who is served with, or otherwise
given, a summons or notice containing a notation made under section 21
must not disclose—
(a) the
existence of the summons or notice or any information about it; or
(b) the existence of, or any information about,
any official matter connected with the summons or notice.
Maximum penalty: $2 200 or imprisonment for 1 year.
(2) Subsection (1) does not prevent the
person from making a disclosure—
(a) in
accordance with the circumstances, if any, specified in the notation; or
(b) to
a legal practitioner for the purpose of obtaining legal advice or
representation relating to the summons, notice or matter; or
(c) if
the person is a body corporate—to an officer or agent of the body corporate for
the purpose of ensuring compliance with the summons or notice; or
(d) if
the person is a legal practitioner—for the purpose of obtaining the agreement
of another person under section 23(3) to the legal practitioner answering
a question or producing a document at an examination before an examiner.
(3) If a disclosure is made to a person as
permitted by subsection (2) or (4), the following provisions apply:
(a) while
he or she is a person of a kind to whom a disclosure is so permitted to be
made, he or she must not disclose the existence of, or any information about,
the summons or notice, or any official matter connected with it, except as permitted
by subsection (4);
(b) while he or she is no longer such a person,
he or she must not, in any circumstances, make a record of, or disclose the
existence of, the summons, notice or matter, or disclose any information about
any of them.
Maximum penalty: $2 200 or imprisonment for 1 year.
(4) A person to whom information has been
disclosed, as permitted by subsection (2) or this subsection, may disclose
that information—
(a) if
the person is an officer or agent of a body corporate referred to in subsection (2)(c)—
(i) to
another officer or agent of the body corporate for the purpose of ensuring
compliance with the summons or notice; or
(ii) to
a legal practitioner for the purpose of obtaining legal advice or
representation relating to the summons, notice or matter; or
(b) if
the person is a legal practitioner—for the purpose of giving legal advice, or
making representations, relating to the summons, notice or matter.
(5) This section ceases to apply to a summons
or notice after—
(a) the
notation contained in the summons or notice is cancelled by section 21(4);
or
(b) 5
years elapse after the issue of the summons or notice, whichever is sooner.
(6) A
reference in this section to disclosing something’s existence includes
disclosing information from which a person could reasonably be expected to
infer its existence.
(7) In this section—
official matter means any of the following (whether past,
present or contingent):
(a) the
determination referred to in section 19(3);
(b) an
ACC operation/investigation;
(c) an
examination held by an examiner;
(d) court
proceedings.
23—Failure of witnesses to attend and answer questions
(1) A person served, as prescribed, with a
summons to appear as a witness at an examination before an examiner must not—
(a) fail
to attend as required by the summons; or
(b) fail
to attend from day to day unless excused, or released from further attendance,
by the examiner.
(2) A person appearing as a witness at an
examination before an examiner must not—
(a) when
required pursuant to section 19 either to take an oath or make an
affirmation—refuse or fail to comply with the requirement; or
(b) refuse
or fail to answer a question that he or she is required to answer by the
examiner; or
(c) refuse
or fail to produce a document or thing that he or she was required to produce
by a summons under this Act served on him or her as prescribed.
(3) Where—
(a) a
legal practitioner is required to answer a question or produce a document at an
examination before an examiner; and
(b) the
answer to the question would disclose, or the document contains, a privileged
communication made by or to the legal practitioner in his or her capacity as a
legal practitioner,
the legal practitioner is entitled to refuse to comply with the
requirement unless the person to whom or by whom the communication was made
agrees to the legal practitioner complying with the requirement but, where the
legal practitioner refuses to comply with the requirement, he or she must, if
so required by the examiner, give the examiner the name and address of the
person to whom or by whom the communication was made.
(4) Subsection (5) limits the use that can
be made of any answers given at an examination before an examiner, or documents
or things produced at an examination before an examiner. That subsection only
applies if—
(a) a
person appearing as a witness at an examination before an examiner—
(i) answers
a question that he or she is required to answer by the examiner; or
(ii) produces
a document or thing that he or she was required to produce by a summons under
this Act served on him or her as prescribed; and
(b) in
the case of the production of a document that is, or forms part of, a record of
an existing or past business—the document sets out details of earnings received
by the person in respect of his or her employment and does not set out any
other information; and
(c) before
answering the question or producing the document or thing, the person claims
that the answer, or the production of the document or thing, might tend to
incriminate the person or make the person liable to a penalty.
(5) The answer, or the document or thing, is
not admissible in evidence against the person in—
(a) a
criminal proceeding; or
(b) a
proceeding for the imposition of a penalty,
other than—
(c) confiscation
proceedings; or
(d) a
proceeding in respect of—
(i) in
the case of an answer—the falsity of the answer; or
(ii) in
the case of the production of a document—the falsity of any statement contained
in the document.
(6) A person who contravenes
subsection (1), (2) or (3) is guilty of an offence.
Maximum penalty: $22 000 or imprisonment for 5 years.
(7) Subsection (3)
does not affect the law relating to legal professional privilege.
24—Warrant for arrest of witness
(1) Where, upon application by an examiner, a
Judge of the Federal Court sitting in chambers or the Supreme Court is satisfied
by evidence on oath that there are reasonable grounds to believe—
(a) that
a person who has been ordered, under section 28, to deliver his or her
passport to the examiner, whether or not the person has complied with the
order, is nevertheless likely to leave Australia for the purpose of avoiding
giving evidence before the examiner; or
(b) that
a person in relation to whom a summons has been issued under section 19(1)—
(i) has
absconded or is likely to abscond; or
(ii) is
otherwise attempting, or is otherwise likely to attempt, to evade service of
the summons; or
(c) that
a person has committed an offence under section 23(1) or is likely to do
so,
the Judge may issue a warrant for the apprehension of the person.
(2) The
warrant may be executed by any person to whom it is addressed and the person
executing it has power to break into and enter any premises, vessel, aircraft
or vehicle for the purpose of executing it.
(3) A
member of the Australian Federal Police cannot execute the warrant unless he or
she is also a member of the staff of the ACC.
(4) The
warrant may be executed even if the warrant is not at the time in the
possession of the person executing it.
(5) A
person executing the warrant may only use such reasonable force as is necessary
for the execution.
(6) Where a person is apprehended under the
warrant, he or she must be brought, as soon as practicable, before a Judge of
the Federal Court or the Supreme Court and the Judge may—
(a) admit
the person to bail, with such security as the Judge thinks fit, on such
conditions as he or she thinks necessary to ensure the appearance of the person
as a witness before the examiner; or
(b) order
the continued detention of the person for the purposes of ensuring his or her
appearance as such a witness; or
(c) order
the release of the person.
(7) Where
a person is under detention under this section, he or she must, within 14 days
after he or she was brought, or last brought, before a Judge of the Federal
Court or the Supreme Court in accordance with this section, or within such
shorter or longer time as a Judge has fixed upon the last previous appearance
of the person before a Judge under this section, be again brought before a
Judge and the Judge may then exercise any of the powers of a Judge under
subsection (6).
(8) In this section—
Australia includes the external Territories.
25—False or misleading evidence
(1) A
person must not, at an examination before an examiner, give evidence that the
person knows is false or misleading in a material particular.
(2) A person who contravenes
subsection (1) is guilty of an offence.
Maximum penalty: $22 000 or imprisonment for 5 years.
26—Protection of witnesses from harm or intimidation
Where it appears to an examiner that, by
reason of the fact that a person—
(a) is
to appear, is appearing or has appeared at an examination before the examiner
to give evidence or to produce a document or thing; or
(b) proposes
to furnish or has furnished information, or proposes to produce or has produced
a document or thing, to the ACC otherwise than at an examination before the
examiner,
the safety of the person may be prejudiced or the person may be
subjected to intimidation or harassment, the examiner may make such
arrangements (including arrangements with the State Minister or with members of
the Australian Federal Police or of the Police Force of the State) as are
necessary to avoid prejudice to the safety of the person, or to protect the
person from intimidation or harassment.
27—Legal protection of examiners, counsel and witnesses
(1) An
examiner has, in the performance of his or her functions or the exercise of his
or her powers as an examiner in relation to an examination before the examiner,
the same protection and immunity as a Justice of the High Court.
(2) A
legal practitioner assisting the ACC or an examiner or representing a person at
an examination before an examiner has the same protection and immunity as a
barrister has in appearing for a party in proceedings in the High Court.
(3) Subject
to this Act, a person summoned to attend or appearing before an examiner as a
witness has the same protection as a witness in proceedings in the High Court.
28—Order for delivery to examiner of passport of witness
(1) Where, upon application by an examiner, a
Judge of the Federal Court sitting in Chambers is satisfied by evidence on oath
that—
(a) in
connection with a special ACC operation/investigation, a summons has been
issued under this Act requiring a person to appear before an examiner at an
examination (whether or not the summons has been served), or a person has
appeared before an examiner at an examination, to give evidence or to produce
documents or other things; and
(b) there
are reasonable grounds for believing that the person may be able to give to the
examiner evidence or further evidence that is, or to produce to the examiner
documents or other things or further documents or other things that are,
relevant to the special ACC operation/investigation and could be of particular
significance to the special ACC operation/investigation; and
(c) there
are reasonable grounds for suspecting that the person intends to leave
Australia and has in his or her possession, custody or control of a passport
issued to him or her,
the Judge may make an order requiring the person to appear before
a Judge of the Federal Court on a date, and at a time and place, specified in
the order to show cause why he or she should not be ordered to deliver the
passport to the examiner.
(2) Where a person appears before a Judge of
the Federal Court under an order made under subsection (1), the Judge may,
if he or she thinks fit, make an order—
(a) requiring
the person to deliver to the examiner any passport issued to him or her that is
in his or her possession, custody or control; and
(b) authorising
the examiner to retain the passport until the expiration of such period (not
exceeding one month) as is specified in the order.
(3) A
Judge of the Federal Court may, upon application by the examiner, extend for a
further period (not exceeding 1 month) or further periods (not exceeding 1
month in each case) the period for which the examiner is authorised to retain a
passport under an order made under subsection (2), but so that the total
period for which the examiner is authorised to retain the passport does not exceed
3 months.
(4) A
Judge of the Federal Court may, at any time while the examiner is authorised
under an order made under this section to retain a passport issued to a person,
upon application made by the person, revoke the order and, if the order is revoked,
the examiner must forthwith return the passport to the person.
(5) In this section—
Australia includes the external Territories.
(1) An eligible person may apply to an issuing
officer for the issue of a warrant under subsection (2) if—
(a) the
eligible person has reasonable grounds for suspecting that, on a particular day
(the relevant day), being the day on which, or a particular day
within one month after the day on which, the application is made, there may be,
upon any land or upon or in any premises, vessel, aircraft or vehicle, a thing
or things of a particular kind connected with a special ACC
operation/investigation (things of the relevant kind); and
(b) the
eligible person believes on reasonable grounds that, if a summons were issued
for the production of the thing or things, the thing or things might be
concealed, lost, mutilated or destroyed.
(2) Where an application under
subsection (1) is made to an issuing officer, the issuing officer may
issue a warrant authorising a person named in the warrant (the authorised
person), with such assistance as the authorised person thinks necessary
and if necessary by force, to do any one or more of the following:
(a) enter
upon the land or upon or into the premises, vessel, aircraft or vehicle;
(b) search
the land, premises, vessel, aircraft or vehicle for things of the relevant
kind;
(c) seize
any things of the relevant kind found upon the land or upon or in the premises,
vessel, aircraft or vehicle and deliver things so seized to any person
participating in the special ACC operation/investigation.
(3) A
member of the Australian Federal Police cannot be an authorised person unless
he or she is also a member of the staff of the ACC.
(4) An issuing officer must not issue a warrant
under subsection (2) unless—
(a) an
affidavit has been furnished to him or her setting out the grounds on which the
issue of the warrant is being sought; and
(b) the
applicant (or some other person) has given to the issuing officer, either
orally or by affidavit, such further information (if any) as the issuing
officer requires concerning the grounds on which the issue of the warrant is
being sought; and
(c) the
issuing officer is satisfied that there are reasonable grounds for issuing the
warrant.
(5) Where
an issuing officer issues a warrant under subsection (2), he or she must
state on the affidavit furnished to him or her as mentioned in
subsection (4)(a) which of the grounds specified in that affidavit he or
she has relied on to justify the issue of the warrant and particulars of any
other grounds relied on by him or her to justify the issue of the warrant.
(6) A warrant issued under this section must—
(a) include
a statement of the purpose for which the warrant is issued, which must include
a reference to the special ACC operation/investigation with which the things of
the relevant kind are connected; and
(b) state
whether entry is authorised to be made at any time of the day or night or
during specified hours of the day or night; and
(c) include
a description of the kind of things authorised to be seized; and
(d) specify
a date, not being later than one month after the date of issue of the warrant,
upon which the warrant ceases to have effect.
(7) A
warrant issued under this section may be executed, in accordance with its
terms, at any time during the period commencing on the relevant day and ending
on the date specified in the warrant as the date upon which the warrant ceases
to have effect.
(8) A
person executing a warrant issued under this section may only use such
reasonable force as is necessary for the execution.
(9) Where,
in the course of searching, in accordance with the terms of a warrant issued
under this section, for things of the relevant kind, the person executing the
warrant finds a thing that he or she believes on reasonable grounds to be
evidence that would be admissible in the prosecution of a person for an offence
against a law of the Commonwealth or of a State or Territory and he or she
believes on reasonable grounds that it is necessary to seize the thing in order
to prevent its concealment, loss, mutilation or destruction, or its use in
committing such an offence, the person may seize the thing and, if he or she
does so, the thing is to be taken, for the purposes of this Act, to have been
seized pursuant to the warrant.
(10) Where a thing is seized pursuant to a
warrant issued under this section—
(a) the
head of the special ACC operation/investigation may retain the thing if, and
for so long as, retention of the thing by the head of the special ACC
operation/investigation is reasonably necessary for the purposes of the special
ACC operation/investigation to which the thing is relevant; and
(b) if
the retention of the thing by the head of the special ACC
operation/investigation is not, or ceases to be, reasonably necessary for such
purposes, a person participating in the special ACC operation/investigation
must cause the thing to be delivered to—
(i) if
the thing may be used in evidence in proceedings of a kind referred to in
subsection (13)—the authority or person responsible for taking the
proceedings; or
(ii) if
subparagraph (i) does not apply—the person who appears to the person participating
in the special ACC operation/investigation to be entitled to the possession of
the thing,
unless the CEO has furnished the thing to the Attorney-General of
the Commonwealth or of a State, or to a law enforcement agency, or to another
person or authority, in accordance with section 34(1)(a), (b) or (c).
(11) A
person participating in the special ACC operation/investigation may, instead of
delivering a thing in accordance with subsection (10)(b)(ii), deliver the
thing to the Attorney-General of the Commonwealth or of a State, or to a law
enforcement agency, for the purpose of assisting in the investigation of
criminal offences, where the person participating in the special ACC
operation/investigation is satisfied that the thing is likely to be useful for
that purpose.
(12) Nothing
in this section affects a right of a person to apply for, or the power of a
person to issue, a warrant, being a right or power existing otherwise than by
virtue of this section.
(13) Without
limiting the generality of subsection (1)(a), a reference in this section
to a thing connected with a special ACC operation/investigation, includes a
reference to a thing that may be used in evidence in proceedings for the
taking, by or on behalf of the Crown in right of the Commonwealth, of a State
or of a Territory, of civil remedies in respect of a matter connected with, or
arising out of, an offence to which the special ACC operation/investigation
relates.
(14) In this section—
thing includes a document.
30—Application by telephone for search warrants
(1) Where,
by reason of circumstances of urgency, an eligible person considers it
necessary to do so, the eligible person may make application by telephone for a
warrant under section 29.
(2) Before
so making application, the eligible person must prepare an affidavit that sets
out the grounds on which the issue of the warrant is being sought, but may, if
it is necessary to do so, make the application before the affidavit has been
sworn.
(3) Where an issuing officer issues a warrant
under section 29 upon an application made by telephone, he or she must—
(a) complete
and sign the warrant; and
(b) inform
the eligible person who made the application of the terms of the warrant and
the date on which and the time at which it was signed; and
(c) record
on the warrant his or her reasons for issuing the warrant; and
(d) send
a copy of the warrant to the CEO.
(4) Where
a warrant is issued under section 29 upon an application made by
telephone, a member of the staff of the ACC or a member of the Police Force of
the State may complete a form of warrant in the terms indicated by the issuing
officer under subsection (3) and, where a form of warrant is so completed,
he or she must write on it the name of the issuing officer who issued the
warrant and the date on which and the time at which it was signed.
(5) Where
a person completes a form of warrant in accordance with subsection (4),
the person must, not later than the day next following the date of expiry of
the warrant, send to the issuing officer who signed the warrant the form of
warrant completed by him or her and the affidavit duly sworn in connection with
the warrant.
(6) Upon
receipt of the documents referred to in subsection (5) the issuing officer
must attach them to the warrant signed by him or her and deal with the
documents in the manner in which he or she would have dealt with the affidavit
if the application for the warrant had been made to him or her in accordance
with section 29.
(7) A
form of warrant duly completed in accordance with subsection (4) is to be
taken to be a warrant issued under section 29.
Part 5—Performance of functions and exercise of powers
31—Consent of Board may be needed before functions can be performed
The conferral of a function on a Commonwealth body or person by
this Act is subject to any provision of the ACC Act that requires the consent
of the Board before the function can be performed.
32—Functions not affected by State laws
A Commonwealth body or person is not precluded by any law of the
State from performing a function conferred by this Act.
33—Extent to which functions are conferred
(1) This
Act does not purport to impose any duty on a Commonwealth body or person to
perform a function if the imposition of the duty would be beyond the
legislative power of the Parliament of the State.
(2) This
section does not limit the operation of section 35 of this Act or section
22A of the Acts Interpretation Act 1915.
(1) Where the ACC, in carrying out an ACC
operation/investigation, obtains evidence of an offence against a law of the
Commonwealth or of a State or Territory, being evidence that would be
admissible in a prosecution for the offence, the CEO must assemble the evidence
and give it to—
(a) the
Attorney-General of the Commonwealth or the State, as the case requires; or
(b) the
relevant law enforcement agency; or
(c) any
person or authority (other than a law enforcement agency) who is authorised by
or under a law of the Commonwealth or of the State or Territory to prosecute
the offence.
(2) Where the ACC, in carrying out an ACC
operation/investigation, obtains evidence that would be admissible in
confiscation proceedings, the CEO may assemble the evidence and give it to—
(a) the
Attorney-General of the Commonwealth or the relevant State, as the case
requires; or
(b) a
relevant law enforcement agency; or
(c) any
person or authority (other than a law enforcement authority) who is authorised
to commence the confiscation proceedings.
(3) Where, as a result of the performance of
any of the ACC’s functions, the Board considers that a recommendation should be
made to the Commonwealth Minister or to the appropriate State Minister of a
participating State, being a recommendation—
(a) for
reform of the law relating to relevant offences, including any one or more of
the following:
(i) evidence
and procedure applicable to the trials of relevant offences;
(ii) relevant
offences in relation to, or involving, corporations;
(iii) taxation,
banking and financial frauds;
(iv) reception
by Australian courts of evidence obtained in foreign countries as to relevant
offences;
(v) maintenance
and preservation of taxation, banking and financial records; or
(b) for
reform of administrative practices; or
(c) for
reform of administration of the courts in relation to trials of relevant
offences,
the Board may make the recommendation to the Commonwealth
Minister, or to that State Minister, as the case may be.
(4) Where
the ACC has obtained particular information or intelligence in the course of
performing one or more of its functions, nothing in this Act is to be taken to
prevent the ACC from making use of the information or intelligence in the
performance of any of its other functions.
35—Functions of federal judicial officers
(1) In this section—
federal judicial officer means a Judge of the Federal Court or a
Federal Magistrate.
(2) A
function conferred on a federal judicial officer by this Act is conferred on
the federal judicial officer in a personal capacity and not as a court or a
member of a court. The federal judicial officer need not accept the function
conferred.
(3) Anything
done or made by a federal judicial officer under this Act has effect only by
virtue of this Act and is not to be taken by implication to be done or made by
a court.
(4) A
federal judicial officer performing a function under this Act has the same
protection and immunity as if he or she were performing that function as, or as
a member of, a court (being the court of which the federal judicial officer is
a member).
36—Limitation on challenge to Board determination
If—
(a) an
ACC State intelligence operation is determined by the Board to be a special
operation; or
(b) an
ACC State investigation is determined by the Board to be a special
investigation,
then, except in a proceeding instituted by the Attorney-General of
the Commonwealth or of a State, any act or thing done by the ACC because of
that determination must not be challenged, reviewed, quashed or called in
question in any court of the State on the ground that the determination was not
lawfully made.
37—Cooperation with law enforcement agencies and coordination with overseas authorities
(1) In
performing its functions under this Act, the ACC must, so far as is
practicable, work in cooperation with law enforcement agencies.
(2) In
performing its functions under this Act, the ACC may coordinate its activities
with the activities of authorities and persons in other countries performing
functions similar to functions of the ACC.
The ACC has power to do all things necessary to be done for or in
connection with, or reasonably incidental to, the performance of its functions
under this Act, and any specific powers conferred on the ACC by this Act are
not to be taken to limit by implication the generality of this section.
If—
(a) an
act or omission by a person is an offence under this Act and is also an offence
under the ACC Act; and
(b) the
person has been punished for the offence under the ACC Act,
the person is not liable to be punished for the offence under this
Act.
40—Arrangements for Board to obtain information or intelligence
The State Minister may make an arrangement with the Commonwealth
Minister for the Board to be given by the State, or an authority of the State,
information or intelligence relating to relevant criminal activities.
41—Administrative arrangements with the Commonwealth
The State Minister may make an arrangement with the Commonwealth
Minister under which the State will, from time to time as agreed upon under the
arrangement, make available a person who is an officer or employee of the State
or of an authority of the State or a member of the Police Force of the State,
or persons who are such officers, employees or members, to perform services for
the ACC.
42—Judges to perform functions under the ACC Act
A Judge of a court of the State may perform functions conferred on
the Judge by section 22, 23 or 31 of the ACC Act.
43—Furnishing of reports and information
(1) The
Chair of the Board must keep the Commonwealth Minister informed of the general
conduct of the ACC in the performance of the ACC’s functions under this Act. If
the Commonwealth Minister requests the Chair of the Board to provide to him or
her information concerning a specific matter relating to the ACC’s conduct in
the performance of its functions under this Act, the Chair must comply with the
request.
(2) Subject
to subsection (3), if a State Minister who is a member of the
Inter-Governmental Committee requests the Chair of the Board to provide to him
or her information concerning a specific matter relating to the ACC’s conduct in
the performance of its functions under this Act, the Chair must comply with the
request.
(3) If
the Chair of the Board considers that disclosure of information to the public
could prejudice the safety or reputation of persons or the operations of law enforcement
agencies, the Chair must not provide the information under subsection (2).
(4) Subject to subsection (6), the Chair
of the Board—
(a) must,
when requested by the Inter-Governmental Committee to furnish information to
the Committee concerning a specific matter relating to an ACC
operation/investigation that the ACC has conducted or is conducting, comply
with the request; and
(b) must,
when requested by the Inter-Governmental Committee to do so, and may at such
other times as the Chair of the Board thinks appropriate, inform the Committee
concerning the general conduct of the ACC in the performance of the ACC’s
functions under this Act.
(5) Subject
to subsection (6), the Chair of the Board must furnish to the
Inter-Governmental Committee, for transmission to the Governments represented
on the Committee, a report of the findings of any special ACC
operation/investigation conducted by the ACC.
(6) The
Chair of the Board must not furnish to the Inter-Governmental Committee any
matter the disclosure of which to members of the public could prejudice the
safety or reputation of persons or the operations of law enforcement agencies
and, if the findings of the ACC in an investigation include any such matter,
the Chair of the Board must prepare a separate report in relation to the matter
and furnish that report to the State Minister.
(7) The
Chair of the Board may include in a report furnished under subsection (5)
a recommendation that the report be laid before each House of the Parliament of
the State.
(8) The CEO may give to—
(a) any
law enforcement agency; or
(b) any
foreign law enforcement agency; or
(c) any
other authority of the Commonwealth, a State or a Territory prescribed by the
regulations,
any information that has come into the ACC’s possession under this
Act and that is relevant to the activities of that agency or authority if—
(d) it
appears to the CEO to be appropriate to do so; and
(e) to
do so would not be contrary to a law of the Commonwealth, a State or a
Territory that would otherwise apply.
(9) The
CEO may, whenever it appears to the CEO to be appropriate to do so, furnish to
authorities and persons responsible for taking civil remedies by or on behalf
of the Crown in right of the Commonwealth, of a State or of a Territory any
information that has come into the ACC’s possession under this Act and that may
be relevant for the purposes of so taking such remedies in respect of matters
connected with, or arising out of, offences against the laws of the
Commonwealth, of a State or of a Territory, as the case may be.
(10) Where any information relating to the
performance of the functions of an authority of the Commonwealth or a State or
the Administration of a Territory comes into the ACC’s possession under this
Act, the CEO may, if he or she considers it desirable to do so—
(a) furnish
that information to the authority or Administration; and
(b) make
any recommendations to the authority or Administration as to the performance of
its functions that the CEO considers appropriate.
(11) A
report under this Act that sets out any finding that an offence has been
committed, or makes any recommendation for the institution of a prosecution in
respect of an offence, must not be made available to the public unless the
finding or recommendation is expressed to be based on evidence that would be
admissible in the prosecution of a person for that offence.
(12) The
CEO may, whenever it appears to the CEO to be appropriate to do so, furnish to
the Australian Security Intelligence Organisation any information that has come
into the ACC’s possession under this Act and that is relevant to security as
defined in section 4 of the Australian Security Intelligence Organisation
Act 1979 of the Commonwealth.
(1) This section applies to—
(a) the
CEO; and
(b) a
member of the Board; and
(c) a
member of the staff of the ACC; and
(d) an
examiner.
(2) A person to whom this section applies who,
either directly or indirectly, except for the purposes of a relevant Act or
otherwise in connection with the performance of his or her functions under a
relevant Act, and either while he or she is or after he or she ceases to be a
person to whom this section applies—
(a) makes
a record of any information; or
(b) divulges
or communicates to any person any information,
being information acquired by him or her
by reason of, or in the course of, the performance of his or her functions
under this Act, is guilty of an offence.
Maximum penalty: $5 500 or imprisonment for 1 year, or both.
(3) A person to whom this section applies
cannot be required to produce in any court any document that has come into his
or her custody or control in the course of, or by reason of, the performance of
his or her functions under this Act, or to divulge or communicate to a court a
matter or thing that has come to his or her notice in the performance of those
functions, except where the ACC, or the CEO, the acting CEO, a member of the
Board or an examiner in his or her official capacity, is a party to the
relevant proceeding or it is necessary to do so—
(a) for
the purpose of carrying into effect the provisions of a relevant Act; or
(b) for
the purposes of a prosecution instituted as a result of an operation or
investigation carried out by the ACC in the performance of its functions.
(4) In this section—
court includes any tribunal, authority or person having power to
require the production of documents or the answering of questions;
member of the staff of the ACC means—
(a) a
person referred to in the definition of member of the staff of the ACC
in section 4(1) of the ACC Act; or
(b) a
person who assists, or performs services for or on behalf of, a legal
practitioner appointed under section 7 in the performance of the legal
practitioner’s functions as counsel to the ACC;
produce includes permit access to, and production has a
corresponding meaning;
relevant Act means the ACC Act, this Act or any corresponding Act of another
State.
The CEO may, by writing, delegate to a member of the staff of the
ACC who is an SES employee, or an acting SES employee, all or any of the CEO’s
functions under this Act.
A member of the Board is not liable to an action or other
proceeding for damages for or in relation to an act done or omitted in good
faith in performance or purported performance of any function conferred or
expressed to be conferred by or under this Act.
47—Obstructing, hindering or disrupting the ACC or an examiner
(1) A person must not—
(a) obstruct
or hinder—
(i) the
ACC in the performance of its functions; or
(ii) an
examiner in the performance of his or her functions as an examiner; or
(b) disrupt
an examination before an examiner.
(2) A person who contravenes
subsection (1) is guilty of an offence.
Maximum penalty: $22 000 or imprisonment for 5 years.
48—Public meetings and bulletins
(1) The
Board may hold meetings in public for the purpose of informing the public
about, or receiving submissions in relation to, the performance of the ACC’s
functions, including its functions under this Act.
(2) The
Board may publish bulletins for the purpose of informing the public about the
performance of the ACC’s functions, including its functions under this Act.
(3) The Board must not—
(a) divulge
in the course of a meeting held under subsection (1); or
(b) include
in a bulletin published under subsection (2),
any matter the disclosure of which to members of the public could
prejudice the safety or reputation of a person or prejudice the fair trial of a
person who has been or may be charged with an offence.
(1) In this section—
annual report means a report by the Chair of the Board under section 61 of the
ACC Act.
(2) An annual report in relation to a year must
include the following:
(a) a
description of any ACC State investigation that the ACC conducted during the
year and that the Board determined to be a special investigation;
(b) a
description, which may include statistics, of any patterns or trends, and the
nature and scope, of any criminal activity that have come to the attention of
the ACC during that year in the performance of its functions under this Act;
(c) any
recommendations for changes in the laws of the Commonwealth, of a participating
State or of a Territory, or for administrative action, that, as a result of the
performance of the ACC’s functions under this Act, the Board considers should
be made;
(d) the
general nature and the extent of any information furnished by the CEO during
that year under this Act to a law enforcement agency;
(e) the
extent to which ACC State investigations have resulted in the prosecution in
that year of persons for offences;
(f) the
extent to which ACC State investigations have resulted in confiscation
proceedings;
(g) particulars
of the number and results of court proceedings involving the ACC in relation to
its functions under this Act being proceedings that were determined, or
otherwise disposed of, during that year.
(3) An annual report must not—
(a) identify
persons as being suspected of having committed offences; or
(b) identify
persons as having committed offences unless those persons have been convicted
of those offences.
(4) In
any annual report the Chair of the Board must take reasonable care to ensure
that the identity of a person is not revealed if to reveal his or her identity
might, having regard to any material appearing in the report, prejudice the
safety or reputation of a person or prejudice the fair trial of a person who
has been or may be charged with an offence.
(5) The State Minister is to cause a copy of—
(a) each
annual report that he or she receives; and
(b) any
comments made on the report by the Inter-Governmental Committee, being comments
that accompanied the report,
to be laid before each House of the Parliament of the State within
15 sitting days of that House after he or she receives the report.
50—Things done for multiple purposes
The validity of anything done for the purposes of this Act is not
affected only because it was done also for the purposes of the ACC Act.
The Governor may make regulations for or with respect to any
matter that by this Act is required or permitted to be prescribed or that is
necessary or convenient to be prescribed for carrying out or giving effect to
this Act.
Schedule 1—Related amendments, repeal and transitional provision
Part 1—Preliminary
In this Part, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment
of Jurisdiction of Courts (Cross-vesting) Act 1987
2—Amendment of section 3—Interpretation
Section 3, definition of special federal matter—after
"of the Commonwealth" delete footnote 1.
Part 3—Amendment
of Listening and Surveillance Devices Act 1972
3—Amendment of section 3—Interpretation
(1) Section 3, before definition of associated
equipment—insert:
ACC
means the Australian Crime Commission
(2) Section 3, after definition of listening
device—insert:
member of the staff of the ACC has the same meaning as in the Australian
Crime Commission Act 2002 of the Commonwealth;
4—Amendment of section 6—Warrants—General provisions
(1) Section 6(2)(b)—delete "National Crime
Authority" and substitute:
ACC
(2) Section 6(2)(b)(i)—delete
"Authority" and substitute:
Board of the ACC
(3) Section 6(2)(b)(ii)—delete
"Authority" and substitute:
ACC
(4) Section 6(8)—delete "National Crime
Authority" and substitute:
Board of the ACC
(5) Section 6(9)(b)—delete paragraph (b) and
substitute:
(b) if
issued to a member of the Board of the ACC or a member of the staff of the ACC,
by a member of the Board of the ACC.
5—Amendment of section 6B—Reports and records relating to warrants, etc
(1) Section 6B(3)(b)—delete "National
Crime Authority" and substitute:
Board of the ACC
(2) Section 6B(3)(b)—delete "Authority furnished
to the Minister by the Authority" and substitute:
ACC furnished to the Minister by the ACC
(3) Section 6B(3)(c)—delete "National
Crime Authority" and substitute:
ACC
(4) Section 6B(3)(c)(ii)—delete "Authority
or members of the staff of the Authority" and substitute:
Board of the ACC or members of the staff of the ACC
6—Amendment of section 6C—Control by police, etc, of certain records, information and material
Section 6C—delete "National Crime
Authority" and substitute:
ACC
7—Amendment of section 7—Lawful use of listening device by party to private conversation
(1) Section 7(2)—delete "the
Authority" wherever occurring and substitute in each case:
the ACC
(2) Section 7(2)(b)—delete "National Crime
Authority" and substitute:
Board of the ACC
(3) Section 7(3)(c)—delete "National Crime
Authority" and substitute:
ACC
8—Amendment of section 9—Power to seize listening devices, etc
(1) Section 9(1)(b)—delete "National Crime
Authority" and substitute:
Board of the ACC
(2) Section 9(1)(c)—delete
"Authority" and substitute:
ACC
9—Amendment of section 10—Evidence
Section 10—delete "National Crime
Authority" and substitute:
Board of the ACC
Part 4—Amendment
of Taxation (Reciprocal Powers) Act 1989
10—Amendment of section 13—Disclosure of information
Section 13(3)(c)—delete paragraph (c) and
substitute:
(c) the
Australian Crime Commission or a person authorised by that Commission.
Part 5—Amendment
of Witness Protection Act 1996
11—Amendment of section 3—Interpretation
Section 3, definition of approved
authority, paragraph (c)—delete paragraph (c) and substitute:
(c) the
Chief Executive Officer of the Australian Crime Commission; or
Part 6—Repeal
of National Crime Authority (State Provisions) Act 1984
12—Repeal of National Crime Authority (State Provisions) Act 1984
The National Crime Authority (State Provisions) Act 1984
is repealed.
Part 7—Transitional
provisions
In this Part—
NCA investigation means an investigation under section 5(4) of the NCA
(State Provisions) Act;
NCA (State Provisions) Act means the National Crime Authority
(State Provisions) Act 1984.
14—Certain investigations taken to be special investigations
If an ACC State investigation relates to a matter into which an
NCA investigation had been commenced but not completed before 1 January 2003,
the Board of the ACC is taken to have determined, in writing, that the ACC
State investigation is a special investigation.
15—Assembling and giving evidence obtained by the NCA
If—
(a) before
1 January 2003, the National Crime Authority obtained evidence of a kind
referred to in section 6(1) of the NCA (State Provisions) Act; but
(b) the
National Crime Authority had not assembled and given the evidence as mentioned
in that subsection before 1 January 2003,
section 34(1) applies as if that evidence had been obtained
by the ACC in carrying out an ACC operation/investigation.
16—Limitation on challenges to validity of references
Section 8 of the NCA (State Provisions) Act continues to apply in
relation to a reference made under that Act as if that section had not been
repealed by this Act.
17—Arrangements to obtain information or intelligence
An arrangement that was in force under section 11 of the NCA
(State Provisions) Act immediately before 1 January 2003 has effect as if it
had been made under section 40.
18—Things seized under search warrants
If a thing seized pursuant to a warrant under section 12 of the
NCA (State Provisions) Act is in the ACC’s possession, section 29(10) and
(11) apply to that thing as if it had been seized pursuant to a warrant under
section 29.
19—Directions as to publication
(1) If a direction was in force under section
16(9) of the NCA (State Provisions) Act immediately before 1 January 2003—
(a) the
direction has effect; and
(b) section 18(10),
(11) and (14)(b) apply to the direction as if it were a direction under
section 18(9).
(2) Section 18(12)
and (13), so far as they relate to the CEO, apply to evidence in relation to
which a direction was given under section 16(9) of the NCA (State Provisions)
Act as if it were evidence given before an examiner in relation to which the
examiner has given a direction under section 18(9).
20—Disclosure of summons or notice
If a notation made in connection with an
NCA investigation was in force under section 18A of the NCA (State Provisions)
Act immediately before 1 January 2003—
(a) the
notation has effect; and
(b) section 22
applies to the summons or notice containing the notation; and
(c) if
there is an ACC operation/investigation relating to the matter to which the NCA
investigation related, section 21(4) and (5) apply as if the notation had
been made in connection with the ACC operation/investigation.
Arrangements that were in effect under section 24 of the NCA
(State Provisions) Act immediately before 1 January 2003 have effect as if they
had been made under section 26.
22—Administrative arrangements in relation to the NCA
An arrangement that was in force under section 28(b) of the NCA
(State Provisions) Act immediately before 1 January 2003 has effect as if it
had been made under section 42.
(1) In this section—
former official means a person who was, at any time, a person to whom section 31
of the NCA (State Provisions) Act applied.
(2) Section 44(2) and (3) extend to a
former official (whether or not he or she is or has been a person to whom section 44
applies) as if—
(a) references
in section 44 to this Act or to a corresponding Act of another State
included references to the NCA (State Provisions) Act or to a corresponding Act
of another State; and
(b) the
reference in section 44(3)(b) to an investigation carried out by the ACC
included a reference to an investigation carried out by the National Crime
Authority before 1 January 2003.
24—Validation of administrative actions
The Co-operative Schemes
(Administrative Actions) Act 2001 (the validation Act)
applies to administrative actions that have been taken, or have purportedly
been taken, under the NCA (State Provisions) Act as if—
(a) the
NCA (State Provisions) Act were still a relevant State Act for the purposes of
the validation Act; and
(b) for
the purposes of the validation Act, the “commencement time” in relation to the
NCA (State Provisions) Act were the time when Part 6 of this Schedule comes
into operation.
(1) If
there is no sufficient provision in this Part for dealing with a transitional
matter, regulations may prescribe all matters that are required, necessary or
convenient to be prescribed in relation to that matter.
(2) In subclause (1)—
transitional matter includes a savings or application matter.
(3) If
regulations made under subclause (1) provide that a state of affairs
specified or described in the regulations is to be taken to have existed, or
not to have existed, at and from a day that is earlier than the day on which
the regulations are published in the Gazette but not earlier than 1 January
2003, the regulations have effect according to their terms.
(4) Regulations
that contain a provision referred to in subclause (3) cannot be made more
than 12 months after the day on which Part 6 of this Schedule comes into
operation.
(5) If regulations contain a provision referred
to in (3), the provision does not operate so as to—
(a) affect
in a manner prejudicial to any person (other than the State or an authority of
the State), the rights of that person existing before the day of publication of
those regulations; or
(b) impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the day of publication of those regulations.