Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Daryl Williams AM QC MP)Schedule 2 - amendment of other acts
Australian Crime Commission Establishment Act 2002
This Item would make a minor technical amendment to the commencement provision of the Australian Crime Commission Establishment Act 2002 (ACC Establishment Act).
The commencement provision of the ACC Establishment Act refers to the Communications Legislation Amendment Act (No 1) 2002 . It should refer to the Communications Legislation Amendment Act (No 1) 2003 .
Item 1
This Item would make a technical amendment to subsection 8(1) of the Australian Federal Police Act 1979 to remove a reference to subsection (2C) which has been repealed.
Australian Protective Service Act 1987
Subsection 17(1) of the Australian Protective Service Act 1987 (APS Act) requires a protective service officer who arrests a person for an offence to deliver the person into the custody of a 'police officer' to be dealt with according to the law. The term 'police officer' is defined in subsection 3(1) of the APS Act. That definition is currently limited to Australian police officers.
Proposed Item 1A would amend the definition of 'police officer' in the APS Act to include a reference to a member, however described, of a police force of a foreign country.
This amendment works in conjunction with the amendments made by Items 4A and 4B of Schedule 2 to allow a protective service officer who arrests an alleged offender on an international flight that ends in a foreign country, to deliver that alleged offender into the custody of a member of a police force of a foreign country.
Australian Securities and Investments Commission Act 2001 and Corporations Act 2001
This Item would amend paragraph 18(2)(b) of the Australian Securities and Investments Commission Act 2001 (ASIC Act) to replace the reference to the NCA with a reference to the Chief Executive Officer of the ACC or a member of the staff of the ACC. Section 18 of the ASIC Act allows for the distribution by ASIC of reports into investigations under sections 13 and 14 of the Act. Paragraph 18(2)(b) currently provides that where a report relates to a 'serious contravention of a law of the Commonwealth, or a State or Territory', ASIC may give a copy of the report to the NCA.
This amendment, the proposed amendment in Item 1C and the proposed amendments to the Corporations Act 2001 in Items 1D-1F are consequential on the replacement of the NCA with the ACC and the incorporation of the Australian Bureau of Criminal Intelligence (ABCI) and the Office of Strategic Crime Assessments into the new organisation. The amendments enable the legislation to operate in the same way in respect of the ACC as it has with the NCA. The amendments were not included in the ACC Establishment Act due to the need to seek approval for the changes from the Ministerial Council for Corporations. That approval has now been obtained.
This Item would repeal subparagraph 127(4)(aa)(i) of the ASIC Act. Subparagraph 127(4)(aa)(i) of the ASIC Act allows for the Chairperson of ASIC to pass information to the ABCI where it would enable or assist the ABCI to perform any of its functions or powers. The ABCI now forms part of the ACC. As the ACC exercises different functions to those of the ABCI, and as there are other provisions that allow for the passing of information by ASIC to the ACC in appropriate circumstances, this Item repeals paragraph 127(4)(aa)(i).
Corporations Act 2001
These Items would amend three sections of the Corporations Act which deal with compliance assessments by ASIC or the Reserve Bank. These sections allow either ASIC or the Reserve Bank to give information to the NCA where a compliance assessment reveals 'a serious contravention of a law of the Commonwealth or of a State or Territory'. Section 794C relates to assessments by ASIC of compliance by market licensees. Section 823C relates to assessments by ASIC of compliance by clearing and settlement facility licensees. Section 823CA relates to assessments by the Reserve Bank of compliance by clearing and settlement facility licensees.
The three sections would be amended to allow information to be passed to the Chief Executive Officer of the ACC or a member of the staff of the ACC.
Crimes at Sea Act 2000
These Items will correct a reference to the "law in force in the Northern Territory" in subsections 6A(1) and 6A(7) of the Crimes at Sea Act 2000 by replacing it with a reference to a "law of the Northern Territory". The amendment will make it clear that the application of Northern Territory criminal laws in the adjacent territorial sea area does not include Commonwealth criminal laws in force in the Territory. The question of whether those Commonwealth criminal laws applied would then depend purely on the terms of those Commonwealth laws, as originally intended.
This Item provides that the amendments proposed by Items 2 and 3 apply in relation to conduct engaged in after this Act receives the Royal Assent.
Crimes (Aviation) Act 1991
Subsection 33(2) of the Crimes (Aviation) Act 1991 currently requires a protective service officer who takes a person into custody for a prohibited act to bring the person before an Australian magistrate. Item 4A would amend subsection 33(2) so that its application is subject to proposed subsection 33(2A) (see Item 4B).
Item 4B would insert proposed new subsection 33(2A) into the Crimes (Aviation) Act to provide for the delivery of a person arrested by a protective security officer on an aircraft in a flight that ends in a foreign country into the custody of a member of a police force of a foreign country. The provision also authorises the protective security officer to hold such a person in custody until they can deliver that person into the custody of a member of a police force of a foreign country. Proposed subsection 33(2A) will operate as an exception to the position in subsection 33(2) of the Crimes (Aviation) Act, which requires a protective service officer who takes a person into custody for a prohibited act to bring the person before an Australian magistrate.
Crimes Legislation Amendment Act (No.2) 1989
This Item would correct a misdescribed amendment of section 19B of the Crimes Act by substituting "the law" for "a law" in paragraph 10(a) of the Crimes Legislation Amendment Act (No.2) 1989 .
This Item would correct a misdescribed amendment of section 21B of the Crimes Act by substituting "a law" for "the law" in paragraph 17(a) of the Crimes Legislation Amendment Act (No.2) 1989.
Criminology Research Act 1971
Items 6A to 6P would make amendments to the Criminology Research Act 1971 to provide for the Australian Capital Territory (ACT) to be represented on the Criminology Research Council.
This Item would amend subsection 35(1) of the Criminology Research Act by inserting a new paragraph 35(1)(ba) that provides that the Criminology Research Council must include one representative from the ACT. Currently the Council consists of a representative from all jurisdictions except the ACT.
The remaining amendments are consequential upon the amendment proposed by Item 6E.
This Item would amend the definition of 'the appropriate Minister' in section 4 of the Criminology Research Act by inserting a reference to a Minister of the ACT. This will ensure that references to 'appropriate Minister' contained in the Criminology Research Act include the relevant ACT Minister.
These Items would amend paragraphs 6(b) and 6(hb) of the Criminology Research Act to insert appropriate references to the ACT in those provisions. Section 6 of the Criminology Research Act provides the functions of the Criminology Research Council.
This Item would amend subsection 35(1) of the Criminology Research Act by substituting the number eight for the number nine, thereby increasing the number of members who comprise the Council. Currently the Council consists of eight members, of whom one representative must be from the Commonwealth, each State and one representative from the Northern Territory. The number of representatives comprising the Criminology Research Council will increase with the requirement that the Criminology Research Council include a member representing the ACT.
This Item would amend subsection 35(3) of the Criminology Research Act to insert a reference to a member who is to represent the ACT. Subsection 35(3) of the Act provides for the appointment of members representing each jurisdiction to the Criminology Research Council.
This Item would amend subsections 35(3) of the Criminology Research Act by removing the second specific reference to 'the Northern Territory' and replacing it with a generic reference to 'or that Territory' to include the ACT. Subsection 35(3) of the Act provides for the appointment of members to the Council.
These Items would amend subsection 35(4) of the Criminology Research Act to insert appropriate references to the ACT in that subsection. Subsection 35(4) provides for the removal from office of a member of the Criminology Research Council.
This Item would amend subsection 36(1) of the Criminology Research Act by inserting proposed paragraph 36(1)(ba) to provide for appointment of a deputy member of the Council to represent the ACT. Section 36 provides for the appointment of deputies to the members of the Council.
This Item would amend subsection 36(2) of the Criminology Research Act to refer to the ACT. Subsection 36(2) provides for the revocation of the appointment of deputy members of the Criminology Research Council.
This Item would amend section 38 of the Criminology Research Act to refer to the ACT by inserting subsection (2A) to provide for the resignation of a member or deputy member of the Criminology Research Act who represents the ACT.
This Item would amend paragraphs 43(a) and (b) of the Criminology Research Act to include appropriate references to the ACT. Section 43 of the Act requires that a copy of the Council's annual report must be provided to the appropriate Minister and Auditor-General of each State and Territory with a representative on the Council. This amendment will ensure that a copy of the Criminology Research Council's annual report is provided to the relevant ACT Minister and the ACT Auditor-General.
This Item would amend paragraph 46(b) of the Criminology Research Act by including an appropriate reference to the ACT. Section 46 of the Criminology Research Act provides for the payment of certain moneys into the Criminology Research Fund. Paragraph 46(b) provides that any moneys paid by a State or the Northern Territory to the Commonwealth, or to the Council, for the purposes of the Criminology Research Fund shall be paid into that fund. The proposed amendment would insert a reference to the ACT so that any moneys paid by the ACT to the Fund will be treated in the same way as moneys paid by other jurisdictions represented on the Criminology Research Council.
Foreign Evidence Act 1994
This Item would amend subsection 22(2) of the Foreign Evidence Act 1994 (FE Act) to remove a provision that requires foreign material to bear an official or public seal of the foreign country or of a Minister or official of the country, in order for it to be adduced as evidence in criminal and related civil proceedings. The requirement was originally included as a means of confirmation that the evidence was obtained through appropriate official channels. A number of countries have indicated that they have difficulties in meeting this requirement. It is considered that the requirement is unnecessary as section 26 of the FE Act makes provision for the Attorney-General (or an authorised officer) to certify that specified foreign material was obtained as a result of a request made to a foreign country by or on behalf of the Attorney-General. This provision implicitly requires the issuing officer to be satisfied that the foreign evidence has been received through official channels.
International War Crimes Tribunals Act 1995
Items 8 to 13 consist of technical amendments to the mutual assistance in criminal matters provisions of the International War Crimes Tribunals Act 1995 (IWCT Act). These provisions generally reflect similar provisions contained in the Mutual Assistance in Criminal Matters Act 1987 (MA Act). The purpose of the amendments is to ensure consistency with amendments made to the MA Act in 1996.
This Item would amend section 4 of the IWCT Act by repealing the definition of 'possession'. The definition is relevant to provisions in the IWCT Act regarding the search for, and seizure of, things within a person's 'possession'. It is currently expressed to extend to things within a person's control, although such things are not necessarily within the person's actual possession or custody. The definition is removed in order to avoid the unintended result that the issue of a search warrant in relation to a specified person could enable the search of premises for any things within that person's 'control'. In such circumstances, the authorities will be required to apply for the issue of a separate warrant for search of premises pursuant to subsection 47(1) of the IWCT Act. The ordinary accepted meaning of the term 'possession' is more appropriate for the purposes of defining the scope of the search and seizure powers under the IWCT Act.
This Item would amend section 29 of the IWCT Act by inserting new subsections (3) and (4). The new provisions apply to a magistrate conducting proceedings under section 27 or 28 of the IWCT Act - that is, proceedings designed to comply with a request from a War Crimes Tribunal for evidence to be taken in Australia for the purpose of a proceeding or investigation being conducted by that Tribunal. The provisions provide for the person giving evidence or producing documents before the magistrate to be examined or cross-examined by the person to whom the Tribunal proceeding or investigation relates, that person's legal representative or the Tribunal's legal representative, by means of video link.
This Item would amend section 80 of the IWCT Act by adding a reference to section 47C of the Crimes Act 1914 to the provisions of the Crimes Act which are currently referred to in section 80 of the IWCT Act. Section 80 currently provides that sections 46, 47A, and 48 of the Crimes Act (other than certain stipulated paragraphs) apply as if references in those sections to custody and arrest in relation to an offence against a law of the Commonwealth were references to custody and arrest pursuant to the IWCT Act.
The proposed amendment will add section 47C to this list. Section 47C provides that a person, charged with the custody or detention of another person in respect of any offence against a law of the Commonwealth, is guilty of an offence if he or she intentionally or negligently permits that person to escape. This amendment will mean that section 47C will also apply to the situation where a person is in custody for the purposes of the IWCT Act.
This Item provides that the amendment proposed by Item 12 only applies in relation to the escape of a person after the commencement of Item 12, regardless of whether the person was in custody prior to that commencement or was arrested before that commencement. Law and Justice Legislation Amendment Act ( No.2 ) 1994
This Item corrects a misdescribed amendment of section 3ZN of the Crimes Act which was made by Item 7 of Schedule 1 of the Law and Justice Legislation Amendment Act (No. 2) 1994 . That amendment purported to omit a reference to "court" in subsection 3ZN(2), subparagraph 3ZN(3)(d)(ii) and subsection 3ZN(4) and to substitute a reference to "magistrate". The amendment failed to state "wherever occurring" and this proposed amendment corrects that error. Mutual Assistance in Business Regulation Act 1992
The objective of Items 15 and 16 is to remove restrictions on the Attorney-General's power of delegation in the Mutual Assistance in Business Regulation Act 1992 (MABR Act).
This Item would amend subsection 22(1) of the MABR Act (the provision allowing the Attorney-General to delegate his powers under the Act) to allow the Attorney-General to delegate any of all of his powers to the Secretary of the Attorney-General's Department or an APS employee. Currently, such powers can only be delegated to certain designated officers.
This Item would remove the current requirement that if the delegate considers that, for reasons of national security, a request for assistance from a foreign government should be refused, the delegate must refer the matter to the Attorney-General who must deal with it personally. This formal limitation on the delegation provision is not considered necessary. In practice, the more routine MABR Act requests will be dealt with by the Attorney-General's delegates but more sensitive requests will be referred to the Attorney-General for personal consideration.
Proceeds of Crime Act 2002
Items 16A-16E would amend the Proceeds of Crime Act 2002 (POC Act) which commenced on 1 January 2003. The Items are also to commence on 1 January 2003, since they are intended to put beyond doubt that the Official Trustee has the necessary power of sale to enable him to comply with obligations that he already has under other sections of the Act.
This Item would insert section 267A into Part 4-1 of the POC Act. Part 4-1 deals with the powers and duties of the Official Trustee and existing section 267 in Part 4-1 provides that the powers and duties relate to controlled property.
Controlled property is property over which a court has made an order under section 38 of the POC Act for the Official Trustee to take power and control. Proposed section 267A provides that the Official Trustee may exercise powers under Division 3 (dealings relating to controlled property) for the purpose of paying legal aid commission costs (under section 292 of the Act) out of property covered by a restraining order as if such property were controlled property. This section is necessary because the Official Trustee's powers only relate to 'controlled property'. 'Controlled property' is property the subject of a restraining order over which a court has made a section 38 order giving the Official Trustee custody and control over the property.
The effect of proposed section 276A is to deem restrained property which is not also the subject of a section 38 order to be controlled property so that the Official Trustee may dispose of such property for the purposes of section 292 of the Act without first having to obtain a section 38 order over the property.
This Item would add new paragraph (d) to subsection 278(2) of the POC Act. Paragraph 278(2)(d) gives the Official Trustee an express power of disposal (by sale or other means) of controlled property where this is necessary for the Official Trustee to meet obligations under section 292 of the Act. Section 292 provides that the Official Trustee must pay a legal aid commission's legal costs out of the property of a suspect or of another person where the property is covered by a restraining order and where the legal costs were incurred in representing the suspect in criminal proceedings or in proceedings under the Act (or in representing the person in proceedings under the Act). The commission's representation must have been in accordance with the applicable legal assistance guidelines.
Paragraph 278(2)(d) is being inserted to put beyond doubt that the Official Trustee has the power of disposal (by sale or other means) of the restrained property where this is necessary for the Official Trustee to meet a legal aid commission's legal costs.
This Item would insert proposed subsection 279(3). Section 279 requires the Official Trustee to give notice of proposed destruction or disposal to the owner of the property or to other persons who have an interest in the property. Persons receiving the notice can object in writing to the destruction or disposal. Where the property is being disposed of to enable the Official Trustee to pay legal aid commission costs, proposed subsection 279(3) will limit the right of objection. The right of objection will only be available where the value of the controlled property exceeds the money payable to the legal aid commission and the person and the Official Trustee have failed to agree on which particular item of property should be disposed of. The objection must relate only to the items that should be disposed of and the person must indicate items to which there is no objection to disposal.
This Item would insert proposed subsection 280(4A) which requires that a court must make an order for disposal of controlled property or a specified item or portion of the property if the court is of the opinion that this is necessary for the Official Trustee to be able to pay a legal aid commission's legal costs. This subsection is intended to ensure that a court does make an order for disposal of controlled property where the court is of the opinion that such an order is necessary for the Official Trustee to be able to pay a legal aid commission's legal costs. For a court to refuse to make an order in this situation would be contrary to the intention of the legislation on this aspect.
This Item inserts a note in the Dictionary (which is contained in section 338) after the definition of the term 'controlled property'. The definition provides that the term has the meaning given by section 267. The note to be inserted after the definition is that section 267A, which is inserted by Item 16A, alters the meaning of the term for the purposes of Division 3 of Part 4-1. The note is consequential upon Item 16A.
Retirement Savings Accounts (Consequential Amendments) Act 1997
This Item corrects a misdescribed amendment of section 18 of the Financial Transaction Reports Act 1988 by inserting "(first occurring)" after "the account" in Item 4 of Schedule 19 of the Retirement Savings Accounts (Consequential Amendments) Act 1997 .
Service and Execution of Process 1992
These Items make technical amendments consequential on the amendment in Item 22.
This Item would insert proposed section 81A into the Service and Execution of Process Act 1992 . The section expands the definition of 'authority' for the purposes of Part 5 of the Act, to include certain prescribed bodies and persons who, under the law of a State, may issue a warrant for the arrest and return to custody or detention of a person, following the revocation of a parole order or other similar order. The purpose of the amendment is to ensure that arrest warrants issued by parole boards and other similar bodies in one State can be executed in another State provided that the issuing body has been prescribed for that purpose in regulations.