Senate

Revised Explanatory Memorandum

(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)

Schedule 3 - Amendments relating to returnable items for the Australian Crime Commission (ACC)

The amendments contained in this Schedule will introduce rules governing the use, sharing and retention of things seized under an Australian Crime Commission Act 2002 (ACC Act) search warrant, and things or documents produced under sections 28 or 29 of the ACC Act, based on equivalent provisions in the Crimes Act.

The ACC Act provides the ACC with several different mechanisms to coercively obtain material that is relevant to a special ACC operation or investigation. Section 22 of the ACC Act allows the ACC to apply for and execute a warrant to search for a thing or things (including a document) of a particular kind that are connected with a special ACC operation or investigation. Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

The ACC Act does not currently set out clear rules governing what can be done with material obtained using these coercive powers. For example, subsections 22(8) and (9) and paragraph 12(1)(a) allow the ACC to share a thing seized under a warrant where it is relevant to the investigation of an offence or if it is relevant to the taking of civil remedies. There are no explicit rules governing what can be done with material obtained under sections 28 or 29.

The amendments in this Schedule will ensure there is a clear distinction between how the ACC is to deal with ACC information (Schedule 2 will set out comprehensive rules governing sharing of ACC information (which will be defined by item 17 of Schedule 2)) and a returnable item (which is defined in item 2, Schedule 3).

Australian Crime Commission Act 2002

Item 1 - Subsection 4(1)

Subsection 4(1) of the ACC Act sets out the definitions that are relevant to the operation of the ACC Act. Items 1 to 8 of Schedule 3 will insert new definitions relevant to the changes that will be made by this Schedule.

Item 1 will insert a definition of 'Commonwealth officer' into the ACC Act. 'Commonwealth officer' in the ACC Act will have the same meaning as 'Commonwealth officer' in the Crimes Act.

The Crimes Act defines Commonwealth officer as a person holding office under, or employed by, the Commonwealth (including Commonwealth public servants). The definition of Commonwealth officer in the ACC Act will also include any member of staff of the ACC to ensure that all persons who work for the ACC are subject to the same statutory regime governing the way in which they deal with documents and other things seized or produced under the ACC Act.

Item 2 - Subsection 4(1)

The ACC Act provides the ACC with several different mechanisms to coercively obtain material that is relevant to a special ACC operation or investigation.

Section 22 of the ACC Act allows the ACC to apply for and execute a warrant to search for a thing or things of a particular kind that are connected with a special ACC operation or investigation.

Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

The definition of 'returnable item' which will be inserted by item 2 will include a thing seized under a warrant under section 22 or a thing or a document produced under a notice given under section 29 or during an examination conducted under Division 2 of Part II.

The term 'returnable item' will be used in the new provisions governing how the ACC will be able to use, share and retain things and documents that have been obtained under the ACC Act during the course of an ACC special operation or investigation.

Items 3 and 4 - Subsection 4(1) (paragraph (d) of the definition of serious and organised crime) and Subsection 4(1) (subparagraph (da)(ii) of the definition of serious and organised crime)

Items 3 and 4 will remove references to 'within the meaning of the Proceeds of Crime Act 2002' from paragraph (d) and subparagraph (da)(ii) of the definition of serious and organised crime in subsection 4(1) of the ACC Act. These words define what constitutes a 'serious offence' for the purpose of the definition of serious and organised crime.

Item 5 of Schedule 3 will insert a definition of 'serious offence' which will reference the Proceeds of Crime Act 2002 for the purpose of the definition of serious and organised crime and therefore these words will no longer be necessary in the definition of 'serious and organised crime'.

Item 5 - Subsection 4(1)

Item 5 will insert a definition of 'serious offence' into the ACC Act. 'Serious offence' will, for the purposes of the definition of serious and organised crime, have the meaning given by the Proceeds of Crime Act 2002 . However, for the rest of the Act, it will have the meaning given by subsection 3(1) of the Crimes Act. A serious offence is defined in subsection 3C(1) of the Crimes Act as any Commonwealth or Territory offence or State offence with a federal aspect that is punishable by two or more years imprisonment that is not a serious terrorism offence (most terrorism offences). This term will be used in new section 24AC which will be inserted by item 10 of Schedule 3.

Item 6 - Subsection 4(1)

This item will insert a definition of 'State or Territory law enforcement agency' into the ACC Act. It will have the same meaning that 'State or Territory law enforcement agency' has under subsection 3ZQU(7) of the Crimes Act. Subsection 3ZQU(7) defines 'State or Territory law enforcement agency' as the police force or police service of a State or Territory, and law enforcement bodies in New South Wales (Crime Commission, Independent Commission Against Corruption and Police Integrity Commission), Victoria (Office of Police Integrity), Queensland (Crime and Misconduct Commission) and Western Australia (Corruption and Crime Commission). This definition is based on the definition of 'law enforcement agency' in section 6 of the Surveillance Devices Act 2004 .

Under the new subsection 24AA(8), which will be inserted by item 10 of Schedule 3, the ACC will be able to share a returnable item with a State or Territory law enforcement agency in certain circumstances.

Item 7 - Subsection 4(1)

Item 7 will insert a definition of 'terrorism offence' into the ACC Act. 'Terrorism offence' will have the same meaning as in subsection 3(1) of the Crimes Act. Terrorism offence is defined in subsection 3(1) of the Crimes Act to mean an offence against Subdivision A of Division 72 of the Criminal Code or an offence against Part 5.3 of the Criminal Code. This term will be used in new section 24AC which will be inserted by item 10 of Schedule 3.

Item 8 - Subsection 4(1)

Item 8 will insert a definition of 'terrorist act' into the ACC Act. 'Terrorist act' will have the same meaning as in subsection 100.1(1) of the Criminal Code. This term will be used in new section 24AC which will be inserted by item 10 of Schedule 3.

Item 9 - Subsections 22(8) and (9)

Item 9 will repeal subsections 22(8) and (9) of the ACC Act.

Subsection 22(8) of the ACC Act currently governs what can be done with a thing seized under a section 22 warrant. It states that the head of the special ACC operation or investigation that the thing relates to can retain the thing for as long as is reasonably necessary for the purposes of that operation or investigation. Where the thing is no longer relevant, the thing must be returned to the person entitled to its possession. Subsection 22(8) also allows the thing to be used in taking civil remedies for an offence related to the special investigation or operation.

Subsection 22(9) allows a thing seized under a warrant to be delivered to a Commonwealth, State or Territory Attorney-General for the purpose of assisting in the investigation of criminal offences.

Item 9 will insert detailed rules governing what can be done with a thing seized under a section 22 warrant. Therefore, subsections 22(8) and (9) are no longer necessary.

Item 10 - At the end of Division 1A of Part II

The ACC Act provides the ACC with several different mechanisms to coercively obtain material that is relevant to a special ACC operation or investigation. Section 22 of the ACC Act allows the ACC to apply for and execute a warrant to search for a thing or things (including a document) of a particular kind that are connected with a special ACC operation or investigation. Section 28 provides examiners with the power to summons witnesses to appear before an examiner at an examination to give evidence and to produce such documents or other things, as outlined in the summons. Section 29 provides examiners with the power to require persons to produce a document or thing to a specified person.

The ACC Act does not set out clear rules governing what can be done with material obtained using these coercive powers. For example, subsections 22(8) and (9) and paragraph 12(1)(a) provide a power to share a thing seized under a warrant where it is relevant to the investigation of an offence or if it is relevant to the taking of civil remedies. There are no explicit rules governing what can be done with material obtained under sections 28 or 29.

Schedule 2 of the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 amended the Crimes Act to insert a comprehensive regime for:

•

the use and sharing of things that are seized, and documents that are produced, under Part IAA (section 3ZQU), and

•

the return of things seized under Part IAA (sections 3ZQX - 3ZQZB).

These provisions were inserted into the Crimes Act to remove uncertainty regarding whether law enforcement agencies could use seized material for purposes other than those for which it was seized. For example, it was not clear whether things seized for the investigation of a particular offence could have been used for the investigation or prosecution of an unrelated offence.

To ensure there is consistency between Commonwealth regimes governing the seizure and production of things and documents, it is desirable that the same rules which govern how things seized under the Crimes Act are used, shared and retained also apply to other seizure and production regimes.

This item will insert new sections, modelled on the Crimes Act provisions, which will govern the use, sharing and retention of documents and other things obtained by the ACC using its coercive powers (returnable items as defined in item 2).

The amendments will also make clear that different rules apply when the ACC is dealing with returnable items compared with when it is dealing with ACC information (which is governed by section 59 and new section 59AA and 59AB (which will be inserted by item 27 of Schedule 2) of the ACC Act).

Section 24AA - Use of and sharing returnable items

Section 24AA will govern the use and sharing of returnable items. It will mirror section 3ZQU of the Crimes Act. A definition of 'returnable item' will be inserted by item 2 and will include things seized under a section 22 warrant and things and documents produced under a notice under section 29 or during an examination conducted under Division 2 or Part II of the ACC Act.

Subsection 24AA(1) will allow the ACC CEO to make a returnable item available to a constable or Commonwealth officer for any of the purposes set out in subsection 3ZQU(1) of the Crimes Act and for the performance of the functions of the ACC under section 7A and the performance of the functions of the ACC Board under section 7C.

'Constable' is defined in subsection 4(1) as a member or special member of the AFP or a member of the police force or police service of a State or Territory. A definition of 'Commonwealth officer' will be inserted by item 1 and will mean 'a person holding office under, or employed by, the Commonwealth (including Commonwealth public servants) as well as a member of the staff of the ACC'. Members of the staff of the ACC (as defined in subsection 4(1) of the ACC Act) include consultants, legal counsel and seconded State and Territory police officers. It is important to specifically include members of the staff of the ACC because the new provisions will allow a Commonwealth officer to use a returnable item for specified purposes. It is important that all members of the staff of the ACC fall within the scope of these new provisions.

This means that the ACC CEO will be able to share a returnable item with a member (or special member) of the AFP, a member of a State or Territory police force or service, or with a Commonwealth officer. Enabling returnable items to be shared with, and used by, constables is appropriate as both the AFP and a State or Territory police force or service may be involved in the investigation of Commonwealth offences (or Territory offences or State offences with a federal aspect).

The ACC CEO's power to share a returnable item will be able to be delegated to any SES officer under the general delegation power in section 59A of the ACC Act. The power to share a thing under the Crimes Act is given to any constable or Commonwealth officer. However, it is appropriate that the power to share returnable items under the ACC Act is limited to senior ACC officials given the nature of its coercive powers compared to the general warrant powers in the Crimes Act.

Subsection 24AA(2) will allow a constable or Commonwealth officer to use a returnable item for the purposes set out in subsection 24AA(1).

Therefore, subsections 24AA(1) and (2) will provide a direct legislative basis for using or sharing a returnable item for each of the following purposes:

•

A purpose referred to in subsection 3ZQU(1) of the Crimes Act. These include:

-

Preventing, investigating or prosecuting an offence (offence is defined in subsection 3C(1) of the Crimes Act as an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982 ), an offence against a law of a Territory, or a State offence that has a federal aspect (defined in section 3AA of the Crimes Act)): for example, the ACC may execute a search warrant on premises as part of a special investigation into drug operations. In conducting the search, evidence relevant to the suspected drug offences (such as banking records) is seized. It may be discovered at a later part of the investigation that the banking records reveal evidence of an unrelated offence (such as money-laundering). It is appropriate that the bank records can be used as evidence to support a prosecution not only for the drug offences for which they were originally seized, but also for the money-laundering offences.

-

Proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 or a corresponding law within the meaning of either of these Acts: for example, it is appropriate that evidence seized in relation to a Commonwealth serious drug offence is able to be used in confiscation proceedings under a Proceeds of Crime Act for example, to seek an order to restrain the property of the suspect (section 18, Proceeds of Crime Act 2002).

-

Proceedings for the forfeiture of the thing under a law of the Commonwealth (for example, section 229 of the Customs Act 1901 ): for example, if drugs are seized in relation to a special operation into drug production, the inclusion of this purpose will allow the drugs, and any other evidence obtained, to be used as evidence in proceedings for the forfeiture of the drugs.

-

Proceedings, applications and requests relating to control orders and preventative detention orders under Part 5.3 of the Criminal Code: for example, if the ACC is conducting a special intelligence operation into armament dealings, it may obtain material that suggests a terrorist attack is imminent. It is appropriate that any evidence obtained is able to be shared with relevant authorities (for example, the AFP) to support an application for, or proceedings related to, control orders and preventative detention orders. This will ensure all evidence is available when taking actions under Part 5.3 of the Criminal Code to prevent terrorist attacks.

-

Investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under Part IAA of the Crimes Act; investigating or resolving an AFP conduct or practices issue (which are dealt with under Part V of the AFP Act); investigating or resolving a complaint under the Ombudsman Act or the Privacy Act; and investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006 . These uses are all necessary to ensure the oversight mechanisms in place to monitor the exercise of ACC powers are able to operate effectively. If the ACC obtains evidence during a special operation that a member of the AFP or ACC is corrupt, this purpose will ensure the ACC is able to provide that material to the relevant authorities to take appropriate action. Similarly, a thing that has been seized during a special operation may also be relevant to the investigation of a complaint made to the Ombudsman.

-

Deciding whether to institute proceedings, to make an application or request, or to take any other action mentioned in any of the preceding paragraphs of this subsection: for example, a document produced during an examination under Division 2 of Part II will be able to be used in deciding whether to make an application for an interim control order under section 104.3 of the Criminal Code.

-

The performance of the functions of the AFP under section 8 of the AFP Act: the AFP's functions include the provision of police services, the safeguarding of Commonwealth interests and performing the functions conferred by the Witness Protection Act 1994 and the Proceeds of Crime Acts. This purpose will ensure that the ACC has the legislative authority to share returnable items with the AFP for the performance of the AFP's functions.

•

Performance of the functions of the ACC under section 7A. These functions include collecting, correlating, analysing and disseminating criminal information and intelligence and maintaining a national database of that information and intelligence and undertaking intelligence investigations and special operations. This will ensure that a constable or Commonwealth officer is able to use returnable items in the performance of the ACC's functions whether or not they are covered by another item in subsection 24AA(1) and whether or not the returnable item was obtained for that purpose.

•

Performance of the functions of the ACC Board under section 7C: the Board's functions include:

-

determining national criminal intelligence priorities

-

authorising the ACC to undertake intelligence operations or to investigate matters relating to federally relevant criminal activity

-

disseminating strategic criminal intelligence assessments, and

-

such other functions as are conferred on the Board by other provisions of the ACC Act.

This will ensure that a constable or Commonwealth officer is able to use returnable items in the performance of ACC Board functions whether or not they are covered by another item in subsection 24AA(1).

Subsection 24AA(3) will allow the head of a special ACC operation or investigation to which a returnable item relates to make that item available to another member of staff of the ACC for that staff member to use in the performance of any of the functions of the ACC under section 7A or any of the functions of the ACC Board under section 7C. Subsection 24AA(4) will allow a staff member to use a returnable item for either of those two purposes. These provisions will clarify that the rest of section 24AA does not limit the ability of the ACC to share a returnable item as necessary within the organisation and to use that returnable item in the performance of its functions.

Subsection 24AA(5) will allow the ACC CEO to make available to a constable or Commonwealth officer a returnable item for any purpose for which the making available of the thing or document is required or permitted by a law of a State or Territory. Subsection 24AA(6) will allow a constable or Commonwealth officer to use a returnable thing for any other use that is required or authorised by or under a law of a State or a Territory. These provisions will mirror subsections 3ZQU(2) and (3) of the Crimes Act. These provisions are necessary to ensure that the rules governing the use and sharing of returnable items do not override any other provision in State or Territory legislation which allows a returnable item to be used for other purposes.

Subsection 24AA(7) will state that this section will not limit any other law of the Commonwealth that requires or authorises the use of a document or other thing, or requires or authorises the making available (however described) of a document or other thing. This also clarifies that these provisions, while providing direct legislative authority for certain uses, will not override any other uses authorised under another law of the Commonwealth. For example, this section will ensure that section 12 of the ACC Act is not overridden. Section 12 requires the ACC CEO to provide evidence of an offence obtained by the ACC in carrying out an investigation or operation to the Attorney-General of the Commonwealth, State or Territory as the case requires or to the relevant law enforcement agency.

All of these purposes for using and sharing returnable items are important in ensuring that the ACC is able to properly carry out its designated functions as the national body responsible for detecting and investigating serious and organised crime and maintaining a leading capability in national criminal intelligence and information services.

Sharing with State, Territory and foreign law enforcement agencies

It is important that the ACC has in place appropriate mechanisms to allow evidential material it has gathered as part of a special operation or investigation to be used and shared on a national and international level to combat multi-jurisdictional and transnational crime.

Subsection 24AA(8) will provide a clear legislative basis for returnable items to be shared by the ACC CEO with State and Territory law enforcement agencies. This subsection mirrors subsection 3ZQU(5) of the Crimes Act which similarly allows for material obtained under the Crimes Act to be shared with State and Territory law enforcement agencies. Item 6 will insert a definition of State or Territory law enforcement agency into the ACC Act which will refer to the definition of the same term in subsection 3ZQU(7) of the Crimes Act.

Under subsection 24AA(8), a returnable item will be able to be shared with a State or Territory law enforcement agency for any or all of the purposes listed in new subsections 24AA(1), (5) and (6) (described above) as well as any or all of the following additional purposes (but not for any other purpose).

•

Preventing, investigating or prosecuting an offence against a law of a State or Territory: it is appropriate for returnable items to be shared with State and Territory law enforcement agencies to enable multi-jurisdictional criminal activity to be properly investigated and prosecuted.

•

Proceedings under a corresponding law for a State or Territory offence (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002 ): these provisions will enable returnable items to be shared with the appropriate State or Territory law enforcement agency if needed for confiscation proceedings.

•

Proceedings for the forfeiture of things under a law of a State or Territory.

•

Deciding whether to institute proceedings or to take other action mentioned in any of the above.

Subsection 24AA(8), like subsection 3ZQU(5) of the Crimes Act, will provide a framework governing the purposes for which the ACC CEO can share returnable items with State and Territory law enforcement agencies. While this subsection will regulate the decision by the ACC CEO (which will be able to be delegated to an SES member of staff of the ACC under section 59A), it will not govern the process of how such material would be shared, or how the State or Territory law enforcement agency then uses the material. This is because such matters are more appropriately governed by those agencies own secrecy and data protection regimes.

Subsection 24AA(8), like subsection 3ZQU(5) of the Crimes Act, will also allow material to be shared with foreign agencies that have responsibility for law enforcement, intelligence gathering, or security for the purpose in preventing, investigating or prosecuting a Commonwealth, State or Territory offence. These provisions will not enable the item to be shared for the investigation of a foreign offence. This will continue to be governed by the Mutual Assistance in Criminal Matters Act 1987 .

It is appropriate to allow returnable items to be shared with foreign agencies for the investigation of Commonwealth, State or Territory offences due to the international aspects of many modern offences. For example, child pornography images are often shared by computer users across the globe. Seizure of a hard drive from a computer during the execution of a search warrant in relation to a child pornography special operation can provide evidence of the distribution and origin of images. The data seized from the hard drive (including images) may be required to be shared with foreign law enforcement agencies to determine the origin of images.

Subsection 24AA(9), like subsection 3ZQU(6) of the Crimes Act, will provide that new section 24AA will not prevent the Minister from entering into an arrangement (under his or her Executive power) with a State or Territory Minister to govern the sharing and disposal of returnable items. A Ministerial arrangement could be used to set out the responsibilities and duties of both the sharing and receiving agency, including:

•

the process for when something is to be shared

•

the relevant record-keeping responsibilities of both jurisdictions, and

•

who bears responsibility for the loss of, or damage to, the shared material.

Section 24AB - When returnable items must be returned

Subsection 22(8) currently states that where a thing seized under section 22 is no longer necessary for the purposes of the special operation or investigation, the thing must be returned to the person entitled to its possession. There is currently no obligation under the ACC Act to return material obtained under sections 28 or 29 of the ACC Act.

Section 24AB will be based on section 3ZQX of the Crimes Act. This section will ensure that the ACC must generally return a returnable item (a thing seized under section 22 or a thing or document obtained under section 28 or 29) once it is no longer relevant to the investigation or operation to which it relates or is not being used for one of the purposes for which the returnable item can be used or shared (as provided for in new section 24AA which is described above).

This new section will replace the obligations in current subsection 22(8) (which will be repealed by item 9) relating to the return of things seized under section 22.

Subsection 24AB(1), like subsection 3ZQX(1), will outline when a returnable item needs to be returned to the person from whom it was seized, or to the owner of the thing. This subsection will require the ACC CEO to take reasonable steps to return the thing: when it is not required, or no longer required, for a purpose set out in section 24AA (also inserted by this item) or for administrative or judicial review proceedings.

Section 24AA, inserted by this item, will set out the purposes for which a returnable item can be used or shared. This is described in detail above and includes:

•

investigating a Commonwealth, Territory or State offence with a federal aspect

•

proceedings under the Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002, and

•

proceedings for control orders or preventative detention orders.

The reference to judicial or administrative review proceedings will be necessary as returnable items may be needed for administrative review or judicial proceedings outside the scope of uses that will be listed in new section 24AA. An example of where a thing obtained under a notice to produce under section 29 may be needed for judicial or administrative review proceedings is where a challenge to the notice is brought before a court. In this instance, it may be necessary to produce the thing as evidence in the proceedings as proof that it was properly obtained under the notice.

However, under subsection 24AB(2), the ACC CEO will not have to take reasonable steps to return the returnable item if:

•

the item may be retained, sold, destroyed or otherwise disposed of or forfeited because of an order under subsection 24AC(2) (which will be inserted by this item)

•

the CEO has applied for such an order and the application has not been determined

•

the item may otherwise be retained, destroyed or disposed of under a law or an order of a court or tribunal of the Commonwealth or of a State or Territory, or

•

the item is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

The ACC CEO will also not have to take those steps if an order has been applied for under new section 24AC. Section 24AC will allow the ACC CEO to seek an order from an issuing officer to retain, sell, destroy or otherwise dispose of a returnable item if returning the item will result it being used in the commission of a terrorist act, a terrorism offence or a serious offence.

Subsection 24AB(3) will clarify that the ACC will only be under an obligation to return a document of which the ACC actually took possession. The ACC will not be under an obligation to return any copies of that document. For example, if a person is summonsed to attend an examination and bring a copy of their birth certificate, the obligation on the ACC will be as follows.

•

If the person brings the original birth certificate and the ACC take possession of the original birth certificate, the ACC will be under an obligation to return the original birth certificate but not any copies the ACC makes of the birth certificate.

•

If the person brings the original birth certificate, but the ACC copies the certificate at that time and only takes the copy, the ACC will not be under an obligation to return the copy it makes.

•

If the person brings a certified copy of the birth certificate, and the ACC takes the certified copy, the ACC will be under an obligation to return the certified copy of which it took possession.

Section 24AC - Issuing officer may permit a returnable item to be retained, forfeited etc.

The AFP Commissioner may currently apply to a magistrate for an order in relation to a thing seized under terrorism-related powers in Division 3A, Part IAA of the Crimes Act. If the magistrate is satisfied that there are reasonable grounds to suspect that if the thing is returned to the owner it is likely to be used in the commission of a terrorist act, terrorism offence or serious offence, he or she may make an order that the thing:

•

may be retained for the period specified in the order

•

is forfeited to the Commonwealth

•

is to be sold and the proceeds given to the owner, or

•

is to be otherwise sold or disposed of.

There is no equivalent provision for such orders to be made in relation to things seized under Divisions 2, 3 or 4 of Part IAA or produced under Division 4B of Part IAA of the Crimes Act or in relation to returnable items under the ACC Act.

This item will enable the ACC CEO to apply for an order as set out above in relation to any returnable item. Before applying for an order, the ACC CEO will be required to take reasonable steps to discover who has an interest in the thing or document and, if it is practicable to do so, notify each of them of the proposed application. A magistrate will be required to allow a person who has an interest in the thing or document to appear and be heard in determining the application. It is reasonable to apply these obligations to all applications for orders in relation to things or documents obtained under the various powers to ensure anyone with an interest in the thing or document is given the opportunity to present their case.

Subsection 24AC(1)

This subsection will provide an issuing officer with the power to make an order under subsection 24AC(2) in relation to a returnable item on application by the ACC CEO.

The power of the ACC CEO to make an application will be able to be delegated under section 59A of the ACC Act.

Issuing officer is defined in subsection 4(1) of the ACC Act to mean a Judge of the Federal Court, a Judge of a Court of a State or Territory or a Federal Magistrate.

A definition of returnable item will be inserted by item 2.

Subsection 24AC(2)

This subsection will set out when an issuing officer is able to make an order. The issuing officer will be able to make any of the orders that will be listed in subsection 24AC(3) if there are reasonable grounds to suspect that the returnable item is likely to be used in the commission of a terrorist act, a terrorism offence or a serious offence if it is returned to:

•

the owner of item

•

the person from who the item was seized, or

•

the person who produced the item.

Definitions of serious offence, terrorist act, terrorism offence will be inserted by items 5, 7, 8 respectively.

Subsection 24AC(3)

This subsection will set out the orders that an issuing officer will be able to make. Firstly, the issuing officer will be able to order that the item continue to be retained by the ACC for a specified period. The issuing officer will be able to determine what this period will be. Secondly, the issuing officer will be able to order that the item is forfeited to the Commonwealth. Thirdly, if the returnable item is not a document, the issuing officer can order that the item be sold with the proceeds being given to the owner, or that the item be sold in another way. Finally, the issuing officer will be able to make an order that the item is to be destroyed or otherwise disposed of. This subsection will ensure the issuing officer is able to make the most appropriate order to meet the circumstances of the particular case.

Subsection 24AC(4)

This subsection will set out what the issuing officer is required to do if he or she does not suspect that the returnable item, if returned, is likely to be used in the commission of a terrorist act, a terrorism offence or a serious offence. The subsection will require the issuing officer to order that the item be returned to:

•

the owner of the item

•

the person from whom the item was seized, or

•

the person who produced the item.

Subsection 24AC(5)

This subsection will require the ACC CEO, prior to making an application to an issuing officer for an order, to take reasonable steps to discover and notify each person who has an interest in the retention of the item. This will ensure that everyone with an interest in an item can be made aware of the proposed application. The ACC CEO will only have to notify each person who has an interest in the retention of the item if it is practicable to do so.

Subsection 24AC(6)

This subsection will provide that where an application is made, the issuing officer must allow a person who has an interest in the return of the item to appear and be heard in determining the application. This will ensure that their interest can be taken into account in determining the application.

Subsection 24AC(7)

This subsection clarifies that the functions conferred on an issuing officer under this section are conferred on the officer in his or her personal capacity and not as a member of a court. This will mirror subsection 22(14) and subsection 23(8) which state that other functions conferred on an issuing officer are conferred on the officer in his or her personal capacity.

Subsection 24AC(8)

This subsection ensures that where an issuing officer is performing a function under new section 24AC, the issuing officer will have the same protection and immunity as if he or she were performing that function as a member of the court of which the issuing officer is a member. This is despite the fact that the issuing officer will be exercising the powers under the section in his or her personal capacity. This will mirror subsection 22(16) and subsection 23(10) which also provide the same protections to an issuing officer when performing duties under those sections.

Item 11 - Application of this Schedule

This item is an application provision that states that the amendments in this Schedule will apply in relation to things seized, or documents produced, before, on or after commencement of this Part.

This will allow the ACC to deal consistently with returnable items that they have lawfully acquired prior to the commencement of the amendments.