Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Hon Daryl Williams AM QC MP)Outline and financial impact statement
This Bill makes a number of minor and technical amendments to various Commonwealth criminal laws. The amendments made by the Bill will:
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- clarify the rules about the taking of photographs and fingerprints by making it clear that both may be taken
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- clarify the consequences of a refusal to participate in an identification parade
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- increase the monetary threshold for when a court of summary jurisdiction may hear and determine proceedings in respect of an indictable Commonwealth offence where the offence relates to property
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- insert a provision into the Crimes Act 1914 to allow a court of summary jurisdiction to hear and determine an indictable offence if it is not punishable by imprisonment and the pecuniary penalty for the offence is below a certain level
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- amend Part 1D of the Crimes Act 1914 to enable the DNA profile of an unknown deceased person to be matched with another DNA profile of an unknown deceased person, and to clarify and expand the provisions enabling the Minister to enter into arrangements with participating jurisdictions for sharing DNA information
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- make a minor technical amendment to the Australian Crime Commission Establishment Act 2002
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- amend the Australian Protective Service Act 1987 and the Crimes (Aviation) Act 1991 to assist the deployment of air security officers on Australian flights to and from selected international destinations
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- amend the Australian Securities and Investments Commission Act 2001 to allow information to be passed to the Australian Crime Commission (ACC) in the same circumstances as it may have been passed to the National Crime Authority (NCA) prior to its cessation on 31 December 2002 and to remove a reference to the Australian Bureau of Criminal Intelligence which has been incorporated into the ACC
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- amend the Corporations Act 2001 to allow information to be passed to the ACC in the same circumstances as it may have been passed to the NCA
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- amend the Crimes at Sea Act 2000 to clarify that the laws that apply in the territorial sea adjacent to the Northern Territory are the laws of the Northern Territory rather than all laws that are in force in that Territory
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- amend the Criminology Research Act 1971 to make it a requirement that the Criminology Research Council include one member who is a representative of the Australian Capital Territory, and make relevant consequential amendments
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- amend the requirements for authentication of testimony received from a foreign country by removing outdated requirements for seals
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- augment the assistance given to international war crimes tribunals including allowing the use of video links
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- amend the Bill as introduced to remove a proposed amendment to the International War Crimes Tribunal Act 1992 make minor technical amendments to the Proceeds of Crime Act 2002 to clarify that the Official Trustee has the power to sell restrained property (so that, as originally intended, the Official Trustee can pay a legal aid commission's legal costs out of the property of a suspect covered by a restraining order)
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- amend the Service and Execution of Process Act 1992 to allow parole board warrants to be executed interstate
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- make other minor technical amendments to the Crimes Act 1914, Australian Federal Police Act 1979 and the Mutual Assistance in Business Regulations Act 1992, and
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- correct misdescribed amendments.
Financial impact statement
There are no direct financial impacts flowing from this Bill.
Notes on clauses
Clause 1 Short Title
This is a formal clause which provides for the citation of the Act.
Clause 2 Commencement
This clause establishes when each measure in the Bill will commence. The commencement details are set out in a table. Most provisions will take effect on the Bill receiving Royal Assent. Those that do not are discussed below.
Schedule 1, Items 7B to 7F would amend the forensic procedures regime in the Crimes Act, and would clarify and expand the provisions enabling the Minister to enter into arrangements with participating jurisdictions to share DNA information. The commencement table prescribes that the amendments will commence on 1 March 2003. This will result in the amendments having some retrospective application; however, this application will not impose any criminal liability, or remove any existing rights or privileges. The provisions are to commence on 1 March 2003 to enable participating jurisdictions to prepare relevant arrangements on the basis of the proposed amendments as soon as possible.
Schedule 1, Items 8 and 9 correct grammatical errors made in previous amendments, and are taken to have commenced on the same date as the original amendments. The backdating of these amendments is reasonable because they relate to drafting corrections. They are therefore within the scope of what the Parliament has accepted is appropriate on previous occasions.
Schedule 2, Items 1, 1AA, 5, 6, 14 and 17 correct misdescribed amendments and are taken to have commenced on the same date as the original amendments. The backdating of these amendments is reasonable because they relate to drafting corrections. They are therefore within the scope of what the Parliament has accepted is appropriate on previous occasions.
Schedule 2, Items 1B to 1F (inclusive) are consequential amendments flowing from the creation of the Australian Crime Commission as a replacement for the National Crime Authority, the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence. The commencement table provides for those amendments to apply from 1 January 2003, which is the date on which the Australian Crime Commission commenced. This will ensure an effective transition from the NCA to the ACC. The amendments do not make any substantive changes to the effect of the primary provisions.
Schedule 2, Items 16A to 16E would amend the Proceeds of Crime Act 2002 (POC Act) to put beyond doubt that the Official Trustee has the necessary power of sale to enable him to comply with obligations he or she already has under other sections of the Act. The commencement table provides for the amendments to apply from 1 January 2003, which is the commencement date of the POC Act. The amendments do not impose further obligations on persons whose assets are restrained under the POC Act, but ensure that the Official Trustee can reimburse legal aid commissions for legal assistance provided by the commission. In those circumstances, it is appropriate that the provisions be backdated.
Schedule 2, Items 18 to 22 amend the Service and Execution of Process Act 1992 and are taken to commence on a single day fixed by proclamation, subject to subsection 2(3). Subsection 2(3) provides that where these amendments do not commence within a period of 6 months beginning on the day on which the Act receives Royal Assent, it commences on the first day after the end of that period.
Schedule 3, Items 5, 6, 15 to 35 and 41 correct misdescriptions of Part numbering in the Crimes Act, and are taken to have commenced on the same date as the original amendments. The backdating of these amendments is reasonable because they relate to drafting corrections. They are therefore within the scope of what the Parliament has accepted is appropriate on previous occasions.
Clause 3 Schedules
This clause explains that the Items set out in the Schedules amend the Acts specified and that the other Items in the Schedules have effect according to their terms.
Schedule 1 - Amendment of the crimes Act 1914
Part 1 - Taking offenders' fingerprints and photographs
The purpose of this Part is to make two minor amendments to section 3ZL of the Crimes Act 1914 to clarify and facilitate the operation of the provision in relation to taking fingerprints from and photographs of a person convicted of an offence.
This Item clarifies that an order by a judge or magistrate under subsection 3ZL(1) may be made in relation to both taking a convicted person's fingerprints and photograph. That is, that the provision is not limited to an order in relation to the taking of fingerprints or photographs.
This Item would insert proposed subsection 3ZL(3A) to provide that the judge or magistrate may make any additional orders that are reasonably necessary (for example, that the convicted person attend at a police station at a specified time) to ensure that the fingerprints and/or photographs of the convicted person are taken in accordance with the order given under subsection 3ZL(1).
This Item would also insert proposed subsections 3ZL(3B) and (3C) to provide that it is an offence for a person to intentionally contravene an order made under proposed subsection 3ZL(3A). Proposed subsections 3ZL(3B) and (3C) have been drafted in accordance with the Criminal Code. The maximum penalty for contravening subsection 3ZL(3B) is imprisonment for 12 months.
Part 2 - Identification parades
Section 3ZM of the Crimes Act governs the conduct of identification parades. Subsection 3ZM(3) imposes an obligation on police officers to inform a suspect of certain prescribed matters prior to his or her participation in an identification parade. The purpose of subsection 3ZM(3) is to ensure that a suspect has the opportunity to make an informed decision about whether or not to participate in a parade.
The purpose of this Part is to clarify a misleading provision so that a suspect is informed how evidence of refusing to take part in an identification parade may be used in later proceedings.
This Item would repeal paragraph 3ZM(3)(b) and insert two new subparagraphs.
The first proposed subparagraph clarifies what a suspect is told about the use that may be made of evidence of a refusal to take part in an identification parade. As currently drafted, the information provided may lead the suspect to believe that evidence of a refusal, without reasonable excuse, may be used in subsequent criminal proceedings as evidence of the suspect's guilt. That is not the case. The proposed provision provides that the suspect is to be informed that evidence of refusal may be admissible in later proceedings relating to an offence, for the purpose of explaining why an identification parade was not held.
This reflects the common law position (which is preserved in this respect by subsection 3ZM(7)) that evidence of a refusal to participate in an identification parade is not admissible to establish a defendant's guilt. As this rule exists irrespective of whether the suspect did or did not have a reasonable excuse for refusing to participate in the identification parade, the proposed provision also removes the reference to refusing "without reasonable excuse". That is, whether or not a suspect has a reasonable excuse for refusing to take part in the identification parade is irrelevant to the use that may later be made of that refusal.
The second proposed subparagraph maintains the current provision for informing the suspect that any evidence of identification that results from having seen a photograph or of having seen the suspect otherwise than during an identification parade may be admissible in later proceedings.
Part 3 - Dealing summarily with some indictable offences
The purpose of the proposed amendments in this Part is to extend the class of indictable offences that may be dealt with summarily.
This Item would amend subsection 4J(4) to increase the threshold for when a court of summary jurisdiction may hear and determine proceedings in respect of an indictable Commonwealth offence if the offence relates to property. The threshold value in ss4J(4) is currently no more that $500. This Item increases the threshold to $5,000.
The monetary threshold under subsection 4J(4) has not been changed since section 4J was inserted into the Crimes Act in 1987. The amendment will ensure that the monetary threshold is appropriate to current economic circumstances. The amendment will also allow more offences to be dealt with in local courts, which employ speedier procedures, consistent with the Government's broader efforts to ensure a more efficient criminal trial process.
This Item provides that the amendments proposed by Item 4 only apply to indictable offences committed after this Act receives the Royal Assent.
This Item inserts proposed section 4JA to increase the circumstances in which certain indictable offences may be dealt with summarily. Section 4J of the Crimes Act makes provision for the summary disposition of indictable offences where the offence is one punishable by imprisonment for a period not exceeding ten years. However, there is no like provision for the summary disposition of offences that carry a pecuniary penalty only, no matter how small the penalty.
This is ameliorated to a large extent if the particular statute imposing the pecuniary penalty for an offence expressly makes provision for the offence to be dealt with summarily, and many (but not all) Commonwealth statutes containing indictable offences make such provision. However, in the absence of such provision, the offence must be tried by indictment.
The proposed amendment, which is modelled on section 4J, will enable a court of summary jurisdiction to hear and determine indictable offences that are not punishable by imprisonment, where the pecuniary penalty is not more that 600 penalty units (for an individual) and 3,000 (for a body corporate) and the defendant and prosecution consent.
The proposed provision will also provide two levels of pecuniary penalty that a court of summary jurisdiction may impose depending on the penalty set for the offence. For offences where the maximum pecuniary penalty is 300 penalty units (for an individual) or 1,500 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 60 penalty units (for an individual) or 300 penalty units (for a body corporate).
Where the maximum pecuniary penalty is 600 penalty units (for an individual) or 3,000 penalty units (for a body corporate) if the offence were punishable on indictment, the maximum penalty that a court of summary jurisdiction may impose is 120 or 600 penalty units respectively. The court of summary jurisdiction may not impose a pecuniary penalty higher than that which could have been imposed had the matter been prosecuted on indictment.
However, the proposed provisions will not apply if there is a contrary intention in the law creating the offence. They will also not apply to indictable offences created by a law that already enables the matter to be determined summarily or to offences dealing with property valued at $5,000 or less (as these are addressed by subsection 4J(4)).
This Item provides that the amendment proposed by Item 6 applies to proceedings instituted after this Act receives the Royal Assent, irrespective of when the offence was committed.
Part 3A - Forensic Procedures
This Item would amend the forensic procedures regime contained in the Crimes Act to alter the matching table in section 23YDAF and allow for the matching of the DNA profile of an unknown deceased person with another DNA profile of an unknown deceased person.
This amendment is necessary in light of the experiences from the Bali bombing in October 2002, where it was necessary for DNA from separate body parts to be matched to determine whether they came from the same body. Such matching may assist in the identification of unknown deceased persons or in the investigation of Commonwealth offences that occur in Australia, including terrorist incidents.
This Item would make a technical amendment to the definition of 'corresponding law'. The purpose of the amendment is to clarify that the definition of a corresponding law is a law that relates to the carrying out of forensic procedures and DNA databases, and substantially corresponds with Part 1D of the Crimes Act, or a law that relates to the carrying out of forensic procedures and DNA databases, and is prescribed by the regulations for the purposes of the definition.
As currently drafted, there is a doubt whether a corresponding law that is prescribed by the regulations has to relate to the carrying out of forensic procedures and DNA databases. The proposed amendment makes it clear that this must be the case and also assists in addressing problems raised by the circular nature of the definition of 'DNA databases' referred to below.
This amendment also clarifies the operation of Division 11 of Part 1D of the Crimes Act and the ability of the Commonwealth Minister to enter into arrangements about the DNA database system with responsible Ministers from other participating jurisdictions.
This Item would repeal the definition of 'DNA database' in section 23YUA. The purpose of the amendment is to ensure that the term 'DNA databases' in the definition of 'corresponding law' is not interpreted as having the same meaning as the definition of 'DNA database'. Repealing the definition of 'DNA database' removes any possibility of circularity of definitions and ensures that the terms 'responsible Minister' and 'participating jurisdiction' can be determined to enable the entering into of arrangements under section 23YUD.
Repealing the definition of 'DNA database' will have no effect on the references in section 23YUD to 'the DNA database system' or 'a DNA database system'. Paragraph 23YUD(1)(a) is clearly drafted to refer to 'the DNA database system of the Commonwealth' and paragraph 23YUD(1)(b) clearly refers to 'a DNA database system of the participating jurisdiction'.
Such a distinction is also clear in the Division 11A provisions that were originally intended to rely on the 'DNA database' definition (eg. sections 23YUH and 23YUI) as they specify that it is a 'DNA database' of a participating jurisdiction.
This Item would repeal subsection 23YUD(1) and replace it with new subsections 23YUD(1) and (1A).
Proposed subsection 23YUD(1) would enable the Minister to enter into arrangements, on behalf of the Commonwealth, with participating jurisdictions for sharing DNA information that may be relevant to the investigation of a matter. Previously the Minister was limited only to entering into arrangements for the investigation of an offence. The reference to 'on behalf of the Commonwealth' clarifies that the Minister is entering into such arrangements on behalf of the Commonwealth and not in his personal capacity.
What constitutes an investigation of a matter is defined in subsection 23YUD(3) and includes the investigation of an offence, the investigation of a missing person or an investigation which is conducted to identify a deceased person.
The proposed amendment is consistent with section 23YDAF which provides for permissible matching of DNA profiles on an index of the DNA database in accordance with a matching table. That matching table allows for the matching of DNA information for missing persons and unknown deceased persons.
Proposed subsection 23YUD(1) also clarifies the original intention of that section that the arrangements are not limited to mere transmission of information, but would also include the keeping and otherwise managing of such information which is associated with the transmission of information.
The purpose of proposed subsection 23YUD(1A) is to ensure that CrimTrac is not precluded from entering into memoranda of understanding or other arrangements, on behalf of the Commonwealth, with a participating jurisdiction in relation to the transmission of information to or from a DNA database system of the Commonwealth or of any participating jurisdiction. As with subsection proposed 23YUD(1) it is also made clear that the memorandum of understanding or other arrangements are not limited to the transmission of information, but can also include the keeping and otherwise managing of such information.
The reference to CrimTrac on behalf of the Commonwealth clarifies that CrimTrac is an Executive Agency and is entering into the memoranda of understanding or other arrangements as an agent of the Commonwealth and not in its own capacity.
Proposed subsection 23YUD(1A) will also clarify that the arrangements referred to in proposed subsection 23YUD(1) are not the only form of arrangements that can be entered into under Part 1D of the Crimes Act. For example, the reference to 'any arrangement' in paragraph 23YO(2)(d) is also intended to include a memorandum of understanding or other type of arrangement entered into by CrimTrac (on behalf of the Commonwealth) with another State or Territory for the provision of access to information contained in the DNA database system by law enforcement officers or by any other persons prescribed by the regulations. It is intended that CrimTrac can be a party to memoranda of understanding or other arrangements that facilitate, for example:
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- the uploading of DNA information to CrimTrac from DNA database systems of participating jurisdictions
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- intra jurisdictional matching of DNA profiles from a participating jurisdiction
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- matching between DNA profiles from a participating jurisdiction and the Commonwealth, and
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- matching between DNA profiles of two or more participating jurisdictions, other than the Commonwealth.
This Item would insert new definitional terms in section 23YUD. Those terms are consequential on the other amendments made to Part 1D of the Crimes Act by this Bill.
This Item is a transitional provision. The provision makes it clear that any arrangements entered into under subsection 23YUD(1) before the commencement of this Item and which are in force immediately before this commencement will continue to be in force after the commencement of the amendments as if the arrangements had been entered into under section 23YUD(1) as amended by this Schedule.
Part 4 - Technical corrections of sentencing and parole provisions
This Item corrects a grammatical error in the Crimes Act by replacing a semicolon with a colon in paragraph 16A(2)(f).
This Item corrects a grammatical error in the Crimes Act by inserting a comma in paragraph 19AS(1)(b).
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.
Schedule 3 - technical corrections relating to part numbering in the Crimes Act 1914
The objective of the Items in Schedule 3 is to make minor technical amendments to replace Parts of the Crimes Act expressed in Arabic numerals with Parts expressed in Roman numerals. That corrects erroneous cross-references in the Crimes Act and other Commonwealth criminal laws and is consistent with the drafting policy of the Office of Parliamentary Counsel to express Parts in the Crimes Act in Roman numerals.
Part 1 - Corrections relating to Part 1AA of the Crimes Act 1914
Commonwealth Places (Application of Laws) Act 1970
This Item replaces "Part 1AA", which contains an Arabic numeral, with "Part IAA", which contains a Roman numeral.
These Items replace occurrences of "Part 1AA", which contains an Arabic numeral, with "Part IAA", which contains a Roman numeral.
Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994
This Item corrects a misdescribed amendment of the Crimes Act by replacing "Part 1" with "Part I" in section 4 of the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994.
Part 2 - Corrections relating to Part 1A of the Crimes Act 1914
Crimes Amendment (Controlled Operations) Act 1996
This Item corrects a misdescribed amendment of the Crimes Act by correcting an incorrect heading (ie. Part 1A) in the Crimes Amendment (Controlled Operations) Act 1996.
Part 3 - Corrections relating to Part 1B of the Crimes Act 1914
Commonwealth Places (Application of Laws) Act 1970
This Item replaces "Part 1B", which contains an Arabic numeral, with "Part IB", which contains a Roman numeral.
These Items replace occurrences of "Part 1B", which contains an Arabic numeral, with "Part IB", which contains a Roman numeral.
This Item replaces "Part 1B", which contains an Arabic numeral, with "Part IB", which contains a Roman numeral.
Part 4 - Corrections relating to Part IC of the Crimes Act 1914
Commonwealth Places (Application of Law) Act 1970
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
These Items replace occurrences of "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
Environment Protection and Biodiversity Conservation Act 1999
These Items replace occurrences of "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral.
Part 5 - Corrections relating to Part 1D of the Crimes Act 1914
Commonwealth Places (Application of Laws) Act 1970
This Item replaces "Part 1D", which contains an Arabic numeral, with "Part ID", which contains a Roman numeral.
These Items replace occurrences of "Part 1D", which contains an Arabic numeral, with "Part ID", which contains a Roman numeral.
Crimes Amendment (Forensic Procedures) Act 1998
This Item replaces "Part 1C", which contains an Arabic numeral, with "Part IC", which contains a Roman numeral. This corrects amendments to Part 1D of the Crimes Act introduced by Schedule 1 of the Crimes Amendment (Forensic Procedures) Act 1998, which contains an outdated reference to "Part IC" of the Crimes Act. This amendment corrects that outdated reference.
Part 6 - Saving provision
Item 42 is a saving provision that is intended to ensure that the amendments made by the Act do not invalidate instruments made under, or referring to, a Part heading of the Crimes Act that is amended by the Act, and anything done under such an instrument or such a Part. That will apply whether the instrument was made, or the thing was done, before or after this Act receives the Royal Assent.