Explanatory Memorandum(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)
General Outline and Financial Impact
The primary purpose of this Bill is to create new video link evidence provisions that apply to proceedings for terrorism and other related offences and proceeds of crime proceedings relating to those offences. These new provisions will facilitate the prosecution of terrorism offences by ensuring that, in the absence of compelling reasons to the contrary, important evidence from overseas witnesses that are unable to travel to Australia can be put before the court using video link technology.
The Bill also amends the Foreign Evidence Act 1994 to facilitate the use of foreign material as evidence in proceedings for terrorism and related offences and proceeds of crime proceedings relating to those offences. These changes complement the new video link evidence provisions. This will assist in circumstances where it is not possible for evidence to be given by video link.
Other features of the Bill are:
- amendments to section 4AAA of the Crimes Act 1914 to make it clear that Judges of the Federal Court and Federal Magistrates, who exercise a conferred non-judicial function or power under a Commonwealth law relating to criminal matters, exercise the function or power in their personal capacity,
- an amendment to section 23B(1) of the Crimes Act 1914 to expand the definition of 'tape recording,'
- amendments to Part 1D of the Crimes Act 1914 to facilitate inter-jurisdictional matching of DNA profiles over the National Criminal Investigation DNA Database,
- amendments to the Financial Transaction Reports Act 1988 to rectify an oversight in the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002,
- amendments to the Proceeds of Crime Act 2002 to enable the Director of Public Prosecutions to seek payments out of the Confiscated Assets Account to reimburse third parties who conduct future examinations,
- amendments to the Proceeds of Crime Act 2002 to rectify the unintended consequence of a change to the Proceeds of Crime Regulations that inadvertently changed the status of some examiners and meant that some examinations may have been conducted without proper authority, and
- an amendment to section 22 of the Surveillance Devices Act 2004 so that a warrant can be obtained to retrieve a tracking device installed under an authorisation.
There is no financial impact flowing directly from the provisions of this Bill.
Notes on clauses
This is a formal clause which provides for the citation of the Bill. This clause provides that the Bill when passed may be cited as the Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Act 2005.
This clause provides that the provisions in the Bill will commence the day after the Bill receives Royal Assent.
This clause makes it clear that the Schedule to the Bill will amend the Acts set out in the Schedule in accordance with the provisions set out in the Schedule.
Amendments to section 4AAA of the Crimes Act 1914 - Commonwealth laws conferring non-judicial functions and powers on officers
Item 1 Application
This item amends subsection 4AAA(1) of the Crimes Act 1914 to extend the operation of section 4AAA to Judges of the Federal Court of Australia and Federal Magistrates. Judges of the Federal Court and Federal Magistrates are increasingly being conferred non-judicial powers in criminal matters under Commonwealth law. For example, the power of Judges of the Federal Court to issue an arrest warrant under section 31 of the Australian Crime Commission Act 2002 is a power that is neither judicial nor incidental to a judicial function or power. The proposed amendments to section 4AAA set out the rules that apply when a Judge of the Federal Court or Federal Magistrate exercises a non-judicial function or power under a Commonwealth law relating to criminal matters.
Item 2 Functions and powers conferred personally
This item makes it clear that non-judicial powers in a Commonwealth law relating to criminal matters, such as section 31 of the Australian Crime Commission Act 2002, is conferred on Judges of the Federal Court of Australia and Federal Magistrates in a personal and voluntary capacity.
It is necessary to make this clear for constitutional reasons. Conferring non-judicial functions or powers on a Judge or Magistrate in their capacity as the court or a member of the court to which they belong would be contrary to the independence of the judiciary under the separation of powers doctrine enshrined in Chapter III of the Commonwealth Constitution. A Judge of the Federal Court or Federal Magistrate may agree to exercise a non-judicial function if the power is vested in the Judge's or Magistrate's personal capacity, separate from the court they constitute (see, for example, Grollo v Palmer (1995)
184 CLR 548).
Item 3 Protection and immunity provided
Proposed subsection 4AAA(3A) ensures that the same protections and immunities of a Judge of the High Court apply when a Judge of the Federal Court of Australia or a Federal Magistrate exercise a non-judicial power or function under a Commonwealth law relating to criminal matters.
Item 4 Contrary Intention
Proposed subsection 4AAA(6A) makes it clear that the rules applying in section 4AAA do not override any specific provisions in Commonwealth laws that also deal with the exercise of non-judicial powers under laws of the Commonwealth relating to criminal matters. Where a provision is silent, that does not show a contrary intention. For example, a contrary intention includes where a Commonwealth law requires the Minister to appoint a judge or magistrate to exercise a non-judicial power or function after they have given their consent to exercise the power or function. Another example is where the level of protection or immunity provided is different.
Amendments to the Crimes Act 1914 - Video link evidence
Most State and Territory legislation allows for evidence to be given by video link from witnesses overseas. Generally, the decision to grant an application to take evidence by video link is discretionary, based upon an assessment of whether it would be unfair to the defendant and whether it would be convenient or in the interests of justice.
The proposed video link evidence provisions will limit the discretion of the court to refuse applications for a witness to give evidence by video link in terrorism proceedings, whilst ensuring that the right of the defendant to receive a fair hearing and the interests of justice remain important safeguards.
The application of the proposed video link evidence provisions in this Bill will be limited to terrorist matters. Terrorism offences, by their very nature, are likely to involve witnesses that are overseas and may be unable to travel to Australia to give evidence, for example, because that witness has been incarcerated overseas. Terrorism offences also involve matters of national security that warrant the application of special rules. Offence-specific video link rules are not novel. Part IIIA of the Crimes Act 1914 already contains specific video link evidence rules for child sex tourism prosecutions. Some of the video link provisions in this Bill are based on these existing provisions.
The proposed video link evidence provisions will be applicable to witnesses within Australia as well as overseas. Applying the video link evidence rules to witnesses within Australia will cater for circumstances such as where bringing a witness into the court room to give evidence would pose an unacceptable security risk to the witness or another person.
State and Territory video link evidence rules will still be preserved so that parties will have discretion as to whether to make an application under State or Territory legislation or under this new federal legislation.
Item 5 Video link evidence in proceedings for terrorism and related offences etc.
This item inserts new Part 1AE into the Crimes Act 1914.
Proposed section 15YU: Proceedings to which the Part applies
The purpose of proposed section 15YU is to set out when the video link evidence provisions in new Part 1AE of the Crimes Act 1914 will apply. The provisions will apply to proceedings for terrorism and other related offences, which are offences against:
- section 34G(5) of the Australian Security Intelligence Organisation Act 1979 (offence to give false and misleading answers when questioned by ASIO about terrorist matters)
- section 49 of the Aviation Transport Security Act 2004 (weapons on board an aircraft)
- section 21 of the Charter of United Nations Act 1945 (giving an asset to a proscribed person or entity)
- Division 72 of the Criminal Code (international terrorist activities using explosive or lethal devices)
- Part 5.3 of the Criminal Code (terrorism offences)
- Part 5.4 of the Criminal Code (harm against Australians)
- sections 24AA and 24AB of the Crimes Act 1914 (treachery and sabotage offences)
- Division 1 of Part 2 of the Crimes (Aviation) Act 1991 (Hijacking and other acts of violence on board aircraft)
- section 8 of the Crimes (Biological Weapons) Act 1976 (Restriction on development etc. of certain biological agents and toxins and biological weapons)
- the Crimes (Foreign Incursions and Recruitment) Act 1978
- section 8 of the Crimes (Hostages) Act 1989
- the Crimes (Internationally Protected Persons) Act 1976
The listed offences are all either terrorism offences, offences that may be committed in the context of a terrorism offence, or may be sufficiently related to terrorism to warrant the application of the new provisions. For example, section 34G(5) of the Australian Security Intelligence Organisation Act 1979 provides that if a person is before a prescribed authority for questioning under a warrant in relation to a terrorism offence, it is an offence for the person to make a statement that is to the person's knowledge, false or misleading in a material particular. This offence carries a maximum penalty of 5 years imprisonment. Whilst an offence against this section is not directly related to a terrorism offence as such, evidence from witnesses who are overseas may be required to prove that the person made such false or misleading statements in the context of investigating the terrorism offence. It is important that special questioning powers for investigating terrorist offences can be enforced.
Section 11.6 of the Criminal Code Act 1995 ensures that Part 1AE applies to ancillary offences such as attempting to commit, inciting the commission of, or conspiring to commit one of the offences listed in proposed section 15YU. The new video link evidence provisions will also apply to breaches of section 6 of the Crimes Act 1914 (accessory after the fact) that relate to any of the listed offences.
Proposed paragraph 15YU(2)(b) provides that new Part IAE will also apply to proceedings under the Proceeds of Crime Act 2002 (POCA) relating to the offences listed in subsection 15YU(1). POCA provides a mechanism for the restraint and confiscation of proceeds and instruments of crime. The Act includes both a conviction based confiscation regime, where confiscation action follows conviction, and a civil confiscation regime, where property can be confiscated without first requiring a conviction or a criminal charge. The civil based scheme allows for the confiscation of unlawfully acquired property as long as the court is satisfied (on the civil standard of balance of probabilities) that a person has committed a 'serious offence' ('serious offence' is defined in POCA to include the terrorism offences in Part 5.3 Criminal Code) or that property is the proceeds of an indictable offence, or that the property is an instrument of a terrorism offence. Paragraph 15YU(2)(b) will enable Part 1AE to apply to civil based POCA proceedings so long as the POCA proceedings relate to the offences listed in subsection 15YU(1). For example, the Commonwealth Director of Public Prosecutions may seek to take POCA proceedings to restrain or confiscate property (for example, money in a bank account) which has been used or was intended to be used as an instrument of a terrorism offence. Paragraph 15YU(2)(b) also provides that the video link evidence rules in proposed Part 1AE of the Crimes Act 1914 would apply to the POCA proceedings to restrain and confiscate the money in the bank account, whether or not criminal proceedings have been taken in relation to the terrorism offence.
Proposed subsection 15YU(3) ensures that the new rules in Part 1AE will apply prospectively to proceedings initiated before the commencement of Part 1AE.
Proposed section 15YV: Evidence by video link
Proposed section 15YV sets out the circumstances in which the court must direct or allow a witness to give evidence by video link.
Firstly, either the prosecution or defendant must have made an application under section 15YV for a direction or order that a witness give evidence by video link. It is important to note that where an applicable State or Territory law also allows evidence to be given by video link, it would be open to the prosecution or defendant to instead make a video link application under that State or Territory law, in which case, the rules in proposed Part 1AE would not apply.
Secondly, the prosecutor and defendant must have given the court reasonable notice of their intention to make the application. The court will have sufficient time to make the technical arrangements necessary for the video link, and the other party will have an opportunity to consider the proposal before the application is made.
Thirdly, the witness must be available to give evidence by video link. This will prevent undue delays by overcoming the potential misuse of the provision by a party seeking a direction or order in relation to a witness who cannot realistically be made available to give evidence by video link.
Fourthly, the facilities required by proposed section 15YY must be available or reasonably capable of being made available.
Fifthly, the witness cannot be a defendant in the proceeding. This ensures that a defendant, facing terrorist charges, must give any evidence to the court in person.
If all of these circumstances are met, proposed subsection 15YV(1) provides that, where the prosecutor has applied for the direction or order, the court must direct or allow the witness to give evidence by video link unless the court is satisfied that giving the direction or making the order would have a substantial adverse effect on the right of the defendant in the proceeding to receive a fair hearing. This ensures that, in a terrorism prosecution, where evidence from a witness may be critical to the prosecution's capacity to prove the guilt of the defendant beyond reasonable doubt, the court will only be able to disallow video link evidence where there is a compelling reason to do so. Under State and Territory video link provisions the onus is generally on the party seeking to adduce evidence by video link to convince the court that it should allow the evidence. These new rules essentially put the onus on the other party to provide a compelling reason why the evidence should not be allowed.
Proposed subsection 15YV(2) provides that where the defendant applies for the direction or order, the court must direct or allow the witness to give evidence by video link unless the court is satisfied that it would be inconsistent with the interests of justice for the evidence to be given by video link. This 'interests of justice' test is broad enough to allow the court to consider the interests of both parties.
Proposed section 15YW: Observers
The purpose of proposed section 15YW is to safeguard the integrity of the video link evidence by giving the court the capacity to obtain an independent report of the physical circumstances under which the video link evidence is given from an independent observer who is physically present at the place where the witness is giving the evidence.
A court may consider this to be an important safeguard in circumstances where the court wants assurance that there are no physical circumstances, beyond the view of the camera, suggestive of impropriety (such as duress being placed on the witness).
Where a court makes the hearing of video link evidence conditional on an observer being present, the court must specify who the observer will be. The observer must be a person who is independent of the prosecutor and defendant in the proceeding, is in a position to give evidence to the court about what they observed in relation to the giving of evidence by the witness, and is reasonably available and appropriate to perform the role of an observer in the proceedings. The specified person may be an Australian diplomatic officer or consular officer.
The court may change the person specified to be the observer in the direction or order. This is to accommodate the situation where the specified person may not be able to fulfil their role as an observer because, for example, they become ill and cannot attend the place where the witness is giving evidence.
The court may direct or allow that the observer give the court a report about what they observed in relation to the giving of evidence by the witness. The court will be able to determine in what form the report shall be given (such as orally or in writing) and at what time. The provision is designed to leave the court with the flexibility to determine how and when the observer will report to the court. For example, in a lengthy trial where a witness may be giving evidence for an extended period of time, the court may require the observer to report to the court on a periodic basis about their observations.
The court will be able to use the report of the observer as it considers appropriate for the purpose of deciding whether the video link evidence given by the witness should be admitted as evidence in the proceeding.
Proposed section 15YX: Adjournments
This proposed section provides that where the court gives a direction or makes an order or refuses to give a direction or make an order under section 15YV, the prosecutor or defendant may apply to the court to adjourn the proceedings, to decide whether to appeal against the direction or order, and if necessary, to appeal the direction or order. The court must grant the adjournment.
The prosecution can also apply to the court for an adjournment to allow time for the prosecution to decide whether to withdraw the proceeding, and if the prosecution decides to do so, make the withdrawal. For example, if the prosecution makes an application to have a witness give evidence by video link and the judge refuses to give a direction or order under section 15YV because the judge is of the view that it would have a substantial adverse effect on the defendant's right to a fair hearing, the adjournment will allow time for the prosecution to decide whether they have sufficient evidence to proceed with the prosecution without the video link evidence.
Proposed section 15YY: Technical requirements for video link
This proposed section ensures that video link evidence can only be given if the place where the court is sitting and the place where the evidence is to be given are each equipped with video facilities to enable appropriate persons in both places to see and hear each other via the video link.
Proposed section 15YZ: Direction to jury
This proposed section provides that if a proceeding involves a jury, a witness gives evidence by video link and that evidence is admissible, the judge must give the jury a direction to ensure that the jury gives the same weight to the evidence as if the witness had given the evidence in the courtroom. This is to overcome any inclinations members of a jury may otherwise have to accord less weight to evidence given by video link rather than in person.
If a direction or order is made under section 15YV, the normal rules of evidence (for example, the rule against hearsay evidence) still apply, so the judge will only need to give the direction to the jury under section 15YZ if the evidence of the witness is admissible.
Proposed section 15YZA: Application of laws about witnesses
Proposed subsection 15YZA(1) ensures that a witness who gives evidence by video link will, in giving that evidence, be governed by the same laws as they would be if they were giving that evidence in court.
For example, if the witness is giving video link evidence from overseas, proposed subsection 15YZA(2) makes it clear that the effect of subsection 15YZA(1) is to apply Australian law to the giving of evidence by video link including laws relating to the rules of evidence, procedure, contempt of court and perjury.
Proposed section 15YZB: Administration of oaths and affirmations
This proposed section provides for the oath or affirmation to be administered either by the court over the video link or by authorised officials at the place where the witness is to give evidence on behalf of the court.
Proposed section 15YZC: Expenses
This proposed section authorises the court to make orders for the payment of expenses incurred in connection with the giving of evidence by video link.
Proposed section 15YZD: Appeals
Proposed section 15YZD allows the prosecutor or defendant to appeal the decision of the court under section 15YV to give a direction or make an order or refuse to give a direction or make an order that a witness give evidence by video link.
A court with jurisdiction to hear and determine appeals from the trial also has the jurisdiction to hear and determine any appeal under this section.
Proposed section 15YZE: Other laws about evidence not affected
This proposed section expressly preserves the operation of other laws relating to the taking of evidence from witnesses. For example, State and Territory laws and other Federal laws relating to the taking of evidence from overseas witnesses would be preserved.
Proposed section 15YZF: Saving of other laws
The purpose of this provision is to make clear that the new video link evidence rules do not cover the field and prevent State and Territory laws from operating concurrently with them.
Section 68 of the Judiciary Act 1903 applies the laws of evidence of each State and Territory to Commonwealth prosecutions conducted in the respective State or Territory. State and Territory laws governing the conditions and circumstances in which a court will order the adducing of evidence by video link therefore apply to Commonwealth prosecutions. The operation of these laws will be preserved by proposed section 15YZF. In practice, parties will have discretion to make an application for video link evidence under State or Territory laws or Federal laws.
Item 6 Definition of tape recording
This item repeals the definition of tape recording in subsection 23B(1) of the Crimes Act 1914 and replaces it with a new definition. The current definition of tape recording in subsection 23B(1) is limited to audio recording and video recording. The new definition will define tape recording to mean audio recording, video recording or recording by other electronic means. This is the same definition of tape recording that is currently used in section 23WA of the Crimes Act 1914. The wider definition will enable new technologies, such as digital audio recording technology, to be used to record interviews.
This item provides that the new definition of tape recording in section 23B(1) applies to a recording made after the commencement of this item.
Amendments to Part 1D of the Crimes Act 1914 - forensic procedures
Part 1D of the Crimes Act 1914 regulates forensic procedures, including the obtaining, use and destruction of DNA samples. A DNA profile is generated for each DNA sample taken, and these profiles can be stored on a DNA database system and compared, or 'matched', with other profiles on the database in accordance with matching rules. The matching rules for DNA profiles are set out in the matching table in section 23YDAF. The matching table regulates which types of DNA profiles (eg. profiles from convicted serious offenders, suspects, missing persons or their relatives, crimes scenes, or volunteers) can be matched against other types of DNA profiles. For example, the profiles of convicted serious offenders can be matched to a greater extent than the profiles of suspects because of the greater protections afforded suspects in comparison to convicted serious offenders. Also the matching of the profiles of volunteers is even more circumscribed, and volunteers are given the option to stipulate a limited purpose for which their DNA profile may be used.
The matching table applies to the matching of profiles collected by Federal law enforcement agencies in accordance with Part 1D of the Crimes Act 1914. The rules for matching between Commonwealth profiles and profiles collected by other Australian jurisdictions are set out in section 23YUD and ministerial arrangements made under that section. Section 23YUD only permits Commonwealth profiles to be matched with other Australian jurisdictions that have forensic procedure laws that substantially correspond with Part 1D of the Crimes Act 1914.
The purpose of the proposed amendments to Part 1D is to streamline the rules governing the matching of DNA profiles by:
- ensuring that where a volunteer has stipulated a limited purpose for the use of their DNA profile, their profile can be matched with other profiles on the DNA database so long as the match is conducted for that limited purpose and only used for that limited purpose, and
- remove the requirement that inter-jurisdictional matching be confined to a specific investigation.
Items 8 to 16 Amendments to the matching table
Items 8 to 16 propose to amend the Commonwealth matching table in section 23YDAF to allow profiles that have been collected from volunteers for a limited purpose ('volunteer (limited purposes) profiles') to be matched against any other profile on the database so long as the matching is within the limited purpose. For example, if the volunteer had only consented to the collection and use of their DNA profile for the purpose of a particular investigation, that profile would be allowed to be matched with any other profile in the database so long as that match was being conducted for the purpose of that investigation.
Currently, in some circumstances, Volunteers (limited purposes) profiles cannot be matched against crime scene profiles. Item 8 amends the matching table to allow Volunteers (limited purposes) profiles to be matched against crime scene profiles but 'only if within purpose' (i.e. only if the match is being conducted for the purpose stipulated by the volunteer).
Currently, Volunteers (limited purposes) profiles cannot be matched against suspect profiles. Items 9 and 10 amend the matching table to allow Volunteers (limited purposes) profiles to be matched against suspect profiles but 'only if within purpose' (i.e. only if the match is being conducted for the purpose stipulated by the volunteer).
Currently, Volunteers (limited purposes) profiles cannot be matched against other Volunteers (limited purposes) profiles. Item 11 amends the matching table to allow Volunteers (limited purposes) profiles to be matched against other Volunteer (limited purposes) profiles but 'only if within purpose' (i.e. only if the match is being conducted for the purpose consistent with the purpose stipulated by both volunteers).
Currently, Volunteers (limited purposes) profiles cannot be matched against Volunteers (unlimited purposes) profiles. Volunteers (unlimited purposes) profiles are profiles that have been collected from volunteers who have consented to their profile being used for the purpose of investigating any matter. Items 12 and 13 amend the matching table to allow Volunteers (limited purposes) profiles to be matched against Volunteers (unlimited purposes) profiles but only if the match is being conducted for the purpose stipulated by the 'limited purpose' volunteer.
Currently, in some circumstances, Volunteers (limited purposes) profiles cannot be matched against serious offenders profiles. Item 14 amends the matching table to allow Volunteers (limited purposes) profiles to be matched against serious offenders profiles but 'only if within purpose' (i.e. only if the match is being conducted for the purpose stipulated by the volunteer).
Currently, in some circumstances, Volunteers (limited purposes) profiles can be matched without restriction against missing persons profiles. Item 15 amends the matching table to ensure matching between Volunteers (limited purposes) profiles can only be matched against missing persons profiles if the match is being conducted for the purpose stipulated by the volunteer.
Currently, in some circumstances, Volunteers (limited purposes) profiles can be matched without restriction against unknown deceased persons profiles. Item 16 amends the matching table to restrict Volunteers (limited purposes) profiles to matching against unknown deceased persons profiles 'only if within purpose' (i.e. only if the match is being conducted for the purpose stipulated by the volunteer).
Items 17 to 19 Inter-jurisdictional matching
Section 23YUD can be interpreted as limiting inter-jurisdictional matching of DNA profiles to circumstances where there is a specific identifiable investigation on foot to which information about a DNA match may be relevant. The purpose of items 17 to 19 is to remove this limitation, but ensure that any information obtained from a DNA match can only be used for the purpose of investigating an offence or a missing person, or identifying a deceased person.
Item 17 substitutes a new subsection 23YUD(1) which has the effect of removing the potential current requirement that the information transmitted between the jurisdictions relate to the investigation of a specific matter.
Item 18 provides an additional safeguard by inserting subsection 23YUD(1B) which restricts the use of information transmitted under the ministerial arrangement to investigations of an offence, a missing person or the identification of a deceased person.
Item 19 ensures that any existing ministerial arrangement does not lapse as a result of these amendments, which repeal and replace the enabling provision.
Items 20 and 21
These items amend paragraph 16(1)(b) of the Financial Transaction Reports Act 1988 (FTRA) to ensure that cash dealers are required to report a transaction to the Director of the Australian Transaction Reports and Analysis Centre (AUSTRAC) where a cash dealer has reasonable grounds to suspect that information the cash dealer has may be of assistance in enforcement of the Proceeds of Crime Act 2002 (POCA 2002) or regulations under it. The paragraph already applies where information may be of assistance in enforcement of the Proceeds of Crime Act 1987. The amendment was unintentionally omitted from earlier amendments consequential upon passage of POCA 2002.
Items 22 to 25
Proposed new Part 1AE in the Crimes Act 1914 will deal with video link evidence from witnesses both overseas and within Australia in proceedings for terrorism and other related offences and proceeds of crime proceedings relating to these offences. The Foreign Evidence Act 1994 deals with other types of foreign material such as video tapes and transcripts of examinations. The proposed amendments to the Foreign Evidence Act 1994 will assist in treating the foreign evidence in a similar manner to the new video link evidence rules in Part 1AE of the Crimes Act 1914 in proceedings for terrorism and other related offences and proceeds of crime proceedings relating to those offences. This will assist in circumstances where it is not possible for evidence to be given by video link, perhaps because of restrictions under the law of the foreign country.
Section 24 of the Foreign Evidence Act 1994 provides that foreign material may be adduced in a proceeding if the material would be admissible if the witness was giving evidence in person.
Subsection 25(1) provides that the court may direct that foreign material not be adduced as evidence if justice would be better served if the foreign material were not adduced as evidence.
Item 25 inserts proposed new section 25A into the Foreign Evidence Act 1994 that applies to a criminal proceeding for a designated offence or a proceeding under the Proceeds of Crime Act 2002 (POCA 2002) in relation to a designated offence. Item 22 inserts a definition of designated offence into subsection 3(1) in the Foreign Evidence Act 1994. It is defined to include the same list of offences that are listed in proposed subsections 15YU(1) and 15YU(2) of the Crimes Act 1914. These include terrorism and other related offences.
Proposed section 25A provides that if a proceeding is a criminal proceeding for a designated offence or a proceeding under the POCA 2002 in relation to a designated offence and the prosecution seeks to adduce foreign material as evidence in the proceeding, then subsection 25(1) of the Foreign Evidence Act 1994 does not apply. Instead, proposed subsection 25A(1)(d) provides that the court may direct that the foreign material not be adduced as evidence if the court is satisfied that adducing the foreign material would have a substantial adverse effect on the right of a defendant in the proceeding to receive a fair hearing. This will provide a narrower test than the one that still applies if the defendant is seeking to adduce the foreign material under subsection 25(1). Proposed subsection 25A(3) stipulates that it is immaterial whether the proceedings for the designated offence or proceedings under the POCA 2002 in relation to the designated offence were instituted before or after the commencement of this section.
Section 24 of the Foreign Evidence Act 1994 will still apply, so that the foreign material will only be admissible if the nature of the material is such that the witness could have given the evidence in person. That will ensure that the normal rules of evidence, and the normal protections which apply under those rules, will continue to apply in proceedings covered by proposed section 25A.
Item 24 adds a note to the end of subsection 25(1) to see subsection 25A(1) (proceedings for designated offences).
Item 23 adds subsection 20(1)(c) so that Part 3 of the Foreign Evidence Act 1994 applies to proceedings under the Proceeds of Crime Act 2002 in relation to a designated offence.
This item adds a note at the foot of section 6 of the Proceeds of Crime Act 2002 (POCA 2002). Section 6 outlines the general scheme of POCA 2002. The note is intended to alert the reader that new Part 1AE of the Crimes Act 1914 (Video link evidence in proceedings for terrorism and related offences etc) also applies to proceedings under POCA 2002 in relation to the offences listed in subsection 15YU(1) of Part 1AE.
This item inserts paragraph (ga) into subsection 297(1)(g) of the POCA 2002. The paragraph enables payments to be made out of suspended funds in the Confiscated Assets Account (CAA) in relation to the conduct of examinations. Under Part 3-1 of the POCA 2002 a court can make an examination order on the application of the Director of Public Prosecutions (DPP) where a restraining order has been made against a person's property. The amendment will empower the DPP to approve a payment to a third party which has carried out the examination.
The purpose of this item is to amend the POCA 2002 to rectify the unintended consequence of a regulation change that inadvertently affected the legal status of some examiners.
Section 180 of the POCA 2002 enables a court which makes a restraining order to also make an examination order of a person whose property is the subject of the restraining order. Section 183(4)(a) of the POCA 2002 provides that approved examiners are persons in the class of persons specified in the POCA Regulations. Until amended in 2004, the original regulation 4 of the POCA 2000 Regulations provided that an approved examiner was a presidential member or senior member of the Administrative Appeals Tribunal (AAT).
An amendment to the POCA Regulations came into effect on 7 September 2004 which repealed regulation 4 and replaced it with regulation 12. The intention of regulation 12 was to broaden the class of non-presidential members who could conduct such examinations to anyone who has been enrolled as a legal practitioner for 5 years. However, the 2004 amendment inadvertently removed the reference to senior AAT members being eligible to be examiners. Thus the 2004 amendment had the unintended consequence of excluding previously lawfully registered examiners if they had not been enrolled as a legal practitioner for 5 years.
Item 28 will validate the work of such examiners who were inadvertently disinvested of their status as examiners. The purported examinations will be deemed lawful, with the consequence that evidence obtained in the course of those examinations will have been lawfully obtained. The item will only apply to examinations conducted and other action taken, in the period before the problem came to light.
Item 29 Amendment to subsection 22(1)
This item proposes to amend subsection 22(1) of the Surveillance Devices Act 2004 so that a warrant can be obtained to retrieve a surveillance device installed under an authorisation under section 39 of the Surveillance Devices Act 2004.
Section 39 of the Surveillance Devices Act 2004 provides that a law enforcement officer may receive an authorisation to use a tracking device without a warrant to investigate a relevant offence. This is subject to subsection 39(8) which states that a tracking device cannot be used, installed or retrieved if it involves entry onto premises without permission or an interference with the interior of a vehicle without permission. The permission may come from the owner, occupier or under a surveillance device warrant.
Section 22(1) of the Surveillance Devices Act 2004 currently provides that a law enforcement officer may apply for the issue of a retrieval warrant in respect of a surveillance device that was lawfully installed on premises, or in or on an object, under a surveillance device warrant. It does not provide for a law enforcement officer to be able to apply for a retrieval warrant in respect of a surveillance device that was used under an authorisation (under section 39).
A problem may arise where, for example, a law enforcement officer has placed a tracking device on a vehicle under an authorisation (under section 39), but the vehicle becomes inaccessible because it is moved onto private property. In these circumstances, the law enforcement officer cannot get a retrieval warrant under section 22(1) because the subsection does not currently provide for this. The law enforcement officer also cannot get an authorisation to remove the tracking device because section 39(8) requires that there is permission to enter onto the premises or interference with the interior of the vehicle.
The amendment to section 22(1) will provide that a warrant can be obtained to retrieve the tracking device that was installed under a tracking device authorisation. This will ensure that there is an appropriate mechanism with accountability measures in place to retrieve the tracking device.
This item adds a note to the end of subsection 39(8) stating that section 22 deals with applications for a retrieval warrant in respect of a tracking device that was lawfully installed under a tracking device authorisation.