2004-2005-2006 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 (Justice and Customs) A Bill for an Act to amend the law relating to the investigation of criminal activity and the protection of witnesses, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Controlled operations, assumed identities and protection of witness identity 3 Crimes Act 1914 3 Schedule 2--Delayed notification search warrants 85 Crimes Act 1914 85 Schedule 3--Amendment of the Australian Crime Commission Act 2002 116 Schedule 4--Amendment of the Witness Protection Act 1994 134 Schedule 5--Other Amendments 147 Part 1--Other amendments relating to controlled operations 147 Crimes Act 1914 147 Customs Act 1901 147 Part 2--Other amendments of the Australian Crime Commission Act 2002 149 Part 3--Amendments relating to seized electronic equipment 150 Crimes Act 1914 150 Customs Act 1901 150 Mutual Assistance in Criminal Matters Act 1987 151 Proceeds of Crime Act 2002 152 Schedule 6--Transitional provisions 154 Part 1--Transitional provisions relating to controlled operations 154 Part 2--Transitional provisions relating to assumed identities 155 Part 3--Regulations relating to transitional matters 156 i Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 1 investigation of criminal activity and the protection 2 of witnesses, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Crimes Legislation Amendment 6 (National Investigative Powers and Witness Protection) Act 2006. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 13 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 to The 28th day after the day on which this Act 6 receives the Royal Assent. Note: This table relates only to the provisions of this Act as originally 1 passed by both Houses of the Parliament and assented to. It will not be 2 expanded to deal with provisions inserted in this Act after assent. 3 (2) Column 3 of the table contains additional information that is not 4 part of this Act. Information in this column may be added to or 5 edited in any published version of this Act. 6 3 Schedule(s) 7 Each Act that is specified in a Schedule to this Act is amended or 8 repealed as set out in the applicable items in the Schedule 9 concerned, and any other item in a Schedule to this Act has effect 10 according to its terms. 11 2 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 1 Schedule 1--Controlled operations, assumed 2 identities and protection of witness 3 identity 4 5 Crimes Act 1914 6 1 Parts IAB and IAC 7 Repeal the Parts, substitute: 8 Part IAB--Controlled operations 9 Division 1--Preliminary 10 15G Objects of Part 11 The main objects of this Part are: 12 (a) to provide for the authorisation, conduct and monitoring of 13 controlled operations; and 14 (b) to exempt from criminal liability, and to indemnify from civil 15 liability: 16 (i) law enforcement officers who, in the course of a 17 controlled operation authorised under this Part, take an 18 active part in, or are otherwise involved in, the 19 commission of a Commonwealth offence or an offence 20 against a law of a State or Territory or conduct that may 21 result in a civil liability; and 22 (ii) certain other persons who, when authorised by a law 23 enforcement officer and in the course of a controlled 24 operation authorised under this Part, take an active part 25 in, or are otherwise involved in, the commission of a 26 Commonwealth offence or an offence against a law of a 27 State or Territory or conduct that may result in a civil 28 liability. 29 15GA Relationship to other laws and matters 30 (1) Subject to subsection (2) and section 15HU, this Part is not 31 intended to limit a discretion that a court has: 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 3 [Page Break] (a) to admit or exclude evidence in any proceedings; or 1 (b) to stay criminal proceedings in the interests of justice. 2 (2) In determining whether evidence should be admitted or excluded in 3 any proceedings, the fact that the evidence was obtained as a result 4 of a person engaging in criminal activity is to be disregarded if: 5 (a) the person was a participant in a controlled operation 6 authorised under this Part acting in the course of the 7 controlled operation; and 8 (b) the criminal activity was controlled conduct. 9 15GB Concurrent operation of State and Territory laws 10 It is the intention of the Parliament that this Part is not to apply to 11 the exclusion of a law of a State or Territory to the extent that the 12 law is capable of operating concurrently with this Part. 13 15GC Definitions 14 In this Part: 15 ACC authorising officer has the meaning given by subsection 16 15GF(4). 17 ACLEI authorising officer has the meaning given by subsection 18 15GF(5). 19 AFP authorising officer has the meaning given by subsection 20 15GF(3). 21 appropriate authorising officer, for a controlled operation 22 authorised under this Part, means the following: 23 (a) if the authority to conduct the controlled operation was 24 granted by an AFP authorising officer--any AFP authorising 25 officer; 26 (b) if the authority to conduct the controlled operation was 27 granted by an ACC authorising officer--any ACC 28 authorising officer; 29 (c) if the authority to conduct the controlled operation was 30 granted by an ACLEI authorising officer--any ACLEI 31 authorising officer. 32 4 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] authorising agency, for a controlled operation authorised under 1 this Part, means the following: 2 (a) if the authority to conduct the controlled operation was 3 granted by an AFP authorising officer--the Australian 4 Federal Police; 5 (b) if the authority to conduct the controlled operation was 6 granted by an ACC authorising officer--the ACC; 7 (c) if the authority to conduct the controlled operation was 8 granted by an ACLEI authorising officer--the Australian 9 Commission for Law Enforcement Integrity. 10 authority means an authority (whether formal or urgent) to conduct 11 a controlled operation granted under section 15GH, and includes 12 any such authority as varied. 13 chief officer means the following: 14 (a) in relation to the Australian Federal Police--the 15 Commissioner; 16 (b) in relation to the police force of a State or Territory--the 17 Commissioner of Police in that police force or the person 18 holding equivalent rank; 19 (c) in relation to the Australian Customs Service--the Chief 20 Executive Officer of Customs; 21 (d) in relation to the ACC--the Chief Executive Officer of the 22 ACC; 23 (e) in relation to the Australian Commission for Law 24 Enforcement Integrity--the Integrity Commissioner. 25 civilian participant in a controlled operation means a participant in 26 the controlled operation who is not a law enforcement officer. 27 conduct has the same meaning as in the Criminal Code. 28 controlled conduct means conduct constituting an offence for 29 which a person would, but for section 15GW, be criminally 30 responsible. 31 controlled operation has the meaning given by section 15GD. 32 corresponding State controlled operations law means: 33 (a) a law of a State or Territory; or 34 (b) a provision or provisions of a law of a State or Territory; 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 5 [Page Break] prescribed by the regulations for the purposes of this definition. 1 exercise a function includes perform a duty. 2 formal application has the meaning given by paragraph 3 15GG(2)(a). 4 formal authority has the meaning given by paragraph 15GI(1)(a). 5 formal variation application has the meaning given by paragraph 6 15GP(3)(a). 7 formal variation of authority has the meaning given by paragraph 8 15GR(1)(a). 9 function includes a power, authority or duty. 10 law enforcement agency means any of the following: 11 (a) the Australian Federal Police; 12 (b) the police force of a State or Territory; 13 (c) the Australian Customs Service; 14 (d) the ACC; 15 (e) the Australian Commission for Law Enforcement Integrity. 16 law enforcement participant in a controlled operation means a 17 participant in the controlled operation who is a law enforcement 18 officer. 19 major controlled operation has the meaning given by subsection 20 15GF(2). 21 participant in a controlled operation means a person who is 22 authorised under this Part to engage in controlled conduct for the 23 purposes of the controlled operation. 24 person targeted, in relation to a controlled operation, means the 25 person about whom, as a result of the controlled operation: 26 (a) it is intended to obtain evidence; or 27 (b) evidence is being, or has been, obtained. 28 principal law enforcement officer, for a controlled operation 29 authorised under this Part, means the Australian law enforcement 30 officer specified in the authority to conduct the controlled 31 6 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] operation as the officer who is responsible for the conduct of the 1 controlled operation. 2 serious Commonwealth offence has the meaning given by 3 subsection 15GE(1). 4 serious State offence that has a federal aspect has the meaning 5 given by subsection 15GE(2). 6 urgent application has the meaning given by paragraph 7 15GG(2)(b). 8 urgent authority has the meaning given by paragraph 15GI(1)(b). 9 urgent variation application has the meaning given by paragraph 10 15GP(3)(b). 11 urgent variation of authority has the meaning given by paragraph 12 15GR(1)(b). 13 Division 2--Authorisation of controlled operations 14 15GD Meaning of controlled operation 15 A controlled operation is an operation that: 16 (a) involves the participation of law enforcement officers; and 17 (b) is carried out for the purpose of obtaining evidence that may 18 lead to the prosecution of a person for a serious 19 Commonwealth offence or a serious State offence that has a 20 federal aspect; and 21 (c) may involve a law enforcement officer or other person in 22 conduct that would, apart from section 15GW, constitute a 23 Commonwealth offence or an offence against a law of a State 24 or Territory. 25 Note: Section 15GN specifies when a controlled operation begins and ends. 26 15GE Meaning of serious Commonwealth offence or serious State 27 offence that has a federal aspect 28 (1) For the purposes of this Part, serious Commonwealth offence 29 means a Commonwealth offence that is punishable on conviction 30 by imprisonment for a period of 3 years or more. 31 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 7 [Page Break] (2) For the purposes of this Part, serious State offence that has a 1 federal aspect means an offence against a law of a State or 2 Territory that has a federal aspect and that is punishable on 3 conviction by imprisonment for a period of 3 years or more. 4 (3) For the purposes of this Part, serious Commonwealth offence 5 includes a Commonwealth offence that is prescribed by the 6 regulations, or that is of a kind prescribed by the regulations. 7 15GF Meaning of authorising officer 8 (1) Any of the following is an authorising officer for a controlled 9 operation: 10 (a) if the operation is a major controlled operation and the 11 investigation of the offence to which the controlled operation 12 relates is within the functions of the Australian Federal 13 Police--the Commissioner or a Deputy Commissioner; 14 (b) if the operation is not a major controlled operation, but the 15 investigation of the offence to which the controlled operation 16 relates is within the functions of the Australian Federal 17 Police--any AFP authorising officer; 18 (c) if the investigation of the offence to which the controlled 19 operation relates is within the functions of the ACC--any 20 ACC authorising officer; 21 (d) if the controlled operation relates to the investigation of a 22 corruption issue (within the meaning of the Law Enforcement 23 Integrity Commissioner Act 2006)--any ACLEI authorising 24 officer. 25 (2) A major controlled operation is a controlled operation that is 26 likely to: 27 (a) involve the infiltration of an organised criminal group by one 28 or more undercover law enforcement officers for a period of 29 more than 7 days; or 30 (b) continue for more than 3 months; or 31 (c) be directed against suspected criminal activity that includes a 32 threat to human life. 33 (3) The following are AFP authorising officers: 34 (a) the Commissioner; 35 (b) a Deputy Commissioner; 36 8 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (c) a senior executive AFP employee who is a member of the 1 Australian Federal Police and who is authorised in writing by 2 the Commissioner for the purposes of this paragraph. 3 (4) The following are ACC authorising officers: 4 (a) the Chief Executive Officer of the ACC; 5 (b) a member of the staff of the ACC who is an SES employee 6 and who is authorised in writing by the Chief Executive 7 Officer of the ACC for the purposes of this paragraph. 8 (5) The following are ACLEI authorising officers: 9 (a) the Integrity Commissioner; 10 (b) the Assistant Integrity Commissioner; 11 (c) a member of the staff of the ACLEI who is an SES employee 12 and is authorised in writing by the Integrity Commissioner 13 for the purposes of this paragraph. 14 15GG Applications for authorities to conduct controlled operations 15 (1) An Australian law enforcement officer of a law enforcement 16 agency may apply to an authorising officer for an authority to 17 conduct a controlled operation on behalf of the law enforcement 18 agency. 19 (2) An application for an authority may be made: 20 (a) by means of a written document signed by the applicant 21 (such an application is a formal application); or 22 (b) if the applicant has reason to believe that the delay caused by 23 making a formal application may affect the success of the 24 controlled operation--orally in person, or by telephone or 25 any other means of communication (such an application is an 26 urgent application). 27 (3) Nothing in this Part prevents an application for an authority being 28 made in respect of a controlled operation that has been the subject 29 of a previous application, but in that case the subsequent 30 application must be a formal application. 31 Note: An urgent authority can be varied, but not so as to extend its 32 duration--see sections 15GO and 15GS. 33 (4) An application (whether formal or urgent) must: 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 9 [Page Break] (a) provide sufficient information to enable the authorising 1 officer to decide whether or not to grant the application; and 2 (b) state whether or not the proposed controlled operation, or any 3 other controlled operation with respect to the same criminal 4 activity, has been the subject of an earlier application 5 (whether formal or urgent) for an authority or variation of an 6 authority and, if so, whether or not the authority was given or 7 the variation granted. 8 (5) An authorising officer may require an applicant to provide such 9 additional information concerning the proposed controlled 10 operation as is necessary for the proper consideration of the 11 application. 12 (6) As soon as practicable after making an urgent application that was 13 not made in writing, the applicant must make a record in writing of 14 the application and give a copy of it to the authorising officer to 15 whom the application was made. The record must state the 16 proposed period of effect of the authority, which must not exceed 7 17 days. 18 15GH Determination of applications 19 (1) An authorising officer may, after considering an application for an 20 authority to conduct a controlled operation, and any additional 21 information provided under subsection 15GG(5): 22 (a) authorise the controlled operation by granting the authority, 23 either unconditionally or subject to conditions; or 24 (b) refuse the application. 25 (2) An authorising officer must not grant an authority to conduct a 26 controlled operation unless the authorising officer is satisfied on 27 reasonable grounds: 28 (a) that a serious Commonwealth offence or a serious State 29 offence that has a federal aspect has been, is being or is likely 30 to be, committed; and 31 (b) that the nature and extent of the suspected criminal activity 32 are such as to justify the conduct of a controlled operation; 33 and 34 (c) that any unlawful conduct involved in conducting the 35 controlled operation will be limited to the maximum extent 36 10 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] consistent with conducting an effective controlled operation; 1 and 2 (d) the operation will be conducted in a way that ensures that, to 3 the maximum extent possible, any illicit goods involved in 4 the controlled operation will be under the control of an 5 Australian law enforcement officer at the end of the 6 controlled operation; and 7 (e) that the proposed controlled conduct will be capable of being 8 accounted for in a way that will enable the reporting 9 requirements of Division 4 to be complied with; and 10 (f) that the controlled operation will not be conducted in such a 11 way that a person is likely to be induced to commit a 12 Commonwealth offence or an offence against a law of a State 13 or Territory that the person would not otherwise have 14 intended to commit; and 15 (g) that any conduct involved in the controlled operation will 16 not: 17 (i) seriously endanger the health or safety of any person; or 18 (ii) cause the death of, or serious injury to, any person; or 19 (iii) involve the commission of a sexual offence against any 20 person; or 21 (iv) result in significant loss of, or serious damage to, 22 property (other than illicit goods); and 23 (h) that any role assigned to a civilian participant in the operation 24 is not one that could be adequately performed by a law 25 enforcement officer. 26 (3) To avoid doubt, an authorising officer may authorise a particular 27 controlled operation only if he or she is an authorising officer for 28 the controlled operation within the meaning of section 15GF. 29 (4) An authority granted under this section is not a legislative 30 instrument. 31 15GI Form of authority 32 (1) An authority to conduct a controlled operation may be granted: 33 (a) by means of a written document, signed by the authorising 34 officer (such an authority is a formal authority); or 35 (b) if the authorising officer is satisfied that the delay caused by 36 granting a formal authority may affect the success of the 37 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 11 [Page Break] operation--orally in person, or by telephone or any other 1 means of communication (such an authority is an urgent 2 authority). 3 (2) Nothing in this Part prevents an authority being granted in respect 4 of a controlled operation that has been the subject of a previous 5 authority, but in that case the subsequent authority must be a 6 formal authority. 7 Note: An urgent authority can be varied, but not so as to extend its 8 duration--see sections 15GO and 15GS. 9 15GJ Formal authority 10 (1) A formal authority must: 11 (a) state the name and rank or position of the person granting the 12 authority; and 13 (b) identify the principal law enforcement officer for the 14 controlled operation and, if the principal law enforcement 15 officer is not the applicant for the authority, the name of the 16 applicant; and 17 (c) state that the application is a formal application; and 18 (d) identify the nature of the criminal activity (including the 19 suspected serious Commonwealth offences and serious State 20 offences that have a federal aspect) in respect of which the 21 controlled conduct is to be engaged in; and 22 (e) identify the nature of the controlled conduct that the 23 participants in the controlled operation may be authorised to 24 engage in under section 15GL; and 25 (f) identify (to the extent known) the person or persons to be 26 targeted; and 27 (g) specify the period of effect of the authority, being a period 28 not exceeding 3 months; and 29 (h) specify any conditions to which the conduct of the controlled 30 operation is subject; and 31 (i) state the date and time when the authority is granted; and 32 (j) identify the following details (to the extent to which they are 33 known and are relevant): 34 (i) the nature and quantity of any illicit goods that will be 35 involved in the controlled operation; 36 12 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (ii) the foreign countries through which those goods are 1 likely to pass in the course of the controlled operation; 2 (iii) the place or places at which those goods are likely to be 3 dealt with by the Australian Customs Service; 4 (iv) if subparagraph (iii) does not apply--the place or places 5 where those goods are likely to enter into Australia; 6 (v) the time or times when, and the day or days on which, 7 those goods are likely to be dealt with by the Australian 8 Customs Service. 9 15GK Urgent authority 10 (1) If an authorising officer grants an urgent authority, the authorising 11 officer must, within 7 days, issue a written urgent authority to the 12 principal law enforcement officer for the controlled operation. 13 (2) A written urgent authority must: 14 (a) state the name and rank or position of the person granting the 15 authority; and 16 (b) identify the principal law enforcement officer for the 17 controlled operation and, if the principal law enforcement 18 officer is not the applicant for the authority, the name of the 19 applicant; and 20 (c) state that the application is an urgent application; and 21 (d) identify the nature of the criminal activity in respect of which 22 the controlled conduct is to be engaged in; and 23 (e) identify the nature of the controlled conduct that the 24 participants in the controlled operation may be authorised to 25 engage in under section 15GL; and 26 (f) specify the period of effect of the authority, being a period 27 not exceeding 7 days; and 28 (g) specify any conditions to which the conduct of the operation 29 is subject; and 30 (h) state the date and time when the authority was granted. 31 15GL Authorisations of specified individuals to engage in controlled 32 conduct 33 (1) The principal law enforcement officer for a controlled operation 34 may, for the purposes of the controlled operation, authorise a 35 specified person to engage in controlled conduct. 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 13 [Page Break] (2) An authorisation under subsection (1) may be given orally or in 1 writing, and must: 2 (a) state the identity of the person authorised to engage in 3 controlled conduct for the purposes of the controlled 4 operation; and 5 (b) state the time when, and the place where, the authorisation 6 was given; and 7 (c) identify: 8 (i) with respect to the law enforcement participants, the 9 nature of the controlled conduct that those participants 10 may engage in; and 11 (ii) with respect to the civilian participants, the particular 12 controlled conduct (if any) that each such participant 13 may engage in. 14 (3) As soon as reasonably practicable after giving an oral 15 authorisation, the principal law enforcement officer for the 16 controlled operation must give to the person authorised to engage 17 in controlled conduct a written authorisation stating the matters in 18 subsection (2). 19 (4) A person is sufficiently identified for the purposes of 20 paragraph (2)(a) if the person is identified: 21 (a) by an assumed name under which the person is operating; or 22 (b) by a code name or code number; 23 as long as the chief officer of the authorising agency for the 24 controlled operation can match the assumed name, code name or 25 code number to the person's identity. 26 (5) An authorisation under this section must not be given in respect of 27 a class of persons. 28 (6) The principal law enforcement officer for a controlled operation 29 may cancel an authorisation under subsection (1) for any reason. 30 (7) An authorisation may be cancelled orally or in writing. 31 (8) As soon as reasonably practicable after cancelling an authorisation 32 orally, the principal law enforcement officer for the controlled 33 operation must give written notice of the cancellation to the person 34 who was authorised to engage in controlled conduct under the 35 authorisation. 36 14 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 15GM Change of principal law enforcement officer 1 If an authorising officer in relation to a controlled operation 2 becomes satisfied that the principal law enforcement officer for the 3 controlled operation ceases for any reason to have responsibility 4 for the controlled operation: 5 (a) the authorising officer may, by instrument in writing, 6 nominate another person as the principal law enforcement 7 officer for the controlled operation; and 8 (b) with effect from the execution of the instrument or such later 9 time as is specified in the instrument, that other person 10 becomes the principal law enforcement officer for the 11 controlled operation. 12 15GN Commencement and duration of authorities and 13 authorisations 14 (1) An authority to conduct a controlled operation comes into force, 15 and the controlled operation is taken to commence, at the time the 16 authority is granted under section 15GH. 17 (2) To avoid doubt, an urgent authority is granted when the authorising 18 officer tells the applicant that the urgent authority is granted. 19 Note: An authority is granted under subsection 15GH(1). Paragraph 20 15GI(1)(b) enables an authority to be granted orally in specified 21 circumstances. 22 (3) An authority (whether formal or urgent) has effect for the period of 23 effect specified in it under paragraph 15GJ(1)(g) or 15GK(2)(f) 24 unless: 25 (a) it is cancelled before the end of the period of effect; or 26 (b) the period of effect is extended under section 15GQ. 27 (4) An authorisation under section 15GL has effect throughout the 28 period of effect of the authority for the controlled operation to 29 which the authorisation relates, unless: 30 (a) a shorter period of effect is specified in the authorisation; or 31 (b) the authorisation is cancelled before the end of that period. 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 15 [Page Break] 15GO Variation of authority--general 1 (1) An appropriate authorising officer may vary a formal authority or 2 an urgent authority: 3 (a) at any time on the authorising officer's own initiative; or 4 (b) on application under subsection 15GP(1). 5 (2) A variation may: 6 (a) extend the period of effect of the authority (subject to 7 subsections (3) and (4)); or 8 (b) authorise participants in the controlled operation to engage in 9 additional or alternative controlled conduct. 10 (3) However, a variation cannot be made that has the effect of 11 extending the period of effect of an urgent authority. 12 (4) No single variation may extend the period of effect of a formal 13 authority for more than 3 months at a time. 14 (5) An authority must not be varied unless the authorising officer is 15 satisfied on reasonable grounds that the variation will not authorise 16 a significant alteration of the nature of the controlled operation 17 concerned. 18 15GP Variation of authority on application 19 (1) The principal law enforcement officer for a controlled operation, or 20 any other Australian law enforcement officer acting on behalf of 21 the principal law enforcement officer, may apply to an appropriate 22 authorising officer for a variation of authority for a purpose 23 mentioned in section 15GO(2). 24 (2) More than one application for a variation may be made in respect 25 of the same authority. 26 (3) An application for a variation of an authority may be made: 27 (a) by means of a written document that is signed by the 28 applicant (such an application is a formal variation 29 application); or 30 (b) if the applicant has reason to believe that the delay caused by 31 making a formal application for variation may affect the 32 success of the controlled operation to which the authority 33 relates--orally in person, or by telephone or any other means 34 16 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] of communication (such an application is an urgent variation 1 application). 2 (4) The authorising officer to whom the application is made may 3 require the applicant to provide such information concerning the 4 proposed variation as is necessary for the authorising officer's 5 proper consideration of the application. 6 15GQ Determination of application to vary authority 7 (1) After considering an application for a variation of an authority, and 8 any additional information provided under subsection 15GP(4), the 9 authorising officer concerned: 10 (a) may vary the authority in accordance with the application, 11 either unconditionally or subject to conditions; or 12 (b) may refuse the application. 13 (2) Subsection 15GH(2) applies to an application for a variation of 14 authority under this section in the same way as it applies to an 15 application for authority under subsection 15GH(1). 16 15GR Manner of varying authority 17 (1) An authority may be varied by an authorising officer (whether on 18 application or otherwise) only: 19 (a) by means of a written document signed by the authorising 20 officer (such a variation is a formal variation of authority); 21 or 22 (b) if the authorising officer is satisfied that the delay caused by 23 granting a formal variation of authority may affect the 24 success of the controlled operation--orally in person, or by 25 telephone or any other means of communication (such a 26 variation is an urgent variation of authority). 27 (2) The authorising officer must, as soon as practicable, prepare and 28 give a written document that complies with section 15GS to the 29 applicant or, if the variation was on the initiative of the authorising 30 officer, to the principal law enforcement officer for the controlled 31 operation. 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 17 [Page Break] 15GS Form of variation of authority 1 A variation of an authority (whether formal or urgent) must: 2 (a) identify the controlled operation to which the authority 3 relates; and 4 (b) state the name and rank or position of the person varying the 5 authority; and 6 (c) if the authority was varied on an application made under 7 section 15GP, state: 8 (i) the name of the applicant; and 9 (ii) whether the application was a formal variation 10 application or an urgent variation application; and 11 (d) state the date and time when the variation of authority is or 12 was granted; and 13 (e) describe the variation having regard to the purposes referred 14 to in subsection 15GP(1) in respect of which the application 15 was made. 16 15GT Cancellation of authorities 17 (1) An appropriate authorising officer may, by order in writing given 18 to the principal law enforcement officer for a controlled operation, 19 cancel the authority to conduct the controlled operation at any time 20 and for any reason. 21 (2) Without limiting subsection (1), an appropriate authorising officer 22 may cancel an authority at any time at the request of the principal 23 law enforcement officer for the controlled operation concerned. 24 (3) Cancellation of an authority takes effect at the time the order is 25 made or at the later time specified in the order. 26 15GU Effect of authorities 27 (1) While it has effect, an authority: 28 (a) authorises each law enforcement participant in the controlled 29 operation to which the authority relates to engage in the 30 controlled conduct specified in an authorisation under 31 section 15GL in respect of that participant; and 32 (b) authorises each civilian participant in the controlled operation 33 to which the authority relates (if any) to engage in the 34 18 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] particular controlled conduct (if any) specified in an 1 authorisation under section 15GL in respect of that 2 participant. 3 (2) The authority to engage in controlled conduct given to a participant 4 cannot be delegated to any other person. 5 15GV Defect in authority 6 An application for an authority or variation of an authority, and any 7 authority or variation of an authority granted on the basis of such 8 an application, is not invalidated by any defect, other than a defect 9 that affects the application, authority or variation in a material 10 particular. 11 Division 3--Protection from criminal responsibility and 12 related provisions 13 Subdivision A--Controlled operations under this Part 14 15GW Protection from criminal responsibility for controlled 15 conduct during controlled operations 16 (1) This section applies if: 17 (a) a participant in a controlled operation engages in conduct in 18 the course of, and for the purposes of, the controlled 19 operation; and 20 (b) engaging in that conduct is a Commonwealth offence or an 21 offence against a law of a State or Territory. 22 (2) Despite any other law of the Commonwealth, a State or a Territory, 23 the participant is not criminally responsible for the offence, if: 24 (a) the participant engages in the conduct in accordance with the 25 authority to conduct the controlled operation; and 26 (b) the participant is authorised under section 15GL to engage in 27 the conduct; and 28 (c) the conduct does not involve the participant intentionally 29 inducing a person to commit a Commonwealth offence or an 30 offence under a law of a State or Territory that the person 31 would not otherwise have intended to commit; and 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 19 [Page Break] (d) the conduct does not involve the participant engaging in any 1 conduct that is likely to: 2 (i) cause the death of, or serious injury to, any person; or 3 (ii) involve the commission of a sexual offence against any 4 person; and 5 (e) if the participant is a civilian participant in the operation--he 6 or she acts in accordance with the instructions of a law 7 enforcement officer. 8 15GX Indemnification of participants against civil liability 9 The Commonwealth must indemnify a participant in a controlled 10 operation against any civil liability (including reasonable costs) the 11 participant incurs because of conduct the participant engages in if: 12 (a) the participant engages in the conduct in the course of, and 13 for the purposes of, the controlled operation in accordance 14 with the authority to conduct the controlled operation; and 15 (b) the participant is authorised under section 15GL to engage in 16 the conduct; and 17 (c) the conduct does not involve the participant intentionally 18 inducing a person to commit a Commonwealth offence or an 19 offence under a law of a State or Territory that the person 20 would not otherwise have intended to commit; and 21 (d) the conduct does not involve the participant engaging in any 22 conduct that is likely to: 23 (i) cause the death of, or serious injury to, any person; or 24 (ii) involve the commission of a sexual offence against any 25 person; and 26 (e) if the participant is a civilian participant in the operation--he 27 or she acts in accordance with the instructions of a law 28 enforcement officer; and 29 (f) the requirements (if any) specified in the regulations have 30 been met. 31 15GY Effect of sections 15GW and 15GX on other laws relating to 32 criminal investigation 33 Sections 15GW and 15GX do not apply to a person's conduct that 34 is, or could have been, authorised under Commonwealth law or a 35 law of a State or Territory relating to the following: 36 20 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) arrest or detention of individuals; 1 (b) searches of individuals; 2 (c) entry onto, or searches or inspection of, premises; 3 (d) searches, inspections or seizures of other property; 4 (e) forensic procedure; 5 (f) electronic surveillance devices or telecommunications 6 interception; 7 (g) identification procedures; 8 (h) the acquisition or use of assumed identities; 9 (i) any other matter concerning powers of criminal investigation. 10 15GZ Effect of being unaware of variation or cancellation of 11 authority 12 (1) If an authority to conduct a controlled operation is varied in a way 13 that limits its scope, this Part continues to apply to a participant in 14 the controlled operation as if the authority had not been varied in 15 that way, for so long as the participant: 16 (a) is unaware of the variation; and 17 (b) is not reckless about the existence of the variation. 18 (2) If an authority to conduct a controlled operation, or an 19 authorisation under section 15GL is cancelled, this Part continues 20 to apply to a person who was a participant in the controlled 21 operation immediately before the cancellation as if the authority or 22 authorisation had not been cancelled in that way, for so long as the 23 person: 24 (a) is unaware of the cancellation; and 25 (b) is not reckless about the existence of the cancellation. 26 (3) For the purposes of this section, a person is reckless about the 27 existence of the variation or cancellation of an authority or 28 authorisation if: 29 (a) the person is aware of a substantial risk that the variation or 30 cancellation has happened; and 31 (b) having regard to the circumstances known to the person, it is 32 unjustifiable to take the risk that the authority has not been 33 varied or cancelled. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 21 [Page Break] 15H Protection from criminal responsibility for certain ancillary 1 conduct 2 (1) This section applies if: 3 (a) a person engages in conduct (the ancillary conduct) that 4 relates to controlled conduct (the related controlled conduct) 5 engaged in by another person; and 6 (b) engaging in the ancillary conduct is an ancillary offence 7 (within the meaning of the Criminal Code) in relation to the 8 offence constituted by the related controlled conduct. 9 (2) Despite any other law of the Commonwealth, the person who 10 engaged in the ancillary conduct is not criminally responsible for 11 the ancillary offence if, at the time the person engaged in the 12 ancillary conduct, he or she believed the related controlled conduct 13 was being engaged in, or would be engaged in, by a participant in a 14 controlled operation authorised under this Part. 15 (3) In this section: 16 ancillary offence, in relation to an offence constituted by related 17 controlled conduct, means a Commonwealth offence or an offence 18 under a law of a State or Territory: 19 (a) of conspiring to commit the offence constituted by the related 20 controlled conduct; or 21 (b) of aiding, abetting, counselling or procuring, inciting or being 22 in any way knowingly concerned in, the commission of the 23 offence constituted by the related controlled conduct. 24 15HA Compensation for property loss or serious damage 25 (1) If a person suffers loss of or serious damage to property, or 26 personal injury, as a direct result of a controlled operation 27 authorised under this Part, the Commonwealth is liable to pay to 28 the person compensation as agreed between the Commonwealth 29 and the person or, in default of agreement, as determined by action 30 against the Commonwealth in a court of competent jurisdiction. 31 (2) Subsection (1) does not apply if: 32 (a) the person suffered the loss, damage or injury in the course 33 of, or as a direct result of, engaging in any criminal activity 34 (other than criminal activity that is controlled conduct); or 35 22 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (b) the person was a law enforcement participant at the time of 1 suffering the loss, damage or injury. 2 (3) Payments under this section are to be made out of money 3 appropriated by the Parliament. 4 15HB Notification requirements 5 (1) If: 6 (a) any loss of or serious damage to property occurs in the course 7 of, or as a direct result of, a controlled operation (other than 8 property of the law enforcement agency on behalf of which 9 the operation is conducted or a participant in the operation); 10 or 11 (b) any personal injury occurs in the course of, or as a direct 12 result of, such an operation; 13 the principal law enforcement officer for the controlled operation 14 must report the loss, damage or injury to the chief officer of the 15 law enforcement agency as soon as practicable. 16 (2) If loss or serious damage to property is notified to the chief officer 17 under subsection (1), the chief officer must take all reasonable 18 steps to notify the owner of the property of the loss or damage. 19 (3) The chief officer is not required to notify the owner of property 20 under this section until the chief officer is satisfied that notification 21 would not: 22 (a) compromise or hinder the controlled operation or any related 23 investigation; or 24 (b) compromise the identity of a participant in the controlled 25 operation; or 26 (c) endanger the life or safety of any person; or 27 (d) prejudice any legal proceeding; or 28 (e) otherwise be contrary to the public interest. 29 (4) A chief officer may, by written instrument, delegate any of the 30 chief officer's powers or functions under this section to: 31 (a) in relation to the Australian Federal Police--a Deputy 32 Commissioner or a person of equivalent or higher rank; or 33 (b) in relation to the Australian Customs Service--the Deputy 34 Chief Executive Officer of Customs or a person occupying an 35 equivalent or higher position; or 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 23 [Page Break] (c) in relation to the ACC: 1 (i) the Director National Operations or a person occupying 2 an equivalent or higher position; or 3 (ii) a person occupying a position prescribed by the 4 regulations; or 5 (d) in relation to ACLEI--the Assistant Integrity Commissioner; 6 or 7 (e) in relation to the police force of a State or Territory--a 8 Deputy Commissioner or a person of equivalent or higher 9 rank. 10 Subdivision B--Controlled operations under a corresponding 11 State controlled operations law 12 15HC Protection from criminal responsibility for conduct under a 13 corresponding State controlled operations law 14 (1) This section applies to a participant in an operation authorised 15 under a corresponding State controlled operations law if: 16 (a) the participant engages in conduct in the course of, and for 17 the purposes of, the operation; and 18 (b) engaging in that conduct is a Commonwealth offence. 19 (2) Despite any other law of the Commonwealth, the participant is not 20 criminally responsible for the Commonwealth offence, if: 21 (a) the conduct is authorised by, and is engaged in in accordance 22 with, the authority to conduct the controlled operation; and 23 (b) the conduct does not involve the participant intentionally 24 inducing a person to commit a Commonwealth offence or an 25 offence against a law of a State or Territory that the person 26 would not otherwise have intended to commit; and 27 (c) the conduct does not involve the participant engaging in any 28 conduct that is likely to: 29 (i) cause the death of, or serious injury to, any person; or 30 (ii) involve the commission of a sexual offence against any 31 person; and 32 (d) if the person is a civilian participant in the operation--he or 33 she acts in accordance with the instructions of a law 34 enforcement officer. 35 24 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (3) Expressions used in this section have the same meanings as in the 1 corresponding State controlled operations law under which the 2 operation was authorised. 3 15HD Effect of section 15HC on other laws relating to criminal 4 investigation 5 Section 15HC does not apply to a person's conduct that is, or could 6 have been, authorised under a Commonwealth law or a law of a 7 State or Territory relating to the following: 8 (a) arrest or detention of individuals; 9 (b) searches of individuals; 10 (c) entry onto, or searches or inspection of, premises; 11 (d) searches, inspections or seizures of other property; 12 (e) forensic procedure; 13 (f) electronic surveillance devices or telecommunications 14 interception; 15 (g) identification procedures; 16 (h) the acquisition or use of assumed identities; 17 (i) any other matter concerning powers of criminal investigation. 18 15HE Protection from criminal responsibility for certain ancillary 19 conduct 20 (1) This section applies if: 21 (a) a person engages in conduct (the ancillary conduct) that 22 relates to controlled conduct (the related controlled conduct) 23 engaged in by another person; and 24 (b) engaging in the ancillary conduct is an ancillary offence 25 (within the meaning of the Criminal Code) in relation to the 26 offence constituted by the related controlled conduct. 27 (2) Despite any law of the Commonwealth, the person who engaged in 28 the ancillary conduct is not criminally responsible for the ancillary 29 offence if, at the time the person engaged in the ancillary conduct, 30 he or she believed the related controlled conduct was being 31 engaged in, or would be engaged in, by a participant in an 32 operation authorised under a corresponding State controlled 33 operations law. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 25 [Page Break] (3) Expressions used in this section have the same meanings as in the 1 corresponding State controlled operations law under which the 2 person believed the controlled conduct was being engaged in. 3 Division 4--Compliance and Monitoring 4 15HF Unauthorised disclosure of information 5 (1) A person commits an offence if: 6 (a) the person discloses information; and 7 (b) the information relates to a controlled operation. 8 Penalty: Imprisonment for 2 years. 9 (2) Subsection (1) does not apply if the disclosure was: 10 (a) in connection with the administration or execution of this 11 Part; or 12 (b) for the purposes of any legal proceedings arising out of or 13 otherwise related to this Part or of any report of any such 14 proceedings; or 15 (c) in accordance with any requirement imposed by law; or 16 (d) in connection with the performance of functions or duties, or 17 the exercise of powers, of a law enforcement agency. 18 Note: A defendant bears an evidential burden in relation to the matters in 19 subsection (2)--see subsection 13.3(3) of the Criminal Code. 20 15HG Unauthorised disclosure of information--endangering safety, 21 etc. 22 (1) A person commits an offence if: 23 (a) the person discloses information; and 24 (b) the information relates to a controlled operation authorised 25 under this Part; and 26 (c) either: 27 (i) the person intends to endanger the health or safety of 28 any person or prejudice the effective conduct of a 29 controlled operation; or 30 (ii) the disclosure of the information will endanger the 31 health or safety of any person or prejudice the effective 32 conduct of a controlled operation. 33 26 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Penalty: Imprisonment for 10 years. 1 (2) Subsection (1) does not apply if the disclosure was: 2 (a) in connection with the administration or execution of this 3 Part; or 4 (b) for the purposes of any legal proceedings arising out of or 5 otherwise related to this Part or of any report of any such 6 proceedings; or 7 (c) in accordance with any requirement imposed by law; or 8 (d) in connection with the performance of functions or duties, or 9 the exercise of powers, of a law enforcement agency. 10 Note: A defendant bears an evidential burden in relation to the matters in 11 subsection (2)--see subsection 13.3(3) of the Criminal Code. 12 (3) An offence against this section is an indictable offence. 13 15HH Chief officers' 6 monthly reports to Ombudsman and 14 Minister 15 (1) As soon as practicable after 30 June and 31 December in each year, 16 the chief officer of each authorising agency must submit a report to 17 the Ombudsman setting out the details required by subsection (2) 18 in relation to controlled operations for which the agency was the 19 authorising agency during the previous 6 months. 20 (2) The report must include the following details: 21 (a) the number of formal authorities for controlled operations 22 that have been granted or varied by an authorising officer of 23 the agency, and the number of formal applications for the 24 granting or variation of such authorities that have been 25 refused by an authorising officer of the agency, during the 26 period to which the report relates; 27 (b) the number of urgent authorities for controlled operations or 28 urgent variations of such authorities that have been granted 29 by an authorising officer of the agency, and the number of 30 urgent applications for such authorities or urgent variations 31 of authorities that have been refused by an authorising officer 32 of the agency, during the period to which the report relates; 33 (c) the nature of the criminal activities against which the 34 controlled operations were directed; 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 27 [Page Break] (d) the identity of each person targeted under controlled 1 operations; 2 (e) the nature of the controlled conduct engaged in for the 3 purposes of the controlled operations; 4 (f) if any of the controlled operations involved illicit goods, a 5 statement (to the extent known) of: 6 (i) the nature and quantity of the illicit goods; and 7 (ii) the route through which the illicit goods passed in the 8 course of the operations; and 9 (iii) all foreign countries through which the illicit goods 10 passed in the course of the operation; 11 (g) details of any loss of or serious damage to property (other 12 than property of the law enforcement agency on behalf of 13 which the operation is conducted or a participant in the 14 operation) occurring in the course of or as a direct result of 15 the controlled operations; 16 (h) details of any personal injuries occurring in the course of or 17 as a direct result of the operations; 18 (i) the number of authorities for controlled operations that were 19 cancelled by an authorising officer of the agency or that 20 expired during the period to which the report relates. 21 (3) The Ombudsman may require the chief officer of an authorising 22 agency to give additional information covering any controlled 23 operation to which a report relates. 24 (4) Nothing in paragraph (2)(e) or (f) requires particulars of a 25 controlled operation to be included in a report for a period of 6 26 months if the operation had not been completed during that period, 27 but the particulars must instead be included in the report for the 28 period of 6 months in which the operation is completed. 29 (5) A copy of a report given to the Ombudsman under this section 30 must be given to the Minister at the same time as it is given to the 31 Ombudsman. 32 15HI Chief officers' annual reports to Minister 33 (1) As soon as practicable after 30 June in each year, the chief officer 34 of each authorising agency must submit a report to the Minister 35 setting out the details required by subsection 15HH(2) in relation to 36 28 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] controlled operations for which the agency was the authorising 1 agency during the previous 12 months. 2 (2) Each chief officer must advise the Minister of any information in a 3 report that, in the chief officer's opinion, should be excluded from 4 the report before the report is laid before the Parliament because: 5 (a) the information, if made public, could reasonably be 6 expected to: 7 (i) endanger a person's safety; or 8 (ii) prejudice an investigation or prosecution; or 9 (iii) compromise any law enforcement agency's operational 10 activities or methodologies; or 11 (b) making the information public would be contrary to the 12 public interest for any other reason. 13 (3) The Minister must exclude information from a report if the 14 Minister is satisfied on the advice of the chief officer of any of the 15 grounds set out in subsection (2) and must then cause a copy of the 16 report to be laid before each House of the Parliament within 15 17 sitting days of that House after the Minister receives it. 18 (4) A report must not disclose any information that identifies any 19 person involved in an operation or that is likely to lead to such a 20 person being identified. 21 (5) Nothing in this section requires particulars of a controlled 22 operation to be included in a report for a year if the operation had 23 not been completed as at 30 June in that year, but the particulars 24 must instead be included in the report for the year in which the 25 operation is completed. 26 (6) If a report relates, in whole or in part, to the work or activities of 27 the ACC under a corresponding State controlled operations law, 28 the Minister must, as soon as practicable after the report is laid 29 before each House of the Parliament, send a copy of the report to 30 the State or Territory Minister with responsibility for the 31 corresponding State controlled operations law. 32 15HJ Annual report by Ombudsman 33 (1) The Ombudsman must, as soon as practicable after 30 June in each 34 year: 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 29 [Page Break] (a) prepare a report of the work and activities under this Part of 1 the Ombudsman for the preceding 12 months and give a copy 2 of the report to the Minister and to the chief officer of the law 3 enforcement agency to which the report relates; and 4 (b) prepare a report of the work and activities of the Ombudsman 5 for the preceding 12 months, being work or activities under a 6 corresponding State controlled operations law, and give a 7 copy of the report to the Minister and to the chief officer of 8 the ACC. 9 (2) A report under this section must not include information which, if 10 made public, could reasonably be expected to: 11 (a) endanger a person's safety; or 12 (b) prejudice an investigation or prosecution; or 13 (c) compromise any law enforcement agency's operational 14 activities or methodologies. 15 (3) The Minister must cause a copy of the report to be laid before each 16 House of the Parliament within 15 sitting days of that House after 17 the Minister receives it. 18 (4) A report must include, for each authorising agency concerned, 19 comments on the comprehensiveness and adequacy of the reports 20 which were provided to the Ombudsman by the chief officer of the 21 authorising agency under section 15HH. 22 (5) A report must not disclose any information that identifies any 23 person involved in an operation or that is likely to lead to such a 24 person being identified. 25 (6) Nothing in this section requires particulars of a controlled 26 operation to be included in a report for a year if the operation had 27 not been completed as at 30 June in that year, but the particulars 28 must instead be included in the report for the year in which the 29 operation is completed. 30 (7) If a report relates, in whole or in part, to the work or activities of 31 the ACC under a corresponding State controlled operations law, 32 the Minister must, as soon as practicable after the report is laid 33 before each House of the Parliament, send a copy of the report to 34 the State or Territory Minister with responsibility for the 35 corresponding State controlled operations law. 36 30 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 15HK Keeping documents connected with controlled operations 1 The chief officer of an authorising agency must cause the 2 following to be kept: 3 (a) each formal application made to an authorising officer of the 4 agency; 5 (b) each formal authority granted by such an authorising officer; 6 (c) each formal variation application made to such an authorising 7 officer; 8 (d) each formal variation of authority granted by such an 9 authorising officer; 10 (e) each written urgent authority issued under section 15GK; 11 (f) each order cancelling an authority granted by such an 12 authorising officer; 13 (g) each written authorisation issued under section 15GL by a 14 principal law enforcement officer of the agency and each 15 written cancellation by such an officer of such an 16 authorisation. 17 15HL General register 18 (1) The chief officer of each authorising agency must cause a general 19 register to be kept. 20 (2) The general register is to specify: 21 (a) for each application under this Part made to an authorising 22 officer of the agency (including an application for a variation 23 of an authority): 24 (i) the date of the application; and 25 (ii) whether the application was formal or urgent; and 26 (iii) whether the application was granted, refused or 27 withdrawn; and 28 (iv) if the application was refused or withdrawn--the date 29 and time of the refusal or withdrawal; and 30 (b) for each authority under this Part granted by an authorising 31 officer of the agency: 32 (i) the date and time the authority was granted; and 33 (ii) whether the authority was formal or urgent; and 34 (iii) the name and rank or position of the person who granted 35 the authority; and 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 31 [Page Break] (iv) each serious Commonwealth offence or serious State 1 offence that has a federal aspect in respect of which 2 controlled conduct under the authority was to be 3 engaged in; and 4 (v) the period of effect of the authority; and 5 (vi) if the authority was cancelled, the date and time of 6 cancellation; and 7 (vii) the date and time the controlled operation began and the 8 date of completion of the operation; and 9 (viii) if the controlled operation involved illicit goods (to the 10 extent known), the nature and quantity of the illicit 11 goods and the route and all foreign countries through 12 which the illicit goods passed in the course of the 13 operation; and 14 (ix) details of any loss of or serious damage to property 15 (other than property of the law enforcement agency on 16 behalf of which the operation is conducted or a 17 participant in the operation) occurring in the course of 18 or as a direct result of the controlled operation; and 19 (x) details of any personal injuries occurring in the course 20 of or as a direct result of the operation; and 21 (c) for each variation of an authority under this Part made by an 22 authorising officer of the agency: 23 (i) the date and time the variation was made; and 24 (ii) whether the variation was formal or urgent; and 25 (iii) the name and rank or position of the person who made 26 the variation. 27 (3) A register kept under this section is not a legislative instrument. 28 15HM Appointment of inspecting officers 29 (1) The Ombudsman may appoint members of the Ombudsman's staff 30 to be inspecting officers for the purposes of this Part. 31 (2) An appointment under subsection (1) must be in writing. 32 15HN Inspection of records by the Ombudsman 33 (1) The Ombudsman must, from time to time and at least once every 34 12 months, inspect the records of each authorising agency to 35 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] determine the extent of compliance with this Part by the agency 1 and by law enforcement officers. 2 (2) The Ombudsman must also, from time to time and at least once 3 every 12 months, inspect the records of the ACC to determine the 4 extent of compliance with corresponding State controlled 5 operations laws, in relation to any authorities (within the meaning 6 of each such law): 7 (a) for which a law enforcement officer of the ACC applied; or 8 (b) that were granted to a law enforcement officer of the ACC. 9 (3) For the purpose of an inspection under this section, the 10 Ombudsman: 11 (a) may, after notifying the chief officer of the agency, enter at 12 any reasonable time premises occupied by the agency; and 13 (b) is entitled to have full and free access at all reasonable times 14 to all records of the agency that are relevant to the inspection; 15 and 16 (c) may require a member of staff of the agency to give the 17 Ombudsman any information that the Ombudsman considers 18 necessary, being information that is in the member's 19 possession, or to which the member has access, and that is 20 relevant to the inspection; and 21 (d) may, despite any other law, make copies of, and take extracts 22 from, records of the agency. 23 (4) The chief officer must ensure that members of staff of the agency 24 give the Ombudsman any assistance the Ombudsman reasonably 25 requires to enable the Ombudsman to perform functions under this 26 section. 27 (5) Nothing in this section requires the Ombudsman to inspect records 28 relating to operations that have not been completed at the time of 29 the inspection. 30 15HO Power to obtain relevant information 31 (1) If the Ombudsman has reasonable grounds to believe that a law 32 enforcement officer of a particular law enforcement agency 33 (whether or not the agency is an authorising agency) is able to give 34 information relevant to an inspection under this Division of an 35 authorising agency's records, subsections (2) and (3) have effect. 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 33 [Page Break] (2) The Ombudsman may, by writing given to the law enforcement 1 officer, require the officer to give the information to the 2 Ombudsman: 3 (a) by writing signed by the officer; and 4 (b) at a specified place and within a specified period. 5 (3) The Ombudsman may, by writing given to the law enforcement 6 officer, require the officer to attend: 7 (a) before a specified inspecting officer; and 8 (b) at a specified place; and 9 (c) within a specified period or at a specified time on a specified 10 day; 11 to answer questions relevant to the inspection. 12 (4) If the Ombudsman: 13 (a) has reasonable grounds to believe that a law enforcement 14 officer of a particular law enforcement agency (whether or 15 not the agency is an authorising agency) is able to give 16 information relevant to an inspection under this Division of 17 an authorising agency's records; and 18 (b) does not know the officer's identity; 19 the Ombudsman may, by writing given to the chief officer of the 20 agency, require the chief officer, or a person nominated by the 21 chief officer, to attend: 22 (c) before a specified inspecting officer; and 23 (d) at a specified place; and 24 (e) within a specified period or at a specified time on a specified 25 day; 26 to answer questions relevant to the inspection. 27 (5) The place, and the period or the time and day, specified in a 28 requirement under this section, must be reasonable having regard 29 to the circumstances in which the requirement is made. 30 15HP Offence 31 A person commits an offence if: 32 (a) the person is required under section 15HO to attend before a 33 person, to give information or to answer questions; and 34 (b) the person refuses or fails to do so. 35 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Penalty: Imprisonment for 6 months. 1 15HQ Ombudsman to be given information and access despite other 2 laws 3 (1) Despite any other law, a person is not excused from giving 4 information, answering a question, or giving access to a document, 5 as and when required under this Division, on the ground that giving 6 the information, answering the question, or giving access to the 7 document, as the case may be: 8 (a) would contravene a law; or 9 (b) would be contrary to the public interest; or 10 (c) might tend to incriminate the person or make the person 11 liable to a penalty; or 12 (d) would disclose one of the following: 13 (i) a legal advice given to a Minister, a Department or a 14 prescribed authority; 15 (ii) a communication between an officer of a Department or 16 of a prescribed authority and another person or body, 17 being a communication protected against disclosure by 18 legal professional privilege. 19 (2) However, if the person is a natural person: 20 (a) the information, the answer, or the fact that the person has 21 given access to the document, as the case may be; and 22 (b) any information or thing (including a document) obtained as 23 a direct or indirect consequence of giving the information, 24 answering the question or giving access to the document; 25 is not admissible in evidence against the person except in a 26 proceeding by way of a prosecution for an offence against 27 section 15HF or 15HG of this Act or Part 7.4 or 7.7 of the Criminal 28 Code. 29 (3) Nothing in section 15HF or 15HG or in any other law prevents an 30 officer of an agency from: 31 (a) giving information to an inspecting officer (whether orally or 32 in writing and whether or not in answer to a question); or 33 (b) giving access to a record of the agency to an inspecting 34 officer; 35 for the purposes of an inspection under this Division of the 36 agency's records. 37 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 35 [Page Break] (4) Nothing in section 15HF or 15HG or in any other law prevents an 1 officer of an agency from making a record of information, or 2 causing a record of information to be made, for the purposes of 3 giving the information to a person as permitted by subsection (3). 4 (5) The fact that a person is not excused under subsection (1) from 5 furnishing information, producing a document or other record or 6 answering a question does not otherwise affect a claim of legal 7 professional privilege that anyone may make in relation to that 8 information, document or other record or answer. 9 (6) In this section: 10 prescribed authority has the same meaning as in the Ombudsman 11 Act 1976. 12 15HR Exchange of information between Ombudsman and State 13 inspecting authorities 14 (1) In this section: 15 State or Territory agency means a law enforcement agency of a 16 State or Territory within the meaning of a corresponding State 17 controlled operations law. 18 State or Territory inspecting authority, in relation to a State or 19 Territory agency, means the authority that, under the law of the 20 State or Territory concerned, has the function of making 21 inspections of a similar kind to those provided for in section 15HN 22 when the State or Territory agency is exercising powers under a 23 corresponding State controlled operations law. 24 (2) The Ombudsman may give information that: 25 (a) relates to a State or Territory agency; and 26 (b) was obtained by the Ombudsman under this Division; 27 to the State or Territory inspecting authority in relation to the 28 agency. 29 (3) The Ombudsman may only give information to an authority under 30 subsection (2) if the Ombudsman is satisfied that the giving of the 31 information is necessary to enable the authority to perform its 32 functions in relation to the State or Territory agency. 33 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (4) The Ombudsman may receive from a State or Territory inspecting 1 authority information relevant to the performance of the 2 Ombudsman's functions under this Division. 3 15HS Delegation by Ombudsman 4 (1) The Ombudsman may delegate: 5 (a) to an APS employee responsible to the Ombudsman; or 6 (b) to a person having similar oversight functions to the 7 Ombudsman under the law of a State or Territory or to an 8 employee responsible to that person; 9 all or any of the Ombudsman's powers under this Division other 10 than a power to report to the Minister. 11 (2) A delegate must, upon request by a person affected by the exercise 12 of any power delegated to the delegate, produce the instrument of 13 delegation, or a copy of the instrument, for inspection by the 14 person. 15 15HT Ombudsman not to be sued 16 The Ombudsman, an inspecting officer, or a person acting under an 17 inspecting officer's direction or authority, is not liable to an action, 18 suit or proceeding for or in relation to an act done, or omitted to be 19 done, in good faith in the performance or exercise, or the purported 20 performance or exercise, of a function or power conferred by this 21 Division. 22 Division 5--Miscellaneous 23 15HU Evidence of authorities 24 A document purporting to be an authority granted under 25 section 15GH or under a corresponding State controlled operations 26 law: 27 (a) is admissible in any legal proceedings; and 28 (b) in the absence of evidence to the contrary, is proof in any 29 proceedings (not being criminal or disciplinary proceedings 30 against a law enforcement officer) that the person granting 31 the authority was satisfied of the facts he or she was required 32 to be satisfied of to grant the authority. 33 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 37 [Page Break] 15HV Chief Executive Officer of Customs to be notified of certain 1 authorities 2 (1) This section applies if: 3 (a) an authority is granted under section 15GH by an AFP 4 authorising officer, an ACC authorising officer or an ACLEI 5 authorising officer; and 6 (b) the applicant for the authority believes that illicit goods 7 involved in the conduct of the operation may be dealt with by 8 the Australian Customs Service. 9 (2) The applicant must, as soon as practicable after the authority is 10 granted, notify the Chief Executive Officer of Customs, or a person 11 (the nominated person) nominated by him or her for the purposes 12 of this section, in writing of: 13 (a) the applicant's name; and 14 (b) the date on which the authority was granted; and 15 (c) to the extent to which it is known: 16 (i) the place or places at which the illicit goods will pass 17 into the control of the Australian Customs Service; and 18 (ii) the time or times when, and the day or days on which, 19 the illicit goods are expected to pass into the control of 20 the Australian Customs Service. 21 (3) A failure to comply with this section does not affect the validity of 22 an authority. 23 Part IAC--Assumed Identities 24 Division 1--Preliminary 25 15HW Definitions 26 In this Part: 27 acquire an assumed identity, means acquire evidence of the 28 assumed identity and includes taking steps towards acquiring 29 evidence of the identity. 30 agency means one or more of the following: 31 (a) an issuing agency; 32 38 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (b) an intelligence agency; 1 (c) a law enforcement agency. 2 authorised civilian means a person who is authorised under an 3 authority to acquire or use an assumed identity, but does not 4 include an officer of an intelligence agency, an officer of a law 5 enforcement agency, or a foreign officer. 6 authorised foreign officer means a foreign officer who is 7 authorised under an authority to acquire or use an assumed identity. 8 authorised intelligence officer means an intelligence officer who 9 is authorised under an authority to acquire or use an assumed 10 identity. 11 authorised law enforcement officer means a law enforcement 12 officer who is authorised under an authority to acquire or use an 13 assumed identity. 14 authorised person means: 15 (a) an authorised civilian; and 16 (b) an authorised intelligence officer; and 17 (c) an authorised law enforcement officer; and 18 (d) an authorised foreign officer. 19 authority means an authority granted under section 15HY to 20 acquire and use an assumed identity, including the authority as 21 varied under section 15JB. 22 certificate of authorisation, in relation to an authority, means the 23 certificate granted under section 15J in relation to an issuing 24 agency. 25 chief officer: 26 (a) of an intelligence agency--means the following: 27 (i) in relation to the Australian Security Intelligence 28 Organisation--the Director-General of Security; 29 (ii) in relation to the Australian Secret Intelligence 30 Service--the Director-General of Australian Secret 31 Intelligence Service; and 32 (b) of an issuing agency--means the chief executive officer 33 (however described) of the agency; and 34 (c) of a law enforcement agency--means the following: 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 39 [Page Break] (i) in relation to the Australian Federal Police--the 1 Commissioner of the Australian Federal Police; 2 (ii) in relation to the Australian Customs Service--the 3 Chief Executive Officer of Customs; 4 (iii) in relation to the ACC--the Chief Executive Officer of 5 the ACC; 6 (iv) in relation to the Australian Commission for Law 7 Enforcement Integrity--the Integrity Commissioner; 8 (v) in relation to the Australian Taxation Office--the 9 Commissioner of Taxation; 10 (vi) in relation to a Commonwealth agency specified in the 11 regulations for the purposes of the definition of law 12 enforcement agency--the officer specified in the 13 regulations as the chief officer of that agency. 14 Commonwealth agency means: 15 (a) the Commonwealth; or 16 (b) an authority of the Commonwealth. 17 Commonwealth government issuing agency means a 18 Commonwealth agency that issues evidence of identity and that is 19 named in an authority. 20 conduct includes any act or omission. 21 corresponding assumed identity law means: 22 (a) a law of a State or Territory; or 23 (b) a provision or provisions of a law of a State or Territory; 24 prescribed by the regulations for the purposes of this definition. 25 corresponding authority means: 26 (a) an authority under a corresponding assumed identity law to 27 acquire or use an assumed identity; or 28 (b) an authority under a corresponding assumed identity law to 29 request the production of evidence of an assumed identity 30 from a Commonwealth government issuing agency. 31 doing a thing, includes failing to do the thing. 32 evidence of identity, means a document or other thing (such as a 33 driver's licence, birth certificate, credit card or identity card) that 34 40 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] evidences or indicates, or can be used to evidence or indicate, a 1 person's identity or any aspect of a person's identity. 2 foreign officer means an officer, however described, of an agency 3 that has responsibility for: 4 (a) law enforcement in a foreign country; or 5 (b) intelligence gathering for a foreign country; or 6 (c) security of a foreign country. 7 intelligence agency means: 8 (a) the Australian Security Intelligence Organisation; 9 (b) the Australian Secret Intelligence Service. 10 intelligence officer means: 11 (a) in relation to the Australian Security Intelligence 12 Organisation--an officer of the Australian Security 13 Intelligence Organisation; and 14 (b) in relation to the Australian Secret Intelligence Service--a 15 staff member of the Australian Secret Intelligence Service; 16 and includes a person who is seconded to an intelligence agency. 17 issuing agency means: 18 (a) a Commonwealth government issuing agency; or 19 (b) a non-Commonwealth government issuing agency. 20 jurisdiction means the Commonwealth or a State or Territory of 21 the Commonwealth. 22 law enforcement agency means the following agencies: 23 (a) the Australian Federal Police; 24 (b) the Australian Customs Service; 25 (c) the ACC; 26 (d) the Australian Commission for Law Enforcement Integrity; 27 (e) the Australian Taxation Office; 28 (f) any other Commonwealth agency specified in the 29 regulations. 30 law enforcement officer means: 31 (a) in relation to the Australian Federal Police--the 32 Commissioner of the Australian Federal Police, a Deputy 33 Commissioner of the Australian Federal Police, an AFP 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 41 [Page Break] employee or a special member of the Australian Federal 1 Police (all within the meaning of the Australian Federal 2 Police Act 1979); 3 (b) in relation to the Australian Customs Service--an officer of 4 the Australian Customs Service; 5 (c) in relation to the ACC--a member of the staff of the ACC; 6 (d) in relation to the Australian Commission for Law 7 Enforcement Integrity--a member of the staff of the 8 Australian Commission for Law Enforcement Integrity; 9 (e) in relation to the Australian Taxation Office--a person 10 engaged under the Public Service Act 1999 and performing 11 duties in the Australian Taxation Office; 12 (f) in relation to a Commonwealth agency specified in the 13 regulations for the purposes of the definition of law 14 enforcement agency--an officer specified in the regulations 15 as an officer of the agency; 16 and includes a person who is seconded to a law enforcement 17 agency, including (but not limited to) a member of the police force 18 or police service or a police officer (however described) of another 19 jurisdiction. 20 National Witness Protection Program means the program by that 21 name established by the Witness Protection Act 1994. 22 non-Commonwealth government issuing agency means a person, 23 body or entity (other than a Commonwealth government issuing 24 agency) that issues evidence of identity and that is named in an 25 authority. 26 officer of an agency, includes a person employed or engaged in the 27 agency. 28 participating jurisdiction means a jurisdiction in which a 29 corresponding assumed identity law is in force. 30 supervisor of an authorised civilian means the law enforcement 31 officer or the intelligence officer who supervises or is to supervise 32 the acquisition or use of an assumed identity by the authorised 33 civilian. 34 use an assumed identity, includes representing (whether expressly 35 or impliedly, or by saying or doing something) the assumed 36 identity to be real when it is not. 37 42 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Division 2--Authority for Assumed Identity 1 15HX Application for authority to acquire or use assumed identity 2 (1) A law enforcement officer of a law enforcement agency may apply 3 to the chief officer mentioned in subsection (2) for an authority for 4 the officer or any other person to do either or both of the following: 5 (a) acquire an assumed identity; 6 (b) use an assumed identity. 7 (2) An application by a law enforcement officer of a law enforcement 8 agency under subsection (1) is to be made to: 9 (a) if the person who is to acquire or use the assumed identity is 10 a foreign officer, or the assumed identity is to be used in a 11 foreign country: 12 (i) if the applicant is a member of the staff of the ACC-- 13 the chief officer of the ACC; or 14 (ii) in any other case--the chief officer of the Australian 15 Federal Police; or 16 (b) in any other case--the chief officer of the law enforcement 17 agency. 18 (3) An intelligence officer of an intelligence agency may apply to the 19 chief officer of the agency for an authority for the officer or any 20 other person (including a foreign officer) to do either or both of the 21 following: 22 (a) acquire an assumed identity; 23 (b) use an assumed identity. 24 (4) A separate application must be made in respect of each assumed 25 identity to be acquired or used. 26 (5) An application: 27 (a) must be in writing in the form approved by the chief officer; 28 and 29 (b) must contain: 30 (i) the name of the applicant; and 31 (ii) the name of the person to be authorised to acquire or use 32 an assumed identity (if not the applicant); and 33 (iii) if the person referred to in subparagraph (ii) is not an 34 officer of either an intelligence agency or a law 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 43 [Page Break] enforcement agency or a foreign officer--the name and 1 rank or position of the person proposed to be appointed 2 as supervisor and an explanation of why it is necessary 3 for a person who is not an officer to acquire or use the 4 assumed identity; and 5 (iv) details of the proposed assumed identity; and 6 (v) reasons for the need to acquire or use an assumed 7 identity; and 8 (vi) if the assumed identity is necessary for a purpose 9 mentioned in subparagraph 15HY(2)(a)(i) or (ii)-- 10 details of the investigation or intelligence-gathering 11 exercise in which the assumed identity will be used (to 12 the extent known); and 13 (vii) details of any issuing agencies and the types of evidence 14 to be issued by them; and 15 (viii) details of any application of a kind referred to in 16 section 15JD (making entries in register of births, deaths 17 or marriages) that is to be made under a corresponding 18 assumed identity law. 19 (6) The chief officer may require the applicant to give such additional 20 information concerning the application as is necessary for the chief 21 officer's proper consideration of the application. 22 Note: The chief officer may delegate functions under this section--see 23 section 15KC. 24 15HY Determination of applications 25 (1) After considering an application for an authority to acquire or use 26 an assumed identity, and any additional information under 27 subsection 15HX(6), the chief officer: 28 (a) may grant an authority to acquire or use the assumed identity, 29 either unconditionally or subject to conditions; or 30 (b) may refuse the application. 31 (2) An authority to acquire or use an assumed identity may not be 32 granted unless the chief officer is satisfied on reasonable grounds: 33 (a) that the assumed identity is necessary for one or more of the 34 following purposes: 35 44 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (i) investigation of, or intelligence gathering in relation to, 1 criminal activity (whether a particular criminal activity 2 or criminal activity generally); 3 (ii) the exercise of powers and performance of functions of 4 an intelligence agency; 5 (iii) the exercise of powers and performance of functions for 6 the purposes of the National Witness Protection 7 Program; 8 (iv) the training of persons for any of the purposes 9 mentioned in subparagraphs (i) to (iii); 10 (v) any administrative function in support of any of the 11 purposes mentioned in subparagraphs (i) to (iv); and 12 (b) that the risk of abuse of the assumed identity by the 13 authorised person is minimal; and 14 (c) if the application is for authorisation of an assumed identity 15 for a person who is not an officer of either an intelligence 16 agency or a law enforcement agency--that it would be 17 impossible or impracticable in the circumstances for an 18 officer to acquire or use the assumed identity for the purpose 19 sought. 20 (3) If an authority is granted for an authorised civilian, the chief officer 21 must appoint an officer of the law enforcement agency or the 22 intelligence agency (as the case may be) to supervise the 23 acquisition or use of the assumed identity by the authorised 24 civilian. 25 (4) The officer appointed as supervisor must be: 26 (a) in the case of the Australian Federal Police--a person who 27 holds the rank of sergeant or an equivalent or higher rank; or 28 (b) in the case of the Australian Customs Service--a person who 29 holds the position, or performs the duties, of a Manager, 30 Intelligence, or an equivalent or higher position, in the 31 Australian Customs Service; or 32 (c) in the case of the ACC--a person who holds the position, or 33 performs the duties, of either a senior investigator or of an 34 APS executive level 1 position, or an equivalent or higher 35 position, in the ACC; or 36 (d) in the case of the Australian Commission for Law 37 Enforcement Integrity--a staff member of the Australian 38 Commission for Law Enforcement Integrity who is 39 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 45 [Page Break] authorised in writing by the Integrity Commissioner to act as 1 a supervisor; or 2 (e) in the case of the Australian Taxation Office--a person who 3 holds the position, or performs the duties, of an APS 4 Executive Level 2 position, or an equivalent or higher 5 position, in the Australian Taxation Office; or 6 (f) in the case of the Australian Security Intelligence 7 Organisation--a person who holds the position, or performs 8 the duties, of an ASIO Executive Officer Level 1 position, or 9 an equivalent or higher position, in the Australian Security 10 Intelligence Organisation; or 11 (g) in the case of the Australian Secret Intelligence Service--a 12 permanent employee of the Australian Secret Intelligence 13 Service who is determined by the Director-General of the 14 Australian Secret Intelligence Service. 15 (5) An authority may also authorise any one or more of the following: 16 (a) an application of a kind referred to in section 15JD for an 17 order for an entry in a register of births, deaths or marriages 18 under a corresponding assumed identity law; 19 (b) a request under section 15JF or 15JS; 20 (c) the use of an assumed identity in a foreign country. 21 (6) However, the chief officer of the ACC, the chief officer of the 22 Australian Federal Police or the chief officer of an intelligence 23 agency may only authorise the use of the assumed identity in a 24 foreign country if he or she is satisfied that it is reasonably 25 necessary to do so. 26 Note: This subsection does not affect any obligation to obtain authority to 27 use the assumed identity in the foreign country. 28 (7) A separate authority is required for each assumed identity. 29 Note: The chief officer may delegate functions under this section--see 30 section 15KC. 31 15HZ Form of authority 32 (1) An authority must be: 33 (a) in writing in the form approved by the chief officer; and 34 (b) signed by the person granting it. 35 (2) An authority must state the following: 36 46 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) the name of the person granting the authority; 1 (b) the date of the authority; 2 (c) details of the assumed identity authorised; 3 (d) details of any evidence of the assumed identity that may be 4 acquired under the authority; 5 (e) the conditions (if any) to which the authority is subject; 6 (f) why the authority is granted; 7 (g) if the authority relates to an authorised intelligence officer, an 8 authorised law enforcement officer or a foreign officer--the 9 name of the officer; 10 (h) if the authority relates to an authorised civilian whose 11 supervisor is a law enforcement officer: 12 (i) the name of the authorised civilian; and 13 (ii) the name of his or her supervisor under the authority; 14 and 15 (iii) the period for which the authority will remain in force, 16 being a period not exceeding 3 months; 17 (i) if the authority relates to an authorised civilian whose 18 supervisor is an intelligence officer: 19 (i) the name of the authorised civilian; and 20 (ii) the name of his or her supervisor under the authority. 21 (3) The authority must also state the following: 22 (a) each issuing agency to which a request may be made under 23 section 15JF or 15JS; 24 (b) whether it authorises an application under a corresponding 25 assumed identity law for an order for an entry in a register of 26 births, deaths or marriages; 27 (c) whether the assumed identity can be used in a foreign 28 country and the reasons for the need for this use. 29 Note: The chief officer may delegate functions under this section--see 30 section 15KC. 31 (4) To avoid doubt, subparagraph (2)(h)(iii) does not prevent the grant 32 of one or more further authorities in relation to an authorised 33 civilian. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 47 [Page Break] 15J Certificate of authorisation 1 (1) The chief officer must grant a certificate of authorisation in relation 2 to an issuing agency if: 3 (a) the chief officer grants an authority under section 15HY; and 4 (b) the authority states that a request may be made under 5 section 15JF or 15JS to the issuing agency. 6 (2) A separate certificate of authorisation must be given in relation to 7 each issuing agency to which a request may be made under 8 section 15JF or 15JS. 9 (3) The certificate of authorisation must state the following: 10 (a) the issuing agency to which the request under section 15JF or 11 15JS may be made; 12 (b) the name of the person granting the authority; 13 (c) the date of the authority; 14 (d) details of the assumed identity authorised; 15 (e) details of any evidence of the assumed identity that may be 16 acquired from the issuing agency under the authority; 17 and must be signed by the person granting the certificate of 18 authorisation. 19 Note: The chief officer may delegate functions under this section--see 20 section 15KC. 21 15JA Period of authority 22 (1) An authority for an authorised person (other than an authorised 23 civilian of a kind covered by paragraph 15HZ(2)(h)) remains in 24 force until cancelled under section 15JB. 25 (2) An authority for an authorised civilian of a kind covered by 26 paragraph 15HZ(2)(h) remains in force until the end of the period 27 specified in the authority in accordance with subparagraph 28 15HZ(2)(h)(iii), unless the authority is cancelled sooner under 29 section 15JB. 30 15JB Variation or cancellation of authority 31 (1) The chief officer of an agency: 32 (a) may, at any time, vary or cancel an authority that was granted 33 by the chief officer of the agency; and 34 48 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (b) must cancel the authority if the chief officer is satisfied (on a 1 review under section 15JC or otherwise) that use of the 2 assumed identity is no longer necessary. 3 (2) The chief officer must give written notice of the variation or 4 cancellation to: 5 (a) where practicable, the authorised person to whom it relates; 6 and 7 (b) if the authorised person is an authorised civilian--the 8 authorised person's supervisor. 9 (3) The notice must state why the authority is varied or cancelled. 10 (4) The variation or cancellation takes effect: 11 (a) if the written notice is given to the authorised person and the 12 authorised person is not an authorised civilian--on the day 13 the written notice is given to the authorised person or, if a 14 later day is stated in the notice, on the later day; or 15 (b) if the authorised person is an authorised civilian and the 16 written notice is given to the authorised person's 17 supervisor--on the day the written notice is given to the 18 authorised person's supervisor or, if a later day is stated in 19 the notice, on the later day; or 20 (c) in any other case--on the day stated in the notice. 21 Note 1: The chief officer may delegate functions under this section--see 22 section 15KC. 23 Note 2: Despite the variation or cancellation of an authority, a person is, in 24 certain circumstances, protected from prosecution for offences even if 25 the person is unaware of the variation or cancellation--see 26 section 15JR. 27 15JC Yearly review of authority 28 (1) The chief officer of an agency must periodically review each 29 authority granted by the chief officer or a delegate of the chief 30 officer under this Part. 31 (2) A review of an authority under this section is to be conducted: 32 (a) in the case of an authority granted by the chief officer or a 33 delegate of the chief officer of an intelligence agency to an 34 authorised intelligence officer--at least once every 3 years; 35 or 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 49 [Page Break] (b) in all other cases--at least once every 12 months. 1 (3) The purpose of a review is to determine whether use of the 2 assumed identity under the authority is still necessary. 3 (4) If the chief officer is satisfied on a review that use of the assumed 4 identity under the authority is no longer necessary, he or she must 5 cancel the authority under section 15JB. 6 (5) If the chief officer is satisfied on a review that use of the assumed 7 identity under the authority is still necessary, he or she must record 8 his or her opinion, and the reasons for it, in writing. 9 Note: The chief officer may delegate functions under this section--see 10 section 15KC. 11 (6) Failure to comply with the requirements of this section does not 12 invalidate an authority or anything lawfully done under the 13 authority. 14 15JD Making entries in register of births, deaths or marriages 15 The chief officer of: 16 (a) a law enforcement agency; or 17 (b) an intelligence agency; 18 may apply, under a corresponding assumed identity law, to the 19 Supreme Court of a State or Territory of a participating jurisdiction 20 for an order that an entry be made in a register of births, deaths or 21 marriages under the relevant law of that jurisdiction in relation to 22 the acquisition of an assumed identity under an authority or 23 corresponding authority. 24 15JE Cancellation of authority affecting entry in register of births, 25 deaths or marriages 26 (1) This section applies if: 27 (a) the chief officer of an agency cancels an authority for an 28 assumed identity; and 29 (b) there is an entry in relation to that assumed identity in a 30 register of births, deaths or marriages because of an order 31 under a corresponding assumed identity law. 32 50 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (2) The chief officer must apply for an order under the corresponding 1 assumed identity law to cancel the entry within 28 days after the 2 day the authority is cancelled. 3 Division 3--Evidence of Assumed Identity 4 15JF Request for evidence of assumed identity 5 (1) This section applies if an authority granted under section 15HY 6 authorises a request under this section. 7 (2) The chief officer who grants the authority may request the chief 8 officer of an issuing agency stated in the authority to: 9 (a) produce evidence of an assumed identity in accordance with 10 the authority; and 11 (b) give evidence of the assumed identity to the authorised 12 person named in the authority. 13 (3) The request must: 14 (a) state a reasonable period for compliance with the request; and 15 (b) include the certificate of authorisation issued under 16 section 15J in relation to the issuing agency. 17 (4) A request must not be made under this section for an entry in a 18 register of births, deaths or marriages. 19 (5) In this section: 20 evidence means evidence similar to that ordinarily produced or 21 given by the issuing agency. 22 Note: The chief officer may delegate functions under this section--see 23 section 15KC. 24 15JG Government issuing agencies to comply with request 25 The chief officer of a Commonwealth government issuing agency 26 who receives a request under section 15JF must comply with the 27 request within the reasonable period stated in the request. 28 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 51 [Page Break] 15JH Non-government issuing agencies may comply with request 1 The chief officer of a non-Commonwealth government issuing 2 agency who receives a request under section 15JF may comply 3 with the request. 4 15JI Cancellation of evidence of assumed identity 5 (1) The chief officer of an issuing agency who produces evidence of an 6 assumed identity under this Part must cancel the evidence if 7 directed in writing to do so by the chief officer who requested the 8 evidence. 9 Note: The chief officer who requested the evidence may delegate functions 10 under this section--see section 15KC. 11 (2) In this section: 12 cancel includes delete or alter an entry in a record of information. 13 15JJ Return of evidence of assumed identity 14 (1) This section applies if an authority for a person to acquire or use an 15 assumed identity ceases to be in force. 16 (2) The chief officer of a law enforcement agency or the chief officer 17 of an intelligence agency may, in writing, request the person to 18 return to the chief officer any evidence of the assumed identity 19 acquired under the authority. 20 (3) A person commits an offence if: 21 (a) a request has been made to the person under subsection (2); 22 and 23 (b) the person fails to comply with the request. 24 Penalty: 10 penalty units. 25 15JK Protection from criminal liability--officers of issuing agencies 26 The chief officer, or an officer, of an issuing agency who does 27 something that, apart from this section, would be a Commonwealth 28 offence or an offence against a law of a State or Territory, is not 29 criminally responsible for the offence if the thing is done to 30 52 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] comply with a request under section 15JF or a direction under 1 section 15JI. 2 15JL Indemnity for issuing agencies and officers 3 (1) This section applies if the chief officer of either a law enforcement 4 agency or an intelligence agency makes a request under 5 section 15JF or gives a direction under section 15JI to the chief 6 officer of an issuing agency. 7 (2) The Commonwealth must indemnify the issuing agency, or an 8 officer of the issuing agency, for any liability incurred by the 9 agency or officer (including reasonable costs) if: 10 (a) the liability is incurred because of something done by the 11 agency or officer in the course of duty to comply with the 12 request or direction in the course of duty; and 13 (b) any requirements prescribed under the regulations have been 14 met. 15 Division 4--Effect of Authority 16 15JM Assumed identity may be acquired and used 17 A person may acquire or use an assumed identity if: 18 (a) the person is an authorised person (other than an authorised 19 civilian) and the acquisition or use is: 20 (i) in accordance with an authority; and 21 (ii) in the course of duty; or 22 (b) the person is an authorised civilian and the acquisition or use 23 is in accordance with: 24 (i) an authority; and 25 (ii) any direction by the person's supervisor under the 26 authority. 27 15JN Protection from criminal liability--authorised persons 28 If an authorised person does something that, apart from this 29 section, would be a Commonwealth offence or an offence under a 30 law of a State or Territory, the person is not criminally responsible 31 for the offence if: 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 53 [Page Break] (a) the thing is done in the course of acquiring or using an 1 assumed identity in accordance with an authority; and 2 (b) the thing is done: 3 (i) in the case of an authorised intelligence officer, an 4 authorised law enforcement officer or an authorised 5 foreign officer--in the course of his or her duty; or 6 (ii) in the case of an authorised civilian--in accordance 7 with any direction by his or her supervisor under the 8 authority; and 9 (c) doing the thing would not be an offence if the assumed 10 identity were the person's real identity. 11 15JO Protection from criminal liability--third parties 12 If a person does something that, apart from this section, would be a 13 Commonwealth offence or an offence under a law of a State or 14 Territory, the person is not criminally responsible for the offence 15 if: 16 (a) the person is a Commonwealth officer; and 17 (b) the thing is done in the course of the person's duty; and 18 (c) the chief officer who granted the authority has authorised the 19 doing of the thing; and 20 (d) if an authorised person had done the thing in accordance with 21 an authority, the authorised person would not have been 22 criminally responsible for the offence because of the 23 application of section 15JN. 24 15JP Indemnity for authorised persons 25 (1) This section applies if the chief officer of either a law enforcement 26 agency or an intelligence agency grants an authority. 27 (2) The Commonwealth must indemnify the authorised person under 28 the authority for any liability incurred by the person (including 29 reasonable costs) because of something done by the person if: 30 (a) the thing is done in the course of acquiring or using an 31 assumed identity in accordance with the authority; and 32 (b) the thing is done: 33 (i) in the case of an authorised intelligence officer, an 34 authorised law enforcement officer or an authorised 35 foreign officer--in the course of his or her duty; or 36 54 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (ii) in the case of an authorised civilian--in accordance 1 with any direction by his or her supervisor under the 2 authority; and 3 (c) any requirements prescribed under the regulations have been 4 met. 5 15JQ Particular qualifications 6 (1) Sections 15JN, 15JO and 15JP do not apply to anything done by an 7 authorised person if: 8 (a) a particular qualification is needed to do the thing; and 9 (b) the person does not have that qualification. 10 (2) Subsection (1) applies whether or not the person has acquired, as 11 evidence of an assumed identity, a document that indicates that he 12 or she has that qualification. 13 Example: An officer who cannot fly a plane is not authorised to fly even though 14 he or she has acquired a pilot's licence under an assumed identity. 15 15JR Effect of being unaware of variation or cancellation of 16 authority 17 (1) If an authority has been varied in a way that limits its scope, this 18 Part continues to apply to the authorised person to whom it relates 19 as if it had not been varied in that way, for as long as the person: 20 (a) is unaware of the variation; and 21 (b) is not reckless about the existence of the variation. 22 (2) If an authority has been cancelled, this Part continues to apply to 23 the authorised person to whom it related as if it had not been 24 cancelled, for as long as the person: 25 (a) is unaware of the cancellation; and 26 (b) is not reckless about the existence of the cancellation. 27 (3) For the purposes of this section, a person is reckless about the 28 existence of the variation or cancellation of an authority or 29 authorisation if: 30 (a) the person is aware of a substantial risk that the variation or 31 cancellation has happened; and 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 55 [Page Break] (b) having regard to the circumstances known to the person, it is 1 unjustifiable to take the risk that the authority has not been 2 varied or cancelled. 3 Division 5--Mutual Recognition under Corresponding 4 Laws 5 15JS Requests to a participating jurisdiction for evidence of 6 assumed identity 7 (1) This section applies if an authority granted under section 15HY 8 authorises a request under this section. 9 (2) The chief officer who grants the authority may request the chief 10 officer of an issuing agency of a participating jurisdiction stated in 11 the authority to: 12 (a) produce evidence of the assumed identity in accordance with 13 the authority; and 14 (b) give evidence of the assumed identity to the authorised 15 person named in the authority. 16 Note: The chief officer may delegate functions under this section--see 17 section 15KC. 18 (3) The request must include the certificate of authorisation issued 19 under section 15J in relation to the issuing agency, and must state 20 that it is a request under this section. 21 (4) A request must not be made under this section for an entry in a 22 register of births, deaths or marriages. 23 15JT Requests from a participating jurisdiction for evidence of 24 assumed identity 25 (1) This section applies if: 26 (a) an authority under a corresponding assumed identity law 27 authorises a request for: 28 (i) the production of evidence of an assumed identity from 29 a Commonwealth government issuing agency; and 30 (ii) the giving of evidence of the assumed identity to the 31 authorised person named in the authority; and 32 56 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (b) the request is made to the chief officer of the Commonwealth 1 government issuing agency; and 2 (c) the request states a reasonable period for compliance with the 3 request. 4 (2) The chief officer of the agency who receives the request must 5 comply with the request within the reasonable period stated in the 6 request. 7 15JU Directions from a participating jurisdiction to cancel evidence 8 of assumed identity 9 (1) The chief officer of an issuing agency who produces evidence of an 10 assumed identity because of a request mentioned in section 15JT 11 must cancel the evidence if directed in writing to do so by the chief 12 officer who authorised the request. 13 (2) In this section: 14 cancel includes delete or alter an entry in a record of information. 15 15JV Indemnity for issuing agencies and officers 16 (1) This section applies if the chief officer of either a law enforcement 17 agency or an intelligence agency makes a request to the chief 18 officer of an issuing agency of a participating jurisdiction under 19 section 15JS. 20 (2) The agency that makes the request must indemnify the issuing 21 agency and any officer of the issuing agency, for any liability 22 incurred by the issuing agency or the officer of the issuing agency 23 (including reasonable costs) if: 24 (a) the liability is incurred because of something done by the 25 issuing agency or the officer of the issuing agency, in the 26 course of duty, to comply with the request; and 27 (b) any requirements prescribed under the regulations have been 28 met. 29 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 57 [Page Break] 15JW Application of this Part to authorities under corresponding 1 laws 2 (1) The following provisions apply to anything done in relation to a 3 corresponding authority as if it were an authority granted under 4 section 15HY: 5 (a) section 15JM (assumed identity may be acquired and used); 6 (b) section 15JQ (particular qualifications); 7 (c) section 15JR (effect of being unaware of variation or 8 cancellation of authority); 9 (d) section 15JX (misuse of assumed identity); 10 (e) section 15JY (disclosing information about assumed 11 identity). 12 (2) Sections 15JK, 15JN and 15JO apply to anything done in relation 13 to a corresponding authority as if: 14 (a) the corresponding authority were an authority granted under 15 section 15HY; and 16 (b) references in those sections to an offence under a law of a 17 State or Territory were omitted. 18 Division 6--Compliance and Monitoring 19 Subdivision A--Misuse of Assumed Identity and Information 20 15JX Misuse of assumed identity 21 (1) A person commits an offence if: 22 (a) the person is an authorised person (other than an authorised 23 civilian); and 24 (b) the person acquires evidence of, or uses, an assumed identity; 25 and 26 (c) the person is reckless as to whether the acquisition or use is 27 not: 28 (i) in accordance with the authority; or 29 (ii) in the course of duty. 30 Penalty: Imprisonment for 2 years. 31 (2) An authorised civilian commits an offence if: 32 58 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) the authorised civilian acquires evidence of, or uses, an 1 assumed identity; and 2 (b) the authorised civilian is reckless as to whether the 3 acquisition or use is not in accordance with: 4 (i) his or her authority; or 5 (ii) the directions of his or her supervisor under the 6 authority. 7 Penalty: Imprisonment for 2 years. 8 15JY Disclosing information about assumed identity 9 (1) A person commits an offence if: 10 (a) the person engages in conduct; and 11 (b) the conduct causes the disclosure of information; and 12 (c) the information reveals, or is likely to reveal, that another 13 person has acquired, will acquire, is using or has used an 14 assumed identity. 15 Penalty: Imprisonment for 2 years. 16 (2) A person commits an offence if: 17 (a) the person engages in conduct; and 18 (b) the conduct causes the disclosure of information; and 19 (c) the information reveals, or is likely to reveal, that another 20 person has acquired, will acquire, is using or has used an 21 assumed identity; and 22 (d) the person is reckless as to whether his or her conduct will 23 endanger the health or safety of any person. 24 Penalty: Imprisonment for 10 years. 25 (3) A person commits an offence if: 26 (a) the person engages in conduct; and 27 (b) the conduct causes the disclosure of information; and 28 (c) the information reveals, or is likely to reveal, that another 29 person has acquired, will acquire, is using or has used an 30 assumed identity; and 31 (d) the person is reckless as to whether his or her conduct will 32 prejudice the effective conduct of an investigation or 33 intelligence-gathering in relation to criminal activity. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 59 [Page Break] Penalty: Imprisonment for 10 years. 1 (4) A person does not commit an offence under subsection (1), (2) or 2 (3) if the person causes the disclosure of information mentioned in 3 paragraph (1)(c), (2)(c) or (3)(c) (as the case may be) and the 4 disclosure is: 5 (a) in connection with the administration or execution of this 6 Part or a corresponding assumed identity law; or 7 (b) for the purposes of any legal proceeding arising out of or 8 otherwise related to this Part or a corresponding assumed 9 identity law or of any report of any such proceedings; or 10 (c) in accordance with the exercise of powers or performance of 11 functions of a law enforcement agency or an intelligence 12 agency; or 13 (d) in accordance with any requirement imposed by law. 14 Subdivision B--Reporting and record-keeping 15 15JZ Reports about authorities for assumed identities etc.--law 16 enforcement agencies 17 (1) As soon as practicable after the end of each financial year, the chief 18 officer of a law enforcement agency must submit a report to the 19 Minister that includes the following information for the year: 20 (a) the number of authorities granted during the year; 21 (b) a general description of the activities undertaken by 22 authorised civilians and authorised law enforcement officers 23 when using assumed identities under this Part during the 24 year; 25 (c) the number of applications for authorities that were refused 26 during the year; 27 (d) a statement whether or not any fraud or other unlawful 28 activity was identified by an audit under section 15KB during 29 the year; 30 (e) any other information relating to authorities and assumed 31 identities and the administration of this Part that the Minister 32 considers appropriate. 33 (2) The chief officer must advise the Minister of any information in the 34 report that, in the chief officer's opinion, should be excluded from 35 60 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] the report before the report is laid before the Parliament because 1 the information, if made public, could reasonably be expected to: 2 (a) endanger a person's safety; or 3 (b) prejudice an investigation or prosecution; or 4 (c) compromise any law enforcement agency's operational 5 activities or methodologies. 6 (3) The Minister must exclude information from the report if satisfied 7 on the advice of the chief officer of any of the grounds set out in 8 subsection (2) and must cause a copy of the report to be laid before 9 each House of the Parliament within 15 sitting days of that House 10 after the day on which the Minister receives the report. 11 15K Reports about authorities for assumed identities etc.-- 12 intelligence agencies 13 As soon as practicable after the end of each financial year, the chief 14 officer of an intelligence agency must submit a report to the 15 Inspector-General of Intelligence and Security (the 16 Inspector-General) that includes the following information for the 17 year: 18 (a) the number of authorities granted during the year; 19 (b) a general description of the activities undertaken by 20 authorised civilians and authorised intelligence officers when 21 using assumed identities under this Part during the year; 22 (c) the number of applications for authorities that were refused 23 during the year; 24 (d) a statement whether or not any fraud or other unlawful 25 activity was identified by an audit under section 15KB during 26 the year; 27 (e) any other information relating to authorities and assumed 28 identities and the administration of this Part that the 29 Inspector-General considers appropriate. 30 15KA Record keeping 31 (1) The chief officer of either a law enforcement agency or an 32 intelligence agency must keep appropriate records about the 33 operation of this Part in respect of the agency. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 61 [Page Break] (2) The records must include the following, in respect of authorities 1 granted, varied or cancelled under this Part in respect of the 2 agency: 3 (a) the date on which an authority was granted, varied or 4 cancelled and the name of the person who granted, varied or 5 cancelled it; 6 (b) the name of the authorised person under the authority, 7 together with details of the assumed identity to which the 8 authority applies; 9 (c) details of any request made to an issuing agency under 10 section 15JF or 15JS (request for evidence of assumed 11 identity) in respect of the authority; 12 (d) the general nature of the duties undertaken by the authorised 13 person under the assumed identity; 14 (e) general details of relevant financial transactions entered into 15 using the assumed identity; 16 (f) details of reviews of the authority under section 15JC (yearly 17 review of authority). 18 15KB Audit of records 19 (1) The chief officer of either a law enforcement agency or an 20 intelligence agency must cause for the records kept under 21 section 15KA for each authority in respect of the agency to be 22 audited: 23 (a) at least once every 6 months while the authority is in force; 24 and 25 (b) at least once in the 6 months after the cancellation or expiry 26 of the authority. 27 (2) The audit is to be conducted by a person appointed by the chief 28 officer. 29 (3) The person appointed to conduct the audit: 30 (a) may, but need not be, an officer of the agency; and 31 (b) must not be a person: 32 (i) who granted, varied or cancelled any of the authorities 33 to which the records under section 15KA relate; or 34 (ii) who is or was an authorised person under any of the 35 authorities to which those records relate. 36 62 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (4) The results of an audit must be reported to the chief officer. 1 Division 7--General 2 15KC Delegation of chief officer's functions 3 (1) Except as provided by this section (and despite any other Act or 4 law to the contrary) the functions of a chief officer under this Part 5 may not be delegated to any other person. 6 (2) A chief officer may delegate to a senior officer of the law 7 enforcement agency or the intelligence agency (as the case may be) 8 any of the chief officer's functions under this Part relating to the 9 granting, variation and cancellation of authorities (including, but 10 not limited to issuing a certificate of authorisation under 11 section 15J, conducting reviews under section 15JC, making 12 applications under section 15JD, giving directions under 13 section 15JI or making requests under section 15JF or 15JS). 14 (3) In this section: 15 senior officer means: 16 (a) in relation to the Australian Federal Police: 17 (i) any senior executive AFP employee of the Australian 18 Federal Police within the meaning of section 25 of the 19 Australian Federal Police Act 1979; or 20 (ii) any Deputy Commissioner of Police within the meaning 21 of section 6 of the Australian Federal Police Act 1979; 22 or 23 (iii) a person occupying a position in the Australian Federal 24 Police that is equivalent to or higher than the positions 25 mentioned in subparagraphs (i) and (ii); and 26 (b) in relation to the Australian Customs Service--any Regional 27 Director for a State or Territory within the meaning of 28 section 8 of the Customs Act 1901, or a person occupying an 29 equivalent or higher position in the Australian Customs 30 Service; and 31 (c) in relation to the ACC--any SES employee who is a member 32 of the staff of the ACC within the meaning of section 47 of 33 the Australian Crime Commission Act 2002, or a person 34 occupying an equivalent or higher position in the ACC; and 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 63 [Page Break] (d) in relation to the Australian Commission for Law 1 Enforcement Integrity: 2 (i) the Assistant Integrity Commissioner; or 3 (ii) a staff member of the Australian Commission for Law 4 Enforcement Integrity who is an SES employee, or a 5 person occupying an equivalent or higher position in the 6 Australian Commission for Law Enforcement Integrity, 7 and who is authorised in writing by the Integrity 8 Commissioner for the purposes of this provision; and 9 (e) in relation to the Australian Taxation Office--any Deputy 10 Commissioner as defined in section 2 of the Taxation 11 Administration Act 1953, or a person occupying an 12 equivalent or higher position in the Australian Taxation 13 Office; and 14 (f) in relation to the Australian Security Intelligence 15 Organisation--any senior officer of the Australian Security 16 Intelligence Organisation as defined in section 24 of the 17 Australian Security Intelligence Organisation Act 1979, or a 18 person occupying an equivalent or higher position in the 19 Australian Security Intelligence Organisation; and 20 (g) in relation to the Australian Secret Intelligence Service 21 (ASIS)--any employee of ASIS who is designated as a 22 senior executive employee by the Deputy Director-General of 23 ASIS under section 33 of the Intelligence Services Act 2001, 24 or a person occupying an equivalent or higher position in 25 ASIS. 26 Part IACA--Witness Identity Protection 27 Division 1--Preliminary 28 15KD Definitions 29 (1) In this Part: 30 assumed name of an operative has the meaning given by paragraph 31 15KK(1)(a)(i). 32 chief officer: 33 (a) of an intelligence agency--means the following: 34 64 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (i) in relation to the Australian Security Intelligence 1 Organisation--the Director-General of Security; 2 (ii) in relation to the Australian Security Intelligence 3 Service--the Director-General of Australian Security 4 Intelligence Service; and 5 (b) of a law enforcement agency--means the following: 6 (i) in relation to the Australian Federal Police--the 7 Commissioner of the Australian Federal Police; 8 (ii) in relation to the Australian Customs Service--the 9 Chief Executive Officer of Customs; 10 (iii) in relation to the ACC--the Chief Executive Officer of 11 the ACC; 12 (iv) in relation to the Australian Commission for Law 13 Enforcement Integrity--the Integrity Commissioner; 14 (v) in relation to the Australian Taxation Office--the 15 Commissioner of Taxation; 16 conduct includes any act or omission. 17 corresponding witness identity protection certificate means a 18 certificate given under a provision of a corresponding witness 19 identity protection law that corresponds to section 15KI. 20 corresponding witness identity protection law means: 21 (a) a law of a State or Territory; or 22 (b) a provision or provisions of a law of a State or Territory; 23 prescribed by the regulations for the purposes of this definition. 24 court includes any tribunal or person authorised by law or consent 25 of parties to receive evidence. 26 court name for an operative in relation to a proceeding, means a 27 name (other than the operative's real name) or code used to 28 identify the operative in the proceeding. 29 false representation does not include a representation made under 30 an authority under: 31 (a) Part IAB (about controlled operations); or 32 (b) Part IAC (about assumed identities). 33 intelligence agency means the following: 34 (a) the Australian Security Intelligence Organisation; 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 65 [Page Break] (b) the Australian Secret Intelligence Service. 1 investigation means an investigation in relation to criminal 2 activity, including an investigation extending beyond the 3 Commonwealth. 4 jurisdiction means the Commonwealth or a State or Territory of 5 the Commonwealth. 6 law enforcement agency means the following: 7 (a) the Australian Federal Police; 8 (b) the Australian Customs Service; 9 (c) the ACC; 10 (d) the Australian Commission for Law Enforcement Integrity; 11 (e) the Australian Taxation Office; 12 (f) any other Commonwealth agency specified in the 13 regulations. 14 National Witness Protection Program means the Program by that 15 name established by the Witness Protection Act 1994. 16 operative means a person who is or was: 17 (a) a participant in a controlled operation authorised under 18 Part IAB; or 19 (b) authorised to acquire and use an assumed identity under 20 Part IAC. 21 party to a proceeding, means: 22 (a) for a criminal proceeding--the prosecutor and each accused 23 person; or 24 (b) for a civil proceeding--each person who is a party to the 25 proceeding. 26 presiding officer in relation to a proceeding, means the person 27 constituting the court, or presiding over the court, in the 28 proceeding. 29 proceeding means any criminal, civil or other proceeding or 30 inquiry, reference or examination in which by law or consent of 31 parties evidence is or may be given, and includes an arbitration. 32 66 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] professional misconduct means fraud, negligence, default, breach 1 of trust, breach of duty, breach of discipline or any other 2 misconduct in the course of duty. 3 security has the meaning given by section 4 of the Australian 4 Security Intelligence Organisation Act 1979. 5 witness identity protection certificate means a certificate given 6 under section 15KI. 7 (2) For the purposes of this Part: 8 (a) anything permitted to be done by a party to a proceeding may 9 be done by the party's lawyer; and 10 (b) any requirement to give something to a party to a proceeding 11 is satisfied by giving the thing to the party's lawyer. 12 15KE Meaning of criminal proceeding 13 (1) In this Part, criminal proceeding means a proceeding for the 14 prosecution, whether summarily or on indictment, of an offence or 15 offences. 16 (2) To avoid doubt, each of the following is part of a criminal 17 proceeding: 18 (a) a bail proceeding; 19 (b) a committal proceeding; 20 (c) the discovery, exchange, production, inspection or disclosure 21 of intended evidence, documents and reports of persons 22 intended to be called by a party to give evidence; 23 (d) a sentencing proceeding; 24 (e) an appeal proceeding; 25 (f) a proceeding with respect to any matter in which a person 26 seeks a writ of mandamus or prohibition or an injunction 27 against an officer or officers of the Commonwealth (within 28 the meaning of subsection 39B(1B) of the Judiciary Act 29 1903) in relation to: 30 (i) a decision to prosecute a person for one or more 31 offences against a law of the Commonwealth; or 32 (ii) a related criminal justice process decision (within the 33 meaning of subsection 39B(3) of that Act); 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 67 [Page Break] (g) any other pre-trial, interlocutory or post-trial proceeding 1 prescribed by regulations for the purposes of this paragraph. 2 15KF Meaning of civil proceeding 3 (1) In this Part, civil proceeding means any proceeding in a court of 4 the Commonwealth, a State or Territory, other than a criminal 5 proceeding. 6 (2) To avoid doubt, each of the following is part of a civil proceeding: 7 (a) any proceeding on an ex parte application (including an 8 application made before pleadings are filed in a court); 9 (b) the discovery, exchange, production, inspection or disclosure 10 of intended evidence, documents and reports of persons 11 intended to be called by a party to give evidence; 12 (c) an appeal proceeding; 13 (d) any interlocutory or other proceeding prescribed by 14 regulations for the purposes of this paragraph. 15 15KG When a charge is outstanding or pending 16 (1) For the purposes of this Part: 17 (a) a charge against a person for an offence is outstanding until 18 the charge is finally dealt with in any of the following ways: 19 (i) the charge is withdrawn; 20 (ii) the charge is dismissed by a court; 21 (iii) the person is discharged by a court following a 22 committal hearing; 23 (iv) the person is acquitted or found guilty of the offence by 24 a court; and 25 (b) a charge against a person for an offence is pending if the 26 person has not yet been charged with the offence, but: 27 (i) the person has been arrested for the offence, unless the 28 person has been later released without being charged 29 with an offence; or 30 (ii) a summons to appear before a court to answer a charge 31 for the offence has been served on the person; and 32 (c) an allegation of professional misconduct against a person is 33 outstanding if the allegation has not been finally dealt with 34 68 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] in accordance with the procedures that apply for the purposes 1 of dealing with an allegation of that kind. 2 Division 2--Witness Identity Protection Certificates for 3 Operatives 4 15KH Application of Part 5 (1) This Part applies to a proceeding in which an operative is, or may 6 be, required to give evidence obtained as an operative. 7 (2) To avoid doubt, this Part does not affect the operation of any law in 8 relation to the protection of a person who gives, or intends to give, 9 evidence in a proceeding. 10 15KI Witness identity protection certificate 11 (1) The chief officer of: 12 (a) a law enforcement agency; or 13 (b) an intelligence agency; 14 may give a witness identity protection certificate for an operative 15 in relation to a proceeding if: 16 (c) the operative is, or may be required, to give evidence in the 17 proceeding; and 18 (d) the chief officer is satisfied on reasonable grounds that the 19 disclosure in the proceeding of the operative's identity or 20 where the operative lives is likely to: 21 (i) endanger the safety of the operative or another person; 22 or 23 (ii) prejudice any current or future investigation; or 24 (iii) prejudice any current or future activity relating to 25 security. 26 (2) The chief officer must make all reasonable enquiries to enable the 27 chief officer to ascertain the information required to be included in 28 the certificate by section 15KK. 29 (3) The chief officer cannot give a certificate for an operative until the 30 chief officer has obtained a statutory declaration from the operative 31 under section 15KJ. 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 69 [Page Break] Note: The chief officer may delegate functions under this section--see 1 section 15LA. 2 (4) A decision to give a witness identity protection certificate: 3 (a) is final; and 4 (b) cannot be appealed against, reviewed, called into question, 5 quashed or invalidated in any court. 6 (5) Subsection (4) does not prevent a decision to give a witness 7 identity protection certificate being called into question in the 8 course of any proceedings of a disciplinary nature against the 9 person who made the decision. 10 (6) A witness identity protection certificate purporting to be issued 11 under subsection (1): 12 (a) must be taken to be such a certificate and to have been 13 properly issued; and 14 (b) is prima facie evidence of the matters in the certificate. 15 (7) A witness identity protection certificate is not a legislative 16 instrument. 17 15KJ Statutory declaration by operative 18 (1) Before a witness identity protection certificate is given for an 19 operative, the operative must make a statutory declaration of the 20 following matters: 21 (a) whether the operative has been convicted or found guilty of 22 an offence and, if so, particulars of each offence; and 23 (b) whether any charges against the operative for an offence are 24 pending or outstanding and, if so, particulars of each charge; 25 and 26 (c) if the operative is or was a law enforcement officer or an 27 intelligence officer: 28 (i) whether the operative has been found guilty of 29 professional misconduct and, if so, particulars of each 30 finding; and 31 (ii) whether, to the operative's knowledge, any allegations 32 of professional misconduct against him or her are 33 outstanding and, if so, particulars of each allegation; and 34 70 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (d) whether, to the operative's knowledge, a court has made any 1 adverse comment about the operative's credibility and, if so, 2 particulars of the comment; and 3 (e) whether the operative has made a false representation when 4 the truth was required and, if so, particulars of the 5 representation; and 6 (f) if there is anything else known to the operative that may be 7 relevant to the operative's credibility--particulars of the 8 thing. 9 (2) Subject to subsection (3), a person cannot be compelled to disclose 10 or produce a statutory declaration made under this section in any 11 proceeding. 12 (3) Subsection (2) does not apply to: 13 (a) proceedings for perjury or otherwise in respect of the falsity 14 of the statutory declaration; or 15 (b) proceedings of a disciplinary nature against a law 16 enforcement officer or an intelligence officer; or 17 (c) investigations or inquiries by a person or body in any 18 jurisdiction having jurisdiction to investigate or inquire into 19 the conduct of a law enforcement officer or an intelligence 20 officer. 21 15KK Form of witness identity protection certificate 22 (1) A witness identity protection certificate for an operative in relation 23 to a proceeding must state the following: 24 (a) if the operative: 25 (i) is known to a party to the proceeding or a party's lawyer 26 by a name other than the operative's real name--that 27 name (the assumed name); or 28 (ii) is not known to any party to the proceeding or any 29 party's lawyer by a name--the operative's court name 30 for the proceeding; 31 (b) the period the operative was involved in the investigation to 32 which the proceeding relates; 33 (c) the name of the agency; 34 (d) the date of the certificate; 35 (e) the grounds for giving the certificate; 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 71 [Page Break] (f) whether the operative has been convicted or found guilty of 1 an offence and, if so, particulars of each offence; 2 (g) whether any charges against the operative for an offence are 3 pending or outstanding and, if so, particulars of each charge; 4 (h) if the operative is or was either a law enforcement officer or 5 an intelligence officer: 6 (i) whether the operative has been found guilty of 7 professional misconduct and, if so, particulars of each 8 finding; and 9 (ii) whether any allegations of professional misconduct 10 against the operative are outstanding and, if so, 11 particulars of each allegation; 12 (i) whether, to the knowledge of the person giving the 13 certificate, a court has made any adverse comment about the 14 operative's credibility and, if so, particulars of the comment; 15 (j) whether, to the knowledge of the person giving the 16 certificate, the operative has made a false representation 17 when the truth was required and, if so, particulars of the 18 representation; 19 (k) if there is anything else known to the person giving the 20 certificate that may be relevant to the operative's 21 credibility--particulars of the thing. 22 (2) A witness identity protection certificate for an operative must not 23 contain information that may allow the operative's identity, or 24 where the operative lives, to be revealed. 25 15KL Filing and notification 26 (1) A witness identity protection certificate for an operative in relation 27 to a proceeding must be filed in the court before the operative gives 28 evidence in the proceeding. 29 (2) The person who files the certificate must give a copy of it to each 30 party to the proceeding at least 14 days (or the shorter period 31 agreed to by the party) before the day the operative is to give 32 evidence. 33 (3) The court may order the person filing the certificate to give a copy 34 of it to a person stated in the order. 35 (4) This section applies subject to section 15KM. 36 72 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 15KM Leave for non-compliance 1 (1) The person who has filed, or proposes to file, a witness identity 2 protection certificate may apply to the court for leave not to 3 comply with one or more of the requirements of section 15KL. 4 (2) However, the court must not give such leave unless it is satisfied 5 that it was not reasonably practicable to comply with the 6 requirement or requirements of section 15KL in respect of which 7 leave is sought. 8 (3) If the court gives leave under this section for a witness identity 9 protection certificate not to be filed in accordance with 15KL(1), 10 the witness identity protection certificate is taken to have been filed 11 in accordance with that subsection. 12 Note: Provisions that are expressed to apply if a witness identity protection 13 certificate is filed in a court will also have effect if such a certificate is 14 taken to have been filed because of the operation of subsection (3). 15 15KN Effect of witness identity protection certificate 16 (1) This section applies if a witness identity protection certificate for 17 an operative in relation to a proceeding is filed in a court. 18 (2) If this section applies: 19 (a) the operative may give evidence in the proceeding under the 20 assumed name, or court name, stated in the certificate; and 21 (b) subject to section 15KQ: 22 (i) a question must not be asked of a witness, including the 23 operative, that may lead to the disclosure of the 24 operative's identity or where the operative lives; and 25 (ii) a witness, including the operative, cannot be required to 26 (and must not) answer a question, give evidence or 27 provide information that discloses, or may lead to the 28 disclosure of, the operative's identity or where the 29 operative lives; and 30 (iii) a person involved in the proceeding must not make a 31 statement that discloses, or may lead to the disclosure 32 of, the operative's identity or where the operative lives. 33 (3) For the purposes of this section, a person involved in a proceeding 34 includes: 35 (a) the court; and 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 73 [Page Break] (b) a party to the proceeding; and 1 (c) a person given leave to be heard or make submissions in the 2 proceeding; and 3 (d) a lawyer representing a person referred to in paragraph (b) or 4 (c) or a lawyer assisting the court in the proceeding; and 5 (e) any other officer of the court or person assisting the court in 6 the proceeding; and 7 (f) a person acting in the execution of any process or the 8 enforcement of any order in the proceeding. 9 15KO Orders to protect operative's identity etc. 10 (1) The court in which a witness identity protection certificate is filed 11 may make any order it considers necessary or desirable to protect 12 the identity of the operative for whom the certificate is given or to 13 prevent the disclosure of where the operative lives. 14 (2) A person commits an offence if: 15 (a) an order has been made under subsection (1); and 16 (b) the person engages in conduct; and 17 (c) the conduct contravenes the order. 18 Penalty: Imprisonment for 2 years. 19 (3) Subsection (2) does not limit the court's powers, including, but not 20 limited to, the court's power to punish for contempt. 21 (4) The court must make an order suppressing the publication of 22 anything said when an order is made as mentioned in 23 subsection (1). 24 (5) To avoid doubt, subsection (4) does not prevent the taking of a 25 transcript of court proceedings, but the court may make an order 26 for how the transcript is to be dealt with, including an order 27 suppressing its publication. 28 15KP Disclosure of operative's identity to presiding officer 29 (1) This section applies if a witness identity protection certificate for 30 an operative in relation to a proceeding is filed in a court. 31 (2) The presiding officer in the proceeding may require the operative 32 to do one or both of the following: 33 74 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) to disclose the operative's true identity to the presiding 1 officer; 2 (b) to provide the presiding officer with photographic evidence 3 of that identity. 4 15KQ Disclosure of operative's identity etc. despite certificate 5 (1) This section applies if a witness identity protection certificate for 6 an operative in relation to a proceeding is filed in a court. 7 (2) A party to the proceeding, or a lawyer assisting the court in the 8 proceeding, may apply to the court: 9 (a) for leave: 10 (i) to ask a question of a witness, including the operative, 11 that may lead to the disclosure of the operative's 12 identity or where the operative lives; or 13 (ii) for a person involved in the proceeding to make a 14 statement that discloses, or may lead to the disclosure 15 of, the operative's identity or where the operative lives; 16 or 17 (b) for an order requiring a witness, including the operative, to 18 answer a question, give evidence or provide information that 19 discloses, or may lead to the disclosure of, the operative's 20 identity or where the operative lives. 21 (3) In this section: 22 person involved in the proceeding has the same meaning as in 23 subsection 15KN(3). 24 (4) The court may do either or both of the following: 25 (a) give leave for the party or lawyer to do anything mentioned 26 in paragraph (2)(a); 27 (b) make an order requiring a witness to do anything mentioned 28 in paragraph (2)(b). 29 (5) However, the court must not give leave or make an order unless it 30 is satisfied about each of the following: 31 (a) there is evidence that, if accepted, would substantially call 32 into question the operative's credibility; 33 (b) it would be impractical to test properly the credibility of the 34 operative without allowing the risk of disclosure of, or 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 75 [Page Break] disclosing, the operative's identity or where the operative 1 lives; 2 (c) it is in the interests of justice for the operative's credibility to 3 be able to be tested. 4 (6) If there is a jury in the proceeding, the application must be heard in 5 the absence of the jury. 6 (7) Unless the court considers that the interests of justice require 7 otherwise, the court must be closed when: 8 (a) the application is made; and 9 (b) if leave is given or an order is made--the question is asked 10 (and answered), the evidence is given, the information is 11 provided or the statement is made. 12 (8) The court must make an order suppressing the publication of 13 anything said when: 14 (a) the application is made; and 15 (b) if leave is given or an order is made--the question is asked 16 (and answered), the evidence is given, the information is 17 provided or the statement is made. 18 (9) To avoid doubt, subsection (8) does not prevent the taking of a 19 transcript of court proceedings, but the court may make an order 20 for how the transcript is to be dealt with, including an order 21 suppressing its publication. 22 (10) The court may make any other order it considers appropriate to 23 protect the operative's identity or to prevent the disclosure of 24 where the operative lives. 25 (11) A person commits an offence if: 26 (a) an order has been made under subsection (8), (9) or (10); and 27 (b) the person engages in conduct; and 28 (c) the conduct contravenes the order. 29 Penalty: Imprisonment for 2 years. 30 (12) Subsection (11) does not limit the court's powers, including, but 31 not limited to, the court's power to punish for contempt. 32 76 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 15KR Application for leave--joinder as respondent 1 (1) This section applies if: 2 (a) a witness identity protection certificate for an operative in 3 relation to a proceeding is filed in a court; and 4 (b) a person applies: 5 (i) for leave under section 15KM or 15KQ; or 6 (ii) for an order under section 15KO or 15KQ. 7 (2) The court in which the application is pending may allow a person 8 to join the application as a respondent if: 9 (a) the person is: 10 (i) the operative in relation to whom the witness identity 11 protection certificate is given; or 12 (ii) the chief officer of the agency who gave the witness 13 identity protection certificate; and 14 (b) the person applies to be joined to the application as a 15 respondent; and 16 (c) the person has sufficient interest in the subject matter of the 17 application. 18 (3) If a court allows a person to join the application as a respondent 19 under subsection (2), the court must allow the person, or the 20 person's legal representative, to appear and be heard. 21 15KS Directions to jury 22 (1) This section applies if: 23 (a) a witness identity protection certificate for an operative in 24 relation to a proceeding is filed in a court; and 25 (b) there is a jury in the proceeding; and 26 (c) the operative gives evidence. 27 (2) The court must (unless it considers it inappropriate) direct the jury 28 not to give the operative's evidence any more or less weight, or 29 draw any adverse inferences against the defendant or another party 30 to the proceeding, because: 31 (a) there is a witness identity protection certificate for the 32 operative; or 33 (b) the court has made an order under section 15KO or 34 subsection 15KQ(8), (9) or (10). 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 77 [Page Break] 15KT Adjournment for appeal decision 1 (1) If a court gives leave under section 15KM or 15KQ or makes an 2 order under section 15KO or 15KQ, a party may apply to the court 3 for an adjournment of the proceeding to allow time for the party to: 4 (a) decide whether to appeal against the decision to grant leave 5 or to give the order; and 6 (b) if the party decides to do so--make the appeal. 7 (2) If an application is made under this section, the court must grant 8 the adjournment. 9 (3) A court that has jurisdiction to hear and determine appeals from a 10 judgment, order or direction in the proceeding has jurisdiction to 11 hear and determine any appeal under this section. 12 15KU Witness identity protection certificate--cancellation 13 (1) This section applies if the chief officer of: 14 (a) a law enforcement agency; or 15 (b) an intelligence agency; 16 gives a witness identity protection certificate for an operative in 17 relation to a proceeding. 18 (2) The chief officer must cancel the witness identity protection 19 certificate if the chief officer considers that it is no longer 20 necessary or appropriate to prevent the disclosure of the operative's 21 identity or where the operative lives. 22 (3) If the chief officer cancels the certificate after it has been filed in a 23 court, the chief officer must immediately give notice to the court 24 and each party to the proceeding, in writing, that the certificate has 25 been cancelled. 26 Note: The chief officer may delegate functions under this section--see 27 section 15LA. 28 15KV Permission to give information disclosing operative's identity 29 etc. 30 (1) This section applies if the chief officer of: 31 (a) a law enforcement agency; or 32 (b) an intelligence agency; 33 78 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] gives a witness identity protection certificate for an operative in 1 relation to a proceeding. 2 (2) The chief officer may, in writing, permit a person to give 3 information (otherwise than in the proceeding) that discloses, or 4 may lead to the disclosure of, the operative's identity or where the 5 operative lives if the chief officer considers it necessary or 6 appropriate for the information to be given. 7 (3) The permission: 8 (a) must name the person who may give the information; and 9 (b) must name the person to whom the information may be 10 given; and 11 (c) must state the information that may be given; and 12 (d) may state how the information may be given. 13 Note: The chief officer may delegate functions under this section--see 14 section 15LA. 15 15KW Disclosure offences 16 (1) A person commits an offence if: 17 (a) a witness identity protection certificate for an operative in 18 relation to a proceeding has been given; and 19 (b) the certificate has not been cancelled under section 15KU; 20 and 21 (c) the person engages in conduct; and 22 (d) the conduct results in the disclosure of the operative's 23 identity or where the operative lives; and 24 (e) none of the following applies: 25 (i) the conduct is required by section 15KP; 26 (ii) the conduct is authorised by leave or by an order under 27 section 15KQ; 28 (iii) the conduct is permitted under section 15KV. 29 Penalty: Imprisonment for 2 years. 30 (2) A person commits an offence if: 31 (a) a witness identity protection certificate for an operative in 32 relation to a proceeding has been given; and 33 (b) the certificate has not been cancelled under section 15KU; 34 and 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 79 [Page Break] (c) the person engages in conduct; and 1 (d) the conduct results in the disclosure of the operative's 2 identity or where the operative lives; and 3 (e) none of the following applies: 4 (i) the conduct is required by section 15KP; 5 (ii) the conduct is authorised by leave or by an order under 6 section 15KQ; 7 (iii) the conduct is permitted under section 15KV; and 8 (f) the person is reckless as to whether his or her conduct will 9 endanger the health or safety of another person. 10 Penalty: Imprisonment for 10 years. 11 (3) A person commits an offence if: 12 (a) a witness identity protection certificate for an operative in 13 relation to a proceeding has been given; and 14 (b) the certificate has not been cancelled under section 15KU; 15 and 16 (c) the person engages in conduct; and 17 (d) the conduct results in the disclosure of the operative's 18 identity or where the operative lives; and 19 (e) none of the following applies: 20 (i) the conduct is required by section 15KP; 21 (ii) the conduct is authorised by leave or by an order under 22 section 15KQ; 23 (iii) the conduct is permitted under section 15KV; and 24 (f) the person is reckless as to whether his or her conduct will 25 prejudice the effective conduct of an investigation or 26 intelligence-gathering in relation to criminal activity. 27 Penalty: Imprisonment for 10 years. 28 15KX Evidentiary certificates 29 (1) A chief officer of a law enforcement agency or an intelligence 30 agency may sign a certificate stating any of the following: 31 (a) that, for the purposes of paragraph 15KW(1)(b), (2)(b) or 32 (3)(b), a witness identity protection certificate for an 33 operative in relation to a proceeding has not been cancelled 34 under section 15KU; 35 80 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (b) whether, for the purposes of subparagraph 15KW(1)(e)(i), 1 (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the 2 offence was required by section 15KP; 3 (c) whether, for the purposes of subparagraph 15KW(1)(e)(ii), 4 (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the 5 offence was authorised by leave or by an order under 6 section 15KQ; 7 (d) whether, for the purposes of subparagraph 15KW(1)(e)(iii), 8 (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the 9 offence was permitted under section 15KV. 10 (2) In any proceedings, a certificate given under this section is prima 11 facie evidence of the matters certified in it. 12 15KY Reports about witness identity protection certificates--law 13 enforcement agencies 14 (1) As soon as practicable after the end of each financial year, the chief 15 officer of a law enforcement agency must submit to the Minister a 16 report about witness identity protection certificates given by the 17 chief officer during that year. 18 (2) The report must include the following: 19 (a) the number of witness identity protection certificates given; 20 (b) on what basis the chief officer was satisfied about the matters 21 mentioned in paragraph 15KI(1)(d) for each certificate; 22 (c) if disclosure of an operative's identity to a presiding officer 23 was required by section 15KP--details of the proceeding in 24 relation to which disclosure was required and details of the 25 things that the presiding officer required the operative to do 26 under that section; 27 (d) if leave was given or an order made under section 15KQ in a 28 proceeding in which a witness identity protection certificate 29 for an operative was filed--details of the proceeding that 30 relate to the leave or order; 31 (e) if leave was given for joinder of a person as a respondent to 32 proceedings under section 15KR--details of the person who 33 was joined and who appeared on their behalf; 34 (f) if leave was given for an adjournment under section 15KT-- 35 details of whether an appeal was made against the decision 36 under that section; 37 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 81 [Page Break] (g) if a witness identity protection certificate was cancelled 1 under section 15KU--the reasons why the certificate was 2 cancelled; 3 (h) if a permission was given under section 15KV--the reasons 4 why the permission was given; 5 (i) any other information relating to witness identity protection 6 certificates and the administration of this Part that the 7 Minister considers appropriate. 8 (3) A report must not include information that discloses, or may lead 9 to the disclosure of, an operative's identity, or where the operative 10 lives, unless the witness identity protection certificate for the 11 operative has been cancelled. 12 (4) The Minister must cause a copy of the report to be laid before each 13 House of the Parliament within 15 sitting days of that House after 14 the day on which the Minister receives the report. 15 15KZ Reports about witness identity protection certificates-- 16 intelligence agencies 17 (1) As soon as practicable after the end of each financial year, the chief 18 officer of an intelligence agency must submit to the 19 Inspector-General of Intelligence and Security a report about 20 witness identity protection certificates given by the chief officer 21 during that year. 22 (2) The report must include the following: 23 (a) the number of witness identity protection certificates given; 24 (b) on what basis the chief officer was satisfied about the matters 25 mentioned in paragraph 15KI(1)(d) for each certificate; 26 (c) if disclosure of an operative's identity to a presiding officer 27 was required by section 15KP--details of the proceeding in 28 relation to which disclosure was required and details of the 29 things that the presiding officer required the operative to do 30 under that section; 31 (d) if leave was given or an order made under section 15KQ in a 32 proceeding in which a witness identity protection certificate 33 for an operative was filed--details of the proceeding that 34 relate to the leave or order; 35 82 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (e) if leave was given for joinder of a person as a respondent to 1 proceedings under section 15KR--details of the person who 2 was joined and who appeared on their behalf; 3 (f) if leave was given for an adjournment under section 15KT-- 4 details of whether an appeal was made against the decision 5 under that section; 6 (g) if a witness identity protection certificate was cancelled 7 under section 15KU--the reasons why the certificate was 8 cancelled; 9 (h) if a permission was given under section 15KV--the reasons 10 why the permission was given; 11 (i) any other information relating to witness identity protection 12 certificates and the administration of this Part that the 13 Inspector-General of Intelligence and Security considers 14 appropriate. 15 Division 3--Mutual Recognition under Corresponding 16 Laws 17 15L Recognition of witness identity protection certificates under 18 corresponding laws 19 The following provisions apply, with any necessary changes, to a 20 corresponding witness identity protection certificate as if it were a 21 witness identity protection certificate given under section 15KI: 22 (a) section 15KL (filing and notification); 23 (b) section 15KM (leave for non-compliance); 24 (c) section 15KN (effect of witness identity protection 25 certificate); 26 (d) section 15KO (orders to protect operative's identity etc.); 27 (e) section 15KP (disclosure of operative's identity to presiding 28 officer); 29 (f) section 15KQ (disclosure of operative's identity etc. despite 30 certificate); 31 (g) section 15KR (application for leave--joinder as respondent); 32 (h) section 15KS (directions to jury); 33 (i) section 15KT (adjournment for appeal decision); 34 (j) section 15KW (disclosure offences); 35 (k) section 15KX (evidentiary certificates). 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 83 [Page Break] Division 4--General 1 15LA Delegation 2 (1) Except as provided by this section (and despite any other Act or 3 law to the contrary), the functions of a chief officer under this Part 4 may not be delegated to any other person. 5 (2) A chief officer may delegate any of the chief officer's functions 6 under this Part (except this power of delegation) to a senior officer 7 of the law enforcement agency or the intelligence agency (as the 8 case may be). 9 (3) In this section: 10 senior officer means: 11 (a) in relation to the Australian Federal Police--a Deputy 12 Commissioner, an Assistant Commissioner, or a person 13 occupying an equivalent or higher rank in the Australian 14 Federal Police; and 15 (b) in relation to the Australian Customs Service--a Deputy 16 Chief Executive Officer of Customs, or a person occupying 17 an equivalent or higher position in the Australian Customs 18 Service; and 19 (c) in relation to the ACC, either of the following: 20 (i) the Director National Operations, or a person occupying 21 an equivalent or higher position in the ACC; 22 (ii) a person at the rank prescribed by the regulations; and 23 (d) in relation to the Australian Taxation Office--an Assistant 24 Commissioner, or a person occupying an equivalent or higher 25 position in the Australian Taxation Office; and 26 (e) in relation to the Australian Security Intelligence 27 Organisation--a Deputy Director-General of Security, or a 28 person occupying an equivalent or higher position in the 29 Australian Security Intelligence Organisation; and 30 (f) in relation to the Australian Secret Intelligence Service--a 31 First Assistant Director-General of the Australian Security 32 Intelligence Service, or a person occupying an equivalent or 33 higher position in the Australian Secret Intelligence Service. 34 84 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 1 Schedule 2--Delayed notification search 2 warrants 3 4 Crimes Act 1914 5 1 Subsection 3C(1) 6 Insert: 7 adjoining premises, in relation to particular premises, means 8 premises adjoining or providing access to the premises. 9 2 Subsection 3C(1) 10 Insert: 11 adjoining premises occupier's notice has the meaning given by 12 section 3SR. 13 3 Subsection 3C(1) 14 Insert: 15 delayed notification search warrant has the meaning given by 16 section 3SA. 17 4 Subsection 3C(1) 18 Insert: 19 eligible issuing officer has the meaning given by section 3SA. 20 5 Subsection 3C(1) 21 Insert: 22 occupier's notice has the meaning given by section 3SQ. 23 6 Subsection 3C(1) (at the end of the definition of issuing 24 officer) 25 Add: 26 Note: An eligible issuing officer authorised to consider an application for a 27 warrant under Division 2 of this Part by section 3SG or 3SH is treated 28 under those sections as an issuing officer for the purposes of 29 considering such an application. 30 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 85 [Page Break] 7 At the end of section 3C 1 Add: 2 (3) To avoid doubt, a reference to a search warrant in Division 2 does 3 not include a reference to a delayed notification search warrant. 4 8 After Division 2 of Part IAA 5 Insert: 6 Division 2A--Delayed Notification Search Warrants 7 Subdivision 1--Preliminary 8 3SA Definitions 9 (1) In this Division: 10 authorising agency, in relation to a delayed notification search 11 warrant, means the agency the chief officer of which authorised the 12 application for the warrant. 13 chief officer means: 14 (a) in relation to the Australian Federal Police--the 15 Commissioner; or 16 (b) in relation to the police force or police service of a State or 17 Territory--the Commissioner or a person of equivalent rank. 18 delayed notification search warrant means a warrant issued under 19 section 3SI. 20 eligible issuing officer means: 21 (a) an eligible Judge within the meaning of section 3SB; or 22 (b) a nominated AAT member within the meaning of 23 section 3SC. 24 executing officer, in relation to a delayed notification search 25 warrant, means: 26 (a) the constable named in the warrant as being responsible for 27 executing the warrant; or 28 (b) if the name of another constable has been inserted in the 29 warrant by the constable referred to in paragraph (a)--that 30 other constable. 31 86 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] inspecting officer has the meaning given by section 3SX. 1 nominated AAT member means a person in respect of whom a 2 nomination under section 3SC is in force. 3 relevant offence means: 4 (a) a Commonwealth offence that is punishable on conviction by 5 imprisonment for a period of 10 years or more; or 6 (b) a State offence that has a federal aspect that is punishable on 7 conviction by imprisonment for a period of 10 years or more; 8 or 9 (c) an offence against section 8 or 9 of the Crimes (Foreign 10 Incursions and Recruitment) Act 1978; or 11 (d) an offence against section 20 or 21 of the Charter of the 12 United Nations Act 1945; or 13 (e) an offence against subsection 147.2(1) or (3), section 270.7, 14 or subsection 471.11(2) or 474.15(2) of the Criminal Code. 15 Note: State offence that has a federal aspect is defined in section 3AA. 16 remote application means an application referred to in section 3SF. 17 unsworn application means an application referred to in 18 subsection 3SE(4). 19 (2) For the purposes of this Division, a reference to a State in the 20 definition of State offence that has a federal aspect is taken to 21 include a reference to a Territory. 22 (3) In this Division, a reference to the day on which a delayed 23 notification search warrant was executed is a reference to the day 24 on which the warrant premises were first entered under the warrant. 25 3SB Eligible Judges 26 (1) In this section: 27 eligible Judge means a person in relation to whom a consent under 28 subsection (2) and a declaration under subsection (3) are in force. 29 Judge means a person who is: 30 (a) a Judge of a court created by the Parliament; or 31 (b) a State or Territory Judge. 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 87 [Page Break] (2) A Judge may, by writing, consent to be declared an eligible Judge 1 by the Minister under subsection (3). 2 (3) The Minister may, by writing, declare Judges in relation to whom 3 consents are in force under subsection (2) to be eligible Judges for 4 the purposes of this Act. 5 (4) Any function or power conferred on the Judge under this Act is so 6 conferred only in a personal capacity and not as a court or a 7 member of a court. 8 (5) An eligible Judge has, in relation to the performance or exercise of 9 a function or power conferred on an eligible Judge by this Act, the 10 same protection and immunity as a Justice of the High Court has in 11 relation to proceedings in the High Court. 12 (6) An instrument declaring a Judge to be an eligible Judge is not a 13 legislative instrument. 14 3SC Nominated AAT members 15 (1) The Minister may, by writing, nominate a person who holds one of 16 the following appointments to the Administrative Appeals Tribunal 17 to issue delayed notification search warrants and perform related 18 functions under this Act: 19 (a) Deputy President; 20 (b) full-time senior member; 21 (c) part-time senior member; 22 (d) member. 23 (2) Despite subsection (1), the Minister must not nominate a person 24 who holds an appointment as a part-time senior member or a 25 member of the Tribunal unless the person: 26 (a) is enrolled as a legal practitioner of the High Court, of 27 another federal court or of the Supreme Court of a State or of 28 the Australian Capital Territory; and 29 (b) has been so enrolled for not less than 5 years. 30 (3) A nomination ceases to have effect if: 31 (a) the nominated AAT member ceases to hold an appointment 32 described in subsection (1); or 33 (b) the Minister, by writing, withdraws the nomination. 34 88 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (4) A nominated AAT member has, in relation to the performance or 1 exercise of a function or power conferred on a nominated AAT 2 member by this Act, the same protection and immunity as a Justice 3 of the High Court has in relation to proceedings in the High Court. 4 Subdivision 2--Applications for delayed notification search 5 warrants 6 3SD Authorisation to apply for a delayed notification search 7 warrant 8 (1) The chief officer of the Australian Federal Police may, in writing, 9 authorise a constable who is a member or special member of the 10 Australian Federal Police to apply for a delayed notification search 11 warrant in respect of particular premises. 12 (2) The chief officer of the police force or police service of a State or 13 Territory may, in writing, authorise a constable who is a member of 14 that police force or police service to apply for a delayed 15 notification search warrant in respect of particular premises. 16 (3) A chief officer may authorise an application for a delayed 17 notification search warrant in respect of particular premises only if: 18 (a) the chief officer is satisfied that there are reasonable grounds 19 to suspect: 20 (i) that one or more relevant offences have been, are being, 21 are about to be or are likely to be committed; and 22 (ii) that entry and search of the premises will substantially 23 assist in the prevention of, or investigation into, those 24 offences; and 25 (b) the chief officer is satisfied that there are reasonable grounds 26 to believe that it is necessary for the entry and search of the 27 premises to be conducted without the knowledge of any 28 occupier of the premises. 29 (4) The chief officer of Australian Federal Police or the police force or 30 police service of a State or Territory may, by writing, delegate all 31 or any of the chief officer's powers or functions under this Division 32 to a member of the staff of the agency who is: 33 (a) in the case of the Australian Federal Police--a Deputy 34 Commissioner, or a senior executive AFP employee or a 35 person of equivalent or higher rank; or 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 89 [Page Break] (b) in the case of the police force or police service of a State or 1 Territory--a person of an equivalent rank to, or a higher rank 2 than, a person mentioned in paragraph (a). 3 (5) If the chief officer referred to in subsection (3) is the chief officer 4 of a police force or police service of a State or Territory, the 5 reference in that subsection to a relevant offence does not include a 6 reference to a State offence that has a federal aspect. 7 3SE Application for a delayed notification search warrant 8 (1) A constable may apply to an eligible issuing officer for a delayed 9 notification search warrant in respect of particular premises if: 10 (a) the constable is authorised under section 3SD to apply for the 11 warrant; and 12 (b) the constable suspects on reasonable grounds: 13 (i) that one or more relevant offences have been, are being, 14 are about to be or are likely to be committed; and 15 (ii) that entry and search of the premises will substantially 16 assist in the prevention of, or investigation into, those 17 offences; and 18 (c) the constable believes on reasonable grounds that it is 19 necessary for the entry and search of the premises to be 20 conducted without the knowledge of any occupier of the 21 premises. 22 (2) An application under subsection (1) must: 23 (a) be in writing (other than as mentioned in section 3SF); and 24 (b) specify the name of the applicant; and 25 (c) specify the name of the constable who, unless he or she 26 inserts the name of another constable in the warrant, is to be 27 responsible for executing the warrant; and 28 (d) set out details or attach a copy of the authorisation given to 29 the applicant under section 3SD; and 30 (e) specify the address, location or other description of the 31 premises; and 32 (f) specify the proposed duration of the warrant (which must not 33 be more than 30 days); and 34 (g) if it is proposed that adjoining premises be entered for the 35 purpose of entering the premises, specify the address, 36 location or other description of the adjoining premises; and 37 90 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (h) include a description of the kinds of things (if any) that are 1 proposed to be searched for, seized, copied, photographed, 2 recorded, operated, printed, tested or sampled and a statement 3 of whether things are to be placed in substitution for seized 4 things; and 5 (i) subject to this section, be supported by an affidavit setting 6 out the matters in subsection (3). 7 (3) An affidavit must: 8 (a) set out the grounds on which the warrant is sought; and 9 (b) if entry to adjoining premises is proposed, state the grounds 10 on which such entry is proposed; and 11 (c) state whether, to the applicant's knowledge, an application in 12 respect of the premises for a delayed notification search 13 warrant or a search warrant under section 3E: 14 (i) has been refused within the period of 3 months before 15 the date of the application, and if it has, the additional 16 information that would justify issuing the warrant; or 17 (ii) has been granted during the period of 3 months before 18 the date of the application. 19 (4) An application for a delayed notification search warrant may be 20 made before an affidavit is prepared or sworn if the applicant 21 believes: 22 (a) that it is impracticable for an affidavit to be prepared or 23 sworn before the application is made; or 24 (b) that the delay that would occur if an affidavit were prepared 25 or sworn before the application is made would frustrate the 26 effective execution of the warrant. 27 (5) If subsection (4) applies, the applicant must: 28 (a) provide as much information as the eligible issuing officer 29 considers is reasonably practicable in the circumstances; and 30 (b) not later than 72 hours after the making of the application, 31 send a duly sworn affidavit to the eligible issuing officer, 32 whether or not a delayed notification search warrant has been 33 issued. 34 (6) An eligible issuing officer may request further information relating 35 to an application for a delayed notification search warrant, and may 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 91 [Page Break] require that an affidavit be prepared and sworn in relation to the 1 further information. 2 3SF Remote application 3 (1) If a constable believes that: 4 (a) it is impracticable for an application for a delayed 5 notification search warrant to be made in person; or 6 (b) the delay that would occur if an application were made in 7 person would frustrate the effective execution of the warrant; 8 the application may be made under section 3SE by telephone, fax, 9 email or other electronic means. 10 (2) If transmission by fax is available and an affidavit has been 11 prepared, the applicant must transmit a copy of the affidavit, 12 whether sworn or unsworn, to the eligible issuing officer who is to 13 determine the application. 14 (3) A remote application must include all information required to be 15 provided in an application made in person for a delayed 16 notification search warrant, but the application may, if necessary, 17 be made before an affidavit is sworn. 18 (4) If an application for a delayed notification search warrant is a 19 remote application, the eligible issuing officer: 20 (a) may require communication by voice to the extent that it is 21 practicable in the circumstances; and 22 (b) may make a recording of the whole or any part of any such 23 communication by voice. 24 3SG Application under section 3E for search warrant 25 (1) This section applies if an application has been made to an eligible 26 issuing officer for a delayed notification search warrant: 27 (a) in respect of particular premises; and 28 (b) in relation to one or more relevant offences. 29 (2) A constable may, at the same time or subsequently, make an 30 application under section 3E to the eligible issuing officer for a 31 warrant to search those premises or other premises for evidential 32 material relating to the relevant offences or to other offences 33 connected to the relevant offence. 34 92 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (3) The eligible issuing officer may consider and deal with the 1 application under Division 2 as if the eligible issuing officer were 2 an issuing officer within the meaning of section 3C. 3 3SH Issue of search warrant under section 3E instead of delayed 4 notification search warrant 5 (1) This section applies if: 6 (a) a constable makes an application to an eligible issuing officer 7 for a delayed notification search warrant: 8 (i) in respect of particular premises; and 9 (ii) in relation to one or more relevant offences; and 10 (b) the eligible issuing officer is not satisfied that a delayed 11 notification search warrant in respect of the premises should 12 be issued. 13 (2) The eligible issuing officer may: 14 (a) treat the application for the delayed notification search 15 warrant as an application under section 3E for a warrant to 16 search the premises for evidential material relating to the 17 relevant offences, even if such an application has not been 18 made; and 19 (b) consider and deal with the application under Division 2: 20 (i) as if the application had been validly made under 21 section 3E; and 22 (ii) as if the eligible issuing officer were an issuing officer 23 within the meaning of section 3C. 24 Subdivision 3--Issue and execution of delayed notification 25 search warrants 26 3SI Issue of delayed notification search warrant 27 (1) An eligible issuing officer may issue a delayed notification search 28 warrant if the eligible issuing officer is satisfied that: 29 (a) there are reasonable grounds for the suspicion and belief 30 referred to subsection 3SE(1); and 31 (b) in the case of an unsworn application: 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 93 [Page Break] (i) that it would have been impracticable for an affidavit to 1 be prepared or sworn before the application was made; 2 or 3 (ii) that the delay that would have occurred if an affidavit 4 had been prepared or sworn before the application was 5 made would have frustrated the effective execution of 6 the warrant; and 7 (c) in the case of a remote application--that it would have been 8 impracticable for the application to have been made in 9 person, or that the delay that would have occurred if an 10 application had been made in person would have frustrated 11 the effective execution of the warrant. 12 (2) In determining whether a delayed notification search warrant 13 should be issued, an eligible issuing officer must have regard to the 14 following: 15 (a) the extent to which the exercise of the powers under the 16 warrant would assist the prevention of, or investigation into, 17 the relevant offences to which the application for the warrant 18 relates; 19 (b) the existence of alternative means of obtaining the evidence 20 or information sought to be obtained; 21 (c) the extent to which the privacy of any person is likely to be 22 affected; 23 (d) the nature and seriousness of the relevant offences to which 24 the warrant relates; 25 (e) if it is proposed that adjoining premises be entered for the 26 purpose of entering the premises that are the subject of the 27 application--whether allowing entry to the adjoining 28 premises is reasonably necessary: 29 (i) to enable entry to the premises that are the subject of the 30 application; and 31 (ii) to avoid compromising the investigation of the relevant 32 offences to which the warrant relates; 33 (f) any conditions to which the warrant should be subject; 34 (g) the outcome of any previous application in respect of the 35 premises for a delayed notification search warrant or a search 36 warrant under section 3E, so far as this is known to the 37 eligible issuing officer. 38 94 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (3) An eligible issuing officer other than a State or Territory judge may 1 issue a delayed notification search warrant in relation to premises 2 located anywhere in the Commonwealth or an external Territory. 3 (4) An eligible issuing officer who is a State or Territory judge may 4 issue a delayed notification search warrant only in relation to 5 premises located in that State or Territory. 6 3SJ Contents of delayed notification search warrant 7 (1) A delayed notification search warrant must specify the following: 8 (a) the name of the applicant; 9 (b) the name of the constable who, unless he or she inserts the 10 name of another constable in the warrant, is to be responsible 11 for executing the warrant; 12 (c) the address, location or other description of the warrant 13 premises; 14 (d) the relevant offences to which the warrant relates; 15 (e) whether the warrant authorises the entry of premises that 16 adjoin or provide access to the warrant premises; 17 (f) the name of the occupiers of the warrant premises, if known; 18 (g) the date on which the warrant is issued; 19 (h) the date on which the warrant expires (which must not be 20 more than 30 days after the day on which the warrant is 21 issued); 22 (i) a description of the kinds of things that are proposed to be 23 searched for, seized, copied, photographed, recorded, 24 operated, printed, tested or sampled and a statement of 25 whether a thing may be placed in substitution for a seized 26 thing; 27 (j) whether the warrant authorises the re-entry of the warrant 28 premises to return any thing to the premises, or to retrieve 29 any thing substituted at the premises and, if it does so, a 30 statement that the re-entry must be within 7 days of the day 31 on which the warrant was executed; 32 (k) any conditions to which the warrant is subject; 33 (l) that the eligible issuing officer is satisfied of the matters 34 referred to in subsection 3SI(1), and has had regard to the 35 matters referred to in subsection 3SI(2). 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 95 [Page Break] (2) A warrant must be signed by the eligible issuing officer and 1 include his or her name. 2 3SK Formal requirements relating to remote applications 3 (1) If an eligible issuing officer decides to issue a delayed notification 4 search warrant under section 3SI and the application was a remote 5 application, the eligible issuing officer is to: 6 (a) inform the applicant, by telephone, fax, email or other 7 electronic means, of the terms of the warrant and the day on 8 which and the time at which it was signed; and 9 (b) give the warrant to the applicant while retaining a copy of the 10 warrant for the eligible issuing officer's own records. 11 (2) The applicant must then complete a form of delayed notification 12 search warrant in terms substantially corresponding to those given 13 by the eligible issuing officer, stating on the form the name of the 14 eligible issuing officer and the day on which and the time at which 15 the warrant was signed. 16 (3) The applicant must, not later than the day after the day of expiry of 17 the delayed notification search warrant or the day after the day on 18 which the warrant was executed, whichever is the earlier, give or 19 transmit to the eligible issuing officer the form of warrant 20 completed by the applicant. 21 (4) The eligible issuing officer is to attach to the form of warrant 22 provided under subsection (3) the copy of warrant retained by the 23 eligible issuing officer. 24 (5) If: 25 (a) it is material, in any proceedings, for a court to be satisfied 26 that the exercise of a power under a warrant issued as 27 mentioned in this section was duly authorised; and 28 (b) the form of warrant signed by the eligible issuing officer is 29 not produced in evidence; 30 the court is to assume, unless the contrary is proved, that the 31 exercise of the power was not duly authorised. 32 96 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 3SL What is authorised by a delayed notification search warrant 1 (1) A delayed notification search warrant authorises an executing 2 officer or a constable assisting to do the following under the 3 warrant: 4 (a) to enter the warrant premises without the knowledge of any 5 occupier of the premises; 6 (b) to impersonate another person for the purposes of executing 7 the warrant; 8 (c) to search the warrant premises for the kinds of things (if any) 9 specified in the warrant; 10 (d) to seize any thing of a kind specified in the warrant; 11 (e) to seize any other relevant thing found in the course of the 12 search, if the executing officer believes on reasonable 13 grounds that the seizure of the thing is necessary to prevent 14 its concealment, loss, destruction or use in committing any 15 offence; 16 (f) to seize other things found in the course of the search that the 17 executing officer or a constable assisting believes on 18 reasonable grounds to be seizable items; 19 (g) to search for and record fingerprints found at the premises 20 and to take samples of things found at the premises for 21 forensic purposes; 22 (h) if specified in the warrant--to replace a thing seized with a 23 substitute; 24 (i) to copy, photograph or otherwise record a thing of a kind 25 specified in the warrant, and any other relevant thing that the 26 executing officer or the constable assisting finds in the course 27 of executing the warrant; 28 (j) to operate, print, test or sample a thing of a kind specified in 29 the warrant and any other relevant thing that the executing 30 officer or the constable assisting finds in the course of 31 executing the warrant at the warrant premises; 32 (k) if specified in the warrant--to re-enter the warrant premises, 33 within 7 days of the day on which the warrant was executed, 34 to return any thing seized from the premises, or to retrieve 35 any thing substituted at the premises. 36 (2) In this section: 37 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 97 [Page Break] relevant thing means a thing that an executing officer or a 1 constable assisting believes on reasonable grounds to be: 2 (a) evidential material in relation to a relevant offence to which 3 the delayed notification search warrant concerned relates; or 4 (b) evidential material in relation to another offence that is an 5 indictable offence. 6 (3) If things are seized under a warrant, the warrant authorises the 7 executing officer to make the things available to officers of other 8 agencies if it is necessary to do so for the purpose of investigating 9 or prosecuting an indictable offence to which the things relate. 10 3SM Specific powers available to constables executing warrant 11 (1) In executing a delayed notification search warrant, the executing 12 officer or a constable assisting may, for a purpose incidental to the 13 execution of the warrant, take photographs (including video 14 recordings) of the warrant premises or of things at the warrant 15 premises. 16 (2) If a delayed notification search warrant is being executed, the 17 executing officer and the constable assisting may, if the warrant is 18 still in force, complete the execution of the warrant after all of 19 them temporarily cease its execution and leave the warrant 20 premises for not more than one hour. 21 (3) If: 22 (a) the execution of a delayed notification search warrant is 23 stopped by an order of a court; and 24 (b) the order is later revoked or reversed on appeal; and 25 (c) the warrant is still in force; 26 the execution of the warrant may be completed. 27 3SN Executing a warrant--assistance, use of force and related 28 matters 29 (1) In executing a delayed notification search warrant: 30 (a) the executing officer may obtain such assistance; and 31 (b) the executing officer, or a person who is a constable and who 32 is assisting in executing the warrant, may use such force 33 against persons and things; and 34 98 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (c) a person who is not a constable and who has been authorised 1 to assist in executing the warrant may use such force against 2 things; 3 as is necessary and reasonable in the circumstances. 4 (2) At any time when an executing officer or a constable assisting is at 5 warrant premises or adjoining premises under a delayed 6 notification search warrant, the executing officer must have in his 7 or her possession, or be in a position to produce without delay: 8 (a) a copy of the warrant; or 9 (b) if the warrant was issued as a result of a remote application-- 10 a copy of the form of warrant prepared in accordance with 11 subsection 3SK(2). 12 (3) To avoid doubt, subsection (2) does not require the executing 13 officer or the constable assisting to produce a copy of the warrant 14 or the form of warrant. 15 3SO Use of equipment to examine or process things 16 (1) In executing a delayed notification search warrant, the executing 17 officer or constable assisting may bring to the warrant premises 18 any equipment reasonably necessary for the examination or 19 processing of a thing found at the premises. 20 (2) The executing officer or a constable assisting may operate 21 equipment already at the warrant premises to carry out the 22 examination or processing of a thing found at the premises, if the 23 executing officer or constable believes on reasonable grounds that: 24 (a) the equipment is suitable for the examination or processing; 25 and 26 (b) the examination or processing can be carried out without 27 damage to the equipment or the thing. 28 3SP Use of electronic equipment at warrant premises 29 (1) In executing a delayed notification search warrant, the executing 30 officer or a constable assisting may operate electronic equipment at 31 the warrant premises to access data (including data not held at the 32 warrant premises) if he or she believes on reasonable grounds that 33 the equipment can be operated without damaging it. 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 99 [Page Break] (2) If the executing officer or constable assisting believes on 1 reasonable grounds that any data accessed by operating the 2 electronic equipment might constitute evidential material, he or she 3 may copy the data to a disk, tape or other associated device brought 4 to the premises and take the device from the warrant premises. 5 (3) If: 6 (a) the executing officer or constable assisting takes the device 7 from the warrant premises; and 8 (b) the chief officer of the authorising agency in relation to the 9 delayed notification search warrant is satisfied that the data is 10 not required (or is no longer required) for: 11 (i) investigating an offence against the law of the 12 Commonwealth, a State or a Territory; or 13 (ii) judicial proceedings or administrative review 14 proceedings; or 15 (iii) investigating or resolving a complaint against the 16 executing officer or a constable assisting; 17 the chief officer must arrange for: 18 (c) the removal of the data from any device in the control of the 19 authorising agency; and 20 (d) the destruction of any other reproduction of the data in the 21 control of the authorising agency. 22 (4) If the executing officer or a constable assisting, after operating the 23 equipment, finds that evidential material is accessible by doing so, 24 he or she may: 25 (a) seize the equipment and any disk, tape or other associated 26 device; or 27 (b) if the material can, by using facilities at the warrant premises, 28 be put in documentary form--operate the facilities to put the 29 material in that form and seize the documents so produced. 30 (5) A constable may seize equipment under paragraph (4)(a) only if: 31 (a) it is not practicable to copy the data as mentioned in 32 subsection (2) or to put the material in documentary form as 33 mentioned in paragraph (4)(b); or 34 (b) possession by the occupier of the equipment could constitute 35 an offence. 36 100 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (6) Section 3M applies to damage to electronic equipment that occurs 1 as a result of the operation of this section in the same way as it 2 applies to damage to electronic equipment that occurs as a result of 3 the operation of sections 3K and 3L. 4 Subdivision 4--Notice to occupiers 5 3SQ Occupier's notice must be prepared 6 (1) The executing officer in relation to a delayed notification search 7 warrant, or the applicant for the warrant, must prepare a notice (an 8 occupier's notice) under this section in relation to the warrant if 9 the premises were entered under the warrant. 10 Note: Section 3SS specifies the period within which an occupier's notice 11 must be given. 12 (2) An occupier's notice in relation to a delayed notification search 13 warrant must: 14 (a) specify the name of the authorising agency in relation to the 15 warrant; and 16 (b) specify the date on which the warrant was issued; and 17 (c) specify the date on which the warrant was executed; and 18 (d) specify the address, location or other description of the 19 warrant premises; and 20 (e) specify the number of constables and constables assisting 21 who entered the warrant premises for the purposes of 22 executing, or assisting in the execution of, the warrant; and 23 (f) include a summary of: 24 (i) the nature of the warrant (including a statement of the 25 grounds on which a delayed notification search warrant 26 may be issued); and 27 (ii) the things authorised by, and done under, the warrant; 28 and 29 (g) describe any thing seized from the warrant premises and state 30 whether a thing was placed in substitution for the seized 31 thing; and 32 (h) state whether any thing was returned to, or retrieved from, 33 the warrant premises and the date on which this occurred. 34 (3) A person who prepares an occupier's notice under subsection (1) in 35 relation to a delayed notification search warrant must give the 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 101 [Page Break] occupier's notice and a copy of the warrant to the person who was 1 the occupier of the warrant premises at the time the delayed 2 notification search warrant was executed. 3 (4) If the person cannot ascertain the identity of the occupier of the 4 warrant premises at the time the delayed notification search 5 warrant was executed, or the occupier's whereabouts are unknown 6 to the person, the person must report back to the eligible issuing 7 officer who issued the warrant, and the eligible issuing officer may 8 give such directions as the eligible issuing officer thinks fit. 9 3SR Adjoining premises occupier's notice must be prepared 10 (1) The executing officer in relation to a delayed notification search 11 warrant, or the applicant for the warrant, must prepare a notice (an 12 adjoining premises occupier's notice) under this section if 13 adjoining premises were entered for the purpose of entering the 14 warrant premises. 15 Note: Section 3SS specifies the period within which an adjoining premises 16 occupier's notice must be given. 17 (2) An adjoining premises occupier's notice in relation to a delayed 18 notification search warrant must specify the following: 19 (a) the name of the authorising agency in relation to the warrant; 20 (b) the date on which the warrant was issued; 21 (c) the date on which the warrant was executed; 22 (d) the address, location or other description of the warrant 23 premises; 24 (e) the address, location or other description of the adjoining 25 premises. 26 (3) A person who prepares an adjoining premises occupier's notice 27 under subsection (1) in relation to a delayed notification search 28 warrant must give the notice and a copy of the warrant to the 29 person who was the occupier of the adjoining premises at the time 30 the delayed notification search warrant was executed. 31 (4) If the person cannot ascertain the identity of the occupier of the 32 adjoining premises at the time the delayed notification search 33 warrant was executed, or the occupier's whereabouts are unknown 34 to the person, the person must report back to the eligible issuing 35 102 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] officer who issued the warrant, and the eligible issuing officer may 1 give such directions as the eligible issuing officer thinks fit. 2 3SS Period for giving an occupiers or adjoining premises occupier's 3 notice 4 (1) This section applies if an occupier's notice or an adjoining 5 premises occupier's notice is prepared in relation to a delayed 6 notification search warrant. 7 (2) The notice must be given within the period ending 6 months after 8 the day on which the warrant was executed, unless the period is 9 extended under subsection (4). 10 (3) The chief officer of the authorising agency in relation to the 11 delayed notification search warrant may, in writing, authorise a 12 constable to apply to an eligible issuing officer for an extension of 13 the period within which the notice must be given. 14 (4) An eligible issuing officer may, on application by a constable 15 authorised as mentioned in subsection (3), extend the period within 16 which the notice may be given if the eligible issuing officer is 17 satisfied that there are reasonable grounds for doing so. 18 (5) An eligible issuing officer may extend the period within which the 19 notice may be given on more than one occasion, but: 20 (a) must not extend the period by more than 6 months on any 21 one occasion; and 22 (b) must not extend the period in such a way that the notice is 23 required to be given later than 18 months after the day on 24 which the delayed notification search warrant was executed, 25 unless: 26 (i) the Minister has issued a certificate approving an 27 application for such longer period; and 28 (ii) the eligible issuing officer is satisfied that there are 29 exceptional circumstances justifying such longer period. 30 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 103 [Page Break] Subdivision 5--Reporting and record-keeping 1 3ST Reporting on delayed notification search warrants 2 (1) The executing officer in relation to a delayed notification search 3 warrant, or the applicant for the warrant, must give a report on the 4 warrant to the chief officer who authorised the application for the 5 warrant. 6 (2) The report must be given to the chief officer as soon as practicable 7 after: 8 (a) the day on which the delayed notification search warrant was 9 executed; or 10 (b) if the warrant was not executed--the expiry of the warrant. 11 (3) The report must state the following: 12 (a) the address, location or other description of the warrant 13 premises; 14 (b) whether or not the delayed notification search warrant was 15 executed; 16 (c) whether the application was made in person or by telephone, 17 fax, email or other electronic means. 18 (4) If the delayed notification search warrant was executed, the report 19 must include the following information: 20 (a) the date on which the warrant was executed; 21 (b) the name of the executing officer; 22 (c) the name of any constable assisting and the kind of assistance 23 provided; 24 (d) the name of the occupier of the warrant premises, if known to 25 the executing officer; 26 (e) whether adjoining premises were entered under the warrant 27 and, if they were, the name of the occupier of the adjoining 28 premises, if known to the executing officer; 29 (f) the things that were done under the warrant; 30 (g) details of any thing at the warrant premises: 31 (i) seized; or 32 (ii) replaced with a substitute; or 33 (iii) copied, photographed or otherwise recorded; or 34 (iv) operated, printed, tested or sampled; 35 104 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (h) whether or not the execution of the warrant assisted in the 1 prevention of, or investigation into, a relevant offence; 2 (i) details of compliance with any conditions to which the 3 warrant was subject; 4 (j) details of any occupier's notice given in relation to the 5 warrant; 6 (k) details of any adjoining premises occupier's notice given in 7 relation to the warrant; 8 (l) details of any direction given under section 3SQ(4) or 3SR(4) 9 in relation to the warrant. 10 (5) If the delayed notification search warrant was not executed, the 11 report must state the reason why it was not executed. 12 (6) If the warrant premises were entered after the delayed notification 13 search warrant was executed for the purpose of returning a thing to, 14 or retrieving a thing left at, the warrant premises, a report in 15 relation to that entry must be provided to the chief officer who 16 authorised the application for the warrant. The report must include 17 the following information: 18 (a) the address, location or other description of the warrant 19 premises; 20 (b) the date on which the warrant premises were entered for the 21 purpose; 22 (c) the name of each constable and constable assisting who 23 entered the warrant premises; 24 (d) details of the thing returned or retrieved; 25 (e) if the thing was not returned or retrieved--the reason why the 26 thing was not returned or removed. 27 (7) A report under subsection (6) must be given as soon as practicable 28 after the warrant premises were entered as mentioned in that 29 subsection. 30 3SU Annual reports to Minister 31 (1) The chief officer of an authorising agency must give a report to the 32 Minister that includes the following information in respect of each 33 financial year: 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 105 [Page Break] (a) the number of applications for delayed notification search 1 warrants made in person by constables of the authorising 2 agency; 3 (b) the number of applications for delayed notification search 4 warrants made by telephone, fax, email or other electronic 5 means by constables of the authorising agency; 6 (c) the number of delayed notification search warrants issued as 7 a result of applications referred to in paragraphs (a) and (b) 8 and the relevant offences to which they related; 9 (d) the number of delayed notification search warrants that were 10 executed by a constable of the authorising agency; 11 (e) the number of delayed notification search warrants that were 12 executed by a constable of the authorising agency under 13 which: 14 (i) one or more things were seized from the warrant 15 premises; or 16 (ii) one or more things were placed in substitution at the 17 warrant premises for a seized thing; or 18 (iii) one or more things were returned to, or retrieved from, 19 the warrant premises; or 20 (iv) one or more things were copied, photographed or 21 otherwise recorded at the warrant premises; or 22 (v) things were operated, printed, tested or sampled at the 23 warrant premises; 24 (f) any other information relating to delayed notification search 25 warrants and the administration of this Division that the 26 Minister considers appropriate. 27 (2) The report must be given to the Minister as soon as practicable 28 after the end of each financial year, and in any event within 3 29 months after the end of the financial year. 30 (3) The Minister must cause a copy of the report to be laid before each 31 House of the Parliament within 15 sitting days of that House after 32 the Minister receives it. 33 3SV Keeping documents connected with delayed notification search 34 warrants 35 The chief officer of an authorising agency must cause the 36 following to be kept: 37 106 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) a copy of each authorisation issued by the chief officer under 1 section 3SD; 2 (b) a copy of each application for a delayed notification search 3 warrant made by a constable of the authorising agency, and a 4 statement of whether or not the application was granted or 5 refused; 6 (c) each delayed notification search warrant issued to a constable 7 of the authorising agency; 8 (d) a copy of each occupier's notice issued by an applicant or an 9 executing officer who is a constable of the authorising 10 agency, and each direction issued under subsection 3SQ(4) or 11 3SR(5) in relation to a delayed notification search warrant 12 issued as a result of an application made by a constable of the 13 authorising agency; 14 (e) a copy of each authorisation given by the chief officer under 15 subsection 3SS(3); 16 (f) a copy of each application for an extension of time within 17 which an occupier's notice or an adjoining premises 18 occupier's notice may be given; 19 (g) a copy of each extension under subsection 3SS(4) of the 20 period within which an occupier's notice or an adjoining 21 premises occupier's notice is to be given by an applicant or 22 an executing officer who is a constable of the authorising 23 agency; 24 (h) a copy of each adjoining premises occupier's notice issued by 25 an applicant or an executing officer who is a constable of the 26 authorising agency; 27 (i) each report given to the chief officer under section 3ST. 28 3SW Register of delayed notification search warrants 29 (1) The chief officer of an authorising agency must cause a register of 30 delayed notification search warrants to be kept. 31 (2) The register is to specify, for each delayed notification search 32 warrant sought by, or on behalf of, a constable of the authorising 33 agency: 34 (a) the date the warrant was issued or refused; and 35 (b) the name of the eligible issuing officer who issued or refused 36 to issue the warrant; and 37 (c) if the warrant was issued: 38 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 107 [Page Break] (i) the name of the applicant for the warrant and the 1 executing officer; and 2 (ii) the relevant offence in relation to which the warrant was 3 issued; and 4 (iii) if the warrant was executed--the date on which the 5 warrant was executed; and 6 (iv) the period of effect of the warrant; and 7 (v) whether an occupier's notice has been given in relation 8 to the warrant and, if such a notice has been given, the 9 date on which it was given; and 10 (vi) if the warrant authorised entry to adjoining premises-- 11 whether an adjoining premises occupier's notice has 12 been given and, if such a notice has been given, the date 13 on which it was given; and 14 (vii) whether an extension has been granted of the period 15 within which an occupier's notice or an adjoining 16 premises occupier's notice must be given, and the 17 period of any such extension or extensions; and 18 (viii) details of any direction given under section 3SQ(4) or 19 3SR(4) in relation to the warrant. 20 (3) The register is not a legislative instrument. 21 Subdivision 6--Inspections by Ombudsman 22 3SX Appointment of inspecting officers 23 (1) The Ombudsman may appoint members of the Ombudsman's staff 24 to be inspecting officers for the purposes of this Part. 25 (2) An appointment under subsection (1) must be in writing. 26 3SY Inspection of records by the Ombudsman 27 (1) The Ombudsman must, from time to time and at least once every 28 12 months, inspect the records of each authorising agency to 29 determine the extent of compliance with this Division by the 30 authorising agency and constables of the agency in relation to 31 delayed notification search warrants. 32 (2) For the purpose of an inspection under this section, the 33 Ombudsman: 34 108 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) may, after notifying the chief officer of the authorising 1 agency, enter at any reasonable time premises occupied by 2 the agency; and 3 (b) is entitled to have full and free access at all reasonable times 4 to all records of the agency that are relevant to the inspection; 5 and 6 (c) may require a member of staff of the agency to give the 7 Ombudsman any information that the Ombudsman considers 8 necessary, being information that is in the member's 9 possession, or to which the member has access, and that is 10 relevant to the inspection. 11 (3) The chief officer must ensure that members of staff of the agency 12 give the Ombudsman any assistance the Ombudsman reasonably 13 requires to enable the Ombudsman to perform functions under this 14 section. 15 (4) The Ombudsman may refrain from inspecting any records of the 16 agency concerned that are relevant to the obtaining or execution of 17 a delayed notification search warrant until after an occupier's 18 notice has been given in relation to the warrant. 19 3SZ Power to obtain relevant information 20 (1) If the Ombudsman has reasonable grounds to believe that a law 21 enforcement officer is able to give information relevant to an 22 inspection under this Division of an authorising agency's records, 23 subsections (2) and (3) have effect. 24 (2) The Ombudsman may, by writing given to the law enforcement 25 officer, require the law enforcement officer to give the information 26 to the Ombudsman: 27 (a) by writing signed by the law enforcement officer; and 28 (b) at a specified place and within a specified period. 29 (3) The Ombudsman may, by writing given to the law enforcement 30 officer, require the officer to attend: 31 (a) before a specified inspecting officer; and 32 (b) at a specified place; and 33 (c) within a specified period or at a specified time on a specified 34 day; 35 to answer questions relevant to the inspection. 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 109 [Page Break] (4) If the Ombudsman: 1 (a) has reasonable grounds to believe that a law enforcement 2 officer of an authorising agency is able to give information 3 relevant to an inspection under this Division of an authorising 4 agency's records; and 5 (b) does not know the law enforcement officer's identity; 6 the Ombudsman may, by writing given to the chief officer of the 7 agency, require the chief officer, or a person nominated by the 8 chief officer, to attend: 9 (c) before a specified inspecting officer; and 10 (d) at a specified place; and 11 (e) within a specified period or at a specified time on a specified 12 day; 13 to answer questions relevant to the inspection. 14 (5) The place, and the period or the time and day, specified in a 15 requirement under this section, must be reasonable having regard 16 to the circumstances in which the requirement is made. 17 (6) In this section: 18 law enforcement officer means: 19 (a) the Commissioner of the Australian Federal Police, a Deputy 20 Commissioner of the Australian Federal Police, an AFP 21 employee or a special member of the Australian Federal 22 Police (all within the meaning of the Australian Federal 23 Police Act 1979); or 24 (b) a member of the police force or police service of a State or 25 Territory. 26 3SZA Offence 27 A person commits an offence if: 28 (a) the person is required under section 3SZ to attend before 29 another person, to give information or to answer questions; 30 and 31 (b) the person refuses or fails to do so. 32 Penalty: Imprisonment for 6 months. 33 110 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 3SZB Ombudsman to be given information and access despite other 1 laws 2 (1) Despite any other law, a person is not excused from giving 3 information, answering a question, or giving access to a document, 4 as and when required under this Division, on the ground that giving 5 the information, answering the question, or giving access to the 6 document, as the case may be: 7 (a) would contravene a law; or 8 (b) would be contrary to the public interest; or 9 (c) might tend to incriminate the person or make the person 10 liable to a penalty; or 11 (d) would disclose one of the following: 12 (i) a legal advice given to a Minister, a Department or a 13 prescribed authority; 14 (ii) a communication between an officer of a Department or 15 of a prescribed authority and another person or body, 16 being a communication protected against disclosure by 17 legal professional privilege. 18 (2) However, if the person is a natural person: 19 (a) the information, the answer, or the fact that the person has 20 given access to the document, as the case may be; and 21 (b) any information or thing (including a document) obtained as 22 a direct or indirect consequence of giving the information, 23 answering the question or giving access to the document; 24 is not admissible in evidence against the person except in a 25 proceeding by way of a prosecution for an offence against 26 section 3SZG or against Part 7.4 or 7.7 of the Criminal Code. 27 (3) Nothing in section 3SZG or any other law prevents a law 28 enforcement officer or a member of staff of an authorising agency 29 from: 30 (a) giving information to an inspecting officer (whether orally or 31 in writing and whether or not in answer to a question); or 32 (b) giving access to a record of the authorising agency to an 33 inspecting officer; 34 for the purposes of an inspection under this Division of the 35 authorising agency's records. 36 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 111 [Page Break] (4) Nothing in section 3SZG or any other law prevents a law 1 enforcement officer or a member of staff of an authorising agency 2 from making a record of information, or causing a record of 3 information to be made, for the purposes of giving the information 4 to a person as permitted by subsection (3). 5 (5) The fact that a person is not excused under subsection (1) from 6 furnishing information, producing a document or other record or 7 answering a question does not otherwise affect a claim of legal 8 professional privilege that anyone may make in relation to that 9 information, document or other record or answer. 10 (6) In this section: 11 prescribed authority has the same meaning as in the Ombudsman 12 Act 1976. 13 3SZC Exchange of information between Ombudsman and State 14 inspecting authorities 15 (1) In this section: 16 State or Territory agency means the police force or police service 17 of a State or Territory. 18 State or Territory inspecting authority, in relation to a State or 19 Territory agency, means the authority that, under the law of the 20 State or Territory concerned, has the function of making 21 inspections of a similar kind to those provided for in section 3SY. 22 (2) The Ombudsman may give information that: 23 (a) relates to a State or Territory agency; and 24 (b) was obtained by the Ombudsman under this Division; 25 to the State or Territory inspecting authority in relation to the 26 agency. 27 (3) The Ombudsman may only give information to an authority under 28 subsection (2) if the Ombudsman is satisfied that the giving of the 29 information is necessary to enable the authority to perform its 30 functions in relation to the State or Territory agency. 31 (4) The Ombudsman may receive from a State or Territory inspecting 32 authority information relevant to the performance of the 33 Ombudsman's functions under this Division. 34 112 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 3SZD Delegation by Ombudsman 1 (1) The Ombudsman may delegate: 2 (a) to an APS employee responsible to the Ombudsman; or 3 (b) to a person having similar oversight functions to the 4 Ombudsman under the law of a State or Territory or to an 5 employee responsible to that person; 6 all or any of the Ombudsman's powers under this Division other 7 than a power to report to the Minister. 8 (2) A delegate must, upon request by a person affected by the exercise 9 of any power delegated to the delegate, produce the instrument of 10 delegation, or a copy of the instrument, for inspection by the 11 person. 12 3SZE Ombudsman not to be sued 13 (1) The Ombudsman, an inspecting officer, or a person acting under an 14 inspecting officer's direction or authority, is not liable to an action, 15 suit or proceeding for or in relation to an act done, or omitted to be 16 done, in good faith in the performance or exercise, or the purported 17 performance or exercise, of a function or power conferred by this 18 Division. 19 (2) A reference in this section to the Ombudsman includes a reference 20 to a Deputy Ombudsman or a delegate of the Ombudsman. 21 3SZF Report on inspection 22 (1) The Ombudsman must make a written report to the Minister at 6 23 monthly intervals on the results of each inspection under 24 section 3SY. 25 (2) The Minister must cause a copy of the report to be laid before each 26 House of the Parliament within 15 sitting days of that House after 27 the Minister receives it. 28 Subdivision 7--Offence relating to unauthorised disclosure 29 3SZG Unauthorised disclosure of information 30 (1) A person commits an offence if: 31 (a) the person discloses information; and 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 113 [Page Break] (b) the information relates to: 1 (i) an application for a delayed notification search warrant; 2 or 3 (ii) the execution of a delayed notification search warrant; 4 or 5 (iii) a report under section 3ST; or 6 (iv) an occupier's notice or an adjoining premises occupier's 7 notice in relation to warrant premises, or adjoining 8 premises, as the case requires, entered under a delayed 9 notification search warrant. 10 Penalty: Imprisonment for 2 years. 11 (2) Each of the following is an exception to the prohibition in 12 subsection (1): 13 (a) the disclosure is in connection with the administration or 14 execution of this Part; or 15 (b) the disclosure is for the purposes of any legal proceeding 16 arising out of or otherwise related to this Part or of any report 17 of any such proceedings; or 18 (c) the disclosure is in accordance with any requirement imposed 19 by law; or 20 (d) the disclosure is for the purposes of: 21 (i) the performance of duties or functions or the exercise of 22 powers under or in relation to this Part; or 23 (ii) the performance of duties or functions or the exercise of 24 powers by a law enforcement officer or an intelligence 25 officer; or 26 (e) an occupier's notice or an adjoining premises occupier's 27 notice has been given to the occupier of the warrant premises, 28 or of the adjoining premises, as the case requires, entered 29 under the delayed notification search warrant; or 30 (f) a direction has been given under subsection 3SQ(4) or 31 3SR(4) in respect of the warrant premises or the adjoining 32 premises. 33 Note: A defendant bears an evidential burden in relation to a matter in 34 subsection (2)--see subsection 13.3(3) of the Criminal Code. 35 9 At the end of section 3ZS 36 Add: 37 114 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (3) This section does not apply to a delayed notification search 1 warrant. 2 10 Paragraph 3ZU(a) 3 Omit "section 3R", insert "section 3R or 3SF (an applicable section)". 4 11 Paragraphs 3ZU(b), (c) and (d) 5 Omit "warrant under that section", insert "warrant under an applicable 6 section". 7 12 At the end of section 3ZV 8 Add: 9 (3) Nothing in this section requires a thing seized under a delayed 10 notification search warrant to be returned until after an occupier's 11 notice has been given in relation to the premises from which the 12 thing was seized. 13 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 115 [Page Break] 1 Schedule 3--Amendment of the Australian 2 Crime Commission Act 2002 3 4 1 Subsection 4(1) 5 Insert: 6 constable means a member or special member of the Australian 7 Federal Police or a member of the police force or police service of 8 a State. 9 2 Subsection 4(1) 10 Insert: 11 conveyance includes an aircraft, vehicle or vessel. 12 3 Subsection 4(1) (definition of eligible person) 13 Repeal the definition, substitute: 14 eligible person means a member of the staff of the ACC who is 15 also a member of: 16 (a) the Australian Federal Police; or 17 (b) the police force or police service of a State. 18 4 Subsection 4(1) 19 Insert: 20 executing officer, in relation to a warrant issued under section 22, 21 means: 22 (a) the person named in the warrant by the issuing officer under 23 paragraph 22(5)(e) as being responsible for executing the 24 warrant; or 25 (b) another person whose name has been inserted in the warrant 26 by, or on behalf of, the person mentioned in paragraph (a). 27 5 Subsection 4(1) 28 Insert: 29 frisk search means: 30 116 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) a search of a person conducted by quickly running the hands 1 over the person's outer garments; and 2 (b) an examination of anything worn or carried by the person 3 that is conveniently and voluntarily removed by the person. 4 6 Subsection 4(1) (at the end of the definition of intelligence 5 operation) 6 Add "and, to avoid doubt, may involve the investigation of matters 7 relating to federally relevant criminal activity". 8 7 Subsection 4(1) (at the end of the definition of issuing 9 officer) 10 Add: 11 ; or (d) a Magistrate. 12 8 Subsection 4(1) 13 Insert: 14 ordinary search means a search of a person or of articles in the 15 possession of a person that may include: 16 (a) requiring the person to remove his or her overcoat, coat or 17 jacket and any gloves, shoes and hat; and 18 (b) an examination of those items. 19 9 Subsection 4(1) 20 Insert: 21 premises includes a place and a conveyance. 22 10 Subsection 4(1) 23 Insert: 24 seizable item means anything that would present a danger to a 25 person or that could be used to assist a person to escape from 26 lawful custody. 27 11 Subsection 4(1) 28 Insert: 29 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 117 [Page Break] relevant thing means a thing of a particular kind that is connected 1 with a special ACC operation/investigation and includes (but is not 2 limited to) each of the following: 3 (a) a document; 4 (b) a thing in electronic form; 5 (c) a thing that may be used in evidence in proceedings for the 6 taking, by or on behalf of the Crown in right of the 7 Commonwealth, of a State or of a Territory, of civil remedies 8 in respect of a matter connected with, or arising out of, an 9 offence to which the special ACC operation/investigation 10 relates. 11 12 Subsection 4(1) 12 Insert: 13 warrant premises means premises in relation to which a warrant 14 under section 22 is in force. 15 13 Subsection 4A(6) (at the end of the definition of 16 intelligence operation) 17 Add "and, to avoid doubt, may involve the investigation of matters 18 relating to a relevant criminal activity". 19 14 After section 21 20 Insert: 21 Division 1B--Search warrants 22 15 Paragraph 22(1)(a) 23 Repeal the paragraph, substitute: 24 (a) the eligible person has reasonable grounds for suspecting 25 that, on a particular day, there may be upon or in any 26 premises a relevant thing; and 27 (ba) the particular day is: 28 (i) the day on which the application is made; or 29 (ii) a day within one month after the day on which the 30 application is made; and 31 16 Subsection 22(2) 32 118 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Repeal the subsection, substitute: 1 (2) Where an application under subsection (1) is made to an issuing 2 officer, the issuing officer may issue a warrant authorising the 3 executing officer to do one or more of the following: 4 (a) enter upon or into the warrant premises; 5 (b) search the warrant premises for relevant things; 6 (c) seize any relevant things found upon or in the warrant 7 premises and deliver things so seized to any person 8 participating in the special ACC operation/investigation; 9 (d) conduct an ordinary search or a frisk search of a person who 10 is at or near the warrant premises when the warrant is 11 executed if the executing officer suspects on reasonable 12 grounds that the person has any relevant thing or seizable 13 item in his or her possession. 14 17 Paragraph 22(5)(a) 15 Omit "and with which the things of the relevant kind", substitute "with 16 which the relevant things". 17 18 At the end of paragraphs 22(5)(a) and (b) 18 Add "and". 19 19 At the end of subsection 22(5) 20 Add: 21 ; and (e) state the name of the person who, unless he or she inserts, or 22 permits the insertion of, the name of another person in the 23 warrant, is to be responsible for executing the warrant. 24 20 Subsection 22(6) 25 Repeal the subsection, substitute: 26 (6) A warrant issued under this section may be executed, in accordance 27 with its terms, at any time during the period: 28 (a) commencing on the particular day mentioned in 29 paragraph (1)(a); and 30 (b) ending on the date specified in the warrant as the date upon 31 which the warrant ceases to have effect. 32 21 Subsection 22(6A) 33 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 119 [Page Break] Repeal the subsection. 1 22 Subsection 22(7) 2 Omit "of the relevant kind, the person executing the warrant", substitute 3 "relevant to a special ACC operation/investigation, the executing officer 4 or a person assisting". 5 23 Paragraph 22(8)(b) 6 Omit all the words after "the Attorney-General of the Commonwealth", 7 substitute "or another person or body in accordance with subsection 8 12(1) or (1A)". 9 24 Subsections 22(11) and (13) 10 Repeal the subsections. 11 25 After section 22 12 Insert: 13 22A Issue of search warrants 14 (1) An issuing officer in New South Wales or the Australian Capital 15 Territory may issue a warrant in relation to premises in the Jervis 16 Bay Territory. 17 (2) An issuing officer in a State or in the Jervis Bay Territory may: 18 (a) issue a warrant in relation to premises in that State or 19 Territory; or 20 (b) issue a warrant in relation to premises in an external 21 Territory; or 22 (c) if the issuing officer is in a State--issue a warrant in relation 23 to premises in another State or the Jervis Bay Territory if he 24 or she is satisfied that there are special circumstances that 25 make the issue of the warrant appropriate; or 26 (d) if the issuing officer is in the Jervis Bay Territory--issue a 27 warrant in relation to premises in a State if he or she is 28 satisfied that there are special circumstances that make the 29 issue of the warrant appropriate. 30 26 After section 23 31 Insert: 32 120 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 23A Availability of assistance and use of force in executing a 1 warrant 2 In executing a warrant issued under section 22: 3 (a) the executing officer may obtain such assistance; and 4 (b) the executing officer, or a person who is a constable and who 5 is assisting in executing the warrant, may use such force 6 against persons and things; and 7 (c) a person who is not a constable and who is assisting in 8 executing the warrant may use such force against things; 9 as is necessary and reasonable in the circumstances. 10 23B Details of warrant to be given to occupier etc. 11 (1) If a warrant issued under section 22 is being executed and the 12 occupier of the warrant premises, or another person who apparently 13 represents the occupier, is present at the warrant premises, the 14 executing officer or a person assisting must make available to that 15 person a copy of the warrant. 16 (2) The executing officer or a person assisting must show a copy of the 17 warrant to any person searched under the warrant. 18 (3) The executing officer must identify himself or herself to the person 19 at the warrant premises or the person being searched, as the case 20 may be. 21 (4) The copy of the warrant referred to in subsection (1) need not 22 include the signature of the issuing officer. 23 23C Specific powers available to executing officer 24 (1) In executing a warrant issued under section 22, the executing 25 officer or a person assisting may: 26 (a) for a purpose incidental to the execution of the warrant; or 27 (b) if the occupier of the premises consents in writing; 28 take photographs (including video recordings) of the premises or of 29 things at the premises. 30 (2) If a warrant issued under section 22 is being executed, the 31 executing officer and the persons assisting may, if the warrant is 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 121 [Page Break] still in force, complete the execution of the warrant after all of 1 them temporarily cease its execution and leave the premises: 2 (a) for not more than one hour; or 3 (b) for a longer period if the occupier of the premises consents in 4 writing. 5 (3) If: 6 (a) the execution of a warrant is stopped by an order of a court; 7 and 8 (b) the order is later revoked or reversed on appeal; and 9 (c) the warrant is still in force; 10 the execution of the warrant may be completed. 11 23D Use of equipment to examine or process things 12 (1) The executing officer or a person assisting may bring to the 13 warrant premises any equipment reasonably necessary for the 14 examination or processing of a thing found at the warrant premises 15 in order to determine whether it is a relevant thing. 16 (2) A thing found at the warrant premises may be moved to another 17 place for examination or processing in order to determine whether 18 it is a relevant thing if: 19 (a) both of the following apply: 20 (i) it is significantly more practicable to do so having 21 regard to the timeliness and cost of examining or 22 processing the thing at another place and the availability 23 of expert assistance; 24 (ii) there are reasonable grounds to believe that the thing 25 contains or constitutes a relevant thing; or 26 (b) the occupier of the warrant premises consents in writing. 27 (3) If a thing is moved to another place for the purpose of examination 28 or processing under subsection (2), the executing officer must, if it 29 is practicable to do so: 30 (a) inform the occupier of the address of the place and the time 31 at which the examination or processing will be carried out; 32 and 33 (b) allow the occupier or his or her representative to be present 34 during the examination or processing. 35 122 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (4) The thing may be moved to another place for examination or 1 processing for no longer than 72 hours. 2 (5) An executing officer may apply to an issuing officer for one or 3 more extensions of that time if the executing officer believes on 4 reasonable grounds that the thing cannot be examined or processed 5 within 72 hours or that time as previously extended. 6 (6) The executing officer must give notice of the application to the 7 occupier of the warrant premises, and the occupier is entitled to be 8 heard in relation to the application. 9 (7) The executing officer or a person assisting may operate equipment 10 already at the warrant premises to carry out the examination or 11 processing of a thing found at the warrant premises in order to 12 determine whether it is a relevant thing if the executing officer or 13 person assisting believes on reasonable grounds that: 14 (a) the equipment is suitable for the examination or processing; 15 and 16 (b) the examination or processing can be carried out without 17 damage to the equipment or the thing. 18 23E Use of electronic equipment at warrant premises 19 (1) The executing officer or a person assisting may operate electronic 20 equipment at the warrant premises to access data (including data 21 not held at the warrant premises) if he or she believes on 22 reasonable grounds that: 23 (a) the data might constitute a relevant thing; and 24 (b) the equipment can be operated without damaging the relevant 25 thing. 26 Note: An executing officer can obtain an order requiring a person with 27 knowledge of a computer or computer system to provide assistance-- 28 see section 23F. 29 (2) If the executing officer or a person assisting believes on reasonable 30 grounds that any data accessed by operating the electronic 31 equipment might constitute a relevant thing, he or she may: 32 (a) copy the data to a disk, tape or other associated device 33 brought to the warrant premises; or 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 123 [Page Break] (b) if the occupier of the warrant premises agrees in writing-- 1 copy the data to a disk, tape or other associated device at the 2 warrant premises; 3 and take the device from the warrant premises. 4 (3) If: 5 (a) the executing officer or a person assisting takes the device 6 from the warrant premises; and 7 (b) the CEO is satisfied that the data is not required (or is no 8 longer required) for: 9 (i) the purpose for which the data was originally accessed; 10 or 11 (ii) investigating an offence against the law of the 12 Commonwealth, a State or a Territory; or 13 (iii) judicial proceedings or administrative review 14 proceedings; or 15 (iv) investigating or resolving a complaint against the 16 executing officer; 17 the CEO must arrange for: 18 (c) the removal of the data from any device in the control of the 19 ACC; and 20 (d) the destruction of any other reproduction of the data in the 21 control of the ACC. 22 (4) If the executing officer or a person assisting, after operating the 23 equipment, finds that relevant things are accessible by doing so, he 24 or she may: 25 (a) seize the equipment and any disk, tape or other associated 26 device; or 27 (b) if the relevant things can, by using facilities at the warrant 28 premises, be put in documentary form--operate the facilities 29 to put the relevant things in that form and seize the 30 documents so produced. 31 (5) An executing officer or a person assisting may seize equipment 32 under paragraph (4)(a) only if: 33 (a) it is not practicable to copy the data as mentioned in 34 subsection (2) or to put the relevant things in documentary 35 form as mentioned in paragraph (4)(b); or 36 (b) possession by the occupier of the equipment could constitute 37 an offence. 38 124 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (6) If the executing officer or a person assisting believes on reasonable 1 grounds that: 2 (a) relevant things may be accessible by operating electronic 3 equipment at the warrant premises; and 4 (b) expert assistance is required to operate the equipment; and 5 (c) if he or she does not take action under this subsection, the 6 relevant things may be destroyed, altered or otherwise 7 interfered with; 8 he or she may do whatever is necessary to secure the equipment, 9 whether by locking it up, placing a guard or otherwise. 10 (7) The executing officer or a person assisting must give notice to the 11 occupier of the warrant premises of his or her intention to secure 12 equipment and of the fact that the equipment may be secured for up 13 to 24 hours. 14 (8) The equipment may be secured: 15 (a) for a period not exceeding 24 hours; or 16 (b) until the equipment has been operated by the expert; 17 whichever happens first. 18 (9) If the executing officer or a person assisting believes on reasonable 19 grounds that the expert assistance will not be available within 24 20 hours, he or she may apply to the issuing officer for an extension of 21 that period. 22 (10) The executing officer or a person assisting must give notice to the 23 occupier of the warrant premises of his or her intention to apply for 24 an extension, and the occupier is entitled to be heard in relation to 25 the application. 26 (11) The provisions of Division 1A and of this Division relating to the 27 issue of warrants apply, with such modifications as are necessary, 28 to the issuing of an extension. 29 23F Person with knowledge of a computer or a computer system to 30 assist access etc. 31 (1) The executing officer may apply to an issuing officer for an order 32 requiring a specified person to provide any information or 33 assistance that is reasonable and necessary to allow the executing 34 officer to do one or more of the following: 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 125 [Page Break] (a) access data held in, or accessible from, a computer that is on 1 warrant premises; 2 (b) copy the data to a data storage device; 3 (c) convert the data into documentary form. 4 (2) The issuing officer may grant the order if the issuing officer is 5 satisfied that: 6 (a) there are reasonable grounds for suspecting that relevant 7 things are held in, or are accessible from, the computer; and 8 (b) the specified person is: 9 (i) reasonably suspected of having committed the offence 10 stated in the relevant warrant; or 11 (ii) the owner or lessee of the computer; or 12 (iii) an employee or contractor of the owner or lessee of the 13 computer; or 14 (iv) a consultant engaged by the owner or lessee of the 15 computer; and 16 (c) the specified person has relevant knowledge of: 17 (i) the computer or a computer network of which the 18 computer forms a part; or 19 (ii) measures applied to protect data held in, or accessible 20 from, the computer. 21 (3) A person commits an offence if the person fails to comply with the 22 order. 23 Penalty: 6 months imprisonment. 24 (4) In this section: 25 contractor, of the owner or lessee of a computer, means: 26 (a) a person who performs work or provides services for the 27 owner or lessee under a contract for services (the head 28 contract); or 29 (b) a person who performs work or provides services under a 30 contract for services with a person who is a contractor 31 (because of a previous application of this definition), being 32 work or services covered by the head contract. 33 126 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 23G Accessing data held on other premises--notification to occupier 1 of that premises 2 (1) If: 3 (a) data that is held on premises other than the warrant premises 4 is accessed under subsection 23E(1); and 5 (b) it is practicable to notify the occupier of the other premises 6 that the data has been accessed under a warrant issued under 7 section 22; 8 the executing officer must: 9 (c) do so as soon as practicable; and 10 (d) if the executing officer has arranged, or intends to arrange, 11 for continued access to the data under subsection 23E(2) or 12 (4)--include that information in the notification. 13 (2) A notification under subsection (1) must include sufficient 14 information to allow the occupier of the other premises to contact 15 the executing officer. 16 23H Compensation for damage to electronic equipment 17 (1) This section applies if: 18 (a) as a result of equipment being operated as mentioned in 19 section 23D or 23E: 20 (i) damage is caused to the equipment; or 21 (ii) the data recorded on the equipment is damaged; or 22 (iii) programs associated with the use of the equipment, or 23 with the use of the data, are damaged or corrupted; and 24 (b) the damage or corruption occurs because: 25 (i) insufficient care was exercised in selecting the person 26 who was to operate the equipment; or 27 (ii) insufficient care was exercised by the person operating 28 the equipment. 29 (2) The Commonwealth must pay the owner of the equipment, or the 30 user of the data or programs, such reasonable compensation for the 31 damage or corruption as the Commonwealth and the owner or user 32 agree on. 33 (3) However, if the owner or user and the Commonwealth fail to agree, 34 the owner or user may institute proceedings in the Federal Court of 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 127 [Page Break] Australia for such reasonable amount of compensation as the Court 1 determines. 2 (4) In determining the amount of compensation payable, regard is to be 3 had to whether the occupier of the premises, or the occupier's 4 employees or agents, if they were available at the time, provided 5 any appropriate warning or guidance on the operation of the 6 equipment. 7 (5) Compensation is payable out of money appropriated by the 8 Parliament. 9 (6) For the purposes of subsection (1): 10 damage, in relation to data, includes damage by erasure of data or 11 addition of other data. 12 23J Copies of seized things to be provided 13 (1) Subject to subsection (2), if the executing officer or a person 14 assisting seizes, under a warrant issued under section 22: 15 (a) a document, film, computer file or other thing that can be 16 readily copied; or 17 (b) a storage device, the information in which can be readily 18 copied; 19 the executing officer or the person assisting must, if requested to 20 do so by the occupier of the warrant premises, or another person 21 who apparently represents the occupier, and who is present when 22 the warrant is executed, give a copy of the thing or the information 23 to that person as soon as practicable after the seizure. 24 (2) Subsection (1) does not apply if: 25 (a) the thing that has been seized was seized under subsection 26 23E(2) or paragraph 23E(4)(b); or 27 (b) possession by the occupier of the document, film, computer 28 file, thing or information could constitute an offence. 29 23K Occupier entitled to be present during search 30 (1) If a warrant issued under section 22 is being executed and the 31 occupier of the premises, or another person who apparently 32 represents the occupier, is present at the premises, the person is, 33 128 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] subject to Part IC of the Crimes Act 1914, entitled to observe the 1 search being conducted. 2 (2) The right to observe the search being conducted ceases if the 3 person impedes the search. 4 (3) This section does not prevent 2 or more areas of the premises being 5 searched at the same time. 6 23L Receipts for things seized under warrant 7 (1) If a thing is seized under a warrant issued under section 22 or 8 moved under subsection 23D(2), the executing officer or a person 9 assisting must provide a receipt for the thing. 10 (2) If 2 or more things are seized or moved, they may be covered in the 11 one receipt. 12 23M Announcement before entry 13 (1) An executing officer or a person assisting must, before any person 14 enters premises under a warrant: 15 (a) announce that he or she is authorised to enter the premises; 16 and 17 (b) give any person at the premises an opportunity to allow entry 18 to the premises. 19 (2) An executing officer or a person assisting is not required to comply 20 with subsection (1) if he or she believes on reasonable grounds that 21 immediate entry to the premises is required to ensure: 22 (a) the safety of a person; or 23 (b) that the effective execution of the warrant is not frustrated. 24 23N Dealing with seized electronic equipment 25 (1) This section applies to electronic equipment seized under this 26 Division. 27 (2) The electronic equipment may be operated at any location after it 28 has been seized, for the purpose of determining whether data that 29 constitutes a relevant thing is held on or accessible from the 30 electronic equipment, and obtaining access to such data. 31 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 129 [Page Break] (3) The data referred to in subsection (2) includes, but is not limited to 1 the following: 2 (a) data held on the electronic equipment, including data held on 3 the electronic equipment when operated under this section 4 that was not held on the electronic equipment at the time the 5 electronic equipment was seized; 6 (b) data not held on the electronic equipment but accessible by 7 using it, including data that was not accessible at the time the 8 electronic equipment was seized. 9 (4) If the electronic equipment was seized under a warrant, the 10 electronic equipment may be operated before or after the expiry of 11 the warrant. 12 (5) This section does not limit the operation of other provisions of this 13 Division that relate to dealing with seized items. 14 Division 1C--Order for delivery to examiner of passport of 15 witness 16 27 At the end of subsection 25A(2) 17 Add: 18 Note: An examiner may refuse to permit a particular legal practitioner from 19 representing a person giving evidence--see section 25B. 20 28 Subsection 25A(10) 21 After "the CEO", insert "or an examiner". 22 29 Subsection 25A(10) 23 Omit "a direction under subsection (9)", substitute "the direction". 24 30 Subsection 25A(11) 25 After "The CEO", insert "or an examiner". 26 31 After section 25A 27 Insert: 28 130 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 25B Refusal to allow particular legal representative 1 (1) Subsection 25A(2) does not prevent an examiner from refusing to 2 permit a particular legal practitioner to represent a person giving 3 evidence if the examiner believes on reasonable grounds that to do 4 so would reasonably be expected to prejudice the effectiveness of 5 the special ACC operation/investigation to which the examination 6 relates. 7 (2) If an examiner refuses, under subsection (1), to permit a particular 8 legal practitioner to represent a person giving evidence, the 9 examiner may adjourn the examination for such period as the 10 examiner thinks is reasonable to enable the person to find an 11 alternative legal practitioner to represent the person. 12 32 Subsection 28(1) 13 Repeal the subsection, substitute: 14 (1) An examiner may summon a person to do one or more of the 15 following: 16 (a) appear before the examiner at an examination to give 17 evidence; 18 (b) produce such documents or other things (if any) as are 19 referred to in the summons; 20 (c) give evidence by tendering a written statement and, if the 21 examiner so requires, verifying the written statement by oath 22 or affirmation. 23 33 After subsection 28(1) 24 Insert: 25 (2A) If a person is required under paragraph 28(1)(c) to give evidence 26 by tendering a written statement, a reference in this Division to a 27 requirement to appear before an examiner or to answer a question 28 at an examination before an examiner is taken to include a 29 reference to the requirement to give a written statement. 30 34 Paragraph 29B(2)(e) 31 Omit "at an examination before an examiner". 32 35 Subsection 29B(4) 33 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 131 [Page Break] Repeal the subsection, substitute: 1 (4) A person to whom information has been disclosed, as permitted by 2 subsection (2) or this subsection, may disclose that information: 3 (a) to a legal practitioner for the purpose of obtaining legal 4 advice or representation relating to the summons, notice or 5 matter; or 6 (b) if the person is an officer or agent of a body corporate 7 referred to in paragraph (2)(d): 8 (i) to another officer or agent of the body corporate for the 9 purpose of ensuring compliance with the summons or 10 notice; or 11 (ii) to a legal aid officer for the purpose of obtaining 12 assistance under section 27 relating to the summons, 13 notice or matter; or 14 (c) if the person is a legal practitioner--for the purpose of giving 15 legal advice, making representations, or obtaining assistance 16 under section 27, relating to the summons, notice or matter; 17 or 18 (d) in accordance with the circumstances, if any, specified in the 19 notation. 20 36 Paragraph 30(3)(a) 21 Omit "at an examination before an examiner". 22 37 Paragraph 30(4)(a) 23 Omit "appearing as a witness before an examiner". 24 38 Paragraph 30(4)(c) 25 Before "before answering the question", insert "subject to 26 subsection (4A),". 27 39 After subsection 30(4) 28 Insert: 29 (4A) An examiner may, at any time during a person's appearance as a 30 witness at an examination before the examiner, determine that the 31 person is taken to satisfy paragraph (4)(c) in relation to: 32 (a) a question or class of questions; or 33 (b) a document or class of documents; or 34 132 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (c) a thing or class of things. 1 40 Subparagraph 30(5)(d)(i) 2 After "the falsity of the answer", insert "or another statement (including 3 a written statement)". 4 41 Subparagraph 30(5)(d)(ii) 5 After "contained in the document", insert "or the falsity of another 6 statement (including a written statement)". 7 42 After subsection 30(5) 8 Insert: 9 (5A) The making of a determination under subsection (4A) does not 10 affect the use of an answer, a document or a thing in a proceeding 11 for an offence against section 35 (which relates to obstructing or 12 hindering the ACC or an examiner). 13 43 Subsection 31(2) 14 Omit ", vessel, aircraft or vehicle". 15 44 Subsection 33(1) 16 Omit ", at an examination before an examiner, give evidence", 17 substitute "give evidence to an examiner". 18 45 After subsection 33(1) 19 Insert: 20 (1A) Subsection (1) does not apply if the evidence is not false or 21 misleading in a material particular. 22 Note: A defendant bears an evidential burden in relation to the matter in 23 subsection (1A)--see subsection 13.3(3) of the Criminal Code. 24 46 Subsection 55A(14) (at the end of the definition of 25 intelligence operation) 26 Add "and, to avoid doubt, may involve the investigation of matters 27 relating to a relevant criminal activity". 28 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 133 [Page Break] 1 Schedule 4--Amendment of the Witness 2 Protection Act 1994 3 4 1 Section 3 5 Insert: 6 current NWPP identity, in relation to a participant at a particular 7 time, means an identity: 8 (a) provided to the participant under the NWPP; and 9 (b) being used by the participant at that time. 10 2 Section 3 11 Insert: 12 former NWPP identity, in relation to a participant at a particular 13 time, means an identity that: 14 (a) was provided to the person under the NWPP before that time; 15 and 16 (b) is not the participant's current NWPP identity at that time. 17 3 Section 3 18 Insert: 19 former participant means a person who has ceased to be included 20 in the NWPP. 21 4 Section 3 22 Insert: 23 information, in relation to the identity of a person includes, but is 24 not limited to, information about one or more of the following in 25 relation to the person: 26 (a) appearance; 27 (b) voice quality or accent; 28 (c) mannerisms; 29 (d) address or location; 30 (e) particular skills and qualifications; 31 (f) personal history. 32 134 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] 5 Section 3 1 Insert: 2 original identity, in relation to a participant, means the identity of 3 the participant at the time he or she was first included in the 4 NWPP. 5 6 Section 3 (definition of participant) 6 Repeal the definition, substitute: 7 participant means a person who is included in the NWPP and, 8 unless the contrary intention appears, includes a former participant. 9 7 Section 3 10 Insert: 11 State offence that has a federal aspect has the meaning given by 12 section 3B. 13 8 Section 3 14 Insert: 15 State participant means a participant: 16 (a) in relation to a State offence that has a federal aspect; or 17 (b) in relation to a State offence that does not have a federal 18 aspect; or 19 (c) in relation to a commission or inquiry under a law of a State. 20 9 Section 3 21 Insert: 22 Territory participant means a participant: 23 (a) in relation to an offence against a law of a Territory; or 24 (b) in relation to a commission or inquiry under a law of a 25 Territory. 26 10 Section 3 (paragraph (e) of the definition of witness) 27 Omit "such a person", substitute "a person referred to in paragraph (a), 28 (b), (c) or (d)". 29 11 After section 3A 30 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 135 [Page Break] Insert: 1 3B State offence that has a federal aspect 2 An offence against a law of a State is taken, for the purposes of this 3 Act, to be a State offence that has a federal aspect: 4 (a) in a case where the offence is being investigated by the 5 Australian Federal Police--if it would be taken to be a State 6 offence that has a federal aspect under section 4AA of the 7 Australian Federal Police Act 1979; and 8 (b) in a case where the offence is being investigated by the 9 Australian Crime Commission--if it would be taken to be a 10 State offence that has a federal aspect under section 4A of the 11 Australian Crime Commission Act 2002; and 12 (c) in any other case--if it would be taken to be a State offence 13 that has a federal aspect if either of the sections referred to in 14 paragraphs (a) and (b) were to apply. 15 12 At the end of section 8 16 Add: 17 (6) In this section: 18 participant does not include a former participant. 19 13 At the end of section 9 20 Add: 21 (8) In this section: 22 participant does not include a former participant. 23 (9) To avoid doubt, subsection (8) does not affect any obligation of a 24 former participant under a memorandum of understanding if the 25 obligation continues (whether expressly or impliedly) to have 26 effect after the former participant ceased to be included in the 27 NWPP. 28 14 Paragraph 11(3)(b) 29 After "name", insert "for each new identity". 30 15 Paragraph 11(3)(e) 31 136 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Repeal the paragraph, substitute: 1 (e) in the case of a former participant--the date on which the 2 person became a former participant. 3 16 At the end of section 13 4 Add: 5 (5) The Commissioner may take the actions referred to in 6 subsections (1) and (2) in respect of a former participant or any 7 other person (a related person) whose relationship with the former 8 participant is such that the Commissioner is satisfied that it is 9 appropriate to take those actions, if: 10 (a) the Commissioner considers the actions necessary and 11 reasonable for the protection of the former participant or the 12 related person; and 13 (b) the Commissioner has assessed the suitability of taking the 14 actions in respect of the former participant or the related 15 person. 16 (6) If the Commissioner takes action under subsection (5) in respect of 17 a related person, this Act applies to the related person as if the 18 person were a former participant. 19 17 Subparagraph 14(b)(ii) 20 Before "identity", insert "original". 21 18 Subsection 15(5) 22 Omit "former identity", substitute "original identity or a former NWPP 23 identity". 24 19 Paragraph 16(1)(a) 25 Omit "former", substitute "original identity or a former NWPP". 26 20 Paragraph 16(1)(b) 27 Omit "his or her former", substitute "the original identity or the former 28 NWPP". 29 21 Subsection 16(1) 30 Omit "his or her former" (third occurring), substitute "the original 31 identity or the former NWPP". 32 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 137 [Page Break] 22 Subsection 16(2) 1 Omit "former", substitute "original identity or any former NWPP". 2 23 Subsection 16(2) 3 Omit "new", substitute "current NWPP". 4 24 Subsection 16(4) 5 Omit "former" (wherever occurring), substitute "original identity or any 6 former NWPP". 7 25 Subsection 16(6) 8 Repeal the subsection. 9 26 Section 17 10 Omit "former identity", substitute "original identity or any former 11 NWPP identity". 12 27 At the end of section 18 13 Add: 14 (7) A reference in this section to a participant does not include a 15 reference to a former participant. 16 28 Paragraph 19(1)(b) 17 Before "terminated", insert ", or is proposed to be,". 18 29 Paragraph 19(1) 19 Omit "former participant's former identity", substitute "original identity 20 or any former NWPP identity of the participant". 21 30 Subsection 19(2) 22 Omit "former". 23 31 Subsection 19(3) 24 Omit "former participant's former identity, the former", substitute 25 "original identity or any former NWPP identity of the participant, the". 26 32 Paragraph 19(5)(a) 27 138 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Omit "former identity of a person who was a Commonwealth 1 participant", substitute "original identity or any former NWPP identity 2 of a Commonwealth participant, a State participant or a Territory 3 participant". 4 33 Paragraph 19(5)(b) 5 Repeal the paragraph, substitute: 6 (b) the Commissioner or a Deputy Commissioner notifies the 7 participant in writing that he or she is required to return to the 8 Commissioner all documents provided to the participant that 9 relate to the participant's current NWPP identity and any 10 former NWPP identity that is not being restored; 11 34 Subsection 19(5) 12 Omit "former participant" (third occurring), substitute "participant". 13 35 Section 21 14 After "conferred", insert ", or the performance or purported 15 performance of a function conferred or a duty imposed,". 16 36 Subsection 22(1) 17 Repeal the subsection, substitute: 18 (1) A person commits an offence if: 19 (a) the person discloses information about an individual; and 20 (b) the individual is: 21 (i) a Commonwealth participant; or 22 (ii) a Territory participant; and 23 (c) at the time the information is disclosed, the individual has a 24 current NWPP identity; and 25 (d) the information is about the original identity or a former 26 NWPP identity of the individual. 27 Penalty: Imprisonment for 10 years. 28 (1A) A person commits an offence if: 29 (a) the person discloses information about an individual; and 30 (b) the individual: 31 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 139 [Page Break] (i) is a Commonwealth participant or is undergoing 1 assessment for inclusion in the NWPP as a 2 Commonwealth participant; or 3 (ii) is a Territory participant or is undergoing assessment for 4 inclusion in the NWPP as a Territory participant; and 5 (c) the information: 6 (i) may reveal that the individual is a participant or is 7 undergoing assessment for inclusion in the NWPP; or 8 (ii) may compromise the security of the individual. 9 Penalty: Imprisonment for 10 years. 10 37 Subsection 22(2) 11 Omit "or has been a Commonwealth participant, or a person who has 12 undergone", substitute "a Commonwealth participant or a Territory 13 participant, or a person who is undergoing or has undergone". 14 38 Paragraph 22(2)(a) 15 Omit "or has been a participant", substitute "a participant or is 16 undergoing". 17 39 Subsection 22(2) (penalty) 18 Omit "for an offence against this subsection". 19 40 At the end of section 22 20 Add: 21 (3) To avoid doubt, this section applies to the disclosure of 22 information in proceedings before a court, tribunal, Royal 23 Commission or any other commission of inquiry. 24 (4) The application of subsection (3) to the disclosure of information 25 as mentioned in that subsection does not affect the operation of 26 subsection 26(3). 27 41 After section 22 28 Insert: 29 22A Offences relating to State participants 30 (1) A person commits an offence if: 31 140 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) the person is: 1 (i) a Commonwealth officer; or 2 (ii) a Commonwealth participant; or 3 (iii) a State participant; or 4 (iv) a Territory participant; or 5 (v) any other person; and 6 (b) the person discloses information about an individual; and 7 (c) the individual is a State participant; and 8 (d) at the time the information is disclosed, the individual has a 9 current NWPP identity; and 10 (e) the information is about the original identity or a former 11 NWPP identity of the individual; and 12 (f) if the person disclosing the information is a person other than 13 a person referred to in subparagraph (a)(i), (ii) or (iv)--the 14 disclosure of the information could adversely affect the 15 integrity of the NWPP. 16 Penalty: Imprisonment for 10 years. 17 (2) A person commits an offence if: 18 (a) the person is: 19 (i) a Commonwealth officer; or 20 (ii) a Commonwealth participant; or 21 (iii) a State participant; or 22 (iv) a Territory participant; or 23 (v) any other person; and 24 (b) the person discloses information about an individual; and 25 (c) the individual is a State participant or is undergoing 26 assessment for inclusion in the NWPP as a State participant; 27 and 28 (d) the information may reveal that the individual is a participant 29 or is undergoing assessment for inclusion in the NWPP; and 30 (e) if the person disclosing the information is a person other than 31 a person referred to in subparagraph (a)(i), (ii) or (iv)--the 32 disclosure of the information could adversely affect the 33 integrity of the NWPP. 34 Penalty: Imprisonment for 10 years. 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 141 [Page Break] (3) A person who is a State participant, or a person who is undergoing 1 or has undergone assessment for inclusion in the NWPP as such a 2 participant, must not disclose: 3 (a) the fact that he or she is a participant or is undergoing or has 4 undergone assessment for inclusion in the NWPP; or 5 (b) information as to the way in which the NWPP operates; or 6 (c) information about the Commissioner, a Deputy 7 Commissioner, any AFP employee or any special member of 8 the Australian Federal Police who is or has been involved in 9 the NWPP; or 10 (d) the fact that he or she has signed a memorandum of 11 understanding; or 12 (e) any details of a memorandum of understanding that he or she 13 has signed; 14 unless the person has been authorised by the Commissioner to 15 make the disclosure or the disclosure is made for the purpose of 16 making a complaint, or providing information, to the Ombudsman 17 under the Ombudsman Act 1976. 18 Penalty: Imprisonment for 5 years. 19 (4) To avoid doubt, this section applies to a disclosure of information 20 to a court, tribunal, Royal Commission or any other commission of 21 inquiry. 22 (5) The application of subsection (4) to the disclosure of information 23 as mentioned in that subsection does not affect the operation of 24 subsection 26(3). 25 22B Offence relating to compromising security 26 A person commits an offence if: 27 (a) the person discloses information; and 28 (b) the information may compromise the security of an 29 individual; and 30 (c) the individual: 31 (i) is a Commonwealth participant or a Territory 32 participant, or is undergoing assessment for inclusion in 33 the NWPP as a Commonwealth participant or a 34 Territory participant; or 35 142 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (ii) is a State participant or is undergoing assessment for 1 inclusion in the NWPP as a State participant. 2 Penalty: Imprisonment for 10 years. 3 42 Paragraph 26(1)(a) 4 Omit "an approved authority", substitute "any other commission of 5 inquiry". 6 43 After paragraph 26(1)(b) 7 Insert: 8 ; or (c) to divulge or communicate to or before such a body 9 information, if: 10 (i) the information is about the identity of, or information 11 that is such as to reveal the identity of, an AFP 12 employee or special member of the Australian Federal 13 Police who is involved in the operation of the NWPP; 14 and 15 (ii) the person has the information as a result of the 16 performance of functions or duties under this Act; 17 44 Paragraph 26(2)(a) 18 Omit "an approved authority", substitute "any other commission of 19 inquiry". 20 45 After paragraph 26(2)(b) 21 Insert: 22 ; or (c) to divulge or communicate to or before such a body 23 information, if: 24 (i) the information is about the identity of, or information 25 that is such as to reveal the identity of, an AFP 26 employee or special member of the Australian Federal 27 Police who is involved in the operation of the NWPP; 28 and 29 (ii) the person has the information as a result of the 30 performance of functions or duties in relation to this 31 Act; 32 46 Subsection 26(3) 33 After "Commonwealth", insert ", a State or a Territory". 34 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 143 [Page Break] 47 Subsection 26(5) 1 Omit "or a former participant". 2 48 Subsection 26(5) 3 Omit "or former participant". 4 49 Subsection 27(1) 5 Repeal the subsection, substitute: 6 (1) If: 7 (a) a participant is to be a witness, under the participant's current 8 NWPP identity, in a criminal proceeding; and 9 (b) the participant has a criminal record under his or her original 10 identity or any former NWPP identity; 11 the participant must notify the Commissioner that the participant is 12 to be a witness in the proceeding. 13 50 Subsection 27(2) 14 Omit "or former participant". 15 51 After section 27 16 Insert: 17 27A Requirement where participant involved in civil proceedings 18 (1) If a participant is to be involved, under the participant's current 19 NWPP identity, in a civil proceeding in which his or her identity is 20 an issue, the participant must notify the Commissioner that the 21 participant is involved in the proceeding. 22 (2) After being notified under subsection (1), the Commissioner may 23 take any action he or she considers appropriate in the 24 circumstances. 25 (3) In this section: 26 civil proceeding means any proceeding in a court of the 27 Commonwealth, a State or Territory, other than a criminal 28 proceeding, and, to avoid doubt, each of the following is part of a 29 civil proceeding: 30 144 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] (a) any proceeding on an ex parte application (including an 1 application made before pleadings are filed in a court); 2 (b) the discovery, exchange, production, inspection or disclosure 3 of intended evidence, documents and reports of persons 4 intended to be called by a party to give evidence; 5 (c) an appeal proceeding; 6 (d) any interlocutory or other proceeding prescribed by 7 regulations for the purposes of this paragraph. 8 court includes any tribunal, Royal Commission or other 9 commission of inquiry. 10 52 Section 28 11 Repeal the section, substitute: 12 28 Identity of participant not to be disclosed in court proceedings 13 etc. 14 (1) If, in any proceedings in a court, a tribunal or a Royal Commission 15 or other commission of inquiry, one or more of the following is in 16 issue or may be disclosed in relation to a Commonwealth 17 participant, a State participant or a Territory participant who has 18 been provided with a new identity under the NWPP: 19 (a) the original identity of the participant; 20 (b) the current NWPP identity of the participant; 21 (c) a former NWPP identity of the participant; 22 the court, tribunal or commission must, unless it considers that the 23 interests of justice require otherwise: 24 (d) hold that part of the proceedings that relate to the original 25 identity, the current NWPP identity or the former NWPP 26 identity of the participant in private; and 27 (e) make such order relating to the suppression of publication of 28 evidence given before the court, tribunal or commission as, in 29 its opinion, will ensure that the original identity, the current 30 NWPP identity or the former NWPP identity of the 31 participant is not disclosed; and 32 (f) make such other orders as it considers appropriate to ensure 33 that information that relates to the original identity, the 34 current NWPP identity or the former NWPP identity of the 35 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 145 [Page Break] participant, or information that may compromise the security 1 of the participant, is not made public. 2 (2) To avoid doubt, paragraph (1)(e) does not prevent the taking of a 3 transcript of court proceedings, but the court may make an order 4 for how the transcript is to be dealt with, including an order 5 suppressing its publication. 6 146 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Other amendments relating to controlled operations Part 1 1 Schedule 5--Other Amendments 2 Part 1--Other amendments relating to controlled 3 operations 4 Crimes Act 1914 5 1 Subsection 3(1) (definition of ACC authorising officer) 6 Repeal the definition. 7 2 Subsection 3(1) (definition of ACLEI authorising officer) 8 Repeal the definition. 9 3 Subsection 3(1) (definition of AFP authorising officer) 10 Repeal the definition. 11 4 Subsection 3(1) (definition of appropriate authorising 12 officer) 13 Repeal the definition. 14 5 Subsection 3(1) (definition of authorising officer) 15 Repeal the definition. 16 6 Subsection 3(1) (definition of controlled operation) 17 Omit "15H", substitute "15GD". 18 7 Subsection 3(1) (definition of major controlled operation) 19 Repeal the definition. 20 8 Section 3(1) (definition of nominated Tribunal member) 21 Repeal the definition. 22 9 Section 3(1) (definition of person targeted) 23 Repeal the definition. 24 Customs Act 1901 25 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 147 [Page Break] Part 1 Other amendments relating to controlled operations 10 Section 219ZJA (definition of serious Commonwealth 1 offence) 2 Omit "15HB", substitute "15GE". 3 148 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Other amendments of the Australian Crime Commission Act 2002 Part 2 1 Part 2--Other amendments of the Australian Crime 2 Commission Act 2002 3 11 Subsection 4(1) (paragraph (a) of the definition of foreign 4 law enforcement agency) 5 After "police force", insert "or police service". 6 12 Subsection 4(1) (paragraph (b) of the definition of law 7 enforcement agency) 8 Repeal the paragraph, substitute: 9 (b) a police force or police service of a State; or 10 13 Paragraph 7B(2)(f) 11 After "police force", insert "or police service". 12 14 Subsection 22(2) 13 Omit "Police Force", substitute "police force or police service". 14 15 Subsection 23(4) 15 Omit "Police Force", substitute "police force or police service". 16 16 Subsection 31(2) 17 Omit "Police Force", substitute "police force or police service". 18 17 Section 34 19 Omit "Police Force", substitute "police force or police service". 20 18 Subsection 58(1) 21 Omit "Police Force", substitute "police force or police service". 22 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 149 [Page Break] Part 3 Amendments relating to seized electronic equipment 1 Part 3--Amendments relating to seized electronic 2 equipment 3 Crimes Act 1914 4 19 After section 3ZV 5 Insert: 6 3ZVA Dealing with seized electronic equipment 7 (1) This section applies to electronic equipment seized under this Part. 8 (2) The electronic equipment may be operated at any location after it 9 has been seized, for the purpose of determining whether data that is 10 evidential material is held on or accessible from the electronic 11 equipment, and obtaining access to such data. 12 (3) The data referred to in subsection (2) includes, but is not limited to 13 the following: 14 (a) data held on the electronic equipment, including data held on 15 the electronic equipment when operated under this section 16 that was not held on the electronic equipment at the time the 17 electronic equipment was seized; 18 (b) data not held on the electronic equipment but accessible by 19 using it, including data that was not accessible at the time the 20 electronic equipment was seized. 21 (4) If the electronic equipment was seized under a warrant, the 22 electronic equipment may be operated before or after the expiry of 23 the warrant. 24 (5) This section does not limit the operation of other provisions of this 25 Part that relate to dealing with seized items. 26 Customs Act 1901 27 20 At the end of Part XII 28 Add: 29 150 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Amendments relating to seized electronic equipment Part 3 Division 4--Seized electronic equipment 1 227AB Dealing with seized electronic equipment 2 (1) This section applies to electronic equipment seized under this Part. 3 (2) The electronic equipment may be operated at any location after it 4 has been seized for the purpose of determining whether data that is 5 evidential material is held on or accessible from the electronic 6 equipment, and obtaining access to such data. 7 (3) The data referred to in subsection (2) includes, but is not limited to 8 the following: 9 (a) data held on the electronic equipment, including data held on 10 the electronic equipment when operated under this section 11 that was not held on the electronic equipment at the time the 12 electronic equipment was seized; 13 (b) data not held on the electronic equipment but accessible by 14 using it, including data that was not accessible at the time the 15 electronic equipment was seized. 16 (4) If the electronic equipment was seized under a warrant, the 17 electronic equipment may be operated before or after the expiry of 18 the warrant. 19 (5) This section does not limit the operation of other provisions of this 20 Part that relate to dealing with seized items. 21 Mutual Assistance in Criminal Matters Act 1987 22 21 At the end of Division 3 of Part VIIA 23 Add: 24 38RA Dealing with seized electronic equipment 25 (1) This section applies to electronic equipment seized under this Part. 26 (2) The electronic equipment may be operated at any location after it 27 has been seized for the purpose of determining whether data that is 28 evidential material is held on or accessible from the electronic 29 equipment, and obtaining access to such data. 30 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 151 [Page Break] Part 3 Amendments relating to seized electronic equipment (3) The data referred to in subsection (2) includes, but is not limited to 1 the following: 2 (a) data held on the electronic equipment, including data held on 3 the electronic equipment when operated under this section 4 that was not held on the electronic equipment at the time the 5 electronic equipment was seized; 6 (b) data not held on the electronic equipment but accessible by 7 using it, including data that was not accessible at the time the 8 electronic equipment was seized. 9 (4) If the electronic equipment was seized under a warrant, the 10 electronic equipment may be operated before or after the expiry of 11 the warrant. 12 (5) This section does not limit the operation of other provisions of this 13 Part that relate to dealing with seized items. 14 Proceeds of Crime Act 2002 15 22 After section 253 16 Insert: 17 253A Dealing with seized electronic equipment 18 (1) This section applies to electronic equipment seized under this Part. 19 (2) The electronic equipment may be operated at any location after it 20 has been seized for the purpose of determining whether data that is 21 *evidential material, or evidential material (within the meaning of 22 the Crimes Act 1914) relating to an *indictable offence, is held on 23 or accessible from the electronic equipment, and obtaining access 24 to such data. 25 (3) The data that may be accessed under subsection (2) includes, but is 26 not limited to the following: 27 (a) data held on the electronic equipment, including data held on 28 the electronic equipment when operated under this section 29 that was not held on the electronic equipment at the time the 30 electronic equipment was seized; 31 (b) data not held on the electronic equipment but accessible by 32 using it, including data that was not accessible at the time the 33 electronic equipment was seized. 34 152 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Amendments relating to seized electronic equipment Part 3 (4) If the electronic equipment was seized under a warrant, the 1 electronic equipment may be operated before or after the expiry of 2 the warrant. 3 (5) This section does not limit the operation of other provisions of this 4 Part that relate to dealing with seized items. 5 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 153 [Page Break] Part 1 Transitional provisions relating to controlled operations 1 Schedule 6--Transitional provisions 2 Part 1--Transitional provisions relating to controlled 3 operations 4 1 Controlled operations authorised before commencement 5 continue under old law 6 (1) Despite the repeals and amendments made by this Act, the Crimes Act 7 1914, as in force immediately before the commencement of this item, 8 continues to apply after that commencement, in relation to a 9 pre-commencement controlled operation, as if those repeals and 10 amendments had not happened. 11 (2) In this item: 12 pre-commencement controlled operation means a controlled operation 13 authorised under Part IAB of the Crimes Act 1914 before the 14 commencement of this item, whether or not the pre-commencement 15 controlled operation had been completed as at that commencement. 16 2 Continuation of Division 3 of Part IAB 17 Despite the repeal of Division 3 of Part IAB of the Crimes Act 1914 by 18 this Act, that Division, as in force immediately before the 19 commencement of this item, is taken to continue in effect as if it had not 20 been repealed. 21 154 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 [Page Break] Transitional provisions relating to assumed identities Part 2 1 Part 2--Transitional provisions relating to assumed 2 identities 3 3 Authorisations taken to be authority under new law 4 (1) This item applies to an authorisation that was granted under 5 section 15XG of the Crimes Act 1914 immediately before the 6 commencement of this item. 7 (2) The authorisation has effect, after the commencement of this item, as if 8 it were an authority granted under section 15HY as inserted by this Act. 9 4 Continuation of old law in relation to States without 10 corresponding laws 11 (1) Despite the repeal of Part IAC of the Crimes Act 1914 by this Act: 12 (a) section 15XH of that Act, as in force immediately before the 13 commencement of this item, continues in effect after that 14 commencement, in relation to a State or Territory that is not a 15 participating jurisdiction, as if that repeal had not happened; 16 and 17 (b) that Part, and any other provision of the Crimes Act 1914 that 18 relates to the operation of that Part, continues in effect in 19 relation to authorisations under that section and assumed 20 identities acquired or used under such authorisations as if that 21 repeal had not happened. 22 (2) In this item: 23 participating jurisdiction has the same meaning as in section 15HW of 24 the Crimes Act 1914, as in force immediately after commencement. 25 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006 155 [Page Break] Part 3 Regulations relating to transitional matters 1 Part 3--Regulations relating to transitional matters 2 5 Regulations may deal with other transitional matters 3 The Governor-General may make regulations dealing with matters of a 4 transitional nature relating to the amendments and repeals made by this 5 Act. 6 156 Crimes Legislation Amendment (National Investigative Powers and Witness Protection) Bill 2006 No. , 2006