2004-2005 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 (Attorney-General) A Bill for an Act to amend various Acts relating to law and justice, and for related purposes [Page Break] 1 Short title.......................................................................................1 2 Commencement .............................................................................1 3 Schedule(s)....................................................................................1 Schedule 1--Amendments 3 Crimes Act 1914 3 Financial Transaction Reports Act 1988 15 Foreign Evidence Act 1994 15 Proceeds of Crime Act 2002 17 Surveillance Devices Act 2004 18 i Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 2 law and justice, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Law and Justice Legislation 6 Amendment (Video Link Evidence and Other Measures) Act 2005. 7 2 Commencement 8 This Act commences on the day after it receives the Royal Assent. 9 3 Schedule(s) 10 Each Act that is specified in a Schedule to this Act is amended or 11 repealed as set out in the applicable items in the Schedule Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 1 [Page Break] 2 according to its terms. 2 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 1--Amendments 3 4 Crimes Act 1914 5 1 Before paragraph 4AAA(1)(a) 6 Insert: 7 (aa) a Judge of the Federal Court of Australia; 8 (ab) a Federal Magistrate; 9 2 Subsection 4AAA(2) 10 After "in the case of a", insert "Judge of the Federal Court of Australia, 11 Federal Magistrate,". 12 3 After subsection 4AAA(3) 13 Insert: 14 Protection and immunity provided 15 (3A) A Judge of the Federal Court of Australia or a Federal Magistrate 16 performing a conferred function, or exercising a conferred power, 17 has the same protection and immunity as a Justice of the High 18 Court has in relation to proceedings in the High Court. 19 Note: The heading to subsection 4AAA(4) is deleted. 20 4 After subsection 4AAA(6) 21 Insert: 22 Contrary intention 23 (6A) Despite subsection (1), a rule set out in this section does not apply 24 if the contrary intention appears. 25 5 After Part IAD 26 Insert: Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 3 [Page Break] 1 Part IAE--Video link evidence in proceedings for 2 terrorism and related offences etc. 3 4 15YU Proceedings to which this Part applies 5 Criminal proceedings 6 (1) This Part applies to any proceedings for: 7 (a) an offence against subsection 34G(5) of the Australian 8 Security Intelligence Organisation Act 1979; or 9 (b) an offence against section 49 of the Aviation Transport 10 Security Act 2004; or 11 (c) an offence against section 21 of the Charter of the United 12 Nations Act 1945; or 13 (d) an offence against Division 72 of the Criminal Code; or 14 (e) an offence against Part 5.3 of the Criminal Code; or 15 (f) an offence against Part 5.4 of the Criminal Code; or 16 (g) an offence against section 24AA or 24AB of this Act; or 17 (h) an offence against Division 1 of Part 2 of the Crimes 18 (Aviation) Act 1991; or 19 (i) an offence against section 8 of the Crimes (Biological 20 Weapons) Act 1976; or 21 (j) an offence against the Crimes (Foreign Incursions and 22 Recruitment) Act 1978; or 23 (k) an offence against section 8 of the Crimes (Hostages) Act 24 1989; or 25 (l) an offence against the Crimes (Internationally Protected 26 Persons) Act 1976; or 27 (m) an offence against section 6 of this Act that relates to an 28 offence mentioned in any of the above paragraphs. 29 Note: For other ancillary offences, see section 11.6 of the Criminal Code. 30 Other proceedings 31 (2) This Part also applies to: 32 (a) any proceedings, including committal proceedings or 33 proceedings of a similar kind, connected with proceedings 34 covered by subsection (1); and 4 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 (b) proceedings under the Proceeds of Crime Act 2002 in 2 relation to an offence referred to in subsection (1). 3 Timing of proceedings 4 (3) It is immaterial whether proceedings covered by subsection (1) or 5 (2) were instituted before or after the commencement of this Part. 6 Extended meaning of prosecutor and defendant 7 (4) This Part has effect, in relation to a proceeding under the Proceeds 8 of Crime Act 2002, as if: 9 (a) the Director of Public Prosecutions were the prosecutor; and 10 (b) each other party to the proceeding were a defendant in the 11 proceeding. 12 15YV When court may take evidence by video link 13 Application by prosecutor 14 (1) In a proceeding, the court must: 15 (a) direct; or 16 (b) by order, allow; 17 a witness to give evidence by video link if: 18 (c) both: 19 (i) the prosecutor applies for the direction or order; and 20 (ii) the court is satisfied that the prosecutor gave the court 21 reasonable notice of his or her intention to make the 22 application; and 23 (d) the witness is not a defendant in the proceeding; and 24 (e) the witness is available, or will reasonably be available, to 25 give evidence by video link; and 26 (f) the facilities required by section 15YY are available or can 27 reasonably be made available; 28 unless the court is satisfied that giving the direction or making the 29 order would have a substantial adverse effect on the right of a 30 defendant in the proceeding to receive a fair hearing. 31 Application by defendant 32 (2) In a proceeding, the court must: Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 5 [Page Break] 1 (a) direct; or 2 (b) by order, allow; 3 a witness to give evidence by video link if: 4 (c) both: 5 (i) a defendant in the proceeding applies for the direction 6 or order; and 7 (ii) the court is satisfied that the defendant gave the court 8 reasonable notice of his or her intention to make the 9 application; and 10 (d) the witness is not a defendant in the proceeding; and 11 (e) the witness is available, or will reasonably be available, to 12 give evidence by video link; and 13 (f) the facilities required by section 15YY are available or can 14 reasonably be made available; 15 unless the court is satisfied that it would be inconsistent with the 16 interests of justice for the evidence to be given by video link. 17 15YW Observers 18 Observer 19 (1) The court may, in a section 15YV direction or order, provide that 20 the witness can give evidence under the direction or order only if, 21 when the witness is giving evidence by video link, there is 22 physically present, at the place where the evidence is given, a 23 person specified in the direction or order for the purposes of this 24 section. 25 (2) If a section 15YV direction or order is in force, the court may vary 26 the direction or order so as to provide that, after the variation, the 27 witness can give evidence under the direction or order only if, 28 when the witness is giving evidence by video link, there is 29 physically present, at the place where the evidence is given, a 30 person specified in the direction or order for the purposes of this 31 section. 32 Substitution of observer 33 (3) If: 34 (a) a direction or order is in force under section 15YV; and 6 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 (b) the direction or order specifies a person for the purposes of 2 this section; 3 the court may vary the direction or order so as to substitute another 4 specified person. 5 Who can be an observer 6 (4) A person specified for the purposes of this section may be: 7 (a) an Australian diplomatic officer; or 8 (b) an Australian consular officer; or 9 (c) any other person. 10 (5) The court must not specify a person for the purposes of this section 11 unless the court is satisfied that the person is: 12 (a) independent of the prosecutor; and 13 (b) independent of each defendant in the proceeding; and 14 (c) in a position to give a report to the court about what the 15 person observes in relation to the giving of evidence by the 16 witness; and 17 (d) reasonably available to observe the giving of evidence by the 18 witness; and 19 (e) an appropriate person to be specified for the purposes of this 20 section. 21 (6) For the purposes of this section, the mere fact that a person is an 22 Australian diplomatic officer or Australian consular officer does 23 not mean that the person is not independent of the prosecutor. 24 Report of observer 25 (7) If: 26 (a) a direction or order is in force under section 15YV; and 27 (b) the direction or order specifies a person for the purposes of 28 this section; 29 the court may: 30 (c) direct or allow the specified person to give the court a report, 31 in such form and by such time as the court requires, about 32 what the person observed in relation to the giving of evidence 33 by the witness; and 34 (d) make such use of the report as the court considers appropriate 35 for the purpose of deciding whether evidence given by the Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 7 [Page Break] 1 witness under the section 15YV direction or order should be 2 admitted as evidence in the proceeding. 3 Definitions 4 (8) In this section: 5 Australian consular officer has the same meaning as in the 6 Consular Fees Act 1955. 7 Australian diplomatic officer has the same meaning as in the 8 Consular Fees Act 1955. 9 15YX Adjournment after a section 15YV direction or order etc. 10 Court gives a direction or makes an order 11 (1) If: 12 (a) a court gives a section 15YV direction or makes a 13 section 15YV order; and 14 (b) the prosecutor applied for the direction or order; 15 a defendant in the proceeding may apply to the court for an 16 adjournment of the proceeding to allow time for the defendant to: 17 (c) decide whether to appeal against the direction or order; and 18 (d) if the defendant decides to do so--make the appeal. 19 (2) If: 20 (a) a court gives a section 15YV direction or makes a 21 section 15YV order; and 22 (b) a defendant in the proceeding applied for the direction or 23 order; 24 the prosecutor may apply to the court for an adjournment of the 25 proceeding to allow time for the prosecutor to: 26 (c) decide whether to: 27 (i) appeal against the direction or order; or 28 (ii) withdraw the proceeding; and 29 (d) if the prosecutor decides to do so--make the appeal or 30 withdrawal. 31 Court refuses to give a direction or make an order 32 (3) If: 8 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 (a) a court refuses to give a section 15YV direction or refuses to 2 make a section 15YV order; and 3 (b) the prosecutor applied for the direction or order; 4 the prosecutor may apply to the court for an adjournment of the 5 proceeding to allow time for the prosecutor to: 6 (c) decide whether to: 7 (i) appeal against the refusal; or 8 (ii) withdraw the proceeding; and 9 (d) if the prosecutor decides to do so--make the appeal or 10 withdrawal. 11 (4) If: 12 (a) a court refuses to give a section 15YV direction or refuses to 13 make a section 15YV order; and 14 (b) a defendant in the proceeding applied for the direction or 15 order; 16 the defendant may apply to the court for an adjournment of the 17 proceeding to allow time for the defendant to: 18 (c) decide whether to appeal against the refusal; and 19 (d) if the defendant decides to do so--make the appeal. 20 Grant of adjournment 21 (5) If an application is made under this section, the court must grant 22 the adjournment. 23 Note: For appeals, see section 15YZD. 24 15YY Technical requirements for video link 25 (1) A witness can give evidence under a section 15YV direction or 26 order only if: 27 (a) the courtroom or other place where the court is sitting (the 28 courtroom point); and 29 (b) the place where the evidence is given (the witness point); 30 are equipped with video facilities that: 31 (c) enable appropriate persons at the courtroom point to see and 32 hear the witness give the evidence; and 33 (d) enable appropriate persons at the witness point to see and 34 hear appropriate persons at the courtroom point. Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 9 [Page Break] 1 (2) In subsection (1): 2 appropriate persons means such persons as the court considers 3 appropriate. 4 15YZ Direction to jury 5 (1) If: 6 (a) a proceeding involves a jury; and 7 (b) a witness gives evidence under a section 15YV direction or 8 order; and 9 (c) the evidence is admissible in the proceeding; 10 the judge must give the jury such direction as the judge thinks 11 necessary to ensure that the jury gives the same weight to the 12 evidence as if it had been given by the witness in the courtroom or 13 other place where the court is sitting. 14 (2) Disregard subsection (1) in determining: 15 (a) the directions (if any) that should be given by a judge in 16 proceedings to which this Part does not apply; and 17 (b) the weight that should be given to evidence given by video 18 link in proceedings to which this Part does not apply. 19 15YZA Application of laws about witnesses 20 (1) A person who gives evidence under a section 15YV direction or 21 order is taken to give it at the courtroom or other place where the 22 court is sitting. 23 (2) Subsection (1) has effect, for example, for the purposes of laws 24 relating to evidence, procedure, contempt of court and perjury. 25 15YZB Administration of oaths and affirmations 26 An oath or affirmation to be sworn or made by a witness who is to 27 give evidence under a section 15YV direction or order may be 28 administered either: 29 (a) by means of the video link, in as nearly as practicable the 30 same way as if the witness were to give the evidence at the 31 courtroom or other place where the court is sitting; or 32 (b) as follows: 33 (i) on behalf of the court and as directed by it; 10 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 (ii) by a person (whether an Australian official or not) 2 authorised by the court; 3 (iii) at the place where the witness is to give the evidence. 4 15YZC Expenses 5 A court may make such orders as are just for payment of expenses 6 incurred in connection with giving evidence under a section 15YV 7 direction given, or a section 15YV order made, by the court. 8 15YZD Appeals against section 15YV directions or orders etc. 9 Court gives a direction or makes an order 10 (1) If: 11 (a) a court gives a section 15YV direction or makes a 12 section 15YV order; and 13 (b) the prosecutor applied for the direction or order; 14 a defendant in the proceeding may appeal against the direction or 15 order. 16 (2) If: 17 (a) a court gives a section 15YV direction or makes a 18 section 15YV order; and 19 (b) a defendant in the proceeding applied for the direction or 20 order; 21 the prosecutor may appeal against the direction or order. 22 Court refuses to give a direction or make an order 23 (3) If: 24 (a) a court refuses to give a section 15YV direction or refuses to 25 make a section 15YV order; and 26 (b) the prosecutor applied for the direction or order; 27 the prosecutor may appeal against the refusal. 28 (4) If: 29 (a) a court refuses to give a section 15YV direction or refuses to 30 make a section 15YV order; and 31 (b) a defendant in the proceeding applied for the direction or 32 order; Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 11 [Page Break] 1 the defendant may appeal against the refusal. 2 Jurisdiction 3 (5) A court that has jurisdiction to hear and determine appeals from a 4 judgment, order or direction in the proceeding has jurisdiction to 5 hear and determine any appeal under this section. 6 15YZE Other laws about evidence not affected 7 This Part does not prevent any other law about taking evidence of a 8 witness from applying for the purposes of a proceeding. 9 15YZF Saving of other laws 10 This Part is not intended to exclude or limit the operation of any 11 other law of the Commonwealth or any law of a State or Territory. 12 6 Subsection 23B(1) (definition of tape recording) 13 Repeal the definition, substitute: 14 tape recording means audio recording, video recording or 15 recording by other electronic means. 16 7 Application of amendment--subsection 23B(1) of the 17 Crimes Act 1914 18 The amendment of subsection 23B(1) of the Crimes Act 1914 made by 19 this Schedule applies to a recording made after the commencement of 20 this item. 21 8 Subsection 23YDAF(1) (cell at table item 1, column 4) 22 Repeal the cell, substitute: only if within purpose 23 9 Subsection 23YDAF(1) (cell at table item 2, column 4) 24 Repeal the cell, substitute: only if within purpose 12 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 10 Subsection 23YDAF(1) (cell at table item 3, column 3) 2 Repeal the cell, substitute: only if within purpose 3 11 Subsection 23YDAF(1) (cell at table item 3, column 4) 4 Repeal the cell, substitute: only if within purpose 5 12 Subsection 23YDAF(1) (cell at table item 3, column 5) 6 Repeal the cell, substitute: only if within purpose 7 13 Subsection 23YDAF(1) (cell at table item 4, column 4) 8 Repeal the cell, substitute: only if within purpose 9 14 Subsection 23YDAF(1) (cell at table item 5, column 4) 10 Repeal the cell, substitute: only if within purpose 11 15 Subsection 23YDAF(1) (cell at table item 6, column 4) 12 Repeal the cell, substitute: only if within purpose 13 16 Subsection 23YDAF(1) (cell at table item 7, column 4) 14 Repeal the cell, substitute: Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 13 [Page Break] only if within purpose 1 17 Subsection 23YUD(1) 2 Repeal the subsection, substitute: 3 (1) The Minister may, on behalf of the Commonwealth, enter into 4 arrangements with a responsible Minister of a participating 5 jurisdiction under which: 6 (a) information from the DNA database system of the 7 Commonwealth is to be transmitted to the appropriate 8 authority in the participating jurisdiction; and 9 (b) information from a DNA database system of the participating 10 jurisdiction is to be transmitted to the Commissioner. 11 These arrangements may deal with keeping, and otherwise 12 managing, such information. 13 18 After subsection 23YUD(1A) 14 Insert: 15 (1B) Information that is transmitted under this section must not be used 16 except for the purpose of: 17 (a) the investigation of a matter relating to the participating 18 jurisdiction, or proceedings in respect of that matter; or 19 (b) the investigation of a matter relating to the Commonwealth, 20 or proceedings in respect of that matter. 21 19 Transitional--arrangements under subsection 23YUD(1) of 22 the Crimes Act 1914 23 (1) This item applies to an arrangement if: 24 (a) the arrangement was entered into under subsection 25 23YUD(1) of the Crimes Act 1914; and 26 (b) the arrangement was in force immediately before the 27 commencement of this item. 28 (2) The arrangement has effect, after the commencement of this item, as if 29 it had been entered into under subsection 23YUD(1) of the Crimes Act 30 1914 as amended by this Schedule. 14 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 Financial Transaction Reports Act 1988 2 20 At the end of subparagraph 16(1)(b)(i) 3 Add "or". 4 21 At the end of paragraph 16(1)(b) 5 Add: 6 ; or (iv) may be of assistance in the enforcement of the Proceeds of 7 Crime Act 2002 or the regulations made under that Act; 8 Foreign Evidence Act 1994 9 22 Subsection 3(1) 10 Insert: 11 designated offence means: 12 (a) an offence against subsection 34G(5) of the Australian 13 Security Intelligence Organisation Act 1979; or 14 (b) an offence against section 49 of the Aviation Transport 15 Security Act 2004; or 16 (c) an offence against section 21 of the Charter of the United 17 Nations Act 1945; or 18 (d) an offence against Division 72 of the Criminal Code; or 19 (e) an offence against Part 5.3 of the Criminal Code; or 20 (f) an offence against Part 5.4 of the Criminal Code; or 21 (g) an offence against section 24AA or 24AB of the Crimes Act 22 1914; or 23 (h) an offence against Division 1 of Part 2 of the Crimes 24 (Aviation) Act 1991; or 25 (i) an offence against section 8 of the Crimes (Biological 26 Weapons) Act 1976; or 27 (j) an offence against the Crimes (Foreign Incursions and 28 Recruitment) Act 1978; or 29 (k) an offence against section 8 of the Crimes (Hostages) Act 30 1989; or 31 (l) an offence against the Crimes (Internationally Protected 32 Persons) Act 1976; or Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 15 [Page Break] 1 (m) an offence against section 6 of the Crimes Act 1914 that 2 relates to an offence mentioned in any of the above 3 paragraphs. 4 Note: For other ancillary offences, see section 11.6 of the Criminal Code. 5 23 At the end of subsection 20(1) 6 Add: 7 ; or (c) a proceeding under the Proceeds of Crime Act 2002 in 8 relation to a designated offence. 9 24 At the end of subsection 25(1) 10 Add: 11 Note: See also subsection 25A(1) (proceedings for designated offences). 12 Note: The heading to section 25 is altered by adding at the end "--general". 13 25 After section 25 14 Insert: 15 25A Discretion to prevent foreign material being adduced-- 16 proceedings for designated offences 17 (1) If a proceeding is: 18 (a) a criminal proceeding for a designated offence; or 19 (b) a proceeding under the Proceeds of Crime Act 2002 in 20 relation to a designated offence; 21 and the prosecutor seeks to adduce foreign material as evidence in 22 the proceeding, then: 23 (c) the court must not give a direction under subsection 25(1) in 24 relation to the foreign material; and 25 (d) the court may direct that the foreign material not be adduced 26 as evidence in the proceeding if the court is satisfied that 27 adducing the foreign material would have a substantial 28 adverse effect on the right of a defendant in the proceeding to 29 receive a fair hearing. 30 Extended meaning of prosecutor and defendant 31 (2) This section has effect, in relation to a proceeding under the 32 Proceeds of Crime Act 2002, as if: 16 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 [Page Break] 1 (a) the Director of Public Prosecutions were the prosecutor; and 2 (b) each other party to the proceeding were a defendant in the 3 proceeding. 4 Timing of proceedings 5 (3) It is immaterial whether proceedings covered by subsection (1) 6 were instituted before or after the commencement of this section. 7 Proceeds of Crime Act 2002 8 26 At the end of section 6 9 Add: 10 Note: See also Part IAE of the Crimes Act 1914 (video link evidence). 11 27 After paragraph 297(1)(g) 12 Insert: 13 (ga) making any payments in relation to the conduct of an 14 *examination, so long as the payments have been approved 15 by the *DPP; 16 28 Transitional--validation of certain examinations etc. 17 (1) This item applies to each of the following: 18 (a) a purported examination conducted under the Proceeds of 19 Crime Act 2002 during the interim period by a designated 20 AAT member in the purported capacity of approved 21 examiner; 22 (b) the purported giving of a notice or direction under Part 3-1 of 23 that Act during the interim period by a designated AAT 24 member in the purported capacity of approved examiner; 25 (c) the purported doing of any other act or thing under Part 3-1 26 of that Act during the interim period by a designated AAT 27 member in the purported capacity of approved examiner. 28 (2) The examination, notice, direction, act or thing is as valid, and is taken 29 always to have been as valid, as it would have been if the designated 30 AAT member had been an eligible legal practitioner during the interim 31 period. Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005 17 [Page Break] 1 (3) The designated AAT member has, and is taken always to have had, the 2 same protection and immunity under section 194 of the Proceeds of 3 Crime Act 2002 that the member would have, or would have had, if the 4 member had been an eligible legal practitioner during the interim 5 period. 6 (4) In this item: 7 designated AAT member means a non-presidential member of the 8 Administrative Appeals Tribunal who is not an eligible legal 9 practitioner. 10 eligible legal practitioner means person who is enrolled as a legal 11 practitioner of: 12 (a) the High Court; or 13 (b) another federal court; or 14 (c) the Supreme Court of a State or Territory; 15 and has been so enrolled for at least 5 years. 16 interim period means the period: 17 (a) beginning at the start of 7 September 2004; and 18 (b) ending at the end of 19 August 2005. 19 Surveillance Devices Act 2004 20 29 Subsection 22(1) 21 Omit all the words after "in respect of", substitute: 22 a surveillance device that: 23 (a) was lawfully installed on premises, or in or on an object, 24 under: 25 (i) a surveillance device warrant; or 26 (ii) a tracking device authorisation; and 27 (b) the law enforcement officer suspects on reasonable grounds 28 is still on those premises or in or on that object, or on other 29 premises or in or on another object. 30 30 At the end of subsection 39(8) 31 Add: 32 Note: Section 22 deals with applications for a retrieval warrant in respect of 33 a tracking device that was lawfully installed under a tracking device 34 authorisation. 18 Law and Justice Legislation Amendment (Video Link Evidence and Other Measures) Bill 2005 No. , 2005