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NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2010

This is a Bill, not an Act. For current law, see the Acts databases.


NATIONAL SECURITY LEGISLATION AMENDMENT BILL 2010

2008-2009-2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
National Security Legislation
Amendment Bill 2010
No. , 2010
(Attorney-General)
A Bill for an Act to amend the law relating to
terrorism and national security, and for other
purposes
i National Security Legislation Amendment Bill 2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
3
Schedule 1--Treason and urging violence
4
Part 1--Amendments commencing on the day after Royal
Assent
4
Crimes Act 1914
4
Criminal Code Act 1995
4
Part 2--Amendments commencing 28 days after Royal Assent
11
Criminal Code Act 1995
11
Schedule 2--Terrorism
15
Part 1--Terrorism
15
Classification (Publications, Films and Computer Games) Act 1995
15
Criminal Code Act 1995
15
Part 2--Miscellaneous
16
Criminal Code Act 1995
16
Part 3--Contingent amendment
19
Criminal Code Act 1995
19
Schedule 3--Investigation of Commonwealth offences
20
Crimes Act 1914
20
Schedule 4--Powers to search premises in relation to terrorism
offences
39
Crimes Act 1914
39
Schedule 5--Re-entry of premises in emergency situation
41
Crimes Act 1914
41
Schedule 6--Amendments relating to bail
43
Crimes Act 1914
43
Schedule 7--Listings under the Charter of the United Nations
Act 1945
45
National Security Legislation Amendment Bill 2010 No. , 2010 ii
Charter of the United Nations Act 1945
45
Schedule 8--Amendments relating to the disclosure of national
security information in criminal and civil
proceedings
47
Part 1--Amendments
47
National Security Information (Criminal and Civil Proceedings) Act
2004
47
Part 2--Application of amendments and saving
73
Schedule 9--Functions of Inspector-General of Intelligence and
Security
75
Inspector-General of Intelligence and Security Act 1986
75
Schedule 10--Consequential amendments relating to the
establishment of the Parliamentary Joint
Committee on Law Enforcement
83
Administrative Decisions (Judicial Review) Act 1977
83
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
83
Australian Crime Commission Act 2002
83
Australian Federal Police Act 1979
85
Proceeds of Crime Act 2002
85
National Security Legislation Amendment Bill 2010 No. , 2010 1
A Bill for an Act to amend the law relating to
1
terrorism and national security, and for other
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the National Security Legislation
6
Amendment Act 2010.
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
2 National Security Legislation Amendment Bill 2010 No. , 2010
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 2
The 28th day after this Act receives the
Royal Assent.
4. Schedule 2,
Parts 1 and 2
The day after this Act receives the Royal
Assent.
5. Schedule 2,
Part 3
The later of:
(a) the start of the day after this Act receives
the Royal Assent; and
(b) immediately after the commencement of
item 4 of Schedule 1 to the Crimes
Legislation Amendment (Sexual Offences
Against Children) Act 2010.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
6. Schedules 3 to
7
The day after this Act receives the Royal
Assent.
7. Schedule 8,
items 1 to 16
The 28th day after this Act receives the
Royal Assent.
8. Schedule 8,
item 17
At the same time as the provision(s) covered
by table item 10.
9. Schedule 8,
items 18 to 102
The 28th day after this Act receives the
Royal Assent.
10. Schedule 8,
item 103
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
11. Schedule 8,
The 28th day after this Act receives the
National Security Legislation Amendment Bill 2010 No. , 2010 3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
items 104 to 106
Royal Assent.
12. Schedule 8,
item 107
At the same time as the provision(s) covered
by table item 10.
13. Schedule 8,
items 108 to 110
The 28th day after this Act receives the
Royal Assent.
14. Schedule 9
The day after this Act receives the Royal
Assent.
15. Schedule 10
The later of:
(a) the day after this Act receives the Royal
Assent; and
(b) the commencement of the Parliamentary
Joint Committee on Law Enforcement
Act 2010.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
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
12
Schedule 1 Treason and urging violence
Part 1 Amendments commencing on the day after Royal Assent
4 National Security Legislation Amendment Bill 2010 No. , 2010
Schedule 1--Treason and urging violence
1
Part 1--Amendments commencing on the day after
2
Royal Assent
3
Crimes Act 1914
4
1 Subparagraph 24F(2)(b)(ii)
5
Omit "paragraph 80.1(1)(e)", substitute "paragraph 80.1AA(1)(b)".
6
2 Part IIA (heading)
7
Repeal the heading, substitute:
8
Part IIA--Protection of public and other services
9
3 Sections 30A to 30H and 30R
10
Repeal the sections.
11
Criminal Code Act 1995
12
4 Part 5.1 of the Criminal Code (heading)
13
Repeal the heading, substitute:
14
Part 5.1--Treason and urging violence
15
5 Division 80 of the Criminal Code (heading)
16
Repeal the heading, substitute:
17
Division 80--Treason and urging violence
18
6 Before section 80.1A of the Criminal Code
19
Insert:
20
Subdivision A--Preliminary
21
7 Before section 80.1 of the Criminal Code
22
Insert:
23
Treason and urging violence Schedule 1
Amendments commencing on the day after Royal Assent Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 5
Subdivision B--Treason
1
8 Subsection 80.1(1) of the Criminal Code
2
Omit ", called treason,".
3
9 Paragraphs 80.1(1)(e) and (f) of the Criminal Code
4
Repeal the paragraphs.
5
10 Paragraph 80.1(1)(g) of the Criminal Code
6
Omit "Commonwealth; or", substitute "Commonwealth.".
7
11 Paragraph 80.1(1)(h) of the Criminal Code
8
Repeal the paragraph.
9
12 Subsections 80.1(1A) and (1B) of the Criminal Code
10
Repeal the subsections.
11
13 Paragraphs 80.1(2)(a) and (b) of the Criminal Code
12
Omit "treason", substitute "an offence against this Subdivision (other
13
than this subsection)".
14
14 Subsection 80.1(5) of the Criminal Code
15
Repeal the subsection.
16
15 After section 80.1 of the Criminal Code
17
Insert:
18
80.1AA Treason--materially assisting enemies etc.
19
Assisting enemies at war with the Commonwealth
20
(1) A person commits an offence if:
21
(a) the Commonwealth is at war with an enemy (whether or not
22
the existence of a state of war has been declared); and
23
(b) the enemy is specified, by Proclamation made for the purpose
24
of this paragraph, to be an enemy at war with the
25
Commonwealth; and
26
(c) the person engages in conduct; and
27
Schedule 1 Treason and urging violence
Part 1 Amendments commencing on the day after Royal Assent
6 National Security Legislation Amendment Bill 2010 No. , 2010
(d) the person intends that the conduct will materially assist the
1
enemy to engage in war with the Commonwealth; and
2
(e) the conduct assists the enemy to engage in war with the
3
Commonwealth; and
4
(f) when the person engages in the conduct, the person:
5
(i) is an Australian citizen; or
6
(ii) is a resident of Australia; or
7
(iii) has voluntarily put himself or herself under the
8
protection of the Commonwealth; or
9
(iv) is a body corporate incorporated by or under a law of
10
the Commonwealth or of a State or Territory.
11
Penalty: Imprisonment for life.
12
Note:
If a body corporate is convicted of an offence against subsection (1),
13
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
14
fine of up to 10,000 penalty units.
15
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, a
16
Proclamation made for the purpose of paragraph (1)(b) of this
17
section may be expressed to take effect from a day:
18
(a) before the day on which the Proclamation is registered under
19
the Legislative Instruments Act 2003; but
20
(b) not before the day on which the Proclamation is made.
21
(3) The fault element for paragraph (1)(f) is intention.
22
Note:
For intention, see subsection 5.2(2).
23
Assisting countries etc. engaged in armed hostilities against the
24
ADF
25
(4) A person commits an offence if:
26
(a) a country or organisation is engaged in armed hostilities
27
against the Australian Defence Force; and
28
(b) the person engages in conduct; and
29
(c) the person intends that the conduct will materially assist the
30
country or organisation to engage in armed hostilities against
31
the Australian Defence Force; and
32
(d) the conduct assists the country or organisation to engage in
33
armed hostilities against the Australian Defence Force; and
34
(e) when the person engages in the conduct, the person:
35
(i) is an Australian citizen; or
36
Treason and urging violence Schedule 1
Amendments commencing on the day after Royal Assent Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 7
(ii) is a resident of Australia; or
1
(iii) has voluntarily put himself or herself under the
2
protection of the Commonwealth; or
3
(iv) is a body corporate incorporated by or under a law of
4
the Commonwealth or of a State or Territory.
5
Penalty: Imprisonment for life.
6
Note:
If a body corporate is convicted of an offence against subsection (4),
7
subsection 4B(3) of the Crimes Act 1914 allows a court to impose a
8
fine of up to 10,000 penalty units.
9
(5) The fault element for paragraph (4)(e) is intention.
10
Note:
For intention, see subsection 5.2(2).
11
Humanitarian aid
12
(6) Subsections (1) and (4) do not apply to engagement in conduct by
13
way of, or for the purposes of, the provision of aid of a
14
humanitarian nature.
15
Note 1:
A defendant bears an evidential burden in relation to the matter in
16
subsection (6). See subsection 13.3(3).
17
Note 2:
There is a defence in section 80.3 for acts done in good faith.
18
16 Saving--Proclamations
19
A Proclamation in force for the purposes of paragraph 80.1(1)(e) of the
20
Criminal Code just before the commencement of this item has effect,
21
from that commencement, as if it had been made for the purposes of
22
paragraph 80.1AA(1)(b) of that Code, as inserted by this Schedule.
23
17 Before section 80.2 of the Criminal Code
24
Insert:
25
Subdivision C--Urging violence
26
18 Subsection 80.2(1) of the Criminal Code
27
Repeal the subsection, substitute:
28
Urging the overthrow of the Constitution or Government by force
29
or violence
30
(1) A person (the first person) commits an offence if:
31
Schedule 1 Treason and urging violence
Part 1 Amendments commencing on the day after Royal Assent
8 National Security Legislation Amendment Bill 2010 No. , 2010
(a) the first person intentionally urges another person to
1
overthrow by force or violence:
2
(i) the Constitution; or
3
(ii) the Government of the Commonwealth, of a State or of
4
a Territory; or
5
(iii) the lawful authority of the Government of the
6
Commonwealth; and
7
(b) the first person does so intending that force or violence will
8
occur.
9
Penalty: Imprisonment for 7 years.
10
Note:
For intention, see section 5.2.
11
Note:
The heading to section 80.2 of the Criminal Code is replaced by the heading "Urging
12
violence against the Constitution etc.".
13
19 Subsection 80.2(2) of the Criminal Code
14
Omit "first-mentioned", substitute "first".
15
20 Subsection 80.2(3) of the Criminal Code
16
Repeal the subsection, substitute:
17
Urging interference in Parliamentary elections or constitutional
18
referenda by force or violence
19
(3) A person (the first person) commits an offence if:
20
(a) the first person intentionally urges another person to
21
interfere, by force or violence, with lawful processes for:
22
(i) an election of a member or members of a House of the
23
Parliament; or
24
(ii) a referendum; and
25
(b) the first person does so intending that force or violence will
26
occur.
27
Penalty: Imprisonment for 7 years.
28
Note:
For intention, see section 5.2.
29
21 Subsection 80.2(4) of the Criminal Code
30
Omit "that the first-mentioned", substitute ", or for a referendum, that
31
the first".
32
Treason and urging violence Schedule 1
Amendments commencing on the day after Royal Assent Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 9
22 Subsection 80.2(6) of the Criminal Code
1
Omit "first-mentioned", substitute "first".
2
23 At the end of subsection 80.2(6) of the Criminal Code
3
Add:
4
Note:
There is a defence in section 80.3 for acts done in good faith.
5
24 Subsections 80.2(7) to (9) of the Criminal Code
6
Repeal the subsections.
7
25 Before section 80.3 of the Criminal Code
8
Insert:
9
Subdivision D--Common provisions
10
26 Subsection 80.3(1) of the Criminal Code
11
Omit "Sections 80.1 and 80.2", substitute "Subdivisions B and C".
12
27 Subparagraph 80.3(2)(b)(ii) of the Criminal Code
13
Omit "paragraph 80.1(1)(e)", substitute "paragraph 80.1AA(1)(b)".
14
28 At the end of section 80.3 of the Criminal Code
15
Add:
16
(3) Without limiting subsection (2), in considering a defence under
17
subsection (1) in respect of an offence against Subdivision C, the
18
Court may have regard to any relevant matter, including whether
19
the acts were done:
20
(a) in the development, performance, exhibition or distribution
21
of an artistic work; or
22
(b) in the course of any statement, publication, discussion or
23
debate made or held for any genuine academic, artistic or
24
scientific purpose or any other genuine purpose in the public
25
interest; or
26
(c) in the dissemination of news or current affairs.
27
29 Application
28
Schedule 1 Treason and urging violence
Part 1 Amendments commencing on the day after Royal Assent
10 National Security Legislation Amendment Bill 2010 No. , 2010
The reference in subsection 80.3(3) of the Criminal Code, as added by
1
this Schedule, to an offence against Subdivision C of Division 80 of that
2
Code includes a reference to an offence against section 80.2 of that
3
Code as in force before the commencement of this item.
4
30 Section 80.5 of the Criminal Code
5
Repeal the section.
6
31 Application
7
The amendment of the Criminal Code made by item 30 of this Schedule
8
applies in relation to offences committed after the commencement of
9
this item.
10
32 Dictionary in the Criminal Code
11
Insert:
12
referendum has the same meaning as in the Referendum
13
(Machinery Provisions) Act 1984.
14
15
Treason and urging violence Schedule 1
Amendments commencing 28 days after Royal Assent Part 2
National Security Legislation Amendment Bill 2010 No. , 2010 11
Part 2--Amendments commencing 28 days after
1
Royal Assent
2
Criminal Code Act 1995
3
33 Subsection 80.2(5) of the Criminal Code
4
Repeal the subsection.
5
34 Subsection 80.2(6) of the Criminal Code
6
Repeal the subsection (not including the note).
7
35 At the end of Subdivision C of Division 80 of the Criminal
8
Code
9
Add:
10
80.2A Urging violence against groups
11
Offences
12
(1) A person (the first person) commits an offence if:
13
(a) the first person intentionally urges another person, or a group,
14
to use force or violence against a group (the targeted group);
15
and
16
(b) the first person does so intending that force or violence will
17
occur; and
18
(c) the targeted group is distinguished by race, religion,
19
nationality, national or ethnic origin or political opinion; and
20
(d) the use of the force or violence would threaten the peace,
21
order and good government of the Commonwealth.
22
Penalty: Imprisonment for 7 years.
23
Note:
For intention, see section 5.2.
24
(2) A person (the first person) commits an offence if:
25
(a) the first person intentionally urges another person, or a group,
26
to use force or violence against a group (the targeted group);
27
and
28
(b) the first person does so intending that force or violence will
29
occur; and
30
Schedule 1 Treason and urging violence
Part 2 Amendments commencing 28 days after Royal Assent
12 National Security Legislation Amendment Bill 2010 No. , 2010
(c) the targeted group is distinguished by race, religion,
1
nationality, national or ethnic origin or political opinion.
2
Penalty: Imprisonment for 5 years.
3
Note:
For intention, see section 5.2.
4
(3) The fault element for paragraphs (1)(c) and (2)(c) is recklessness.
5
Note:
For recklessness, see section 5.4.
6
Alternative verdict
7
(4) Subsection (5) applies if, in a prosecution for an offence (the
8
prosecuted offence) against subsection (1), the trier of fact:
9
(a) is not satisfied that the defendant is guilty of the offence; but
10
(b) is satisfied beyond reasonable doubt that the defendant is
11
guilty of an offence (the alternative offence) against
12
subsection (2).
13
(5) The trier of fact may find the defendant not guilty of the prosecuted
14
offence but guilty of the alternative offence, so long as the
15
defendant has been accorded procedural fairness in relation to that
16
finding of guilt.
17
Note:
There is a defence in section 80.3 for acts done in good faith.
18
80.2B Urging violence against members of groups
19
Offences
20
(1) A person (the first person) commits an offence if:
21
(a) the first person intentionally urges another person, or a group,
22
to use force or violence against a person (the targeted
23
person); and
24
(b) the first person does so intending that force or violence will
25
occur; and
26
(c) the first person does so because of his or her belief that the
27
targeted person is a member of a group (the targeted group);
28
and
29
(d) the targeted group is distinguished by race, religion,
30
nationality, national or ethnic origin or political opinion; and
31
(e) the use of the force or violence would threaten the peace,
32
order and good government of the Commonwealth.
33
Treason and urging violence Schedule 1
Amendments commencing 28 days after Royal Assent Part 2
National Security Legislation Amendment Bill 2010 No. , 2010 13
Penalty: Imprisonment for 7 years.
1
Note:
For intention, see section 5.2.
2
(2) A person (the first person) commits an offence if:
3
(a) the first person intentionally urges another person, or a group,
4
to use force or violence against a person (the targeted
5
person); and
6
(b) the first person does so intending that force or violence will
7
occur; and
8
(c) the first person does so because of his or her belief that the
9
targeted person is a member of a group (the targeted group);
10
and
11
(d) the targeted group is distinguished by race, religion,
12
nationality, national or ethnic origin or political opinion.
13
Penalty: Imprisonment for 5 years.
14
Note:
For intention, see section 5.2.
15
(3) For the purposes of paragraphs (1)(c) and (2)(c), it is immaterial
16
whether the targeted person actually is a member of the targeted
17
group.
18
(4) The fault element for paragraphs (1)(d) and (2)(d) is recklessness.
19
Note:
For recklessness, see section 5.4.
20
Alternative verdict
21
(5) Subsection (6) applies if, in a prosecution for an offence (the
22
prosecuted offence) against subsection (1), the trier of fact:
23
(a) is not satisfied that the defendant is guilty of the offence; but
24
(b) is satisfied beyond reasonable doubt that the defendant is
25
guilty of an offence (the alternative offence) against
26
subsection (2).
27
(6) The trier of fact may find the defendant not guilty of the prosecuted
28
offence but guilty of the alternative offence, so long as the
29
defendant has been accorded procedural fairness in relation to that
30
finding of guilt.
31
Note:
There is a defence in section 80.3 for acts done in good faith.
32
36 Section 80.4 of the Criminal Code
33
Schedule 1 Treason and urging violence
Part 2 Amendments commencing 28 days after Royal Assent
14 National Security Legislation Amendment Bill 2010 No. , 2010
Omit "Section", substitute "(1) Subject to subsection (2), section".
1
37 At the end of section 80.4 of the Criminal Code
2
Add:
3
(2) Section 15.2 (extended geographical jurisdiction--category B)
4
applies to an offence against subsection 80.2A(2) or 80.2B(2).
5
6
Terrorism Schedule 2
Terrorism Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 15
Schedule 2--Terrorism
1
Part 1--Terrorism
2
Classification (Publications, Films and Computer Games)
3
Act 1995
4
1 Paragraph 9A(2)(c)
5
Before "risk", insert "substantial".
6
Criminal Code Act 1995
7
2 Paragraph 102.1(1A)(c) of the Criminal Code
8
Before "risk", insert "substantial".
9
3 Subsection 102.1(3) of the Criminal Code
10
Omit "second anniversary", substitute "third anniversary".
11
4 Transitional--existing regulations specifying organisations
12
The amendment of subsection 102.1(3) of the Criminal Code made by
13
this Schedule:
14
(a) applies to any regulation for the purposes of paragraph (b) of
15
the definition of terrorist organisation in section 102.1 of the
16
Criminal Code that was in force immediately before the
17
commencement of this item; and
18
(b) does not apply to such a regulation that had ceased to have
19
effect before that commencement.
20
5 Subsection 102.1A(1) of the Criminal Code
21
Omit "Committee on ASIO, ASIS and DSD", substitute "Committee on
22
Intelligence and Security".
23
Note:
The heading to section 102.1A of the Criminal Code is altered by omitting "Committee
24
on ASIO, ASIS and DSD" and substituting "Committee on Intelligence and
25
Security".
26
6 Subsection 102.1A(2) of the Criminal Code
27
Repeal the subsection.
28
29
Schedule 2 Terrorism
Part 2 Miscellaneous
16 National Security Legislation Amendment Bill 2010 No. , 2010
Part 2--Miscellaneous
1
Criminal Code Act 1995
2
7 At the end of section 100.5 of the Criminal Code
3
Add:
4
(3) Despite subsections (1) and (2), sections 22A, 22B and 22C of the
5
Acts Interpretation Act 1901 apply to this Part.
6
8 Subsection 102.1(1) of the Criminal Code (paragraph (a) of
7
the definition of close family member)
8
Omit ", de facto spouse or same-sex partner", substitute "or de facto
9
partner".
10
9 Subsection 102.1(1) of the Criminal Code (at the end of the
11
definition of close family member)
12
Add:
13
Note:
See also subsection (19).
14
10 At the end of section 102.1 of the Criminal Code
15
Add:
16
(19) For the purposes of this Division, the close family members of a
17
person are taken to include the following (without limitation):
18
(a) a de facto partner of the person;
19
(b) someone who is the child of the person, or of whom the
20
person is the child, because of the definition of child in the
21
Dictionary;
22
(c) anyone else who would be a member of the person's family if
23
someone mentioned in paragraph (a) or (b) is taken to be a
24
close family member of the person.
25
11 Subsection 105.35(3) of the Criminal Code (paragraph (a)
26
of the definition of family member)
27
Omit ", de facto spouse or same-sex partner", substitute "or de facto
28
partner".
29
12 At the end of section 105.35 of the Criminal Code
30
Terrorism Schedule 2
Miscellaneous Part 2
National Security Legislation Amendment Bill 2010 No. , 2010 17
Add:
1
(4) For the purposes of this section, the family members of a person
2
are taken to include the following (without limitation):
3
(a) a de facto partner of the person;
4
(b) someone who is the child of the person, or of whom the
5
person is the child, because of the definition of child in the
6
Dictionary;
7
(c) anyone else who would be a member of the person's family if
8
someone mentioned in paragraph (a) or (b) is taken to be a
9
family member of the person.
10
13 Subsection 390.1(1) of the Criminal Code (definition of
11
child)
12
Repeal the definition.
13
14 Subsection 390.1(1) of the Criminal Code (paragraph (c) of
14
the definition of close family member)
15
Omit "stepchild", substitute "step-child".
16
15 Subsection 390.1(1) of the Criminal Code (definition of
17
de facto partner)
18
Repeal the definition.
19
16 Subsection 390.1(1) of the Criminal Code (definition of
20
parent)
21
Repeal the definition.
22
17 Subsection 390.1(1) of the Criminal Code (definition of
23
stepchild)
24
Repeal the definition.
25
18 Subsection 390.1(1) of the Criminal Code (definition of
26
step-parent)
27
Repeal the definition.
28
19 Dictionary in the Criminal Code
29
Insert:
30
Schedule 2 Terrorism
Part 2 Miscellaneous
18 National Security Legislation Amendment Bill 2010 No. , 2010
child: without limiting who is a child of a person for the purposes
1
of this Code, someone is the child of a person if he or she is a child
2
of the person within the meaning of the Family Law Act 1975.
3
20 Dictionary in the Criminal Code
4
Insert:
5
de facto partner has the meaning given by the Acts Interpretation
6
Act 1901.
7
21 Dictionary in the Criminal Code
8
Insert:
9
parent: without limiting who is a parent of a person for the
10
purposes of this Code, someone is the parent of a person if the
11
person is his or her child because of the definition of child in this
12
Dictionary.
13
22 Dictionary in the Criminal Code
14
Insert:
15
step-child: without limiting who is a step-child of a person for the
16
purposes of this Code, someone who is a child of a de facto partner
17
of the person is the step-child of the person, if he or she would be
18
the person's step-child except that the person is not legally married
19
to the partner.
20
23 Dictionary in the Criminal Code
21
Insert:
22
step-parent: without limiting who is a step-parent of a person for
23
the purposes of this Code, someone who is a de facto partner of a
24
parent of the person is the step-parent of the person, if he or she
25
would be the person's step-parent except that he or she is not
26
legally married to the person's parent.
27
28
Terrorism Schedule 2
Contingent amendment Part 3
National Security Legislation Amendment Bill 2010 No. , 2010 19
Part 3--Contingent amendment
1
Criminal Code Act 1995
2
24 Subsections 272.3(2) and (3) of the Criminal Code
3
Repeal the subsections, substitute:
4
(2) Without limiting who is a grandparent of a person for the purposes
5
of this section, a person (the first person) is the grandparent of
6
another person if the first person is a parent or step-parent of a
7
parent or step-parent of the other person.
8
9
Schedule 3 Investigation of Commonwealth offences
20 National Security Legislation Amendment Bill 2010 No. , 2010
Schedule 3--Investigation of Commonwealth
1
offences
2
3
Crimes Act 1914
4
1 Subsection 23B(1) (definition of arrested)
5
Repeal the definition, substitute:
6
arrested: a person is arrested if:
7
(a) the person is arrested for a Commonwealth offence; and
8
(b) the person's arrest has not ceased under subsection (3) or (4);
9
and
10
(c) the person has not been released.
11
2 Subsection 23B(1)
12
Insert:
13
authorising officer, in relation to an investigating official, means:
14
(a) if the investigating official is a member or special member of
15
the Australian Federal Police--a person for the time being
16
holding office or acting as:
17
(i) the Commissioner; or
18
(ii) a Deputy Commissioner; or
19
(iii) a member or special member of the Australian Federal
20
Police who is of the rank of superintendent or higher; or
21
(b) if the investigating official is a member of the police force of
22
a State or Territory--a person for the time being holding
23
office or acting as:
24
(i) the Commissioner or the person holding equivalent
25
rank; or
26
(ii) an Assistant Commissioner or a person holding
27
equivalent rank; or
28
(iii) a superintendent or a person holding equivalent rank;
29
of the police force of that State or Territory.
30
3 Subsection 23B(1) (definition of investigation period)
31
Omit "or 23CA", substitute "or 23DB".
32
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 21
4 Subsection 23B(1)
1
Insert:
2
judicial officer, in relation to a person who is arrested, means:
3
(a) a magistrate; or
4
(b) a justice of the peace; or
5
(c) a person authorised to grant bail under the law of the State or
6
Territory in which the person was arrested.
7
5 Subsection 23B(1)
8
Insert:
9
serious Commonwealth offence means a Commonwealth offence
10
that is punishable by imprisonment for a period exceeding 12
11
months.
12
6 Subsection 23B(1) (definition of under arrest)
13
Repeal the definition, substitute:
14
under arrest: a person is under arrest if:
15
(a) the person is arrested for a Commonwealth offence; and
16
(b) the person's arrest has not ceased under subsection (3) or (4);
17
and
18
(c) the person has not been released.
19
7 Subsection 23B(3)
20
Omit all the words after "in respect of that offence by", substitute:
21
a judicial officer otherwise than under any of the following
22
provisions of the Service and Execution of Process Act 1992:
23
(a) paragraph 83(3)(b), (4)(b), (8)(a) or (8)(b);
24
(b)
subsection
83(12);
25
(c)
paragraph
83(14)(a);
26
(d) subparagraph 84(4)(a)(ii) or (6)(a)(i).
27
8 Before section 23C
28
Insert:
29
Schedule 3 Investigation of Commonwealth offences
22 National Security Legislation Amendment Bill 2010 No. , 2010
Subdivision A--Non-terrorism offences
1
Note:
The heading to section 23C is replaced by the heading "Period of investigation if
2
arrested for a non-terrorism offence".
3
9 At the end of subsection 23C(1)
4
Add:
5
Note:
A person would not be arrested for a Commonwealth offence if, for
6
example, the person has been released under subsection 3W(2)--see
7
the definition of arrested in subsection 23B(1).
8
10 Subsections 23C(2) and (3)
9
Repeal the subsections, substitute:
10
(2) The person may, while arrested for the Commonwealth offence, be
11
detained for the purpose of investigating either or both of the
12
following:
13
(a) whether the person committed the offence;
14
(b) whether the person committed another Commonwealth
15
offence that an investigating official reasonably suspects that
16
the person has committed.
17
(2A) Subsection (2) ceases to apply at the end of the investigation
18
period, but that cessation does not affect any other power to detain
19
the person.
20
(3) If the person is not released within the investigation period, the
21
person must be brought before a judicial officer within the
22
investigation period or, if it is not practicable to do so within the
23
investigation period, as soon as practicable after the end of the
24
investigation period.
25
11 Subsection 23C(4)
26
Omit "section 23D", substitute "section 23DA".
27
12 Paragraph 23C(6)(b)
28
Omit "section 23CA", substitute "section 23DB".
29
13 Subsection 23C(7)
30
Repeal the subsection, substitute:
31
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 23
(7) In ascertaining any period of time for the purposes of
1
subsection (4) or (6), disregard any reasonable time during which
2
the questioning of the person is suspended, or delayed, for one or
3
more of the following reasons:
4
(a) to allow the person to be conveyed from the place at which
5
the person is arrested to the nearest premises at which the
6
investigating official has access to facilities for complying
7
with this Part;
8
(b) to allow the person, or someone else on the person's behalf,
9
to communicate with a legal practitioner, friend, relative,
10
parent, guardian, interpreter or other person as provided by
11
this Part;
12
(c) to allow such a legal practitioner, friend, relative, parent,
13
guardian, interpreter or other person to arrive at the place
14
where the questioning is to take place;
15
(d) to allow the person to receive medical attention;
16
(e) because of the person's intoxication;
17
(f) to allow for an identification parade to be arranged and
18
conducted;
19
(g) to allow the making of an application under section 3ZQB or
20
the carrying out of a prescribed procedure within the meaning
21
of Division 4A of Part IAA;
22
(h) to allow the making and disposing of an application under
23
section 23D, 23WU or 23XB;
24
(i) to allow a constable to inform the person of matters specified
25
in section 23WJ;
26
(j) to allow the person to rest or recuperate;
27
(k) to allow a forensic procedure to be carried out on the person
28
by order of a magistrate under Division 5 of Part ID;
29
(l) because section 23XGD applies and the time is to be
30
disregarded in working out a period of time for the purposes
31
of that section.
32
(7A) To avoid doubt, subsection (7) does not prevent the person being
33
questioned during a time covered by a paragraph of subsection (7),
34
but if the person is questioned during such a time, the time is not to
35
be disregarded.
36
Note:
The following heading to subsection 23C(8) is inserted "Evidentiary provision".
37
14 Subsection 23C(9)
38
Schedule 3 Investigation of Commonwealth offences
24 National Security Legislation Amendment Bill 2010 No. , 2010
Repeal the subsection.
1
15 Sections 23CA to 23E
2
Repeal the sections, substitute:
3
23D Application may be made for extension of investigation period
4
(1) If a person is arrested for a serious Commonwealth offence (other
5
than a terrorism offence), an investigating official may, at or before
6
the end of the investigation period, apply to a magistrate for an
7
extension of the investigation period.
8
(2) The application must be made before the magistrate, by telephone
9
or in writing.
10
(3) Subject to subsection (4), the application must include statements
11
of all of the following:
12
(a) whether it appears to the investigating official that the person
13
is under 18;
14
(b) whether it appears to the investigating official that the person
15
is an Aboriginal person or a Torres Strait Islander;
16
(c) the outcome of any previous application under this section in
17
relation to the person and the investigation period;
18
(d) the period (if any) by which the investigation period has been
19
reduced under subsection 23C(6);
20
(e) the total amount of time (if any) that has been disregarded
21
under subsection 23C(7) in ascertaining the investigation
22
period under subsection 23C(4);
23
(f) the maximum amount of time by which the investigation
24
period could be extended;
25
(g) the reasons why the investigating official believes the
26
investigation period should be extended;
27
(h) the period by which the investigating official believes the
28
investigation period should be extended.
29
(4) Subsection (3) does not require any information to be included in
30
the application if disclosure of that information is likely:
31
(a) to prejudice national security (within the meaning of the
32
National Security Information (Criminal and Civil
33
Proceedings) Act 2004); or
34
(b) to be protected by public interest immunity; or
35
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 25
(c) to put at risk ongoing operations by law enforcement
1
agencies or intelligence agencies; or
2
(d) to put at risk the safety of the community, law enforcement
3
officers or intelligence officers.
4
(5) Before the application is considered by the magistrate, the
5
investigating official:
6
(a)
must:
7
(i) if the application is to be made in writing--provide a
8
copy of the application to the person, or to his or her
9
legal representative; or
10
(ii) otherwise--inform the person, or his or her legal
11
representative, of all matters or information in the
12
application (other than information of a kind mentioned
13
in subsection (4)); and
14
(b) must inform the person that he or she, or his or her legal
15
representative, may make representations to the magistrate
16
about the application.
17
(6) If the application contains any information of a kind mentioned in
18
subsection (4), the investigating official may remove it from any
19
copy of the application that is provided to the person or to his or
20
her legal representative.
21
(7) The person, or his or her legal representative, may make
22
representations to the magistrate about the application.
23
23DA Magistrate may extend investigation period
24
(1) This section applies if:
25
(a) a person is arrested for a serious Commonwealth offence
26
(other than a terrorism offence); and
27
(b) an application has been made under subsection 23D(1) to a
28
magistrate in respect of the person.
29
Extension of investigation period
30
(2) Subject to subsection (3), the magistrate may extend the
31
investigation period, by signed written instrument, if satisfied that:
32
(a) the offence is a serious Commonwealth offence (other than a
33
terrorism offence); and
34
Schedule 3 Investigation of Commonwealth offences
26 National Security Legislation Amendment Bill 2010 No. , 2010
(b) further detention of the person is necessary to preserve or
1
obtain evidence or to complete the investigation into the
2
offence or into another serious Commonwealth offence; and
3
(c) the investigation into the offence is being conducted properly
4
and without delay; and
5
(d) the person, or his or her legal representative, has been given
6
the opportunity to make representations about the
7
application.
8
(3) Subject to subsection (4), the instrument must set out:
9
(a) the day and time when the extension was granted; and
10
(b) the reasons for granting the extension; and
11
(c) the terms of the extension.
12
(4) Subsection (3) does not require any information to be included in
13
the instrument if disclosure of that information is likely:
14
(a) to prejudice national security (within the meaning of the
15
National Security Information (Criminal and Civil
16
Proceedings) Act 2004); or
17
(b) to be protected by public interest immunity; or
18
(c) to put at risk ongoing operations by law enforcement
19
agencies or intelligence agencies; or
20
(d) to put at risk the safety of the community, law enforcement
21
officers or intelligence officers.
22
(5) The magistrate must:
23
(a) give the investigating official a copy of the instrument as
24
soon as practicable after signing it; and
25
(b) if the instrument was made as a result of an application made
26
by telephone, telex, fax or other electronic means--inform
27
the investigating official of the matters included in the
28
instrument.
29
Note: See
section
23E.
30
(6) The investigating official must:
31
(a) as soon as practicable after receiving a copy of the instrument
32
under paragraph (5)(a), give the person, or his or her legal
33
representative, a copy of it; and
34
(b) if the instrument was made as a result of an application made
35
by telephone, telex, fax or other electronic means--inform
36
the person, or his or her legal representative, of the matters
37
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 27
included in the instrument as soon as practicable after being
1
informed of them under paragraph (5)(b).
2
(7) The investigation period may be extended for a period not
3
exceeding 8 hours, and must not be extended more than once.
4
16 At the end of Division 2 of Part IC
5
Add:
6
Subdivision B--Terrorism offences
7
23DB Period of investigation if arrested for a terrorism offence
8
(1) If a person is arrested for a terrorism offence, the following
9
provisions apply.
10
Note:
A person would not be arrested for a terrorism offence if, for example,
11
the person has been released under subsection 3W(2)--see the
12
definition of arrested in subsection 23B(1).
13
(2) The person may, while arrested for the terrorism offence, be
14
detained for the purpose of investigating either or both of the
15
following:
16
(a) whether the person committed the offence;
17
(b) whether the person committed another Commonwealth
18
offence that an investigating official reasonably suspects that
19
the person has committed.
20
(3) Subsection (2) ceases to apply at the end of the investigation
21
period, but that cessation does not affect any other power to detain
22
the person.
23
(4) If the person is not released within the investigation period, the
24
person must be brought before a judicial officer within the
25
investigation period or, if it is not practicable to do so within the
26
investigation period, as soon as practicable after the end of the
27
investigation period.
28
(5) For the purposes of this section, but subject to subsections (7) and
29
(9), the investigation period begins when the person is arrested, and
30
ends at a later time that is reasonable, having regard to all the
31
circumstances, but does not extend beyond:
32
(a) if the person is or appears to be under 18, an Aboriginal
33
person or a Torres Strait Islander--2 hours; or
34
Schedule 3 Investigation of Commonwealth offences
28 National Security Legislation Amendment Bill 2010 No. , 2010
(b) in any other case--4 hours;
1
after the arrest, unless the period is extended under section 23DF.
2
(6) In ascertaining any period of time for the purposes of this section,
3
regard shall be had to the number and complexity of matters being
4
investigated.
5
(7) If the person has been arrested more than once within any period of
6
48 hours, the investigation period for each arrest other than the first
7
is reduced by so much of any of the following periods as occurred
8
within that 48 hours:
9
(a) any earlier investigation period or periods under this section;
10
(b) any earlier investigation period or periods under section 23C.
11
(8) However, in relation to each first arrest, disregard subsection (7)
12
for any later arrest if:
13
(a) the later arrest is for a Commonwealth offence:
14
(i) that was committed after the end of the person's period
15
of detention under this Part for the first arrest; or
16
(ii) that arose in different circumstances to those in which
17
any Commonwealth offence to which the first arrest
18
relates arose, and for which new evidence has been
19
found since the first arrest; and
20
(b) the person's questioning associated with the later arrest does
21
not relate to:
22
(i) a Commonwealth offence to which the first arrest
23
relates; or
24
(ii) the circumstances in which such an offence was
25
committed.
26
(9) In ascertaining any period of time for the purposes of
27
subsection (5) or (7), disregard any reasonable time during which
28
the questioning of the person is suspended, or delayed, for one or
29
more of the following reasons:
30
(a) to allow the person to be conveyed from the place at which
31
the person is arrested to the nearest premises at which the
32
investigating official has access to facilities for complying
33
with this Part;
34
(b) to allow the person, or someone else on the person's behalf,
35
to communicate with a legal practitioner, friend, relative,
36
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 29
parent, guardian, interpreter or other person as provided by
1
this Part;
2
(c) to allow such a legal practitioner, friend, relative, parent,
3
guardian, interpreter or other person to arrive at the place
4
where the questioning is to take place;
5
(d) to allow the person to receive medical attention;
6
(e) because of the person's intoxication;
7
(f) to allow for an identification parade to be arranged and
8
conducted;
9
(g) to allow the making of an application under section 3ZQB or
10
the carrying out of a prescribed procedure within the meaning
11
of Division 4A of Part IAA;
12
(h) to allow the making and disposing of an application under
13
section 23DC, 23DE, 23WU or 23XB;
14
(i) to allow a constable to inform the person of matters specified
15
in section 23WJ;
16
(j) to allow the person to rest or recuperate;
17
(k) to allow a forensic procedure to be carried out on the person
18
by order of a magistrate under Division 5 of Part ID;
19
(l) because section 23XGD applies and the time is to be
20
disregarded in working out a period of time for the purposes
21
of that section;
22
(m) subject to subsection (11), because the time is within a period
23
specified under section 23DD, so long as the suspension or
24
delay in the questioning of the person is reasonable.
25
(10) To avoid doubt:
26
(a) subsection (9) does not prevent the person being questioned
27
during a time covered by a paragraph of subsection (9), but if
28
the person is questioned during such a time, the time is not to
29
be disregarded; and
30
(b) a period specified under section 23DD is not extended by any
31
time covered by a paragraph of subsection (9).
32
Limit on time that may be disregarded under paragraph (9)(m)
33
(11) No more than 7 days may be disregarded under paragraph (9)(m)
34
in relation to an arrest. However:
35
(a) if the person has been arrested more than once within any
36
period of 48 hours, the 7 day period for each arrest other than
37
Schedule 3 Investigation of Commonwealth offences
30 National Security Legislation Amendment Bill 2010 No. , 2010
the first arrest is reduced by any period or periods specified
1
under section 23DD in relation to any earlier arrest; and
2
(b) subsection (8) applies as if the reference in that subsection to
3
subsection (7) were a reference to this subsection.
4
Evidentiary provision
5
(12) In any proceedings, the burden lies on the prosecution to prove
6
that:
7
(a) the person was brought before a judicial officer as soon as
8
practicable; or
9
(b) any particular time was covered by a provision of
10
subsection (9).
11
23DC Time during which suspension or delay of questioning may be
12
disregarded--application
13
(1) This section applies if:
14
(a) a person is arrested for a terrorism offence; and
15
(b) an investigation is being conducted into whether the person
16
committed that terrorism offence or another terrorism
17
offence.
18
Application for specification of period
19
(2) At or before the end of the investigation period, an investigating
20
official (within the meaning of paragraph (a) or (b) of the
21
definition of that expression) may apply, in writing, to a magistrate
22
for a period to be specified for the purpose of paragraph
23
23DB(9)(m).
24
(3) The application must not be made unless the application is
25
authorised, in writing, by an authorising officer.
26
(4) Subject to subsection (5), the application must include statements
27
of all of the following:
28
(a) whether it appears to the investigating official that the person
29
is under 18;
30
(b) whether it appears to the investigating official that the person
31
is an Aboriginal person or a Torres Strait Islander;
32
(c) the outcome of any previous application under this section in
33
relation to:
34
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 31
(i) the person and the arrest; and
1
(ii) if the person was arrested at any time during the period
2
of 48 hours before the arrest--the person and the earlier
3
arrest or arrests;
4
(d) the total amount of time that has been disregarded under
5
subsection 23DB(9) in ascertaining the investigation period
6
in relation to:
7
(i) the person and the arrest; and
8
(ii) if the person was arrested at any time during the period
9
of 48 hours before the arrest--the person and the earlier
10
arrest or arrests;
11
(e) the reasons why the investigating official believes the period
12
should be specified, which may, for example, be or include
13
one or more of the following:
14
(i) the need to collate and analyse information relevant to
15
the investigation from sources other than the
16
questioning of the person (including, for example,
17
information obtained from a place outside Australia);
18
(ii) the need to allow authorities in or outside Australia
19
(other than authorities in an organisation of which the
20
investigating official is part) time to collect information
21
relevant to the investigation on the request of the
22
investigating official;
23
(iii) the fact that the investigating official has requested the
24
collection of information relevant to the investigation
25
from a place outside Australia that is in a time zone
26
different from the investigating official's time zone;
27
(iv) the fact that translation is necessary to allow the
28
investigating official to seek information from a place
29
outside Australia and/or be provided with such
30
information in a language that the official can readily
31
understand;
32
(f) the period that the investigating official believes should be
33
specified.
34
(5) Subsection (4) does not require any information to be included in
35
the application if disclosure of that information is likely:
36
(a) to prejudice national security (within the meaning of the
37
National Security Information (Criminal and Civil
38
Proceedings) Act 2004); or
39
Schedule 3 Investigation of Commonwealth offences
32 National Security Legislation Amendment Bill 2010 No. , 2010
(b) to be protected by public interest immunity; or
1
(c) to put at risk ongoing operations by law enforcement
2
agencies or intelligence agencies; or
3
(d) to put at risk the safety of the community, law enforcement
4
officers or intelligence officers.
5
(6) Before the application is considered by the magistrate, the
6
investigating official must:
7
(a) provide a copy of the application to the person or to his or her
8
legal representative; and
9
(b) inform the person that he or she, or his or her legal
10
representative, may make representations to the magistrate
11
about the application.
12
(7) If the application contains any information of a kind mentioned in
13
subsection (5), the investigating official may remove it from the
14
copy of the application that is provided to the person or to his or
15
her legal representative.
16
(8) The person, or his or her legal representative, may make
17
representations to the magistrate about the application.
18
23DD Time during which suspension or delay of questioning may be
19
disregarded--time specified by magistrate
20
(1) This section applies if:
21
(a) a person is arrested for a terrorism offence; and
22
(b) an application has been made under subsection 23DC(2) to a
23
magistrate in respect of the person.
24
Specification of period
25
(2) The magistrate may, by signed instrument, specify a period starting
26
at the time the instrument is signed, if satisfied that:
27
(a) it is appropriate to do so, having regard to:
28
(i) the application; and
29
(ii) the representations (if any) made by the person, or his or
30
her legal representative, about the application; and
31
(iii) any other relevant matters; and
32
(b) the offence is a terrorism offence; and
33
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 33
(c) detention of the person is necessary to preserve or obtain
1
evidence or to complete the investigation into the offence or
2
into another terrorism offence; and
3
(d) the investigation into the offence is being conducted properly
4
and without delay; and
5
(e) the application has been authorised by an authorising officer;
6
and
7
(f) the person, or his or her legal representative, has been given
8
the opportunity to make representations about the
9
application.
10
Instrument specifying period
11
(3) Subject to subsection (4), the instrument must:
12
(a) specify the period as a number (which may be less than one)
13
of hours; and
14
(b) set out the day and time when it was signed; and
15
(c) set out the reasons for specifying the period.
16
(4) Subsection (3) does not require any information to be included in
17
the instrument if disclosure of that information is likely:
18
(a) to prejudice national security (within the meaning of the
19
National Security Information (Criminal and Civil
20
Proceedings) Act 2004); or
21
(b) to be protected by public interest immunity; or
22
(c) to put at risk ongoing operations by law enforcement
23
agencies or intelligence agencies; or
24
(d) to put at risk the safety of the community, law enforcement
25
officers or intelligence officers.
26
(5) The magistrate must:
27
(a) give the investigating official a copy of the instrument as
28
soon as practicable after signing it; and
29
(b) if the instrument was made as a result of an application made
30
by telex, fax or other electronic means--inform the
31
investigating official of the matters included in the
32
instrument.
33
Note: See
section
23E.
34
(6) The investigating official must:
35
Schedule 3 Investigation of Commonwealth offences
34 National Security Legislation Amendment Bill 2010 No. , 2010
(a) as soon as practicable after receiving a copy of the instrument
1
under paragraph (5)(a), give the person, or his or her legal
2
representative, a copy of it; and
3
(b) if the instrument was made as a result of an application made
4
by telex, fax or other electronic means--inform the person,
5
or his or her legal representative, of the matters included in
6
the instrument as soon as practicable after being informed of
7
them under paragraph (5)(b).
8
23DE Application may be made for extension of investigation period
9
(1) If a person is arrested for a terrorism offence, an investigating
10
official (within the meaning of paragraph (a) or (b) of the
11
definition of that expression) may, at or before the end of the
12
investigation period, apply, in writing, to a magistrate for an
13
extension of the investigation period.
14
(2) The application must not be made unless the application is
15
authorised, in writing, by an authorising officer.
16
(3) Subject to subsection (4), the application must include statements
17
of all of the following:
18
(a) whether it appears to the investigating official that the person
19
is under 18;
20
(b) whether it appears to the investigating official that the person
21
is an Aboriginal person or a Torres Strait Islander;
22
(c) the outcome of any previous application under this section in
23
relation to the person and the investigation period;
24
(d) the period (if any) by which the investigation period has been
25
reduced under subsection 23DB(7);
26
(e) the total amount of time (if any) that has been disregarded
27
under subsection 23DB(9) in ascertaining the investigation
28
period;
29
(f) the maximum amount of time by which the investigation
30
period could be extended;
31
(g) the reasons why the investigating official believes the
32
investigation period should be extended;
33
(h) the period by which the investigating official believes the
34
investigation period should be extended.
35
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 35
(4) Subsection (3) does not require any information to be included in
1
the application if disclosure of that information is likely:
2
(a) to prejudice national security (within the meaning of the
3
National Security Information (Criminal and Civil
4
Proceedings) Act 2004); or
5
(b) to be protected by public interest immunity; or
6
(c) to put at risk ongoing operations by law enforcement
7
agencies or intelligence agencies; or
8
(d) to put at risk the safety of the community, law enforcement
9
officers or intelligence officers.
10
(5) Before the application is considered by the magistrate, the
11
investigating official must:
12
(a) provide a copy of the application to the person or to his or her
13
legal representative; and
14
(b) inform the person that he or she, or his or her legal
15
representative, may make representations to the magistrate
16
about the application.
17
(6) If the application contains any information of a kind mentioned in
18
subsection (4), the investigating official may remove it from the
19
copy of the application that is provided to the person or to his or
20
her legal representative.
21
(7) The person, or his or her legal representative, may make
22
representations to the magistrate about the application.
23
23DF Magistrate may extend investigation period
24
(1) This section applies if:
25
(a) a person is arrested for a terrorism offence; and
26
(b) an application has been made under subsection 23DE(1) to a
27
magistrate in respect of the person.
28
Extension of investigation period
29
(2) Subject to subsection (3), the magistrate may extend the
30
investigation period, by signed written instrument, if satisfied that:
31
(a) the offence is a terrorism offence; and
32
(b) further detention of the person is necessary to:
33
Schedule 3 Investigation of Commonwealth offences
36 National Security Legislation Amendment Bill 2010 No. , 2010
(i) preserve or obtain evidence related to the offence or to
1
another terrorism offence; or
2
(ii) complete the investigation into the offence or into
3
another terrorism offence; and
4
(c) the investigation into the offence is being conducted properly
5
and without delay; and
6
(d) the application has been authorised by an authorising officer;
7
and
8
(e) the person, or his or her legal representative, has been given
9
the opportunity to make representations about the
10
application.
11
(3) Subject to subsection (4), the instrument must set out:
12
(a) the day and time when the extension was granted; and
13
(b) the reasons for granting the extension; and
14
(c) the terms of the extension.
15
(4) Subsection (3) does not require any information to be included in
16
the instrument if disclosure of that information is likely:
17
(a) to prejudice national security (within the meaning of the
18
National Security Information (Criminal and Civil
19
Proceedings) Act 2004); or
20
(b) to be protected by public interest immunity; or
21
(c) to put at risk ongoing operations by law enforcement
22
agencies or intelligence agencies; or
23
(d) to put at risk the safety of the community, law enforcement
24
officers or intelligence officers.
25
(5) The magistrate must:
26
(a) give the investigating official a copy of the instrument as
27
soon as practicable after signing it; and
28
(b) if the instrument was made as a result of an application made
29
by telex, fax or other electronic means--inform the
30
investigating official of the matters included in the
31
instrument.
32
Note: See
section
23E.
33
(6) The investigating official must:
34
(a) as soon as practicable after receiving a copy of the instrument
35
under paragraph (5)(a), give the person, or his or her legal
36
representative, a copy of it; and
37
Investigation of Commonwealth offences Schedule 3
National Security Legislation Amendment Bill 2010 No. , 2010 37
(b) if the instrument was made as a result of an application made
1
by telex, fax or other electronic means--inform the person,
2
or his or her legal representative, of the matters included in
3
the instrument as soon as practicable after being informed of
4
them under paragraph (5)(b).
5
(7) The investigation period may be extended any number of times,
6
but the total of the periods of extension cannot be more than 20
7
hours.
8
Subdivision C--Miscellaneous
9
23E Evidentiary provisions if application made by electronic means
10
(1) This section applies if a magistrate has, under paragraph
11
23DA(5)(b), 23DD(5)(b) or 23DF(5)(b), informed an investigating
12
official of matters included in an instrument.
13
(2) As soon as practicable after being informed of those matters, the
14
investigating official must:
15
(a) complete a form of the instrument and write on it the name of
16
the magistrate and the particulars given by him or her; and
17
(b) forward it to the magistrate.
18
(3) If the form of the instrument completed by the investigating
19
official does not, in all material respects, accord with the terms of
20
the instrument signed by the magistrate, the instrument is taken to
21
have had no effect.
22
(4) In any proceedings, if the instrument signed by the magistrate is
23
not produced in evidence, the burden lies on the prosecution to
24
prove that the instrument was made.
25
17 Paragraph 23XGD(2)(h)
26
Omit "or 23CA(8)", substitute "or 23DB(9)".
27
18 Application
28
(1)
Subject to subitem (2), the amendments made by this Schedule apply in
29
relation to a person who is arrested after the commencement of this
30
item.
31
(2) If:
32
Schedule 3 Investigation of Commonwealth offences
38 National Security Legislation Amendment Bill 2010 No. , 2010
(a) a person has been arrested more than once within any period
1
of 48 hours; and
2
(b) the first of those arrests was made before the commencement
3
of this item;
4
the amendments made by this Schedule do not apply in relation to the
5
person for any later arrest that is made within that 48 hour period.
6
(3)
However, in relation to a first arrest, disregard subitem (2) for a later
7
arrest if:
8
(a) the later arrest is for a Commonwealth offence:
9
(i) that was committed after the end of the person's period
10
of detention under Part IC of the Crimes Act 1914 for
11
the first arrest; or
12
(ii) that arose in different circumstances to those in which
13
any Commonwealth offence to which the first arrest
14
relates arose, and for which new evidence has been
15
found since the first arrest; and
16
(b) the person's questioning associated with the later arrest does
17
not relate to:
18
(i) a Commonwealth offence to which the first arrest
19
relates; or
20
(ii) the circumstances in which such an offence was
21
committed.
22
(4)
In this item:
23
Commonwealth offence has the same meaning as in Part IC of the
24
Crimes Act 1914.
25
26
Powers to search premises in relation to terrorism offences Schedule 4
National Security Legislation Amendment Bill 2010 No. , 2010 39
Schedule 4--Powers to search premises in
1
relation to terrorism offences
2
3
Crimes Act 1914
4
1 Division 3A of Part IAA (heading)
5
Repeal the heading, substitute:
6
Division 3A--Powers in relation to terrorist acts and
7
terrorism offences
8
2 Section 3UB
9
Before "A police officer", insert "(1)".
10
3 At the end of section 3UB
11
Add:
12
(2) This section does not limit the operation of section 3UEA.
13
4 After section 3UE
14
Insert:
15
3UEA Emergency entry to premises without warrant
16
(1) A police officer may enter premises in accordance with this section
17
if the police officer suspects, on reasonable grounds, that:
18
(a) it is necessary to exercise a power under subsection (2) in
19
order to prevent a thing that is on the premises from being
20
used in connection with a terrorism offence; and
21
(b) it is necessary to exercise the power without the authority of
22
a search warrant because there is a serious and imminent
23
threat to a person's life, health or safety.
24
(2) The police officer may:
25
(a) search the premises for the thing; and
26
(b) seize the thing if he or she finds it there.
27
(3) If, in the course of searching for the thing, the police officer finds
28
another thing that the police officer suspects, on reasonable
29
Schedule 4 Powers to search premises in relation to terrorism offences
40 National Security Legislation Amendment Bill 2010 No. , 2010
grounds, to be relevant to an indictable offence or a summary
1
offence, the police officer may secure the premises pending the
2
obtaining of a warrant under Part IAA in relation to the premises.
3
(4) Premises must not be secured under subsection (3) for longer than
4
is reasonably necessary to obtain the warrant.
5
(5) In the course of searching for the thing, the police officer may also
6
seize any other thing, or do anything to make the premises safe, if
7
the police officer suspects, on reasonable grounds, that it is
8
necessary to do so:
9
(a) in order to protect a person's life, health or safety; and
10
(b) without the authority of a search warrant because the
11
circumstances are serious and urgent.
12
(6) In exercising powers under this section:
13
(a) the police officer may use such assistance; and
14
(b) the police officer, or a person who is also a police officer and
15
who is assisting the police officer, may use such force against
16
persons and things; and
17
(c) a person (other than a police officer) who is authorised by the
18
police officer to assist the police officer may use such force
19
against things;
20
as is necessary and reasonable in the circumstances.
21
Notification
22
(7) If one or more police officers have entered premises in accordance
23
with this section, a police officer must, within 24 hours after the
24
entry:
25
(a) notify the occupier of the premises that the entry has taken
26
place; or
27
(b) if it is not practicable so to notify the occupier--leave a
28
written notice of the entry at the premises.
29
5 Subsections 3UF(1), (4) and (5)
30
After "section 3UE", insert "or 3UEA".
31
32
Re-entry of premises in emergency situation Schedule 5
National Security Legislation Amendment Bill 2010 No. , 2010 41
Schedule 5--Re-entry of premises in
1
emergency situation
2
3
Crimes Act 1914
4
1 Subsection 3C(1)
5
Insert:
6
emergency situation, in relation to the execution of a warrant in
7
relation to premises, means a situation that the executing officer or
8
a constable assisting believes, on reasonable grounds, involves a
9
serious and imminent threat to a person's life, health or safety that
10
requires the executing officer and constables assisting to leave the
11
premises.
12
2 Subsections 3E(1) and (2)
13
Omit "by information on oath", insert ", by information on oath or
14
affirmation,".
15
3 After paragraph 3J(2)(a)
16
Insert:
17
(aa) if there is an emergency situation, for not more than 12 hours
18
or such longer period as allowed by an issuing officer under
19
section 3JA; or
20
4 After section 3J
21
Insert:
22
3JA Extension of time to re-enter premises in emergency situations
23
(1)
If:
24
(a) a warrant in relation to premises is being executed; and
25
(b) there is an emergency situation; and
26
(c) the executing officer or a constable assisting believes on
27
reasonable grounds that the executing officer and the
28
constables assisting will not be able to return to the premises
29
within the 12 hour period mentioned in paragraph 3J(2)(aa);
30
Schedule 5 Re-entry of premises in emergency situation
42 National Security Legislation Amendment Bill 2010 No. , 2010
he or she may apply to an issuing officer for an extension of that
1
period.
2
(2) Before making the application, the executing officer or a constable
3
assisting must, if it is practicable to do so, give notice to the
4
occupier of the premises of his or her intention to apply for an
5
extension.
6
(3) If an application mentioned in subsection (1) has been made, an
7
issuing officer may extend the period during which the executing
8
officer and constables assisting may be away from the premises if:
9
(a) the issuing officer is satisfied, by information on oath or
10
affirmation, that there are exceptional circumstances that
11
justify the extension; and
12
(b) the extension would not result in the period ending after the
13
expiry of the warrant.
14
5 Subsection 3L(7)
15
Omit "the issuing officer", substitute "an issuing officer".
16
17
Amendments relating to bail Schedule 6
National Security Legislation Amendment Bill 2010 No. , 2010 43
Schedule 6--Amendments relating to bail
1
2
Crimes Act 1914
3
1 After subsection 15AA(3)
4
Insert:
5
(3A) Despite any law of the Commonwealth, the Director of Public
6
Prosecutions or the defendant may appeal against a decision of a
7
bail authority:
8
(a) to grant bail to a person charged with or convicted of an
9
offence covered by subsection (2) on the basis that the bail
10
authority is satisfied that exceptional circumstances exist; or
11
(b) to refuse to grant bail to a person charged with or convicted
12
of an offence covered by subsection (2) on the basis that the
13
bail authority is not satisfied that exceptional circumstances
14
exist.
15
(3B) An appeal under subsection (3A):
16
(a) may be made to a court that would ordinarily have
17
jurisdiction to hear and determine appeals (however
18
described) from directions, orders or judgments of the bail
19
authority referred to in subsection (3A), whether the
20
jurisdiction is in respect of appeals relating to bail or appeals
21
relating to other matters; and
22
(b) is to be made in accordance with the rules or procedures (if
23
any) applicable under a law of the Commonwealth, a State or
24
a Territory in relation to the exercise of such jurisdiction.
25
(3C)
If:
26
(a) a bail authority decides to grant bail to a person charged with
27
or convicted of an offence covered by subsection (2); and
28
(b) immediately after the decision is made, the Director of Public
29
Prosecutions notifies the bail authority that he or she intends
30
to appeal against the decision under subsection (3A);
31
the decision to grant bail is stayed with effect from the time of the
32
notification.
33
(3D) A stay under subsection (3C) ends:
34
(a) when a decision on the appeal is made; or
35
Schedule 6 Amendments relating to bail
44 National Security Legislation Amendment Bill 2010 No. , 2010
(b) when the Director of Public Prosecutions notifies:
1
(i) the bail authority; or
2
(ii) if an appeal has already been instituted in a court--the
3
court;
4
that he or she does not intend to proceed with the appeal; or
5
(c) 72 hours after the stay comes into effect;
6
whichever occurs first.
7
2 Subsection 15AA(4)
8
Omit "subsection (1)", substitute "subsections (1), (3A), (3B), (3C) and
9
(3D)".
10
3 Subsection 15AA(4) (note)
11
Omit "Subsection (1) indirectly affects laws of the States and Territories
12
because it affects", substitute "These provisions indirectly affect laws of
13
the States and Territories because they affect".
14
4 Application
15
The amendments made by this Schedule apply on and after the
16
commencement of this Schedule to:
17
(a) a proceeding relating to bail initiated on or after that
18
commencement; and
19
(b) a proceeding relating to bail initiated before commencement,
20
but only to the parts of the proceeding that occur after that
21
commencement.
22
23
Listings under the Charter of the United Nations Act 1945 Schedule 7
National Security Legislation Amendment Bill 2010 No. , 2010 45
Schedule 7--Listings under the Charter of the
1
United Nations Act 1945
2
3
Charter of the United Nations Act 1945
4
1 Subsections 15(1) and (3)
5
After "satisfied", insert "on reasonable grounds".
6
2 After section 15
7
Insert:
8
15A Duration of listing
9
(1) A listing under section 15 ceases to have effect on:
10
(a) if no declaration under subsection (2) has been made in
11
relation to the listing--the third anniversary of the day on
12
which the listing took effect; or
13
(b) otherwise--the third anniversary of the making of the most
14
recent declaration under subsection (2) in relation to the
15
listing.
16
(2) The Minister may declare, in writing, that a specified listing under
17
section 15 continues to have effect.
18
(3) The Minister must not:
19
(a) make a declaration under subsection (2) specifying the listing
20
of a person or entity unless the Minister is satisfied on
21
reasonable grounds of the matters prescribed for the purposes
22
of subsection 15(2); or
23
(b) make a declaration under subsection (2) specifying the listing
24
of an asset, or class of asset, unless the Minister is satisfied
25
on reasonable grounds of the matters prescribed for the
26
purposes of subsection 15(4).
27
(4) The regulations may prescribe a form for a declaration under
28
subsection (2).
29
(5) A declaration made under subsection (2) is not a legislative
30
instrument.
31
Schedule 7 Listings under the Charter of the United Nations Act 1945
46 National Security Legislation Amendment Bill 2010 No. , 2010
(6) To avoid doubt, subsection (1) does not prevent:
1
(a) the revocation, under section 16, of a listing; or
2
(b) the revocation of a listing by operation of section 19; or
3
(c) the making of a new listing that is the same in substance as
4
another listing (whether the new listing is made or takes
5
effect before or after the other listing ceases to have effect
6
because of subsection (1)).
7
3 Before paragraph 19(3)(a)
8
Insert:
9
(aa) a listing ceasing to have effect under section 15A; or
10
4 Transitional--listings under section 15 of the Charter of the
11
United Nations Act 1945
12
A listing that was made under subsection 15(1) or (3) of the Charter of
13
the United Nations Act 1945 and that was in force immediately before
14
the commencement of this item has effect, after that commencement, as
15
if:
16
(a) it had been made under that subsection as amended by this
17
Act; and
18
(b) for the purposes only of section 15A of that Act, it had been
19
made immediately after that commencement.
20
21
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 47
Schedule 8--Amendments relating to the
1
disclosure of national security
2
information in criminal and civil
3
proceedings
4
Part 1--Amendments
5
National Security Information (Criminal and Civil
6
Proceedings) Act 2004
7
1 Subsection 6(1)
8
After "defendant", insert ", the defendant's legal representative".
9
2 Subsection 6(2)
10
Omit "take place after the notice is given", substitute "occur after the
11
notice is given (whether or not those parts began before that time)".
12
3 Paragraphs 6A(1)(b) and (2)(b)
13
After "parties to the proceeding", insert ", the legal representatives of
14
the parties to the proceeding".
15
4 Paragraph 6A(2)(d)
16
After "Divisions", insert "1A, 1,".
17
5 Subparagraph 6A(2)(e)(ii)
18
After "Divisions", insert "1A, 1,".
19
6 Subsection 6A(5)
20
Omit "take place after the notice is given", substitute "occur after the
21
notice is given (whether or not those parts began before that time)".
22
7 Section 7
23
Insert:
24
court official means an individual who:
25
(a) is employed or engaged by a court to perform services in the
26
court in relation to a proceeding in the court; or
27
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
48 National Security Legislation Amendment Bill 2010 No. , 2010
(b) in relation to a federal criminal proceeding in a court--
1
supervises the defendant in the court.
2
8 Section 7
3
Insert:
4
national security information means information:
5
(a) that relates to national security; or
6
(b) the disclosure of which may affect national security.
7
9 Paragraph 13(2)(c)
8
Omit "documents and reports of persons intended to be called by a party
9
to give evidence", substitute "documents or reports".
10
10 At the end of section 13
11
Add:
12
(3) To avoid doubt, a re-trial, and proceedings relating to the re-trial
13
(including those mentioned in subsection (2)), are part of the same
14
criminal proceeding as the trial.
15
11 Section 14
16
Repeal the section, substitute:
17
14 Meaning of federal criminal proceeding
18
In this Act, federal criminal proceeding means a criminal
19
proceeding in any court exercising federal jurisdiction, where the
20
offence or any of the offences concerned are against a law of the
21
Commonwealth.
22
12 Subsection 15(1)
23
Repeal the subsection, substitute:
24
(1) In this Act, defendant, in relation to a federal criminal proceeding,
25
means a person charged with the offence or offences concerned
26
(even if the proceeding occurs after any conviction of the person).
27
13 Paragraph 15A(2)(b)
28
Omit "documents and reports of persons intended to be called by a party
29
to give evidence", substitute "documents or reports".
30
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 49
14 At the end of section 15A
1
Add:
2
(3) To avoid doubt, a re-hearing, and proceedings relating to the
3
re-hearing (including those mentioned in subsection (2)), are part
4
of the same civil proceeding as the hearing.
5
15 Paragraphs 16(aa), (ab), (ac), (ad) and (b)
6
Repeal the paragraphs, substitute:
7
(b) the person discloses the information in circumstances
8
specified by the Attorney-General in a certificate or advice
9
given under section 26, 28, 38F or 38H.
10
16 Section 17
11
Omit "A disclosure of national security information", substitute "(1) A
12
disclosure of information".
13
17 At the end of section 17
14
Add:
15
(2) The contravention of a requirement is likely to prejudice national
16
security if there is a real, and not merely a remote, possibility that
17
the contravention will prejudice national security.
18
18 After subsection 19(1)
19
Insert:
20
(1A) In addition to the powers of a court under this Act in a federal
21
criminal proceeding, the court may make such orders as the court
22
considers appropriate in relation to the disclosure, protection,
23
storage, handling or destruction, in the proceeding, of national
24
security information if:
25
(a) the court is satisfied that it is in the interest of national
26
security to make such orders; and
27
(b) the orders are not inconsistent with this Act or regulations
28
made under this Act.
29
19 After subsection 19(3)
30
Insert:
31
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
50 National Security Legislation Amendment Bill 2010 No. , 2010
(3A) In addition to the powers of a court under this Act in a civil
1
proceeding, the court may make such orders as the court considers
2
appropriate in relation to the disclosure, protection, storage,
3
handling or destruction, in the proceeding, of national security
4
information if:
5
(a) the court is satisfied that it is in the interest of national
6
security to make such orders; and
7
(b) the orders are not inconsistent with this Act or regulations
8
made under this Act.
9
20 Before Division 1 of Part 3
10
Insert:
11
Division 1A--Attorney-General etc. may attend and be
12
heard at federal criminal proceedings
13
20A Attorney-General etc. may attend and be heard at federal
14
criminal proceedings
15
If, in a federal criminal proceeding, an issue arises relating to the
16
disclosure, protection, storage, handling or destruction, in the
17
proceeding, of national security information, then any or all of the
18
following may attend and be heard at the proceeding:
19
(a)
the
Attorney-General;
20
(b) the Attorney-General's legal representative;
21
(c) any other representative of the Attorney-General.
22
Division 1B--Court to consider hearing in camera etc.
23
20B Court to consider hearing in camera etc.
24
(1) If, during a hearing in a federal criminal proceeding, an issue arises
25
relating to the disclosure, protection, storage, handling or
26
destruction, in the proceeding, of national security information,
27
then before hearing the issue, the court must consider making an
28
order under either or both of the following:
29
(a)
subsection
19(1A);
30
(b) section 93.2 of the Criminal Code.
31
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 51
(2) Subsection (1) does not apply if the issue is the subject of an order
1
that is in force under section 22.
2
21 Subsection 21(1)
3
Repeal the subsection, substitute:
4
(1) At any time during a federal criminal proceeding, the
5
Attorney-General, the Attorney-General's legal representative, the
6
prosecutor, the defendant or the defendant's legal representative
7
may apply to the court for the court to hold a hearing to consider
8
issues relating to the disclosure, protection, storage, handling or
9
destruction, in the proceeding, of national security information,
10
including:
11
(a) the making of an arrangement of the kind mentioned in
12
section 22; and
13
(b) the giving of a notice under section 24.
14
(1A) As soon as possible after making the application, the applicant
15
must notify each of the following that the application has been
16
made:
17
(a) if the applicant is the Attorney-General or the
18
Attorney-General's legal representative--the prosecutor, the
19
defendant and the defendant's legal representative;
20
(b) if the applicant is the prosecutor--the Attorney-General, the
21
defendant and the defendant's legal representative;
22
(c) if the applicant is the defendant or the defendant's legal
23
representative--the Attorney-General and the prosecutor.
24
Note:
The heading to section 21 is replaced by the heading "National security information
25
hearings".
26
22 Subsection 21(2)
27
Omit "conference", substitute "hearing".
28
23 Subsection 22(1)
29
Repeal the subsection, substitute:
30
(1) At any time during a federal criminal proceeding:
31
(a) the Attorney-General, on the Commonwealth's behalf; and
32
(b) the prosecutor; and
33
(c) the defendant, or the defendant's legal representative on the
34
defendant's behalf;
35
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
52 National Security Legislation Amendment Bill 2010 No. , 2010
may agree to an arrangement about the disclosure, protection,
1
storage, handling or destruction, in the proceeding, of national
2
security information.
3
Note:
The heading to section 22 is altered by omitting "relating to or affecting national
4
security" and substituting "etc. of national security information".
5
24 Paragraph 23(1)(a)
6
Omit "information that is disclosed, or to be disclosed, to the court",
7
substitute "national security information that is disclosed, or to be
8
disclosed,".
9
Note:
The heading to section 23 is altered by omitting "certain" and substituting "national
10
security".
11
25 Subsections 23(2) and (3)
12
Repeal the subsections, substitute:
13
(2) This section does not apply to information that is the subject of an
14
order that is in force under section 22.
15
26 Subsection 24(1)
16
Repeal the subsection, substitute:
17
(1) If the prosecutor, the defendant or the defendant's legal
18
representative knows or believes that:
19
(a) he or she will disclose national security information in a
20
federal criminal proceeding; or
21
(b) a person whom he or she intends to call as a witness in a
22
federal criminal proceeding will disclose national security
23
information in giving evidence or by the person's mere
24
presence; or
25
(c) on his or her application, the court has issued a subpoena to,
26
or made another order in relation to, another person who,
27
because of that subpoena or order, is required (other than as a
28
witness) to disclose national security information in a federal
29
criminal proceeding;
30
then he or she must, as soon as practicable, give the
31
Attorney-General notice in writing of that knowledge or belief.
32
Note 1:
Failure to give notice as required by this subsection is an offence in
33
certain circumstances: see section 42.
34
Note 2:
Section 25 deals with the situation where the prosecutor, the defendant
35
or the defendant's legal representative knows or believes that
36
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 53
information that will be disclosed in a witness's answer is national
1
security information.
2
When not required to give notice
3
(1A) However, a person need not give notice about the disclosure of
4
information under subsection (1) if:
5
(a) another person has already given notice about the disclosure
6
of the information under that subsection; or
7
(b) the disclosure of the information:
8
(i) is the subject of a certificate given to the person under
9
section 26 and the certificate still has effect; or
10
(ii) is the subject of an order that is in force under
11
section 22 or 31; or
12
(c) the disclosure of the information by the witness to be called:
13
(i) is the subject of a certificate given to the person under
14
section 28 and the certificate still has effect; or
15
(ii) is the subject of an order that is in force under
16
section 22 or 31; or
17
(d) the Attorney-General has given the person advice about the
18
disclosure of the information under subsection 26(7) or
19
28(10).
20
Note:
The heading to section 24 is replaced by the heading "Notification of expected
21
disclosure of national security information".
22
27 Subsections 24(3) and (4)
23
Repeal the subsections, substitute:
24
Informing the court etc. of an expected disclosure
25
(3) A person who gives notice under subsection (1) must also advise
26
the following, in writing, that notice has been given to the
27
Attorney-General:
28
(a) if the person is the prosecutor:
29
(i) the court; and
30
(ii) the defendant; and
31
(iii) the defendant's legal representative; and
32
(iv) any other person mentioned in paragraph (1)(b) or (c);
33
and
34
Schedule 8 Amendments relating to the disclosure of national security information in
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Part 1 Amendments
54 National Security Legislation Amendment Bill 2010 No. , 2010
(b) if the person is the defendant or the defendant's legal
1
representative:
2
(i) the court; and
3
(ii) the prosecutor; and
4
(iii) any other person mentioned in paragraph (1)(b) or (c).
5
Note:
Failure to give advice as required by this subsection is an offence in
6
certain circumstances: see section 42.
7
(4) The advice must include a description of the information, unless
8
the advice is being given by the defendant or the defendant's legal
9
representative to the prosecutor.
10
Note:
A contravention of this subsection is an offence in certain
11
circumstances: see section 42.
12
Adjournment to allow sufficient time for Attorney-General to act
13
on the notice
14
(5) On receiving the advice, the court must adjourn so much of the
15
proceeding as is necessary to ensure that the information is not
16
disclosed. The court must continue the adjournment until the
17
Attorney-General:
18
(a) gives a copy of a certificate to the court under subsection
19
26(4) or 28(3); or
20
(b) gives advice to the court under subsection 26(7) or 28(10)
21
(which applies if a decision is made not to give a certificate).
22
28 Paragraph 25(1)(b)
23
Repeal the paragraph, substitute:
24
(b) the prosecutor, the defendant or the defendant's legal
25
representative knows or believes that information that will be
26
disclosed in the witness's answer is national security
27
information.
28
29 Subsection 25(2)
29
Omit "or defendant", substitute ", the defendant or the defendant's legal
30
representative".
31
30 After subsection 25(2)
32
Insert:
33
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 55
(2A) However, a person need not advise the court under subsection (2)
1
about the disclosure of information if:
2
(a) another person has already advised the court about the
3
disclosure of the information under that subsection; or
4
(b) a notice has been given to the Attorney-General under
5
subsection 24(1) about the disclosure of the information; or
6
(c) the disclosure of the information:
7
(i) is the subject of a certificate given to the person under
8
section 26 and the certificate still has effect; or
9
(ii) is the subject of an order that is in force under
10
section 22 or 31; or
11
(d) the Attorney-General has given the person advice about the
12
disclosure of the information under subsection 26(7).
13
31 Subsections 25(3) to (7)
14
Repeal the subsections, substitute:
15
Witness to give written answer
16
(3) If the court is advised under subsection (2) and the witness would,
17
apart from this section, be required to answer the question, the
18
court must order that the witness give the court a written answer to
19
the question.
20
(4) The court must show the written answer to the prosecutor and, if
21
present, the Attorney-General, the Attorney-General's legal
22
representative and any other representative of the
23
Attorney-General.
24
(5)
If:
25
(a) under subsection (4), the Attorney-General's representative
26
(other than the Attorney-General's legal representative) is
27
shown the written answer; and
28
(b) he or she knows or believes that, if the written answer were
29
to be given in evidence in the proceeding, the information
30
that would be disclosed in the witness's answer is national
31
security information;
32
then he or she must advise the prosecutor of that knowledge or
33
belief.
34
Schedule 8 Amendments relating to the disclosure of national security information in
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Part 1 Amendments
56 National Security Legislation Amendment Bill 2010 No. , 2010
Prosecutor must give notice to Attorney-General etc.
1
(6) If the prosecutor knows, believes, or is advised under
2
subsection (5), that, if the written answer were to be given in
3
evidence in the proceeding, the information that would be
4
disclosed in the witness's answer is national security information,
5
then the prosecutor must:
6
(a) advise the court of that knowledge, belief or advice; and
7
(b) as soon as practicable, give the Attorney-General notice in
8
writing of that knowledge, belief or advice.
9
Note:
Failure to advise the court or to notify the Attorney-General is an
10
offence in certain circumstances: see section 42.
11
(7) However, the prosecutor need not advise the court or give the
12
Attorney-General notice about the written answer under
13
subsection (6) if the information disclosed by the written answer:
14
(a) is the subject of a certificate or advice given to the prosecutor
15
under section 26 and the certificate still has effect; or
16
(b) is the subject of an order that is in force under section 22 or
17
31.
18
Adjournment to allow sufficient time for Attorney-General to act
19
on the notice
20
(8) If the court is advised under subsection (6), it must adjourn so
21
much of the proceeding as is necessary to ensure that the
22
information is not disclosed. The court must continue the
23
adjournment until the Attorney-General:
24
(a) gives a copy of a certificate to the court under subsection
25
26(4); or
26
(b) gives advice to the court under subsection 26(7) (which
27
applies if a decision is made not to give a certificate).
28
32 Subparagraph 26(1)(a)(i)
29
Omit "or defendant knows or believes that the prosecutor or defendant
30
or another person", substitute ", the defendant or the defendant's legal
31
representative knows or believes that he or she, or another person,".
32
33 Subparagraph 26(1)(a)(ii)
33
Omit "or defendant", substitute ", the defendant, the defendant's legal
34
representative".
35
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 57
34 Subparagraph 26(1)(a)(iii)
1
Omit "considers", substitute "knows, believes or is advised".
2
35 Subsection 26(8)
3
Repeal the subsection, substitute:
4
Definition of potential discloser
5
(8) Each of the following persons is a potential discloser of the
6
information in the proceeding:
7
(a) in all cases--the prosecutor, the defendant and the
8
defendant's legal representative;
9
(b) if subparagraph (1)(a)(i) or (ii) applies and the disclosure is
10
by a person other than the prosecutor, the defendant or the
11
defendant's legal representative--the other person;
12
(c) if subparagraph (1)(a)(iii) applies--the witness mentioned in
13
that subparagraph.
14
36 Subsections 27(1) and (2)
15
Repeal the subsections, substitute:
16
Consequences of certificate for pre-trial proceedings
17
(1) If, in a federal criminal proceeding, the Attorney-General gives a
18
potential discloser a certificate under section 26 at any time during
19
a part of the proceeding that occurs before the trial begins, then the
20
certificate is conclusive evidence, during that part of the
21
proceeding and any later part that occurs before the hearing
22
mentioned in paragraph (3)(a) begins, that disclosure of the
23
information in the proceeding is likely to prejudice national
24
security.
25
37 Subsection 27(3)
26
Omit "If a proceeding is covered by paragraph 14(a) (about a
27
proceeding involving a trial) and, under section 26, the
28
Attorney-General gives a potential discloser a certificate", substitute "If,
29
in a federal criminal proceeding, the Attorney-General gives a potential
30
discloser a certificate under section 26".
31
38 Paragraph 27(3)(b)
32
Omit "24(4) or 25(7)", substitute "24(5) or 25(8)".
33
Schedule 8 Amendments relating to the disclosure of national security information in
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Part 1 Amendments
58 National Security Legislation Amendment Bill 2010 No. , 2010
39 Subparagraph 28(1)(a)(i)
1
Repeal the subparagraph, substitute:
2
(i) the Attorney-General is notified under section 24 that
3
the prosecutor, the defendant or the defendant's legal
4
representative knows or believes that a person whom he
5
or she intends to call as a witness in a federal criminal
6
proceeding will disclose information by the person's
7
mere presence; or
8
40 Subparagraph 28(1)(a)(ii)
9
Omit "or defendant", substitute ", the defendant or the defendant's legal
10
representative".
11
41 Subsection 28(2)
12
Omit "or defendant" (wherever occurring), substitute ", the defendant or
13
the defendant's legal representative".
14
42 Subsection 28(5)
15
Omit "If the proceeding is covered by paragraph 14(a) (about a
16
proceeding involving a trial), the", substitute "The".
17
43 Subsection 28(6)
18
Repeal the subsection.
19
44 Subsections 28(9) and (10)
20
Omit "or defendant", substitute ", the defendant or the defendant's legal
21
representative".
22
45 Subsection 29(1)
23
Omit "25(3),".
24
46 Paragraph 29(2)(f)
25
Repeal the paragraph, substitute:
26
(f) the Attorney-General, the Attorney-General's legal
27
representative and any other representative of the
28
Attorney-General; and
29
47 Subparagraph 29(5)(c)(iii)
30
Omit "if section 30 applies--".
31
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 59
48 Subsection 29(6)
1
Omit ", if section 30 applies,".
2
49 Subsection 29(7)
3
Omit "national security information", substitute "information".
4
50 Section 30
5
Repeal the section.
6
51 Paragraphs 31(6)(a) and (b)
7
Omit "or defendant", substitute ", the defendant or the defendant's legal
8
representative".
9
52 Paragraph 32(1)(e)
10
Omit "if section 30 applies--".
11
53 Subsection 32(2)
12
Omit ", if section 30 applies,".
13
54 Subsection 32(3)
14
Omit "national security information", substitute "information".
15
55 Subsection 37(1)
16
Omit ", if the Attorney-General is an intervener under section 30,".
17
56 Before Division 1 of Part 3A
18
Insert:
19
Division 1A--Attorney-General etc. may attend and be
20
heard at civil proceedings
21
38AA Attorney-General etc. may attend and be heard at civil
22
proceedings
23
If, in a civil proceeding, an issue arises relating to the disclosure,
24
protection, storage, handling or destruction, in the proceeding, of
25
national security information, then any or all of the following may
26
attend and be heard at the proceeding:
27
(a)
the
Attorney-General;
28
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
60 National Security Legislation Amendment Bill 2010 No. , 2010
(b) the Attorney-General's legal representative;
1
(c) any other representative of the Attorney-General.
2
Division 1B--Court to consider hearing in camera etc.
3
38AB Court to consider hearing in camera etc.
4
(1) If, during a hearing in a civil proceeding, an issue arises relating to
5
the disclosure, protection, storage, handling or destruction, in the
6
proceeding, of national security information, then before hearing
7
the issue, the court must consider making an order under either or
8
both of the following:
9
(a)
subsection
19(3A);
10
(b) section 93.2 of the Criminal Code.
11
(2) Subsection (1) does not apply if the issue is the subject of an order
12
that is in force under section 38B.
13
57 Subsections 38A(1), (2) and (3)
14
Repeal the subsections, substitute:
15
(1) At any time during a civil proceeding, the Attorney General, the
16
Attorney-General's legal representative, a party to the proceeding
17
or a party's legal representative may apply to the court for the court
18
to hold a hearing to consider issues relating to the disclosure,
19
protection, storage, handling or destruction, in the proceeding, of
20
national security information, including:
21
(a) the making of an arrangement of the kind mentioned in
22
section 38B; and
23
(b) the giving of a notice under section 38D.
24
(2) As soon as possible after making the application, the applicant
25
must notify each of the following that the application has been
26
made:
27
(a) if the applicant is the Attorney-General or the
28
Attorney-General's legal representative--the parties and the
29
parties' legal representatives;
30
(b) if the applicant is a party or a party's legal representative--
31
the Attorney-General, the other parties and the other parties'
32
legal representatives.
33
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 61
Note:
The heading to section 38A is replaced by the heading "National security information
1
hearings".
2
58 Subsection 38A(4)
3
Omit "conference", substitute "hearing".
4
59 Subsection 38B(1)
5
Repeal the subsection, substitute:
6
(1) At any time during a civil proceeding:
7
(a) the Attorney-General, on the Commonwealth's behalf; and
8
(b) the parties to the proceeding, or their legal representatives on
9
their behalf;
10
may agree to an arrangement about the disclosure, protection,
11
storage, handling or destruction, in the proceeding, of national
12
security information.
13
Note:
The heading to section 38B is altered by omitting "relating to or affecting national
14
security" and substituting "etc. of national security information".
15
60 Paragraph 38C(1)(a)
16
Omit "information that is disclosed, or to be disclosed, to the court",
17
substitute "national security information that is disclosed, or to be
18
disclosed,".
19
Note:
The heading to section 38C is altered by omitting "certain" and substituting "national
20
security".
21
61 Subsections 38C(2) and (3)
22
Repeal the subsections, substitute:
23
(2) This section does not apply to information that is the subject of an
24
order that is in force under section 38B.
25
62 Subsection 38D(1)
26
Repeal the subsection, substitute:
27
(1) If a party, or the legal representative of a party, to a civil
28
proceeding knows or believes that:
29
(a) he or she will disclose national security information in the
30
proceeding; or
31
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
62 National Security Legislation Amendment Bill 2010 No. , 2010
(b) a person whom he or she intends to call as a witness in the
1
proceeding will disclose national security information in
2
giving evidence or by the person's mere presence; or
3
(c) on his or her application, the court has issued a subpoena to,
4
or made another order in relation to, another person who,
5
because of that subpoena or order, is required (other than as a
6
witness) to disclose national security information in the
7
proceeding;
8
then he or she must, as soon as practicable, give the
9
Attorney-General notice in writing of that knowledge or belief.
10
Note 1:
Failure to give notice as required by this section is an offence in
11
certain circumstances: see section 46C.
12
Note 2:
Section 38E deals with the situation where a party, or a party's legal
13
representative, knows or believes that information that will be
14
disclosed in a witness's answer is national security information.
15
Note:
The heading to section 38D is replaced by the heading "Notification of expected
16
disclosure of national security information".
17
63 Subsection 38D(2)
18
Omit "Despite subsection (1), a party need not give the
19
Attorney-General notice", substitute "However, a party or a party's
20
legal representative need not give the Attorney-General notice about the
21
disclosure of the information under subsection (1)".
22
64 Before paragraph 38D(2)(a)
23
Insert:
24
(aa) another person has already given notice about the disclosure
25
of the information under that subsection; or
26
65 Subparagraphs 38D(2)(a)(i) and (b)(i)
27
After "party", insert "or the legal representative".
28
66 At the end of subsection 38D(2)
29
Add:
30
; or (c) the Attorney-General has given the party or the legal
31
representative advice about the disclosure of the information
32
under subsection 38F(7) or 38H(9).
33
67 Subsections 38D(4) and (5)
34
Repeal the subsections, substitute:
35
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 63
Informing the court etc. of an expected disclosure
1
(4) A person who gives notice under subsection (1) must also advise,
2
in writing:
3
(a) the court; and
4
(b) the other parties; and
5
(c) the other parties' legal representatives; and
6
(d) any other person mentioned in paragraph (1)(b) or (c);
7
that notice has been given to the Attorney-General. The advice
8
must include a description of the information.
9
Note:
Failure to give advice as required by this section is an offence in
10
certain circumstances: see section 46C.
11
Adjournment to allow sufficient time for Attorney-General to act
12
on the notice
13
(5) On receiving the advice, the court must adjourn so much of the
14
proceeding as is necessary to ensure that the information is not
15
disclosed. The court must continue the adjournment until the
16
Attorney-General:
17
(a) gives a copy of a certificate to the court under subsection
18
38F(5) or 38H(4); or
19
(b) gives advice to the court under subsection 38F(7) or 38H(9)
20
(which applies if a decision is made not to give a certificate).
21
68 Paragraph 38E(1)(b)
22
Repeal the paragraph, substitute:
23
(b) a party, or the legal representative of a party, to the
24
proceeding knows or believes that information that will be
25
disclosed in the witness's answer is national security
26
information.
27
69 Subsection 38E(2)
28
After "party", insert "or legal representative".
29
70 After subsection 38E(2)
30
Insert:
31
(2A) However, a person need not advise the court under subsection (2)
32
about the disclosure of information if:
33
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
64 National Security Legislation Amendment Bill 2010 No. , 2010
(a) another person has already advised the court about the
1
disclosure of the information under that subsection; or
2
(b) a notice has been given to the Attorney-General under
3
subsection 38D(1) about the disclosure of the information; or
4
(c) the disclosure of the information:
5
(i) is the subject of a certificate given to the person under
6
section 38F and the certificate still has effect; or
7
(ii) is the subject of an order that is in force under
8
section 38B or 38L; or
9
(d) the Attorney-General has given the person advice about the
10
disclosure of the information under subsection 38F(7).
11
71 Subsection 38E(4)
12
Omit "The court must adjourn the proceeding on receiving the written
13
answer. However, the court need not adjourn the proceeding", substitute
14
"On receiving the written answer, the court must adjourn so much of the
15
proceeding as is necessary to ensure that the information is not
16
disclosed. However, the court need not do so".
17
72 Subsection 38E(5)
18
Omit "adjourns the proceeding", substitute "adjourns a part of the
19
proceeding under subsection (4)".
20
73 Subsection 38E(6)
21
Omit "of the proceeding".
22
74 Subparagraph 38F(1)(a)(i)
23
After "a party", insert ", or the legal representative of a party,".
24
75 Subparagraph 38F(1)(a)(ii)
25
After "a party", insert ", the legal representative of a party".
26
76 Subsection 38F(9)
27
Repeal the subsection, substitute:
28
Definition of potential discloser
29
(9) Each of the following persons is a potential discloser of the
30
information in the proceeding:
31
(a) in all cases--the parties and the parties' legal representatives;
32
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 65
(b) if subparagraph (1)(a)(i) or (ii) applies and the disclosure is
1
by a person other than a party or a party's legal
2
representative--the other person;
3
(c) if subparagraph (1)(a)(iii) applies--the witness mentioned in
4
that subparagraph.
5
77 Subparagraph 38H(1)(a)(i)
6
Omit "to a civil proceeding knows or believes that a person whom the
7
party", substitute ", or the legal representative of a party, to a civil
8
proceeding knows or believes that a person whom the party or legal
9
representative".
10
78 Subparagraph 38H(1)(a)(ii)
11
After "party", insert ", or the legal representative of a party,".
12
79 Subsection 38H(2)
13
Repeal the subsection, substitute:
14
Attorney-General may give a certificate
15
(2) The Attorney-General may give a certificate to the relevant party
16
or legal representative that states that he or she must not call the
17
person as a witness in the proceeding.
18
80 Subsection 38H(9)
19
Omit all the words after "writing,", substitute:
20
advise:
21
(a) the relevant party or legal representative; and
22
(b)
the
court;
23
of his or her decision.
24
81 Paragraph 38I(2)(e)
25
Repeal the paragraph, substitute:
26
(e) the Attorney-General, the Attorney-General's legal
27
representative and any other representative of the
28
Attorney-General; and
29
82 Subsection 38I(7)
30
Omit "national security information", substitute "information".
31
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
66 National Security Legislation Amendment Bill 2010 No. , 2010
83 Section 38K
1
Repeal the section.
2
84 Paragraphs 38L(6)(a) and (b)
3
After "party", insert "or legal representative".
4
85 Paragraph 38M(1)(d)
5
Omit "if section 38K applies--".
6
86 Subsection 38M(2)
7
Omit "If section 38K applies, before", substitute "Before".
8
87 Subsection 38M(3)
9
Omit "national security information", substitute "information".
10
88 Subsection 38R(1)
11
Omit ", or if the Attorney-General is an intervener under section 38K,",
12
substitute "or".
13
89 After subsection 39(1)
14
Insert:
15
(1A) When considering, for the purposes of subsection (1), whether a
16
disclosure of the information would be likely to prejudice national
17
security, the Secretary is to consider the nature of the information
18
itself, and not the character of the person to whom it is to be
19
disclosed.
20
90 Subsection 39(2)
21
Omit "by the Department".
22
91 Subsection 39(3)
23
After "defendant", insert ", or the defendant's legal representative (on
24
the defendant's behalf),".
25
92 Paragraph 39(3)(a)
26
Omit "by the Department".
27
93 Subparagraph 39(5)(b)(i)
28
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 67
Omit "by the Department".
1
94 After subsection 39A(1)
2
Insert:
3
(1A) When considering, for the purposes of subsection (1), whether a
4
disclosure of the information would be likely to prejudice national
5
security, the Secretary is to consider the nature of the information
6
itself, and not the character of the person to whom it is to be
7
disclosed.
8
95 Subsection 39A(2)
9
Omit "by the Department".
10
96 Subsection 39A(3)
11
After "to the proceeding", insert ", or the party's legal representative
12
(on the party's behalf),".
13
97 Paragraphs 39A(3)(a) and (5)(d)
14
Omit "by the Department".
15
98 Subparagraph 39A(6)(d)(i)
16
Omit "by the Department".
17
99 Subsection 40(1)
18
Repeal the subsection, substitute:
19
Disclosure where notice given to Attorney-General under
20
subsection 24(1)
21
(1) A person commits an offence if:
22
(a) the person is the prosecutor, the defendant or the defendant's
23
legal representative in a federal criminal proceeding; and
24
(b) the person gives notice to the Attorney-General under
25
subsection 24(1) about the disclosure of information in the
26
proceeding; and
27
(c) section 41 does not apply; and
28
(d) after giving the notice, the person discloses the information
29
(whether in the proceeding or otherwise) at any time before
30
the Attorney-General gives the person a certificate under
31
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
68 National Security Legislation Amendment Bill 2010 No. , 2010
subsection 26(2) or (3) or advice under subsection 26(7) in
1
relation to the disclosure of the information; and
2
(e) the disclosure does not take place in permitted circumstances;
3
and
4
(f) the disclosure is likely to prejudice national security.
5
Penalty: Imprisonment for 2 years.
6
Disclosure where advice given under subsection 24(3)
7
(1A) A person commits an offence if:
8
(a) the person is advised under subsection 24(3) that a notice
9
about the disclosure of information in a federal criminal
10
proceeding has been given to the Attorney-General; and
11
(b) the advice includes a description of the information; and
12
(c) section 41 does not apply; and
13
(d) after being advised, the person discloses the information
14
(whether in the proceeding or otherwise) at any time before
15
the Attorney-General gives the person a certificate under
16
subsection 26(2) or (3) or advice under subsection 26(7) in
17
relation to the disclosure of the information; and
18
(e) the disclosure does not take place in permitted circumstances;
19
and
20
(f) the disclosure is likely to prejudice national security.
21
Penalty: Imprisonment for 2 years.
22
100 Paragraph 40(2)(a)
23
Omit "or believes", substitute ", believes or is advised".
24
101 Section 41
25
Repeal the section, substitute:
26
41 Offence to disclose information before Attorney-General gives
27
criminal witness exclusion certificate etc. under section 28
28
A person commits an offence if:
29
(a) the person is the prosecutor, the defendant or the defendant's
30
legal representative in a federal criminal proceeding; and
31
(b) the person notifies the Attorney-General under subsection
32
24(1) that he or she knows or believes that a person (the
33
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 69
second person) whom he or she intends to call as a witness in
1
a federal criminal proceeding will disclose information by the
2
second person's mere presence; and
3
(c) after giving the notice, the person calls the second person as a
4
witness in the proceeding at any time before the
5
Attorney-General gives the person a certificate under
6
subsection 28(2) or advice under subsection 28(10) in
7
relation to the calling of the second person as a witness; and
8
(d) the disclosure of the information by the mere presence of the
9
second person is likely to prejudice national security.
10
Penalty: Imprisonment for 2 years.
11
102 Paragraph 42(a)
12
Omit "or (3)", substitute ", (3) or (4)".
13
103 After section 45
14
Insert:
15
45A Offence to contravene regulations
16
(1) A person commits an offence if:
17
(a) regulations made under section 23 require the person to
18
comply with a requirement relating to the storage, handling
19
or destruction of national security information; and
20
(b) the person engages in conduct; and
21
(c) the conduct results in the requirement being contravened; and
22
(d) the contravention of the requirement is likely to prejudice
23
national security.
24
Penalty: 6 months imprisonment.
25
(2) In this section:
26
engage in conduct means:
27
(a) do an act; or
28
(b) omit to perform an act.
29
104 Subparagraph 46(c)(i)
30
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
70 National Security Legislation Amendment Bill 2010 No. , 2010
Omit "the Attorney-General's Department has given the legal
1
representative or person mentioned in subparagraph (a)(ii)", substitute
2
"the legal representative or person mentioned in subparagraph (a)(ii)
3
has".
4
105 Subsection 46A(1)
5
Repeal the subsection, substitute:
6
Disclosure where notice given to Attorney-General under
7
subsection 38D(1)
8
(1) A person commits an offence if:
9
(a) the person is a party, or a legal representative of a party, to a
10
civil proceeding; and
11
(b) the person gives notice to the Attorney-General under
12
subsection 38D(1) about the disclosure of information in the
13
proceeding; and
14
(c) section 46B does not apply; and
15
(d) after giving the notice, the person discloses the information
16
(whether in the proceeding or otherwise) at any time before
17
the Attorney-General gives the person a certificate under
18
subsection 38F(2) or (3) or advice under subsection 38F(7) in
19
relation to the disclosure of the information; and
20
(e) the disclosure does not take place in permitted circumstances;
21
and
22
(f) the disclosure is likely to prejudice national security.
23
Penalty: Imprisonment for 2 years.
24
Disclosure where advice given under subsection 38D(4)
25
(1A) A person commits an offence if:
26
(a) the person is advised under subsection 38D(4) that a notice
27
about the disclosure of information in a civil proceeding has
28
been given to the Attorney-General; and
29
(b) the advice includes a description of the information; and
30
(c) section 46B does not apply; and
31
(d) after being advised, the person discloses the information
32
(whether in the proceeding or otherwise) at any time before
33
the Attorney-General gives the person a certificate under
34
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Amendments Part 1
National Security Legislation Amendment Bill 2010 No. , 2010 71
subsection 38F(2) or (3) or advice under subsection 38F(7) in
1
relation to the disclosure of the information; and
2
(e) the disclosure does not take place in permitted circumstances;
3
and
4
(f) the disclosure is likely to prejudice national security.
5
Penalty: Imprisonment for 2 years.
6
106 Sections 46B and 46C
7
Repeal the sections, substitute:
8
46B Offence to disclose information before Attorney-General gives
9
civil witness exclusion certificate etc. under section 38H
10
A person commits an offence if:
11
(a) the person is a party, or the legal representative of a party, to
12
a civil proceeding; and
13
(b) the person notifies the Attorney-General under subsection
14
38D(1) that he or she knows or believes that a person (the
15
second person) whom he or she intends to call as a witness in
16
the proceeding will disclose information by the second
17
person's mere presence; and
18
(c) after giving the notice, the person calls the second person as a
19
witness in the proceeding at any time before the
20
Attorney-General gives the person a certificate under
21
subsection 38H(2) or advice under subsection 38H(9) in
22
relation to the calling of the second person as a witness; and
23
(d) the disclosure of the information by the mere presence of the
24
second person is likely to prejudice national security.
25
Penalty: Imprisonment for 2 years.
26
46C Offence to contravene requirement to notify Attorney-General
27
etc. under sections 38D and 38E
28
A person commits an offence if:
29
(a) the person is a party, or the legal representative of a party, to
30
a civil proceeding; and
31
(b) the person contravenes subsection 38D(1), (3) or (4) or
32
38E(2); and
33
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 1 Amendments
72 National Security Legislation Amendment Bill 2010 No. , 2010
(c) the disclosure of information mentioned in that subsection is
1
likely to prejudice national security.
2
Penalty: Imprisonment for 2 years.
3
107 After section 46F
4
Insert:
5
46FA Offence to contravene regulations
6
(1) A person commits an offence if:
7
(a) regulations made under section 38C require the person to
8
comply with a requirement relating to the storage, handling
9
or destruction of national security information; and
10
(b) the person engages in conduct; and
11
(c) the conduct results in the requirement being contravened; and
12
(d) the contravention of the requirement is likely to prejudice
13
national security.
14
Penalty: 6 months imprisonment.
15
(2) In this section:
16
engage in conduct means:
17
(a) do an act; or
18
(b) omit to perform an act.
19
108 Subparagraph 46G(c)(i)
20
Omit "the Attorney-General's Department has given the party to the
21
proceeding, the legal representative or the person mentioned in
22
subparagraph (a)(iii)", substitute "the party to the proceeding, the legal
23
representative or the person mentioned in subparagraph (a)(iii) has".
24
25
Amendments relating to the disclosure of national security information in criminal and
civil proceedings Schedule 8
Application of amendments and saving Part 2
National Security Legislation Amendment Bill 2010 No. , 2010 73
Part 2--Application of amendments and saving
1
109 Application of amendments
2
Notice given after commencement
3
(1)
The amendments made by this Schedule (other than items 17, 103 and
4
107) apply on and after the commencement of this item to:
5
(a) a federal criminal proceeding in relation to which a notice is
6
given under section 6 of the National Security Information
7
(Criminal and Civil Proceedings) Act 2004 on or after that
8
commencement; and
9
(b) a civil proceeding in relation to which a notice is given under
10
section 6A of that Act on or after that commencement;
11
whether or not the proceeding begins before or after that
12
commencement.
13
(2)
The amendments made by items 17, 103 and 107 of this Schedule apply
14
on and after the commencement of those items to:
15
(a) a federal criminal proceeding in relation to which a notice is
16
given under section 6 of the National Security Information
17
(Criminal and Civil Proceedings) Act 2004 on or after that
18
commencement; and
19
(b) a civil proceeding in relation to which a notice is given under
20
section 6A of that Act on or after that commencement;
21
whether or not the proceeding begins before or after that
22
commencement.
23
Notice given before commencement
24
(3)
The amendments made by this Schedule (other than items 17, 103 and
25
107) apply on and after the commencement of this item to:
26
(a) a federal criminal proceeding in relation to which a notice
27
was given under section 6 of the National Security
28
Information (Criminal and Civil Proceedings) Act 2004
29
before that commencement; and
30
(b) a civil proceeding in relation to which a notice was given
31
under section 6A of that Act before that commencement;
32
but only to the parts of the proceeding that occur after that
33
commencement (whether or not those parts began before that
34
commencement).
35
Schedule 8 Amendments relating to the disclosure of national security information in
criminal and civil proceedings
Part 2 Application of amendments and saving
74 National Security Legislation Amendment Bill 2010 No. , 2010
(4)
The amendments made by items 17, 103 and 107 of this Schedule apply
1
on and after the commencement of those items to:
2
(a) a federal criminal proceeding in relation to which a notice
3
was given under section 6 of the National Security
4
Information (Criminal and Civil Proceedings) Act 2004
5
before that commencement; and
6
(b) a civil proceeding in relation to which a notice was given
7
under section 6A of that Act before that commencement;
8
but only to the parts of the proceeding that occur after that
9
commencement (whether or not those parts began before that
10
commencement).
11
(5)
If, under section 6 or 6A of the National Security Information (Criminal
12
and Civil Proceedings) Act 2004, a notice was given before the
13
commencement of this item, then:
14
(a) any orders that were made; and
15
(b) any certificates, advices or notices that were given;
16
before that commencement under a provision of that Act continue in
17
force (and may be dealt with) as if they were made or given under:
18
(c) in the case of an order made under subsection 23(2) of that
19
Act--subsection 19(1A) of that Act as amended by this
20
Schedule; and
21
(d) in the case of an order made under subsection 38C(2) of that
22
Act--subsection 19(3A) of that Act as amended by this
23
Schedule; and
24
(e) in any other case--the provision of that Act as amended by
25
this Schedule.
26
110 Saving
27
Despite the amendments made to sections 23 and 38C of the National
28
Security Information (Criminal and Civil Proceedings) Act 2004 by this
29
Schedule, regulations made under those sections and that are in force
30
immediately before the commencement of this item continue in force
31
(and may be dealt with) after that commencement, as if they were made
32
under those sections as amended by this Schedule.
33
34
Functions of Inspector-General of Intelligence and Security Schedule 9
National Security Legislation Amendment Bill 2010 No. , 2010 75
Schedule 9--Functions of Inspector-General
1
of Intelligence and Security
2
3
Inspector-General of Intelligence and Security Act 1986
4
1 Subsection 3(1) (definition of agency)
5
Repeal the definition.
6
2 Subsection 3(1) (definition of Commonwealth agency)
7
Repeal the definition, substitute:
8
Commonwealth agency means the following:
9
(a) a Department of State, or an Agency within the meaning of
10
the Public Service Act 1999;
11
(b) the Australian Defence Force;
12
(c) an intelligence agency;
13
(d) a body, whether incorporated or not, established for public
14
purposes by or under a law of the Commonwealth;
15
(e) the holder of an office established for public purposes by or
16
under a law of the Commonwealth;
17
(f) a body, whether incorporated or not, declared to be a
18
Commonwealth agency by a legislative instrument made
19
under subsection (4).
20
3 Subsection 3(1) (definition of employee)
21
Omit "an agency", substitute "a Commonwealth agency".
22
4 Subsection 3(1) (definition of head)
23
Repeal the definition, substitute:
24
head means:
25
(a) in relation to ASIO--the Director-General of Security; or
26
(b) in relation to ASIS--the Director-General of ASIS; or
27
(c) in relation to DIGO--the Director of DIGO; or
28
(d) in relation to DIO--the Director of DIO; or
29
(e) in relation to DSD--the Director of DSD; or
30
(f) in relation to ONA--the Director-General of ONA; or
31
Schedule 9 Functions of Inspector-General of Intelligence and Security
76 National Security Legislation Amendment Bill 2010 No. , 2010
(g) in relation to any other Commonwealth agency:
1
(i) in the case of a Department of State--the Secretary of
2
the Department; or
3
(ii) otherwise--the person holding, or performing the duties
4
of, the principal office in respect of the agency.
5
5 Subsection 3(1)
6
Insert:
7
intelligence agency means ASIO, ASIS, DIGO, DIO, DSD or
8
ONA.
9
6 Subsection 3(1) (definition of member)
10
Omit "an agency", substitute "a Commonwealth agency".
11
7 Subsection 3(1) (definition of responsible Minister)
12
Omit "an agency", substitute "a Commonwealth agency".
13
8 Subsection 3(3)
14
Omit "an agency shall be", substitute "a Commonwealth agency is".
15
9 At the end of section 3
16
Add:
17
(4) The Minister may, by legislative instrument, declare a body to be a
18
Commonwealth agency for the purposes of paragraph (f) of the
19
definition of that expression in subsection (1).
20
10 Subparagraph 4(a)(i)
21
Omit "or security".
22
11 At the end of subparagraphs 4(a)(i) and (iii)
23
Add "and".
24
12 After paragraph 4(b)
25
Insert:
26
(ba) to assist Ministers in investigating intelligence or security
27
matters relating to Commonwealth agencies, including
28
agencies other than intelligence agencies; and
29
Functions of Inspector-General of Intelligence and Security Schedule 9
National Security Legislation Amendment Bill 2010 No. , 2010 77
13 Subparagraph 8(1)(c)(i)
1
After "Commonwealth agency", insert "(within the meaning of Part IV
2
of the Australian Security Intelligence Organisation Act 1979)".
3
Note:
The heading to section 8 is altered by omitting "Inquiry" and substituting "Intelligence
4
agency inquiry".
5
14 Subparagraph 8(1)(c)(ii)
6
After "Security Appeals", insert "Division of the Administrative
7
Appeals".
8
15 Subsection 8(5)
9
After "an employee of an", insert "intelligence".
10
16 Subsection 8(8)
11
Repeal the subsection.
12
17 Section 9
13
Repeal the section, substitute:
14
9 Additional inquiry functions of Inspector-General
15
Intelligence agencies
16
(1) The Prime Minister may request the Inspector-General to inquire
17
into a matter relating to an intelligence agency.
18
(2) The Inspector-General must comply with a request under
19
subsection (1) if inquiring into the matter is within the functions of
20
the Inspector-General referred to in section 8 (whether those
21
functions may be performed following a request by a Minister or
22
otherwise).
23
Commonwealth agencies
24
(3) The Prime Minister may request the Inspector-General to inquire
25
into an intelligence or security matter relating to a Commonwealth
26
agency.
27
(4) The Inspector-General must comply with a request under
28
subsection (3).
29
Schedule 9 Functions of Inspector-General of Intelligence and Security
78 National Security Legislation Amendment Bill 2010 No. , 2010
9AA Limits on the Inspector-General's functions
1
The Inspector-General must not, in the performance of his or her
2
functions under section 8 or 9:
3
(a) inquire into a matter relating to a Commonwealth agency that
4
occurred outside Australia, or before the commencement of
5
this Act, without the approval of:
6
(i) if the inquiry started as the result of a request under
7
section 9--the Prime Minister; or
8
(ii) otherwise--the responsible Minister; or
9
(b) inquire into action taken by a Minister except to the extent
10
necessary to perform the functions of the Inspector-General
11
referred to in subparagraphs 8(1)(a)(ii) and 8(2)(a)(ii) and
12
paragraph 8(1)(d); or
13
(c) inquire into a matter, other than a matter that is referred to the
14
Inspector-General under subsection 65(1A) of the Australian
15
Security Intelligence Organisation Act 1979, that is, or could
16
be, the subject of a review by the Security Appeals Division
17
of the Administrative Appeals Tribunal.
18
18 Section 9A
19
After "Inspector-General" (first occurring), insert "in relation to an
20
intelligence agency".
21
19 Section 9A
22
Omit "relevant".
23
20 Paragraph 11(1)(a)
24
Omit "an agency", substitute "an intelligence agency".
25
21 Subsections 11(2) and (5)
26
Omit "an agency", substitute "an intelligence agency".
27
22 Sections 12 and 14
28
Omit "an agency", substitute "an intelligence agency".
29
23 Subsections 15(1), (2) and (3)
30
Omit "an agency", substitute "a Commonwealth agency".
31
24 At the end of subsection 15(3)
32
Functions of Inspector-General of Intelligence and Security Schedule 9
National Security Legislation Amendment Bill 2010 No. , 2010 79
Add:
1
; or (c) otherwise--the responsible Minister for the agency.
2
25 Section 16
3
Omit "an agency", substitute "a Commonwealth agency".
4
26 Subsections 17(4), (6), (7), (8), (9) and (10)
5
Omit "an agency", substitute "a Commonwealth agency".
6
27 Paragraph 18(6)(b)
7
Omit ", an Agency (within the meaning of the Public Service Act 1999)
8
or an authority of the Commonwealth", substitute "or a Commonwealth
9
agency".
10
28 Section 19
11
Omit "an agency", substitute "a Commonwealth agency".
12
Note:
The heading to section 19 is altered by omitting "an agency" and substituting "a
13
Commonwealth agency".
14
29 Paragraph 20(a)
15
Omit "an agency", substitute "a Commonwealth agency".
16
Note:
The heading to section 20 is altered by inserting "Commonwealth" after "Security of".
17
30 Paragraph 20(b)
18
After "national security", insert "or other protective security".
19
31 Subsection 21(1)
20
Repeal the subsection, substitute:
21
(1) If the Inspector-General completes an inquiry under this Act into a
22
matter relating to a Commonwealth agency, the Inspector-General
23
must:
24
(a) prepare a draft report setting out the Inspector-General's
25
conclusions and recommendations as a result of the inquiry;
26
and
27
(b) subject to subsections (1A) and (1B), give a copy (the draft
28
agency copy) of the draft report to the head of the agency.
29
(1AA) The Inspector-General may remove from a draft agency copy any
30
matters that do not relate to the Commonwealth agency concerned.
31
Schedule 9 Functions of Inspector-General of Intelligence and Security
80 National Security Legislation Amendment Bill 2010 No. , 2010
32 Subsections 21(1A) and (1B)
1
Omit "an agency a copy of a draft report", substitute "a Commonwealth
2
agency a draft agency copy".
3
33 Subsection 21(1B)
4
Omit "a copy of that report", substitute "the draft agency copy".
5
34 At the end of subsection 21(1B)
6
Add:
7
; or (c) otherwise--the responsible Minister for the agency.
8
35 Paragraph 21(2)(a)
9
Omit "a copy of a draft report to the head of an agency", substitute "a
10
draft agency copy to the head of a Commonwealth agency".
11
36 Paragraph 21(2)(b)
12
Omit "a copy of the draft report", substitute "the draft agency copy".
13
37 Subsection 22(1)
14
Repeal the subsection, substitute:
15
(1) If the Inspector-General completes an inquiry under this Act into a
16
matter relating to a Commonwealth agency, the Inspector-General
17
must:
18
(a) prepare a report setting out the Inspector-General's
19
conclusions and recommendations as a result of the inquiry;
20
and
21
(b) give a copy (the final agency copy) of the report:
22
(i) if a draft agency copy was given to the head of the
23
Commonwealth agency under subsection 21(1)--to the
24
head of the Commonwealth agency; or
25
(ii) otherwise--to the person to whom a draft agency copy
26
was given under subsection 21(1B).
27
(1A) The Inspector-General may remove from a final agency copy any
28
matters that do not relate to the Commonwealth agency concerned.
29
Note:
The heading to section 22 is altered by omitting "agency head" and substituting
30
"Commonwealth agency head etc.".
31
38 Paragraph 22(2)(b)
32
Functions of Inspector-General of Intelligence and Security Schedule 9
National Security Legislation Amendment Bill 2010 No. , 2010 81
Omit "an agency", substitute "a Commonwealth agency".
1
39 Subsection 22(3)
2
After "If the report", insert ", or a final agency copy of the report,".
3
40 Subsection 22(3)
4
After "of the report", insert ", or the final agency copy,".
5
41 Subsection 22(4)
6
Repeal the subsection, substitute:
7
(4) The Inspector-General must give the responsible Minister a copy
8
of:
9
(a) the final agency copy; or
10
(b) if subsection (3) applies--the version of the final agency
11
copy mentioned in that subsection.
12
(5) In addition, if the inquiry was conducted as a result of a request
13
made by the Prime Minister under section 9, the Inspector-General
14
must give the Prime Minister a copy of:
15
(a) the report mentioned in subsection (1) of this section; or
16
(b) if subsection (3) of this section applies--the version of the
17
report mentioned in that subsection.
18
42 Subsection 23(1)
19
After "a complaint", insert "in respect of action taken by an intelligence
20
agency".
21
43 Subsection 24(1)
22
Omit "an agency and has given a copy", substitute "a Commonwealth
23
agency and has, under section 22, given a final agency copy".
24
44 Subsection 24(2)
25
Omit "an agency", substitute "a Commonwealth agency".
26
45 Paragraph 24A(1)(a)
27
Omit "an agency", substitute "a Commonwealth agency".
28
46 Paragraph 24A(1)(b)
29
Repeal the paragraph, substitute:
30
Schedule 9 Functions of Inspector-General of Intelligence and Security
82 National Security Legislation Amendment Bill 2010 No. , 2010
(b) has given a final agency copy in relation to the inquiry to the
1
responsible Minister in relation to the agency, or to the
2
Secretary of the Department of Defence, under subparagraph
3
22(1)(b)(ii).
4
47 Section 25A
5
Omit "an agency", substitute "an intelligence agency".
6
48 Subsection 32A(2)
7
Omit "an agency", substitute "an intelligence agency".
8
49 Subsection 32B(2)
9
Omit "the agency", substitute "that agency".
10
50 Subsection 35(5)
11
After "other countries", insert ", law enforcement operations".
12
13
Consequential amendments relating to the establishment of the Parliamentary Joint
Committee on Law Enforcement Schedule 10
National Security Legislation Amendment Bill 2010 No. , 2010 83
Schedule 10--Consequential amendments
1
relating to the establishment of the
2
Parliamentary Joint Committee on Law
3
Enforcement
4
5
Administrative Decisions (Judicial Review) Act 1977
6
1 After paragraph (db) of Schedule 2
7
Insert:
8
(dc) decisions under subsection 8(4) or 9(4) of the Parliamentary
9
Joint Committee on Law Enforcement Act 2010;
10
Anti-Money Laundering and Counter-Terrorism Financing
11
Act 2006
12
2 Paragraph 128(14)(c)
13
Omit "the Chair of the Board", substitute "the Chief Executive Officer".
14
3 Paragraph 128(14)(c)
15
Omit "the Australian Crime Commission under subsection 59(6A) of
16
the Australian Crime Commission Act 2002", substitute "Law
17
Enforcement under subsection 8(1) of the Parliamentary Joint
18
Committee on Law Enforcement Act 2010".
19
Australian Crime Commission Act 2002
20
4 Subsection 51(4) (at the end of the definition of relevant
21
Act)
22
Add:
23
; or (d) the Parliamentary Joint Committee on Law Enforcement Act
24
2010 or regulations under that Act.
25
5 Part III
26
Repeal the Part.
27
6 Subsections 59(6A), (6B), (6C) and (6D)
28
Schedule 10 Consequential amendments relating to the establishment of the
Parliamentary Joint Committee on Law Enforcement
84 National Security Legislation Amendment Bill 2010 No. , 2010
Repeal the subsections.
1
7 Transitional--Committee on the Australian Crime
2
Commission
3
(1)
This item applies to the Parliamentary Joint Committee on the
4
Australian Crime Commission (the Committee) that was in existence
5
under the Australian Crime Commission Act 2002 immediately before
6
the commencement of this item.
7
(2)
The Committee continues in existence by force of this item, after the
8
commencement of this item, as the Parliamentary Joint Committee on
9
Law Enforcement under the Parliamentary Joint Committee on Law
10
Enforcement Act 2010.
11
(3)
A person who held office as a member of the Committee immediately
12
before the commencement of this item is taken to have been appointed,
13
immediately after that commencement, as a member of the
14
Parliamentary Joint Committee on Law Enforcement.
15
(4)
The person who held office as Chair of the Committee immediately
16
before the commencement of this item is taken to have been elected,
17
immediately after that commencement, as Chair of the Parliamentary
18
Joint Committee on Law Enforcement.
19
(5)
If the Committee was conducting a review immediately before
20
commencement:
21
(a) the Parliamentary Joint Committee on Law Enforcement may
22
continue the review after that commencement; and
23
(b) anything done for the purposes of the review before
24
commencement is taken to have been done for the purposes
25
of the review as continued in accordance with this item.
26
(6)
Section 10 of the Parliamentary Joint Committee on Law Enforcement
27
Act 2010 does not apply in relation to the year ending on 31 December
28
2010 if, in that year, the Ombudsman has provided to the Committee a
29
briefing under subsection 55AA(1) of the Australian Crime Commission
30
Act 2002 as in force immediately before the commencement of this
31
item.
32
(7)
For the avoidance of doubt, subitem (6) does not prevent the
33
Ombudsman from providing a briefing to the Parliamentary Joint
34
Committee on Law Enforcement about the involvement of the
35
Australian Crime Commission or the Australian Federal Police in
36
Consequential amendments relating to the establishment of the Parliamentary Joint
Committee on Law Enforcement Schedule 10
National Security Legislation Amendment Bill 2010 No. , 2010 85
controlled operations under Part IAB of the Crimes Act 1914 during the
1
year ending on 31 December 2010.
2
Australian Federal Police Act 1979
3
8 After paragraph 60A(2)(e)
4
Insert:
5
(ea) the purposes of the Parliamentary Joint Committee on Law
6
Enforcement Act 2010 or regulations under that Act; or
7
9 Paragraph 60A(2)(f)
8
Omit "(d) and (e)", substitute "(d), (e) and (ea)".
9
Proceeds of Crime Act 2002
10
10 Subsection 179U(1)
11
Omit "the Australian Crime Commission", substitute "Law
12
Enforcement".
13