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AUSTRALIAN FEDERAL POLICE AND OTHER LEGISLATION AMENDMENT ACT 2004 NO. 64, 2004 - SCHEDULE 3

- Amendments relating to the investigation of State offences that have a federal aspect

Australian Federal Police Act 1979

1A
Subsection 4(1)

Insert:

"federal aspect", in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 4AA(1).

Note: This subsection defines State to include the Northern Territory.

1
After section 4

Insert:

4AA
State offences that have a federal aspect

Object

(1A)
The object of this section is to identify State offences that have a federal aspect because:

(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.

State offences that have a federal aspect

(1)
For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a particular primary offence; and
(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
(d) both:
(i) the Australian Federal Police is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian Federal Police is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).

Specificity of acts or omissions

(2)
For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (1)(c)

(3)
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

(4)
Subsection (3) does not limit paragraph (1)(c).

Definitions

(5)
In this section:

"ancillary offence", in relation to an offence (the primary offence ), means:

(a) an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.

"authority of the Commonwealth "has the same meaning as in section 3AA of the Crimes Act 1914 .

"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

"conduct "has the same meaning as in the Criminal Code .

"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.

"electronic communication" means a communication of information:

(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

"engage in conduct" has the same meaning as in the Criminal Code .

"State" includes the Australian Capital Territory and the Northern Territory.

"State offence" means an offence against a law of a State.

2
After paragraph 8(1)(b)

Insert:

(baa) the investigation of State offences that have a federal aspect; and

3
At the end of subsection 8(1)

Add:

Note: For State offences that have a federal aspect, see section 4AA.

3A
After subparagraph 9(1)(c)(iv)

Insert:

(iva) the investigation of State offences that have a federal aspect;

3B
Section 12B (at the end of the definition of general
offence )

Add:

; or (c) a State offence that has a federal aspect.

3C
At the end of Division 2 of Part II

Add:

12M
Concurrent operation of State and Territory laws
The application of this Division in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1: Subsection 4(1) defines State to include the Northern Territory.

Note 2: Section 4AA has the effect that an offence against a law of the Australian Capital Territory is a State offence that has a federal aspect.

Crimes Act 1914

3D
Subsection 3(1)

Insert:

"federal aspect", in relation to an offence against a law of a State or of the Australian Capital Territory, has the meaning given by subsection 3AA(1).

Note: This subsection defines State to include the Northern Territory.

4
Subsection 3(1) (paragraph (a) of the definition of thing
relevant to an indictable offence )

Repeal the paragraph, substitute:

(a) either of the following:
(i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or

5
Subsection 3(1) (paragraph (a) of the definition of thing
relevant to a summary offence )

Repeal the paragraph, substitute:

(a) either of the following:
(i) anything with respect to which a summary offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;
(ii) anything with respect to which a State offence that has a federal aspect, and that is a summary or simple offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or

6
After section 3

Insert:

3AA
State offences that have a federal aspect

Object

(1A)
The object of this section is to identify State offences that have a federal aspect because:

(a) they potentially fall within Commonwealth legislative power because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power because of the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be acts or omissions involved in committing the offence); or
(c) the Australian Federal Police investigating them is incidental to the Australian Federal Police investigating an offence against a law of the Commonwealth or a Territory.

State offences that have a federal aspect

(1)
For the purposes of this Act, a State offence has a federal aspect if, and only if:

(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a particular primary offence; and
(ii) assuming that the provision creating the primary offence had been enacted by the Parliament of the Commonwealth instead of by the Parliament of the State—the provision would have been a valid law of the Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had enacted a provision that created an offence penalising the specific acts or omissions involved in committing the State offence—that provision would have been a valid law of the Commonwealth; or
(d) both:
(i) the Australian Federal Police is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or a Territory; and
(ii) if the Australian Federal Police is investigating, or were to investigate, a matter relating to a relevant criminal activity that relates to the State offence—that investigation is, or would be, incidental to the investigation mentioned in subparagraph (i).

Specificity of acts or omissions

(2)
For the purposes of paragraph (1)(c), the specificity of the acts or omissions involved in committing a State offence is to be determined having regard to the circumstances in which the offence was committed (whether or not those circumstances are expressed to be elements of the offence).

State offences covered by paragraph (1)(c)

(3)
A State offence is taken to be covered by paragraph (1)(c) if the conduct constituting the State offence:

(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
(iii) within a Territory, between a State and a Territory or between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond the limits of the State concerned); or
(ii) insurance (other than State insurance not extending beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international agreement to which Australia is a party imposes obligations to which effect could be given by the creation of an offence against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia and another country or countries or is otherwise a subject of international concern.

(4)
Subsection (3) does not limit paragraph (1)(c).

Definitions

(5)
In this section:

"ancillary offence", in relation to an offence (the primary offence ), means:

(a) an offence of conspiring to commit the primary offence; or
(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the primary offence; or
(c) an offence of attempting to commit the primary offence.

"Commonwealth place" has the same meaning as in the Commonwealth Places (Application of Laws) Act 1970 .

"conduct" has the same meaning as in the Criminal Code .

"constitutional corporation" means a corporation to which paragraph 51(xx) of the Constitution applies.

"electronic communication" means a communication of information:

(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
(d) whether in the form of visual images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

"engage in conduct" has the same meaning as in the Criminal Code .

"State" includes the Australian Capital Territory and the Northern Territory.

"State offence" means an offence against a law of a State.

Note: Subsection 3(1) defines State to include the Northern Territory.

6A
Subsection 3C(1) (paragraph (b) of the definition of
offence )

Omit "other than the Australian Capital Territory".

7
Subsection 3C(1) (at the end of the definition of
offence )

Add:

; or (c) a State offence that has a federal aspect.

7A
Subsection 3D(3)

Repeal the subsection.

7B
Subsection 3D(4)

Omit "another", substitute "a".

8
At the end of section 3D

Add:

(6)
The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1: Subsection 3(1) defines State to include the Northern Territory.

Note 2: Section 3AA has the effect that an offence against the law of the Australian Capital Territory is a State offence that has a federal aspect.

9
Subsection 3ZQA(1) (definition of Commonwealth
offence )

Repeal the definition, substitute:

"Commonwealth offence" means:

(a) an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982 ; or
(b) a State offence that has a federal aspect.

10
Paragraph 15H(b)

After "serious Commonwealth offence", insert "or a serious State offence that has a federal aspect".

11
At the end of section 15HB

Add:

(2)
For the purposes of this Part, serious State offence that has a federal aspect means a State offence that has a federal aspect and that has the characteristics of a serious Commonwealth offence.

Note: The heading to section 15HB is replaced by the heading "What is a serious Commonwealth offence or a serious State offence that has a federal aspect ?".

12
Subsection 23B(1) (definition of Commonwealth
offence )

Repeal the definition, substitute:

"Commonwealth offence" means:

(a) an offence against a law of the Commonwealth, other than an offence that is a service offence for the purposes of the Defence Force Discipline Act 1982 ; or
(b) a State offence that has a federal aspect.

13
Subsection 23WA(1) (definition of indictable
offence )

Repeal the definition, substitute:

"indictable offence" means:

(a) an indictable offence against a law of the Commonwealth; or
(b) a State offence that has a federal aspect and that is an indictable offence against the law of that State.

13A
Subsection 23WA(1) (definition of offence )

Omit "the Australian Capital Territory or any other Territory", substitute "a Territory other than the Australian Capital Territory".

13B
Subsection 23WA(1) (at the end of the definition of
offence )

Add:

Note: Subsection 3(1) provides that Territory does not include the Northern Territory.

14
Subsection 23WA(1) (definition of prescribed
offence )

After "Commonwealth", insert ", or a State offence that has a federal aspect,".

15
Subsection 23WA(1) (definition of serious
offence )

After "Commonwealth", insert ", or a State offence that has a federal aspect,".

16
After Division 11A of Part 1D

Insert:


Division 11B—Concurrent operation of State and Territory laws 23YUL
Concurrent operation of State and Territory laws
The application of this Part in relation to State offences that have a federal aspect is not intended to limit or exclude the concurrent operation of any law of a State or of the Australian Capital Territory.

Note 1: Subsection 3(1) defines State to include the Northern Territory.

Note 2: Section 3AA has the effect that an offence against a law of the Australian Capital Territory is a State offence that has a federal aspect.



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