NATIONAL CRIME AUTHORITY ACT 1984 No. 41, 1984 - SECT 32
Applications to Federal Court of Australia
NATIONAL CRIME AUTHORITY ACT 1984 No. 41, 1984 - SECT 32
Applications to Federal Court of Australia
32. (1) Where-
(a) a person claims to be entitled to refuse to furnish information or
produce a document or thing that he is required to furnish or produce
pursuant to a notice under section 20;
(b) a person claims to be entitled to refuse to produce a document or
thing that he is required to produce pursuant to a notice under
section 29; or
(c) a person claims to be entitled to refuse to answer a question put to
him, or to produce a document or thing that he was required to
produce, at a hearing before the Authority, the Authority shall decide
as soon as practicable whether in its opinion the claim is justified
and notify the person of its decision.
(2) If the person is dissatisfied with the decision, he may apply to the
Federal Court for an order of review in respect of the decision.
(3) Where the Authority decides that a claim by a person that he is entitled
to refuse to produce a document is not justified, the person is not entitled
to make an application to the Federal Court under sub-section (2) in respect
of the decision unless the person has produced the document to the Authority
or placed the document in the custody of the Registrar of that Court, and
where the person has so produced the document and makes such an application,
the Authority shall cause the document to be placed in the custody of the
Registrar of that Court.
(4) On an application for an order of review in respect of a decision of the
Authority under sub-section (1), the Federal Court may, in its discretion,
make an order-
(a) affirming the decision; or
(b) setting aside the decision.
(5) Where the Federal Court makes an order under sub-section (4) setting aside
a decision by the Authority that a claim by a person that he was entitled to
refuse to produce a document is not justified-
(a) unless paragraph (b) applies-the Federal Court shall make a further
order directing that the document be delivered to the person;
(b) if the Federal Court-
(i) makes the first-mentioned order for the reason that the person
was entitled, on the ground that production of the document
might tend to incriminate him, to refuse to produce the
document;
(ii) is satisfied that the person was not entitled on any other
ground to refuse to produce the document; and
(iii) is satisfied that an undertaking of a kind referred to in
sub-section 30 (5) or (7) has, or 2 or more such undertakings
have, been given to the person and that the person, if now
required to produce the document at a hearing before the
Authority, would not be entitled to refuse so to produce it,
the Federal Court shall make a further order directing that the document be
delivered to the Authority; and
(c) if the Federal Court-
(i) makes the first-mentioned order for the reason that, or for
reasons including the reason that, the person was entitled, on
the ground that production of the document might tend to
incriminate him, to refuse to produce the document; and
(ii) makes a further order directing that the document be delivered
to the person,
evidence of production of the document by the person to the Authority, or of
the placing of the document by the person in the custody of the Registrar of
the Federal Court, as the case may be, for the purposes of the application on
which the orders were made is not admissible in proceedings against the person
for an offence against a law of the Commonwealth, of a State or of a
Territory, other than proceedings in respect of the falsity of evidence given
by the person.
(6) A prosecution for an offence under section 20, 29 or 30 shall not be
commenced in respect of a refusal or failure by a person to furnish
information, produce a document or thing or answer a question-
(a) if the person has claimed to be entitled to refuse to furnish the
information, produce the document or thing or answer the question, as
the case may be, and the Authority decides that, in its opinion, the
claim is not justified-until the expiration of the period of 5 days
(excluding days on which the Registry of the Federal Court is closed)
immediately after the day on which the Authority so decides; or
(b) if the person has made an application to the Federal Court under
sub-section (2) for an order of review in respect of a decision by the
Authority that, in its opinion, a claim by the person to be entitled
to refuse to furnish the information, produce the document or thing or
answer the question is not justified-until the application, and any
appeal from an order made by the Federal Court on the application,
have been determined or otherwise disposed of.
(7) An order of the Federal Court under sub-section (4) is, subject to any
appeal from that order, conclusive for the purposes of any other proceedings.
(8) Where a person who is required to produce a document pursuant to a notice
under section 29, or who is required to produce a document at a hearing before
the Authority, claims that-
(a) the document contains-
(i) particular matter (in this sub-section referred to as the "relevant
matter") relating to the personal affairs of the person, not being matter
relating to the activities of an existing or past business; or
(ii) in the case of a person who is or has been an
employee-particular
matter (in this sub-section also referred to as the "relevant matter"), being
details of earnings received by the person in respect of his employment; and
(b) the person would, if the document had contained only the relevant
matter, have been entitled, on the ground that production of the
document might tend to incriminate him, to refuse so to produce the
document, the person may, whether or not he has made an application to
the Federal Court under sub-section (2) in respect of a decision by
the Authority in relation to the document, make an application to the
Federal Court for an order under this sub-section and, if such an
application is made and the document is produced to that Court, then,
subject to paragraph (5) (a), that Court-
(c) if it is satisfied that the claim is justified-may, subject to
paragraph (d) of this sub-section, make such order as it thinks fit
for the excision or concealment of the part of the document that
contains the relevant matter and shall, if it makes such an order,
make a further order directing that the document be delivered to the
Authority after the first-mentioned order has been complied with;
(d) if it is satisfied that an undertaking of a kind referred to in
sub-section 30 (5) or (7) has, or 2 or more such undertakings have,
been given to the person and that the person would not, if the
document contained only the relevant matter and the person were now
required to produce the document to the Authority, be entitled, on the
ground that production of the document might tend to incriminate him,
to refuse so to produce it-shall make an order directing that the
document be delivered to the Authority; and
(e) if paragraph (d) does not apply and that Court does not make an order
of the kind first referred to in paragraph (c)-shall make an order
directing that the document be delivered to the Authority.
(9) A person is not entitled to make an application to the Federal Court under
sub-section (8) in relation to a document unless that person has produced the
document to the Authority or placed the document in the custody of the
Registrar of that Court, and where the person has so produced the document and
makes such an application, the Authority shall cause the document to be placed
in the custody of the Registrar of that Court.
(10) Where-
(a) a person makes a claim as mentioned in sub-section (8) in relation to
particular matter (in this sub-section referred to as the "relevant matter")
contained in a document; and
(b) the Federal Court, being satisfied that the claim is justified, makes
in relation to the document an order of the kind first referred to in
paragraph (8) (c), evidence of production of the document by the
person to the Authority, or of the placing of the document by the
person in the custody of the Registrar of the Federal Court, as the
case may be, for the purposes of the application on which the order is
made is, in so far as the document contains the relevant matter, not
admissible in any proceedings against the person for an offence
against a law of the Commonwealth, of a State or of a Territory, other
than proceedings in respect of the falsity of evidence given by the
person.
(11) A prosecution for an offence under section 29 or 30 shall not be
commenced in respect of a refusal or failure by a person to produce a
document-
(a) if the person has made a claim in relation to the document as
mentioned in sub-section (8)-until the expiration of the period of 5
days (excluding days on which the Registry of the Federal Court is
closed) immediately after the day on which the document was to be
produced; or
(b) if the person has made an application under sub-section (8) in
relation to the document-until the application, and any appeal from an
order made by the Federal Court on the application, have been
determined or otherwise disposed of.
(12) An application to the Federal Court under sub-section (2) or (8)-
(a) shall be made in such manner as is prescribed by Rules of Court made
under the Federal Court of Australia Act 1976;
(b) shall set out the grounds of the application; and
(c) shall be lodged with a Registry of the Federal Court within the period
of 5 days (excluding days on which the Registry is closed) immediately
after the day on which-
(i) in the case of an application under sub-section (2)-the
decision to which the application relates is made; or
(ii) in the case of an application under sub-section (8)-the
document to which the application relates was to be produced,
or within such further period as that Court (whether before or after the
expiration of the first-mentioned period) allows.
