NATIONAL CRIME AUTHORITY AMENDMENT ACT 2000 NO. 133, 2000 - SCHEDULE 1

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NATIONAL CRIME AUTHORITY AMENDMENT ACT 2000 NO. 133, 2000 - SCHEDULE 1

- Amendments

National Crime Authority Act 1984

1 Subsection 4(1)

Insert:

federal aspect , in relation to an offence against a law of a State, has the meaning given by subsection 4A(2).

2 Subsection 4(1)

Insert:

federally relevant criminal activity means:

(a): a relevant criminal activity, where the relevant offence is an offence against a law of the Commonwealth or of a Territory; or
(b): a relevant criminal activity, where the relevant offence:

(i): is an offence against a law of a State; and
(ii): has a federal aspect.

3 Subsection 4(1) (definition of original reference)

Omit all the words after "7(8AA),", substitute:

means:

(a): the reference under section 13 or 14 because of which the office was created; or
(b): the reference of a kind mentioned in paragraph 55A(4)(a) because of which the office was created.

4 Subsection 4(1) (definition of related reference)

Repeal the definition substitute:

related reference :

(a): in relation to a reference under section 13 or 14—means another reference made under either of those sections that is, in accordance with subsection 13(2A) or 14(3), stated to be related to the first-mentioned reference; or
(b): in relation to a reference of a kind mentioned in paragraph 55A(4)(a)—means another reference of that kind that is, in accordance with a provision of a law of a State that corresponds to subsection 14(3), stated to be related to the first-mentioned reference.

5 After section 4

Insert:

4A When a State offence has a federal aspect

Object

(1): 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:

(i): the elements of the State offence; or
(ii): the circumstances in which the State offence was committed (whether or not those circumstances are expressed to be elements of the offence); or

(b): their investigation by the Authority is incidental to the investigation by the Authority of an offence against a law of the Commonwealth or of a Territory.

Federal aspect

(2): 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 Authority is investigating a matter relating to a relevant criminal activity that relates to an offence against a law of the Commonwealth or of a Territory; and
(ii): if the Authority 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

(3): For the purposes of paragraph (2)(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 (2)(c)

(4): A State offence is taken to be covered by paragraph (2)(c) if:

(a): the State offence affects the interests of:

(i): the Commonwealth; or
(ii): an authority of the Commonwealth; or
(iii): a constitutional corporation; or

(b): the State offence was committed by a constitutional corporation; or
(c): the State offence was committed in a Commonwealth place; or
(d): the State offence involved the use of a postal service or other like service; or
(e): the State offence involved an electronic communication; or
(f): the State offence 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): the State offence 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): the State offence relates to a matter outside Australia.

(5): Subsection (4) does not limit paragraph (2)(c).

Definitions

(6): 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 .

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.

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

6 Paragraph 7(8AA)(a)

Repeal the paragraph, substitute:

(a): any of the following references to the Authority are in force:

(i): a reference made under section 13; or
(ii): a reference made under section 14; or
(iii): a reference of a kind mentioned in paragraph 55A(4)(a); and

7 At the end of paragraph 9(1)(a)

Add "and".

8 Paragraph 9(1)(b)

Before "relevant criminal activity", insert "federally".

9 At the end of paragraph 9(1)(b)

Add "and".

10 Paragraph 9(1)(c)

Before "relevant criminal activity", insert "federally".

11 At the end of paragraph 9(1)(c)

Add "and".

12 After paragraph 9(1)(c)

Insert:

(ca): to consider whether approval should be given for a matter relating to a relevant criminal activity (other than a federally relevant criminal activity) to be referred, under a law of a State, by a Minister of the Crown of a State, or by Ministers of the Crown of 2 or more States, to the Authority for investigation; and

13 At the end of paragraph 9(1)(d)

Add "and".

14 Subsection 10(4A)

Before "relevant criminal activity", insert "federally".

15 Paragraph 11(1)(b)

After "13", insert "or a law of a State".

16 Paragraph 11(2)(a)

Before "relevant criminal activity", insert "federally".

17 Paragraph 11(2)(a)

Omit "in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the Commonwealth or of a Territory".

18 Paragraph 11(2)(b)

Before "relevant criminal activity", insert "federally".

19 Subsection 12(1)

After "investigation", insert "in relation to a federally relevant criminal activity".

20 Paragraph 12(1A)(a)

After "11(1)(d)", insert "in relation to federally relevant criminal activities".

21 Subsection 13(1)

Before "relevant criminal activity", insert "federally".

22 Subsection 13(1)

Omit all the words after "investigation".

23 Paragraph 13(2)(a)

Before "relevant criminal activity", insert "federally".

24 Paragraph 13(2)(b)

Omit "or a law of a Territory", substitute ", a law of a Territory or a law of a State".

25 Subsection 14(1)

Before "relevant criminal activity", insert "federally".

26 At the end of subsection 14(1)

Add:

: Note: See also sections 55A and 55B, which are about the Authority's powers to carry on investigations under State laws.

27 Paragraph 14(2)(a)

Before "relevant criminal activity", insert "federally".

28 Section 15

Omit "shall", substitute "may".

29 At the end of paragraph 19A(1)(b)

Add "in relation to a federally relevant criminal activity".

30 At the end of subsection 19A(2)

Add "in relation to a federally relevant criminal activity".

31 At the end of paragraph 20(1)(b)

Add "in relation to a federally relevant criminal activity".

32 At the end of paragraph 20(2)(b)

Add "in relation to a federally relevant criminal activity".

33 Paragraph 22(1)(a)

Before "relevant criminal activity", insert "federally".

34 Paragraph 22(5)(a)

Before "relevant criminal activity", insert "federally".

35 Paragraph 24(1)(a)

After "was referred to the Authority", insert "(being a matter relating to a federally relevant criminal activity)".

36 Section 55A

Repeal the section, substitute:

55A Operation of State laws—investigation of offences against State laws

Object

(1): The main object of this section is to give legislative consent to the conferral on:

(a): the Authority; or
(b): a member; or
(c): a Judge of the Federal Court;

of certain duties, functions and powers under State laws.

Authority

(2): A law of a State may confer on the Authority any or all of the following duties, functions or powers:

(a): the function of investigating a matter relating to a relevant criminal activity in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect);
(b): a duty, function or power that:

(i): is for the purposes of an investigation referred to in paragraph (a); and
(ii): is of the same kind as a duty, function or power conferred on the Authority by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter).

(3): A law of a State is not effective to confer on the Authority the function of investigating a matter relating to a relevant criminal activity unless:

(a): the conferral of the function involves a Minister of the Crown of that State, by notice in writing to the Authority, referring that matter to the Authority for investigation; and
(b): that reference is made with the approval of the Inter-Governmental Committee; and
(c): the Commonwealth Minister has consented to the Authority performing the function of investigating that matter.

Member

(4): A law of a State may confer on a member a duty, function or power that:

(a): relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b): is associated with a function conferred on the Authority in relation to the investigation of that matter; and
(c): is of the same kind as a duty, function or power conferred on a member by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter).

Judge of the Federal Court

(5): A law of a State may confer on a Judge of the Federal Court a duty, function or power that:

(a): relates to the investigation of a matter relating to a relevant criminal activity in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of the State (irrespective of whether that offence or those offences have a federal aspect); and
(b): is associated with a function conferred on the Authority in relation to the investigation of that matter; and
(c): is of the same kind as a duty, function or power conferred on a Judge of the Federal Court by this Act or any other Act (whether or not the last-mentioned duty, function or power relates to the investigation of that matter).

Ancillary provisions

(6): Subsections (2), (4) and (5) do not extend to a duty, function or power of a kind specified in regulations made for the purposes of this subsection.
(7): Subsections (2), (4) and (5) do not extend to a law of a State to the extent to which that law purports to confer any duty that is in contravention of any constitutional doctrine restricting the duties that may be conferred on:

(a): authorities of the Commonwealth; or
(b): members of authorities of the Commonwealth; or
(c): Judges of a court created by the Parliament.

Concurrent operation of State laws

(8): This Act is not intended to exclude or limit the operation of a law of a State that confers any duties, functions or powers on:

(a): the Authority; or
(b): a member; or
(c): a Judge of the Federal Court;

(inclusive): and is capable of operating concurrently with this Act.

(9): Without limiting subsection (8), this Act is not intended to prevent:

(a): the Authority; or
(b): a member; or
(c): a Judge of the Federal Court;

from having concurrent duties, functions or powers under a law of a State in relation to the investigation of a matter or matters relating to federally relevant criminal activities, so long as the relevant law of the State is consistent with subsections (2) to (7) (inclusive).

(10): Without limiting subsection (8), this Act is not intended to prevent:

(a): the Commonwealth Minister; and
(b): a Minister of the Crown of a State;

from separately referring a matter or matters relating to the same federally relevant criminal activity to the Authority for investigation.

This section does not limit section 15

(11): This section does not limit section 15.

The same kind

(12): To avoid doubt, for the purposes of this section:

(a): a duty, function or power conferred on the Authority by a State NCA Act as in force immediately before 12 October 2000 is taken to be of the same kind as a duty, function or power conferred on the Authority by this Act; and
(b): a duty, function or power conferred on a member by a State NCA Act as in force immediately before 12 October 2000 is taken to be of the same kind as a duty, function or power conferred on a member by this Act; and
(c): a duty, function or power conferred on a Judge of the Federal Court by a State NCA Act as in force immediately before 12 October 2000 is taken to be of the same kind as a duty, function or power conferred on a Judge of the Federal Court by this Act.

Definitions

(13): In this section:

confer , in relation to a duty, includes impose.

Judge of the Federal Court means a Judge of the Federal Court in a personal capacity and not as a court or a member of a court.

State NCA Act means:

(a): the National Crime Authority (State Provisions) Act 1984 of New South Wales; or
(b): the National Crime Authority (State Provisions) Act 1984 of Victoria; or
(c): the National Crime Authority (State Provisions) Act 1985 of Queensland; or
(d): the National Crime Authority (State Provisions) Act 1985 of Western Australia; or
(e): the National Crime Authority (State Provisions) Act 1984 of South Australia; or
(f): the National Crime Authority (State Provisions) Act 1985 of Tasmania; or
(g): the National Crime Authority (Territory Provisions) Act 1985 of the Northern Territory; or
(h): the National Crime Authority (Territory Provisions) Act 1991 of the Australian Capital Territory.

55B Choice of Commonwealth and State powers

(1): If:

(a): the Authority is investigating a matter relating to a federally relevant criminal activity in so far as the relevant offence is, or the relevant offences are or include, an offence or offences against a law of a State; and
(b): for the purposes of that investigation, the Authority or a member has a choice between exercising powers conferred by this Act or any other Act, and exercising powers conferred by a law of the State;

this Act or that other Act does not require the Authority or member to favour exercising the powers conferred by this Act or that other Act.

(2): This section has effect despite anything in subsection 11(2) or section 13 or 14.

55C No obligation to perform duties etc. in relation to a relevant criminal activity that is not a federally relevant criminal activity

(1): To avoid doubt, neither this Act nor any other law of the Commonwealth imposes any obligation on:

(a): the Authority; or
(b): a member;

to perform a duty or function, or exercise a power:

(c): in relation to an investigation of a matter relating to a relevant criminal activity that is not a federally relevant criminal activity; or
(d): that is otherwise in contravention of any constitutional doctrine restricting the duties that may be conferred on:

(i): authorities of the Commonwealth; or
(ii): members of authorities of the Commonwealth.

(2): To avoid doubt, neither this Act nor any other law of the Commonwealth imposes any obligation on a Judge of the Federal Court to perform a duty or function, or exercise a power, that relates to an investigation by the Authority of a matter relating to a relevant criminal activity if:

(a): the relevant criminal activity is not a federally relevant criminal activity; or
(b): the imposition of the obligation is otherwise in contravention of any constitutional doctrine restricting the duties that may be conferred on Judges of a court created by the Parliament.

(3): In this section:

Judge of the Federal Court means a Judge of the Federal Court in a personal capacity and not as a court or a member of a court.

37 Subsection 59(2)

Omit "in accordance with section 14".

38 Transitional—section 13 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a notice in force under subsection 13(1) of the National Crime Authority Act 1984 immediately before the commencement of this item.

39 Transitional—section 14 of the National Crime Authority Act 1984

(1) This item applies if a notice was in force under subsection 14(1) of the National Crime Authority Act 1984 immediately before the commencement of this item.
(2) The amendments made by this Schedule do not affect the validity of the notice. This subitem has effect subject to subitems (3) and (4).
(3) In determining the scope of the special functions conferred on the Authority by the National Crime Authority Act 1984 :

(a): if some, but not all, of the offences to which the notice relates have a federal aspect—disregard any offences that do not have a federal aspect; and
(b): if none of the offences to which the notice relates have a federal aspect—disregard the notice.

(4) If the notice was given under a law of a State, section 55A of the National Crime Authority Act 1984 as amended by this Schedule applies to a duty, function or power conferred, or purporting to be conferred, by that law in connection with the giving of that notice.
(5) In this item:

confer , in relation to a duty, includes impose.

40 Transitional—section 19A of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a request in force under section 19A of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the request relates is an investigation relating to a federally relevant criminal activity.

41 Transitional—section 20 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a notice in force under section 20 of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the notice relates is an investigation relating to a federally relevant criminal activity.

42 Transitional—section 22 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a warrant in force under section 22 of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the warrant relates is an investigation relating to a federally relevant criminal activity.

43 Transitional—section 24 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of an order in force under section 24 of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the order relates is an investigation relating to a federally relevant criminal activity.

44 Transitional—section 28 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a summons in force under section 28 of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the summons relates is an investigation relating to a federally relevant criminal activity.

45 Transitional—section 29 of the National Crime Authority Act 1984

To avoid doubt, the amendments made by this Schedule do not affect the validity of a notice in force under section 29 of the National Crime Authority Act 1984 immediately before the commencement of this item, so long as the investigation to which the notice relates is an investigation relating to a federally relevant criminal activity.

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