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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
CRIME AND MISCONDUCT
BILL 2001
Queensland
CRIME AND MISCONDUCT BILL 2001
TABLE OF PROVISIONS
Section Page
CHAPTER 1--PRELIMINARY
PART 1--INTRODUCTION
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
PART 2--PURPOSE
4 Act's purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5 How Act's purposes are to be achieved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
PART 3--OVERVIEW
6 Purpose of pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7 Crime and Misconduct Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8 Crime Reference Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9 Parliamentary Crime and Misconduct Committee . . . . . . . . . . . . . . . . . . . . 21
10 Parliamentary Crime and Misconduct Commissioner. . . . . . . . . . . . . . . . . . 22
11 Public Interest Monitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PART 4--INTERPRETATION
Division 1--Definitions
12 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13 Notes in text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Division 2--Official misconduct
14 Definitions for div 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15 Meaning of "official misconduct" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
16 Conduct happening over time, or at any time, may be
official misconduct .................................. 23
17 Conduct outside Queensland may be official misconduct. . . . . . . . . . . . . . . 24
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18 Conspiracy or attempt to engage in conduct may be
official misconduct .................................. 24
19 Official misconduct not affected by time limitations . . . . . . . . . . . . . . . . . . 24
Division 3--Units of public administration
20 Meaning of "unit of public administration" . . . . . . . . . . . . . . . . . . . . . . . . . 24
21 Holding appointment in unit of public administration . . . . . . . . . . . . . . . . . 25
Division 4--References to major crime and misconduct
22 References to major crime or misconduct include
suspected major crime or suspected misconduct ............... 26
CHAPTER 2--COMMISSION FUNCTIONS, INVESTIGATIONS
AND REPORTING
PART 1--PREVENTION
23 Commission's prevention function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
24 How commission performs its prevention function . . . . . . . . . . . . . . . . . . . 26
PART 2--MAJOR CRIME
Division 1--Major crime function
25 Commission's major crime function . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
26 How commission performs its crime function . . . . . . . . . . . . . . . . . . . . . . . 27
Division 2--Referrals by reference committee
27 Referrals to commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
28 Matters about which the reference committee must be satisfied before
making a referral ..................................... 28
29 Reference committee may give commission directions
about investigations .................................... 29
30 Amendment of referral to investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
31 Referrals to police service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Division 3--Dealing with major crime
32 Police task forces and other operational agreements. . . . . . . . . . . . . . . . . . . 30
PART 3--MISCONDUCT
Division 1--Misconduct functions
33 Commission's misconduct functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
34 Principles for performing misconduct functions . . . . . . . . . . . . . . . . . . . . . . 31
35 How commission performs its misconduct functions . . . . . . . . . . . . . . . . . . 32
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Division 2--How to make a complaint
36 Complaining about misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 3--Duty to notify
37 Duty to notify commission of police misconduct . . . . . . . . . . . . . . . . . . . . . 33
38 Duty to notify commission of official misconduct . . . . . . . . . . . . . . . . . . . . 33
39 Duty to notify is paramount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
40 Commission may issue directions about how notifications are
to be made .......................................... 34
Division 4--Dealing with complaints
Subdivision 1--Commissioner of police
41 Responsibility of commissioner of police . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
42 Dealing with complaints--commissioner of police . . . . . . . . . . . . . . . . . . . 35
Subdivision 2--Other units of public administration
43 Responsibility of public officials, other than the commissioner of police 36
44 Dealing with complaints--public officials other the
commissioner of police .................................. 37
Subdivision 3--Commission
45 Responsibility of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
46 Dealing with complaints--commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
47 Commission's monitoring role for police misconduct . . . . . . . . . . . . . . . . . 40
48 Commission's monitoring role for official misconduct. . . . . . . . . . . . . . . . . 41
Division 5--Action following investigation
49 Reports about complaints dealt with by the commission . . . . . . . . . . . . . . . 42
50 Commission may prosecute official misconduct. . . . . . . . . . . . . . . . . . . . . . 43
51 Other action for misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
PART 4--RESEARCH, INTELLIGENCE AND OTHER
FUNCTIONS
Division 1--Research
52 Research functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Division 2--Intelligence
53 Intelligence functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
54 Database of intelligence information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
55 Sharing of intelligence information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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Division 3--Other functions
56 Commission's other functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
PART 5--PERFORMANCE OF FUNCTIONS
57 Commission to act independently etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
58 Independence of holders of judicial office . . . . . . . . . . . . . . . . . . . . . . . . . . 46
59 Commission to cooperate with other entities . . . . . . . . . . . . . . . . . . . . . . . . 47
60 Commission may give evidence or information to other entities . . . . . . . . . 47
61 Commission's functions not to limit proper performance of similar
functions by other entities ............................. 48
62 Restriction on access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
PART 6--REPORTING
Division 1--Application
63 Application of pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Division 2--Commission reports
64 Commission's reports--general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
65 Commission reports--court procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Division 3--Confidential information
66 Maintaining confidentiality of information . . . . . . . . . . . . . . . . . . . . . . . . . . 50
67 Register of confidential information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
68 Giving of reasons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 4--Tabling requirements
69 Commission reports to be tabled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 5--General
70 Commission's report is not enough to remove a judge . . . . . . . . . . . . . . . . . 53
71 Giving other information to parliamentary committee . . . . . . . . . . . . . . . . . 53
CHAPTER 3--POWERS
PART 1--PARTICULAR POWERS TO REQUIRE INFORMATION
OR ATTENDANCE
Division 1--Particular powers in relation to units of public
administration
Subdivision 1--Crime investigations
72 Power to require information or documents . . . . . . . . . . . . . . . . . . . . . . . . . 54
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Subdivision 2--Misconduct investigations
73 Power to enter etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Division 2--Notice to produce or discover
Subdivision 1--Crime investigations
74 Notice to produce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Subdivision 2--Misconduct investigations
75 Notice to discover information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Division 3--Procedure on claim of privilege
Subdivision 1--Crime investigations
76 Application of subdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
77 Commission officer to consider claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
78 Procedure for documents subject to claim of privilege . . . . . . . . . . . . . . . . . 60
Subdivision 2--Misconduct investigations
79 Application of subdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
80 Commission officer to consider claim of privilege . . . . . . . . . . . . . . . . . . . . 62
81 Procedure for documents subject to claim of privilege . . . . . . . . . . . . . . . . . 62
Division 4--Notice to attend
82 Notice to attend hearing--general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
83 Notice to attend hearing--prisoner or patient . . . . . . . . . . . . . . . . . . . . . . . . 64
Division 5--Confidential documents
84 Notice may be a confidential document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 6--Restriction on power
85 Notices requiring immediate attendance may be issued only by or
with the approval of a Supreme Court judge ................. 66
PART 2--SEARCH WARRANTS GENERALLY
86 Search warrant applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
87 Issue of search warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
88 Order in search warrants about documents . . . . . . . . . . . . . . . . . . . . . . . . . . 68
89 Search warrant may be a confidential document. . . . . . . . . . . . . . . . . . . . . . 68
90 When search warrant ends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
91 What search warrant must state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
92 Powers under search warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
93 Copy of search warrant to be given to occupier . . . . . . . . . . . . . . . . . . . . . . 71
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94 Limitation on search warrant powers for misconduct investigations . . . . . . 72
PART 3--SEARCH OF PLACE TO PREVENT LOSS OF
EVIDENCE
95 Application of part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
96 Search to prevent loss of evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
97 Post-search approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
98 Making of post-search approval order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
99 Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
PART 4--SEARCHING PERSONS
Division 1--General provisions
100 General provisions about searches of persons. . . . . . . . . . . . . . . . . . . . . . . . 75
101 Taking a person to another place for search . . . . . . . . . . . . . . . . . . . . . . . . . 76
102 Limitation on period of detention for search. . . . . . . . . . . . . . . . . . . . . . . . . 76
103 Dealing with persons who obstruct search of person . . . . . . . . . . . . . . . . . . 76
Division 2--Searches involving removal of clothing
104 Application of division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
105 Removal of clothing for search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
106 Protecting the dignity of persons during search . . . . . . . . . . . . . . . . . . . . . . 77
107 Special requirements for searching children and persons
with impaired capacity ................................. 78
108 If video cameras monitor place where person is searched . . . . . . . . . . . . . . 78
PART 5--SEIZING PROPERTY
109 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
110 General power to seize evidence--crime investigation. . . . . . . . . . . . . . . . . 79
111 General power to seize evidence--misconduct investigation . . . . . . . . . . . . 80
112 Receipt for seized property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
113 Application for order in relation to seized things . . . . . . . . . . . . . . . . . . . . . 81
114 Orders magistrate may make in relation to seized thing . . . . . . . . . . . . . . . . 82
115 Disposal of seized things at end of proceeding . . . . . . . . . . . . . . . . . . . . . . . 83
116 Right to inspect seized documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
117 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
118 Application by owner etc. for return of things . . . . . . . . . . . . . . . . . . . . . . . 84
119 Application by commission officer for order if ownership dispute. . . . . . . . 85
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PART 6--SURVEILLANCE DEVICES
Division 1--Non-application of particular Acts
120 Acts that do not apply to divs 2-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Division 2--Use of surveillance devices under warrant of Supreme
Court judge
121 Surveillance warrant applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
122 Who may be present at consideration of application for surveillance warrant 87
123 Consideration of application for surveillance warrant . . . . . . . . . . . . . . . . . 87
124 Issue of surveillance warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
125 What surveillance warrant must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
126 Report on use of surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
127 Duration and extension of surveillance warrants . . . . . . . . . . . . . . . . . . . . . 90
128 Power under surveillance warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Division 3--Emergency use of surveillance devices for a crime
investigation
129 Application of div 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
130 Emergency use of surveillance devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
131 Application for approval of emergency use of surveillance device. . . . . . . . 92
132 Who may be present at consideration of application . . . . . . . . . . . . . . . . . . 92
133 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
134 Judge may approve emergency use of powers . . . . . . . . . . . . . . . . . . . . . . . 93
135 Use of evidence and information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Division 4--Use of surveillance devices for a crime investigation under
magistrates warrant
136 Application of div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
137 Surveillance warrant applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
138 Who may be present at consideration of application . . . . . . . . . . . . . . . . . . 95
139 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
140 Issue of surveillance warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
141 What warrant must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
142 Duration and extension of surveillance warrants . . . . . . . . . . . . . . . . . . . . . 97
143 Powers under surveillance warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
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Division 5--Other provisions about surveillance devices
144 Restriction about records and access to surveillance warrant applications etc. 98
145 Disclosure of information obtained using surveillance warrant . . . . . . . . . . 99
146 Destruction of records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
PART 7--COVERT SEARCHES FOR CRIME INVESTIGATIONS
147 Application of pt 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
148 Covert search warrant applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
149 Who may be present at consideration of application . . . . . . . . . . . . . . . . . . 102
150 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
151 Issue of covert search warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
152 What covert search warrant must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
153 Duration and extension of covert search warrant . . . . . . . . . . . . . . . . . . . . . 103
154 Restriction about records and access to covert search warrant applications . 104
155 Powers under covert search warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
156 Report on covert search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
PART 8--ADDITIONAL POWERS WITH COURT'S APPROVAL
157 Application of pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
158 Additional powers warrant applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
159 Who may be present at consideration of application . . . . . . . . . . . . . . . . . . 106
160 Consideration of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
161 Issue of additional powers warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
162 What additional powers warrant must state. . . . . . . . . . . . . . . . . . . . . . . . . . 107
163 Duration and extension of additional powers warrant. . . . . . . . . . . . . . . . . . 108
164 Restriction about records and access to additional powers warrant applications108
165 Powers under additional powers warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
PART 9--WARRANTS REGISTER
166 Register of warrants, warrant applications etc. . . . . . . . . . . . . . . . . . . . . . . . 110
PART 10--ARREST WARRANTS
167 Arrest warrant application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
168 Issue of arrest warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
169 What arrest warrant authorises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
170 Provision for overnight detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
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171 Person's liability for noncompliance with attendance
notice unaffected by issue of arrest warrant ................. 113
PART 11--GENERAL
172 Commission officer may use assistance in exercising particular powers . . . 113
173 Protection for assistants from liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
174 Commission's powers generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
175 Supplying officer's details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
CHAPTER 4--HEARINGS AND DECIDING CLAIMS OF
PRIVILEGE AND EXCUSE
PART 1--PROCEEDINGS
176 Commission may hold hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
177 Whether hearings are to be open or closed . . . . . . . . . . . . . . . . . . . . . . . . . . 115
178 Who must conduct hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
179 Who may be present at closed hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
180 Conduct of hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
181 Legal representation and examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
182 Right to interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
PART 2--REFUSALS AND CLAIMS OF PRIVILEGE AND
REASONABLE EXCUSE
Division 1--Refusal to be sworn
183 Refusal to take oath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Division 2--Refusal to produce
Subdivision 1--Crime investigations
184 Application of subdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
185 Refusal to produce--claim of reasonable excuse . . . . . . . . . . . . . . . . . . . . . 119
186 Return of sealed documents or things for decision on claim
of privilege at hearing ................................... 121
Subdivision 2--Misconduct investigations
187 Application of subdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
188 Refusal to produce--self-incrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Division 3--Refusal to answer
Subdivision 1--Crime investigations
189 Application of subdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
190 Refusal to answer question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
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Subdivision 2--Misconduct investigations
191 Application of subdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
192 Refusal to answer question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Division 4--Deciding claims
Subdivision 1--Crime investigations
193 Application of subdiv 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
194 Presiding officer to decide whether refusal to answer
questions or produce documents or things is justified ............. 124
195 Appeals to Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Subdivision 2--Misconduct investigations
196 Supreme Court to decide claim of privilege or reasonable excuse . . . . . . . . 127
Division 5--Restrictions on use
197 Restriction on use of privileged answers, documents and
things disclosed or produced under compulsion ............... 128
PART 3--CONTEMPT
198 Contempt of person conducting commission hearing . . . . . . . . . . . . . . . . . . 129
199 Punishment of contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
200 Conduct that is contempt and offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
PART 4--GENERAL
201 Commission must give evidence to defence
unless court certifies otherwise ...................... 130
202 Publication of names, evidence etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
203 Protection of members, legal representatives and witnesses . . . . . . . . . . . . . 132
204 Allowances for witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
205 Legal assistance for crime investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
CHAPTER 5--OFFENCES
206 Application of Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
207 Pretending to be a commission officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
208 Abuse of office in commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
209 Bribery of commission officer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
210 Obstruction or delay of commission procedures. . . . . . . . . . . . . . . . . . . . . . 135
211 Injury or detriment to witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
212 Offence of victimisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
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Crime and Misconduct Bill 2001
213 Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
214 Unauthorised publication of commission reports . . . . . . . . . . . . . . . . . . . . . 138
215 Resisting exercise of powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
216 Frivolous or vexatious complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
217 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
218 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
219 Proceedings for an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
CHAPTER 6--ADMINISTRATION
PART 1--CRIME AND MISCONDUCT COMMISSION
Division 1--Establishment of Crime and Misconduct Commission
220 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
221 Commission has common seal etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
222 Excluded matter for Corporations Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Division 2--Commissioners
Subdivision 1--Membership and appointment
223 Membership of the commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
224 Qualifications for appointment as the chairperson . . . . . . . . . . . . . . . . . . . . 144
225 Qualifications for appointment as a part-time commissioner . . . . . . . . . . . . 144
226 Disqualification as commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
227 Advertising and nominations for appointment . . . . . . . . . . . . . . . . . . . . . . . 145
228 Consultation before nominating persons for appointment . . . . . . . . . . . . . . 145
229 Appointment of chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
230 Appointment of part-time commissioners. . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Subdivision 2--Other provisions about appointment
231 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
232 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
233 Preservation of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
234 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
235 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
236 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
237 Acting chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
238 Disclosure of interests by commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
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Crime and Misconduct Bill 2001
Division 3--Assistant commissioners and senior officers
Subdivision 1--Appointment
239 Assistant commissioner, crime and assistant commissioner, misconduct. . . 150
240 Qualifications for appointment as an assistant commissioner. . . . . . . . . . . . 150
241 Disqualification as an assistant commissioner . . . . . . . . . . . . . . . . . . . . . . . 150
242 Advertising and nominations for appointment . . . . . . . . . . . . . . . . . . . . . . . 150
243 Consultation before nominating persons for appointment . . . . . . . . . . . . . . 150
244 Appointment of assistant commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
245 Senior officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
246 Disqualification as a senior officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Subdivision 2--Other provisions about appointment
247 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
248 Basis of employment for assistant commissioners or senior officers . . . . . . 152
249 Preservation of rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
250 Acting assistant commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Division 4--Roles of chairperson and assistant commissioners
251 Role of chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
252 Role of assistant commissioner, crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
253 Role of assistant commissioner, misconduct. . . . . . . . . . . . . . . . . . . . . . . . . 154
Division 5--Commission staff and agents
254 Commission staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
255 Secondment of officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
256 Engagement of agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
257 Commission officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
258 Superannuation schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Division 6--Performance accountability
259 Budget and performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
260 Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Division 7--Meetings and other business of commission
261 Conduct of business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
262 Assistant commissioners to attend meetings . . . . . . . . . . . . . . . . . . . . . . . . . 157
263 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
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264 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
265 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
266 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
267 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
268 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Division 8--Delegations and authorised commission officers
269 Delegation--commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
270 Delegation--chairperson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
271 Delegation--assistant commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
272 Authorised commission officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
273 Commission officer's identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
PART 2--CRIME REFERENCE COMMITTEE
Division 1--Establishment of crime reference committee
274 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Division 2--Functions and support
275 Functions of reference committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
276 Commission to give committee administrative support . . . . . . . . . . . . . . . . 163
Division 3--Oversighting role
277 Reference committee may obtain information from commission . . . . . . . . . 163
Division 4--Provisions about membership
278 Membership of reference committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
279 Deputy committee member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
280 Duration of appointment of appointed member . . . . . . . . . . . . . . . . . . . . . . 165
281 Terms of appointment of appointed member . . . . . . . . . . . . . . . . . . . . . . . . 165
282 Resignation of appointed member. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
283 Termination of appointment of appointed member . . . . . . . . . . . . . . . . . . . . 165
Division 5--Meetings and other business
284 Conduct of meetings and other business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
285 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
286 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
287 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
288 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
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289 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
290 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
PART 3--PARLIAMENTARY CRIME AND MISCONDUCT
COMMITTEE
Division 1--Establishment of parliamentary committee
291 Establishment of parliamentary committee. . . . . . . . . . . . . . . . . . . . . . . . . . 169
Division 2--Functions
292 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Division 3--Powers
293 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
294 Directions by parliamentary committee to undertake investigation . . . . . . . 171
295 Referral of concerns by parliamentary committee . . . . . . . . . . . . . . . . . . . . 171
296 Guidelines on operation of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
297 Guidelines to be tabled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
298 Disallowance of guideline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
299 Limited saving of operation of guideline that ceases to have effect . . . . . . . 173
Division 4--Membership
300 Membership of parliamentary committee . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
301 Membership of parliamentary committee continues despite dissolution . . . 173
Division 5--Meetings
302 Quorum and voting at meetings of parliamentary committee . . . . . . . . . . . . 174
PART 4--PARLIAMENTARY CRIME AND MISCONDUCT
COMMISSIONER
Division 1--Establishment of office of parliamentary commissioner
303 Office of parliamentary crime and misconduct commissioner . . . . . . . . . . . 174
Division 2--Provisions about appointment
304 Qualification for appointment as parliamentary commissioner . . . . . . . . . . 175
305 Disqualifications as parliamentary commissioner. . . . . . . . . . . . . . . . . . . . . 175
306 Selection for appointment of parliamentary commissioner . . . . . . . . . . . . . 175
307 Appointment of parliamentary commissioner. . . . . . . . . . . . . . . . . . . . . . . . 175
308 Acting parliamentary commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
309 Duration of parliamentary commissioner's appointment . . . . . . . . . . . . . . . 176
310 Terms of parliamentary commissioner's appointment . . . . . . . . . . . . . . . . . 177
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311 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
312 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
313 Oath of parliamentary commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Division 3--Functions and support
314 Functions of parliamentary commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . 178
315 Administrative and support services for parliamentary commissioner . . . . . 179
316 Parliamentary commissioner can not be required to
disclose particular information ............................ 180
Division 4--Powers
317 Powers of the parliamentary commissioner . . . . . . . . . . . . . . . . . . . . . . . . . 180
318 Parliamentary commissioner may conduct hearings in
limited circumstances .................................. 181
319 Notice may be a confidential document . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
320 Intelligence data review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Division 5--General
321 Confidentiality obligations not to apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
322 Commission not entitled to privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
323 Parliamentary commissioner's report subject to Parliamentary privilege . . . 185
PART 5--PUBLIC INTEREST MONITOR
Division 1--Appointment of public interest monitor
324 Public interest monitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
325 Acting monitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Division 2--Functions
326 Monitor's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
327 Minister's guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
Division 3--General
328 Monitor's annual report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
CHAPTER 7--GENERAL
329 Duty of chairperson to notify improper conduct to the
parliamentary committee ................................ 188
330 Persons subject to criminal history check . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
331 Effect of pending proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
332 Judicial review of commission's activities in relation to official misconduct 190
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Crime and Misconduct Bill 2001
333 Effect of further factors on order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
334 Application under s 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
335 Protecting officials from liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
336 Protection of parliamentary commissioner and officers etc. . . . . . . . . . . . . . 193
337 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
338 Protection of witnesses etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
339 Record of execution of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
340 Evidentiary aids. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
341 Personnel changes do not affect commission's power to make
findings or report ................................... 195
342 Inspection and use of material in commission's possession . . . . . . . . . . . . . 195
343 Information disclosure and privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
344 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
345 Authority to administer oaths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
346 Commissions of Inquiry Act 1950 prevails over this Act . . . . . . . . . . . . . . . 198
347 Review of Act and commission's operational and financial performance. . . 198
348 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
CHAPTER 8--REPEALS, TRANSITIONAL AND SAVINGS
PROVISIONS
PART 1--REPEAL PROVISIONS
349 Repeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
PART 2--TRANSITIONAL PROVISIONS
350 Definitions for pt2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
351 References to repealed Acts and former titles . . . . . . . . . . . . . . . . . . . . . . . . 200
352 Assets, rights and liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
353 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
354 Continuation of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
355 Continuation of references . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
356 Offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
357 Chairperson of the criminal justice commission . . . . . . . . . . . . . . . . . . . . . . 202
358 Commissioners of the criminal justice commission . . . . . . . . . . . . . . . . . . . 202
359 Crime commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
360 Management committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
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361 Parliamentary committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
362 Parliamentary commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
363 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
364 Right of return to public service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
365 Contract employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
366 Accrued entitlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
367 Public interest monitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
368 Special provisions for transitional office holders . . . . . . . . . . . . . . . . . . . . . 205
369 Provision for selection processes started before the commencement . . . . . . 206
370 Provision for selection processes for roles of chairperson and assistant
commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
371 Warrants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
372 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
373 Action taken by parliamentary commissioner. . . . . . . . . . . . . . . . . . . . . . . . 207
374 Parliamentary commissioner to have possession of and deal with
records of the CJC inquiry ............................. 207
375 Data and records of commission of inquiry . . . . . . . . . . . . . . . . . . . . . . . . . 207
376 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
CHAPTER 9--AMENDMENTS OF ACTS
377 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 209
CONSEQUENTIAL AMENDMENTS
COMMISSION FOR CHILDREN AND YOUNG PEOPLE ACT 2000 . . . 209
COOPERATIVES ACT 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
CORRECTIVE SERVICES ACT 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
EDUCATION (TEACHER REGISTRATION) ACT 1988. . . . . . . . . . . . . . 212
ELECTRICITY ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
EVIDENCE ACT 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
EXPLOSIVES ACT 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
FINANCIAL ADMINISTRATION AND AUDIT ACT 1977. . . . . . . . . . . . 214
FINANCIAL TRANSACTION REPORTS ACT 1992. . . . . . . . . . . . . . . . . 215
FOOD PRODUCTION (SAFETY) ACT 2000 . . . . . . . . . . . . . . . . . . . . . . . 215
FREEDOM OF INFORMATION ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . 215
18
Crime and Misconduct Bill 2001
GOVERNMMENT OWNED CORPORATIONS ACT 1993 . . . . . . . . . . . . 216
GRAIN INDUSTRY (RESTRUCTURING) ACT 1991 . . . . . . . . . . . . . . . . 217
HEALTH RIGHTS COMMISSION ACT 1991 . . . . . . . . . . . . . . . . . . . . . . 217
JUDICIAL REVIEW ACT 1991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
JUSTICES ACT 1886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
LEGAL AID QUEENSLAND ACT 1997. . . . . . . . . . . . . . . . . . . . . . . . . . . 219
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
MEAT INDUSTRY ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
MISCONDUCT TRIBUNALS ACT 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . 220
PARLIAMENTARY COMMITTEES ACT 1995 . . . . . . . . . . . . . . . . . . . . . 221
POLICE POWERS AND RESPONSIBILITIES ACT 2000. . . . . . . . . . . . . 221
POLICE SERVICE ADMINISTRATION ACT 1990 . . . . . . . . . . . . . . . . . . 230
PROSTITUTION ACT 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
QUEENSLAND COMPETITION AUTHORITY ACT 1997. . . . . . . . . . . . 234
RESIDENTIAL TENANCIES ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . 234
RURAL ADJUSTMENT AUTHORITY ACT 1994 . . . . . . . . . . . . . . . . . . . 234
SUGAR INDUSTRY ACT 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
SUPERANNUATION (STATE PUBLIC SECTOR) ACT 1990. . . . . . . . . . 235
TRANSPORT OPERATIONS (MARINE SAFETY) ACT 1994 . . . . . . . . . 236
WHISTLEBLOWERS PROTECTION ACT 1994 . . . . . . . . . . . . . . . . . . . . 236
WITNESS PROTECTION ACT 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
WORKCOVER QUEENSLAND ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . 242
WORKPLACE HEALTH AND SAFETY ACT 1995 . . . . . . . . . . . . . . . . . 242
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 243
DICTIONARY
2001
A BILL
FOR
An Act to provide for the establishment and operation of a Crime and
Misconduct Commission, and a Parliamentary Crime and
Misconduct Committee, and for other purposes
s1 20 s4
Crime and Misconduct Bill 2001
The Parliament of Queensland enacts-- 1
CHAPTER 1--PRELIMINARY 2
PART 1--INTRODUCTION 3
1 Short title 4
This Act may be cited as the Crime and Misconduct Act 2001. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
3 Act binds all persons 8
(1) This Act binds all persons, including the State, and, so far as the 9
legislative power of the Parliament permits, the Commonwealth and the 10
other States. 11
(2) Subsection (1) does not make the State, the Commonwealth or 12
another State liable to be prosecuted for an offence. 13
PART 2--PURPOSE 14
4 Act's purposes 15
The purposes of this Act are-- 16
(a) to combat and reduce the incidence of major crime; and 17
(b) to continuously improve the integrity of, and to reduce the 18
incidence of misconduct in, the public sector. 19
s5 21 s9
Crime and Misconduct Bill 2001
5 How Act's purposes are to be achieved 1
(1) The Act's purposes are to be achieved primarily by establishing a 2
permanent commission to be called the Crime and Misconduct 3
Commission. 4
(2) The commission is to have investigative powers, not ordinarily 5
available to the police service, that will enable the commission to 6
effectively investigate particular cases of major crime. 7
(3) Also, the commission is to help units of public administration to deal 8
effectively, and appropriately, with misconduct by increasing their capacity 9
to do so while retaining power to itself investigate cases of misconduct, 10
particularly more serious cases of misconduct. 11
PART 3--OVERVIEW 12
6 Purpose of pt 3 13
The purpose of this part is to briefly outline the responsibilities of 14
relevant entities under this Act. 15
7 Crime and Misconduct Commission 16
The Crime and Misconduct Commission has primary responsibility for 17
the achievement of the Act's purposes. 18
8 Crime Reference Committee 19
The Crime Reference Committee has responsibility for referring major 20
crime to the commission for investigation and has a coordinating role for 21
investigations into major crime conducted by the commission in 22
cooperation with any other law enforcement agency. 23
9 Parliamentary Crime and Misconduct Committee 24
The Parliamentary Crime and Misconduct Committee is a standing 25
committee of the Legislative Assembly with particular responsibility for 26
monitoring and reviewing the commission's performance. 27
s 10 22 s 14
Crime and Misconduct Bill 2001
10 Parliamentary Crime and Misconduct Commissioner 1
The Parliamentary Crime and Misconduct Commissioner is an officer of 2
the Parliament who helps the Parliamentary Crime and Misconduct 3
Committee in the performance of its functions. 4
11 Public Interest Monitor 5
The Public Interest Monitor has a right of appearance before a court 6
hearing an application by the commission for a surveillance warrant or 7
covert search warrant and is entitled to test the appropriateness and validity 8
of the application before the court. 9
PART 4--INTERPRETATION 10
Division 1--Definitions 11
12 Definitions 12
The dictionary in schedule 2 defines particular words used in this Act. 13
13 Notes in text 14
A note in the text of this Act is part of the Act. 15
Division 2--Official misconduct 16
14 Definitions for div 2 17
In this division-- 18
"conduct" means-- 19
(a) for a person, regardless of whether the person holds an 20
appointment--conduct, or a conspiracy or attempt to engage in 21
conduct, of or by the person that adversely affects, or could 22
adversely affect, directly or indirectly, the honest and impartial 23
performance of functions or exercise of powers of-- 24
s 15 23 s 16
Crime and Misconduct Bill 2001
(i) a unit of public administration; or 1
(ii) any person holding an appointment; or 2
(b) for a person who holds or held an appointment--conduct, or a 3
conspiracy or attempt to engage in conduct, of or by the person 4
that is or involves-- 5
(i) the performance of the person's functions or the exercise of 6
the person's powers, as the holder of the appointment, in a 7
way that is not honest or is not impartial; or 8
(ii) a breach of the trust placed in the person as the holder of the 9
appointment; or 10
(iii) a misuse of information or material acquired in or in 11
connection with the performance of the person's functions 12
as the holder of the appointment, whether the misuse is for 13
the person's benefit or the benefit of someone else. 14
"hold an appointment" means hold an appointment in a unit of public 15
administration. 16
15 Meaning of "official misconduct" 17
"Official misconduct" is conduct that could, if proved, be-- 18
(a) a criminal offence; or 19
(b) a disciplinary breach providing reasonable grounds for 20
terminating the person's services, if the person is or were the 21
holder of an appointment. 22
16 Conduct happening over time, or at any time, may be 23
official misconduct 24
(1) Conduct may be official misconduct even though-- 25
(a) it happened before the commencement of this Act; or 26
(b) some or all of the effects or elements necessary to constitute 27
official misconduct happened before the commencement of this 28
Act; or 29
(c) a person involved in the conduct is no longer the holder of an 30
appointment. 31
s 17 24 s 20
Crime and Misconduct Bill 2001
(2) Conduct engaged in by, or in relation to, a person at a time when the 1
person is not the holder of an appointment may be official misconduct, if 2
the person becomes the holder of an appointment. 3
17 Conduct outside Queensland may be official misconduct 4
Conduct may be official misconduct regardless of-- 5
(a) where the conduct happens; or 6
(b) whether the law relevant to the conduct is a law of Queensland or 7
of another jurisdiction. 8
18 Conspiracy or attempt to engage in conduct may be 9
official misconduct 10
A conspiracy or an attempt to engage in conduct is not excluded from 11
being official misconduct if, had the conspiracy or attempt been brought to 12
fruition by the taking of a further step, the further step could constitute or 13
involve-- 14
(a) an offence; or 15
(b) grounds for terminating a person's services in a unit of public 16
administration, if the person is or were the holder of an 17
appointment in the unit. 18
19 Official misconduct not affected by time limitations 19
Conduct does not stop being official misconduct only because a 20
proceeding or an action for an offence to which the conduct is relevant can 21
no longer be brought or continued or that action for termination of services 22
because of the conduct can no longer be taken. 23
Division 3--Units of public administration 24
20 Meaning of "unit of public administration" 25
(1) Each of the following is a "unit of public administration"-- 26
(a) the Legislative Assembly, and the parliamentary service; 27
(b) the Executive Council; 28
s 21 25 s 21
Crime and Misconduct Bill 2001
(c) a department; 1
(d) the police service; 2
(e) a corporate entity established by an Act or that is of a description 3
of a corporate entity provided for by an Act which, in either case, 4
collects revenues or raises funds under the authority of an Act; 5
(f) a noncorporate entity, established or maintained under an Act, 6
that-- 7
(i) is funded to any extent with State moneys; or 8
(ii) is financially assisted by the State; 9
(g) a State court, of whatever jurisdiction, and its registry and other 10
administrative offices; 11
(h) another entity prescribed under a regulation. 12
(2) However, none of the following is a unit of public administration-- 13
(a) the commission; 14
(b) the parliamentary commissioner; 15
(c) the entity consisting of-- 16
(i) the parliamentary commissioner; and 17
(ii) officers and employees of the parliamentary service 18
assigned to the parliamentary commissioner; and 19
(iii) persons engaged to provide the parliamentary commissioner 20
with services, information or advice; 21
(d) an entity declared by an Act not to be a unit of public 22
administration. 23
21 Holding appointment in unit of public administration 24
A person holds an appointment in a unit of public administration if the 25
person holds any office, place or position in the unit, whether the 26
appointment is by way of election or selection. 27
s 22 26 s 24
Crime and Misconduct Bill 2001
Division 4--References to major crime and misconduct 1
22 References to major crime or misconduct include 2
suspected major crime or suspected misconduct 3
(1) A reference to major crime includes, in the context of a crime 4
investigation, suspected major crime. 5
(2) A reference to misconduct includes, in the context of a complaint or a 6
misconduct investigation, suspected misconduct. 7
CHAPTER 2--COMMISSION FUNCTIONS, 8
INVESTIGATIONS AND REPORTING 9
PART 1--PREVENTION 10
23 Commission's prevention function 11
The commission has a function (its "prevention function") of helping 12
to prevent major crime and misconduct. 13
24 How commission performs its prevention function 14
Without limiting the ways the commission may perform its prevention 15
function, the commission performs the function by-- 16
(a) analysing the intelligence it gathers in support of its 17
investigations into major crime and misconduct; and 18
(b) analysing the results of its investigations and the information it 19
gathers in performing its functions; and 20
(c) analysing systems used within units of public administration to 21
prevent misconduct; and 22
(d) using information it gathers from any source in support of its 23
prevention function; and 24
(e) providing information to, consulting with, and making 25
recommendations to, units of public administration; and 26
s 25 27 s 26
Crime and Misconduct Bill 2001
(f) providing information relevant to its prevention function to the 1
general community; and 2
(g) ensuring that in performing all of its functions it has regard to its 3
prevention function; and 4
(h) generally increasing the capacity of units of public 5
administration to prevent misconduct by providing advice and 6
training to the units and, if asked, to other entities; and 7
(i) reporting on ways to prevent major crime and misconduct. 8
PART 2--MAJOR CRIME 9
Division 1--Major crime function 10
25 Commission's major crime function 11
The commission has a function (its "crime function") to investigate 12
major crime referred to it by the reference committee. 13
26 How commission performs its crime function 14
Without limiting the ways the commission may perform its crime 15
function, the commission performs its crime function by-- 16
(a) investigating major crime referred to it by the reference 17
committee; and 18
(b) when conducting investigations under paragraph (a), gathering 19
evidence for-- 20
(i) the prosecution of persons for offences; and 21
(ii) the recovery of the proceeds of major crime; and 22
(c) liaising with, providing information to, and receiving 23
information from, other law enforcement agencies and 24
prosecuting authorities, including agencies and authorities 25
outside the State or Australia, about major crime. 26
s 27 28 s 28
Crime and Misconduct Bill 2001
Division 2--Referrals by reference committee 1
27 Referrals to commission 2
(1) The reference committee may refer major crime to the commission 3
for investigation-- 4
(a) on its own initiative; or 5
(b) if asked by-- 6
(i) the commissioner of police; or 7
(ii) the assistant commissioner, crime. 8
(2) The referral must be written. 9
28 Matters about which the reference committee must be satisfied 10
before making a referral 11
(1) The reference committee may, on its own initiative, refer major crime 12
to the commission for investigation only if it is satisfied-- 13
(a) an investigation into the major crime is unlikely to be effective 14
using powers ordinarily available to the police service; and 15
(b) it is in the public interest to refer the major crime to the 16
commission. 17
(2) The reference committee may, if asked by the police commissioner, 18
refer major crime to the commission for investigation only if it is 19
satisfied-- 20
(a) the police service has carried out an investigation into the major 21
crime that has not been effective; and 22
(b) further investigation into the major crime is unlikely to be 23
effective using powers ordinarily available to police officers; and 24
(c) it is in the public interest to refer the major crime to the 25
commission. 26
(3) Without limiting the matters to which the reference committee may 27
have regard in deciding whether it is in the public interest to refer major 28
crime to the commission, the reference committee may have regard to the 29
following matters-- 30
(a) the number of persons that may be involved; 31
s 29 29 s 31
Crime and Misconduct Bill 2001
(b) the degree of planning and organisation likely to be involved; 1
(c) the seriousness of, or the consequences of, the major crime; 2
(d) the person or persons likely to be responsible for planning and 3
organising the major crime; 4
(e) the likely involvement of the person or persons in similar 5
activities; 6
(f) the financial or other benefits likely to be derived by any person; 7
(g) whether investigation by the commission is a justifiable use of 8
resources. 9
29 Reference committee may give commission directions 10
about investigations 11
(1) The reference committee may give the commission directions 12
imposing limitations on a crime investigation, including limitations on the 13
exercise of the commission's powers for the investigation. 14
(2) The reference committee may also direct the commission to end a 15
particular crime investigation if the committee considers-- 16
(a) it may be more appropriate for another entity to undertake the 17
investigation; or 18
(b) it may be more effective for another entity to undertake the 19
investigation; or 20
(c) investigation by the commission is not a justifiable use of 21
resources. 22
(3) The commission must comply with a direction given under 23
subsection (1) or (2). 24
30 Amendment of referral to investigate 25
The reference committee may amend the terms of a referral to the 26
commission to investigate major crime on its own initiative or if asked by 27
the assistant commissioner, crime. 28
31 Referrals to police service 29
(1) The reference committee may refer criminal activity to the 30
commissioner of police for investigation if it is satisfied that the matter is 31
s 32 30 s 33
Crime and Misconduct Bill 2001
not appropriate for investigation or continued investigation by the 1
commission. 2
(2) The referral must be written. 3
(3) The commissioner of police must, if asked by the reference 4
committee, report to the committee on the referral. 5
(4) The commissioner of police must consider any comments about the 6
referral made by the reference committee. 7
Division 3--Dealing with major crime 8
32 Police task forces and other operational agreements 9
(1) The chairperson may make arrangements with the commissioner of 10
police for the establishment of a police task force to help the commission to 11
carry out a crime investigation. 12
(2) A police task force is under the control and direction of the 13
commissioner of police. 14
(3) With the approval of the reference committee, the commission may 15
enter into operational agreements with other entities, including an entity 16
mentioned in section 275(b).1 17
PART 3--MISCONDUCT 18
Division 1--Misconduct functions 19
33 Commission's misconduct functions 20
The commission has the following functions for misconduct (its 21
"misconduct functions")-- 22
(a) to raise standards of integrity and conduct in units of public 23
administration; 24
1 Section 275 (Functions of reference committee)
s 34 31 s 34
Crime and Misconduct Bill 2001
(b) to ensure a complaint about, or information or matter involving, 1
misconduct is dealt with in an appropriate way, having regard to 2
the principles set out in section 34. 3
34 Principles for performing misconduct functions 4
It is the Parliament's intention that the commission apply the following 5
principles when performing its misconduct functions-- 6
(a) Cooperation 7
· to the greatest extent practicable, the commission and units 8
of public administration should work cooperatively to 9
prevent misconduct 10
· the commission and units of public administration should 11
work cooperatively to deal with misconduct 12
(b) Capacity building 13
· the commission has a lead role in building the capacity of 14
units of public administration to prevent and deal with cases 15
of misconduct effectively and appropriately 16
(c) Devolution 17
· subject to the cooperation and public interest principles and 18
the capacity of the unit of public administration, action to 19
prevent and deal with misconduct in a unit of public 20
administration should generally happen within the unit 21
(d) Public interest 22
· the commission has an overriding responsibility to promote 23
public confidence-- 24
· in the integrity of units of public administration and 25
· if misconduct does happen within a unit of public 26
administration, in the way it is dealt with 27
· the commission should exercise its power to deal with 28
particular cases of misconduct when it is appropriate having 29
primary regard to the following-- 30
· the capacity of, and the resources available to, a unit of 31
public administration to effectively deal with the 32
misconduct 33
s 35 32 s 35
Crime and Misconduct Bill 2001
· the nature and seriousness of the misconduct, 1
particularly if there is reason to believe that 2
misconduct is prevalent or systemic within a unit of 3
public administration 4
· any likely increase in public confidence in having the 5
misconduct dealt with by the commission directly. 6
35 How commission performs its misconduct functions 7
(1) Without limiting how the commission may perform its misconduct 8
functions, it performs its misconduct functions by doing 1 or more of the 9
following-- 10
(a) expeditiously assessing complaints about, or information or 11
matters (also "complaints") involving, misconduct made or 12
notified to it; 13
(b) referring complaints about misconduct within a unit of public 14
administration to a relevant public official to be dealt with by the 15
public official; 16
(c) performing its monitoring role for police misconduct as provided 17
for under section 47(1);2 18
(d) performing its monitoring role for official misconduct as 19
provided for under section 48(1);3 20
(e) dealing with complaints about official misconduct, by itself or in 21
cooperation with a unit of public administration; 22
(f) investigating and otherwise dealing with, on its own initiative, 23
the incidence, or particular cases, of misconduct throughout the 24
State; 25
(g) assuming responsibility for, and completing, an investigation, by 26
itself or in cooperation with a unit of public administration, if the 27
commission considers that action to be appropriate having regard 28
to the principles set out in section 34;4 29
(h) when conducting or monitoring investigations, gathering 30
evidence for or ensuring evidence is gathered for-- 31
2 Section 47(Commission's monitoring role for police misconduct)
3 Section 48 (Commission's monitoring role for official misconduct)
4 Section 34 (Principles for performing misconduct functions)
s 36 33 s 38
Crime and Misconduct Bill 2001
(i) the prosecution of persons for offences; or 1
(ii) disciplinary proceedings against persons. 2
(2) In performing its misconduct functions in a way mentioned in 3
subsection (1), the commission should, whenever possible, liaise with a 4
relevant public official. 5
Division 2--How to make a complaint 6
36 Complaining about misconduct 7
(1) A person may complain about, or give information or matter 8
involving, misconduct to the commission. 9
(2) Subsection (1) does not limit to whom a person can complain about 10
misconduct. 11
12
Examples--
13
1. A person may complain directly to the commissioner of police about misconduct.
14
2. A person may complain directly to the chief executive of a government department
15
about misconduct happening within the department.
Division 3--Duty to notify 16
37 Duty to notify commission of police misconduct 17
(1) This section applies if the commissioner of police reasonably 18
suspects that a complaint, or information or matter (also a "complaint"), 19
involves police misconduct. 20
(2) The commissioner of police must notify the commission of the 21
complaint, subject to section 40. 22
38 Duty to notify commission of official misconduct 23
(1) This section applies if a public official suspects that a complaint, or 24
information or matter (also a "complaint"), involves, or may involve, 25
official misconduct. 26
(2) The public official must notify the commission of the complaint, 27
subject to section 40. 28
s 39 34 s 40
Crime and Misconduct Bill 2001
39 Duty to notify is paramount 1
(1) The duty of a public official to notify the commission of a complaint 2
under section 375 or 386 must be complied with despite-- 3
(a) the provisions of any other Act, other than the Police Service 4
Administration Act 1990, section 7.2(3);7 or 5
(b) any obligation the person has to maintain confidentiality about a 6
matter to which the complaint relates. 7
(2) Subsection (1) does not affect an obligation under another Act to 8
notify misconduct. 9
40 Commission may issue directions about how notifications are 10
to be made 11
(1) The commission may issue directions about how and when a public 12
official must notify the commission of complaints under section 37 or 38. 13
(2) Before issuing a direction, the commission must consult with, and 14
consider the views of, the relevant public official. 15
(3) In particular, if a direction would require the commissioner of police 16
to disclose information otherwise protected by the Police Powers and 17
Responsibilities Act 2000, section 192 or the Drugs Misuse Act 1986, 18
section 46, the commission may issue the direction, but before doing so 19
must have regard to the desirability of protecting confidentiality. 20
(4) A public official must comply with a direction given under 21
subsection (1). 22
(5) The commission may use or disclose information mentioned in 23
subsection (3) in the administration of this Act, but must maintain the 24
confidentiality of the information to the greatest practicable extent. 25
5 Section 37 (Duty to notify commission of police misconduct)
6 Section 38 (Duty to notify commission of official misconduct)
7 Police Service Administration Act 1990, section 7.2 (Duty concerning misconduct
or breaches of discipline)
s 41 35 s 42
Crime and Misconduct Bill 2001
Division 4--Dealing with complaints 1
Subdivision 1--Commissioner of police 2
41 Responsibility of commissioner of police 3
(1) The commissioner of police has primary responsibility for dealing 4
with complaints about, or information or matter the commissioner of police 5
reasonably suspects involves, police misconduct. 6
(2) The commissioner of police also has a responsibility to deal with a 7
complaint about, or information or matter involving, official misconduct 8
that is referred to the commissioner of police by the commission. 9
42 Dealing with complaints--commissioner of police 10
(1) The commissioner of police must expeditiously assess complaints, or 11
information or matter (also a "complaint") made or notified to, or 12
otherwise coming to the attention of, the commissioner of police. 13
(2) The commissioner of police must deal with a complaint about police 14
misconduct in the way the commissioner of police considers most 15
appropriate, subject to the commission's monitoring role. 16
(3) If the commissioner of police is satisfied that-- 17
(a) a complaint-- 18
(i) is frivolous or vexatious; or 19
(ii) lacks substance or credibility; or 20
(b) dealing with the complaint would be an unjustifiable use of 21
resources; 22
the commissioner of police may take no action or discontinue action taken 23
to deal with the complaint. 24
(4) The commissioner of police may, in an appropriate case, ask the 25
commission to deal with a complaint about police misconduct or to deal 26
with the complaint in cooperation with the commissioner of police. 27
(5) If the commission refers a complaint about official misconduct to the 28
commissioner of police to be dealt with, the commissioner of police must 29
deal with the complaint in the way the commissioner of police considers 30
most appropriate, subject to the commission's monitoring role. 31
s 43 36 s 43
Crime and Misconduct Bill 2001
(6) Without limiting how the commissioner of police may deal with a 1
complaint about official misconduct, the commissioner of police may ask 2
the commission to deal with the complaint in cooperation with the 3
commissioner of police. 4
(7) If a person makes a complaint that is dealt with by the commissioner 5
of police, the commissioner of police must give the person a response 6
stating-- 7
(a) if no action is taken on the complaint by the commissioner of 8
police or action to deal with the complaint is discontinued by the 9
commissioner of police--the reason for not taking action or 10
discontinuing the action; or 11
(b) if action is taken on the complaint by the commissioner of 12
police-- 13
(i) the action taken; and 14
(ii) the reason the commissioner of police considers the action 15
to be appropriate in the circumstances; and 16
(iii) any results of the action that are known at the time of the 17
response. 18
(8) However, the commissioner of police is not required to give a 19
response to the person-- 20
(a) if the person has not given his or her name and address or does 21
not require a response; or 22
(b) if the response would disclose information the disclosure of 23
which would be contrary to the public interest. 24
Subdivision 2--Other units of public administration 25
43 Responsibility of public officials, other than the 26
commissioner of police 27
A public official, other than the commissioner of police, has a 28
responsibility to deal with a complaint about, or information or matter 29
involving, official misconduct that is referred to it by the commission. 30
s 44 37 s 44
Crime and Misconduct Bill 2001
44 Dealing with complaints--public officials other the 1
commissioner of police 2
(1) This section does not apply to the police service. 3
(2) A public official must deal with a complaint about, or information or 4
matter (also a "complaint") involving, official misconduct in the way the 5
public official considers most appropriate, subject to the commission's 6
monitoring role. 7
(3) If the public official is satisfied that-- 8
(a) a complaint-- 9
(i) is frivolous or vexatious; or 10
(ii) lacks substance or credibility; or 11
(b) dealing with the complaint would be an unjustifiable use of 12
resources; 13
the public official may take no action or discontinue action taken to deal 14
with the complaint. 15
(4) A public official may, in an appropriate case, ask the commission to 16
deal with a complaint in cooperation with the public official. 17
(5) If a person makes a complaint that is dealt with by the public official, 18
the public official must give the person a response stating-- 19
(a) if no action is taken on the complaint by the public official or 20
action to deal with the complaint is discontinued by the public 21
official--the reason for not taking action or discontinuing the 22
action; or 23
(b) if action is taken on the complaint by the public official-- 24
(i) the action taken; and 25
(ii) the reason the public official considers the action to be 26
appropriate in the circumstances; and 27
(iii) any results of the action that are known at the time of the 28
response. 29
(6) However, the public official is not required to give a response to the 30
person-- 31
(a) if the person has not given his or her name and address or does 32
not require a response; or 33
s 45 38 s 46
Crime and Misconduct Bill 2001
(b) if the response would disclose information the disclosure of 1
which would be contrary to the public interest. 2
Subdivision 3--Commission 3
45 Responsibility of commission 4
(1) The commission has primary responsibility for dealing with 5
complaints about, or information or matter involving, official misconduct. 6
(2) The commission is responsible for monitoring how the commissioner 7
of police deals with police misconduct. 8
46 Dealing with complaints--commission 9
(1) The commission deals with a complaint about, or information or 10
matter (also a "complaint") involving, misconduct by-- 11
(a) expeditiously assessing each complaint about misconduct made 12
or notified to it, or otherwise coming to its attention; and 13
(b) taking the action the commission considers most appropriate in 14
the circumstances having regard to the principles set out in 15
section 34.8 16
(2) The commission may take the following action-- 17
(a) deal with each complaint about official misconduct that it 18
considers should not be referred to a public official to be dealt 19
with; 20
(b) refer a complaint about official misconduct to a public official to 21
be dealt with by the public official or in cooperation with the 22
commission, subject to the commission's monitoring role; 23
(c) without limiting paragraph (b), refer a complaint about official 24
misconduct of a person holding an appointment in a unit of 25
public administration that may involve criminal activity to the 26
commissioner of police to be dealt with; 27
(d) if it is a complaint about police misconduct notified to the 28
commission by the commissioner of police--allow the 29
8 Section 34 (Principles for performing misconduct functions)
s 46 39 s 46
Crime and Misconduct Bill 2001
commissioner of police to continue to deal with the complaint, 1
subject to the commission's monitoring role; 2
(e) if it is a complaint about police misconduct made to the 3
commission by someone other than the commissioner of 4
police--give the complaint to the commissioner of police to be 5
dealt with, subject to the commission's monitoring role; 6
(f) if a public official asks the commission to deal with a complaint 7
or to deal with a complaint in cooperation with the public 8
official-- 9
(i) deal with the complaint; or 10
(ii) deal with the complaint in cooperation with the public 11
official; or 12
(iii) advise the public official that the commission considers that 13
it is appropriate that the public official continue to deal with 14
the complaint, subject to the commission's monitoring role; 15
(g) if the commission is satisfied that-- 16
(i) the complaint-- 17
(A) is frivolous or vexatious; or 18
(B) lacks substance or credibility; or 19
(ii) dealing with the complaint would be an unjustifiable use of 20
resources; 21
take no action or discontinue action. 22
(5) If a person makes a complaint that is dealt with by the commission, 23
the commission must give the person a response stating-- 24
(a) if no action is taken by the commission on the complaint or 25
action to deal with the complaint is discontinued by the 26
commission--the reason for not taking action or discontinuing 27
the action; or 28
(b) if action is taken on the complaint by the commission-- 29
(i) the action taken; and 30
(ii) the reason the commission considers the action to be 31
appropriate in the circumstances; and 32
(iii) any results of the action that are known at the time of the 33
response. 34
s 47 40 s 47
Crime and Misconduct Bill 2001
(6) However, the commission is not required to give a response-- 1
(a) to the person if-- 2
(i) the person has not given his or her name and address or does 3
not require a response; or 4
(ii) the commission has given a notice, or is entitled to give a 5
notice, under section 2169 to the person in relation to the 6
complaint; or 7
(b) that discloses information the disclosure of which would be 8
contrary to the public interest. 9
(7) Nothing in this part limits the commission from providing 10
information about the conduct of a person to a public official for use in the 11
proper performance of the public official's functions. 12
47 Commission's monitoring role for police misconduct 13
(1) The commission may, having regard to the principles stated in 14
section 3410-- 15
(a) issue advisory guidelines for the conduct of investigations by the 16
commissioner of police into police misconduct; or 17
(b) review or audit the way the commissioner of police has dealt 18
with police misconduct, in relation to either a particular 19
complaint or a class of complaint; or 20
(c) assume responsibility for and complete an investigation by the 21
commissioner of police into police misconduct. 22
(2) The commissioner of police must give the commission reasonable 23
help to undertake a review or audit or to assume responsibility for an 24
investigation. 25
(3) If the commission assumes responsibility for an investigation, the 26
commissioner of police must stop his or her investigation or any other 27
action that may impede the investigation if directed to do so by the 28
commission. 29
(4) In this section-- 30
9 Section 216 (Frivolous or vexatious complaint)
10 Section 34 (Principles for performing misconduct functions)
s 48 41 s 48
Crime and Misconduct Bill 2001
"complaint", about police misconduct, includes information or matter 1
involving police misconduct. 2
48 Commission's monitoring role for official misconduct 3
(1) The commission may, having regard to the principles stated in 4
section 34-- 5
(a) issue advisory guidelines for the conduct of investigations by 6
public officials into official misconduct; or 7
(b) review or audit the way a public official has dealt with official 8
misconduct, in relation to either a particular complaint or a class 9
of complaint; or 10
(c) require a public official-- 11
(i) to report to the commission about an investigation into 12
official misconduct in the way and at the times the 13
commission directs; or 14
(ii) to undertake the further investigation into the official 15
misconduct that the commission directs; or 16
(d) assume responsibility for and complete an investigation by a 17
public official into official misconduct. 18
(2) The public official must-- 19
(a) give the commission reasonable help to undertake a review or 20
audit or to assume responsibility for an investigation; and 21
(b) comply with a requirement made under subsection (1)(c). 22
(3) If the commission assumes responsibility for an investigation, the 23
public official must stop his or her investigation or any other action that 24
may impede the investigation if directed to do so by the commission. 25
(4) In this section-- 26
"complaint", about official misconduct, includes information or matter 27
involving official misconduct. 28
s 49 42 s 49
Crime and Misconduct Bill 2001
Division 5--Action following investigation 1
49 Reports about complaints dealt with by the commission 2
(1) This section applies if the commission investigates (either by itself or 3
in cooperation with a public official), or assumes responsibility for the 4
investigation of, a complaint about, or information or matter involving, 5
misconduct and decides that prosecution proceedings or disciplinary action 6
should be considered. 7
(2) The commission may report on the investigation to any of the 8
following as appropriate-- 9
(a) the director of public prosecutions, or other appropriate 10
prosecuting authority, for the purposes of any prosecution 11
proceedings the director or other authority considers warranted; 12
(b) the Chief Justice, if the report relates to conduct of a judge of, or 13
other person holding judicial office in, the Supreme Court; 14
(c) the Chief Judge of the District Court, if the report relates to 15
conduct of a District Court judge; 16
(d) the President of the Childrens Court, if the report relates to 17
conduct of a person holding judicial office in the Childrens 18
Court; 19
(e) the Chief Magistrate, if the report relates to conduct of a 20
magistrate; 21
(f) the chief executive officer of a relevant unit of public 22
administration, for the purpose of taking disciplinary action, if 23
the report does not relate to the conduct of a judge, magistrate or 24
other holder of judicial office. 25
(3) A report made under subsection (2) must contain, or be accompanied 26
by, all relevant information known to the commission that-- 27
(a) supports a charge that may be brought against any person as a 28
result of the report; and 29
(b) supports a defence that may be available to any person liable to 30
be charged as a result of the report. 31
(4) If the director of public prosecutions requires the commission to 32
make further investigation or supply further information relevant to a 33
prosecution, whether started or not, the commission must take all 34
s 50 43 s 51
Crime and Misconduct Bill 2001
reasonable steps to further investigate the matter or provide the further 1
information. 2
50 Commission may prosecute official misconduct 3
(1) This section applies if the commission reports to the chief executive 4
officer of a unit of public administration under section 4911 that-- 5
(a) a complaint, matter or information involves, or may involve, 6
official misconduct by a prescribed person in the unit; and 7
(b) there is evidence supporting a charge of a disciplinary nature of 8
official misconduct against the prescribed person. 9
(2) The commission may charge the prescribed person with the relevant 10
official misconduct by way of a disciplinary charge. 11
(3) The charge may be dealt with only by a misconduct tribunal. 12
(4) For the definition "prescribed person", paragraph (b), a regulation 13
may not declare a court or the police service to be a unit of public 14
administration that is subject to the jurisdiction of a misconduct tribunal. 15
(5) In this section-- 16
"prescribed person" means-- 17
(a) a member of the police service; or 18
(b) a person (other than a judge or holder of judicial office or a 19
member of the police service) who holds an appointment in a 20
unit of public administration, which appointment or unit is 21
declared by regulation to be subject to the jurisdiction of a 22
misconduct tribunal. 23
51 Other action for misconduct 24
(1) Nothing in this part limits the action that may lawfully be taken by 25
the commission or a unit of public administration to discipline or otherwise 26
deal with a person for misconduct. 27
11 Section 49 (Reports about complaints dealt with by the commission)
s 52 44 s 52
Crime and Misconduct Bill 2001
1
Example--
2
The commissioner of police may bring a disciplinary charge against a police officer
3
under the Police Service Administration Act 1990.
(2) Subsection (1) is subject to sections 47 and 48.12 4
PART 4--RESEARCH, INTELLIGENCE AND OTHER 5
FUNCTIONS 6
Division 1--Research 7
52 Research functions 8
(1) The commission has the following functions-- 9
(a) to undertake research to support the proper performance of its 10
functions; 11
(b) to undertake research into the incidence and prevention of 12
criminal activity; 13
(c) to undertake research into any other matter relating to the 14
administration of criminal justice or relating to misconduct 15
referred to the commission by the Minister; 16
(d) to undertake research into any other matter relevant to any of its 17
functions. 18
(2) Without limiting subsection (1)(a), the commission may undertake 19
research into-- 20
(a) police service methods of operations; and 21
(b) police powers and the use of police powers; and 22
(c) law enforcement by police; and 23
(d) the continuous improvement of the police service. 24
12 Sections 47 (Commission's monitoring role for police misconduct) and 48
(Commission's monitoring role for official misconduct)
s 53 45 s 55
Crime and Misconduct Bill 2001
Division 2--Intelligence 1
53 Intelligence functions 2
The commission has the following functions-- 3
(a) to undertake intelligence activities to support the proper 4
performance of its functions; 5
(b) to analyse the intelligence data collected to support its functions; 6
(c) to minimise unnecessary duplication of intelligence data; 7
(d) to ensure that intelligence data collected and held to support its 8
functions is appropriate for the proper performance of its 9
functions. 10
54 Database of intelligence information 11
The commission must build up a database of intelligence information for 12
use in support of all of its functions using for the purpose information 13
acquired by it from any source available to it, including, for example-- 14
(a) its own operations; and 15
(b) the police service; and 16
(c) sources of the Commonwealth or any State supplying 17
intelligence information to it. 18
55 Sharing of intelligence information 19
(1) The commissioner of police must give the chairperson access to 20
intelligence information held by the police service as required by the 21
chairperson as soon as possible after receiving the request. 22
(2) The commission must, in the performance of all of its functions, give 23
intelligence information to the entities it considers appropriate in the way it 24
considers appropriate. 25
(3) The commission must limit access to information in its database of 26
intelligence information to those persons the chairperson considers have a 27
legitimate need to access the information. 28
s 56 46 s 58
Crime and Misconduct Bill 2001
Division 3--Other functions 1
56 Commission's other functions 2
The commission also has the following functions-- 3
(a) a function of undertaking witness protection;13 4
(b) a function conferred under another Act. 5
PART 5--PERFORMANCE OF FUNCTIONS 6
57 Commission to act independently etc. 7
The commission must, at all times, act independently, impartially and 8
fairly having regard to the purposes of this Act and the importance of 9
protecting the public interest. 10
58 Independence of holders of judicial office 11
(1) The commission, when performing its functions or exercising its 12
powers in relation to the procedures and operations of State courts or in 13
relation to the conduct of a judicial officer, must proceed having proper 14
regard for, and proper regard for the importance of preserving, the 15
independence of judicial officers. 16
(2) To the extent that a commission investigation is, or would be, in 17
relation to the conduct of a judicial officer-- 18
(a) the commission's authority to conduct the investigation is limited 19
to investigating misconduct of a kind that, if established, would 20
warrant the judicial officer's removal from office; and 21
(b) the investigation must be exercised in accordance with 22
appropriate conditions and procedures settled in continuing 23
consultations between the chairperson and the Chief Justice. 24
(3) A commission hearing in relation to the conduct of the judicial officer 25
must be conducted by the chairperson. 26
13 See also the Witness Protection Act 2000.
s 59 47 s 60
Crime and Misconduct Bill 2001
(4) The functions and powers of the commission are to be performed and 1
exercised by the chairperson who is to be taken to constitute the 2
commission for the investigation. 3
(5) In this section-- 4
"judicial officer" means-- 5
(a) a judge of, or other person holding judicial office in, a State 6
court; or 7
(b) a member of a tribunal that is a court of record. 8
59 Commission to cooperate with other entities 9
(1) The commission and units of public administration are to work 10
cooperatively to achieve optimal use of available resources. 11
(2) In performing its functions, the commission must-- 12
(a) liaise with, and coordinate its activities with the activities of, 13
units of public administration to avoid needless duplication of the 14
work of the units for the purpose of performing the commission's 15
functions; and 16
(b) have regard to the activities, findings and recommendations of 17
entities outside the State, including outside Australia, that have 18
functions similar to the commission-- 19
(i) to relate and adapt the activities, findings and 20
recommendations of the entities to the needs of the State; 21
and 22
(ii) to avoid needless duplication of the work of the entities for 23
the purpose of performing the commission's functions. 24
60 Commission may give evidence or information to other entities 25
(1) The commission may give evidence of, or information about, a 26
possible offence against a law of the State, the Commonwealth or another 27
State to an entity or a law enforcement agency the commission considers 28
appropriate. 29
(2) Also, the commission may give information coming to its 30
knowledge, including by way of a complaint, to a unit of public 31
administration if the commission considers that the unit has a proper 32
interest in the information for the performance of its functions. 33
s 61 48 s 63
Crime and Misconduct Bill 2001
1
Example--
2
The commission may consider that information in the commission's possession should
3
be given to the Auditor-General or the ombudsman for consideration in the
4
performance of the entity's functions.
(3) Subsection (1) does not limit anyone's right to start a prosecution for 5
an offence. 6
(4) This section is subject to section 62. 7
61 Commission's functions not to limit proper performance of 8
similar functions by other entities 9
(1) The conferral of functions on the commission does not limit police 10
power or the power of another entity to perform similar functions. 11
(2) Subsection (1) is subject to sections 47 and 48.14 12
62 Restriction on access 13
(1) Any information, document or thing in the commission's possession 14
may be used and dealt with in performing the commission's functions, but 15
otherwise must not be given to or made available for inspection by any 16
person without the commission's express written authorisation. 17
(2) Subsection (1) is subject to sections 293 and 317.15 18
PART 6--REPORTING 19
Division 1--Application 20
63 Application of pt 6 21
This part does not apply in relation to the performance of crime 22
functions. 23
14 Sections 47 (Commission's monitoring role for police misconduct) and 48
(Commission's monitoring role for official misconduct)
15 Sections 293 (Powers) and 317(Powers of the parliamentary commissioner)
s 64 49 s 65
Crime and Misconduct Bill 2001
Division 2--Commission reports 1
64 Commission's reports--general 2
(1) The commission may report in performing its functions. 3
(2) The commission must include in each of the reports-- 4
(a) any recommendations, including, if appropriate and after 5
consulting with the commissioner of police, a recommendation 6
that the Police Minister give a direction to the commissioner of 7
police under the Police Service Administration Act, section 4.6; 8
and 9
(b) an objective summary of all matters of which it is aware that 10
support, oppose or are otherwise relevant to its 11
recommendations. 12
(3) If the Police Minister decides not to give a direction under the Police 13
Service Administration Act, section 4.6 following a recommendation made 14
under subsection (2)(a), the Police Minister must table in the Legislative 15
Assembly, after giving the reasons-- 16
(a) a copy of the recommendation; and 17
(b) the Minister's reasons for not giving the direction. 18
(4) The commission may also include in a report any comments it may 19
have on the matters mentioned in subsection (2)(b). 20
(5) In this section-- 21
"Police Service Administration Act" means the Police Service 22
Administration Act 1990. 23
"Police Minister" means the Minister administering the Police Service 24
Administration Act. 25
65 Commission reports--court procedures 26
(1) This section applies to a commission report about-- 27
(a) the procedures and operations of a State court; or 28
(b) the procedures and practices of the registry or administrative 29
offices of a State court. 30
(2) The report may be given only to-- 31
s 66 50 s 66
Crime and Misconduct Bill 2001
(a) the Chief Justice, if the report deals with matters relevant to the 1
Supreme Court; or 2
(b) the Chief Judge of the District Court, if the report deals with 3
matters relevant to the District Court; or 4
(c) the President of the Childrens Court, if the report deals with 5
matters relevant to the Childrens Court; or 6
(d) the Chief Magistrate, if the report deals with matters relevant to 7
the Magistrates Courts; or 8
(e) the judicial officer, or the principal judicial officer if there is 9
more than 1 judicial officer, in the court, or the system of courts, 10
to which the matters dealt with in the report are relevant. 11
Division 3--Confidential information 12
66 Maintaining confidentiality of information 13
(1) Despite any other provision of this Act about reporting, if the 14
commission considers that confidentiality should be strictly maintained in 15
relation to information in its possession ("confidential information")-- 16
(a) the commission need not make a report on the matter to which 17
the information is relevant; or 18
(b) if the commission makes a report on the matter, it need not 19
disclose the confidential information or refer to it in the report. 20
(2) If the commission decides not to make a report to which confidential 21
information is relevant or, in a report, decides not to disclose or refer to 22
confidential information, the commission-- 23
(a) may disclose the confidential information in a separate document 24
to be given to-- 25
(i) the Speaker; and 26
(ii) the Minister; and 27
(b) must disclose the confidential information in a separate 28
document to be given to the parliamentary committee. 29
(3) A member of the parliamentary committee or a person appointed, 30
engaged or assigned to help the committee must not disclose confidential 31
information disclosed to the parliamentary committee or person under 32
s 67 51 s 67
Crime and Misconduct Bill 2001
subsection (2)(b) until the commission advises the committee there is no 1
longer a need to strictly maintain confidentiality in relation to the 2
information. 3
Maximum penalty--85 penalty units or 1 year's imprisonment. 4
(4) Despite subsection (2)(b), the commission may refuse to disclose 5
information to the parliamentary committee if-- 6
(a) a majority of the commissioners considers confidentiality should 7
continue to be strictly maintained in relation to the information; 8
and 9
(b) the commission gives the committee reasons for the decision in 10
as much detail as possible. 11
67 Register of confidential information 12
(1) The commission must maintain a register of information withheld 13
under section 66(4) and advise the parliamentary committee immediately 14
after the need to strictly maintain confidentiality in relation to the 15
information ends. 16
(2) The parliamentary committee or a person appointed, engaged or 17
assigned to help the committee who is authorised for the purpose by the 18
committee may, at any time, inspect in the register information the 19
commission has advised the committee is no longer required to be strictly 20
maintained as confidential. 21
(3) The parliamentary commissioner may inspect information on the 22
register at any time, regardless of whether the commission has advised the 23
parliamentary committee the information is no longer required to be 24
strictly maintained as confidential. 25
(4) The parliamentary committee may not require the parliamentary 26
commissioner to disclose to the committee information inspected by the 27
commissioner on the register, unless the commission has advised the 28
committee the information is no longer required to be strictly maintained as 29
confidential. 30
s 68 52 s 69
Crime and Misconduct Bill 2001
68 Giving of reasons 1
Information or reasons mentioned in section 66(2) or (4) or 67(1)16-- 2
(a) may be given in writing or orally; and 3
(b) are not a report or part of a report for section 69. 4
Division 4--Tabling requirements 5
69 Commission reports to be tabled 6
(1) This section applies to the following commission reports-- 7
(a) a report on a public hearing; 8
(b) a research report or other report that the parliamentary committee 9
directs be given to the Speaker. 10
(2) However, this section does not apply to the commission's annual 11
report, or a report under section 49 or 65,17 or a report to which section 66 12
applies.18 13
(3) A commission report, signed by the chairperson, must be given to-- 14
(a) the chairperson of the parliamentary committee; and 15
(b) the Speaker; and 16
(c) the Minister. 17
(4) The Speaker must table the report in the Legislative Assembly on the 18
next sitting day after the Speaker receives the report. 19
(5) If the Speaker receives the report when the Legislative Assembly is 20
not sitting, the Speaker must deliver the report and any accompanying 21
document to the clerk of the Parliament. 22
(6) The clerk must authorise the report and any accompanying document 23
to be printed. 24
16 Section 66 (Maintaining confidentiality of information) or 67 (Register of
confidential information)
17 Section 49 (Reports about complaints dealt with by the commission) or 65
(Commission reports--court procedures)
18 Section 66 (Maintaining confidentiality of information)
s 70 53 s 71
Crime and Misconduct Bill 2001
(7) A report printed under subsection (6) is to be taken, for all purposes, 1
to have been tabled in and printed by order of the Legislative Assembly and 2
is to be granted all the immunities and privileges of a report so tabled and 3
printed. 4
(8) The commission, before giving a report under subsection (1), may-- 5
(a) publish or give a copy of the report to the printer authorised to 6
print the report; and 7
(b) arrange for the preprinting by the printer of copies of the report 8
for this section. 9
Division 5--General 10
70 Commission's report is not enough to remove a judge 11
(1) A commission report is not, of itself, sufficient ground for an address 12
of the Legislative Assembly for the removal from office of a Supreme 13
Court or District Court judge. 14
(2) If, having regard to a commission report, the Legislative Assembly 15
resolves that further action in relation to a judge should be taken, it must-- 16
(a) appoint a tribunal of serving or retired judges of any 1 or more of 17
the State or Federal superior courts of Australia to inquire into 18
the matter dealt with in the commission's report in relation to the 19
judge; and 20
(b) defer any other action until the findings and recommendations of 21
the tribunal are known. 22
(3) If a tribunal is appointed, the commission must give to it-- 23
(a) the number of copies of its report the tribunal requires; and 24
(b) all material in the commission's possession relevant to the 25
subject of the tribunal's inquiry. 26
71 Giving other information to parliamentary committee 27
The commission may, with the parliamentary committee's consent, give 28
the parliamentary committee information, orally or in writing, whether or 29
s 72 54 s 72
Crime and Misconduct Bill 2001
not at the request of the committee, that is not included in a report under 1
section 69.19 2
CHAPTER 3--POWERS 3
4
PART 1--PARTICULAR POWERS TO REQUIRE
5
INFORMATION OR ATTENDANCE
6
Division 1--Particular powers in relation to units of public
7
administration
Subdivision 1--Crime investigations 8
72 Power to require information or documents 9
10
(1) This section applies only for a crime investigation.
11
(2) The chairperson may, by notice given to a person holding an
12
appointment in a unit of public administration, require the person, within
13
the reasonable time and in the way stated in the notice, to give an identified
14
commission officer--
15
(a) an oral or written statement of information of a stated type
16
relevant to a crime investigation that is in the possession of the
17
unit; or
18
(b) a stated document or other stated thing, or a copy of a stated
19
document, relevant to a crime investigation that is in the unit's
20
possession; or
21
(c) all documents of a stated type, or copies of documents of the
22
stated type, containing information relevant to a crime
23
investigation that are in the unit's possession.
19 Section 69 (Commission reports to be tabled)
s 72 55 s 72
Crime and Misconduct Bill 2001
(3) The chairperson may, by notice given to a person holding an 1
2
appointment in a unit of public administration, require the person--
3
(a) to attend before an identified commission officer at a reasonable
4
time and place stated in the notice; and
(b) at the time and place stated in the notice, to give to the officer a 5
document or thing stated in the notice that-- 6
(i) relates to the performance by the unit of the unit's functions; 7
and 8
(ii) is relevant to a crime investigation. 9
(4) The person must comply with a notice under subsection (2) or (3), 10
unless the person has a reasonable excuse. 11
Maximum penalty--85 penalty units or 1 year's imprisonment. 12
(5) A person who fails to comply with a notice under subsection (2) or 13
(3) does not commit an offence if-- 14
(a) the information, document or thing is subject to privilege; or 15
(b) a provision of another Act prescribed under a regulation for this 16
subsection excuses compliance with the requirement. 17
18
Note--
19
If a claim of privilege is made, the commission officer is required to consider the
20
claim under section 7720 and, if the requirement is not withdrawn, the person may
21
be required to attend at a commission hearing to establish the claim.
(6) A person does not, by complying with a notice under subsection (2) 22
or (3) in relation to the information, document or thing-- 23
(a) contravene a provision of an Act or a law imposing a statutory or 24
commercial obligation or restriction to maintain secrecy in 25
relation to the information, document or thing; or 26
(b) incur any civil liability in relation to the information, document 27
or thing. 28
(7) The notice must-- 29
(a) for a notice requiring a statement of information--indicate 30
briefly the general nature of the information by reference to a 31
particular matter or to the type of information sought; and 32
20 Section 77 (Commission officer to consider claim)
s 73 56 s 73
Crime and Misconduct Bill 2001
(b) for a notice requiring the giving of a document or other 1
thing--identify the document or thing sufficiently to enable the 2
person to know what is required. 3
Subdivision 2--Misconduct investigations 4
73 Power to enter etc. 5
(1) This section applies only for a misconduct investigation. 6
(2) The chairperson may, by notice, authorise a commission officer to 7
exercise powers under this section. 8
(3) A commission officer authorised under subsection (2) may-- 9
(a) enter and search official premises; or 10
(b) inspect any document or thing found in or on official premises 11
that is, or might be, relevant to the misconduct investigation; or 12
(c) seize and remove from official premises any document or thing 13
found in or on the premises that is relevant to a misconduct 14
investigation; or 15
(d) make copies of or extracts from a document mentioned in 16
paragraph (b) or (c); or 17
(e) require a person holding an appointment in a unit of public 18
administration to give the officer reasonable help to exercise the 19
powers mentioned in paragraphs (b) to (d). 20
(4) A person does not, by allowing the exercise of a power under 21
subsection (3) in relation to a document or thing-- 22
(a) contravene a provision of an Act or a law imposing a statutory or 23
commercial obligation or restriction to maintain secrecy in 24
relation to the document or thing; or 25
(b) incur any civil liability in relation to the document or thing. 26
(5) However, the commission officer must not exercise a power under 27
subsection (3)(b), (c) or (d) if the chief executive officer of the unit, or a 28
person authorised by the chief executive officer for the purpose, claims that 29
the document or thing is subject to privilege. 30
s 74 57 s 74
Crime and Misconduct Bill 2001
1
Note--
2
If a claim of privilege is made, the commission officer is required to consider the
3
claim under section 7721 and, if the requirement is not withdrawn, the person may
4
be required to attend at a commission hearing to establish the claim.
(6) A commission officer exercising powers under this section must, if 5
asked by the occupier of the official premises, or a person acting for the 6
occupier, produce for inspection by the occupier or person the 7
chairperson's authority under which the officer purports to act. 8
(7) In this section-- 9
"official premises" means premises occupied or used by, or for the official 10
purposes of, a unit of public administration, but does not include any 11
part of premises that is occupied or used by or for the purposes of any 12
State court. 13
Division 2--Notice to produce or discover 14
Subdivision 1--Crime investigations 15
74 Notice to produce 16
(1) This section applies only for a crime investigation. 17
(2) The chairperson may, by notice ("notice to produce") given to a 18
person, require the person, within the reasonable time and in the way stated 19
in the notice, to give an identified commission officer a stated document or 20
thing that the chairperson believes, on reasonable grounds, is relevant to a 21
crime investigation. 22
(3) A notice to produce may be given whether or not the commission is 23
conducting a hearing for the investigation. 24
(4) The notice to produce may require the immediate production of a 25
document or thing to a stated commission officer if the chairperson 26
believes, on reasonable grounds, that delay in the production of the 27
document may result in-- 28
(a) its destruction, removal or concealment; or 29
(b) serious prejudice to the conduct of the investigation. 30
21 Section 77 (Commission officer to consider claim)
s 75 58 s 75
Crime and Misconduct Bill 2001
(5) The person must comply with the notice to produce, unless the 1
person has a reasonable excuse. 2
Maximum penalty--85 penalty units or 1 year's imprisonment. 3
(6) A person does not, by complying with the notice to produce in 4
relation to the document or thing-- 5
(a) contravene a provision of an Act or a law imposing a statutory or 6
commercial obligation or restriction to maintain secrecy in 7
relation to the document or thing; or 8
(b) incur any civil liability in relation to the document or thing. 9
(7) A person who fails to comply with a notice does not commit an 10
offence if the document or thing is subject to privilege. 11
12
Note--
13
If a claim of privilege is made, the commission officer is required to consider the
14
claim under section 7722 and, if the requirement is not withdrawn, the person may
15
be required to attend at a commission hearing to establish the claim.
(8) A document produced under this section is taken to have been seized 16
under a warrant under part 2.23 17
Subdivision 2--Misconduct investigations 18
75 Notice to discover information 19
(1) This section applies-- 20
(a) only for a misconduct investigation; and 21
(b) only if the chairperson reasonably suspects that a person, 22
whether or not the person holds an appointment in a unit of 23
public administration, has information, or possession of a 24
document or thing, relevant to the investigation. 25
(2) The chairperson may, by notice ("notice to discover") given to the 26
person, require the person, within the reasonable time and in the way stated 27
in the notice, to give an identified commission officer-- 28
(a) an oral or written statement of information of a stated type 29
relevant to the investigation that is in the person's possession; or 30
22 Section 77 (Commission officer to consider claim)
23 Part 2 (Search warrants generally)
s 75 59 s 75
Crime and Misconduct Bill 2001
(b) a stated document or other stated thing, or a copy of a stated 1
document, relevant to the investigation that is in the person's 2
possession; or 3
4
(c) all documents of a stated type, or copies of documents of the
5
stated type, containing information relevant to the investigation
6
that are in the person's possession.
(3) The person must comply with the notice. 7
Maximum penalty--85 penalty units or 1 year's imprisonment. 8
(4) A person does not, by complying with the notice to discover in 9
relation to the information, document or thing-- 10
(a) contravene a provision of an Act or a law imposing a statutory or 11
commercial obligation or restriction to maintain secrecy in 12
relation to the information, document or thing; or 13
(b) incur any civil liability in relation to the information, document 14
or thing. 15
(5) A person who fails to comply with the notice does not commit an 16
offence if the information, document or thing-- 17
(a) is subject to privilege; or 18
(b) is a secret process of manufacture applied by the person solely 19
for a lawful purpose. 20
21
Note--
22
If a claim of privilege is made, the commission officer is required to consider the
23
claim under section 7724 and, if the requirement is not withdrawn, the person may
24
be required to attend at a commission hearing to establish the claim.
(6) The chairperson may require the person to give an oral statement of 25
information under oath and a written statement of information by way of 26
statutory declaration. 27
(7) The notice to discover must-- 28
(a) if it requires a statement of information--indicate briefly the 29
general nature of the information the person is suspected of 30
having, by reference to a particular matter or to the type of 31
information sought; and 32
24 Section 77 (Commission officer to consider claim)
s 76 60 s 78
Crime and Misconduct Bill 2001
(b) if it requires the giving of a document or other thing--identify 1
the document or thing sufficiently to enable the person to know 2
what is required. 3
(8) The notice-- 4
(a) may provide that its requirement may be met by some person 5
acting for the person to whom it is directed; and 6
(b) may specify the person or class of person who may so act. 7
(9) The chairperson must not give a notice to discover to a person who is 8
subject to a disciplinary charge of official misconduct before a misconduct 9
tribunal (or any of the person's witnesses or prospective witnesses) in 10
relation to information, documents or things relevant to the charge. 11
Division 3--Procedure on claim of privilege 12
Subdivision 1--Crime investigations 13
76 Application of subdiv 1 14
This subdivision applies if a person claims privilege under section 72 or 15
74 in relation to information or a document or thing.25 16
77 Commission officer to consider claim 17
The commission officer must consider the claim and may withdraw the 18
requirement in relation to which the claim is made or advise the person that 19
the person may be required to attend before a commission hearing to 20
establish the claim. 21
22
Note--
23
If the requirement is not withdrawn, the person may be given an attendance notice
24
under section 8226 to attend at a commission hearing to establish the claim.
78 Procedure for documents subject to claim of privilege 25
(1) If-- 26
25 Section 72 (Power to require information or documents) or 74 (Notice to produce)
26 Section 82 (Notice to attend hearing--general)
s 79 61 s 79
Crime and Misconduct Bill 2001
(a) the claim is made in relation to a document or thing the person is 1
required to give or produce to the commission; and 2
(b) the person acknowledges that the document or thing is in the 3
person's possession; and 4
(c) the commission officer does not withdraw the requirement; 5
the commission officer must require the person to immediately seal the 6
document or thing and give it to the commission officer for safe keeping. 7
(2) The person must immediately seal the document or thing and give it 8
to the commission officer for safe keeping. 9
Maximum penalty--85 penalty units or 1 year's imprisonment. 10
(3) The commission officer must-- 11
(a) give the person a receipt for the sealed document or thing; and 12
(b) place it in safe custody at the commission's place of business at 13
the earliest reasonable opportunity. 14
(4) A person must not open the sealed document or thing unless 15
authorised to open it under this Act or a court order. 16
Maximum penalty--85 penalty units or 1 year's imprisonment. 17
(5) The commission must return any sealed document or thing given to 18
the commission officer by a person under subsection (1) within 7 days if 19
the commission has not by the end of that period given the person an 20
attendance notice under section 82(1)(d).27 21
Subdivision 2--Misconduct investigations 22
79 Application of subdiv 2 23
This subdivision applies if a person claims privilege under section 73, 24
75, 94 or 111 in relation to information or a document or thing.28 25
27 Section 82 (Notice to attend hearing--general)
28 Section 73 (Power to enter etc.), 75 (Notice to discover information), 94 (Limitation
on search warrant powers for misconduct investigations) or 111 (General power to
seize evidence--misconduct investigation)
s 80 62 s 81
Crime and Misconduct Bill 2001
80 Commission officer to consider claim of privilege 1
The commission officer must consider the claim and may withdraw the 2
requirement in relation to which the claim is made or advise the person that 3
the person may apply to, or be required to attend before, the Supreme Court 4
to establish the privilege under section 196.29 5
81 Procedure for documents subject to claim of privilege 6
(1) If-- 7
(a) the claim is made in relation to a document or thing the person is 8
required to give or produce to the commission; and 9
(b) the document or thing is in the person's possession or the person 10
acknowledges that the document or thing is in the person's 11
possession; and 12
(c) the commission officer does not withdraw the requirement; 13
the commission officer must require the person to immediately seal the 14
document or thing and give it to the commission officer for safe keeping. 15
(2) The person must immediately seal the document or thing (the 16
"sealed evidence") under the supervision of the commission's 17
representative. 18
Maximum penalty--85 penalty units or 1 year's imprisonment. 19
(3) The person and the commission's representative must immediately 20
deliver the sealed evidence to a registrar of the Supreme Court to be held in 21
safe custody. 22
Maximum penalty--85 penalty units or 1 year's imprisonment. 23
(4) The registrar must keep the sealed evidence in safe custody until-- 24
(a) application is made to a Supreme Court judge to decide the claim 25
of privilege; or 26
(b) the end of 3 court days after the day on which the document or 27
thing is given to the registrar, if an application has not been made 28
under paragraph (a); or 29
29 Section 196 (Supreme Court to decide claim of privilege or reasonable excuse)
s 82 63 s 82
Crime and Misconduct Bill 2001
(c) the registrar is told by the person and commission representative 1
that agreement has been reached on the disposal of the sealed 2
evidence. 3
(5) The registrar must-- 4
(a) if an application is made to a Supreme Court judge to decide the 5
claim of privilege--dispose of the sealed evidence in the way 6
ordered by the judge; or 7
(b) if an application is not made by end of 3 court days after the day 8
on which the document or thing is given to the registrar--return 9
the sealed evidence to the person; or 10
(c) if the person and commission representative give the registrar 11
notice that an agreement on the disposal of the sealed evidence 12
has been reached--dispose of the sealed evidence in the way 13
agreed. 14
Division 4--Notice to attend 15
82 Notice to attend hearing--general 16
(1) The chairperson may issue a notice ("attendance notice") requiring 17
a person to attend at a commission hearing at a stated time and place for 18
1 or more of the following purposes until excused-- 19
(a) to give evidence; 20
(b) to produce a stated document or thing; 21
(c) to establish a reasonable excuse or claim of privilege under 22
section 72, 73, 74 or 75.30 23
24
Note--
25
If an attendance notice is issued, the person must attend at a commission hearing to
26
establish the claim under section 194.31
(2) An attendance notice must state-- 27
30 Section 72 (Power to require information or documents), 73 (Power to enter etc.), 74
(Notice to produce) or 75 (Notice to discover information)
31 Section 194 (Presiding officer to decide whether refusal to answer
questions or produce documents or things is justified)
s 83 64 s 83
Crime and Misconduct Bill 2001
(a) whether it is issued in the context of a crime investigation or a 1
misconduct investigation; and 2
(b) so far as reasonably practicable, the general nature of the matters 3
about which the person may be questioned at the commission 4
hearing. 5
(3) A person does not, by giving evidence or producing a stated 6
document or thing at a hearing in compliance with an attendance notice-- 7
(a) contravene a provision of an Act or a law imposing a statutory or 8
commercial obligation or restriction to maintain secrecy in 9
relation to the evidence, document or thing; or 10
(b) incur any civil liability in relation to the evidence, document or 11
thing. 12
(4) A failure to comply with subsection (2)(b) does not prevent the 13
commission from questioning the person about any matter that relates to an 14
investigation. 15
(5) A person given an attendance notice must not-- 16
(a) fail, without reasonable excuse, to attend as required by the 17
notice; or 18
(b) fail, without reasonable excuse, to continue to attend as required 19
by the presiding officer until excused from further attendance. 20
Maximum penalty--85 penalty units or 1 year's imprisonment. 21
(6) This section is subject to section 85.
32
22
83 Notice to attend hearing--prisoner or patient 23
(1) If the attendance before the commission of a prisoner is required, the 24
chairperson may, by notice given to the chief executive (corrective 25
services), direct that chief executive to produce the prisoner named in the 26
notice at a stated time and place. 27
(2) If the attendance before the commission of a patient detained in a 28
hospital under the Mental Health Act is required, the chairperson may, by 29
notice given to the appropriate hospital administrator, direct the hospital 30
32 Section 85 (Notices requiring immediate attendance may be issued only by or
with the approval of a Supreme Court judge)
s 84 65 s 84
Crime and Misconduct Bill 2001
administrator to produce the patient named in the notice at a stated time 1
and place. 2
(3) A direction mentioned in subsection (1) or (2) is lawful authority to 3
the chief executive (corrective services) or hospital administrator for 4
production of the prisoner or patient as directed. 5
(4) The chief executive (corrective services) or hospital administrator 6
must comply with a direction given to the chief executive or administrator. 7
(5) A prisoner or patient produced under this section remains in the 8
custody of the chief executive (corrective services) or hospital 9
administrator. 10
(6) In this section-- 11
"administrator" means-- 12
(a) hospital administrator within the meaning of the Mental Health 13
Act 1974, section 5(1); or 14
(b) administrator within the meaning of the Mental Health Act 2000, 15
schedule 2. 16
"Mental Health Act" means-- 17
(a) Mental Health Act 1974; or 18
(b) Mental Health Act 2000. 19
"patient" means-- 20
(a) patient within the meaning of the Mental Health Act 1974, 21
section 5(1); or 22
(b) patient within the meaning of the Mental Health Act 2000, 23
schedule 2. 24
"prisoner" means a person in the custody of the chief executive (corrective 25
services). 26
Division 5--Confidential documents 27
84 Notice may be a confidential document 28
(1) A notice given by the chairperson under this part may provide that it 29
is a confidential document. 30
s 85 66 s 85
Crime and Misconduct Bill 2001
(2) A person must not disclose the existence of a confidential document 1
to anyone else, unless the person has a reasonable excuse. 2
Maximum penalty--85 penalty units or 1 year's imprisonment. 3
(3) It is a reasonable excuse for a person to disclose the existence of a 4
confidential document if-- 5
(a) the disclosure is made for the purpose of-- 6
(i) seeking legal advice in relation to the document or an 7
offence against subsection (2); or 8
(ii) obtaining information in order to comply with the 9
document; or 10
(iii) making a complaint to the parliamentary committee about 11
the document; or 12
(iv) the administration of this Act; and 13
(b) the person informs the person to whom the disclosure is made 14
that it is an offence to disclose the existence of the document to 15
anyone else unless the person has a reasonable excuse. 16
Division 6--Restriction on power 17
85 Notices requiring immediate attendance may be issued only by or 18
with the approval of a Supreme Court judge 19
(1) The chairperson may issue an attendance notice requiring a person to 20
attend immediately at a commission hearing at a stated place only with the 21
approval of a Supreme Court judge. 22
(2) The judge may approve the issue of the attendance notice only if the 23
judge is satisfied, on reasonable grounds, that delay in attendance might 24
result in-- 25
(a) the commission of an offence; or 26
(b) an offender or suspected offender absconding; or 27
(c) the loss or destruction of evidence; or 28
(d) serious prejudice to the conduct of an investigation being 29
conducted by the commission. 30
s 86 67 s 86
Crime and Misconduct Bill 2001
(3) The attendance notice need not state the general nature of the matters 1
about which the person may be questioned if the chairperson is satisfied 2
that, in the particular circumstances of the investigation, stating the matters 3
would prejudice the effectiveness of the investigation. 4
PART 2--SEARCH WARRANTS GENERALLY 5
86 Search warrant applications 6
(1) An authorised commission officer may apply for a warrant to enter 7
and search a place ("search warrant") to obtain evidence of the 8
commission of major crime or misconduct being investigated by the 9
commission. 10
(2) The application may be made to a magistrate or Supreme Court 11
judge, unless the application must be made to a Supreme Court judge under 12
subsection (3). 13
(3) The application must be made to a Supreme Court judge if, when 14
entering and searching the place, it is intended to do anything that may 15
cause structural damage to a building. 16
(4) An application under this section-- 17
(a) must be sworn and state the grounds on which the warrant is 18
sought; and 19
(b) fully disclose all matters, of which the authorised commission 20
officer is aware, both favourable and adverse to the issuing of the 21
warrant sought; and 22
(c) must include information required under a regulation about any 23
search warrants issued within the previous year in relation to the 24
place or a person suspected of being involved in the commission 25
of the major crime or misconduct to which the application 26
relates. 27
(5) Subsection (4)(c) applies only to-- 28
(a) information kept in a register that the commission officer may 29
inspect; and 30
(b) information the officer otherwise actually knows. 31
s 87 68 s 89
Crime and Misconduct Bill 2001
(6) The magistrate or judge (the "issuer") may refuse to consider the 1
application until the commission officer gives the issuer all the information 2
the issuer requires about the application in the way the issuer requires. 3
4
Example--
5
The issuer may require additional information supporting the application to be given by
6
statutory declaration.
87 Issue of search warrant 7
(1) The issuer may issue the search warrant only if satisfied there are 8
reasonable grounds for suspecting evidence of the commission of major 9
crime or misconduct-- 10
(a) is at the place; or 11
(b) is likely to be taken to the place within the next 72 hours. 12
(2) The issuer may provide in the warrant that the warrant is a 13
confidential document. 14
88 Order in search warrants about documents 15
The issuer may, in the search warrant, order the person in possession of 16
documents at the place to give to a commission officer all documents of a 17
type stated in the warrant. 18
89 Search warrant may be a confidential document 19
(1) If the search warrant provides that it is a confidential document, a 20
person must not disclose the existence of the warrant to anyone else unless 21
the person has a reasonable excuse. 22
Maximum penalty--85 penalty units or 1 year's imprisonment. 23
(2) It is a reasonable excuse for a person to disclose the existence of the 24
warrant if-- 25
(a) the disclosure is made-- 26
(i) for the purpose of seeking legal advice in relation to the 27
warrant or an offence against subsection (1); or 28
(ii) for the purpose of obtaining information in order to comply 29
with the warrant; or 30
s 90 69 s 91
Crime and Misconduct Bill 2001
(iii) for the purpose of making a complaint to the commission or 1
the parliamentary committee about the warrant; or 2
(iv) in the course of the administration of this Act; and 3
(b) the person informs the person to whom the disclosure is made 4
that it is an offence to disclose the existence of the warrant to 5
anyone else unless the person has a reasonable excuse. 6
90 When search warrant ends 7
(1) A search warrant issued because there are reasonable grounds for 8
suspecting there is evidence of the commission of major crime or 9
misconduct at a place ends 7 days after it is issued. 10
(2) A search warrant issued because there are reasonable grounds for 11
suspecting evidence of the commission of major crime or misconduct is 12
likely to be taken to a place within the next 72 hours ends 72 hours after it 13
is issued. 14
91 What search warrant must state 15
(1) A search warrant must state-- 16
(a) that a stated commission officer or all commission officers may 17
enter the place and exercise search warrant powers at the place; 18
and 19
(b) brief particulars of the major crime or misconduct for which the 20
warrant is issued; and 21
(c) the evidence, if any, that may be seized under the warrant; and 22
(d) if the warrant is to be executed at night, the hours when the place 23
may be entered; and 24
(e) the day and time the warrant ends. 25
(2) If the issuer makes an order under section 88,33 the warrant must also 26
state that failure, without reasonable excuse, to comply with the order may 27
be dealt with under the Criminal Code, section 205.34 28
33 Section 88 (Order in search warrants about documents)
34 Criminal Code, section 205 (Disobedience to lawful order issued by statutory
authority)
s 92 70 s 92
Crime and Misconduct Bill 2001
92 Powers under search warrants 1
(1) An authorised commission officer has the following powers under a 2
search warrant ("search warrant powers")-- 3
(a) power to enter the place stated in the warrant (the "relevant 4
place") and to stay on it for the time reasonably necessary to 5
exercise powers authorised under the warrant and this section; 6
(b) power to pass over, through, along or under another place to enter 7
the relevant place; 8
(c) power to search the relevant place for anything sought under the 9
warrant; 10
(d) power to open anything in the relevant place that is locked; 11
(e) power to detain anyone at the relevant place for the time 12
reasonably necessary to find out if the person has anything 13
sought under the warrant; 14
(f) power to detain a person found at the relevant place for the time 15
taken to search the place if the officer reasonably suspects the 16
person has been involved in the unlawful activity; 17
(g) power to dig up land; 18
(h) power to seize a thing found at the relevant place, or on a person 19
found at the relevant place, that the officer reasonably suspects 20
may be evidence of the commission of the unlawful activity or an 21
indictable offence; 22
(i) power to muster, hold and inspect any animal the officer 23
reasonably suspects may be evidence of the commission of the 24
unlawful activity; 25
(j) power to photograph anything the officer reasonably suspects 26
may be evidence of the commission of the unlawful activity; 27
(k) power to remove wall or ceiling linings or floors of a building, or 28
panels of a vehicle, to search for evidence of the commission of 29
the unlawful activity. 30
(2) Also, an authorised commission officer has the following powers if 31
authorised under a search warrant (also "search warrant powers")-- 32
(a) power to search anyone found at the relevant place for anything 33
sought under the warrant that can be concealed on the person; 34
(b) power to do whichever of the following is authorised-- 35
s 93 71 s 93
Crime and Misconduct Bill 2001
(i) to search anyone or anything in or on or about to board, or 1
be put in or on, a vehicle; 2
(ii) to take a vehicle to, and search for evidence of the 3
commission of the unlawful activity that may be concealed 4
in a vehicle at, a place with appropriate facilities for 5
searching the vehicle. 6
(3) Power to do anything at the relevant place that may cause structural 7
damage to a building may be exercised only if the warrant-- 8
(a) authorises the exercise of the power; and 9
(b) is issued by a Supreme Court judge. 10
(4) In this section-- 11
"unlawful activity", for a search warrant, means the major crime or 12
misconduct to which the warrant relates. 13
93 Copy of search warrant to be given to occupier 14
(1) If a commission officer executes a search warrant for a place that is 15
occupied, the officer must-- 16
(a) if the occupier of the place is present--give to the occupier a 17
copy of the warrant and a statement summarising the person's 18
rights and obligations under the warrant; or 19
(b) if the occupier is not present--leave the copy in a conspicuous 20
place. 21
(2) However, if the search warrant is a confidential document and the 22
occupier is not present, the officer-- 23
(a) is not required to comply with subsection (1)(b); and 24
(b) must give to the occupier a copy of the warrant and a statement 25
summarising the person's rights and obligations under the 26
warrant as soon as practicable after executing the warrant. 27
(3) If the officer reasonably suspects giving the person the copy may 28
frustrate or otherwise hinder the investigation or another investigation, the 29
officer may delay complying with subsection (1), but only for so long as-- 30
(a) the officer continues to have the reasonable suspicion; and 31
s 94 72 s 95
Crime and Misconduct Bill 2001
(b) that officer or another officer involved in the investigation 1
remains in the vicinity of the place to keep the place under 2
observation. 3
94 Limitation on search warrant powers for misconduct 4
investigations 5
(1) This section applies if-- 6
(a) an authorised commission officer who is exercising search 7
warrant powers for a misconduct investigation wishes to inspect, 8
photograph or seize a document or thing under the warrant; and 9
(b) a person who is entitled to claim the privilege claims the 10
document or thing is subject to privilege. 11
(2) The authorised commission officer must consider the claim and may 12
withdraw the requirement in relation to which the claim is made or advise 13
the person that the person may apply to, or be required to attend before, the 14
Supreme Court to establish the privilege under section 196.35 15
(3) If the commission officer does not withdraw the requirement, 16
section 8136 applies. 17
(4) In this section-- 18
"privilege" does not include privilege on the ground of confidentiality. 19
PART 3--SEARCH OF PLACE TO PREVENT LOSS OF 20
EVIDENCE 21
95 Application of part 22
This part applies only for a crime investigation. 23
35 Section 196 (Supreme Court to decide claim of privilege or reasonable excuse)
36 Section 81 (Procedure for documents subject to claim of privilege)
s 96 73 s 98
Crime and Misconduct Bill 2001
96 Search to prevent loss of evidence 1
(1) This section applies if an authorised commission officer reasonably 2
suspects-- 3
(a) a thing at or about a place, or in the possession of a person at or 4
about a place, is evidence of the commission of major crime 5
being investigated by the commission; and 6
(b) unless the place is immediately entered and searched-- 7
(i) the evidence may be concealed or destroyed; or 8
(ii) the forensic value of the evidence may be diminished. 9
(2) An authorised commission officer may enter the place and exercise 10
search warrant powers, other than power to do something that may cause 11
structural damage to a building, at the place as if they were conferred under 12
a search warrant. 13
97 Post-search approval 14
(1) As soon as reasonably practicable after exercising powers under 15
section 96, the authorised commission officer must apply to a magistrate in 16
writing for an order approving the search ("post-search approval order"). 17
(2) The application must be sworn and state the grounds on which it is 18
sought. 19
(3) The applicant need not appear at the consideration of the application, 20
unless the magistrate otherwise requires. 21
(4) The magistrate may refuse to consider the application until the 22
authorised commission officer gives the magistrate all the information the 23
magistrate requires about the application in the way the magistrate 24
requires. 25
26
Example--
27
The magistrate may require additional information supporting the application to be
28
given by statutory declaration.
98 Making of post-search approval order 29
(1) The magistrate may make a post-search approval order only if 30
satisfied the search was conducted in the context of a crime investigation 31
and either of the following apply-- 32
s 99 74 s 99
Crime and Misconduct Bill 2001
(a) in the circumstances existing before the search, there were 1
grounds for the authorised commission officer to reasonably 2
suspect-- 3
(i) a thing at or about the place, or in the possession of a person 4
at or about the place, was evidence of the commission of 5
major crime being investigated by the commission; and 6
(ii) unless the place was immediately entered and searched-- 7
(A) the evidence may have been concealed or destroyed; or 8
(B) the forensic value of the evidence may have been 9
diminished; 10
(b) having regard to the nature of the evidence found during the 11
search, it is in the public interest to make the order. 12
(2) The magistrate may also make an order under section 118 or 119,37 13
whether or not a post-search approval order is made. 14
99 Appeal 15
(1) Within 28 days after either of the following happens, the authorised 16
commission officer may appeal against the order to the Supreme Court-- 17
(a) a magistrate refuses to make a post-search approval order; 18
(b) a magistrate makes an order under section 98(2). 19
(2) If the authorised commission officer appeals, the officer must retain 20
any thing seized until the appeal is decided. 21
(3) The court may make an order under section 118 or 119, whether or 22
not the appeal is upheld. 23
37 Section 118 (Application by owner etc. for return of relevant things) or 119
(Application by commission officer for order if ownership dispute)
s 100 75 s 100
Crime and Misconduct Bill 2001
PART 4--SEARCHING PERSONS 1
Division 1--General provisions 2
100 General provisions about searches of persons 3
(1) An authorised commission officer lawfully searching a person under 4
this Act must-- 5
(a) ensure, as far as reasonably practicable, the way the person is 6
searched causes minimal embarrassment to the person; and 7
(b) take reasonable care to protect the person's dignity; and 8
(c) unless an immediate and more thorough search of the person is 9
necessary, restrict a search of the person in public to an 10
examination of outer clothing; and 11
(d) if a more thorough search of the person is necessary but does not 12
have to be conducted immediately, conduct a more thorough 13
search of the person out of public view, for example, in a room of 14
a shop or, if a police station is nearby, in the police station. 15
16
Example for paragraph (c)--
17
A more thorough search may be immediately necessary because the officer
18
reasonably suspects the person to be searched may have a bomb strapped to
19
his or her body or has a concealed firearm or knife.
(2) Unless an immediate search is necessary, the person conducting the 20
search must be either-- 21
(a) an authorised commission officer of the same sex as the person to 22
be searched; or 23
(b) if there is no authorised commission officer of the same sex 24
available to search the person, someone acting at the direction of 25
an authorised commission officer and of the same sex as the 26
person to be searched; or 27
(c) a doctor acting at the direction of an authorised commission 28
officer. 29
30
Example--
31
An immediate search by a person of the opposite sex may be necessary because the
32
person searched has a concealed firearm or knife.
s 101 76 s 103
Crime and Misconduct Bill 2001
101 Taking a person to another place for search 1
(1) If it is impracticable to search for a thing that may be concealed on a 2
person where the person is, the authorised commission officer may take the 3
person to a place with adequate facilities for conducting the search. 4
5
Example--
6
To search a person out of public view and cause minimal embarrassment to the person,
7
a person in a casino may be taken to another room in the casino.
(2) Before taking a person to another place for a search because it is 8
impracticable to search for a thing that may be concealed on the person 9
where the person is, the authorised commission officer must consider the 10
following-- 11
(a) whether the thing sought may be concealed on the person; 12
(b) whether, for an effective search, the search should be conducted 13
somewhere else; 14
(c) the need to protect the dignity of the person. 15
102 Limitation on period of detention for search 16
An authorised commission officer who detains a person for a search 17
must not detain the person any longer than is reasonably necessary for the 18
purpose. 19
103 Dealing with persons who obstruct search of person 20
(1) If a person (the "obstructing person") obstructs an authorised 21
commission officer conducting a lawful search of the obstructing person or 22
another person, an authorised commission officer must, if reasonably 23
practicable-- 24
(a) warn the obstructing person it is an offence to obstruct an 25
authorised commission officer in the performance of the officer's 26
duties; and 27
(b) give the obstructing person a reasonable opportunity to stop 28
obstructing the search. 29
(2) It may not be reasonably practicable for an authorised commission 30
officer to comply with subsection (1) if, for example-- 31
s 104 77 s 106
Crime and Misconduct Bill 2001
(a) there is an immediate or sudden need to use force because, for 1
example, the person is struggling with an authorised commission 2
officer; or 3
(b) there is a reasonable expectation that, if warned, the person may 4
immediately dispose of, or destroy, evidence; or 5
(c) an immediate search is necessary to protect the safety of any 6
person. 7
Division 2--Searches involving removal of clothing 8
104 Application of division 9
This division applies only for a crime investigation. 10
105 Removal of clothing for search 11
An authorised commission officer conducting the search of a person 12
under this Act may require a person to remove all items of clothing or all 13
items of outer clothing from-- 14
(a) if the person is a female--the upper or lower part of the body; or 15
(b) if the person is a male--the lower part of the body. 16
106 Protecting the dignity of persons during search 17
(1) If reasonably practicable-- 18
(a) the authorised commission officer must, before conducting the 19
search-- 20
(i) tell the person he or she will be required to remove clothing 21
during the search; and 22
(ii) tell the person why it is necessary to remove the clothing; 23
and 24
(iii) ask for the person's cooperation; and 25
(b) the person must be given the opportunity to remain partly clothed 26
during the search, for example, by allowing the person to dress 27
his or her upper body before being required to remove items of 28
clothing from the lower part of the body. 29
s 107 78 s 108
Crime and Misconduct Bill 2001
(2) The search must be conducted in a way providing reasonable privacy 1
for the person. 2
3
Example for subsection (2)--
4
Reasonable privacy may be provided by conducting the search in a way that ensures, as
5
far as reasonably practicable, the person being searched can not be seen by anyone of
6
the opposite sex and by anyone who does not need to be present.
(3) Also, the search must be conducted as quickly as reasonably 7
practicable and the person searched must be allowed to dress as soon as the 8
search is finished. 9
(4) A regulation may prescribe other requirements and procedures for 10
ensuring the effective carrying out of the search. 11
107 Special requirements for searching children and persons 12
with impaired capacity 13
(1) If a person to be searched is a child, or a person with impaired 14
capacity, who may not be able to understand the purpose of the search, the 15
authorised commission officer must conduct the search in the presence of a 16
support person. 17
(2) However, the officer may search the person in the absence of a 18
support person if the officer reasonably suspects-- 19
(a) delaying the search is likely to result in evidence being concealed 20
or destroyed; or 21
(b) an immediate search is necessary to protect the safety of a 22
person. 23
108 If video cameras monitor place where person is searched 24
(1) If a video camera monitors the area where the person is searched, the 25
authorised commission officer must, unless the person viewing the monitor 26
is an authorised commission officer of the same sex as the person being 27
searched-- 28
(a) ensure the camera is turned off; or 29
(b) conduct the search out of view of the camera. 30
(2) If the video camera is not turned off, a recording of the search must 31
not be shown to anyone other than-- 32
(a) the person searched or his or her lawyer; or 33
s 109 79 s 110
Crime and Misconduct Bill 2001
(b) a doctor treating the person searched; or 1
(c) a person deciding if a proceeding is to be started against the 2
person for an offence; or 3
(d) an authorised commission officer investigating an offence 4
involving the person; or 5
(e) an authorised commission officer, police officer, lawyer, public 6
prosecutor or witness involved in a proceeding against the 7
person; or 8
(f) a court. 9
PART 5--SEIZING PROPERTY 10
109 Definitions for pt 5 11
In this part-- 12
"court" includes misconduct tribunal. 13
"prosecution" includes bringing a charge, of a disciplinary nature, of 14
official misconduct. 15
110 General power to seize evidence--crime investigation 16
(1) This section applies if a commission officer conducting a crime 17
investigation lawfully enters a place, or is at a public place, and finds at the 18
place a thing the officer reasonably suspects is evidence of the commission 19
of major crime that the commission is investigating. 20
(2) The officer may seize the thing, whether or not as evidence under a 21
warrant and, if the place is entered under a warrant, whether or not the 22
warrant was issued for the major crime. 23
(3) Also, the officer may-- 24
(a) photograph the thing seized or the place from which the thing 25
was seized; and 26
(b) stay at the place and re-enter it for the time reasonably necessary 27
to remove the thing from the place. 28
s 111 80 s 111
Crime and Misconduct Bill 2001
(4) If the thing is seized at a place entered under a covert warrant, 1
section 13038 applies as if the thing had been seized under the warrant. 2
(5) Otherwise, sections 113 to 11539 apply as if the thing had been seized 3
under a warrant under part 2.40 4
111 General power to seize evidence--misconduct investigation 5
(1) This section applies if a commission officer conducting a misconduct 6
investigation who lawfully enters a place under a search warrant-- 7
(a) finds at the place a thing the officer reasonably suspects is 8
admissible evidence of an indictable offence against the law of 9
the Commonwealth or of any State; and 10
(b) reasonably believes that it is necessary to seize the thing-- 11
(i) to prevent its loss, destruction, mutilation or concealment; 12
or 13
(ii) to prevent its use for committing an offence of a kind 14
mentioned in paragraph (a). 15
(2) The officer may seize the thing. 16
(3) However, if a person who is entitled to claim the privilege claims the 17
document or thing is subject to privilege, the authorised commission officer 18
must consider the claim and may-- 19
(a) withdraw the requirement in relation to which the claim is made; 20
or 21
(b) advise the person that the person may apply to, or be required to 22
attend before, the Supreme Court to establish the privilege under 23
section 196.41 24
(4) If a claim of privilege is made and the commission officer does not 25
withdraw the requirement, section 8142 applies. 26
38 Section 130 (Emergency use of surveillance devices)
39 Sections 113 (Application for order in relation to seized things), 114 (Orders
magistrate may make in relation to seized thing) and 115 (Disposal of seized things
at end of proceeding)
40 Part 2 (Search warrants generally)
41 Section 196 (Supreme Court to decide claim of privilege or reasonable excuse)
42 Section 81 (Procedure for documents subject to claim of privilege)
s 112 81 s 113
Crime and Misconduct Bill 2001
(5) In this section-- 1
"privilege" does not include privilege on the ground of confidentiality. 2
112 Receipt for seized property 3
(1) If a commission officer seizes anything under this chapter, the officer 4
must, as soon as is reasonably practicable after seizing the thing-- 5
(a) if the person from whom it is seized is present--give to the 6
person a receipt for the thing; or 7
(b) otherwise--leave a receipt for the thing in a conspicuous place. 8
(2) The receipt must describe the thing seized and include any other 9
information required under a regulation. 10
(3) However, if the officer reasonably suspects giving the person the 11
receipt may frustrate or otherwise hinder the investigation or another 12
investigation, the officer may delay complying with subsection (1), but 13
only for so long as-- 14
(a) the officer continues to have the reasonable suspicion; and 15
(b) the officer or another officer involved in the investigation remains 16
in the vicinity of the place to keep it under observation. 17
(4) Also, this section does not apply if the officer reasonably believes 18
there is no-one apparently in possession of the thing or the thing has been 19
abandoned. 20
(5) The officer must ensure the details of the search and anything seized 21
are recorded in the warrants register. 22
113 Application for order in relation to seized things 23
(1) Within 30 days after a commission officer seizes anything under this 24
chapter (other than section 165),43 the officer must apply to a magistrate for 25
an order under section 11444 about the thing seized, unless-- 26
(a) a proceeding has been started in which the thing may be relevant; 27
or 28
43 Section 165 (Powers under additional powers warrant)
44 Section 114 (Orders magistrate may make in relation to seized thing)
s 114 82 s 114
Crime and Misconduct Bill 2001
(b) consent to the continued keeping of the thing has been given by 1
the owner or the person who had lawful possession of the thing 2
before it was seized; or 3
(c) it is destroyed or dealt with under the authority of another Act. 4
(2) The commission officer must also make an application to a 5
magistrate for an order under section 114 about the thing seized within 6
30 days after either of the following happens-- 7
(a) a proceeding started about the thing is discontinued without any 8
order being made in relation to the thing; 9
(b) the consent of the owner of the thing or the person who had 10
lawful possession of the thing before it was seized is withdrawn. 11
(3) An application under subsection (1) or (2) must be accompanied by 12
any warrant under which the thing is seized, with a record on it under 13
section 339.45 14
114 Orders magistrate may make in relation to seized thing 15
The magistrate may, in relation to the seized thing, order-- 16
(a) that it be kept in the possession of the commission or another law 17
enforcement agency-- 18
(i) until the end of any investigation in relation to which the 19
thing may be relevant and for a reasonable time afterwards 20
to enable the commission to decide whether a charge is to 21
be laid; or 22
(ii) until the end of any proceeding in which the thing may be 23
relevant; or 24
(iii) until the end of any appeal against a decision in a 25
proceeding in which the thing is relevant; or 26
(b) that it be returned, or photographed and returned, to its owner or 27
the person who had lawful possession of it before it was seized 28
on condition that the owner or person undertakes to produce it 29
before a court in any later proceeding involving the thing; or 30
(c) that it be returned to the person who the magistrate believes is 31
lawfully entitled to possess it; or 32
45 Section 339 (Record of execution of warrant)
s 115 83 s 116
Crime and Misconduct Bill 2001
(d) if the person entitled to possess the thing is unknown, that the 1
thing be disposed of; or 2
(e) that it be disposed of or destroyed; or 3
(f) that it be dealt with by way of a proceeding under section 118 or 4
119;46 or 5
(g) that it be dealt with by way of proceeding under the Justices Act 6
1886, section 39;47 or 7
(h) that it be disposed of or destroyed in the way the magistrate 8
orders. 9
115 Disposal of seized things at end of proceeding 10
(1) At the end of a proceeding, a court may make any of the following 11
orders in relation to a thing seized-- 12
(a) an order for the return, forfeiture, destruction or disposal of the 13
thing; 14
(b) an order that the thing be dealt with by way of a proceeding 15
under the Justices Act 1886, section 39; 16
(c) an order that the commission retain the thing until it is dealt with 17
according to law. 18
(2) A thing that is forfeited under an order under this Act becomes the 19
property of the State. 20
116 Right to inspect seized documents 21
(1) Unless a justice otherwise orders, the commission, or another law 22
enforcement agency in whose possession it is, must allow a person who 23
would be entitled to a document in the possession of the commission or an 24
agency-- 25
(a) to inspect it at any reasonable time and from time to time; and 26
(b) to take extracts from or make copies of it. 27
46 Section 118 (Application by owner etc. for return of things) or 119 (Application by
commission officer for order if ownership dispute)
47 Justices Act 1886, section 39 (Power of court to order delivery of certain property)
s 117 84 s 118
Crime and Misconduct Bill 2001
(2) The commission or the other law enforcement agency may refuse to 1
comply with subsection (1) if the commission or agency reasonably 2
suspects complying with the subsection will enable the person to repeat or 3
continue an offence of which the document is evidence or to commit 4
another offence. 5
117 Return of seized things 6
The commission, or another law enforcement agency in whose 7
possession it is, must return a seized thing in the possession of the 8
commission or agency to its owner-- 9
(a) if the thing is required as evidence for a prosecution and subject 10
to any order made by a court--at the end of the prosecution and 11
any appeal from the prosecution; or 12
(b) immediately the commission or agency stops being satisfied its 13
retention as evidence is necessary. 14
118 Application by owner etc. for return of things 15
(1) This section applies to a thing that has been in the possession of the 16
commission for at least 30 days. 17
(2) A person who claims to have a legal or equitable interest in the thing 18
may apply to a magistrate for an order that the thing be delivered to the 19
person. 20
(3) The person must give each of the following a copy of the application 21
and notice of the day, time and place fixed for hearing the application-- 22
(a) the chairperson; 23
(b) anyone else the person reasonably believes has a legal or 24
equitable interest in the thing. 25
(4) The magistrate may order that the thing be delivered to a person on 26
any conditions the magistrate considers appropriate if satisfied-- 27
(a) the person may lawfully possess the thing; and 28
(b) it is appropriate that the thing be delivered to the person. 29
(5) However, the magistrate must not order the delivery of a thing to the 30
person if the magistrate is reasonably satisfied the thing-- 31
s 119 85 s 120
Crime and Misconduct Bill 2001
(a) may be evidence in a proceeding started in relation to the thing; 1
or 2
(b) is a thing used in or for manufacturing a dangerous drug; or 3
(c) may be subject to a forfeiture proceeding, including a forfeiture 4
proceeding relating to an interstate serious offence under the 5
Confiscation Act. 6
119 Application by commission officer for order if ownership dispute 7
(1) This section applies if there is a question about the ownership of a 8
thing that has been in the possession of the commission for at least 30 days. 9
(2) A commission officer may apply to a magistrate for an order 10
declaring who is the owner of the thing. 11
(3) The officer must give anyone the officer reasonably believes has a 12
legal or equitable interest in the thing a copy of the application and notice 13
of the day, time and place fixed for hearing the application. 14
(4) The magistrate may make the order the magistrate considers 15
appropriate. 16
(5) If the magistrate can not decide who owns the thing, the magistrate 17
may make the orders the magistrate considers appropriate for the disposal 18
of the thing. 19
PART 6--SURVEILLANCE DEVICES 20
Division 1--Non-application of particular Acts 21
120 Acts that do not apply to divs 2-5 22
The Libraries and Archives Act 1988 and the Freedom of Information 23
Act 1992 do not apply to activities or records under divisions 2 to 5. 24
s 121 86 s 121
Crime and Misconduct Bill 2001
Division 2--Use of surveillance devices under warrant of Supreme Court 1
judge 2
121 Surveillance warrant applications 3
(1) This section applies if the chairperson reasonably believes a person 4
has been, is, or is likely to be, involved in major crime or misconduct being 5
investigated by the commission. 6
(2) An authorised commission officer may, with the chairperson's 7
approval, apply to a Supreme Court judge for a warrant ("surveillance 8
warrant") authorising the use of a surveillance device. 9
(3) For subsection (2), an authorised commission officer who is a police 10
officer must be of at least the rank of inspector. 11
(4) The application must-- 12
(a) be sworn and state the grounds on which the warrant is sought; 13
and 14
(b) state whether authorisation for the use of a class A or a class B 15
surveillance device is sought; and 16
(c) state whether the surveillance device is to be used in a crime 17
investigation or a misconduct investigation; and 18
(d) fully disclose all matters, of which the authorised commission 19
officer is aware, both favourable and adverse to the issuing of the 20
warrant sought; and 21
(e) include information stated under a regulation about any warrants 22
issued within the previous year in relation to the person or the 23
place specified in the application. 24
25
Note--
26
A class B surveillance device is available only for a crime investigation.
27
See the definition "surveillance device" in the dictionary.
(5) Subsection (4)(d) only applies to-- 28
(a) information kept in a register that the officer may inspect; and 29
(b) information the officer otherwise actually knows. 30
(6) The applicant must advise the public interest monitor of the 31
application under arrangements decided by the monitor. 32
s 122 87 s 123
Crime and Misconduct Bill 2001
(7) The judge may refuse to consider the application until the applicant 1
gives the judge all the information the judge requires about the application 2
in the way the judge requires. 3
4
Example--
5
The judge may require additional information supporting the application to be given by
6
statutory declaration.
122 Who may be present at consideration of application for 7
surveillance warrant 8
(1) The judge must hear an application for a surveillance warrant in the 9
absence of anyone other than the following-- 10
(a) the applicant; 11
(b) a monitor; 12
(c) someone the judge permits to be present; 13
(d) a lawyer representing anyone mentioned in paragraphs (a) to (c). 14
(2) Also, the judge must hear the application-- 15
(a) in the absence of the person proposed to be placed under 16
surveillance (the "relevant person") or anyone likely to inform 17
the relevant person of the application; and 18
(b) without the relevant person having been informed of the 19
application. 20
123 Consideration of application for surveillance warrant 21
Before deciding an application for a surveillance warrant, the judge 22
must, in particular, and being mindful of the highly intrusive nature of 23
using a surveillance device, consider the following-- 24
(a) the nature and seriousness of the major crime or misconduct; 25
(b) if authorisation for the use of a class A surveillance device is 26
sought, the likely extent of interference with the privacy of-- 27
(i) the relevant person; or 28
(ii) any other occupant of the place; 29
if the warrant is issued; 30
s 124 88 s 124
Crime and Misconduct Bill 2001
(c) the extent to which issuing the warrant would help prevent, 1
detect, or provide evidence of the commission of, the major 2
crime or misconduct; 3
(d) the benefits derived from the issue of any previous surveillance 4
warrants in relation to the relevant person; 5
(e) the extent to which officers investigating the major crime or 6
misconduct have used or can use conventional ways of 7
investigation; 8
(f) how much the use of conventional ways of investigation would 9
be likely to help in the investigation of the major crime or 10
misconduct; 11
(g) how much the use of conventional ways of investigation would 12
prejudice the investigation of the major crime or misconduct 13
because of delay or for another reason; 14
(h) any submissions made by a monitor. 15
124 Issue of surveillance warrant 16
(1) After considering an application, the judge may issue a surveillance 17
warrant for a period of not more than 30 days if satisfied there are 18
reasonable grounds for believing the relevant person-- 19
(a) has been, is, or is likely to be, involved in the major crime or 20
misconduct; and 21
(b) is likely to be-- 22
(i) at a place, including a public place, mentioned in the 23
application; or 24
(ii) at a class of place mentioned in the application. 25
(2) The judge may issue a surveillance warrant authorising the use of a 26
class A surveillance device in the office of a practising lawyer only if the 27
application for the warrant relates to the lawyer's involvement in major 28
crime or misconduct. 29
(3) The judge may impose any conditions on the warrant that the judge 30
considers are necessary in the public interest including, but not limited to-- 31
(a) a condition requiring regular reporting to a judge on activities 32
under the warrant; and 33
s 125 89 s 126
Crime and Misconduct Bill 2001
(b) a condition requiring that, if a listening device is to be used in a 1
public place or class of place, the officer, before installing or 2
using the device, must have a reasonable belief that the relevant 3
person is or will be in the place where the device is to be used. 4
5
Example for subsection (3)(b)--
6
The warrant may be issued for any motel in a stated area because the officer
7
may have a reasonable belief that the relevant person may be in a motel in
8
the area but not know in advance which one. The condition may be that the
9
device may only be installed if the officer reasonably believes the person is
10
likely to be in the place.
125 What surveillance warrant must state 11
A surveillance warrant must state the following-- 12
(a) that a commission officer or any commission officer may 13
exercise surveillance powers under the warrant; 14
(b) the name of the relevant person, if known; 15
(c) the place or class of place where the surveillance device 16
authorised under the warrant may be used; 17
(d) the type of surveillance device that may be used under the 18
warrant; 19
(e) for a visual surveillance device that is to be installed in a 20
dwelling, the parts of the dwelling in which the device may be 21
installed; 22
(f) any conditions the judge imposes under section 140(4)48; 23
(g) the day and time the warrant starts and when the warrant ends. 24
126 Report on use of surveillance devices 25
(1) This section applies if, because of a condition of a surveillance 26
warrant, a commission officer gives to a judge a report on activities under 27
the warrant. 28
(2) The judge may, after considering the report, require the destruction of 29
any recording made that is not related to the major crime or misconduct 30
48 Section 140 (Issue of surveillance warrant)
s 127 90 s 128
Crime and Misconduct Bill 2001
mentioned in the warrant, unless the recording relates to the investigation 1
by the commission of another major crime or other misconduct. 2
127 Duration and extension of surveillance warrants 3
(1) A surveillance warrant is in force until the earlier of the following-- 4
(a) the day stated in the warrant; 5
(b) the day the investigation under the warrant ends. 6
(2) However, despite the investigation ending, the warrant continues in 7
force until the day stated in the warrant if, as a result of using the 8
surveillance device, evidence is gained of other major crime or misconduct. 9
(3) The warrant may be extended from time to time on application and 10
the provisions of this division for an application for a warrant apply to an 11
application for an extension, with necessary changes. 12
(4) Despite the ending of the warrant under subsection (1) or (2), the 13
commission officer may continue to exercise powers under the warrant, but 14
only to the extent necessary to remove the surveillance device to which the 15
warrant relates. 16
128 Power under surveillance warrants 17
A commission officer to whom a surveillance warrant is directed may, 18
subject to the warrant, lawfully exercise any of the following powers under 19
the warrant ("surveillance powers")-- 20
(a) for a class A surveillance device--power to enter a stated place 21
or class of place, covertly or through subterfuge, to install a 22
surveillance device; 23
(b) for a class B surveillance device-- 24
(i) power to enter a vehicle or another moveable object, or to 25
open a thing, to install a tracking device; and 26
(ii) power to remove a vehicle or another moveable object to 27
another place to install a tracking device in the vehicle or 28
object; 29
(c) for a listening device-- 30
(i) power to install and use the device to intercept and record 31
private conversations; and 32
s 129 91 s 130
Crime and Misconduct Bill 2001
(ii) power to remove a thing to another place to install a 1
listening device in the thing; and 2
(iii) power to use an assistant to translate or interpret 3
conversations intercepted under the warrant; 4
(d) for a visual surveillance device-- 5
(i) power to install and use the device to monitor and record 6
visual images; and 7
(ii) power to use an assistant to translate or interpret visual 8
images intercepted under the warrant; 9
(e) for another surveillance device-- 10
(i) power to install and use the device for the purpose for which 11
the device is designed, including, for example, tracking the 12
location of a person or moveable object; and 13
(ii) power to use an assistant to translate or interpret data or 14
other material intercepted under the warrant; 15
(f) power to take electricity for using a surveillance device; 16
(g) power to use reasonable force-- 17
(i) to enter a place to install a surveillance device; or 18
(ii) to install a surveillance device; 19
(h) power to use 1 or more surveillance devices, whether of the same 20
or a different kind, in the same place; 21
(i) power to pass through, over, under or along a place to get to the 22
place where the surveillance device is to be used. 23
Division 3--Emergency use of surveillance devices for a crime 24
investigation 25
129 Application of div 3 26
This division applies only for a crime investigation. 27
130 Emergency use of surveillance devices 28
(1) This section applies if the chairperson reasonably believes-- 29
s 131 92 s 132
Crime and Misconduct Bill 2001
(a) there is a risk of serious injury to a person from major crime 1
being investigated by the commission; and 2
(b) using a surveillance device may help reduce the risk. 3
4
Examples for subsection (1)--
5
1. An act of deprivation of liberty in which the victim's life may be in danger.
6
2. An act of extortion involving a threat of imminent injury to someone else.
(2) With the chairperson's approval, an authorised commission officer 7
may authorise the use of a surveillance device. 8
(3) For subsection (2), an authorised commission officer who is a police 9
officer must be of at least the rank of inspector. 10
(4) A commission officer acting under an authority under subsection (2) 11
may exercise any of the powers a commission officer may exercise under a 12
surveillance warrant. 13
131 Application for approval of emergency use of surveillance device 14
(1) Within 2 business days after authorising the use of the surveillance 15
device, the authorised commission officer who authorised its use must 16
apply to a Supreme Court judge for approval of the exercise of the powers. 17
(2) The application must be sworn and state the grounds on which the 18
approval is sought. 19
(3) The applicant must advise the public interest monitor of the 20
application under arrangements decided by the monitor. 21
(4) The judge may refuse to consider the application until the 22
commission officer gives the judge all the information the judge requires 23
about the application in the way the judge requires. 24
25
Example--
26
The judge may require additional information supporting the application to be given by
27
statutory declaration
132 Who may be present at consideration of application 28
(1) The judge must hear an application under section 131 in the absence 29
of anyone other than the following-- 30
(a) the applicant; 31
(b) a monitor; 32
s 133 93 s 134
Crime and Misconduct Bill 2001
(c) someone the judge permits to be present; 1
(d) a lawyer representing anyone mentioned in paragraphs (a) to (c). 2
(2) Also, the judge must hear the application-- 3
(a) in the absence of the person who is alleged to have caused or be 4
causing the risk or anyone likely to inform the person of the 5
application; and 6
(b) without that person having been informed of the application. 7
133 Consideration of application 8
Before deciding an application for an approval, the judge must, in 9
particular, and being mindful of the highly intrusive nature of using a 10
surveillance device, consider the following-- 11
(a) the nature of the risk of serious injury to a person; 12
(b) the extent to which issuing a surveillance warrant authorising the 13
use of the surveillance device would have helped reduce or avoid 14
the risk; 15
(c) the extent to which commission officers or police officers could 16
have used conventional ways of investigation to help reduce or 17
avoid the risk; 18
(d) how much the use of conventional ways of investigation could 19
have helped reduce or avoid the risk; 20
(e) how much the use of conventional ways of investigation would 21
have prejudiced the safety of the person because of delay or for 22
another reason; 23
(f) any submissions made by a monitor. 24
134 Judge may approve emergency use of powers 25
(1) After considering the application, the judge may approve the 26
application if satisfied there were reasonable grounds to believe-- 27
(a) there was a risk of serious injury to a person from major crime 28
being investigated by the commission; and 29
(b) using a surveillance device may have helped reduce the risk. 30
s 135 94 s 137
Crime and Misconduct Bill 2001
(2) Also, the judge may require the destruction of any recordings made 1
that were not related to the purpose for which the surveillance device was 2
used. 3
135 Use of evidence and information 4
(1) Evidence obtained because of the exercise of powers approved under 5
section 134 is admissible in a proceeding for an offence. 6
(2) Also, information obtained under this division may be given to any 7
person or organisation involved in helping prevent or reduce the risk of 8
serious injury to a person. 9
(3) Subsection (2) does not apply to information from recordings 10
ordered to be destroyed by a judge. 11
Division 4--Use of surveillance devices for a crime investigation under 12
magistrates warrant 13
136 Application of div 4 14
This division applies only for a crime investigation. 15
137 Surveillance warrant applications 16
(1) This section applies if the chairperson reasonably believes a person 17
has been, is, or is likely to be, involved in major crime. 18
(2) With the chairperson's approval, an authorised commission officer 19
may apply to a magistrate for a warrant ("surveillance warrant") 20
authorising the use of a class B surveillance device. 21
(3) For subsection (2), an authorised commission officer who is a police 22
officer must be of at least the rank of inspector. 23
(4) The application must-- 24
(a) be sworn and state the grounds on which the warrant is sought; 25
and 26
(b) fully disclose all matters, of which the authorised commission 27
officer is aware, both favourable and adverse to the issuing of the 28
warrant sought; and 29
s 138 95 s 138
Crime and Misconduct Bill 2001
(c) include information required under a regulation about any 1
warrants issued within the previous year in relation to the person 2
or the place specified in the application. 3
(5) Subsection (4)(c) only applies to-- 4
(a) information kept in a register that the commission officer may 5
inspect; and 6
(b) information the commission officer otherwise actually knows. 7
(6) The applicant must advise the public interest monitor of the 8
application under arrangements decided by the monitor. 9
(7) The magistrate may refuse to consider the application until the 10
applicant gives the magistrate all the information the magistrate requires 11
about the application in the way the magistrate requires. 12
13
Example--
14
The magistrate may require additional information supporting the application to be
15
given by statutory declaration.
138 Who may be present at consideration of application 16
(1) The magistrate must hear an application for a surveillance warrant in 17
the absence of anyone other than the following-- 18
(a) the applicant; 19
(b) a monitor; 20
(c) someone the magistrate permits to be present; 21
(d) a lawyer representing anyone mentioned in paragraphs (a) to (c). 22
(2) Also, the magistrate must hear the application-- 23
(a) in the absence of the person proposed to be placed under 24
surveillance (the "relevant person") or anyone likely to inform 25
the relevant person of the application; and 26
(b) without the relevant person having been informed of the 27
application. 28
s 139 96 s 140
Crime and Misconduct Bill 2001
139 Consideration of application 1
Before deciding an application for a surveillance warrant, the magistrate 2
must, in particular, and being mindful of the highly intrusive nature of 3
using a surveillance device, consider the following-- 4
(a) the nature and seriousness of the major crime; 5
(b) the extent to which issuing the warrant would help prevent, 6
detect, or provide evidence of the commission of, the major 7
crime; 8
(c) the benefits derived from the issue of any previous surveillance 9
warrants in relation to the relevant person; 10
(d) the extent to which commission officers investigating the major 11
crime have used or can use conventional ways of investigation; 12
(e) how much the use of conventional ways of investigation would 13
be likely to help in the investigation of the major crime; 14
(f) how much the use of conventional ways of investigation would 15
prejudice the investigation of the major crime because of delay or 16
for another reason; 17
(g) any submissions made by a monitor. 18
140 Issue of surveillance warrant 19
(1) After considering the application, the magistrate may issue the 20
warrant for a period of not more than 30 days if satisfied there are 21
reasonable grounds for believing the relevant person-- 22
(a) has been, is, or is likely to be, involved in the commission of the 23
major crime; and 24
(b) is likely to be-- 25
(i) at a place, including a public place, mentioned in the 26
application; or 27
(ii) at a class of place mentioned in the application. 28
(2) The magistrate may impose any conditions on the warrant that the 29
magistrate considers are necessary in the public interest. 30
s 141 97 s 143
Crime and Misconduct Bill 2001
141 What warrant must state 1
The warrant must state the following-- 2
(a) that a stated commission officer or any commission officer may 3
exercise surveillance powers under the warrant using a class B 4
surveillance device; 5
(b) the name of the relevant person, if known; 6
(c) the place where the surveillance device authorised under the 7
warrant may be used; 8
(d) any conditions imposed under section 124(2);49 9
(e) the day and time the warrant starts and when the warrant ends. 10
142 Duration and extension of surveillance warrants 11
(1) A surveillance warrant is in force until the earlier of the following-- 12
(a) when the warrant is stated to end; 13
(b) the day the investigation under the warrant ends. 14
(2) However, despite the investigation ending, the warrant continues in 15
force until it is stated to end if, as a result of using the surveillance device, 16
evidence is gained of another major crime. 17
(3) The warrant may be extended from time to time on application and 18
the provisions of this division for an application for a warrant apply to an 19
application for an extension, with necessary changes. 20
(4) Despite the ending of the warrant under subsection (1) or (2), the 21
commission officer may continue to exercise powers under the warrant, but 22
only to the extent necessary to remove the surveillance device to which the 23
warrant relates. 24
143 Powers under surveillance warrants 25
A commission officer to whom a surveillance warrant is directed may, 26
subject to the warrant, lawfully exercise the following powers under the 27
warrant-- 28
49 Section 124 (Issue of surveillance warrant)
s 144 98 s 144
Crime and Misconduct Bill 2001
(a) power to enter a place to install a tracking device without covert 1
entry to a building; 2
(b) power to pass through, over, under or along a place to get to the 3
place where the tracking device is to be used; 4
(c) power to enter a vehicle or another moveable object, or to open a 5
thing, to install a tracking device; 6
(d) power to remove a vehicle or another moveable object to another 7
place to install a tracking device in the vehicle or object; 8
(e) power to use reasonable force to install a tracking device; 9
(f) power to use a tracking device or more than 1 device, whether of 10
the same or a different kind, in the same place; 11
(g) power to take electricity for using a tracking device. 12
13
Examples for paragraph (a)--
14
1. Installing a tracking device on a vehicle located in a public undercover
15
car park where entry is gained by any member of the public by paying
16
a fee, or on a vehicle on a street.
17
2. Installing a tracking device on a parcel inside a shipping container
18
located in a storage yard, if the parcel is reasonably believed to contain
19
unlawful drugs.
Division 5--Other provisions about surveillance devices 20
144 Restriction about records and access to surveillance warrant 21
applications etc. 22
(1) This section applies to the following ("relevant proceeding")-- 23
(a) an application to a Supreme Court judge or a magistrate for-- 24
(i) a surveillance warrant; or 25
(ii) the extension of a surveillance warrant; 26
(b) an application to a Supreme Court judge for approval of the 27
emergency use of a surveillance device; 28
(c) an order made or approval given under an application mentioned 29
in paragraph (a) or (b). 30
(2) Despite the Recording of Evidence Act 1962, a transcript of a relevant 31
proceeding must not be made. 32
s 145 99 s 145
Crime and Misconduct Bill 2001
(3) Also, no record of the application or of any order made in a relevant 1
proceeding is to be available for search by any person, except by direction 2
of a Supreme Court judge. 3
(4) A person must not publish a report of a relevant proceeding. 4
Maximum penalty--85 penalty units or 1 year's imprisonment. 5
(5) A person is not entitled to search information in the custody of a 6
court in relation to a relevant proceeding, unless a Supreme Court judge 7
otherwise orders in the interests of justice. 8
(6) Nothing in this section prevents a person who was present at a 9
relevant proceeding from giving oral evidence to a court about things that 10
happened at the proceeding. 11
145 Disclosure of information obtained using surveillance warrant 12
(1) This section applies to information that has not been disclosed in a 13
proceeding in open court and was obtained by using a surveillance warrant 14
(the "relevant information"). 15
(2) A commission officer who obtained relevant information must not 16
disclose the information to someone other than-- 17
(a) the judge or magistrate who issued the warrant; or 18
(b) a judge hearing an application for-- 19
(i) an extension of the warrant; or 20
(ii) approval of the emergency use of a surveillance device; or 21
(iii) a warrant in relation to the same or a different person; or 22
(c) a magistrate hearing an application for an extension of the 23
warrant or a warrant in relation to the same or a different person; 24
or 25
(d) a court taking evidence about a charge of an offence in which the 26
relevant information is evidence; or 27
(e) the chairperson or a person authorised by the chairperson; or 28
(f) a commission officer, police officer or other law enforcement 29
officer involved in-- 30
(i) the investigation into the major crime or misconduct for 31
which the powers were exercised; or 32
s 146 100 s 146
Crime and Misconduct Bill 2001
(ii) an investigation of any indictable offence started because of 1
information obtained under the warrant or linked to the 2
offence under investigation; or 3
(iii) a proceeding in which the information is evidence; or 4
(g) a declared law enforcement agency; or 5
(h) a public prosecutor, but only for-- 6
(i) use in a proceeding in which the information is evidence; or 7
(ii) an application for an extension of the warrant; or 8
(iii) an application under section 131;50 or 9
(iv) the issue of another surveillance warrant; or 10
(i) a public official, but only for taking disciplinary action; or 11
(j) a lawyer representing a person in a proceeding in which the 12
information is evidence; or 13
(k) a monitor; or 14
(l) a person transcribing or making copies of recordings. 15
Maximum penalty--85 penalty units or 1 year's imprisonment. 16
146 Destruction of records 17
(1) The commission must keep all information obtained under a 18
surveillance warrant and transcripts of recordings or photographs made or 19
taken under the warrant in a secure place. 20
(2) The commission must ensure any recording made or photograph 21
taken under the surveillance warrant or a transcript or copy made from 22
information obtained under the warrant is destroyed as soon as practicable 23
after it is no longer required. 24
(3) Subsection (2) does not prevent information or other matter being 25
preserved for any period or indefinitely if, in the chairperson's opinion, it is 26
relevant to-- 27
(a) any offence of which someone has been convicted if there is a 28
possibility that an issue about the conviction may arise; or 29
(b) an ongoing investigation. 30
50 Section 131 (Application for approval after emergency use of surveillance device)
s 147 101 s 148
Crime and Misconduct Bill 2001
PART 7--COVERT SEARCHES FOR CRIME 1
INVESTIGATIONS 2
147 Application of pt 7 3
This part applies only for a crime investigation. 4
148 Covert search warrant applications 5
(1) An authorised commission officer, with the chairperson's approval, 6
may apply to a Supreme Court judge for a warrant ("covert search 7
warrant") to enter and search a place for evidence of the commission of 8
major crime being investigated by the commission. 9
(2) For subsection (1), an authorised commission officer who is a police 10
officer must be of at least the rank of inspector. 11
(3) The application must-- 12
(a) be sworn and state the grounds on which the warrant is sought; 13
and 14
(b) state that the covert search warrant is being sought to enter and 15
search a place for evidence of the commission of major crime 16
being investigated by the commission; and 17
(c) fully disclose all matters, of which the authorised commission 18
officer is aware, both favourable and adverse to the issuing of the 19
warrant sought; and 20
(d) include information required under a regulation about any 21
warrants issued within the previous year in relation to the place 22
or person suspected of being involved in the major crime to 23
which the application relates. 24
(4) Subsection (3)(d) applies only to-- 25
(a) information kept in a register that the officer may inspect; and 26
(b) information the officer otherwise actually knows. 27
(5) The applicant must advise the public interest monitor of the 28
application under arrangements decided by the monitor. 29
(6) The judge may refuse to consider the application until the applicant 30
gives the judge all the information the judge requires about the application 31
in the way the judge requires. 32
s 149 102 s 150
Crime and Misconduct Bill 2001
1
Example--
2
The judge may require additional information supporting the application to be given by
3
statutory declaration.
149 Who may be present at consideration of application 4
(1) The judge must hear an application for a covert search warrant in the 5
absence of anyone other than the following-- 6
(a) the applicant; 7
(b) a monitor; 8
(c) someone the judge permits to be present; 9
(d) a lawyer representing anyone mentioned in paragraphs (a) to (c). 10
(2) Also, the judge must hear the application-- 11
(a) in the absence of the person the subject of the application (the 12
"relevant person") or anyone likely to inform the relevant 13
person of the application; and 14
(b) without the relevant person having been informed of the 15
application. 16
150 Consideration of application 17
Before deciding the application, the judge must, in particular, and being 18
mindful of the highly intrusive nature of the exercise of power under a 19
covert search warrant, consider the following-- 20
(a) the nature and seriousness of the major crime being investigated; 21
(b) the extent to which issuing the warrant would help prevent, 22
detect, or provide evidence of the commission of, the major 23
crime; 24
(c) the benefits derived from any previous covert search warrants, 25
search warrants or surveillance warrants in relation to the 26
relevant person or place; 27
(d) the extent to which commission officers investigating the matter 28
have used or can use conventional ways of investigation; 29
(e) how much the use of conventional ways of investigation would 30
be likely to help in the investigation of the matter; 31
s 151 103 s 153
Crime and Misconduct Bill 2001
(f) how much the use of conventional ways of investigation would 1
prejudice the investigation of the matter; 2
(g) any submissions made by a monitor. 3
151 Issue of covert search warrant 4
(1) After considering the application, the judge may issue the warrant if 5
satisfied there are reasonable grounds for believing evidence of the 6
commission of the major crime-- 7
(a) is at the place; or 8
(b) is likely to be taken to the place within the next 72 hours. 9
(2) The judge may impose any conditions on the warrant that the judge 10
considers are necessary in the public interest. 11
152 What covert search warrant must state 12
A covert search warrant must state the following-- 13
(a) that a stated commission officer, or any commission officer, may, 14
with reasonable help and force, enter the place, covertly or by 15
subterfuge and exercise covert search powers under the warrant; 16
(b) the major crime for which the warrant was issued; 17
(c) any evidence or samples of evidence that may be seized under 18
the warrant; 19
(d) that the warrant may be executed at any time of the day or night; 20
(e) that, if practicable, the search must be videotaped; 21
(f) the day and time the warrant starts and when the warrant ends, 22
being not more than 30 days after the warrant starts. 23
153 Duration and extension of covert search warrant 24
(1) A covert search warrant is in force until the earlier of the following-- 25
(a) when the warrant is stated to end; 26
(b) when the initial search is complete. 27
(2) However, the warrant may be extended from time to time on 28
application. 29
s 154 104 s 155
Crime and Misconduct Bill 2001
(3) The provisions of this part for an application for a covert search 1
warrant apply to an application for an extension, with all necessary 2
changes. 3
154 Restriction about records and access to covert search warrant 4
applications 5
(1) Despite the Recording of Evidence Act 1962, a transcript of an 6
application for a covert search warrant and any order made on it must not 7
be made. 8
(2) A person must not publish a report of a proceeding on an application 9
for a covert search warrant or an extension of a covert search warrant. 10
Maximum penalty--85 penalty units or 1 year's imprisonment. 11
(3) A person is not entitled to search information in the custody of the 12
Supreme Court in relation to an application for a covert search warrant, 13
unless a Supreme Court judge otherwise orders in the interests of justice. 14
155 Powers under covert search warrant 15
A commission officer to whom a covert search warrant is directed may, 16
subject to the warrant, lawfully exercise the following powers under the 17
warrant ("covert search powers")-- 18
(a) power to enter the place stated in the warrant (the "relevant 19
place"), covertly or through subterfuge, as often as is reasonably 20
necessary for the purposes of the warrant and stay at the place for 21
the time reasonably necessary; 22
(b) power to pass over, through, along or under another place to enter 23
the relevant place; 24
(c) power to search the relevant place for anything sought under the 25
warrant; 26
(d) power to open anything at the relevant place that is locked; 27
(e) power to seize a thing or part of a thing found at the relevant 28
place that the commission officer reasonably believes is evidence 29
of the commission of major crime stated in the warrant; 30
s 156 105 s 158
Crime and Misconduct Bill 2001
(f) power to photograph anything the commission officer reasonably 1
believes may provide evidence of the commission of major crime 2
stated in the warrant; 3
(g) power to inspect or test anything found at the place. 4
156 Report on covert search 5
(1) A commission officer must give to the Supreme Court judge who 6
issued the covert search warrant and a monitor a report containing 7
information required under a regulation on the exercise of the powers under 8
the warrant. 9
(2) The report must be given to the judge and a monitor within 7 days 10
after the warrant is executed or, if that is impracticable because of the 11
unavailability of the judge, as soon as practicable after the warrant is 12
executed. 13
(3) The officer must, if practicable, also take before the judge anything 14
seized under the warrant and any photograph taken during the search. 15
(4) The judge may, in relation to a thing mentioned in subsection (3), 16
order that it-- 17
(a) be held by the commission until any proceeding in which the 18
thing may be evidence ends; or 19
(b) be dealt with in the way the judge orders. 20
PART 8--ADDITIONAL POWERS WITH COURT'S 21
APPROVAL 22
157 Application of pt 8 23
This part applies only for a misconduct investigation. 24
158 Additional powers warrant applications 25
(1) With the chairperson's approval, an authorised commission officer 26
may apply to a Supreme Court judge for a warrant ("additional powers 27
warrant") authorising the use of powers under this part. 28
s 159 106 s 159
Crime and Misconduct Bill 2001
(2) For subsection (1), an authorised commission officer who is a police 1
officer must be of at least the rank of inspector. 2
(3) The application must-- 3
(a) be sworn and state the grounds on which the warrant is sought; 4
and 5
(b) state the powers sought; and 6
(c) fully disclose all matters, of which the applicant is aware, both 7
favourable and adverse to the issuing of the warrant sought by 8
the applicant. 9
(4) The applicant must advise any person the judge directs is to be 10
advised of the application. 11
(5) The judge may refuse to consider the application until the applicant 12
gives the judge all the information the judge requires about the application 13
in the way the judge requires. 14
15
Example--
16
The judge may require additional information supporting the application to be given by
17
statutory declaration.
159 Who may be present at consideration of application 18
(1) The judge must hear an application for an additional powers warrant 19
in the absence of anyone other than the following-- 20
(a) the applicant; 21
(b) someone the judge permits or directs to be present; 22
(c) a lawyer representing anyone mentioned in paragraphs (a) or (b). 23
(2) Also, the judge must hear the application-- 24
(a) in the absence of the person the subject of the application (the 25
"relevant person") or anyone likely to inform the relevant 26
person of the application; and 27
(b) without the relevant person having been informed of the 28
application. 29
s 160 107 s 162
Crime and Misconduct Bill 2001
160 Consideration of application 1
Before deciding the application, the judge must, in particular, and being 2
mindful of the highly intrusive nature of the exercise of power under an 3
additional powers warrant, consider the following-- 4
(a) the nature and seriousness of the misconduct being investigated; 5
(b) the significance to the commission's purposes of the objects of 6
the proposed exercise of authority; 7
(c) the extent to which commission officers investigating the matter 8
have used or can use other powers for the investigation; 9
(d) how much the use of the additional powers would be likely to 10
help in the investigation of the matter; 11
(e) any submissions made by a monitor. 12
161 Issue of additional powers warrant 13
(1) After considering the application, the judge may issue the warrant for 14
a period of not more than 30 days if satisfied there are reasonable grounds 15
for believing that the use of the additional powers sought is justified in the 16
particular circumstances of the case. 17
(2) The judge may impose any conditions on the warrant that the judge 18
considers are necessary in the public interest. 19
162 What additional powers warrant must state 20
An additional powers warrant must state the following-- 21
(a) that a stated commission officer, or any commission officer, may, 22
with reasonable help and force, enter a place and exercise powers 23
under the warrant; 24
(b) brief particulars of the misconduct for which the warrant is 25
issued; 26
(c) any evidence or samples of evidence that may be seized under 27
the warrant; 28
(d) that the warrant may be executed at any time of the day or night; 29
(e) the day and time the warrant starts and when the warrant ends. 30
s 163 108 s 165
Crime and Misconduct Bill 2001
163 Duration and extension of additional powers warrant 1
(1) An additional powers warrant is in force until the earlier of the 2
following-- 3
(a) when the warrant is stated to end; 4
(b) when the initial search is complete. 5
(2) However, the warrant may be extended from time to time on 6
application. 7
(3) The provisions of this part for an application for an additional powers 8
warrant apply to an application for an extension, with all necessary 9
changes. 10
164 Restriction about records and access to additional powers 11
warrant applications 12
(1) Despite the Recording of Evidence Act 1962, a transcript of an 13
application for an additional powers warrant and any order made on it must 14
not be made. 15
(2) A person must not publish a report of a proceeding on an application 16
for an additional powers warrant or an extension of an additional powers 17
warrant. 18
Maximum penalty--85 penalty units or 1 year's imprisonment. 19
(3) A person is not entitled to search information in the custody of the 20
Supreme Court in relation to an application for an additional powers 21
warrant, unless a Supreme Court judge otherwise orders in the interests of 22
justice. 23
165 Powers under additional powers warrant 24
(1) A commission officer to whom an additional powers warrant is 25
directed may, subject to the warrant, lawfully exercise the following 26
powers under the warrant-- 27
(a) power, at any time during business hours-- 28
(i) to enter premises at which records of a financial entity or a 29
suspected associate of a person being investigated are held; 30
and 31
s 165 109 s 165
Crime and Misconduct Bill 2001
(ii) to inspect and make copies of, or take extracts from, the 1
records so far as they relate to the affairs of the person being 2
investigated; 3
(b) power to seize passports, other travel documents, instruments of 4
title to property, securities and financial documents found in the 5
possession or control of a person concerned in an investigation; 6
(c) power to require any person to give to the commission or officer 7
1 or more sworn affidavits or statutory declarations relating to 8
any of the following-- 9
(i) the property of a person holding an appointment in a unit of 10
public administration or of any person associated with the 11
holder; 12
(ii) the financial transactions of a person holding an 13
appointment in a unit of public administration or of any 14
person associated with the holder; or 15
(iii) the movements of money or other assets by a person holding 16
an appointment in a unit of public administration or by any 17
person associated with the holder. 18
(2) In this section-- 19
"financial entity" means-- 20
(a) a financial institution; or 21
(b) an insurance company; or 22
(c) a stock and share broker; or 23
(d) a person engaged in a business of-- 24
(i) investing money for others; or 25
(ii) providing credit facilities. 26
"person being investigated" means a person to whom an investigation by 27
the commission relates. 28
"suspected associate", of a person being investigated, means a person 29
suspected of having a relevant association with the person being 30
investigated. 31
s 166 110 s 166
Crime and Misconduct Bill 2001
PART 9--WARRANTS REGISTER 1
166 Register of warrants, warrant applications etc. 2
(1) The commission must keep a register of prescribed information in the 3
way the commission considers appropriate. 4
(2) The register is not open to inspection by anyone other than the 5
following-- 6
(a) the commission; 7
(b) a monitor; 8
(c) the parliamentary commissioner. 9
(3) However, if the commission considers it appropriate, the commission 10
may, in writing, authorise a person who may not otherwise inspect the 11
register to inspect the register on conditions the commission considers 12
appropriate. 13
(4) The commission may authorise a person to inspect the register under 14
subsection (3) only if it is satisfied the inspection is necessary-- 15
(a) for an investigation into major crime or misconduct for which 16
information in the register may be relevant; or 17
(b) for maintaining the register; or 18
(c) for preparing an application under part 2, or part 6, division 2 or 19
4, or part 7 for a warrant or for an extension of a warrant; or 20
(d) to monitor compliance with this Act. 21
(5) A person authorised under subsection (3) to inspect the register may 22
inspect it only to the extent necessary for the purpose for which the 23
authority is given. 24
(6) In this section-- 25
"prescribed information" means information prescribed under a 26
regulation about-- 27
(a) applications for-- 28
(i) search warrants; or 29
(ii) surveillance warrants; or 30
(iii) extensions of surveillance warrants; or 31
s 167 111 s 168
Crime and Misconduct Bill 2001
(iv) covert search warrants; or 1
(v) extensions of covert search warrants; or 2
(vi) additional powers warrants; or 3
(vii) extensions of additional powers warrants; or 4
(b) a disclosure of information under section 145(2)(f)(ii) or (g).51 5
PART 10--ARREST WARRANTS 6
167 Arrest warrant application 7
(1) An authorised commission officer, with the chairperson's approval, 8
may apply to a Supreme Court judge for a warrant for the apprehension of 9
a person ("arrest warrant") who has been given an attendance notice. 10
(2) The application must be sworn and state the grounds on which the 11
warrant is sought. 12
(3) The judge may refuse to consider the application until the officer 13
gives the judge all the information the judge requires about the application 14
in the way the judge requires. 15
168 Issue of arrest warrant 16
(1) The judge may issue a warrant for the apprehension of the person if 17
the judge is satisfied-- 18
(a) on sworn evidence before the judge-- 19
(i) the person-- 20
(A) has been given the attendance notice; and 21
(B) has, without reasonable excuse, failed to attend at the 22
commission hearing as required by the notice; or 23
(ii) the person has made a representation that the person intends 24
not to attend at a commission hearing as required by the 25
attendance notice; and 26
51 Section 145 (Disclosure of information obtained using surveillance warrant)
s 169 112 s 169
Crime and Misconduct Bill 2001
(b) it is in the public interest that the person be compelled to attend 1
at the hearing to avoid prejudice to the conduct of an 2
investigation. 3
(2) For subsection (1)(a)(ii), an arrest warrant may be issued even though 4
the time stated in the attendance notice for the person to attend has not yet 5
passed. 6
(3) In this section-- 7
"representation" includes-- 8
(a) an express or implied representation, whether oral or in writing; 9
and 10
(b) a representation inferred from conduct; and 11
(c) a representation not intended by its maker to be communicated to 12
or seen by another person. 13
169 What arrest warrant authorises 14
(1) The arrest warrant authorises any authorised commission officer or 15
police officer ("authorised officer") to whom it is addressed to enter a 16
place, using the force reasonably necessary, and to stay for a reasonable 17
time on the place to apprehend the person subject to the warrant. 18
(2) The person apprehended-- 19
(b) must be brought immediately before a commission hearing; and 20
(c) may be detained in custody until excused from attendance at the 21
hearing by the presiding officer at the hearing. 22
(3) The Bail Act 1980 applies to a person taken into custody under an 23
arrest warrant in the same way it applies to a person in custody charged 24
with an offence. 25
(4) The arrest warrant may be executed by any authorised officer to 26
whom it is addressed. 27
(5) An authorised officer executing the arrest warrant may use the force 28
that is reasonably necessary, including force to enter premises, to execute 29
the warrant. 30
(6) However, before the authorised officer uses force that may cause 31
damage to a place to gain entry to the place, the authorised officer must, if 32
reasonably practicable-- 33
s 170 113 s 172
Crime and Misconduct Bill 2001
(a) ask the occupier of the place to allow the authorised officer to 1
enter the place; and 2
(b) give the occupier a reasonable opportunity to allow the entry. 3
170 Provision for overnight detention 4
Unless the arrest warrant otherwise provides, if the person is required to 5
be detained overnight, the commission must arrange for the person is to be 6
provided with accommodation and meals to a standard comparable to that 7
generally provided to jurors kept together overnight. 8
171 Person's liability for noncompliance with attendance 9
notice unaffected by issue of arrest warrant 10
The issue of an arrest warrant for the apprehension of a person, or the 11
apprehension of a person under the arrest warrant, does not relieve the 12
person from any liability incurred by the person for noncompliance with an 13
attendance notice. 14
PART 11--GENERAL 15
172 Commission officer may use assistance in exercising particular 16
powers 17
(1) It is lawful for a commission officer exercising a power under this 18
Act-- 19
(a) to seek the assistance of another person (an "assistant") the 20
officer reasonably requires for performing a function of the 21
commission; or 22
(b) to take onto a place any assistant, equipment, vehicle, animal or 23
material the officer reasonably requires for exercising the power. 24
25
Examples--
26
1. A commission officer may seek the help of an electrician to install a listening
27
device under a surveillance warrant.
28
2. A commission officer may seek the help of a translator to interpret conversations
29
and visual images recorded using a surveillance device.
s 173 114 s 174
Crime and Misconduct Bill 2001
(2) The commission officer may authorise the assistant-- 1
(a) to take stated action at the place; and 2
(b) to exercise stated powers the commission officer is authorised to 3
exercise. 4
(3) However, the commission officer can not authorise the assistant to 5
apprehend a person. 6
(4) The commission officer must, if practicable, tell the assistant-- 7
(a) of the action the assistant is authorised to take; and 8
(b) of the assistant's powers under this section. 9
(5) Subsection (1) applies, in relation to animals, despite any other Act 10
or law. 11
173 Protection for assistants from liability 12
(1) An assistant does not incur civil liability for an act done, or omission 13
made, honestly and without negligence, while acting as an assistant. 14
(2) If subsection (1) prevents a liability attaching to an assistant, liability 15
attaches instead to the State. 16
174 Commission's powers generally 17
(1) Without limiting the commission's specific powers under this or 18
another Act,52 the commission has power to do all things necessary or 19
convenient to be done for or in connection with, or reasonably incidental 20
to, the performance of its functions. 21
(2) A person who is a member of a relevant office whose services are 22
seconded to the commission under section 25553 retains, and may exercise, 23
all powers had by the person as a member of the office. 24
(3) In this section-- 25
"relevant office" means a unit of public administration or an office within 26
a unit of public administration. 27
52 See, for example, Police Powers and Responsibilities Act 2000, chapter 5
(Controlled operations and controlled activities)
53 Section 255 (Secondment of officers)
s 175 115 s 177
Crime and Misconduct Bill 2001
175 Supplying officer's details 1
(1) This section applies if a commission officer-- 2
(a) searches a place under a warrant, other than a covert search 3
warrant, under this chapter; or 4
(b) seizes any property, other than under a covert search warrant, 5
under this chapter. 6
(2) The officer must, as soon as is reasonably practicable, inform the 7
person the subject of the power of the following-- 8
(a) the fact that the officer is a commission officer; 9
(b) the officer's name; 10
(c) if the officer is a police officer, his or her rank and station. 11
(3) If the officer is not a police officer in uniform, the officer must also 12
produce for inspection his or her identity card. 13
(4) If 2 or more officers are searching a place, only the officer in charge 14
of the search is required to comply with subsections (2) and (3), unless a 15
person asks another officer for the information. 16
CHAPTER 4--HEARINGS AND DECIDING CLAIMS 17
OF PRIVILEGE AND EXCUSE 18
PART 1--PROCEEDINGS 19
176 Commission may hold hearings 20
The commission may authorise the holding of a hearing in relation to 21
any matter relevant to the performance of its functions. 22
177 Whether hearings are to be open or closed 23
(1) Generally, a hearing is not open to the public. 24
(2) However-- 25
s 178 116 s 178
Crime and Misconduct Bill 2001
(a) for a hearing for a crime investigation, the commission may open 1
the hearing to the public ("public hearing") if it-- 2
(i) considers opening the hearing will make the investigation to 3
which the hearing relates more effective and would not be 4
unfair to a person or contrary to the public interest; and 5
(ii) approves that the hearing be a public hearing; or 6
(b) for a hearing other than for a crime investigation, the commission 7
may open the hearing to the public if it considers-- 8
(i) closing the hearing to the public would be unfair to a person 9
or contrary to the public interest; and 10
(ii) approves that the hearing be a public hearing. 11
(3) A decision about whether a hearing should be a public hearing must 12
not be delegated. 13
(4) If the commission decides to open a hearing to the public, the 14
presiding officer for the hearing may close the hearing for a particular 15
purpose. 16
178 Who must conduct hearings 17
(1) The chairperson must conduct a public hearing. 18
(2) If, for any reason, the chairperson is unable to conduct a public 19
hearing, the Governor in Council must appoint a person qualified to be the 20
chairperson to conduct the public hearing. 21
(3) A closed hearing may be conducted by any of the following as 22
decided by the chairperson-- 23
(a) the chairperson; 24
(b) an assistant commissioner; 25
(c) another person qualified for appointment as the chairperson. 26
(4) If, under subsection (2), the Governor in Council appoints a person to 27
conduct a public hearing-- 28
(a) the person appointed to conduct the hearing is also the acting 29
chairperson for the period stated in the instrument of the person's 30
appointment; and 31
(b) the chairperson must stand down for that period. 32
s 179 117 s 180
Crime and Misconduct Bill 2001
(5) The chairperson is entitled to be paid full remuneration and 1
allowances for the period the chairperson stands down. 2
(6) The acting chairperson is entitled to the remuneration decided by the 3
Governor in Council. 4
(7) Sections 227 and 22854 do not apply to the appointment under 5
subsection (2) of a person to act as the chairperson. 6
179 Who may be present at closed hearings 7
(1) The presiding officer conducting a closed hearing may give a 8
direction about who may be present at the hearing. 9
(2) A person must not knowingly contravene a direction under 10
subsection (1). 11
Maximum penalty--85 penalty units or 1 year's imprisonment. 12
(3) In this section-- 13
"hearing" includes part of a hearing. 14
180 Conduct of hearings 15
(1) When conducting a hearing, the presiding officer-- 16
(a) must act quickly, and with as little formality and technicality, as 17
is consistent with a fair and proper consideration of the issues 18
before the presiding officer; and 19
(b) is not bound by the rules of evidence; and 20
(c) may inform himself or herself of anything in the way he or she 21
considers appropriate; and 22
(d) may decide the procedures to be followed for the hearing. 23
(2) The presiding officer or a person nominated by the presiding officer 24
for the purpose may administer an oath, or take a statutory declaration, 25
required by the presiding officer. 26
(3) The presiding officer may, by order, prohibit the publication of-- 27
54 Sections 227 (Advertising and nominations for appointment) and 228 (Consultation
before nominating persons for appointment)
s 181 118 s 182
Crime and Misconduct Bill 2001
(a) an answer given, or document or thing produced, at a 1
commission hearing or anything about the answer, document or 2
thing; or 3
(b) information that might enable the existence or identity of a 4
person who is about to give or has given evidence before the 5
commission at a hearing to be ascertained. 6
(4) The presiding officer is taken, for the purposes of the hearing, to be 7
the commission. 8
181 Legal representation and examination 9
(1) A witness at a commission hearing may be legally represented at the 10
hearing. 11
(2) A witness may be examined, cross-examined or re-examined on any 12
matter the presiding officer considers relevant by-- 13
(a) the presiding officer; or 14
(b) counsel assisting the commission at the hearing; or 15
(c) a person authorised by the presiding officer; or 16
(d) a lawyer representing the witness. 17
(3) The presiding officer may allow a person who is not giving sworn 18
evidence at the hearing to be legally represented at the hearing if the 19
presiding officer considers there are special circumstances. 20
182 Right to interpreter 21
(1) This section applies if the presiding officer at a commission hearing 22
reasonably suspects a witness is unable, because of inadequate knowledge 23
of the English language or a physical disability, to understand what is being 24
said or to speak with reasonable fluency in English. 25
(2) Before the witness is questioned, the presiding officer must arrange 26
for the presence of an interpreter and delay the questioning until the 27
interpreter is present. 28
s 183 119 s 185
Crime and Misconduct Bill 2001
PART 2--REFUSALS AND CLAIMS OF PRIVILEGE 1
AND REASONABLE EXCUSE 2
Division 1--Refusal to be sworn 3
183 Refusal to take oath 4
A person attending at a commission hearing to give sworn evidence must 5
not fail to take an oath when required by the presiding officer. 6
Maximum penalty--85 penalty units or 1 year's imprisonment. 7
Division 2--Refusal to produce 8
Subdivision 1--Crime investigations 9
184 Application of subdiv 1 10
This subdivision applies only in the context of a crime investigation. 11
185 Refusal to produce--claim of reasonable excuse 12
(1) A person required to produce a stated document or thing at a 13
commission hearing under an attendance notice must-- 14
(a) in all cases, bring the document or thing to the hearing if the 15
document or thing is in the person's possession; and 16
(b) produce the document or thing at the hearing, unless the person 17
has a reasonable excuse. 18
Maximum penalty--85 penalty units or 1 year's imprisonment. 19
(2) A claim of privilege, other than legal professional privilege, is not a 20
reasonable excuse for subsection (1)(b). 21
22
Note--
23
A refusal to produce a document or thing under a claim of legal professional privilege
24
is considered under section 194.55
(3) A claim of legal professional privilege is not a reasonable excuse for 25
subsection (1)(b) if-- 26
s 185 120 s 185
Crime and Misconduct Bill 2001
(a) the person has authority to waive the privilege and waives it; or 1
(b) the privilege is waived by a person having authority to waive it. 2
(4) The presiding officer must decide a claim of reasonable excuse 3
mentioned in subsection (1)(b) under section 181. 4
(5) Subsection (6) applies if the person-- 5
(a) at the hearing, refuses to produce the document or thing on the 6
ground that legal professional privilege attaches to the document 7
or thing; and 8
(b) has no authority to waive the privilege. 9
(6) The person must, if required by the presiding officer-- 10
(a) tell the presiding officer the name and address of the person 11
entitled to waive the privilege; and 12
(b) seal the document or thing and, at the hearing, give it to the 13
commission for safe keeping. 14
Maximum penalty--85 penalty units or 1 year's imprisonment. 15
(7) The commission must-- 16
(a) give the person a receipt for the sealed document or thing (the 17
"sealed evidence"); and 18
(b) place it in safe custody at the commission's place of business at 19
the earliest reasonable opportunity. 20
(8) A person must not open the sealed evidence unless authorised to open 21
it under this Act or a court order. 22
Maximum penalty--85 penalty units or 1 year's imprisonment. 23
(9) The commission must return the sealed evidence to the person who 24
gave it to the commission if the commission has not, within 3 months after 25
the day on which the sealed evidence was given to the commission, given 26
the person entitled to waive the privilege a notice to attend a hearing and to 27
produce the sealed evidence. 28
55 Section 194 (Presiding officer to decide whether refusal to answer questions or
produce documents or things is justified)
s 186 121 s 188
Crime and Misconduct Bill 2001
186 Return of sealed documents or things for decision on claim 1
of privilege at hearing 2
(1) If-- 3
(a) a person has given to a commission officer under section 78 or 4
8156 a sealed document or thing (the "sealed evidence"); and 5
(b) the commission has given the person a notice to attend a hearing 6
to produce the sealed evidence; 7
the commission must return the sealed evidence to the person at the hearing 8
before the person is required at the hearing to produce the sealed evidence. 9
(2) If-- 10
(a) a person has given the commission under section 185(6)(b)57 a 11
sealed document or thing (also the "sealed evidence"); and 12
(b) the commission has given another person a notice to attend a 13
hearing to produce the sealed evidence; 14
the commission must give the sealed evidence to the person attending the 15
hearing before the person is required at the hearing to produce the sealed 16
evidence. 17
Subdivision 2--Misconduct investigations 18
187 Application of subdiv 2 19
This subdivision applies only in the context of a misconduct 20
investigation. 21
188 Refusal to produce--self-incrimination 22
(1) This section applies if a person is required to produce a stated 23
document or thing at a commission hearing because the person claims that 24
production of the document may incriminate the person. 25
(2) A person required to produce the document or thing at a commission 26
hearing under an attendance notice must-- 27
56 Section 78 and 81(Procedure for documents subject to claim of privilege)
57 Section 185 (Refusal to produce--claim of reasonable excuse)
s 189 122 s 190
Crime and Misconduct Bill 2001
(a) in all cases, bring the document or thing to the hearing if the 1
document or thing is in the person's possession; and 2
(b) produce the document or thing at the hearing, unless the person 3
has a reasonable excuse. 4
Maximum penalty--85 penalty units or 1 year's imprisonment. 5
(3) It is not a reasonable excuse for subsection (2)(b) to fail to produce 6
the document or thing because producing the document or thing might tend 7
to incriminate the person. 8
Division 3--Refusal to answer 9
Subdivision 1--Crime investigations 10
189 Application of subdiv 1 11
This subdivision applies only in the context of a crime investigation. 12
190 Refusal to answer question 13
(1) A witness at a commission hearing must answer a question put to the 14
person at the hearing by the presiding officer. 15
Maximum penalty--85 penalty units or 1 year's imprisonment. 16
(2) The person is not entitled-- 17
(a) to remain silent; or 18
(b) to refuse to answer the question on a ground of privilege, other 19
than legal professional privilege. 20
(3) If-- 21
(a) the person refuses to answer a question on the ground the answer 22
to the question would disclose a communication to which legal 23
professional privilege attaches; and 24
(b) the person has no authority to waive the privilege; 25
the person must, if required by the presiding officer, tell the officer the 26
name and address of the person to whom or by whom the communication 27
was made. 28
s 191 123 s 192
Crime and Misconduct Bill 2001
Maximum penalty for subsection (3)--85 penalty units or 1 year's 1
imprisonment. 2
Subdivision 2--Misconduct investigations 3
191 Application of subdiv 2 4
This subdivision applies only in the context of a misconduct 5
investigation. 6
192 Refusal to answer question 7
(1) A witness at a commission hearing must answer a question put to the 8
person at the hearing by the presiding officer. 9
Maximum penalty--85 penalty units or 1 year's imprisonment. 10
(2) The person is not entitled-- 11
(a) to remain silent; or 12
(b) to refuse to answer the question on a ground of privilege, other 13
than-- 14
(i) legal professional privilege; or 15
(ii) public interest immunity; or 16
(iii) parliamentary privilege. 17
(3) If-- 18
(a) the person refuses to answer a question on the ground the answer 19
to the question would disclose a communication to which legal 20
professional privilege attaches; and 21
(b) the person has no authority to waive the privilege; 22
the person must, if required by the presiding officer, tell the officer the 23
name and address of the person to whom or by whom the communication 24
was made. 25
Maximum penalty for subsection (3)--85 penalty units or 1 year's 26
imprisonment. 27
s 193 124 s 194
Crime and Misconduct Bill 2001
Division 4--Deciding claims 1
Subdivision 1--Crime investigations 2
193 Application of subdiv 1 3
This subdivision applies only in the context of a crime investigation. 4
194 Presiding officer to decide whether refusal to answer 5
questions or produce documents or things is justified 6
(1) This section applies if a person claims to have a reasonable excuse, 7
including a reasonable excuse based on a claim of legal professional 8
privilege, for not complying with a requirement made of the person at a 9
commission hearing-- 10
(a) to answer a question put to the person; or 11
(b) to produce a document or thing that the person was required to 12
produce. 13
(2) If the presiding officer decides, after hearing the person's 14
submissions, that the person has a reasonable excuse for not complying 15
with the requirement-- 16
(a) the presiding officer may require the person to comply with the 17
requirement; and 18
(b) section 19758 applies in relation to the answer, document or thing 19
given or produced. 20
(3) If the presiding officer decides the person did not have a reasonable 21
excuse for not complying with the requirement, the presiding officer 22
must-- 23
(a) give the person reasons for the decision; and 24
(b) require the person to answer the question, or to produce the 25
document or thing as required by the attendance notice, subject 26
to the person's right of appeal under section 195;59 and 27
58 Section 197 (Restriction on use of privileged answers, documents and things
disclosed or produced under compulsion)
59 Section 195 (Appeals to Supreme Court)
s 195 125 s 195
Crime and Misconduct Bill 2001
(c) advise the person that the person may appeal the presiding 1
officer's decision to the Supreme Court within the time allowed 2
under section 195. 3
4
Note--
5
A refusal to comply with the requirement to answer the question or produce the
6
document or thing is an offence against section 185 or 192.60
(4) If-- 7
(a) the person is required to produce a document or thing under 8
subsection (3); and 9
(b) the person informs the presiding officer that the person wishes to 10
appeal or consider an appeal under section 195; 11
the person must immediately seal the document or thing and give it to the 12
commission for safekeeping. 13
Maximum penalty--85 penalty units or 1 year's imprisonment. 14
(5) The commission must-- 15
(a) give the person a receipt for the sealed document or thing (the 16
"sealed evidence"); and 17
(b) place it in safe custody at the commission's place of business at 18
the earliest reasonable opportunity. 19
(6) A person must not open the sealed evidence unless authorised to open 20
it under this Act or a court order. 21
Maximum penalty--85 penalty units or 1 year's imprisonment. 22
(7) If the person fails to apply for leave to appeal within the time allowed 23
under section 195, or leave to appeal is refused under that section, the 24
commission may access the sealed evidence. 25
195 Appeals to Supreme Court 26
(1) A person may appeal against a decision of a presiding officer given 27
under section 194(3)(b) if-- 28
60 Section 185 (Refusal to produce--claim of reasonable excuse) or 192 (Refusal to
answer question)
s 195 126 s 195
Crime and Misconduct Bill 2001
(a) the person applies for leave to appeal the decision within 7 court 1
days after the person is given the presiding officer's reasons for 2
decision; and 3
(b) the Supreme Court grants leave to appeal. 4
(2) The Supreme Court may grant leave to appeal only if the court is 5
satisfied-- 6
(a) if the appeal relates to a document or thing--the document or 7
thing has been given to the commission and placed in safe 8
custody; and 9
(b) in all cases--the appeal has a significant prospect of success or 10
there is some important question of law involved. 11
(3) An application for leave to appeal must state the grounds of the 12
application. 13
(4) The Supreme Court must deal with an application for leave to appeal 14
and the appeal expeditiously. 15
(5) On hearing the appeal, the Supreme Court may make an order-- 16
(a) affirming the presiding officer's decision; or 17
(b) setting aside the presiding officer's decision. 18
(6) If the court affirms the presiding officer's decision about a document 19
or thing, the commission may access the document or thing. 20
(7) If the court sets aside the decision about a document or thing, the 21
court must make an order directing that the document or thing be delivered 22
to the person. 23
(8) A person may appeal only once under subsection (1) in relation to a 24
particular reasonable excuse claimed by the person for not answering a 25
question or producing a document or thing at a commission hearing. 26
(9) An application for leave to appeal, and an appeal, under this section 27
are to be heard in closed court. 28
s 196 127 s 196
Crime and Misconduct Bill 2001
Subdivision 2--Misconduct investigations 1
196 Supreme Court to decide claim of privilege or reasonable excuse 2
(1) This section applies if a person makes a claim of privilege under 3
section 73, 75, 94 or 111 in relation to information or a document or 4
thing.61 5
(2) The chairperson or the person making the claim of privilege may 6
apply to a Supreme Court judge to decide whether the claim is established 7
and, if established, whether it is to be upheld. 8
(3) The burden of proof on the application is on the person who seeks to 9
withhold the information, document or thing or to prevent the exercise of 10
authority. 11
(4) The judge must consider submissions and decide whether the claim 12
is established. 13
(5) If the judge decides that the claim is established on a ground of 14
public interest immunity, the judge may order the person to give the 15
information or produce the document or thing to the commission if the 16
judge decides that, on balance, the public interest is better served by giving 17
the information or producing the document or thing. 18
(6) If the judge decides that the claim is established on a ground of 19
confidentiality, the judge must order the person to give the information or 20
produce the document or thing to the commission unless the judge decides 21
that to give the information or produce the document or thing would be 22
against the public interest. 23
(7) Costs of an application made in relation to a claim of privilege are to 24
be borne by the commission, unless otherwise ordered by the judge on the 25
ground that the claim is frivolous or vexatious. 26
61 Sections 73 (Power to enter etc.), 75 (Notice to discover information), 94
(Limitation on search warrant powers for misconduct investigations) or 111
(General power to seize evidence--misconduct investigation)
s 197 128 s 197
Crime and Misconduct Bill 2001
Division 5--Restrictions on use 1
197 Restriction on use of privileged answers, documents and 2
things disclosed or produced under compulsion 3
(1) This section applies if-- 4
(a) before answering a question or producing a document or thing 5
put to the person by the commission or a commission officer, the 6
person claims that answering the question or producing the 7
document or thing might tend to incriminate the person; and 8
(b) apart from this Act, the person would not be required to answer 9
the question or produce the document or thing in a proceeding if 10
the person claimed the answer or production would tend to 11
incriminate the person; and 12
(c) the person is required to answer the question or produce the 13
document or thing. 14
(2) The answer, document or thing given or produced is not admissible 15
in evidence against the person in any civil, criminal or administrative 16
proceeding. 17
(3) However, the answer, document or thing is admissible in a civil, 18
criminal or administrative proceeding-- 19
(a) with the person's consent; or 20
(b) if the proceeding is about-- 21
(i) the falsity or misleading nature of the answer, document or 22
thing; or 23
(ii) an offence against this Act; or 24
(iii) a contempt of a person conducting the hearing. 25
(4) Also, the document is admissible in a civil proceeding about a right 26
or liability conferred or imposed by the document. 27
(5) In a commission hearing, the presiding officer may order that all 28
answers or a class of answer given by a person or that all documents or 29
things or a class of document or thing produced by a person is to be 30
regarded as having been given or produced on objection by the person. 31
(6) If the presiding officer makes an order under subsection (5), the 32
person is taken to have objected to the giving of each answer, or to the 33
producing of each document or thing, the subject of the order. 34
s 198 129 s 199
Crime and Misconduct Bill 2001
PART 3--CONTEMPT 1
198 Contempt of person conducting commission hearing 2
(1) A person is in contempt of the presiding officer conducting a 3
commission hearing if the person-- 4
(a) insults the member while the member is conducting the hearing; 5
or 6
(b) deliberately interrupts the hearing; or 7
(c) at the hearing, contravenes a provision of this Act relating to the 8
hearing; or 9
(d) creates or continues or joins in creating or continuing, a 10
disturbance in or near a place where the presiding officer is 11
conducting the hearing; or 12
(e) does anything at the hearing or otherwise that would be contempt 13
of court if the presiding officer were a judge acting judicially. 14
(2) The presiding officer may order that a person who under 15
subsection (1) is in contempt of the commission at a hearing be excluded 16
from the place where the hearing is being conducted. 17
(3) A commission officer, acting under the presiding officer's order, may, 18
using necessary and reasonable help and force, exclude the person from the 19
place. 20
199 Punishment of contempt 21
(1) A person's contempt of the presiding officer conducting a 22
commission hearing may be punished under this section. 23
(2) The presiding officer may certify the contempt in writing to the 24
Supreme Court (the "court"). 25
(3) For subsection (2), it is enough for the presiding officer to be satisfied 26
that there is evidence of contempt. 27
(4) The presiding officer may issue a warrant directed to a police officer 28
or all police officers for the apprehension of the person to be brought before 29
the Supreme Court to be dealt with according to law. 30
(5) The Bail Act 1980 applies to the proceeding for the contempt started 31
by the certification in the same way it applies to a charge of an offence. 32
s 200 130 s 201
Crime and Misconduct Bill 2001
(6) The court must inquire into the alleged contempt. 1
(7) The court must hear-- 2
(a) witnesses and evidence that may be produced against or for the 3
person whose contempt was certified; and 4
(b) any statement given by the person in defence. 5
(8) If the court is satisfied the person has committed the contempt, the 6
court may punish the person as if the person had committed the contempt 7
in relation to proceedings in the court. 8
(9) The Uniform Civil Procedure Rules 1999 apply to the court's 9
investigation, hearing and power to punish, with necessary changes. 10
(10) The presiding officer's certificate of contempt is evidence of the 11
matters contained in the certificate. 12
(11) The person is not excused from attending before a commission 13
hearing in obedience to an attendance notice only because the person is 14
punished or liable to punishment under this section for contempt of the 15
presiding officer. 16
200 Conduct that is contempt and offence 17
(1) If conduct of an offender is both contempt of the presiding officer 18
conducting a commission hearing and an offence, the offender may be 19
proceeded against for the contempt or for the offence, but the offender is 20
not liable to be punished twice for the same conduct. 21
(2) In this section-- 22
"offender" means a person guilty, or alleged to be guilty, of contempt of 23
the presiding officer conducting a commission hearing. 24
PART 4--GENERAL 25
201 Commission must give evidence to defence 26
unless court certifies otherwise 27
(1) This section applies if a person is charged with an offence before a 28
court and anything stated at, or a document or thing produced at, a 29
s 202 131 s 202
Crime and Misconduct Bill 2001
commission hearing (the "evidence") is relevant evidence for the defence 1
against the charge. 2
(2) On being asked by the defendant or the defendant's lawyer, the 3
commission must give the evidence to the defendant or the defendant's 4
lawyer unless the court makes an order under subsection (4). 5
(3) A request under subsection (2) may generally identify evidence to be 6
given to the defendant or defendant's lawyer. 7
(4) On application by an authorised commission officer, the court must 8
order that the evidence not be given to the defendant or defendant's lawyer 9
if the court considers that it would be unfair to a person or contrary to the 10
public interest to do so. 11
(5) Evidence given to a defendant or a defendant's lawyer under 12
subsection (2) may be used only for the defence to the charge. 13
(6) A person who uses the evidence as permitted under subsection (5) 14
does not contravene section 202. 15
202 Publication of names, evidence etc. 16
(1) A person must not, without the commission's written consent or 17
contrary to the commission's order, publish-- 18
(a) an answer given, or document or thing produced, at a 19
commission hearing, or anything about the answer, document or 20
thing; or 21
(b) information that might enable the existence or identity of a 22
person who is about to give or has given evidence before the 23
commission ("witness") at a hearing to be ascertained. 24
Maximum penalty--85 penalty units or 1 year's imprisonment. 25
(2) A person does not contravene subsection (1) if any of the following 26
applies to the publication-- 27
(a) the answer given, or document or thing produced, was given or 28
produced at a public hearing and the publication is not contrary 29
to the commission's order; 30
(b) the witness appeared at a public hearing and the publication is 31
not contrary to the commission's order; 32
(c) the publication is made-- 33
s 203 132 s 203
Crime and Misconduct Bill 2001
(i) for the purpose of defending a charge of an offence and is 1
relevant to the defence; and 2
(ii) to a person charged with the offence or a lawyer 3
representing a person charged with the offence; 4
(d) the publication is made for the purpose of making a submission 5
to the parliamentary committee about the conduct of the 6
commission's investigation; 7
(e) the publication is made for the purposes of a disciplinary charge 8
or to start a prosecution for an offence. 9
(3) Also, a person does not contravene subsection (1)(b) if-- 10
(a) the person is the witness, or the publication is made with the 11
witness's implied or express consent; or 12
(b) the information mentioned in the provision has been generally 13
made known by the witness or by the commission. 14
(4) The commission may apply to a Supreme Court judge for an order 15
prohibiting a publication mentioned in subsection (2)(e). 16
(5) In this section-- 17
"publish" includes publish to a single person, whether the publication is 18
made orally or in writing. 19
203 Protection of members, legal representatives and witnesses 20
(1) The presiding officer of a commission hearing has, in the 21
performance of the presiding officer's duties for the hearing, the same 22
protection and immunity as a Supreme Court judge. 23
(2) A lawyer or other person when appearing for someone at a 24
commission hearing has the same protection and immunity as a barrister 25
appearing for a party in a proceeding in the Supreme Court. 26
(3) A person required to attend or appearing at a commission hearing as 27
a witness has the same protection as a witness in a proceeding in the 28
Supreme Court. 29
(4) No criminal or civil liability, other than liability under this Act, 30
attaches to a person for compliance, or purported compliance in good faith, 31
with a requirement made under this Act. 32
(5) In particular, if a person produces a document or thing under a notice 33
to discover or a notice to produce, no civil liability attaches to the person 34
s 204 133 s 205
Crime and Misconduct Bill 2001
for producing the document or thing, whether the liability would arise 1
under a contract or otherwise. 2
204 Allowances for witness 3
(1) A person attending a commission hearing under an attendance notice, 4
or otherwise as a witness at the request of the commission, is entitled to be 5
paid the allowances and expenses that would be payable to the person if the 6
person were appearing as a witness in a hearing before a Magistrates Court. 7
(2) The allowances and expenses are payable by the commission. 8
205 Legal assistance for crime investigations 9
(1) This section applies to a person who-- 10
(a) has been given a notice to attend a commission hearing for a 11
crime investigation; or 12
(b) wishes to appeal, or has appealed, to the Supreme Court under 13
section 195 against a decision of the presiding officer at a hearing 14
for a crime investigation.62 15
(2) The person may apply to the Attorney-General for financial help to 16
enable the person to obtain legal services in connection with the hearing or 17
appeal. 18
(3) The Attorney-General may approve the financial help if the Attorney- 19
General considers-- 20
(a) a person may suffer substantial hardship if help is not given; or 21
(b) in the particular circumstances, help should be given. 22
(4) The Attorney-General may decide the level of financial help and the 23
conditions on which it is to be provided. 24
(5) The cost of the financial help must be met by the commission. 25
62 Section 195 (Appeals to Supreme Court)
s 206 134 s 207
Crime and Misconduct Bill 2001
CHAPTER 5--OFFENCES 1
206 Application of Criminal Code 2
(1) The Criminal Code, sections 120, 123, 123A, 124, 125, 126, 127, 3
128, 129 and 13063 ("identified provisions") apply, with necessary 4
changes, to commission hearings under this Act. 5
(2) Without limiting subsection (1), for applying the identified 6
provisions to a commission hearing-- 7
(a) the hearing is a judicial proceeding; and 8
(b) the presiding officer conducting the hearing is the holder of a 9
judicial office; and 10
(c) a reference to judicial capacity is a reference to capacity as a 11
presiding officer conducting a hearing; and 12
(d) a reference to the giving or withholding of testimony is a 13
reference to the giving or withholding of information; and 14
(e) a reference to a witness is a reference to a person from whom the 15
presiding officer conducting the hearing may obtain information; 16
and 17
(f) a reference to being required or used in evidence is a reference to 18
being required or used for the obtaining of information; and 19
(g) a reference to being summoned to attend as a witness is a 20
reference to being asked or required to attend to give 21
information; and 22
(h) a reference to a tribunal is a reference to the presiding officer 23
conducting the hearing. 24
207 Pretending to be a commission officer 25
A person must not pretend to be a commission officer. 26
Maximum penalty--85 penalty units or 1 year's imprisonment. 27
63 The Criminal Code, sections 120 (Judicial corruption), 123 (Perjury), 123A
(Perjury--contradictory statements), 124 (Punishment of perjury), 125 (Evidence
on charge of perjury), 126 (Fabricating evidence), 127 (Corruption of witnesses),
128 (Deceiving witnesses), 129 (Destroying evidence) and 130 (Preventing
witnesses from attending)
s 208 135 s 210
Crime and Misconduct Bill 2001
208 Abuse of office in commission 1
(1) A commission officer who corruptly asks for, receives or obtains, or 2
agrees or attempts to receive or obtain, property or a benefit of any kind 3
with a view to the officer neglecting his or her duty, or being influenced in 4
the discharge of his or her duty commits a crime. 5
Maximum penalty--595 penalty units or 7 years imprisonment. 6
(2) A commission officer who uses or takes advantage of his or her office 7
to improperly gain benefit or advantage for himself or herself or someone 8
else or to facilitate the commission of an offence commits a crime. 9
Maximum penalty--595 penalty units or 7 years imprisonment. 10
(3) A person contravening subsection (1) or (2) can not be arrested 11
without warrant. 12
209 Bribery of commission officer 13
(1) A person who corruptly gives to, confers on, or procures for, a 14
commission officer property or a benefit of any kind, or promises to do so, 15
with a view to-- 16
(a) the officer neglecting the officer's duty; or 17
(b) influencing the officer in the discharge of the officer's duty; or 18
(c) the officer using or taking advantage of his or her office to 19
facilitate the commission of an offence; 20
commits a crime. 21
Maximum penalty--595 penalty units or 7 years imprisonment. 22
(2) A person contravening subsection (1) can not be arrested without 23
warrant. 24
210 Obstruction or delay of commission procedures 25
A person who, with intent to obstruct or delay the performance of a 26
function by the commission or the exercise of a power by a commission 27
officer-- 28
(a) fabricates any relevant record or thing; or 29
(b) destroys or alters any relevant record or thing; or 30
(c) sends any relevant record or thing out of the State; 31
s 211 136 s 213
Crime and Misconduct Bill 2001
commits a misdemeanour. 1
Maximum penalty--255 penalty units or 3 years imprisonment. 2
211 Injury or detriment to witness 3
A person who injures or threatens to injure, or causes or threatens to 4
cause detriment of any kind, to another person because-- 5
(a) the person, or someone else, appeared as a witness before the 6
commission; or 7
(b) the person, or someone else, gave, or is to give, evidence before 8
the commission; or 9
(c) the person, or someone else, complied with, or is about to 10
comply with, a notice under section 75;64 11
commits a misdemeanour. 12
Maximum penalty--255 penalty units or 3 years imprisonment. 13
212 Offence of victimisation 14
A person must not-- 15
(a) prejudice, or threaten to prejudice, the safety or career of any 16
person; 17
(b) intimidate or harass, or threaten to intimidate or harass, any 18
person; 19
(c) do an act that is, or is likely to be, to the detriment of any person; 20
because the person mentioned in paragraph (a), (b) or (c), or someone else, 21
gave evidence to, or helped, the commission in the performance of its 22
functions. 23
Maximum penalty--85 penalty units. 24
213 Secrecy 25
(1) This section applies to a person who is or was-- 26
(a) a relevant official; or 27
64 Section 75 (Notice to discover information)
s 213 137 s 213
Crime and Misconduct Bill 2001
(b) a member of the reference committee; or 1
(c) a person to whom information is given either by the commission 2
or by a person mentioned in paragraph (a) or (b) on the 3
understanding, express or implied, that the information is 4
confidential. 5
(2) A person must not make a record of, or wilfully disclose, information 6
that has come to the person's knowledge because the person is or was a 7
person to whom this section applies. 8
Maximum penalty--85 penalty units or 1 year's imprisonment. 9
(3) However, a person does not contravene subsection (2) if-- 10
(a) in the case of a record-- 11
(i) the record is made for the purposes of the commission, this 12
Act, the parliamentary committee, the parliamentary 13
commissioner or an investigation of an alleged 14
contravention of this section; or 15
(ii) the making of the record was lawful under a repealed Act; or 16
(b) in the case of a disclosure-- 17
(i) the disclosure is made-- 18
(A) for the purposes of the commission, this Act, the 19
parliamentary committee, the parliamentary 20
commissioner or an investigation of an alleged 21
contravention of this section; or 22
(B) at the direction of the parliamentary commissioner 23
under chapter 6, part 4;65 or 24
(ii) the disclosure was lawful under a repealed Act; or 25
(c) in the case of a record or a disclosure--the information was 26
publicly available. 27
(4) A person may not be required to produce in any court a document 28
that has come into the person's possession, or to disclose to any court a 29
matter or thing that has come to the person's notice, because the person is 30
or was a person to whom this section applies, unless-- 31
65 Chapter 6 (Administration), part 4 (Parliamentary crime and misconduct
commissioner)
s 214 138 s 214
Crime and Misconduct Bill 2001
(a) the commission, or a commissioner in the commissioner's 1
official capacity, is a party to the relevant proceeding; or 2
(b) it is necessary to produce the document or disclose the matter or 3
thing-- 4
(i) to give effect to this Act; or 5
(ii) for a prosecution started as a result of an investigation. 6
(5) In this section-- 7
"court" includes a tribunal, authority or person having power to require the 8
production of documents or the answering of questions. 9
"produce" includes permit access to. 10
"relevant official" means a person who is or was one of the following-- 11
(a) a commission officer; 12
(b) a member of the parliamentary committee; 13
(c) the parliamentary commissioner; 14
(d) an officer of the parliamentary service; 15
(e) a person appointed, engaged or assigned to help the 16
parliamentary committee or the parliamentary commissioner; 17
(f) the public interest monitor; 18
(g) a person mentioned in section 132 of the repealed Criminal 19
Justice Act 1989; 20
(h) a person to whom section 126 of the repealed Crime Commission 21
Act 1997 applied. 22
"repealed Act" means-- 23
(a) repealed Criminal Justice Act 1989; 24
(b) repealed Crime Commission Act 1997. 25
214 Unauthorised publication of commission reports 26
A person must not publish or give a commission report to which 27
section 6966 applies to anyone unless-- 28
66 Section 69 (Commission reports to be tabled)
s 215 139 s 216
Crime and Misconduct Bill 2001
(a) the report has been printed by order of the Legislative Assembly 1
or is taken to have been so printed; or 2
(b) its publication is otherwise authorised under this Act. 3
Maximum penalty--85 penalty units or 1 year's imprisonment. 4
215 Resisting exercise of powers 5
A person must not wilfully obstruct a commission officer in the exercise 6
of a power conferred on the officer by this Act. 7
Maximum penalty--85 penalty units or 1 year's imprisonment. 8
216 Frivolous or vexatious complaint 9
(1) The commission may give notice to a person that a complaint about, 10
or information or matter (also a "complaint") involving, misconduct made 11
by the person to the commission will not be investigated or further 12
investigated by the commission because it appears-- 13
(a) to concern frivolous matter; or 14
(b) to have been given or made vexatiously. 15
(2) The notice must advise the person that if the person again makes the 16
same or substantially the same complaint to the commission the person 17
commits an offence punishable by a fine of 85 penalty units or 1 year's 18
imprisonment or both. 19
(3) A person who, after receiving the notice mentioned in subsection (2), 20
again makes the same or substantially the same information to the 21
commission commits an offence. 22
Maximum penalty--85 penalty units or 1 year's imprisonment. 23
(4) It is a defence to prove that the complaint did not concern frivolous 24
matter and was not given or made vexatiously. 25
(5) Without limiting the ways a person may make a complaint to the 26
commission, a person makes a complaint to the commission if the person 27
makes the complaint to an entity that is under an obligation to refer the 28
complaint to the commission. 29
(6) In this section-- 30
"make", a complaint to the commission, includes cause a complaint to be 31
referred to the commission. 32
s 217 140 s 218
Crime and Misconduct Bill 2001
217 False or misleading statements 1
(1) A person must not state anything to the commission the person 2
knows is false or misleading in a material particular. 3
Maximum penalty--85 penalty units or 1 year's imprisonment. 4
(2) It is enough for a complaint for an offence against subsection (1) to 5
state the statement made was `false or misleading' to the person's 6
knowledge, without specifying which. 7
(3) A court may order that a person who contravenes subsection (1) must 8
pay an amount of compensation to the commission, whether or not the 9
court also imposes a penalty for the contravention. 10
(4) The amount of the compensation must be a reasonable amount for 11
the cost of any investigation made or other action taken by the commission 12
because of the false statement. 13
(5) Without limiting the ways a person may state a thing to the 14
commission, a person states a thing to the commission if the person states 15
the thing to an entity that is under an obligation to advise the commission 16
of the thing, whether or not the person intended that the commission be 17
advised of the statement. 18
218 False or misleading documents 19
(1) A person must not give the commission a document containing 20
information the person knows is false or misleading in a material particular. 21
Maximum penalty--85 penalty units or 1 year's imprisonment. 22
(2) Subsection (1) does not apply to a person if the person, when giving 23
the document-- 24
(a) tells the commission, to the best of the person's ability, how it is 25
false or misleading; and 26
(b) if the person has, or can reasonably obtain, the correct 27
information, gives the correct information. 28
(3) It is enough for a complaint for an offence against subsection (1) to 29
state the document was `false or misleading' to the person's knowledge, 30
without specifying which. 31
(4) A court may order that a person who contravenes subsection (1) must 32
pay an amount of compensation to the commission, whether or not the 33
court also imposes a penalty for the contravention. 34
s 219 141 s 219
Crime and Misconduct Bill 2001
(5) The amount of the compensation must be a reasonable amount for 1
the cost of any investigation made or other action taken by the commission 2
because of the false document. 3
(6) Without limiting the ways a person may give a document to the 4
commission, a person gives a document to the commission if the person 5
gives the document to an entity that is under an obligation to give the 6
document to the commission, whether or not the person intended that the 7
document be given to the commission. 8
(7) In this section-- 9
"give", a document to the commission, includes cause the document to be 10
given to the commission. 11
219 Proceedings for an offence 12
(1) Subject to subsection (2), a proceeding for an offence against this 13
Act must be taken in a summary way under the Justices Act 1886 within 14
the later of the following-- 15
(a) 1 year after the offence is committed; 16
(b) 6 months after the commission of the offence comes to the 17
complainant's knowledge, but within 2 years after the 18
commission of the offence. 19
(2) A proceeding for an indictable offence may, at the election of the 20
prosecution, be taken-- 21
(a) by way of summary proceedings under subsection (1); or 22
(b) on indictment. 23
(3) A proceeding against a person for an indictable offence must be 24
before a magistrate if it is a proceeding-- 25
(a) for the summary conviction of the person; or 26
(b) for an examination of witnesses in relation to the charge. 27
(4) If a proceeding for an indictable offence is brought before a justice 28
who is not a magistrate, jurisdiction is limited to taking or making a 29
procedural action or order within the meaning of the Justices of the Peace 30
and Commissioners for Declarations Act 1991. 31
s 219 142 s 219
Crime and Misconduct Bill 2001
(5) If-- 1
(a) a person charged with an indictable offence asks at the start of a 2
summary proceeding for the offence that the charge be 3
prosecuted on indictment; or 4
(b) the magistrate hearing a charge of an indictable offence considers 5
the charge should be prosecuted on indictment; 6
the magistrate-- 7
(c) must not decide the charge as a summary offence; and 8
(d) must proceed by way of a committal proceeding. 9
(6) If a magistrate acts under subsection (5)-- 10
(a) any plea of the person charged, made at the start of the 11
proceeding, must be disregarded; and 12
(b) any evidence brought in the proceeding before the magistrate 13
decided to act under subsection (5) is taken to be evidence in the 14
proceeding for the committal of the person for trial or sentence; 15
and 16
(c) before committing the person for trial or sentence, the magistrate 17
must make a statement to the person under the Justices Act 1886, 18
section 104(2)(b).67 19
(7) The maximum penalty that may be imposed on a summary 20
conviction of an indictable offence is 85 penalty units or 1 year's 21
imprisonment. 22
67 Justices Act 1886, section 104 (Proceedings upon an examination of witnesses in
relation to an indictable offence)
s 220 143 s 222
Crime and Misconduct Bill 2001
CHAPTER 6--ADMINISTRATION 1
PART 1--CRIME AND MISCONDUCT COMMISSION 2
Division 1--Establishment of Crime and Misconduct Commission 3
220 Establishment 4
The bodies corporate known as the Criminal Justice Commission 5
(established under the repealed Criminal Justice Act 1989) and the 6
Queensland Crime Commission (established under the repealed Crime 7
Commission Act 1997) are merged into a single body corporate and 8
continued in existence under this Act under the name `Crime and 9
Misconduct Commission'. 10
221 Commission has common seal etc. 11
(1) The Crime and Misconduct Commission, as established under this 12
Act-- 13
(a) has a common seal; and 14
(b) may sue and be sued in its corporate name. 15
(2) Judicial notice must be taken of the imprint of commission's seal 16
appearing on a document and the document must be presumed to have been 17
properly sealed, unless the contrary is proved. 18
222 Excluded matter for Corporations Act 19
The commission is declared to be an excluded matter for the 20
Corporations Act, section 5F,68 in relation to the following provisions of the 21
Corporations Act-- 22
(a) parts 2D.1 and 2D.6; 23
68 Corporations Act, section 5F (Corporations legislation does not apply to matters
declared by State or Territory law to be an excluded matter)
s 223 144 s 225
Crime and Misconduct Bill 2001
(b) chapters 2K and 2L; 1
(c) parts 5.7, 5.7B, 5.9 and 5B.2.69 2
Division 2--Commissioners 3
Subdivision 1--Membership and appointment 4
223 Membership of the commission 5
The commission is to consist of the following 5 commissioners-- 6
(a) a full-time commissioner who is the chairperson; 7
(b) 4 part-time commissioners who are community representatives. 8
224 Qualifications for appointment as the chairperson 9
A person is qualified for appointment as the chairperson if the person has 10
served as, or is qualified for appointment as, a judge of-- 11
(a) the Supreme Court of Queensland; or 12
(b) the Supreme Court of another State; or 13
(c) the High Court of Australia; or 14
(d) the Federal Court of Australia. 15
225 Qualifications for appointment as a part-time commissioner 16
A person is qualified for appointment as a part-time commissioner if the 17
person-- 18
(a) is in actual practice as a lawyer and has a demonstrated interest 19
in civil liberties; or 20
(b) has 1 or more of the following-- 21
69 Corporations Act, part 2D.1 (Duties and powers), part 2D.6 (Disqualification from
managing corporations), chapter 2K (Charges), chapter 2L (Debentures), part 5.7
(Winding up bodies other than companies), part 5.7B (Recovering property or
compensation for the benefit of creditors of insolvent company), part 5.9
(Miscellaneous) and part 5B.2 (Registrable bodies)
s 226 145 s 228
Crime and Misconduct Bill 2001
(i) qualifications or expertise in-- 1
(A) public sector management and review; or 2
(B) criminology; or 3
(C) sociology; or 4
(D) research related to crime or crime prevention; 5
(ii) community service experience, or experience of community 6
standards and expectations, relating to public sector officials 7
and public sector administration. 8
226 Disqualification as commissioner 9
An ineligible person can not be appointed as, or continue as, a 10
commissioner. 11
227 Advertising and nominations for appointment 12
(1) The Minister must advertise nationally for applications from suitably 13
qualified persons to be considered for selection as the chairperson. 14
(2) The Minister must advertise throughout the State for applications 15
from suitably qualified persons to be considered for selection as part-time 16
commissioners, other than the commissioner mentioned in section 225(a)70 17
(the "civil liberties commissioner"). 18
(3) The Minister must ask the Bar Association of Queensland and the 19
Queensland Law Society to each nominate 2 persons having appropriate 20
qualifications for appointment as the civil liberties commissioner. 21
(4) Subsections (1), (2) and (3) do not apply to the reappointment of a 22
person as a commissioner. 23
228 Consultation before nominating persons for appointment 24
(1) Before nominating a person for appointment as a commissioner, the 25
Minister must first consult with-- 26
(a) the parliamentary committee; or 27
70 Section 225 (Qualifications for appointment as a part-time commissioner)
s 229 146 s 230
Crime and Misconduct Bill 2001
(b) if there is no parliamentary committee at the relevant time, the 1
Leader of the Opposition and the Leader in the Legislative 2
Assembly of any other political party represented in the 3
Assembly by at least 5 members. 4
(2) If the appointment is as a part-time commissioner, the Minister must 5
also consult with the chairperson about the proposed appointment. 6
(3) If the Minister consults the parliamentary committee about a 7
proposed appointment, the Minister may nominate a person for 8
appointment as a commissioner only if the nomination is made with the 9
bipartisan support of the parliamentary committee. 10
229 Appointment of chairperson 11
(1) The chairperson is to be appointed on a full-time basis by the 12
Governor in Council. 13
(2) The chairperson is to be appointed under this Act, and not under the 14
Public Service Act 1996. 15
230 Appointment of part-time commissioners 16
(1) The part-time commissioners are to be appointed by the Governor in 17
Council. 18
(2) At least 1 of the part-time commissioners must have the qualification 19
mentioned in section 225(a).71 20
(3) The remaining part-time commissioners must have 1 or more of the 21
qualifications mentioned in section 225(b). 22
(4) At least 1 of the part-time commissioners must be a woman. 23
(5) The part-time commissioners are to be appointed under this Act, and 24
not under the Public Service Act 1996. 25
71 Section 225 (Qualifications for appointment as a part-time commissioner)
s 231 147 s 233
Crime and Misconduct Bill 2001
Subdivision 2--Other provisions about appointment 1
231 Duration of appointment 2
(1) A commissioner holds office for the term, not longer than 5 years, 3
stated in the instrument of the commissioner's appointment. 4
(2) A commissioner must not hold office in the commission as a 5
commissioner for more than 5 years in total. 6
(3) Subsection (2) has effect despite the Acts Interpretation Act 1954, 7
section 25(1)(c).72 8
232 Terms of appointment 9
(1) A commissioner is to be paid the remuneration and allowances 10
decided by the Governor in Council. 11
(2) To the extent that a commissioner's terms and conditions are not 12
provided for by this Act, a commissioner holds office on the terms and 13
conditions decided by the Governor in Council. 14
233 Preservation of rights 15
(1) This section applies if-- 16
(a) a person is appointed as the chairperson; and 17
(b) the person resigns the person's role as a public service officer in 18
order to accept the appointment. 19
(2) The person retains and is entitled to all rights that have accrued to the 20
person because of the person's employment as a public service officer, or 21
that would accrue in the future to the person because of that employment, 22
as if service as the chairperson were a continuation of service as a public 23
service officer. 24
(3) At the end of the person's term of office or on resignation-- 25
(a) the person is entitled to be appointed to an office in the public 26
service at a salary level not less than the current salary level of an 27
72 Acts Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers)
s 234 148 s 236
Crime and Misconduct Bill 2001
office equivalent to the office the person held before being 1
appointed as the chairperson; and 2
(b) the person's service as the chairperson is to be regarded as 3
service of a like nature in the public service for deciding the 4
person's rights as a public service officer. 5
234 Leave of absence 6
The Minister may grant leave of absence to a commissioner on the terms 7
the Minister considers appropriate. 8
235 Resignation 9
A commissioner may resign by signed notice given to the Minister. 10
236 Termination of appointment 11
(1) The Governor in Council may terminate the appointment of a 12
commissioner if the commissioner-- 13
(a) becomes incapable of satisfactorily performing the duties of 14
office; or 15
(b) is absent from 3 consecutive meetings of the commission, 16
without the commission's prior leave and without reasonable 17
excuse. 18
(2) The Governor in Council must terminate the appointment of the 19
chairperson if the chairperson engages in paid employment outside the 20
chairperson's duties of office without the Minister's approval. 21
(3) The Governor may terminate the appointment of a commissioner if-- 22
(a) a recommendation to the Legislative Assembly to terminate the 23
appointment is made with the bipartisan support of the 24
parliamentary committee; and 25
(b) the Legislative Assembly, by resolution, approves the termination 26
of the appointment. 27
(4) The office of a commissioner is vacated if the commissioner becomes 28
an ineligible person. 29
s 237 149 s 238
Crime and Misconduct Bill 2001
237 Acting chairperson 1
(1) The Governor in Council may appoint a person qualified for 2
appointment as the chairperson to act as the chairperson-- 3
(a) during a vacancy in the office; or 4
(b) during any period, or all periods, when the chairperson is absent 5
from duty or from the State or, for another reason, can not 6
perform the duties of the office. 7
(2) Sections 227 and 22873 do not apply to the appointment of a person to 8
act as the chairperson. 9
238 Disclosure of interests by commissioners 10
(1) The commission must keep a register of each commissioner's 11
pecuniary interests and personal or political associations. 12
(2) Each commissioner must give to the commission and the Minister-- 13
(a) as soon as practicable after the person's appointment--a written 14
summary of the person's pecuniary interests and personal or 15
political associations at the time of the person's appointment; and 16
(b) within 30 days after any substantial change in the person's 17
pecuniary interests or personal or political associations--notice 18
of the change and an updated written summary of the person's 19
pecuniary interests and personal or political associations. 20
(3) The register kept under subsection (1) must be updated at least once 21
during each 12 month period of a commissioner's term of office. 22
(4) In this section-- 23
"personal or political association", of a commissioner, means a personal 24
or political association that might influence the commissioner in the 25
discharge of the commissioner's duties. 26
73 Sections 227 (Advertising and nominations for appointment) and 228 (Consultation
before nominating persons for appointment)
s 239 150 s 244
Crime and Misconduct Bill 2001
Division 3--Assistant commissioners and senior officers 1
Subdivision 1--Appointment 2
239 Assistant commissioner, crime and assistant commissioner, 3
misconduct 4
There is to be an assistant commissioner, crime and an assistant 5
commissioner, misconduct. 6
240 Qualifications for appointment as an assistant commissioner 7
A person is qualified for appointment as an assistant commissioner if the 8
person qualified to be appointed as the chairperson. 9
241 Disqualification as an assistant commissioner 10
An ineligible person can not be appointed as, or continue as, an assistant 11
commissioner. 12
242 Advertising and nominations for appointment 13
(1) The Minister must advertise nationally for applications from suitably 14
qualified persons to be considered for selection as the assistant 15
commissioner, crime or the assistant commissioner, misconduct. 16
(2) Subsection (1) does not apply to the reappointment of a person as an 17
assistant commissioner. 18
243 Consultation before nominating persons for appointment 19
Before nominating a person for appointment as an assistant 20
commissioner, the Minister will consult with the Leader of the Opposition 21
and the chairperson about the proposed appointment. 22
244 Appointment of assistant commissioners 23
(1) The assistant commissioners are to be appointed on a full-time basis 24
by the Governor in Council. 25
s 245 151 s 247
Crime and Misconduct Bill 2001
(2) The assistant commissioners are to be appointed under this Act and 1
not under the Public Service Act 1996. 2
245 Senior officers 3
(1) The commission may employ the senior officers necessary to enable 4
the commission to perform its functions. 5
(2) Senior officers are to be employed under this Act and not under the 6
Public Service Act 1996. 7
246 Disqualification as a senior officer 8
An ineligible person can not be appointed as, or continue as, a senior 9
officer. 10
Subdivision 2--Other provisions about appointment 11
247 Duration of appointment 12
(1) An assistant commissioner or senior officer holds office for the term, 13
not longer than 5 years, stated in the person's contract of employment. 14
(2) A person appointed as an assistant commissioner or senior officer 15
may be appointed for a further term if the commission considers that-- 16
(a) the person's performance as an assistant commissioner or senior 17
officer has been of the highest standard; and 18
(b) the person is likely to continue to contribute at a high standard to 19
the commission's performance. 20
(3) However, an assistant commissioner or senior officer must not hold 21
office in the commission as an assistant commissioner or senior officer for 22
more than 8 years in total. 23
(4) Subsection (3) has effect despite the Acts Interpretation Act 1954, 24
section 25(1)(c).74 25
(5) In this section-- 26
74 Acts Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers)
s 248 152 s 249
Crime and Misconduct Bill 2001
"senior officer" means a senior officer whose principal duties relate 1
directly to the performance of the commission's prevention, crime, 2
misconduct, research or intelligence functions or the giving of legal 3
advice to the commission, but does not include a senior officer whose 4
duties support the commission's functions. 5
6
Examples of senior officers whose duties support the commission's functions--
7
1. An officer whose principal duties relate to information technology matters.
8
2. An officer whose principal duties relate to financial matters.
9
3. An officer whose principal duties relate to human resource management matters.
248 Basis of employment for assistant commissioners or senior officers 10
(1) Each person appointed as an assistant commissioner or senior officer 11
must enter into a written contract of employment with the commission. 12
(2) The conditions of the person's contract must be approved by the 13
Minister. 14
(3) The person's conditions of employment are governed by this Act and 15
the contract. 16
(4) The contract of employment must state-- 17
(a) subject to section 247, the term, not longer than 5 years, of the 18
person's employment; and 19
(b) the person's duties; and 20
(c) that the person must meet any performance standards set by the 21
chairperson; and 22
(d) the remuneration to which the person is entitled; and 23
(e) that the person may resign by signed notice of resignation given 24
to the chairperson at least 1 month before the notice is to take 25
effect; and 26
(f) that the person's appointment and contract of employment may 27
be terminated by the chairperson by notice signed by the 28
chairperson and given to the person at least 1 month before it is 29
to take effect. 30
249 Preservation of rights 31
(1) This section applies if-- 32
s 250 153 s 250
Crime and Misconduct Bill 2001
(a) a person is appointed as an assistant commissioner or senior 1
officer; and 2
(b) the person resigns the person's role as a public service officer in 3
order to accept the appointment. 4
(2) The person retains and is entitled to all rights that have accrued to the 5
person because of the person's employment as a public service officer, or 6
that would accrue in the future to the person because of that employment, 7
as if service as an assistant commissioner or senior officer were a 8
continuation of service as a public service officer. 9
(3) At the end of the person's term of office or on resignation-- 10
(a) the person is entitled to be appointed to an office in the public 11
service at a salary level not less than the current salary level of an 12
office equivalent to the office the person held before being 13
appointed as an assistant commissioner or senior officer; and 14
(b) the person's service as an assistant commissioner or senior 15
officer is to be regarded as service of a like nature in the public 16
service for deciding the person's rights as a public service officer. 17
250 Acting assistant commissioner 18
(1) The Minister may appoint a person qualified for appointment as the 19
chairperson to act as an assistant commissioner-- 20
(a) during a vacancy in the office; or 21
(b) during any period, or all periods, when an assistant 22
commissioner is absent from duty or from the State or, for 23
another reason, can not perform the duties of the office. 24
(2) Sections 227 and 22875 do not apply to the appointment of a person to 25
act as the chairperson. 26
75 Sections 227 (Advertising and nominations for appointment) and 228 (Consultation
before nominating persons for appointment)
s 251 154 s 254
Crime and Misconduct Bill 2001
Division 4--Roles of chairperson and assistant commissioners 1
251 Role of chairperson 2
(1) The chairperson is the commission's chief executive officer and its 3
accountable officer for the Financial Administration and Audit Act 1977. 4
(2) Without limiting the chairperson's responsibilities, functions or 5
powers, the chairperson, subject to this Act and the commission, is 6
responsible for the administration of the commission and the proper 7
performance of the commission's functions. 8
252 Role of assistant commissioner, crime 9
The assistant commissioner, crime is responsible to the chairperson for 10
the proper performance of the commission's crime functions. 11
253 Role of assistant commissioner, misconduct 12
The assistant commissioner, misconduct is responsible to the 13
chairperson for the proper performance of the commission's misconduct 14
functions. 15
Division 5--Commission staff and agents 16
254 Commission staff 17
(1) The commission may employ the staff necessary to enable the 18
commission to perform its functions. 19
(2) The staff are to be employed under this Act and not under the Public 20
Service Act 1996. 21
(3) The staff are to be paid the remuneration and allowances decided by 22
the Minister. 23
(4) Staff employed at or above a level decided by the commission in 24
consultation with the Minister must be employed under a written contract 25
of employment with the commission. 26
(5) Staff employed under a written contract of employment are not 27
subject to any industrial instrument under the Industrial Relations Act 1999 28
or any determination or rule of an industrial tribunal. 29
s 255 155 s 257
Crime and Misconduct Bill 2001
(6) The staff are subject to the direction and control of the chairperson. 1
255 Secondment of officers 2
(1) The chairperson may arrange with the chief executive of a 3
department, or with another unit of public administration, for the services 4
of officers or employees of the department or other unit to be made 5
available ("seconded") to the commission. 6
(2) However, an arrangement under subsection (1) is not effective unless 7
the Minister and the Minister responsible for the relevant unit of public 8
administration or, if the relevant unit is the parliamentary service, the 9
Speaker, approve the arrangement. 10
(3) An officer or employee seconded to the commission under this 11
section is subject to the direction and control of the chairperson. 12
(4) However, if police officers are seconded to the commission, their 13
efficient deployment is to be the joint responsibility of the chairperson and 14
the most senior police officer seconded to the commission. 15
(5) This section does not apply to the establishment of a police task force 16
or to police officers who are part of a police task force. 17
256 Engagement of agents 18
(1) To meet temporary circumstances, the commission may engage 19
suitably qualified persons to provide it with services, information or 20
advice. 21
(2) A person engaged under subsection (1) is engaged on the terms and 22
conditions decided by the commission and not under the Public Service Act 23
1996. 24
257 Commission officers 25
(1) This section applies to commission officers who are employed by the 26
commission under section 254 or seconded to the commission under 27
section 255. 28
(2) The commission may issue directions for the performance of duties 29
by the commission officers. 30
s 258 156 s 259
Crime and Misconduct Bill 2001
(3) A person who is a member of a relevant office and who is seconded 1
to the commission under section 255 remains a member of the office from 2
which the person was seconded. 3
(4) Subsection (3) is subject to subsection (2) and section 254(4). 4
(5) A person mentioned in subsection (3)-- 5
(a) is entitled to the person's existing and accruing rights as if 6
employment as an officer of the commission were a continuation 7
of employment in the relevant office; and 8
(b) continues to be required to contribute to any superannuation 9
scheme to which the person is required to contribute as a member 10
of the office. 11
258 Superannuation schemes 12
(1) The commission may-- 13
(a) establish or amend superannuation schemes; or 14
(b) join in establishing or amending superannuation schemes; or 15
(c) take part in superannuation schemes. 16
(2) Subsection (1) does not apply to commission officers whose services 17
are being used under section 256(2). 18
(3) The auditor-general must audit the schemes. 19
(4) Subsection (3) is subject to the Financial Administration and Audit 20
Act 1977, part 6.76 21
Division 6--Performance accountability 22
259 Budget and performance 23
(1) For each financial year, the commission must develop, adopt and 24
submit to the Minister a budget not later than the day the Minister directs. 25
(2) A budget has no effect until approved by the Minister. 26
76 Financial Administration and Audit Act 1977, part 6 (Audit of Consolidated Fund
and Public Sector Entities)
s 260 157 s 262
Crime and Misconduct Bill 2001
(3) During a financial year the commission may develop, adopt and 1
submit to the Minister amendments to its budget. 2
(4) An amendment has no effect until approved by the Minister. 3
(5) The commission must comply with its budget. 4
260 Performance 5
(1) The Minister has a responsibility to ensure that the commission 6
operates to best practice standards. 7
(2) To help the Minister discharge that responsibility, the commission 8
must report to the Minister, when and in the way required by the Minister, 9
on the efficiency, effectiveness, economy and timeliness of the commission 10
and its systems and processes, including operational processes. 11
(3) The report must be accompanied by any financial or other reports the 12
Minister requires to enable the Minister to assess the efficiency, 13
effectiveness, economy or timeliness of the commission, including, in 14
particular, the timeliness with which the commission deals with 15
complaints. 16
(4) The commission must comply with a Ministerial request under this 17
section. 18
(5) This section does not require the commission to give the Minister any 19
details that would, if given, prejudice a current sensitive operation of or 20
investigation by the commission. 21
Division 7--Meetings and other business of commission 22
261 Conduct of business 23
Subject to this division, the commission may conduct its business, 24
including its meetings, in the way it considers appropriate. 25
262 Assistant commissioners to attend meetings 26
The assistant commissioners may attend commission meetings, but are 27
not entitled to vote at a meeting. 28
s 263 158 s 266
Crime and Misconduct Bill 2001
263 Times and places of meetings 1
(1) Commission meetings are to be held at the times and places the 2
chairperson decides. 3
(2) However, the chairperson must call a meeting if asked, in writing, to 4
do so by the Minister or at least the number of commissioners forming a 5
quorum for the commission. 6
264 Quorum 7
(1) A quorum for a commission meeting is any 3 commissioners. 8
(2) However, if a report is to be presented to the commission for 9
adoption, the quorum for the meeting is any 4 commissioners. 10
265 Presiding at meetings 11
(1) The chairperson is to preside at all commission meetings at which the 12
chairperson is present. 13
(2) If the chairperson is absent from a commission meeting, the 14
commissioner chosen by the commissioners present is to preside. 15
266 Conduct of meetings 16
(1) A question at a commission meeting is decided by a majority of the 17
votes of the commissioners present. 18
(2) Each commissioner present at the meeting has a vote on each 19
question to be decided and, if the votes are equal, the person presiding also 20
has a casting vote. 21
(3) A commissioner present at the meeting who abstains from voting is 22
taken to have voted for the negative. 23
(4) The commission may hold meetings, or allow commissioners or 24
assistant commissioners to take part in its meetings, by using any 25
technology allowing reasonably contemporaneous and continuous 26
communication between persons taking part in the meeting. 27
28
Example of `technology allowing reasonably contemporaneous and continuous
29
communication'--
30
Teleconferencing.
s 267 159 s 267
Crime and Misconduct Bill 2001
(5) A person who takes part in a commission meeting under 1
subsection (4) is taken to be present at the meeting. 2
(6) A resolution is validly made by the commission, even if it is not 3
passed at a commission meeting, if-- 4
(a) a majority of the commissioners gives written agreement to the 5
resolution; and 6
(b) notice of the resolution is given under procedures approved by 7
the commission. 8
267 Disclosure of interests 9
(1) This section applies to a commissioner (the "interested person") 10
if-- 11
(a) the interested person has a material personal interest in an issue 12
being considered, or about to be considered, by the commission; 13
and 14
(b) the interest could conflict with the proper performance of the 15
person's duties about the consideration of the issue. 16
(2) As soon as practicable after the relevant facts come to the interested 17
person's knowledge, the person must disclose the nature of the interest to a 18
commission meeting. 19
(3) Unless the commission otherwise directs, the interested person must 20
not-- 21
(a) be present when the commission considers the issue; or 22
(b) take part in a decision of the commission about the issue. 23
(4) The interested person must not be present when the commission is 24
considering whether to give a direction under subsection (3). 25
(5) If there is another person who must, under subsection (2), also 26
disclose a material personal interest in the issue, the other person must 27
not-- 28
(a) be present when the commission is considering whether to give a 29
direction under subsection (3) about the interested person; or 30
(b) take part in making the decision about giving the direction. 31
(6) If-- 32
s 268 160 s 268
Crime and Misconduct Bill 2001
(a) because of this section, a commissioner is not present at a 1
commission meeting for considering or deciding an issue, or for 2
considering or deciding whether to give a direction under 3
subsection (3); and 4
(b) there would be a quorum if the member were present; 5
the remaining persons present are a quorum of the commission for 6
considering or deciding the issue, or for considering or deciding whether to 7
give the direction, at the meeting. 8
(7) A disclosure under subsection (2) must be recorded in the 9
commission's minutes. 10
(8) A failure to disclose a material personal interest does not, of itself, 11
invalidate a commission decision. 12
(9) In this section-- 13
"material personal interest" means-- 14
(a) a direct or indirect interest relating to the personal affairs of the 15
commissioner that may have, or be seen to have, a significant 16
influence on the conduct of the commissioner at the meeting; or 17
(b) a personal or political association that might influence the 18
commissioner in the discharge of the commissioner's duties. 19
268 Minutes 20
(1) The commission must keep-- 21
(a) minutes of its meetings; and 22
(b) a record of any resolutions made under section 266(6).77 23
(2) Subsection (3) applies if a resolution is passed at a commission 24
meeting by a majority of the commissioners present. 25
(3) If asked by a commissioner who voted against the passing of the 26
resolution, the commission must record in the minutes of the meeting that 27
the commissioner voted against the resolution. 28
77 Section 266 (Conduct of meetings)
s 269 161 s 270
Crime and Misconduct Bill 2001
Division 8--Delegations and authorised commission officers 1
269 Delegation--commission 2
(1) The commissioners may, by resolution, delegate the commission's 3
powers under this or another Act to an appropriately qualified commission 4
officer. 5
(2) However, the commission's powers under the provisions mentioned 6
in column 1 of the following table may only be delegated to the 7
commission officer or officers mentioned in column 2 of the table-- 8
Provision Commission officer
section 60 (Commission may give evidence chairperson or assistant
or information to other entities) commissioner
section 50 (Commission may chairperson or assistant
prosecute official misconduct) commissioner
section 62 (Restriction on access) chairperson or assistant
commissioner
section 254 (Commission staff) chairperson
section 256 (Engagement of agents) chairperson
section 257(2) (Commission officers) chairperson
270 Delegation--chairperson 9
(1) The chairperson may delegate the chairperson's powers under this or 10
another Act, other than under the Police Powers and Responsibilities Act 11
2000, section 407,78 to an appropriately qualified commission officer. 12
(2) However, the chairperson's powers under section 272 may be 13
delegated only to an assistant commissioner. 14
(3) Also, the chairperson's powers under chapter 379 may be delegated 15
only with the approval of the commissioners by resolution. 16
78 Police Powers and Responsibilities Act 2000, section 407 (Who may inspect CJC's
register)
79 Chapter 3 (Powers)
s 271 162 s 273
Crime and Misconduct Bill 2001
271 Delegation--assistant commissioner 1
An assistant commissioner may delegate the assistant commissioner's 2
powers under this Act to an appropriately qualified commission officer. 3
272 Authorised commission officer 4
(1) The chairperson may authorise an appropriately qualified officer or 5
employee of the commission to perform the functions of, exercise the 6
powers of, or for any purpose to be, an authorised commission officer 7
under a provision of this Act or another Act. 8
(2) An authorisation may be given on conditions. 9
(3) An assistant commissioner and a police officer who is a member of a 10
police task force established under section 3280 that is undertaking an 11
investigation in cooperation with the commission is an authorised 12
commission officer. 13
(4) A reference in a provision of this or another Act to an authorised 14
commission officer is a reference to a person who is an authorised 15
commission officer under this section. 16
273 Commission officer's identity card 17
(1) The chairperson must give each commission officer an identity card. 18
(2) The identity card must-- 19
(a) contain a recent photo of the officer; and 20
(b) contain a copy of the commission officer's signature; and 21
(c) identify the person as a commission officer under this Act; and 22
(d) state an expiry date for the card. 23
(3) A person who stops being a commission officer must return the 24
person's identity card to the chairperson as soon as possible (but within 25
21 days) after the person stops being a commission officer, unless the 26
person has a reasonable excuse. 27
Maximum penalty--20 penalty units. 28
80 Section 32 (Police task forces and other operational agreements)
s 274 163 s 277
Crime and Misconduct Bill 2001
(4) This section does not prevent the giving of a single identity card to a 1
person for this Act and other purposes. 2
PART 2--CRIME REFERENCE COMMITTEE 3
Division 1--Establishment of crime reference committee 4
274 Establishment 5
The Crime Reference Committee is established. 6
Division 2--Functions and support 7
275 Functions of reference committee 8
The reference committee has the following functions-- 9
(a) to refer, as provided under this Act, major crime to the 10
commission for investigation; 11
(b) to coordinate, to the extent the committee considers appropriate, 12
investigations into major crime conducted by the commission in 13
cooperation with a police task force or another entity. 14
276 Commission to give committee administrative support 15
The commission must give the reference committee reasonable 16
administrative services and support to enable the committee to perform its 17
functions. 18
Division 3--Oversighting role 19
277 Reference committee may obtain information from commission 20
(1) The assistant commissioner, crime must keep the reference 21
committee informed of the general conduct of the assistant commissioner's 22
s 278 164 s 278
Crime and Misconduct Bill 2001
operations in the performance of the commission's functions in relation to 1
major crime. 2
(2) If the reference committee asks the assistant commissioner, crime to 3
give to it information concerning a matter relating to the commission's 4
operations in relation to major crime, the assistant commissioner must 5
comply with the request and give the help the reference committee needs to 6
consider the information. 7
(3) Information provided to the reference committee is confidential. 8
Division 4--Provisions about membership 9
278 Membership of reference committee 10
(1) The reference committee consists of the following members-- 11
(a) the assistant commissioner, crime who is the chairperson of the 12
reference committee; 13
(b) the chairperson of the commission; 14
(c) the commissioner of police; 15
(d) the commissioner for children and young people; 16
(e) the chairperson of the national crime authority; 17
(f) 2 persons appointed by the Governor in Council as community 18
representatives (each of whom is an "appointed member"), of 19
whom 1 at least must have a demonstrated interest in civil 20
liberties and 1 at least must be a female. 21
(2) The Minister must advertise throughout the State for applications 22
from suitably qualified persons to be considered for selection as 23
community representatives. 24
(3) Subsection (2) does not apply to the reappointment of a person as a 25
community representative. 26
(4) Before nominating a person to the Governor in Council for 27
appointment as a community representative, the Minister must consult with 28
the Leader of the Opposition. 29
(5) An ineligible person or a commission officer can not be appointed, or 30
continue, as a community representative. 31
s 279 165 s 283
Crime and Misconduct Bill 2001
279 Deputy committee member 1
(1) The chairperson of the commission may appoint as the chairperson's 2
deputy for a reference committee meeting another commissioner or the 3
assistant commissioner, misconduct ("deputy committee member"). 4
(2) The commissioner of police may appoint as the commissioner's 5
deputy for a reference committee meeting an officer holding rank at least 6
equal to assistant commissioner (also a "deputy committee member"). 7
(3) The commissioner for children and young people may appoint as the 8
commissioner's deputy for a reference committee meeting a person 9
nominated by the commissioner (also a "deputy committee member"). 10
(4) The chairperson of the national crime authority may appoint as the 11
chairperson's deputy for a reference committee meeting a person 12
nominated by the chairperson (also a "deputy committee member"). 13
(5) A person appointed as a deputy committee member for a reference 14
committee meeting under this section is, for the purposes of the meeting, 15
taken to be the committee member for whom the person is deputy. 16
280 Duration of appointment of appointed member 17
An appointed member holds office for the term, not longer than 3 years, 18
stated in the instrument of appointment. 19
281 Terms of appointment of appointed member 20
(1) An appointed member is appointed on a part-time basis. 21
(2) To the extent that appointed member's terms and conditions are not 22
provided for by this Act, the appointed member holds office on the terms 23
and conditions decided by the Governor in Council. 24
282 Resignation of appointed member 25
An appointed member may resign by signed notice given to the Minister. 26
283 Termination of appointment of appointed member 27
(1) The Governor in Council may terminate the appointment of a person 28
as an appointed member, if the person-- 29
(a) stops being eligible for appointment as an appointed member; or 30
s 284 166 s 287
Crime and Misconduct Bill 2001
(b) becomes incapable of satisfactorily performing the member's 1
duties; or 2
(c) is guilty of misconduct that could warrant dismissal from the 3
public service if the member were a public service officer. 4
(2) The office of an appointed member is vacated if the person becomes 5
an ineligible person. 6
Division 5--Meetings and other business 7
284 Conduct of meetings and other business 8
Subject to this division, the reference committee may conduct its 9
business, including its meetings, in the way it considers appropriate. 10
285 Times and places of meetings 11
(1) Reference committee meetings are to be held at the times and places 12
the assistant commissioner, crime decides. 13
(2) However, the assistant commissioner, crime must call a meeting if 14
asked, in writing, to do so by the Minister or at least the number of 15
members forming a quorum for the reference committee. 16
286 Quorum 17
A quorum for a reference committee meeting is any 4 members. 18
287 Presiding at meetings 19
(1) The assistant commissioner, crime is to preside at all meetings at 20
which the assistant commissioner is present. 21
(2) If the assistant commissioner, crime is absent from a meeting, the 22
chairperson of the commission is to preside at the meeting. 23
(3) If both the assistant commissioner, crime and the chairperson are 24
absent from a meeting, the committee member chosen by the committee 25
members present at the meeting is to preside. 26
s 288 167 s 289
Crime and Misconduct Bill 2001
288 Conduct of meetings 1
(1) A question at a reference committee meeting is decided by a majority 2
of the votes of the members present. 3
(2) Each member present at the meeting has a vote on each question to 4
be decided and, if the votes are equal, the member presiding also has a 5
casting vote. 6
(3) A member present at the meeting who abstains from voting is taken 7
to have voted for the negative. 8
(4) The reference committee may hold meetings, or allow members to 9
take part in its meetings, by using any technology allowing reasonably 10
contemporaneous and continuous communication between members taking 11
part in the meeting. 12
13
Example of `technology allowing reasonably contemporaneous and continuous
14
communication--
15
Teleconferencing.
(5) A member who takes part in a reference committee meeting under 16
subsection (4) is taken to be present at the meeting. 17
(6) A resolution is validly made by the reference committee, even if it is 18
not passed at a reference committee meeting, if-- 19
(a) a majority of the members gives written agreement to the 20
resolution; and 21
(b) notice of the resolution is given under procedures approved by 22
the reference committee. 23
289 Disclosure of interests 24
(1) This section applies to a member of the reference committee (the 25
"interested person") if-- 26
(a) the interested person has a material personal interest in an issue 27
being considered, or about to be considered, by the committee; 28
and 29
(b) the interest could conflict with the proper performance of the 30
person's duties about the consideration of the issue. 31
(2) As soon as practicable after the relevant facts come to the interested 32
person's knowledge, the person must disclose the nature of the interest to a 33
committee meeting. 34
s 290 168 s 290
Crime and Misconduct Bill 2001
(3) Unless the reference committee otherwise directs, the interested 1
person must not-- 2
(a) be present when the committee considers the issue; or 3
(b) take part in a decision of the committee about the issue. 4
(4) The interested person must not be present when the reference 5
committee is considering whether to give a direction under subsection (3). 6
(5) If there is another person who must, under subsection (2), also 7
disclose a material personal interest in the issue, the other person must 8
not-- 9
(a) be present when the committee is considering whether to give a 10
direction under subsection (3) about the interested person; or 11
(b) take part in making the decision about giving the direction. 12
(6) If-- 13
(a) because of this section, a committee member is not present at a 14
reference committee meeting for considering or deciding an 15
issue, or for considering or deciding whether to give a direction 16
under subsection (3); and 17
(b) there would be a quorum if the member were present; 18
the remaining persons present are a quorum of the committee for 19
considering or deciding the issue, or for considering or deciding whether to 20
give the direction, at the meeting. 21
(7) A disclosure under subsection (2) must be recorded in the 22
committee's minutes. 23
(8) A failure to disclose a material personal interest does not, of itself, 24
invalidate a committee decision. 25
(9) In this section-- 26
"material personal interest" means a direct or indirect interest relating to 27
the personal affairs of the member that may have, or be seen to have, a 28
significant influence on the conduct of the member at the meeting. 29
290 Minutes 30
(1) The reference committee must keep-- 31
(a) minutes of its meetings; and 32
s 291 169 s 292
Crime and Misconduct Bill 2001
(b) a record of any resolutions made under section 288(6).81 1
(2) Subsection (3) applies if a resolution is passed at a commission 2
meeting by a majority of the members present. 3
(3) If asked by a member who voted against the passing of the 4
resolution, the commission must record in the minutes of the meeting that 5
the member voted against the resolution. 6
PART 3--PARLIAMENTARY CRIME AND 7
MISCONDUCT COMMITTEE 8
Division 1--Establishment of parliamentary committee 9
291 Establishment of parliamentary committee 10
A committee of the Legislative Assembly called the Parliamentary 11
Crime and Misconduct Committee is established. 12
Division 2--Functions 13
292 Functions 14
The parliamentary committee has the following functions-- 15
(a) to monitor and review the performance of the commission's 16
functions; 17
(b) to report to the Legislative Assembly, commenting as it considers 18
appropriate, on either of the following matters the committee 19
considers should be brought to the Assembly's attention-- 20
(i) matters relevant to the commission; 21
(ii) matters relevant to the performance of the commission's 22
functions or the exercise of the commission's powers; 23
81 Section 288 (Conduct of meetings)
s 293 170 s 293
Crime and Misconduct Bill 2001
(c) to examine the commission's annual report and its other reports 1
and report to the Legislative Assembly on any matter appearing 2
in or arising out of the reports; 3
(d) to report on any matter relevant to the commission's functions 4
that is referred to it by the Legislative Assembly; 5
(e) to participate in the selection of commissioners and the removal 6
from office of a commissioner as provided under this Act; 7
(f) to review the activities of the commission at a time near to the 8
end of 3 years from the appointment of the committee's members 9
and to table in the Legislative Assembly a report about any 10
further action that should be taken in relation to this Act or the 11
functions, powers and operations of the commission; 12
(g) to issue guidelines and give directions to the commission as 13
provided under this Act. 14
Division 3--Powers 15
293 Powers 16
(1) The parliamentary committee is authorised-- 17
(a) to call for persons, documents and other things; and 18
(b) to administer oaths to witnesses; and 19
(c) to examine witnesses on oath. 20
(2) Also, the parliamentary committee has the power-- 21
(a) necessary to enable the committee to properly perform its 22
functions, including power to appoint persons having special 23
knowledge or skill to help the committee perform its functions; 24
or 25
(b) conferred on it by resolution of the Legislative Assembly with a 26
view to the proper performance by the committee of its 27
functions. 28
(3) Further, the parliamentary committee or a person appointed, engaged 29
or assigned to help the parliamentary committee may-- 30
(a) inspect any non-operational record or thing in the commission's 31
possession; and 32
s 294 171 s 295
Crime and Misconduct Bill 2001
(b) make copies or extracts of the record or thing for use in 1
connection with the parliamentary committee's functions to 2
which the record or thing is relevant. 3
(4) In this section-- 4
"non-operational record or thing" does not include a record or thing that 5
relates to an investigation by the commission that is not finalised. 6
294 Directions by parliamentary committee to undertake investigation 7
(1) The parliamentary committee may, by notice, direct the commission 8
to investigate a matter involving misconduct stated in the notice. 9
(2) A direction under subsection (1) is effective only if it is made with 10
the bipartisan support of the parliamentary committee. 11
(3) The commission must-- 12
(a) investigate the matters stated in the direction diligently and in a 13
way reasonably expected of a law enforcement agency; and 14
(b) report the results of its investigation to the committee. 15
295 Referral of concerns by parliamentary committee 16
(1) This section applies if the parliamentary committee-- 17
(a) receives a complaint, or has other concerns (including concerns 18
arising out of a recommendation made by the parliamentary 19
commissioner), about the conduct or activities of-- 20
(i) the commission; or 21
(ii) a commission officer; or 22
(b) is notified by the chairperson of conduct of a commission officer 23
that the chairperson suspects involves, or may involve, improper 24
conduct. 25
(2) If the committee decides to take action on the complaint, concern or 26
notification (the "matter"), the committee may do 1 or more of the 27
following-- 28
(a) ask the commission to give a report on the matter to the 29
committee; 30
s 296 172 s 298
Crime and Misconduct Bill 2001
(b) ask the commission to investigate and give a report on the matter 1
to the committee; 2
(c) ask the police service or another law enforcement agency to 3
investigate and give a report on the matter to the committee; 4
(d) ask the parliamentary commissioner to investigate and give a 5
report on the matter to the committee; 6
(e) refer the matter to the director of public prosecutions; 7
(f) take other action the committee considers appropriate. 8
(3) A decision under subsection (2) is effective only if it is made with the 9
bipartisan support of the parliamentary committee. 10
(4) The commission, police service, parliamentary commissioner or 11
another investigative agency must investigate and report on matters as 12
asked by the committee. 13
296 Guidelines on operation of commission 14
(1) The parliamentary committee may issue guidelines to the 15
commission about the conduct and activities of the commission. 16
(2) Before issuing a guideline, the committee must consult with the 17
commission on the proposed guideline. 18
(3) The committee may issue a guideline only with the bipartisan 19
support of the parliamentary committee. 20
(4) The commission must comply with the guidelines. 21
297 Guidelines to be tabled 22
(1) The chairperson of the parliamentary committee must table each 23
guideline issued under section 296 in the Legislative Assembly within 14 24
sitting days after it is issued to the commission. 25
(2) If a guideline is not tabled under subsection (1), it stops having 26
effect. 27
298 Disallowance of guideline 28
(1) The Legislative Assembly may pass a resolution disallowing a 29
guideline under section 296 if notice of a disallowance motion is given by a 30
s 299 173 s 301
Crime and Misconduct Bill 2001
member within 14 sitting days after the guideline is tabled in the 1
Legislative Assembly. 2
(2) On the day set down for its consideration under the standing rules 3
and orders of the Legislative Assembly, the Speaker must put the question 4
that the Legislative Assembly resolve to disallow the guideline. 5
(3) If the resolution is passed, the guideline stops having effect. 6
299 Limited saving of operation of guideline that ceases to have effect 7
The fact that a guideline stops having effect under section 297(2) 8
or 298(3) does not affect anything done or suffered under the guideline 9
before it stopped having effect. 10
Division 4--Membership 11
300 Membership of parliamentary committee 12
(1) The parliamentary committee must consist of 7 members nominated 13
as follows-- 14
(a) 4 members nominated by the Leader of the House; 15
(b) 3 members nominated by the Leader of the Opposition. 16
(2) The chairperson of the parliamentary committee must be the member 17
nominated as chairperson by the Leader of the House. 18
301 Membership of parliamentary committee continues despite 19
dissolution 20
(1) Despite section 300, from the dissolution of the Legislative 21
Assembly, the parliamentary committee consists of its members 22
immediately before the dissolution. 23
(2) A member under subsection (1) continues to be a member of the 24
parliamentary committee until whichever of the following first happens-- 25
(a) the member resigns by notice given to the clerk of the 26
Parliament; 27
(b) the member dies; 28
s 302 174 s 303
Crime and Misconduct Bill 2001
(c) the returning officer for the electoral district in which the 1
member was nominated as a candidate for the election notifies 2
the electoral commission that a person other than the member has 3
been elected for the electoral district; 4
(d) fresh members are appointed by the Legislative Assembly. 5
(3) If a member stops being a member of the parliamentary committee 6
under subsection (2)(c), the person recognised as the leader of the political 7
party that nominated the member to the committee may nominate another 8
person as a member of the committee until fresh members are appointed by 9
the Legislative Assembly. 10
Division 5--Meetings 11
302 Quorum and voting at meetings of parliamentary committee 12
At a meeting of the parliamentary committee-- 13
(a) a quorum consists of 4 members appointed to the committee; and 14
(b) a question is decided by a majority of the votes of the members 15
of the committee present and voting; and 16
(c) each member of the committee has a vote on each question to be 17
decided and, if the votes are equal, the chairperson of the 18
committee has a casting vote. 19
PART 4--PARLIAMENTARY CRIME AND 20
MISCONDUCT COMMISSIONER 21
Division 1--Establishment of office of parliamentary commissioner 22
303 Office of parliamentary crime and misconduct commissioner 23
(1) There must be appointed a commissioner to be known as the 24
parliamentary crime and misconduct commissioner. 25
(2) The parliamentary commissioner is an officer of the Parliament. 26
s 304 175 s 307
Crime and Misconduct Bill 2001
Division 2--Provisions about appointment 1
304 Qualification for appointment as parliamentary commissioner 2
A person is qualified for appointment as the parliamentary commissioner 3
if the person has served as, or is qualified for appointment as, a judge of-- 4
(a) the Supreme Court of Queensland; or 5
(b) the Supreme Court of another State; or 6
(c) the High Court of Australia; or 7
(d) the Federal Court of Australia. 8
305 Disqualifications as parliamentary commissioner 9
(1) An ineligible person can not be appointed as the parliamentary 10
commissioner. 11
(2) An ineligible person, other than a person who is an ineligible person 12
only because the person holds office as the parliamentary commissioner, 13
can not continue as the parliamentary commissioner. 14
306 Selection for appointment of parliamentary commissioner 15
(1) The Speaker must advertise nationally for applications from suitably 16
qualified persons to be considered for selection as the parliamentary 17
commissioner. 18
(2) Subsection (1) does not apply to the reappointment of a person as the 19
parliamentary commissioner. 20
(3) The Speaker may appoint a person as the parliamentary 21
commissioner only if the appointment is made with the bipartisan support 22
of the parliamentary committee. 23
307 Appointment of parliamentary commissioner 24
(1) The parliamentary commissioner must be appointed by the Speaker 25
as an officer of the parliamentary service under the Parliamentary Service 26
Act 1988. 27
(2) However-- 28
s 308 176 s 309
Crime and Misconduct Bill 2001
(a) the parliamentary commissioner can not be dismissed or 1
suspended without the bipartisan support of the parliamentary 2
committee; and 3
(b) the Parliamentary Service Act 1988, sections 43 and 4482 do not 4
apply to the position of parliamentary commissioner. 5
(3) Within 7 sitting days after the appointment of the parliamentary 6
commissioner, the Speaker must table in the Legislative Assembly notice of 7
the appointment. 8
308 Acting parliamentary commissioner 9
(1) The Speaker must appoint a person qualified to be appointed as the 10
parliamentary commissioner to act as the parliamentary commissioner-- 11
(a) during a vacancy in the office; or 12
(b) during any period, or all periods, when the parliamentary 13
commissioner is absent from duty or from the State or, for 14
another reason, can not perform the duties of the office. 15
(2) A person may be appointed to act as the parliamentary commissioner 16
only if the appointment is made with the bipartisan support of the 17
parliamentary committee. 18
309 Duration of parliamentary commissioner's appointment 19
(1) The parliamentary commissioner holds office for the term, not less 20
than 2 years and no longer than 5 years, stated in the instrument of the 21
parliamentary commissioner's appointment. 22
(2) The parliamentary commissioner must not hold office for more than 23
5 years in total. 24
(3) Subsection (2) has effect despite the Acts Interpretation Act 1954, 25
section 25(1)(c).83 26
82 Parliamentary Service Act 1988, sections 43 (Appeals against promotional
appointments and disciplinary action) and 44 (Reinstatement following dismissal)
83 Acts Interpretation Act 1954, section 25 (Powers of appointment imply certain
incidental powers)
s 310 177 s 312
Crime and Misconduct Bill 2001
310 Terms of parliamentary commissioner's appointment 1
(1) Appointment as the parliamentary commissioner is on a part-time 2
basis. 3
(2) The parliamentary commissioner is to be paid the remuneration and 4
allowances decided by the Speaker. 5
(3) To the extent that the parliamentary commissioner's terms and 6
conditions are not provided for by this Act, the parliamentary 7
commissioner holds office on the terms and conditions decided by the 8
Speaker. 9
311 Resignation 10
The parliamentary commissioner may resign by signed notice given to 11
the Speaker. 12
312 Termination of appointment 13
(1) The Governor in Council may terminate the appointment of the 14
parliamentary commissioner if the parliamentary commissioner-- 15
(a) becomes incapable of satisfactorily performing the parliamentary 16
commissioner's duties; or 17
(b) is guilty of conduct that could warrant dismissal from the public 18
service if the parliamentary commissioner were a public service 19
officer. 20
(2) The Governor in council may terminate the appointment of the 21
parliamentary commissioner if-- 22
(a) a recommendation to the Legislative Assembly to terminate the 23
appointment is made with the bipartisan support of the 24
parliamentary committee; and 25
(b) the Legislative Assembly, by resolution, approves the termination 26
of the appointment. 27
(3) The office of the parliamentary commissioner is vacated if the 28
parliamentary commissioner becomes an ineligible person for a reason 29
other than holding office as the parliamentary commissioner. 30
s 313 178 s 314
Crime and Misconduct Bill 2001
313 Oath of parliamentary commissioner 1
(1) Before entering on the performance of functions as parliamentary 2
commissioner, the commissioner must take an oath that he or she-- 3
(a) will faithfully and impartially perform the functions of the office; 4
and 5
(b) will not, except as provided under this Act, disclose any 6
information received under this Act. 7
(2) The oath is to be administered by the Speaker. 8
Division 3--Functions and support 9
314 Functions of parliamentary commissioner 10
(1) The parliamentary commissioner has the functions given to the 11
parliamentary commissioner under this or another Act. 12
(2) The parliamentary commissioner has the functions, as required by 13
the parliamentary committee, to do the following-- 14
(a) audit records kept by the commission and operational files and 15
accompanying documentary material held by the commission, 16
including current sensitive operations, including for the purpose 17
of deciding the following-- 18
(i) whether the commission has exercised power in an 19
appropriate way; 20
(ii) whether matters under investigation are appropriate for 21
investigation by the entity investigating or are more 22
appropriately the responsibility of another entity; 23
(iii) whether registers are up to date and complete and all 24
required documentation is on the file and correctly noted on 25
the registers; 26
(iv) whether required authorisations for the exercise of power 27
have been obtained; 28
(v) whether any policy or procedural guidelines set by the 29
commission have been strictly complied with; 30
(b) investigate, including by accessing operational files of the 31
commission to which the parliamentary committee is denied 32
s 315 179 s 315
Crime and Misconduct Bill 2001
access, complaints made against, or concerns expressed about, 1
the conduct or activities of-- 2
(i) the commission; or 3
(ii) a commission officer; 4
(c) independently investigate allegations of possible unauthorised 5
disclosure of information or other material that, under this Act, is 6
confidential; 7
(d) inspect the register of confidential information kept under 8
section 6784 to verify the commission's reasons for withholding 9
information from the parliamentary committee; 10
(e) review reports given by the commission to the parliamentary 11
committee to verify their accuracy and completeness, 12
particularly in relation to an operational matter; 13
(f) report, and make recommendations, to the parliamentary 14
committee on the results of performing the functions mentioned 15
in paragraphs (a) to (e); 16
(g) perform other functions the parliamentary committee considers 17
necessary or desirable. 18
(3) A requirement under subsection (2) is effective only if it is made with 19
the bipartisan support of the parliamentary committee. 20
315 Administrative and support services for parliamentary 21
commissioner 22
(1) To help the parliamentary commissioner in performing the 23
parliamentary commissioner's functions under this or another Act, by 24
arrangement with the Speaker, officers or employees of the parliamentary 25
service may be assigned and other administrative and support services may 26
be provided to the parliamentary commissioner. 27
(2) If asked by the parliamentary committee, the Speaker may engage 28
legal practitioners and other suitably qualified persons to provide the 29
parliamentary commissioner with services, information or advice. 30
(3) Before a person first acts under subsection (1) or (2), the person must 31
take an oath, to be administered by the parliamentary commissioner, that 32
the person will not, except as provided under this Act, disclose any 33
84 Section 67 (Register of confidential information)
s 316 180 s 317
Crime and Misconduct Bill 2001
information received under this part while helping the parliamentary 1
commissioner. 2
316 Parliamentary commissioner can not be required to 3
disclose particular information 4
The parliamentary commissioner can not be required by the 5
parliamentary committee to disclose to the committee information lawfully 6
withheld from the committee by the commission under section 6685 or 7
otherwise. 8
Division 4--Powers 9
317 Powers of the parliamentary commissioner 10
(1) The parliamentary commissioner has power to do all things 11
necessary or convenient for the performance of the parliamentary 12
commissioner's functions. 13
(2) For the performance of the parliamentary commissioner's functions, 14
the parliamentary commissioner may, by giving written notice to the 15
chairperson, require a commission officer to do 1 or more of the 16
following-- 17
(a) produce to the parliamentary commissioner, or allow the 18
parliamentary commissioner access to, all records, files and other 19
documents in the commission's possession; 20
(b) give the parliamentary commissioner all reasonable help in 21
connection with the parliamentary commissioner performing his 22
or her functions. 23
(3) Also, for the performance of the parliamentary commissioner's 24
functions, the parliamentary commissioner may, by giving written notice to 25
a public official, require the public official to do 1 or more of the 26
following-- 27
(a) produce to the parliamentary commissioner, or allow the 28
parliamentary commissioner access to, all records, files and other 29
documents in the possession of the unit of public administration 30
in which the public official holds an appointment; 31
85 Section 66 (Maintaining confidentiality of information)
s 318 181 s 318
Crime and Misconduct Bill 2001
(b) give the parliamentary commissioner all reasonable help in 1
connection with the parliamentary commissioner performing his 2
or her functions. 3
(4) If documents are produced to the parliamentary commissioner under 4
this part, the parliamentary commissioner may-- 5
(a) keep the documents for the period the parliamentary 6
commissioner considers necessary for the proper performance of 7
the parliamentary commissioner's functions; or 8
(b) make copies or extracts of the documents for use in connection 9
with the parliamentary commissioner's functions to which the 10
document is relevant. 11
(5) While the parliamentary commissioner has possession of a document 12
under subsection (4), the parliamentary commissioner must permit a person 13
who would be entitled to inspect the document if it were in the possession 14
of the commission to inspect it at all reasonable times. 15
(6) A person required by a notice under subsection (2) or (3) to do 16
something must comply with the requirement. 17
Maximum penalty for subsection (6)--85 penalty units or 1 year's 18
imprisonment. 19
318 Parliamentary commissioner may conduct hearings in 20
limited circumstances 21
(1) This section applies if-- 22
(a) the parliamentary commissioner has used all reasonable means to 23
obtain information about a matter without success; and 24
(b) the parliamentary committee authorises the parliamentary 25
commissioner to hold a hearing to obtain the information. 26
(2) The parliamentary committee may give the authorisation only if it 27
receives the bipartisan support of the parliamentary committee. 28
(3) The parliamentary commissioner may hold a hearing to obtain the 29
information. 30
(4) The parliamentary commissioner may, by notice, require any named 31
commission officer or person who holds or held an appointment in a unit of 32
public administration (the "person") to appear at the hearing to be 33
examined on oath or to produce a document or thing. 34
s 318 182 s 318
Crime and Misconduct Bill 2001
(5) The person must comply with the notice. 1
Maximum penalty--85 penalty units or 1 year's imprisonment. 2
(6) The parliamentary commissioner may administer an oath for the 3
purposes of the hearing. 4
(7) The person must answer a question put to the person by the 5
parliamentary commissioner at the hearing or produce a document or thing 6
if required to do so by the parliamentary commissioner. 7
Maximum penalty--85 penalty units or 1 year's imprisonment. 8
(8) The person is not entitled-- 9
(a) to remain silent; or 10
(b) to refuse to answer a question or to fail to give an answer to the 11
parliamentary commissioner's satisfaction; or 12
(c) to fail to produce the document or thing; 13
because compliance with the notice, answering the question or giving an 14
answer to the parliamentary commissioner's satisfaction, or producing the 15
document or thing might tend to incriminate the person. 16
(9) However, if the person's answer or the document or thing might tend 17
to incriminate the person, the answer, document or thing is not admissible 18
in evidence against the person in a civil or criminal proceeding, other 19
than-- 20
(a) a proceeding for an offence about the falsity of the answer; or 21
(b) a disciplinary action brought against the person. 22
(10) A hearing under this section is closed to the public. 23
(11) In this section-- 24
"commission officer" includes-- 25
(a) a former commission officer; and 26
(b) a person who was a commissioner or officer of the commission 27
under the repealed Criminal Justice Act 1989; and 28
(c) a person who was engaged by the commission under section 66 29
of the repealed Criminal Justice Act 1989. 30
s 319 183 s 320
Crime and Misconduct Bill 2001
319 Notice may be a confidential document 1
(1) A notice given by the parliamentary commissioner under this 2
division may provide that it is a confidential document. 3
(2) A person must not disclose the existence of a confidential document 4
to anyone else, unless the person has a reasonable excuse. 5
Maximum penalty--85 penalty units or 1 year's imprisonment. 6
(3) It is a reasonable excuse for a person to disclose the existence of a 7
confidential document if-- 8
(a) the disclosure is made-- 9
(i) for the purpose of seeking legal advice in relation to the 10
document or an offence against subsection (2); or 11
(ii) for the purpose of obtaining information in order to comply 12
with the document; or 13
(iii) for the purpose of making a complaint to the parliamentary 14
committee about the document; or 15
(iv) in the course of the administration of this Act; and 16
(b) the person informs the