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Australian Crime Commission (Queensland) Bill 2003
AUSTRALIAN CRIME COMMISSION
(QUEENSLAND) BILL 2003
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Bill
As part of the Leader's Summit on Terrorism and Multi-Jurisdictional
Crime held in Canberra on the 5 April 2002, Commonwealth and State
leaders agreed to establish the Australian Crime Commission (ACC). At
this Summit it was proposed that the ACC replace the National Crime
Authority (NCA), and incorporate the Australian Bureau of Criminal
Intelligence and the Office of Strategic Crime Assessments. The
framework for the establishment of the ACC was agreed between Police
Ministers in August 2002.
The operation of the NCA in Australia was underpinned by a
Commonwealth Act (the National Crime Authority Act 1984), and
complementary enabling legislation in each State and Territory (in
Queensland, the National Crime Authority (State Provisions) Act 1985 (the
NCA State Provisions Act). The purpose of the NCA State Provisions Act
was to extend the jurisdiction of the NCA to include Queensland offences
that had no link to an offence against Commonwealth law (no `federal
aspect').
In November 2002, the Inter-Governmental Committee on the National
Crime Authority agreed to recognise that, as the ACC would be based on a
national co-operative statutory scheme, there was a need for States to enact
complementary legislation to the new governing legislation for the ACC.
The Australian Crime Commission Establishment Act 2002 (Cth)
commenced on 1 January 2003. This Act amended the National Crime
Authority Act 1984 (Cth) (the `NCA Act') in a number of ways, including
changing the name of that Act to the Australian Crime Commission Act
2002 (the ACC Act). Upon commencement of the ACC Act, the NCA State
Provisions Act became redundant and now requires repealing and replacing
with legislation that reflects the provisions of the new Commonwealth
legislation.
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Australian Crime Commission (Queensland) Bill 2003
The objective of this Bill is to extend the jurisdiction of the ACC to
include Queensland offences that have no federal aspect by conferring
certain duties, powers and functions on the ACC. This proposed extension
to the jurisdiction of the ACC is consistent with the extended jurisdiction
that was afforded to the NCA by the NCA State Provisions Act.
Section 55A of the ACC Act gives legislative consent to the conferral of
powers, duties and functions on the ACC or particular classes of persons
under the ACC Act, by State laws. That section further requires that
powers, duties and functions conferred under a State law on the ACC or a
class of persons must be of the same kind conferred on the ACC or those
persons under that Act, or by a regulation. This means that the Bill largely
mirrors the ACC Act. Broadly, the Bill:
(a) provides for the functions of the ACC under State law, including
the functions of conducting intelligence operations and
investigations in relation to State offences that do not have a
federal aspect (`ACC State intelligence operations' and `ACC
State investigations');
(b) provides for the functions of the Board and CEO under State law.
The Board's functions will include the authorisation of the use of
special powers, while the CEO is to be responsible for co-
ordinating ACC State intelligence operations and investigations.
These functions will complement the provisions of the
Commonwealth Act that establish the ACC's governance regime;
(c) provides for the investigative powers of the ACC under State law,
including search powers under warrant and coercive examination
powers. These powers will be available to the ACC in relation to
both its investigatory and criminal intelligence functions;
(d) contains requirements to ensure the appropriate use of the ACC's
special powers. The Board will be empowered to authorise the
use of special powers where a specified threshold test is met, and
the Board's authorisation of special powers will be subject to a
number of additional safeguards in the form of special
requirements for the composition of the Board, special voting
requirements and a power for the Inter-Governmental Committee
on the ACC to revoke the authorisation of special powers;
(e) provides for the ACC's examination powers under State law to be
exercised by examiners, who will be independent statutory
officers appointed under the Commonwealth Act;
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Australian Crime Commission (Queensland) Bill 2003
(f) creates offences under the Act to facilitate the effective
performance of the ACC's functions under State law. These
offences will include failing to attend an examination or to
answer questions, and failing to produce documents or things
when required to do so by a summons. The offences in the Bill
reflect the offences contained in the Commonwealth Act and the
existing NCA State Provisions Act;
(g) repeals existing NCA State Provisions Act and contains
necessary transitional provisions to ensure that the transition
from the NCA to the ACC under State law is as seamless as
possible; and
(h) includes consequential amendments to other Acts.
The significant differences between the NCA Act and the ACC Act that
are reflected in this Bill include:
· establishing the Board of the ACC and describing its functions;
· renaming and revising the functions of the Inter-Governmental
Committee on the ACC (IGC-ACC);
· creating the positions of CEO and Examiners;
· the availability of coercive powers for the purpose of undertaking
intelligence operations;
· the Board of the ACC being primarily responsible for approving
investigative and operational priorities; and
· examinations are conducted by independent officers instead of
being conducted by a member of the NCA.
Means of achieving policy objectives
The Bill achieves the policy objectives by repealing the NCA State
Provisions Act and replacing it with legislation that, whilst achieving the
same general purpose of the NCA State Provisions Act, accurately reflects
the changes between the NCA Act and the ACC Act.
Alternative means of achieving policy objectives
There are no other viable alternatives that achieve the policy objectives
other than the proposed Bill.
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Australian Crime Commission (Queensland) Bill 2003
Administrative cost to Government for implementation
There is no financial impact to the State as a result of this Bill.
Consistency with fundamental legislative principles
The Bill includes a coercive examination power that is matched with
appropriate safeguards, in accordance with the national scheme.
Consultation
Consultation has taken place with relevant government agencies
including the Department of the Premier and Cabinet, the Department of
Justice and the Attorney-General, and the Crime and Misconduct
Commission. Consultation with respect to the development of the
Australian Crime Commission Establishment Bill 2002 (the Bill) was
undertaken by the Australian Crime Commission Implementation
Committee, Commonwealth Attorney-General's Department, overseen by
a Steering Committee of Commonwealth and State representatives.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Short title
Clause 1 specifies the short title of the Bill.
Commencement
Clause 2 provides the Bill commences on a date fixed by proclamation
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Australian Crime Commission (Queensland) Bill 2003
Interpretation
Clause 3 identifies schedule 2 as containing definitions for the Act. The
clause adopts the terms used in the Australian Crime Commission Act 2002
(Cth). The clause also specifies that a note in the text is part of the Act.
Act binds all persons
Clause 4 provides that the Bill binds the Crown.
PART 2--THE AUSTRALIAN CRIME COMMISSION,
THE BOARD AND THE INTER-GOVERNMENTAL
COMMITTEE
Division 1--The Australian Crime Commission
Functions of the ACC
Clause 5 sets out the functions of the ACC with respect to State offences.
These functions, which replicate some of the functions that the ACC has
under the Commonwealth Act, include undertaking ACC State intelligence
operations and ACC State investigations. The section compliments the
functions imposed under s 7A of the ACC Act.
CEO to manage ACC operations/investigations
Clause 6 sets out the functions of the CEO of the ACC. These functions,
which replicate some of the functions of the CEO under s 46A of the ACC
Act, include managing, coordinating and controlling ACC State
intelligence operations and investigations.
Counsel assisting ACC
Clause 7 gives the CEO of the ACC the power to appoint a lawyer to
assist the ACC as counsel in relation to ACC State intelligence operations
or investigations generally or in relation to a particular matter or matters. A
similar authority is conferred under s 50 of the ACC Act.
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Australian Crime Commission (Queensland) Bill 2003
Division 2--The Board of the ACC
Functions of the Board
Clause 8 sets out the functions of the Board with respect to ACC State
intelligence operations and investigations. The section is similar to s 7C of
the ACC Act.
The Board has the function of authorising all ACC State intelligence
operations and investigations, and determining when such operations or
investigations are a special operation or investigation. Such a
determination by the board enables access to coercive powers under parts 3
& 4 of the Bill. Before making a determination the Board must consider
the effectiveness of alternative means of gathering intelligence or
conducting an investigation.
The Bill confers an authority on the IGC-ACC to revoke a determination
of the Board that such an operation or investigation is special (a 'special
determination').
Board meetings
Clause 9 provides the manner in which Board meetings will be held.
The Chair of the Board may convene meetings of the Board, and must
ensure that meetings of the Board are scheduled to meet the requirements
set out in section 7D of the ACC Act.
Presiding at Board meetings
Clause 10 provides that the Chair of the Board or another eligible
Commonwealth Board member (as defined in the ACC Act, section 4:
`Interpretation') nominated by the Chair must preside at Board meetings.
Under the ACC Act the Commissioner of the Australian Federal Police is
the Chair of the Board.
Quorum at Board meetings
Clause 11 provides that a quorum of the Board is constituted by seven
members, not including the CEO.
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Australian Crime Commission (Queensland) Bill 2003
Voting at Board meetings
Clause 12 provides that, other than for a question concerning special
powers, a simple majority vote will determine decisions of the Board.
Determinations as to whether an ACC State intelligence operation or
investigation is a special operation or investigation must have the
agreement of at least nine Board members, including at least two eligible
Commonwealth members.
This clause also provides that the CEO does not have voting rights on
any question at a meeting of the Board, and that the person presiding at a
Board meeting has both a deliberative vote, and if necessary, a casting vote.
Conduct of Board meetings
Clause 13 provides that the Board may regulate proceedings at its
meetings as it considers appropriate, and requires the Board to ensure
minutes are kept of its meetings.
Resolutions outside of Board meetings
Clause 14 enables the Board to make decisions by resolution out of
session. This provision enables the Board to consider matters without
having to convene a formal meeting. The special rules that apply to a
determination of the Board that an ACC State intelligence operation or
investigation is a special operation or investigation, will continue to apply
to any such determination that is made out of session.
Board committees
Clause 15 enables the board to establish committees to carry out the
functions of the board. Such a committee is subject to the control of the
board and is not permitted to determine whether an investigation is a
special investigation or intelligence operation is a special operation.
Division 3--The Inter-Governmental Committee
Functions of Committee
Clause 16 relates to the Inter-Governmental Committee established
under s 8 of the ACC Act. The clause enables the Committee to request
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Australian Crime Commission (Queensland) Bill 2003
information from the Chair of the Board in relation to a determination of
the Board. Additionally the Committee may, within 30 days of having
made such a request, revoke the special determination of the Board.
Where the Chair of the Board does not comply with a request of the
Committee made under this clause on the ground that disclosure of the
information to the public could prejudice the safety or reputation of
persons or the operations of law enforcement agencies, the Committee may
refer the request to the State Minister. Where such a referral is made, the
State Minister must determine in writing whether he or she agrees with the
Chair of the Board and notify the Chair of the Board and the Committee of
his or her determination.
A resolution of the Committee to revoke a special determination of the
Board must be made with the agreement of the member of the Committee
representing the Commonwealth and at least five other members.
Upon revoking a special determination of the Board, the Committee
must notify the Chair of the Board and the CEO of the revocation. The
revocation takes effect when the CEO becomes notified.
PART 3--EXAMINATIONS
Examinations
Clause 17 provides that an examiner may conduct an examination for the
purpose of a special ACC State operation or investigation.
Conduct of examination
Clause 18 provides that an examiner may regulate the conduct of
proceedings as he or she thinks fit. It provides for legal representation of
witnesses and, in some circumstances, non-witnesses. It also regulates the
presence of persons at an examination, examination of witnesses, and
confidentiality of evidence. The section includes offences for being present
at an examination without authority and making a publication in
contravention of a direction given by the examiner under this clause.
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Australian Crime Commission (Queensland) Bill 2003
Power to summon witnesses and take evidence
Clause 19 provides that an examiner may summon a person to appear
before him or her to give evidence and to produce such documents or other
things (if any) as are referred to in the summons.
Before issuing a summons, the examiner must be satisfied that the
issuing of the summons is reasonable in all the circumstances, and must
also record in writing the reasons for issuing the summons.
A copy of the determination of the Board stating that the intelligence
operation is a special operation or the investigation is a special
investigation must accompany the summons.
Also, the summons must, unless the examiner is satisfied that to do so
would prejudice the operation or investigation, set out as far as reasonably
practicable, the general nature of the matters in relation to which the
examiner intends to question the person. This requirement does not limit
the examiner from questioning the person in relation to any matter that
relates to a special State intelligence operation or investigation.
An examiner at an examination may require a person to produce a
document or thing, and may take evidence on oath or affirmation.
Power to obtain documents
Clause 20 provides that an examiner may, by written notice, require a
person to attend before the examiner or a member of staff of the ACC to
produce specified documents or things relevant to a special ACC operation/
investigation. A notice may be issued regardless of whether an
examination before an examiner is being carried out.
Before issuing a notice, the examiner must be satisfied the issuing of the
notice is reasonable in all the circumstances, and must also record in
writing the reasons for issuing the notice.
A person to whom a notice is issued under this clause commits an
offence if they refuse or fail to comply with the notice.
The protections provided under clause 23 of the Bill apply in relation to
a person required to produce a document or thing under this Clause in the
same manner as if the person were required to produce that document or
thing in relation to an examination before an examiner.
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Australian Crime Commission (Queensland) Bill 2003
Disclosure of summons or notice may be prohibited
Clause 21 sets out the circumstances where an examiner may, or must,
include a notation in a summons or notice issued under clause 19 (`Power
to summons witness and take evidence') or clause 20 (`Power to obtain
documents') to the effect that the disclosure of information about the
summons or notice is prohibited except as set out in the notation.
A notation must be accompanied by a written statement setting out the
rights and obligations conferred or imposed by clause 22 ('Offences of
disclosure) on the person who was served or given the summons or notice.
The clause also sets out the circumstances where a notation issued under
this clause is deemed to be cancelled. Where a notation is deemed to be
cancelled under this clause, the CEO must serve a written notice of that fact
on each person who was served or given the summons or notice containing
the notation.
Offences of disclosure
Clause 22 provides for offences associated with disclosing the existence
of, or anything about a summons, notice, or any official matter connected
with the summons or notice, by the person to whom the summons or notice
was issued or given.
This clause also stipulates the circumstances where disclosure of the
information does not constitute an offence.
The clause ceases to apply to a summons or notice after a notation
contained in the summons or notice pursuant to clause 21 ('Disclosure of
summons or notice may be prohibited') is cancelled, or where five years
have elapsed after the issue of the summons or notice.
Failure of witnesses to attend and answer questions
Clause 23 provides for offences by a person who refuses or fails to:
· attend as required by a summons to appear as a witness at an
examination before an examiner;
· attend at an examination before an examiner from day to day
unless excused or released from further attendance by the
examiner;
· take an oath or affirmation, when required under clause 19
(`Power to summons witness and take evidence');
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Australian Crime Commission (Queensland) Bill 2003
· answer questions that he or she is required to answer by the
examiner at an examination; and
· produce a document or thing at an examination before an
examiner that he or she was required to produce by summons
under this Bill.
This clause also contains provisions relating to professional legal
privilege and protection against self-incrimination.
Warrant for arrest of witness
Clause 24 enables, upon application by an examiner, a Judge of the
Federal Court or the Supreme Court to issue a warrant for the apprehension
of a person if that Judge is satisfied that there are reasonable grounds to
believe that the person:
· who is a person who has been ordered to deliver their passport to
the examiner under clause 28 (`Order for delivery to examiner of
passport of witness') of this Bill is likely to leave Australia for
the purpose of avoiding giving evidence before an examiner; or
· who is a person for whom a summons has been issued for them
to appear before an examination to give evidence and/or to
produce documents or things named in the summons at an
examination has:
- absconded or attempted to abscond; or
- is otherwise attempting to evade service of the summons; or
· has failed to attend at an examination as required by a summons
served on them under this proposed Bill, or is likely to do so.
This clause also contains provisions relating to the execution of the
warrant and the detention of the person named in the warrant.
False or misleading evidence
Clause 25 provides for the offence of giving false or misleading
evidence at an examination before an examiner.
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Australian Crime Commission (Queensland) Bill 2003
Protection of witnesses from harm or intimidation
Clause 26 allows an examiner to make arrangements to ensure the safety
of a person is not prejudiced or they are not subject to intimidation or
harassment. The power applies to a person who is appearing or has
appeared at an examination before an examiner or proposes to give, or has
given, information or documents to the ACC other than in an examination
before an examiner.
Legal protection of examiners, counsel and witnesses
Clause 27 provides legal protection and immunity to:
· an examiner in the performance of their functions or the exercise
of their powers as an examiner; and
· a lawyer assisting the ACC or an examiner or representing a
person at an examination.
Respectively, the protection and immunity offered are the same as for a
Justice of the High Court and a barrister appearing for a party in
proceedings in the High Court.
The same protections given to a witness in the High Court are given to a
person summoned to appear as a witness at an examination.
Order for delivery to examiner of passport of witness
Clause 28 enables, upon application by an examiner, a Judge of the
Federal Court to make an order requiring a person to appear before a Judge
of the Federal Court at a later time and date and show cause why the person
should not be ordered to deliver their passport to the examiner.
Such an order may only be made where the Judge is satisfied, by
evidence on oath that:
· a summons has been issued under the provisions of this Bill
(whether or not the summons has been served) requiring the
person to appear before an examiner at an examination in
connection with a special ACC State intelligence operation or
investigation;
· it is reasonably believed that the person may be able to give
evidence (or further evidence) or produce documents to the
examiner that is or are relevant to, and of particular significance
to, the special operation or investigation; and
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Australian Crime Commission (Queensland) Bill 2003
· there are reasonable grounds for suspecting that the person
intends to leave Australia and has in his or her possession,
custody or control a passport issued to him or her.
The clause also a Judge to require the person to deliver their passport to
the examiner, and authorise the examiner to retain the passport for a
specified period of not more than one month, which may be extended by
order for periods of up to one month. The clause limits the total period of
retention to 3 months. Additionally, a Federal Court Judge may, upon the
application of the person to whom the passport has been issued, revoke the
order made under this clause authorising the examiner to retain the
passport.
PART 4--SEARCH WARRANTS
Search warrants
Clause 29 enables an 'eligible person' to apply to an 'issuing officer' for a
search warrant in relation to a special ACC State intelligence operation or
investigation.
The eligible person must have reasonable grounds for suspecting there
may be upon any land or upon or in any premises, vessel, aircraft or
vehicle, a thing or things of a particular kind connected with a special ACC
State intelligence operation or investigation. The suspicion must relate to
the thing or things being on the place on a particular day including a day in
the future up to one month from the date on which the application is made.
Additionally, the eligible person must believe on reasonable grounds that if
a summons were issued for the production of the thing or things, they
might be concealed, lost, mutilated or destroyed.
The issuing officer may issue a warrant authorising a person named in
the warrant, with such assistance as he or she thinks fit, to enter and search
the place named in the warrant and seize any thing or things of a particular
kind connected with a special ACC State intelligence operation or
investigation found at the place.
The issuing officer must not issue a warrant unless he or she:
· has been provided with an affidavit setting out the grounds on
which the issue of the warrant is being sought;
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Australian Crime Commission (Queensland) Bill 2003
· has been provided with any additional information concerning
the grounds that they require; and
· is satisfied that there are reasonable grounds for issuing the
warrant.
If the issuing officer has issued a warrant under this clause, they must
state on the affidavit furnished to him or her setting out grounds for the
warrant, which of the grounds and what additional grounds they relied
upon to justify the issuing of the warrant.
A warrant issued under this clause must:
· include a statement of the purpose for which the warrant is
issued, including a reference to the relevant special ACC State
intelligence operation or investigation;
· state when entry to the place may be made;
· include a description of the things that may be seized under the
warrant; and
· state the expiry date of the warrant (which must be not more than
one month from the date of the issue of the warrant).
Where a person conducting a search under a warrant issued under this
clause finds a thing that they believe on reasonable grounds to be evidence
of an offence against a law of the Commonwealth or a State, and they also
believe that it is necessary to seize the thing to prevent its concealment,
loss, mutilation or destruction, they may seize the thing, and if they do, the
thing is to be taken, for the purposes of this Bill, to have been seized
pursuant to the warrant. This provision allows things found during a search
made under the warrant, but which are not described as things authorized to
be seized under the warrant, to be seized as long as they are reasonably
believed to evidence of an offence.
Things seized pursuant to a warrant issued under this clause may be
retained by the head of the special ACC State intelligence operation or
investigation to which the thing is relevant for as long as reasonably
necessary for the purposes of the operation or investigation.
When retention of a thing so seized is no longer reasonably necessary for
the purpose of the operation or investigation, a person participating in the
operation or investigation must cause the thing to be delivered to:
· if the thing may be used as evidence in a civil proceeding in
respect of a matter connected with, or arising out of, an offence
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Australian Crime Commission (Queensland) Bill 2003
to which the operation or investigation relates, the authority or
person responsible for taking such proceedings; or
· to a person who appears to be entitled to the possession of the
thing;
unless it has been otherwise furnished to a prosecuting authority of the
Commonwealth or a State as evidence of an offence in accordance with
clause 34 ('Performance of functions') of this Bill.
Application by telephone for search warrants
Clause 30 enables an application for a search warrant to be made by an
eligible person by telephone. This may only be done in urgent
circumstances and where the eligible person considers it necessary to do
so.
Prior to making the application, the eligible person must prepare an
affidavit setting out the grounds on which the issue of the warrant is being
sought (as required for a normal search warrant application), but may, if it
is necessary to do so, make the application before the affidavit has been
sworn.
This clause also prescribes steps that must be taken by the issuing officer
and by the applicant for the warrant, to ensure the validity of the warrant.
PART 5--PERFORMANCE OF FUNCTIONS AND
EXERCISE OF POWERS
Consent of Board may be needed before functions can be performed
Clause 31 provides that any conferral of a function on a Commonwealth
body of person by the Bill is subject to provisions in the ACC Act requiring
consent of the Board before the function can be performed.
For example, sections 55A(3) and 55A(5A) of the ACC Act,
respectively, require the consent of the Board before:
· the ACC can undertake an intelligence operation or conduct an
investigation under a law of a State; or
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Australian Crime Commission (Queensland) Bill 2003
· the CEO or an examiner can perform a duty or function, or
exercise a power, under a law of a State relating to an intelligence
operation or an investigation.
Functions not affected by State laws
Clause 32 provides that a Commonwealth body or person is not
precluded by any law of the State from performing a function conferred by
the Bill.
Extent to which functions are conferred
Clause 33 provides that the Bill does not intend to impose a duty on a
Commonwealth body or person to perform a function, if to impose that
duty would be outside of the legislative power of the State Parliament.
Performance of functions
Clause 34 deals with what the ACC must do with evidence that it obtains
during the course of performing its functions under this Bill.
Where the evidence relates to an offence against a Commonwealth or
State law that would be admissible in a prosecution for the offence, or
evidence that would be admissible in a confiscation proceeding, the CEO
of the ACC is required to ensure that the evidence is provided to the
relevant authority for commencing the prosecution or confiscation
proceedings.
Also, the clause enables the Board to make a recommendation to the
Commonwealth Minister or the relevant State Minister for the reform of
the law relating to relevant offences, the reform of administrative practices,
or the reform of administration of the courts in relation to trials of relevant
offences, where the Board considers such recommendations should be
made as a result of the performance of the ACC's functions.
Finally, the clause provides that where the ACC obtains information or
intelligence in the course of performing one of its functions under this Bill,
then that information or intelligence may be used for the purposes of other
ACC functions. For example, information and intelligence that is obtained
during the course of the ACC's general intelligence function may be used
in an intelligence operation and information obtained during an
intelligence operation may be used during the course of an investigation
into federally relevant criminal activity.
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Australian Crime Commission (Queensland) Bill 2003
Functions of federal judicial officers
Clause 35 clarifies the effect of the performance of functions conferred
on federal judicial officers under this Bill. In particular:
· such functions are conferred on a federal judicial officer in a
personal capacity and not as a court or a member of a court;
· a federal judicial officer need not accept any such functions;
· anything done or made by a federal judicial officer under this Bill
has effect only by virtue of the Bill and is not to be taken by
implication to be done or made by a court; and
· a federal judicial officer performing any such functions has the
same protection and immunity as if he or she were performing
the function as, or as a member of, a court.
Limitation on challenge to Board determination
Clause 36 provides that where a determination is made by the Board
regarding the use of coercive powers by the ACC under this proposed Bill,
any act or thing done by the ACC because of that determination is protected
from legal challenge on the ground that the determination was not lawfully
made. This protection would not extend to a proceeding instituted by the
Attorney-General of the Commonwealth or of a State.
Cooperation with law enforcement agencies and coordination with
overseas authorities
Clause 37 requires the ACC, in performing its functions under this
proposed Bill, to, as far as practicable, work in co-operation with other law
enforcement agencies. Additionally, the ACC may co-ordinate its activities
with the activities of authorities and persons in other countries performing
functions similar to the functions of the ACC.
Incidental powers of ACC
Clause 38 provides the ACC with the power to do all things necessary
for or in connection with, or reasonably incidental to, the performance of
its functions under this Bill. Further, any specific powers conferred on the
ACC by this Bill should not be taken to limit the generality of this clause.
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Australian Crime Commission (Queensland) Bill 2003
PART 6--GENERAL
Double jeopardy
Clause 39 makes it clear that where a person has been punished for an
offence under the ACC Act for an offence that they could have also been
punished for under this Bill, the person is not liable to be punished for the
offence under this Bill.
Proceedings for an offence
Clause 40 prescribes limitations on time for summary proceedings, the
election of matters as either summary or on indictment, limitations on
dealing with offences summarily, and limitations on punishment when an
offence is dealt with summarily.
Indictable offences
Clause 41 declares that an offence punishable by at least 5 years
imprisonment is a crime.
Arrangements for Board to obtain information or intelligence
Clause 42 provides that the Minister may make an arrangement with the
Commonwealth Minister for the Board to be given by the State, or an
authority of the State, information or intelligence relating to relevant
criminal activities.
Administrative arrangements with the Commonwealth
Clause 43 provides that the Minister may make an arrangement with the
Commonwealth Minister for the State to make available suitable persons
employed by the State or an authority of the State to perform services for
the ACC.
Judges to perform functions under the ACC Act
Clause 44 makes it clear that a Supreme Court judge of the State may
perform the functions conferred on him or her by sections 22, 23 or 31 of
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Australian Crime Commission (Queensland) Bill 2003
the ACC Act. These sections of the ACC Act relate to search warrants and
warrants for the arrest of a witness.
Providing reports and information
Clause 45 requires and/or enables the CEO of the ACC and the Chair of
the ACC Board, in certain circumstances, to provide information relating
to:
· the conduct of the ACC in the performance of its functions under
this Bill; and
· ACC operations/investigations authorised under this Bill;
to the Commonwealth Minister, a State Minister, the ACC Inter-
Governmental Committee, and law enforcement and other agencies of the
Commonwealth, States and Territories.
Secrecy
Clause 46 aims to protect information acquired by the CEO, a member
of the Board, a member of the Staff of the ACC, or an examiner as a result
of the performance of their functions under this Bill. This is achieved by
creating an offence for those persons to make a record of any of the
information, or to divulge or communicate to any person any of the
information, otherwise than for the purposes of this Bill, the ACC Act or a
Act of another State the corresponds to this Bill.
Additionally, this clause provides that the CEO, a member of the Board,
a member of the Staff of the ACC, or an examiner cannot be required to:
· produce in court any document that has come into their
possession; or
· divulge or communicate to a court a matter or thing that has
come to their notice;
as a result of the performance of their functions under this Bill, unless the
ACC, or the CEO, the acting CEO, a member of the Board or an examiner
in his or her official capacity, is a party to the relevant proceeding, or it is
necessary to do so for the purposes of:
· carrying into effect the provisions of this Bill, the ACC Act or a
Act of another State the corresponds to this Bill; or
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Australian Crime Commission (Queensland) Bill 2003
· a prosecution commenced as a result of an ACC intelligence
operation or investigation.
Delegation
Clause 47 provides that the CEO may delegate any or all of his or her
functions under this Bill to a member of the staff of the ACC who is an SES
employee or an acting SES employee. Any delegation of the CEO's
functions must be made in writing.
Liability for damages
Clause 48 provides protection to members of the ACC Board from an
action or other proceeding for damages for any act or omission done in
good faith in the performance or purported performance of a function
under this Bill, by removing their liability in such cases.
Obstructing, hindering or disrupting the ACC or an examiner
Clause 49 creates an offence for persons who obstruct or hinder the ACC
or an examiner in the performance of their functions under this proposed
Bill, and who disrupt an examination before an examiner.
Public meetings and bulletins
Clause 50 enables the ACC Board to hold public meetings for the
purpose of informing the public about, or receiving submissions in relation
to, the performance of the ACC's functions, including its functions under
this Bill. This clause also provides that the ACC Board may publish
bulletins for the purpose of informing the public about these functions.
The Board cannot, however, disclose information at these meetings or in
these bulletins that could prejudice the safety or reputation of a person or
prejudice the fair trial of a person who has been or may be charged with an
offence.
Annual report
Section 61 of the ACC Act requires the Chair of the ACC Board to
prepare, as soon as practicable after each 30 June, a report of the ACC's
operations during the year that ended on that 30 June. This report is
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Australian Crime Commission (Queensland) Bill 2003
furnished to the IGC-ACC, which is to provide the report and any
comments it thinks fit, to the Commonwealth Minister and appropriate
State Ministers. The Commonwealth Minister must ensure that a copy of
the report and any comments made by the IGC-ACC is laid before each
House of the Commonwealth Parliament within 15 sitting days of that
House after he or she has received the report.
Clause 51 ensures that activities by the ACC in relation to State matters
are includeed in the same annual report prepared under s 61 of the ACC
Act. Also, the clause makes it clear that the conditions governing what the
annual report can and cannot contain, and the responsibilities of persons
with respect to the annual report that apply under section 61 of the ACC
Act equally apply to ACC activities conducted pursuant to the provisions of
this Bill.
This clause also requires the State Minister to ensure a copy of any
report and comments of the IGC-ACC received by him or her are tabled
before State Parliament under the same terms that apply to the
Commonwealth Minister.
Things done for multiple purposes
Clause 52 provides that the validity of anything done for the purposes of
this Bill is not affected only because it was done also for the purposes of
the Commonwealth ACC Act.
Regulation-making power
Clause 53 provides a regulation making power.
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Australian Crime Commission (Queensland) Bill 2003
PART 7--REPEAL, SAVINGS AND TRANSITIONAL
PROVISIONS
Division 1--Repeal
Repeal
Clause 54 repeals the National Crime Authority (State Provisions) Act
1985.
Division 2--Saving and transitional provisions
Terms used in this division
Clause 55 defines two terms used in the division.
Particular investigations taken to be special investigation
Clause 56 is a transitional provision with respect to NCA investigations
commenced under the NCA State Provisions Act, and that will continue
under the new legislation.
Assembling and giving evidence obtained by the NCA
Clause 57 is a transitional provision with respect to evidence seized
under the NCA State Provisions Act, and that was retained by the NCA
until it was provided to the ACC. That evidence may be transferred to
anther agency in accordance with cl 34(1) of the Bill.
Limitation on challenges to validity of references
Clause 58 is a saving provision to ensure the protection given to
Ministerial references under s 8 of the NCA State Provisions Act continues
to have effect despite the repeal of that Act.
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Australian Crime Commission (Queensland) Bill 2003
Arrangements to obtain information or intelligence
Clause 59 is a saving provision to ensure any Ministerial arrangement
made under s 11 of the NCA State Provisions Act continues to have effect
despite the repeal of that Act.
Things seized under search warrants
Clause 60 is a transitional provision with respect to evidence seized
under a search warrant issued under the NCA State Provisions Act, and that
was retained by the NCA until it was provided to the ACC. That evidence
may be treated as if it was seized under a search warrant issued under the
new legislation.
Directions as to publication
Clause 61 is a saving and transitional provision with respect to a
publishing direction in force under the NCA State Provisions Act
immediately before the Australian Crime Commission Establishment Act
2002 (Cth) commenced. These directions continue to have effect despite
the repeal of the NCA State Provisions Act, and may be treated as a
direction given under the new legislation.
Disclosure of summons or notice
Clause 62 is a saving and transitional provision with respect to a notation
in force under the NCA State Provisions Act immediately before the
Australian Crime Commission Establishment Act 2002 (Cth) commenced.
Witness protection
Clause 63 is a saving provision to ensure any arrangement made under s
24 of the NCA State Provisions Act continues to have effect despite the
repeal of that Act.
Administrative arrangements in relation to the NCA
Clause 64 is a saving provision to ensure any Ministerial arrangement
made under s 28(b) of the NCA State Provisions Act continues to have
effect despite the repeal of that Act.
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Australian Crime Commission (Queensland) Bill 2003
Secrecy obligations
Clause 65 is a saving provision to ensure the secrecy requirements
imposed under s 31 of the NCA State Provisions Act continue to have
effect despite the repeal of that Act.
Validation of administrative actions
Clause 66 is a saving provision to ensure the continued protection of
decisions made under the NCA State Provisions Act.
Transitional regulation-making power
Clause 67 allows further transitional provisions to be made under a
regulation if necessary. Any transitional regulation made expires after 12
months after the section commences.
PART 8--AMENDMENT OF ACTS
Acts amended in sch 1
Clause 68 provides that further consequential amendments to other
statutes are contained in schedule 1.
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Australian Crime Commission (Queensland) Bill 2003
SCHEDULE 1
AMENDMENT OF ACTS
CORRECTIVE SERVICES ACT 2000
Amendment 1 to the Corrective Services Act 2000 amends the definition
of "law enforcement agency" under the Corrective Services Act 2000, to
recognise the replacement of the NCA with the ACC.
CRIME AND MISCONDUCT ACT 2001
Amendments 1 to 6 to the Crime and Misconduct Act 2001 amend this
Act in several respects, to recognise that the CEO of the ACC now
performs the functions of chairperson of the NCA. The inclusion of new
subsections 278(1A) and (6) is in recognition of the limitations imposed
under s 55A of the ACC Act
DRUGS MISUSE ACT 1986
Amendment 1 to the Drugs Misuse Act 1986 amends the definition of
"police officer" under this Act, to recognise the replacement of the NCA
with the ACC.
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FREEDOM OF INFORMATION ACT 1992
Amendment 1 to the Freedom of Information Act 1992 amends this Act to
recognise the proposed replacement of the National Crime Authority (State
Provisions) Act 1985 with the Australian Crime Commission (Queensland)
Act 2003.
POLICE POWERS AND RESPONSIBILITIES ACT 2000
Amendments 1 to 8, 10 and 11 amend the Police Powers and
Responsibilities Act 2000 (the PPRA) to recognise the replacement of the
NCA with the ACC, and the proposed replacement of the National Crime
Authority (State Provisions) Act 1985 with the Australian Crime
Commission (Queensland) Act 2003.
Amendment 9 amends schedule 1 of the PPRA to include the proposed
Australian Crime Commission (Queensland) Act 2003. Schedule 1 of the
PPRA relates to ss 9 and 10. The PPRA was a consolidating statute. As s 9
of the PPRA indicates the object was that police officers generally rely on
the PPRA and not a multiplicity of statutes. However, s 10 recognises that
there may be special statutes which may provide a more appropriate power
for a police officer. In accordance with the national scheme the Bill
proposes conferring an authority on an eligible person to apply for a search
warrant. Under the Commonwealth ACC Act an eligible person is defined
to include a member of the staff of the ACC who is also a member of the
Police Force of a State. It was not previously necessary to include the
NCA State Provisions Act in sch 1 as under that Act only a member of the
NCA could apply for a search warrant.
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SCHEDULE 2
DICTIONARY
Schedule 2 contains definitions of terms used in the Bill
© State of Queensland 2003