Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Crime Commission
CRIME COMMISSION BILL 1997
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The objectives of this legislation are to establish a Queensland Crime
Commission (QCC) with the role of investigating organised crime and
paedophilia.
The Act seeks to encourage a co-operative approach to law enforcement
in Queensland. It is recognised and accepted that certain law enforcement
information should remain confidential to the organisation possessing it.
This, however, does not obviate either the need or the ability of law
enforcement bodies to act in a way which results in an approach to law
enforcement which is the most effective and efficient possible.
This legislation seeks to put in place the structures which will allow this
co-operative approach.
Means of Achieving Policy Objectives
The objectives are achieved by creating a law enforcement body with
greater powers than would normally be available to law enforcement, and
placing strict accountability mechanisms to control the use of those powers.
Estimated Cost of Implementation for Government
An accurate cost to Government of implementing this proposal has not
yet been calculated.
Consistency with Fundamental Legislative Principles
Two broad elements of the proposed legislation raise the question of
2
Crime Commission
whether fundamental legislative principles are breached. These are
discussed separately.
Rights and liberties dependent on administrative power
It is proposed that the QCC will have the power to direct an individual to
produce a thing or to appear as a witness. In some cases a person may be
directed to produce the thing or appear immediately. While this power
clearly impacts on the rights and liberties of individuals, it is submitted that
the power is sufficiently defined and subject to appropriate review.
A decision of the QCC to direct a person to produce or attend is open to
judicial review. In addition, the legislation incorporates a scheme by which
a subject person may appeal a QCC decision in the Supreme Court.
Protection against self incrimination
The legislation will also allow the QCC to compel a witness to answer a
question even if the answer might tend to incriminate the witness. While
this is in itself a breach of fundamental legislative principles, it is also a
cornerstone of investigative hearings. The use of the power is balanced by
the inclusion in the legislation of certain safeguards. These are that when a
witness claims privilege against self incrimination, any answer given under
compulsion may not be used against that witness in any subsequent
criminal or civil hearing.
Consultation conducted in Development of the Bill
In the development of this Bill, the Minister for Police and Corrective
Services and Minister for Racing conducted a series of public meetings
across the State. At those meetings members of the public were invited to
attend and raise issues of concern with the proposal to establish a Crime
Commission. Concurrent with these meetings written submissions were
invited from any interested person or organisation. To assist in providing
input, an information paper was distributed to any person requesting one.
The input provided by persons attending those meetings and providing
written submissions has been considered during development of this
legislation and where appropriate, incorporated into the legislation.
In addition, specialist advice was sought from senior officers of the
National Crime Authority, the New South Wales Crime Commission and
the New South Wales State Intelligence Group.
3
Crime Commission
NOTES ON PROVISIONS
PART ONE--PRELIMINARY
Preliminary
Clauses 1 and 2--specify the short title of the proposed Act and provide
for its commencement.
Act binds all persons
Clause 3--provides that the Act applies to the Crown, and also applies to
other jurisdictions to the extent that the power of the Parliament allows.
Objects
Clause 4--outlines the objects of the Act. In summary, the objects of
the legislation are to establish a law enforcement body which will have
responsibility for investigating matters which relate to paedophila offences
and organised and major crime.
The legislation also creates a management committee which will have the
role of oversighting the activities of the commission, and referring matters
to it for investigation.
The legislation also provides for a means by which complaints against
the Commission may be investigated, unhampered by the requirements of
confidentiality.
This provision also outlines that it is an object of the Act to create an
environment of co-operation in law enforcement in this State. It is intended
that all law enforcement agencies, including the newly established
Commission, will work together in a way which obtains the maximum
benefit from the resources available to those agencies.
Dictionary
Clause 5--indicates that definitions of common terms used throughout
the legislation are found in the dictionary, which is included as a schedule to
4
Crime Commission
the Act.
Meaning of "criminal paedophilia"
Clause 6--provides the meaning of the term "criminal paedophilia". A
major focus of the Crime Commission being established by this legislation
is the investigation of paedophilia. However, paedophilia is a general term
only, which encompasses a range of offences against children. The term is
defined in the legislation so that it is clear that the term means any offence
of a sexual nature against a child. The term also includes offences which
relate to obscene material depicting children.
The definition also indicates that the term includes offences committed
outside Queensland, as long as the offender or child is a resident of
Queensland. This is intended to allow the Crime Commission to
investigate activities relating to paedophilia which occur outside Queensland
if some link exists to this State.
Meaning of "major crime"
Clause 7--defines "major crime" to mean any indictable offence which
carries a penalty of 14 years or more, and which is not relevant criminal
activity (as that term is later defined). In later sections the legislation
provides a scheme by which the Police Commissioner may, under certain
circumstances, make a request for the Crime Commission take over an
unsuccessful police investigation. This definition serves the purpose of
limiting the offences which can be taken over by the Commission to only
the most serious offences.
Meaning of "organised crime"
Clause 8--the role of the Crime Commission being established by this
legislation is to create a body which has powers in excess of those normally
given to police officers. The reason for doing so is to create a body which
is able to successfully investigate criminal activity of a type which is
difficult, or even impossible to investigate using conventional police
powers.
Organised crime, which forms part of the later definition of "relevant
criminal activity", is defined in a way which intentionally limits the types of
5
Crime Commission
offences and criminal activity which may generally be investigated by the
Crime Commission. The definition provides five elements, each of which
must be present for a matter to be considered as organised crime.
Meaning of "relevant criminal activity"
Clause 9--provides the meaning of the term "relevant criminal activity".
The term includes criminal paedophilia and organised crime, and also
includes any activity which is undertaken to prepare for those types of
activities, or to prevent detection or prosecution of those activities.
The definition includes preparatory activities which may not necessarily
represent an offence, or an attempt to commit an offence, so that certain
activities may be investigated by the Crime Commission. For example, a
person who undertakes activities to organise a scheme for the distribution of
child pornography among a group of paedophiles may not necessarily
commit an offence in the preparatory stages of that undertaking. It is,
however, an activity which comes within the definition of relevant criminal
activity, and may therefore be referred to the Crime Commission for
investigation.
The definition also ensures that only serious offences are caught within
the definition by excluding, in the case of organised crime, any offence
which carries a penalty of less than 7 years imprisonment.
References to criminal activity include suspected criminal activity
Clause 10--sets out that a reference in the legislation to criminal activity
of the type mentioned also includes a reference to suspected criminal
activity of that type.
PART 2--QUEENSLAND CRIME COMMISSION AND
CRIME COMMISSIONER
Division 1--Queensland crime commission
6
Crime Commission
Establishment
Clause 11--establishes the Queensland Crime Commission.
Throughout the legislation, and in these notes, the designation "QCC" is
used to refer to the Commission.
QCC is a body corporate etc.
Clause 12--provides for a number of provisions relating to the legal
standing of the QCC.
Proposed section 12(1) provides that QCC is established as a body
corporate, with a seal and the right to sue and be sued.
Proposed section 12(2) provides that the QCC consists of the Crime
Commissioner and each Assistant Crime Commissioner, all of whom are
collectively described as members. Provisions relating to the appointment
of the Commissioner and Assistant Crime Commissioners are set out in a
later clause. Those provisions require that a Commissioner be appointed,
but there is no requirement to appoint any Assistant Crime Commissioners.
The effect of this is that if no Assistant Crime Commissioners are
appointed, the QCC consists only of the Crime Commissioner.
Proposed section 12(3) outlines the position of the QCC with respect to
certain legislation. The QCC is a unit of public administration in terms of
the Criminal Justice Act 1989 and the Public Sector Ethics Act 1994. This
means that the QCC and its officers may be investigated by the Criminal
Justice Commission (CJC) in relation to official misconduct matters. It is
also required to develop and maintain a code of conduct for its employees.
The QCC is also a statutory body within the meaning of the Financial
Administration and Audit Act 1977. This Act places certain requirements
on the QCC and the Crime Commissioner with respect to financial
reporting.
The QCC is also exempt from the Corporations Law.
Proposed section 12(4) requires that judicial notice must be taken of the
QCC's seal.
Division 2--Crime commissioner and assistant commissioners
7
Crime Commission
Crime commissioner and assistant crime commissioners
Clause 13--establishes the offices of Crime Commissioner and
Assistant Crime Commissioner. This clause also provides that the Crime
Commissioner is the chief executive of the QCC, and is responsible for the
administration of its budget in terms of the Financial Administration and
Audit Act.
Appointment of crime commissioner and assistant crime
commissioners
Clause 14--provides for the conditions under which the Crime
Commissioner and Assistant Crime Commissioners are to be appointed.
Proposed section 14(1) requires appointments of members of the QCC
to be made by the Governor in Council.
Proposed section 14(2) provides that to be qualified for appointment as
the Commissioner a person must be eligible for appointment as a Judge of
a Supreme Court.
Proposed section 14(3) provides that to be qualified for appointment as
an Assistant Crime Commissioner a person must be nominated by the
Minister administering this legislation. This means that there is no
requirement for an Assistant Crime Commissioner to be a legal practitioner.
At the time of commencement of the legislation the responsible Minister is
the Minister for Police and Corrective Services and Minister for Racing.
Proposed section 14(4) provides that a person can not be appointed as the
Crime Commissioner or an Assistant Crime Commissioner if the person
has been convicted of an indictable offence. Due to the definition of an
indictable offence, this means that a person who has been convicted of such
an offence outside Queensland is also disqualified from appointment.
Proposed section 14(5)These provisions also exclude the appointment of
the Crime Commissioner and Assistant Crime Commissioners from the
operation of certain provisions of the Criminal Law (Rehabilitation of
Offenders) Act 1986. In essence, this provision prevents a prospective
appointee from concealing a previous conviction which, in other
circumstances, he or she could lawfully deny. The provision also allows
the fact that a person has a previous conviction to be taken into account
when selecting a person for appointment as the Crime Commissioner or an
Assistant Crime Commissioner.
8
Crime Commission
Proposed sections 14(6), 14(7) and 14(8) provide that the Commissioner
and Assistant Crime Commissioners are not officers of the Public Service,
but are employed under this legislation. The Assistant Crime
Commissioner must be a full time officer, while the Assistant Crime
Commissioners may be employed on either a full or part time basis.
Establishment of selection panel
Clause 15--provides for a scheme by which the Minister establishes a
selection panel to consider prospective appointees to the QCC. The
Minister is obliged to convene a panel consisting of the Minister and three
other persons. The Minister is also obliged to invite the Leader of the
Opposition to either sit on the panel or to nominate a person to sit in place
of the Leader. Should the Leader of the Opposition elect to sit on the panel
or to nominate a representative, the panel must include the Leader or
nominee.
Nomination for appointment as commission member
Clause 16--compels the Minister to advertise for applicants and to
consult with the selection panel before nominating a person for appointment
as the Crime Commissioner or an Assistant Crime Commissioner.
Duration of appointment
Clause 17--provides that the Crime Commissioner and Assistant Crime
Commissioners may be appointed for no longer than 5 years.
Terms of appointment
Clause 18--sets out that the conditions under which the Crime
Commissioner and Assistant Crime Commissioners are appointed.
Remuneration and allowances and any other conditions of office that are not
expressly provided for in this legislation are to be decided by the Governor
in Council.
9
Crime Commission
Preservation of rights
Clause 19--applies if an officer of the public service is appointed as the
Crime Commissioner or an Assistant Crime Commissioner. In such a
case, any rights accrued by the person, as a result of his or her period as a
public servant, are preserved. This means that for the purposes of
calculating length of service, a period of appointment as the Crime
Commissioner or an Assistant Crime Commissioner is counted towards
continuous service. Such an officer is also guaranteed a position within the
public service to return to after completing a period of appointment. The
guaranteed position must be at a salary level at least the same as that the
person left to take up an appointment to the Commission.
Leave of Absence
Clause 20--allows the Minister to grant leave to the Crime
Commissioner and Assistant Crime Commissioners.
Resignation
Clause 21--provides a resignation mechanism for the Crime
Commissioner and Assistant Crime Commissioners.
Termination of appointment
Clause 22--provides a number of circumstances in which the Governor
in Council may terminate the appointment of the Crime Commissioner or
an Assistant Crime Commissioner. The provisions also require that an
appointment must be terminated if the appointee is convicted of an
indictable offence or takes paid employment outside the duties of the
Commission without the approval of the Minister.
Acting commission members
Clause 23--provides a scheme by which the Governor in Council may
appoint a qualified person to act as the Crime Commissioner or an
Assistant Crime Commissioner when a vacancy occurs or when the
appointed Commissioner or Assistant Crime Commissioner is absent from
duty.
10
Crime Commission
Disclosure of pecuniary interests by commission members
Clause 24--requires the Crime Commissioner and any Assistant Crime
Commissioner to disclose their pecuniary interests to the Minister and
Management Committee after their appointment. While holding office,
those persons are also obliged to advise of any substantial change in their
pecuniary interests. The QCC is given an obligation to maintain a register
of the interests declared.
Division 3--QCC staff and agents
QCC staff
Clause 25--provides that QCC staff are officers of the public service.
This provision also allows the Crime Commissioner to make arrangements
with other units of public administration for officers of those other units to
provide services to the QCC.
Engagement of agents
Clause 26--authorises the QCC to employ persons as agents for a
temporary period on terms decided by the QCC.
Counsel assisting
Clause 27--allows the QCC to engage counsel with the approval of the
Management Committee.
Division 4--QCC Functions
QCC's functions
Clause 28--outlines the functions of the QCC. Among these QCC has
the function of investigating relevant criminal activity and suspected major
11
Crime Commission
crime, but this is limited to matters that are referred to it by the Management
Committee.
QCC also has the function of maintaining an intelligence service to
support its own functions, as well as forecasting trends in criminal activity.
The intelligence function is an activity which is distinct from the
investigation function, and it is not intended that the intelligence function be
reference driven.
This provision also clarifies that the conferral of a function on QCC does
not mean that another law enforcement agency can not also undertake that
same task. This means, for example, that the Police Service may
investigate major crime, or relevant criminal activity, and that this legislation
is not intended to inhibit that ability. The provision makes it clear however
that all law enforcement agencies are expected to work co-operatively
towards maximising available law enforcement resources.
Crime commissioner may ask for reference or change to reference
Clause 29--enables the Crime Commissioner to ask the Management
Committee to provide the QCC with a reference or to make a change to an
existing reference.
Division 5--QCC's interaction with other entities
Police task forces to assist QCC
Clause 30--provides that the Management Committee may make
arrangements with the Police Commissioner for the establishment of a task
force to assist the QCC with an investigation. The Management Committee
may give guidelines and directions to the QCC and the Police
Commissioner, but only in relation to the establishment of the task force.
The conduct of the task force remains under the control of the Police
Commissioner.
Liaison with other entities
Clause 31--allows the QCC to liaise with and exchange criminal data
and intelligence with other organisations. The QCC may liaise for this
12
Crime Commission
purpose with any other law enforcement agency, but must seek the
authority of the Management Committee to liaise with other non law
enforcement organisations.
This provision also allows the QCC to enter operational agreements with
other organisations to facilitate ongoing provision of information.
QCC may give information to other entities
Clause 32--authorises the QCC or a QCC officer in possession of
evidence of an offence to pass that evidence on to the appropriate law
enforcement agency. This position does not affect the right of a police
officer to commence a prosecution.
CJC to be advised of official misconduct
Clause 33--requires the QCC to advise the CJC of any evidence of
official misconduct it uncovers during an investigation. This requirement is
qualified by not requiring that advice to be given if there is likelihood that
doing so might endanger an investigation.
In the event that the QCC determines that providing advice to the CJC
under this section would endanger an investigation, the QCC is required to
notify the Parliamentary Commissioner, and the Parliamentary
Commissioner is required to monitor the investigation and determine when
that advice should be given.
Division 6--Public sittings
Public Sittings
Clause 34--sets out a scheme by which the QCC may hold public
sittings. Sittings held under this provision are not hearings, and therefore a
witness could not be compelled to attend a sitting.
13
Crime Commission
Division 7--Delegations and authorised QCC officers
Delegation
Clause 35--provides for the delegation of the power of the QCC and the
Crime Commissioner to QCC members and officers. The power to
delegate is limited in that any power which is assigned to a particular person
may not be delegated. This means that if the legislation indicates that the
Crime Commissioner may do something, that power may not be delegated
to another QCC officer.
Authorised QCC officer
Clause 36--authorises the Crime Commissioner to appoint certain QCC
employees as authorised QCC officers. The legislation provides that certain
of the powers of the Commission may be exercised by authorised QCC
officers. The Crime Commissioner may only appoint a QCC employee
who is suitably qualified to perform the functions that he or she will be
authorised to perform.
Any police officer who is attached to a police task force assisting the
QCC is an authorised QCC offcer.
Division 8--QCC's annual report
Annual report
Clause 37--imposes an obligation of the Crime Commissioner to
prepare and present to the Minister an annual report. This clause also
prescribes what information must appear in that report, and what
information must not appear.
The Minister is also obliged to table a copy of the report in the Legislative
Assembly.
14
Crime Commission
PART 3--MANAGEMENT COMMITTEE
Division 1--Establishment of management committee
Establishment of management committee
Clause 38--establishes the Queensland Crime Commission
Management Committee. Throughout the legislation, and in these notes,
the designation "Management Committee" is used to refer to the committee.
Membership of management committee
Clause 39--provides for the membership of the Management
Committeee.
Proposed section 39(1) nominates the members of the Management
Committee.
Proposed section 39(2) requires the Minister to advertise state-wide
before nominating a person as a community representative on the
committee.
Proposed section 39(3) requires the Minister to also consult with the
Leader of the Opposition before nominating a person as a community
representative.
Proposed section 39(4) lists a range of persons who are not eligible to be
appointed as a community representative.
Deputy committee member
Clause 40--allows the Commissioner of the Queensland Police Service,
the Chairperson of the CJC and the Chairperson of the National Crime
Authority to nominate a deputy to act as a Committee member in their
place. Other members of the Committee do not have the option of
nominating such a representative.
Duration of appointment of appointed member
Clause 41--provides that community representatives may only be
15
Crime Commission
appointed to serve on the committee for a period no longer than 3 years.
Terms of appointment of appointed member
Clause 42--provides that community representatives are to be appointed
on a part time basis. The terms of the appointment, if not included in the
legislation, are decided by the Governor in Council.
Resignation of appointed member
Clause 43--provides the means of resignation for a community
representative.
Termination of appointment of appointed member
Clause 44--provides a number of circumstances in which the Governor
in Council may terminate the appointment of a community representative.
The provision also requires that an appointment must be terminated if the
community representative is convicted of an indictable offence.
Division 2--Functions
Management committee's functions
Clause 45--sets out the functions of the Management Committee. The
functions are:
(a) to refer matters to the QCC for investigation;
(b) to make arrangements for joint investigations by the QCC, the
Police Service and any other entity;
(c) to receive complaints against the QCC or any of its members or
employees;
(d) to generally review and monitor the QCC.
The provision also requires the QCC to provide the Management
Committee with the administrative support it requires.
16
Crime Commission
Division 3--Referrals
Referrals to QCC
Clause 46--provides for the circumstances under which the
Management Committee may refer matters to the QCC for investigation.
Proposed section 46(1) allows the Management Committee to refer
suspected relevant criminal activity to the QCC either on its own initiative,
or on request of the Police Commissioner or the QCC.
Proposed section 46(2) allows the Management Committee to refer
suspected major crime to the QCC only at the request of the Police
Commissioner.
Proposed section 46(3) requires a referral to be written.
Proposed section 46(4) provides that the committee may only refer
relevant criminal activity to the QCC when it is satisfied that an
investigation using ordinary police powers would not be effective, and also
that it is in the public interest for the QCC to investigate. The criteria which
the committee may have reference to in determining the public interest are
included in proposed section 46(6).
Proposed section 46(5) provides that the committee may only refer a
matter to the QCC at the request of the Police Commissioner when it is
satisfied that the Police Service has already carried out an unsuccessful
investigation into the matter, and any further police investigation is not
likely to be effective. The committee must also be satisfied that the referral
would be in the public interest.
Proposed section 46(6) sets out a range of issues which the committee
may take into account when determining whether the public interest is
served by referring a matter to the QCC for investigation. These matters
generally refer to the seriousness, extent and consequences of the activity,
but also include whether the use of QCC is a justifiable use of resources
under the circumstances.
Proposed section 46(7) provides a standing reference to allow the QCC
to investigate criminal paedophilia. This will allow the QCC to investigate
suspected paedophilia without any further reference from the Management
Committee.
17
Crime Commission
Management committee may give QCC directions about
investigations
Clause 47--gives the Management Committee authority over the QCC
in its investigations. The Management Committee will have the ability to
give QCC directions about the way an investigation is to be conducted,
including placing limits on what powers may be exercised by QCC in the
course of an investigation.
The Management Committee will also have the power to direct the QCC
to end an investigation under certain circumstances. The QCC is obliged to
comply with any direction given under this provision.
Referrals to police service
Clause 48--creates a scheme by which the Management Committee
may refer a matter to the Police Service rather than to the QCC. In these
cases the Police Commissioner may be obliged to advise the Management
Committee of the result of any investigation, and is also obliged to take into
account any comments by the Management Committee about the
investigation.
Division 4--Management committee powers and associated QCC duties
Management committee may obtain information from QCC
Clause 49--authorises the Management Committee to gain access to
information held by the QCC, and which it needs to perform its functions.
This could, for example, include information about operational matters,
provided that the Committee reasonably needs the information. The QCC
is obliged to assist the Management Committee to locate the information it
needs.
This provision also outlines that information provided to the
Management Committee is deemed to be provided in confidence. This then
subjects committee members to the secrecy provisions of clause 126.
18
Crime Commission
Management committee may give directions and guidelines to QCC
Clause 50--gives the Management Committee the authority to direct
QCC in the performance of its functions and compels the QCC to comply.
Division 5--Complaints
Complaints
Clause 51--provides a scheme for dealing with complaints against the
QCC and its members and employees. In the case of complaints which
provide evidence of official misconduct, the Management Committee is
obliged to refer the matter to the CJC. For complaints about any other
matter, the Management Committee may take the action it sees as
appropriate under the circumstances.
Division 6--Meetings and other business of management committee
Meaning of "required minimum number" of committee members
Clause 52--provides a definition of the term "required minimum
number" for the purposes of division 6. The number is one more than half
the members. At the commencement of the legislation the required
minimum number of committee members is five.
Conduct of meetings and other business
Clause 53--allows the Management Committee to conduct its functions
in any manner it sees fit.
Time and places of meetings
Clause 54--allows the Management Committee to decide where and
when it sits. However, the chairperson of the committee is required to
convene a meeting if requested by five of the members.
19
Crime Commission
Presiding at meetings
Clause 55--requires the chairperson, who will be the Crime
Commissioner, to preside at meetings. If that person is not present, the
committee may select a member to preside.
Quorum and voting at meetings
Clause 56--provides for a quorum at Management Committee meetings
and sets out that a simple majority of votes is sufficient to carry a decision.
The clause also provides that the chairperson has a deliberative vote on any
question before the committee, as well as a casting vote when necessary.
Participation in meetings by telephone etc.
Clause 57--allows the Management Committee to conduct meetings
with one or more members at other locations using any means of instant
communication.
Resolutions without meetings
Clause 58--provides a scheme by which members of the Management
Committee may make a collective decision without the need to convene a
meeting.
Minutes
Clause 59--requires the Management Committee to keep minutes of its
meetings.
PART 4--PARLIAMENTARY COMMISSIONER
Division 1--Functions
20
Crime Commission
Functions of parliamentary commissioner for this Act
Clause 60--sets out the functions of the Parliamentary Commissioner.
The Parliamentary Commissioner is appointed under the Criminal Justice
Act 1989, and this legislation imposes two main functions on that officer.
They are to undertake an annual intelligence data review and to review
decisions of the QCC to refuse the CJC access to QCC information. The
Parliamentary Commissioner is also required to provide advice to the
Management Committee on these matters.
The Parliamentary Commissioner also has other minor functions as set
out in the legislation. These are the monitoring of decisions under clause 33
and the function of assisting in transitional arrangements as set out in clause
132(7).
Division 2--Reviews
Intelligence data review
Clause 61--sets out the requirements and role of the Parliamentary
Commissioner in undertaking the annual intelligence data review.
Proposed section 61(1) creates the requirement for the Parliamentary
Commissioner to conduct an annual review of the intelligence data held by
the QCC, the Police Service and the CJC.
Proposed section 61(2) sets out the purposes of the review. In essence,
the review is intended to assess the effectiveness of the total criminal
intelligence effort of the three law enforcement bodies under review. To
that end, the Parliamentary Commissioner is to consider whether it is
appropriate for each agency to hold the intelligence data which it does,
whether the agencies are duplicating intelligence, and whether the agencies
are working as co-operatively as possible in the management of intelligence.
The Parliamentary Commissioner is also to consider whether any agency
is restricting access by other agencies to its intelligence data unnecessarily .
Proposed section 61(3) requires the Parliamentary Commissioner to
provide the Management Committee with advice on the review.
Proposed section 61(4) provides that the report is not to disclose
confidential intelligence matters.
Proposed section 61(5) sets out that the Parliamentary Commissioner
21
Crime Commission
must be mindful of the need for the investigation of official misconduct to
be independent of general law enforcement. This provision is intended to
illustrate that intelligence holdings of the CJC which relate wholly or in part
to official misconduct should not generally be made available to other law
enforcement agencies.
Proposed sections 61(6) and 61(7) provide the times within which the
Parliamentary Commissioner must conduct the first intelligence data review
and all subsequent reviews.
CJC access review
Clause 62--provides a scheme through which the CJC may seek a
review of a decision by the QCC not to allow access to QCC information.
When the CJC is investigating official misconduct, it may require access to
information held by the QCC. It would be open to the QCC to claim that
the information was confidential and the secrecy provisions of this
legislation apply.
These provisions allow the CJC to ask the Parliamentary Commissioner
to review that decision and to make a determination as to whether the CJC
will be allowed to have access to the information sought for the purposes of
its investigation.
Parliamentary Commissioner to decide whether access to be given
Clause 63--provides the power for the Parliamentary Commissioner to
decide if the CJC is to be given access to QCC documents for the purposes
of a CJC investigation.
Division 3--Powers
Powers--general
Clause 64--provides the Parliamentary Commissioner with the powers
required to undertake the functions of the position. This includes the ability
to access information held by the QCC and take possession of and retain
documents. The QCC is also obliged to assist the Parliamentary
22
Crime Commission
Commissioner to locate information sought.
Powers--intelligence data
Clause 65--authorises the Parliamentary Commissioner, as part of
reviewing the intelligence functions of the three law enforcement agencies,
to recommend the removal of an access restriction. Agencies may store
intelligence data on a common computer network, but place restrictions on
who may have access to the information. The Parliamentary
Commissioner will have the authority to recommend whether access
restrictions should be removed and data should be shared.
Powers--CJC access review
Clause 66--sets out the circumstances under which the Parliamentary
Commissioner may order that the CJC be given access to QCC material for
the purposes of a CJC investigation.
Division 4--General
Confidentiality obligations not to apply
Clause 67--excludes from any requirements of confidentiality
communications to or at the direction of the Parliamentary Commissioner
which are made under this legislation.
Protection of parliamentary commissioner
Clause 68--provides a range of protections for the Parliamentary
Commissioner. The Commissioner is not liable for any act done in good
faith as part of the functions of that office, and proceedings may only be
bought against the Parliamentary Commissioner by leave of the Supreme
Court. In addition, the Parliamentary Commissioner may not be called to
give evidence in relation to matters relating to the duties of the position.
23
Crime Commission
PART 5--PUBLIC INTEREST MONITOR
Public interest monitor
Clause 69--provides for the appointment of a Public Interest Monitor
and Deputy Public Interest Monitors, and outlines conditions of the
appointment. The role of the Monitor includes appearing at applications for
surveillance warrants and covert search warrants by the QCC to allow an
independent person to test the validity of those applications.
Monitor's functions
Clause 70--provides the functions of the Monitor, and gives the Monitor
specific power to carry out the functions.
Monitor's annual report
Clause 71--requires the Monitor to prepare an annual report, which the
Minister is required to table in the Legislative Assembly.
Secrecy
Clause 72--creates an offence for the Monitor or a person who has been
the Monitor to disclose information obtained as a result of that role. The
clause also provides that the Monitor may not be compelled to disclose that
type of information in any Court.
PART 6--POWERS
Division 1--Units of public administration
Commission member may require information etc. from units of
public administration
Clause 73--provides QCC with the power to obtain information from
24
Crime Commission
units of public administration.
Proposed section 73(1) gives QCC the authority to require an employee
of a unit of public administration to provide information held by the unit.
Proposed section 73(2) gives QCC the authority to require an employee
of a unit of public administration to attend before the Crime Commissioner
or an Assistant Crime Commissioner and to produce a document or thing.
Proposed section 73(3) creates a scheme in which an officer of a unit of
public administration may seek to avoid the requirement to produce a
document or thing. An officer of the unit has the capacity to make
representations to the QCC to avoid complying with an order, and the QCC
must consider those submissions and decide whether the production will be
insisted on.
Proposed sections 73(4)(5)(6) and (7) impose an obligation on the unit
of public administration to comply with an order to produce, and that
obligations of secrecy do not excuse production. These provisions also
include a recognition that a regulation may provide reasons which will
excuse production under these provisions.
Division 2--Search warrants generally
Search warrant
Clause 74--outlines a scheme by which the QCC may obtain a search
warrant. The warrant may only be issued by a Magistrate, who can issue
the warrant after taking sworn evidence. The warrant may only be issued to
search for evidence that will assist an investigation into relevant criminal
activity or major crime being conducted by the QCC.
Powers for search warrant
Clause 75--provides the power for a QCC officer or a police officer to
seize evidence located subsequent to the execution of a warrant. The
provision allows the seizure of evidence for which the warrant was not
issued provided that the other evidence relates to a QCC investigation and
that the evidence would be lost if it was not seized at that time.
25
Crime Commission
Search to prevent loss of evidence
Clause 76--provides a scheme by which an authorised QCC officer,
under urgent circumstances, may take possession of property without first
obtaining a warrant.
Proposed section 76(1) sets out that the powers under this section only
apply when the QCC officer suspects that at some place there is evidence
which would support a QCC investigation, and the evidence will be lost
unless the place is entered and searched immediately.
Proposed section 76(2) confers on the QCC officer under those urgent
circumstances, the same power as if the officer had obtained a search
warrant for the place from a Magistrate.
Proposed section 76(3) requires that as soon as possible after executing
the search, the officer must go to a Magistrate and seek the Magistrate's
approval of the search.
Proposed section 76(4) provides that the Magistrate may only approve
the search if the suspicion which the QCC officer had was a reasonable one
under the circumstances, and that the likelihood that the evidence would be
lost was also reasonable. The Magistrate must also be satisfied that it is in
the public interest to approve the search.
Proposed sections 76(5), (6), (7) and (8) set out a scheme which allows
the Magistrate to make an order about what is to be done with the property,
and provides an avenue for the QCC officer to appeal that decision.
Supplying warrant copy, officer's details receipt for seized thing etc
Clause 77--sets out a number of requirements on a QCC officer or
police officer who executes a search warrant under this legislation.
Proposed section 77(1) sets out that this section applies when a QCC
officer or police officer searches a place or seizes property under a general
search warrant. This provision does not apply to a warrant or seizure under
a covert search warrant.
Proposed sections 77(2) and (3) require the officer to give the occupier of
the place a copy of the warrant and a document which shows the rights and
obligations of the person under the warrant. If the person is not there the
officer must leave it in a conspicuous place.
26
Crime Commission
Proposed sections 77(4), (5) and (6) require the officer who is in charge
of the search to identify him or her self as a QCC officer, and if not a police
officer in uniform, show the officer's identification. An officer who is not
in charge is only required to identify him or her self if asked.
Proposed sections 77(7), (8) and (9) require an officer who takes
possession of property to give a receipt to the person from whom it was
taken, or if the person is not there, to leave a receipt at the place.
Proposed section 77(10) requires the officer to record the details of the
search in the warrants register.
Requirements after property is sei
Clause 78--sets out a number of requirements on QCC officers after
property has been seized. The officer must take the property before a
Magistrate and apply for an order as to its disposal unless a proceeding has
been commenced which relates to the property, or the owner consents to its
retention. The Magistrate may exercise a number of options in regard to its
disposal, including that it be retained by the QCC or be returned to the
owner.
Access to seized things
Clause 79--requires that when the QCC has seized property in its
possession, the QCC is required to give the owner access to it.
Return of seized things
Clause 80--requires the QCC to return property to the owner as soon as
any related court matters are finalised, or when the thing is no longer
required as evidence.
Division 3--Surveillance powers
27
Crime Commission
Certain Acts do not apply to this part
Clause 81--excludes the part of the legislation dealing with surveillance
powers from the operation of the Libraries and Archives Act 1988 and the
Freedom of Information Act 1992. This part creates the authority for the
QCC to undertake certain covert activities, such as static and mobile
surveillance and covert searches of premises.
In normal circumstances, documentation associated with government
activities would be available under the Freedom of Information Act, and is
also subject to certain record keeping requirements under the Libraries and
Archives Act. Either of these would allow very sensitive information to be
made public, with the possible result that persons are unfairly identified as
the subjects of investigation, or the safety of witnesses and informants is
put in peril. For these reasons, the covert activities and associated
documentation are excluded from the operation of the legislation mentioned.
Surveillance warrants
Clause 82--provides a scheme by which the QCC may obtain a warrant
to place a listening device or visual surveillance device in a place, and to
record private conversations and images with those devices.
Proposed section 82(1) sets out that the power provided by this section is
not available unless the Crime Commissioner believes that a suspect is
involved in a matter being investigated by the QCC. Unless the Crime
Commissioner so believes, this provision does not apply.
Proposed section 82(2) limits the persons who can apply for a
surveillance warrant to authorised QCC officers. An officer must also have
the approval of the Crime Commissioner before he or she may make an
application.
Proposed section 82(3) requires that if the applicant is a police officer, he
or she must hold the rank of Inspector or above.
Proposed section 82(4) provides that applications for class A devices
must be made to a Supreme Court Judge, and applications for the use of
class B devices must be made to a Magistrate. The difference between the
two classes of device is explained in the dictionary.
Proposed section 82(5) requires an applicant for a surveillance warrant to
give sworn evidence in making the application and to advise the Judge
28
Crime Commission
hearing the application of any surveillance warrants issued in the last year
for the same place or suspect.
Proposed section 82(6) requires the applicant to advise the Public Interest
Monitor that the application is to be made.
Proposed section 82(7) authorises the Judge or Magistrate to refuse to
hear the application until the applicant has provided to the Judge or
Magistrate any information needed, and has provided it in the format
required.
Proposed sections 82(8) and (9) limit the people who can be at an
application for a surveillance warrant. In particular the suspect, or any
person who may tell the suspect may not be present.
Proposed section 82(10) sets out a number of matters the Judge or
Magistrate must consider before issuing a surveillance warrant. These
matters generally revolve around the question of whether the seriousness or
nature of the offence under investigation justifies the invasion of privacy
that the use of a surveillance device entails.
Proposed section 82(11) authorises the Judge or Magistrate to issue the
surveillance warrant if there are reasonable grounds for believing that a
person or persons at the place to which the warrant is directed is involved in
a matter under investigation by the QCC.
Proposed section 82(12) requires that if the surveillance warrant is
sought to install a visual surveillance device in a person's home, the warrant
must indicate the locations in the house in which the device may be
installed. This will allow, for example, a Judge to indicate that a
surveillance warrant does not authorise the installation of a visual
surveillance device in a bedroom.
Proposed section 82(13) prevents the issue of a class A surveillance
warrant relating to a lawyer's premises, unless the lawyer is a target of the
investigation. This prevents the issue of a warrant on a lawyer's office if
the investigation is only targeting the lawyer's client or some other visitor to
the office, and not the lawyer.
Proposed section 82(14) requires that the warrant must authorise powers
set out in clause 84.
Proposed section 82(15) allows the Judge or Magistrate to place
conditions on a surveillance warrant.
29
Crime Commission
Proposed section 82(16) creates a scheme by which the Judge or
Magistrate who issues a surveillance warrant may order the destruction of
any recordings made with the device if they are not relevant to the matter
under investigation.
Proposed section 82(17) provides that a surveillance warrant is only valid
for 30 days, but may be extended by application.
Proposed section 82(18) clarifies that the procedures in this provision
relating to an application for a warrant also apply to an application to extend
a warrant.
Proposed section 82(19) provides that despite proposed section 82(17) a
warrant expires when the investigation to which it relates ends, unless the
warrant has uncovered evidence of relevant criminal activity or a major
crime which is not subject of the investigation.
Proposed section 82(20) prohibits a transcript of the application being
made.
Proposed section 82(21) creates an offence of publishing the proceedings
of an application for a surveillance warrant or an extension of a surveillance
warrant.
Proposed section 82(22) restricts access to information about a covert
search warrant application which is in the possession of the Supreme Court.
Emergency use of surveillance devices
Clause 83--provides a power in extraordinary circumstances for the
Crime Commissioner to authorise the use of a surveillance device by an
authorised QCC officer before obtaining a warrant from a Supreme Court
Judge.
An authorisation under this provision may only be made for the purpose
of reducing the risk of injury to a person which arises as a result of an
activity under investigation by the QCC. The provision also requires that
within 7 days the officer must seek the ratification of the decision by a
Supreme Court Judge.
Powers under surveillance warrant
Clause 84--sets out the powers available to a QCC officer acting under
30
Crime Commission
the authority of a surveillance warrant. The warrant authorises entry on to a
place for installing and servicing a surveillance device, as well as a range of
other activities necessary to do this.
Disclosure of information obtained using surveillance warrant
Clause 85--requires that information obtained by virtue of a surveillance
warrant, unless it has already been released in open court, may only be
passed to certain persons. The persons to whom information can be given
are essentially law enforcement and judicial officers.
Register to be kept
Clause 86--requires the QCC to maintain a register which records
instances in which information obtained by use of a surveillance device is
passed on to another entity. The provision contains requirements in regard
to the keeping and security of the register.
Destruction of records
Clause 87--compels the QCC to keep information obtained by a
surveillance device in a secure place, and to destroy the information as soon
as possible when it is no longer needed.
Covert Search warrants
Clause 88--provides a scheme by which the QCC may obtain a warrant
to enter and search a place without the permission or knowledge of the
occupier of the premises. The scheme puts in place a number of
safeguards, as described below.
Proposed section 88(1) authorises an approved QCC officer to apply to a
Supreme Court Judge for a covert search warrant. The provision requires
that the authorised officer must first obtain the permission of the Crime
Commissioner to make the application.
Proposed section 88(2) requires that if a police officer is the applicant for
the covert search warrant he or she must be of at least the rank of Inspector.
Proposed section 88(3) requires an applicant for a surveillance warrant to
give sworn evidence in making the application and to advise the Judge
31
Crime Commission
hearing the application of any warrants issued in the last year for the same
place or suspect.
Proposed section 88(4) requires an applicant for a covert search warrant
to advise the Public Interest Monitor of the application.
Proposed section 88(5) authorises a Judge to refuse to hear the
application until the applicant has provided to the Judge any information the
Judge may need, and has provided it in the format required.
Proposed sections 88(6) and (7) limit the people who can be at an
application for a surveillance warrant. In particular the suspect, or any
person who may tell the suspect may not be present.
Proposed section 88(8) sets out a number of matters the Judge must
consider before issuing a covert search warrant. These matters generally
revolve around the question of whether the seriousness or nature of the
offence under investigation justifies the invasion of privacy that the
execution of a covert search warrant entails.
Proposed section 88(9) sets out the conditions which the Judge must be
satisfied exist before a covert search warrant may be issued.
Proposed section 88(10) provides a number of conditions which must be
included on a covert search warrant. These include the conditions that the
execution of the warrant must be videotaped if it is practicable to do so. The
warrant must also state that the QCC officer or police officer executing the
warrant may enter the place covertly, and have reasonable help to do so. In
this sense "reasonable" means reasonable under all the circumstances of the
matter. For example, the executing officer may obtain the help of a
locksmith to open a lock without leaving any sign that the lock has been
disturbed. Alternatively, the help of a chemist may be used to identify
chemicals at a scene of a suspected illicit drug laboratory, rather than take
the chemicals away for testing.
Proposed section 88(11) authorises the Judge to impose any other
conditions on the warrant necessary in the public interest.
Proposed section 88(12) provides that a covert search warrant is only
valid for 30 days, but may be extended by application.
Proposed section 88(13) clarifies that the procedures in this provision
relating to an application for a warrant also apply to an application to extend
a warrant.
32
Crime Commission
Proposed section 88(14) prohibits a transcript of the application being
made.
Proposed section 88(15) creates an offence of publishing the proceedings
of an application for a covert search warrant.
Proposed section 88(16) restricts access to information about a covert
search warrant application which is in the possession of the Supreme Court.
Powers for covert search warrant
Clause 89--sets out the powers which may be exercised when executing
a covert search warrant. The warrant allows entry on to premises without
the knowledge of the owner or occupant, and provides the power to search
for and seize evidence and to open locked areas for the purpose of
searching. The warrant also provides the ability for the executing officer to
obtain reasonable help in executing the warrant. As discussed in the
preceding provision, this means help which is reasonable in the
circumstances of the case. Examples of what might be considered
reasonable help are discussed above.
Report on covert search
Clause 90--places a number of requirements on a person who executes
a covert search warrant. This includes providing a report to the Judge who
issued the warrant, and taking before the Judge any property seized under
the warrant. The Judge then has the authority to direct how the property is
to be dealt with.
Application of the Invasion of Privacy Act
Clause 91--excludes the use of a listening device under the authority of a
surveillance warrant from the operation of certain offence provisions and
destruction requirements of the Invasion of Privacy Act 1971.
Division 4--Warrants register
33
Crime Commission
Register of warrants and applications for warrants
Clause 92--imposes an obligation on QCC to maintain a register of
applications for covert search warrants and surveillance warrants. The
register is to be accessible by only the Parliamentary Commissioner and
Public Interest Monitor, and by a QCC officer making an application for
such a warrant. It is necessary for a QCC officer to have this access
because in making an application the applicant is required to give to the
Judge information about the success or otherwise of warrants issued
previously.
Division 5--Notice to produce
Notice to produce
Clause 93--creates a scheme by which the QCC may serve a notice on a
person to produce a document or thing.
Proposed section 93(1) creates the authority for the Crime
Commissioner to direct a person, by written notice, to produce any
document or thing. This power is limited to directing the production of a
thing which is relevant to an investigation.
Proposed section 93(2) clarifies that this power may be exercised
independently, and it is not necessary for the QCC to be conducting a
hearing.
Proposed section 93(3) creates the authority for the notice to require the
production of the document or thing immediately under certain urgent
circumstances.
Proposed section 93(4) provides that the notice may include a condition
of secrecy, such that the person receiving the notice may not disclose
information about information contained in it. This does not prevent
disclosure about the existence of the notice itself, or the fact that a person
has been compelled to produce something.
Proposed section 93(5) creates an offence for a person to fail to comply
with a notice.
Proposed section 93(6) establishes the ability of a recipient of a notice to
seek to establish a claim that he or she need not produce the thing sought
34
Crime Commission
because privilege of some type applies to the thing.
Notice to produce--claim of privilege
Clause 94--provides a scheme in which a person served with a notice to
produce may seek to establish a claim that he or she is entitled not to
produce the thing sought by QCC. A person who wishes to establish a
claim of privilege must be advised that a hearing will be convened by QCC
for the purpose of establishing the ground of privilege. The person must
then seal the thing sought and hand it to the person who served the notice.
QCC must then convene a hearing and take submissions from the person
on privilege. This process is detailed in later provisions.
A penalty is provided for a QCC officer, or any other person who opens
the sealed item unless authorised to do so.
Division 6--Attendance notice
Attendance notice
Clause 95--creates a scheme by which the QCC may serve a notice on a
person to attend a QCC hearing and to give evidence, produce a document
or thing or to establish a ground of privilege claimed as a result of the
service of a notice to attend.
The provision also allows an authorised QCC officer, with the approval
of the Crime Commissioner to make application to the Supreme Court for a
notice to attend immediately, under certain urgent circumstances.
The notice served on the person must contain general information about
the nature of questioning the person will be subject to, unless this would
prejudice an investigation. This does not, however, stop the QCC from
questioning on any matter relating to an investigation.
35
Crime Commission
Offence not to attend hearing
Clause 96--creates an offence for a person who has been served with an
attendance notice, to fail to attend as required by the notice, or fail to remain
at the hearing until excused.
Division 7--Arrest
Arrest warrant
Clause 97--creates a scheme for the arrest of certain witnesses.
Proposed section 97(1) provides that an authorised QCC officer may
apply to a Supreme Court Judge for the arrest of a witness. The application
may only be made with the approval of the Crime Commissioner and may
only be made in respect of a witness on whom an attendance notice has
been served.
Proposed section 97(2) sets out the circumstances under which the Judge
may issue the warrant. These are that the person has either failed to appear,
or it appears that the person intends not to appear, and it is in the public
interest to compel appearance.
Proposed section 97(3) allows the warrant to be issued even though the
time for attendance has not yet passed.
Proposed section 97(4) provides that the warrant authorises the detention
of the person named, and the taking of that person before a QCC hearing.
The warrant must require that the person is taken before a QCC hearing
immediately.
Proposed section 97(5) requires that if a person is required to be detained
overnight for the purpose of appearing before a QCC hearing, the person
must be accommodated in the same general manner in which juries are
accommodated. This is qualified to the extent that the warrant of the
Supreme Court may provide otherwise, and direct that the person is to be
detained at another place.
Proposed sections 97(6) (7) and (8) set out who may execute the
warrant, and that reasonable force may be used in doing so. These
provisions also set out that the arrest of a person by virtue of a warrant does
36
Crime Commission
not remove any liability the person may have for failing to appear in the first
instance.
Division 8--General
QCC's powers generally
Clause 98--provides a general power for the QCC to do that which is
necessary in the performance of its functions.
The provision also gives the Crime Commissioner all the powers of the
QCC.
General power to seize evidence
Clause 99--sets out a scheme by which an authorised QCC officer may
seize property which is evidence for an investigation being conducted by
QCC. If the officer is lawfully in or on a place, whether by virtue of a
warrant or not, and locates evidence, this provision allows the officer to
seize it, even though the officer was not at the place for that purpose.
The provision requires that when property is seized under this provision
it is then to be treated as if it was seized by virtue of a warrant.
PART 7--HEARINGS
QCC may hold hearings
Clause 100--provides the authority for the QCC to conduct hearings. A
hearing must be conducted by at least one commission member, and the
presiding member must be a law
Conduct of hearings
Clause 101--provides for the way in which a hearing is to be conduct
37
Crime Commission
Hearings are closed
Clause 102--requires that hearings are closed to the public, except under
special circumstances. The Commission will have an authority to hold a
public hearing only if the Management Committee approves. The
Committee may only approve a public hearing in circumstances in which
opening the hearing would result in a more effective investigation, and there
would be no unfairness as a result. The Management Committee may also
approve a public hearing if it would be unfair to a person to hold a closed
hearing.
Legal representation and examination
Clause 103--provides that a person giving evidence may be legally
represented, and may be questioned by certain parties to the hearing. This
provision also allows a person who is not giving evidence to be represented
at the hearing if the presiding member considers it appropriate in the
circumstaces.
Right to interpreter
Clause 104--imposes an obligation on the QCC to provide an interpreter
if one is needed, for any witness appearing before it.
Refusal to produce--claim of reasonable excuse
Clause 105--sets out a scheme by which a witness before a hearing is
compelled to produce a document or thing, and seeks to claim legal
professional privilege in respect to the document. The document or thing
can not be withheld on the basis of any claim of privilege other than legal
professional privilege. When this ground of privilege is claimed the thing
must be sealed and retained by the QCC for determination pursuant to later
provisions.
Return of sealed documents or things for decision on claim of privilege
at hearing
Clause 106--sets out a scheme for the production of documents at a
hearing for which privilege has been previously claimed. In accordance
38
Crime Commission
with other provisions, when a person is served with a notice to produce a
document or thing, and the person claims a ground of privilege, the person
is required to seal the thing and hand it to the QCC for safe keeping.
This provision requires the QCC to hand the thing back to the witness at
the hearing to allow the witness to either comply with the direction to
produce it, or seek to establish a claim of privilege or other reasonable
excuse for not producing.
Refusal to take oath or affirmation or to answer question
Clause 107--creates an offence for a person who is appearing at a QCC
hearing to refuse to be sworn in as a witness, either by oath or affirmation,
or who refuses to answer any questions put to him or her.
The person may only refuse to answer on the ground of legal
professional privilege. No other ground provides an excuse for not
answering. This includes the ground that the answer might be self
incriminatory.
Presiding member to decide whether refusal to answer questions or
produce documents or things is justified
Clause 108 --sets out a scheme in which a witness at a hearing may
seek to avoid answering a question or produce a document as directed by
the QCC. This provision allows a step at which the witness is given an
opportunity to make submissions to the QCC that he or she should not be
compelled to answer or produce. The QCC can either accept or reject the
arguments raised. When the submissions are rejected, the witness then has
the ability to appeal the decision to the Supreme Court.
Appeals to Supreme Court
Clause 109--sets out the scheme by which a person may appeal the
decision of the QCC that the person must answer a question or produce a
document or thing. The person must first obtain leave of the Supreme
Court to appeal the decision, and leave may not be granted unless there is a
significant prospect of success, or there is an important question of law to
determine.
Any appeal must be commenced within 7 working days, and the Court is
39
Crime Commission
required to deal with the matter expeditiously.
Restriction on use of privileged answers, documents and things
disclosed or produced under compulsion
Clause 110--provides that when a witness is compelled to answer a
question at a hearing, and a ground of privilege would otherwise apply to
that question, the answer may not be used against the person at a later
criminal or civil proceeding. The provision includes a number of
exceptions to this protection. These include for example if the person
consents to its use, or if the proceeding is about the falsity of the answer.
Publication of names, evidence etc.
Clause 111--prohibits the publication a range of material relating to any
QCC hearing. In this provision "publish" can mean passing information to
another person in any way.
QCC must give evidence to defence unless court certifies otherwise
Clause 112--provides a scheme by which a person who stands charged
before a Court can obtain access to otherwise confidential material of the
QCC, if that material is relevant to the person's defence. The scheme
requires that the Court must first consider the material and make a
determination as to whether in the circumstances it is appropriate to release
the material to the defence.
Protection of members, legal representatives and witnesses
Clause 113--sets out that parties to a QCC hearing have the same
privileges and protections as the equivalent party to a Supreme Court
proceeding.
Contempt of commission member
Clause 114--sets out the circumstances under which the Crime
Commissioner or Assistant Crime Commissioner at a hearing, may find a
person in contempt.
40
Crime Commission
Punishment of contempt
Clause 115--sets out a scheme by which a person in contempt of the
QCC may be punished. When the presiding member finds a person in
contempt, the QCC may detain the person and take him or her before the
Supreme Court. The Supreme Court may then punish the person as if the
contempt had arisen in the Supreme Court.
Conduct that is contempt and offence
Clause 116--protects a person from being prosecuted twice in the event
that the same set of circumstances represents both a contempt of a
commission member and an offence.
Allowances for witness
Clause 117--provides that a witness before a QCC hearing has the same
entitlements to an allowance as a witness before a Magistrate's Court.
Legal Assistance
Clause 118--sets out a scheme by which the Attorney General may
approve financial assistance to a person to enable the person to obtain legal
representation. The Attorney General may approve assistance for a person
who has been compelled to appear before the QCC, or who has appeared
and wishes to appeal a decision of the QCC to the Supreme Court.
The Attorney General is empowered to provide assistance if hardship
ould otherwise result to the person, or if in all the circumstances of the case
assistance should be provided.
The costs of assistance are to be met from the QCC budget.
PART 9--OFFENCES
Disclosures about QCC notices
Clause 119--creates the offence of disclosing information contained in a
41
Crime Commission
QCC notice if the notice itself contains a direction that information must not
be disclosed. This provision relates to notices to attend and notices to
produce a document or thing, but the provision does not operate unless the
notice specifically contains a direction that information about it must not be
disclosed.
The provision allows that no offence occurs if the disclosure is about the
existence of the notice and is made by or with the permission of the person
to whom the notice applies. A person who is served with a notice is free to
tell others of the fact that he or she has been served with the notice.
However, the QCC may direct that the witness must not disclose
information about what questions may be asked of the witness, or what
documents or things are required to be produced.
False or misleading statements or documents
Clause 120--creates an offence of providing false or misleading
documents or answers to the QCC.
Obstruction of QCC etc.
Clause 121--creates an offence to obstruct the QCC or a QCC officer.
Injury or detriment to witness etc.
Clause 122--creates the offence of injuring or threatening or otherwise
causing detriment to a witness or potential QCC witness. The offence
created in this provision is an indictable offence.
Pretending to be a commission member or QCC officer
Clause 123--creates an offence of pretending to be a QCC officer. This
term includes the Crime Commissioner and Assistant Crime
Commissioners.
Indictable and summary offences
Clause 124--provides that, with the exception of the offence of injury or
detriment to a witness, offences against this legislation are summary
42
Crime Commission
offences, and as such may be dealt with in a Magistrate's Court.
Proceedings for indictable offence
Clause 125--sets out the procedure for the prosecution of an indictable
offence under this legislation.
PART 10--GENERAL
Secrecy
Clause 126--creates an offence for any current or former members of
the Management Committee, Commission Members or QCC officers to
make a record of or to disclose information which has come into their
possession as a result of being in that position.
This provision also provides that one of the persons mentioned may not
be compelled to produce a QCC document in a Court except under certain
circumstances.
Protecting officials from liability
Clause 127--provides members of the Management Committee, QCC
members and QCC officers with protection against civil action, for anything
done under this legislation. This protection only applies to things done
honestly and without negligence.
To protect the rights of a third party, the clause also provides that where a
liability of a person is avoided because of this provision, that liability moves
to the State.
Protection of witnesses etc.
Clause 128--allows the QCC to seek assistance of the CJC Witness
Protection Division in the event that a QCC witness is seen to be in danger.
This section does not compel a witness to take part in the witness protection
program.
43
Crime Commission
Record of execution of warrant
Clause 129--requires a QCC officer who executes a warrant to endorse
the back of the warrant with details about its execution as well as his or her
personal details.
Regulation-making power
Clause 130--gives the Governor in Council the authority to make
regulations for this legislation.
Expiry
Clause 131--provides that this legislation expires after 5 years.
PART 11--TRANSITIONAL PROVISIONS
Audit of investigations
Clause 132--provides arrangements by which investigations that are
currently being conducted by the CJC may be taken over by the QCC or the
Police Service. The provisions require the Chairperson of the CJC to brief
the Management Committee on any matters which the CJC is investigating
or is yet to investigate. This includes matters which are under consideration
for investigation.
If the Management Committee decides that an investigation should pass
from the CJC to the QCC or Police Service, the CJC is obliged to brief the
entity taking the investigation and help it to take over or to commence the
investigation.
PART 12--AMENDMENT OF CRIMINAL JUSTICE
ACT 1989
Act amended in pt 12
Clause 133--identifies the Act being amended in this part as the
Criminal Justice Act 1989.
44
Crime Commission
Clauses 134 to 141--effect a number of amendments to the Criminal
Justice Act which have the effect of removing from the CJC:
(i) responsibility for major or organised crime;
(ii) authority to overview the intelligence function of the Police
Service.
The provisions also appoint a Public Interest Monitor under the Criminal
Justice Act to fill a role similar to that provided for the QCC. The Monitor
will have the function of appearing at applications by the CJC for the use of
listening devices.
Clause 142--further amends the provisions of the Criminal Justice Act
dealing with the publication of evidence. These amendments now allow a
person who has been required to attend a CJC hearing to tell other persons
of that fact.
PART 13--AMENDMENT OF JUDICIAL REVIEW
ACT 1991
Act amended in pt 13
Clause 143--identifies the Act being amended in this part as the Judicial
Review Act 1991.
Amendment of sch 2 (Decisions for which reasons need not be given)
Clause 144--amends schedule 2 of the Judicial Review Act, which
outlines a range of decisions about which a person may not apply for
reasons for the decision. This amendment includes in that schedule certain
decisions of the QCC, including decisions relating to the criminal
intelligence function and decisions relating to surveillance warrants and
covert search warrants.
45
Crime Commission
SCHEDULE
DICTIONARY
The schedule to the legislation provides the dictionary of terms used
throughout the body of the legislation as provided for in clause 5.
© The State of Queensland 1997